EXHIBIT 10.39
INSURANCE AGREEMENT
THIS INSURANCE AGREEMENT (this "Agreement"), dated September 27, 1996,
intended to be effective as of August 16, 1995 (the "Effective Date"), by and
between Harbour Group Ltd., a Delaware corporation ("Limited"), and Uniquip
Corporation, a Delaware corporation (the "Company").
RECITALS
WHEREAS, Limited has entered into an Insurance Program which Insurance
Program provides for, among other things, workers compensation and employers'
liability, general liability and automobile liability and physical damage
coverage for Limited and for Eligible Companies which are named insureds under
the Insurance Program;
WHEREAS, the Company is an Eligible Company and desires to obtain the
benefits of participating as a named insured in the Insurance Program;
WHEREAS, the Insurance Program includes a retrospective rating plan and
automatic premium adjustment plan, which provide for calculation of the premiums
for the Insurance Program based on application of a rating formula to actual
incurred losses and reserves for future losses and which require adjustment of
the premiums retrospectively; and
WHEREAS, the Company and Limited desire to provide for the payment and
reimbursement by and of each other with respect to premiums and retrospective
adjustments of premiums as more particularly described in this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants which are made and to be performed by the respective parties, it is
hereby agreed as of the Effective Date as follows:
SECTION 1. CERTAIN DEFINITIONS.
When used in this Agreement the terms listed in this Section shall have the
following meanings:
"Adjusted Premium" means, with respect to any Rating Period, the aggregate
of adjusted premiums, adjusted deductible prepayments, actual claims handling
fees (to the extent not included in adjusted deductible prepayments) and other
amounts paid or incurred by Limited with respect to such Rating Period,
including without limitation interest and letter of credit fees paid in
connection with any deferral of premium payments, minus declared dividends or
returned premiums (to the extent not reflected in adjusted premiums) payable to
Limited by Insurer with respect to such Rating Period, all determined in
accordance with the provisions of the Insurance Program in effect for such
Rating Period.
"Affiliate" of a Person means any Person (other than a Participating
Company) who Controls, is Controlled by, or is under common Control with, such
Person.
"Allocate Share" means, with respect to each Participating Company, that
portion of Estimated Premiums with respect to a given Rating Period attributable
to the employees, products, assets and operations of such Participating Company
as conclusively determined by the Broker in a manner analogous to the manner in
which Estimated Premiums were determined pursuant to the Insurance Program, and
that portion of Adjusted Premiums with respect to a given Rating Period
attributable to the employees, products, assets and operations of such
Participating Company as conclusively determined by the Broker in a manner
analogous to the manner in which Adjusted Premiums were determined pursuant to
the Insurance Program, including without limitation the taking into account of
such Participating Company's claims experience during the Rating Period. Each
Participating Company's Allocate Share of the Premium Adjustment with respect to
each Rating Period shall be the difference, positive or negative, of the
Participating Company's Allocate Share of Estimated Premiums minus such
Participating Company's Allocate Share of Adjusted Premiums for such Rating
Period. Its Allocate Share of the Premium Adjustment, if negative, is an amount
payable by the Participating Company to Limited or to Broker at Limited's
direction and if positive, an amount payable or creditable to the Participating
Company by Limited or Broker on Limited's behalf.
"Broker" means Xxxxxx Xxxxxxx Corporation of Missouri, or any successor
providing similar services in connection with any Insurance Program with respect
to any Rating Period. In the event that there is no such successor providing
similar services, Broker shall mean Limited, or its designee.
"Calculation Date" means, with respect to any Rating Period, the date six
months after the end of such Rating Period, and annually thereafter, as of which
dates the Premium Adjustment is determined.
"Control" shall mean, with respect to a Person, the ownership or control of
voting interests capable of electing a majority of the managing body of such
Person.
"Eligible Company" means a Person more than fifty percent (50%) of the
ownership interests of which are owned by Harbour Group and eligible to
participate in the Insurance Program, as it may be amended from time to time.
"Estimated Premiums" means, with respect to each Rating Period, the
aggregate of premiums (unadjusted), deductible prepayments, estimated claims
handling charges (to the extent not included in deductible prepayments) and
other amounts paid or incurred by Limited with respect to such Rating Period,
including without limitation interest and letter of credit fees paid in
connection with any deferral of premium payments, minus interim advances
(adjustments) of dividends payable to Limited by Insurer with respect to such
Rating Period, all determined in accordance with the provisions of the Insurance
Program in effect for such Rating Period.
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"Harbour Group" means, as applicable, Limited, Harbour Group Investments,
L.P. and/or any of their respective Affiliates.
"Insurer" means the CNA Companies, including Transportation Insurance
Company, Continental Casualty Company, Transcontinental Technical Services, Inc.
and any other Person providing all or any part of an Insurance Program.
"Insurance Program" means, as applicable, that certain CNA Casualty
Insurance Program for the period effective April 1, 1996 to April 1, 1997, prior
programs as in effect for the one year period ending April 1, 1996 and any
successor program, as each may have been or may be amended from time to time.
"Participating Company" means, with respect to each Rating Period, an
Eligible Company which has been included as a named insured in the Insurance
Program.
"Person" means an individual, partnership, corporation, limited liability
company, unincorporated organization or association, trust or other entity.
"Premium Adjustment" means the difference, positive or negative, of
Estimated Premiums with respect to a given Rating Period minus Adjusted Premiums
with respect to such Rating Period, determined as of each Calculation Date for
such Rating Period. The Premium Adjustment, if negative, is an amount payable by
Limited to the Insurer and if positive, an amount payable or creditable to
Limited by the Insurer.
"Rating Period" means the period commencing on April 1 of each year and
ending on April 1 of the following year, or other period determined in
accordance with the Insurance Program.
"Retrospective Adjustment Statement" means the statement issued by Broker
to each Participating Company as of each Calculation Date and as of final
settlement with respect to each Rating Period setting forth the calculation of
such Participating Company's Allocate Share of the Premium Adjustment for such
Rating Period.
Terms not otherwise defined herein shall have the meanings given such terms
in the Insurance Program, unless the context clearly indicates otherwise.
SECTION 2. PARTICIPATION IN INSURANCE PROGRAM.
During each Rating Period for which the Company is an Eligible Company,
Limited may, at its election, include the Company as a Participating Company in
the Insurance Program. In the event that the Company is an Eligible Company and
Limited elects not to include the Company as a Participating Company, Limited
shall give notice to the Company of its election prior to the commencement of
such Rating Period; provided that any failure to give such notice shall not
obligate Limited to include the Company as a Participating Company. The Company
shall cease to be a Participating Company immediately upon the earlier to occur
of the Company ceases to be an Eligible Company, and the Insurance Program is
terminated for any reason, including, without limitation, a voluntary
termination by Limited; provided, however, that the provisions of Section 3 of
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this Agreement shall continue to apply with respect to any Rating Period during
which the Company was a Participating Company. In the event that during a
Rating Period the Company ceases to be a Participating Company, Limited shall
promptly give notice to the Company of such event; provided that Limited shall
in no way be liable to the Company for any failure to give such notice.
SECTION 3. AGREEMENT TO REIMBURSE.
With respect to each Rating Period for which the Company is a Participating
Company, the Company shall reimburse Limited in the amount of the Company's
Allocate Share of Adjusted Premiums for such Rating Period.
Within fifteen (15) days of receipt from Broker of each monthly invoice
setting forth the Company's Allocate Share of each installment of Estimated
Premiums for each Rating Period during which the Company is a Participating
Company, the Company shall remit to Limited, or on Limited's behalf and at its
direction to Broker or Insurer, the Company's Allocate Share of each installment
of Estimated Premiums.
Upon determination of the Company's Allocate Share of the Premium
Adjustment on each Calculation Date, the Company shall be provided with a
Retrospective Adjustment Statement setting forth the Company's Allocate Share of
the Premium Adjustment. If the Company's Allocate Share of the Premium
Adjustment is positive, Limited or on Limited's behalf, Broker shall pay to the
Company an amount equal to such positive amount within fifteen (15) days of the
date of the Retrospective Adjustment Statement. If the Company's Allocate Share
of the Premium Adjustment is negative, the Company shall pay to Limited or at
Limited's direction to Broker an amount equal to such negative amount within
fifteen (15) days of the date of the Retrospective Adjustment Statement.
In the event that for any Rating Period there are any claims under the
Insurance Program with respect to any Participating Company which claims remain
open or a balance remains in the deductible prepayment fund after the first
Calculation Date, as of each subsequent Calculation Date there shall be a new
determination of the Adjusted Premium, the Premium Adjustment and each
Participating Company's Allocate Share of the Premium Adjustment and the Company
shall be provided with a recalculated Retrospective Adjustment Statement.
Upon final settlement of all claims with respect to a Rating Period,
Limited shall request the Broker to make a final determination of the Adjusted
Premium, the Premium Adjustment and each Participating Company's Allocate Share
of the Premium Adjustment taking into account the final reconciliation of the
deductible prepayment fund and to provide to the Company and Limited a final
Retrospective Adjustment Statement setting forth the Company's Allocate Share of
the final Premium Adjustment. If the Company's Allocate Share of the final
Premium Adjustment for the Rating Period exceeds the amounts previously paid to
Limited or Broker on account of the Insurance Program for such Rating Period,
the Company shall remit the excess to Limited or at Limited's direction to
Broker
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within thirty (30) days of the date of the final Retrospective Adjustment
Statement. If the amounts previously paid by the Company on account of such
Insurance Program for the Rating Period exceed the Company's Allocate Share of
the final Premium Adjustment for such Rating Period, Limited shall remit the
excess to the Company within thirty (30) days of the date of the final
Retrospective Adjustment Statement.
SECTION 4. FURTHER ASSURANCES.
Each party hereto shall cooperate with the others, and execute and deliver,
or cause to be executed and delivered, all such other instruments and take all
such other actions as may be reasonably requested by the other party hereto from
time to time, consistent with the terms of this Agreement, to effectuate the
purposes and provisions of this Agreement.
SECTION 5. NOTICES.
All notices, requests, consents and other communications hereunder shall be
in writing and may be delivered personally (including by courier) or by first
class registered or certified mail, postage prepaid, addressed:
(a) if to the Company, to:
Uniquip Corporation
000 X. Xxxxxxx Xxxxxx
Xxxx Xxxxxxxxxx, XX 00000
Attention: Chief Executive Officer
(b) if to Limited, to:
Harbour Group Ltd.
0000 Xxxxxxx Xxxxxxxxx
Xxxxx 000
Xx. Xxxxx, XX 00000
Attention: Xx. Xxxxxxx X. Xxxxxxxx
or at such other address as may have been furnished by such party to the others
in writing. Service of any such notice or other communication so made by mail
shall be deemed complete on the earliest to occur of the day of actual delivery
thereof as shown by the addressee's registry or certification receipt or at the
expiration of the third (3rd) day after the date of mailing.
SECTION 6. GOVERNING LAW; PROCESS.
This Agreement shall be governed by the substantive laws of the State of
Missouri without regard to the provisions for choice of law thereunder. The
parties hereto (a) agree that any legal suit, action or proceeding arising out
of or relating to this Agreement must be instituted in a State or Federal Court
in the City of St. Louis, County
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of St. Louis and State of Missouri, (b) waive any objection which they may have
now or hereafter to the laying of venue of any such suit, action or proceeding,
(c) irrevocably submit to the jurisdiction of any such court in any such suit,
action or proceeding, and (d) consent to service of process by mail, in the
manner set forth in Section 5, in respect of any legal suit, action or
proceeding arising out of or relating to this Purchase Agreement.
SECTION 7. MODIFICATION; WAIVER.
This Agreement shall not be altered or otherwise amended except pursuant to
an instrument in writing signed by each of the parties hereto. Any party may
waive any misrepresentation by any other party, or any breach of warranty by, or
failure to perform any covenant, obligation or agreement of, any other party,
provided that mere inaction or failure to exercise any right, remedy or option
under this Agreement, or delay in exercising the same, will not operate as nor
shall be construed as a waiver, and no waiver will be effective unless set forth
in writing and only to the extent specifically stated therein.
SECTION 8. ENTIRE AGREEMENT.
This Agreement contains the entire agreement among the parties with respect
to the subject matter hereof and supersedes all prior agreements, discussions,
negotiations and understandings related to the subject matter hereof. This
Agreement may be amended only by a document in writing executed by all of the
parties hereto.
SECTION 9. ASSIGNMENT; SUCCESSORS AND ASSIGNS.
This Agreement may not be assigned by either party without the prior
written consent of the other party. Subject to the foregoing, this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.
SECTION 10. SEVERABILITY.
The provisions of this Agreement are severable, and in the event that any
one or more provisions are deemed illegal or unenforceable, the remaining
provisions shall remain in full force and effect.
SECTION 11. EXECUTION IN COUNTERPART.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original but all of which shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above, effective as of the Effective Date.
HARBOUR GROUP LTD.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President - Finance
UNIQUIP CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Treasurer
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