EXHIBIT 10.18
INVESTMENT MANAGEMENT AGREEMENT
TO: XXXXXXX WATSA INVESTMENT COUNSEL LTD.
00 Xxxxxxxxxx Xxxxxx Xxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx
X0X 0X0
Fax No.: 416) 000-0000
DATE: August 13, 1998
1). We authorize you to manage on a continuous basis an investment account (the
"Account") on our behalf on the terms and conditions set out in this
agreement.
2). You shall manage the Account in accordance with the investment objectives
from time to time communicated in writing by us to you. Until mutually
agreed otherwise with the consent of the Insurance Department of the State
of New York (the "Department"), the investment guidelines shall be as set
out in the investment guidelines attached hereto.
3). Subject to Section 2 above, you shall manage the Account in our name and
you are hereby authorized to take such action for the Account as you, in
your sole discretion, may consider appropriate for the operation of the
Account including, without limitation, the power to buy, sell and exchange
and otherwise deal in all securities which may at any time form part of the
Account and to invest, in securities selected by you, all funds contained
in, paid to or derived from the operation of, the Account, except to the
extent that you are otherwise instructed in writing by us.
4). The securities and funds of the Account have been deposited with and shall
be held by The Bank of New York at its principal custodian office in New
York City (or with such other custodian in the State of New York as is
chosen by you from time to time and is acceptable to the Department) (the
"Custodian") pursuant to an agreement which we have entered into with the
Custodian. We have instructed the Custodian to promptly follow your
directions at all times and to provide you with all such information
concerning the Account as you may from time to time require in connection
with your management of the Account, including without limitation, copies
of relevant monthly statements.
5). Provided you have used reasonable care and diligence you shall not be
responsible for any damage, loss, cost or other expense sustained in the
operation of the Account or relating in any manner to the carrying out of
your duties under this agreement. We agree that you shall be entitled to
assume that any information communicated by us or the Custodian to you is
accurate and complete, and that in making investment decisions you shall be
entitled to rely on publicly available information or on information which
you believe to have been provided to you in good faith, in both cases
barring actual knowledge by you to the contrary.
6). You shall be entitled to such fees, payable quarterly in arrears, for your
management of the Account as you may specify from time to time. Attached
hereto is a copy of your current fee schedule and you agree to give us
thirty (30) days prior written notice of any change in such schedule, which
change shall require the approval of the Department. Such fees shall be the
exclusive fees and charges payable (excluding third party disbursements
reasonably incurred) for your management of the Account. As regards third
party services, you will charge us only the amount of your actual
disbursements paid to arm's length third parties for such services, and you
will select as agents, brokers or dealers executing orders or acting on the
purchase or sale of portfolio securities only agents, brokers or dealers
operating in the United States.
7). You shall deliver in writing to us, as soon as practicable after
implementation of an investment decision, your confirmation of such
implementation to enable us to ascertain that such implementation has been
effected pursuant to the guidelines and procedures of our Board of
Directors or a duly authorized committee
thereof. Otherwise, the nature and timing of your reporting to us on the
status of the Account shall be at least quarterly, within 45 days after the
end of each quarter.
8). We acknowledge receipt of a copy of policies that you have established to
ensure that investment opportunities are allocated fairly among your
discretionary investment accounts and we confirm that these policies, until
revised by you, will apply to the account.
9). Either party hereto may terminate this agreement without penalty by giving
the other party at least thirty (30) days advance written notice of its
desire to terminate the same. In the event that the day upon which this
agreement is so terminated is a day other than the first day of a calendar
quarter, the fees payable in accordance with paragraph 6 for such quarter
shall be pro-rated and shall be determined having regard to the market
value of the Account based upon the most recent financial report which has
been delivered to you by the Custodian.
10). All notices and communications to either party to this agreement shall be
in writing and shall be deemed to have been sufficiently given if signed by
or on behalf of the party giving the notice and either delivered personally
or sent by prepaid registered mail addressed to such party at the address
of such party indicated herein. Any such notice or communication shall be
deemed to have been received by any such party if delivered, on the date of
delivery, or if sent by prepaid registered mail on the fourth business day
following mailing thereof to the party to whom addressed. For such purpose,
no day during which there shall be a strike or other occurrence interfering
with normal mail service shall be considered a business day.
11). This agreement shall enure to the benefit of and shall be binding upon the
parties hereto and their respective successors. This agreement may not be
assigned by either party.
12). This agreement, when executed, shall replace all earlier agreements between
us in connection with your management of our managed investment account on
a discretionary basis, without prejudice to any action taken under any such
agreements. We acknowledge that we have read and understood this agreement
and that we have received a copy of the same. You and we each acknowledge
that the terms of this agreement are the exclusive and conclusive terms of
our mutual agreement with regard to the subject matter hereof.
13). Any dispute or difference arising with reference to the applicable
interpretation or effect of this Agreement, or any part thereof, shall be
referred to a Board of Arbitration (the "Board") of two (2) arbitrators and
an umpire.
The members of the Board shall be active or retired disinterested officers
of insurance or reinsurance companies.
One arbitrator shall be chosen by the party initiating the arbitration and
designated in the letter requesting arbitration. The other party shall
respond, within fifteen (15) days, advising of its arbitrator. The umpire
shall thereafter be chosen by the two (2) arbitrators. In the event either
party fails to designate its arbitrator as indicated above, the other party
is hereby authorized and empowered to name the second arbitrator, and the
party which failed to designate its arbitrator shall be deemed to have
waived its rights to designate an arbitrator and shall not be aggrieved
thereby. The two (2) arbitrators shall then have thirty (30) days within
which to choose an umpire. If they are unable to do so within thirty (30)
days following their appointment, each arbitrator shall nominate three
candidates within ten (10) days thereafter, two of whom the other shall
decline, and the decision shall be made by drawing lots. In the event of
the death, disability or incapacity of an arbitrator or the umpire, a
replacement shall be named pursuant to the process which resulted in the
selection of the arbitrator or umpire to be replaced.
Each party shall submit its case to the Board within one (1) month from the
date of the appointment of the umpire, but this period of time may be
extended by unanimous written consent of the Board.
The sittings of the Board shall take place in New York, New York. The Board
shall make its decision with regard to the custom and usage of the
insurance and reinsurance business. The Board is released from all judicial
formalities and may abstain from the strict rules of law. The written
decision of a majority of the Board shall be rendered within sixty (60)
days following the termination of the Board's hearings, unless the parties
consent to an extension. Such majority decision of the Board shall be final
and binding upon the
parties both as to law and fact, and may not be appealed to any court of
any jurisdiction. Judgment may be entered upon the final decision of the
Board in any court of proper jurisdiction.
Each party shall bear the fees and expenses of the arbitrator selected by
or on its behalf, and the parties shall bear the fees and expenses of the
umpire as determined by the party, as above provided, the expenses of the
arbitrators, the umpire and the arbitration shall be equally divided
between the two parties. The arbitrators may allocate any and all of the
costs and fees against the losing party upon a determinations that the
position of the losing party was, in whole or in part, groundless, specious
or otherwise without merit or asserted primarily for the purposes of
obfuscation or delay.
14). The provisions in Schedule A attached hereto are hereby incorporated into,
and form part of, this agreement.
15). This agreement may only be amended by written agreement signed by the
parties and approved by the Department.
XXXX & XXXXXXX INDEMNITY COMPANY
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NAME (Please Print)
000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, XX 00000
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ADDRESS
(000) 000-0000
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FAX NO.:
/s/ XXXXXXX XXXXXXXX BY: /s/ XXXXXXX XXXXXXXX
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WITNESS AUTHORIZED SIGNATURE
Xxxxxxx Xxxxxxxx
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NAME OF AUTHORIZED SIGNATORY
We accept the Account and the Foregoing.
DATED AT TORONTO, as of the 13th
DAY OF August, 1998.
XXXXXXX WATSA INVESTMENT COUNSEL LTD.
BY: /s/ F. XXXXX XXXXXXXXXX
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AUTHORIZED OFFICER
F. Xxxxx Xxxxxxxxxx
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NAME OF AUTHORIZED OFFICER
SCHEDULE A
(i) Notices
Unless otherwise specified herein, all notices, instructions, advices or
other matters covered or contemplated by this Agreement, shall be deemed
duly given when received in writing (including by fax or other similar form
of transmission) by you or us, as applicable, at the address or fax number
first above written or such other address or fax number as shall be
specified in a notice similarly given.
(ii) Governing Laws; Jurisdiction; Service of Process
This Agreement shall be governed and construed in accordance with the laws
of the State of
New York, our state of domicile. Each of the parties hereto
submits to the jurisdiction of the state and federal courts sitting in the
Borough of Manhattan, State of
New York, in any action or proceeding
arising out of or relating to this Agreement and all claims in respect of
any such action or proceeding may be heard or determined in any such court;
and service of process, notices and demands of such courts may be made upon
you by personal service to Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or by mailing copies of such process, notices and
demands by certified or registered mail to such address (such address being
automatically changed to the principal office from time to time of Shearman
& Sterling in
New York,
New York).
(iii) Insurance Department Approval
This Agreement may be subject to the non-disapproval or approval of the
Department, and such terms and conditions hereof as may be required by the
Department to be altered or amended shall be deemed acceptable to the
parties hereto, to the extent same shall not change the substance and
intent of this Agreement.
(iv) Inspection of Records
You and we and the duly authorized representatives of each of us shall, at
all reasonable times, each be permitted access to all relevant books and
records of the other pertaining to this Agreement. You and your duly
authorized representatives shall provide to the Department, within fifteen
(15) days of any request from the Department therefor, copies of all your
books and records as they pertain to us (or any portion thereof as may be
specifically requested).
INVESTMENT MANAGEMENT
FEE SCHEDULE
Investment management fees are comprised of two parts:
(A). The Base Fee Amount
and
(B). The Incentive Fee Amount
(A). The Base Fee Amount
1) As described in Part 6 on the Investment Management Agreement, fees
will be payable quarterly in arrears.
2) After the end of each calendar quarter year, Xxxxxxx Watsa Investment
Counsel Ltd. shall submit its investment management charges in
accordance with the schedule below.
3) The charges are on a calendar year basis. They will be calculated at
the end of each calendar quarter year based upon the average of the
market value of the funds at the close of business for the three (3)
preceding months.
MARKET VALUE CHARGE
4) ------------ ------
On Total Market Value....................................... .10%
(B). The Incentive Fee Amount
The incentive fee amount relates to the investment management of equity
securities only.
Annual Base Fee: a) If performance equals or exceeds benchmark, base fee
is unchanged from current fee.
b) If performance is less than benchmark, base fee is
90% of current fee.
Maximum Fee: 1.75% (including base).
Benchmark: S&P 500 + 200 basis points.
Incentive Fee: Continuous rate of 10 basis point for every 100 basis
points of outperforming the benchmark. (Incentive fee is
in addition to base fee).
Basis of Calculation: Payable annually based on calendar year results. Not
earned or paid unless results since inception (net of
all fees) exceed benchmark return.
Inception Date:
(C). Maximum Investment Management Fee
Notwithstanding the foregoing, the maximum investment management fee
payable in any calendar year will be .25% of the Total Market Value (as
calculated in (A) 4) above); provided that any investment management fee
not payable in any calendar year as a result of the restriction in the
preceding sentence will be carried over to a succeeding calendar year, but
the total investment management fee payable in any such calendar year,
including any carry-over payment, shall be limited as provided by the
preceding sentence.
XXXXXXX WATSA INVESTMENT COUNSEL LTD.
SIGNATURE: /s/ F. XXXXX XXXXXXXXXX
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NAME & TITLE: F. XXXXX XXXXXXXXXX/VICE PRESIDENT
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DATED AS OF: AUGUST 13, 1998
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ACCEPTED BY: XXXXXXX XXXXXXXX
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SIGNATURE: /s/ XXXXXXX XXXXXXXX
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TITLE: VICE PRESIDENT -- CFO
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DATED AS OF: 08/17/98
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INVESTMENT OBJECTIVES
1). Invest for the long term always providing sufficient liquidity for the
payment of claims and other policy obligations.
2). Ensure preservation of invested capital for policy holder protection.
3). Invest in accordance with insurance regulatory guidelines.
INVESTMENT GUIDELINES
1). Approach
All investments are to be made using the value approach by investing in
companies at prices below their underlying long term values to protect capital
from loss and earn income over time and provide operating income as needed.
With regard to equities, no attempt is made to forecast the economy or the
stock market. The manager will attempt to identify financially sound companies
with good potential profitability which are selling at large discounts to their
intrinsic value. Appropriate measures of low prices may consist of some or all
of the following characteristics: low price earnings ratios, high dividend
yields, significant discounts to book value, and free cash flow. Downside
protection is obtained by seeking a margin of safety in terms of a sound
financial position and a low price in relation to intrinsic value. Appropriate
measures of financial integrity which are regularly monitored, include
debt/equity ratios, financial leverage, asset turnover, profit margin, return on
equity, and interest coverage.
As a result of this bargain hunting approach, it is anticipated that
purchases will be made when economic and issue-specific conditions are less than
ideal and sentiment is uncertain or negative. Conversely, it is expected that
gains will be realized when issue-specific factors are positive and sentiment is
buoyant. The investment time horizon is one business cycle (approximately 3-5
years).
As regards bonds, the approach is similar. No attempt is made to forecast
the economy or interest rates. The manager will attempt to purchase attractively
priced bonds offering yields better than Treasury bonds with maturities of 10
years or less that are of sound quality i.e. whose obligations are expected to
be fully met as they come due. We do not regard rating services as being an
unimpeachable source for assessing credit quality any more than we would regard
a broker's recommendation on a stock as being necessarily correct. In any form
of investment research and evaluation, there is no substitute for the reasoned
judgment of the investment committee and its managers.
2). Liquidity
An adequate cash flow should be maintained to ensure that claims and
operating expenses are paid on a timely basis. An operating cash position is to
be maintained at appropriate levels and will be managed by the insurance
operating company in accordance with the approved list for investments as
determined from time to time by the Investment Committee. These securities will
be managed by the Insurance Company as part of the Treasury function and
currently are restricted primarily to Treasury and Agency securities of the U.S.
government.
3). Regulatory
Insurance regulations will be complied with, specifically Article 14 of the
State of New York Insurance Law.
4). Diversification
The portfolio is to be invested in a wide range of securities of different
issuers operating in different industries and jurisdictions in order to minimize
risk.
5). Prudent Person Rule
Prudent investment standards are considered in the overall context of an
investment portfolio and how a prudent person would invest another person's
money without undue risk of loss or impairment and with a reasonable expectation
of fair return.
STRATEGY
1). Maintain Adequate Liquidity
A review of portfolio liquidity is undertaken on a monthly basis. This
liquidity analysis determines how much of each portfolio can be converted to
cash in a given time period. Each company determines its liquidity requirements
and the liquidity of the portfolio must match the requirement.
2). Asset Allocation
The asset allocation will be determined by the Portfolio Manager and will
include short term investments that will generate appropriate cash flows and
long term investments in stocks, bonds, debentures and money market investments,
both domestic and foreign. The allocation will be in compliance with regulatory
guidelines and should meet policy liabilities.
3). Foreign Exchange Risk
Any foreign currency investments and exposures would normally be hedged via
the use of forward foreign exchange contracts and/or currency options or
preferably by a natural hedge with foreign pay liabilities of the Insurance
Company. Unhedged foreign investments will be limited to 10% of invested assets
at cost if judged appropriate. Unhedged exposure above this amount must be
approved by the Investment Committee.
4). Interest Rate Risk
Interest rate risk will be minimized primarily through investment in fixed
income securities with maturities less than ten years. While there are no
specific duration/maturity limits for convertible securities, these issues
are included in the total fixed income duration/term measure. Maximum fixed
income portfolio duration is limited to the equivalent of a ten year term
to maturity Treasury security.
INVESTMENT POLICY MIX
The Investment Committee has established the following exposure ranges for
various asset mix classes:
RANGE
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Equities.................................................... 0-25%
Fixed Income................................................ 0-100%
Cash........................................................ Residual
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Total....................................................... 100%
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Within the Foxed Income portfolio, the Taxable/Tax Exempt mix will be
determined relative to the consolidated tax position of the Insurance Company
and the relative investment attractiveness of available tax exempt securities.
The Investment Committee will control the total asset mix and will give
performance objectives to the Investment Manager regarding the assets managed.
RETURN EXPECTATIONS
Total asset mix policy is expected on an annual basis to result in returns
better than the Consumer Price Index plus 3% over a ten year period before the
disbursement of investment management fees. However, in any one year the annual
return may be significantly above or below this expectation.
INVESTMENT OBJECTIVES OF THE FUND MANAGER
The Manager, subject to regulatory and company imposed constraints
mentioned elsewhere, expects to provide additional returns to those returns that
would be earned by the alternative of passively managing a surrogate market
index.
Performance of the Fund Manager is expected to result in the following
returns:
All Equities.............. S&P 500 + 1% point
Fixed Income:
Taxable Bonds........... Xxxxxxx Xxxxx Intermediate Treasury Index + 0.25%
Tax-Advantaged Bonds.... Xxxxxx Brothers 3 & 5 Year State GO Indexes
Measured over four (4) year moving periods.
AGGREGATE INVESTMENT LIMITS, PERMITTED INVESTMENT
CATEGORIES AND INDIVIDUAL INVESTMENT LIMITS
PERMITTED INVESTMENT CATEGORIES WITHIN ASSET CLASSES
Cash: Cash on hand, demand deposits, treasury bills, short-term
notes and bankers' acceptances, term deposits and guaranteed
investment certificates.
Equity: Common shares, rights and warrants.
Fixed Income: Bonds, debentures, preferred shares, including those
convertible into common shares.
All of the above may be either U.S. domestic, Canadian, or other foreign
investments.
Convertible preferred securities will be classified as equities if the
preferred dividend is not being paid.
Private placement issues in public companies are allowed.
INVESTMENT CONSTRAINTS
All investments will be made in accordance with all applicable legislation.
INDIVIDUAL INVESTMENT LIMITS
Any combination of investments in any one corporate issuer will be limited
to a maximum of 5% of admitted assets. Exposure beyond 5% will require approval
of the Investment Committee.
QUALITY CONSTRAINTS
The Investment Manager may invest in the permitted investment categories
listed in the Investment Objectives and Policy Statement subject to the
following quality constraints:
Investments in money market instruments (less than or equal to 1 year term)
will be limited to the approved list. This list will include money market
instruments of the U.S. Treasury, Agencies of the U.S. government, and as a
minimum commercial paper rated A1 or higher by Xxxxx'x and rated P1 or
higher by Standard & Poor's.
Investments in bonds and preferreds will be limited by quality tier as
follows:
LIMITS AS A % OF THE FIXED INCOME PORTFOLIO
BOND RATING % OF TOTAL MIN./MAX.
----------- ---------- ---------
A or better................................................. 65% Min.
BBB......................................................... 35% Max.
BB, B....................................................... 10% Max.
C, D........................................................ 0%
The above limits are subject to adjustment to conform with the regulatory
requirements of Article 14 of the New York State Insurance Law.
Limits are determined on a cost basis and include convertible securities.
Downgrades will be taken into account when making new investments but will
not necessarily result in the sale of existing positions.
Securities un-rated by the public rating agencies must be rated by the
Investment Manager and included as part of the categories above for the
purposes of determining overall exposure by quality tier.
Any exceptions to the above must be approved by the Investment Committee.
PROHIBITED INVESTMENTS
No loans will be made in any of the investment portfolios.
No Real Estate will be purchased without Investment Committee approval.
No Mortgages on real estate will be purchased without Investment Committee
approval. The exceptions to this are obligations issued by an agency of the U.S.
Government, or by U.S. domiciled corporations that are issued as part of a
registered public offering that also meet the minimum quality tier requirements.
FOREIGN INVESTMENT LIMIT
Foreign Securities may be purchased in compliance with established
regulatory guidelines and with the policy on foreign exchange risk outlined
herein.
Foreign investments must be in the same kinds of securities and investments
as the Insurance Company is normally allowed.
OTHER
Derivative securities may be purchased up to 2% of the portfolios cost at
book. Use of derivative investments is infrequent and for hedging purposes.
Derivative investments will be justified to the Investment Committee prior to
use.
