EXHIBIT 10.32
SURETY QUOTA SHARE TREATY
(hereinafter referred to as "Agreement")
EFFECTIVE: JANUARY, 1, 2005
entered into by and between
CONTINENTAL CASUALTY COMPANY
(hereinafter referred to as "Company")
and
WESTERN SURETY COMPANY
(hereinafter referred to as "Reinsurer")
Witnesseth:
In consideration of the mutual covenants contained herein, and upon the terms
and conditions hereinafter set forth the Company and the Reinsurer hereby agree
as follows:
ARTICLE 1 - BUSINESS COVERED
This Agreement shall cover the Company's net retained liability on Surety
Business written or renewed, by or on behalf of the Company, during the term of
this Agreement, and ceded hereunder. However, if mutually agreed between the
Company and the Reinsurer, the Company may retain a Policy and not be required
to cede such Policy associated with its Surety Business to the Reinsurer under
this Agreement. In the event a Policy is not ceded hereunder, the Policy shall
be identified and the exception documented, in writing, in the underwriting
file.
The liability of the Reinsurer shall commence simultaneously with that of the
Company. In the event that a loss covered hereunder involves more than one of
the Company's policies, this Agreement shall provide coverage for each and every
Policy in such loss.
ARTICLE 2 - TERM AND CANCELLATION
This Agreement is effective January 1, 2005 and shall continue in full force and
effect through December 31, 2005, both days inclusive. Upon expiration of this
Agreement, the Reinsurer shall continue to cover all Policies coming within the
terms and conditions of this Agreement, until the natural expiration or
anniversary of such Policies.
Notwithstanding the expiration of this Agreement as hereinabove provided, the
provisions of this Agreement shall continue to apply to all unfinished business
hereunder and that all obligations and liabilities incurred by each party
hereafter, prior to such expiration, shall be fully performed and discharged.
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ARTICLE 3 - TERRITORY
This agreement applies to the territory as in the Company's original Policies
reinsured hereunder.
ARTICLE 4 - ORIGINAL CONDITIONS
All amounts ceded hereunder shall be subject to the same gross rating and to the
same clauses, conditions, exclusions and modifications of the Company's
Policies, subject to the limits, terms and conditions of this Agreement.
Except as specifically and expressly provided for in the Insolvency Article, the
provisions of this Agreement are intended solely for the benefit of the parties
to and executing this Agreement, and nothing in this Agreement shall in any
manner create, or be construed to create, any obligations to or establish any
rights against any party to this Agreement in favor of any third parties or
other persons not parties to and executing this Agreement.
ARTICLE 5 - DEFINITIONS
A. As respects the use of "Company" within this Agreement, it is understood
and agreed that Company shall mean the insurance companies owned directly
or indirectly by CNA Financial Corporation which are affiliated with,
controlled by or under common management of CNA, with the exception of the
life insurance companies and RVI Guarantee Company Limited and their
respective subsidiaries.
B. The term "Extra Contractual Obligations" as used in this Agreement shall
mean those liabilities not covered under any other provision of this
Agreement and which arise from the handling of any claim on business
covered hereunder, such liabilities arising because of, but not limited
to, the following: failure by the Company to settle within the Policy
limit, or by reason of alleged or actual negligence, fraud or bad faith in
rejecting an offer of settlement or in preparation of the defense or in
the trial of any action against its insured or reinsured or in the
preparation or prosecution of an appeal consequent upon such action.
C. The term(s) "Loss" and "Losses" as used in this Agreement shall mean that
amount incurred by the Company in respect of any settlements, awards, or
judgments (including interest where classified as loss) incurred in
connection with any Policy reinsured hereunder after deduction for all
recoveries, salvages, subrogations and other reinsurances, whether said
reinsurances are recovered or not. The Reinsurer and Company agree that
the convention to be followed when determining when a loss is incurred is
that the date of notice of the actual event of loss or default shall be
the date the loss is incurred, except that when the date of notice of the
actual event of loss or default occurs after the expiration of a Policy
then the date immediately preceding the date the Policy expires shall be
deemed to be the date the loss is incurred.
D. The term "Loss Expenses" as used in this Agreement shall mean all expenses
incurred by the Company in the investigation, appraisal, adjustment,
litigation and/or defense of claims under the business reinsured
hereunder, including court costs, interest accrued prior to final judgment
if included as expense on reinsured Policies, interest accrued after final
judgment, but excluding internal office expenses, salaries, per diem, and
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other remuneration of regular Company employees unless diverted from their
normal duties to handle such Loss.
E. The term "Net Premiums Written" as used in this Agreement shall mean the
gross written premiums on Policies written, renewed or assumed during the
term of this Agreement on business the subject of this Agreement, less
cancellation and return premiums and less premiums ceded on all other
reinsurance which inures to the benefit of this Agreement on business the
subject of this Agreement.
F. The term "Net Liability" as used in this Agreement shall mean the
remaining portion of the Company's gross liability on each Policy
reinsured under this Agreement after deduction of all reinsurance which
inures to the benefit of this Agreement.
G. The term(s) "Policy" and "Policies" as used in this Agreement shall mean
the Company's binders, riders, policies, endorsements, bonds and contracts
providing insurance and reinsurance on the Surety Business covered under
this Agreement.
H. The term "Surety Business" as used in this Agreement means the issuance,
writing or underwriting of policies or licenses with respect to the
following: (i) bonds required by statutes or ordinances guaranteeing the
payment of certain taxes and fees and providing consumer protection as a
condition to granting licenses to engage in various trades or professions,
(ii) bonds required by statutes, courts or legal documents for the
protection of those on whose behalf a fiduciary acts, (iii) bonds required
by statutes or ordinances to guarantee the lawful and faithful performance
of the duties of office by public officials, (iv) bonds required by
statutes to protect against improper actions by notaries public, and (v)
bonds which secure the payment and/or performance of an obligation under a
written contract; but it shall not include, without limitation, financial
guaranty bonds and the issuance, writing or underwriting of bonds and
licenses which cover Losses arising from employee dishonesty.
ARTICLE 6 - PREMIUM
As outlined in the Reports and Remittances Article the Company shall pay to the
Reinsurer 100% of the Company's Net Premiums Written on its Net Liability on the
business covered hereunder, less the ceding commission.
ARTICLE 7 - CEDING COMMISSION
The Reinsurer agrees to allow the Company a commission allowance per calendar
quarter of (a) $50,000 plus (b) 25% of Net Premiums Written ceded under this
Agreement. Return commission shall be allowed on return premiums at the same
rate.
Such commission allowance shall be the sole provision for all commissions,
brokerages, taxes, board, exchange or bureau assessments, and for all other
expenses of whatever nature, excepting loss expenses.
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ARTICLE 8 - LOSS SETTLEMENTS & NOTICES
The Company or its designated representative shall adjust, settle, or compromise
all losses hereunder. All such adjustments, settlements, and compromises,
including ex-gratia payments, shall be paid by the Company or its designated
representative, and the Reinsurer shall benefit from all salvage and
subrogation. All salvages, recoveries or payments recovered or received
subsequent to loss settlement hereunder shall be applied as if recovered or
received prior to the aforesaid settlement and all necessary adjustments shall
be made by the parties hereto.
When so requested, the Company or its designated representative shall afford the
Reinsurer an opportunity to be associated with the Company or its designated
representatives, at the expense of the Reinsurer, in the defense or control of
any claim or suit or proceeding involving this reinsurance and the Company or
its designated representative and the Reinsurer shall cooperate in every respect
in the defense of such suit or claim or proceeding.
The Reinsurer shall be liable for its proportionate share of all Losses covered
under this Agreement. The Company or its designated representative shall advise
the Reinsurer of all Losses that may result in a claim under this Agreement and
of all subsequent developments which may materially affect the position of the
Reinsurer. Any Loss settlement made by the Company, whether under strict Policy
conditions or by way of compromise, shall be unconditionally binding upon the
Reinsurer in proportion to its participation.
In addition, the Reinsurer shall also be liable for its proportionate share of
all Loss Expenses as respects Losses covered under this Agreement. However, in
the event a verdict or judgment is reduced by an appeal or a settlement,
subsequent to the entry of the judgment, resulting in an ultimate saving on such
verdict or judgment, or a judgment is reversed outright, the expense incurred in
securing such final reduction or reversal shall be prorated between the
Reinsurer and the Company in the proportion that each benefits from such
reduction or reversal, and the expenses incurred up to the time of the original
verdict or judgment shall be pro rated in proportion to each party's interest in
such verdict.
In addition, the Reinsurer shall also be liable for its proportionate share of
all legal expenses and other costs incurred in connection with coverage
questions and legal actions connected thereto arising under the business covered
by this Agreement. The Reinsurer's proportionate share of these costs and
expenses shall be the same as the Reinsurer's percentage of participation in
this Agreement.
Nothing in this Agreement shall be construed as meaning that Losses are not
recoverable hereunder until the actual Loss of the Company has been ascertained.
ARTICLE 9 - EXCESS OF ORIGINAL POLICY LIMITS
This Agreement shall protect the Company as provided in Article 1 - Business
Covered in connection with Loss in excess of the limit of the original Policy,
such Loss in excess of the limit having been incurred because of failure by the
Company to settle within the Policy limit or by reason of alleged or actual
negligence, fraud or bad faith in rejecting an offer of settlement or in the
preparation of the defense or in the, trial of any action against its insured or
reinsured or in the preparation of prosecution of an appeal consequent upon such
action.
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However, this Article shall not apply where the Loss has been incurred due to
fraud by a member of the Board of Directors or a corporate officer of the
Company 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 claim covered hereunder.
For the purpose of this Article, the word "Loss" shall mean any amounts for
which the Company would have been contractually liable to pay had it not been
for the limit of the original Policy. The date on which any Excess of Original
Policy Limit Loss is incurred by the Company shall be deemed, in all
circumstances, to be the date of the original Loss.
ARTICLE 10 - EXTRA CONTRACTUAL OBLIGATIONS
This Agreement shall protect the Company as provided in Article 1 - Business
Covered where the Loss includes any Extra Contractual Obligations.
The date on which any Extra Contractual Obligation Loss is incurred by the
Company shall be deemed, in all circumstances, to be the date of the original
Loss.
However, this Article shall not apply where the Loss has been incurred due to
fraud by a member of the Board of Directors or a corporate officer of the
Company 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 Loss covered hereunder.
ARTICLE 11 - REPORTS AND REMITTANCES
A. Within 30 calendar days following the end of each calendar quarter, the
Company or its representatives shall report to the Reinsurer:
1. Net Premium Written accounted for during the quarter;
2. The ceding commission applicable to the above as provided for in
this Agreement;
3. Losses and Loss Expenses paid during the quarter, less inuring
reinsurance;
4. Subrogation, salvage, or other recoveries credited during the
quarter;
5. Outstanding loss reserves.
The positive balance of (1) less (2) less (3) plus (4) shall be remitted
by the Company to the Reinsurer within 15 calendar days after the date of
such report. Any balance shown to be due the Company shall be remitted by
the Reinsurer within 15 calendar days after receipt of such report.
B. Annually the Company or its representatives shall furnish the Reinsurer
with such information as the Reinsurer may require to complete its Annual
Convention Statement.
C. The Reinsurer shall maintain the required reserves as to the Reinsurer's
portion of claims and Losses hereunder. In the event the Company is
required to provide collateral for Losses that the Reinsurer is liable for
hereunder, upon mutual consent, the Reinsurer shall provide funding for
such collateral i in a manner acceptable to both parties. All interest
earned on such funding provided by the Reinsurer shall first be credited
to the Company up to the actual cost of establishing the collateral
mechanism, after which all interest shall be credited to the Reinsurer on
a quarterly basis. Upon final payment of all claims or balances associated
with such Loss or at such time as all claims associated
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with such Loss are closed by the Company, any funding balance shall be
returned promptly to the Reinsurer.
ARTICLE 12 - OFFSET
For settlement purposes only, the Company or the Reinsurer shall have the right
to offset any balance or amounts due from one party to the other under the terms
of this Agreement. The party asserting the right of offset may exercise such
right any time whether the balances due are on account of premiums or Losses. In
the instance of insolvency of the Company, applicable state law shall apply.
ARTICLE 13 - CURRENCY
Whenever the word "Dollars" or the "$" sign appears in this Agreement, they
shall be construed to mean United States Dollars and all transactions under this
Agreement shall be in United States Dollars.
Amounts paid or received by the Company in any other currency shall be converted
to United States Dollars at the rate of exchange at the date such transaction is
entered on the books of the Company.
ARTICLE 14 - ACCESS TO RECORDS
The Company shall allow the Reinsurer to inspect, at reasonable times, the
records of the Company relevant to the business reinsured under this Agreement,
including but not limited to Company files concerning premium, underwriting,
claims, Losses or legal proceedings which involve or may involve the Reinsurer
and the Reinsurer may make copies of any records pertaining thereto, at its own
cost. This right of inspection, audit and information shall survive termination
of this Agreement and shall run to the natural expiry of all liabilities under
the Policies reinsured.
ARTICLE 15 - ERRORS AND OMISSIONS
Any inadvertent delay, omission or error shall not be held to relieve either
party hereto from any liability which would attach to it hereunder if such
delay, omission, or error had not been made, provided such omission or error is
rectified as soon as possible after discovery.
ARTICLE 16 - TAXES
The Company shall be liable for all premium taxes on business covered hereunder.
If the Reinsurer is obligated to pay any premium taxes on this business, then
the Company shall reimburse the Reinsurer, however, the Company shall not be
required to pay taxes twice on the same premium.
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ARTICLE 17 - INSOLVENCY
This reinsurance shall be payable by the Reinsurer and the basis of the
liability of the Company under Policy or Policies reinsured without diminution,
because of the insolvency of the Company, to the Company or its liquidator,
receiver, or statutory successor.
In the event of insolvency of the Company, the liquidator or receiver or
statutory successor of the Company shall give written notice to the Reinsurer of
the pendency of a claim filed against the Company on the Policy or Policies
reinsured within a reasonable time after such claim is filed in the insolvency
proceeding. During the pendency of such claim the Reinsurer may investigate such
claim and interpose, at its own expense, in the proceeding where such claim is
to be adjudicated, any defense or defenses which it may deem available to the
Company or its liquidator or receiver or statutory successor. The expenses thus
incurred by the Reinsurer shall be chargeable, subject to court approval,
against the Company as part of the expense of liquidation to the extent of a
proportionate share of the benefits, which may accrue to the Company solely as a
result of the defense so undertaken by the Reinsurer.
Should the Company go into liquidation or should a receiver be appointed, the
Reinsurer shall be entitled to deduct from any sums which may be or may become
due to the Company any sums which are due to the Reinsurer by the Company and
which are payable at a fixed or stated date under this Agreement, to the full
extent permitted under the laws of the insolvent party's state of domicile.
It is further understood and agreed that, in the event of the insolvency of the
Company, the reinsurance under this Agreement shall be payable directly by the
Reinsurer to the Company or to its liquidator, receiver or statutory successor
except a) where this Agreement specifically provides another payee or such
reinsurance in the event of the insolvency of the Company or b) where the
Reinsurer with the consent of the direct insured or insureds has assumed such
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.
In no event shall anyone other than the parties to this Agreement or, in the
event of the Company's insolvency, its liquidator, receiver, or statutory
successor, have any rights under this Agreement.
ARTICLE 18 - AMENDMENTS
This Agreement may be altered or amended in any of its terms and conditions by
written mutual consent of the Company and the Reinsurer. Such written mutual
consent shall then constitute a part of this Agreement.
ARTICLE 19 - ARBITRATION
As a condition precedent to any right of action hereunder, any dispute arising
out of the interpretation, performance or breach of this Agreement, including
the formation or validity thereof, shall be submitted for decision to a panel of
three arbitrators. Notice requesting arbitration shall be in writing and sent
certified mail, return receipt requested.
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One arbitrator shall be chosen by each party and the two arbitrators shall,
before instituting the hearing, choose an impartial third arbitrator who shall
preside at the hearing. If either party fails to appoint its arbitrator with
thirty (30) days after being requested to do so by the other party, the latter,
after ten (10) days notice by certified mail of its intention to do so, may
appoint the second arbitrator.
If the two arbitrators are unable to agree upon the third arbitrator within
thirty (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 disinterested active or former executive officers of
insurance or reinsurance companies or Underwriters at Lloyd's London, not under
the control of either party to this Agreement.
Within thirty (30) days after notice of appointment of all arbitrators, the
panel shall meet and determine timely periods for briefs, discovery procedures
and schedules for hearings. The panel shall be relieved of all judicial
formality and shall not be bound by the strict rules of procedure and evidence.
Arbitration shall take place in Chicago, Illinois. Insofar as the arbitration
panel looks to substantive law, it shall consider the law of the State of
Illinois. The decision of any two arbitrators when rendered in writing shall be
final and binding. The panel is empowered to grant interim relief as it may deem
appropriate.
The panel shall make its decision considering the custom and practice of the
applicable insurance and reinsurance business as promptly as possible following
the termination of the hearings. Judgment upon the award may be entered in any
court having jurisdiction thereof.
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 panel is prohibited from awarding punitive, exemplary or treble
damages, of whatever nature, in connection with any arbitration proceeding
concerning this Agreement.
ARTICLE 20 - 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 21 - NOTICES
Any notice relating to this Agreement shall be in writing and shall be
sufficiently given if delivered by certified mail to the Company at the
following address:
Continental Casualty Company
CNA Plaza
Attn: The Chief Financial Officer
Xxxxxxx, XX 00000
and to the Reinsurer at the following address:
Western Surety Company
Attn: Chief Executive Officer
Xxxxx Xxxxx, Xxxxx Xxxxxx 00000-0000
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ARTICLE 22 - ENTIRE AGREEMENT
This Agreement, and that certain Services and Indemnity Agreement between the
parties dated January 1, 2005, represent the entire agreement and understanding
among the parties. No other oral or written agreements or contracts relating to
the risks reinsured hereunder currently exist and/or are contemplated between
the parties.
ARTICLE 23 - FUNDING OF RESERVES
(This Article applies to the Reinsurer who does not qualify for credit by any
state or any other governmental authority having jurisdiction over the Company's
loss reserves and/or to the Reinsurer to which the provisions of the Contingent
Collateral Article apply.)
A. As regards policies issued by the Company coming within the scope of this
Agreement, the Company agrees that when it shall file with the insurance
regulatory authority or set up on its books reserves for unearned premium
and losses covered hereunder which it shall be required by law to set up,
it shall forward to the Reinsurer a statement showing the proportion of
such reserves which is applicable to the Reinsurer. The Reinsurer hereby
agrees to fund such reserves in respect of unearned premium, known
outstanding losses that have been reported to the Reinsurer and loss
expense relating thereto, losses and loss expenses paid by the Company but
not recovered from the Reinsurer, plus reserves for losses and loss
expenses incurred but not reported, as shown in the statement prepared by
the Company (hereinafter referred to as "Reinsurer's Obligations") by cash
advances, Trust Agreement or a Letter of Credit. The Reinsurer shall have
the option of determining the method of funding provided it is acceptable
to the insurance regulatory authorities having jurisdiction over the
Company's reserves and provided that the issuing bank is approved by the
NAIC Securities Valuation Office.
B. When funding by a Letter of Credit, the Reinsurer agrees to apply for and
secure timely delivery to the Company of a clean, irrevocable and
unconditional Letter of Credit issued by a bank consented to by the
Company with such consent not being unreasonably withheld, and containing
provisions acceptable to the insurance regulatory authorities having
jurisdiction over the Company's reserves in an amount equal to the
Reinsurer's Obligations. Such Letter of Credit shall be issued for a
period of not less than one year, and shall be automatically extended for
one year from its date of expiration or any future expiration date unless
60 calendar days (90 calendar days where required by insurance regulatory
authorities) prior to any expiration date the issuing bank shall notify
the Company by certified or registered mail that the issuing bank elects
not to consider the Letter of Credit extended for any additional period.
C. The Reinsurer and Company agree that the Letters of Credit, or other
method of funding, provided by the Reinsurer pursuant to the provisions of
this Article may be drawn upon at any time, notwithstanding any other
provision of this Agreement, and be utilized by the Company or any
successor, by operation of law, of the Company including, without
limitation, any liquidator, rehabilitator, receiver or conservator of the
Company for the following purposes:
1. to reimburse the Company for the Reinsurer's Obligations, the
payment of which is due under the terms of this Agreement and which
has not been otherwise paid;
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2. to make refund of any sum which is in excess of the actual amount
required to pay the Reinsurer's Obligations under this Agreement;
3. to fund an account with the Company for the Reinsurer's Obligations.
Such cash deposit shall be held in an interest bearing account
separate from the Company's other assets, and interest thereon not
in excess of the prime rate shall accrue to the benefit of the
Reinsurer;
4. to pay the Reinsurer's share of any other amounts the Company claims
are due under this Agreement.
D. In the event the amount drawn by the Company on any Letter of Credit, or
other method of funding, is in excess of the actual amount required for in
Paragraphs C.1. or C.3. above, or in the case of Paragraph C.4. above, the
actual amount determined to be due, the Company shall promptly return to
the Reinsurer the excess amount so drawn. All of the foregoing shall be
applied without diminution because of insolvency on the part of the
Company or the Reinsurer.
E. The issuing bank shall have no responsibility whatsoever in connection
with the propriety of withdrawals made by the Company or the disposition
of funds withdrawn, except to ensure that withdrawals are made only upon
the order of properly authorized representatives of the Company.
F. At quarterly intervals, or less frequently as agreed but never less
frequently than annually, the Company shall prepare a specific statement
of the Reinsurer's Obligations, for the sole purpose of amending the
Letter of Credit or other method of funding, in the following manner:
1. If the statement shows that the Reinsurer's Obligations exceed the
balance of the Letter of Credit as of the statement date, the
Reinsurer shall, within 15 calendar days after receipt of notice of
such excess, secure delivery to the Company of an amendment to the
Letter of Credit increasing the amount of credit by the amount of
such difference. Should another method of funding be used, the
Reinsurer shall, within the time period outlined above, increase
such funding by the amount of such difference.
2. If, however, the statement shows that the Reinsurer's Obligations
are less than the balance of the Letter of Credit as of the
statement date, the Company shall, within 15 calendar days after
receipt of written request from the Reinsurer, release such excess
credit by agreeing to secure an amendment to the Letter of Credit
reducing the amount of credit available by the amount of such excess
credit. Should another method of funding be used, the Company shall,
within the time period outlined above, decrease such funding by the
amount of such excess.
3. If the Reinsurer does not agree with the statement of the
Reinsurer's Obligations as furnished by the Company, a mutually
agreed upon independent national actuarial firm shall be engaged to
evaluate the Reinsurer's Obligations covered under this Agreement
and such evaluation shall be binding upon the parties hereof. Such
cost shall be shared equally between the Company and the Reinsurer.
If the parties fail to agree on the selection of an independent
national actuarial firm, each of the parties shall name two, of whom
the other shall decline one, and the final decision shall be made by
drawing lots.
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As respects the terms of this paragraph, any actuarial firm selected
by drawing lots shall be disinterested in the outcome of the
calculation and the employee of same engaged to evaluate the
Reinsurer's Obligations hereunder shall not be under the influence
of either party hereto and shall be a Fellow of the Casualty
Actuarial Society. It is agreed by the parties hereto that the
Arbitration Article of this Agreement shall not apply to the
resolution of disputes arising under the terms of this paragraph.
The evaluation by the independent national actuarial firm shall be
binding on the Company and the Reinsurer.
G. The Reinsurer shall be responsible for all costs and fees associated with
the establishment and maintenance of any cash advance, Letter of Credit
and/or Trust Agreement mandated by the provisions of this Article.
ARTICLE 24 - CONTINGENT COLLATERAL
(This Article shall apply only to a Reinsurer with an A.M. Best insurance
financial strength rating of "A" or below or a Standard & Poor's insurer
financial strength rating of "A" or below at the effective date of this
Agreement.)
(This Article shall not apply to Lloyd's Syndicates who have satisfied their
funding obligations to the Credit for Reinsurance Trust Fund (CRTF); however, in
the instance where such funding requirements are reduced below 100%, then the
provisions of this Article shall apply to any Lloyd's Syndicate and funding
shall be required for the difference between 100% of the Reinsurer's Collateral
funded to the CRTF.)
(This Article shall not apply to the Reinsurer who has already fully funded
reserves, under this Agreement, per the provisions of the Funding of Reserves
Article or Article 11.)
At any time subsequent to the inception of this Agreement, in the event that the
Reinsurer:
1. has been assigned an A.M. Best's insurer financial strength rating below
"A-" or a Standard & Poor's insurer financial strength rating below "A-"
(a Standard & Poor's Insurance Solvency International rating of less than
"BBB" shall apply as respects alien Reinsurers other than Underwriting
Members of Lloyd's, London, and a Lloyd's Syndicate Assessment (LSA)
rating of less than three shall apply as respects Underwriting Members of
Lloyd's London); or
2. has suffered a surplus as regards policyholders loss of more than 25%
(twenty-five percent) from either the inception of this Agreement or the
date of the filing of the Reinsurer's most recent financial statement with
the authorities having jurisdiction over the Reinsurer,
3. ceases writing new or renewal assumed reinsurance business,
the Company may require that the Reinsurer provide Letters of Credit and/or
establish a Trust Agreement, at the Reinsurer's own expense, to collateralize
the sum of the following under this Agreement, as reported by the Company
(hereinafter the "Reinsurer's Collateral"):
a. the amount of loss and loss expense paid by the Company but not recovered
from the Reinsurer;
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b. reserves for loss and loss expense reported and outstanding;
c. reserves for loss and loss expense incurred but not reported; and
d. if applicable, unearned premium.
Such Reinsurer's Collateral shall be established by the Reinsurer within ten
business days of receipt by the Reinsurer of the Company's written notice
requesting the establishment of such Reinsurer's Collateral, and the notice
shall be sent by the Company, to the Reinsurer, via certified mail or
internationally recognized overnight courier service. The Reinsurer's Collateral
shall be established and maintained in accordance with the provisions of the
Funding of Reserves Article stated in this Agreement. If a Trust Agreement is
established, the Reinsurer shall select the trustee bank with the consent of the
Company, with such consent not to be unreasonably withheld.
If the Reinsurer does not agree with the statement of the Reinsurer's Collateral
as furnished by the Company, a mutually agreed upon independent national
actuarial firm shall be engaged to evaluate the Reinsurer's Collateral and such
evaluation shall be binding upon the parties hereof. Such cost shall be shared
equally between the Company and the Reinsurer. If the parties fail to agree on
the selection of an independent national actuarial firm, each of the parties
shall name two, of whom the other shall decline one, and the final decision
shall be made by drawing lots. As respects the terms of this paragraph, any
actuarial firm selected by drawing lots shall be disinterested in the outcome of
the calculation and the employee of same engaged to evaluate the Reinsurer's
Collateral hereunder shall not be under the influence of either party hereto and
shall be a Fellow of the Casualty Actuarial Society. It is agreed by the parties
hereto that the Arbitration Article of this Agreement shall not apply to the
resolution of disputes arising under the terms of this paragraph. The evaluation
by the independent national actuarial firm shall be binding on the Company and
the Reinsurer.
The Reinsurer shall bear all costs associated with establishing and maintaining
the Letters of Credit and/or Trust Agreements as described in this Article
The failure of the Company to enforce any provision of this Article shall not
constitute a waiver by the Company of any such provision, irrespective of how
long such failure continues. The past waiver of any provision of this Article,
by the Company, shall not constitute a course of conduct or a waiver of the
Company's rights in the future with respect to that same provision.
ARTICLE 25 - SERVICE OF SUIT
(This Article applies only if the Reinsurer is domiciled outside the United
States of America and/or unauthorized in any state, territory, or district of
the United States of America that has jurisdiction over the Company and in which
a subject suit has been instituted. This Article is not intended to conflict
with or override the parties' obligation to arbitrate their disputes in
accordance with the Arbitration Article.)
In the event of the failure of any Reinsurer hereon to pay any amount claimed to
be due hereunder, such Reinsurer, at the request of the Company, shall submit to
the jurisdiction of a court of competent jurisdiction within the United States
and shall comply with all requirements necessary to give that court
jurisdiction. Nothing in this Article constitutes or should be understood to
constitute a waiver of the Reinsurer's rights to commence an action in any court
of competent jurisdiction in the United States, to remove an action to a United
States District Court, or to seek a transfer of a case to another court as
permitted by the laws of the United
Surety Quota Share Treaty
Effective: January 1, 2005
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States or of any state in the United States. Service of process in such suit may
be made upon Mendes and Mount, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000. In any suit instituted against it upon this Agreement, the Reinsurer
shall abide by the final decision of such court or of any appellate court in the
event of any appeal.
The above-named are authorized and directed to accept service of process on
behalf of the Reinsurer in any such suit and/or upon the request of Company to
give a written undertaking to the Company that they shall enter a general
appearance upon the Reinsurer's behalf in the event such a suit shall be
instituted.
Further, pursuant to any statute of any state, territory or district of the
United States which makes provision therefor, the Reinsurer hereon hereby
designates the Superintendent, Commissioner or Director of Insurance or other
officer specified for that purpose in the statute, or the successor or
successors in office, as its true and lawful attorney upon whom may be served
any lawful process in any action, suit or proceeding instituted by or on behalf
of the Company or any beneficiary hereunder, arising out of this Agreement, and
hereby designates the above-named as the person to whom the said officer is
authorized to mail such process or a true copy thereof.
ARTICLE 26 - SEVERABILITY
If any law or regulation of any Federal, State or Local Government of the United
States of America, or the ruling officials having supervision over insurance
companies, should render illegal this Agreement, or any portion thereof, as to
risks or properties located in the jurisdiction of such authority, either the
Company or the Reinsurer may upon written notice to the other suspend, abrogate,
or amend this Agreement insofar as it relates to risks or properties located
within such jurisdiction to such extent as may be necessary to comply with such
law, regulations, or ruling.
Such illegality, suspension, abrogation, or amendment of a portion of this
Agreement shall in no way affect any other portion thereof.
ARTICLE 27 - HONORABLE UNDERTAKING
The purposes of this Agreement are not to be defeated by narrow or technical
legal interpretations of its provisions. The Agreement shall be construed as an
honorable undertaking and should be interpreted for the purpose of giving effect
to the real intentions of the parties hereto.
ARTICLE 28 - 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 or any other contemplated transaction under
this Agreement would be prohibited by United States of America statute,
regulation and/or other applicable law, or
Surety Quota Share Treaty
Effective: January 1, 2005
Page 13 of 15 (Revised - 5/10/05)
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.
ARTICLE 29 - 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, the
Reinsurer may disclose such Confidential Information, in the ordinary course of
business, to its employees, attorneys, intermediaries used for purchase of any
retrocessional covers that protect the Reinsurer's liability under this
Agreement, retrocessionaires, auditors or accountants, as the Reinsurer deems
necessary and the Reinsurer shall verbally advise such entities of the
obligations contained in this Article and shall be bound by the provisions of
this Article, or regulatory agencies, arbitration panels or courts of law. This
Article shall not preclude the disclosure of information which is required to be
disclosed in financial statements and reports filed by either the Company or
Reinsurer
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 2005
CONTINENTAL CASUALTY COMPANY
By:_______________________________________________________
Title:____________________________________________________
Attested:_________________________________________________
Surety Quota Share Treaty
Effective: January 1, 2005
Page 14 of 15 (Revised - 5/10/05)
and on this day of 2005
WESTERN SURETY COMPANY
By:_______________________________________________________
Title:____________________________________________________
Attested by:______________________________________________
Surety Quota Share Treaty
Effective: January 1, 2005
Page 15 of 15 (Revised - 5/10/05)
