EXHIBIT 10.23
AGREEMENT AS TO REINSURANCE
AGREEMENT AS TO REINSURANCE, dated as of December [ ], 1996 (this
"Agreement"), made by and among Associated Business & Commerce Holdings, Inc.
("Borrower"), Associated Business & Commerce Insurance Company ("ABCIC") and TIG
Reinsurance Company ("Lender").
PRELIMINARY STATEMENTS. 1. Reference is made to the Term Loan Agreement
dated as of December [ ], 1996 between Borrower and Lender (the Term Loan
Agreement, as it may hereafter be amended or otherwise modified from time to
time, being referred to as the "Term Loan Agreement"). The terms defined in the
Term Loan Agreement and not otherwise defined in this Agreement which are used
in this Agreement shall have the meanings set forth in the Term Loan Agreement.
2. It is a condition precedent to the obligation of Lender to make the
Term Loan to Borrower as provided in the Term Loan Agreement that Borrower,
ABCIC and Lender shall have executed and delivered this Agreement.
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt of which is hereby acknowledged, Borrower,
ABCIC and Lender hereby agree as follows:
SECTION 1. LENDER'S RIGHT TO REINSURE. For so long as the Term Loan
Note shall remain unpaid, or any other amount is owed by Borrower to Lender
under the Term Loan Agreement or under any other Loan Document, ABCIC shall,
upon the election of Lender, reinsure with Lender (on a quota share basis and
substantially in accordance with the terms contained in the Cover Note executed
by ABCIC for the period December [ ], 1996 through December [ ], 1997, a copy of
which is attached as Schedule 1 hereto (the "Cover Note")) all Policies (as
defined in the Cover Note) issued by ABCIC and classified by ABCIC as workers
compensation or employers liability insurance (the "Covered Business").
Subsequent to [1996], such reinsurance shall be provided by Lender to ABCIC for
one-year terms on a calendar year basis. Lender's election to provide such
reinsurance shall be made in a written notice delivered by Lender to ABCIC on or
before [November 1] of the calendar year prior to the year in which such
reinsurance will be effective. ABCIC shall have the right to designate the
percentage of the Lender's quota share participation in connection with such
reinsurance for each such calendar year, in a written notice delivered to Lender
on or before [December 1] of the prior calendar year, provided that such quota
share percentage shall be no lower than [50%] and no higher than [80%]. During
the period specified in the first sentence of this Section 1, ABCIC shall not
reinsure the Covered Business on a quota share or other proportional basis with
any party other than Lender.
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SECTION 2. RIGHT OF FIRST REFUSAL. During the period commencing with
the date as of which the Term Loan Note has been paid in full, and all other
amounts owed by Borrower to Lender under the Term Loan Agreement or any other
Loan Document have been paid in full, and ending on December [ ], 2003, ABCIC
shall, before entering into any quota share or other proportional reinsurance
arrangement or agreement in which ABCIC is the ceding party, notify Lender in
writing that it proposes to enter into such a reinsurance arrangement or
agreement and shall furnish Lender with all information with respect thereto as
is reasonably requested by Lender, including the material terms and conditions
thereof.
Lender shall, within 21 days following receipt of such notice and
information from ABCIC, notify ABCIC that it either elects or declines to
exercise a "right of first refusal" to enter into any such reinsurance
arrangement or agreement with ABCIC. If Lender elects to pursue such arrangement
or agreement, ABCIC and Lender will negotiate in good faith to execute
definitive cover notes and/or agreements with respect thereto. If Lender
declines to pursue any such arrangement or agreement or fails to reach
definitive agreements with ABCIC with respect thereto within 45 days of ABCIC's
receipt of Lender's notice to pursue such arrangement or agreement, ABCIC may,
within the three-month period thereafter, enter into a reinsurance arrangement
or agreement with any other reinsurer, provided that the terms and conditions of
any such arrangement or agreement with such reinsurer are no more favorable to
such reinsurer than the terms and conditions offered by ABCIC to Lender.
If ABCIC has not entered into such reinsurance arrangement or agreement
with any such reinsurer during such three-month period, ABCIC may not thereafter
enter into any such arrangement or agreement with any such reinsurer unless the
procedures set forth above in this Section 2 again shall have been complied
with.
SECTION 3. AMENDMENTS, ETC. No amendment or waiver of any provision of
this Agreement, or consent to any departure by any party herefrom, shall in any
event be effective unless the same shall be in writing and signed by the party
against which enforcement thereof is being sought, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given.
SECTION 4. ADDRESSES FOR NOTICES. All notices and other communications
to any party hereto provided for hereunder shall be in writing and mailed or
delivered by messenger or sent by facsimile, addressed to such party, in the
case of Lender and Borrower, at the address of such party specified in the Term
Loan Agreement, and in the case of ABCIC at the address of Borrower specified in
the Term Loan Agreement. Notices shall be effective upon receipt.
SECTION 5. SPECIFIC PERFORMANCE. Borrower and ABCIC acknowledge and
agree that in the event of any breach of this Agreement or any ABCIC-Lender
Reinsurance Agreement, Lender would be irreparably harmed. It is accordingly
agreed that Lender, in
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addition to any other right to which it may be entitled in law or equity, shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement or any ABCIC-Lender Reinsurance Agreement and/or to compel specific
performance of this Agreement or any ABCIC-Lender Reinsurance Agreement.
Borrower and ABCIC agree to waive, to the maximum extent permitted by applicable
law, any requirement for the securing or posting of any bond in connection with
such remedy. The remedies herein provided are cumulative and not exclusive of
any remedies provided by law.
SECTION 6. GOVERNING LAW; TERMS. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
SECTION 7. COUNTERPARTS. This Agreement may be executed in any number
of counterparts and by different parties to this Agreement in separate
counterparts, each which when so executed shall be deemed to be an original and
all of which taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of Borrower, ABCIC and Lender has caused this
Agreement as to Reinsurance to be duly executed and delivered by its officer
thereunto duly authorized as of the date first above written.
ASSOCIATED BUSINESS & COMMERCE
HOLDINGS, INC.
By: /s/ XXXXXXXX X. XXXXXXXXXX
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Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chairman of the Board
ASSOCIATED BUSINESS & COMMERCE
INSURANCE COMPANY
By: /s/ XXXXXXXX X. XXXXXXXXXX
---------------------------
Name: Xxxxxxxx X. Xxxxxxxxxx
Title: Chairman of the Board
TIG REINSURANCE COMPANY
By: /s/ XXXXX X. XXXXXX
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Name: Xxxxx X. Xxxxxx
Title: Vice President
