Exhibit 99.5
ASSIGNMENT OF REINSURANCE RECOVERABLES
AND OTHER RECEIVABLES
BY
LASALLE RE LIMITED
TO
ENDURANCE SPECIALTY INSURANCE LTD.
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May 16, 2002
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This ASSIGNMENT OF REINSURANCE RECOVERABLES AND OTHER RECEIVABLES
(the "Assignment Agreement"), dated as of May 16, 2002, is entered into between
LaSalle Re Limited, a Bermuda insurance company ("Retrocedent"), and Endurance
Specialty Insurance Ltd., a Bermuda insurance company ("Retrocessionaire").
W I T N E S S E T H:
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WHEREAS, pursuant to Article III of the Quota Share Retrocession
Agreement dated May 16, 2002, by and between Retrocedent and Retrocessionaire,
Retrocedent has agreed to enter into this Assignment Agreement pursuant to which
Retrocedent will secure its obligation to Retrocessionaire to transfer and
assign to Retrocessionaire a registrable security interest in all of the
Retrocedent's right, title and interest in, to and under (i) all receivables
under the Reinsured Contracts (the "Receivables") and (ii) all Reinsurance
Recoverables under Third Party Retrocession Contracts; which right, title and
interest shall include, without limitation, the right to collect the Receivables
and Reinsurance Recoverables;
NOW, THEREFORE, in consideration of the foregoing and the respective
covenants, agreements and conditions set forth herein and in the Retrocession
Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending to
be legally bound, agree as follows:
1. Definitions. Certain capitalized terms used but not defined in this
Assignment Agreement shall have the meanings ascribed to such terms in the
Retrocession Agreement.
2. Assignment of Receivables and Reinsurance Recoverables. (a) Retrocedent
hereby assigns absolutely, transfers, and conveys (the "Assignment") to
Retrocessionaire and its successors and assigns all of Retrocedent's
right, title and interest in the Receivables and Reinsurance Recoverables.
Retrocedent agrees and acknowledges that the Assignment shall, without
limitation, grant Retrocessionaire and its successors and assigns the
exclusive right to collect the Receivables and Reinsurance Recoverables;
(b) Retrocedent agrees and acknowledges that the Assignment shall,
without limitation, entitle Retrocessionaire and its successors and
assigns to enforce in their own names or in the name of Retrocessionaire
any right or claim of Retrocedent with respect to the Receivables and
Reinsurance Recoverables;
(c) Retrocedent shall permit the Retrocessionaire (in its capacity
as Administrator under the Administrative Services Agreement) to (i)
notify all other parties to the Reinsured Contracts and the Third Party
Retrocession Contracts of the execution of this Assignment within 30 days
of this Assignment, (ii) take all steps reasonably required by the
Retrocessionaire to collect the Receivables and Reinsurance Recoverables,
and (iii) take all other actions necessary to fulfill its obligations as
Administrator under the Administrative Services Agreement;
(d) Retrocedent shall (i) preserve or protect the Retrocessionaire's
interest in the Receivables and Reinsurance Recoverables and (ii) hold all
Receivables and Reinsurance Recoverables received or collected by the
Retrocessionaire on trust as agent of the Retrocessionaire in a custodian
account owned or approved by the Retrocessionaire (which the
Retrocessionaire shall
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have sole control of and access to) for the benefit of the
Retrocessionaire (and procure the delivery of such Receivables and
Reinsurance Recoverables to the Retrocessionaire on request);
(e) Retrocedent shall do or permit to be done each and every
reasonable act or thing which the Retrocessionaire may from time to time
require to be done for the purpose of enforcing the Retrocessionaire's
rights granted pursuant to this Assignment and to allow its name to be
used as and when reasonably required for that purpose;
(f) Retrocedent shall promptly deliver to the Retrocessionaire a
copy of any material notice issued to the Retrocedent by any party to the
Third Party Retrocession Contracts in connection with the Receivables and
Reinsurance Recoverables;
(g) Without the consent of the Retrocessionaire, Retrocedent shall
not agree to any amendment to, or give any consent, waiver or approval
under, any of the Third Party Retrocession Agreements or agree to any
termination or cancellation of or take any other action in connection
with, any of the Third Party Retrocession Agreements.
3. Acceptance of Assignment. Retrocessionaire hereby accepts the Assignment.
4. Rights Obligations and Liabilities. Notwithstanding anything to the
contrary herein contained or contained in the Retrocession Agreement the
Retrocedent agrees with the Retrocessionaire and for the benefit of the
Retrocessionaire that:
(a) the Retrocedent shall at all times remain liable to perform all
the
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duties and obligations expressed to be assumed by it in relation to the
Receivables and Reinsurance Recoverables to the same extent as if the
Assignment had not been executed;
(b) the exercise by the Retrocessionaire of any of the rights
assigned hereunder shall not release the Retrocedent from any of its
duties or obligations in relation to the Receivables and Reinsurance
Recoverables ;
(c) the Retrocessionaire shall not be required to perform or fulfill
any obligation or liability of the Retrocedent in relation to the
Receivables and Reinsurance Recoverables by reason of, or arising out of,
this Assignment;
(d) the Retrocessionaire shall not be obliged to perform any of the
obligations or duties of the Retrocedent expressed to be assumed by it in
relation to the Receivables and Reinsurance Recoverables; and
(e) the Retrocessionaire shall not be required to make any payment
or to make any inquiry as to the nature or sufficiency of any payment
received by the Retrocessionaire or the Retrocedent in connection with the
Receivables and Reinsurance Recoverables or to present or file any claim
or to take any other action to collect or enforce the payment of any
amount to which it may have been or to which it may be entitled under this
Assignment at any time.
5. Representations and Warranties. The Retrocedent warrants and represents to
the Retrocessionaire that:
(a) the Retrocedent has taken all corporate action necessary to
authorise the execution and performance of this Assignment;
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(b) this Assignment constitutes the valid and binding obligations of
the Retrocedent;
(c) it has the power to grant a security interest in the Receivables
and Reinsurance Recoverables it transfers to the Retrocessionaire under
this Assignment; and
(d) it has the exclusive right to receive all Receivables and
Reinsurance Recoverables it transfers to the Retrocessionaire under this
Assignment, free and clear of any interest, lien, encumberance or other
interest or restriction other than the security interest granted under
clause 6.
6. Continuing Security. (a) This Assignment and the security hereby created
shall be a continuing security until all Receivables and Reinsurance
Recoverables have been received in full by the Retrocessionaire.
(b) This Assignment and the security hereby created shall be in
addition to and shall not be affected by and shall not be in substitution
for or derogation of any other security (whether given by the Retrocedent
or otherwise) now or from time to time hereafter held by the
Retrocessionaire in respect of or in connection with any or all of the
moneys and liabilities hereby secured.
(c) The Retrocessionaire need not before exercising any of the
rights, powers or remedies conferred upon it by this Assignment or by law
(i) take any action of any kind or obtain judgement against the
Retrocedent or any other person, (ii) make or file any claim or proof in a
winding-up or liquidation of the Retrocedent or of any other person, (iii)
enforce or seek to enforce the recovery of
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the moneys and liabilities hereby secured or any other security.
(d) The Retrocessionaire may in its discretion (i) grant time or
other indulgence or make any other arrangement in respect of any of the
moneys and liabilities hereby secured or of any other security therefor or
of any other company or companies, person or persons not parties hereto or
(ii) vary any provision of the Retrocession Agreement, subject to the
terms in that agreement, without prejudice to this security, and the
security created by this Assignment shall not be in any way discharged or
impaired by reason of any other circumstance which might (but for this
provision) constitute a legal or equitable discharge of such security.
(e) The security created by this Assignment shall continue in full
force and effect and shall not be discharged, impaired or otherwise
affected by any act, omission or circumstance which, but for this
provision, might operate to release or otherwise exonerate the Retrocedent
from its obligations under this Assignment or affect such obligations
including (but without limitation) and whether known or not to the
Retrocedent or the Retrocessionaire:
(i) any time or indulgence granted by the Retrocessionaire or any
failure or delay by the Retrocessionaire in exercising any
right, remedy, power or privilege hereunder or under the
Retrocession Agreement or any single or partial exercise of
any right, remedy, power or privilege hereunder or thereunder;
(ii) any failure by the Retrocessionaire to take or enforce any
other security or guarantee taken or agreed to be taken for
all or any of the Receivables and Reinsurance Recoverables or
under or pursuant to the Retrocession Agreement or otherwise;
(iii) any extension, compromise, amendment, modification, variation,
supplement, renewal or release of, or refusal or neglect to
perfect
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or enforce, all or any part of the Retrocedent's obligations
under this Assignment or the Retrocession Agreement or any
rights or remedies against the Retrocedent or any other
person;
(vi) any release or exchange of any security or guarantee now or
hereafter held by the Retrocessionaire for all or any part of
the Retrocedent's obligations under this Assignment or the
Retrocession Agreement; or
(v) any legal limitation, disability, incapacity or other
circumstance relating to the Retrocedent, any guarantor or any
other person or any amendment to or variation of the terms of
the Retrocession Agreement or any other document or security;
or
(vi) any other act, omission, fact, matter, circumstance, event or
thing (including, without limitation, the irregularity,
invalidity, unenforceability or illegality of any of the =
obligations of the Retrocedent under the Retrocession
Agreement or otherwise, or the bankruptcy, liquidation,
winding-up, insolvency, dissolution, administration,
re-organisation or amalgamation of, or other analogous event
of or with respect to, the Retrocedent or any other person)
which, but for this provision, might operate to impair,
discharge or adversely affect the rights of the
Retrocessionaire hereunder or to impair, discharge or
adversely affect the security hereby created.
(f) Any settlement or discharge between the Retrocessionaire and the
Retrocedent and/or any other person shall be conditional upon no security
or payment to the Retrocessionaire by the Retrocedent or any other person
being avoided or set aside or ordered to be refunded or reduced by virtue
of any provision or enactment relating to bankruptcy, liquidation,
winding-up, insolvency, dissolution, re-organisation, administration,
amalgamation or other analogous event or proceedings for the time being in
force and the security constituted by this Assignment and the obligations
of the Retrocedent under this Assignment shall continue as if there had
been no such settlement, discharge or arrangement;
(g) The Retrocedent will promptly give notice to the
Retrocessionaire
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of, and cooperate in the defense of (at the sole expense of the
Retrocessionaire) any suit, action, proceeding or lien that involves the
Receivables and Reinsurance Recoverables transferred by the Retrocedent or
that could adversely affect the security interest granted by it under this
clause 6.
(h) The Retrocedent and the Retrocessionaire confirm and acknowledge
that all parties to the Third Party Retrocession Contracts will be
informed of this Assignment in accordance with clause 2(b) hereof.
7. All Actions Necessary. Retrocedent (as reasonably requested from time to
time by Retrocessionaire) shall take all reasonably appropriate action and
execute any additional documents, instruments or conveyances of any kind
(not containing additional representations and warranties) which may be
reasonably necessary to carry out any of the provisions of this Assignment
Agreement or of the Retrocession Agreement, including, without limitation,
as may be necessary to enable Retrocessionaire to collect the Receivables
and Reinsurance Recoverables.
8. Security Interest In Assignment. The parties intend that Retrocessionaire
shall at all times have a security interest in the Assignment and
acknowledge that this Assignment creates a registrable charge over the
Receivables and Reinsurance Recoverables.
9. Interpretation. Notwithstanding anything to the contrary contained in this
Assignment Agreement, nothing contained herein shall be deemed to limit,
restrict or modify in any manner the rights and obligations of the parties
under either the Retrocession Agreement, the Administrative Services
Agreement or the Transfer and Purchase Agreement. In case of any conflict
between this
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Assignment Agreement and (a) the Retrocession Agreement, (b) the
Administrative Services Agreement, (c) the Transfer and Purchase
Agreement, or (d) any other Related Document (as such term is defined in
the Transfer and Purchase Agreement), the Retrocession Agreement, the
Administrative Services Agreement, the Transfer and Purchase Agreement or
the other Related Documents shall govern.
10. Binding Effect; Assignment. This Assignment Agreement shall be binding
upon Retrocedent and its successors and assigns and legal representatives.
Neither this Assignment Agreement, nor any right or obligation hereunder,
may be directly or indirectly assigned or transferred by any party, in
whole or in part, to any third party (other than to Retrocedent's
successors and assigns), including, without limitation, any bankruptcy
trustee, by operation of law or otherwise, whether voluntary or
involuntary, without the prior written consent of the other parties
hereto; provided, however, notwithstanding the foregoing, Retrocessionaire
may assign this Assignment Agreement to an Affiliate with an A.M. Best
credit rating equivalent to that of Retrocessionaire reasonably
satisfactory to Retrocedent upon prior written consent of Retrocedent,
which consent shall not be unreasonably withheld, conditioned or delayed.
11. Third Party Beneficiaries. This Assignment Agreement shall inure to the
benefit of Retrocessionaire and its successors and permitted assigns and
shall be binding upon Retrocedent and its successors and assigns, and
nothing herein is intended or shall be construed to confer upon any other
Person any right, remedy or claim under or by reason of this Assignment
Agreement or any term, covenant or
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condition hereof.
12. Amendment. This Assignment Agreement may only be amended or modified by a
written instrument executed by the parties hereto.
13. Governing Law. This Assignment Agreement shall be governed by and
construed in accordance with the laws of Bermuda, regardless of the laws
that might otherwise govern under applicable principals of conflicts of
laws thereof.
14. Consent to Jurisdiction. This Assignment Agreement shall be governed in
all respects, including validity, interpretation and effect, by the laws
of Bermuda applicable to contracts to be performed in Bermuda. The parties
agree that any action or proceeding, however characterized, relating to or
arising out of the transactions contemplated by this Assignment Agreement
may be maintained in the courts of Bermuda, and the parties hereby
irrevocably submit to the non-exclusive jurisdiction of any such court for
the purposes of any such action or proceeding and irrevocably agree to be
bound by any judgment rendered by any such court with respect to any such
action or proceeding.
15. Waiver of Jury Trial. Each of the parties (to the extent permitted by
Applicable Law) hereto irrevocably waives any and all right to trial by
jury in any legal proceeding arising out of or related to this Assignment
Agreement.
16. Severability. Any term or provision of this Assignment Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining
terms and provisions of this Assignment
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Agreement or affecting the validity or enforceability of any of the terms
or provisions of this Assignment Agreement in any other jurisdiction. If
any provision of this Assignment Agreement is so broad as to be
unenforceable, the provision shall be interpreted to be only so broad as
would be enforceable.
17 Descriptive Headings. The descriptive article and section headings herein
are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Assignment
Agreement.
18 Counterparts. This Assignment Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, said
counterparts together to constitute one and the same instrument.
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IN WITNESS WHEREOF, this Assignment Agreement has been duly executed
and delivered by the duly authorized officers of LaSalle Re Limited and
Endurance Specialty Insurance Ltd. as of the date first above written.
LASALLE RE LIMITED
By: \s\ Guy D. Hengesbaugh
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Name: Guy D. Hengesbaugh
Title: President and Chief Executive Officer
ENDURANCE SPECIALTY INSURANCE LTD.
By: \s\ Kenneth D. LeStrange
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Name: Kenneth J. LeStrange
Title: Chief Executive Officer
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