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EXHIBIT 10.33
TAX SERVICES AGREEMENT
This Services Agreement (this "Agreement") is made by and between Odyssey
America Reinsurance Corporation, Odyssey Reinsurance Corporation, and Xxxxxx
Insurance Company (collectively referred to as "ORG") and Fairfax Inc. (Fairfax)
and is effective as of the 10th day of May, 2001.
RECITALS
WHEREAS, Fairfax agrees to perform certain services and ORG agrees to
pay for such services as more specifically set forth herein;
NOW, THEREFORE, in consideration of the mutual promises set forth
herein, the parties hereto agree as follows:
ARTICLE I
SERVICES AND INVOICING
1.01 Nature of Services. Fairfax shall provide tax consulting and compliance
services (the "Services") to ORG.
1.02 Invoices. During the period of time that Fairfax is actively providing
Services to ORG pursuant to this Agreement, Fairfax shall send ORG an
invoice on a quarterly basis in such form as Fairfax deems appropriate.
The invoice amount will reflect a quarterly base fee of $25,000 for
services rendered by Fairfax. The $25,000 fee shall be the minimum fee
due each quarter for the base level of services provided and shall be
allocated to the companies as follows: Odyssey America Reinsurance
Corporation in the amount of $10,000, Odyssey Reinsurance Corporation in
the amount of $10,000, and Xxxxxx Insurance Company in the amount of
$5,000. In addition to this minimum base fee for the standard services
provided each quarter, the invoice shall also include an additional
charge for any fees and/or reasonable expenses paid by Fairfax to
independent service providers including without limitation attorneys,
accountants, and outside consultants on behalf of ORG. If an additional
charge is included in the invoice, Fairfax shall include a schedule
briefly describing the expenses and/or fees and specifying the companies
for whom the expenses and/or fees were incurred. Upon mutual agreement by
both parties, the quarterly base fee may be adjusted. All invoices are
due and payable upon presentation.
ARTICLE II
DUTIES OF FAIRFAX
2.01 Compliance. Fairfax shall comply with all applicable local, state, and
federal laws and regulations regarding Fairfax's duties under this
Agreement and shall maintain all licenses which may be required for
Fairfax to perform their duties herein. Fairfax shall advise ORG within
five (5) days of any inquiry, investigation, cease and desist order, or
other similar item received from any state or federal regulatory or law
enforcement body that Fairfax deems to be material whether or not related
to services to be performed herein.
2.02 Record Keeping. Fairfax shall maintain true and correct records relating
to the Services provided herein. Such records shall be maintained during
the Term of this Agreement and for a period of 3 years after termination
of this Agreement. Fairfax shall make such books and records available
for inspection (including on-site inspection, audit, and copying) by ORG,
at any time upon reasonable notice to Fairfax, during the Term hereof and
for a period of 3 years thereafter. Fairfax may charge ORG a reasonable
fee for maintaining and providing ORG availability to these records
during this period.
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ARTICLE III
RIGHTS AND DUTIES OF ORG
3.01 General Rights and Duties. ORG shall make such changes as ORG deems
advisable in the conduct of its business and no liability shall attach by
reason of doing so. ORG shall give reasonable notice to Fairfax regarding
any changes that would materially affect the performance of Fairfax's
duties under this Agreement or add to those duties.
ARTICLE IV
CONFIDENTIALITY
4.01 Confidential Information. The term "Confidential Information" as used in
this Agreement shall mean all information or documents relating to the
business or affairs of ORG including, but not limited to, any electronic
data provided to Fairfax by ORG, provided, however, that Confidential
Information shall not include any information that is already publicly
known or publicly available in a lawful manner, or rightfully received
from a third party without obligations of confidence, or information that
is developed by Fairfax not in connection with this Agreement. The
parties hereto agree that the Confidential Information is the property of
and proprietary to ORG and such Confidential Information shall be used
only for the contemplated purposes of this Agreement and shall not be
used for any other purpose or disclosed to any third party without the
prior written consent of ORG.
4.02 Use of Confidential Information. It is understood and agreed that
Fairfax, in connection with the Services, may come into the possession of
Confidential Information. Fairfax shall take reasonable precautions to
ensure protection and continued confidentiality of such Confidential
Information and such Confidential Information shall be used only for the
contemplated purposes of this Agreement and shall not be used for any
other purpose or disclosed to any third party without the prior written
consent of ORG. Fairfax shall not disclose, provide or otherwise make
available any such Confidential Information to any persons other than
members of Fairfax's staff, if any, who reasonably require access to such
Confidential Information for purposes of performing the Services. Fairfax
shall not print, copy, or reproduce in any way, the Confidential
Information, except as may be required in connection with the Services.
Upon termination of this Agreement and notice and request by ORG, Fairfax
shall return all Confidential Information in its possession to ORG.
ARTICLE V
INDEMNIFICATION
5.01 Indemnification. Each party ("Indemnifying Party") agrees to indemnify
and hold harmless the other party ("Indemnified Party"), its officers,
directors, agents, and employees from and against all liabilities,
losses, expenses, claims, demands, suites, fines, or judgements
including, but not limited to, attorneys' fees, costs, and expenses
incident thereto which may be suffered by, accrued against, be charged to
or recoverable from the Indemnified Party, its officers, directors,
agents, or employees, by reason of or arising out of or in connection
with any negligent or intentional acts, errors, or omissions of the
Indemnifying Party, its officers, directors, agents, or employees.
5.02 Notice with Respect to Indemnification. The Indemnified Party shall
provide the Indemnifying Party notice of any proceedings to which this
Article V applies as soon as the Indemnified Party learns of such
proceedings.
ARTICLE VI
TERMINATION
6.01 Termination Upon Notice. This Agreement may be terminated without cause
by either party giving the other party 90 days written notice.
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ARTICLE VII
MISCELLANEOUS
7.01 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York, without regard to its
rules regarding conflict of laws.
7.02 Severability. Wherever possible, each provision of this Agreement will
be interpreted in such a manner and to such an extent as to be effective
and valid under applicable law. If any provision is prohibited by or
invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity.
7.03 Integration, Waiver, and Amendment. This Agreement constitutes the
entire agreement between ORG and Fairfax and supersedes any and all other
agreements, either oral or written, between ORG and Fairfax with respect
to the Services. No waiver by either party to enforce any provision of
this Agreement will be effective unless made in writing and signed by an
authorized officer of ORG and Fairfax and shall be effective as to the
specifically stated waiver. No amendment to this Agreement will be
effective unless made in writing and signed by the parties hereto, and
specifying the effective date of such amendment.
7.04 Conformance to Law. This Agreement shall, without prior notice, be
automatically modified to conform with any law or governmental regulation
having application to or jurisdiction over the subject matter of the
parties hereto, and the parties shall promptly amend the Agreement to
comply with such modifications.
7.05 Dispute Resolution. Any controversy or claim arising out of or relating
to this Agreement or the breach thereof, shall be settled by arbitration
administered by the American Arbitration Association under its Commercial
Arbitration Rules, and judgment on the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
This Section 7.05 shall survive termination of this Agreement.
7.06 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but which
together shall constitute one and the same instrument.
7.07 Term. This Agreement shall continue in full force and effect (unless
terminated earlier as set out in Article VI hereof) until December 31,
2001 ("Initial Term) and shall be automatically renewed beginning January
1, 2002, for successive term(s) of one (1) calendar year each
("Successive Term(s)") unless terminated earlier as provided herein. The
Initial Term and Successive Term(s) shall collectively be referred to as
"Term(s)".
7.08 Notice. Except as otherwise set forth herein, any notice required under
this Agreement must be in writing and sent certified mail, fax, or
personally delivered. Notice shall be effective upon receipt, or five (5)
days after mailing to the other party, whichever comes first. Unless
changed, the addresses of the respective parties are:
FAIRFAX: Fairfax Tax Dept
0000 Xxxxx X'Xxxxxx Xxxx.
Xxxxxx, Xxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
ORG: Odyssey America Reinsurance Corporation
000 Xxxxx Xxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: General Counsel
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IN WITNESS WHEREOF, the parties hereto have caused this Services
Agreement to be executed as of the day and year first above written.
ODYSSEY AMERICA REINSURANCE CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name Printed: Xxxxxx X. Xxxxx
Title: Senior Vice
President
ODYSSEY REINSURANCE CORPORATION
By: /s/ XXXXXX X. XXXXX
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Name Printed: Xxxxxx X. Xxxxx
Title: Senior Vice
President
XXXXXX INSURANCE COMPANY
By: /s/ XXXXXX X. XXXXX
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Name Printed: Xxxxxx X. Xxxxx
Title: Vice President
FAIRFAX, INC.
By: /s/ XXXXXXX X. XXXXXXXX
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Name Printed: Xxxxxxx X. Xxxxxxxx
Title: Vice President
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