EXHIBIT 10.25
ADMINISTRATIVE SERVICES AND COST ALLOCATION AGREEMENT
This Administrative Services and Cost Allocation Agreement
("Agreement") is made and entered into on the 1st day of January, 2002 (the
"Effective Date") by and between Old Lyme Insurance Company of Rhode Island,
Inc., a Rhode Island-domiciled insurance company ("Old Lyme"), and Kaye Group
Inc., a Delaware corporation (together with certain of its wholly owned
subsidiaries, "Kaye Group").
WITNESSETH:
WHEREAS, Old Lyme and Kaye Group are controlled by Fairfax Financial
Holdings Limited ("Fairfax"); and
WHEREAS, Kaye Group has the expertise to provide certain
administrative services to Old Lyme; and
WHEREAS, Old Lyme and Kaye Group acknowledge that it is desirable that
certain administrative services required by Old Lyme be performed Kaye Group.
NOW, THEREFORE, in consideration of the covenants, promises and
obligations contained herein and for other good and valuable consideration,
receipt of which is acknowledged, the parties hereto agree as follows:
ARTICLE I
ADMINISTRATIVE SERVICES TO BE PERFORMED
A. Kaye Group shall provide or arrange for the provision of administrative
services requested by Old Lyme (collectively, the "Services"), including,
but not limited to:
actuarial, audit, executive, legal, personnel, accounting and other
financial services, insurance coverages, computer and related expenses,
telephone, the provision of necessary office accommodation and rent. On the
Effective Date and at the beginning of each calendar year thereafter, the
parties shall mutually agree upon the specific details of the Services to
be provided hereunder and the costs to be charged therefor, which costs
shall be at cost. In no event shall the Services provided hereunder
duplicate services provided to Old Lyme by any other affiliated corporation
of Old Lyme.
B. With respect to any Service provided to Old Lyme hereunder, it is
understood that Kaye Group shall provide or arrange for the provision of
such services in accordance with Old Lyme's standards, policies and
procedures. Kaye Group shall provide the Services in accordance with all
applicable federal and state laws, rules and regulations, including, but
not limited to, maintaining all necessary licenses in jurisdictions in
which Old Lyme writes insurance on an admitted or surplus lines basis.
Notwithstanding any other provision of this Agreement, it is understood
that Old Lyme's business affairs shall be managed by its Board of
Directors, and, to the extent delegated by such board, by its appropriately
designated officers.
C. Subject to the terms, conditions and limitations of this Agreement, Kaye
Group shall perform or arrange for the provision of all Services requested
by Old Lyme pursuant to this Agreement diligently and in a professional
manner.
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ARTICLE II
COMPENSATION
The charges for the Services rendered by Kaye Group to Old Lyme will be the
actual cost Kaye Group incurs in providing the Services. It is intended that the
charges for the Services rendered hereunder will be fair and equitable and will,
as nearly as practicable, approximate Kaye Group's cost therefor. Such costs and
expenses shall be paid by Old Lyme on a quarterly basis. No later than sixty
(60) days following the end of each calendar year, the parties hereto shall
review the costs and expenses incurred by Kaye Group during such calendar year
(the "True-up Amount"). Within thirty (30) days of the completion of such
review, Old Lyme shall pay to Kaye Group the amount, if any, by which the
True-up Amount exceeds the total amount of costs and expenses paid by Old Lyme
to Kaye Group during the prior calendar year, or Kaye Group shall reimburse Old
Lyme for the amount, if any, by which the total amount of costs and expenses
paid by Old Lyme to Kaye Group during the prior calendar year that exceeds the
True-up Amount.
ARTICLE III
TERMINATION
A. Except as provided below, this Agreement shall be continuous unless: (i)
terminated by mutual agreement between the parties; or (ii) terminated by
either party upon twelve (12) months prior written notice to the other
party.
B. Old Lyme may terminate this Agreement in the event that Kaye Group has
materially breached any of its obligations hereunder (a "Material Breach"),
provided that (i) Old Lyme shall have first notified Kaye Group in writing
of such Material Breach (a "Notice of Material Breach) and (ii) Kaye Group
shall not have cured the Material Breach within
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sixty (60) days following delivery to Kaye Group of the Notice of Material
Breach (the "Cure Period"). Termination pursuant to this Section B shall
become effective upon the expiration of the Cure Period. For purposes of
this Section B, a Material Breach shall include, but not be limited to, a
breach of Kaye Group's obligations set forth in Article I(B) hereof.
C. Old Lyme may, in its sole discretion, terminate this Agreement in the event
of a transfer of ownership or change in control of Kaye Group, other than a
Permitted Change of Control. A "Permitted Change of Control" means a sale
or other transfer of all, or any portion of, the voting securities of Kaye
Group (i) as a result of which Hub International Limited directly or
indirectly controls a majority of the voting securities of Kaye Group; or
(ii) to an entity controlled directly or indirectly by Fairfax. Termination
pursuant to this Section C shall become effective immediately upon the
effectiveness of the transfer of ownership or change in control. For
purposes of this Section C, "control" and "controlled" shall have the
meanings set forth in section 27-35-1(c) of the General Laws of the State
of Rhode Island, as amended.
D. Old Lyme may terminate Kaye Group's right to perform certain Services
hereunder in the event that Old Lyme chooses to perform such Services
itself or in the event that Fairfax shall perform such Services.
Termination pursuant to this subsection shall be effective upon 120 days
prior written notice to Kaye Group. In the event that Old Lyme elects to
terminate Kaye Group's right to perform certain Services, then Old Lyme
shall provide Kaye Group with reports and other information that Kaye Group
had provided to Old Lyme prior to such termination. Such reports and
information shall be provided as frequently as Kaye Group had provided them
to Old Lyme.
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E. In the event this Agreement is terminated, the parties shall cooperate in a
commercially reasonable manner to ensure that such termination does not
unduly disrupt the business operations of Old Lyme. For greater certainty,
Old Lyme shall, for a reasonable period of time following the effective
date of termination and at its own expense, continue to have reasonable
access to all software, procedures, processes and systems generated,
developed, or licensed by Kaye Group and used in connection with the
provision of the Services (collectively, the "Kaye Group Systems").
ARTICLE IV
ACCOUNTING RECORDS AND REPORTS
A. All business records, reports, studies, documents, financial statements and
other information generated by Kaye Group pursuant to or relating to the
Services provided to Old Lyme hereunder are the property of Old Lyme. All
Kaye Group Systems shall be the property of the Kaye Group; provided,
however, that any such items developed by Kaye Group pursuant to a formal
written specification request from Old Lyme and paid for by Old Lyme shall
be the property of Old Lyme.
B. In connection with the Services provided hereunder, Kaye Group agrees to
furnish Old Lyme financial, accounting, data processing and budgeting
reports on a monthly basis, and actuarial reports on a quarterly basis, in
each case in such manner and at such time as shall be reasonably required
by Old Lyme.
C. Kaye Group shall be responsible for maintaining full and accurate accounts
and records of all Services provided hereunder in accordance with
applicable laws and regulations, and such additional information as Old
Lyme may reasonably request for purposes of its
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internal bookkeeping and accounting operations, including, without
limitation, the preparation of GAAP and SAP annual and quarterly financial
statements. Kaye Group shall keep copies of such accounts and records
available at their principal offices for audit, inspection and copying by
Old Lyme and persons authorized by it or any governmental agency having
jurisdiction over Old Lyme (a "Regulator") upon reasonable notice during
all reasonable business hours and Old Lyme shall maintain copies of such
accounts and records at its home office in Rhode Island.
D. Kaye Group shall promptly respond to any inquiry from Old Lyme and persons
authorized by it or any Regulator with respect to the accounts and records
maintained in accordance with the terms of this Agreement. Kaye Group shall
also assist and cooperate with Old Lyme's auditors and Regulators in the
conduct of any audit or examination of Old Lyme's financial condition and
results of operations.
ARTICLE V
INDEMNIFICATION
A. Indemnification by Old Lyme. Old Lyme shall indemnify, defend and hold
harmless Kaye Group and its affiliates and directors, officers, employees
and agents from and against any and all claims, liabilities, demands,
actions, proceedings, damages, including punitive, consequential or
extracontractual obligations and obligations in excess of original policy
limits, losses, deficiencies, fines, penalties, costs or expenses,
including reasonable attorneys' fees ("Demands") to the extent relating to
or arising out of any act or omission of Old Lyme, its affiliates and
directors, officers, employees and agents, in performing their obligations
under this Agreement except to the extent such act or omission occurred at
the direction or request of Kaye Group or in conformity with
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guidelines provided by Kaye Group. Old Lyme shall further indemnify and
hold Kaye Group and its affiliates and directors, officers, employees and
agents harmless from and against any and all Demands to the extent relating
to or arising in any way as a result of the Old Lyme's breach of this
Agreement or the failure of Old Lyme to make available to Kaye Group any
information or to provide any services required to be made available to or
provided to Kaye Group under this Agreement. Notwithstanding the foregoing,
Old Lyme shall not indemnify for any Demands to the extent arising from the
willful misconduct, bad faith or gross negligence on the part of Kaye Group
and its affiliates and directors, officers, employees and agents, other
than Old Lyme.
B. Indemnification by Kaye Group. Kaye Group shall indemnify, defend and hold
harmless Old Lyme and its affiliates and directors, officers, employees and
agents from and against any and all Demands to the extent relating to or
arising out of any act or omission of Kaye Group, its affiliates and
directors, officers, employees and agents in performing their obligations
under this Agreement except to the extent such act or omission occurred at
the direction or request of Old Lyme or in conformity with guidelines
provided by Old Lyme. Kaye Group shall further indemnify and hold Old Lyme
and its affiliates and directors, officers, employees and agents harmless
from and against any and all Demands to the extent relating to or arising
in any way as a result of Kaye Group's breach of this Agreement or the
failure of Kaye Group to make available to Old Lyme any information or to
provide any services required to be made available to or provided to Old
Lyme under this Agreement. Notwithstanding the foregoing, Kaye Group shall
not indemnify for any Demands to the extent arising from the willful
misconduct, bad faith or gross
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negligence on the part of Old Lyme and its affiliates and directors,
officers, employees and agents other than Kaye Group.
C. Indemnification Procedure. If a party hereto (the "Indemnified Party")
asserts that another party (the "Indemnifying Party") has become obligated
to indemnify pursuant to this Article V, or if any suit, action,
investigation, claim or proceeding is begun, made or instituted as a result
of which the Indemnifying Party may become obligated to the Indemnified
Party hereunder, the Indemnified Party shall give written notice to the
Indemnifying Party within a sufficiently prompt time to avoid prejudice to
the Indemnifying Party, specifying in reasonable detail the facts upon
which the claimed right to indemnification is based. The Indemnifying Party
shall, at its own cost, be entitled to contest or defend any action against
the Indemnified Party. The Indemnified Party and the Indemnifying Party
shall each be entitled to choose counsel of their choice and each party
shall bear the cost of counsel it so chooses. In the event of the
settlement of an action for which indemnification is required, the
Indemnifying Party shall not be required to indemnify the Indemnified Party
unless the Indemnifying Party shall have agreed to the terms of such
settlement, which agreement shall not be unreasonably withheld. Any payment
to be made by an Indemnifying Party shall be made within thirty (30) days
of the delivery of notice of an uncontested claim to indemnification or
final determination of the amount to be indemnified.
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ARTICLE VI
MAINTENANCE OF INSURANCE
A. Kaye Group is required to maintain in full force and effect the following
policies of insurance issued by an insurer rated no less than "A-" by A. M.
Best Company during the Term of this Agreement and thereafter while Kaye
Group has any obligations hereunder:
(1) errors and omissions insurance covering Kaye Group and its employees
in the minimum amount of ten million dollars ($10,000,000) with a
deductible not to exceed five hundred thousand dollars ($500,000);
(2) fidelity insurance covering Kaye Group and its employees in the
minimum amount of five million dollars ($5,000,000);
(3) commercial general liability insurance (including personal injury)
covering Kaye Group and its employees in the minimum amount of one
million dollars ($1,000,000) single limit per occurrence covering Kaye
Group and its employees and a five million dollar ($5,000,000)
umbrella policy covering Kaye Group and its employees;
(4) non-owned automobile liability insurance covering Kaye Group employees
in the minimum amount of one million dollars ($1,000,000) single limit
per occurrence and a five million dollar ($5,000,000) umbrella policy
covering Kaye Group and its employees; and
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(5) workers compensation insurance in at least the minimum amounts
required to be maintained by Kaye Group by any applicable statute or
regulation.
Such insurance shall be maintained by Kaye Group at its sole cost and expense
and shall be primary and noncontributing coverage with regard to any valid and
collectible insurance available to Old Lyme. Kaye Group shall request their
insurers to provide thirty (30) days prior notification to Old Lyme, and Kaye
Group agrees to immediately notify Old Lyme when it receives notice of lapse,
increased deductibles, decreased coverage, or upon receipt of a notice
terminating coverage. Prior to the Effective Date and on or before January 30 of
each year thereafter, Kaye Group shall furnish proof of such insurance. Kaye
Group further agrees to notify Old Lyme of any claim brought under any such
policy which arises out of or is connected with the Services performed
hereunder. Old Lyme must be identified as a joint payee or joint insured as Old
Lyme's interests may appear.
ARTICLE VII
MISCELLANEOUS PROVISIONS
A. Cooperation. The parties shall cooperate in a commercially reasonable
manner in order that the duties assumed by Kaye Group will be effectively,
efficiently and promptly discharged. Old Lyme shall, at all reasonable
times, during its normal business hours, make available to Kaye Group
properly authorized personnel of Old Lyme for the purpose of consultation
and decision and information as may be reasonably required by Kaye Group.
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B. Reasonableness. The parties will act reasonably and in good faith on all
matters within the terms of this Agreement.
C. Errors and Omissions. Any delays, errors or omissions on the part of a
party occurring in connection with this Agreement or any transaction
hereunder shall not relieve any other party from any liability which would
have otherwise attached, had such delay, error or omission not occurred,
provided that such error or omission is rectified as soon as reasonably
practicable after discovery thereof.
D. Assignment. This Agreement shall be binding upon and inure to the benefit
of the parties hereto and their respective successors and assigns and legal
representatives. This Agreement is not assignable except by operation of
law or by written consent of all of the parties hereto.
E. Amendments and Waivers. This Agreement may be amended at any time by an
agreement in writing between the parties. The terms of this Agreement may
be waived only by a written instrument signed by the party waiving
compliance. No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof. Nor shall
any waiver on the part of any party of any right, power or privilege, nor
any single or partial exercise of any such right, power or privilege,
preclude any further exercise thereof or the exercise of any other such
right, power or privilege.
F. Entire Agreement. This Agreement constitutes the entire contract between
the parties with respect to the subject matter hereof and there are no
understandings between the parties as to the Services to be provided other
than as expressed in this Agreement. Any
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amendment or modification hereto shall be null and void unless made by
amendment to this Agreement and signed by both parties.
G. No Third-Party Beneficiaries. Nothing in this Agreement is intended or
shall be construed to give any person, other than the parties hereto, any
legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision contained herein.
H. Governing Law. This Agreement shall be interpreted and governed by the laws
of the State of New York, without giving effect to the conflict of laws
provisions of such jurisdiction.
I. Invalidity. Unless the invalidity or unenforceability of any provision or
portion hereof frustrates the intent of the parties or the purpose of this
Agreement, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions or portions hereof. In
the event that such provision shall be declared unenforceable by a court of
competent jurisdiction, such provision, to the extent declared
unenforceable, shall be stricken. However, in the event any such provision
shall be declared unenforceable due to its scope, breadth or duration, then
it shall be modified to the scope, breadth or duration permitted by law and
shall continue to be fully enforceable as so modified.
J. Dispute Resolution. In the event of an alleged breach of this Agreement or
any dispute or difference arising with reference to the applicable
interpretation or effect of this Agreement, or any part thereof (each, a
"Dispute"), the parties agree to work together in good faith to resolve the
matter internally by escalating to higher levels of management of the
parties and to senior management of Fairfax and then, if necessary, to
submit the
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matter to arbitration in the manner described below. No Dispute will be
submitted to arbitration during such internal dispute process. The duration
of such process will not exceed sixty (60) days starting upon the written
notification of a Dispute from one party to the other. In any event, either
party may stop the internal dispute resolution procedure whenever it, in
good faith, determines that the procedure is no longer appropriate to
resolve the Dispute.
In the event a Dispute is not resolved pursuant to the preceding paragraph,
such Dispute shall be referred to a Board of Arbitration (the "Board") of
two (2) arbitrators and an umpire. The members of the Board shall be U.S.
citizens and shall be active or retired disinterested officers of insurance
or reinsurance companies.
1. One arbitrator shall be chosen by the party initiating the arbitration
and designated in the letter requesting arbitration. The other party
shall respond, within thirty (30) 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 right 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, the umpire shall be chosen by the manager of
the American Arbitration Association who shall be a person meeting the
qualifications set forth above. Each party shall submit its case to
the Board within thirty (30) days from the date of the appointment of
the
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umpire, but this period of time may be extended by unanimous written
consent of the Board.
2. The sittings of the Board shall take place in New York, New York,
unless otherwise agreed by the parties hereto. 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 evidence. 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.
3. Each party shall bear the fees and expenses of the arbitrator elected
by or on its behalf, and the parties shall bear the fees and expenses
of the umpire as determined by the Board.
K. Government Action. Each party shall promptly notify the other party of any
inquiry, investigation, cease and desist order, audit, complaint or other
similar matter from any state or federal regulatory or law enforcement body
or any similar organization having authority to regulate surplus lines
insurance to which such other party may be subject, within three days
following receipt or otherwise becoming aware thereof.
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L. Privacy. Neither party shall disclose any non-public personal, medical or
financial information gathered in the course of performing any Services
hereunder to any third party and shall in all respects comply with the
Gramm-Leach-Bliley Act, Pub. L. No. 106-102, 113 Stat. 1338 (1999) as
implemented by any and all state insurance regulatory bodies. Further, both
parties shall comply with any and all privacy regulations and statutes
applicable to any information obtained by either party as a result of the
Services and shall be solely responsible for any fines, penalties or
damages associated with its own improper disclosure of protected
information and shall fully defend, indemnify, and hold harmless the other
party for any such improper disclosure in accordance with Article VII
hereof.
M. Notices. Any notice or other communication required or permitted hereunder
shall be in writing and shall be delivered personally, telegraphed,
telexed, sent by facsimile transmission or sent by certified, registered or
express mail, postage prepaid. Any such notice shall be deemed given when
so delivered personally, telegraphed or telexed or sent by facsimile
transmission to the appropriate facsimile number on Appendix A or, if
mailed, three days after the date of deposit in the United States mails, to
the appropriate address on Appendix A. Any party may, by notice given in
accordance with this Agreement to the other parties, designate another
address or person for receipt of notices hereunder.
N. Headings. The headings in this Agreement are for convenience of reference
only and shall not affect its interpretation.
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O. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in triplicate by their respective officers duly authorized to do so, as
of the date and year first above written.
OLD LYME INSURANCE COMPANY OF
RHODE ISLAND, INC.
By: /s/ Michael P. Sabanos
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Name:
Title:
KAYE GROUP INC. TOGETHER WITH CERTAIN
OF ITS WHOLLY OWNED SUBSIDIARIES
By: /s/ Michael P. Sabanos
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Name:
Title: