Exhibit 10.13
JOINT VENTURE AGREEMENT
Dated April 16, 1998
between
Maryland Casualty Company
and
USI of Illinois, Inc.
JOINT VENTURE AGREEMENT
Table of Contents
ARTICLE I - Formation, Purposes, Term
Section 1.1 - Formation and Name
Section 1.2 - Purposes and Scope of Joint Venture
Section 1.3 - Term
Section 1.4 - Scope of Joint Venturers' Authority; Indemnification
Section 1.5 - Principal Place of Business
ARTICLE II - Management and Operation of Joint Venture
Section 2.1 - Executive Committee
Section 2.2 - Management and Staff
Section 2.3 - Responsibilities of Zurich Commercial
Section 2.4 - Responsibilities of USI
Section 2.5 - Joint Venture Expenses
Section 2.6 - Reimbursements of Expenses
Section 2.7 - Restrictions of the Joint Venturers
Section 2.8 - Limitations on Responsibilities of Joint Venturers
Section 2.9 - Operating Budgets
ARTICLE III - Capital Contributions; Financing
Section 3.1 - Initial Capital Contributions
Section 3.2 - Additional Capital Contributions
Section 3.3 - Withdrawal of Capital
Section 3.4 - Capital Accounts
ARTICLE IV - Accounting and Distributions
Section 4.1 - Ownership of Joint Venture, Profits and Losses
Section 4.2 - Tax Status, Allocation and Reports
Section 4.3 - Distribution to Joint Venturers from Net Cash Flow
Section 4.4 - Accounting
Section 4.5 - Bank Accounts
ARTICLE V - Sale or Transfer
Section 5.1 - General
ARTICLE VI - Representations and Warranties
Section 6.1 - Warranties and Representations by Zurich Commercial
Section 6.2 - Warranties and Representations by USI
Section 6.3 - Indemnity
ARTICLE VII - Default
Section 7.1 - Events of Default
Section 7.2 - Election of Non-Defaulting Joint Venturer
ARTICLE VIII - Dissolution
Section 8.1 - Causes of Dissolution
Section 8.2 - Procedure in Dissolution and Winding-Up
Section 8.3 - Disposition of Documents and Records
ARTICLE IX - General
Section 9.1 - Notices
Section 9.2 - Governing Law
Section 9.3 - Entire Agreement
Section 9.4 - Waiver
Section 9.5 - Severability
Section 9.6 - Survival of Rights
Section 9.7 - Equitable Remedies
Section 9.8 - Fees and Commissions
Section 9.9 - Confidentiality
Section 9.10 - Counterparts
Section 9.11 - Further Assurances
Section 9.12 - Arbitration
Signatures
THIS JOINT VENTURE AGREEMENT ("Agreement") is made and entered into this
16th day of April 1998 by and between Maryland Casualty Company, a Maryland
corporation trading as Zurich Commercial ("Zurich Commercial"), and USI of
Illinois, Inc., a Delaware corporation ("USI").
Recitals
A. Zurich Commercial and USI propose to enter into a Joint Venture to develop,
distribute and sell insurance products and insurance programs to the
customers of Zurich Commercial, USI and other third parties. In addition,
the parties express their mutual intention to expand their relationship and
joint activities as warranted, commercially and legally.
B. USI acknowledges that Zurich Commercial's participation in the Joint
Venture as provided herein is a valuable asset to the Joint Venture and
Zurich Commercial's reputation, expertise, business experience, customer
base, and other contributions shall benefit the Joint Venture and USI as a
Joint Venturer.
C. Zurich Commercial acknowledges that USI's participation in the Joint
Venture as provided herein is a valuable asset to the Joint Venture and
USI's distribution network, reputation and marketing expertise in the
insurance industry shall benefit the Joint Venture and Zurich Commercial as
a Joint Venturer.
D. The parties hereto desire to set forth in full the terms and conditions of
their agreements and understandings relative to the Joint Venture in this
Agreement.
1
NOW, THEREFORE, in consideration of the mutual promises and covenants
hereinafter set forth, and for other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties
hereto, intending to be legally bound, do hereby agree as follows:
ARTICLE I
Formation, Purposes, Duration
-----------------------------
Section 1.1 Formation and Name
1.1.1. Zurich Commercial and USI hereby enter into and form a Joint Venture (the
"Joint Venture") for the limited purposes and scope set forth herein.
Zurich Commercial and USI sometimes are referred to hereinafter
collectively as "Joint Venturers" and individually as a "Joint Venturer."
Except as expressly provided for herein to the contrary, the rights and
obligations of the Joint Venturers and the administration and termination
of the Joint Venture shall be governed by the New York Uniform Partnership
Act. All property owned by the Joint Venture, including any property as to
which either Joint Venturer holds nominal title, shall be deemed owned by
the Joint Venture as an entity, and neither Joint Venturer, individually,
shall have any ownership of such property, except upon termination or
dissolution of the Joint Venture pursuant to Article VIII of this
Agreement.
2
1.1.2. The business and affairs of the Joint Venture shall be conducted solely
under the name "Ze/USI Insurance Services" and such name shall be used at
all times in connection with the Joint Venture business and affairs.
1.1.3. The parties hereto shall execute and acknowledge any fictitious name
certificate and cause the same to be published and filed in accordance with
the provisions of the laws of each jurisdiction in which the Joint Venture
undertakes any business.
Section 1.2. Purposes and Scope of Joint Venture
1.2.1. The sole and only purposes of the Joint Venture are:
(a) The development, distribution and sale of insurance products and
programs for human services agency organizations, including, 501(c)3
(nonprofit) organizations; and
(b) To engage in such other activities as are reasonably incidental to the
foregoing. These purposes shall not be extended by implication or otherwise
except by the written agreement of Zurich Commercial and USI. This
Agreement shall not be deemed to create a general partnership between the
Joint Venturers with respect to any activities other than the activities
within the scope and business purposes of the Joint Venture as specified in
this Section 1.2.
1.2.2. Subject to Article II, the Joint Venture shall be authorized to borrow
for the purposes of the Joint Venture and to pledge, mortgage or otherwise
encumber the property of the Joint Venture or any parts thereof to secure
payment of the same
3
and to refinance, replace, or otherwise alter any such encumbrance;
and to take all steps and do all things necessary or appropriate to
accomplish the foregoing.
1.2.3. Nothing in this Agreement shall be deemed to restrict in any way the
freedom of any party hereto individually or any of its affiliates to
conduct any other business or activity whatsoever, nor to require any
accountability to the Joint Venture or any party hereto.
Section 1.3. Term
1.3.1. The term of the Joint Venture commences as of April 16, 1998 and shall
continue until the Joint Venture is dissolved pursuant to Article VIII.
Neither Joint Venturer at any time shall have the right to a partition of
the Joint Venture or of the Joint Venture assets or any part thereof,
except as specifically provided herein.
Section 1.4. Scope of Joint Venturers' Authority; Indemnification
1.4.1. Except as otherwise expressly and specifically provided in this
Agreement, neither of the Joint Venturers shall have any authority to act
for, or to assume any obligations or responsibility on behalf of, any other
Joint Venturer or the Joint Venture, without the consent of the Executive
Committee (Article II). Each Joint Venturer shall indemnify and hold
harmless the other Joint Venturer from and against any and all claims,
demands, losses, damages, liabilities, lawsuits and other proceedings,
judgments and awards and costs and expenses (including, but not limited to,
reasonable attorneys' fees) arising out of any breach of this subsection
1.4.1 by said Joint Venturer.
4
Section 1.5. Principal Place of Business
1.5.1. The principal place of business of the Joint Venture shall be at Chicago,
Illinois or at such other location as may be approved by the Executive
Committee from time to time.
ARTICLE II
Management and Operation of Joint Venture
-----------------------------------------
Section 2.1. Executive Committee
2.1.1. The overall executive and strategic direction of the Joint Venture shall
be vested in the Executive Committee ("Committee"). Except where herein
expressly provided to the contrary, all decisions with respect to the
management and control of the Joint Venture, including the allocation of
responsibilities not specifically provided for in this Agreement, that are
approved by the Committee shall be binding on the Joint Venture and each of
the Joint Venturers. The Committee shall be composed of three
representatives appointed by Zurich Commercial and three representatives
appointed by USI. Each Joint Venturer shall designate in writing from time
to time its respective representatives on the Committee. Zurich Commercial
hereby designates Xxxxx Xxxxxx, Xxxx Xxxxxx, and Xxxx XxXxxxx as its
initial representatives. USI hereby designates Xxxx Xxxxx, Xxxx Van
Orsdall, and Xxxxxx Xxxxxx as its initial representatives. Each Joint
Venturer shall have the right at any time, by written notice to the other
Joint Venturer given in accordance with Section 9.1.1., to remove its
5
representatives and to appoint one or more successor representatives. If,
at any time, either Joint Venturer fails for a period of thirty (30) days
after written notice from the other Joint Venturer to designate
representatives to serve on the Committee, the Committee shall have the
power to act on all matters without the presence of representatives
designated by such Joint Venturer. Each representative shall be fully
authorized to provide any consent or approval which may be required
hereunder of the Committee. When the phrase "approved by the Committee" is
used in this Agreement, such phrase shall mean approval in writing by the
Joint Venturers acting through their representatives on the Committee who
shall have been designated pursuant to this subsection 2.1.1. The Joint
Venturers may have other persons present at the meetings of the Committee.
In the absence of a Joint Venturer representative or representatives, any
other person authorized in writing by the Joint Venturer to be an alternate
representative may vote as if that person were a designated representative.
Any action, decision, expense or obligation by three of the representatives
(including any person authorized in writing by the Joint Venturer to be an
alternative representative) shall be a binding act of the Committee so long
as at least one representative of Zurich Commercial votes for the action,
decision, expense or obligation.
2.1.2. At the beginning of each calendar year, the Committee shall establish a
schedule of regular meetings for that year to be held at such place or
places as shall be approved by the Committee from time to time. In addition
to the regular meetings
6
of the Committee, either Joint Venturer shall have the right to call a
meeting of the Committee upon at least ten (10) days' prior written notice
given in accordance with Section 9.1, provided such notice shall specify
the purpose of the meeting in reasonable detail.
2.1.3. In the event of any need for approval or other action by the Committee
without a meeting, a representative of the Committee may notify each other
representative of the need for such approval or action. The other
representatives shall use their best efforts to respond to such notice
within five (5) days after the date such notification is received;
provided, however, that failure of such representative to respond to such
notice within ten (10) days after notice of such need is delivered as set
forth in Section 9.1 shall be deemed approval as though formal approval
were given by such representative.
2.1.4. No act or decision shall be taken or sum expended or obligation incurred
by the Joint Venture, or by any Joint Venturer (if such act or decision
affects the Joint Venture) unless such act, expense or obligation shall
have been approved by the Committee; provided, that any act, decision,
expense or obligation shall be deemed to have been approved by the
Committee if the act, decision, expense or obligation involved is included
within or contemplated by an Operating Budget, which has been approved by
the Committee pursuant to Section 2.9.
7
2.1.5. Except as expressly provided herein, or as may hereafter be approved by
the Committee, no compensation will be paid by the Joint Venture to either
Joint Venturer, or to any member, officer, employee, or affiliate of any
Joint Venturer.
Section 2.2 Management and Staff
2.2.1. The Committee shall appoint an Executive Director of the Joint Venture.
The Executive Director will report to the Committee and will be broadly
responsible for the implementation of the Joint Venture Business Plan and
Operating Budget approved by the Committee and the day to day management
and operation of the Joint Venture. These duties will include, but not be
limited to:
. Assisting in the development, implementation and monitoring of the
annual Business Plan and Operating Budget for the Joint Venture.
. Working with the Joint Venturers to develop and implement a sales plan
to clients of the Joint Venturers.
. Working with the Joint Venturers to develop insurance products and
insurance programs for human services agency organizations, including
501(c)3 (nonprofit) organizations.
. Establishing the support systems (i.e., information technologies,
business processes, etc.) to service the Joint Venture's clients.
The Executive Director will have the necessary staff to carry out the
assigned duties, however, the Executive Director will seek to minimize
Joint Venture expenses by using Zurich Commercial and USI staff and
capabilities.
8
2.2.2. The Joint Venture will assume responsibility for developing and
implementing the defense of the Joint Venture. The Joint Venture shall
maintain professional liability errors and omissions insurance under such
terms and conditions as are customary in the insurance industry or as
otherwise decided by the Committee. The cost of such errors and omissions
insurance shall be borne by the Joint Venture.
Section 2.3. Responsibilities of Zurich Commercial
2.3.1. Allow the Joint Venture access to Zurich Commercial's customer base in
order to identify human services agency organizations that would benefit
from developed insurance products and programs.
2.3.2. Assist the Joint Venture in developing a detailed profile of the selected
human services agency organizations.
2.3.3. Utilizing the profiles developed in 2.3.2., assist the Joint Venture in
identifying the insurance requirements of each such organization in order
to develop industry competitive insurance products and programs.
2.3.4. Once the insurance products and programs are developed and implemented,
assist the Joint Venture in the sale and distribution of the insurance
products and programs.
2.3.5. Use Zurich Commercial's reputation, expertise and business experience to
achieve the highest possible penetration of selected human services agency
9
organizations. (i.e., achieve the highest penetration of said organizations
purchasing insurance through the Joint Venture.)
2.3.6. Zurich Commercial recognizes that the more competitive the insurance
products and programs the higher the penetration of selected human services
agency organizations for the Joint Venture (i.e., leverage the premium
base).
2.3.7. Assist in the development of business systems to handle the servicing of
the insurance products and programs.
2.3.8. Provide capital to the Joint Venture.
2.3.9. Maintain all required insurance licenses necessary to act as an insurer.
Section 2.4. Responsibilities of USI
2.4.1 Allow the Joint Venture access to USI's customer base in order to identify
human services agency organizations that would benefit from developed
insurance products and programs.
2.4.2. Assist the Joint Venture in developing a detailed profile of the selected
human services agency organizations.
2.4.3. Utilizing the profiles developed in 2.4.2., assist the Joint Venture in
identifying the insurance requirements of each such organization in order
to develop industry competitive insurance products and programs.
2.4.4. Perform brokering and marketing services and use its best efforts to
distribute through USI affiliated retail agencies, as well as other retail
agencies, competitive
10
insurance products and programs developed by the Joint Venture which can be
used by selected human services agency organizations.
2.4.5. Assist the Joint Venture in the distribution of the insurance products to
customers of Zurich Commercial, USI and others as approved by the
Committee.
2.4.6. Provide the knowledge, expertise and advice needed to effectively manage
the business of the Joint Venture.
2.4.7. Assist in the development of business systems to handle the servicing of
the insurance products and programs.
2.4.8. Maintain all required insurance licenses.
Section 2.5. Joint Venture Expenses
2.5.1. From and after the date of this Agreement, all costs and expenses
incurred pursuant to this Agreement with respect to the Joint Venture and
the development of the Joint Venture shall be borne by the Joint Venture
from capital contributions or earnings, subject to compliance with any
other provision of this Agreement which expressly places responsibility for
such costs or expenses on Zurich Commercial alone, USI alone or both Joint
Venturers collectively or on any third party; provided, however, to the
extent the cash reserve of the Joint Venture would fall below a minimum
cash reserve specified by the Committee, Zurich Commercial will contribute
additional capital to the Joint Venture, in an amount not to exceed the
amount set forth in Section 3.2, which Zurich Commercial shall recoup prior
to any distribution or allocation to USI.
11
Section 2.6. Reimbursements of Expenses
2.6.1. Identifiable and direct reasonable expenses of either Joint Venturer
(including all reasonable expenses incurred to attend the Committee
meetings) incurred in carrying out its responsibilities under this
Agreement shall be reimbursed by the Joint Venture to the respective Joint
Venturer.
Section 2.7. Restrictions On the Joint Venture
2.7.1. All business developed by the Joint Venture shall be for the customers of
Zurich Commercial, USI, and other third parties as determined by the
Committee. Each customer of the Joint Venture must go through a
qualification process as determined by the Committee. Sources of insurance
products or programs outside of the Zurich Group must be approved by the
Committee.
2.7.2. Zurich Commercial and USI agree that Zurich Commercial companies will be
the preferred source of property and casualty insurance products for USI
clients who are human services agency organizations. USI will provide the
companies of Zurich Commercial a reasonable opportunity to quote such
accounts once all other quotes have been received from competing
underwriters.
2.7.3 Until the earlier of (i) January 31, 2001 or (ii) the date on which
Black/White & Associates Insurance Brokers ("Black/White") is no longer an
affiliate of USI:
(a) the Joint Venture will not accept any human services agency
organization business from any USI affiliate if such business is then
currently being placed by such affiliate with Black/White; and
12
(b) the Joint Venture will not solicit any human services agency
organization business from any retail broker (a list of which is
attached hereto as Exhibit A) who is then currently placing human
services agency organization business with Black/White.
In the event that, notwithstanding the Joint Venture's compliance with
subparagraph (b) above, any such retail broker requests a quote or
placement by the Joint Venture, the Joint Venture may make such quote
and/or placement, but only if the coverage in question is not, as of such
time, placed through Black/White.
Section 2.8. Limitations on Responsibilities of Joint Venturers
2.8.1. Except as otherwise provided herein, each Joint Venturer shall be
obligated to perform its responsibilities and the obligations hereunder
only to the extent that funds of the Joint Venture are available therefor.
Notwithstanding any other provision hereof, each Joint Venturer shall be
liable only for its own bad faith, gross negligence or breach of any
express provision of this Agreement, but in other respects shall not be
liable for mistakes of judgment.
2.8.2. Each Joint Venturer shall at all times conform to the policies and
programs established and approved by the Committee, which shall include an
Operating Business Plan to be approved by the Committee, and the scope of
their authority shall be limited to normal and prudent actions which are
taken in furtherance of said policies and programs and are not in conflict
with any express limitations on
13
the Joint Venturers' authority specifically set forth herein. Each Joint
Venturer shall keep the other Joint Venturer regularly informed as to
material matters of concern to the Joint Venture.
Section 2.9. Operating Plan and Budgets
2.9.1. At least once each calendar year, the Executive Director with the
assistance of the Committee will prepare an annual Operating Business Plan
and Operating Budget (collectively "Operating Budget"). The Committee shall
be responsible for reviewing and approving the Operating Budget and setting
forth the estimated receipts and expenditures (capital, operating and
other) of the Joint Venture for the period covered by the Operating Budget.
Such Operating Budget shall be adopted not later than sixty (60) days prior
to the commencement of each calendar year. The Joint Venturers, working
through the Executive Director, shall use their best efforts to implement
the approved Operating Budget and the Executive Director and his delegees
shall be authorized, without the need for further approval by the
Committee, but within the scope of their authority herein, to make the
expenditures and incur the obligations provided for in the Operating
Budget.
14
ARTICLE III
Capital Contributions: Financing
--------------------------------
Section 3.1. Initial Capital Contributions
The initial capital contribution of Zurich Commercial shall be an amount
equal to three (3) months of estimated operating expenses for the Joint
Venture as determined by the Committee. USI will not be required to make
any initial capital contribution.
Section 3.2. Additional Capital Contributions
Zurich Commercial shall contribute additional capital , as necessary, in
such amounts as may be determined by the Committee, not to exceed One
Million Five Hundred Thousand Dollars ($1,500,000) in the aggregate. Unless
the Joint Venturers otherwise agree, USI will not be required to make any
additional capital contribution.
Section 3.3. Withdrawal of Capital
3.3.1. Neither Joint Venturer may withdraw capital from the Joint Venture
without the consent of the Committee.
Section 3.4. Capital Accounts
3.4.1.A capital account shall be maintained for each of the Joint Venturers and
the initial balance of said capital account shall consist of the initial
contribution of each Joint Venturer to the Joint Venture pursuant to
Section 3. 1. The capital accounts initially established for each Joint
Venturer shall be increased by (i)
15
additional capital contributions pursuant to Section 3.2, (ii) its share of
the operating profits of the Joint Venture, and (iii) its share of any
other item of income or gain, and decreased by (iv) all withdrawals and
capital distributions chargeable to its capital account, and (v) its share
of all deductions or losses incurred by the Joint Venture.
3.4.2. Except as otherwise specifically provided by this Agreement, whenever it
is necessary to determine the capital account of any Joint Venturer for
purposes of this Agreement, the capital account of such Joint Venturer
shall be determined after giving effect to all allocations of net income,
net gains and net losses of the Joint Venture for the current year and all
distributions for such year with respect to transactions effected prior to
the time as of which such determination is to be made.
ARTICLE IV
Accounting and Distributions
----------------------------
Section 4.1. Profits and Losses
4.1.1. The Joint Venture's profits and losses shall be allocated exclusively to
Zurich Commercial until such time as Zurich Commercial has recouped its
total capital contributions. Once Zurich Commercial has recouped its total
capital contributions, profits and losses shall be allocated 80% to Zurich
Commercial and 20% to USI.
16
Section 4.2. Tax Status, Allocation and Reports
4.2.1. The Joint Venture shall prepare or cause to be prepared, at the expense
of the Joint Venture, all tax returns and statements, if any, which must be
filed on behalf of the Joint Venture with any taxing authority and shall
furnish the returns for review and approval by the Joint Venturers at least
thirty (30) days prior to the statutory due dates for filing.
4.2.2. For accounting and federal and state income tax purposes, except as
otherwise provided in subsection 4.2.3., all net income, net losses and
credits of the Joint Venture shall be allocated exclusively to Zurich
Commercial until such time as Zurich Commercial has recouped its total
capital contributions. Once Zurich Commercial has recouped its total
capital contributions, all net income, net losses and credits shall be
allocated 80% to Zurich Commercial and 20% to USI.
4.2.3. For accounting and federal and state income tax purposes, all income,
gain, losses and deductions (including depreciation or cost recovery
deductions) and investment or other credits attributable to the Joint
Venture, and any gain, or loss on their sale realized and recognized by the
Joint Venture shall be exclusively allocated to Zurich Commercial until
such time as Zurich Commercial has recouped its total capital
contributions. Once Zurich Commercial has recouped its total capital
contributions, all income, gain, losses and deductions shall be allocated
80% to Zurich Commercial and 20% to USI.
17
4.2.4. All tax decisions and elections not expressly provided for herein must be
approved by the Committee.
Section 4.3. Distribution to Joint Venturers from Net Cash Flow
4.3.1. From time to time, but not less frequently than annually, the Committee
shall be authorized in its discretion to make distributions to the Joint
Venturers from the Net Cash Flow of the Joint Venture, as defined in
subsection 4.3.2.
4.3.2. The Net Cash Flow of the Joint Venture shall consist of the gross cash
receipts of the Joint Venture, after deducting the following:
(a) All costs of acquiring, improving, developing, managing, leasing,
operating, maintaining, replacing and preserving the assets and
business of the Joint Venture to the extent paid in cash during such
period;
(b) All operating or other expenses of the Joint Venture paid in cash
during such period, or any amounts expended as a result of any
casualty losses to the extent such losses are not reimbursed by any
third party responsible therefor or through insurance maintained by
the Joint Venture, but not including any expenses paid in cash to the
extent such expenses were reserved against and funded from such
reserves;
(c) All cash payments made with respect to the discharge of Joint Venture
indebtedness during such period;
(d) All reasonable amounts of working capital and reserve requirements of
the Joint Venture as determined by the Committee; and
18
(e) The repayment of the accrued interest and of the principal to the
extent then due on any outstanding indebtedness of the Joint Venture.
4.3.3. Net Cash Flow shall be distributed exclusively to Zurich Commercial until
such time as Zurich Commercial has recouped its total capital
contributions. Once Zurich Commercial has recouped its total capital
contributions, Net Cash Flow will be distributed 80% to Zurich Commercial
and 20% to USI.
Section 4.4. Accounting
4.4.1. The accounting year of the Joint Venture shall end at the close of
business on the last day of December of each year.
4.4.2. The books of account of the Joint Venture shall be kept and maintained at
all times at the principal place of business of Joint Venture. The books of
account shall be maintained on an accrual basis in accordance with
generally accepted accounting principles, consistently applied, and there
shall be entered in such books all matters relating to the Joint Venture,
including all income, expenditures, assets and liabilities.
4.4.3. The Joint Venture shall prepare and furnish to each member of the
Committee within forty-five (45) days after the close of each calendar
quarter an unaudited statement, showing the operation of the Joint Venture
for such quarter, and year to date, the balance in each Joint Venturer's
capital account, the unpaid balance due under all obligations of the Joint
Venture, and all other information reasonably requested by any Joint
Venturer or the Committee.
19
4.4.4. Each Joint Venturer shall have the right at reasonable times during usual
business hours to audit, examine and make copies of or extracts from the
books of account of the Joint Venture. Such right may be exercised through
any agent or employee of such Joint Venturer designated by such Joint
Venturer. Such Joint Venturer shall bear all expenses incurred in any
examination made for such Joint Venturer's account.
Section 4.5. Bank Accounts
4.5.1. Funds of the Joint Venture shall be deposited in a Joint Venture account
or accounts established under the direction of the Committee. Withdrawals
from bank accounts shall be made by parties approved by the Committee.
ARTICLE V
Sale or Transfer
----------------
Section 5.1. General
5.1.1. Because of the nature of the Joint Venture and of the undertakings of the
parties, each of the Joint Venturers recognizes that a transfer of its
Joint Venture interest could cause material loss to the Joint Venture and
the other party. Accordingly, neither Joint Venturer shall sell, assign,
transfer, mortgage, charge or otherwise encumber, or suffer any third party
to sell, assign, transfer, mortgage, charge, or otherwise encumber, or
contract to do or permit any of the foregoing, whether voluntarily or by
operation of law (herein sometimes collectively called a
20
"transfer"), any part or all of its Joint Venture interest without the
written consent of the other Joint Venturer and any attempt to do so shall
be void. Such consent shall be given at the sole discretion of the other
Joint Venturer. The giving of such consent in any one or more instances
shall not limit or waive the need for such consent in any other or
subsequent instances.
ARTICLE VI
Representations and Warranties
------------------------------
Section 6.1. Warranties and Representations by Zurich Commercial
Zurich Commercial hereby represents and warrants to USI as follows:
6.1.1. Zurich Commercial has been duly organized and is validly existing under
the laws of the State of Maryland, has the power and authority to enter
into and to form this Agreement and the execution, delivery and performance
of this Agreement has been duly authorized by Zurich Commercial.
6.1.2. No consent of any third party is required in connection with the
execution, delivery and performance of this Agreement by Zurich Commercial,
or if required, such consent has been given.
Section 6.2. Warranties and Representations by USI
USI hereby represents and warrants to Zurich Commercial as follows:
6.2.1. USI has been duly organized and is validly existing under the laws of the
State of Delaware, has the power and authority to enter into and perform
this
21
Agreement and the execution, delivery and performance of this Agreement has
been duly authorized by USI.
6.2.2. No consent of any third party is required in connection with the
execution, delivery and performance of this Agreement by USI, or, if
required, such consent has been given.
Section 6.3. Indemnity
6.3.1. Each Joint Venturer agrees to indemnify, defend and hold the other Joint
Venturer harmless from and against any and all claims, demands,
liabilities, costs, expenses, penalties and losses, including without
limitation, reasonable attorneys' fees and costs, resulting from the breach
of any warranty or representation made by such Joint Venturer in Sections
6.1 and 6.2 of this Agreement to the other Joint Venturer.
ARTICLE VII
Default
-------
Section 7.1. Events of Default
7.1.1. The occurrence of any of the following events shall constitute an event
of default ("Event of Default") hereunder on the part of the Joint Venturer
with respect to whom such event occurs ("Defaulter") if within fifteen (15)
days following notice of such default from the other Joint Venturer (ten
(10) days if the default is due solely to the nonpayment of monies), the
Defaulter fails to pay such monies, or in
22
the case of nonmonetary defaults, fails to commence substantial efforts to
cure such default or thereafter fails within a reasonable time to prosecute
to completion with diligence and continuity the curing of such default;
provided, however, that the occurrence of any of the events described in
subparagraphs (b)-(i) below shall constitute an Event of Default
immediately upon such occurrence without any requirement of notice or
passage of time except as specifically set forth in any such subparagraph:
(a) The violation by a Joint Venturer of any of the restrictions set forth
in Article V of this Agreement regarding a Joint Venturer's transfer
of its Joint Venture interest;
(b) Institution by a Joint Venturer of proceedings of any nature under any
laws of the United States or any state, whether now existing or
subsequently enacted or amended, for the relief of debtors wherein
such Joint Venturer is seeking relief as debtor;
(c) A general assignment by a Joint Venturer for the benefit of creditors;
(d) The institution by a Joint Venturer of a case or other proceeding
under any section or chapter of the United States Bankruptcy Code as
now existing or hereafter amended or becoming effective;
(e) The institution against a Joint Venturer of a case or other proceeding
under any section or chapter of the United States Bankruptcy Code as
now existing or hereafter amended or becoming effective, which
proceeding is
23
not dismissed, stayed or discharged within a period of sixty (60) days
after the filing thereof or, if stayed, which stay is thereafter
lifted without a contemporaneous discharge or dismissal of such
proceeding;
(f) A proposed plan or arrangement or other action by a Joint Venturer's
creditors taken as a result of a general meeting of the creditors of
such Joint Venturer;
(g) The appointment of a receiver, custodian, trustee or like officer, to
take possession of assets having a value in excess of $500,000 of a
Joint Venturer if the pendency of said receivership would reasonably
tend to have a materially adverse effect upon the performance by said
Joint Venturer of its obligations under this Agreement; which
receivership remains undischarged for a period of thirty (30) days
from the date of its imposition;
(h) Admission by a Joint Venturer in writing of its inability to pay its
debts as they mature;
(i) Attachment, execution or other judicial seizure of all or any
substantial part of a Joint Venturer's assets or of a Venturer's Joint
Venture interest, or any part thereof, such attachment, execution or
seizure being with respect to an amount not less than $500,000 and
remaining undismissed or undischarged for a period of fifteen (15)
days after the levy thereof, if the occurrence of such attachment,
execution or other judicial seizure would reasonably tend to have a
materially adverse effect upon the performance
24
by said Joint Venturer of its obligations under this Agreement;
provided, however, that said attachment, execution or seizure shall
not constitute an Event of Default hereunder if said Joint Venturer
posts a bond sufficient to fully satisfy the amount of such claim or
judgment within fifteen (15) days after the levy thereof and the Joint
Venturer's assets are thereby released from the lien of such
attachment;
(j) The material breach of any warranty or representation made by a Joint
Venturer in Article VI hereof; or
(k) Default in performance of or failure to comply with any agreements,
obligations or undertakings of a Joint Venturer herein contained.
Section 7.2. Election of Non-Defaulting Joint Venturer
7.2.1. Upon the occurrence of an Event of Default by either Joint Venturer
("Defaulter"), the other Joint Venturer ("Non-Defaulter") may elect to
dissolve and terminate the Joint Venture pursuant to Section 8.1 of this
Agreement by written notice to the Defaulter.
ARTICLE VIII
Dissolution
-----------
Section 8. 1. Causes of Dissolution
8.1.1. The Joint Venture shall be dissolved only in the event that:
(a) An Event of Default has occurred as provided in Section 7.1 and the
Non-
25
Defaulter elects to dissolve the Joint Venture as provided in
subsection 7.2.1. hereof; or
(b) The Joint Venturers mutually agree to terminate the Joint Venture; or
(c) The Joint Venture ceases to conduct its business operations.
Section 8.2. Procedure in Dissolution and Winding-Up
8.2.1. Dissolution. Upon dissolution of the Joint Venture pursuant to Section
-----------
8.1.1. hereof, the Committee shall immediately commence to wind-up its
affairs and the Joint Venturers shall proceed with reasonable promptness to
conclude the business of the Joint Venture.
8.2.2. Management. During the period of the winding-up of the affairs of the
----------
Joint Venture, the rights and obligations of the Venturers set forth herein
with respect to the management of the Joint Venture shall continue. For
purposes of winding-up, the Committee shall continue to act as such and
shall make all decisions relating to the conduct of any business or
operations during the winding-up period and to the sale or other
disposition of Joint Venture assets; provided that if the termination of
the Joint Venture results from an Event of Default, the Defaulter shall
have no further right to participate in the management or affairs of the
Joint Venture or to attend Committee meetings.
8.2.3. Allocation of Profits and Losses. Profits and losses of the Joint Venture
--------------------------------
following the date of dissolution shall be determined in accordance with
the provisions of
26
this Agreement in the same manner as if there were no dissolution and
winding-up.
8.2.4. Distributions in the Winding-Up. Cash or cash equivalents held by the
-------------------------------
Joint Venture shall be applied or distributed in winding-up in the
following order of priority:
(a) In payment of debts and obligations of the Joint Venture owed to
third parties, which shall include either Joint Venturer as the
holder of any secured loan;
(b) To the Joint Venturers, with 80% going to Zurich Commercial and
20% going to USI after Zurich Commercial has recouped its total
capital contribution.
8.2.5. Non-Cash Assets. Non-cash assets (including expirations) shall be applied
---------------
or distributed in the winding-up as follows:
(a) In the event debts or obligations of the Joint Venture to a third
party remain after the application of cash pursuant to subsection
8.2.4., other non-cash assets shall be liquidated and applied to
such debts or obligations.
(b) In the event non-cash assets remain after application as provided
in (a) above, such assets shall be distributed to the Joint
Venturers, with 80% going to Zurich Commercial and 20% going to
USI after Zurich Commercial has recouped its total capital
contribution.
27
Section 8.3. Disposition of Documents and Records
8.3.1. All documents and records of the Joint Venture including, without
limitation, all financial records, vouchers, canceled checks and bank
statements, shall be delivered to Zurich Commercial upon termination of the
Joint Venture. Said documents and records shall be available for
inspection, examination, and copying by USI upon reasonable notice.
ARTICLE IX
General
-------
Section 9.1. Notices
9.1.1. All notices under this Agreement shall be in writing and shall be
delivered by personal service, or by certified or registered mail, postage
prepaid, return receipt requested, to the Joint Venturers at the addresses
herein set forth and to the Joint Venture at its principal place of
business.
The addresses for notices are as follows:
Zurich Commercial:
Zurich Commercial
0000 Xxxxxxx Xxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel
USI:
USI of Illinois, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
28
9.1.2. All notices, demands and requests shall be effective upon being deposited
in the United States mail or with a nationally recognized courier service.
However, the time period in which a response to any such notice, demand or
request must be given shall commence to run from the date of receipt on the
return receipt of the notice, demand or request by the addressee thereof or
other proof of delivery. Rejection or other refusal to accept or the
inability to deliver because of changed address of which no notice was
given as provided in subsection 9.1.3. shall be deemed to be receipt of the
notice, demand or request sent.
9.1.3. By giving to the other party at least thirty (30) days' written notice
thereof, the Joint Venturers shall have the right from time to time and at
any time during the term of this Agreement to change their respective
addresses for notices and each shall have the right to specify as its
address for notices any other address within the United States of America.
Section 9.2. Governing Law
9.2.1. This Agreement and the obligations of the Joint Venturers hereunder shall
be interpreted, construed and enforced in accordance with the laws of the
State of New York.
Section 9.3. Entire Agreement
9.3.1. This Agreement contains the entire agreement between the parties hereto
relative to the formation of the Joint Venture. No variations,
modifications, or changes
29
herein or hereof shall be binding upon any party hereto unless set forth in
a document duly executed by or on behalf of both parties.
Section 9.4. Waiver
9.4.1. No consent or waiver, express or implied, by any Joint Venturer to or of
any breach or default by the other Joint Venturer in the performance by the
other of its obligations hereunder shall be deemed or construed to be a
consent or waiver to or of any other breach or default in the performance
by such other party of the same or any other obligations or such Joint
Venturer hereunder. Failure on the part of either Joint Venturer to
complain of any act or failure to act of the other Joint Venturer or to
declare the other Joint Venturer in default, irrespective of how long such
failure continues, shall not constitute a waiver by such Joint Venturer of
its rights hereunder.
Section 9.5. Severability
9.5.1. If any provision of this Agreement or the application thereof to any
person or circumstance shall be invalid or unenforceable to any extent, the
remainder of this Agreement and the application of such provisions to other
persons or circumstances shall not be affected thereby and shall be
enforced to the greatest extent permitted by law.
Section 9.6. Survival of Rights
9.6.1. Except as provided herein to the contrary, this Agreement shall be
binding upon and inure to the benefit of the parties signatory hereto,
their respective executors, legal representatives and permitted successors
and assigns.
30
Section 9.7. Equitable Remedies
9.7.1. The rights and remedies of either of the Joint Venturers hereunder shall
not be mutually exclusive (i.e., the exercise of one or more of the
provisions hereof shall not preclude the exercise of any other provisions
hereof). Each of the Joint Venturers confirms that damages at law will be
an inadequate remedy for a breach or threatened breach of this Agreement
and agrees that, in the event of a breach or threatened breach of any
provision hereof, the respective rights and obligations hereunder shall be
enforceable by specific performance, injunction or other equitable remedy,
but nothing herein contained is intended to, nor shall it, limit or affect
any rights at law or by statute or otherwise of any party aggrieved as
against the other for a breach or threatened breach of any provision
hereof, it being the intention by this Section to make clear the agreement
of the Joint Venturers that the respective rights and obligations of the
Joint Venturers shall be enforceable in equity as well as at law or
otherwise.
Section 9.8. Fees and Commissions
9.8.1. Each Joint Venturer hereby represents and warrants that there are no
claims for brokerage or other commissions or finder's or other similar fees
in connection with the execution of this Agreement insofar as such claims
shall be based on actions, arrangements or agreements taken or made by or
on its behalf, and each Joint Venturer hereby agrees to indemnify and hold
harmless the other Joint Venturer
31
from and against any liabilities, costs, damages and expenses from any
party making such claims through such Joint Venturer.
Section 9.9. Confidentiality
9.9.1. The parties recognize that during the operation of the Joint Venture each
may gain access to proprietary information of the other. The parties agree
to keep such information confidential and not to release or use such
information, except as is necessary to conduct the operation of the Joint
Venture. If either party has any question about whether certain information
is proprietary, it should seek the written permission from an authorized
representative of the other prior to disclosure to any third party. Each
party agrees to establish procedures to ensure confidentiality of
proprietary information.
Section 9.10. Counterparts
9.10.1. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original and all of which shall constitute
one and the same agreement.
Section 9.11. Further Assurances
9.11.1. Each party hereto agrees to do all acts and things and to make, execute
and deliver such written instruments as shall from time to time be
reasonably required to carry out the terms and provisions of this Agreement
and to enable each party to obtain the benefits of this Agreement provided
for it herein.
32
Section 9.12. Arbitration
9.12.1. If any dispute shall arise between the parties to this Agreement, either
before or after the termination of this Agreement, with reference to the
interpretation of this Agreement or the rights of either party with respect
to any transaction under this Agreement, the dispute shall be referred to
three arbitrators, one to be chosen by each party and the third by the two
so chosen. If either party refuses to or neglects to appoint an arbitrator
within thirty (30) days after the receipt of written notice from the other
party requesting it to do so, the requesting party may nominate two
arbitrators who shall choose the third. In the event the two arbitrators do
not agree upon the selection of the third arbitrator within thirty (30)
days after both arbitrators have been named, the Joint Venture shall
petition the American Arbitration Association to appoint an arbitrator.
Each party shall submit its case to the arbitrators within thirty (30) days
of the appointment of the arbitrators. The arbitrators are relieved of all
judicial formalities and may abstain from following the strict rules of
law. The decision of a majority of the arbitrators shall be final and
binding on all parties. Judgment may be entered upon the award of the
arbitrators in any court having jurisdiction. The expenses of the
arbitrators and of the arbitration shall be equally divided among the
parties. Any such arbitration shall take place in Chicago, Illinois unless
some other location is mutually agreed upon by the parties.
33
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date
set forth above.
Maryland Casualty Company
-------------------------
BY: /s/Xxxxx Xxxxxx
------------------------------
Xxxxx Xxxxxx, President & CEO
USI of Illinois, Inc.
---------------------
By: /s/Xxxxxx Xxxxx
------------------------------
Xxxxxx Xxxxx, President & CEO
34
