EXHIBIT
10.43


 


SERVICE AND
EXPENSE SHARING AGREEMENT


 


This
(“Agreement”) is entered into as of October 1, 2006 by and between Tower
Insurance Company of New York (“TICNY”), a property
and casualty insurance company domiciled in New York with offices located at
120 Broadway, New York, N.Y. 10271 and CastlePoint Management Corp. and
any of its after acquired property and casualty insurance company subsidiaries
(collectively “CPM”), a Delaware corporation with offices located at 120
Broadway, New York, N.Y. 10271.


 


 


RECITALS


 


WHEREAS, TICNY and CPM entered into
a Service and Expense Sharing  Agreement
dated April 4, 2006, but now find it advisable to amend and restate such
agreement; and


WHEREAS,
CPM plans to acquire one or more property and casualty insurance companies
(hereinafter referred to as “CastlePoint Insurance Companies” or “CPIC”); and


 


WHEREAS,
TICNY plans to underwrite Brokerage Business, as defined below on behalf of
itself and CPIC pursuant to a pooling agreement between TICNY and CPIC;


 


WHEREAS,
CPM plans to manage Specialty Program Business and Insurance Risk Sharing
Business and Traditional Program Business as defined herein on behalf of TICNY
prior to CPM’s acquisition of CPIC pursuant to a Program Management Agreement
between CPM and TICNY; and


 


WHEREAS,
upon CPM’s acquisition of CPIC, CPIC plans to underwrite Specialty Program
Business and Insurance Risk Sharing Business on behalf of itself and underwrite
Specialty Program Business through TICNY pursuant to a pooling agreement
between CPIC and TICNY; and


 


WHEREAS, TICNY and CPM are desirous of entering into an
agreement whereby  CPM provides services
to TICNY at its request (other than services provided in its role as the
manager of the Traditional Program Business and Specialty Program Business and
Insurance Risk Sharing Business) and to provide a method for sharing those
expenses; and


 


NOW THEREFORE, in consideration of the mutual agreements
described in this Agreement, TICNY and CPM agree
as follows:


 


ARTICLE 1 — PERFORMANCE OF SERVICES 


 


1.01                           In addition to
the services that CPM or CPIC may provide to TICNY in managing the Specialty
Program Business and Insurance Risk Sharing Business and Traditional Program
Business, CPM shall provide various insurance companies services to TICNY on the
terms and conditions set forth herein.  The
services provided shall be:


 


•                  Underwriting
and marketing services


•                  State filing
and regulatory compliance services


•                  Loss
prevention and premium audit services


 


 


1

















 


ARTICLE 2 — COMPENSATION 


 


2.01                           Any compensation paid by TICNY
to CPM for services rendered hereunder must be on an actual cost basis, but in
no case should the compensation paid be greater than either company would
expend in providing such services for itself.


 


2.02                           Expenses for
the services rendered by CPM to TICNY shall be allocated and reported in
accordance with NY Department’s Regulation 30 and any other applicable
regulation.


 


2.03                           Settlement of Accounts


 


(a)          CPM shall submit to
TICNY within thirty (30) days of the end of each calendar month a detailed
written estimate of the amount owed for services pursuant to this Agreement in
that calendar month, and TICNY shall pay to CPM within fifteen (15) days
following receipt of such estimate the amount set forth in the estimate.


 


(b)         Within thirty
(30) days of the end of each calendar quarter, CPM shall submit to TICNY a
detailed written statement of the amount owed for services and the use of the
facilities for that calendar quarter with a true-up of the monthly estimates
and TICNY shall pay to CPM within fifteen (15) days following receipt of such
written statement the amount set forth in the statement.


 


ARTICLE
3 — TERM, SUSPENSION AND TERMINATION


 


3.01         Original Term


 


The term of this Agreement will begin on the date of this
Agreement and will continue for a period of four (4) years, after which this Agreement will terminate unless the parties agree to
extend the term of this Agreement. This
Agreement may be terminated immediately by mutual consent of both parties or
upon the placement of TICNY or CPM into rehabilitation or liquidation by
regulatory authorities or upon the declaration of bankruptcy of either company.


 


3.02                           Agreement


 


Services and facilities shall be provided to TICNY by CPM
only to the extent that such arrangements do not impede either company’s
business or operations.


 


TICNY and CPM shall act hereunder so as to assure the
separateness of their respective operating identities.  Books and records shall be maintained
separately for each party for services provided by this Agreement.


 


This Agreement may not be assigned, terminated or amended
by either party without the prior written consent of the New York
Superintendent and any other regulatory body required to provide such consent.


 


3.03                           Rights Regarding Termination


 


A.                       This Agreement
may be terminated at any time by the mutual agreement of the parties, or by
either party for any of the following reasons:


 


(1)                      Immediately by
either party in the event of bankruptcy, insolvency, liquidation or assignment for the benefit of creditors by the
other party;


 


2

















 


(2)                      Upon sixty
(60) days written notice by either party in the event of any material change in the ownership or control of the other party;


 


(3)                      Immediately by
either party in the event any law or regulation of a federal, state or local government has rendered this Agreement
illegal, but only insofar as that law or
regulation applies to this Agreement;


 


(4)                      Immediately by
either party in the event of fraud, abandonment, gross or willful misconduct, insolvency, or lack of legal capacity
to act on the part of either party;


 


(5)    
Upon sixty (60) days written notice by either party in the event of
default in any material term of this Agreement, unless the default is cured
prior to the end of the end of the sixty (60) day period.


 


                B.        In the event of termination of this
Agreement:


(1)                      CPM shall
promptly cease performing any services called for under this Agreement;


 


(2)                      Neither party
shall have any claim against the other
for loss of prospective profits or fees or damage to business arising there from;


 


(3)                      Notwithstanding
the termination of this Agreement, CPM shall continue to perform such services
under this Agreement in settlement of
accounts or winding up of affairs between TICNY and CPM if so requested
by TICNY.  Expenses for the services rendered by CPM shall be allocated in
accordance with NY Department’s Regulation 30 and any other applicable
regulation.


 


ARTICLE 4 — MAINTENANCE CONTROL AND
OWNERSHIP OF RECORDS


 


4.01         Maintenance
of Records


 


TICNY and CPM will maintain all appropriate records,
files, ledgers and reports so as to accurately reflect at all times the financial transactions with one another.


 


4.02         Ownership
of Records


 


All books, records, and files established and
maintained by TICNY or CPM by reason of its performance under this Agreement
which, absent this Agreement, would have been held by TICNY or CPM respectively
shall (i) be deemed the joint property of each party, (ii) be maintained in
accordance with all other applicable law and regulation and (iii) be subject to
examination at all times by CPM or TICNY and persons authorized by it or any
governmental agency having jurisdiction over CPM or TICNY.


 


Each party is the owner of all records
related to its company regardless of in whose possession those records may be
at any time.


 


3

















 


ARTICLE 5 — GENERAL REQUIREMENTS


5.01         CPM’s
General Duties


CPM is responsible to perform the duties assumed under
this Agreement in accordance with standard procedures for the performance of
such duties, which exist in the insurance industry.


 


ARTICLE 6 — MISCELLANEOUS 


6.01         Notices


All
notice requirements and other communications indicated shall be deemed given
when personally delivered or on the third succeeding business day after being
mailed by registered or certified mail,
return receipt requested, to the appropriate party at its address below or at such other address as shall be
specified by notice given hereunder.


 


CPM:                                                                                                                CastlePoint
Management Corp.


                                                                                                                                                120 Broadway


                                                                                                                                                New York, NY
10271


 


TICNY:                                                                                                        Tower Insurance
Company of New York


                                                                                                                                                120 Broadway, 31st
Floor


                                                                                                                                                New York,
NY  10271


 


6.02         Binding Effect and
Assignment


 


This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, representatives, successors and
assigns.  This Agreement may not be assigned without mutual consent of the parties,
but such consent shall not be unreasonably withheld. This paragraph may not be
implemented without the prior approval of the State of New York,
Superintendent of Insurance.


 


6.03            Amendment


 


This
Agreement may not be amended, altered or modified except in writing signed by
the party against whom enforcement or any waiver, change, discharge,
alternation or modification is sought.


 


6.04            Invalidity


 


The
invalidity of any provision of this Agreement shall not affect the validity of
the remainder of any such provision or the remaining provisions of this
Agreement.


 


6.05         Interpretation


 


The
article, section and paragraph headings included in this Agreement have been
used solely for convenience and shall not
be used in the interpretation of this Agreement. References to articles, sections and paragraphs shall refer to such
provisions in this Agreement unless otherwise stated.


 


6.06            Waiver


 


The
failure of either party at any time to require performance by the other party
of any provision of this Agreement shall not be deemed a continuing waiver of
that provision or a waiver of any other 


 


4

















 


provision
of this Agreement and shall in no way affect the full right to require such
performance from the other party at any time thereafter.


6.07            Severability


 


This
Agreement and the transaction contemplated herein constitute one transaction
and shall not be divisible in any manner. A breach of any portion of this
Agreement shall be deemed a breach of the whole Agreement.


 


6.08            Counterparts


 


If
photocopies or duplicates of the original of this Agreement are signed by both
parties, then each such originally signed document shall be deemed to be an
original of this Agreement.


 


6.09            Indemnification


 


CPM
and TICNY shall hold harmless and defend and indemnify the other party against
any expenses, damages, liability, action, cost or other claims, including
attorney fees arising out of the other party’s material breach of any duty or
obligation hereunder or any claims made against a party relating to, or arising
out of, the other party’s willful misconduct or gross negligence in performing,
or in failing to perform, services hereunder.


 


6.10            Arbitration


 


Any
dispute or difference between CPM and TICNY relating to the interpretation or
performance of this Agreement, including its formation or validity, or any transaction
under this Agreement, whether arising before or after termination, shall be
submitted to arbitration.


 


Upon
written request of any party, each party shall choose an arbitrator and the two
chosen shall select a third arbitrator. If either party refuses or neglects to
appoint an arbitrator within 30 days after receipt of the written request for
arbitration, the requesting party may appoint a second arbitrator. If the two
arbitrators fail to agree on the selection of a third arbitrator within 30 days
of their appointment, each of them shall nominate three individuals, of whom
the other shall decline two. The current President of the National Association
of Independent Insurers shall appoint the third arbitrator from the two
remaining nominees. All the arbitrators shall be chosen from those submitted by
the parties.


 


The
parties hereby waive all objections to the selection of the arbitrators,
provided they are selecting in conformity with this paragraph 6.10.


 


All
arbitrators shall be active or retired officers of insurance or reinsurance
companies, or Lloyd’s of London underwriters, and disinterested in the outcome
of the arbitration. Each party shall submit its case to the arbitrators within
30 days of the appointment of the third arbitrator.


 


The arbitrators shall have the power to determine all
procedural rules for the holding of the arbitration including but not limited
to inspection of documents, examination of witnesses and any other matter
relating to the conduct of the arbitration. The arbitrators shall interpret
this Agreement as an honorable engagement and not as merely a legal obligation;
they are relieved of all judicial formalities and may abstain from following
the strict rules of law. The arbitrators may award interest and costs. Each party
shall bear the expense of its own arbitrator and shall share equally with the
other 


 


5

















 


party the expense of the third arbitrator
and of the arbitration.


 


6.11                           Remittance reports are to be
furnished quarterly and settlement within 30 days of the receipt of such
reports.  The report shall provide in
reasonable detail the type and nature of expenses.


 


6.12                           This Agreement is entered into as
of the date hereof by the parties hereto, but implementation is subject in any
case to the satisfaction of New York Insurance Law § 1505,
including any conditions such a regulator may impose on the terms of this
Agreement subsequent to the date hereof.


 


IN WITNESS
WHEREOF, the parties have caused this Agreement to be executed
as of the day and year first above written.


 


 


	
   

  	
  Tower Insurance Company of New York

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Francis M. Colalucci

  
	
   

  	
   

  	
   

  
	
   

  	
  CastlePoint Management Corp.

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Joel S. Weiner

  



 


 


6