EXHIBIT 10.4
RIC (LANDMARK) ADMINISTRATIVE SERVICES AGREEMENT
BY AND BETWEEN
ROYAL INDEMNITY COMPANY,
AND
LANDMARK AMERICAN INSURANCE COMPANY
DATED: September 2, 2003
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
Section 1.1 Definitions....................................................................... 2
ARTICLE II APPOINTMENT; PERFORMANCE STANDARDS
Section 2.1 Appointment....................................................................... 4
Section 2.2 Standards......................................................................... 5
ARTICLE III SERVICES TO BE PROVIDED BY ADMINISTRATOR
Section 3.1 Administrative Services........................................................... 5
Section 3.2 Administration.................................................................... 6
ARTICLE IV REGULATORY COMPLIANCE AND CUSTOMER ISSUES
Section 4.1 Changes in Applicable Laws........................................................ 6
Section 4.2 Inquiries, Notification and Customer Complaints................................... 6
Section 4.3 Management of Customer Relationships.............................................. 6
ARTICLE V AUTHORITY
Section 5.1 Authority......................................................................... 6
Section 5.2 Administration of Excluded Liabilities............................................ 7
ARTICLE VI OTHER SERVICES AND FEES FOR SERVICES
Section 6.1 Additional Services............................................................... 8
Section 6.2 Fee for Services.................................................................. 8
Section 6.3 Services Provided by Insurer...................................................... 8
ARTICLE VII REPORTS, ELECTRONIC PREMIUM AND LOSS DATA
Section 7.1 Reports, Electronic Premium and Loss Data......................................... 8
Section 7.2 Payment of Amounts................................................................ 9
ARTICLE VIII BOOKS AND RECORDS; BANK ACCOUNTS
Section 8.1 Access to Books and Records....................................................... 9
Section 8.2 Bank Accounts..................................................................... 10
ARTICLE IX INABILITY TO PERFORM SERVICES; ERRORS
Section 9.1 Inability to Perform Services..................................................... 11
Section 9.2 Errors............................................................................ 11
ARTICLE X LEGAL ACTIONS
Section 10.1 Regulatory Proceedings............................................................ 11
Section 10.2 Compliance of Reinsured Contracts................................................. 12
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Section 10.3 Defense of Litigation............................................................. 12
Section 10.4 Communications Regarding Certain Matters.......................................... 13
ARTICLE XI DURATION; TERMINATION
Section 11.1 Duration.......................................................................... 13
Section 11.2 Termination....................................................................... 13
ARTICLE XII CONFIDENTIALITY
Section 12.1 Use of Confidential Information................................................... 14
Section 12.2 Confidentiality of Individuals.................................................... 14
Section 12.3 Disclosure........................................................................ 14
ARTICLE XIII INDEMNIFICATION
Section 13.1 Indemnification by Insurer..................................................... 15
Section 13.2 Indemnification by Administrator............................................... 15
Section 13.3 Indemnification Procedure...................................................... 15
Section 13.4 Relationship to RIC (Landmark) Quota Share Reinsurance Agreement............... 15
ARTICLE XIV ARBITRATION
Section 14.1 Arbitration.................................................................... 16
Section 14.2 Notice of Arbitration.......................................................... 16
Section 14.3 Arbitration Panel.............................................................. 16
Section 14.4 Submission of Briefs........................................................... 16
Section 14.5 Arbitration Board's Decision................................................... 17
Section 14.6 Jurisdiction................................................................... 17
Section 14.7 Expenses....................................................................... 17
Section 14.8 Production of Documents and Witnesses.......................................... 17
Section 14.9 Relief Available............................................................... 18
Section 14.10 Consolidation.................................................................. 18
ARTICLE XV MISCELLANEOUS
Section 15.1 Cooperation.................................................................... 18
Section 15.2 Amendment, Modification and Waiver............................................. 18
Section 15.3 Relationship................................................................... 18
Section 15.4 Entire Agreement............................................................... 19
Section 15.5 Governing Law.................................................................. 19
Section 15.6 Severability................................................................... 19
Section 15.7 Counterparts................................................................... 19
Section 15.8 Consent to Jurisdiction........................................................ 19
Section 15.9 Third Party Beneficiaries...................................................... 20
Section 15.10 Binding; Assignment............................................................ 20
Section 15.11 Specific Performance........................................................... 20
Section 15.12 Descriptive Headings........................................................... 20
Section 15.13 Expenses....................................................................... 20
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Section 15.14 Use of Name.................................................................... 20
Section 15.15 Survival....................................................................... 21
Section 15.16 Subcontracting................................................................. 21
Section 15.17 Notices........................................................................ 21
Section 15.18 Interpretation................................................................. 22
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EXHIBITS
Exhibit A Form of Report Required Pursuant to Section 7.1
Exhibit B RSA Reinsurance Security Guidelines
SCHEDULES
Schedule 5.1(b) Third Parties to Whom Administrator May Assign its Authority
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RIC (LANDMARK) ADMINISTRATIVE SERVICES AGREEMENT
This RIC (LANDMARK) ADMINISTRATIVE SERVICES AGREEMENT, dated
as of _____, 2003 (hereinafter referred to as the "RIC (Landmark) Administrative
Services Agreement") is made and entered into by and between ROYAL INDEMNITY
COMPANY, a property and casualty insurance company organized under the laws of
the State of Delaware ("Administrator"), and LANDMARK AMERICAN INSURANCE
COMPANY, a property and casualty insurance company organized under the laws of
the State of Oklahoma ("Insurer").
WHEREAS, prior to the Closing Date (defined below), Insurer
has underwritten certain insurance and reinsurance contracts and administered
the claims, reinsurance recoverables and premium activity relating to such
contracts;
WHEREAS, pursuant to a Stock Purchase Agreement, dated as of
June 6, 2003 (the "Landmark Stock Purchase Agreement"), by and between Guaranty
National Insurance Company, a property and casualty insurance company organized
under the laws of the State of Colorado ("Guaranty National") and Alleghany
Insurance Holdings LLC, a Delaware limited liability company ("AIHL"), the
parties agreed, among other things, that Guaranty National will sell, and AIHL
will buy, all of the issued and outstanding shares of common stock of Insurer;
WHEREAS, pursuant to an Assignment and Assumption Agreement,
dated as of July 1, 2003, by and between AIHL and Underwriters Reinsurance
Company, a property and casualty insurance company organized under the laws of
the state of New Hampshire, AIHL assigned, and Underwriters Reinsurance Company
assumed, all of the rights and obligations of AIHL under the Landmark Stock
Purchase Agreement;
WHEREAS, effective as of August 18, 2003, the name of
Underwriters Reinsurance Company was changed to RSUI Indemnity Company;
WHEREAS, Administrator is party to the Landmark Stock Purchase
Agreement for the limited purpose of entering into a quota share reinsurance
agreement (the "RIC (Landmark) Quota Share Reinsurance Agreement"), pursuant to
which Insurer has agreed to cede to Administrator, and Administrator has agreed
to assume and reinsure all the liabilities of the Company existing as of the
Closing Date, net of collectible reinsurance and exclusive of the Company
Insurance Contracts (as defined in the Landmark Stock Purchase Agreement); and
WHEREAS, in connection therewith, Insurer wishes to appoint
Administrator to provide all administrative services and other services with
respect to the Reinsured Contracts and Reinsured Liabilities (as such terms are
defined in the RIC (Landmark) Quota Share Reinsurance Agreement), and
Administrator desires to provide such administrative services in consideration
of Insurer entering into the RIC (Landmark) Quota Share Reinsurance Agreement.
NOW, THEREFORE, for and in consideration of the premises and
the promises and the mutual agreements hereinafter set forth and set forth in
the Landmark
Stock Purchase Agreement and RIC (Landmark) Quota Share Reinsurance Agreement,
the parties hereto, intending to be legally bound, covenant and agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used but not
defined herein and which are defined in the RIC (Landmark) Quota Share
Reinsurance Agreement shall have the meanings ascribed to them in the RIC
(Landmark) Quota Share Reinsurance Agreement. As used in this RIC (Landmark)
Administrative Services Agreement, the following terms shall have the meanings
set forth herein:
"AAA" shall have the meaning set forth in Section 14.3 hereof.
"Acquisition Agreement" shall mean the Acquisition Agreement
by and between Royal and AIHL, dated as of June 6, 2003.
"Administrative Services" shall have the meaning set forth in
Section 3.1 hereof.
"Administrator" shall have the meaning set forth in the
recitals.
"Affiliate" of any Person means another Person that as from
time to time, directly or indirectly controls, is controlled by, or is under
common control with, such first Person, where "control" means the possession,
directly or indirectly, of the power to direct or cause the direction of the
management policies of a Person, whether through the ownership of voting
securities, by contract, as trustee or executor, or otherwise. For the purposes
of this RIC (Landmark) Administrative Services Agreement, the term "Affiliated"
has a meaning correlative to the foregoing.
"AIHL" shall have the meaning set forth in the recitals.
"Applicable Law" means any applicable order, law, statute,
regulation, rule, ordinance, writ, injunction, directive, judgment, decree,
principal of common law, constitution or treaty enacted, promulgated, issued,
enforced or entered by any Governmental Entity, including any amendments thereto
that may be adopted from time to time.
"Bank Accounts" shall have the meaning set forth in Section
8.2 hereof.
"Board" shall have the meaning set forth in Section 14.1
hereof.
"Books and Records" shall mean the originals or copies of all
customer lists, policy information, insurance contract forms, administrative and
pricing manuals, medical procedure code lists, claim records, sales records,
underwriting records, financial records, compliance records (including, without
limitation, the Insurer's insurance licenses and evidence of the Insurer's
surplus lines authorizations and qualifications),
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complaint files, data files prepared for or filed with regulators of the
Business and premium tax records, each in the possession or control of the
Insurer, Administrator or any of its Affiliates, and used in the operation of
the Business, whether or not stored in hardcopy form or on magnetic or optical
media (to the extent not subject to licensing restrictions), but excluding (i)
prior to the Closing, any such lists, information and records that are
prohibited from being disclosed or transferred by Applicable Law or regulatory
requirements and (ii) any such information that is part of any consolidated,
unitary, combined or similar Tax Return except to the extent directly related to
the Insurer.
"Business Day" means a Monday, Tuesday, Wednesday, Thursday or
Friday on which banking institutions in the State of New York are not authorized
or obligated by Applicable Law to close.
"Closing" shall mean the closing of the transactions
contemplated under the Landmark Stock Purchase Agreement.
"Closing Date" shall mean the date of the Closing.
"Company Insurance Contracts" shall have the meaning set forth
in the Landmark Stock Purchase Agreement.
"Damages" shall have the meaning set forth in the RIC
(Landmark) Quota Share Reinsurance Agreement.
"Excluded Liabilities" shall have the meaning set forth in the
RIC (Landmark) Quota Share Reinsurance Agreement.
"Governmental Entities" shall have the meaning set forth in
the RIC (Landmark) Quota Share Reinsurance Agreement.
"Guaranty National" shall have the meaning set forth in the
recitals.
"Landmark Stock Purchase Agreement" shall have the meaning set
forth in the recitals.
"Material Regulatory Proceeding" shall have the meaning set
forth in Section 10.1(c) hereof.
"90-Day Treasury Rate" shall have the meaning set forth in the
RIC (Landmark) Quota Share Reinsurance Agreement.
"Person" shall have the meaning set forth in the RIC
(Landmark) Quota Share Reinsurance Agreement.
"Policyholder" shall have the meaning set forth in the RIC
(Landmark) Quota Share Reinsurance Agreement.
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"Producers" shall mean any reinsurance intermediary, agent or
other producer of Insurer.
"Reinsured Contracts" shall have the meaning set forth in the
RIC (Landmark) Quota Share Reinsurance Agreement.
"Reinsured Liabilities" shall have the meaning set forth in
the RIC (Landmark) Quota Share Reinsurance Agreement.
"Representative" shall mean, with respect to a particular
Person, any director, officer, employee, agent, consultant, advisor, or other
representative of such Person, including legal counsel accounts and financial
advisors.
"RIC (Landmark) Quota Share Reinsurance Agreement" shall have
the meaning set forth in the recitals.
"Royal" shall mean Royal Group, Inc.
"Subsidiary" of any Person means another Person, an amount of
the voting securities, other voting ownership or voting partnership interests of
which is sufficient to elect at least a majority of its Board of Directors or
other governing body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned directly or indirectly by such first
Person.
"Transition Services Agreement" shall mean the Transition
Services Agreement entered into by and between Royal and AIHL on the Closing
Date pursuant to the Acquisition Agreement.
ARTICLE II
APPOINTMENT; PERFORMANCE STANDARDS
Section 2.1 Appointment.
(a) Insurer hereby appoints Administrator as its agent
and attorney-in-fact to provide the Administrative Services and other services
specified herein with respect to the Reinsured Contracts and the Reinsured
Liabilities on the terms, and subject to the limitations and conditions, set
forth in this RIC (Landmark) Administrative Services Agreement, and
Administrator hereby accepts such appointment and agrees to perform such
Administrative Services on behalf of and in the name of Insurer in accordance
with the terms and conditions of this RIC (Landmark) Administrative Services
Agreement.
(b) Administrator represents that it has or will obtain
and maintain any and all licenses required under Applicable Law to perform its
obligations under this RIC (Landmark) Administrative Services Agreement.
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(c) The intention of the parties hereto is that
Administrator shall perform all Administrative Services in such a manner as to
minimize the involvement of Insurer and its Affiliates, subject to the
requirements of any Applicable Law that require that specific actions be taken
by Insurer without the Administrator acting on its behalf.
Section 2.2 Standards.
(a) Administrator acknowledges that the performance of
the Administrative Services in an accurate and timely manner is of paramount
importance to Insurer. Subject to the provisions of this RIC (Landmark)
Administrative Services Agreement, Administrator agrees that in providing the
Administrative Services: (i) it shall conduct itself in accordance with all
administrative and claims handling standards utilized by leading property and
casualty insurers, which standards are at least equal to the standards pursuant
to which Administrator administered the Reinsured Contracts and the related
liabilities immediately prior to the Closing Date; (ii) it shall comply in all
material respects with all Applicable Laws relating to the Reinsured Contracts
and the Reinsured Liabilities and to the conduct of the activities contemplated
hereby; and (iii) it shall comply with the terms of the Reinsured Contracts.
(b) For the duration of this RIC (Landmark)
Administrative Services Agreement, Administrator hereby covenants that it will
employ and retain staff with the experience, skill and expertise to perform the
Administrative Services the Administrator is obligated to perform hereunder in a
manner consistent with the standards set forth in Section 2.2(a) hereof. In
connection therewith, Administrator shall have suitable business continuity
plans in place.
(c) Administrator shall in all respects administer the
Reinsured Contracts in a manner which would not adversely affect the reputation
of the Insurer.
(d) Notwithstanding anything in this RIC (Landmark)
Administrative Services Agreement to the contrary, Insurer shall retain the
authority to make all final decisions with respect to the administration of the
Reinsured Contracts, and shall consult with the Administrator of its intention
to do so.
ARTICLE III
SERVICES TO BE PROVIDED BY ADMINISTRATOR
Section 3.1 Administrative Services. While this RIC (Landmark)
Administrative Services Agreement is in effect, Administrator shall provide the
Administrative Services, including, but not limited to, all services currently
provided and all services currently performed by Administrator, Guaranty
National and/or Insurer or required to be provided by Applicable Law or the
Reinsured Contracts, and generally, any and all other services incidental to the
administration of the Reinsured Contracts and the Reinsured Liabilities (the
"Administrative Services").
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Section 3.2 Administration. Administrator shall continue, for
the duration of this RIC (Landmark) Administrative Services Agreement, to
administer the claims, reinsurance recoverables and premium activity relating to
the Reinsured Contracts on Administrator's existing systems and to prepare and
deliver reports relating to such administration to Insurer in substantially the
same manner as Administrator has been doing prior to the Closing Date.
ARTICLE IV
REGULATORY COMPLIANCE AND CUSTOMER ISSUES
Section 4.1 Changes in Applicable Laws. From time to time,
Administrator and Insurer shall share with each other information they have in
their possession relating to material changes in Applicable Laws in order to
ensure the Reinsured Contracts are administered in compliance with Applicable
Laws.
Section 4.2 Inquiries, Notification and Customer Complaints.
Administrator shall promptly notify Insurer regarding any inquiries or
notifications received from Governmental Entities and any inquiries and
complaints received from Producers or other customers with respect to the
Reinsured Contracts and the Reinsured Liabilities.
Section 4.3 Management of Customer Relationships. Each of
Administrator and Insurer shall appoint one senior executive whose
responsibility shall be to work with the other party in overseeing that the
standards and the provisions set forth in this Article IV and elsewhere are
complied with, in particular with respect to issues involving management of
customer relationships.
Section 4.4 Security Guidelines. All third party reinsurance
with respect to the Reinsured Contracts placed by Administrator in the name of
Insurer must comply with the RSA Reinsurance Security Guidelines attached hereto
as EXHIBIT B.
ARTICLE V
AUTHORITY
Section 5.1 Authority
(a) Insurer agrees that, on and after the Closing Date,
Administrator shall have the authority to issue the Reinsured Contracts in
Insurer's name for the benefit of the Reinsurer; provided, however, except as
otherwise required by Applicable Laws, Administrator's authority to issue the
Reinsured Contracts or take other actions authorized under this Section 5.1 in
Insurer's name shall terminate on February 1, 2004.
(b) Administrator acknowledges that its authority to
issue the Reinsured Contracts in Insurer's name pursuant to this Section 5.1 is
subject to the following additional limitations: (i) Administrator shall not
assign or delegate its
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authority to a third party other than those listed on SCHEDULE 5.1(b); (ii)
Administrator shall not issue any Reinsured Contracts outside the United States,
(iii) in issuing the Reinsured Contracts, Administrator shall observe similar
policy wordings and policy limits found in the Company Insurance Contracts; and
(iv) the aggregate gross written premiums attributable to the business written
hereunder and ceded under the RIC (Landmark) Quota Share Reinsurance Agreement
shall not exceed ten million dollars ($10,000,000).
Section 5.2 Administration of Excluded Liabilities.
(a) Insurer shall retain liability and administrative
responsibility for all Excluded Liabilities (including to the extent arising out
of or relating to Company Insurance Contracts). Insurer shall reimburse
Administrator for all reasonable out-of-pocket costs and expenses incurred by
Administrator in connection with the administration of Excluded Liabilities.
(b) With respect to any claims (including claims for
reinsurance recoveries) presented in which both Reinsured Liabilities and
Excluded Liabilities are alleged and where the predominant claim activities and
costs relate to Excluded Liabilities, Administrator shall notify Insurer and
Insurer will either assume the administration of such claim activities or fund
Administrator's out-of-pocket costs and expenses of such claim activities to the
extent they relate to Excluded Liabilities.
(c) In the event claims are presented in connection with
Reinsured Liabilities, and it is in question whether a Reinsured Liability or an
Excluded Liability is at issue, Administrator shall defend or prosecute such
claim and Insurer and Administrator shall resolve the responsibility for any
amount of loss, allocated loss expense or other costs and expenses pursuant to
the provisions of the RIC (Landmark) Quota Share Reinsurance Agreement. In the
event that, during the course of a claim, it becomes clear that the claim (or a
portion thereof) is an Excluded Liability, Administrator shall notify Insurer
and Insurer will either assume the administration of such claim (or the Excluded
Liability portion thereof) or fund the out-of-pocket costs and expenses of such
claim activities to the extent they relate to Excluded Liabilities.
(d) In the event that a claim (including claims for
reinsurance recoveries) presented in connection with a Reinsured Contract is not
a Reinsured Liability or is an Excluded Liability, Insurer shall have the sole
responsibility to defend or prosecute such claim.
(e) With respect to those matters described in (b), (c)
and (d) of this Section 5.1, the party administering the claim shall be provided
the full cooperation of the other party and shall be responsible for reimbursing
such other party for any out-of-pocket costs and expenses incurred by such party
in providing such cooperation.
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ARTICLE VI
OTHER SERVICES AND FEES FOR SERVICES
Section 6.1 Additional Services. If Administrator or Insurer,
as the case may be, requires from the other party services to be provided with
respect to the Reinsured Contracts which are not otherwise contemplated under
this RIC (Landmark) Administrative Services Agreement, the parties shall
negotiate in good faith to reach a mutually acceptable arrangement with respect
to the provision of such services. Each party shall reasonably compensate such
other party for such additional services provided by such other party.
Section 6.2 Fee for Services. Except as otherwise specifically
provided for by this RIC (Landmark) Administrative Services Agreement,
Administrator shall provide Administrative Services pursuant to this RIC
(Landmark) Administrative Services Agreement at its own expense, subject to the
other terms in this RIC (Landmark) Administrative Services Agreement, in
consideration for the promises made by Insurer under this RIC (Landmark)
Administrative Services Agreement, the Landmark Stock Purchase Agreement and the
RIC (Landmark) Quota Share Reinsurance Agreement to which it is a party, and
shall not receive any separate fee from Insurer for the provision of
Administrative Services.
Section 6.3 Services Provided by Insurer. Insurer agrees to
promptly notify Administrator with respect to any inquiries or notifications
received from Governmental Entities or from Producers, including, without
limitation, inquiries regarding consumer inquiries and complaints, market
conduct exams, zone exams, summons and complaints, subpoenas and Internal
Revenue Service inquiries relating to the Reinsured Contracts and the Reinsured
Liabilities.
ARTICLE VII
REPORTS, ELECTRONIC PREMIUM AND LOSS DATA
Section 7.1 Reports, Electronic Premium and Loss Data.
(a) Administrator shall collect, administer and provide
to Insurer all necessary quality information and data for Insurer to continue to
maintain financial and statistical data with respect to the Reinsured Contracts
and Reinsured Liabilities in order to permit Insurer to timely (to the extent
the relevant underlying information is available to Administrator's systems)
make all required regulatory, statistical, and financial reports and filings.
All information and data provided by Administrator to Insurer pursuant to this
Article VII will be provided as reasonably requested by Insurer (to the extent
the relevant underlying information is available to Administrator's systems).
Without limiting the generality of the foregoing, Administrator shall prepare
all reports needed by Insurer or the Seller in connection with the Reinsured
Liabilities and the Reinsured Contracts to enable Insurer or the Seller to
comply with Applicable Law and any and all reporting or filing requirements. Any
monthly, quarterly or year-end reports required to
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be prepared by Administrator shall be prepared on a timely basis (to the extent
the relevant underlying information is available to Administrator's systems) in
order for Insurer or the Seller to comply with any filing deadlines required.
(b) During the term of this RIC (Landmark) Administrative
Services Agreement, Administrator shall transmit to Insurer, within thirty (30)
days following the end of each calendar month, a summary report in form and
substance as set forth in EXHIBIT A hereto, of all activity relating to the
Reinsured Contracts and Reinsured Liabilities for the period reported (to the
extent the relevant underlying information is available to Administrator's
systems). The report shall include the information set forth on Exhibit A to the
RIC (Landmark) Quota Share Reinsurance Agreement; provided, however, that
notwithstanding anything herein to the contrary, in no event shall such reports
be deemed to indicate that the Administrator has any obligation to pay to the
Insurer any amount in respect of Excluded Liabilities which may be reflected on
such reports.
Section 7.2 Payment of Amounts. Except to the extent that this
RIC (Landmark) Administrative Services Agreement or the RIC (Landmark) Quota
Share Reinsurance Agreement provides otherwise and regardless of whether any
amounts due to either party are being disputed pursuant to the provisions of
Article XV hereof, all amounts due either party under this RIC (Landmark)
Administrative Services Agreement shall be paid on or before the thirtieth
(30th) Business Days of delivery of such report, and any amount not paid on or
before the thirtieth (30th) Business Day period shall bear simple interest at
the 90-Day Treasury Rate from the twentieth Business Day until the date of
payment.
ARTICLE VIII
BOOKS AND RECORDS; BANK ACCOUNTS
Section 8.1 Access to Books and Records.
(a) To the extent permitted by Applicable Law, from the
date hereof until the date on which Administrator has fulfilled all of its
obligations to perform services for Insurer under this RIC (Landmark)
Administrative Services Agreement, and at any time (without limitation) as may
be required in the reasonable judgment of Insurer for Insurer to comply with any
Applicable Law or to perform its obligations or responsibilities under this RIC
(Landmark) Administrative Services Agreement, Insurer and its Representatives
may from time to time reasonably request, and Administrator shall provide, at
reasonable times during normal business hours, full and open access to examine
the Books and Records and of its independent auditor pertaining to the Reinsured
Contracts and the Reinsured Liabilities, and to the services to be provided
under this RIC (Landmark) Administrative Services Agreement and to discuss such
Reinsured Contracts, Reinsured Liabilities and services with the employees and
agents of Administrator who are familiar therewith, so that Insurer shall have
sufficient opportunity to make whatever investigation it shall deem necessary
and desirable in connection with the transactions contemplated by this RIC
(Landmark) Administrative Services
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Agreement. Such access and opportunity shall be exercised by Insurer and such
Representatives in a manner that shall not interfere unreasonably with the
operations of Administrator. Such access shall include the right of Insurer to
make and retain copies of any Books and Records relating to the Reinsured
Contracts and Reinsured Liabilities to the extent that Insurer reasonably
determines that it requires copies of any such Books and Records in order to
carry out the transactions contemplated by this RIC (Landmark) Administrative
Services Agreement or for any legitimate business purposes related to this RIC
(Landmark) Administrative Services Agreement.
(b) During the term of this RIC (Landmark) Administrative
Services Agreement, Administrator shall retain all Books and Records relating to
the Reinsured Contracts and Reinsured Liabilities transferred by Insurer or
produced by Administrator on behalf of Insurer to the extent such Books and
Records are required by Applicable Law to be retained by either Administrator or
Insurer, but in any case, for at least ten (10) years after termination of the
Reinsured Contracts applicable to such Books and Records.
(c) Each party hereto shall pay all storage and related
expenses associated with any Books and Records relating to the Reinsured
Contracts and Reinsured Liabilities, and copies thereof, that it retains in its
possession.
(d) Administrator shall provide security for the Books
and Records that are in its possession. Administrator shall comply with all
Applicable Laws, including, without limitation, privacy laws applicable to the
Insurer, in connection with all such data and Books and Records. Administrator
shall cooperate with any regulatory authority having jurisdiction over Insurer
in providing access to such Books and Records.
(e) Following expiration of this RIC (Landmark)
Administrative Services Agreement other than by reason of Insurer's termination
pursuant to Section 11.2 hereof, all Books and Records pertaining to the
Reinsured Contracts and Reinsured Liabilities shall be the sole property of
Administrator, unless otherwise provided by Applicable Law or herein and
provided that Insurer shall have full access to such Books and Records to the
extent required to respond to regulatory, statistical, tax or similar inquiries
or investigations and for Insurer to defend any claim against it.
Section 8.2 Bank Accounts.
(a) During the term of this RIC (Landmark) Administrative
Services Agreement, Administrator may establish and maintain accounts with
banking institutions to provide the Administrative Services (the "Bank
Accounts"). The Administrator shall have the exclusive authority over the Bank
Accounts including, within reason, the exclusive authority to (i) open the Bank
Accounts in the name of Insurer, (ii) designate the authorized signatories on
the Bank Accounts, (iii) issue drafts on and make deposits in the Bank Accounts
in the name of Insurer, and (iv) make withdrawals from the Bank Accounts. The
Administrator agrees to limit transactions using these Bank Accounts to only
those transactions that pertain to the RIC (Landmark) Quota Share Reinsurance
Agreement. Insurer shall do all things reasonably necessary to enable
Administrator to
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open and maintain the Bank Accounts including, without limitation, executing and
delivering such depository resolutions and other documents as may be requested
from time to time by the banking institutions. Insurer agrees that without
Administrator's prior written consent or as may be required by Applicable Law or
regulatory authorization it shall not make any changes to the authorized
signatories on the Bank Accounts or attempt to withdraw any funds therefrom.
Administrator will have the sole obligation to the Bank Accounts and shall own
all funds deposited in the Bank Accounts. Administrator shall be responsible for
all abandoned property laws requirements and obligations, and shall pay all fees
and charges made in connection with such accounts.
(b) Notwithstanding any provision of this RIC (Landmark)
Administrative Services Agreement to the contrary, the Administrator shall have
no authority to borrow money or incur any indebtedness on behalf of the Insurer
or permit any Bank Accounts to become overdrawn.
ARTICLE IX
INABILITY TO PERFORM SERVICES; ERRORS
Section 9.1 Inability to Perform Services. In the event that
Administrator shall be unable to perform any Administrative Service for a period
that could reasonably be expected to exceed ninety (90) days or such shorter
period as may be required by Applicable Law or the Reinsured Contracts,
Administrator and Insurer shall mutually agree on alternative means of providing
such services. If alternative means for the provision of the Administrative
Services cannot be agreed upon by the parties, Insurer may procure such
Administrative Services for the Reinsured Contracts and Reinsured Liabilities by
commercially reasonable means. Administrator shall be solely responsible for all
costs incurred in restoring Administrative Services which have not been provided
due to its failure to adhere to its obligations under this RIC (Landmark)
Administrative Services Agreement.
Section 9.2 Errors. Administrator shall, at its own expense,
correct any errors in the Administrative Services caused by it within a
reasonable time (not to exceed thirty (30) days) after receiving written notice
thereof from Insurer or otherwise.
ARTICLE X
LEGAL ACTIONS
Section 10.1 Regulatory Proceedings.
(a) If Insurer or Administrator receive notice of, or
otherwise become aware of, any regulatory investigation or proceeding relating
to the Reinsured Contracts or the Reinsured Liabilities, Insurer or
Administrator, as applicable, shall promptly notify the other party thereof.
Subject to the provisions of Section 10.1(c), Administrator shall have the
authority to respond to and resolve all regulatory matters and regulatory
investigations and proceedings relating to the Reinsured Contracts and Reinsured
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Liabilities to the extent the resolution is limited to the Reinsured Contracts
or Reinsured Liabilities.
(b) Subject to the provisions of Section 10.1(c),
Administrator will promptly respond on behalf of Insurer to inquiries received
from Governmental Entities and Administrator shall conduct whatever
investigation is reasonable under the circumstances in order to respond to such
inquiries. Administrator shall promptly notify in writing Insurer of any inquiry
to which Administrator determines that it will not provide a response in order
to permit the Insurer to timely respond.
(c) Notwithstanding anything contained herein to the
contrary, the parties shall mutually agree to an appropriate response, including
which party should respond, to any regulatory investigation or proceeding
relating to the Reinsured Contracts or the Reinsured Liabilities which could
reasonably be expected to have meaningful adverse effect on any business of the
Insurer other than the Reinsured Contracts, or which could meaningfully and
adversely interfere with the business, assets, liabilities, obligations,
reputation, license, permit, financial condition or results of operations of
Insurer or any of its Affiliates (a "Material Regulatory Proceeding"), and the
parties hereby agree to cooperate and coordinate in resolving any and all
Material Regulatory Proceedings. The parties recognize that, as the issuing
company, Insurer retains ultimate responsibility for resolution of the matters
contemplated by this Section 10.1. Notwithstanding anything to the contrary
contained in this RIC (Landmark) Administrative Services Agreement, neither
Insurer nor Administrator shall have the authority to institute, prosecute,
defend or maintain any legal or regulatory proceedings on behalf of the other
party without the prior written consent of such other party except to the extent
expressly provided for by this RIC (Landmark) Administrative Services Agreement.
Section 10.2 Compliance of Reinsured Contracts. Insurer and
Administrator agree to cooperate with each other and the various Governmental
Entities in maintaining the Reinsured Contracts in compliance in all material
respects with Applicable Laws. If Administrator determines that any of the
Reinsured Contracts are materially not in compliance with such Applicable Laws,
Administrator shall so notify in writing Insurer and take whatever action is
reasonably necessary to bring such Reinsured Contracts into compliance with
Applicable Law. Administrator shall prepare any necessary amendments to such
Reinsured Contracts and shall prepare any necessary filings for the purpose of
obtaining governmental authority approval for such amendments.
Section 10.3 Defense of Litigation. Administrator shall
defend, at its own expense and in the name of Insurer when necessary, any action
brought in connection with any Reinsured Contract or relating to any Reinsured
Liability; provided, however, Insurer shall have the right, at its own expense,
to engage its own separate legal representation and to fully participate in the
defense of any litigation with respect to the Reinsured Contracts or the
Reinsured Liabilities in which Insurer is named as a party without waiving any
rights to indemnification it may have under Article XIII hereof; provided,
however, that Administrator shall have the exclusive authority to control such
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litigation, and to settle any litigation if (i) Administrator pays all
settlement amounts with respect thereto, (ii) the settlement does not involve
any restriction or condition which could reasonably be expected to have an
adverse effect on Insurer's business other than the Reinsured Contracts, and
(iii) Administrator obtains a complete release for Insurer, its officers,
directors, Representatives and Affiliates with respect to such litigation.
Section 10.4 Communications Regarding Certain Matters. Insurer
shall promptly (i) notify Administrator in writing if it receives any
information or correspondence with respect to any suit, claim, action or
proceeding relating to the Reinsured Contracts or the Reinsured Liabilities, or
any written communication threatening any of the foregoing and (ii) forward to
Administrator any documents it receives relating to any of the matters referred
to in clause (i) of this Section 10.4.
ARTICLE XI
DURATION; TERMINATION
Section 11.1 Duration. This RIC (Landmark) Administrative
Services Agreement shall become effective as of the Closing Date and continue
until a date which is the earlier of (A) a date which is the later of (i) the
date on which none of the Reinsured Contracts remains in force; (ii) the date on
which Insurer has no further Reinsured Liabilities; or (iii) the date on which
no further Administrative Services are required, or (B) the date on which this
RIC (Landmark) Administrative Services Agreement is terminated according to the
provisions of Section 11.2 hereof.
Section 11.2 Termination.
(a) This RIC (Landmark) Administrative Services Agreement
may be terminated at any time upon the mutual written consent of the parties
hereto, which writing shall state the effective date and relevant terms of
termination.
(b) This RIC (Landmark) Administrative Services Agreement
is subject to immediate termination at the option of Insurer, upon written
notice to Administrator upon the issuance of an order of liquidation or
rehabilitation against the Administrator; provided, however, that in the event
an order of liquidation or rehabilitation is issued against the Administrator,
before Insurer may terminate this RIC (Landmark) Administrative Services
Agreement, Administrator shall have the opportunity to contest or appeal such
order for a period of sixty (60) days from the date of issuance.
(c) Upon termination of this RIC (Landmark)
Administrative Services Agreement pursuant to Section 11.2(a) or (b) hereof,
Administrator shall cooperate fully in the prompt transfer of the applicable
Administrative Services and Books and Records maintained by Administrator
pursuant to Section 8.1 hereof (or, where appropriate, copies thereof) to
Insurer or Insurer's designee, so that Insurer or its designee shall be able to
perform the applicable Administrative Services without interruption following
termination of this RIC (Landmark) Administrative Services Agreement.
13
(d) Upon any termination of this Administrative Services
Agreement, each party shall retain its right to bring actions for, and receive
damages to, which it may be entitled under Applicable Law.
ARTICLE XII
CONFIDENTIALITY
Section 12.1 Use of Confidential Information. Insurer and
Administrator acknowledge that they will have access to confidential and
proprietary information concerning the other party and its businesses, which
information is not readily available to the public, and acknowledge that Insurer
and Administrator have taken and will continue to take reasonable actions to
ensure such information is not made available to the public. Insurer and
Administrator further agree that they will not at any time (during the term
hereof or thereafter) disclose to any Person (except Insurer or Administrator
and their Affiliates and the officers, directors, employees, agents and
Representatives of Insurer and Administrator and their Affiliates who require
such information in order to perform their duties in connection with the
services provided hereunder), directly or indirectly, or make any use of, for
any purpose other than those contemplated by the Landmark Stock Purchase
Agreement, this RIC (Landmark) Administrative Services Agreement or the RIC
(Landmark) Quota Share Reinsurance Agreement, any information or trade secrets
relating to the Reinsured Contracts or the Reinsured Liabilities or the business
affairs of Insurer or Administrator, including the identity of and/or the
compensation arrangements with, any Affiliates and Subsidiaries of Insurer and
Administrator, so long as such information remains confidential.
Section 12.2 Confidentiality of Individuals. Information that
identifies an individual covered under one of the Reinsured Contracts may be
confidential. Administrator shall take all reasonable precautions to prevent
disclosure or use of information identifying individuals covered under such
Reinsured Contracts for a purpose unrelated to the performance of this RIC
(Landmark) Administrative Services Agreement. Administrator shall comply with
all Applicable Laws and regulations, as in effect on the date hereof or as
hereafter adopted or amended. With respect to Reinsured Contracts reinsured by
Administrator, Insurer shall take all reasonable precautions to prevent
disclosure or use of information identifying individuals for a purpose unrelated
to the performance of this RIC (Landmark) Administrative Services Agreement.
Section 12.3 Disclosure. Administrator or Insurer may disclose
confidential information in the following circumstances (or as otherwise
provided by the provisions of this RIC (Landmark) Administrative Services
Agreement):
(i) in response to a court order or formal
discovery request after notice to the other party (to the extent such
notice is reasonably practicable); provided, however, that such
disclosure shall be limited only to the extent that is required by such
court order or formal disclosure request;
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(ii) if a proper request is made by any
regulatory authority after notice to the other party (to the extent
such notice is reasonably practicable); provided, however, that such
disclosure shall be limited only to the extent that is required by such
regulatory authority;
(iii) at the proper request of Insurer or
Policyholder or his/her legal representative; provided, however, that
such disclosure shall be limited only to the extent that is reasonably
necessary to satisfy such a request; or
(iv) as otherwise required by Applicable Law or
the rules of any relevant stock exchange.
ARTICLE XIII
INDEMNIFICATION
Section 13.1 Indemnification by Insurer. Insurer hereby
indemnifies Administrator and its Affiliates and its and their respective
officers, directors, employees, agents and Representatives against, and agrees
to hold each of them harmless from any and all Damages incurred or suffered by
any of them arising out of or relating to, (i) any Excluded Liabilities; (ii)
any breach or nonfulfillment by Insurer of, or any failure by Insurer to
perform, any of the covenants, terms or conditions of, or any duties or
obligations under, this RIC (Landmark) Administrative Services Agreement; and
(iii) any enforcement of this indemnity.
Section 13.2 Indemnification by Administrator. Administrator
hereby indemnifies Insurer and its Affiliates and its and their respective
officers, directors, employees, agents and Representatives against, and agrees
to hold each of them harmless from any and all Damages incurred or suffered by
any of them arising out of or relating to, (i) any Reinsured Liabilities; (ii)
any breach or nonfulfillment by Administrator of, or any failure by
Administrator to perform, any of the covenants, terms or conditions of, or any
duties or obligations under, this RIC (Landmark) Administrative Services
Agreement; and (iii) any enforcement of this indemnity.
Section 13.3 Indemnification Procedure. In the event either
Insurer or Administrator shall have a claim for indemnity against the other
party under the terms of this RIC (Landmark) Administrative Services Agreement,
the parties shall follow the procedures set forth in Article IX of the Landmark
Stock Purchase Agreement.
Section 13.4 Relationship to RIC (Landmark) Quota Share
Reinsurance Agreement. Nothing contained in this Article XIII is intended to
supersede any provisions of the RIC (Landmark) Quota Share Reinsurance
Agreement.
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ARTICLE XIV
ARBITRATION
Section 14.1 Arbitration. As a condition precedent to any
cause of action, any and all disputes between Insurer and Administrator arising
out of, relating to, or concerning this RIC (Landmark) Administrative Services
Agreement, whether sounding in contract or tort and whether arising during or
after termination of this RIC (Landmark) Administrative Services Agreement,
including whether the dispute is subject to arbitration, shall be submitted to
the decision of a board of arbitration composed of two arbitrators and an umpire
("Board") meeting at a site in Wilmington, Delaware. The arbitration shall be
conducted under the Federal Arbitration Act and shall proceed as set forth
below.
Section 14.2 Notice of Arbitration. A notice requesting
arbitration, or any other notice made in connection therewith, shall be in
writing and shall be sent certified or registered mail, return receipt requested
to the affected parties. The notice requesting arbitration shall state in
particulars all issues to be resolved in the view of the claimant, shall appoint
the arbitrator selected by the claimant and shall set a tentative date for the
hearing, which date shall be no sooner than ninety (90) days and no later than
one hundred fifty (150) days from the date that the notice requesting
arbitration is mailed. Within thirty (30) days of receipt of claimant's notice,
the respondent shall notify claimant of any additional issues to be resolved in
the arbitration and of the name of its appointed arbitrator.
Section 14.3 Arbitration Panel. Unless otherwise mutually
agreed, the members of the Board shall be impartial and disinterested and shall
be active or former executive officers of property-casualty insurance companies,
reinsurance companies, or Lloyd's Underwriters or active or inactive lawyers
with at least twenty (20) years of experience in insurance and reinsurance.
Insurer and Administrator shall each appoint an arbitrator and the two (2)
arbitrators shall choose an umpire before instituting the hearing. If the
respondent fails to appoint its arbitrator within thirty (30) days after having
received claimant's written request for arbitration, the claimant is authorized
to and shall appoint the second arbitrator. If the two arbitrators fail to agree
upon the appointment of an umpire within thirty (30) days after notification of
the appointment of the second arbitrator, within ten (10) days thereof, the two
(2) arbitrators shall request the American Arbitration Association ("AAA") to
appoint an umpire for the arbitration with the qualifications set forth in this
Article. If the AAA fails to name an umpire, either party may apply to the court
named below to appoint an umpire with the above required qualifications. The
umpire shall promptly notify in writing all parties to the arbitration of his
selection and of the scheduled date for the hearing. Upon resignation or death
of any member of the Board, a replacement shall be appointed in the same fashion
as the resigning or deceased member was appointed.
Section 14.4 Submission of Briefs. The claimant and respondent
shall each submit initial briefs to the Board outlining the issues in dispute
and the basis, authority and reasons for their respective positions within
thirty (30) days of the date of
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notice of appointment of the umpire. The claimant and the respondent may submit
reply briefs to the Board within ten (10) days after filing of the initial
brief(s). Initial and reply briefs may be amended by the submitting party at any
time, but not later than ten (10) days prior to the date of commencement of the
arbitration hearing. Reasonable responses shall be allowed at the arbitration
hearing to new material contained in any amendments filed to the briefs but not
previously responded to.
Section 14.5 Arbitration Board's Decision. The Board shall
make a decision and award with regard to the terms of this RIC (Landmark)
Administrative Services Agreement and the original intentions of the parties to
the extent reasonably ascertainable. The Board's decision and award shall be in
writing and shall state the factual and legal basis for the decision and award.
The decision and award shall be based upon a hearing in which evidence shall be
allowed and which the formal rules of evidence shall not strictly apply but in
which cross examination and rebuttal shall be allowed. At its own election or at
the request of the Board, either party may submit a post-hearing brief for
consideration of the Board within twenty (20) days of the close of the hearing.
The Board shall make its decision and award within thirty (30) days following
the close of the hearing or the submission of post-hearing briefs, whichever is
later, unless the parties consent to an extension. Every decision by the Board
shall be by a majority of the members of the Board and each decision and award
by the majority of the members of the Board shall be final and binding upon all
parties to the proceeding.
Section 14.6 Jurisdiction. Either party may apply to the
Chancery Court of the State of Delaware for an order compelling arbitration or
confirming any decision and the award; a judgment of that court shall thereupon
be entered on any decision or award. If such an order is issued, the attorneys'
fees of the party so applying and court costs will be paid by the party against
whom confirmation is sought. The Board may award interest calculated from the
date the Board determines that any amounts due the prevailing party should have
been paid to the prevailing party.
Section 14.7 Expenses. Each party shall bear the expense of
the one arbitrator appointed by it and shall jointly and equally bear with the
other party the expense of any stenographer requested, and of the umpire.
Section 14.8 Production of Documents and Witnesses. Subject to
customary and recognized legal rules of privilege, each party participating in
the arbitration shall have the obligation to produce those documents and as
witnesses to the arbitration those of its employees as any other participating
party reasonably requests providing always that the same witnesses and documents
be obtainable and relevant to the issues before the arbitration and not be
unduly burdensome or excessive. The parties may mutually agree as to pre-hearing
discovery prior to the arbitration hearing and in the absence of agreement, upon
the request of any party, pre-hearing discovery may be conducted as the Board
shall determine in its sole discretion to be in the interest of fairness, full
disclosure, and a prompt hearing, decision and award by the Board. The Board
shall be the final judge of the procedures of the Board, the conduct of the
arbitration, of the rules of evidence, the rules of privilege and production and
of excessiveness and relevancy of any witnesses and documents upon the petition
of any
17
participating party. To the extent permitted by law, the Board shall have the
authority to issue subpoenas and other orders to enforce their decisions.
Section 14.9 Relief Available. Nothing herein shall be
construed to prevent any participating party from applying to the Chancery Court
of the State of Delaware to issue a restraining order or other equitable relief
to maintain the "status quo" of the parties participating in the arbitration
pending the decision and award by the Board or to prevent any party from
incurring irreparable harm or damage at any time prior to the decision and award
of the Board. The Board shall also have the authority to issue interim decisions
or awards in the interest of fairness, full disclosure, and a prompt and orderly
hearing and decision and award by the Board.
Section 14.10 Consolidation. In the event that there is a
dispute between the Insurer and Administrator and which implicates the
provisions of this RIC (Landmark) Administrative Services Agreement and the RIC
(Landmark) Quota Share Reinsurance Agreement, Insurer and Administrator hereby
agree to consolidate any such dispute under such agreements in a single
arbitration proceeding.
ARTICLE XV
MISCELLANEOUS
Section 15.1 Cooperation. The parties hereto shall cooperate
in a commercially reasonable manner in order that the duties assumed by
Administrator will be effectively, efficiently and promptly discharged. The
parties hereto will use their best efforts to (i) give effect to the intent of
this RIC (Landmark) Administrative Services Agreement, the Landmark Stock
Purchase Agreement, the RIC (Landmark) Quota Share Reinsurance Agreement and the
other Ancillary Agreements and (ii) refrain from conduct which would frustrate
the intent of any such agreement. Each party shall, at all reasonable times
under the circumstances, make available to the other party properly authorized
personnel for the purpose of consultation and decision.
Section 15.2 Amendment, Modification and Waiver. This RIC
(Landmark) Administrative Services Agreement may not be amended, modified or
waived except by an instrument or instruments in writing signed and delivered on
behalf of each of the parties hereto.
Section 15.3 Relationship. Insurer and Administrator are and
shall remain independent contractors and not employees of the other party.
Except as expressly granted in this RIC (Landmark) Administrative Services
Agreement or otherwise by the other party in writing or as may be required by
Applicable Law or as necessary to perform the services to be provided hereunder
or to obtain the benefits hereof, no party shall have any authority, express or
implied, to act as an agent of the other party or its Subsidiaries or Affiliates
under this RIC (Landmark) Administrative Services Agreement. Except as otherwise
provided by this RIC (Landmark) Administrative Services Agreement or by any
other agreement between the parties, each party shall be responsible for the
payment of all employment, income and social security
18
taxes arising in connection with the compensation payable to its personnel
involved in the provision of the services hereunder.
Section 15.4 Entire Agreement. This RIC (Landmark)
Administrative Services Agreement (together with the exhibits hereto and the
other agreements, documents and instruments delivered in connection herewith)
the Landmark Stock Purchase Agreement, the RIC (Landmark) Quota Share
Reinsurance Agreement and the other Ancillary Agreements constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersede all other prior agreements and understandings, both
written and verbal, among the parties or any of them with respect to the subject
matter hereof.
Section 15.5 Governing Law. This RIC (Landmark) Administrative
Services Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
Section 15.6 Severability. Any term or provision of this RIC
(Landmark) Administrative Services Agreement which is invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this RIC (Landmark)
Administrative Services Agreement or affecting the validity or enforceability of
any of the terms or provisions of this RIC (Landmark) Administrative Services
Agreement in any other jurisdiction. If any provision of this RIC (Landmark)
Administrative Services Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as would be enforceable.
Section 15.7 Counterparts. This RIC (Landmark) Administrative
Services Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement.
Section 15.8 Consent to Jurisdiction. Each of the parties
hereto irrevocably and unconditionally submits to the exclusive jurisdiction of
the state and federal court located in the State of Delaware for the purposes of
enforcing this RIC (Landmark) Administrative Services Agreement. If any action
is brought in a state court, the parties shall take such actions as are within
their control to cause any matter contemplated hereby to be assigned to the
Chancery Court in the State of Delaware. In any action, suit or other
proceeding, each of the parties hereto irrevocably and unconditionally waives
and agrees not to assert by way of motion, as a defense or otherwise any claims
that it is not subject to the jurisdiction of the above courts, that such action
or suit is brought in an inconvenient forum or that the venue of such action,
suit or other proceeding is improper. Each of the parties hereto also agrees
that any final and unappealable judgment against a party hereto in connection
with any action, suit or other proceeding shall be conclusive and binding on
such party and that such award or judgment may be enforced in any court of
competent jurisdiction, either within or outside of the United States. A
certified or exemplified copy of such award or judgment shall be conclusive
evidence of the fact and amount of such award or judgment.
19
Section 15.9 Third Party Beneficiaries. Except for the
provisions pf Article XIII, nothing in this RIC (Landmark) Administrative
Services Agreement, express or implied, is intended to or shall confer upon any
Person other than the parties hereto any rights, benefits or remedies of any
nature whatsoever under or by reason of this RIC (Landmark) Administrative
Services Agreement.
Section 15.10 Binding; Assignment. This RIC (Landmark)
Administrative Services Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns and legal
representatives. Neither this RIC (Landmark) Administrative Services Agreement,
nor any rights, interests or obligations hereunder, may be directly or
indirectly assigned, delegated, sublicensed or transferred by any party to this
RIC (Landmark) Administrative Services Agreement, in whole or in part, to any
other Person (including any bankruptcy trustee) by operation of law or
otherwise, whether voluntarily or involuntarily, without the prior written
consent of the parties hereto.
Section 15.11 Specific Performance. The parties recognize and
agree that if for any reason any of the provisions of this RIC (Landmark)
Administrative Services Agreement are not performed in accordance with their
specific terms or are otherwise breached, immediate and irreparable harm or
injury would be caused for which money damages would not be an adequate remedy.
Accordingly, each party agrees that, in addition to any other available
remedies, each other party shall be entitled to an injunction restraining any
violation or threatened violation of any of the provisions of this RIC
(Landmark) Administrative Services Agreement without the necessity of posting a
bond or other form of security. In the event that any action should be brought
in equity to enforce any of the provisions of this RIC (Landmark) Administrative
Services Agreement, no party will allege, and each party hereby waives the
defense, that there is an adequate remedy at law.
Section 15.12 Descriptive Headings. The descriptive article
and section headings herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this RIC (Landmark) Administrative Services Agreement.
Section 15.13 Expenses. Unless otherwise specifically provided
herein or in the Landmark Stock Purchase Agreement, Transition Services
Agreement or RIC (Landmark) Quota Share Reinsurance Agreement, all costs and
expenses incurred in connection with this RIC (Landmark) Administrative Services
Agreement shall be paid by the party incurring such cost or expense.
Section 15.14 Use of Name. Except as otherwise set forth in
the Landmark Stock Purchase Agreement, the RIC (Landmark) Quota Share
Reinsurance Agreement or the other Ancillary Agreements, neither party shall use
the name, trademark, service ▇▇▇▇, logo or identification of the other party
without the other party's prior written consent.
20
Section 15.15 Survival. The provisions of Article XII, Article
XIII and Article XV hereof shall survive the termination of this RIC (Landmark)
Administrative Services Agreement.
Section 15.16 Subcontracting. Administrator may subcontract
for the performance of any Administrative Services that Administrator is to
provide hereunder upon receipt of the prior written consent of Insurer, which
consent shall not be unreasonably withheld or delayed; provided, however, that
such subcontracting shall not be deemed to relieve Administrator of its
obligations under this RIC (Landmark) Administrative Services Agreement.
Section 15.17 Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
telecopy (which is confirmed), by courier (delivery of which is confirmed) or by
registered or certified mail (postage prepaid, return receipt requested) to the
respective parties to this RIC (Landmark) Administrative Services Agreement as
follows:
If to Administrator:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
General Counsel
Royal Group, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice to
Administrator for purposes of this Section 15.17):
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Insurer:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
Landmark American Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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With copies to (which shall not constitute notice to the
Insurer for purposes of this Section 15.17):
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
General Counsel
Alleghany Insurance Holdings LLC
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. In
no event shall the provision of notice pursuant to this Section 15.17 constitute
notice for service of any writ, process or summons in any suit, action or other
proceeding.
Section 15.18 Interpretation.
(a) When a reference is made in this RIC (Landmark)
Administrative Services Agreement to a Section or Article, such reference shall
be to a section or article of this RIC (Landmark) Administrative Services
Agreement unless otherwise clearly indicated to the contrary. Whenever the words
"include", "includes" or "including" are used in this RIC (Landmark)
Administrative Services Agreement, they shall be deemed to be followed by the
words "without limitation." The words "hereof," "herein" and "herewith" and
words of similar import shall, unless otherwise stated, be construed to refer to
this RIC (Landmark) Administrative Services Agreement as a whole and not to any
particular provision of this RIC (Landmark) Administrative Services Agreement.
The meaning assigned to each term used in this RIC (Landmark) Administrative
Services Agreement shall be equally applicable to both the singular and the
plural forms of such term, and words denoting any gender shall include all
genders. Where a word or phrase is defined herein, each of its other grammatical
forms shall have a corresponding meaning.
(b) The parties have participated jointly in the
negotiation and drafting of this RIC (Landmark) Administrative Services
Agreement; consequently, in the event
22
an ambiguity or question of intent or interpretation arises, this RIC (Landmark)
Administrative Services Agreement shall be construed as if drafted jointly by
the parties thereto, and no presumption or burden of proof shall arise favoring
or disfavoring any party by virtue of the authorship of any provisions of this
RIC (Landmark) Administrative Services Agreement.
23
IN WITNESS WHEREOF, this RIC (Landmark) Administrative
Services Agreement has been duly executed by a duly authorized officer of each
party hereto as of the date first above written.
ROYAL INDEMNITY COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
LANDMARK AMERICAN INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
