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EXHIBIT 10.21
GENERAL AGENCY AGREEMENT
THIS
AGREEMENT, made this 1st DAY OF August, 1996, between North
Pointe
Insurance Company, referred to as the
"COMPANY," and MS General Agency, Inc.,
hereinafter referred to as the "GENERAL
AGENCY".
For
consideration received and pursuant to GENERAL AGENCY'S request
that
the underwriting facilities of COMPANY be
made available to GENERAL AGENCY, it
is agreed that:
1. APPOINTMENT.
The
COMPANY appoints GENERAL AGENCY with the authority and the power
to
solicit,
receive, accept, bind, decline, countersign, and endorse
insurance
on such classes of risk as the COMPANY from time to time may
authorize
by letter of instruction, underwriting bulletin or underwriting
guide,
which shall become a part of this contract, collect premiums,
and
generally
with all powers and authority necessary to conduct a general
agency for
the COMPANY in the state(s) listed in the attached Appointment
and
Commission Addendum, incorporated herein by reference. This
authority
shall not
be delegated by GENERAL AGENCY to any one person or persons
except as
is expressly authorized in writing by an offices of the
COMPANY.
This
appointment is not exclusive and the COMPANY may appoint others
in
the same
state(s).
2. ACCEPTANCE OF
APPOINTMENT.
GENERAL
AGENCY accepts the appointment, agreeing to perform faithfully
the
duties
thereof to the best of its knowledge, skill, judgment.
3. REPORTING.
GENERAL
AGENCY agrees to make prompt reports to COMPANY in such manner
as
may be
required by COMPANY of risks written, including renewals and/or
endorsements, to make
full and prompt reports of all losses incurred, as
well as of
all other details relating to the business and affairs of
COMPANY;
and to allow personal examination and audit by a representative
of
COMPANY
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of all papers, records, and accounts referring thereto.
4. COMMISSIONS.
(a)
As full
compensation for insurance placed with COMPANY, COMPANY will
pay commissions in accordance with the attached General Agent
Commission Schedule (Addendum 1) (hereinafter referred to as
"Commissions").
(b)
GENERAL AGENCY
agrees, either during the continuance of this
Agreement or after its cancellation to refund unearned
Commissions
caused by policy cancellations or reductions, in each case at
the
same rate at which such Commissions were retained by or paid to
GENERAL AGENCY.
(c)
COMPANY reserves
the unilateral right to revise the rates of
Commissions by giving not less than sixty (60) days written
notice
to GENERAL AGENCY. Such change shall not affect Commissions on
Premiums written before the effective date stated in the
written
notice.
(d)
Uncollectible
premiums arising from additional amounts due on
particular policies as a result of adjustable exposures or
audits
may be turned back to COMPANY for direct collection and GENERAL
AGENCY shall not be responsible for such premium provided:
(1) GENERAL
AGENCY has made every reasonable effort to obtain and
retain an adequate deposit premium; and
(2) GENERAL
AGENCY has billed for and made at least three attempts
(including original billing) to collect the additional
premium; and
(3) Notifies
COMPANY no less than forty-five (45) days and no more
than sixty (60) days after the month in which GENERAL AGENCY
issued the Audit Endorsement and provides to COMPANY proof of
its three attempts to collect along with proof
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of two attempts by its subproducer to collect the additional
premium due.
(e)
No Commission
will be paid on items turned over to COMPANY for
collection, unless subsequently collected by GENERAL AGENCY.
5. PREMIUMS AND
ACCOUNTING.
The
following provisions are applicable to all insurance placed by
GENERAL
AGENCY
with COMPANY:
(a)
GENERAL AGENCY
guarantees payment of all monies due COMPANY on
business written under this Agreement, whether or not collected
by
GENERAL AGENCY. There shall be no flat cancellations of policies
or
coverage bound or issued unless specifically authorized in
writing
by COMPANY.
(b)
Premium
accounts, as shown in COMPANY'S monthly statements, are due
and payable to COMPANY as rendered. Payment is due in COMPANY'S
office forty-five (45) days from the end of the statement month
and
in no event shall credit for the payment of premiums so reflected
be
extended for longer than 45 days from the end of the month for
which
the monthly statement applies. Requirement for payment "as
rendered"
can only be waived by the COMPANY.
(c)
In the event of
a dispute regarding to the dollar amount owed to
COMPANY for an individual policy or in total for a monthly
account
statement, GENERAL AGENCY agrees to pay the full amount stated
by
COMPANY. COMPANY and GENERAL AGENCY shall cooperatively
investigate
and attempt to resolve any such discrepancies as quickly as
reasonably possible. If COMPANY and GENERAL AGENCY are unable
to
amicably resolve the discrepancy, the dispute may be submitted
to
arbitration in accordance with the terms of this Agreement.
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(d)
All premiums are
the property of COMPANY and shall be held by
GENERAL AGENCY in a fiduciary capacity in trust for COMPANY
until
delivered to COMPANY. The keeping of an account with GENERAL
AGENCY
on COMPANY'S behalf, as a creditor and debtor account, is declared
a
record memorandum of business transacted, and neither such
keeping
of account nor alteration in commission amount, nor failure to
enforce prompt remittance, compromise, settlement, declaration
of
balance of account nor suspension or cancellation of this
General
Agency Agreement shall be held to waive assertion of the
fiduciary
relationship as to Premiums collected by GENERAL AGENCY.
(e)
The right of
GENERAL AGENCY or any other person to receive
Commissions shall at all times be subordinate to the right of
COMPANY to offset or apply Commissions, including Profit
Sharing
Commissions, against any indebtedness of GENERAL AGENCY to
COMPANY.
This right of offset shall also apply against any liability
incurred
by COMPANY to any person(s) by reason of any negligent or
unauthorized acts committed by GENERAL AGENCY.
(f)
All accounting
and underwriting records of GENERAL AGENCY pertaining
to Contracts written through COMPANY shall be subject to
inspection
by COMPANY at any reasonable time during the continuance of
this
Agreement and for three years after the termination hereof
6. INDEPENDENT CONTRACTOR
STATUS.
COMPANY
and GENERAL AGENCY agree that this General Agency Agreement is
best
served when GENERAL AGENCY is an Independent Contractor for all
purposes.
As an independent contractor, GENERAL AGENCY has the right to
exercise
independent judgment as to time, place and manner of soliciting
insurance
applications, servicing policyholders, and otherwise carrying
out
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the
provisions of the Agreement. Furthermore, GENERAL AGENCY will pay
all
expenses
in connection with its GENERAL AGENCY and has no authority to
incur any
indebtedness on behalf of COMPANY.
GENERAL
AGENCY'S authority hereby conferred does not extend to the
adjustment, compromise or settlement of claims or the waiver of any
policy
condition
in relation thereto except upon specific authority in writing
from
COMPANY.
7. NOTIFICATION TO THE
COMPANY.
GENERAL
AGENCY agrees to forward to COMPANY copies of all binders,
policies,
certificates and endorsements issued by GENERAL AGENCY, or to
otherwise
notify COMPANY of all liability accepted within thirty (30)
days
following
the effective date of such liability. However, any risk which
GENERAL
AGENCY submitted to COMPANY for approval because GENERAL AGENCY
was not
given authority to quote that particular risk by COMPANY'S
Underwriting Guide or underwriting program and which was approved
for
quote by
COMPANY must be reported to COMPANY the same day that GENERAL
AGENCY
binds that risk.
Losses
reported to GENERAL AGENCY shall be reported to COMPANY the
same
day as
received by GENERAL AGENCY.
8. OWNERSHIP OF
EXPIRATIONS.
If, upon
cancellation of this Agreement, GENERAL AGENCY has promptly
accounted
for and paid to COMPANY all Premiums and other monies and
securities
collected or held for or on behalf of COMPANY for which GENERAL
AGENCY may
be liable; the records of GENERAL AGENCY and the use and
control of
expirations shall remain the property of GENERAL AGENCY;
otherwise,
the right and title to the records and the use and control of
ownership
of expirations shall be vested in COMPANY for sale, use or
disposal
as it deems fit to reduce
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the amount
of indebtedness.
Regardless
of who owns control of the expiration dates, COMPANY and
GENERAL
AGENCY recognize that the policyholder, who pays the premium,
ultimately
decides who services and underwrites their insurance.
Therefore,
despite the language regarding the property rights and the
expiration
dates of policies, the decision of t
