EXHIBIT 10.5
CERTIFICATE NO.
4 23 004 P1
RENEWAL/REPLACES
Client Company and Address Ceding Company and Address
PHILADELPHIA INSURANCE COMPANIES PHILADELPHIA INSURANCE COMPANIES
ONE BALA PLAZA, STE. 100 ONE BALA PLAZA, STE. 100
BALA CYNWYD, PA 19004 BALA CYNWYD, PA 19004
Ceding Company Policy No
ATTENTION: Mr. Neal Schmidt AS PER MONTHLY BORDEREAU
_________________________________
Named Insured Ceding Company Policy Period
PHILADELPHIA INSURANCE COMPANIES - LIQUOR FROM: 6/1/04 TO 6/1/05
LIABILITY - AS PER MONTHLY BORDEREAU _________________________________
BALA CYNWYD, PA Reinsurer Certificate Policy Period
FROM 6/1/04 TO 6/1/05
_________________________________
Item 1
Type of Insurance LIQUOR LIABILITY
----------------- ----------------
Item 2 Item 3 Item 4
Policy Limits Company Retention Reinsurance Accepted
------------- ----------------- --------------------
UP TO $1,000,000 EACH COMMON CAUSE, 25% OF UP TO $1,000,000 EACH COMMON CAUSE, 75% OF UP TO $1,000,000 EACH COMMON CAUSE,
$1,000,000 AGGREGATE $1,000,000 AGGREGATE $1,000,000 AGGREGATE
Item 5 Basis of Acceptance PRO RATA
The Reinsurance Premium for this Certificate is: $1.00 Net due at INCEPTION
Countersigned at Philadelphia, PA ___________________ this 26th day of May, 2004
By _________________________________
Authorized Signature
B F RE UNDERWRITERS, LLC
on behalf of
BERKLEY INSURANCE COMPANY
REINSURING AGREEMENTS AND CONDITIONS
In consideration of the payment of the premium, and the terms, conditions, and
limit(s) liability set forth herein and in the Declarations made a part hereof,
Berkley Insurance Company (herein called the Reinsurer) does hereby reinsure the
ceding company named in the Declarations (herein called the Company) in respect
of the Company's policy(ies) as follows:
A. It is understood and agreed that Berkley Insurance Company is the Reinsurer
hereunder and that B F Re Underwriters, LLC, neither is nor shall be in any way
or to any extent liable for any loss or claim hereunder.
B. The Company warrants to retain for its own account, subject to treaty
reinsurance, if applicable and whether collectible or not, the amount of
liability specified in Item 3 of the Declarations. The liability of the
Reinsurer, as specified in Item 4 of the Declarations, shall follow that of the
Company for losses or damages for which the Company is legally obligated to pay
and shall be subject in all respects to all the terms, conditions, and limits of
the Company's policy(ies) except when otherwise specifically provided herein, or
when designated as nonconcurrent reinsurance in the Declarations, or except such
as may purport to create a direct obligation of the Reinsurer to the original
insured or any other third party. The Reinsurer Certificate Period shall be as
specified in the Declarations at 12:01 A.M. as to both dates at the place
specified in the Company's policy(ies). The Company shall furnish the Reinsurer
with a copy of its policy(ies) and, if material, underlying policy or
policy(ies) and all endorsements thereto, and agrees to notify the Reinsurer
promptly of all
changes thereto which may in any manner affect this certificate of reinsurance.
Any alteration to the Company's original policy(ies) shall not be binding on the
Reinsurer until agreed in writing or by facsimile or electronic mail between the
parties hereto. The Company shall cooperate and shall make available for
inspection and reproduction and place at the disposal of the Reinsurer, through
its authorized representatives, at all reasonable times during the currency of
this certificate and thereafter, Company personnel and all books, records and
documents of the Company relating to this certificate of reinsurance or claims
in connection therewith.
C. In no event shall anyone other than the Company, or in the event of the
Company's insolvency, its receiver, liquidator, or statutory successor, have any
rights under this certificate, and this certificate shall not be assignable by
the Company.
D. The reinsurance excludes all liability of the Company arising by contract,
operation of law, or otherwise, from its participation or membership, whether
voluntary or involuntary, in any insolvency fund, plan, pool, association, fund
or other arrangement, however denominated, established, or governed, which
provides for any assessment of or payment or assumption by the Company of part
or all of any claim, debt, charge, fee or other obligation of any insurer or its
successors or assigns which has been declared by any competent authority to be
insolvent, or which is otherwise deemed unable to meet any claim, debt. charge,
fee or other obligation in whole or part.
E. The Company shall promptly notify the Reinsurer in writing, of any
occurrence, accident, event, or circumstance, and any developments subsequent
thereto, which might result in claim, settlement, or judgment in an amount
sufficient to involve this certificate of reinsurance. The Company shall also
promptly notify the Reinsurer, of any occurrence, accident, event, or
circumstance in respect of which the Company has established a loss reserve
equal to or greater than fifty (50) percent of the Company's retention specified
in Item 3 of the Declarations, or if this reinsurance applies on a contributing
excess basis, when notice of claim is received by the Company. The Company shall
also promptly notify the Reinsurer of any material change(s) to the
aforementioned loss reserve(s).
The Company has the obligation and duty to investigate and defend claims or
suits affecting this reinsurance and to conduct a full defense to a final
determination. While the Reinsurer does not undertake to investigate or defend
claims or suits, it shall nevertheless have the right and shall be given the
opportunity, at its request, with the full cooperation of the Company, to
appoint counsel at its own expense and to become associated with the Company and
its representatives in the defense and control of any claim, suit, or proceeding
involving this certificate of reinsurance.
F. All loss settlements made by the Company, providing they are within the
terms, conditions, and limit(s) of the original policy(ies) and within the
terms, conditions and limit(s) of this certificate of reinsurance, shall be
binding on the Reinsurer. Upon receipt of satisfactory evidence of payment of a
loss, the Reinsurer shall promptly pay its proportion of such loss as set forth
in the Declarations, or as otherwise required. In addition thereto, the
Reinsurer shall pay its proportion of expenses (other than office expenses and
payments to any salaried employee) incurred by the Company in the investigation
and settlement of claims or suits and its proportion of court costs and interest
on any judgment or award, in the ratio that the Reinsurer loss payment bears to
the Company's gross loss payment. If there is no loss payment, the Reinsurer
shall pay, within the limit(s) of the Company's policy, or the applicable layer
of participation, its proportion of such expenses only in respect of business
accepted on a contributing excess basis, and then only in the percentage stated
in Item 4 of the Declarations. The Company agrees to enforce its right of
recovery. The Reinsurer shall be paid or credited by the Company with its
proportionate share of recoveries. Recoveries shall be calculated as
reimbursement obtained or recovery made by the Company less the cost of
obtaining such recovery (excluding office expenses and payments to any salaried
official or employee of the Company or any affiliate). If the reinsurance
afforded by this certificate is or an Excess of Loss basis recoveries shall be
applied in the inverse order in which liability attaches.
G. Definitions
As used in this certificate, the following terms shall have the meaning set
opposite each:
Excess of Loss - the limit(s) of liability of the Reinsurer, as stated in Item 4
of the Declarations, applies(y) only to that portion of loss within the policy
limits, in excess of the applicable retention of the Company as stated in Item 3
of the Declarations.
Contributing Excess - The Company's polices(y) apply(ies) in excess of other
insurance, reinsurance, or a self-insured retention, whether collectible or not,
and the limit(s) of liability of the Reinsurer apply(ies) proportionately to all
loss within the policy limit(s) or the applicable layer of participation in the
percentage(s) as stated in Item 4 of the Declarations.
Nonconcurrent - The reinsurance provided does not apply to any hazards or risks
of loss or damage covered under the Company's policy(ies) other than those
specifically set forth in the Declarations; or, as respects the dates of
coverage, to any Reinsurer Certificate Period other than as set forth in the
Declarations. The retention of the Company and the liability of the Reinsurer
shall be determined as though the Company's policy(ies) applied only to the
hazards or risks of loss or damage specifically described in the Declarations.
H. The Company will be liable for all taxes on premiums ceded to the Reinsurer
under this certificate of reinsurance.
I. In the event of the insolvency of the Company, the reinsurance provided by
this certificate shall be payable by the Reinsurer on the basis of the liability
of the Company under the policy(ies) reinsured, without diminution because of
such insolvency, directly to the Company or its receiver, liquidator, or
statutory successor but not exceeding the proportion thereof payable under the
terms of this certificate. The Reinsurer shall be given written notice of the
pendency of each claim against the Company on the policy(ies) reinsured
hereunder within a reasonable time after such claim is filed in the insolvency
proceedings. The Reinsurer shall have the right to investigate each such claim
and interpose, at its own expense, in the proceeding where such claim is to be
adjudicated, any defenses which it may deem available to the Company or its
receiver, liquidator, or statutory successor. The expense thus incurred by the
Reinsurer shall be chargeable, subject to court approval, against the insolvent
Company as part of the expense of liquidation to the extent of a proportionate
share of the benefit which may accrue to the Company solely as the result of the
defense undertaken by the Reinsurer. The reinsurance shall be payable as herein
before in this paragraph provided except (a) where this certificate specifically
provides another payee of such reinsurance in the event of the insolvency of the
company and (b) where the Reinsurer with the consent of the direct insured or
insurers has expressly assumed such policy obligations of the Company as direct
obligations of the Reinsurer the payee under such policy and in substitution for
the obligations of the Company to such payee.
J. The Reinsurer may offset any balance(s), whether on account of premiums,
commissions, claims, losses, adjustment expense, salvage, or any other amount(s)
due from one party to the other (or, if more than one, any other) party(ies)
under this certificate of reinsurance or under any other agreement heretofore or
hereafter entered into between the Company and the Reinsurer, whether acting as
assuming reinsurer or ceding company. The right of offset shall exist whether
the Company is determined to be insolvent, in liquidation or rehabilitation or
is otherwise legally impaired, to the extent of these predetermined mutual
obligations of the parties to this certificate of reinsurance.
K. Should the Company's policy(ies) be cancelled, this certificate of
reinsurance shall terminate automatically at the same time and date. This
certificate may also be canceled by the Company upon not less than thirty (30)
days prior written notice, stating when thereafter the reinsurance afforded
hereby shall terminate. This certificate may also be cancelled by the Reinsurer
upon written notice to the Company stating when thereafter the reinsurance
afforded hereby shall terminate. The date of such termination shall be the date
written notice is mailed plus the number of days required to cancel the
Company's policy(ies) reinsured hereby plus fifteen (15) days. The Reinsurer may
also cancel this certificate, because of nonpayment of premium, by giving not
less than ten (10) days written notice stating when such cancellation shall be
effective.
Proof of mailing shall be deemed proof of notice and calculation of the earned
premium shall follow the Company's calculation in the use of short rate or pro
rata tables. The Company shall be entitled to return premiums payable on the
cancelled reinsurance less the amount of the ceding commission, if any.
L. The terms of this certificate of reinsurance and the Declarations which
constitute a part thereof shall not be waived or changed except by written
endorsement issued to form a part hereof, executed by a duly authorized
representative of the Reinsurer.
M. Any irreconcilable difference of opinion between the Reinsurer and the
Company with respect to the interpretation of any terms of this certificate or
the performance of the obligations under this certificate shall be submitted to
arbitration. Each party shall select an arbitrator within one month after
written request for arbitration has been received from the party requesting
arbitration. If either party refuses or neglects to name an arbitrator within
the specified period, the requesting party shall appoint a second arbitrator.
The two arbitrators so chosen shall select a third arbitrator within ten days
after both have been appointed. Should the arbitrators fail to agree on a third
arbitrator, each arbitrator shall select one name from a list of three names
submitted by the other arbitrator, and the third arbitrator shall be selected by
lot between the two names chosen. The arbitrators shall be disinterested
officers or former officers of other insurance or reinsurance companies. The
arbitrators shall adopt their own rules and procedures. The decision of a
majority of the arbitrators shall be final and binding on the parties. Judgment
may be entered upon the final decision of the arbitrators in any court having
jurisdiction. Any such arbitration shall take place at Greenwich, Connecticut
unless some other location is mutually agreed to by the two parties in interest.
In Witness Whereof, Berkley Insurance Company has caused this certificate to be
signed by its Secretary at Greenwich, Connecticut, but the same shall not be
binding upon the Reinsurer unless countersigned by an authorized representative
of the reinsurer.
ADDENDUM I
THE REINSURING AGREEMENTS AND CONDITIONS OF THE CERTIFICATE ARE AMENDED AS
FOLLOWS:
SECTION B IS REPLACED BY THE FOLLOWING:
B. The company warrants to retain for its own account, subject to treaty
reinsurance, if applicable and whether collectible or not, the amount of
liability specified in Item 3. of the Declarations. The liability of the
Reinsurer, as specified in Item 4. of the Declarations, shall follow that
of the Company for losses or damages for which the Company is legally
obligated to pay and shall be subject in all respects to all the terms,
conditions and limits of the Company's policy (ies) except when otherwise
specifically provided herein, or when designated as nonconcurrent
reinsurance in the Declarations, or except such as may purport to create a
direct obligation of the Reinsurer to the original insured or any other
third party. Any alteration to the Company's original policy (ies) which
are subject to this certificate, shall not be binding on the Reinsurer
until the Reinsurer grants written approval for any such alteration. The
Company shall cooperate and shall make available for inspection and
reproduction and place at the disposal of the Reinsurer, through its
authorized representative, at all reasonable times during the currency of
this Certificate and thereafter, Company personnel and all books, records
and documents of the Company relating to this certificate of reinsurance
or claims in connection therewith.
SECTION E.
In addition to the conditions contained in Section E of this Certificate, the
Company shall promptly notify the Reinsurer of losses involving the following
injuries:
1. Any brain damage;
2. Spinal-cord injury with paralysis;
3. Severe burns resulting in disfigurement;
4. Amputations and/or multiple fractures;
5. Fatal injuries;
6. Permanent disabilities;
All other conditions of Section E remain unchanged.
SECTION K. CANCELLATION IS REPLACED BY THE FOLLOWING:
K. This Certificate may be terminated by either party sending to the
other party by registered mail to its principal office, notice
stating the time and date of when, not less than 60 days after the
date of mailing such notice, termination shall be effective. Upon
termination of the Certificate and unless otherwise mutually agreed,
the liability of the reinsurer with the respect to policies in
effect at the time and date of termination shall continue until
expiration or cancellation or next anniversary date plus odd time
(not to exceed 15 months) of each such policy of the Company,
whichever comes first.
SECTION L. IS REPLACED BY THE FOLLOWING:
L. The terms of this Certificate of Reinsurance and the Declarations
which constitute a part thereof shall not be waived or changed
except by written endorsement to form a part hereof or written
special acceptance, executed by a duly authorized representative of
the Reinsurer.
THE FOLLOWING SECTIONS ARE HEREBY ADDED:
N. This Certificate shall apply to all new and renewal liquor liability
policies or endorsements of the Company which are subject to this
certificate at or after 12:01A.M. (Eastern Standard Time) April 1,
2004.
O. Eligible business: All liquor liability business that meets
Philadelphia Insurance Company's Liquor Liability Underwriting
Guidelines as agreed to by B F Re Underwriters, LLC as of the date
of this agreement and revised upon mutual agreement thereafter.
P. Reinsurance Premium:
a. The Company shall pay to the Reinsurer 75% of the gross
written premium less 30% ceding commission.
Q. Reports and Remittances:
1. Bordereau reports - Within 30 days after the close of each
month, the Company shall render to the Reinsurer a bordereau
report, on form acceptable to the Reinsurer giving details of
each policy reinsured hereunder and issued during the month.
2. Reinsurance Premium - Within 30 days after the close of each
month, the Company shall render to the Reinsurer a report of
the reinsurance premium for the policies reinsured hereunder
written during the month and the amount due either party shall
be remitted within 30 days after the close of the month.
R. Company Forms:
ISO Liquor Liability Coverage Form CG 0033.
All other terms and conditions remain unchanged.
B F RE UNDERWRITERS, LLC
Stamford, Connecticut 06901
on behalf of
BERKLEY INSURANCE COMPANY
CERTIFICATE NO.
4-23-004-P1
Client Company and Address Ceding Company and Address
Philadelphia Insurance Company Philadelphia Insurance Company
One Bala Plaza, Ste. 100 One Bala Plaza, Ste. 100
Bala Cynwyd, PA 19004 Bala Cynwyd, PA 19004
Ceding Company Policy No
ATTENTION: Mr. Neal Schmidt AS PER MONTHLY BORDEREAU
____________________________________
Named Insured Ceding Company Policy Period
PHILADELPHIA INSURANCE COMPANIES - LIQUOR From 6/1/04 To 6/1/05
LIABILITY - AS PER MONTHLY BORDEREAU Reinsurer Certificate Policy Period
BALA CYNWYD, PA From 6/1/04 To 6/1/05
____________________________________
It is hereby understood and agreed that Addendum 1, Section N is amended as
follows:
N. This Certificate shall apply to all new and renewal liquor liability policies
or endorsements of the company which are subject to this certificate at or after
12:01 A.M. (Eastern Standard Time) June 1, 2004 for the Hotel, Motel and Health
Club Program, and August 17, 2004 for the Bowling Center Program.
Countersigned at Stamford, Connecticut ___________this 24th day of August, 2004
By _________________________________
Authorized Signature