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EXHIBIT 10.122
SERVICE AGREEMENT
This SERVICE AGREEMENT (this "Agreement") is made and entered into
effective as of the 1st day of April, 1997 by and between Alpine Insurance
Company, an Illinois insurance company ("Alpine"), and TCO Holdings, Inc., a
Delaware corporation ("TCO").
WHEREAS, Alpine wishes to enter into a quota share arrangement (the "Quota
Share Arrangement") with United Capitol Insurance Company, a Wisconsin property
and casualty insurance company ("UCIC"), pursuant to which UCIC would cede to
Alpine a quota share portion of risks placed with UCIC by Transre Insurance
Services, a California corporation ("Transre"), and Exstar E&S Insurance
Services, a California corporation ("E&S"); and
WHEREAS, Alpine wishes to engage TCO to provide certain services to Alpine
in connection with such Quota Share Arrangement, and TCO wishes to perform such
services, on the terms and conditions set forth below.
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. SERVICES AND OBLIGATIONS. During the term of this Agreement,
subject to the overall direction of Alpine and the terms and conditions of this
Agreement and any applicable laws and administrative regulations, TCO hereby
agrees to perform the following services on behalf of Alpine:
(a) Assist in the negotiation and placement of the Quota Share
Arrangement between Alpine and UCIC.
(b) Advise Alpine and provide expertise in structuring and formalizing
the Quota Share Arrangement, including the preparation of a formal
reinsurance treaty between Alpine and UCIC.
(c) Assist Alpine on an ongoing basis in the administration and
management of the Quota Share Arrangement.
Nothing in this Agreement shall be construed to give TCO authority to bind
Alpine to perform any acts pursuant to the Quota Share Arrangement.
SECTION 2. COMPENSATION. Throughout the term of this Agreement, Alpine
shall pay to TCO, as compensation for TCO's services hereunder, an amount equal
to 3.75% of the gross premiums assumed by Alpine pursuant to the Quota Share
Arrangement, on the following conditions:
(a) Payment of such compensation shall be made to TCO on a quarterly
basis, within 30 days following the end of each calendar quarter, with
respect to premiums assumed by Alpine under the Quota Share Arrangement in
such quarter;
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(b) Alpine shall not be required, in any one quarter, to pay to TCO an
amount that exceeds the cash amount of the premiums actually received by
Alpine from UCIC for that quarter. If, in any one quarter, the
compensation paid to TCO is limited, by reason of this paragraph, to an
amount less than 3.75% of the gross premiums assumed by Alpine in the
quarter, the balance owing to TCO shall be carried forward to successive
quarters in which the amount of premiums actually received by Alpine from
UCIC exceeds 3.75% of the gross premiums assumed. Any outstanding balance
shall continue to be carried forward to successive quarters until the full
amount owing has been paid; and
(c) The maximum aggregate amount that Alpine shall be required to pay
to TCO as compensation for TCO's services under this Agreement shall be
$4,500,000.
SECTION 3. ASSIGNMENT OF RIGHTS. TCO's right to receive payments
hereunder may be assigned at any time upon written notice by TCO to Alpine, and
Alpine shall act in accordance with any such written notice of assignment.
SECTION 4. EFFECTIVE DATE. The effective date of this Agreement shall be
deemed to be April 1, 1997, but this Agreement shall have no force or effect
until the earlier to occur of:
(a) affirmative approval of this Agreement by the Director of Insurance
of the State of Illinois (the "Director"); or
(b) the expiration of 30 days from the date this Agreement is filed
with the Director for approval.
SECTION 5. TERM AND TERMINATION. This Agreement shall remain in full
force and effect until such time as both Alpine and TCO mutually consent to
termination of the Agreement or until such time as Alpine has paid to TCO
$4,500,000, the maximum aggregate amount of compensation required under the
terms of this Agreement.
SECTION 6. NO WAIVER OF RIGHTS. The parties agree that no indulgence or
acceptance of any delinquent or partial payment or performance by either Alpine
or TCO, or ratification after the fact of any violation or breach of any
provision of this Agreement by Alpine or TCO, shall be construed as a waiver of
any of their rights hereunder.
SECTION 7. ENTIRE AGREEMENT. This Agreement represents the entire
agreement between Alpine and TCO with respect to the subject matter hereof, and
shall not be modified or affected by any offer, proposal, statement or
representation, oral or written, made by or for either party in connection with
the negotiation of the terms hereof.
SECTION 8. NOTICE. Any notice provided hereunder shall be in writing and
shall be deemed sufficiently given on the date of service, if served
personally, or on the third business day after mailing if mailed by certified
or registered mail, postage prepaid, or sent by some other means at least as
fast and reliable as certified or registered mail, or on the first business
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day after placement with a reputable overnight delivery service, addressed as
follows (or to such other address as Alpine or TCO may give the other in the
manner herein provided for the giving of notice):
If to Alpine:
Alpine Insurance Company
0000 Xxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
with a copy to:
Xxxxxx Xxxxxx & Zavis
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
If to TCO:
TCO Holdings, Inc.
0000 Xxxxxxx Xxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx
SECTION 9. SUCCESSOR AND ASSIGNS. This Agreement shall be binding upon
and inure to the benefit of Alpine, TCO, and their respective successors and
assigns.
SECTION 10. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which shall be considered an original, but all of which,
together, shall be considered one and the same agreement.
SECTION 11. INVALID OR UNENFORCEABLE PROVISIONS. The invalidity or
unenforceability of any particular provision of this Agreement shall not affect
the other provisions hereof, and this Agreement shall be construed in all
respects as if the invalid or unenforceable provision had been revised to the
minimum extent necessary to render it enforceable under applicable law.
SECTION 12. CAPTIONS. The captions of the various sections of this
Agreement shall not be deemed to be a part of this Agreement and shall not be
construed in any way to limit the content thereof, but are inserted herein only
for reference and the convenience of the parties.
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SECTION 13. CONTROLLING LAW. This Agreement shall be interpreted in all
respects in accordance with the laws of the State of Illinois, without regard
to principles of conflicts of law.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
1st day of April, 1997.
ALPINE INSURANCE COMPANY
By:
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Xxxxxx X. Xxxxx
Its: President
TCO HOLDINGS, INC.
By:
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Its:
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