EXHIBIT 10.34
AGREEMENT
This Agreement ("Agreement") is made and effective this 10th day of
November, 2004, ("Effective Date") between the FLORIDA DEPARTMENT OF FINANCIAL
SERVICES, AS RECEIVER FOR AMERICAN SUPERIOR INSURANCE COMPANY ("American
Superior"), whose principal place of business is located at 0000 Xxxxxxx Xxxxxx,
X.X., Xxxxxxxxxxx, Xxxxxxx 00000 and NORTH POINTE CASUALTY INSURANCE COMPANY
("North Pointe"), whose administrative office is located at 00000 Xxxxxxxx Xxxx,
Xxxxxxxxxx, XX 00000-0000.
RECITALS
A. By the Order of Rehabilitation entered on September 29, 2004, the Circuit
Court of Xxxx County, Florida ordered the rehabilitation of American
Superior Insurance Company, a property and casualty insurance company, and
appointed the Florida Department of Financial Services as its Receiver
("Receiver"); and
B. Pursuant to the Order of Rehabilitation, the Florida Department of
Financial Services as Receiver is in possession of or is now acquiring
possession of the assets of American Superior and is administering those
assets under the general supervision of the Circuit Court; and
C. The Florida Department of Financial Services as Receiver has determined
that American Superior is insolvent and will petition the Circuit Court
for an Order of Liquidation and request the Circuit Court's approval to
cancel all policies 30 days from the date of that Order; and
D. American Superior has outstanding and in force insurance policies issued
pursuant to the company's underwriting guidelines, and is exiting this
business and canceling those policies pursuant to the Order of
Liquidation; and
E. North Pointe is willing to write new policies to replace the policies
currently underwritten by American Superior, marketing those policies by
an affiliate of North Pointe licensed in Florida as a managing general
agent under the conditions stated below; and
NOW, THEREFORE, in consideration of the mutual covenants and understandings
contained herein and upon the terms and conditions set forth below, the parties
hereto agree as follows:
ARTICLE I
DEFINITIONS:
"Agreement" means this Agreement.
"American Superior" means the Florida Department of Financial Services in its
capacity as Receiver of American Superior Insurance Company (in Rehabilitation),
a property and casualty insurance company domiciled in the State of Florida.
"BRT" means Business Risk Technologies, Inc.
"Circuit Court" means the Circuit Court of Xxxx County, Florida.
"Effective Date" means the effective date of this Agreement, November 10th,
2004.
"Executive Orders" mean those orders issued by the Governor of the State of
Florida restricting actions that can be taken by insurance companies in Florida
following Hurricanes Charley, Frances, Xxxx and Xxxxxx.
"Liability" means any liability, demand, claim, action or cause of action
arising out of or in connection with an insurance policy, including all claims
for credits due on the policy, refunds, commission claims of agents in
connection with, any premium tax related to, and any special, incidental,
consequential, extra-contractual or punitive damages arising out of, a policy.
"North Pointe" means North Pointe Casualty Insurance Company, a property and
casualty insurance company domiciled in the State of Florida.
"Notice" means any notice, consent, request, waiver, election and other
communication authorized, required or permitted to be given under this
Agreement.
"OIR" means the Florida Office of Insurance Regulation.
"Order of Liquidation" means the order for which the Circuit Court will be
petitioned to place American Superior in statutory liquidation.
"Order of Rehabilitation" means the order entered by the Circuit Court on
September 29, 2004 that ordered the rehabilitation of American Superior
Insurance Company and appointed the Florida Department of Financial Services as
Receiver.
"Policyholder" means each person identified as an insured in a currently
effective insurance policy written by American Superior.
"Pre-Existing Condition" means damage or loss to property that occurred while
that property was insured by an American Superior policy.
ARTICLE II
BUSINESS COVERED /TEMPORARY EXCEPTIONS:
North Pointe is not assuming any Liability relating to any American Superior
policy. North Pointe shall not become a successor in interest of American
Superior that may result in North Pointe assuming any obligation or Liability of
American Superior.
American Superior is not assuming any Liability relating to any North Pointe
policy. American Superior shall not be deemed a predecessor in interest of North
Pointe that may result in American Superior assuming any obligation or Liability
of North Pointe.
North Pointe (through its affiliate South Pointe Financial Services, Inc., a
Florida-licensed managing general agent) will offer a new policy of insurance
with an effective date being the 31st day following the date of the Order of
Liquidation to all of the Policyholders of American Superior's current in-force
policies (that is, the American Superior policies in effect at any time after
the entry of the Order of Liquidation), except those whose properties have a
Pre-Existing Condition. North Pointe will not offer coverage to a policyholder
with a Pre-Existing Condition until the policyholder submits to North Pointe a
written representation and warranty that the PreExisting Condition has been
repaired, together with a picture of the front and back of the insured property.
North Pointe retains the right to inspect the remedy of any such Pre-Existing
Condition, and is only required to offer replacement coverage if the remedy has
been performed to North Pointe's sole satisfaction.
ARTICLE III
MATERIALS TO BE SENT TO POLICYHOLDERS:
North Pointe and BRT shall cause to be issued and shall mail to each
Policyholder whose property does not have a Pre-Existing Condition the
following:
1. A letter from American Superior notifying the Policyholder that his
/ her policy is being canceled, informing them of this transaction
and introducing North Pointe as the replacement insurer. This letter
will include information on obtaining a new policy and receiving an
unearned premium refund.
2. An introduction letter to each Policyholder from North Pointe.
3. A remittance letter to the Policyholder.
4. A premium quote based on North Pointe's premium rates.
5. A pre-filled application for each new policy to be offered by North
Pointe.
6. A pre-stamped envelope addressed to North Pointe.
For those Policyholders with a Pre-Existing Condition, American Superior will
send:
1. A letter from American Superior notifying the Policyholder that his
/ her policy is being canceled, informing them of this transaction
and introducing North Pointe as the replacement insurer. This letter
will include information on the necessity of remedying the
Pre-Existing Condition prior to being eligible for obtaining a new
policy and receiving an earned premium refund.
2. A letter from North Pointe instructing them to contact their agent
or North Pointe when their Pre-Existing Condition has been remedied.
All of these materials will be in a form to be agreed to by the parties, and
will be sent in a single mailing to be made out of the American Superior offices
no later than November 30, 2004. Within seven (7) days of that mailing, BRT will
cause to be bulk shipped to North Pointe a copy of each application, premium
quote and remittance letter mailed to these Policyholders. American Superior is
responsible for providing the letters identified in the two Item 1 descriptions
above. BRT has provided certain information systems for American Superior. BRT
must provide certain additional services for American Superior and for North
Pointe in order for the parties to be able to perform under this Article III.
North Pointe's agreement with BRT for these services is at Attachment 1.
American Superior intends to enter into an agreement with BRT that will provide
the means for American Superior to perform under this Article. The parties
acknowledge that the accuracy and timing of North Pointe's offer of insurance to
the American Superior policyholders depends upon BRT's performance under its
agreements with North Pointe and American Superior. If BRT does not generate
information on these policyholders accurately or timely, or if BRT does not
provide this information at all, North Pointe will be forced to recreate
American Superior's records through whatever information may be available and
contacts with insurance agents. If this occurs, while North Pointe will not be
able to control the accuracy and timing of its offer of insurance to the
American Superior policyholders, it will correct any error of which it is made
aware, and in doing so will not be deemed to have breached this Agreement.
Nothing in this Agreement will be construed to prohibit North Pointe from
offering coverage to Policyholders whose policies will expire before the 30th
day after the entry of the Order of Liquidation.
ARTICLE IV
INDEMNIFICATION:
North Pointe will hold harmless and indemnify American Superior from and against
any liability, cost or expense (including reasonable fees of legal counsel and
related disbursements) incurred by American Superior as a result of or related
to: (a) North Pointe's breach of any term contained in this Agreement; (b) any
demands, claims, actions or cause of actions arising out of or in connection
with an insurance policy written by North Pointe; (c) North Pointe's negligent
or wrongful performance or non-performance of its obligations pursuant to this
Agreement or any other agreement provided for or contemplated in this Agreement;
and (d) any demands,
claims, actions or cause of actions against American Superior caused by North
Pointe's act or omission. Notwithstanding anything in this Agreement to the
contrary, North Pointe will not be required to indemnify American Superior for
any demands, claims, actions or cause of actions against American Superior
caused by American Superior's act or omission.
American Superior will hold harmless and indemnify North Pointe from and against
any liability, costs or expense (including reasonable fees of legal counsel and
related disbursements) incurred by North Pointe as a result of or related to:
(a) American Superior's breach of any term contained in this Agreement; (b) any
demands, claims, actions or cause of actions arising out of or in connection
with an insurance policy written by American Superior; (c) American Superior's
negligent or wrongful performance or non-performance of its obligations pursuant
to this Agreement or any other agreement provided for or contemplated in this
Agreement; and (d) any demands, claims, actions or cause of actions against
North Pointe caused by American Superior's act or omission. American Superior
will not indemnify North Pointe for any demands, claims, actions or cause of
actions against North Pointe caused by North Pointe's act or omission
ARTICLE V
CONSIDERATION:
As consideration for the information received from American Superior is used for
the new policies which North Pointe writes, North Pointe agrees to pay to
American Superior the amount of Two Dollars ($2.00) per policy within 60 days of
North Pointe issuing a new policy and receiving its first payment on that policy
ARTICLE VI
REGULATORY MATTERS:
North Pointe will comply with the OIR's Consent Order duly issued pertaining to
approval of this Agreement. The form of Consent Order to be entered is at
Attachment 2.
ARTICLE VII
FURTHER INSTRUMENTS:
The parties hereto agree to execute and deliver such further instruments and do
such further acts as may be reasonably necessary and proper to carry out the
purposes of this Agreement.
ARTICLE VIII
PARTIAL INVALIDITY:
If any court holds any provision of this Agreement or its applicability to any
person or circumstance invalid, the remainder of this Agreement, including the
remainder of the section in which such provision appears, or the applicability
of such provision to other persons or circumstances, shall not be affected
thereby.
ARTICLE IX
ENTIRE UNDERSTANDING:
This Agreement contains the entire understanding of the parties with respect to
the subject matter hereof; there are no restrictions, promises, warranties,
covenants or undertakings with respect to such subject matter, other than those
expressly set forth herein; and this Agreement supersedes all prior agreements
and understandings between the parties with respect to such subject matter.
ARTICLE X
BURDEN AND BENEFIT:
This Agreement is binding on and shall inure to the benefit of the parties
hereto, their successors and assigns.
ARTICLE XI
COUNTERPARTS:
This Agreement may be executed in several counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
instrument.
ARTICLE XII
NOTICES:
All Notices authorized, required or permitted to be given under this Agreement
shall be addressed as follows:
If to North Pointe:
North Pointe Casualty Insurance Company
00000 Xxxxxxxx Xxxx
X.X. Xxx 0000
Xxxxxxxxxx, XX 00000-0000
Attention: B. Xxxxxxx Xxxxxxx, Executive Vice-President
If to American Superior:
The Florida Department of Financial Services as Receiver for
American Superior Insurance Company
X.X. Xxx 000
Xxxxxxxxxxx, XX 00000-0000
Attention: Xxxx Xxxxxxxxx, Director of Estate Management
All Notices must be given in writing, mailed by first class registered or
certified mail, and shall be deemed to be received three (3) days after the day
of mailing. Either party may change its address for the receipt of Notices or
the party to whose attention Notices are sent at any time by giving notice
thereof to the other party hereto. In the event that any legal process, notice,
or regulatory bulletin, is served on one party in a legal action or proceeding
against the other party, or for any other reason whatsoever, the party receiving
the process, notice or regulatory bulletin shall promptly and forthwith forward
such process, notice or bulletin to the other party as directed above, via
registered or certified mail, and with an additional copy sent via fax.
ARTICLE XIII
NO INTERMEDIARY:
The parties represent and warrant to each other that no intermediary was
involved in the transactions contemplated by this Agreement nor are any payments
being made as a result of the transactions contemplated by this Agreement.
ARTICLE XIV
NO THIRD PARTY BENEFICIARIES:
This Agreement shall not confer any rights or remedies upon any person other
than the parties and their respective affiliates or successors.
FLORIDA DEPARTMENT OF FINANCIAL SERVICES
AS RECEIVER FOR AMERICAN SUPERIOR INSURANCE COMPANY
By: /s/ Xxxx Dates Witness: /s/ Xxxxx Xxxxx
-------------------------------- --------------------------------
Title: Special Deputy Receiver Date: 11-10-04
Date: November 10th 2004
NORTH POINTE CASUALTY INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx Witness: /s/ Xxxxxx X. Xxxxxxxx
-------------------------------- --------------------------------
Title: President Date: 11-10-04
Date: 11/10/04
7
