EXHIBIT 10(p)
GENERAL AGENCY AGREEMENT
THIS AGREEMENT is made effective March 1, 1993 between the Insurance
Companies subscribing hereto, (collectively hereinafter referred to as "the
Company") and Warrantech Automotive, Inc., 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000 (hereinafter referred to as the "General Agent".)
WITNESSETH: In consideration of the mutual covenants and promises herein
contained, the parties hereto agree as follows:
1. APPOINTMENT: Subject to the terms and conditions of this Agreement, the
General Agent is hereby appointed to solicit, bind, write
and administer insurance as expressly set forth in Addendum
A to this Agreement. The General Agent hereby accepts such
appointment, and agrees to perform faithfully the duties
thereof to the best of its knowledge, skill and judgment.
2. TERMS The word "Agreement" herein shall be
OF THE understood to include any and all
AGREEMENT: Addenda attached in accordance with the terms and conditions
herein specified.
3. TERRITORY: The territory within which the General Agent shall operate
is as defined in Addendum A. Such territory is not assigned
exclusively to the General Agent. General Agent and Company
have agreed to certain rights of first refusal as contained
in the Securities Purchase Agreement, dated as of July 1,
1991, among Warrantech Corporation, Xxxx San Xxxxxxx,
Xxxxxxx Xxxxx, Xxxxxxx X. Xxxxx, and American International
Group, Inc.
4. RELATIONSHIP: Nothing herein contained shall be construed to create the
relation of employer and employee between the General Agent
and the Company or between the Company and any of the
General Agent's employees or representatives. It is the
express intent of the parties hereto that the General Agent
is not an employee of the Company for any purpose, but is an
independent contractor for all purposes and in all
situations. The General Agent shall not represent that he
is an employee of the Company, nor shall he in any manner
hold himself out to be an employee of the Company.
The General Agent shall be free to exercise independent
judgment as to the place and manner of soliciting insurance
and servicing policyholders; however, the General Agent
shall perform its duties at all times in accordance with
this Agreement.
5. AUTHORITY OF The General Agent shall have no power or
THE GENERAL authority other than as granted and set
AGENT: forth herein and no other or greater power shall be implied
from the grant or deal of powers specifically mentioned
herein. The General Agent shall have no power or authority
on lines of business other than those set forth in the
attached Addendum A.
6. ADMINISTRA-
TIVE SERVICES The General Agent shall perform the
OF THE following administrative services on behalf
GENERAL AGENT of the Company:
A. Assist Company to develop underwriting and Producer
Guidelines and modifications thereof for the
underwriting program, to be approved by the Company in
writing prior to use, which use shall include
advertising, program implementation, and binding
insurance coverage.
B. Process applications for insurance.
C. Collect and account for premises.
D. Rate, quote and issue policies of insurance, and
certificates of insurance consistent with Company's
rate, rule and form filings made or adopted in writing
by Company, and the authority granted herein, as well
as to provide policy information services for insureds.
E. The General Agent shall have no authority to make
modifications in underwriting or binding coverage not
already approved by Company in Addenda, Underwriting
Guideline or related manual without prior written
approval of Company.
F. Develop and maintain proper underwriting files on
behalf of Company which become the property of Company,
except as to the ownership of expirations which are the
property of the General Agent if the General Agent has
paid all monies owed to Company if the General Agent
has performed faithfully all duties set forth in this
Agreement.
G. Use best efforts and good faith to achieve an
underwriting profit on all business placed with
Company.
H. Provide proper and timely cancellation or non-renewal
notice to policyholders, certificate holders and
regulatory bodies as required by the policy, and
statute or regulation, any regulatory order or by the
Company.
I. Remit premiums received net of the compensation due to
General Agent, according to the provisions of the
Paragraph entitled "Premiums", below.
7. LIMITATION In addition to any other Limitations expressly
OF or impliedly contained in this Agreement,
AUTHORITY: any exhibits or addendum thereto or any Underwriting
Guideline, bulletin or instruction which may be issued from
time to time by the Company to General Agent, the General
Agent has no authority to act as outlined below:
A. Make, accept or endorse notes or otherwise incur any
liability which is not incurred in the ordinary course
of business of the General Agent on behalf of the
Company, pursuant to the terms and conditions of this
Agreement.
B. Waive a forfeiture or issue a guaranty on behalf of the
Company other than as permitted expressly in writing by
the Company.
C. Extend the time for the payment of premiums or other
monies due the Company.
D. Institute, prosecute, defend or maintain any legal
proceedings in connection with any matter pertaining to
the Company's business, except as may be otherwise
authorized in the Agreement and Addenda thereto.
E. Directly or indirectly solicit, sell, offer, bind,
issue, or deliver any insurance at any reduction or
deviation from the rates, terms or conditions specified
therefor by the Company, and shall adhere strictly to
the rates and forms promulgated and filed by the
Company.
F. Transact business in contravention of the rules and
regulations of any Insurance Department and/or other
governmental authorities having jurisdiction of the
subject matters embraced within this Agreement; all
instructions issued by the Company; and the applicable
laws of any jurisdiction concerned.
G. Hold himself out as an agent of the Company in any
other manner, or for any other purpose than is
specifically prescribed in this Agreement.
H. Waive premium payment.
I. Withhold any monies or property of the Company.
J. Offer or pay any rebate of premium.
K. Negotiate or place any reinsurance on behalf of Company
or any insurance company represented by Company whether
such reinsurance is elective or required by the
Underwriting Guidelines.
L. Bind coverage subsequent to effective date without
prior written approval of Company, except during the
fifteen (15) day period after the coverage effective
date but only if the insured has warranted in writing
that there are no known losses. Provided, that a
policy may cover Service Contracts issued prior to the
effective date of the Policy if the VSCs are issued to
current model vehicles and if the Insured warrants no
known losses.
M. Effect or authorize a flat cancellation more than
thirty (30) days after the effective date without prior
written approval of Company. In the event of such flat
cancellation, the General Agent shall document the
existence of substituted coverage or other reasons why
Company has no liability for payment of loss while
coverage was in force.
N. The General Agent shall not reinstate policies or
certificates cancelled by Company for other than non-
payment of premium without the prior written approval
of Company.
O. The General Agent shall have no authority to assign or
delegate its rights and duties hereunder or to appoint
sub-agents for Company without prior written approval
of Company, although the General Agent may employ other
entities to assist it in the performance of its duties
under this Agreement.
P. The General Agent may endorse checks payable to Company
or any insurance company represented by Company.
Q. The General Agent shall not bind coverage hereunder if
the General Agent is aware that the risk was previously
declined or cancelled by any office of the Company, its
affiliates or subsidiaries, without disclosing such
prior declination or cancellation to the Company.
8. CLAIMS A. Except as may otherwise be authorized in an Addendum
AUTHORITY: to this Agreement, the General Agent shall have no
authority to investigate, defend, approve or deny any
Claim made against the Company or an insurance company
represented by the Company or under any policy issued
pursuant to this Agreement and the General Agent shall
have no authority to assign an adjuster or attorney to
investigate or defend any claims.
B. The General Agent agrees to give Company prompt written
notice of any claim,
demand, action, suit or proceeding raised, brought,
threatened, made or commenced against the Company or an
insurance company represented by Company that relates
to any matter to which the provisions of this Agreement
shall apply.
C. The General Agent agrees to cooperate fully in the
investigation and adjustment of all claims against
insurance companies represented by Company and on
policies issued pursuant to this Agreement.
D. The General Agent agrees to send to offices designated
by Company copies of all binders, policies,
endorsements and evidence of cancellations within
thirty (30) days of the effective date of such binder,
policy, endorsement or cancellation.
[PARAGRAPH 9 HAS BEEN REDACTED AND FILED SEPARATELY AS
PART OF A CONFIDENTIALITY REQUEST WITH THE COMMISSION.]
10. ADVERTISING The General Agent shall use no advertising
AND material, prospectus, proposal, or
REPRESEN- representation, either in general or in
TATION: relation to a particular policy of the Company, or use
its name or the name or concerning any of its
affiliates or member companies, or associated
companies, unless furnished by the Company or until the
consent of the Company thereto in writing shall have
first been secured. Such approval shall not in any
event be construed as charging or binding the Company
to bear any part of the cost or expenses thereof. The
General Agent shall not issue or circulate any
illustration, circular, statement or memorandum of any
sort misrepresenting the terms, benefits, or advantages
of any policy issued by the Company or make any
misleading statement as to the financial security of
the Company.
11. RULES AND The General Agent shall comply with and
REGULATIONS: be bound by all of the Underwriting Guides, rules,
bulletins, manuals or other written instructions issued
by the Company now in force as they hereafter may be
amended or supplemented, and all applicable laws and
regulations of the appropriate jurisdiction.
12. LICENSING A. The General Agent warrants that it
AND now has and shall maintain during
COUNTER- the term of this Agreement the
SIGNATURE license or licenses necessary to
REQUIREMENTS: place the business described in this Agreement.
In the event the General Agent will comply with
licensing laws by utilizing the license of a
principal, director, officer, or employee then
General Agent promises, warrants and guarantees
that the licenses will comply with all
requirements of this Agreement and specifically
with this Paragraph. The General Agent is
responsible for all damages, penalties, fines and
liabilities incurred by said parties and for which
the Company is responsible to the same extent as
if the applicable license was held directly by the
General Agent. In the event that any license the
General Agent utilizes to fulfill the requirements
of the Agreement expires, terminates or is
suspended for any reason, this Agreement
terminates automatically and the Company may avail
itself of any rights provided under the paragraph
entitled "Termination."
The General Agent shall be responsible to assure
that all business is properly countersigned. The
General agent shall be responsible for and pay any
necessary countersignature expense. The Company
shall not be responsible for payment of any
countersignature expense.
13. PREMIUMS: A. The General Agent agrees to pay Company all
insurance charges and all premiums on business
produced by the General Agent on behalf of
Company, whether or not collected by the General
Agent from insured. General Agent does not
possess the funds collected for any other reason.
All such premiums received by the General Agent
pursuant to this Agreement shall be held by the
General Agent in a fiduciary capacity as trustee
for Company. The privilege of taking commissions
from premium monies received by the General Agent
shall not be construed as an alteration of this
fiduciary capacity.
B. All monies received on behalf of the Company shall
be promptly deposited in a fiduciary account in a
bank which is a member of the Federal Reserve
System, and shall be invested in the following
types of accounts and/or instruments and no other:
demand accounts, time accounts and certificates of
deposit. General Agent will cooperate with
Company if Company attempts to perfect a security
interest in the account and/or instrument. The
General Agent shall not commingle any premium
monies collected pursuant to this Agreement with
operating funds or funds held by the General Agent
in any other capacity. The General Agent must
procure and maintain a fiduciary account dedicated
to funds held for policies written for the Company
and its affiliates. The General Agent may retain
any interest or income earned from such
investments. Withdrawals from bank accounts must
be in accordance with the laws of the various
states and this Agreement. The net amounts due to
Company shall be forwarded to Company, as
described in this Agreement.
C. The General Agent shall submit to Company all
binders, policies, endorsements and cancellations
within twenty five (25) days of the issue date of
the binder, policy, endorsement or cancellation,
respectively.
D. The General Agent shall submit to Company a
detailed and itemized monthly Account Current of
all premiums written and premium adjustments made
(whether additional or return) with respect to all
business and transactions received and processed
in that month not later than the twenty-fifth day
of the subsequent month. For example, binders,
policies, monthly reports and endorsements
received and processed in December accounting are
to be reported no later than January 25. However,
the Company shall have the privilege, exercisable
at its option, of preparing the Account Current.
Provided, that General Agent shall have the right
to accept business up to ninety (90) days after
the business effective date and place the business
on the Account Current up to (90) days after the
business effective date.
E. Premiums on each binder, policy or transaction are
due within twenty-five (25) days after the end of
the month in which the binder, policy or
transaction was received and processed.
Additional premiums developed by adjustments are
due within twenty-five (25) days after the end of
the month in which policy, binder, or transaction
was received and processes. General Agent will
issue binders, policies and endorsements for the
purpose of providing coverage to Automotive
Dealers for VSCs they may issue. The issuance of
a VSC is an event that requires reporting and
payments of premiums under Company's policy(ies).
F. The General Agent agrees to provide Company with
all pertinent statistical information as requested
by Company in the form required by Company within
a reasonable time.
G. The General Agent shall be responsible for
conducting a quality assurance program for all
premium, accounting and statistical reports and
all policy transactions to assure compliance with
all terms of this Agreement and reconciliation
procedures.
H. If the General Agent is delinquent in either
accounting for or payment of monies due to
Company, then Company may, by written notice to
the General Agent, avail itself of any remedies
contained in this Agreement, and specifically the
remedy contained in Section 20, Termination.
I. The Company may offset any balance or balances due
from the General Agent under this Agreement with
any balance Company holds due the General Agent.
14. BOOKS, The General Agent shall keep complete and
ACCOUNTS, and accurate records of the business
AND RECORDS: transacted by him under this Agreement, including but
not limited to all policy and premium records during
the term of this Agreement and for seven (7) years
thereafter and shall forward to the Company such
reports of said business as the Company may prescribe.
The General Agent shall be responsible for retaining
all policy and premium records on behalf of Company in
hard copy form, microfilm and/or other generally
accepted information storage medium, as well as in any
reasonable back-up form requested by Company for the
period described above. The Company shall have the
right to examine said books, files and records at any
time and to make such records as it may deem necessary.
All books, accounts, or other documents relating to the
business of the Company, except computer software
systems, are the property of the Company whether paid
for by it or not. The books and accounts of the
Company shall be accepted as full and final evidence in
all matters relating to this Agreement.
The provisions of this Section, which are binding upon
the parties subsequent to the termination of this
Agreement, shall survive such termination until all
obligations are finally discharged.
Company may examine all books and records of the
General Agent shall forward to Company all supplies and
policy files pertaining to the terminated Underwriting
Program and shall return all unused policy forms with
an accounting of all such policies provided to the
General Agent.
15. CURRENCY: Unless otherwise specified in the Addenda to this
Agreement, all transactions will be reported and paid
in U.S. dollars.
16. EXPENSES: [THIS PARAGRAPH HAS BEEN REDACTED AND FILED SEPARATELY
AS PART OF A CONFIDENTIALITY REQUEST WITH THE
COMMISSION.]
The General Agent shall not charge or commit the
Company to any expense, agreement, payment, debt or
obligation other than the insurance expressly described
in the Addenda hereto which the General Agent is
authorized to write.
17. SUPPLIES: The ownership of all books, supplies, undelivered
policies, or other property furnished by the Company to
the General Agent shall be vested in the Company, and
these shall be delivered to the Company or its
authorized representatives immediately upon the
termination or cancellation of this Agreement or at any
time upon the request of the Company. The General
Agent agrees, without expense to the Company, to
surrender the same peaceably. The General Agent has no
authority to release blank policy or certificate
supplies to sub-brokers or sub-agents. The General
Agent must keep a policy register an all voided
policies must be returned to the Company every thirty
(30) days.
18. COMPANY'S The Company shall have the right at any
RIGHT TO time to cancel or non-renew any policies
CANCEL OR or contracts of insurance issued by the
NON-RENEW: General Agent under this Agreement. The Company
reserves the right to withdraw authority at any time
from the General Agent by written notice effective
immediately to solicit, bind, or write any one or more
particular lines or classes of insurance and to decline
to accept any particular risk or class of risk.
19. COMPENSATION: Subject to the provisions hereof, the General Agent's
sole remuneration for all services that the General
Agent may perform for the Company shall be its
commissions at the rates set forth on the attached
Addendum A.
[TWO PARAGRAPHS REDACTED AND FILED SEPARATELY AS PART OF
A CONFIDENTIALITY REQUEST FILED WITH THE COMMISSION.]
20. TERMINATION: Either party hereto shall have the right at any and all
times to terminate this Agreement by written notice
specifying the effective date of termination, which
shall be not less than one hundred twenty (120) days
thereafter, such notice to be by certified mail, return
receipt requested, to the other party at its address
hereinabove set forth. Any such termination shall not
affect the rights and obligations of the parties hereto
as to transactions, acts, or things done by either
party prior to the effective date of termination.
This Agreement shall terminate automatically in the
event that reinsurance purchased by Company, which
Company considers to be an integral part of the
underwriting program, has been restricted or cancelled
by reinsures, in which case, General Agent has thirty
(30) days to replace the reinsurer(s) cancelled,
subject to the approval of the Company of their terms
and conditions.
In the event General Agent fails to replace the
reinsurer(s) to Company's satisfaction, then this
Agreement is deemed cancelled as of the thirty days
after cancellation by reinsurer(s). At the Company's
option this Agreement may be terminated immediately
upon notice to General Agent in the event of (1)
suspension or revocation of the General Agent's license
by any insurance regulatory authority but this
provision shall apply only to the state(s) or
jurisdiction(s) in which the suspension or revocation
occurs, however Company may investigate to determine
whether the violation occurred within other states and
is so, may suspend General Agent in those other states
which have initiated proceedings to revoke the
applicable license; (2) the commission of a fraudulent
act or illegal conduct by General Agent; (3) the
General Agent becoming insolvent or bankrupt or
committing an act of bankruptcy or making an assignment
for the benefit of creditors; (4) the General Agent's
intentional violation of the Underwriting Guidelines or
rules of the Company in connection with the
underwriting program involved or intentionally violates
any provision of this Agreement; (5) a material or
significant change in the ownership of the General
Agent that may influence a material change in General
Agent's business practices or procedures or that may
materially increase Company's potential liability under
this Agreement, as may be determined in the sole
discretion of Company; (6) the execution of an
agreement of sale, transfer or merger of Agent without
transfer or merger of Agent without prior notice to and
consent of Company. (7) the willful misappropriation by
General Agent of funds or property of Company; (8) The
willful or grossly wanton and willful commission of any
act or omission determined by the Company to be
detrimental to its best interest.
At the option of the Company, this Agreement may be
terminated in the event
of (1) a negligent misapplication or misdirection by
General Agent of funds or property of the Company; (2)
the General Agent's negligent failure to act in
compliance with the Underwriting Guidelines or rules of
the Company in connection with the underwriting program
involved; (3) the General Agent failing to remit
premiums when due; or (4) the General Agent negligently
commits a violation of or allows non-performance of any
other provision of this Agreement not provided for
above; PROVIDED HOWEVER, that the Company shall permit
the General Agent to rectify such breach, or
non-performance, or violation or any act or violation
of this paragraph within ten (10) business days after
receipt of written notice from Company or, where cure
would take longer, to commence to cure within (5)
business days and continues in good faith to cure
thereafter, to Company's satisfaction. The period for
General Agent to cure is thirty (30) days unless
otherwise agreed to by the Company in writing.
Upon termination of this Agreement, unless otherwise
stipulated by the Company the General Agent shall
account to the Company for all premiums or other
transactions unaccounted for at the time of termination
or arising thereafter with respect to insurance covered
by this Agreement.
If this Agreement is terminated and the General Agent
has paid to Company all monies owing to the Company,
the expirations on business written pursuant to this
Agreement shall remain the property of the General
Agent. If the General Agent is in default on the
payment of monies to the Company under the terms of
this Agreement for any reason, any and all expirations
or other business shall become the property of the
Company upon the termination of this Agreement. The
General Agent shall receive no commissions for premiums
which the General Agent fails to collect and which the
Company collects but the
General Agent shall receive credit for the premium in
their mutual account.
All termination provisions of this Paragraph are
subject to the law of the jurisdiction applicable to
this termination.
After the effective date of termination of this
Agreement, the General Agent shall neither issue any
new policies nor bind any new insurance on behalf of
the Company, nor extend, renew or increase the
Company's liability on any existing policy or binder,
but at the Company's option and except as aforesaid,
all of the General Agent's powers and authorities and
all of the rights and obligations of the parties
hereto, including the collection of premiums and the
accounting of premiums and commissions and settling of
all balances, shall remain in full force and effect
until all liabilities of the Company under all policies
issued by the General Agent hereunder are finally
discharged. Company retains the right to cancel or
non-renew any policy written by the General Agent for
any reason permitted by law.
If Company terminates this Agreement and all Addenda
under paragraphs 1 & 4 of Section 20 ("Termination")
and by doing so terminates the binding and underwriting
of automobile warranties and/or automobile warranty
insurance for all programs provided by Administrator,
then Company shall allow a one-year grace period for
Administrator to continue to bind and underwrite for
the Company. The grace period will not limit Company's
right to choose a different Administrator for all or
part of the grace period to provide claims
administration, or binding and/or underwriting
automobile warranties and/or automobile warranty
insurance.
After the end of the one-year grace period, any and all
right, option, power or authority to solicit, bind, or
write automobile warranties and/or automobile warranty
insurance held by Administrator shall cease and shall
be of no further force and effect. Authority to
perform claims administration is covered by Addendum B.
21. INDEMNIFI- The General Agent agrees to indemnify and
CATION: save the Company, its affiliates and subsidiaries and
their officers, directors, and employees harmless from
any damage and against any liability for loss, cost,
expenses, fines, penalties, including punitive or
exemplary damages and all cost of defense: (i)
resulting from any act, error or omission, whether
intentional or unintentional, by the General Agent and
its officers, directors, employees, and its
sub-producers, related to or which arise out of the
business covered by this Agreement, except for those
acts, or omissions requested or authorized in writing
by Company, or (ii) resulting from any obligation, act
or transaction created or performed by the General
Agent in violation of, in excess of, or in
contravention of the power and authority of the General
Agent set forth in this Agreement.
The General Agent will choose defense counsel for all
lawsuits hereunder, subject to approval of the counsel
of the Company and defend itself and the General Agent
will pay all expense. The Company shall decide in its
sole opinion whether claims or suits may be settled.
However, if General Agent agrees to pay a settlement
and if Company refuses to agree, Company shall pay all
further attorneys' fees if the lawsuit settles for a
greater amount than what General Agent agreed to.
The General Agent expressly authorizes the Company
without precluding the Company from exercising any
other remedy it may have, to charge against all
compensation due or to become due to the General Agent
under this Agreement any monies paid or liabilities
incurred by the Company by reason of any occurrence
described herein. The Company shall provide General
Agent with written notice if the Company intends to
exercise its rights hereunder.
22. ASSIGNMENT: No assignment of this Agreement, or of any commissions
or fees hereunder shall be valid unless authorized in
advance in writing by the Company. Every assignment
shall be subject to any indebtedness and obligation of
the General Agent that may be due or become due at any
time.
23. AMENDMENT: This Agreement cannot be amended by any subsequent
practices or courses of dealing by the parties
inconsistent herewith. No oral agreement or
representation concerning this Agreement or the General
Agent's relationship to the Company shall be binding on
the Company. Any amendment to this Agreement must be
in writing and signed by an officer of the Company and
General Agent. If Company proposes an amendment,
Company must give General Agent fifteen (15) days'
written notice.
24. NOTICE: All notices required or permitted to be given hereunder
shall be in writing and shall be given as follows:
A. If given by the Company:
Mailed by certified mail to the General Agent at
its address: 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xx.
00000, Attention: Chief Executive Officer with
copies to Warrentech Automotive, Inc., 000
XxxxXxxx Xxx, Xxxxxx, XX. 00000 Att: General
Counsel, and to Newman, Tannenbaum, Helpern,
Syracuse and Hirschtritt, 000 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000 or to such other address as
the General Agent may have previously specified to
the Company in writing; or
B. If given by the General Agent:
Mailed by certified mail, to the Company's office
as hereinabove specified and copy to American
International Group, Inc., Attn: General Counsel,
00 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000
25. SERVICE In the event any legal process or
OF notice is served on the General Agent
PROCESS: in a suit or proceeding against the Company, the
General Agent shall forthwith forward such process
or notice to American International Group, Inc. at
00 Xxxx Xxxxxx (Xxxxxxx Xxxxxxx), Xxxx xx Xxx
Xxxx, Xxxxxx of Xxx Xxxx, Xxxxx xx Xxx Xxxx 00000,
by Registered Mail.
In the event any legal process or notice served on
the Company in a suit or proceeding against the
General Agent, the Company shall forthwith forward
such process or Notice to 000 Xxxxxxxx Xxxxxx,
Xxxxxxxx, Xx. 00000, Attention: Chief Executive
Officer, with copies to Warrentech Automotive,
Inc., 000 XxxxXxxx Xxx, Xxxxxx, Xx. 00000 Att:
General Counsel, and to Newman, Tannenbaum,
Helpern, Syracuse and Hirschtritt, 000 Xxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
26. WAIVER: No waiver or modification of this Agreement shall
be effective unless it be in writing and signed by
a duly authorized officer of the Company and
General Agent. The failure of the Company to
enforce any provision of this Agreement shall not
constitute a waiver by the Company of any such
provision. The past waiver of a provision by the
Company shall not constitute a course of conduct
or a waiver in the future of that same provision.
27. CHOICE OF The laws of New York shall govern all
LAWS, VENUE, matters concerning the validity,
JURISDICTION: performance, and interpretation of
this Agreement. The Venue for any action in law
or equity between the parties shall be designated
exclusively as the Supreme Court of the State of
New York, County of New York. The parties consent
to the jurisdiction of the Supreme Court of the
State of New York for any action between the
parties in law or equity.
28. DIVISIBILITY: If any separable provision hereof shall be held to
be invalid, or unenforceable under the laws or
Insurance Department regulations now or hereafter
in effect in the jurisdiction governing this
Agreement, such invalidity or unenforceability
shall not affect any other provisions hereof.
29. REGULATORY The General Agent shall forward
NOTICES: promptly to the Company all correspondence
pertaining to this Agreement received from any
government regulatory agency.
30. MERGER: This instrument with Addenda attached embraces the
entire Agreement between the parties and
supersedes all previous Agreements entered into
between the parties hereto, and any prior
statements, agreements or representations between
the parties are merged herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in
duplicate.
INSURANCE COMPANIES SUBSCRIBING
THIS AGREEMENT
______________________________ ______________________________
(Date) (Name)
_____________________________ ______________________________
(Title)
______________________________
(Name)
______________________________
(Title)
NEW HAMPSHIRE INSURANCE
COMPANY
(Name of Company)
_______________________________
(Address)
Subscribed and sworn to before me this _____ day of _______________, 19___.
My commission Expires:
_______________________________
(Notary Public)
_______________________________ ________________________________
(Date) (Name)
________________________________
(Title)
________________________________
(Name)
________________________________
(Title)
ILLINOIS NATIONAL
INSURANCE COMPANY
--------------------------------
(Name of Company)
________________________________
(Address)
Subscribed and sworn to before me this ___ day of
___________, 19___.
My commission Expires: ________________________________
________________________________
(Notary Public)
_______________________ ________________________________
(Date) (Name)
________________________________
(Title)
AMERICAN HOME ASSURANCE
-----------------------
COMPANY
-----------------------
(Name of Company)
________________________________
(Address)
Subscribed and sworn to before me this ___ day of _________, 19___.
My commission Expires: _______________________________.
_______________________________
(Notary Public)
__________________________ _______________________________
(Date) (Name)
_______________________________
(Title)
____________________________ _______________________________
(Date) (Name)
_______________________________
(Title)
NATIONAL UNION FIRE INC.
COMPANY OF LOUISIANA
-------------------------------
(Name of Company)
_______________________________
(Address)
Subscribed and sworn to before me this ____ day of
____________, 19 ____.
My commission Expires: _______________________________.
_______________________________
(Notary Public)
FOR THE GENERAL AGENT
_____________________________ _____________________________
(Date) (Name)
_____________________________
(Title)
____________________________
(Name)
____________________________
(Title)
____________________________
(Name of Company)
____________________________
(Address)
Subscribed and sworn to before me this ___ day of ___________, 19___.
My commission Expires: ____________________________.
____________________________
Notary Public
ADDENDUM A (4 PAGES) REDACTED IN ITS ENTIRETY AND FILED SEPARATELY AS PART OF
A CONFIDENTIALITY REQUEST FILED WITH THE COMMISSION.
ADDENDUM B
Effective this 1st day of March, 1994
BETWEEN
NEW HAMPSHIRE INSURANCE COMPANY, AMERICAN HOME ASSURANCE COMPANY, ILLINOIS
NATIONAL INSURANCE COMPANY AND NATIONAL UNION FIRE INSURANCE COMPANY OF
LOUISIANA of 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to
as the "Company"), and Warrantech Automotive, Inc. whose principal offices are
at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, (hereinafter collectively
referred to as the "Administrator").
WITNESSETH
In consideration of the mutual covenants and promises herein contained, the
parties hereto agree as follows:
APPOINTMENT
Subject to the terms, conditions and restrictions of this Agreement, the
Administrator is hereby appointed to perform all administrative services for the
servicing of and claim adjustments regarding the Company's Policies providing
coverage for claims involving Warrantech Automotive Vehicle Service Contract
Programs as defined therein.
The effective dates for providing services are as follows:
Warrantech Automotive Vehicle Service Contract - March 1, 1994
TERRITORY
This Agreement covers services rendered on claims arising from vehicle
services contracts coverage from contract holders in the United States and
Canada.
DEFINITION OF AGREEMENT
The word "Agreement" herein shall be understood to include any and all
Addenda and Exhibits attached in accordance with the terms and conditions herein
supplied. Any amendment to this Agreement shall be in writing and signed by an
officer of the parties.
RELATIONSHIP
Nothing herein contained shall be understood to create the relationship of
employer and employee between the Administrator and the Company or between the
Company and any of the Administrator's employees or representatives. It is the
express intent of the parties hereto that the Administrator is an independent
contractor for all purposes in all situations and it is not an employee of the
Company for any purpose.
COOPERATION
The Administrator and the Company agree to cooperate fully regarding this
Agreement.
AUTHORITY OF THE ADMINISTRATOR
The Administrator shall have no power or authority, other than for those
powers expressively granted and set forth herein. No other or greater power
shall be implied from the grant or denial of powers specifically mentioned
herein.
DUTIES OF THE ADMINISTRATOR
The Administrator is hereby authorized and obligated to perform the
following services for the Company:
1) Administrator will provide those claim services as are set forth in
paragraph 2. below (the "Basic Services") with respect to any claims made
under any of Company's policies to which this Agreement applies which (i)
involve an actual or alleged loss occurring under Company's policies and
(ii) are reported to Administrator after the date on which Administrator's
Claims Authority under provisions of this Exhibit commences.
2) The Basic Services to be rendered by Administrator with respect to any
claims described above ("Claims") shall be the following:
(a) To establish a file with respect to each Claim in accordance with the
instructions set forth by Company.
(b) To investigate all Claims.
(c) To document each claim file by a written chronology of all actions
taken with respect to underlying Claim, including but not limited to
disbursements.
(d) To furnish all claim forms necessary for proper Claims administration.
(e) To adjust compromise, settle, or resist all Claims and Lawsuits within
the discretionary settlement authority limit of Administrator as
hereinafter set forth ("Authority Limit").
(f) To adjust, settle or resist Claims in excess of the Authority Limit
only with the express prior approval of Company.
(g) To retain and then destroy files for each Claim in accordance with the
File Retention and Destruction Policy set forth in Client
instructions.
(h) To provide Company by the twenty-fifth (25th) day of each month with a
monthly automated EDP claims file in a format with data elements
prescribed by Company for all claim transactions completed during the
month.
3) Subject to the other provisions of this Agreement below, Administrator will
provide the Basic Services with respect to all Claims for so long as and
until each Claim shall have been paid or until, in the opinion of
Administrator and Company, Company shall have no further liability
therefor.
4) Except as may be otherwise provided for in this Agreement, Company reserves
the right to assume at its own expense the control and handling of any
Claim at any time, and Administrator agrees to deliver promptly any Claim
file to Company which it may request. Claim files are subject to the
review by Company and its employees and authorized agents during
Administrator's regular business hours.
5) In addition to notifying Company, Administrator shall maintain a record of
complaints ("complaints record") made by or through any person or
governmental or regulatory body. This record will document for each
complaint, the name of both the policyholder and contract holder and state
or residence, the name of the repair facility, claim number, identity of
person and governmental or regulatory body making complaint, description of
grievance, date Administrator received notice of the complaint, description
of action taken by Administrator in response to complaint, date complaint
resolved and indication that record will be provided to Company at the end
of each calendar quarter.
6) Administrator will maintain a "suit log" consisting of the following
entries for each suit received: Name of policyholder and contact holder,
name of repair facility, claim number, name of plaintiff(s), name of
plaintiff(s), attorney, name of defendant(s), court in which suit is filed,
date suit filed, date of service on agent, name of defense attorney, and
date defense counsel enters appearance.
7) Administrator will use its best efforts to keep abreast of all
governmental, regulatory and matters of compliance concerning the
investigation, settlement and defense of auto warranty claims and will, use
its best efforts to ensure that Administrator is in compliance with these
requirements.
[PARAGRAPH 8 REDACTED AND FILED SEPARATELY AS PART OF A CONFIDENTIALITY
REQUEST WITH THE COMMISSION]
9) In the event any governmental agency, broker, agent or
customer should contact General Agent for any reason with respect to any
claim (except for routine contact not in the nature of a complaint),
General Agent agrees to notify Company promptly of the nature of such
communication and, if the communication is in writing, General Agent shall
send Company, a copy thereof. In addition, General Agent must keep a log
of all complaints, including status, disposition and classify each
complaint by type.
[PARAGRAPHS 10 AND 11 REDACTED AND FILED SEPARATELY AS PART OF A
CONFIDENTIALITY REQUEST WITH THE COMMISSION]
PAYMENT OF CLAIMS AND ALLOCATED LOSS EXPENSES
1) Administrator will make all payments with respect to Claims and pay all
Allocated Loss Expenses (as defined in paragraph 2 below).
[PARAGRAPH 2 REDACTED AND FILED SEPARATELY AS PART OF A CONFIDENTIALITY
REQUEST WITH THE COMMISSION]
2) Unallocated loss adjustment expense, such as the salaries, benefits, travel
overhead of Administrator are not reimbursable to Administrator by Company.
Administrator warrants 1) that the Administrator has adequately trained and
staffed the personnel designated to perform the duties herein undertaken
and 2) that Administrator has established and would maintain adequate
facilities, supplies and equipment which will enable the Administrator to
satisfactorily perform the duties herein undertaken. In every manner the
Administrator shall use its best efforts to serve the Company faithfully,
promoting and safeguarding the Company's best interest at all times.
LIMITATION OF AUTHORITY
EXCEPT AS MAY BE OTHERWISE AGREED TO IN WRITING, the Administrator shall
have no authority to nor shall represent itself as having such authority, nor
shall do any of the follows:
(a) Appoint agents, sub-agents and/or sub-administrators;
(b) Make any agreements with any persons on behalf of the Company;
(c) Make any agreements rendering or purporting to render Company liable
for the payment and/or re-payment of
expenses, commissions or any other sum, besides validly authorized
claims payments duly paid out of a Claims Account;
(d) Make, alter, or discharge any of the terms and conditions of any
policy, contract or receipt of the Company;
(e) Institute, prosecute or maintain any legal proceeding in connection
with any matter pertaining to Company's business, except as provided
herein.
(f) Transact business in contravention of the rules and regulations, of
any Insurance Department and/or other government authorities having
jurisdiction of all subject matters embraced within this Agreement,
and all reasonable instructions issued by the Company;
(g) Hold itself out an Administrator of the Company for any other matter
or for any other purpose than specifically prescribed by this
Agreement or in agreements regarding other programs which
Administrator administer for the Company;
(h) Withhold any monies or property of the Company;
(i) Offer to pay any rebate;
(j) Bind, subject or obligate the Company to any single claim liability
over $6,000 unless specifically authorized in writing to do so by the
Company;
(k) Issue, utter, write or otherwise make any presentation, statement,
promise or warranty of any kind or nature with respect to the business
of the Company unless specifically authorized in writing to do so by
the Company other than to adjust claims pursuant to this agreement;
(l) Engage any attorney to represent the Company for any purpose
whatsoever without the Company's express written consent.
(m) Engage any professional expert auto inspector or to contract for
lubricant analysis for which the fees or costs exceed four hundred
dollars ($400.00) per claim.
CLAIMS FUND
The Administrator shall fund and open a checking account
(the "Claims Account") at a bank, or other financial institution,
acceptable to the Company for the purpose of issuing payment of
losses and loss adjustment expenses for valid claims made under
Company's policies. The Claims Account shall be designated and
titled so as to be identified as being for the exclusive use of
paying valid claims made under Company's policies. Administrator
shall provide Company with the bank name, account name and account
number of the Claims Account.
The Administrator shall be responsible for making payments for valid
losses and loss adjustment expenses incurred under Company's
policies. Administrator shall be custodian of checks to be drawn on
the Claims Account and shall exercise the controls necessary to
ensure the safety and security of these checks.
[ONE PARAGRAPH REDACTED AND FILED SEPARATELY AS PART OF A CONFIDENTIALITY
REQUEST WITH THE COMMISSION.]
ADVERTISING AND REPRESENTATIONS
The Administrator shall use no advertising material, prospectus, proposal,
or representation, either in general or in relation to a particular Program
unless furnished by the Company or until the consent of the Company thereto in
writing shall first be secured and cleared by the home office legal staff. Such
approval shall not in any event be construed as charging or binding the Company
to bear any part of the cost or expense therein. The Administrator shall not
issue or circulate any illustration, circular, statements or memorandum of any
sort misrepresenting the terms, benefits or advantages of any policy issued by
the Company or making any misleading statement concerning the financial security
of the Company. Administrator agrees that it will not use the Company's name,
logos or trademarks in any materials, without prior written approval of the
Company. Use of the Company's logo or trademarks, in conjunction with materials
connected with this Program, will in no way be construed to mean that
Administrator has acquired any interest in the ownership of or to any of the
logos or trademarks of the Company.
No permission is granted hereby, either express or implied, to Claims
Administrator for the use of trade names, trademarks or service marks of
Company. Administrator shall Company without their prior written permission.
Effective July 1, 1994, the Administrator should designate one or more "800
numbers, of a kind and amount acceptable to Company on an exclusive basis. If
other appropriate "800" numbers become available in Company's reasonable
judgment, Administrator shall reserve the numbers for Company's business.
Telephone numbers agreed upon by the parties shall be publicized by Company and
Administrator for service in connection with the Policy. Company may grant
Administrator permission to use the telephone numbers. While these telephone
numbers, as between the parties will be the sole property of Administrator,
Company shall have right to have those numbers re-assigned to alternate
administrators in the event of a change thereof for any reason in accordance
with the Agreement so that consumer materials will not become confusing.
BOOKS, RECORDS AND ACCOUNTS
The Administrator shall keep full and accurate records of the business
transacted under this Agreement and shall forward to Company such reports of
said business that Company may prescribe. The Company shall have the right to
examine said books anytime during business hours and to make such records as it
may deem necessary. All books, accounts or other documents with the exception
of computer software and software documentation relating to the Company are the
property of the Company whether paid by for it or not. Computer software
systems and software documentation shall be the property of the Company only to
the extent they are specially paid for by the Company. The books and accounts
of the Company shall be accepted in full and final evidence for all
matters relating to this Agreement.
Administrator shall maintain a separate copy of all computer-stored data
relating to the Program which shall be available at all times to the Company and
can be furnished immediately upon request to Company in the event Company
retains a replacement Administrator to process claims and/or run off the
business which is the subject of this Agreement. Extraordinary costs (such as
reprogramming or reformatting data to be compatible with Administrator's
systems), or obtaining a second copy of this computer stored data, shall be
borne by the Company.
The provisions of this section, which are binding upon the parties
subsequent to the termination of this Agreement, shall survive such termination
until all obligations are finally discharged.
SALVAGE
All salvage and recoveries are the property of the Company. The expense of
recovery of salvage shall be borne by Company. Salvage shall be recovered by
Administrator.
STATEMENTS OF ACCOUNTS
The Administrator shall submit to the Company as agreed after the close of
each month, a statement in the form required by the Company of claims paid,
denied, and closed during such month, and of claims outstanding but unpaid
during such month, giving such reasonable detail as the Company shall require,
including salvage, and subrogation recoveries. Such detailed information shall
be rendered to Company on or about twenty five (25) days after the close of
business each month. A copy of the monthly report that Administrator shall
remit to the Company and other reports to be rendered are attached hereby and
incorporated herein by reference as Exhibit No. 2.
Additionally, the Administrator shall render to Company within twenty-five
(25) days after the close of each month, a monthly bordereaux report which shall
contain all the information which the Company shall require or consider
necessary. The Company may require from time to time for underwriting purposes
special reports from the Administrator.
EXPENSES
The Administrator shall bear and pay all charges and expenses incurred in
the business including compensation of the Administrator's employees. Office
expenses, and other expenses including postage, license fees, and reporting fees
including cost of compliance with this agreement or by law. The Company shall
not be responsible for expenses incurred by the Administrator unless provided
herein.
The parties shall indemnify and hold harmless the other, their
officers, directors, agents and servants and their affiliates, subsidiaries,
divisions and parent and their officers, directors, agents and servants
(hereinafter collectively known as "Indemnitees"), any or all of them, against
all liability loss, damages, whether punitive, exemplary or compensatory,
expense, claims, penalties, fines and reasonable attorney's fees that the
Indemnities may incur or suffer, whenever suffered or incurred, by reason of
either party defending or prosecuting any suit, action or other proceeding
brought in connection with said failure or breach, or in obtaining or attempting
to obtain a release of liability in respect thereof, whether or not it be
claimed or proven that there was breach of duty, or intentional, or wanton or
reckless conduct, or both, and whether or not the damages claimed are punitive
or exemplary.
Each party and both of them shall indemnify and hold harmless the
Indemnitees of the other party against all claims, suits, proceedings,
liabilities, losses, damages, whether punitive, exemplary or compensatory, costs
and expenses whatsoever including reasonable outside attorney's fee arising from
any failure of either party to comply with applicable local, state and federal
regulations concerning performance of services hereunder, or to pay claims in
good faith and in accordance with the Policy, either party shall be released
from any liability hereunder to the extent that any such liability results in
whole or in part from failures, acts, or omissions of the other party or its
Indemnities or from activities at the specific and express written direction of
the other party or actions taken upon the basis of incorrect or inaccurate
information supplied by the other party.
Administrator covenants that it will reimburse Indemnitees on demand for or
pay over to Indemnitees all sums of money which Indemnitees shall pay or become
legally liable to pay by reason of any of the foregoing and will make such
payments to Indemnitees as soon as Indemnitees shall become liable therefore,
whether or not Indemnitees shall have paid out sums of any part thereof.
Indemnitees shall have the right to demand that the indemnifying party
shall defend any and all suits and investigate and defend all claims whether
justified or not, providing only that the suit shall be against the Indemnitees,
any or all of them. Any right to indemnification under this Agreement shall be
conditioned upon whether Indemnitees give timely written notice to the
Indemnifying Party of the claim. Indemnitees shall conduct the defense with
counsel of their choice and the other party will pay all reasonable expenses and
any judgment or settlement. Either party must act reasonably in agreeing to any
judgement or settlement. Either party has the right to be associated in the
defense and/or settlement.
Either party shall indemnify and hold harmless the other party against all
claims, suits, proceedings, liabilities, losses,
damages, or the punitive, exemplary or compensatory, costs and expenses
whatsoever including reasonable outside attorneys' fees when claim is made
against either party by a claimant and/or an insured alleging the other party's
negligence and/or intentional acts which lead to denial of claimant's and/or
insured's claim. In addition, Company shall hold harmless and indemnify
Administrator against all claims arising due to the insufficiency of the Claims
Account. Either party shall also indemnify and hold harmless the other party
against all claims, suits, etc. which arise due to the negligence and/or
intentional acts of Indemnifying Party which give arise to a wrongful denial
claim. Either party shall have right to defend itself and the other party with
the same counsel and to settle any claims upon a reasonable basis. Either party
shall have the right to participate in the defense as well as consult in the
terms of any settlement and/or judgment.
CONFIDENTIALITY
a. Business Information of the Parties. In performing obligations
pursuant to this Agreement, the parties acknowledge that they may have access to
and receive disclosure of certain information relating to both parties,
including, but not limited to, marketing philosophy and objectives, competitive
advantages and disadvantages, the types of services provided, financial result,
the name, address and account numbers of customers, agents, service providers,
and a variety of other information and material. Administrator and Company
agree that all such information and materials which are disclosed in writing or
other tangible form and conspicuously labeled "Confidential" by each party, its
directors, officers and other employees, and any third parties with which it
contracts, is, and shall be considered, confidential and proprietary. Each
party and both of them further agree that it shall:
(i) protect and preserve the confidential and proprietary nature of all
Confidential Information; and require identical safeguards and promises and
covenants as herein contained to be present in any contract that either party
executes with any contractor;
(ii) not disclose, give, sell or otherwise transfer or make available,
directly or indirectly, any Confidential Information to any third party except
as required in the performance hereunder or as required by law;
(iii) not use the Confidential Information except as expressly provided in
this Agreement;
(iv) to the best of its ability, limit the dissemination of the
Confidential Information within its own organization (including contractors) to
such individuals whose duties justify the need to know such Confidential
Information, and then only provided that
there is a clear understanding by such individuals of their obligation to
maintain the confidential and proprietary nature of the Confidential Information
and to restrict its use solely to the purposes specified herein;
(v) to the best of its ability, notify each other immediately of any loss
or misplacement of records or copies of Confidential Information.
b. Survival of Confidentiality. All rights, obligations and duties of
the parties with regard to Confidential Information shall survive the
termination of this Agreement.
c. Limitation. All obligations and duties of both parties with respect
to data processing programs, service providers and systems and cardholder
information shall continue indefinitely, but with respect to other Confidential
Information, such as business plans, methods, marketing philosophy, etc. shall
terminate after two years following the termination of this Agreement for any
reason, subject to earlier termination in the event that and to the extent that
such Information:
(i) is developed by a party independently, without reference to any
Confidential Information of the other party's;
(ii) is obtained from a third party authorized to disclose it;
(iii) becomes a part of the public domain without the fault of the party;
(iv) is released by the disclosing party to third parties without similar
restrictions; or
(v) is released from such restrictions by the prior written agreement of
the disclosing party.
Provided, that any termination shall not, without Company's written
consent, be effective until all claims have been closed.
e. Administrator shall not acquire by virtue of this Agreement any
property or other right, claim or interest, including any patent right or
copyright interest, in any of the information, systems, processes, equipment,
computer programs, or data of the Company.
TERMINATION
This Addendum may be terminated by either party in the same way with the
same rights and duties as the General Agency Agreement. Both the Agreement and
the Addendum must be terminated at the same time; however the provisions for
run-off continuation in either can be different. In any event, however
Administrator
will not be released from performing services under this contract despite any
notice of termination until the Company specifically releases the Administrator.
The Administrator is responsible for providing a smooth and orderly transition
to a new Administrator and will render all services previously rendered at the
Company's request for the period deemed necessary by the Company to effect a
smooth and orderly transition.
At any time during the term of Agreement Company may terminate this
Agreement on at least thirty (30) days written notice, however, at Company's
request, Administrator shall continue to service the needs of the Company for
the period deemed necessary by the Company to provide a smooth and orderly
transition to a new Administrator. Administrator will be paid at the prevailing
contract rate of all services that it renders during these periods.
In the event of substantial delinquency by the Administrator in the
accounting, servicing or adjustment of claims, the Company may suspend the
Administrator's authority to perform administrative services on any new business
during any period of delinquency upon notice to the Administrator.
APPLICABLE LAW
This Agreement shall be governed by and construed in accordance with the
internal laws and not the laws of conflicts of the State of New York, except to
the extent which by law the law of another state must be applied. Jurisdiction
and venue for any litigated matter under this Agreement shall be placed with the
United State District Court for the Southern District of New York sitting in the
County of New York, State of New York at the Xxxxx Square Court House.
ENTIRE AGREEMENT
This Agreement and the Exhibits hereto and all documents referenced herein
and therein constitute the entire Agreement between the parties concerning the
subject matter embraced hereto and all prior Agreements, representations,
warranties, statements and/or negotiations are superseded hereby.
SEVERABILITY
If any term or provision of this Agreement shall be found by a court of
competent jurisdiction to be illegal or otherwise unenforceable, the same shall
not invalidate the whole of this Agreement, but such term or provision shall be
deemed modified to the extent in the Court's opinion to render such term or
provision enforceable, and rights and obligations of the party shall be
construed and enforced accordingly, preserving to the fullest permissible extent
the intent and agreements of the parties herein set forth.
AMENDMENT
Any Amendment to this Agreement must be in writing signed by
the party against whom enforcement is sought.
NON-WAIVER
No delay or failure by either party to exercise any right under this
Agreement and no partial or single or multiple exercise of any right under the
Agreement shall constitute a waiver of that right or any other right.
HEADINGS
Headings in this Agreement are for convenience only and shall not be used
to interpret or construe its provisions.
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.
ASSIGNMENT AND TRANSFER; SUBCONTRACTING
Except as expressly stated herein, neither party shall assign or otherwise
transfer this Agreement or any of its rights or obligations hereunder; or
contract with any third party to perform any of its responsibilities or
obligations relating to this Agreement, without the prior written consent of the
other party.
NOTICES
Any notice, request, consent, waiver or other communication required or
permitted to be given hereunder shall be effective only if in writing and shall
be deemed sufficiently given only if delivered in person or sent by telegram,
telex, cable or by certified or registered mail, postage prepaid, return receipt
requested, addressed as follows:
WARRANTECH AUTOMOTIVE, INC.
000 XXXXXXXX XXXXXX
XXXXXXXX XXXXXXXXXXX 00000
cc: WARRANTECH AUTOMOTIVE, INC.
000 XXXXXXXX XXX
XXXXXX, XX 00000
ATT: GENERAL COUNSEL
-----------------------------
cc: NEWMAN, TANNENBAUM, HELPERN, SYRACUSE,
& HIRSCHTRITT LLP
000 Xxxxx Xxxxxx
XXX XXXX, XXX XXXX 00000
If to any insurance company providing coverage hereunder:
cc: President
___________________________________
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
cc: Associate General Counsel
Corporate Law Department
A.I.G., Inc.
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000 Fax No. 000-000-0000
or to such other person of address as either party may designate by notice
given to the other party as provided herein. Such notice or communication shall
be deemed to have been given as of the date so delivered, telegraphed, cabled or
if mailed, on the fifth day after mailing in the United States of America
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
their respective duly authorized officers.
DATE:
-----------------------
WARRANTECH AUTOMOTIVE, INC.
By:
-------------------------
Name:
------------------------
Title:
-----------------------
Date:
-----------------------
INSURANCE COMPANIES SUBSCRIBING THIS AGREEMENT
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
NEW HAMPSHIRE
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of , 19
My commission Expires:
-----------
--------------------
Notary Public
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
ILLINOIS NATIONAL
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
NATIONAL UNION FIRE
INS. COMPANY OF
LOUISIANA
-------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
AMERICAN HOME
INSURANCE COMPANY
--------------------
(Name of Company)
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
FOR THE GENERAL AGENT
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
------------------
(Name of Company)
------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
ADDENDUM C
Effective this 1st day of March, 1994
BETWEEN
NEW HAMPSHIRE INSURANCE COMPANY, AMERICAN HOME ASSURANCE COMPANY,
ILLINOIS NATIONAL INSURANCE COMPANY AND NATIONAL UNION FIRE INSURANCE
COMPANY OF LOUISIANA of 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as the "Company"), and Warrantech Automotive,
Inc. whose principal offices are at 000 Xxxxxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxxxxx 00000, (hereinafter collectively referred to as the
"Administrator").
PARENTAL GUARANTEE
Warrantech Corporation, which is the parent of Warrantech Automotive,
Inc., and whose address is 000 Xxxxxxxx Xx., Xxxxxxxx, XX 00000
(referred to herein as "Guarantor"), herewith in consideration of the
premises grants to American International Group, Inc. and its member
insurance underwriting companies named on this General Agency
Agreement (hereinafter collectively known as the "Company"), a
guarantee of the performance under and the payment of liabilities
incurred due to duties assumed by Warrantech Automotive, Inc. under
this General Agency Agreement.
Guarantor guarantees the following entities:
1. All Guarantor's subsidiaries and affiliates which are or may
become involved in the rendition of services in the warranty
and/or insurance programs offered by Guarantor and/or its
subsidiaries and/or affiliates through Company; and
2. All third parties that provide services pursuant to the
General Agency Agreement which Guarantor agrees to
guarantee. All such entities shall be endorsed to this
Agreement to indicate applicability of this guarantee.
3. This shall be a continuing guarantee and regardless of the
lack of notice or consent to new third-parties providing
services pursuant to the General Agency Agreement, shall
cover all new contracts which relate to the guarantee or,
amendments, extensions, modifications, renewals, or waivers
thereto. When Warrantech Automotive, Inc. utilizes a third
party provider, it shall give notice
within (30) thirty days pursuant to sub-paragraph 2.
The Guarantor hereto stipulates to the fact the entities guaranteed
are solvent at the time of execution of this guarantee and are able to perform
their obligations under the aforesaid program(s) and to discharge their
liabilities.
By execution herewith and in consideration of the premises, Guarantor
guarantees faithful and complete performance of the General Agency Agreement by
all entities within the time set for thereon. Guarantor also guarantees
payments of all damages, costs and expenses for which the entities may become
liable with respect to the General Agency Agreement. Guarantor herewith waives
all rights to notice of non-performance of or demand by Company except as
provided hereinafter. This guarantee will remain in full force and effect
despite any change, extension, release, substitution, or other modifications of
the General Agency Agreement and all addenda of contracts for services covered
herein.
This Guarantee is unconditional and unlimited in duration. This
guarantee is also absolute and granted in exchange for Company granting the
within General Agency Agreement and in particular to waive the requirement for
personal guarantees of payment and performance from Guarantor's directors and
officers. Attached hereto is a certified copy of a resolution by the Board of
Directors of Guarantor's authorizing the execution of this guarantee.
By execution of this guarantee, Guarantor guarantees that it will
supply all substitute services and perform all tasks otherwise required of the
guaranteed parties and will provide any and all resources to enable Company to
recover lost profits, dividends, income, rights, satisfaction of liability,
damages, interest, indemnifications of and payment of all sums due, liabilities,
claims, at any and all times, including but not limited to reasonable attorney's
fees and costs incurred to recover on the guarantee.
Upon default by any one or all of the entities guaranteed, Guarantor
shall upon demand perform the contracts and pay all sums due and owing
immediately. The obligations defaulted upon shall become the direct and primary
obligations of Guarantor
Company may demand payment of the guarantee in and at its headquarters
at 00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or may demand performance of this
guarantee at the place and time set by Company pursuant to the General Agency
Agreement.
This guarantee shall not terminate unless and until the parties
mutually agree to release each other, provisional upon the previous performance
of all required, actions and payment of all
sums due and owing Company. The termination shall affect only future
liabilities. Company shall require no security to secure Guarantor's ability to
perform its obligation under this guarantee. The amount of the guarantee shall
be unlimited. All payments under the Guarantee shall go direct to Company and
not to any intervening party. Guarantor shall have all the right to salvage and
subrogation under the guarantee that the law provides. Guarantor shall not
discharge any of liability except by performance or payment. This guarantee may
be amended only by a writing executed by both parties. This guarantee may not
be assigned by Guarantor or any successor in interest.
Guarantor waives notice of acceptance, notice of nonpayment or protest
and notice of protest with respect to the obligation covered. Company shall
give notice of non-performance prior to any demand under the Guarantee. Company
may give notice at any time to Guarantor. Guarantor waives any defense as to
the timeliness of sufficiency of the notice.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in
duplicate.
INSURANCE COMPANIES SUBSCRIBING THIS AGREEMENT
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
NEW HAMPSHIRE
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of ____________, 19____
My commission Expires:
-----------
--------------------
Notary Public
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
ILLINOIS NATIONAL
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
NATIONAL UNION FIRE
INS. COMPANY OF
LOUISIANA
-------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
AMERICAN HOME
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
FOR THE GENERAL AGENT
---------------- ------------------
(Date) (Name)
------------------
(Title)
------------------
(Name)
------------------
(Title)
------------------
(Name of Company)
------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19____
My commission Expires:
-----------
--------------------
Notary Public
[ADDENDUMS X,X-0, X-0 AND D-4 (39 PAGES) HAVE BEEN REDACTED IN THEIR ENTIRETY
AND FILED SEPARATELY AS PART OF A CONFIDENTIALITY REQUEST WITH THE COMMISSION.]
Addendum E
April 11, 1996
Page 1 of 0
XXXXXXXX X
XXXXXXXXXX XXXXXXXX
HOLD HARMLESS AND INDEMNIFICATION AGREEMENT
FOR
CERTAIN BANKING AGREEMENTS
Effective this ___ day of __________, 1996
BETWEEN
NEW HAMPSHIRE INSURANCE COMPANY, ILLINOIS NATIONAL INSURANCE COMPANY, AMERICAN
HOME ASSURANCE COMPANY AND NATIONAL UNION FIRE INSURANCE COMPANY OF LOUISIANA of
00 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 (hereinafter referred to as the
"COMPANY"), and Warrantech Automotive, Inc. whose principal offices are at 000
Xxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxxx 00000, (hereinafter collectively referred
to as the "ADMINISTRATOR").
WHEREAS, in connection with the performance of its duties pursuant to the
General Agency Agreement (referred to as "this Agreement"), to which this
Addendum E is attached and made a part thereof, the ADMINISTRATOR has received
requests from FINANCIAL INSTITUTIONS, for the COMPANY to execute BANKING
AGREEMENTS (hereinafter referred to as "BANKING AGREEMENTS");
WHEREAS, it is desirable and necessary for the COMPANY to execute BANKING
AGREEMENTS, in order that the insured products remain competitive in the
marketplace; and
WHEREAS, the BANKING AGREEMENTS require that COMPANY assume certain
obligations which may exceed COMPANY'S obligation pursuant to the insurance
policy
WITNESSETH:
In consideration of the mutual covenants and promises herein contained, the
parties hereto agree as follows
I. DEFINITIONS
A. FINANCIAL INSTITUTION refers to the entities that finance the retail
purchase price of SERVICE CONTRACTS
B. BANKING AGREEMENT means an agreement with the financial
institution regarding fulfillment of obligations of the issuer of the SERVICE
CONTRACT pursuant to the insured SERVICE CONTRACTS, if the issuer fails to
perform such obligations
C. SERVICE CONTRACTS are the contracts purchased by the vehicle owner and
which are insured by an insurance policy issued pursuant to Addendum A of this
Agreement.
Addendum E
April 11, 1996
Page 2 of 7
II. INDEMNIFICATION
ADMINISTRATOR agrees to indemnify and hold COMPANY harmless for any liability
and/or obligations which the COMPANY incurs pursuant to a BANKING AGREEMENT
executed by COMPANY related to business produced by ADMINISTRATOR, except for
such liability as the COMPANY would have pursuant to the insurance policy issued
in accordance with the terms and conditions of this Agreement, in the absence of
the BANKING AGREEMENT.
III. BANKING AGREEMENTS AFFECTED
A. ADMINISTRATOR'S APPROVAL REQUIRED. COMPANY will only executed those
BANKING AGREEMENTS which ADMINISTRATOR has requested that COMPANY execute.
COMPANY will not execute any BANKING AGREEMENT with regards to policies issued
pursuant to this Agreement, without the written request of ADMINISTRATOR.
B. RIGHT TO REFUSE TO EXECUTE. COMPANY has the right to refuse to
execute any BANKING AGREEMENT, for any reason.
IV. RIGHT OF OFFSET
COMPANY may offset any and all payments and liabilities owed to ADMINISTRATOR to
collect any amounts due in connection with the indemnification and hold harmless
provisions of this Addendum E.
V. TERMINATION
A. GENERAL AGENCY AGREEMENT TERMINATION. This Addendum E shall terminate
at any time that the General Agency Agreement to which it is attached
terminates, subject to the ongoing liabilities set out in paragraphs D and E of
this Part V.
B. ADMINISTRATOR. ADMINISTRATOR may terminate this Addendum E by giving
ten (10) days written Notice.
C. COMPANY. COMPANY may terminate Addendum E by giving ten (10) days
written notice Company has the right to terminate.
D. NOTIFICATION OF FINANCIAL INSTITUTIONS. ADMINISTRATOR is responsible
for notifying each and every FINANCIAL INSTITUTION that the BANKING AGREEMENT is
terminated and that COMPANY'S promises under such BANKING AGREEMENT is no longer
in effect, and to provide proof of such notification to COMPANY. Nothing herein
shall prevent COMPANY from notifying some or all the FINANCIAL INSTITUTIONS,
however in the event that a FINANCIAL INSTITUTION is
not notified, ADMINISTRATOR shall bear any and all resulting liability.
E. ADMINISTRATOR'S CONTINUING OBLIGATION. After termination of this
Addendum whether by ADMINISTRATOR or COMPANY the ADMINISTRATOR'S obligation
shall continue as long as COMPANY may have any liability or obligation under any
SERVICE CONTRACT issued during the time that a BANKING AGREEMENT was in effect
for such SERVICE CONTRACT.
Addendum E
April 11, 1996
Page 3 of 7
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in
duplicate.
INSURANCE COMPANIES SUBSCRIBING THIS AGREEMENT
---------------- ------------------
(Date) (Name)
VICE PRESIDENT
------------------
(Title)
------------------
(Name)
VICE PRESIDENT
------------------
(Title)
NEW HAMPSHIRE
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
Addendum E
April 11, 1996
Page 4 of 7
---------------- ------------------
(Date) (Name)
VICE PRESIDENT
------------------
(Title)
------------------
(Name)
VICE PRESIDENT
------------------
(Title)
ILLINOIS NATIONAL
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of ____________, 19_____
My commission Expires:
-----------
--------------------
Notary Public
Addendum E
April 11, 1996
Page 5 of 7
---------------- ------------------
(Date) (Name)
VICE PRESIDENT
------------------
(Title)
------------------
(Name)
VICE PRESIDENT
------------------
(Title)
AMERICAN HOME
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of _________, 19 ______
My commission Expires:
-----------
--------------------
Notary Public
Addendum E
April 11, 1996
Page 6 of 7
---------------- ------------------
(Date) (Name)
VICE PRESIDENT
------------------
(Title)
------------------
(Name)
VICE PRESIDENT
------------------
(Title)
NATIONAL UNION FIRE
INS. COMPANY OF
LOUISIANA
-------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
Addendum E
April 11, 1996
Page 7 of 7
FOR THE GENERAL AGENT
---------------- ------------------
(Date) (Name)
CHAIRMAN
------------------
(Title)
------------------
(Name)
CHAIRMAN
------------------
(Title)
WARRANTECH
AUTOMOTIVE
--------------------
(Name of Company)
000 XXXXXXXX XXXXXX
XXXXXXXX, XX 00000
--------------------
(Address)
Subscribed and sworn to before me
________ of ____________, 19____
My commission Expires:
-----------
--------------------
Notary Public
Addendum F
April 11, 1996
Page 1 of 0
XXXXXXXX X
XXXXXXXXXX XXXXXXXX
GENERAL AMENDMENTS TO GENERAL AGENCY AGREEMENT
COMMISSION DETERMINATION
[PARAGRAPHS IA, IB(1), (2) AND (3) AND IIA HAVE BEEN REDACTED AND FILED
SEPARATELY AS PART OF A CONFIDENTIALITY REQUEST WITH THE COMMISSION.]
Addendum F
April 11, 1996
Page 2 of 8
[PARAGRAPHS IIB, C(1) AND (2), D AND E HAVE BEEN REDACTED AND FILED SEPARATELY
AS PART OF A CONFIDENTIALITY REQUEST WITH THE COMMISSION.]
III TERMINATION OF THE GENERAL AGENCY AGREEMENT
A Notwithstanding any other provision of the General Agency Agreement,
the grace period with respect to any termination of the General Agency
Agreement pursuant to the first paragraph of Article 20 (Termination)
of the General Agency Agreement (which grace period is stated in such
Article 20 to be one year) shall not end earlier than 18 months from
the effective date of this Addendum F (the "Earliest Grace Date"). To
the extent that such grace period would, by the terms of such Article
20, end after the Earliest Grace Date, this paragraph A shall have no
effect.
B During the 18 months from the effective date of Addendum F the Company
shall have the unconditional right to terminate Administrator's
ability to administer claims pursuant to the Termination provisions of
Addendum B UNLESS (i) the ratio of losses incurred to earned premium
as determined by the Company on the book of business administrated by
Administrator is less than eighty percent (80%), (ii) Company
terminated the General Agency Agreement pursuant to the first
paragraph of Article 20. Termination, of the General Agency Agreement
and (iii) the Administrator shall not, after the termination of the
General Agency Agreement, have committed any act or acts that would
constitute a basis for termination of the General Agency Agreement of
Addendum B pursuant to the provisions of Article 20. Termination, of
the General Agency Agreement other than the first paragraph thereof.
If the conditions (i), (ii) and (iii) obtain, the effective date of
termination of claims administration shall be no earlier than the day
after the end of such 18 month period.
C. It is understood and agreed that the purpose of the grace period is to
permit Administrator to procure substitute insurers for the business
covered by the General Agency Agreement as such business comes up for
renewal. Accordingly, Administrator will use its best efforts to
procure such substitute insurers as early as possible after notice of
termination is given, and to the extent
Addendum F
April 11, 1996
Page 3 of 8
(but only to the extent) that such substitute insurers are in fact
procured (e.g., in a given state or group of states or with respect to
a given book of business), the Administrator's authority to bind new
business on behalf of the Company shall terminate notwithstanding that
the grace period has not yet expired.
D. Except as expressly modified herein and in the major Agreement of even
date herewith, all other termination provisions of the General Agency
Agreement shall remain in full force and effect.
[PARAGRAPH IVA AND B HAVE BEEN REDACTED AND FILED SEPARATELY AS PART OF
A CONFIDENTIALITY REQUEST WITH THE COMMISSION.]
V. AUDIT ISSUES
The parties acknowledge that Company has recently conducted (1) a
premium audit of Administrator and (2) an underwriting claims, and compliance
audit of Administrator. So long as Administrator acts promptly to address the
deficiencies identified in the foregoing audits to the reasonable satisfaction
of the Company. Company agrees that such audits will not be asserted as bases
for termination for cause of the General Agency Agreement.
Addendum F
April 11, 1996
Page 4 of 8
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement in
duplicate.
INSURANCE COMPANIES SUBSCRIBING THIS AGREEMENT
---------------- ------------------
(Date) (Name)
VICE PRESIDENT
------------------
(Title)
NEW HAMPSHIRE
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of ___________, 19______
My commission Expires:
-----------
--------------------
Notary Public
Addendum F
April 11, 1996
Page 5 of 8
---------------- ------------------
(Date) (Name)
VICE PRESIDENT
------------------
(Title)
------------------
(Name)
VICE PRESIDENT
------------------
(Title)
ILLINOIS NATIONAL
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
Addendum F
April 11, 1996
Page 6 of 8
---------------- ------------------
(Date) (Name)
VICE PRESIDENT
------------------
(Title)
------------------
(Name)
VICE PRESIDENT
------------------
(Title)
AMERICAN HOME
INSURANCE COMPANY
--------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of ____________, 19____
My commission Expires:
-----------
--------------------
Notary Public
Addendum F
April 11, 1996
Page 7 of 8
---------------- ------------------
(Date) (Name)
VICE PRESIDENT
------------------
(Title)
------------------
(Name)
VICE PRESIDENT
------------------
(Title)
NATIONAL UNION FIRE XXX.XXXXXXX OF
LOUISIANA
-------------------
(Name of Company)
--------------------
(Address)
Subscribed and sworn to before me
________ of ____________, 19____
My commission Expires:
-----------
--------------------
Notary Public
Addendum F
April 11, 1996
Page 8 of 8
FOR THE GENERAL AGENT
---------------- ------------------
(Date) (Name)
CHAIRMAN
------------------
(Title)
------------------
(Name)
CHAIRMAN
------------------
(Title)
WARRANTECH
AUTOMOTIVE
--------------------
(Name of Company)
000 XXXXXXXX XXXXXX
XXXXXXXX, XX 00000
--------------------
(Address)
Subscribed and sworn to before me
________ of __________, 19______
My commission Expires:
-----------
--------------------
Notary Public
