GENERAL RE - NEW ENGLAND ASSET MANAGEMENT, INC.
Investment Management Agreement
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This Agreement is made as of the 15th day of May, 2003, between
1. GENERAL RE - NEW ENGLAND ASSET MANAGEMENT, INC., a corporation organized
under the laws of the State of Delaware ( "Manager"); and
2. PENN-AMERICA GROUP, INC., a corporation organized under the laws of the State
of Pennsylvania, and its affiliates listed on Schedule E, (collectively the
"Client").
WHEREAS, Client desires to appoint Manager as the investment manager of
that portion of Client's assets constituting the Account (as defined below) for
fees agreed upon in Schedule A. III.;
NOW THEREFORE, in consideration of the mutual agreements herein
contained, it is agreed as follows:
Section 1. The Account
The cash, securities and other assets placed by Client in the account
to be managed under this Agreement (the "Account") are listed on Section I.A. of
Schedule A. Assets may be added to the Account at any time. The Account will
include these assets and any changes in them resulting from transactions
directed by Manager, withdrawals made by Client, or dividends, interest, stock
splits and other earnings, gains or losses on the assets.
Assets placed in the Account by the Client that are not to be managed
by Manager are separately identified on Schedule A ("Unmanaged Assets"). Manager
may include these assets in its periodic reports to Client, but will exclude
their value when calculating Manager's asset management fees.
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Section 2. Management of the Account
Manager will make all investment decisions for the Account, in
Manager's sole discretion and without first consulting or notifying Client, in
accordance with the investment restrictions and guidelines which are attached as
Schedule B (the "Investment Guidelines"). If Manager manages only a portion of
Client's portfolio, unless otherwise specified by Client in writing, Investment
Guidelines' restrictions relate specifically to the assets managed by Manager.
Client may change these Investment Guidelines at any time, but Manager will be
bound by the changes only after it has received them in writing. Other than by
the Investment Guidelines and the terms of this Agreement, the investments made
by Manager on behalf of the Client will not be restricted in any manner, except
by operation of law.
Manager will have full power and authority, on behalf of Client, to
instruct any brokers, dealers or banks to buy, sell, exchange, convert or
otherwise trade in all securities, futures or other investments for the Account.
Manager will not be responsible for giving Client investment advice or
taking any other action with respect to Unmanaged Assets.
Client appoints Manager as the true and lawful attorney of the Client
for and in the name, place and stead of Client, in Manager's unrestricted
discretion, to operate and conduct the brokerage accounts of the Client and to
do and perform all and every act and thing whatsoever requisite in furtherance
of the brokerage account and of this Agreement, including the execution of all
writings related to the purchase or sale, assignments, transfers and ownership
of any stocks, bonds, commodities, or other derivatives or securities. Manager
is hereby fully authorized to act and rely on the authority vested pursuant to
said power of attorney.
Effective as of January 1, 2003, and until further notice, Manager
will provide investment accounting services for Client, and will assist Client
in preparing Client's statutory Schedule D, if applicable. Client acknowledges
that Manager will provide accounting data according to Manager's standard
interpretation of accounting principles, unless expressly instructed otherwise
by Client's prior written notice.
Section 3. Transactions for the Account
Manager will arrange for securities transactions for the Account to be
executed through those brokers, dealers or banks that Manager believes will
provide best execution. In choosing a broker, dealer or bank, Manager will
consider the broker, dealer or bank's execution capability, reputation and
access to the markets for the securities being traded for the Account. Manager
will seek competitive commission rates, but not necessarily the lowest rates
available.
Manager may also send transactions for the Account to brokers who
charge higher commissions than other brokers, provided that Manager determines
in good faith that the amount of commissions Manager pays is reasonable in
relation to the value of the brokerage and
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research services provided, viewed in terms either of that particular
transaction or Manager's overall responsibilities with respect to all clients
whose accounts Manager manages on a discretionary basis.
Portfolio transactions for each client account generally are completed
independently. However, if Manager decides to purchase or sell the same
securities for Client and other clients at about the same time, Manager may
combine Client's order with those of other clients if Manager reasonably
believes that it will be able to negotiate better prices or lower commission
rates or transaction costs for the combined order than for Client's order alone.
Client will pay the average price and transaction costs obtained for such
combined orders. Manager generally will allocate securities purchased or sold as
part of a combined order to Client's Account and to accounts of other clients
according to the size of the order placed for each client.
If Manager cannot obtain execution for the total amount of the
securities in the combined orders, adjustments to the allocation will be made on
a random number generator methodology. However, Manager may increase or decrease
the amounts of securities allocated to each client if necessary to avoid having
odd or small numbers of shares held for the account of any client. Each client
that participates in a combined order will receive or pay the average share
price and/or transactions costs for all transactions executed as part of the
combined order.
If Client directs Manager to use particular brokers, dealers or banks
to execute transactions for the Account, Manager will do so, but Manager will
not seek better execution services or prices for Client from other brokers,
dealers or banks, and Client may pay higher prices or transaction costs as a
result. Manager also may not be able to seek better execution services for
Client by combining Client's orders with those of other clients.
Client may direct all transactions for the Account to a particular
broker, dealer or bank, by writing the name and address of that broker, dealer
or bank in the space provided on Schedule A.
Client has the right to withdraw cash at any time with prior written
notice to Manager.
Section 4. Transaction Confirmations
Manager will instruct the brokers, dealers or banks who execute
transactions for the Account to send Client all transaction confirmations,
unless Client chooses not to receive confirmations. If Client does not wish to
receive individual confirmations, this box should be checked. |X|
Client may elect to receive individual confirmations at any time by
giving Manager written notice.
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Section 5. Custody of Account Assets
The assets in the Account will be held for Client by the custodian
named on Schedule A (the "Custodian"). Manager will not have custody of any
Account assets. Client will pay all fees of the Custodian.
Client will authorize the Custodian to follow Manager's instructions
to make and accept payments for, and to deliver or to receive, securities, cash
or other investments purchased, sold, redeemed, exchanged, pledged or loaned for
the Account. Client also will instruct the Custodian to send Client and Manager
monthly statements showing the assets in and all transactions for the Account
during the month, including any payments of Manager's fees.
Client will provide Manager with a copy of its agreement with the
Custodian, and will give Manager reasonable advance notice of any change of
Custodian.
Section 6. Reports to Client
Both Parties agree that the Web Access Addendum attached as Schedule F
hereto shall govern the Manager's provisions and Client's use of the
electronically available tools and information.
Manager shall prepare 1) monthly appraisal reports and detailed
holdings reports, showing current book values, market values, unrealized gains
and losses, book yields and average life; and 2) quality and maturity
distribution reports.
Additionally, investment accounting reports generally include the following:
|_| Investment Income Earned
|_| Securities on Deposit - By State (provided Client provides Manager
with pertinent information)
|_| Summary of General Ledger Journal Entries
[ ] Trial Balance
[ ] Schedule D data, including NAIC Rating information
Client agrees to obtain its appraisals and investment accounting
reports via Manager's website, XXXXXX.xxx. However, both Parties agree that the
Client has the right to receive hard copies and that upon Client's written
request, Manager will send Client hard copies of the appraisals and/or
investment accounting reports.
The Account's performance will be sent monthly, quarterly or annually
upon Client request. Ad hoc reports and presentation materials are prepared as
directed by clients. Reports will be provided for each Client company portfolio,
combined insurance company portfolio, and all Client companies on a consolidated
basis.
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Section 7. Account Valuation
Manager will value the securities in the Account using independent
pricing sources. All securities in the Account that are listed and traded on a
national securities exchange or on NASDAQ shall be valued on the valuation date
at the closing price on the principal market where the securities are traded.
All other securities shall be valued in accordance with any reasonable valuation
method selected by Manager, consistent with industry accepted practices. While
Manager does its best to obtain representative market prices for all securities
in the Account, such prices do not always reflect the price actually received or
paid on the open market.
Section 8. Manager's Fees
For Manager's services, Client will pay a percentage of the value, as
determined under Section 7 of this Agreement, of all assets on a consolidated
portfolio basis in the Account (excluding Unmanaged Assets) as of the last
trading day of each calendar month. The fees are payable at the end of each
calendar quarter for services provided by Manager during the prior three months.
The percentage amount of the fees is shown on Schedule A.
In any partial quarter, the fees will be reduced pro rata based on the
number of days the Account was managed.
Client will be billed directly by Manager and will pay Manager's fees
within 30 days of receiving the xxxx.
If Manager invests in securities issued by money market funds or other
investment companies for the Account, these securities will be included in the
value of the Account when Manager's fees are calculated. These same assets will
be subject to additional investment management and other fees that are paid by
the investment company but ultimately borne by its shareholders. These
additional fees are described in each investment company's prospectus.
Section 9. Proxy Voting
Proxies for securities in the Account should be voted as follows:
[ ] Client directs Manager not to vote proxies for securities held for
the Account.
|X| Client directs Manager to vote all proxies for securities held
for Client's Account in accordance with --
|X| Manager's own discretion
or
[ ] Client's proxy voting guidelines
attached as Schedule C.
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Client will direct Custodian to send promptly all proxies and related
shareholder communications to Manager and to identify them as relating to
Client's Account. Client understands that Manager will not be able to vote
proxies if they are not received on a timely basis from the Custodian as
properly identified as relating to Client's Account. Manager shall not be
responsible for voting proxies of foreign securities, and will forward them to
Client for completion.
These proxy voting instructions may be changed at any time by notifying
Manager in writing.
Section 10. Legal Proceedings
Manager is not the attorney for, nor will it advise or act for Client
in any legal proceedings, including bankruptcies or class actions, involving
securities held in the Account or issuers of those securities.
Section 11. Risk
Subject to Section 12, the Manager cannot guarantee the future
performance of the Account, promise any specific level of performance or promise
that its investment decisions, strategies or overall management of the Account
will be successful. The investment decisions Manager will make for Client are
subject to various market, currency, economic, political and business risks, and
will not necessarily be profitable.
Section 12. Standard of Care; Limitation of Liability
Except as may otherwise be provided by law, Manager will not be liable
to Client for any loss (i) that Client may suffer as a result of Manager's good
faith decisions or actions where Manager exercises the degree of care, skill,
prudence and diligence that a prudent person acting in a like fiduciary capacity
would use; (ii) caused by following Client's instructions; or (iii) caused by
the Custodian, any broker, dealer or bank to which Manager directs transactions
for the Account or any other person.
Federal and state securities laws impose liabilities under certain
circumstances on persons who act in good faith, and this Agreement does not
waive or limit Client's rights under those laws, except to the extent Manager
negligently fails to comply with written instructions from Client relating to
Client's investments in compliance with applicable insurance investment or tax
laws.
Manager will not be responsible for Client's own compliance with the
insurance investment laws of Client's state of domicile or for Client's
compliance with applicable tax laws.
In managing the Account, Manager will not consider any other
securities, cash, or other investments or assets Client owns for diversification
or other purposes. Manager shall have no responsibility whatsoever for the
management of the Unmanaged Assets or any assets of Client other than the
Account and shall incur no liability for any loss or damage which may result
from the management of such other assets.
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Section 13. Client Directions
The names and specimen signatures of each individual who is authorized
to give directions to Manager on Client's behalf under this Agreement are set
forth on Schedule D. Directions received by Manager from Client must be signed
by at least one such person. If Manager receives directions from Client which
are not signed by a person designated on Schedule D, Manager shall not be
required to comply with such directions until it verifies that the directions
are properly authorized by Client.
Manager shall be fully protected in relying upon any direction signed
or given by a person that is designated on Schedule D hereto to give such
directions on Client's behalf. Manager also shall be fully protected when acting
upon an instrument, certificate, or paper that Manager reasonably believes to be
genuine and to be signed or presented by any such person or persons. Manager
shall be under no duty to make any investigation or inquiry as to any statement
contained in any writing and may accept the same as conclusive evidence of truth
and accuracy of statements contained therein.
Section 14. Confidentiality
Except as Client and Manager otherwise agree or as may be required by
law, all information concerning the Account and services provided under this
Agreement shall be kept confidential.
Section 15. Non-Exclusive Agreement
Manager provides investment advice to other clients and may give them
advice or take actions for them, for Manager's own accounts or for accounts of
persons related to or employed by Manager, that is different from advice
provided to or actions taken for Client.
Manager is not obligated to buy, sell or recommend for Client's
Account any security or other investment that Manager may buy, sell or recommend
for other clients or for the account of Manager or its related persons or
employees. Manager will treat all clients fairly and equitably.
If Manager obtains material, non-public information about a security
or its issuer that Manager may not lawfully use or disclose, Manager will have
no obligation to disclose the information to Client or to use it for Client's
benefit.
Section 16. Term of Agreement
Either Client or Manager may cancel this Agreement at any time upon 30
days written notice. Written notice is complete upon the date(s) of delivery of
same via fax transmittal or US mail postage xxxx. This Agreement will remain in
effect until cancelled. Termination of this Agreement will not affect (i) the
validity of any action that Manager or Client has previously taken; (ii) the
liabilities or obligations of Manager or Client for transactions started before
termination; or (iii) Client's obligation to pay Manager's fees through the date
of termination. Upon termination, Manager will have no obligation to recommend
or take any action with regard to the securities, cash or other assets in the
Account.
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Section 17. Agreement Not Assignable
This Agreement may not be assigned within the meaning of the
Investment Advisers Act of 1940 (the "Advisers Act") by Manager without Client's
consent.
Section 18. Governing Law
The internal law of Connecticut will govern this Agreement. However,
nothing in this Agreement will be construed contrary to any provision of the
Advisers Act or the rules thereunder.
Section 19. Miscellaneous
If any provision of this Agreement is or becomes inconsistent with any
applicable law or rule, the provision will be deemed rescinded or modified to
the extent necessary to comply with such law or rule. In all other respects,
this Agreement will continue in full force and effect. This Agreement contains
the entire understanding between Manager and Client and may not be changed
except in writing signed by both parties. Failure to insist on strict compliance
with this Agreement or with any of its terms or any continued conduct will not
be considered a waiver by either party under this Agreement.
This Agreement supersedes all prior agreements between the parties as
of the Effective Date.
Section 20. Notices
All notices and instructions with respect to the Account or other
matters covered by this Agreement may be sent by U.S. mail express delivery
services, facsimile, e-mail or other electronic means to Client and to Manager
at the addresses at the end of this agreement or to another address provided in
writing.
Section 21. Representations of Client
Client represents and warrants to Manager that (a) Client is the
beneficial owner of all assets in the Account and that there are no restrictions
on transfer or sale of any of those assets; (b) this Agreement has been duly
authorized, executed, and delivered by Client and is Client's valid and binding
obligation; (c) the names of the individuals who are authorized to act under
this Agreement on behalf of Client have been given to Manager in writing; (d) no
government authorizations, approvals, consents, or filings not already obtained
are required in connection with the execution, delivery, or performance of this
Agreement by Client; and (e) Client certifies that it is not an employee benefit
plan subject to the Employee Retirement Income Security Act of 1974, as amended
("ERISA") or a plan subject to Section 4975 of the Internal Revenue Code of
1986, as amended (the "Code"), nor a Person acting on behalf of any such plan.
Client agrees to notify Manager in writing within five (5) days after the
occurrence of an event making the above statement no longer accurate.
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Client agrees to indemnify, defend and hold harmless Manager and its
officers, directors, agents, employees, shareholders, legal representatives,
successors and assigns, from and against any and all claims, actions, suits,
damages, costs, liabilities, judgments, losses, charges, costs and expenses,
including attorneys' fees, of Manager arising from any failure by Client to
accurately disclose its status under this Section or by reason of any defect in
Client's authority to appoint Manager under this Agreement.
Section 22. Representations of Manager
Manager represents and warrants that this Agreement has been duly
authorized, executed and delivered by Manager and is its valid and binding
obligation.
Section 23. Form ADV
Client has received and reviewed a copy of Part II of Manager's Form
ADV and a copy of this Agreement.
Section 24. Independent Contractor
The relationship of Manager to Client is and shall remain during the
term of this Agreement that of independent contractor. Manager and Client are
not partners or joint venturers with each other under this Agreement, and
nothing in this Agreement shall be construed so as to make them partners or
joint venturers, or to impose any liability as such on either of them.
AGREED TO AND ACCEPTED BY:
GENERAL RE - NEW ENGLAND PENN-AMERICA GROUP, INC.
ASSET MANAGEMENT, INC.
______________________________________ ____________________________________
By: Xxxxxx X. Xxxxx By:
Its President Its:
Principal Address:
Pond View Corporate Center 000 Xxxxx Xxxx Xxxx
00 Xxxxxxxxx Xxxx Xxxx Xxxxxxx, XX 00000
Xxxxxxxxxx, Xxxxxxxxxxx 00000
Taxpayer Identification Number: 00-0000000
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PENN-AMERICA INSURANCE COMPANY
______________________________________
By:
Its:
Taxpayer Idendification Number: 00-0000000
PENN-STAR INSURANCE COMPANY
______________________________________
By:
Its:
Taxpayer Idendification Number: 23-2865367________
PENN-PATRIOT INSURANCE COMPANY
______________________________________
By:
Its:
Taxpayer Idendification Number: 81-0605083_______
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SCHEDULE A
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I. ACCOUNT ASSETS.
A. Managed Assets - Client has deposited the following securities,
cash and other assets with the Custodian identified below to be managed under
this Agreement: See attached list of holdings as of April 30, 2003.
B. Unmanaged Assets - Client also deposited with the Custodian the
following assets which are not to be managed under this Agreement: None
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II. CUSTODY OF ACCOUNT ASSETS. The assets to be managed under this Agreement and
any Unmanaged Assets will be held by:
PNC Bank, N.A. Custodial Account Number(s):
Refer to Schedule E
Institutional Custody Services
000 Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000
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II. FEES. Manager's fees for services provided under this Agreement shall be as
follows: Asset Management Fees (including Investment Accounting Fees):
For non-equity assets:
Annual fee of .20% (twenty hundredths of one percent) on the first $50 million
of market value of the non-equity invested assets under management in the
"Available for Sale" portfolios;
..15% (fifteen hundredths of one percent) on remaining market value of the
non-equity invested assets under management in the "Available for Sale"
portfolios; and
.05% (five hundredths of one percent) of market value of the non-equity
invested assets under management in the "Held to Maturity" portfolios.
For equity assets:
Annual fee of .05% (five hundredths of one percent) on the market value of the
equity assets under management.
Manager reserves the right to charge additional fees upon mutual written
agreement between Client and Manager, on at least sixty (60) days notice to
Client.
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SCHEDULE A Continued
Website Tools:
Manager may provide Client with access to their monthly reporting package and
miscellaneous analytical tools for Client's managed assets via Manager's
website.
Client may request to utilize the tools on unmanaged assets, subject to
Manager's approval and possible additional fees.
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IV. BROKERAGE DIRECTION. Client directs Manager to cause all transactions for
the Account to be executed through the following broker, dealer or
Bank:___NONE_____________________
Client has read, understands and accepts the limitations that this direction
will place on Manager's ability to seek best execution for the Account. This
direction may be changed by Client at any time by notifying Manager in writing.
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V. NAME OF CLIENT: PENN-AMERICA GROUP, INC. VI. DATE:
By: ____________________________________________ _________________________
---------------------------------------------------------------------------- -----------------------------------------
VII. NAME OF CLIENT: PENN-AMERICA INSURANCE COMPANY VIII. DATE:
By: ____________________________________________ _________________________
---------------------------------------------------------------------------- -----------------------------------------
IX. NAME OF CLIENT: PENN-STAR INSURANCE COMPANY X. DATE:
By: ____________________________________________ ___________________________
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---------------------------------------------------------------------------- -----------------------------------------
XI. NAME OF CLIENT: XII. DATE: PENN-PATRIOT INSURANCE COMPANY
By: ____________________________________________ ___________________________
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SCHEDULE B
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INVESTMENT GUIDELINES: The investment guidelines to be followed by Manager in
managing Client's Account are set forth below:
See attached Investment Plan of
Penn-America Group, Inc., Penn-America Insurance Company, Penn-Star Insurance
Company and Penn-Patriot Insurance Company dated May 14, 2003.
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NAME OF CLIENT: DATE:
PENN-AMERICA GROUP, INC.
By: ____________________________________ _____________________
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NAME OF CLIENT: DATE:
PENN-AMERICA INSURANCE COMPANY
By: ____________________________________ _____________________
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NAME OF CLIENT: DATE:
PENN-STAR INSURANCE COMPANY
By: ____________________________________ _____________________
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NAME OF CLIENT: DATE:
PENN-PATRIOT INSURANCE COMPANY
By: ____________________________________ _____________________
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SCHEDULE C
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PROXY VOTING GUIDELINES: The proxy voting guidelines to be followed by Manager
in voting securities held in the Account are set forth below:
(If none, check here |X|.)
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NAME OF CLIENT: DATE:
PENN-AMERICA GROUP, INC.
By: _____________________________________________ ____________________
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NAME OF CLIENT: DATE:
PENN-AMERICA INSURANCE COMPANY
By: _____________________________________________ ____________________
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NAME OF CLIENT: DATE:
PENN-STAR INSURANCE COMPANY
By: _____________________________________________ ____________________
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NAME OF CLIENT: DATE:
PENN-PATRIOT INSURANCE COMPANY
By: _____________________________________________ ____________________
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SCHEDULE D
SECRETARY'S CERTIFICATE
-----------------------
I, Xxxxxxx X. Xxxxxxxx, the Secretary of PENN-AMERICA GROUP, INC. (the
"Corporation"), a Corporation organized and existing under the laws of the State
of Pennsylvania hereby certify that each of the following officers of the
Corporation, acting singly, is authorized in the name and on behalf of the
Corporation, to give instructions to General Re-New England Asset Management,
Inc. ("Manager") with respect to any and all matters, including investment and
reinvestment of securities, pertaining to the Investment Management Agreement
between the Corporation and Manager, and to execute and deliver any and all
documents and to take any and all other action to carry out the purposes of said
Investment Management Agreement. I further certify that the specimen signature
set forth next to the names of such officers, is the true and genuine signature
of such persons.
Name of Officer Title Signature
Xxxxx Xxxxxxxx Chairman ___________________
Xxx X. Xxxxxxxx President & CEO ___________________
Xxxxxx X. Xxxxxx Xx. Vice President, CFO and ___________________
Treasurer
Xxxxx Xxxxx Vice President & Controller ___________________
This Certificate shall be in effect from the date hereof until written
notice is given on behalf of the Corporation to terminate or revise it.
IN WITNESS WHEREOF, I set my hand and seal of the Corporation.
_________________________________ ___________________
(Corporate Seal) Secretary Date
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SCHEDULE D
SECRETARY'S CERTIFICATE
------------------------
I, Xxxxxxx X. Xxxxxxxx, the Secretary of PENN-AMERICA INSURANCE COMPANY
(the "Corporation"), a Corporation organized and existing under the laws of the
State of Pennsylvania hereby certify that each of the following officers of the
Corporation, acting singly, is authorized in the name and on behalf of the
Corporation, to give instructions to General Re-New England Asset Management,
Inc. ("Manager") with respect to any and all matters, including investment and
reinvestment of securities, pertaining to the Investment Management Agreement
between the Corporation and Manager, and to execute and deliver any and all
documents and to take any and all other action to carry out the purposes of said
Investment Management Agreement. I further certify that the specimen signature
set forth next to the names of such officers, is the true and genuine signature
of such persons.
Name of Officer Title Signature
Xxxxx Xxxxxxxx Chairman _____________________
Xxx X. Xxxxxxxx President & CEO _____________________
Xxxxxx X. Xxxxxx Xx. Vice President, CFO and _____________________
Treasurer
Xxxxx Xxxxx Vice President & Controller _____________________
This Certificate shall be in effect from the date hereof until written notice is
given on behalf of the Corporation to terminate or revise it.
IN WITNESS WHEREOF, I set my hand and seal of the Corporation.
________________________________ ___________________
(Corporate Seal) Secretary Date
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SCHEDULE D
SECRETARY'S CERTIFICATE
---------------------------
I, Xxxxxxx X. Xxxxxxxx, the Secretary of PENN-STAR INSURANCE COMPANY (the
"Corporation"), a Corporation organized and existing under the laws of the State
of Pennsylvania hereby certify that each of the following officers of the
Corporation, acting singly, is authorized in the name and on behalf of the
Corporation, to give instructions to General Re-New England Asset Management,
Inc. ("Manager") with respect to any and all matters, including investment and
reinvestment of securities, pertaining to the Investment Management Agreement
between the Corporation and Manager, and to execute and deliver any and all
documents and to take any and all other action to carry out the purposes of said
Investment Management Agreement. I further certify that the specimen signature
set forth next to the names of such officers, is the true and genuine signature
of such persons.
Name of Officer Title Signature
Xxxxx Xxxxxxxx Chairman _____________________
Xxx X. Xxxxxxxx President & CEO _____________________
Xxxxxx X. Xxxxxx Xx. Vice President, CFO and _____________________
Treasurer
Xxxxx Xxxxx Vice President & Controller _____________________
This Certificate shall be in effect from the date hereof until written
notice is given on behalf of the Corporation to terminate or revise it.
IN WITNESS WHEREOF, I set my hand and seal of the Corporation.
___________________________________ ____________
(Corporate Seal) Secretary Date
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SCHEDULE D
SECRETARY'S CERTIFICATE
----------------------------
I, Xxxxxxx X. Xxxxxxxx, the Secretary of PENN-PATRIOT INSURANCE COMPANY
(the "Corporation"), a Corporation organized and existing under the laws of the
State of Virginia hereby certify that each of the following officers of the
Corporation, acting singly, is authorized in the name and on behalf of the
Corporation, to give instructions to General Re-New England Asset Management,
Inc. ("Manager") with respect to any and all matters, including investment and
reinvestment of securities, pertaining to the Investment Management Agreement
between the Corporation and Manager, and to execute and deliver any and all
documents and to take any and all other action to carry out the purposes of said
Investment Management Agreement. I further certify that the specimen signature
set forth next to the names of such officers, is the true and genuine signature
of such persons.
Name of Officer Title Signature
Xxxxx Xxxxxxxx Chairman ______________________
Xxx X. Xxxxxxxx President & CEO ______________________
Xxxxxx X. Xxxxxx Xx. Vice President, CFO and ______________________
Treasurer
Xxxxx Xxxxx Vice President & Controller ______________________
This Certificate shall be in effect from the date hereof until written
notice is given on behalf of the Corporation to terminate or revise it.
IN WITNESS WHEREOF, I set my hand and seal of the Corporation.
____________________________ ___________
(Corporate Seal) Secretary Date
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SCHEDULE E
----------------------- -------------- ----------------------------- ---------------- -----------------------------------
Name State of Principal Business Address Tax ID # Custodian Information
Incorporation
----------------------- -------------- ----------------------------- ---------------- -----------------------------------
Penn-America Group, PA 000 Xxxxx Xxxx Xxxx 00-0000000 PNC Bank, N.A.
Inc. Xxxxxxx, XX 00000
Investment Account #
32 32 300 3030060
Penn-America Group, Inc.
----------------------- -------------- ----------------------------- ---------------- -----------------------------------
Penn-America PA 000 Xxxxx Xxxx Xxxx 00-0000000 PNC Bank, N.A.
Insurance Company Xxxxxxx, XX 00000
Custodian Account #:
00-00-0000000000
Penn-America Insurance Company
00-00-0000000000
Penn-America Insurance Company -
State of PA Deposits
00-00-0000000000
Penn-America Insurance Company -
Equity Account
----------------------- -------------- ----------------------------- ---------------- -----------------------------------
Penn-Star Insurance PA 000 Xxxxx Xxxx Xxxx 00-0000000 PNC Bank, N.A.
Company Xxxxxxx, XX 00000
Custodian Account #:
00-00-0000000000
Penn-Star Insurance Company
00-00-0000000000
Penn-Star Insurance Company -
PSIC Security Fund
00-00-0000000000
Penn-Star Insurance Company -
Equity Account
----------------------- -------------- ----------------------------- ---------------- -----------------------------------
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----------------------- -------------- ----------------------------- ---------------- -----------------------------------
Penn-Patriot VA 000 Xxxxx Xxxx Xxxx 00-0000000 PNC Bank, N.A.
Insurance Company Xxxxxxx, XX 00000
Investment Account #
32 32 300 3030078
Penn-Patriot Insurance Company
Security Fund #
32 32 300 3030086
Penn-Patriot Insurance Company
----------------------- -------------- ----------------------------- ---------------- -----------------------------------
----------------------- -------------- ----------------------------- ---------------- -----------------------------------
NAME OF CLIENT: DATE:
PENN-AMERICA GROUP, INC.
By: _________________________________________ ________________________
---------------------------------------------------------------------- --------------------------------------------------
NAME OF CLIENT: DATE:
PENN-AMERICA INSURANCE COMPANY
By: _________________________________________ ________________________
---------------------------------------------------------------------- --------------------------------------------------
NAME OF CLIENT: DATE:
PENN-STAR INSURANCE COMPANY
By: _________________________________________ ________________________
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NAME OF CLIENT: DATE:
PENN-PATRIOT INSURANCE COMPANY
By: _________________________________________ ________________________
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SCHEDULE F
WEB ACCESS ADDENDUM
This WEB ACCESS ADDENDUM ("Addendum") hereby supplements the Investment
Management Agreement between Manager and Client.
WHEREAS, in addition to the services to be provided by Manager to Client
pursuant to the Investment Management Agreement, Client desires to have access
to and to use Manager's proprietary suite of information and services for access
to on-line investment reports concerning Client's Account and the on-line
analysis of investment portfolios and other services, which are more fully
described on Exhibit A hereto and on Schedule A to the Investment Management
Agreement; and
WHEREAS, Manager has agreed to provide such access to information and
services to Client on the terms and conditions set forth in this Addendum; and
NOW THEREFORE in consideration of the foregoing and of the mutual promises
contained in the Investment Management Agreement and this Addendum, Client and
Manager agree as follows:
ARTICLE I
Definitions
Section 1.1 - "Client Data" has the meaning set forth in Section 6.1.
Section 1.2 "Confidential Information" has the meaning set forth in Section 8.1.
Section 1.3 "Documentation" means the specifications, user manuals, and
conditions for use published and updated from time to time by Manager and
designated as "Documentation".
Section 1.4 -"Eligible User(s)" shall mean those employees of Client set forth
on Exhibit B-1 and/or Exhibit B-2 hereto, or any authorized amendment to Exhibit
B-1 and/or Exhibit B-2 as provided in Section 3.2(b) hereto.
Section 1.5 -"Force Majeure Event" has the meaning set forth in ARTICLE XII.
Section 1.6 -"Manager Data" means data and models made available in any form by
Manager in connection with the Services, including any data obtained by Manager
from a Vendor.
Section 1.7 -"Manager Proprietary System" means the Platform, Manager
Data, Services and any other proprietary materials of Manager as further
provided in ARTICLE V.
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Section 1.8 -"Indemnified Party" has the meaning set forth in Section 12.3.
Section 1.9 -"Indemnifying Party" has the meaning set forth in Section 12.3.
Section 1.10 "Losses" has the meaning set forth in Section 12.2.
Section 1.11 -"Platform" means a set of world wide web pages implemented by
Manager and through which Client's Eligible Users may access the Manager
Proprietary System over the Internet.
Section 1.12 -"Proprietary Rights" means any United States trademark, tradename,
copyright, or trade secret of a third party.
Section 1.13 "Service Data" means all data generated by an Internet server that
relates to the number of users having access through the Platform and similar
user-related usage data collected in connection with the Platform and Services.
Section 1.14 -"Services" has the meaning set forth in Section 3.1.
Section 1.15 -"Terms of Use" means the Legal Statement and any other terms and
conditions posted at xxxx://xxx.xxxxxx.xxx, as amended from time to time by
Manager governing the use of the Services by customers, including Client and
Eligible Users.
Section 1.16 -"Vendors" means certain third parties that have granted Manager
the right to use and distribute their data, software or other proprietary
materials.
ARTICLE II
Term
The term of this Addendum shall be coextensive with the term of the
Investment Management Agreement, unless terminated earlier pursuant to ARTICLE
XI (the "Term")
ARTICLE III
The Services
Section 3.1 Services. During the Term, Manager shall make accessible to
Client the Platform and the online information and services described in Exhibit
A (the "Services"). Manager will retain control over the form and content of the
Services, as well as the selection of Vendors and Data used in connection
therewith, and may alter all or any portion of the Services from time to time in
its sole discretion.
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Section 3.2 Grant of Rights; Eligible Users.
(a) Manager hereby grants to Client a non-exclusive and non-transferable
license during the Term to allow Eligible Users to access the Platform, and to
utilize the Services made available thereunder, solely for use in connection
with Client's internal business purposes in accordance with the Terms of Use and
Documentation.
(b) The initial Eligible Users for accessing Client's monthly reporting
package shall be those employees of the Client listed on Exhibit B-1 hereto. The
initial Eligible Users for accessing Manager's investment tools shall be those
employees of the Client listed on Exhibit B-2 hereto. Permission to add a
non-employee user may be granted on a case by case basis by Manager. In the
event that Client desires during the Term to add, subtract or change an Eligible
User, Client's Authorized Person or other individual whose name appears on the
Secretary's Certificate in Schedule D to the Investment Management Agreement
shall promptly provide to Manager, an email notice or an amended Exhibit B-1
and/or Exhibit B-2 with the name(s) of the discontinued Eligible User(s) and the
name(s) of the new or changed Eligible User(s), which amendment shall be subject
to the approval of Manager, which shall not be unreasonably withheld or delayed.
Client further agrees to cooperate in reviewing and confirming in
writing the list of Eligible Users from time to time, upon request of the
Manager.
Section 3.3 Limitations On Use
(a) Notwithstanding anything to the contrary contained in this Addendum,
Client shall not:
(i) provide access to the Platform to any person that is not
an Eligible User;
(ii) except for month-end investment reports, publish,
display, distribute or transfer in any form to any third
party who is not an employee of Client, unless prior
permission is granted by Manager, any Manager Data or
the results of any research, information or material
derived from the use of the Manager's Proprietary
System;
(iii) resell, make available or distribute any Manager Data,
Services or Documentation (or any part thereof) to any
third party whether by license or by any other means;
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(iv) except for month-end investment reports, incorporate
into, or warehouse on, any computer system of Client any
Manager Data, Services, Documentation or Manager's
Proprietary System;
(v) copy, adapt, reverse engineer, decompile, disassemble,
or modify, any portion of the Manager Data or Manager's
Proprietary System;
(vi) conceal, remove or alter any title, trademark,
copyright, proprietary or restricted rights notices
incorporated in the Manager's Proprietary System;
(vii) use the Manager's Proprietary System in breach of any
applicable laws, regulations or market conventions;
(viii) use Manager's name or service marks in connection with a
prospectus or the creation, issuance, offer or promotion
of a financial instrument, or in their advertising or
marketing materials;
(ix) use the Manager's Proprietary System for the benefit of
a third party, including, but not limited to, on a
time-share basis or acting as a service bureau or
application service provider;
(x) use, evaluate, or view any Services for the purpose of
designing, modifying, or otherwise creating any software
program, or any portion thereof, which performs
functions similar to or that compete with the functions
performed by any the Manager's Proprietary System;
(xi) or authorize any third party to do any of the foregoing.
Provided however, the Client shall be entitled to use,
and publish to third parties, Manager Data relating to
the Client's portfolio for purposes of regulatory
reporting, preparation of financial statements,
preparation of press releases and other public
announcements, prospectuses and similar reports and
releases. Provided further that the Manager will not
unreasonably withhold
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its consent to the inclusion of its name or service
xxxx as described in subsection 3(a)(vii) above.
(b) Each password Manager assigns Client will be kept confidential by
Client and by the Eligible Users. If Client learns or suspects that such
confidentiality or any provision of this Section 3.3 has in any way been
breached, Client will immediately notify Manager, which may assign new passwords
or restrict the use of all or any portion of the Platform or the Services or
take other appropriate action, in Manager's sole discretion.
(c) Client shall, and shall ensure that the Eligible Users, abide by and
are bound to all of the terms of the Legal Statement published and amended from
time to time on Manager's web site at [xxxx://xxx.xxxxxx.xxx]. Manager shall
provide Client with notice of any amendments to the Legal Statement on its web
site.
Section 3.4 Non-exclusive Services. Nothing contained herein shall be
construed as a limitation on Manager's ability to provide any Platform or the
Services (or any portion thereof) or any similar or identical services to any
third party.
Section 3.5 Service Maintenance, Upgrades, New Versions. During the Term,
Manager shall provide Client with such maintenance and service upgrades as
Manager may release from time to time to its other customers who license
equivalent services from Manager. Manager shall not be required to provide
upgrades or new versions. Manager shall have no obligation to provide new tools
hereunder, and reserves the right to charge additional fees for any new tools or
substantial new functionality provided. Nothing in this section shall be
construed to require Manager to provide any additional services, customized
Services or Enhancement Services.
ARTICLE IV
Client Responsibilities
Section 4.1 Client Cooperation. Client will cooperate with Manager and
provide any necessary assistance, equipment, access to Client's personnel and
information to allow Manager to perform Manager's obligations under this
Addendum, including without limitation, making available in a timely manner, as
reasonably requested by Manager, such management decisions, personnel (whether
management, technical or user), information, approvals and acceptances in order
that Manager `s provision of Services under this Addendum may be properly,
timely and efficiently accomplished.
Section 4.2 Client's Program Administrator. Client will designate a
qualified program administrator, to be named on each of Exhibit B-1 and Exhibit
B-2, who will be authorized to make binding decisions for Client regarding this
Addendum ("Client's Program Administrator"), and shall, in a timely manner, (i)
provide all Client information and data necessary for Manager's performance of
Services and assume responsibility for the accuracy of the same; (ii) arrange
for Manager's access to Client's staff, facilities, equipment and systems as
appropriate, (iii) render
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all decisions required by Manager in connection with this Addendum, (iv)
distribute usernames and passwords to Eligible Users, (v) provide notice to
Manager in accordance with Section 3.2(b) of all changes to the list of Eligible
Users, and (vi) take, or have taken, all other action required to be taken by
Client under this Addendum.
Section 4.3 Client Responsible for Employees and User Access. Client shall
be responsible for the actions of all Eligible Users and anyone who obtains
access to the Platform through or from Client or its Eligible Users, whether or
not authorized by Client.
Section 4.4 Consent to Electronic Signatures. Client agrees that whenever
an Eligible User clicks on an "I Agree", "I Consent" or other similarly worded
"button" or entry field with a mouse, keystroke or any other means communicable
via a computer device, the Eligible User's agreement or consent will be deemed
to have been made on behalf of Client, and shall be legally binding and
enforceable on Client.
ARTICLE V
Manager Proprietary System
All software and related documentation (including the Manager Proprietary
System) (i) owned by Manager prior to the Effective Date (ii) of which Manager
acquires ownership after the Effective Date, or (iii) which is developed by or
on behalf of Manager after the Effective Date for use in connection with the
Services, or (iv) which is licensed or leased from a third party by Manager and
which will be used in connection with the Services, shall be and shall remain
the exclusive property of Manager or its respective third party licensors.
Client shall have no rights or interests therein or in any third party software
of Manager. All Service Data shall be Manager's Confidential Information and
Manager shall own all Service Data.
ARTICLE VI
Data and Reports
Section 6.1 Ownership of Client Data. All data and information submitted
to Manager by Client in connection with the Services (the "Client Data") is and
shall remain the property of Client. Except as permitted by this Addendum or the
Investment Management Agreement or as reasonably necessary to provide the
Services, Manager shall not use the Client Data or, disclose or otherwise
provide the Client Data to third parties.
Section 6.2 Reports. Client may use the Platform to produce reports
presenting Client Data in accordance with Manager's standard reporting formats
as described in Exhibit A and in such other reporting formats as the parties may
agree (the "Reports"). Client may also be able to access its monthly reporting
package for its Account via the Platform. If Client prefers to receive these
monthly reporting packages in hard copy, the Client shall indicate by signing
the
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hard copy preference on the signature page of this Addendum. The Client may
revoke this preference at any time, and/or can receive a hard copy of any of its
monthly reports by written notification to Manager.
Section 6.3 Correction of Errors. Client is responsible for the accuracy
and completeness of the Client Data as well as any errors or inaccuracies in and
with respect to data obtained from Manager due to any inaccurate or incomplete
Client Data.
ARTICLE VII
Taxes
Client shall be responsible for all applicable taxes related to this
Addendum including all applicable sales, use, value added or similar taxes
arising out of or in connection with this Addendum. If Manager pays any such
taxes on behalf of Client, Client shall reimburse Manager for such payment.
Client shall not be responsible for taxes based upon Manager's income.
ARTICLE VIII
Confidentiality
Section 8.1 Confidential Information. "Confidential Information" means any
and all information or materials of a party relating to the technology, business
or affairs of the disclosing party revealed, disclosed or furnished to the
receiving party either orally, in writing or by inspection, that could
reasonably be understood by the receiving party to be proprietary or
confidential information or materials of the disclosing party. Confidential
Information might include, but is not limited to technical information,
financial information, business information, billing rates, research
information, human resources, personnel information, marketing/sales
information, trade secrets, and competitive sensitive information, and such
other information as has been or may be disclosed, revealed or furnished before
or after the date hereof by the disclosing party. All information of Manager
provided hereunder, all Manager Data, and all Client Data will be considered
Confidential Information regardless of whether (a) it is disclosed in tangible
form; or (b) is marked "Confidential", "Proprietary" or the like.
Notwithstanding the foregoing, Confidential Information does not include
information that (i) is or becomes generally available to the public other than
as a result of a disclosure or improper action by the receiving party or any of
its directors, officers, employees, affiliates, agents, subcontractors, or
consultants, (ii) was rightfully disclosed to the receiving party by a third
party without restriction, provided the receiving party complies with any
restrictions imposed by the third party, or (iii) was independently developed by
the receiving party without use of or access to any Confidential Information of
the disclosing party.
Section 8.2 Preservation of Confidential Information. The parties shall
preserve in confidence all Confidential Information, received from the other
party using the same degree of care as it uses to preserve and safeguard its own
Confidential Information, but in no event less than a reasonable degree of care.
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Section 8.3 Return of Confidential Information. Upon the expiration or
termination of this Addendum, Client shall return all Confidential Information
and all copies of Confidential Information to the Manager.
ARTICLE IX
Disclaimers and Limitations
Section 9.1 Special Admonitions Regarding Use of Financial Products. The
Services contain a number of analytical tools that should only be used by
sophisticated investment professionals. There is no assurance that the financial
instruments identified by the Services will perform in a manner that is
consistent with their historical characteristics or assure the profitability or
utility of forecasts or expected values. Neither Manager nor any Vendor shall be
deemed to be providing investment management, broker-dealer, supervision or
advisory services. Furthermore, Client understands and acknowledges that all
content and materials comprising the Services are to be used solely for
informational and research purposes, and that such content and materials are not
intended to provide specific investment, financial, tax or legal advice.
Information provided through the Services is not intended as advice regarding
the nature, potential value, or suitability of any particular security,
transaction, or investment strategy. References to any specific securities do
not constitute a solicitation or an offer to buy or sell securities.
Section 9.2 Electronic Access and Communications. Client acknowledges that
access to the Services and any electronic mail communications between Client and
Manager over the Internet are subject to possible interception by third parties
during transmission. Manager shall not be responsible for the security of such
communications or the safety and security of Client Data during transmission or
the prevention of access by unauthorized persons to Client Data transmitted over
the Internet. Manager shall not be responsible for any interruption in access to
the Services, or inability to access the Services, caused by the interruptions
in the availability of the Internet, or slowdowns thereto.
Section 9.3 Services Warranty Disclaimer. EXCEPT AS SET FORTH IN THIS
ADDENDUM, THE SERVICES HEREUNDER ARE PROVIDED ON AN "AS IS" BASIS, AND CLIENT'S
AND ANY ELIGIBLE USER'S USE THEREOF IS AT ITS OWN RISK. MANAGER DOES NOT MAKE,
AND HEREBY DISCLAIMS FOR ITSELF AND ON BEHALF OF ITS CORPORATE PARENTS AND
AFFILIATES AND VENDORS, ANY AND ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING,
BUT NOT LIMITED TO, WARRANTIES OF ACCURACY, ORIGINALITY, CONSISTENCY,
TIMELINESS, COMPLETENESS, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING,
USAGE OR TRADE PRACTICE. MANAGER DOES NOT WARRANT THAT THE SERVICES WILL PERFORM
AT A PARTICULAR SPEED, OR WILL BE UNINTERRUPTED, ERROR-FREE, OR COMPLETELY
SECURE OR FREE OF UNAUTHORIZED HIDDEN PROGRAMS, TROJAN HORSES, WORMS OR VIRUSES
OR THAT THE CALCULATIONS OR OTHER FUNCTIONS PERFORMED ON CLIENT'S DATA WILL BE
CORRECT OR MEET CLIENT'S NEEDS OR EXPECTATIONS. NEITHER MANAGER NOR MANAGER'S
VENDORS WILL BE RESPONSIBLE FOR LOSS OF PROPERTY OR INJURY RESULTING FROM ANY
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SERVICE OR FOR ANY FAILURE OR INTERRUPTION OF THE SERVICES RESULTING FROM ANY
CIRCUMSTANCES BEYOND MANAGER'S CONTROL. MANAGER'S ONLY RESPONSIBILITY FOR ANY
OTHER FAILURE OR INTERRUPTION OF THE SERVICES WILL BE TO RE-RUN CLIENT DATA OR
REPORTS CAUSED BY A MALFUNCTION OF THE SERVICES. IN NO EVENT WILL MANAGER OR
ANYONE ELSE WHO HAS BEEN INVOLVED IN THE PERFORMANCE OF ANY OF THE SERVICES BE
LIABLE TO CLIENT OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER SIMILAR DAMAGES INCLUDING, BUT NOT
LIMITED TO, ANY LOST PROFITS OR SAVINGS, OR COSTS INCURRED AS A RESULT OF LOSS
OF TIME, LOSS OF DATA, LOSS OF THE USE OF SOFTWARE, CLAIMS BY OTHERS,
INCONVENIENCE OR SIMILAR COST, OR FOR THE FAILURE OF CLIENT TO PERFORM CLIENT'S
RESPONSIBILITIES, EVEN IF MANAGER HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF
THE POSSIBILITY OF SUCH DAMAGES.
ARTICLE X
Termination
Section 10.1 Client may, in its sole option, upon written notice,
terminate this Addendum. Manager may in its sole option, upon written notice,
terminate this Addendum if Client:
(a) has materially breached any of its material obligations hereunder, and
such breach is not cured within thirty (30) days after written notice thereof by
Manager to Client; or
(b) becomes insolvent or institutes or has instituted against Client
voluntary or involuntary proceedings in bankruptcy or under any other insolvency
law, or makes or consents to an arrangement with creditors, or corporate
reorganization, receivership or dissolution, of Client; or
(c) ceases to be an Asset Management Client of Manager.
Section 10.2 Notwithstanding the provisions of Section 10.1(b) to the
contrary, Manager may terminate this Addendum upon ten day's notice if Client
breaches Section 3.3 or ARTICLE VIII of this Addendum.
Section 10.3 In the event of the termination of this Addendum, Client
shall cease, and Manager may disable, all access to the Services.
ARTICLE XI
Force Majeure
Neither Client nor Manager shall be liable for any failure or delay in the
performance of its obligations pursuant to this Addendum and such failure or
delay shall not be deemed a breach of this Addendum or grounds for termination
hereunder; provided that, such failure or delay could not have been prevented by
reasonable precautions and cannot reasonably be circumvented by the
non-performing party through the use of reasonably available and economical
alternate sources, work-around plans, or other means and if and to the extent
such failure or delay
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is caused, directly or indirectly, by fire, flood, earthquake, elements of
nature or acts of God, acts of war, terrorism, threatened terrorism, riots,
civil disorders, rebellions or revolutions, strikes, lockouts or labor
difficulties, court order, third party nonperformance, or any other similar
cause beyond the reasonable control of such party (each, a "Force Majeure
Event"). Upon the occurrence of a Force Majeure Event, the non-performing party
shall be excused from any further performance of those of its obligations
pursuant to this Addendum affected by the Force Majeure Event for as long as
such Force Majeure Event continues. The party whose performance is delayed by a
Force Majeure Event shall immediately notify the other party by telephone (to be
confirmed by written notice within three (3) days of the inception of the
failure or delay) of the occurrence of a Force Majeure Event and describe in
reasonable detail the nature of the Force Majeure Event.
ARTICLE XII
Indemnification
Section 12.1 Indemnification by Client. Subject to the conditions,
provisions and limitations of this Addendum, Client hereby agrees to indemnify,
defend and hold harmless Manager and its Affiliates from and against all Losses
asserted against, resulting to, imposed upon or incurred by Manager by reason of
or resulting from any of the following:
(a) Any use or misuse of the Services by Client or its
Eligible Users including, without limitation, any
material violation by Client or any Client of the
Manager Terms and Conditions or the Documentation; or
(b) Any allegation or claim that any Client Data or any
other intellectual property used by Client in connection
with the transactions contemplated in this Addendum
infringe or violate any Proprietary Rights of any third
party.
Section 12.2 Indemnification by Manager. Subject to the conditions,
provisions and limitations of this Addendum, Manager hereby agrees to indemnify,
defend and hold harmless Client from and against all actual and direct damages,
costs and expenses, including, without limitation, interest, penalties and
reasonable attorneys' fees and disbursements (collectively, "Losses"), asserted
against, resulting to, imposed upon or incurred by Client by reason of or
resulting from any allegation or claim that the intellectual property rights
owned by and proprietary to Manager that are used in the provision of the
Services infringe any Proprietary Rights; provided, however, that Manager shall
have no obligation or liability with respect to any infringement claim to the
extent such alleged infringement is based on (a) the use of the Services in
violation of this Addendum; (b) the combination, or use of the Services with any
service, product, equipment, program or data unless otherwise contemplated under
this Addendum; or (c) the alteration, modification or change of any portion of
the Services other than by Manager or its employees, agents or subcontractors or
with Manager's express prior written consent; and provided further that Manager
may, in its sole election and expense, but without any obligation to do so,
either (i) procure for Client and its Eligible Users the right to continue to
make use of the allegedly infringing portion of the Services, (ii) replace or
modify the portion of the Services at issue with substitute matter that is
non-infringing but which causes the portion of the Services at issue to be of
substantially equivalent functionality and performance to the portion of the
Services alleged to be infringing, or (iii) terminate this Addendum.
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Section 12.3 Indemnification Procedures. The obligations and liabilities
of Manager and Client hereunder with respect to their respective indemnities
pursuant to this ARTICLE XII, resulting from any claim, demand or other
assertion of liability by third parties (hereinafter collectively called
"Demands"), shall be subject to the following terms and conditions:
(a) Subject to the consent of the party to be indemnified pursuant to this
ARTICLE XII (the "Indemnified Party") (such consent not to be unreasonably
withheld, delayed or conditioned), the indemnifying party (the "Indemnifying
Party") will have the right to undertake, by counsel or representatives of its
own choosing, the defense, compromise or settlement to be undertaken on behalf
of and for the account and risk of the Indemnifying Party.
(b) In the event the Indemnifying Party shall elect not to undertake such
defense by its own representatives, the Indemnifying Party shall give prompt
written notice of its election to the Indemnified Party, and the Indemnified
Party will undertake the defense, compromise or settlement thereof by counsel
designated by it whom the Indemnifying Party determines in writing to be
satisfactory for such purposes. The consent of the Indemnifying Party to the
Indemnified Party's choice of counsel shall not be unreasonably withheld,
delayed or conditioned.
(c) No settlement or compromise of any such Demand may be made by a Party
hereto without the prior express written consent or approval of the other Party
hereto (such consent not to be unreasonably withheld, delayed or conditioned).
(d) In the event that any Demand shall arise out of a transaction or cover
any period or periods wherein Client and Manager each is or may be liable
hereunder for part of the liability or obligation arising therefrom, then such
Parties shall, each choosing its own counsel and bearing its own expense, defend
such Demand, and no settlement or compromise of such Demand may be made without
the joint consent or approval of Manager and Client, except where the respective
liabilities and obligations of Client and Manager are clearly allocable or
attributable on the basis of objective facts.
(e) The agreements to indemnify contained in this ARTICLE XII shall
survive termination or expiration of this Addendum for a period of three (3)
years after the effective date of such termination or expiration; provided,
however, that with respect to any Demand or other matter (including actual and
direct damages incurred other than as a result of a third party claim) for which
notice has been timely given within such three (3) year period, the
indemnification period shall be extended until the final resolution of such
Demand or other matter (including actual and direct damages incurred other than
as a result of a third party claim).
(f) A party having reason to believe that it may be entitled to
indemnification under this ARTICLE XII shall give reasonably prompt written
notice to the other party hereto from whom indemnification may be sought
specifying in reasonable detail the nature and basis of any Demand or other
matter (including actual and direct damages incurred other than as a result of a
third party claim) which may give rise to such indemnification but such notice
shall not be a condition of such indemnification. The failure of the Indemnified
Party to provide such notice shall not relieve the Indemnifying Party of its
obligations under this ARTICLE XII, unless the delay or failure to provide such
notice prejudices an Indemnifying Party in a manner that
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demonstrably results in additional actual and direct damages to such
Indemnifying Party, in which event such Indemnifying Party shall be relieved of
such obligations, but only to the extent such additional actual and direct
damages can be proved.
ARTICLE XIII
Limitations on Liability
Section 13.1 Direct Damages. In the event Manager shall be held liable to
Client, for any matter arising out of, under, or in connection with this
Addendum, whether based on an action or claim in contract, equity, negligence,
tort, or otherwise, the amount of direct damages recoverable against Manager for
all events, acts or omissions shall not exceed, in the aggregate,an amount equal
to the sum of all fees received by Manager pursuant to the Investment Management
Agreement for a period of three (3) months prior to the date on which the claim
or claims arose.
Section 13.2 No Indirect Damages. Neither Client nor Manager shall be
liable for any indirect, incidental, special, or consequential damages punitive,
exemplary, or other similar damages or amounts for loss of income, profits, or
savings arising out of or relating to this Addendum.
ARTICLE XIV
General Provisions
Section 14.1 Binding Effect. Client may not assign this Addendum without
the prior written consent of Manager which may be withheld in its sole
discretion, and any assignment in violation of this Addendum shall be null and
void. This Addendum shall be binding upon and inure to the benefit of the
parties hereto and their respective heirs, executors, administrators, legal
representatives, successors and permitted assigns.
Section 14.2 Severability. If any part of this Addendum, or the
application thereof to any person or circumstance, is for any reason held
invalid or unenforceable, it shall be deemed severable and the validity of the
remainder of this Addendum or the applications of such provision to other
persons or circumstances shall not be affected thereby.
Section 14.3 Export Regulations. Client acknowledges that the Services and
any direct products thereof may be subject to United States export laws,
statutes and regulations, and that Client will at all times comply with the
provisions of such laws, statutes and regulations including obtaining any
necessary or required licenses. Client shall not export or re-export or
otherwise transmit, directly or indirectly, the Services or any direct products
thereof into, or use the Services or any direct products thereof in, any country
prohibited or restricted under United States export laws, statutes or
regulations or any other applicable laws.
Section 14.4 Defined Terms. Any capitalized terms not defined herein shall
have the meaning set forth in the Investment Management Agreement.
Section 14.5. This Addendum supersedes all prior and contemporaneous
agreements (including any Beta Extranet Agreements), understandings, inducements
and conditions, express or implied, oral or written, or any nature whatsoever
with respect to the subject matter hereof.
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ARTICLE XV
Ongoing Testing
Periodically, GR-NEAM may ask Client to beta test website tools and/or
services that GR-NEAM is developing. Client understands and acknowledges that in
such instances the tools and or services would be in a beta format and the final
format and content of the tool and/or services may be substantially different
from the form presented to the Client. Additionally, Client acknowledges that as
a result of the beta condition of such website tools and/or services, some of
the functionality may be impaired or nonexistent and the client as a beta tester
agrees to inform GR-NEAM of any bugs, glitches or other issues affecting the
website.
IN WITNESS WHEREOF, the parties hereto have caused this Addendum to be
signed by their duly authorized representatives as of the day and year first
above written.
GENERAL RE-NEW ENGLAND ASSET MANAGEMENT, INC. PENN-AMERICA GROUP, INC.
By: _____________________________
By___________________________
Its: Its:
PENN-STAR INSURANCE COMPANY PENN-AMERICA INSURANCE COMPANY
By: _____________________________ By___________________________
Its: Its:
PENN-PATRIOT INSURANCE COMPANY
By: _____________________________
Its:
MONTHLY REPORTING PACKAGE:
Client hereby elects to receive the monthly reporting package for his Account
via email or hard copy, in lieu of access via the Platform.
By:_______________________
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Exhibits
Exhibit A. The Services
Exhibit B-1. List of Eligible Users and Program Administration -
Monthly Reporting Package
Exhibit B-2. List of Eligible Users and Program Administration -
Investment Tools
35
EXHIBIT A
Manager's CARATM system is an investment portfolio analytics system. It performs
a wide range of analytics calculations on a wide range of securities,
portfolios, and indices. The system runs on central site computers (currently in
Trumbull, CT). Eligible Users utilize a desktop workstation or PC and Internet
Service Provider to access the system. Client supplies the desktop equipment and
Internet connection. The system includes:
[ ] Use of Central Site software
[ ] Access to Central Site Database (Indicative, Pricing, Historical)
[ ] Downloading capability of calculated data
COMMENCEMENT DATE FOR SERVICES: _________________
Website Tools:
Market Monitors: A collection of "rich/cheap" tools used to analyze broad market
indices, yield curves, spreads and specific asset classes.
Risk Reporting: A full range of asset-level risk statistics for evaluation and
identification of the sources of portfolio risk.
Investment Accounting Reports: Ability to electronically receive and print
monthly reporting package directly from the website.
36
EXHIBIT B-1
List of Eligible Users and Program Administrator
FOR GR-NEAM'S WEBSITE-
ACCESS TO MONTHLY REPORTING PACKAGE
PENN-AMERICA GROUP, INC.
PENN-AMERICA INSURANCE COMPANY
PENN-STAR INSURANCE COMPANY
PENN-PATRIOT INSURANCE COMPANY
000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
------------------------------------- ----------------------------------- -----------------------------------
NAME PHONE NUMBER E-MAIL ADDRESS
------------------------------------- ----------------------------------- -----------------------------------
Program Administrator:
------------------------------------- ----------------------------------- -----------------------------------
Xxxxx Xxxxx (000) 000-0000 xxxxx@xxxx-xxxxxxx.xxx
------------------------------------- ----------------------------------- -----------------------------------
Xxxx Xxxxxx (000) 000-0000 xxxxxx@xxxx-xxxxxxx.xxx
------------------------------------- ----------------------------------- -----------------------------------
Xxxx Xxxxx (000) 000-0000 xxxxx@xxxx-xxxxxxx.xxx
------------------------------------- ----------------------------------- -----------------------------------
Xxxxxx Xxxxxx (000) 000-0000 xxxxxx@xxxx-xxxxxxx.xxx
------------------------------------- ----------------------------------- -----------------------------------
Xxx X. Xxxxxxxx (000) 000-0000 xxxxxxxx@xxxx-xxxxxxx.xxx
------------------------------------- ----------------------------------- -----------------------------------
------------------------------------- ----------------------------------- -----------------------------------
PENN-AMERICA GROUP, INC, PENN-PATRIOT INSURANCE COMPANY
By: _____________________________ By___________________________
Its: Its:
PENN-STAR INSURANCE COMPANY PENN-AMERICA INSURANCE COMPANY
By: _____________________________ By___________________________
Its: Its:
37
EXHIBIT B-2
List of Eligible Users and Program Administrator
FOR GR-NEAM'S WEBSITE-
ACCESS TO INVESTMENT TOOLS
PENN-AMERICA GROUP, INC.
PENN-AMERICA INSURANCE COMPANY
PENN-STAR INSURANCE COMPANY
PENN-PATRIOT INSURANCE COMPANY
000 Xxxxx Xxxx Xxxx
Xxxxxxx, XX 00000
---------------------------------------- -------------------------------- --------------------------------------------------
NAME PHONE NUMBER E-MAIL ADDRESS
---------------------------------------- -------------------------------- --------------------------------------------------
Program Administrator:
---------------------------------------- -------------------------------- --------------------------------------------------
Xxxxx Xxxxx (000) 000-0000 xxxxx@xxxx-xxxxxxx.xxx
---------------------------------------- -------------------------------- --------------------------------------------------
Xxxx Xxxxxx (000) 000-0000 xxxxxx@xxxx-xxxxxxx.xxx
---------------------------------------- -------------------------------- --------------------------------------------------
Xxxx Xxxxx (000) 000-0000 xxxxx@xxxx-xxxxxxx.xxx
---------------------------------------- -------------------------------- --------------------------------------------------
Xxxxxx Xxxxxx (000) 000-0000 xxxxxx@xxxx-xxxxxxx.xxx
---------------------------------------- -------------------------------- --------------------------------------------------
Xxx X. Xxxxxxxx (000) 000-0000 xxxxxxxx@xxxx-xxxxxxx.xxx
---------------------------------------- -------------------------------- --------------------------------------------------
---------------------------------------- -------------------------------- --------------------------------------------------
PENN-AMERICA GROUP, INC, PENN-PATRIOT INSURANCE COMPANY
By___________________________
By: _____________________________
Its: Its:
PENN-STAR INSURANCE COMPANY PENN-AMERICA INSURANCE COMPANY
By___________________________
By: _____________________________
Its: Its:
38
