EXHIBIT 10.1
ASSUMPTION REINSURANCE AGREEMENT DATED AS OF
MARCH 20, 1997 BETWEEN THE TRUST, CONTINENTAL AND THE COMPANY
ASSUMPTION REINSURANCE AGREEMENT
THIS ASSUMPTION REINSURANCE AGREEMENT (the "Agreement") is
made and entered into as of this 2oth day of March, 1997, by and
between Delta Agricultural and Industrial Trust, a Mississippi
workers' compensation self insured trust (the "Trust");
Stoneville Insurance Company, a Mississippi stock insurance
company ("Stoneville"); and Continental Casualty Company, an
Illinois stock insurance company ("Continental").
ARTICLE 1
WITNESSETH
WHEREAS, the Trust desires to cede to, and Continental
desires to assume, all rights and obligations pertaining to
workers' compensation insurance issued by the Trust as specified
on Exhibit A (the "Policies") and the joint and several liability
of each insured of the Trust one to the other arising out of the
membership of the insureds in the Trust in accordance with the
terms and conditions hereinafter set forth; and
WHEREAS, subsequent to such cession, the Trust shall be
liquidated and Stoneville shall be the Trust's successor in
interest and be the assignee of the Trust's rights hereunder; and
WHEREAS, Stoneville and Continental desire to create a
relationship whereby Stoneville may reinsure the obligations
Continental previously assumed from the Trust in accordance with
the terms of this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises
and the covenants, provisions and agreements set forth herein,
the parties agree as follows:
ARTICLE 2
DEFINITIONS
2.1 "Affiliate" means, as applied to any Person, any other
Person directly or indirectly controlling, controlled
by, or under common control with, that Person. For
purposes of this definition, "control" (including with
correlative meanings, the terms "controlling,"
"controlled by," and "under common control with"), as
applied to any Person, means the possession, directly
or indirectly, of the power to direct or cause the
direction of the management and policies of that
Person, whether through the ownership of voting
securities or by contract or otherwise.
2.2 "Claims" means Reported Claims and Unreported Claims.
2.3 "Continental Expense" means the sum of Two Hundred
Thousand Dollars ($200,000) which the Trust shall pay
the Continental as a part of the Premium.
2.4 "Covered Obligations" means (i) the Claims and the
Liabilities calculated on, or attributable to, the
Claims; and (ii) the joint and several liability of
each insured of the Trust one to the other arising out
of the membership of the insureds in the Trust.
Covered Obligations shall not include (i) any dividends
payable to members of the Trust, (ii) any obligations
regarding commission payments related to insurance
issued by the Trust; (iii) obligations for premium
taxes attributable to insurance issued by the Trust; or
(iv) any assessments made against the Trust by the
Mississippi Workers' Compensation Self-Insurer Guaranty
Association.
2.5 "Effective Date" means 12:01 a.m., Central Standard
Time, January 1, 1997. This Agreement shall become
effective only upon the satisfaction of the conditions
precedent as set forth in Article 9 hereof.
2.6 "Experience Account" means accounting entries which
shall be created and maintained by Continental which
shall detail the amount of Reserves allocable to each
Fund Year.
2.7 "Fund Year" means an accounting year of the Trust. The
months composing each Fund Year of the Trust are
attached as Exhibit B.
2.8 "Liability" shall mean all liability, including but not
limited to, Loss Expenses incurred by Continental
related to the Covered Obligations, but not including
office expenses or salaries or other compensation and
expenses of employees of Continental or its Affiliates.
2.9 "Loss Expenses" shall mean expenditures by or on behalf
of Continental in the defense, investigation or
settlement of Claims and allocated to an individual
Claim or loss including investigation, appraisal,
adjustment, negotiation and legal expenses, court
costs, costs of award or judgment paid by or on behalf
of Continental, statutory penalties, prejudgment
interest and interest on any judgment or award, but not
including office expenses or salaries or other
compensation and expenses of employees of Continental
or its Affiliates.
2.10 "Person" means any individual, corporation,
partnership, joint venture, association, or other form
of organization, in each case whether or not having a
separate legal identity.
2.11 "Premium" means the Reserves and Continental Expense to
be paid to Continental in return for Continental's
assumption of the Covered Obligations.
2.12 "Reported Claims" means the claims made by persons
under the Policies, and all rights and obligations and
prerogatives associated therewith, including but not
limited to reserves, premiums paid or payable, unearned
premiums and all Liabilities associated therewith, as
set forth on Exhibit C attached hereto and made a part
hereof. Exhibit C will be amended from time to time by
Continental to reflect the filing of any claims on the
Policies issued by the Trust reported subsequent to the
date hereof which were categorized as Unreported Claims
as of the date hereof.
2.13 "Reserves" means as of the date hereof the sum of Two
Million Two Hundred Thousand Dollars ($2,200,000), less
claims amounts which have been paid between the
Effective Date and the date the Premium is paid to
Continental by the Trust, which sum the Trust will
transfer to Continental as a part of the Premium for
payment of Covered Obligations. The Reserves shall
consist of funds allocated specifically to Reported
Claims as well as funds allocated to Unreported Claims.
2.14 "Stoneville Reinsurance" means the cession by
Continental to Stoneville of the Covered Obligations
for any Fund Year for the provision of reinsurance by
Stoneville to Continental for such Covered Obligations
in accordance with a Reinsurance Agreement acceptable
to Continental with such acceptability criteria to be
based on customary industry practice and with such
acceptance by Continental not to be unreasonably
withheld.
2.15 "Unreported Claims" means claims which may have been
incurred but not yet reported under workers'
compensation insurance Policies issued by the Trust and
all rights and obligations and prerogatives associated
therewith, including but not limited to reserves,
premiums paid or payable, unearned premiums and all
liabilities associated therewith.
ARTICLE 3
CESSION AND ASSUMPTION REINSURANCE
3.1 Cession and Assumption. As of the Effective Date, the
Trust shall cede to Continental, and as of such date
Continental shall assume as direct obligations, 100% of
the Covered Obligations.
3.2 Subrogation. Continental shall accept and assume the
Covered Obligations and shall have the benefit of any
and all rights of action, defenses, recoupments,
setoffs and counterclaims to which the Trust would be
entitled with respect to such Covered Obligations, it
being expressly understood and agreed by the parties
hereto that no such defenses, recoupments, setoffs or
counterclaims are waived by the execution of this
Agreement or the consummation of the transactions
contemplated hereunder and that, on and after the
Effective Date, Continental shall be fully subrogated
to all such defenses, recoupments, setoffs and
counterclaims.
3.3 Liability. The liability of Continental under this
Agreement begins on the Effective Date.
ARTICLE 4
ASSUMPTION CERTIFICATE
4.1 Certificate. Within thirty (30) days after the
Effective Date, the Trust shall issue and send by
first-class mail an Assumption Certificate in the form
as set forth on Exhibit D to each of the Trust's
insureds as shown on the books and records of the
Trust.
ARTICLE 5
USE OF RESERVES AND ADDITIONAL COLLATERAL
5.1 Additional Collateral. Stoneville shall provide to
Continental collateral in the amount of One Million
Five Hundred Thousand Dollars ($1,500,000) for payment
of the Covered Obligations (the "Additional
Collateral"). Stoneville, at its option, may provide
the Additional Collateral either through (i) an
irrevocable letter of credit with a financial
institution acceptable to Continental in a form
acceptable to Continental; or (ii) cash or securities
placed in a trust account, the terms and Trustee of
which are acceptable to Continental and Stoneville.
5.2 Use. The Reserves and Additional Collateral shall be
used by Continental only for payment of Covered
Obligations.
ARTICLE 6
PREMIUM
6.1 Payment. The Trust shall pay to Continental the
Premium which shall be the sole payment due from the
Trust for Continental's assumption of the Covered
Obligations.
ARTICLE 7
CLAIMS AND ADMINISTRATION
7.1 Third Party Claims Administrator. The parties agree
that Sedgwick James of Mississippi, Inc. ("Sedgwick")
shall be appointed as third party claims administrator
to handle Claims arising out of the Covered
Obligations. The Trust shall have Sedgwick perform
such administration at no cost to Continental pursuant
to that certain Continuation of Service Agreement dated
as of May 9, 1996 (the "Service Agreement") between the
Trust and Sedgwick which rights to administration at no
cost shall be assigned to Continental. The Trust
agrees to transfer to Continental all files related to
the Covered Obligations and to cooperate with
Continental with respect to servicing of the Claims.
7.2 Claims. Continental will notify Sedgwick and
Stoneville promptly after the receipt of any
information on a Claim involving the Covered
Obligations. Continental will furnish to Sedgwick and
Stoneville copies of notifications and claim papers as
soon as possible following Continental's receipt of
such documents. Continental agrees to allow Stoneville
to advise and assist Continental in determination of
Claims and the best procedure to follow with respect to
a Claim of doubtful validity and decisions on handling
such claims shall be made jointly. Payments of Claims
shall be made directly to the beneficiary. Stoneville
may, but is not required to, participate with
Continental to contest, compromise, or litigate a
Claim, with such participation to be at Stoneville's
expense.
ARTICLE 8
STONEVILLE REINSURANCE
8.1 Reinsurance. Stoneville shall have the right to cause
Continental to cede to Stoneville all or a portion of
the Covered Obligations for any Fund Year for the
purpose of providing reinsurance to Continental
pursuant to Stoneville Reinsurance. No consideration
shall be paid or due to or from either Stoneville or
Continental for Stoneville Reinsurance.
8.2 Notice of Reinsurance. Stoneville may exercise
Stoneville Reinsurance on January 1 or July 1 of any
year beginning with July 1, 1997, by providing sixty
(60) days' written notice to Continental prior to such
exercise date. Such notice shall contain the amount of
reinsurance Stoneville desires to provide and the
portions of the Covered Obligations it desires to
reinsure. Prior to the effective date of any
Stoneville Reinsurance, Continental and Stoneville
shall enter into a Reinsurance Agreement in a form
acceptable to Continental with such acceptability
criteria to be based on customary industry practice and
with such acceptance by Continental not to be
unreasonably withheld.
8.3 Effect of Stoneville Reinsurance on Reserves.
(1) Upon Stoneville Reinsurance: (i) Continental shall
transfer to Stoneville the amounts of Reserves entered in the
Experience Account which are allocable to the Covered Obligations
for the Fund Year which Stoneville desires to reinsure; and (ii)
the Additional Collateral shall be reduced by a percent equal to
the quotient of the following formula: reduction of Reserves in
Experience Accounts attributable to Stoneville Reinsurance divided by
amount of Reserves in all Experience Accounts for all Fund Years
immediately prior to Stoneville Reinsurance.
(2) Upon Stoneville Reinsurance, Stoneville agrees to place
the amounts of Reserves in the Experience Account for the Fund
Year incident to such Stoneville Reinsurance received from
Continental in a trust account with a financial institution
acceptable to Continental and Stoneville with the terms and
conditions of such trust to comply with the law of Continental's
state of domicile such that Continental shall receive financial
statement credit for such reinsurance.
ARTICLE 9
STONEVILLE RECAPTURE
9.1 Stoneville Recapture.
(1) Stoneville shall have the right to cause Continental to
cede to Stoneville the (i) Reserves allocable to Reported Claims
which have been settled for less than the amount of Reserves
allocated to such Reported Claims ("Reported Claim Recapture");
and (ii) Reserves which are allocated for Unreported Claims and
other contingencies which, in the opinion of Wexford Actuarial &
Consulting Services or such other consulting actuarial firm
mutually agreed to by Stoneville and Continental (the "Actuary"),
are not actuarially needed ("IBNR Recapture"). The Reported
Claim Recapture and IBNR Recapture shall be collectively referred
to as "Stoneville Recapture." Actuarial expenses incurred in
connection with IBNR Recapture with respect to this Section
8.1(a) shall be paid by Stoneville. No consideration shall be
paid or due to or from either Stoneville or Continental for
Stoneville Recapture.
(2) In the event Continental disagrees with the actuarial
review of IBNR Recapture as set forth in Section 8.1(a),
Continental, at its sole expense, may also appoint an actuary or
appraiser to investigate, determine and capitalize Reserves
allocated to Unreported Claims. If both parties then agree,
Continental shall release to Stoneville the amount of Reserves
not actuarially needed.
(3) If the parties, subsequent to the procedures in
Sections 8.1(a) and 8.1(b) above, fail to agree on the amount of
Reserves not actuarially needed regarding IBNR Recapture, the
parties agree to settle any difference using a panel of three
actuaries, one to be chosen by each party and the third by the
two so chosen. If either party refused or neglects to appoint an
actuary within thirty days, the other party may appoint two
actuaries. If the two actuaries fail to agree on the selection
of a third actuary within thirty 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 the actuaries
shall be regularly engaged in the valuation of insurance or
reinsurance claims and shall be Fellows of the Casualty Actuarial
Society or of the American Academy of Actuaries. All of the
actuaries shall be disinterested, not under the control of either
party to this Agreement, nor have any conflict of interest. Each
party shall submit its case to its actuary within thirty days of
the appointment of the third actuary. The decision in writing of
any two actuaries, when filed with the parties hereto, shall be
final and binding on both parties. The expense of the actuaries
shall be equally divided between the two parties.
9.2 Notice of Recapture. Stoneville may exercise
Stoneville Recapture on January 1 or July 1 of any year
beginning with July 1, 1997 by providing sixty (60)
days' written notice to Continental prior to such
exercise date. In the event of a Reported Claim
Recapture, such notice shall identify the Reported
Claims subject to the Stoneville Recapture and the
amount of Reserves allocable thereto to be recaptured.
In the event of an IBNR Recapture, the notice shall
state the amount of Reserves to be recaptured and
include a copy of the Actuary's report analyzing such
IBNR Recapture.
9.3 Effect of Stoneville Recapture on Reserves. Upon
Stoneville Recapture (i) the Reserves shall be lessened
by the amount of Stoneville Recapture; and (ii) the
Additional Collateral shall be reduced by a percent
equal to the quotient of the following formula:
reduction in Reserves attributable to Stoneville
Recapture divided by amount of all Reserves immediately prior to
Stoneville Recapture.
ARTICLE 10
CONDITIONS PRECEDENT
10.1 Conditions. This Agreement shall become effective upon
satisfaction of the following conditions: (i) the
rights to no cost administration of the Claims arising
out of the Covered Obligations under the Service
Agreement have been assigned to Continental; and (ii)
payment to Continental of the Premium and the funding
of the Additional Collateral.
ARTICLE 11
TERM
11.1 Term. Subject to the satisfaction of the conditions
precedent as set forth in Article 9 hereof, this
Agreement shall commence as of the Effective Date. In
the event that the conditions precedent set forth in
Article 9 have not been satisfied or waived by all
parties prior to December 31, 1997, this Agreement
shall terminate with no further obligation of any party
to the other.
ARTICLE 12
REPRESENTATIONS AND WARRANTIES
12.1 Continental Representations.
(1) Continental warrants that it is a corporation duly
organized as a capital stock insurance company, validly existing
and in good standing under the laws of the State of Illinois with
the power and authority to conduct the business in which it is
engaged, and has complete and unrestricted power to enter into
and consummate this Agreement. Continental has full power and
authority to enter into this Agreement and carry out the
transactions contemplated hereby and all necessary corporate
action has been taken by Continental to authorize the execution
and delivery of this Agreement and the performance of the
transactions contemplated hereby.
(2) Continental has all licenses, permits and registrations
necessary under the laws of State of Mississippi to perform the
transactions contemplated herein and is and shall remain in
compliance with all federal and state laws, regulations, and
policies pertaining to the provision of reinsurance and there are
no outstanding, pending or threatened orders, writs, injunctions,
or decrees of any court, governmental agency, or other tribunal
affecting the ability of Continental to enter into this Agreement
or provide the services described herein or relating to the
solvency of Continental.
12.2 Trust Representations.
(1) The Trust warrants that it is a duly organized
Mississippi workers' compensation self insurance trust, validly
existing and in good standing under the laws of the State of
Mississippi with the power and authority to conduct the business
in which it is engaged, and has complete and unrestricted power
to enter into and consummate this Agreement. The Trust has full
power and authority to enter into this Agreement and carry out
the transactions contemplated hereby and all necessary trust
action has been taken by the Trust to authorize the execution and
delivery of this Agreement and the performance of the
transactions contemplated hereby.
(2) The Trust has all licenses, permits and registrations
necessary under the laws of State of Mississippi to perform the
transactions contemplated herein and there are no outstanding,
pending or threatened orders, writs, injunctions, or decrees of
any court, governmental agency, or other tribunal affecting the
ability of the Trust to enter into this Agreement or provide the
services described herein or relating to the solvency of the
Trust. The fair market value of the Trust's assets exceeds the
Trust's liabilities, and the Trust is currently paying its debts
when due. The Trust is not a party to any insolvency or
bankruptcy proceeding, nor is currently making an arrangement for
the benefit of creditors.
12.3 Stoneville Representations.
(1) Stoneville warrants that it is a corporation duly
organized, validly existing and in good standing under the laws
of the State of Mississippi with the power and authority to
conduct the business in which it is engaged, and has complete and
unrestricted power to enter into this Agreement. All necessary
corporate action has been taken by Stoneville to authorize the
execution and delivery of this Agreement.
(2) There are no outstanding, pending or threatened orders,
writs, injunctions, or decrees of any court, governmental agency,
or other tribunal affecting the ability of Stoneville to enter
into this Agreement. Prior to Stoneville Reinsurance, Stoneville
shall be licensed as an insurance company qualified to write
workers' compensation insurance in the State of Mississippi.
12.4 Information. To the best of their respective
knowledge, the Trust and Stoneville warrant that all
information provided by the Trust and Stoneville to
Continental in connection with this Agreement,
including financial and actuarial statements, is
accurate and complete.
ARTICLE 13
MISCELLANEOUS
13.1 Notices. Any notices required or permitted to be given
hereunder shall be deemed to be given if delivered by
hand or if mailed by certified mail, postage prepaid,
return receipt requested or by postal or a commercial
express document delivery service which issues an
individual delivery or receipt, or by facsimile with
reasonable evidence of receipt, to the following
addresses:
If to Continental: Continental Casualty Company
180 Maiden Lane
New York, New York 10038
Attn: Scott Keller
Facsimile: (212) 440-3476
with copy to:
Continental Casualty Company
CNA Plaza
Chicago, Illinois 60685
Attn: Dennis Norton, Esq.
Facsimile: (312) 822-1186
If to Trust: Delta Agricultural and
Industrial Trust
633 North State Street,
Suite 200
Jackson, Mississippi 39202
Attn: Harry Vickery
Facsimile: (601) 355-7822
If to Stoneville: Stoneville Insurance Company
633 North State Street,
Suite 200
Jackson, Mississippi 39202
Attn: Harry Vickery
Facsimile: (601) 355-7822
13.2 Expenses. All expenses of the preparation of this
Agreement shall be borne by the respective parties
incurring such expense.
13.3 Entire Agreement. This Agreement and the Exhibits
delivered pursuant hereto, constitute the entire
contract between the parties hereto pertaining to the
subject matter hereof and supersede all prior and
contemporaneous agreements, understandings,
negotiations and discussions, whether written or oral,
of the parties.
13.4 Governing Law. The validity and construction of this
Agreement shall be governed by the laws of the State of
Mississippi.
13.5 Section Headings. The section headings are for
reference only and shall not limit or control the
meaning of any provision of this Agreement.
13.6 Waiver. No delay or omission on the part of any party
hereto in exercising any right hereunder shall operate
as a waiver of such right or any other right under this
Agreement.
13.7 Amendments. This Agreement may be amended, but only in
writing, signed by the parties hereto.
13.8 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be an
original, but all of which together shall compromise
one and the same instrument.
13.9 Attorneys' Fees. If legal action is commenced to
enforce this Agreement, the prevailing party in such
action shall be entitled to recover its costs and
reasonable attorneys' fees in addition to any other
relief granted.
13.10 Successor and Assigns. Continental shall not assign
its rights hereunder or transfer or otherwise reinsure the
Covered Obligations to or with other persons without the express
written consent of Stoneville. Continental hereby acknowledges
and agrees that it is aware of the Trust's intent to liquidate,
and that upon such liquidation, Continental understands and
agrees that the Trust's rights hereunder shall automatically be
assigned to Stoneville with no further action by any party
required, and Stoneville hereby accepts such assignment.
13.11 Arbitration. In the event of any dispute hereunder,
such dispute shall be settled by arbitration in accordance with
the commercial arbitration rules of the American Arbitration
Association then in effect. Upon the occurrence of a dispute,
the parties shall choose a panel of three arbitrators in the
following manner: one of the arbitrators shall be appointed by
Stoneville, the second by Continental and the third is to be
selected by those two arbitrators before the beginning of the
arbitration. Should one of the parties decline to appoint an
arbitrator for a period of thirty (30) days after being requested
to do so by the other party, or should the two arbitrators be
unable to agree upon the choice of a third, within thirty (30)
days after their appointment, the appointment shall be made by
the American Arbitration Association. The arbitrators shall
decide by a majority of votes and the award of such arbitrators
shall be final and may be entered in any court of competent
jurisdiction. All costs and expenses of such arbitration,
including legal expenses, shall be paid solely by the party
against whom the award is directed, or as directed by the
arbitrators. The arbitration proceedings shall convene and be
held in the City of Jackson, Mississippi, or such other city
mutually agreed upon by the parties. All such arbitrators shall
be distinterested, not under the control of any party to this
Agreement, and shall not have any conflict of interest.
The parties have duly executed this Agreement as of the day
and year first above written.
CONTINENTAL: TRUST:
CONTINENTAL CASUALTY COMPANY DELTA AGRICULTURAL AND INDUSTRIAL
TRUST
By: /s/ Scott Keller By: /s/ Harry E. Vickery
Name/Title: Vice President Name/Title:Administrator
STONEVILLE:
STONEVILLE INSURANCE COMPANY
By:/s/ Harry E. Vickery
Name/Title:/s/ President
EXHIBIT A
LIST OF POLICIES
[Exhibit not included]
EXHIBIT B
LIST OF FUND YEARS
8/1/91 - 7/31/92
8/1/92 - 7/31/93
8/1/93 - 12/31/94
1/1/95 - 12/31/95
1/1/96 - 12/31/96
EXHIBIT C
LIST OF REPORTED CLAIMS
[Exhibit not included]
EXHIBIT D
ASSUMPTION CERTIFICATE
[Letterhead of Delta Agricultural and Industrial Trust]
, 1997
Policy No.:
Dear Insured:
Continental Casualty Company ("Continental"), pursuant to
that certain Assumption Reinsurance Agreement between
Continental, Delta Agricultural and Industrial Trust (the
"Trust") and Stoneville Insurance Company dated as of March 20,
1997, has assumed as of 12:01 a.m., Central Standard Time,
January 1, 1997, the contractual liability of the Trust under the
worker's compensation insurance policy showing you as insured and
the joint and several liability of each insured of the Trust one
to the other arising out of the membership of the insureds in the
Trust.
Continental is a member of the CNA Insurance Group. The CNA
Insurance Group has a rating by the A.M. Best Company of "A"
(Excellent). Continental will have direct responsibility to you
for the payment of all claims and policy obligations under the
workers' compensation insurance coverage previously provided to
you by the Trust.
To confirm Continental's (i) assumption of the contractual
liability of the Trust for insurance obligations; and (ii)
assumption of and relief from the joint and several liability of
the insureds as set forth above, please sign below and return
this letter to the Trust in the enclosed prepaid, pre-addressed
envelope.
If you have any questions, please contact the undersigned at
(601) 352-7817.
DELTA AGRICULTURAL AND
INDUSTRIAL TRUST
Harry E. Vickery, Administrator
TO CONFIRM ASSUMPTION BY CONTINENTAL,
THE INSURED SHOULD SIGN BELOW:
ACCEPTED AND AGREED:
Name of Insured
Authorized Signature
Date: