EXHIBIT 10.14
UNDERWRITING AGENCY AGREEMENT
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THIS AGREEMENT is made effective December 1,2001 between ALLIED WORLD ASSURANCE
COMPANY, Ltd, (hereinafter referred to as the "Company") and IPCRe UNDERWRITING
SERVICES LIMITED (hereinafter referred to as the "Underwriting Agent").
WHEREAS,
A. The Company has been incorporated in Bermuda and is licensed under
The Insurance ▇▇▇ ▇▇▇▇ as a Class 4 Insurer; and
B. The Underwriting Agent has been incorporated in Bermuda and is
licensed under The Insurance ▇▇▇ ▇▇▇▇ as an Insurance Agent;
NOW, THEREFORE, IT IS HEREBY AGREED AS FOLLOWS:
1. APPOINTMENT
Subject to the terms and conditions of this Agreement, the Underwriting Agent is
hereby appointed by the Company to solicit, bind, write and administer the
business described in Section 2. hereof. The Underwriting Agent hereby accepts
such appointment and agrees to perform faithfully the duties thereof to the best
of its professional ability, in accordance with the standard of care of a
professional insurance underwriter, and with that degree of knowledge, skill and
judgment which is exercised by it with respect to its own business and the
business of its parent and insurance and reinsurance affiliates. The word
"Agreement" herein shall be understood to include any and all Addenda attached
in accordance with the terms and conditions herein specified.
2. AUTHORITY OF THE UNDERWRITING AGENT
Subject to compliance with the Underwriting Guidelines (as defined in Section
2.2) and the IPCRe Co-Insurance Limitations (as defined in Section 2.3), the
Underwriting Agent shall have the power to bind the Company on the Subject
Business described in Section 2.1 and, except as expressly limited elsewhere
herein, the Underwriting Agent shall have the authority to do, outside of the
United States of America (which, for purposes of this Agreement, shall mean the
50 states and the District of Columbia), all things reasonably necessary in the
conduct of such business in order to fulfill its obligations under this
Agreement.
2.1 The business to be underwritten on behalf of the Company shall be
limited to property catastrophe treaty reinsurance pertaining to
losses wheresoever arising (the "Subject Business").
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2.2 The Underwriting Agent may not bind the Company to any Subject
Business unless such Subject Business complies with each of the
following guidelines (the "Underwriting Guidelines"):
A. The annual original premium written (excluding reinstatement
premium) for Subject Business ceded to the Company pursuant to
reinsurance treaties entered into by the Underwriting Agent on
behalf of the Company shall not exceed $60 million, in the
aggregate, without the prior consent of an executive officer of the
Company;
B. The types of risks that may be included in the Subject Business
assumed by the Company pursuant to reinsurance treaties entered into
by the Underwriting Agent on behalf of the Company are limited to
property catastrophe treaty reinsurance, and specifically excludes
inward retrocessions and per-risk business;
C. The maximum limit of liability under reinsurance treaties entered
into by the Underwriting Agent on behalf of the Company will be
$12.5 million per program, it being understood that where multiple
programs are written for a single client group of companies, the
limit shall be applied separately to each separate segment of risk,
based on geographic zone or line of business,provided that applying
such separate limits will not result in any significant correlation
leading to additional accumulation of risks related to any such
client group, and provided further that in no event shall the
aggregate risk limit associated with any individual geographic zone
(which zones are described in Addendum A to this agreement) in which
Subject Business risks are located exceed $200 million per zone (the
"Zonal Limit");
D. The reinsurance treaties entered into by the Underwriting Agent
on behalf of the Company must contain customary exclusions no less
favorable to the Company than the exclusions contained in similar
treaties underwritten on behalf of IPCRe Limited;
E. The risks assumed by the Company pursuant to reinsurance treaties
entered into by the Underwriting Agent on behalf of the Company may
be located wheresoever arising, subject to no territorial limits
(other than the Zonal Limits); and
F. The maximum treaty period for any reinsurance treaty entered into
by the Underwriting Agent on behalf of the Company is 3 years, and
any treaty that is proposed to be entered into for a longer period
must be approved by an executive officer of the Company.
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2.3 The Underwriting Agent shall authorize treaty participations to
brokers and other producers of Subject Business only:
A. On the condition that IPCRe Limited will assume at least an equal
amount of the identical risk on any treaty as will the Company, and
subject to contractual terms (including rates, limits, net retention
provisions, and other contractual terms) that are no more favorable
to IPCRe Limited than those applicable to the Company, it being
understood that (i) if the broker or producer refuses, despite the
Underwriting Agent's reasonable best efforts, to accept such
authorization, the Underwriting Agent shall nevertheless be free to
accept the Subject Business on behalf of the Company so long as the
terms on which it is accepted otherwise comply with the terms of
this Agreement and (ii) where IPCRe Limited, for itself, is
precluded from entering into a given treaty because of geographic or
other limitations that would not preclude the Company from entering
into such treaty, the Underwriting Agent may bind the Company to
such treaty; and
B. To the extent that any such treaty would reflect the best efforts
of the Underwriting Agent to achieve consistent proportionality, on
a per treaty basis, between the overall composition of the property
catastrophe treaty reinsurance businesses of the Company and of
IPCRe Limited.
Clauses A. and B. above are referred to as the "IPCRe Co-Insurance
Limitations".
2.4 Except as provided in Section 2.3A., the net retention of IPCRe in
respect of any Subject Business to which the Company is bound
pursuant to a treaty entered into by the Underwriting Agent in
accordance with this Agreement shall at all times equal or exceed
the net retention of the Company.
3. LIMITATIONS OF AUTHORITY
The Underwriting Agent shall have no power or authority other than as granted
and set forth herein and no other or greater power shall be implied from the
grant or denial of powers specifically mentioned herein.
3.1 In addition to the other limitations expressly contained in this
Agreement, the Underwriting Agent has no authority to:
A. make, accept or endorse notes or otherwise incur any liability
which is not incurred in the ordinary course of business of the
Underwriting Agent on behalf of the Company pursuant to the terms
and conditions of this Agreement;
B. issue a guaranty, other than as permitted expressly in writing by
the Company; or
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C. hold itself out as an agent of the Company in any other manner,
or for any other purposes, than as specifically prescribed in this
Agreement.
3.2 The Underwriting Agent shall use no advertising material,
prospectus, proposal, or representation, either in general or in
relation to a particular product of the Company, unless furnished
by the Company for that purpose.
3.3 The Underwriting Agent shall have no authority to appoint sub-agents
for the Company without prior written approval of the Company,
except that the Underwriting Agent may employ American International
Company Limited at its own expense to assist it in the performance
of any ancillary duties under this Agreement.
3.4 The Underwriting Agent shall have no authority to produce and bind
Subject Business for the Company to the extent that doing so would
result in the Company's having any "related person insurance income"
or "RPII" (as defined in Section 953(c)(2) of the United States
Internal Revenue Code of 1986, as amended (the "Code")). In order to
effectuate the foregoing, the Underwriting Agent, in its capacity as
agent for the Company, will: (A) not write reinsurance for insurers
that are "United States shareholders" (as defined in Section 953(c)
of the Code; (B) in a case where the person or persons insured under
insurance policies that are to be reinsured cannot be identified,
reinsure risks affecting large populations in order to minimize the
portion of the Company's reinsurance premiums that are attributable
(directly or indirectly) to the risks of any particular person that
may be a United States shareholder or persons related to such
shareholder (within the meaning of Section 953(c) of the Code); and
(C), except with the express written consent of the Company (which
consent shall be granted or withheld in the Company's sole and
absolute discretion), not write any reinsurance policy if the
Underwriting Agent knows, or has reason to know, that such policy
may (directly or indirectly) reinsure risks of a United States
shareholder or persons related to such shareholder (within the
meaning of Section 953(c) of the Code). If, and to the extent that,
any reinsurance treaty to which the Underwriting Agent has bound the
Company would otherwise result in the Company's having any RPII, the
Underwriting Agent, on behalf of IPCRe Limited, hereby accepts
retrocession of the reinsured risk to the extent that the risk is
(directly or indirectly) the risk of a United States shareholder or
a person related to such a shareholder (within the meaning of
Section 953(c) of the Code).
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4. UNDERWRITING AGENT'S RECOMMENDATIONS
The Underwriting Agent will recommend to the Company the institution,
prosecution, defense or maintenance of any legal proceedings in connection with
any matter pertaining to the Subject Business produced by the Underwriting Agent
on behalf of the Company.
5. TERRITORY
The territory within which the Underwriting Agent shall operate is intended to
be principally Bermuda. This Agreement shall be performed and services provided
hereunder shall be rendered in all material respects in Bermuda, it being
understood that the Underwriting Agent may also perform certain functions under
this agreement through affiliates located in other jurisdictions outside of the
United States of America. The Underwriting Agent shall be the exclusive agent of
the Company for the Subject Business. The Underwriting Agent shall not, however,
have any right to represent the Company or act on its behalf within the United
States of America and shall not discharge any of its rights, duties and
obligations set forth in this Agreement from within the United States of
America. Furthermore, nothing contained in this Agreement shall prevent the
Company from soliciting, binding, writing and administering Subject Business by
and on its own behalf.
6. UNDERWRITING SERVICES
The Underwriting Agent shall perform, from outside the United States of America,
the following underwriting services on behalf of the Company:
6.1 Process submissions for property catastrophe treaty reinsurance.
6.2. Rate, quote and execute property catastrophe reinsurance treaties in
accordance with the authority granted herein and in conformity with
Section 2, and, if appropriate, terminate or cancel policies and
issue notices of cancellation.
6.3 Develop and maintain underwriting files, in customary form, on
behalf of the Company and which become the property of the Company.
6.4 Use the best of its professional ability and good faith, acting in
accordance with the standard of care of a professional insurance
underwriter, in the selection of risks to be underwritten by the
Company.
6.5 Approve or deny any claim made against the Company under property
catastrophe reinsurance treaties executed by the Underwriting Agent
on behalf of the Company. All claims must be reported to the Company
by the Underwriting Agent in a timely manner, and a copy of the
claim file will be sent to the
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Company at its request, or as soon as it becomes known that the
claim (A) has the potential to exceed $5 million or (B) involves a
coverage dispute.
7. REPORTS & ACCOUNTS
7.1 The Underwriting Agent shall provide the Company with access to its
management information systems, for the purpose of reviewing data
which relates to business transacted under this Agreement.
7.2 Monthly, the Underwriting Agent shall allow American International
Company Limited, or any other administrative services provider to
the Company, to take an extract from its underwriting system to
populate an accounting or other analytical system selected by the
Company or such administrative services provider. The Underwriting
Agent shall maintain data on catastrophe accumulations relating to
the Subject Business in a customary form and shall provide such
information to the Company, as and when requested.
7.3 The Underwriting Agent shall use its best efforts to provide other
reports or analyses as may be reasonably requested by the Company.
7.4 Not later than 30 days after the last day of each calendar quarter,
the Underwriting Agent shall deliver to the Company a computation of
the unearned premium and outstanding loss reserves, including
reserves for losses incurred but not reported ("IBNR") required to
be maintained by the Company with respect to business produced by
the Underwriting Agent. Such computations shall be made in
accordance with Bermuda statutory accounting principles and in the
manner specified by the Company. In addition, the Underwriting Agent
shall furnish semi-annually such supplementary underwriting and
actuarial statistics as may be required by the Company.
7.5 The Underwriting Agent will instruct the producer of any Subject
Business produced for the Company to cause the premium relating to
such Subject Business to be deposited directly to a premium account
established by the Company.
7.6 The Company shall pay any claims presented to it for payment by the
Underwriting Agent within 2 business days of receipt of written
notice from the Underwriting Agent stating the nature and amount of
the claim to be paid, and identifying the treaty to which the claim
relates.
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8. RECORDS
8.1 The Underwriting Agent shall keep, in a manner and form approved by
or acceptable to the Company, true and complete Books and Records of
all the Company's business conducted under and pursuant to this
Agreement, including, but not limited to, reinsurance treaties or
contracts, underwriting, reserves, premium and claim records. The
Underwriting Agent shall maintain all records with regard to the
Company's business separately from the records of other businesses
for which it may act as underwriting agent or any similar capacity.
8.2 The Company shall have the right at all times during the
Underwriting Agent's business hours, and at its own expense, to
inspect and to make copies of the Books and Records of the
Underwriting Agent (or any sub-agent employed by the Underwriting
Agent) relating to the services provided hereunder. The term "Books
and Records" shall mean all materials, books and records and data in
whatever form or medium (i) furnished by the Company to the
Underwriting Agent in connection with the performance by the
Underwriting Agent of its obligations under this Agreement; (ii)
generated by the Underwriting Agent in connection with the
performance by the Underwriting Agent of its obligations under this
Agreement; (iii) that may be accessed by the Company or its
administrative agent or provided by the Underwriting Agent to the
Company or its administrative agent pursuant to Section 7.1,7.2, 7.3
or 7.4; or (iv) that in any way pertain to the performance of the
obligations of the Underwriting Agent under this Agreement,
including books of account, reinsurance treaties and other contracts
entered into by the Underwriting Agent on behalf of the Company and
all correspondence related thereto, underwriting files, claim and
reserving files, data on premium and claim payments and any and all
materials, books and records and data relating to the reinsurance
treaties entered into by the Underwriting Agent on behalf of the
Company.
8.3 All Books and Records kept by the Underwriting Agent in connection
with the reinsurance treaties entered into by the Underwriting Agent
on behalf of the Company shall be and remain the sole property of
the Company and will remain the property of the Company following
termination of this Agreement, including all databases maintained by
the Underwriting Agent relating to the Companies' accounting,
insurance or other records and whether or not such data is
maintained on information systems owned by the Underwriting Agent or
the Companies or neither. The Underwriting Agent shall create and
maintain underwriting records on behalf of Company in hard copy form
and shall deliver such records to the Company whenever requested by
the Company or periodically when the Underwriting Agent deems them
to be no longer required to perform its duties under this Agreement.
All such Books and Records shall be delivered to the Companies upon
termination of this Agreement. All data related to the business
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of the Company and entered by the Underwriting Agent into its
computer systems shall be delivered to the Company in electronic
form.
8.4 The provisions of this Section shall survive the termination of this
Agreement until all obligations are fully discharged.
9. CURRENCY
All records of business transacted pursuant to this Agreement shall be
maintained in original currency.
10. COMPENSATION
The Underwriting Agent's remuneration for all services performed under this
Agreement shall be its commission ("Agency Commission") calculated at the rate
of 6.5% of the gross premiums written (less return premiums and commissions) on
behalf of the Company. Prior to the end of each month, the Underwriting Agent
shall provide to the Company a statement of gross premiums written during the
prior month, converted into United States dollars at the then prevailing rates,
together with a calculation of the Agency Commission. The Company shall pay the
Agency Commission to the Underwriting Agent promptly thereafter.
11. RELATIONSHIP
The Company and the Underwriting Agent are independent of one another, and as an
independent agent, the Underwriting Agent is acting in the ordinary course of
its business. Nothing in this Agreement shall be deemed to create: (i) a joint
venture or partnership between the parties; (ii) a relationship of employer and
employee; (iii) a relationship of principal and agent; or (iv) any relationship
other than independent parties contracting with each other solely for the
purpose of carrying out the provisions of this Agreement.
12. LICENSING
The Underwriting Agent warrants that it now has and shall maintain during the
term of this Agreement the license or licenses necessary to administer the
business described in this Agreement. In the event that any license the
Underwriting Agent utilizes to fulfill the requirements of the Agreement
expires, terminates or is suspended for any reason, this Agreement may be
terminated immediately by the Company the Company may avail itself of any rights
provided under Section 13.
13. TERM & TERMINATION
13.1 The term of this Agreement shall commence on December 1, 2001 and
shall continue in force until December 2,2004 (the "Initial Term").
Thereafter, this
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Agreement shall continue in force for successive one-year periods
(each, a "One-Year Renewal Term"), unless prior written notice to
terminate shall have been delivered by one party to the other party
at least 90 days prior to the expiration date of the Initial Term or
any One-Year Renewal Term.
13.2 Except as otherwise provided herein, this Agreement shall terminate
automatically upon the effective date of the sale, transfer or
merger of the Underwriting Agent's business.
13.3 Termination of this Agreement 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.
14. CONFIDENTIALITY
14.1 The Underwriting Agent hereby acknowledges that, as a result of its
performance of services for the Company under this Agreement, it has
and will acquire non-public information with respect to the Company
and its affairs, including: (a) information relating to the
business, finances, methods of operation, business plans, marketing
strategies and other information relating to the Company and (b)
other trade secrets and proprietary information of the Company
(hereinafter collectively referred to as "Confidential
Information").
14.2 During the term of this Agreement, and at all times thereafter, the
Underwriting Agent shall, and shall cause each of its directors,
officers, employees and agents (such Persons, collectively "Covered
Persons") to, keep confidential (to the extent required hereby) all
Confidential Information that any of them may obtain and not to use
such Confidential Information for any purpose other than in the
course of the performance of this Agreement.
14.3 The foregoing restrictions shall not apply with respect to any
Confidential Information (i) previously known to the Underwriting
Agent through a source not bound by any obligation to the Company to
keep the Confidential Information confidential, (ii) lawfully
obtained by the Underwriting Agent from a source other than the
Company, which source is not bound by any obligation to keep such
Confidential Information confidential, (iii) the disclosure of which
to any director, officer, employee or agent of the Underwriting
Agent is necessary to carry out the purposes of this Agreement,
provided, however, that such disclosure referred to in this clause
(iii) shall be limited to the extent reasonably necessary to protect
the rights of the Company with respect to its Confidential
Information, and that as a condition to disclosing any Confidential
Information to any person who is not bound by a duty of
confidentiality to the Underwriting Agent and its clients, the
Underwriting Agent shall require that such person enter into a
confidentiality
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agreement with the Company on terms satisfactory to the Company, or
(iv) independently developed by the Underwriting Agent without
reference to the Confidential Information.
14.4 The Underwriting Agent may disclose any Confidential Information if
and as required as a result of any governmental investigation, court
order, subpoena, deposition, interrogatory, request for documents,
civil investigative demand, or similar legal duress, and to the
extent reasonably necessary for the Underwriting Agent or any of its
affiliates to comply with applicable securities laws and regulations
and stock exchange requirements and the applicable regulations of
other regulatory agencies having jurisdiction over the Underwriting
Agent or any of its affiliates.
14.5 Notwithstanding anything provided in this Section 14, Confidential
Information may be disclosed with the prior written consent of the
Board of Directors of the Company.
15. INDEMNIFICATION
The Company hereby agrees to indemnify and hold the Underwriting Agent and each
of its directors, officers, servants, agents and employees, harmless from and
agree to defend each of them (collectively, "Indemnitees") from and against all
and any manner of liabilities, suits, claims, damages and expenses (other than
those arising out of the gross negligence or willful misconduct of any such
Indemnitees in the performance of any of the Underwriting Agent's obligations
hereunder) arising out of or in connection with this Agreement or the good faith
performance by the Underwriting Agent of its obligations hereunder.
16. ARBITRATION
Any controversy or claim arising out of or relating to this Agreement, or the
breach thereof, shall be submitted to a panel of three arbitrators, to be
appointed by the American Insurance Association. Each such arbitrator shall be a
current or former senior official of a Bermuda insurance or reinsurance company
but shall not be associated with any of the parties to this Agreement. Any
arbitration hereunder shall take place in Bermuda, and shall be conducted in
accordance with the Rules of the American Arbitration Association. The decision
of a majority of the arbitrators shall be in writing, shall state reasons for
the award, and shall be final and not subject to appeal, and judgment upon the
award or determination rendered by the arbitrators may be entered in any court
having jurisdiction thereof or having jurisdiction over the parties or their
assets.
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17. ASSIGNMENT
No assignment of this Agreement by one party shall be valid unless authorized in
advance in writing by the other party hereto.
18. ENTIRE AGREEMENT, AMENDMENT & WAIVER
18.1 This Agreement constitutes the entire agreement between the parties
with respect to the appointment by the Company of the Underwriting
Agent to solicit, bind, write and administer Subject Business, and
supersedes and extinguishes any warranty, representation or
arrangement previously given or made with respect thereto, other
than those expressly set out herein. The express terms hereof
supersede any course of performance or usage of the trade. This
Agreement may not be amended except in writing signed by each of the
parties hereto.
18.2 Neither the failure nor delay on the part of any party in exercising
any right, remedy, power or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or partial
exercise of any right, remedy, power or privilege preclude any other
or further exercise of the same or of any other right, remedy, power
or privilege, nor shall any waiver of any right or remedy, power or
privilege with respect to any occurrence be construed as a waiver of
such right, remedy, power or privilege with respect to any other
occurrence. No waiver hereunder shall be effective unless it is in
writing and is signed by the party asserted to have granted such
waiver.
19. NOTICES
All notices required or permitted to be given hereunder shall be in writing and
shall be given as follows:
19.1 If given by the Company:
Delivered to the Underwriting Agent at American International Building, 29
Richmond Road, Pembroke HM 08, Attention: President, or to such other
address as the Underwriting Agent may have subsequently specified to the
Company in writing; or
19.2 If given by the Underwriting Agent:
Delivered to the Company at American International Building, 29 Richmond
Road, Pembroke HM 08, Attention: President, or to such other address as
the Company may have subsequently specified to the Underwriting Agent in
writing.
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20. SERVICE OF PROCESS
In the event any legal process or notice is served on the Underwriting Agent in
a suit or proceeding against the Company, the Underwriting Agent shall forthwith
forward such process or notice to the Company.
21. REGULATORY NOTICES
The Underwriting Agent shall forward promptly to the Company all correspondence
pertaining to this Agreement received from any government regulatory agency.
22. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
Bermuda, without reference to the principles of conflicts of law thereof. If any
suit is instituted by any of the parties to enforce any of the terms or
conditions of this Agreement, each of the parties hereby submits to the
exclusive jurisdiction of and venue in the courts of Bermuda.
23. COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of which
shall be an original with the same effect as if the signatures thereto and
hereto were upon the same instrument, and such counterparts together shall
constitute one and the same instrument.
24. HEADINGS
The section headings contained herein are for convenience only and shall not
alter or limit or define the provisions hereof.
25. SEVERABILITY
In the event that any word, sentence, paragraph, provision, section, subsection
or article of this Agreement is found to be void or voidable, the remainder of
this Agreement shall nevertheless be legal and binding with the same force and
effect as though the void or voidable parts were deleted.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed in duplicate in Pembroke, Bermuda, on the date first written above.
For and on behalf of For and on behalf of
IPCRe Underwriting Services Limited Allied World Assurance Company, Ltd
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇ /s/ M.I.D. ▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇
President President
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