Exhibit 10.17
QUOTA SHARE
REINSURANCE CONTRACT
Issued to
Century Surety Company
(Hereinafter referred to as the "Company")
By
Evergreen National Indemnity Company
(Hereinafter referred to as the "Reinsurer")
ARTICLE I - CLASSES OF BUSINESS REINSURED
A. By this Contract the Company obligates itself to cede to the Reinsurer and
the Reinsurer obligates itself to accept 100% quota share reinsurance of
the Company's gross liability under policies, contracts and binders of
insurance (hereinafter called "policies") issued or renewed on or after
the effective date hereof and classified by the Company as Landfill and
Contract Surety business as defined in Schedule A attached to and forming
part of this agreement.
B. The liability of the Reinsurer with respect to each cession hereunder
shall commence obligatorily and simultaneously with that of the Company,
subject to the terms, conditions and limitations hereinafter set forth.
ARTICLE II - COMMENCEMENT AND TERMINATION
A. This Contract shall become effective on January 1, 2004 with respect to
losses occurring on or after that date and shall continue in force
thereafter until December 31, 2006.
B. Either party may terminate this Contract on any January 1 following the
first two year term by giving the other party not less than 90 days prior
notice by certified mail.
C. Unless the Company elects otherwise, reinsurance hereunder on business in
force on the effective date of termination shall remain in full force and
effect until expiration, cancellation or next premium anniversary of such
business, whichever first occurs, but in no event beyond 12 months (plus
up to 6 months odd time) following the effective date of termination.
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ARTICLE III - ORIGINAL CONDITIONS
A. All reinsurance under this Contract shall be subject to the same rates,
terms, conditions and waivers, and to the same modifications and
alterations as the respective policies of the Company. The Reinsurer shall
be credited with its exact proportion of the original premiums written by
the Company, whether collectible or not, prior to disbursement of any
dividends, but after deduction of premiums, if any, ceded by the Company
for inuring reinsurance.
B. Nothing herein shall in any manner create any obligations or establish any
rights against the Reinsurer in favor of any third party or any persons
not parties to this Contract.
ARTICLE IV - COMMISSION
A. The Reinsurer shall allow the Company a 5% commission on all premiums
ceded to the Reinsurer hereunder. The Company shall allow the Reinsurer
return commission on return premiums at the same rate.
B. It is expressly agreed that the ceding commission allowed the Company does
not include taxes, and all board, exchange and bureau assessments, and all
other expenses of whatever nature, or loss adjustment expenses.
ARTICLE V - LOSS IN EXCESS OF POLICY LIMITS/ECO
A. In the event the Company pays or is held liable to pay an amount of loss
in excess of its policy limit, but otherwise within the terms of its
policy (hereinafter called "loss in excess of policy limits") or any
punitive, exemplary, compensatory or consequential damages, other than
loss in excess of policy limits (hereinafter called "extra contractual
obligations") because of alleged or actual bad faith or negligence on its
part in rejecting a settlement within policy limits, or in discharging its
duty to defend or prepare the defense in the trial of an action against
its policyholder, or in discharging its duty to prepare or prosecute an
appeal consequent upon such an action, or in otherwise handling a claim
under a policy subject to this Contract, 100% of the loss in excess of
policy limits and/or 100% of the extra contractual obligations shall be
covered under this Contract.
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B. An extra contractual obligation shall be deemed to have occurred on the
same date as the loss covered or alleged to be covered under the policy.
C. Notwithstanding anything stated herein, this Contract shall not apply to
any loss in excess of policy limits or any extra contractual obligation
incurred by the Company as a result of any fraudulent and/or criminal act
by any officer or director 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.
D. Recoveries from any form of insurance or reinsurance which protects the
Company against claims the subject matter of this Article shall inure to
the benefit of this Contract.
ARTICLE VI - LOSSES AND LOSS ADJUSTMENT EXPENSES
A. Losses shall be reported by the Company in summary form as hereinafter
provided, and the Reinsurer shall have the right to participate in the
adjustment of losses subject to this Contract as its own expense.
B. All claim or loss settlements made by the Company, whether under strict
policy conditions or by way of compromise, shall be binding on the
Reinsurer, and the Reinsurer shall pay or allow, as the case may be, 100%
of each such settlement as provided in Article VIII.
C. In the event of a claim under a policy subject hereto, the Reinsurer shall
be liable for 100% of loss adjustment expenses incurred by the Company in
connection therewith (including litigation expenses and interest on
judgments, but not including office expenses or salaries of the Company's
regular employees), and shall be credited with 100% of any recoveries of
such expense.
ARTICLE VII - SALVAGE AND SUBROGATION
The Reinsurer shall be credited with its proportionate share of salvage (i.e.,
reimbursement obtained or recovery made by the Company, less the actual cost,
excluding salaries of officials and employees of the Company and sums paid to
attorneys as retainer, of obtaining such reimbursement or making such recovery)
on account of claims and settlements involving reinsurance hereunder. The
Company hereby agrees to enforce its rights to salvage or subrogation relating
to any loss, a part of which loss was sustained by the Reinsurer, and to
prosecute all claims arising out of such rights.
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ARTICLE VIII - REPORTS AND REMITTANCES
A. Within 45 days after the end of each month, the Company shall report to
the Reinsurer:
1. Ceded written premiums for the month;
2. Ceding commission on (1) above;
3. Ceded losses and loss adjustment expenses paid during the month;
4. Ceded unearned premiums as of the end of the month;
5. The ceded reserves for losses and loss adjustment expenses
outstanding at the end of the month.
The positive balance of (1) less (2) less (3) shall be remitted by the
Company with its report. Any balance shown to be due the Company shall be
remitted by the Reinsurer to the Company as promptly as possible after
receipt and verification of the Company's report.
B. Quarterly, the Company shall furnish the Reinsurer with such information
as the Reinsurer may require to complete its Annual Convention Statement.
ARTICLE IX - OFFSET
The Company or the Reinsurer shall have, and may exercise at any time and from
time to time, the right to offset any balance or balances, whether on account of
premiums or on account of losses or otherwise, due from one party to the other
under the terms of this Contract. However, in the event of the insolvency of any
party hereto, offset shall only be allowed in accordance with applicable law.
ARTICLE X - ACCESS TO RECORDS
The Reinsurer, by its duly appointed representatives, shall have the right at
any reasonable time to examine, and take copies of, all records of the Company
referring to business effected hereunder.
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ARTICLE XI - ERRORS AND OMISSIONS
Inadvertent delays, errors or omissions made in connection with this Contract or
any transaction hereunder shall not relieve either party from any liability
which would have attached had such delay, error or omission not occurred,
provided always that such error or omission will be rectified as soon as
possible after discovery.
ARTICLE XII - INSOLVENCY
In the event of the insolvency of the Company, this reinsurance shall be payable
directly to the Company or to its liquidator, receiver, conservator or statutory
successor on the basis of the liability of the Company without diminution
because of the insolvency of the Company or because the liquidator, receiver,
conservator or statutory successor of the Company has failed to pay all or a
portion of any claim. It is agreed, however, that the liquidator, receiver,
conservator or statutory successor of the Company shall give written notice to
the Reinsurer of the pendency of a claim against the Company indicating the
policy or bond reinsured which claim would involve a possible liability on the
part of the Reinsurer within a reasonable time after such claim is filed in the
conservation or liquidation proceeding or in the receivership, and that during
the pendency of such claim, the Reinsurer may investigate such claim and
interpose, at its own expense, in the proceeding where such claim is to be
adjudicated, any defense or defenses that it may deem available to the Company
or its liquidator, receiver, conservator or statutory successor. The expense
thus incurred by the Reinsurer shall be chargeable, subject to the approval of
the Court, against the Company as part of the expense of conservation or
liquidation to the extent of a pro rata share of the benefit which may accrue to
the Company solely as a result of the defense undertaken by the Reinsurer.
ARTICLE XIII - ARBITRATION
A. As a condition precedent to any right of action hereunder, in the event of
any dispute or difference of opinion hereafter arising with respect to
this Contract, it is hereby mutually agreed that such dispute or
difference of opinion shall be submitted to arbitration. One Arbiter shall
be chosen by the Company, the other by the Reinsurer, and an Umpire shall
be chosen by the two Arbiters before they enter upon arbitration, all of
whom shall be active or retired disinterested executive officers of
insurance or reinsurance companies or Lloyd's of London Underwriters. In
the event that either party should fail to choose an Arbiter within 30
days following a written request by the other party to do so, the
requesting party may choose two Arbiters who shall in turn choose an
Umpire before entering upon arbitration. If the two Arbiters fail to agree
upon the selection of an Umpire within
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30 days following their appointment, each Arbiter shall name three
nominees, of whom the other shall decline two, and the decision shall be
made by drawing lots.
B. Each party shall present its case to the Arbiters within 30 days following
the date of appointment of the Umpire. The Arbiters shall consider this
Contract as an honorable engagement rather than merely as a legal
obligation and they are relieved of all judicial formalities and may
abstain from following the strict rules of law. The decision of the
Arbiters shall be final and binding on both parties; but failing to agree,
they shall call in the Umpire and the decision of the majority shall be
final and binding upon both parties. Judgment upon the final decision of
the Arbiters may be entered in any court of competent jurisdiction.
C. Each party shall bear the expense of its own Arbiter, and shall jointly
and equally bear with the other the expense of the Umpire and of the
arbitration. In the event that the two Arbiters are chosen by one party,
as above provided, the expense of the Arbiters, the Umpire and the
arbitration shall be equally divided between the two parties.
D. Any arbitration proceedings shall take place at a location mutually agreed
upon by the parties to this Contract, but notwithstanding the location of
arbitration, all proceedings pursuant hereto shall be governed by the law
of the state in which the Company has its principal office.
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be executed
by their duly authorized representatives at:
_________________________, this ____ day of _____________________________, 20__.
______________________________________________________________
Century Surety Company
_________________________, this ____ day of _____________________________, 20__.
______________________________________________________________
Evergreen National Indemnity Company
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Schedule A
Bond business classified by the Company as Landfill Closure Bonds, Landfill
Post-Closure Bonds, Landfill Collection Bonds, Surety and Miscellaneous Bonds
underwritten and issued by the Company and/or Evergreen/UNI.
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