EX-10.1 2 0002.txt QUOTA SHARE REINSURANCE AGREEMENT Exhibit 10.1 Execution Copy QUOTA SHARE REINSURANCE AGREEMENT (hereinafter referred to as the "Agreement") between GIBRALTAR CASUALTY COMPANY, a Delaware Corporation (hereinafter referred to as the "Company") and PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, an Indiana Corporation (hereinafter referred to as the "Reinsurer") (Both the Company and the Reinsurer collectively are referred to as the "Parties" and individually as "Party") WHEREAS, The Prudential Insurance Company of America ("Prudential") is the ultimate parent of the Reinsurer; WHEREAS Prudential and Everest Reinsurance Holdings, Inc., a Delaware corporation ("Holdings"), have executed a Stock Purchase Agreement dated as of February 24, 2000 ("Sale Agreement") wherein Holdings will purchase from Prudential all issued and outstanding shares of the Company, a wholly owned subsidiary of Prudential, effective as of the "Closing Date" set forth in the Sale Agreement. WHEREAS, Holdings is the parent of Everest Reinsurance Company, formerly known as Prudential Reinsurance Company ("Everest Re"). WHEREAS, the Company has, and in the future may have, Uncollectible Reinsurance Recoverables, as defined herein, with regard to business reinsured by or through the Management Underwriting Facility ("MUF"), as defined in the Sale Agreement. WHEREAS, the Company desires to procure reinsurance coverage for its Uncollectible Reinsurance Recoverables. NOW, THEREFORE, in consideration of mutual covenants, representations, warranties, and agreements contained herein and in the Sale Agreement, the Parties agree as follows: ARTICLE I - CLASSES OF BUSINESS COVERED A. By this Agreement and subject to the terms and conditions set forth below, the Reinsurer agrees to indemnify the Company for the Company's Uncollectible Reinsurance Recoverables, as defined herein, with regard to business reinsured by or through MUF respecting Direct Excess Business and Gibraltar-Sourced Business, as defined herein. B. "Uncollectible Reinsurance Recoverables", with respect to Reinsurance Coverage, is defined as including (i) Uncollected Reinsurance and (ii) Settlement Concessions. C. "Reinsurance Coverage" is defined as any amount of paid and unpaid losses and loss adjustment expenses ceded by Everest Re to MUF reinsurers with respect to Direct Excess Business or Gibraltar-Sourced Business, whether such amounts were ceded prior to or during the term of this Agreement. D. "Uncollected Reinsurance" is defined as Reinsurance Coverage for paid loss and loss adjustment cessions relating to Direct Excess Business, with respect to each company on Schedule A hereto, that is unpaid by the reinsurer after one-hundred-and-eighty (180) days from the date that such paid loss and loss adjustment cessions were due to be paid by the reinsurer. E. "Settlement Concessions" is defined as the difference, with respect to each company on Schedule A hereto, between the Reinsurance Coverage for Direct Excess Business or Gibraltar-Sourced Business reinsured by MUF and ceded to such company and the amount received from such company. F. "Direct Excess Business" is defined as policies, contracts, and binders of insurance or reinsurance ("Policies") that were issued by Everest Re prior to January 1, 1986. G. "Gibraltar-Sourced Business" is defined as Policies that were issued by the Company prior to January 1, 1986. H. Although Everest Re rather than the Company has the direct ceding relationship with MUF, solely for purposes of this Agreement and only up to the amounts scheduled in Schedule A hereto, the Parties hereby deem any Uncollectible Reinsurance Recoverables to belong to the Company and not to Everest Re. ARTICLE II - COMMENCEMENT AND TERMINATION A. This Agreement shall become effective on the Closing Date. This Agreement will terminate, with respect to the Reinsurer's Per-Company Sub-Limit of Liability under Article V, on the earlier of (i) two years following the Reinsurer's payment of the sub-limit or (ii) the tenth anniversary of Closing Date. This Agreement shall terminate, with respect to the Reinsurer's Aggregate Limit of Liability under Article V, on the earlier of (i) two years following the Reinsurer's payment of the limit or (ii) the tenth anniversary of the Closing Date. B. Neither Party may terminate this Agreement. ARTICLE III - TERRITORY The territorial scope of this Agreement shall be identical to that of the Policies. ARTICLE IV - CONSIDERATION The consideration for this reinsurance coverage is deemed paid as of the Closing Date and, with respect to the Reinsurer, includes, among other things, certain operational and other assistance (i) previously provided to the Reinsurer by Prudential, which is deemed paid as of the Closing Date, and (ii) to be provided to the Reinsurer in connection with this Agreement by Prudential, including pursuant to the Keepwell Agreement between Prudential and the Reinsurer of even date herewith. No further consideration shall be due to the Reinsurer. ARTICLE V - SCHEDULE OF UNCOLLECTIBLE REINSURANCE RECOVERABLES AND REINSURER'S LIMIT OF LIABILITY Pursuant to the Sale Agreement, on or before the first Business Day following the date on which all of the conditions set forth in Articles IX, X, and XI of the Sale Agreement have been satisfied or waived, Holdings will cause Everest Re to provide to the Reinsurer a schedule setting forth all expected Uncollectible Reinsurance Recoverables ("Schedule A"), which shall be incorporated herein by reference. Schedule A shall identify, by reinsurer name, (1) the expected amounts of Uncollected Reinsurance attributable to each reinsurer with respect to Direct Excess Business and (2) the expected amounts of Settlement Concessions with respect to Direct Excess Business and Gibraltar-Sourced Business. If the Company identifies a given reinsurer on Schedule A with respect to both Uncollected Reinsurance and for Settlement Concessions, then the amount scheduled for Uncollected Reinsurance shall represent only paid loss and loss adjustment expense amounts and the amount scheduled for Settlement Concessions shall include only unpaid loss and loss adjustment expense amounts. The Reinsurer shall pay to the Company one hundred percent (100.0%) of up to the scheduled amount of the Company's Uncollectible Reinsurance Recoverables with respect to each company listed on Schedule A ("Per Company Sub-Limit of Liability"), provided that the Reinsurer's total liability under this Agreement shall in no event be greater than $8,500,000 ("Aggregate Limit of Liability"). ARTICLE VI - PAYMENT OF ADVANCES BY REINSURER AND REFUNDS BY COMPANY Subject to the limits set forth in Article V, pursuant to Article IX the Reinsurer shall make payments ("Advances") to the Company in the amount of the Uncollected Reinsurance and Settlement Concessions shown on the Company's statements. If after receiving an Advance from the Reinsurer with respect to an Uncollected Reinsurance amount, the Company actually collects all or a portion of the amount due from the reinsurer identified on Schedule A, then the Company shall pay to the Reinsurer a sum equal to the amount so collected ("Refund"), up to the amount of the corresponding Advance paid by the Reinsurer. Refunds shall not bear interest except as set forth in Article IX (G), and in no event shall the Reinsurer be entitled to a Refund in an amount greater than the corresponding Advance. In the event that a Refund is made to the Reinsurer, the Per Company Sub-Limit of Liability and the Aggregate Limit of Liability shall each be replenished by the amount of such Refund. No Refunds shall be due for Advances paid by the Reinsurer with respect to Settlement Concessions. ARTICLE VII - OTHER REINSURANCE On or after the Closing Date, the Company shall be permitted to obtain other reinsurance, recoveries under which shall inure solely to the benefit of the Company, and all recoveries under such other reinsurance shall be entirely disregarded in applying all of the provisions of this Agreement. ARTICLE VIII - ORIGINAL CONDITIONS A. The Reinsurer shall follow the fortunes of the Company with respect to settlements of any Reinsurance Coverage and with respect to Uncollectible Reinsurance Recoverables. B. The reinsurance coverage provided under this Agreement shall be subject to all interpretations, modifications, waivers, and alterations of the Policies and Reinsurance Coverage. C. Nothing herein shall in any manner create any obligations or establish any rights against the Reinsurer in favor of any third party or any person not a Party to this Agreement. ARTICLE IX - REPORTS AND REMITTANCES A. The first statement of account shall be due to the Reinsurer from the Company on the anniversary of the Closing Date. The first statement only shall include a charge for interest on any Uncollectible Reinsurance Recoverables due from the Reinsurer as of the statement date. Such interest charge shall be equal to the rate of interest announced by Citibank, N.A. as its prime or base rate as of the statement date, calculated on the basis of the actual number of days elapsed since the Uncollectible Reinsurance Recoverables accrued or the Closing Date, whichever is less, divided by three-hundred-and-sixty-five (365) days. Such interest charge shall be included in the Per Company Sub-Limit of Liability set forth on Schedule A. B. Thereafter, the Company shall submit quarterly statements of account ("quarterly reports") within forty-five (45) days after the end of each calendar quarter. C. Such quarterly reports shall be sent by both facsimile transmission and United States Postal Service or any other delivery service used by the Company. D. Such quarterly reports shall include information showing, as applicable with respect to each company listed on Schedule A, Uncollected Reinsurance, Settlement Concessions, Advances received, Advances due, Refunds due, and unpaid amounts outstanding. E. Remittances shall be on a "Net Basis," defined as amounts owed between the Parties under this Agreement. F. Remittances, whether due to the Company from the Reinsurer or to the Reinsurer from the Company, shall be due within forty-five (45) days from the date of receipt of the facsimile transmission of each quarterly report. G. Failure by the Reinsurer or the Company to pay amounts owed when due under this Agreement shall result in imposition of an interest penalty equal to the rate of interest announced by Citibank, N.A. as its prime or base rate as of the due date of any remittance, calculated on the basis of the actual number of days elapsed past the due date of any remittance divided by three-hundred-and-sixty-five (365) days and payment of other losses, costs, and expenses accrued or incurred by the Company or Reinsurer as a result of the other Party's late payment. ARTICLE X - OFFSET The Company and the Reinsurer shall have the right to offset any balance or amounts due from one party to the other under this Agreement. ARTICLE XI - ACCESS TO RECORDS A. The Company shall place at the disposal of the Reinsurer at all reasonable times, and the Reinsurer will have the right to inspect, all books, records, and papers of the Company in connection with any reinsurance coverage hereunder or any claims in connection herewith. B. All records reviewed by the Reinsurer are deemed proprietary and confidential property of the Company. Further, unless pursuant to the express, written permission of the Company, the Reinsurer shall not disclose the contents of such information to any other person, persons, entity, or entities; provided, that the Reinsurer may disclose such information or portions thereof in connection with any arbitration hereunder or any legal or regulatory process, or to its directors, officers and employees and the directors, officers and employees of its affiliates and to its agents, representatives, attorneys, accountants, auditors, reinsurers (collectively, "the Reinsurer's Representatives"), in each case, who have a legitimate need to know such information (which would include, but not be limited to the right to dispute and/or assess in furtherance of a dispute) and who are informed of and agree to be bound by the confidentiality terms of this Agreement. The Reinsurer shall indemnify and hold harmless the Company for all damages resulting from any unauthorized disclosure by the Reinsurer or the Reinsurer's Representatives of records obtained pursuant to this Article. Nothing contained in this Agreement shall be construed to prevent the Company from applying to a court of competent jurisdiction for equitable relief including injunction and specific performance as a remedy if the Reinsurer or any of the Reinsurer's Representatives breach or threaten to breach any of the provisions of this Article. Without prejudice to the rights and remedies otherwise available at law or equity to the Company, it is understood and agreed that the Company would be irreparably injured by a breach of this Article, that money damages would not be a sufficient remedy for any actual or threatened breach of this Article by the Reinsurer or any of the Reinsurer's Representatives and that the Company shall (without proof of actual damages) be entitled to equitable relief. In the event of litigation relating to this Article, if a court of competent jurisdiction determines that the Reinsurer or any of the Reinsurer's Representatives have breached this Article, then the Reinsurer shall be liable and pay to the Company the reasonable legal fees incurred by the Company in connection with the subject litigation, including any appeal therefrom. ARTICLE XII - ERRORS AND OMISSIONS Inadvertent delays, errors or omissions in connection with this Agreement or any transaction hereunder shall not relieve either Party of 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 XIII - SECURITY A. If the Company is or becomes unable to take credit in any financial statement filed with its domiciliary insurance regulator or with insurance regulators in New Jersey, California or any other state in which it currently is approved as a surplus lines insurer (or any successors to said regulators) for the reinsurance coverage provided hereunder, or if Prudential's Financial Strength Rating published by A.M. Best becomes less than "A-," the Reinsurer agrees to fund within thirty (30) days from receipt of notice from the Company that funding is required its share of Uncollectible Reinsurance Recoverables (and to replenish such funding from time to time as necessary) by: 1. Clean, irrevocable and nconditional letters of credit issued and confirmed, if confirmation is required by the insurance regulatory authorities involved, by a qualified United States financial institution acceptable to said insurance regulatory authorities; 2. cash; and/or 3. a Trust in compliance with the requirements of and acceptable to said insurance regulatory authorities. B. With regard to funding in whole or in part by letters of credit, it is agreed that each letter of credit will be in a form that would be acceptable to the Company's domiciliary insurance regulatory authority, will be issued for a term of at least one year and will include an "evergreen clause," that automatically extends the term for at least one additional year at each expiration date unless written notice of non-renewal is given to the Company not less than 30 days prior to said expiration date. The Company and the Reinsurer further agree that said letters of credit may be drawn upon by the Company or its successors in interest at any time, without diminution because of the insolvency of the Company or the Reinsurer, but only for one or more of the following purposes: 1. To reimburse itself for the Reinsurer's share of Uncollectible Reinsurance Recoverables, unless paid in cash by the Reinsurer; 2. To reimburse itself for the Reinsurer's share of any other amounts claimed to be due hereunder, unless paid in cash by the Reinsurer; 3. To fund a cash account in an amount equal to the Reinsurer's share of Uncollectible Reinsurance Recoverables funded by means of a letter of credit that is under non-renewal notice, if said letter of credit has not been renewed or replaced by the Reinsurer 10 days prior to its expiration date; 4. To refund to the Reinsurer any sum in excess of the actual amount required to fund the Reinsurer's share of Uncollectible Reinsurance Recoverables and other amounts claimed to be due hereunder, if so requested by the Reinsurer. C. In the event the amount drawn by the Company on any letter of credit is in excess of the actual amount required for B (1), B (3) or B (4), or in the case of B (2), the actual amount determined to be due, the Company shall promptly return to the Reinsurer the excess amount so drawn. D. In the event of funding through a Trust: 1. The Reinsurer shall establish a Trust Account for the benefit of the Company to fund the amounts receivable under the Agreement in a qualified United States financial institution reasonably acceptable to the Company and to said insurance regulatory authorities. 2. The assets deposited into the Trust Account shall be valued according to their current fair market value and shall consist only of cash (United States legal tender), certificates of deposit (issued by a United States bank and payable in United States legal tender) and investments of the type permitted by and acceptable to said insurance regulatory authorities or any combination of the above, provided that such investments are issued by an institution that is not the parent, subsidiary or affiliate of either the Reinsurer or the Company; 3. The Reinsurer, prior to depositing assets with the trustee, shall execute assignments, endorsements in blank, or transfer legal title to the trustee of a ll shares, obligations or any other assets requiring assignments, in order that the Company, or the trustee upon the Company's direction, may whenever necessary negotiate any such assets without consent or signature from the Reinsurer or any other entity; 4. All settlements of account between the Reinsurer and the Company shall be in cash or its equivalent; 5. The assets in the trust account may be withdrawn by the Company at any time, notwithstanding any other provisions in this Agreement, and shall be utilized by the Company or any successor by operation of law, including without limitation any liquidator, rehabilitator, receiver or conservator of the Company, for the purposes set forth in paragraphs B(1) -B(4) above. ARTICLE XIV - INSOLVENCY In the event of the insolvency of the Company, the reinsurance coverage hereunder shall be payable directly to the Company or to its domiciliary liquidator, receiver, conservator or statutory successor on the basis of the amount of claim allowed in the insolvency proceeding without diminution by reason of the inability of the Company to pay all or any part of the 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 covered hereunder 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 XV - ARBITRATION A. Except with respect to disputes arising solely out of or solely in connection with Article XI above (Access to Records), 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 Agreement, including its formation and validity, it is hereby mutually agreed that such dispute or difference of opinion shall be submitted to arbitration. B. Except as provided in subsections A. and D. of this Article or with respect to judicial proceedings instituted in aid of arbitration, this Article shall constitute a waiver of the Parties' rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another court as might otherwise be permitted by the laws of the United States or of any State or other jurisdiction in the United States. C. 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 United States domiciled insurance or reinsurance companies. 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 30 days following their appointment, each Arbiter shall nominate three candidates within 10 days thereafter, two of whom the other shall decline, and the decision shall be made by drawing lots. D. The Arbiters and the Umpire ("the Arbitration Panel") shall consider this Agreement 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 majority decision of the Arbitration Panel shall be final and binding on both Parties. Judgment upon the final decision of the Arbitration Panel may be entered in any court of competent jurisdiction. E. Except as provided in sub-section G. of this Article, 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. F. Any arbitration pursuant to this Article shall be conducted in New York, New York unless otherwise agreed by the parties; provided, however, that the Arbitration Panel may choose to take evidence and/or convene a hearing in a place other than New York for the convenience of the parties, the witnesses or the Arbitration Panel. G. The Arbitration Panel shall have the power to award costs, expenses, and interest to the prevailing Party in an arbitration. ARTICLE XVI - SERVICE OF SUIT A. It is agreed that in the event of the failure of the Reinsurer to pay any amount claimed to be due hereunder or to otherwise perform its obligations hereunder, the Reinsurer will, at the request of the Company, submit to the jurisdiction of any court of competent jurisdiction within the State of New Jersey or such other jurisdiction within the United States as the Company can select as a forum, and will comply with all requirements necessary to give such court jurisdiction and all matters arising hereunder shall be determined in accordance with the law and practice of such court. B. Service of process in such suit may be made on the Reinsurer by serving the Commissioner of Insurance of the State of New Jersey, who shall forward such process to the Reinsurer in accordance with Article XXI or at such other address as the Reinsurer shall advise. In any suit instituted, the Reinsurer will abide by the final decision of such court. C. Further, pursuant to any statute of any state, territory, or district of the United States of America which makes provisions therefore, the Reinsurer herein hereby designates the superintendent, commissioner or director of insurance or other officer specified for that purpose in the statute, or his successor or successors in office, as its true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Company or any beneficiary hereunder arising out of this Agreement of reinsurance and hereby designates the above-named person to whom the said office is authorized to mail such process or a true copy thereof. D. This Article is not meant to supersede Article XV of this Agreement or override the obligation of the parties to arbitrate their disputes in accordance with Article XV. ARTICLE XVII - ENTIRE AGREEMENT This Agreement, the Sale Agreement and the Guaranty, and any exhibits to such agreements, collectively constitute the entire agreement between the Parties regarding the subject matter hereof and supercede all prior agreements and understandings, both written and oral and do not confer any rights or remedies to any other party or any other person. ARTICLE XVIII - AMENDMENTS AND ALTERATIONS This Agreement shall not be changed, supplemented, modified, or amended except by an endorsement/addendum signed by the Parties and attached hereto. ARTICLE XIX - NO WAIVER No forbearance to enforce any provision or right hereunder shall be deemed a waiver thereof, and no waiver of any breach of any term or covenant herein shall be construed as a waiver of any other breach of the same, or any other term or covenant herein. ARTICLE XX - CONSTRUCTION This Agreement is the result of arms-length negotiations between the Parties and has been prepared jointly by the Parties. In applying and interpreting the provisions of this Agreement, there shall be no presumption that either the Company or the Reinsurer prepared this Agreement, or that this Agreement shall be construed in favor of or against either the Company or the Reinsurer. ARTICLE XXI - NOTICES Any notice or other communication required or permitted hereunder shall be in writing and shall be delivered personally, telegraphed, telexed, sent by facsimile transmission, or sent by certified, registered or express mail, postage prepaid, to: If to the Reinsurer, to: Richard Green, Vice President Prudential Property and Casualty Insurance Company 23 Main St., 4th Floor Holmdel, NJ 07032 Phone: 732-946-5082 Fax: 732-946-5029 with a copy to: Doreen Faga President, Gibraltar Operations The Prudential Insurance Company of America Eisenhower Corporate Center, Building 3 290 West Mt. Pleasant Avenue Livingston, NJ 07039 Phone: 973-548-5980 Fax: 973-548-5950 If to the Company, to: Janet J. Burak Senior Vice President and General Counsel Everest Reinsurance Holdings 477 Martinsville Road P.O. Box 830 Liberty Corner, NJ 07938 Phone: 908-604-3170 Fax: 908-604-3450 or in each case to such other address as a party may designate for itself by like notice to the other party. ARTICLE XXII - GOVERNING LAW This Agreement shall be governed by and construed in accordance with the laws of the State of New York. IN WITNESS WHEREOF, the Company, by its duly authorized representative, has executed this Agreement as of the date undermentioned at: Livingston, New Jersey, this 19th day of September 2000. /S/ DOREEN FAGA --------------------------------- Doreen Faga President, Gibraltar Casualty Co. IN WITNESS WHEREOF, the Reinsurer, by its duly authorized representative, has executed this Agreement as of the date undermentioned at: Holmdel, New Jersey, this 19th day of September 2000. /S/ RICHARD M. GREEN --------------------------------- Richard M. Green