AMENDMENT NO. 1 TO MPCI GENERAL AGENCY AGREEMENT
(hereinafter referred to as the "Amendment")
entered into by and between
FIREMAN'S FUND INSURANCE COMPANY
Novato, California
(hereinafter referred to as the "Company")
and
CROP GROWERS INSURANCE, INC.
Overland Park, Kansas
(hereinafter referred to as the "General Agent")
WHEREAS, Company and General Agent entered into a MPCI General Agency Agreement
on or about March 29, 1995 in which the General Agent agreed to act as the
Managing General Agent for the Company in the writing of federally reinsured
MultiPeril Crop Insurance ("MPCI") that was to be written through a federally
approved Standard Reinsurance Agreement (the "1996 SRA"), then between Plains
Insurance Company ("Plains"), an insurance affiliate of the General Agent, and
the Federal Crop Insurance Corporation ("FCIC") (such MPCI General Agency
Agreement shall be hereinafter referred to as the "1996 MPCI Agreement");
WHEREAS, on or about July 10, 1996 Company and General Agent entered into a new
MPCI General Agency Agreement that governed MPCI written to cover crops that
were planted during the 1997 Crop Year (July 1, 1996 to July 1, 1997) and
subsequent Crop Years (the "1997 MPCI Agreement");
WHEREAS, the 1997 MPCI Agreement expressly provides that the 1996 MPCI Agreement
shall continue in full force and effect and continue to apply to the MPCI
insurance insuring crops planted during the crop year from July 1, 1995 to July
1, 1996 (the "1996 Crop Year");
WHEREAS, the Company assumed the obligations of Plains under the 1996 SRA on or
about July 15, 1996;
WHEREAS, under the 1996 SRA the Company is responsible for the payment of
premium to the FCIC for MPCI written through the 1996 SRA, including all premium
declared for policies by the appropriate reporting date in the spring of 1996,
including premium written by all policy issuing companies listed in the 1996 SRA
Plan of Operation that is attached to and forms a part of the 1996 SRA
(hereinafter referred to singularly or collectively as the "Policy Issuing
Companies") regardless of whether such premium is collected or not;
WHEREAS, pursuant to federal regulations issued by the Department of Agriculture
payment of premiums for spring crops that are reinsured under the 1996 SRA are
due on November 29, 1996 (the "November Due Date"), December 31, 1996 (the
"December Due Date"), and February 28, 1997 (the "February Due Date"). The
insureds must pay such premiums by the first day of the month in which the Due
Date occurs (the "Insured Due Date"). If the insureds do not make payment by the
Insured Due Date, pursuant to federal regulations the insured may be charged
simple interest at the rate of 1.25% per month until payment is made;
WHEREAS, pursuant to the terms of the MPCI policies issued by the Policy Issuing
Companies to the insureds, if the insureds do not pay the premium by the
appropriate Insured Due Date, the insureds must pay simple interest on the
outstanding premium at the rate of 1.25% per month until payment is made (the
"Contract Interest");
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WHEREAS, the General Agent is responsible for the collection of all premium for
policies issued by the Company pursuant to this Agreement and for policies
issued by other Policy Issuing Companies pursuant to other agency agreements
between the General Agent and such Policy Issuing Companies;
WHEREAS, in prior years, the General Agent has advanced through bank borrowings
premium due from insureds and not yet collected by the applicable due date
pursuant to the policies to the FCIC on behalf of the Policy Issuing Companies
and the holder of the SRA;
WHEREAS, as a result of such premium advancement the General Agent concurrently
succeeded to the rights to collect such advanced premium due from the insureds
and charged the insureds the Contract Interest until such premium was paid by
the insured;
WHEREAS, the General Agent and the Company have agreed that the Company, as the
SRA holder and in its capacity as a party to the 1996 SRA that has the ultimate
premium responsibility for the MPCI that is written pursuant to the 1996 SRA,
will advance such premium to the FCIC on the applicable due date on behalf of
such insureds that have not yet paid such premium;
WHEREAS, the Company shall, as a result, become the party entitled to collect
such advanced premium due from the insureds and to collect the Contract Interest
due under the policies as provided herein until such premium is paid by the
insureds; and
WHEREAS, the amount to be advanced by the Company on behalf of insureds shall
not exceed fifty million dollars ($50,000,000.00) and is currently estimated to
be approximately twenty-nine million dollars ($29,000,000.00) on the November
Due Date, fifteen million dollars ($15,000,000.00) on the December Due Date and
five hundred thousand dollars ($500,000.00) on the February Due Date;
NOW THEREFORE, the Company and the General Agent hereby enter into this
Amendment in order to facilitate and document the terms and conditions of this
agreement.
Section 5.1 is hereby amended and restated to read in its entirety:
5.1 The General Agent shall xxxx, collect, receive and receipt for premiums
as they become due. All premiums for business produced under this Agreement
shall be handled by the General Agent in strict accordance with FCIC rules. The
General Agent, due to the Company's assumption of the obligations of Plains
under the 1996 SRA, is also collecting premium on behalf of other Policy Issuing
Companies pursuant to agency agreements between the General Agent and such
Policy Issuing Companies. The General Agent represents and warrants that it is
handling such business produced under those agency agreements in strict
accordance with FCIC rules.
Section 5.2 is hereby amended and restated to read in its entirety:
5.2 The General Agent is authorized to pay premiums on behalf of insureds.
If the General Agent pays premium on behalf of any insured, the premium
subsequently collected from the insured on whose behalf the General Agent has
paid premium shall belong to the General Agent and the Company shall have no
further interest therein. The General Agent is also authorized by the other
Policy Issuing Companies to advance premium on behalf of any insured under such
policies issued by such Policy Issuing Companies. The General Agent has
received similar acknowledgements and/or assignments of the right to advance
premium on behalf of the other Policy Issuing Companies, with the General Agent
therefore acceding to all rights
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in any of the subsequently paid premium. The General Agent further recognizes
and acknowledges that pursuant to Section 5.6 of this 1996 MPCI Agreement, all
such rights to such advanced premium shall be assigned to the Company.
Section 5.3 is hereby amended and restated to read in its entirely:
5.3 All premiums, including any Assigned Premiums as defined in Section 5.6
of this Amendment, received by the General Agent, either before or after
termination of this Agreement, and Contract Interest shall be held by the
General Agent in trust in a fiduciary capacity in a bank that is a member of the
Federal Reserve System and whose accounts are insured by the Federal Deposit
Insurance Corporation pursuant to Section 40-2,132 of the Kansas Insurance Code
(hereinafter referred to as the "Premium Trust Account"). Such Premium Trust
Account shall be maintained separately from any other premium trust account and
the General Agent shall deposit only premiums due to or from the Company, other
Policy Issuing Companies, and insureds and not commingle operating funds of the
General Agent with premiums maintained in the Premium Trust Account.
Section 5.4 is hereby amended and restated to read in its entirely:
5.4 Premiums held by the General Agent for and on behalf of the Company in
the Premium Trust Account may be invested by the General Agent in Authorized
Investments until paid to the Company or the FCIC. "Authorized Investments"
shall consist of (a) deposits in deposit accounts or certificates of deposit
with maturities not exceeding one (1) year held in or issued by banks or savings
and loan associations insured by the United States Government and approved by
the Company, or (b) United States government bonds and treasury certificates or
other obligations for which the full faith and credit of the United States are
pledged for payment of principal and interest maturities of not more than one
(1) year, but not contracts or options for the sale and purchase thereof, or
securities indexed thereto. It shall be the responsibility of the General Agent
to maintain sufficient liquidity in the Premium Trust Account to make timely
payment of all amounts due to the Company. The length of maturity of any
investment in the Premium Trust Account shall not excuse any late payment or
remittance. Any interest and/or dividends paid on such Authorized Investments
shall be for the benefit of and shall be the property of the General Agent,
except that such interest and/or dividends shall not be deemed to include the
Contract Interest.
Section 5 shall be amended to add the following Sections 5.6 through 5.10:
5.6 The General Agent is also authorized to pay premiums on behalf of
insureds by the other Policy Issuing Companies. If and when the General Agent
makes such payment of premiums on such other Policy Issuing Company's behalf,
the General Agent accedes to all rights in any such subsequently collected
premium. Pursuant to Section 5A, the Company is agreeing to advance the
payment of such premiums due under policies issued by the other Policy Issuing
Companies to the FCIC on the November, December and February Due Dates. The
Company is actually advancing such premiums due from insureds covered by the
1996 SRA. Such advance shall also hereby be on behalf of the General Agent
pursuant to its rights to advance premiums on behalf of the Policy Issuing
Companies consistent with the General Agent's agency agreements with such Policy
Issuing Companies. In exchange for the Company's agreement to advance such
premiums advanced by the General Agent, the General Agent hereby assigns to the
Company all of the General Agent's right, title and interest pursuant to its
agency agreements with the Policy Issuing Companies in any such premiums (the
"Assigned Premiums"). The General Agent hereby expressly grants a security
interest to the Company in the Assigned Premiums to the extent
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General Agent should be deemed for whatever reason to retain any interest in
such Assigned Premiums. The General Agent hereby grants the Company a power of
attorney to act as the General Agent's attorney-in-fact for the SOLE purpose of
executing any appropriate UCC-1 or other similar financing statement, and any
extensions or amendments thereto, as the Company deems necessary for the purpose
of perfecting the Company's security interest in such Assigned Premiums.
5.7 Pursuant to the terms of the 1996 SRA, the Company is responsible to the
FCIC for any premiums for policies reinsured under the 1996 SRA, regardless of
whether any such premium is actually collected or which Crop Year is covered.
The General Agent under this Agreement and pursuant to its other agency
agreements with the other Policy Issuing Companies has responsibility to both
report policies to be included under the 1996 SRA and to collect premium for
such policies. The General Agent hereby agrees that it shall be responsible to
the Company for all such premium for which the Company is responsible to pay to
the FCIC under the 1996 SRA, regardless of whether the General Agent is able to
collect such premium or not ("Earned Premium Responsibility"). This Earned
Premium Responsibility shall apply to premiums due on all policies which are
covered under the 1996 SRA, regardless of whether such policies are issued by
the Company or by the other Policy Issuing Companies or which Crop Year is
covered. All such premium shall be due to the Company no later than the Premium
Advance Due Date, as defined in Section 5A.7, below.
5.8 It is understood that all premiums, including Assigned Premiums, on MPCI
written under the 1996 SRA, which are paid to the General Agent, belong to the
Company, as provided herein. Additionally, all Contract Interest belongs to the
Company, until and unless assigned or reassigned to the General Agent.
Commissions and/or fees the Company pays to the General Agent are debts the
Company owes the General Agent. The privilege of deducting the General Agent's
commissions and/or fees from such premiums and/or Contract Interest due the
Company shall not be construed as a waiver by the Company of the Company's
exclusive ownership of all such premiums and Contract Interest due. Should any
dispute arise, all such premiums and Contract Interest shall be paid to the
Company, including any amounts in dispute, with full reservations of the Agent's
rights.
5.9 The General Agent shall establish and maintain internal controls and
record keeping mechanisms for the safekeeping and full accounting of all cash
receipts, cash disbursements, premium xxxxxxxx, collections and policyholder
records relating to policies or evidences of insurance issued by the Company or
reasonably required for the fulfillment of the General Agent's duties.
5.10 The General Agent and the Company shall settle and pay premiums,
commissions, fees and credits on a monthly basis, except as provided in Sections
5A.6 and 5A.7, below.
The 1996 MPCI Agreement is hereby amended to add the following Section 5A and
Section 5B:
SECTION 5A - PREMIUM ADVANCES
5A.1 The Company agrees to advance to the FCIC premiums due under MPCI
policies issued under the 1996 SRA ("Premium Advances"). Such Premium Advances
shall be made on behalf of insureds insured under such policies. The policies
for which Premium Advances will be made will be selected by the General Agent.
Included within such Premium Advances will be advances previously made for
April, May and July 1996 on behalf of insureds by the General Agent that have
not yet been repaid by the
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insureds (the "Refinanced Spring Advances"). The amount of the Refinanced
Spring Advances as of the November Due Date is one million five hundred thirty-
eight thousand six hundred thirty-seven dollars ($1,538,637.00). The Company's
obligation to make Premium Advances in the aggregate for all insureds shall not
exceed fifty million dollars ($50,000,000.00) at any time. It is anticipated
that the aggregate net Premium Advances to be made on the November Due Date
shall be approximately twenty-nine million dollars ($29,000,000.00), the net
Premium Advances to be made on the December Due Date shall be approximately
fifteen million dollars ($15,000,000.00) and the net Premium Advances to be made
on the February Due Date shall be approximately five hundred thousand dollars
($500,000.00). At no time shall the total outstanding aggregate net Premium
Advance total exceed fifty million dollars ($50,000,000.00).
5A.2 As a condition precedent to the Company's obligation to make such Premium
Advances the Company shall be permitted to perform an audit and review of the
General Agent's accounting and internal controls for processing of premium
xxxxxxxx, remittance processing and related accounting. Such audit and review
shall be of a scope and depth satisfactory to the Company in the Company's sole
discretion and the Company shall have the right to determine in the Company's
sole discretion that such controls and related accounting processes and
procedures are satisfactory to the Company.
5A.3 The General Agent shall supply the Company in form and detail
satisfactory to the Company in the Company's sole discretion, no later than
November 25, 1996, the amount of net Premium Advances to be made by the Company
on the November Due Date. Such information shall include, but not be limited to
the amount of total premiums to be paid, total premiums to be advanced, total
premiums collected on policies for which payments on the November Due Date are
to be made, and total loss credits that shall be applied against premiums for
which payments on the November Due Date are to be made. Similar information
regarding premiums due on the December and February Due Dates shall be supplied
to the Company by the General Agent no later than December 23, 1996 and February
21, 1997, respectively, with respect to net Premium Advances to be made by the
Company on the respective December and February Due Dates.
5A.4 No later than 1:00 p.m. P.S.T. on November 27, 1996, the General Agent
shall pay to the Company by wire transfer the total premiums collected for which
payments are to be made on the November Due Date ("Collected November
Premiums"). Such Collected November Premiums shall include both premiums
collected by the reporting cut-off date for that month established by the FCIC
for reporting the amount of such monthly collections (the "Monthly Reported
Collections") and all additional collected premiums collected between such
monthly cut-off date and date the General Agent transfers such funds to the
Company (the "Additional Collections"). On the November Due Date the Company
shall pay the FCIC by wire transfer the total premiums to be paid on the
November Due Date, less appropriate loss credits and other amounts due to or
from the FCIC pursuant to the terms of the 1996 SRA ("Net November Premiums").
To the extent the General Agent has not yet remitted the total premiums
collected for which payments are to be made on the December Due Date, the
General Agent shall pay to the Company by wire transfer such remaining
collections no later than 1:00 p.m. P.S.T. on December 30, 1996. The total of
all premiums collected for which payments are to be made on the December Due
Date shall constitute the "Collected December Premiums". Such Collected December
Premiums shall include both Monthly Reported Collections and Additional
Collections. On the December Due Date the Company shall pay the FCIC by wire
transfer the total premiums to be paid on the December Due Date, less
appropriate loss credits and other amounts
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due to or from the FCIC pursuant to the terms of the 1996 SRA ("Net December
Premiums").
To the extent the General Agent has not yet remitted the total premiums
collected for which payments are to be made on the February Due Date, the
General Agent shall pay to the Company by wire transfer such remaining collected
February premiums no later than 1:00 p.m. P.S.T. on February 27, 1997. The
total of all premiums collected for which payments are to be made on the
February Due Date shall constitute the "Collected February Premiums". Such
Collected February Premiums shall include both Monthly Reported Collections and
Additional Collections. To the extent necessary, on the February Due Date the
Company shall pay the FCIC by wire transfer the total premiums to be paid on the
February Due Date, less appropriate loss credits and other amounts
due to or from the FCIC pursuant to the terms of the 1996 SRA ("Net February
Premiums").
5A.5 Contract Interest shall be calculated by applying the simple interest
rate of 1.25% per month to all outstanding Premium Advances for the period of
time such Premium Advances are actually outstanding, without regard for the
actual interest paid by the insureds. November 29, 1996 shall be used for the
purpose of calculating the commencement of Contract Interest on the Refinanced
Spring Advances. The General Agent shall be responsible to the Company for any
and all such Contract Interest regardless of whether the General Agent is able
to collect such Contract Interest.
5A.6 Commencing December 9 and each subsequent Monday, or following business
day, if Monday is a holiday, the General Agent shall pay to the Company by wire
transfer an amount equal to all collections received from insureds for which
Premium Advances have previously been made ("Weekly Premium Collections"),
together with all Contract Interest (net of the Premium Advance Service Fee
described in Section 5A.8, below) ("Weekly Net Contract Interest") due from the
General Agent through the previous Friday. All such Weekly Premium Collections
shall be applied to reduce the outstanding amount of the aggregate Premium
Advance balance. Additionally, once a month, as received by the General Agent
from the FCIC, the General Agent shall pay to the Company by wire transfer the
total amount received from the FCIC for loss payments against premiums that have
previously been the subject of a Premium Advance ("Loss Payments"). Such Loss
Payments shall also be applied to reduce the outstanding amount of the aggregate
Premium Advance balance. Notwithstanding the foregoing, any payments made under
this section shall be applied first toward outstanding Contract Interest and
then toward outstanding Premium Advances.
5A.7 Notwithstanding anything else in the Agreement to the contrary, on March
31, 1997 (the "Premium Advance Due Date"), or on an earlier date at the sole
option of the General Agent, the General Agent shall pay to the Company the
total aggregate outstanding Premium Advance balance, together with all
outstanding Contract Interest. Once that payment is made and the Premium
Advances have been repaid to the Company, the Company shall be entitled to no
further Contract Interest and the General Agent shall be entitled to no further
Premium Advance Service Fee for Advanced Premiums paid by insureds after that
date. Further, upon full satisfaction of the outstanding Premium Advance
balance and all outstanding Contract Interest, the Company hereby reassigns all
Assigned Premiums to the General Agent, assigns all rights the Company has to
receive Contract Interest to the General Agent, and agrees to execute and file
termination statements with respect to its security interests in the Assigned
Premiums and Profit Sharing provided in sections 5.6 and 5A.9, hereof. Any
prepayment by the General Agent of all of its financial
6
obligations under this Agreement in advance of the Premium Advance Due Date
shall be without penalty.
5A.8 To compensate the General Agent for performing their duties to collect
the premiums that are the subject of the Premium Advances, the Company agrees
that the General Agent shall receive a fee equal to thirty-three and a third
percent (33 1/3%) of the total Contract Interest ("Premium Advance Service
Fee").
5A.9 The General Agent hereby grants to the Company a security interest in all
underwriting gain and/or profit sharing that would otherwise be due the General
Agent pursuant to section 10 of this 1996 MPCI Agreement, as well as any similar
underwriting gain and/or profit sharing that would otherwise be due the General
Agent pursuant to the General Agent's agreement with Continental Insurance
Company with respect to the 1996 Crop Year ("Profit Sharing"). The General
Agent hereby grants the Company a power of attorney to act as the General
Agent's attorney-in-fact for the SOLE purpose of executing any appropriate UCC-1
or other similar financing statement, and any extensions or amendments thereto,
as the Company deems necessary for the purpose of perfecting the Company's
security interest in such Profit Sharing.
SECTION 5B - FINANCIAL COVENANTS
5B.1 So long as any Premium Advances and Contract Interest remains unpaid and
outstanding the General Agent shall not without the Company's prior written
consent:
a. Create, incur, assume, or suffer to exist or permit any
subsidiary or affiliate (excluding the Company to the extent it should
be deemed an affiliate of the General Agent for any purpose) to
create, incur, assume, or suffer to exist, any debt, except:
(i) Debt of the General Agent under this Agreement;
(ii) Accounts payable to trade creditors for goods or services
incurred in the ordinary course of business, and paid within the
specified time, which are not delinquent or which are being contested
in good faith and by appropriate proceedings;
(iii) Debt for current taxes, assessments, governmental charges, or
levies, which are not delinquent or which are being contested in good
faith by appropriate proceedings;
(iv) Capitalized lease obligations not in excess of $100,000 in
the aggregate in any calendar year;
(v) Any other debt, singularly or in the aggregate, not in
excess of $100,000 in any one fiscal year of the General Agent; or
(vi) Any other debt existing on the date hereof (except as
otherwise disclosed in Crop Growers Corporation's '34 Act filings,
there is no debt in excess of $100,000 to any one party);
b. Make, assume or incur any obligations for capital expenditures if
by reason thereof the aggregate of all such expenditures payable by
the General Agent and all its
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subsidiaries during the then current or during any subsequent fiscal
year would exceed $500,000.00;
c. Pay any dividends and/or retire, redeem or purchase any stock of
the General Agent;
d. Make any advances or capital contributions to any subsidiary or
affiliate of the General Agent, except in the ordinary course of
business and consistent with past practices to the extent such
advances or contributions do not exceed $25,000 to total, and for
payroll paid by Crop Growers Employers Organization, Inc.
Section 14 is hereby amended and restated to read in its entirety:
SECTION 14 - RECORDS
14.1 The General Agent shall maintain separate records of business written by
the General Agent on the Company's behalf. The General Agent's records and its
expiration rights, ("Expiration Rights and Records") are the General Agent's
property. The General Agent has the right to use and control such Expiration
Rights and Records. The Company shall have access and the right to copy all
accounts and records related to the Company's business, including the right to
inspect and audit the General Agent's financial and accounting records for the
purpose of verifying compliance with this Agreement. All such records shall be
retained for the minimum time periods required by Kansas law, or for such longer
time periods if so required by the state law of a state having jurisdiction over
a particular insured.
14.2 The Company and the insurance commissioner of the Company's state of
domicile or any other insurance commissioner having jurisdiction over the
business covered by this Agreement shall have the right at any reasonable
time to examine and copy all accounts and records in the possession of the
General Agent referring to business effected hereunder.
14.3 The General Agent hereby grants the Company a security interest in the
General Agent's Expiration Rights and Records. The General Agent hereby grants
the Company a power of attorney to act as the General Agent's attorney-in-fact
for the SOLE purpose of executing any appropriate UCC-1 or other similar
financing statement, and any extensions or amendments thereto, as the Company
deems necessary for the purpose of perfecting the Company's security interest in
such Expiration Rights and Records, provided that such security interest shall
be subordinate to the security interest of any party providing financing on a
secured basis to Crop Growers Corporation, the General Agent, or their
respective subsidiaries, currently or in the future, such as Crop Growers
Corporation's current line of credit with First Interstate Bank of Montana.
Sections 17.4 through 17.6 are hereby amended and restated to read in their
entirely and the following Sections 17.7 through 17.10 added:
17.4 The Company may terminate this Agreement immediately without notice to the
General Agent, with respect to any and all states in which the General Agent is
authorized to act as the Company's managing general agent pursuant to this
Agreement, in the event that the General Agent loses its license or
authorization to engage in the insurance business as contemplated and required
by this Agreement, whether through revocation, suspension, nonrenewal or
otherwise if such license termination is due to any of the reasons stated in
Kansas Insurance Laws Section 40-242, or
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similar statute under another state's law. In any state in which the General
Agent's license is terminated, the General Agent's authority under this
Agreement shall cease immediately without notice until such license is restored.
17.5 In the event of fraud or intentional misappropriation of funds by the
General Agent, the Company may terminate this Agreement by written notice
effective immediately. This Agreement may be terminated immediately upon 30
days written notice by the Company to the General Agent in the event the General
Agent fails to pay premiums or meet other financial obligations to the Company
when due or otherwise violates the terms of this Agreement, which failure or
violation is not cured within such 30 day period, except that any failure to pay
when due any repayment of Premium Advances, or payment of Contract Interest,
Weekly Premium Collections or Loss Payments, or breach of the General Agent's
obligations under Section 5B must be cured within 2 business days.
17.6 The Company acknowledges that Crop Growers is a publicly owned company the
common stock of which is traded on a national securities exchange. In the event
that:
a. there shall be consummated any consolidation or merger of Crop
Growers pursuant to which the stockholders of Crop Growers immediately
prior to the merger or consolidation do not represent, immediately
after the merger or consolidation, the beneficial owners (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934 (the
"Exchange Act")) of 50% or more of the combined voting power of Crop
Growers (or the surviving entity's) then outstanding securities
ordinarily (and apart from rights occurring in special circumstances)
having the right to vote in the election of directors;
b. there shall be consummated any sale, lease, exchange or transfer
(in any single transaction or series of related transactions) of all
or substantially all of the assets or business of Crop Growers or any
of its material Subsidiaries (as defined below); or
c. any "person" (as such term is used in Sections 13(d)(3) and
14(d)(2) of the Exchange Act), other than (A) Crop Growers or a
Subsidiary thereof, or (B) any employee benefit plan sponsored by Crop
Growers or a Subsidiary thereof, shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of
securities of Crop Growers representing more than 50% of the combined
voting power of Crop Growers' then outstanding securities ordinarily
(and apart from rights accruing in special circumstances) having the
right to vote in the election of directors, as a result of a tender,
leveraged buyout or exchange offer, open market purchases, privately
negotiated purchases, other arrangements or understandings or
otherwise;
the General Agent shall give the Company notice of any such
transaction within ten (10) days after such transaction is consummated.
Following receipt of such notice, the Company may terminate this
Agreement upon thirty (30) days notice given no later than the 30th day after
receipt of such notice. For purposes of this Section, the term "Subsidiary"
shall mean (i) a corporation of which shares of stock having ordinary voting
power (other than stock having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of
such corporation are at the time owned,
9
directly or indirectly, through one or more intermediaries, by Crop Growers, or
(ii) in the case of unincorporated entities, any such entity with respect to
which Crop Growers has the power, directly or indirectly, to designate more than
50% of the individuals exercising functions similar to a board of directors.
17.7 This Agreement may be terminated immediately in the event the General
Agent becomes insolvent or makes any general assignment for the benefit of
creditors.
17.8 In the event of termination of this Agreement, should the General Agent be
in any way indebted to the Company at such time, for premium, Premium Advances,
Contract Interest, Weekly Premium Collections, Loss Payments or any other
obligations under this Agreement, such debt or debts shall immediately become
due and payable. The Company shall have the right to suspend the General
Agent's underwriting and/or claims settlement authority during the pendency or
any dispute regarding the cause for termination. Minor accounting discrepancies
shall not be considered grounds for termination.
17.9 In the event of termination of this Agreement, and provided the General
Agent (and/or the local agents appointed by the General Agent under authority of
this Agreement) has, in accordance with the terms of this Agreement, within 15
days of such termination, accounted for and paid to the Company all premiums and
other monies due and owing the Company, the records of the General Agent and
local agents, together with use and control of the Expiration Rights and
Records, shall remain the property of the General Agent and of the local agents,
as their interests may appear, and be left in their undisputed possession.
Notwithstanding the ownership and possession of such Expiration Rights and
Records by the General Agent, the Company shall have the undisputed right to
copy all records necessary to satisfy insurance department record keeping
requirements, including but not limited to all underwriting files, claims files,
billing information, etc. If there has not been such an accounting and payment
by the General Agent (and/or local agents appointed by the General Agent under
authority of this Agreement within) 15 days of termination of this Agreement,
the Company shall have the right to assume control of the General Agent's
Expiration Rights and Records and may:
a. keep all commissions payable on such expirations or their renewals
and apply such commissions against what the General Agent owes the
Company; and/or
b. sell such portion of the Expiration Rights and Records that the
Company reasonably believes is necessary to satisfy the General
Agent's obligations to the Company pursuant to this Agreement.
In the event that such retained commissions or sale proceeds are
insufficient to satisfy the General Agent's obligations to the Company
under this Agreement, the General Agent shall still be responsible for
such unpaid sums. In the event that such retained commissions or sale
proceeds are more than necessary to satisfy the General Agent's
obligations to the Company, the Company shall return such excess to
the General Agent.
Any sale of the Expiration Rights and Records must be made in a
commercially reasonable manner pursuant to the Uniform Commercial
Code. The Company shall have the right to appoint any buyer of such
Expiration Rights and Records as a Managing General Agent for such
business.
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To the extent that the General Agent has not satisfied its financial
obligations to the Company within any prescribed time period, including
any cure period, and the Agreement is terminated, the Company shall
notify the General Agent of the amount the Company reasonably believes
the General Agent owes to the Company. If the parties cannot agree
within 10 days of such notice as to the amount of premiums, amounts or
other obligations due ("Disputed Obligations"), the General Agent shall
deposit, in a trust account acceptable to the Company, an amount equal to
the Disputed Obligations claimed by the Company to be due until such time
as the dispute is resolved. To the extent that the Company subsequently
reasonably believes additional amounts may be due the Company by the
General Agent under this Agreement, The Company shall give notice of such
additional amounts. If the parties cannot agree within 10 days of such
notice as to the amount of such additional amounts. If the parties
cannot agree within 10 days of such notice as to the amount of such
additional owed Disputed Obligations, the General Agent shall deposit
such additional amount in the trust account. Upon deposit by the General
Agent in the trust account of the amounts of such Disputed Obligations,
the Company shall suspend any efforts to pursue the sale of the
Expiration Rights and Records or capture of commissions. Nothing in this
Section shall preclude the Company from proceeding with the mechanics of
a public or private sale of the Expiration Rights and Records, including
giving notice of the time, place and manner of any proposed public or
private sale, except that, if the provisions regarding the Disputed
Obligations above are not yet concluded, no sale may actually occur.
17.10 The Company shall also have all rights of a secured creditor under the
Uniform Commercial Code with respect to all other collateral or security pledged
by the General Agent to the Company under this 1996 MPCI Agreement.
The Agreement is hereby amended to add the following Section 19, Section 20 and
Section 21:
SECTION 19 - SUSPENSION OR DEBARMENT UNDER AN SRA
19.1 The General Agent acknowledges that if the FCIC should suspend or debar
the General Agent under 7 C.F.R. Section 3017, which suspension or debarment
prevents the General Agent from performing its obligations under this Agreement,
the Company, in accordance with the terms and conditions of the SRA, will remain
ultimately liable to provide services to policyholders then being served under
the SRA. As such, and recognizing that under the terms of this Agreement the
General Agent performs, on behalf of the Company, substantially all such
services to policyholders, the General Agent agrees that in the event of a
suspension or debarment as contemplated under this Section 19.1, the General
Agent shall take all such actions as shall be reasonably requested by the
Company to ensure that service to policyholders continues without
interruption and in accordance with MPCI Program Requirements (as hereinafter
defined). In addition to suspension or debarment, other actions might be
taken by either the Federal or a state government that could similarly
substantially hinder, interfere or prevent the General Agent from performing,
on the Company's behalf, substantially all such services to policyholders
then being served under the SRA. In such event, to the extent necessary, the
General Agent shall take all such actions as shall be reasonably requested by
the Company to ensure that service to
11
policyholders continues without interruption and in accordance with MPCI
Program Requirements.
19.2 In order to ensure the continuation of service to policyholders in the
event of an event contemplated by Section 19.1, the General Agent and the
Company agree, subject to any approval by the FCIC, as the case may be, that
they will (during the 90 days following execution of this Agreement) discuss and
agree upon plans to provide such continuation of services. If the General Agent
and the Company are unable to agree to any such plans, in the event of a
suspension or debarment as described in Section 19.1 hereof, they shall agree to
the following:
a. The General Agent shall (i) sell its MPCI Business (as defined
below) to a third party (which third party may include the Company and
shall be acceptable to the FCIC and the Company, which acceptance by
the Company shall not be unreasonably withheld) or (ii) Crop Growers
or the General Agent shall merge, consolidate, or sell, lease,
exchange or transfer all or substantially all the assets or business
of Crop Growers or the General Agent, including the MPCI Business, to
a third party (which third party may include the Company and shall be
acceptable to the FCIC); provided, however, that until the earlier of
(A) the sale under this Section 19(a) or (B) the General Agent becomes
obligated to proceed under Section 19.2(b) below (the "Transition
Period"), the General Agent shall make available on a non-exclusive
basis the assets described in (i) - (ii) and the General Agent shall
make available to the Company on a non-exclusive basis and on
commercially reasonable terms the employees, subagents and local
agents described in (iii) and (iv) of paragraph (b) below, in all
cases only to the extent reasonably necessary for the Company to
continue servicing, during the Transition Period, policyholders then
being serviced under the SRA; or
b. If the General Agent shall not complete a transaction contemplated
by Section 19.2(a) within 90 days of any such suspension or debarment,
or such shorter period of time as may be reasonably necessary for the
Company to meet the Company's obligations under the SRA in accordance
with MPCI Program Requirements, then:
(i) the General Agent would supply the Company with copies of
all records necessary for the Company to meet all of the
Company's obligations under the SRA and any policy of insurance
issued pursuant to this Agreement (the "Company Obligations");
provided, however, that supplying such copies shall not in any
way affect the use and ownership of the Expiration Rights and
Records as otherwise set forth in this Agreement;
(ii) the General Agent would make available on a non-exclusive
basis, either by lease, license, management agreement, purchase
or other commercially reasonable method, all computers (including
hardware and software), computer records, and other data
processing equipment used by the General Agent to process
information used by the Company, or on the Company's behalf, that
is reasonably necessary for the Company to meet the Company
Obligations (the "Computer Equipment"),
(iii) the Company shall have the right, in its discretion, to
solicit for employment and/or employ any
12
current or future employee of the General Agent or its affiliates
as may be reasonably necessary for the Company to meet the
Company obligations;
(iv) the Company and the General Agent each shall have the right
to continue to use any and all subagents or local agents who have
placed business with the Company pursuant to this Agreement. The
General Agent shall cooperate with the Company to the extent
necessary to accomplish this result by executing any and all
agreements necessary to transfer to the Company any requisite
rights under any then existing agreements;
(v) as a part of implementing items (i) - (iv) above, the
parties agree that the Expiration Rights and Records, Computer
Equipment, the right to hire employees (as provided in (iii)
above), use of sub-agents or local agents (as provided in (iv)
above) and such other related assets (together defined as the
"MPCI Business") shall be purchased by the Company. In such
case, the Company and the General Agent shall in good faith
attempt to agree on the appropriate purchase price to be paid by
the Company to the General Agent for the MPCI Business. In
valuing the MPCI Business, due consideration shall be given to
its value as a going concern, as appropriate. In the event that
the Company and the General Agent cannot reach agreement on a
purchase price, they shall seek an independent valuation of the
MPCI Business from a mutually agreed upon investment banking
firm, again giving due consideration to its value as a going
concern, as appropriate. In the event that the parties do not
agree upon an investment banking firm to value the MPCI Business
within 110 days of any such suspension or debarment, or if the
parties do not agree upon a purchase price within 30 days after
delivery to them of a valuation by the investment banking firm
chosen by them, the issue of such purchase price shall be
submitted to binding arbitration pursuant to Section 16 of this
Agreement (provided that the arbiters shall be representatives of
investment banking firms and not insurance industry persons).
Notwithstanding any disagreements over the amount of the purchase
price, if the MPCI Business is to be sold to the Company, the
General Agent shall immediately transfer the assets constituting
the MPCI Business to the Company. Such transfer of the MPCI
Business shall not await the determination or payment of the
purchase price.
SECTION 20 - COMPLIANCE
20.1 The Company shall oversee compliance by the General Agent with the MPCI
Program Requirements, the laws and regulations of the United States and the laws
and regulations of the state in which the Company and General Agent are
conducting business under this contract. For purposes of this Agreement, the
term "MPCI Program Requirements" means all requirements of the SRA and FCIC
rules, laws, regulations, bulletins, directives, instructions, court and agency
rulings, and other written requirements with respect to the sale and
administration of MPCI policies issued by the FCIC applicable to the General
Agent's performance of its obligations under this Agreement.
13
20.2 The General Agent shall cooperate with the Company in the review of the
General Agent's operations which are designed to assure policyholders are
properly serviced, that monies are distributed in accordance with the MPCI
Program Requirements, and FCIC policies and procedures are being followed.
20.3 The General Agent acknowledges that, between the General Agent on one hand
and the Company and other insurers writing MPCI under the SRA on the other hand,
the General Agent is responsible for compliance with the MPCI Program
Requirements. The General Agent shall, in all cases and at all times, observe
and obey the MPCI Program Requirements, and shall not bind the Company or any
other policy writing company designated in the SRA in contravention of the MPCI
Program Requirements, this Agreement, or the Company's written instructions
consistent with the terms hereof. In the event of a conflict between the
requirements of this Agreement and the MPCI Program Requirements, the MPCI
Program Requirements shall control and take precedence and the Company and the
General Agent agree to reform this Agreement to eliminate such conflict, and
shall negotiate in good faith any equitable adjustment to the terms hereof that
is necessary as a result of such conflict.
a. The General Agent has developed a plan to monitor the
quality of service provided by the sales, underwriting, and
claims processing functions of the General Agent's MPCI
business operations. The General Agent shall provide the
Company with a copy of the schedule of the activities under
the internal monitoring plan, which shall include, but not
be limited to, the dates, locations and types of review to
be conducted. The General Agent agrees to provide the
Company with a copy of any changes that are adopted to the
schedule within the (10) business days of the schedule
change.
b. the General Agent shall promptly provide the Company
with a copy of each report generated from the review and a
copy of any correction plan to be adopted to remedy any
problems discovered by the review.
20.4 The Company and the General Agent shall form a joint task force
(hereinafter referred to as the "Compliance Review Group") to identify and
analyze compliance issues and to recommend actions or procedures to improve the
MPCI compliance process by the Company and the General Agent. The Compliance
Review Group shall identify not less than three nor more than six quality of
service or compliance issues to be the subject of the Compliance Review Group's
monitoring activities during each six month period. The Company and the General
Agent shall consider in good faith the implementation of any recommendations of
the Compliance Review Group.
20.5 If the Company finds that the General Agent has not complied with the
provisions of Section 20.2 and 20.3 above, and the General Agent has not taken
appropriate steps to correct the non-compliance, the Company may, at its option,
require, in writing, that the General Agent take corrective action within 45
days of the date of such finding. The notice shall describe each contract
violation or occurrence of non-compliance. The General Agent will provide the
Company within ten days of such a notice with a correction action plan and, on
or before the 45th day following such notice, the General Agent will provide the
Company with a description of the correction action taken to address the non-
compliance
14
or reported violation and provided the Company with the opportunity to verify
the correction action taken.
SECTION 21 - COUNTERPARTS
21.1 This Amendment may be signed in any number of counterparts and each such
counterpart shall be deemed an original instrument, but all such executed
counterparts together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be executed
by their duly authorized representatives at:
Novato, California, this 27th day of November, 1996.
FIREMAN'S FUND INSURANCE COMPANY
/s/ Xxxx X. Xxxxxxxx
---------------------------------
By: Xxxx X. Xxxxxxxx
Title: Vice President
Overland Park, Kansas, this 27th day of November, 1996.
CROP GROWERS INSURANCE, INC.
/s/ Xxxxx X. Xxxx
---------------------------------
By: Xxxxx X. Xxxx
------------------------------
Title: Chief Financial Officer
---------------------------
15
