Exhibit 10.25
FINANCE AGREEMENT
PAID LOSS WC DEDUCTIBLE
This Finance Agreement ("Agreement") is effective as of January 1, 2001 and is
made by and between Staff Leasing, Inc. ("Insured") and Continental Casualty
Company ("Insurer").
Whereas, Insurer has issued to Insured certain insurance policies (together with
any endorsements, individually and collectively referred to as the "Policies")
which are set forth in Schedule A, which is attached to and made a part of this
Agreement; and
Whereas, Losses incurred under the Policies are subject to a workers'
compensation deductible insurance plan ("1-1-01 Insurance Plan") as set forth in
Schedule A; and
Whereas, Insured has agreed to pay Insurer premiums and reimburse Insurer for
losses and paid Allocated Loss Adjustment Expenses as defined in the Policies
("ALAE"), according to the terms and conditions of the Policies and Article 6 of
this Agreement; and
Whereas, Insured agrees to fully perform and satisfy each and every duty,
obligation and liability that arises under the Policies, the 1-1-01 Insurance
Plan and this Agreement (individually and collectively referred to as the
"Insured's Obligations");
Now, Therefore, In consideration of the covenants and undertakings of the
parties contained in this Agreement, and other good and valuable consideration,
Insurer and Insured agree as follows:
1. ESTIMATED PREMIUM -- Insured agrees to pay Insurer the estimated 1-1-01
Insurance Plan premium of $5,235,000 ("Estimated Premium"). Insured will pay the
Estimated Premium in twelve equal monthly installments ("Estimated Installment
Premium") in the amounts and times stated in the Installment Endorsement(s) to
the Policies.
The Estimated Installment Premium will include the retention, premium tax,
excess loss premium (if any), residual market charge, deductible policy premium
and any regulatory assessments identified in the Confirmation Letter dated
December 27, 2000, and any subsequent amendments.
2. PREMIUM AUDIT -- Premium audits will be performed to determine actual
exposure incurred under the Policies. Such audits may result in adjustments to
the Estimated Premium. An interim audit may be conducted by Insurer as of
October 31, 2001. Insurer will provide Insured notice of the results of any such
audit. The amount billed or refunded as a result of such audits will be limited
to net deductible premiums and any regulatory assessments.
3. ADMINISTRATION FEE - Insured agrees to pay Insurer a non-adjustable
administration fee of $545,000 ("Administration Fee") in installments in the
amounts and times stated in Schedule A of this Agreement after which time the
Administration Fee shall be considered past due and interest will accrue to the
benefit of the Insurer as described in the Payment Terms Article. The
Administration Fee is fully earned when due and no part thereof shall be
refunded.
--------------------------------------------------------------------------------
Staff Leasing, Inc. -1- January 1, 2001
4. LOSS REIMBURSEMENT - The loss reimbursement obligations of Insured under the
Policies shall be governed by the following:
A. As of the inception date of the Policies, Insured will maintain with
Insurer a minimum and deposit loss fund in the amount of $4,100,000 ("WC
Loss Fund" or "Loss Fund"). Insurer has agreed to permit the Loss Fund
currently held by Insurer in conjunction with the Insured's Insurance Plan
effective as of January 1, 2000 ("1-1-00 Insurance Plan") to be utilized
in partially complying with the loss reimbursement obligations hereunder,
thereby requiring Insured to add $600,000 to the Loss Fund securing the
1-1-00 Insurance Plan. Said additional $600,000 shall be added to the Loss
Fund (hereinafter referred to as the "Consolidated Loss Fund") as of the
inception date of the Policies and said Consolidated Loss Fund shall be
maintained as security until all claims under the 1-1-00 Insurance Plan
and the 1-1-01 Insurance Plan (hereinafter collectively referred to as the
"Insurance Plans") covered by this Agreement have been closed. Insurer
will xxxx Insured monthly for the prior calendar month's losses paid and
ALAE paid pursuant to the Policies covered by the Consolidated Loss Fund,
unpaid claims handling expenses earned (if any) by a claims administrator
(collectively "Losses and Expenses"), and, if applicable, either xxxx
Insured for the Interest in Lieu of Charge (as defined in this Article) or
remit payment to Insured of the Loss Fund Deposit Credit (as defined in
this Article) applicable to the Consolidated Loss Fund. In the event of
any default in payment by Insured, Insurer has the option to draw upon the
Consolidated Loss Fund or on any other Collateral securing Insured's
Obligations under this Agreement.
B. On or prior to December 31, 2001, Insured will establish with Insurer a
working loss fund ("Working Loss Fund"). Funding of the Working Loss Fund
will be made in an amount equal to the difference in the total of losses
paid by Insurer (with respect to the Policies covered hereunder) as of
November 30, 2001 and the amount of $31,182,000, Insured's maximum
Aggregate Retention as set forth in Article 6 of this Agreement. Funds
maintained in the Working Loss Fund will be utilized by Insurer to pay
losses applicable to Insured's maximum Aggregate Retention under the
1-1-00 Insurance Plan and the 1-1-01 Insurance Plan.
C. With respect to the Consolidated Loss Fund, an "Interest in Lieu of
Charge" will compensate Insurer for the loss of use of its funds for
paying the Losses and Expenses on behalf of Insured prior to being
reimbursed on a monthly basis for same by Insured; and a "Loss Fund
Deposit Credit" will compensate Insured for the loss of use of its funds
comprising the Consolidated Loss Fund.
The Interest in Lieu of Charge will be two times the Losses and Expenses
multiplied by one-twelfth (1/12) (or the applicable pro-rata amount
thereof based upon the number of months, or portion thereof, for which
such charge is being calculated) of the ninety (90) day commercial paper
dealer rate in effect on the first Friday(s) of the month(s) being billed
for that calendar quarter as set forth in the Money Rates section (or any
successor section) of the Midwest Edition of THE WALL STREET JOURNAL. The
Loss Fund Deposit Credit will be two times the Consolidated Loss Fund
multiplied by one-twelfth (1/12) (or the applicable pro-rata amount
thereof based upon the number of months, or portion thereof, for which
such charge is being calculated) of the ninety (90) day commercial paper
dealer rate in effect on the first Friday(s) of the month(s) being billed
as set forth in the Money Rates section (or any successor section) of the
Midwest Edition of THE WALL STREET JOURNAL.
--------------------------------------------------------------------------------
Staff Leasing, Inc. -2- January 1, 2001
The difference in the Interest in Lieu of Charge and the Loss Fund Deposit
Credit will either be billed to or payment remitted to Insured by Insurer.
Insured will pay Insurer any amounts billed to it under this Article
within fifteen (15) days of the billing date (as defined in the Payment
Terms Article of this Agreement).
5. PAID LOSS ADJUSTMENT -- Insurer may prepare an adjustment for the Insurance
Plans ("Deductible Adjustment") six (6) months after the expiration or
termination of the applicable Policies and annually thereafter ("Evaluation
Date") until final settlement. Each Deductible Adjustment will equal the sum of:
A. Amounts past due under the Loss Reimbursement Article, Accrued Interest
(as defined in the Payment Terms Article), and amounts due under the
Additional Amounts Article of the Finance Agreement applicable to each of
the Insurance Plans; plus
B. As of the Evaluation Date the sum of: Paid Losses, paid ALAE, claim
handling expenses (if any) due under each of the Insurance Plans; minus
C. Amounts paid to Insurer under this Agreement (exclusive of any of the
Insurance Plans premiums applicable to the Policies, premium audit
adjustments, Accrued Interest payments, and amounts arising under the
Additional Amounts Article of the Finance Agreement applicable to each of
the Insurance Plans).
Upon completion of each Deductible Adjustment Insurer will prepare and send an
invoice to Insured, or remit a refund to Insured, as appropriate.
6. MAXIMUM INCURRED LOSSES -- The maximum Aggregate Retention (including all
ALAE paid) Insured will be obligated to pay under the 1-1-01 Insurance Plan,
excluding any amounts due Insurer under the Payment Terms Article, Claims
Administration Article, and the Additional Amounts Article of this Agreement,
will be $31,182,000 ("Maximum Incurred Losses" or "Aggregate Limit"), which is
an estimate; provided, however, the Maximum Incurred Losses Insured will be
obligated to pay (including ALAE) for any one accident or occurrence will be
$10,000,000. Upon the completion of each Deductible Adjustment, the Maximum
Incurred Losses shall be computed for such period based on the rate of $153.49
per $1,000 of Manual Workers' Compensation Premium, with premium subject to a
minimum Aggregate Retention of $24,946,000. The Maximum Incurred Losses
calculated as a result of any interim audit shall be increased pro rata to 365
days.
7. COLLATERAL/EXPERIENCE ACCOUNT -- Both parties agree that collateral
("Collateral") is required to protect the interests of Insurer under the 1-1-01
Insurance Plan, in addition to the Collateral securing the 1-1-00 Insurance
Plan, and that such Collateral may be utilized to pay Insured's Obligations
under said Insurance Plans as follows:
A. The Insured's Obligations will be secured as follows:
1.) Insured will deliver or cause to be delivered to Insurer as of the
inception date of the 1-1-01 Insurance Plan Policies a clean,
unconditional and irrevocable letter of credit ("LOC") issued by a
financial institution acceptable to and in a form acceptable to Insurer.
The amount of the LOC shall be $90,702, 000. Alternatively, Insured will
deposit or cause to be deposited cash or certain classes of securities
("Eligible Investments") in the amount of $90,702,000 in Collateral Trust
Accounts to comply with Insurer's Collateral requirements for the 1-1-01
Insurance Plan as follows:
--------------------------------------------------------------------------------
Staff Leasing, Inc. -3- January 1, 2001
(i) A Collateral Trust Account with a financial institution acceptable to
Insurer shall be established directly by Insured in the amount of
$31,700,000 for the benefit of Insurer with respect to the 1-1-01
Insurance Plan Collateral requirements (such Collateral Trust Account
shall hereinafter be referred to as the "Direct Collateral Trust
Account"). Funding of the Direct Collateral Trust Account shall be made
in four equal quarterly installments of $7,925,000 (payable on January 1,
2001, April 1, 2001, July 1, 2001 and October 1, 2001) and the Collateral
Trust Agreement creating the Direct Collateral Trust Account shall
reflect that such Collateral Trust Account is established and maintained
for the sole benefit of Insurer to secure the Insured's Obligations under
the Insurance Plans. The Direct Collateral Trust Account required
hereunder shall be established and maintained as set forth in Appendix A,
which is attached to this Agreement and incorporated by reference herein.
For purposes of monitoring Collateral requirements, the Trust Assets
comprising the Direct Collateral Trust Account will be treated as partial
collateral securing Insured's Obligations under the Insurance Plans.
(ii) Insurer has agreed to permit the assets comprising the existing
Collateral Trust Account established by North Rock Insurance Company
Limited as partial Collateral under the 1-1-00 Insurance Plan to also be
utilized in complying with the 1-1-01 Insurance Plan Collateral
requirements in excess of the Collateral required to be maintained in the
Direct Collateral Trust Account. Accordingly, Insured will deposit or
cause to be deposited cash or certain classes of securities ("Eligible
Investments" - as defined in the Collateral Trust Agreement) in the
amount of $59,002,000 in the existing Collateral Trust Account
established in conjunction with Insured's 1-1-00 Insurance Plan (such
Collateral Trust Account shall hereinafter be referred to as the
"Consolidated Collateral Trust Account" which will be segregated by the
Trustee into sub-accounts applicable to each Insurance Plan secured by
the Consolidated Collateral Trust Account). Funding of additional assets
in the amount of $59,002,000 to the 1-1-01 Insurance Plan sub-account of
the Consolidated Collateral Trust Account shall be made with an initial
additional deposit of $4,916,837 on January 1, 2001, followed by eleven
(11) additional monthly payments of $4,916,833, payable on the first day
of each month. The Collateral Trust Agreement creating the original
Collateral Trust Account in conjunction with the 1-1-00 Insurance Plan
shall be amended to reflect that the Collateral Trust Account shall
hereinafter be referred to as the Consolidated Collateral Trust Account,
that it was established and maintained for the sole benefit of Insurer to
secure the Insured's Obligations under the 1-1-00 Insurance Plan and the
1-1-01 Insurance Plan and that it shall be segregated into sub-accounts
applicable to each such Insurance Plan. The Consolidated Collateral Trust
Account required hereunder shall be maintained as set forth in Appendix
A, which is attached to this Agreement and incorporated by reference
herein.
2.) Insured will deliver to Insurer by certified mail (return receipt
requested) or overnight mail a surety bond (hereinafter referred to as
the "bond"), effective as of January 1, 2001, in a form acceptable to
Insurer, in its sole discretion, issued by an institution acceptable to
Insurer in the initial amount of $5,000,000. The bond, and the obligation
of the surety thereunder shall be unconditional, irrevocable, absolute
and shall remain in full force and effect for an initial period of twelve
(12) months and will be automatically renewable for terms of twelve (12)
months until Insured has fully satisfied and been discharged of all
Insured's Obligations under this Agreement and upon mutual agreement. The
Issuing Institution must agree, in the terms of the bond,
--------------------------------------------------------------------------------
Staff Leasing, Inc. -4- January 1, 2001
to provide Insurer with written notice at least sixty (60) days prior to
expiration of the bond in the event the bond will not be renewed. Insured
agrees to cause the term of the bond to be extended until such time as
payment is made to Insurer. No claim will be made or presented against
the surety bond required as partial collateral by this Paragraph A.3. of
this Article 7. of the Agreement until Insurer has drawn against all
other available Collateral securing Insured's Obligations under this
Agreement.
3.) Insured will establish and maintain with Insurer the Working Loss Fund
and the Consolidated Loss Fund as required by the Loss Reimbursement
Article of this Agreement.
B. Insurer will establish an Experience Account as specified in Appendix B,
which is attached to and incorporated by reference herein to this Agreement,
as a means of monitoring the adequacy of the Collateral required by Insurer
to secure the Insured's Obligations under Paragraph A. of this Article 7. of
the Agreement. The Experience Account established hereunder and under the
Agreement covering the Insurance Plans shall reflect that:
(i) the Direct Collateral Trust Account assets shall be allocated to and
identified by the Insurance Plan for which it was established; and
(ii) the Consolidated Collateral Trust Account assets shall be allocated to
and identified by each of the sub-accounts applicable to the 1-1-00
Insurance Plan and the 1-1-01 Insurance Plan.
8. MATERIAL CHANGE IN OWNERSHIP -- Insurer will have the right to require
Insured to increase the amount of assets in the Direct Collateral Trust Account
and/or the sub-accounts comprising the Consolidated Collateral Trust Account or
the surety bonds required as Collateral under the applicable Insurance Plans by
an amount not to exceed the amount of the Maximum Incurred Losses (as defined in
the Finance Agreement applicable to each of the Insurance Plans) if there is a
Material Change In Ownership of Insured. Insured will increase the applicable
Direct Collateral Trust Account and/or the sub-accounts comprising the
Consolidated Collateral Trust Account or the bonds to the required amount within
ten (10) days of notification thereof. For purposes of this Agreement, a
"Material Change in Ownership" occurs when: (i) an investor or a group of
affiliated investors acquires more than 30% of the voting shares of Insured, or
(ii) Insured's board of directors authorizes: a merger, consolidation,
reorganization, or liquidation of Insured, the sale of substantially all of
Insured's assets, or a distribution of assets to shareholders in excess of 25%
of Insured's assets.
9. EVENTS OF DEFAULT -- Any of the following will be an Event of Default under
this Agreement:
A. Insured does not pay any amount due Insurer when due under the terms of the
Policies under the Insurance Plans, the Insurance Plans and/or the Finance
Agreements applicable to the Insurance Plans; or
B. Insured does not establish, deliver or adjust the Direct Collateral Trust
Account and/or the sub-accounts comprising the Consolidated Collateral Trust
Account or bonds as required in the Finance Agreements applicable to the
Insurance Plans; or
C. Insurer receives written notice from (i) the Issuing Institution, that the
bond will not be renewed, or (ii) the Trustee, that the Collateral Trust
Agreement applicable to either the Direct Collateral Trust Account and/or the
Consolidated Collateral Trust Account will be terminated, and Insurer is not
in possession of a satisfactory successor Trustee or
--------------------------------------------------------------------------------
Staff Leasing, Inc. -5- January 1, 2001
replacement bond thirty (30) days prior to termination of the Direct
Collateral Trust Account and/or the Consolidated Collateral Trust Account or
expiration of the bond; or
D. The financial condition of the Issuing Institution of any LOC or the surety
bond becomes such that, in Insurer's sole opinion, the Issuing Institution
may be unable to pay any draw upon the LOC or bond; or
E. Insured ceases doing business as a going concern, makes an assignment for the
benefit of creditors, generally does not pay its debts as they become due or
admits in writing its inability to pay its debts as they become due, files a
petition commencing a voluntary case under any chapter of the Bankruptcy
Code, 11 U.S.C. Sec. 101 et seq. ("Bankruptcy Code"), is adjudicated an
insolvent, files a petition seeking for itself a reorganization, arrangement,
composition, readjustment, rehabilitation, liquidation, dissolution or
similar arrangement under the Bankruptcy Code or any other present or future
statute, law, rule or regulation, whether domestic or foreign; or a case,
proceeding or other action either results in such entry, adjudication, relief
or issuance or entry of any other order of judgment having a similar effect,
or remains undismissed for thirty (30) days; or
F. Insured cancels any of the Policies; or
G. Insured fails to execute any further documentation relative to the Insurance
Plan as Insurer, in its reasonable business judgment, may require within
thirty (30) days after Insurer delivers such documentation to Insured.
Any termination or cancellation of the Finance Agreements applicable to the
Insurance Plans by Insurer will not release Insured from any of Insured's
Obligations. Insurer's right to apply any Remedies set forth below, should an
Event of Default occur, will not be affected by any such termination or
cancellation, including without limitation the right to draw upon the Collateral
in any amount, as long as Insured remains liable for any Insured's Obligations
under the Insurance Plans.
10. REMEDIES -- If any Event of Default occurs, Insurer may exercise any or all
of the remedies set forth below:
A. Insurer may terminate the Policies under the Insurance Plans after giving
written notice of termination to Insured as set forth in the Policies (or any
greater period of written notice as may be required by applicable law). If
the event specified in paragraph E of the Event of Default Article occurs,
Insurer may terminate such Policies immediately without the requirement of
any action by Insurer or notice given to Insured (unless prior notice is
required by applicable law). Upon termination of any of the Policies, all
installments of premium and other sums that may become payable by Insured
under the Policies, the Insurance Plans or the Finance Agreements applicable
to the Insurance Plans will become immediately due and payable, and Insurer
will have no further liability under the Policies.
B. Insurer may: (i) perform an Adjustment using Incurred Losses with the entire
balance so computed becoming immediately due and payable; and/or (ii) perform
a final Adjustment using the Ultimate Loss Amount as set forth in the
Remedies Article of the Finance Agreements applicable to the Insurance Plans
with the entire balance so computed becoming immediately due and payable;
and/or (iii) draw upon any of the Collateral applicable to the Insurance
Plans in the full or any lesser amount.
--------------------------------------------------------------------------------
Staff Leasing, Inc. -6- January 1, 2001
C. Insurer may offset any account surplus, credit obligation, refund, dividend
or any other amount that is due or may become due Insured under the Policies,
the Insurance Plans or the Finance Agreements applicable to the Insurance
Plans and apply such amount against any amount that is due or may become due
Insurer from Insured under the Policies, the Insurance Plan to which such
Policies apply or this Agreement.
D. If the event specified in paragraph E of the Event of Default Article occurs,
Insurer may claim and recover, in addition to all other sums which may become
payable by Insured to Insurer, the full amount of the Ultimate Loss Amount as
set forth in the Remedies Article of the Finance Agreements applicable to the
Insurance Plans for all projected amounts which may become due and payable
under the Policies, the Insurance Plans or the Finance Agreements applicable
to the Insurance Plans.
E. In the event that Insurer draws upon any of the Collateral securing the
Insurance Plans, any proceeds received by Insurer shall be applied first, to
the payment or reimbursement of the costs, expenses and fees for collection
provided for in the Payment Terms of the Finance Agreements applicable to the
Insurance Plans; second, to the payment of interest provided for in the
Payment Terms Article of the Finance Agreements applicable to the Insurance
Plans; third, to the payment of any past due Estimated Installment Premium;
fourth, to the payment of any other premium or other amount currently due
under the Finance Agreements applicable to the Insurance Plans; fifth, to the
payment of future amounts due with respect to the Ultimate Loss Amount as
defined in the Finance Agreements applicable to the Insurance Plans; sixth,
any amounts remaining will be paid to Insured after all amounts owing
pursuant to Insured's Obligations have been finally and fully calculated,
paid and discharged.
F. Insurer may apply the proceeds of any draw(s) upon the Collateral to any
outstanding amounts owed to Insurer at any time.
The "Ultimate Loss Amount" applicable to each of the Insurance Plans will be
determined by Insurer in its sole discretion through the use of generally
accepted actuarial methods which will take into consideration, without
limitation, Insured's expected loss ratio at the time of quotation, loss
development factors generally used by Insurer, and loss development factors
based on Insured's individual loss history. Insurer's determination of the
Ultimate Loss Amount shall be conclusive and binding upon Insured.
11. PAYMENT TERMS -- Unless otherwise expressly provided, Insured will pay any
invoice submitted by Insurer within thirty (30) days of the billing date after
which time such amount will be considered past due. Insurer will have the option
to accrue interest on any undisputed outstanding amounts past due under this
Agreement at a rate that is equal to the ninety (90) day commercial paper dealer
rate in effect on the first Friday of each month as set forth in the Money Rates
section (or any successor section) of the Midwest Edition of THE WALL STREET
JOURNAL plus five per cent (5%) per annum. Interest will compound daily until
full payment is received ("Accrued Interest"). All Accrued Interest will be
billed as soon as practicable and will be payable within fifteen (15) days of
the billing date. In the event Insurer undertakes any efforts to collect any
amounts due from Insured under the Finance Agreements applicable to the
Insurance Plans, Insured will indemnify Insurer for the reasonable costs,
expenses and fees of such collection efforts, including attorneys' fees, if any.
Any amounts due under the Payment Terms Article of the Finance Agreements
applicable to the Insurance Plans will be in addition to the Maximum Incurred
Losses.
--------------------------------------------------------------------------------
Staff Leasing, Inc. -7- January 1, 2001
12. CLAIMS ADMINISTRATION -- Insured will select a third party administrator or
claim service provider ("Claim Service Provider") to service claims that arise
under the Policies ("Claims"). Insurer reserves the right to periodically review
and approve any Claim Service Provider selected by Insured. Such approval will
not be unreasonably withheld. If Insured does not select a Claim Service
Provider or Insurer does not approve of Insured's selection, Insurer may select
a Claims Service Provider to service the Claims. Insured will promptly reimburse
Insurer for all amounts paid by Insurer to the Claims Service Provider.
13. ADDITIONAL AMOUNTS -- Insured will reimburse Insurer for all taxes, fees or
assessments (including any interest and penalties levied) related to the
Policies, the Insurance Plans to which such Policies apply or the Finance
Agreements applicable to the Insurance Plans whenever imposed or assessed upon
Insurer or any of its affiliates and/or subsidiaries by any governmental body,
any insurance guarantee fund association or any residual market facility. Any
amounts due under this Article will be in addition to the Maximum Incurred
Losses.
14. TERM OF AGREEMENT -- This Agreement will remain in full force and effect
until terminated. The parties may modify certain terms and conditions of this
Agreement, as determined solely by Insurer, by written addendum upon each
successive anniversary date ("Annual Addendum").
15. TERMINATION -- This Agreement may be immediately terminated by either party
upon notice in the event of fraud, abandonment, gross or willful misconduct,
insolvency, or lack of legal capacity to act by the other party. If this
Agreement is terminated, Insured will not be released from any Insured's
Obligations under the Finance Agreements applicable to the Insurance Plans,
including without limitation, the obligation to maintain the Collateral;
andInsurer will continue to have the option to enforce any of the Remedies
available to it under the Finance Agreements applicable to the Insurance Plans.
16. ASSIGNMENT -- This Agreement will be binding upon and inure to the benefit
of the parties and their successors and assigns. Neither party may assign this
Agreement without the prior written consent of the other party, such consent not
to be unreasonably withheld.
17. NO REMEDY EXCLUSIVE -- No remedy conferred upon or reserved to any party is
intended to be exclusive of any other available remedy, but each and every
remedy will be cumulative and will be in addition to every other remedy given
under the Finance Agreements applicable to the Insurance Plans, or now or
hereafter existing at law or in equity.
18. NOTICES -- Unless otherwise expressly provided, all notices required under
this Agreement will be confirmed in writing to the other party and sent by
United States mail to the other party addressed as follows:
--------------------------------------------------------------------------------
Staff Leasing, Inc. -8- January 1, 2001
IF TO INSURER: IF TO INSURED:
------------- -------------
Continental Casualty Company Staff Leasing, Inc.
CNA Plaza 600 000 Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, XX 00000 Xxxxxxxxx, XX 00000
Attn.: Director, Contract Attn.: Xx. Xxxx Xxxxxx, Vice President
Administration-30S Risk Management
CNA Risk Management Fax No.: 941/000-0000
Fax No.: 312/000-0000
20. WAIVER -- The failure of any party to insist upon strict performance of any
duty or responsibility of any other party under this Agreement will not be
deemed a waiver of such duty or responsibility or create an estoppel against any
party to this Agreement.
21. SURVIVAL -- The rights, remedies and covenants of Insurer and Insured under
this Agreement, including without limitation those set forth in the Collateral,
Events of Default and Remedies Articles of the Finance Agreements applicable to
the Insurance Plans, will survive any termination of the Policies, the Insurance
Plans, or the Finance Agreements applicable to the Insurance Plans.
22. ENTIRE UNDERSTANDING -- This Agreement sets forth the entire Agreement and
understanding between the parties with respect to the subject matter of this
Agreement. All parties have participated in the drafting of this Agreement. No
term or provision set forth herein which may be considered ambiguous will be
presumptively interpreted against any party as the drafter of this Agreement.
Unless otherwise expressly set forth in this Agreement, this Agreement may only
be amended in writing signed by officers of both parties.
23. SEVERABILITY -- If any provision of this Agreement is adjudged by any court
of law to be void or unenforceable in whole or in part, such adjudication will
not be deemed to affect the validity of the remainder of this Agreement. Each
provision of this Agreement is declared to be severable from every other
provision and constitutes a separate and distinct covenant.
24. GOVERNING LAW -- This Agreement will be construed and governed by the laws
of the State of Illinois.
--------------------------------------------------------------------------------
Staff Leasing, Inc. -9- January 1, 2001
IN WITNESS WHEREOF, Insurer and Insured have caused this Agreement to be
executed by the persons duly authorized to act in their respective names in
multiple originals effective as of the date and year first above stated.
INSURED INSURER
STAFF LEASING, INC. CONTINENTAL CASUALTY COMPANY
--------------------------------------- ---------------------------------------
(Legal Name of Insured) (Legal Name of Insurer)
By: By:
----------------------------------- -----------------------------------
(Signature of Officer) (Signature of Officer)
Name: Name:
--------------------------------- ---------------------------------
(Name of Officer) (Name of Officer)
Title: Title: Vice-President
-------------------------------- --------------------------------
Date: Date:
--------------------------------- ---------------------------------
Attest:
-------------------------------
Title: Asst. Secretary
By:
----------------------------------
(Signature of Officer)
Name:
--------------------------------
(Name of Officer)
Title:
-------------------------------
Date:
--------------------------------
--------------------------------------------------------------------------------
Staff Leasing, Inc. -10- January 1, 2001
SCHEDULE A
PART I. DESCRIPTION OF POLICIES
Policy Limits: (a) Workers' Compensation: $10,000,000 Each Accident
(b) Employer's Liability:
Bodily Injury by Accident $10,000,000 Each Accident
Bodily Injury by Disease $10,000,000 Policy Limit
Bodily Injury by Disease $10,000,000 Each Employee
WORKERS' COMPENSATION DEDUCTIBLE PLAN:
POLICY NUMBER EFFECTIVE DATE UNDERWRITING COMPANY
-------------------- ------------------- ------------------------------------
WC 189165165 January 1, 2001 Continental Casualty Company
WC 247848874 January 1, 2001 Continental Casualty Company
WC 247848888 January 1, 2001 Continental Casualty Company
PART II. ADMINISTRATION FEE INSTALLMENT SCHEDULE
Installment
Due Date Installment Amount
----------- ------------------
1-1-2001 $45,424
2-1-2001 $45,416
3-1-2001 $45,416
4-1-2001 $45,416
5-1-2001 $45,416
6-1-2001 $45,416
7-1-2001 $45,416
8-1-2001 $45,416
9-1-2001 $45,416
10-1-2001 $45,416
11-1-2001 $45,416
12-1-2001 $45,416
Total $545,000
--------------------------------------------------------------------------------
Staff Leasing, Inc. -11- January 1, 2001
APPENDIX A
COLLATERAL TRUST ACCCOUNT REQUIREMENTS
1. The Direct Collateral Trust Account required to be established and maintained
pursuant to Article 7.A.1(i) of this Agreement will be funded with Trust Assets
that will amount to at least $31,700,000 (subject to audit) during the term of
this Agreement and shall consist only of the following those classes of Eligible
Securities as set forth in the Collateral Trust Agreement establishing the
Direct Collateral Trust Account.
2. The 1-1-01 Insurance Plan sub-account of the Consolidated Collateral Trust
Account required to be maintained pursuant to Article 7.A.1(ii) of this
Agreement will be funded with Trust Assets that will amount to at least
$59,002,000 (subject to audit) during the term of this Agreement and shall
consist only of the following three classes of Eligible Securities: (i) "Cash
and Equivalents "; (ii) "Fixed Income"; and (iii) "Equities", all as further
defined in the Collateral Trust Agreement applicable to the Consolidated
Collateral Trust Account.
3. Upon execution of this Agreement, the funding of the Direct Collateral Trust
Account and the funding of the 1-1-01 Insurance Plan sub-account of the
Consolidated Collateral Trust Account will consist of initial deposits (on or
before the first business day of January, 2001) to each such Collateral Trust
Account (or sub-account thereof) of cash and/or Eligible Investments in an
amount equal to: (i) $7,925,000 with respect to the Direct Collateral Trust
Account, followed by three quarterly payments in the same amount as set forth in
Article 7.A.1. of the Agreement; and (ii) $4,916,837 with respect to the 1-1-01
Insurance Plan sub-account of the Consolidated Collateral Trust Account,
followed by eleven monthly payments in the amount of $4,916,833, payable on or
before the first business day of each month such funding amount is due.
No one class of Trust Assets required hereunder may comprise more than 50% of
the total value of the Trust Assets of any applicable Collateral Trust Account
(or sub-account thereof) for a period in excess of 30 days without the written
consent of Insurer.
4. The investment return on the Equities class of Trust Assets deposited in the
Consolidated Collateral Trust Account shall be valued by Insurer (or the
Investment Manager of the Trust Assets) on a quarterly calendar basis utilizing
the market price of the Equities as of the close of the New York Stock Exchange
or other recognized United States Exchange (as listed in the WALL STREET
JOURNAL) on the first Friday of each calendar quarter. In the event Insurer is
not collateralized to ultimate premium due under the Insurance Programs secured
by the applicable sub-account of the Consolidated Collateral Trust Account, and,
Insurer determines, at any time in its sole discretion, that the market value of
the Equities in either sub-account of the Consolidated Collateral Trust Account
has decreased by:
(i) with respect to the 1-1-00 Insurance Plan sub-account of the Consolidated
Collateral Trust Account, the greater of $3,000,000, or twenty percent (20%)
or more from a market valuation of $16, 300,000, and
(ii) with respect to the 1-1-01 Insurance Plan sub-account of the
Consolidated Collateral Trust Account, the greater of $4,000,000, or twenty
percent (20%) or more from a market valuation of $19,600,000
Insured shall, upon 3 business days notice from the Insurer, increase such class
of Trust Assets in the applicable sub-account of the Consolidated Collateral
Trust Account by an
--------------------------------------------------------------------------------
Staff Leasing, Inc. -12- January 1, 2001
amount necessary to restore the market valuation of the Equities by the
deficient amount. Alternatively, Insured may increase the classes of U.S.
Treasuries or U.S. Investment Grade Corporate Bonds Trust Assets in an amount
necessary to correct any shortcoming in the market valuation of the Equities
class of Trust Assets. To correct any such deficiency in a sub-account of the
Consolidated Collateral Trust Account, Insurer will instruct the Trustee to
transfer any surplus Trust Assets from a complying sub-account to the deficient
sub-account before making demand upon Insured to make additional deposits to the
deficient sub-account of the Consolidated Collateral Trust Account.
5. (a) In the event the aggregate Incurred Losses under the 1-1-01 Insurance
Plan exceed the Loss Amount calculated pursuant to subparagraph (c) below with
respect to the 1-1-01 Insurance Plan, Insured shall pay, or cause to be paid, to
Insurer an Additional Premium calculated as 81% of the amount of Incurred Losses
(paid losses, reserved losses and ALAE) which exceed that Loss Amount. Such
Additional Premium shall be adjusted and billed quarterly for 6 years from the
inception date of the Policy Period and annually thereafter until all claims
under the Policies are closed or Insured and Insurer mutually agree to a final
calculation of the Additional Premium.
The amount of any such Additional Premium due hereunder shall be deposited
immediately into the 1-1-01 Insurance Plan sub-account of the Consolidated
Collateral Trust Account upon receipt of an invoice from Insurer. Provided, if
the Additional Premium calculated as the result of any adjustment other than the
final adjustment is less than $100,000, that Additional Premium shall be
deferred until, and payable by Insured at, the next adjustment.
(b) If the Experience Account established with respect to the 1-1-01
Insurance Plan pursuant to Article 7. and Appendix B of this Agreement
[excluding any investment income earned on any Additional Premium(s) paid
pursuant to subparagraph (a) above] is exhausted by payment of Paid Losses
before such Paid Losses total the Loss Amount calculated pursuant to
subparagraph (c) below, Insured shall pay to Insurer an Additional Premium with
respect to the 1-1-01 Insurance Plan.
Any Additional Premium due under this subparagraph (b) shall be calculated as
$7,358,000 plus accrued interest of 7% per annum. This $7,358,000 amount,
exclusive of accrued interest, is an estimated amount, adjustable at audit based
upon a rate of $36.218 per $1,000 of Manual Workers' Compensation Premium. In no
event, except as outlined below, shall this estimated amount be adjusted at
audit to be an amount less than $5,887,000 plus accrued interest of 7% per
annum. Interest shall accrue on any such amount due hereunder from January 1,
2001 until full payment of the Additional Premium is received by Insurer.
Provided, however, such Additional Premium for the 1-1-01 Insurance Plan
calculated under this subparagraph (b) shall not exceed the difference between:
(i) The Loss Amount calculated pursuant to subparagraph (c) below; and
(ii) The total Paid Losses as of the date the Experience Account is
exhausted.
(c) The Loss Amount for the 1-1-01 Insurance Plan covered by this Agreement,
as used in this Paragraph 5, is estimated to be $104,327,000. This Loss Amount
is adjustable at audit based on a rate of $513.52 per $1,000 of Manual Workers'
Compensation Premium. In no event shall the Loss Amount be less than
$83,462,000.
Any Additional Premium(s) due under this Paragraph 5. shall be deposited into
the applicable Collateral Trust Account (or sub-account thereof) as additional
Trust Assets upon receipt of an invoice from Insurer and shall be payable by or
on behalf of Insured in addition to the Estimated
--------------------------------------------------------------------------------
Staff Leasing, Inc. -13- January 1, 2001
Premium due under the Policies. Any such infusion of additional Trust Assets
into either the Direct Collateral Trust Account and/or the applicable
sub-account(s) of the Consolidated Collateral Trust Account hereunder may be
made to any or all of the classes of Eligible Investments comprising the Trust
Assets.
6. If the cumulative investment yield on the Trust Assets comprising the
Consolidated Collateral Trust Account (or sub-accounts thereof) securing the
Collateral under the Insurance Plans is not at least a minimum of 7% per annum
("Investment Credit"), as determined by Insurer on or before January 31, 2002
[and every year thereafter during which time such Consolidated Collateral Trust
Account, (or sub-account thereof) remain in effect], by multiplying the average
daily balance of each sub-account of the Consolidated Collateral Trust Account
for such annual period by 7.00%, an additional infusion of Trust Assets will be
made in an amount to bring the value of the applicable sub-account of the
Consolidated Collateral Trust Account to an amount that they would have achieved
had a 7% per annum yield had been realized on each of them. To correct any such
deficiency in the Investment Credit of any deficient sub-account of the
Consolidated Collateral Trust Account, Insurer will instruct the Trustee to
transfer any surplus Trust Assets from a complying sub-account to the deficient
sub-account of the Consolidated Collateral Trust Account before making demand
upon Insured to make additional deposits to the deficient sub-account(s) of the
Consolidated Collateral Trust Account. The cumulative Investment Credit
applicable to the Direct Collateral Trust Account and/or the sub-accounts of the
Consolidated Collateral Trust Account as required under this Paragraph 5. shall
be equal to the sum of the Investment Credit for the term of this Agreement and
each consecutive 12-month period thereafter (or portion thereof) following the
Effective Date of this Agreement.
Any such infusion of additional Trust Assets required under this Paragraph 6.
shall be immediately due and deposited in the deficient sub-account(s) of the
Consolidated Collateral Trust Account, as applicable, upon receipt of notice
from Insurer. No infusion of additional Trust Assets will be required hereunder
in the event that the initial and cumulative Investment Credit equals or exceeds
7.00% per annum.
--------------------------------------------------------------------------------
Staff Leasing, Inc. -14- January 1, 0000
XXXXXXXX X
EXPERIENCE ACCOUNT
As required by Article 7.B. of the Agreement, Insurer shall establish and
maintain an Experience Account for the 1-1-01 Insurance Plan covered by this
Agreement as follows:
a. The next business day after receipt of each installment of the Estimated
Installment Premium by Insurer, the Experience Account shall be credited
with such Estimated Installment Premium.
b. The Experience Account shall be credited, as received, with the investment
income earned with respect to the Trust Assets in either the Direct
Collateral Trust Account and/or the 1-1-01 Insurance Plan sub-account of
the Consolidated Collateral Trust Account or earned on any monies in the
Experience Account. As used herein, the term "investment income" will not
include any investment income attributable to either the 1-1-01 Insurance
Plan sub-account of the Consolidated Loss Fund or the Working Loss Fund as
specified in Article 4 of the Agreement.
c. The Experience Account shall be debited at the time and in the amounts set
forth below:
(1) On a quarterly basis, by the amount of Paid Losses paid by Insurer
hereunder with respect to the 1-1-01 Insurance Plan; and
(2) Within five (5) days after receipt of any Additional Premium(s) due
with respect to the 1-1-01 Insurance Plan pursuant to Paragraph 5. of
Appendix A of this Agreement.
--------------------------------------------------------------------------------
Staff Leasing, Inc. -15- January 1, 2001
