.
.
.
SURETY $3,000,000 EXCESS OF $12,000,000
EXCESS OF LOSS REINSURANCE AGREEMENT
ARTICLE PAGE
------- ----
BUSINESS COVERED I 2
TERM II 3
TERRITORY III 3
EXCLUSIONS IV 3
DEFINITIONS V 7
RETENTION AND LIMIT VI 10
REINSTATEMENTS VII 10
NET RETAINED LINES VIII 11
PREMIUM VIX 11
OTHER REINSURANCE X 11
EXTRA CONTRACTUAL OBLIGATIONS XI 11
LOSS NOTICES AND SETTLEMENTS XII 13
OFFSET XIII 13
SALVAGE AND SUBROGATION XIV 13
WARRANTIES XV 14
DELAYS, ERRORS, OR OMISSIONS XVI 16
ENTIRE AGREEMENT AND MODIFICATION XVII 16
ACCESS TO RECORDS XVIII 16
CONFIDENTIALITY XIX 17
INSOLVENCY XX 17
ARBITRATION XXI 18
TAXES XXII 19
FEDERAL EXCISE TAX XXIII 19
CURRENCY XXIV 19
AGENCY XXV 20
NOTICES XXVI 20
CHOICE OF LAW XXVII 20
SPECIAL PROVISION XXVIII 20
SIGNATURE PAGE 21
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Page 1 of 22
SURETY $3,000,000 EXCESS OF $12,000,000
EXCESS OF LOSS REINSURANCE AGREEMENT
THIS AGREEMENT is made and entered into by and between WESTERN SURETY
COMPANY, SURETY BONDING COMPANY OF AMERICA, UNIVERSAL SURETY OF AMERICA
(collectively referred to as the "Company") of the one part and CONTIENTAL
CASUALTY COMPANY (hereafter referred to as the "Reinsurer") of the other part.
WITNESSETH:
That in consideration of the mutual covenants hereinafter contained and
upon the terms and conditions hereinbelow set forth, the parties hereto agree as
follows:
ARTICLE I
BUSINESS COVERED
This Agreement is to indemnify the Company in respect of the net excess
liability, as hereinafter provided and specified, which may accrue to the
Company as a result of loss or losses discovered during the term of this
Agreement under any and all bonds heretofore or hereinafter issued or entered
into by or on behalf of the Company and classified by the Company as:
ALL CONTRACT SURETY BUSINESS AND COMMERCIAL SURETY BUSINESS WRITTEN BY
THE COMPANY AND BUSINESS ASSUMED BY WESTERN SURETY COMPANY OR
UNIVERSAL SURETY OF AMERICA FROM CONTINENTAL CASUALTY COMPANY,
NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, AMERICAN CASUALTY COMPANY
OF READING, PENNSYLVANIA, CONTINENTAL INSURANCE COMPANY AND ITS
AFFILIATES (ALL OF WHICH ARE HEREINAFTER REFERRED TO AS "CNA SURETY
CORPORATION AND BUSINESS ASSUMED FROM CNA") EXCEPT ALL BUSINESS
UNDERWRITTEN IN SIOUX FALLS, SOUTH DAKOTA AND IN THE COMPANY'S SMALL &
SPECIALTY CONTRACT OFFICES BY WESTERN SURETY COMPANY, UNIVERSAL SURETY
OF AMERICA AND SURETY BONDING COMPANY OF AMERICA WHICH SHALL BE
EXCLUDED FROM COVERAGE HEREUNDER.
All reinsurance for which the Reinsurer will be obligated by virtue of this
Agreement will be subject to the same terms, conditions, interpretations,
waivers, modifications, and alterations as the respective bonds of the Company
to which this Agreement applies. This Agreement is solely between the Company
and the Reinsurer. Performance of the obligations of each party under this
Agreement shall be rendered solely to the other party; however, if the Company
becomes insolvent, the liability of the
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Page 2 of 22
Reinsurer shall be modified to the extent set forth in the Insolvency Article.
In no instance shall any principal, indemnitor, or obligee of the Company or any
claimant against a principal, indemnitor, or obligee of the Company have any
rights under this Agreement.
ARTICLE II
TERM
This Agreement shall apply to losses discovered during the 15-month term
from October 1, 2003 through December 31, 2004, both days inclusive. At the
option of either the Company or the Reinsurer, this Agreement may be cancelled
at anytime during its term, by either party hereto providing the other party
with 60 calendar days prior written notice of its intention to cancel this
Agreement.
Notwithstanding the expiration of this Agreement as hereinabove provided,
its provisions shall continue to apply to all unfinished business hereunder to
the end that all obligations and liabilities incurred by each party hereunder
shall be fully performed and discharged.
ARTICLE III
TERRITORY
This Agreement shall be worldwide in geographical scope as per original
bonds.
ARTICLE IV
EXCLUSIONS
This Agreement does not cover:
A. Business accepted by the Company as reinsurance from other insurance
companies or associations; however, this exclusion shall not apply to
CNA Surety Corporation and business assumed from CNA.
B. Any loss or liability accruing to the Company directly or indirectly
from any business written by or through any pool or association
including pools or associations under which membership by the Company
is required under any statutes or regulations.
C. All liability of the Company arising by agreement, operation of law,
or otherwise from its participation or membership, whether voluntary
or involuntary, in any Insolvency Fund. "Insolvency Fund" includes any
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Page 3 of 22
Guaranty Fund, Insolvency Fund, Plan, Pool, Association, Fund, or
other arrangement, howsoever denominated, established or governed,
which provides for any assessment of, or payment, or assumption by the
Company of part or all of any claim, debt, charge, fee, or other
obligation of an insurer, or its successors, or assigns which has been
declared by any competent authority to be insolvent or which otherwise
is deemed unable to meet any claim, debt, charge, fee, or other
obligation in whole or in part.
D. Co-surety bonds not controlled in their entirety by the Company ("not
controlled in their entirety" means the Company does not have a
contractual agreement with the producing agent and has not received
the premium from or paid a commission to the producing agent on the
bond(s) in question, or co-surety bonds on which the Company has
accepted liability as an accommodation to the lead co-surety in lieu
of the Company exercising its customary due diligence in reliance upon
its established underwriting standard as evidenced by its case file).
E. Bank Depository Bonds that exceed $25,000,000 in the aggregate during
the 12-month calendar year (being January 1 through December 31) of
this Agreement, as respects each insured Commercial Bank or each
insured chartered Savings Bank having minimum assets of at least
$100,000,000. The $25,000,000 limit shall include either a single bond
in the amount of $25,000,000 (that has been written with a special
acceptance) written in favor of one depositor or multiple bonds issued
to the same bank amounting to $25,000,000, in the aggregate, written
in favor of multiple depositors.
▇. ▇▇▇▇▇ classified by the Surety Association of America as class codes
580, 581 or 597 and the following bonds associated with or
guaranteeing:
1. Bonds associated with commercial investment and loan guarantees.
2. Guarantees of corporate debt.
3. Note guarantee bonds.
4. Net asset value/money market bonds.
5. Refundment guarantees.
6. Guarantees of principal and interest.
7. Municipal bonds.
8. Mortgage deficiency bonds.
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9. Any fluctuation in financial markets or commodity prices.
10. Inaccuracy of any currency valuations.
11. Overpayments of any financial obligations for any reasons
including, but not limited to accounts receivable coverage.
12. Golden parachute coverage.
13. Guarantees of bank letters of credit.
14. Guarantees of mortgage backed securities.
15. Film guarantees.
16. Student loans.
17. Weather-related insurance.
18. Structured financial transactions originating or residing in the
debt or capital markets.
19. Collateralized loan obligations (CLO) and/or collateralized bond
obligations (CBO) collectively known as collateralized debt
obligations, including but not limited to conventional CLO's,
synthetic CLO's and/or balance sheet CLO's.
20. Instruments designed to guarantee funded credit transactions,
including, but not limited to contingent capital products,
contingent liquidity products and/or contingent equity products
which raise capital by selling securities or provide event
liquidity subject to certain conditions being met.
21. Instruments designed to guarantee credit wraps, transactions that
provide credit substitution and/or credit enhancement of loans,
underlying asset backed securities, municipal bonds that directly
enhance the credit risk of debt securities to investors.
22. Instruments designated as bonds that guarantee the performance of
assets that are securitized into marketable securities for sale
to investors.
G. Bail Bonds.
H. Business written under the Small Business Administration's Surety Bond
Guarantee Program.
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I. Advance Payment Bonds except those that cover partial payments not to
exceed 25% of Construction or Supply Bonds.
▇. ▇▇▇▇▇ commonly known as Completion Bonds, that involve an undertaking
by the surety to a lender to a construction project to the effect that
the project shall be completed, free of liens, whether or not the
owner or user of the project performs its obligations to the
contractor; provided, however, that any such bonds which are dual
obligee bonds wherein a so-called "Savings clause" (i.e., a provision
to the effect that the lender as beneficiary of the bond is not
entitled to indemnity there under if the owner or user of the project
has not performed its obligations to the contractor) is utilized will
not by reason of this exclusion be excluded from coverage hereunder.
▇. ▇▇▇▇▇▇▇ and Post Closure Bonds and bonds covering superfund hazardous
waste removal which are written with an effective date on or after
January 1, 2002.
L. Qualifying Bonds of insurance companies with a rating of less than AAA
(S & P) and/or A+ (A.M. Best), which are written with an effective
date on or after January 1, 2002.
M. Lease Bonds with a term exceeding 5 years or with covenants to build.
▇. ▇▇▇▇▇ written at the request of the Company's bond claim department.
▇. ▇▇▇▇▇ guaranteeing payment of settlements to third party
administrators.
▇. ▇▇▇▇▇▇ arising from a principal where the Company has received notice
of claim for said principal prior to the inception of this Agreement.
Q. SEC liability bonds.
R. Reclamation bonds (except for aggregate sand and gravel pits and strip
coal mining where such obligations are incidental to the principal's
overall obligations) which are written with an effective date on or
after January 1, 2002.
S. Surety bonds issued or written where principal is owned by, affiliated
with, or a subsidiary of either the Company or CNA Financial
Corporation.
T. Black lung or United Mine Workers of America bonds that are written
with an effective date on or after January 1, 2002.
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U. Surety bonds covering contracts with expected durations in excess of
five years at contract inception, exclusive of construction warranties
or change orders.
V. Ship building.
W. Excess FDIC.
X. Surety loss attributable to a certified act of terrorism as defined by
the Federal Terrorism Risk Insurance Act of 2002.
Y. Excess SIPC bonds.
The Company may submit in writing to the Reinsurer for special acceptance
hereunder business not covered by this Agreement. If said business is
accepted by the Reinsurer it shall be subject to the terms of this
Agreement, except as such terms are modified by such acceptance. Any loss
occurring on an excluded bond shall be ignored in determining the Company's
ultimate net loss for the purposes of this Agreement.
ARTICLE V
DEFINITIONS
The following definitions shall apply to this Agreement:
A. "Aggregate bonded work program" shall mean the following:
1. As respects principals for which the Company provides contract
bonds primarily in connection with construction contracts, the
greater of: (a) the aggregate line of authority issued by the
Company for bonded construction contracts or supply contracts
issued, or (b) the uncompleted portion of bonded construction
contracts or supply contracts, including the principal's share of
joint ventures, outstanding bid bonds where the contract shall be
bonded, and excluding cost-plus contracts not subject to
guaranteed maximum prices, at the time a bond is executed.
2. As respects principals for which the Company provides contract
bonds either primarily in connection with contracts for machinery
made to a special order and which bonds are classified as Class A
or Class A-1 in the Contract section of the Surety Association of
America manual, or in connection with contracts for the supply of
goods or services, the greater of: (a) the aggregate line of
authority issued by the Company and outstanding at the time a
bond is executed, or (b) the aggregate of bond penalties for all
bonds, including bid bonds, known to the Company as outstanding
at the time a bond is executed.
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3. As respects contract principals with incidental Commercial Surety
exposure, the aggregate bonded work program shall be the greater
of: (a) the aggregate line of authority issued by the Company for
bonded construction contracts or supply contracts issued, or (b)
the uncompleted portion of bonded construction contracts or
supply contracts, including the principal's share of joint
ventures, outstanding bid bonds where the contract will be
bonded, and excluding cost-plus contracts not subject to
guaranteed maximum prices, at the time a bond is executed plus
the aggregate of bond penalties for all non-contract bonds, known
to the Company as outstanding at the time a bond is executed.
B. "Bond" shall mean any bond, undertaking, guarantee, indemnity, binder,
or other obligation, including riders and endorsements and letters and
agreements in connection therewith, at any time issued, assumed or
accepted by the Company and classified by the Company as Surety
business at the effective date of such business.
C. "Bonded aggregate liability" as respects International Business shall
mean the sum of:
1. for performance and/or payment bonds with limits greater than 50%
of the contract price, the uncompleted portion of bonded
construction contracts including the principal's share of joint
ventures bonded by the Company, outstanding bids approved by the
Company and the Company's portion of the contract being bonded,
excluding bonded cost-plus contracts not subject to guaranteed
maximum prices, plus:
2. the outstanding penal sum of low penalty bonds (bond with limits
below 50% of the contract price) and all other bonds (including
those on supply/furnish and install contracts) bonded by the
Company at the time a bond is executed.
D. "Contract Surety business" shall mean principals for which the Company
provides contract bonds primarily in connection with construction
contract(s) and/or primarily in connection with contracts for
machinery made to a special order and which bonds are classified as
Class A or Class A-1 in the Contract section of the Surety Association
of America manual, and/or in connection with contracts for the supply
of goods or services. Contract Surety business may contain incidental
Commercial Surety exposure. "Incidental Commercial Surety exposure" is
defined as 12.5% of the overall bonded exposure up to a maximum of
$25,000,000 related to bonds that are classified in the Non-Contract
section of the Surety Association of America manual.
E. "Gross net written premium income" shall mean the gross written
premium accounted for by the Company under all surety business
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reinsured hereunder during the term of this Agreement, less deductions
for return premiums and cancellations, and less premiums, if any, paid
by the Company for facultative reinsurances or treaty reinsurances,
recoveries from which would inure to the benefit of the Reinsurers
hereon.
F. "Loss discovered" shall mean the following:
The Company shall have discovered a loss when the Company has incurred
a loss of $5,000,000 or more for each principal through the
establishment of a reserve, payment of loss or allocated expenses,
assumption of a liability to prevent a default, or a combination
thereof. Any loss discovered under the Company's previous Surety
Excess of Loss Reinsurance Agreement or its 24-month extended
discovery period cannot also be a discovered loss subject to the terms
and conditions of this Agreement. Likewise, the principal, IT Group,
being a known loss, cannot be discovered under this Agreement.
G. "Principal" shall mean one or more firms or corporations under the
same management or control, or one or more persons or entities for
whom bonds were executed in reliance upon the indemnity of the same
person, firm or corporation, or in reliance upon the indemnity of a
related group of persons, firms or corporations.
H. "Total industry-wide aggregate work program" shall mean the following:
1. As respects principals for which the Company provides contract
bonds primarily in connection with construction contracts either
as sole surety or as part of a co-surety/shared account
arrangement, the greater of: (a) the total aggregate line of
authority issued by the Company in addition to all participating
co-sureties/shared account arrangements for bonded and unbonded
construction contracts or supply contracts issued, or (b) the
total uncompleted portion of bonded and unbonded construction
contracts or supply contracts of all the participating
co-sureties or sureties in a sharing arrangement, including the
principal's share of joint ventures, outstanding bids and the
contract being bonded and excluding cost-plus contracts not
subject to guaranteed maximum prices, at the time a bond is
executed.
2. As respects principals for which the Company provides contract
bonds either primarily in connection with contracts for machinery
made to a special order and which bonds are classified as Class A
or Class A-1 in the Contract section of the Surety Association of
America manual, or in connection with contracts for the supply of
goods or services, the greater of: (a) the total aggregate line
of authority issued by the Company and outstanding at the time a
bond is executed which includes co-surety/shared account
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Page 9 of 22
arrangements, or (b) the total aggregate of bond penalties for
all bonds, including bid bonds, known to the Company as
outstanding at the time a bond is executed, including
co-surety/shared account arrangements.
I. "Ultimate Net Loss" shall mean all loss and allocated expense payments
made by the Company in the investigation, defense, settlement, or
mitigation of claims or potential claims (including the prevention of
defaults) on the surety business of the Company and in the recovery or
attempted recovery of such payments, plus 90% extra contractual
obligations, if any, as defined herein, less salvage and subrogation
recoveries and less amounts due from reinsurance which inures to the
benefit of this Agreement, whether collectible or not. Office expenses
and salaries of employees of the Company or any subsidiary or related
or wholly owned company of the Company are not allocated expense
payments. If the Company becomes insolvent, this definition shall be
modified to the extent set forth in the Insolvency Article.
ARTICLE VI
RETENTION AND LIMIT
No claim shall be made hereunder unless the Company has first sustained an
ultimate net loss in excess of $12,000,000 each principal. The Reinsurer shall
then be liable for the amount of ultimate net loss in excess of $12,000,000 each
principal. The limit of liability to the Reinsurer shall not exceed $3,000,000
ultimate net loss, each principal.
ARTICLE VII
REINSTATEMENTS
The Reinsurer agrees that in the event of the whole or any portion of the
liability hereunder being exhausted by an ultimate net loss, each principal, the
amount so exhausted shall be automatically reinstated from the time of discovery
of such loss, provided always that the Reinsurer's liability hereon shall not
exceed $3,000,000 in respect of any one ultimate net loss, each principal, nor
more than $12,000,000 for all ultimate net losses during the term of this
Agreement, subject to the provisions of the Warranties Article.
For the first reinstatement hereunder, the Company shall pay an additional
premium calculated at pro rata of the amount reinstated applied to $1,500,000.
As respects the second reinstatement hereunder, the Company shall pay an
additional premium calculated at pro rata of the amount reinstated applied to
$2,500,000. For the third and final reinstatement hereunder the Company shall
pay an additional premium calculated at pro rata of the amount reinstated
applied to $2,500,000.
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ARTICLE VIII
NET RETAINED LINES
This Agreement applies to only that portion of any insurance or reinsurance
which the Company retains net for its own account, prior to the deduction of any
underlying reinsurance and in calculating the amount of loss hereunder and also
in computing the amount or amounts in excess of which this Agreement attaches,
only loss in respect of that portion of any insurance or reinsurance which the
Company retains net for its own account prior to deduction of any underlying
reinsurance, shall be included. The amount of the Reinsurer's liability
hereunder shall not be increased by reason of the inability of the Company to
collect from any other reinsurers, whether specific or general, any amounts
which may have become due from them, whether such inability arises from the
insolvency of such other reinsurers or otherwise.
ARTICLE IX
PREMIUM
Upon execution of this Agreement by both parties hereto the Company shall
pay to the Reinsurer $300,000 which shall be considered fully earned when
received by the Reinsurer.
If the Company makes a claim to the Reinsurer hereunder, at the time the
Reinsurer pays the Company for that loss, the Company shall pay the Reinsurer an
additional premium of fifty percent of the amount of the paid loss. For the
avoidance of doubt, the additional premium described in this paragraph of
Article IX - Premium shall not apply to the Company as respects any payments
that may be made hereunder by the Reinsurer under the reinstatement provisions
in Article VII - Reinstatements.
ARTICLE X
OTHER REINSURANCE
The Company agrees to notify the Reinsurer in writing as soon as practical
of any other reinsurance covering business which is subject to this Agreement.
The Company shall notify the Reinsurer of any changes in treaty share
reinsurance arrangements as soon as practical.
ARTICLE XI
EXTRA CONTRACTUAL OBLIGATIONS
A. This Agreement shall indemnify the Company, within the limits of this
Agreement, for extra contractual obligations awarded by a court of
competent jurisdiction against the Company arising from the surety
business reinsured hereunder. Such extra contractual obligation shall
be
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added to the amount of the loss within the Company's bond limit and
the sum thereof shall be considered one loss subject to the exclusions
and limitations set forth in this Agreement.
B. "Extra contractual obligations" are defined as those damages for which
the Company is liable to pay that are not covered under any other
provision of this Agreement including but not limited to compensatory,
punitive damages and related expenses that are assessed against the
Company because of alleged or actual bad faith or negligence on its
part in the handling of any claim on the business reinsured hereunder
brought by any principal, indemnitor, obligee or claimant (hereinafter
referred to in this definition as "Principal") for which a contractual
loss has been incurred by the Company.
C. The date on which an extra contractual obligation is incurred by the
Company shall be deemed, in all circumstances, to be the date such
extra contractual obligation claim combined with the underlying
contractual claim meets the definition of loss discovered, as defined
herein; it being understood that such extra contractual obligation
claim is directly related to an underlying contractual claim. For the
purposes of this Article, "underlying contractual claim" shall mean
any claim made on business covered hereunder and for which a loss has
been incurred by the Company.
D. However, coverage hereunder as respects extra contractual obligations
shall not apply where the loss has been incurred due to the fraud of a
member of the board of directors or a corporate officer of the Company
or a Company employee with claim settlement authority acting
individually or collectively or in collusion with any individual or
corporation or any other organization or party involved in the
presentation, defense or settlement of any surety claim covered
hereunder nor shall it apply to non-claim related expenses.
E. Recoveries, collectibles or retention from any other form of insurance
or reinsurance including, but not limited to, deductibles or
self-insured retention which protect the Company against extra
contractual obligations shall inure to the benefit of the Reinsurer
and shall be deducted from the total amount of extra contractual
obligations for purposes of determining the loss hereunder.
F. If any provisions of this Article shall be rendered illegal or
unenforceable by the laws, regulations or public policy of any state,
such provision shall be considered void in such state, but this shall
not affect the validity or enforceability of any other provision of
this Article or the enforceability of such provision on any other
jurisdiction.
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G. Extra contractual obligations shall not include losses arising solely
out of any non-claim activity including but not limited to
underwriting decisions of the Company, engineering or other services
provided by the Company.
ARTICLE XII
LOSS NOTICES AND SETTLEMENTS
The Company shall provide the Reinsurer with written notice of all gross
incurred losses of $5,000,000 or more within 60 calendar days of establishing a
reserve or making a payment, or, that in the opinion of the Company, may involve
the Reinsurer under this Agreement, and of all subsequent developments
pertaining thereto that may materially affect the Reinsurer as well. Inadvertent
omission in dispatching the aforementioned notices shall in no way affect the
obligation of the Reinsurer under this Agreement, provided the Company informs
the Reinsurer of such omission promptly upon discovery.
The Company shall have the right to settle all claims under its bonds, to
make any loan or advance, which amount shall be deemed a loss hereunder, or to
guarantee a loan or advance made by others to either the principal on such bond
or in any other manner it shall so desire. The settlements, provided they are
within the terms of this Agreement, shall be unconditionally binding on the
Reinsurer. Amounts due the Company hereunder in the settlement of losses and
loss expenses shall be payable by the Reinsurer immediately upon provision by
the Company of the documented settlement and/or loss amounts and expenses
subject to this Agreement.
All salvages, recoveries or reimbursements, after deduction of expenses
applicable thereto, recovered or received subsequent to a loss settlement under
this Agreement shall be applied as if recovered or received prior to the
aforesaid settlement and all necessary adjustments shall be made by the parties
hereto.
ARTICLE XIII
OFFSET
The Company and the Reinsurer hereunder shall be entitled to deduct from
amounts due the other party under this Agreement any amounts due itself from the
other party under this Agreement.
ARTICLE XIV
SALVAGE AND SUBROGATION
Unless the Company and the Reinsurer agree to the contrary, the Company
shall enforce its right to salvage and/or subrogation and shall prosecute all
claims arising out of
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Page 13 of 22
such right to recover its loss from an obligee, indemnitor, or any other party
who caused or contributed to its loss or part thereof. Amounts recovered from
salvage and/or subrogation shall always be used to reimburse the excess
reinsurers (including the Company, should it carry a portion of excess coverage
net) in the reverse order of the participation in the loss before being used in
any way to reimburse the Company for the loss within its primary retention
hereunder.
If the amount recovered from salvage and/or subrogation exceeds the
recovery expense, the recovery expense shall be borne by each party in
proportion to its benefits from the recovery. If the recovery expense exceeds
the amount recovered, the amount recovered (if any) shall be applied to the
reimbursement of recovery expense and the remaining expense as well as any
originally incurred loss expense shall be added to the ultimate net loss.
ARTICLE XV
WARRANTIES
The Company warrants that:
A. As respects Commercial Surety business, for any new commercial
accounts written on and after January 1, 2002, or in force commercial
accounts written with a limit of $25,000,000 or less and covered under
this Agreement, the maximum limit, per commercial account, shall be no
greater than $25,000,000.
The Company also warrants a maximum limit of liability of $25,000,000
as respects in force commercial accounts with a limit of $25,000,000
or less, which are renewed on and after January 1, 2002.
The Company warrants that, with respect to "renewed and in force
commercial accounts with an aggregate limit in excess of $25,000,000"
covered under this Agreement, the Reinsurer's maximum per principal
limit shall not exceed $5,000,000. "Renewed and in force commercial
accounts with an aggregate limit in excess of $25,000,000" shall mean
any commercial account that, as of January 1, 2002, has an aggregate
outstanding bond liability in excess of $25,000,000.
Should a loss occur on "renewed and in-force commercial accounts with
an aggregate limit in excess of $25,000,000" where the Company also
writes contract bonds, the amount of loss that shall apply to the
aggregate limit of liability for "renewed and in-force commercial
accounts with an aggregate limit in excess of $25,000,000" shall be
determined by multiplying the ratio of the total commercial losses for
the principal divided by the sum of contract and commercial losses for
the principal times the total loss for the principal to this
Agreement.
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It is mutually understood and agreed by and between the Company and
the Reinsurer that the limits described in this Warranty A. are not in
addition to, but are included within, the limits stated in Retention
and Limit Article of this Agreement.
B. As respects domestic contract surety business (limited to principals
domiciled in the United States, Canada, and Puerto Rico covering bond
business written for contracts located within these territories and
other United States territories and jurisdictions):
For all new contract surety accounts written on or after January 1,
2002, the Company's maximum Aggregate Bonded Work Program limit shall
not exceed $150,000,000 for any one principal, nor shall the Total
Industry-wide Aggregate Work Program (bonded and unbonded) exceed
$400,000,000 any one principal either as sole Surety account or as a
Co-surety/Shared account. In the event that a new contract surety
account written on or after January 1, 2002 also contains commercial
exposure, the Company warrants that the maximum limit of commercial
exposure shall not exceed 12.5% of the overall bonded exposure or
$25,000,000, whichever is lesser.
Effective June 30, 2003, for all contract surety accounts in force
prior to January 1, 2002, the Company's maximum Aggregate Bonded Work
Program limit shall not exceed $200,000,000 for any one principal, nor
shall the Total Industry-wide Aggregate Uncompleted Work Program
(bonded and unbonded) exceed $400,000,000 any one principal either as
a sole Surety account or as a Co-surety/Shared account.
C. As respects international contract surety business produced and
underwritten by the International Division (limited to principals
domiciled in foreign countries except for Canada and Puerto Rico but
which may conduct business in the United States):
1. The Company's maximum bonded aggregate liability on all bonds
written in foreign countries shall not exceed $50,000,000 any one
principal.
2. The sum of (a) the Company's portion of the bonded aggregate
liability on all bonds written in foreign countries, and (b) the
Company's portion of the aggregate bonded liability on all bonds
written in the United States shall not exceed $75,000,000 any one
principal.
D. All special acceptances made by reinsurers prior to the inception of
this Agreement shall also apply to this Agreement whether or not the
Reinsurer participated in the prior years agreements. It is mutually
understood and
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agreed by and between the Company and the Reinsurer that any special
acceptances made by reinsurers who participate in layers of
reinsurance contracts above this Agreement shall also apply to this
Agreement.
However, it is mutually understood and agreed by and between the
Company and the Reinsurer that any accounts subject to special
acceptance as a result of the inclusion of commercial bonds in the
definitions of "Aggregate bonded work program" and "Contract Surety
business", or in Warranty B with respect to new contract accounts
written on or after January 1, 2002, are not covered under this
Agreement.
ARTICLE XVI
DELAYS, ERRORS, OR OMISSIONS
Inadvertent delays, errors, or omissions made in connection with this
Agreement or any transaction hereunder shall not relieve either party from any
liability that would have attached had such delay, error, or omission not
occurred, provided always that such error or omission is rectified immediately
upon discovery.
ARTICLE XVII
ENTIRE AGREEMENT AND MODIFICATION
This Agreement constitutes the entire agreement between the parties with
respect to the business reinsured hereunder and there are no understandings
between the parties other than as expressed herein. Any change or modification
to this Agreement shall be made by Endorsement to this Agreement, in writing,
signed by the parties, and said Endorsement shall form a part of this Agreement.
ARTICLE XVIII
ACCESS TO RECORDS
Upon reasonable notice, the Reinsurer, or its designated representative,
shall have access at any reasonable time to inspect and audit the books and
records of the Company which pertain in any way to this Agreement and it may
make copies of any records pertaining thereto, at its own expense. This right of
inspection, audit and information shall survive expiration of this Agreement and
shall run to the natural expiration of all liabilities reinsured hereunder.
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ARTICLE XIX
CONFIDENTIALITY
The Reinsurer hereby acknowledges that the documents, information and data
provided to it by the Company, whether directly or through an authorized agent,
in connection with the placement, execution, or performance of this Agreement
(hereinafter called the "Confidential Information") are proprietary and
confidential to the Company. Confidential Information shall not include
documents, information or data that the Reinsurer can show: (i) is publicly
known or has become publicly known through no unauthorized act of the Reinsurer,
(ii) has been rightfully received from a third person without obligation of
confidentiality, or (iii) was known by the Reinsurer prior to the placement of
this Agreement without an obligation of confidentiality.
The Reinsurer agrees not to disclose any Confidential Information; however,
this provision shall not apply to disclosures made by the Reinsurer, in the
ordinary course of business, to its retrocessionaires, auditors, accountants, or
regulatory agencies, arbitration panels or courts of law.
ARTICLE XX
INSOLVENCY
(If more than one reinsured Company is referenced in the Preamble to this
Agreement, this Article shall apply severally to each such Company.)
In the event of the insolvency of the Company, this reinsurance shall be
payable directly to the Company, or to its liquidator, receiver, conservator or
statutory successor on the basis of the liability of the Company without
diminution because of the insolvency of the Company or because the liquidator,
receiver, conservator or statutory successor of the Company has failed to pay
all or a portion of any claim. It is agreed, however, that the liquidator,
receiver, conservator or statutory successor of the Company shall give written
notice to the Reinsurer of the pendency of a claim against the Company
indicating the policy or bond reinsured, which claim would involve a possible
liability on the part of the Reinsurer within a reasonable time after such claim
is filed in the conservation or liquidation proceeding or in the receivership,
and that during the pendency of such claim, the Reinsurer may investigate such
claim and interpose, at their own expense, in the proceeding where such claim is
to be adjudicated any defense or defenses that they may deem available to the
Company or its liquidator, receiver, conservator or statutory successor. The
expense thus incurred by the Reinsurer shall be chargeable, subject to the
approval of the court, against the Company as part of the expense of
conservation or liquidation to the extent of a pro rata share of the benefit
which may accrue to the Company solely as a result of the defense undertaken by
the Reinsurer.
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As to all reinsurance made, ceded, renewed or otherwise becoming effective
under this Agreement, the reinsurance shall be payable as set forth above by the
Reinsurer to the Company or to its liquidator, receiver, conservator or
statutory successor, except as provided by Sections 4118(a)(1)(A) and 1114(c) of
the New York Insurance Law or except (1) where the Agreement specifically
provides another payee in the event of the insolvency of the Company, or (2)
where the Reinsurer, with the consent of the direct insured or insureds, have
assumed such bond or policy obligations of the Company as direct obligations of
the Reinsurer to the payees under such policies and in substitution for the
obligations of the Company to such payees. Then, and in that event only, the
Company, with the prior approval of the certificate of assumption on New York
risks by the Superintendent of Insurance of the State of New York, is entirely
released from its obligation and the Reinsurer shall pay any loss directly to
payees under such bond or policy.
ARTICLE XXI
ARBITRATION
As a precedent to any right of action hereunder, if any dispute shall arise
between the parties to this Agreement with reference to the interpretation of
this Agreement or their rights with respect to any transaction involved, whether
such dispute arises before or after termination of this Agreement, such dispute,
upon the written request of either party, shall be submitted to three
arbitrators, one to be chosen by each party, and the third by the two so chosen.
If either party refuses or neglects to appoint an arbitrator within 30 days
after the receipt of written notice from the other party requesting it to do so,
the requesting party may appoint two arbitrators. If the two arbitrators fail to
agree in the selection of a third arbitrator within 30 days of their
appointment, each of them shall name two, of whom the other shall decline one
and the decision shall be made by drawing lots. All arbitrators shall be active
or retired disinterested, impartial officers of insurance or reinsurance
companies or Underwriters at Lloyd's, London not under the control of either
party to this Agreement.
The arbitrators shall interpret this Agreement as an honorable engagement
and not as merely a legal obligation. They are relieved of all judicial
formalities and may abstain from following the strict rules of law. They shall
make their award with a view to effecting the general purpose of this Agreement
in a reasonable manner rather than in accordance with a literal interpretation
of the language. Each party shall submit its case to its arbitrator within
thirty days of the appointment of the third arbitrator.
The decision in writing of any two arbitrators, when filed with the parties
hereto, shall be final and binding on both parties. Judgment may be entered upon
the final decision of the arbitrators in any court having jurisdiction. Each
party shall bear the expense of its own arbitrator and shall jointly and equally
bear with the other party the expense of the third arbitrator and of the
arbitration. The arbitrators are prohibited from awarding punitive, exemplary
and/or treble damages of whatever nature in connection with any arbitration
proceeding concerning this Agreement.
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Said arbitration shall take place in Chicago, Illinois unless some other
place is mutually agreed upon by the parties to this Agreement.
ARTICLE XXII
TAXES
The Company shall pay all taxes on premiums reported to the Reinsurer on
this Agreement.
ARTICLE XXIII
FEDERAL EXCISE TAX
(This Article applies to reinsurers domiciled outside the United States of
America, excepting Underwriting Members of ▇▇▇▇▇'▇, London and other
reinsurers exempt from Federal Excise Tax.)
The Reinsurer shall allow for the purpose of paying Federal Excise Tax the
applicable percentage of the premium payable hereon (as imposed under Section
4371 of the Internal Revenue Service Code) to the extent such premium is subject
to such tax. In the event of any return of premium, the Reinsurer shall deduct
the aforesaid percentage from the return premium payable hereon and the Company
or its agent shall recover such tax from the United States Government.
ARTICLE XXIV
CURRENCY
Wherever the word "Dollars" and the sign "$" appear in this Agreement, they
shall be construed to mean United States Dollars, except in those cases where
the policies are issued by the Company in Canadian Dollars, in which case they
shall mean Canadian Dollars.
In the event of the Company being involved in a loss requiring payment in
United States and Canadian Currency, the Company's retention and the amount
recoverable hereunder shall be apportioned to the two currencies in the same
proportion as the amount of ultimate net loss in each currency bears to the
total amount of ultimate net loss paid by the Company.
For purposes of this Agreement, where the Company receives premiums or pays
losses in currencies other than United States or Canadian Currency, such
premiums and losses shall be converted into United States Dollars at the actual
rates of exchange at which these premiums and losses are entered in the
Company's books.
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ARTICLE XXV
AGENCY
For purposes of sending and receiving notices and payments required by this
Agreement, the reinsured company that is set forth first in the definition of
"Company" in the Preamble to this Agreement shall be deemed the agent of all
other reinsured companies referenced in the Preamble. In no event, however,
shall any reinsured company be deemed the agent of another with respect to the
terms of the Insolvency Article.
ARTICLE XXVI
NOTICES
Any notice relating to this Agreement shall be in writing and shall be
sufficiently given if delivered by hand, certified mail, or via nationally
recognized overnight courier to the Reinsurer at the following address:
Continental Casualty Company
Attn.: Chief Financial Officer
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
and to the Company at the following address:
Western Surety Company
Attn.: Chief Executive Officer
Sioux Falls, South Dakota 57117-5077
ARTICLE XXVII
CHOICE OF LAW
This Agreement, including all matters relating to formation, validity and
performance thereof, shall be interpreted in accordance with the law of the
State of Illinois.
ARTICLE XXVIII
SPECIAL PROVISION
At any time subsequent to the inception of this Agreement:
A. should the ownership, control or management of the Company or the Reinsurer
be altered or changed, in whole or in part, in such a way that receipt or
payment of funds
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Page 20 of 22
or any other contemplated transaction under this Agreement would be
prohibited by United States of America statute, regulation and/or other
applicable law, or
B. should the Company or the Reinsurer become subject to restrictions imposed
by the United States government, so that receipt or payment of funds or any
other contemplated transaction under this Agreement would be prohibited by
United States of America statute, regulation and/or other applicable law,
the Company or the Reinsurer must immediately notify the other party of same in
writing via certified, registered, or internationally recognized overnight
courier service, and the obligation to pay or receive funds or otherwise perform
under this Agreement shall be suspended until such time as the Company or the
Reinsurer are authorized by applicable law, regulation, or license to perform
under this Agreement.
IN WITNESS WHEREOF the parties acknowledge that no intermediary is involved in
or brought about this transaction, and the parties hereto, by their authorized
representatives, have executed this Agreement:
on this day of 2003
WESTERN SURETY COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
and on this day of 2003
UNIVERSAL SURETY OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
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Page 21 of 22
and on this day of 2003
SURETY BONDING COMPANY OF AMERICA
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
and on this day of 2003
CONTINENTAL CASUALTY COMPANY
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
Effective: 10/1/03
Page 22 of 22
