[EXHIBIT 10.16]
RISK REPORTING & INVESTMENT ACCOUNTING SERVICES AGREEMENT
This RISK REPORTING AND INVESTMENT ACCOUNTING SERVICES AGREEMENT (the
"Agreement") is made as of the 8th day of December, 2005 ("Effective Date")
between BlackRock Financial Management, Inc. ("BlackRock") and Validus
Reinsurance, Ltd. ("Client"). WHEREAS, Client wishes to engage BlackRock to
provide certain risk measurement reporting services for Client as well as to
engage and appoint BlackRock as its agent to provide certain investment
accounting services for Client, all as set forth below; NOW, THEREFORE, the
parties agree as follows:
1. Services. (a) (i) Risk Services: BlackRock will provide Client with certain
risk measurement reports as set forth on Schedule A (each, a "Report"; together,
the "Reports Package"). Reports will be made available to Client on a website
(the "Client Site") that will be created and maintained by BlackRock for
password-protected access via the internet by certain Client personnel ("Client
Users," as defined in Schedule A). The Reports Package will be produced by
BlackRock using the same quality control procedures used for its other clients
of similar services. Client acknowledges that the creation of these Reports will
be dependent on portfolio and securities data that Client and/or its agents
(such as Client's custodian) shall provide in a format specified by BlackRock
("Client Data," as defined in Schedule A), and/or data obtained from BlackRock's
Accounting Services (as defined below), which are derived from the Client Data.
The "Risk Services" shall consist of provision of the Reports Package.
(ii) Accounting Services: BlackRock will perform investment accounting services
for Client as set forth in Schedule B (the "Accounting Services"), and such
additional accounting and other services as the parties may agree upon in
writing from time to time. BlackRock is hereby authorized to communicate with
Client's custodian regarding Client's account and portfolio and regarding
reports and information provided by or pertaining to Client, Client's custodian,
or BlackRock.
The "Services" shall consist of the Risk Services together with the Accounting
Services. The following provisions apply to the Risk Services or Accounting
Services as specifically noted.
With respect to the Risk Services:
(b) BlackRock will provide Client with improvements in the Services as and when
it makes such improvements generally available to its clients. Client also may
request new or additional Reports from BlackRock for an additional fee, as the
parties may agree.
(c) "Third Party Data" means any data provided by BlackRock that are not
proprietary to BlackRock and are listed in Schedule D. Certain Third Party Data
are required to use the Risk Services. Use of Third Party Data is subject to
certain additional contract and fee terms with the provider of such data, as
outlined in Schedule D.
(d) Client will provide the hardware, software, and internet connectivity
necessary for Client Users to access and use the Reports. Current requirements
are set forth in Schedule E. All use of the Risk Services will be subject to the
limitations set forth in this Agreement (and Schedule A), including limitations
on the number and identity of Client Users and limitations applicable to Third
Party Data (see Schedule D).
(e) Use of the Risk Services shall be for Client's internal business purposes
only. Only Client Users, as specified in Schedule A, shall be permitted to
access the Risk Services. Client shall not (i) provide Reports to any third
party, except as expressly permitted in this Agreement; or (ii) reverse engineer
or otherwise use the Risk Services in any way to develop, test, enhance, or
calibrate, on behalf of itself or for any other party, any system or services
that are similar to any component(s) of the Risk Services. Notwithstanding the
foregoing, in the ordinary course of its business, Client shall be permitted to
provide excerpts from Reports to its customers and prospective customers, so
long as the provision of such materials is not for a fee and is only an
incidental component of the service provided by Client to such customers or
prospective customers, and to its auditors and regulators as required by law,
rule, or practice. At BlackRock's request, Client shall provide BlackRock
indicative copies of its materials that include Report excerpts and are provided
to its customers.
(f) Client acknowledges that not all securities in its portfolios may lend
themselves to explicit analytically derived risk measures and that BlackRock may
not have procedures, methods, or models appropriate for
risk analysis of certain types of securities. BlackRock will consult with
Client's designated representative in such cases to determine the appropriate
methodology for analysis of these securities for the Reports Package. In the
absence of input from Client in such instances, BlackRock will use its
reasonable judgment to analyze the security.
(g) BlackRock will provide the Reports Package to Client on the schedule set
forth in Schedule A. The timely production of each Report will depend on the
timely receipt of complete Client Data.
With respect to the Accounting Services.
(h) On the Effective Date, BlackRock shall commence work on the implementation
process and other tasks (together, the "Conversion") necessary to provide the
Accounting Services beginning after the Conversion is accepted by Client.
BlackRock will use commercially reasonable efforts to complete the Conversion
promptly subject to the timely receipt of necessary information from Client.
(i) Client shall be responsible for: (1) coordinating communications among
BlackRock and Client's custodian and advisors; (2) filing any claims in
connection with Client's invested assets (though BlackRock will facilitate
handling of certain claims, such as late-payment claims); (3) representing its
interest in any litigation relating to or involving the invested assets of
Client; (4) coordinating and controlling any movement of assets not relating to
trades and resolving any discrepancies related to the movement of such assets;
(5) notifying BlackRock of all such asset movement activity; (6) ensuring that
all necessary information from Client is timely received by BlackRock (see
Schedule B); and (7) advising BlackRock of, and ensuring all compliance with,
laws, procedures, instructions, and regulations applicable to Client due to the
specific nature of Client's business, including performing all acts required
with regard to any registration or qualification requirements imposed by any
governmental or self-regulatory authority, such as registration with SEC or
filings with the NAIC-SVO (notwithstanding the foregoing, BlackRock may assist
Client in its compliance efforts, as described in Schedule B). BlackRock shall
be entitled to rely on, for all purposes under this Agreement, any and all
instructions provided by Client. BlackRock may require, at its discretion, that
any such instructions be certified to in writing by an officer of Client.
For the avoidance of doubt, unless otherwise provided in a separate written
agreement with BlackRock, BlackRock's sole responsibility is to provide the
Accounting Services to assist Client in its financial reporting, and Client
shall be solely responsible for (i) monitoring its investments for compliance
with its investment guidelines and (ii) any judgments as to valuation of, or
purchase or sale of, securities in its portfolio; and in any case, (iii)
BlackRock shall have no responsibility for compliance with or the content of
Client's investment guidelines or for any actions of or conclusions drawn by
Client with respect to its portfolios or securities, whether or not such
conclusions are based on BlackRock's Accounting Services.
(j) Client takes sole responsibility for the acts or omissions of its custodian
and will have by the Accounting Services Commencement Date instructed its
custodian, and will instruct any future custodian of Client (such instructions
to remain in force during the term of this Agreement), to provide BlackRock (at
Client's request, on custodian's initiative, or at BlackRock's request) with
custodian's reports and other information of Client that BlackRock requires to
perform its duties hereunder.
(k) BlackRock will provide reports to Client as provided for in Schedule B. The
timely production of reports will depend on the timely receipt of complete
Client data.
(l) Third Party Data for the Accounting Services shall be governed by the
provisions set forth in Section 1(b) above as well as Schedule D.
2. Representations by Client. Client represents and warrants that (a) execution,
delivery, and performance of this Agreement have been duly authorized and shall
not conflict with any obligation of Client, whether arising by contract,
operation of law, or otherwise, (b) this Agreement constitutes a valid and
binding obligation, (c) Client has all rights necessary to provide the Client
Data to BlackRock for the uses set forth herein, and (d) Client has all rights
and power necessary to appoint BlackRock as its accounting agent.
3. Representations by BlackRock. BlackRock represents and warrants that (a)
execution, delivery, and performance of this Agreement have been duly authorized
and shall not conflict with any obligation of BlackRock, whether arising by
contract, operation of law, or otherwise, (b) this Agreement constitutes a valid
and binding obligation, and (c) BlackRock has
all rights and power necessary to provide the Services contemplated herein. No
other warranties are provided, express or implied.
4. Risk Considerations. Client understands that risk measurement analyses rely
on certain assumptions and judgments, such as with respect to movement in and
volatility of interest rates and spreads, and relative risks and the
relationship between risk factors (such as the relationship of mortgage
prepayments to interest rates). These analyses, models, and methodologies are
generally based on observations of past market behavior that may not hold true
in the future. Such assumptions may not cover all aspects of, or risks inherent
in, Client's portfolios. Client understands that the risk analyses are also
dependent on the integrity of the security master data, and the validity of the
pricing data, provided by Client (as part of the Client Data), as well as
economic data used in the analyses. BlackRock will use its best judgment and
practices to model the portfolios using the Client Data, Third Party Data, and
other available sources. For portfolios for which Client provides the securities
indicative data (see Section 1(a), above), BlackRock will depend solely on
Client Data for its analyses. BlackRock's analyses performed to create the
Reports are based on information BlackRock deems to be reliable, but BlackRock
in no case guarantees their accuracy or completeness. Client acknowledges that
significant professional disagreement exists regarding the accuracy and validity
of these types of analyses and methodologies, and that there is no assurance
that the analyses and methodologies used by BlackRock or provided by BlackRock
are or will be appropriate for Client or its portfolios.
Client acknowledges and agrees that (i) BlackRock's sole responsibility in
connection with this Agreement is to provide the Services to aid Client's
analysis of its portfolios, (ii) BlackRock is not serving as an investment
advisor, or making any recommendations or soliciting any action based on its
risk measurement analyses or provision of analytic tools, and (iii) Client will
be solely responsible for any judgments as to valuation of or purchase or sale
of its portfolio securities. Accordingly, BlackRock will not be responsible or
have any liability for any actions of or conclusions drawn by Client with
respect to any matter, whether or not such conclusions are based to any extent
on BlackRock's Services.
5. Fees. (a) Client shall pay BlackRock fees for the Services to be calculated
and payable as set forth in Schedule C (the "Risk Fees" and the "Accounting
Fees"). If the composition of Client's portfolios substantially changes after
the Effective Date, the parties agree to jointly determine in good faith whether
an increase in the amount of the Fees, and/or any changes to the Services, is
required.
(b) Client agrees to reimburse BlackRock for all fees paid by BlackRock to the
National Association of Insurance Commissioners' Security Valuation Office
("NAIC-SVO") to file or register Client's securities with the NAIC-SVO.
6. Confidential Information. (a) All information regarding this Agreement, the
parties' business and their subsidiaries and affiliates, any documents exchanged
between the parties in connection with the Services, as well as all technology,
know-how, financial models, model documentation, processes, trade secrets,
contracts, proprietary information, historical or projected financial
information, organizational or operating data, strategic or management plans,
and customer information or lists, whether received before or after the date
hereof ("Confidential Information"), shall be kept in confidence by each of the
parties hereto and not disclosed to any third party, other than disclosures to
third parties in the ordinary course of business (e.g., contractors and data
vendors), subject to the requirement that such third parties be bound by
confidentiality obligations substantially equivalent to the terms of this
Agreement. Notwithstanding the foregoing and use of industry standard security
measures, neither party can guarantee to the other the security or integrity of
information accessible through the Internet against improper or unauthorized
access.
(b) The parties' obligations concerning Confidential Information shall survive
termination or expiration of this Agreement. These confidentiality obligations
shall not apply to information (i) lawfully in the public domain, (ii) lawfully
possessed by the recipient before disclosure by the other parry, (iii) lawfully
disclosed to a party by a third party without obligation of confidentiality, or
(iv) independently developed by a party without reference to the other party's
Confidential Information. (v) If any disclosure is compelled by a court or other
competent authority, the compelled party shall make reasonable efforts to allow
the disclosing party to oppose and/or limit such disclosure. Disclosures
described in (v) shall not be deemed a violation of this Section 6.
(c) Client may provide to BlackRock suggestions, comments, or other feedback
("Feedback") with
respect to Confidential Information and/or the Services. Client agrees that all
Feedback is and shall be given entirely voluntarily. Except pursuant to a
subsequent written agreement between the parties, BlackRock shall be free to
use, disclose, reproduce, license, or otherwise distribute and exploit Feedback
provided to it, without obligation or restriction of any kind on account of
intellectual property rights or otherwise.
(d) BlackRock shall be permitted to include Client on its list of clients and
BlackRock may describe the general nature of its work for Client under this
Agreement.
7. Limitations on Liability; Indemnity. (a) BlackRock shall not be liable for
any incidental, consequential, special, exemplary, or indirect damages. Except
with respect to indemnified claims (as set forth below in subsection (b)(i)), in
no case shall BlackRock's liability, in the aggregate, exceed the fees payable
by Client to BlackRock during the six-month period immediately preceding the
event giving rise to the liability.
(b) (i) BlackRock shall defend and indemnify Client against all losses, damages,
expenses (including reasonable attorney's fees), and claims ("Losses") arising
out of BlackRock's breach of its obligations under Sections 3(c) and 6; and (ii)
Client shall defend and indemnify BlackRock against all Losses arising out of
Client's breach of its obligations under Sections 1(e), 2(c), and 6, and Client
further agrees to reimburse BlackRock for all out-of-pocket expenses (as noted
above) incurred by BlackRock in connection with investigating, preparing for or
defending any action or claim, whether in connection with pending or threatened
litigation to which BlackRock is a party, in each case, as such expenses are
incurred or paid. Client, however, will not be responsible for any Losses that
are finally judicially determined by a court of competent jurisdiction to have
resulted from the gross negligence, fraud, or illegal acts of BlackRock.
8. Term. (a) The initial term of this Agreement will begin on the Effective Date
and will expire on the 36-month anniversary of the availability to Client of the
first Reports Package. Thereafter, this Agreement will renew for 12-month terms
unless either party provides written notice to the other party of its desire to
avoid automatic renewal at least 90 days in advance.
(b) Either party shall have the right to terminate this Agreement before its
expiration date if the other party commits a material breach of its obligations
that remains uncured more than 30 days after a written notice specifying in
detail the nature of such breach. In the event that any third parties upon whom
BlackRock relies in the provision of the Accounting Services are no longer able
or willing to provide the requisite services to BlackRock or will only provide
such services on commercially unreasonable terms, then BlackRock will use
commercially reasonable efforts to provide alternatives to such services. If
BlackRock is unable to provide alternatives to any such terminated services,
then it may terminate the Accounting Services without penalty upon notice to
Client.
9. Applicable Law. (a) This Agreement shall be governed by the laws of the state
of New York without regard to its conflicts of laws principles. The parties
agree that all disputes arising under this Agreement shall be resolved in the
state or federal courts in New York County, New York. Each party consents to
jurisdiction and venue in such courts. The prevailing party in any dispute
arising under this Agreement shall be entitled to payment of its reasonable
attorney's fees by the other party.
(b) Each party acknowledges that certain breaches by it of its obligations
hereunder (such as under Sections 1(e) and 6) may cause irreparable harm to the
other party, and that the aggrieved party shall be entitled in any such case to
seek injunctive or similar relief without the posting of any bond or security.
10. Assignment. Client may not assign this Agreement without BlackRock's written
consent, which shall not be unreasonably withheld. Subject to the foregoing,
this Agreement shall be for the benefit of and binding upon the parties, their
successors and permitted assigns.
11. Auditinq. Client shall have the reasonable right to audit all BlackRock's
books and records directly pertaining to the performance of the Accounting
Services, and to obtain such copies of such books and records as its auditors
may reasonably request in connection with such audit, provided that Client gives
reasonable notice of the audit, and reviews the books and records during
BlackRock's normal business hours, and promptly reimburses BlackRock for any
costs of photocopying such books and records. BlackRock also shall provide to
Client on request a copy of its annual "SAS 70" report pertaining to the
provision of the Accounting Services.
12. Notices. Any notice given hereunder shall be in writing and delivered by
hand, facsimile, or by first class mail, addressed as follows:
IF TO CLIENT:
Xx Xxxxxx
Chairman
Validus Insurance, Ltd.
00 Xxx-Xx-Xxxxx Xxxx, Xxxxx 0000
Xxxxxxxx, XX 00 Xxxxxxx
Phone: 000-000-0000
Fax: 000-000-0000
IF TO BLACKROCK: WITH A COPY TO:
Xxxxxxx X. Xxxxxx Xxxxxx X. Xxxxxxxx
Managing Director Managing Director &
General Counsel
BlackRock Financial Management, Inc.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Phone: (000) 000-0000 (000) 000-0000
Fax: (000) 000-0000. (000) 000-0000
Notices will be deemed given only upon actual receipt.
13. Entire Agreement. This Agreement constitutes the entire agreement between
the parties with respect to the subject matter hereof. No understanding or
modification relating hereto shall be valid unless in writing and signed by both
parties.
14. Waiver. Waiver by a party of any provision or any breach of any provision of
this Agreement shall not be deemed to be a waiver of such provision in any other
instance, or of any other breach of any provision hereof.
15. Non-Exclusive Arrangement. Client agrees that BlackRock shall not be
restricted from furnishing services similar to the Services, or any other
investment management, risk measurement, or advisory services, to others. Client
acknowledges that BlackRock, its affiliates, and any officer, director,
stockholder, employee, or any member of their families, may have an interest in
securities with respect to which Services are performed under this Agreement. If
conflicts of interest arise with respect to BlackRock's duties under this
Agreement, BlackRock agrees to perform its duties to Client in good faith and
shall deal fairly with Client.
16. Severable. Any term or provision of this Agreement that is or may become
Invalid or unenforceable in any applicable jurisdiction shall be, as to such
jurisdiction, deemed modified so as to allow enforceability of the parties'
original intent, as well as of the remaining terms and provisions of the
Agreement.
17. Schedules. References to this Agreement shall be deemed to include any
schedules, addenda, and exhibits hereto, taken as a whole with the Agreement.
18. Taxes. Client shall pay or reimburse (and be liable to) BlackRock for taxes
arising out of this Agreement, including sales, use, or other taxes (except
taxes based on BlackRock's net income or corporate status).
19. Construction. Any conflict between the body of this Agreement and the
Schedules or attachments hereto that are expressly referenced herein shall be
resolved in favor of such Schedules or attachments.
20. Survival. Sections 6, 7, 9, and any other provision that by its terms
survives termination, shall survive the expiration or earlier termination of
this Agreement.
21. Cooperation. The parties recognize that successful delivery of the Services
will require mutual cooperation, communication, feedback, and interaction,
including action required hereunder or reasonably requested by the other party
to enable it to accomplish its obligations and responsibilities hereunder. Both
parties agree to perform the foregoing responsibilities in good faith and in a
professional manner that reflects the sophisticated nature of the Services to be
provided.
22. Counterparts. This Agreement may be executed in counterparts, each of which
shall be an original, but all of which together shall constitute one agreement.
23. Independent Contractor. BlackRock is an independent contractor and is not an
agent or employee of Client. BlackRock has no authority to bind Client by
contract or otherwise without Client's prior written authorization. The manner
of BlackRock's performance of the Services shall be in its sole discretion,
subject to the requirement that BlackRock shall at all times comply with
applicable law and its obligations hereunder. Client has no right or authority
to control the manner or means by which the Services are rendered.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
VALIDUS REINSURANCE LTD. BLACKROCK FINANCIAL MANAGEMENT, INC.
By: By:
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Name: Name:
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Title: Title:
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