EXHIBIT 10.37
REINSURANCE AGREEMENT
between
LOMBARD GENERAL INSURANCE COMPANY OF CANADA
and
UNITED STATES FIRE INSURANCE COMPANY
ARTICLE I
PARTIES TO THE AGREEMENT
This Agreement is between Lombard General Insurance Company of Canada with
principal offices at 000 Xxxxxxxx Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx, X0X 0X0
(hereinafter called the "Company") and United States Fire Insurance Company,
with principal offices at 000 Xxxxxxx Xxxxxx, X.X. Xxx 0000, Xxxxxxxxxx, Xxx
Xxxxxx 00000-0000 (hereinafter called the "Reinsurer").
ARTICLE II
BUSINESS COVERED
The Company shall cede and the Reinsurer shall accept one hundred percent
(100%) of the Company's liability for losses and allocated loss adjustment
expenses classified by the Reinsurer as surety business, including but not
limited to the bonds listed on Schedule A attached hereto and made a part hereof
("Bonds" or "Bonds"). Any renewal, extension or similar endorsement or extension
where additional limits or coverage or policy terms are provided shall be deemed
part of the original Bond for the purposes of this Agreement.
TERM
This Agreement shall be effective as of January 1, 2001 (the "Effective
Date") and shall remain in effect continuously for a period of one year ( the
"Term") unless otherwise earlier terminated pursuant to the terms of this
section.
The Term of this Agreement shall, automatically and without any further
action of either party, be extended on each annual anniversary date of the
Effective Date for a period of one (1) additional year (the "Annual Extension").
This Agreement may be terminated by either party on sixty (60) days written
notice to the other party.
Notwithstanding any termination of this Agreement, the rights and
obligations of the parties with respect to policies reinsured hereunder shall
survive such termination and shall continue in full force and effect until
expiration of the policy and all of the Reinsurer's obligations under this
Agreement and the Bond have been fully performed and discharged.
ARTICLE III
LIABILITY OF THE REINSURER
The Reinsurer shall indemnify the Company for any Losses and Allocated Loss
Adjustment Expenses and all other loss expenses of the Company, its affiliates
or subsidiaries or managers. "Losses" shall be defined as payments owed by
Company under the Bonds to settle claims or losses, pay benefits, or satisfy
verdicts, awards or judgments, whether or not they are in excess of original
Bond limits, or extra contractual obligations. "Loss Adjustment Expense" shall
be defined as expenditures made by Reinsurer on behalf of Company under the
Bonds the subject of this Agreement, in connection with the defense or
settlement of a claim, loss, or legal
proceeding including but not limited to investigation, negotiation and legal
expenses; court costs; statutory penalties, adjustments; and litigation,
declaratory judgment, prejudgment interest and postjudgment interest expenses
made against Company; legal expenses and costs associated with loss in excess of
Bond limits and extra-contractual obligations; and all other costs of any kind
incurred by Company relating to the adjustment and settlement of Losses.
ARTICLE IV
TERRITORIAL LIMITS
The Agreement shall follow the territorial limits of Canada.
ARTICLE V
COMMISSIONS AND TAXES
The Reinsurer shall allow the Company a ceding commission for all Bonds
reinsured hereunder of ten percent (10%) of the gross ceded collected premium
and, until December 31, 2001, subject to a minimum ceding commission of one
hundred thousand dollars (CN$100,000) after deducting all applicable premium
taxes.
The Company shall be liable for all premium taxes, boards and bureaus and
all other levies on the premiums ceded to the Reinsurer under this Agreement.
ARTICLE VI
NOTICE OF LOSS, LOSS SETTLEMENTS AND SECURITY
The Company agrees that the Reinsurer shall investigate and settle or
defend all claims arising under Bonds reinsured hereunder. The Company shall
give the Reinsurer written notice, including a definitive statement of each
claim as soon as reasonably practical.
Upon receipt by the Reinsurer of satisfactory evidence of payment of a loss
for which reinsurance is provided hereunder, the Reinsurer shall promptly
reimburse the Company for the said loss which shall include Losses and Allocated
Loss Adjustment Expense of the Company, its affiliates or managers.
ARTICLE VII
ERRORS AND OMISSIONS
Inadvertent delays, errors or omissions made in connection with this
Agreement 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 is rectified as soon as
possible after discovery.
ARTICLE VIII
EXTRA-CONTRACTUAL DAMAGES
This Agreement shall protect the Company within the limits hereof, where
the ultimate net loss includes any Extra Contractual Obligations. The term
"Extra Contractual Obligations" is defined as those liabilities not covered
under any other provision of this Agreement and which arise from the handling of
any claim on the Bonds, such liabilities arising because of, but not limited to,
the following: failure by the Company to settle within the Bond 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 or prosecution of
an appeal consequent upon such action.
The date on which any Extra Contractual Obligation is incurred by the
Company shall be deemed, in all circumstances, to be the date of the original
claim.
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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. In no event shall coverage
be provided to the extent that such coverage is not permitted under New York
law.
ARTICLE IX
TRUST FUND
The Reinsurer agrees that it shall enter into a reinsurance trust agreement
and a reinsurance security agreement and establish a trust account in Canada for
the sole benefit of the Company in such form and with a Trustee that is
acceptable to the Company and the governmental authority having jurisdiction
over the Company's reserves. The Reinsurer shall deposit to and maintain on a
quarterly basis in the trust account an amount equal to:
115% of [outstanding claims, including loss adjusting expenses and IBNR +
unearned premiums].
ARTICLE X
ACCOUNTS AND REMITTANCE
Within fifteen (15) days after the close of each month, the Company shall
furnish the Reinsurer with a bordereau that shall show the gross written
premiums, unearned premiums reserves, ceding commission, losses and loss
estimate, and expenses paid. The balance due shown on the bordereau shall be
paid within thirty (30) days after the close of each month.
ARTICLE XI
FEDERAL WITHHOLDING TAX
The Reinsurer hereby agrees to allow a deduction for the purposes of
satisfying any withholding tax requirement mandated by any domestic legislative,
executive, judicial or administrative body or person having or purporting to
have jurisdiction in the relevant circumstances.
ARTICLE XII
INSOLVENCY
In the event of the insolvency of the Company:
A. This Article XII shall apply only to the Company. Each party to this
Agreement agrees to honor the terms set forth herein as if the
Agreement were a separate agreement between Reinsurer and the Company.
Balances payable or recoverable by Reinsurer or the Company shall not
serve to offset any balances payable or recoverable to or from any
other company party to the Agreement. Reports and remittances made to
Reinsurer in accordance with the provisions of this Agreement are to
be in sufficient detail to identify both Reinsurer's loss obligation
due the Company and the Company's premium remittance under this
Agreement. However, the maximum amount recoverable, the maximum amount
retained, and total premium due under this Agreement shall not be
increased by application of the above provisions.
B. Upon the appointment of a conservator, liquidator, or statutory
successor of the insolvent Company, the portion of any risk or
obligation assumed by Reinsurer shall be payable to the conservator,
liquidator or statutory successor on the basis of claims allowed
against the Company by any court of competent jurisdiction or by any
conservator, liquidator, or statutory successor of the Company having
the authority to allow such claims, without diminution because of that
insolvency, or because the conservator, liquidator, or statutory
successor has failed to pay all or a portion of any claims. Payment by
Reinsurer as set forth in this Article XII shall be made directly to
the Company or to its
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conservator, liquidator, or statutory successor, except where this
Agreement specifically provides another payee of such reinsurance in
the event of the insolvency of the company.
C. The conservator, liquidator, or statutory successor of the Company
shall give written notice of the pendency of a claim against the
Company indicating the Bond reinsured, within a reasonable time after
such claim is filed. During the pendency of such claim, Reinsurer may
investigate said 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 to its
conservator, liquidator, or statutory successor. The expense thus
incurred by Reinsurer shall be payable, subject to court approval, out
of the estate of the Company as part of the expense of conservation or
liquidation to the extent that such proportionate share of the benefit
shall accrue to the Company in conservation or liquidation, solely as
a result of the defense undertaken by Reinsurer.
ARTICLE XIII
ARBITRATION
Any dispute or difference arising with reference to the applicable
interpretation or effect of this Agreement, or any part thereof, shall be
referred to a Board of Arbitration (the "Board") of two (2) arbitrators and an
umpire.
The members of the Board shall be U.S. citizens and shall be active or
retired disinterested officers of insurance or reinsurance companies.
One arbitrator shall be chosen by the party initiating the arbitration and
designated in the letter requesting arbitration. The other party shall respond,
within fifteen (15) days, advising of its arbitrator. The umpire shall
thereafter be chosen by the two (2) arbitrators. In the event either party fails
to designate its arbitrator as indicated above, the other party is hereby
authorized and empowered to name the second arbitrator, and the party which
failed to designate its arbitrator shall be deemed to have waived its right to
designate an arbitrator and shall not be aggrieved thereby. The two (2)
arbitrators shall then have thirty (30) days within which to choose an umpire.
If they are unable to do so, the umpire shall be chosen by the manager of the
American Arbitration Association who shall be a person meeting the
qualifications set forth above. Each party shall submit its case to the Board
within one (1) month from the date of the appointment of the umpire, but this
period of time may be extended by unanimous written consent of the Board.
The sittings of the Board shall take place in Morristown, New Jersey,
unless otherwise agreed in writing by the parties. The Board shall make its
decision with regard to the custom and usage of the insurance and reinsurance
business. The Board is released from all judicial formalities and may abstain
from the strict rules of law. The written decision of a majority of the Board
shall be rendered within sixty (60) days following the termination of the
Board's hearings, unless the parties consent to an extension. Such majority
decision of the Board shall be final and binding upon the parties both as to law
and fact, and may not be appealed to any court of any jurisdiction. Judgment may
be entered upon the final decision of the Board in any court of proper
jurisdiction.
Each party shall bear the fees and expenses of the arbitrator selected by
or on its behalf and the parties shall bear the fees and expenses of the umpire
as determined by the Board.
ARTICLE XIV
ACCESS TO RECORDS
The Reinsurer, or its duly authorized representative, shall, upon
reasonable notice and during reasonable business hours, have reasonable access
to the books and records of the Company which pertain to the reinsurance
provided hereunder and may make and take away copies thereof.
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ARTICLE XV
OFFSET
Each party hereto shall have, and may exercise at any time and from time to
time, the right to offset any balance and balances, whether on account of
premiums or account of losses or otherwise due from such party to the other
under this Agreement and may offset the same against any balance or balances due
or to become due to the former from the latter under this Agreement. The party
asserting the right of offset shall have and may exercise such right whether the
balance or balances due or to become due to such party from the other are on
account of premiums or on account of losses or otherwise and regardless of the
capacity, whether as assuming insurer or as ceding insurer, in which each party
acted under the Agreement, provided however that, in the event of the insolvency
of a party hereto, offset shall only be allowed in accordance with the
applicable provisions of the laws of Canada.
ARTICLE XVI
MODIFICATION
This Agreement shall not be modified except by an instrument in writing
signed by the parties hereto.
IN WITNESS WHEREOF, the parties hereto, by their duly authorized officers,
have executed this Agreement as of the 6th day of August, 2001.
LOMBARD GENERAL INSURANCE
COMPANY OF CANADA
/s/
----------------------------------------
UNITED STATES FIRE INSURANCE COMPANY
Xxxxxxxx XxXxxxxx
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SCHEDULE A
PREMIUM
BOND NUMBER EFFECTIVE DATE PRINCIPAL (CANADIAN CURRENCY)
----------- -------------- --------- -------------------
610-228978................ 9/29/00 Neksion Engineering & Contractors C$ 7,818.00
610-229024................ 9/1/00 Alliance Pipeline Limited Partnership C$60,000.00
610-229023................ 9/1/00 Alliance Pipeline Limited Partnership C$36,000.00
