EXHIBIT 10.28
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RENEWAL RIGHTS AGREEMENT
by and among
EACH OF THE SUBSIDIARIES OF ROYAL, INC.
LISTED ON EXHIBIT A HERETO
and
ALLEGHANY INSURANCE HOLDINGS LLC
Dated as of July 1, 2003
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TABLE OF CONTENTS
Page
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ARTICLE I. DEFINITIONS................................................................................. 2
ARTICLE II. RENEWALS AND TERM.......................................................................... 2
ARTICLE III. COVENANTS AND AGREEMENTS.................................................................. 3
ARTICLE IV. DISPUTE RESOLUTION......................................................................... 3
ARTICLE V. MISCELLANEOUS PROVISIONS.................................................................... 4
EXHIBITS
EXHIBIT A LIST OF ROYAL INSURER AFFILIATES
EXHIBIT B FORM OF LETTER TO POLICYHOLDERS
RENEWAL RIGHTS AGREEMENT
This RENEWAL RIGHTS AGREEMENT (this "Agreement"), dated as of
July 1, 2003, is entered into by each of the insurance company subsidiaries of
Royal Group, Inc. ("Royal") listed on Exhibit A hereto (each a "Royal Insurer
Affiliate" and collectively, the "Royal Insurer Affiliates") and Alleghany
Insurance Holdings LLC, a Delaware limited liability company ("AIHL").
W I T N E S S E T H
WHEREAS, the Acquisition Agreement, dated as of June 6, 2003
by and between Royal and AIHL (the "Acquisition Agreement") provides, among
other things, for the sale by Royal and purchase by AIHL of all of the issued
and outstanding shares of stock of Royal Specialty Underwriting, Inc., a Georgia
company ("RSUI"), and certain of the assets of, and certain rights to, the
Business (as such term is defined in the Acquisition Agreement) conducted by
RSUI;
WHEREAS, in connection with the Acquisition, on the Closing
Date, each of Royal and AIHL desires to cause their respective Affiliates to
enter into certain related agreements including, without limitation, the RIC
Quota Share Reinsurance Agreement, the RSLIC Quota Share Reinsurance Agreement
(together, the "Reinsurance Agreements"), the RIC Administrative Services
Agreement and the RSLIC Administration Services Agreement (together, the
"Administrative Services Agreements");
WHEREAS, from and after the Effective Date (as defined in the
Quota Share Reinsurance Contracts), RSUI as agent shall have the authority to
issue the Reinsured Contracts in the names of the Royal Insurer Affiliates,
pursuant to the terms of the Administrative Services Agreements;
WHEREAS, each of the Royal Insurer Affiliates and each of the
insurance company Affiliates of AIHL (the "AIHL Insurer Affiliates") has agreed
that, in accordance with the terms and conditions of this Agreement and the
Acquisition Agreement, each of the Royal Insurer Affiliates shall assist in the
rewriting of the Reinsured Contracts (as defined in the Reinsurance Agreements)
by one or more of the AIHL Insurer Affiliates upon the terms and subject to the
conditions set forth below; and
WHEREAS, Royal wishes to transfer to AIHL, and AIHL wishes to
accept and assume from Royal, all of the Royal Insurer Affiliates' rights, title
and interest in the renewals of the Reinsured Contracts (the "Renewal Rights").
NOW, THEREFORE, in consideration of the premises and the
mutual covenants contained herein and in the Acquisition Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
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ARTICLE I.
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them in the
Acquisition Agreement or the Quota Share Reinsurance Agreements.
ARTICLE II.
RENEWALS AND TERM
Section 2.1 Rewritten Policies. From and after the Effective
Date (as defined in the Quota Share Reinsurance Agreements), each of the Royal
Insurer Affiliates shall assist the AIHL Insurer Affiliates in offering and
issuing, in accordance with Applicable Law, new policies upon expiration of the
Reinsured Contracts in the names of such AIHL Insurer Affiliates (the "Rewritten
Policies"). Such assistance shall be provided by each of the Royal Insurer
Affiliates in accordance with the terms of this Agreement, the Quota Share
Reinsurance Agreements, the Administrative Services Agreements and the
Transition Services Agreement.
Section 2.2 Renewal Rights. In connection with the non-renewal
of the RSUI-Produced Insurance Contracts or the issuance of Reinsured Contracts
in the names of the Royal Insurer Affiliates in accordance with the terms of the
Administrative Services Agreements, and to the extent permitted by Applicable
Law and contractual obligations, AIHL, or its designated AIHL Insurer Affiliate,
on behalf of each of the Royal Insurer Affiliates shall, from time to time, send
to each insured, through such insured's insurance agent, broker or other
independent producer, under each such policy to whom any of the AIHL Insurer
Affiliates determines to issue a Rewritten Policy, a written notice
substantially in the form of Exhibit B hereto as may be modified to comply with
Applicable Law, or in such other form as AIHL shall determine is appropriate
with the written consent of the relevant Royal Insurer Affiliate, encouraging
such insured to have his or her policy rewritten by one of the AIHL Insurer
Affiliates.
Section 2.3 Transfer of Renewal Rights. Royal hereby transfers
to AIHL all of the rights, title and interest of the Royal Insurer Affiliates in
and to the Renewal Rights.
Section 2.4 Term. This Agreement shall commence on the
Effective Date and shall terminate on the second anniversary thereof.
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ARTICLE III.
COVENANTS AND AGREEMENTS
Section 3.1 Expenses. The parties to this Agreement shall bear
their respective expenses incurred in connection with the preparation, execution
and performance of this Agreement and the transactions contemplated hereby,
except to the extent otherwise provided under the Administrative Services
Agreements or the Transition Services Agreement.
Section 3.2 Examination of the Books and Records. Following
the termination of this Agreement, AIHL and its Affiliates shall be entitled,
through their employees, counsel, accountants, or other representatives, to make
such examination of the Books and Records of the Royal Insurer Affiliates
relating to the RSUI-Produced Insurance Contracts as any of the AIHL Insurer
Affiliates may reasonably request for the purpose of effectuating the Rewritten
Policies; provided, that a representative from the Royal Insurer Affiliates
shall have the right to be present during such examination. Any such examination
shall be conducted during normal business hours and upon reasonable prior
notice. The information obtained pursuant to this provision shall be subject to
the provisions of Section 17.16 of the Acquisition Agreement.
Section 3.3 Issuance and Renewal of RSUI-Produced Insurance
Contracts and Reinsured Contracts. Except as provided in the Administrative
Services Agreements, and except as otherwise required by Applicable Law or the
terms of any Reinsured Contracts, each of the Royal Insurer Affiliates covenants
and agrees not to issue or renew Reinsured Contracts for the period commencing
on the Closing Date and ending on the second anniversary of the Closing Date.
Section 3.4 Further Assurances. During and after the term of
this Agreement, without further consideration, each of the parties shall execute
such documents and other papers, and take such further actions as may be
reasonably required or desirable, or required under Applicable Law, to
effectuate the provisions hereof and the transactions contemplated hereby.
ARTICLE IV.
DISPUTE RESOLUTION
Section 4.1 Dispute Resolution. The procedures for the
resolution of disputes under this Agreement shall be governed by the dispute
resolution provisions of the Reinsurance Agreements.
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ARTICLE V.
MISCELLANEOUS PROVISIONS
Section 5.1 Amendment, Modification and Waiver. This 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 5.2 Entire Agreement. This Agreement, the Acquisition
Agreement and the other Ancillary Agreements (together with the schedules and
exhibits hereto and thereto, the annexes hereto and thereto and the other
agreements, documents and instruments delivered in connection herewith and
therewith) constitute the entire agreement among the parties with respect to the
subject matter hereof and thereof and supersede all other prior agreements and
understandings (other than the Confidentiality Agreement), both written and
verbal, among the parties or any of them with respect to the subject matter
hereof.
Section 5.3 Interpretation.
(a) When a reference is made in this Agreement to a
Section or Article, such reference shall be to a section or article of this
Agreement unless otherwise clearly indicated to the contrary. Whenever the words
"include," "includes" or "including" are used in this 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 Agreement as a whole and not to any
particular provision of this Agreement. The meaning assigned to each term used
in this 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 Agreement; consequently, in the event an
ambiguity or question of intent or interpretation arises, this 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 Agreement.
Section 5.4 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 (delivery of 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 Agreement as follows:
If to Royal, Inc. or the Royal Insurer Affiliates:
Laura S. Lawrence, Esq.
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General Counsel
Royal, Inc.
9300 Arrowpoint Blvd.
Charlotte, North Carolina 28273
Telephone No.: (704) 522-2851
Facsimile No.: (704) 522-2313
with a copy to (which shall not constitute notice to
Royal, Inc. or the Royal Insurer Affiliates for
purposes of this Section 5.4):
Robert J. Sullivan, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telephone No.: (212) 735-3000
Facsimile No.: (212) 735-2000
If to AIHL:
Robert M. Hart, Esq.
Alleghany Corporation
375 Park Avenue
Suite 3201
New York, New York 10152
Telephone No.: (212) 752-1356
Facsimile No.: (212) 759-8149
with a copy to (which shall not constitute notice to
AIHL for purposes of this Section 5.4):
Aileen C. Meehan, Esq.
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Telephone No.: (212) 259-8000
Telecopy No.: (212) 259-6333
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 5.4 constitute
notice for service of any writ, process or summons in any suit, action or other
proceeding.
Section 5.5 Governing Law. This 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.
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Section 5.6 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
Agreement.
Section 5.7 Assignment; Binding Agreement. Neither this
Agreement, nor any rights, interests or obligations hereunder, may be directly
or indirectly assigned, delegated, sublicensed or transferred by any party to
this 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 other party hereto,
except that the AIHL shall have the right any time, without such consent, to
assign, in whole or in part, its rights hereunder to any wholly owned Subsidiary
of AIHL, provided that such assignment shall not relieve AIHL of any of its
obligations hereunder. Subject to the foregoing, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 5.8 Third Party Beneficiaries. Nothing in this
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 Agreement.
Section 5.9 Specific Performance. The parties recognize and
agree that if for any reason any of the provisions of this 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 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 Agreement, no party will allege, and each
party hereby waives the defense, that there is an adequate remedy at Law.
Section 5.10 Severability. Any term or provision of this
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 Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as would be enforceable.
Section 5.11 Counterparts. This 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 5.12 Consent to Jurisdiction. Each of the parties
hereto irrevocably and unconditionally submits to the exclusive jurisdiction of
the United States District Court located in Wilmington, Delaware, or if such
court does not have jurisdiction, the Chancery Court of the State of Delaware
for the purposes of enforcing
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this Agreement or any of the Ancillary Agreements. 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.
Section 5.13 Waiver of Jury Trial. EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL
PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS
CONTEMPLATED HEREBY.
Section 5.14 Extension; Waiver. At any time prior to the
Closing Date, either party may (a) extend the time for the performance of any of
the obligations or other acts of the other party, (b) waive any inaccuracies in
the representations and warranties contained in this Agreement or in any
document delivered pursuant to this Agreement of the other party or (c) waive
compliance with any of the agreements or conditions contained in this Agreement
of the other party. Any agreement on the part of a party to any such extension
or waiver shall be valid only if set forth in an instrument in writing signed on
behalf of such party. No delay on the part of any party in exercising any right
hereunder shall operate as a waiver thereof, nor shall any waiver on the part of
any party of any such right nor any single or partial exercise of any such right
preclude any further exercise thereof or the exercise of any other such right.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have caused their names
to be subscribed by their respective authorized officers.
ALLEGHANY INSURANCE HOLDINGS LLC
By: /s/ James P. Slattery
----------------------------
Name: James P. Slattery
Title: President
LANDMARK AMERICAN INSURANCE
COMPANY
By: /s/ Stephen M. Mulready
----------------------------
Name: Stephen M. Mulready
Title: President and Chief
Executive Officer
ROYAL INDEMNITY COMPANY
By: /s/ Stephen M. Mulready
----------------------------
Name: Stephen M. Mulready
Title: President and Chief
Executive Officer
ROYAL SURPLUS LINES INSURANCE
COMPANY
By: /s/ Stephen M. Mulready
----------------------------
Name: Stephen M. Mulready
Title: President and Chief
Executive Officer
ROYAL INSURANCE COMPANY OF AMERICA
By: /s/ Stephen M. Mulready
----------------------------
Name: Stephen M. Mulready
Title: President and Chief
Executive Officer