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EXHIBIT 10.51
MIIX INSURANCE COMPANY
COMBINED QUOTA SHARE AND AGGREGATE REINSURANCE
TREATY NO. 901/LK9905943
EFFECTIVE NOVEMBER 1, 1999
ARTICLE SUMMARY PAGE
1 Business Covered 2
2 Commencement And Termination 3
3 Territory And Inuring Reinsurance 3
4 Exclusions 3
5 Coverages And Aggregate Limits 4
6 Definitions 5
7 Net Retained Liability 7
8 Section A Advance And Actual Consideration, 7
Section B Actual Consideration, Additional Coverage Consideration
And Ceding Commission, And Reinsurers' Expense Charge
9 Offset And Security 11
10 Reports And Loss Settlements 11
11 Funds Withheld Account And Interest Credit 12
12 Liability Of The Reinsurer And Currency 13
13 Commutation 14
14 Excess Of Original Policy Limits 14
15 Extra Contractual Obligations 14
16 Errors And Omissions 15
17 Access To Records 15
18 Actuarial Review 16
19 Loss Reserve And Advance Premium Funding 16
20 Funds Withheld Trust Account 16
21 Insolvency 17
22 Arbitration 17
23 Changes In Administrative Practices 18
24 Taxes 19
25 Service Of Suit 19
26 No Assignment 19
27 Intermediary 20
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COMBINED QUOTA SHARE AND AGGREGATE REINSURANCE
TREATY NO. 901/LK9905493
(hereinafter referred to as "Treaty")
between
SWISS REINSURANCE COMPANY
(hereinafter referred to as "Reinsurers")
and
MIIX INSURANCE COMPANY
LAWRENCEVILLE, NEW JERSEY
(hereinafter referred to as "Ceding Company")
ARTICLE 1: BUSINESS COVERED
This Treaty shall indemnify the Ceding Company with respect to Ultimate Net
Losses which may accrue to the Ceding Company under any and all Policies subject
to the Terms and Conditions of this Treaty.
As respects all coverages hereon, the Reinsurers shall provide coverage on a
risks attaching basis for each Coverage Year in respect of all of the Ceding
Company's Policies underwritten during each respective Coverage Year. Premiums
received in advance of each Coverage Year are deemed to be part of the Subject
Net Written Premium for that Coverage Year. Coverage shall in all cases follow
the underlying basis of coverage of the original Policies written by the Ceding
Company. For all purposes, the "Permanent Protection Policies (PPP)" written by
the Ceding Company shall in all cases be deemed to cover on a losses occurring
during basis of underlying coverage. Reinsurers shall be subject to all of the
conditions of the PPP including policy limits and the aggregate limit formula
under the extended reporting coverage therein.
Reinsurers shall remain liable for all losses covered as detailed above during
the Term until all such losses are paid or this Treaty is commuted.
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ARTICLE 2: COMMENCEMENT AND TERMINATION
This Treaty is effective November 1, 1999 and shall remain continuously in
effect thereafter unless terminated. Either party may terminate this Treaty at
any November 1st by giving the other party not less than 90 (ninety) days prior
written notice by certified mail. Unless otherwise mutually agreed, reinsurance
hereunder on Business Covered in force at the effective date of termination
shall remain in full force and effect until expiration, cancellation or next
anniversary of such business, whichever first occurs, but in no event beyond 12
months following the effective date of termination plus any extension of
coverage for extended reporting provided under the original policies of the
Ceding Company.
Should this Treaty expire while a loss is in progress, the Reinsurers shall be
responsible for the loss in progress in the same manner and to the same extent
they would have been responsible had the Treaty expired the day following the
conclusion of the loss in progress.
ARTICLE 3: TERRITORY AND INURING REINSURANCE
This Treaty will cover Policies written within the United States of America. All
other Reinsurance Agreements that inure to the benefit of this Treaty shall be
deemed in place until all liability of the Reinsurers hereon is finalized by
payment of all losses or commutation.
ARTICLE 4: EXCLUSIONS
This Treaty shall not apply to and specifically excludes:
A. Workers' Compensation Insurance;
B. Insolvency funds, in accordance with the Insolvency Funds Exclusion
Clause attached hereto;
C. Business assumed from Pools, Syndicates, and Associations;
D. Business excluded by the attached Nuclear Incident Exclusion Clause -
Liability Reinsurance - USA, except that provisions of this clause
shall not apply to liability arising out of the practice of Nuclear
Medicine and activities relating to Nuclear Medicine by the original
insured;
E. War Risks, in accordance with the North America War Exclusion Clause
attached hereto;
F. Unallocated Loss Adjustment Expenses as described in ARTICLE 6:
DEFINITIONS, D;
G. Underlying Provider Stop Loss Policies written by the Ceding Company.
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ARTICLE 5: COVERAGES AND AGGREGATE LIMITS
SECTION A - 75% QUOTA SHARE COVERAGE
Reinsurers shall indemnify the Ceding Company for 75% (seventy-five percent)
quota share of Ultimate Net Loss arising from covered losses for each applicable
Coverage Year during the Term of this Treaty subject to the Section A Aggregate
Limit hereon. This quota share shall be in respect of the Business Covered
exposure period related to Section A Advance Consideration only.
This Section A Quota Share Coverage can be converted to Section B Aggregate
Excess of Loss Coverage during the first quarter retroactive to January 1st of
any applicable Coverage Year. This conversion is at the mutual agreement of the
Ceding Company and the Reinsurers and is subject to the following conditions not
being present prior to the conversion date:
1. The Ceding Company's A.M. Best Rating falls below B+; and
2. The Ceding Company's surplus drops below $60,000,000 (sixty million
dollars).
If both of these conditions are present during the first quarter, then the
Section A Quota Share Coverage cannot be converted into the Section B Aggregate
Excess of Loss Coverage for the applicable Coverage Year.
If Section A is not converted to Section B, the Ceding Company shall track the
advance premium by policy to the coverage time afforded by the advance premium
under each policy. Section A shall cover the Ceding Company on the basis of the
coverage of the underlying original Policies during such advance premium
coverage time.
The Aggregate Limit for each Section A Coverage Year shall equal 167% (one
hundred sixty-seven percent) of Section A Advance Consideration. If Section A is
converted to Section B, the Aggregate Limit for Section A shall be $0 (zero
dollars) for the respective Coverage Year.
SECTION B - AGGREGATE EXCESS OF LOSS COVERAGE
Should the Ceding Company's Loss Ratio exceed 75% (seventy-five percent)
(hereinafter called the Retention), the Reinsurers shall be liable for 100% (one
hundred percent) of the paid amount of Ultimate Net Losses in excess of the
Retention subject to a maximum Aggregate Limit of 75% (seventy-five percent) of
SNWP. This aggregate excess coverage shall cover the Ceding Company on the basis
of the coverage of the original Policies. If the Section A Quota Share Coverage
is converted to this Section B Aggregate Excess of Loss Coverage, then this
Section B shall also cover the Ceding Company's original Policies pertaining to
advance premium deposits received through December 31st preceding the respective
Coverage Year. If Section A is not converted to Section B, Section B shall not
cover the original policies during the coverage time pertaining to advance
premium deposits received through December 31st preceding the respective
Coverage Year.
If the amount of the Funds Withheld Account balance falls below $500,000 (five
hundred thousand dollars) on a specific Coverage Year the Reinsurers may
unilaterally and individually, for their respective interests, offer at any
time, for such Coverage Year, and the Ceding Company will accept, Additional
Section B Coverage up to 8% (eight percent) of cumulative SNWP excess of 150%
(one hundred and fifty percent) of cumulative SNWP in respect of
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covered losses. In no event shall Reinsurers be liable for more than
$200,000,000 (two hundred million dollars) in the aggregate for Section B for
each Coverage Year. The $200,000,000 (two hundred million dollars) aggregate
limit for each Coverage Year shall be subject to the sub condition that no more
than $20,000,000 (twenty million dollars) in all (inclusive of Loss Adjustment
Expenses) shall be recoverable from Reinsurers in respect of losses emanating
from a loss layer of $7,000,000 (seven million dollars) each and every loss
(inclusive of Loss Adjustment Expenses) excess of $3,000,000 (three million
dollars) each and every loss (inclusive of Loss Adjustment Expenses).
If SNWP exceeds $300,000,000 (three hundred million dollars) in a particular
individual Coverage Year, then the Ceding Company shall participate in this
particular individual Coverage Year with the Reinsurers in losses otherwise
recoverable in the proportion calculated as follows:
Ceding Company's Share: Amount of SNWP in excess of $300,000,000
----------------------------------------
SNWP
This proportion may be adjusted based on mutual consent of the Ceding Company
and Reinsurers for Coverage Years 2000 and thereafter.
ARTICLE 6: DEFINITIONS
A. "Cumulative Subject Net Written Premiums" (SNWP) shall mean for the
respective Coverage Year, the cumulative Net Written and Assumed Written
Premium Income less cancellations and returns and less premiums paid for
all other reinsurances for the Coverage Year, except for the
Non-Traditional Reinsurance Agreements which shall be disregarded for the
calculation of SNWP.
If the Section A Quota Share Coverage is converted to the Section B
Aggregate Excess of Loss Coverage, SNWP shall include all direct advance
premium for the Coverage Year. If the Section A Quota Share Coverage is
not converted to Section B Aggregate Excess of Loss Coverage, SNWP shall
exclude the SNWP related to all the direct advance premium for the
respective Coverage Year. Direct advance premium refers to all actual
amounts collected by Ceding Company from its insureds in advance of the
respective Coverage Year.
B. "Non-Traditional Reinsurance Agreements" shall mean any reinsurance
agreement which allows for Profit Sharing (or any other form of
contractual adjustment) exceeding 25% (twenty-five percent) of initial
reinsurance premium paid.
C. The term "Ultimate Net Loss" means the actual loss including any and
all vicarious liability, arising from a Loss Occurrence as covered in
accordance with ARTICLE 1: BUSINESS COVERED, including pro rata Loss
Adjustments Expense, Loss in Excess of Policy Limits and Extra
Contractual Obligations, and including losses incurred but not yet
reported, all paid, payable or to be paid by the Ceding Company after
making deductions for all recoveries, salvages, subrogations and all
claims on inuring reinsurance, whether such reinsurance is collectible
or not; provided, that in the event of the insolvency of the Ceding
Company, payment by the Reinsurers shall be made in accordance with the
provisions of the ARTICLE 21: INSOLVENCY. Nothing herein shall be
construed to mean that losses
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under this Treaty are not recoverable until the Ceding Company's
Ultimate Net Loss has been ascertained.
D. "Loss Adjustment Expense" means all costs and expense allocable to a
specific claim or claims that are incurred by the Ceding Company in the
investigation, appraisal, adjustment, settlement, litigation, defense
or appeal of a specific claim, including court costs and costs of
supersedes and appeal bonds, and including a) pre-judgment interest,
unless included as part of the award or judgement; b) post - judgment
interest; and c) legal expenses and costs incurred in connection with
coverage questions and legal actions connected thereto. Loss Adjustment
Expense does not include Unallocated Loss Adjustment Expense.
Unallocated Loss Adjustment Expense includes, but is not limited to
salaries and expenses of employees, and office and other overheads.
E. "Policies" means any and all original policies, contracts, and binders
of insurance or reinsurance underwritten by the Ceding Company, issued
in the states of New Jersey and Pennsylvania to individual and/or
groups of physicians and/or dentists and classified under the listing
below:
Medical and Dental Practitioner Professional Liability
(including HIV Endorsement Coverage) *
Directors and Officers Liability
All Property and other Coverages as provided in conjunction with
Professional Liability Coverages
Property Highly Protected Risk Assumed
Medical Office Policy Coverages
Other Health Care Institution Liability
Professional Premises Liability
Commercial General Liability
Excess Umbrella Liability
Errors and Omissions Liability
"Policies" shall also mean assumed reinsurance from Lawrenceville Re,
Ltd of Bermuda (Lawrenceville Re), and Lawrenceville Property and
Casualty Insurance Company (LP&C), in respect of assumed reinsurance
underwritten by Lawrenceville Re and original policies contracts, and
binders of insurance or reinsurance underwritten by LP&C and classified
also as:
Medical and Dental Practitioner Professional Liability
(including HIV Endorsement Coverage) *
but only to the extent the underlying business is issued in the states
of New Jersey and Pennsylvania to individual and/or groups of
physicians and/or dentists.
* POLICIES SHALL ONLY INCLUDE HIV COVERAGE TO INSURED MEDICAL AND
DENTAL PRACTITIONERS OF THE CEDING COMPANY. COVERAGES FOR OTHERS FOR
HIV SHALL ONLY BE AVAILABLE UPON REINSURERS' APPROVAL
F. "Loss Ratio" means the ratio of Ultimate Net Losses incurred divided by
Cumulative Subject Net Written Premium as of the date of calculation.
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G. "Ceded Loss Ratio" means the ratio of ceded Ultimate Net Losses
incurred divided by Cumulative Subject Net Written Premium as of the
date of calculation for the respective Coverage Year.
H. "Loss Occurrence" means Loss Occurrence or medical incident, or
otherwise the event giving rise to coverage, all as defined and
provided within the underlying Policies underwritten by the Ceding
Company.
I. "Coverage Year" means each separate period beginning January 1st and
ending December 31st for the Term of this Treaty.
▇. "Term" means the period November 1st, 1999 through December 31st, 2000
and each and every Coverage Year thereafter that this Treaty is in
effect. There will be no coverage for policies with advance premium
payment on or after November 1st termination in respect of the
subsequent Coverage Year.
ARTICLE 7: NET RETAINED LIABILITY
This Treaty applies only to that portion of any Loss Occurrence or claim first
made which the Ceding Company retains net for its own account. All other
Reinsurance Agreements shall inure to the benefit of this Treaty and be deemed
in place until all liability hereon is finalized.
The Ceding Company warrants that the maximum Net Retained Liability is as
follows:
POLICIES CLASSIFIED AS: MAXIMUM NET RETAINED LIABILITY
Property insurance:
Medical Office Policy $ 2,000,000 any one policy
Other Property Coverage $ 500,000 each and every loss
All Other Policies $ 10,000,000 each and every loss
The above figures pertain to indemnity only. Therefore, Net Retained Liability
would be increased in respect of pro rata Loss Adjustment Expenses. The Ceding
Company must obtain special acceptance from Reinsurers prior to exceeding the
above maximum Net Retained Liability.
Further more it is warranted that less than 5% (five percent) of the Ceding
Company's SNWP or $7,000,000 (seven million dollars), whichever the greater,
will originate from assumed reinsurance business other than from Lawrenceville
Re and LP&C.
ARTICLE 8: SECTION A ADVANCE AND ACTUAL CONSIDERATION, SECTION B
ACTUAL CONSIDERATION, ADDITIONAL COVERAGE CONSIDERATION AND
CEDING COMMISSION, AND REINSURERS' EXPENSE CHARGE
SECTION A
As consideration for Section A for each Coverage Year, the Ceding Company shall
pay the Reinsurers annually 75% (seventy-five percent) of all direct advance
premium deposits received through December 31st of a respective Coverage Year.
Such Consideration shall be credited to
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the Funds Withheld Account on the November 1st preceding the respective Coverage
Year. Section A Advance Consideration shall be provisionally based upon the
direct advance premium deposit estimated and reported by the Ceding Company on
or before December 15th preceding each Coverage Year. The Ceding Company shall
recalculate a final amount within 45 (forty-five) days subsequent to January 1st
of the respective Coverage Year. Any additional amount due shall be credited to
the Funds Withheld Account on the November 1st preceding the respective Coverage
Year. Any return amount due shall be debited to the Funds Withheld Account on
the November 1st preceding the respective Coverage Year.
THE PREMIUM IN RESPECT OF SECTION A MAY BE CONVERTED TO SECTION B, SUBJECT TO
THE TERMS OF THE CONTRACT.
SECTION B
Commencing with the calendar quarter ending December 31st of each Coverage Year
and each subsequent quarter end, the Ceding Company shall calculate the required
Section B Actual Consideration within 45 (forty-five) days of each calendar
quarter end. Actual Consideration shall be based upon the result of dividing
ceded Section B Ultimate Net Losses by SNWP as of each calculation date
(hereinafter called the Ceded Loss Ratio) for the respective Coverage Year.
The Actual Consideration for Section B shall be based upon the percentage of
SNWP corresponding to the Ceded Loss Ratio as determined per the table and
narrative below for the respective Coverage Year.
CEDED LOSS ACTUAL CONSIDERATION CEDED LOSS ACTUAL CONSIDERATION
RATIO SECTION B RATIO SECTION B
(% OF SNWP) (% OF SNWP)
0 0% 49 25.80%
1-22 10% 50 26.40%
23 10.60% 51 27.00%
24 11.40% 52 27.60%
25 11.80% 53 28.20%
26 12.40% 54 28.80%
27 13.00% 55 29.45%
28 13.50% 56 30.10%
29 14.00% 57 30.75%
30 14.50% 58 31.40%
31 15.00% 59 32.05%
32 15.60% 60 32.70%
33 16.20% 61 32.70%
34 16.80% 62 32.70%
35 17.40% 63 32.70%
36 18.00% 64 32.70%
37 18.60% 65 32.70%
38 19.20% 66 32.70%
39 19.80% 67 32.70%
40 20.40% 68 32.70%
41 21.00% 69 32.70%
42 21.60% 70 32.70%
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43 22.20% 71 32.70%
44 22.80% 72 32.70%
45 23.40% 73 32.70%
46 24.00% 74 32.70%
47 24.60% 75 32.70%
48 25.20%
If Ceded Loss Ratios are between the above table loss ratios, the Actual
Consideration percentage of SNWP shall be pro-rated between the table Ceded Loss
Ratio values.
The Actual Consideration for each Coverage Year shall be equal to the cumulative
SNWP for each Coverage Year multiplied by the percentage determined by the above
narrative and table calculations.
For each Coverage Year, the Ceding Company shall credit the Funds Withheld
Account for this Actual Consideration less all prior payment of both Section A
Actual Consideration, if applicable, and Section B Actual Consideration
adjustments to date to Reinsurers providing that Section A is converted to
Section B. If the sum of the prior payments of Section B Actual Consideration
adjustments and Section A Actual Consideration exceed the Section B Actual
Consideration amount due, the Ceding Company shall debit the Funds Withheld
Account for such return Section B Actual Consideration adjustment. If, however,
Section A Quota Share is not converted to Section B, then Section A Actual
Consideration shall not be subtracted from Actual Consideration.
For each individual Coverage Year, all Section A Actual Consideration and
Section B Actual Consideration less Reinsurers' Expense Charge shall be withheld
by the Ceding Company in the Funds Withheld Account for the benefit of
Reinsurers.
All Actual Consideration adjustments and Advance Consideration shall be deemed
to be credited or (debited) from the Funds Withheld Account as of November 1st
of the preceding Coverage Year for Interest Credit purposes hereon. Therefore,
any adjustments to increase Actual Consideration shall result in an Interest
Credit from November 1st of the preceding Coverage Year to date for such
adjustment. Any adjustments to decrease the Actual Consideration shall result in
a reduction of Interest Credit from November 1st of the preceding Coverage Year
to date for such adjustment.
Additional Coverage Consideration
If Reinsurers offer Additional Section B Coverage, the Reinsurers shall be
entitled to an Additional Coverage Consideration equivalent to 60% of the
Additional Coverage provided. The Additional Coverage Consideration shall be
withheld by the Company and credited to the Funds Withheld Account as of the
November 1st preceding each Coverage Year for all purposes hereon including
Investment Credit. No Reinsurers' Expense Charge shall be due on such Additional
Coverage Consideration.
CEDING COMMISSION
Reinsurers shall allow a Ceding Commission of $1,200,000 (one million, two
hundred thousand dollars) to be due to the Ceding Company on November 1st of the
preceding Coverage Year. There shall be no increase or decrease to this amount
based upon loss experience under this
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Treaty. The Ceding Company shall debit the Funds Withheld Account as of November
1st of the preceding Coverage Year for all Ceding Commissions.
REINSURERS' EXPENSE CHARGE
The Ceding Company shall pay Reinsurers for each Coverage Year a Reinsurers'
Expense Charge equal to X%, as detailed in the table below subject to a minimum
amount of $1,575,000 (one million, five hundred and seventy-five thousand
dollars) inclusive of intermediary commission, by direct payment to Reinsurers
hereon.
For each Coverage Year, the provisional Reinsurers' Expense Charge shall be
$1,575,000 (one million, five hundred and seventy-five thousand dollars) as
respects Section A Advance Consideration for purposes of calculation and payment
upon consummation of this Treaty and on or about November 1st prior to each
renewal Coverage Year. The Reinsurers' Expense Charge on both the Section A
Actual Consideration and Section B Actual Consideration adjustments shall be
determined, redetermined and paid annually within 60 (sixty) days in arrears of
each calendar year end. Payments shall be made by direct payment from the debtor
to creditor party at such times.
There shall be no interest paid to Reinsurers on Reinsurers' Expenses Charge
paid or refund of interest on Reinsurers' Expense Charge which is refunded under
this Treaty, upon return Actual Consideration adjustments, if any.
X% for both Section A and B shall be based upon Coverage Year Ceded Loss Ratio
bands as follows:
Ceded Loss Ratio X%
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0% up to and including 23% 6.0
above 23% up to and including 29% 7.0
above 29% up to and including 34% 8.0
above 34% up to and including 40% 9.0
above 40% up to and including 60% 8.0
above 60% up to and including 65% 7.0
above 65% up to and including 72% 6.0
above 72% 5.0
For purposes of Interest Credit hereon, all Reinsurers' Expense Charge
shall be deemed debited or credited as applicable from the Funds Withheld
Account as of November 1st of the preceding Coverage Year.
Intermediary commission is equivalent to 1% part of X%, subject to a
minimum amount of $225,000 (two hundred and twenty-five thousand dollars)
and a maximum amount of $300,000 (three hundred thousand dollars).
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ARTICLE 9: OFFSET AND SECURITY
A. Each party hereto has the right, which may be exercised at any time, to
offset any amounts, whether on account of Consideration or losses and
allocated Loss Adjustment Expenses or otherwise, due from such party to
another party under this Treaty, against any amounts, whether on
account of Consideration or losses and allocated Loss Adjustment
Expenses or otherwise due from the latter party to the former party.
The party asserting the right of offset may exercise this right,
whether as assuming Reinsurers or Ceding Company in this Treaty.
B. Each party hereby assigns and pledges to the other party (or to each
other party, if more than one) all of its rights under this Treaty to
receive Consideration or loss payments at any time from such other
party ("Collateral"), to secure its Consideration or loss obligations
to such other party at any time under this Treaty ("Secured
Obligations"). If at any time a party is in default under any Secured
Obligation or shall be subject to any liquidation, rehabilitation,
reorganization or conservation proceeding, each other party shall be
entitled in its discretion, to apply or to withhold for the purpose of
applying in due course, any Collateral assigned and pledged to it by
the former party and otherwise to realize upon such Collateral as
security for such Secured Obligations.
C. The security interest described herein, and the term "Collateral",
shall apply to all payments and other proceeds in respect of the rights
assigned and pledged. A party's security interest in Collateral shall
be deemed evidenced only by the counterpart of this Treaty delivered to
such party.
D. Each right under this Article is a separate and independent right,
exercisable, without notice or demand, alone or together with other
rights, in the sole election of the party entitled thereto, and no
waiver, delay, or failure to exercise, in respect of any right, shall
constitute a waiver of any other right. The provisions of this Article
shall survive any cancellation or other termination of this Treaty.
ARTICLE 10: REPORTS AND LOSS SETTLEMENTS
A. Within 60 (sixty) days following the end of each calendar quarter, the
Ceding Company will report in writing to the Reinsurers for each
Coverage Year:
1. SNWP for the quarter and cumulative SNWP.
2. All Consideration calculations as necessary.
3. Summary of subject Ultimate Net Losses paid during the period
and inception to date.
4. Summary of Ultimate Net Losses outstanding including a report
of incurred but not reported amounts.
5. The amount of Ultimate Net Losses ceded to this Treaty for the
period and inception to date indicating amounts due and
outstanding.
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6. Individual claim information (claim managers report) for all
individual claims in excess of $2,000,000 (two million
dollars) indemnity from ground up and for claims in excess of
$750,000 (seven hundred and fifty thousand dollars) upon
Reinsurers' specific request.
7. Any other information needed by the Reinsurers to evaluate
this Treaty which is reasonably available to the Ceding
Company.
8. A report detailing the activity and balance within the Funds
Withheld Account.
B. 1. Loss Settlements
Following each quarterly report, the Reinsurers shall pay all
cumulative Ultimate Net Losses Paid in respect of Business
Covered by the Ceding Company on and after January 1st of each
respective Coverage Year in excess of the Ceding Company's
Retention subject to the Aggregate Limits hereon. Payment
shall be made at 90 (ninety) days following each calendar
quarter end, if paid by Reinsurers from other funds of the
Reinsurers. Loss Settlements shall be first paid by deduction
from the Funds Withheld Account, this account shall be debited
at 90 (ninety) days following each calendar quarter. Loss
reimbursement at any calendar quarter for each Coverage Year
shall be equal to the amount of such cumulative Ultimate Net
Losses Paid at each date in excess of the Retention less net
loss reimbursements previously made by the Reinsurers, subject
to the Aggregate Limits in accordance with ARTICLE 5:
COVERAGES AND AGGREGATE LIMITS.
2. Order of Settlements
All loss payments, including all Commutation payments, if any,
above will be firstly made by deduction from the Consideration
and then from the Interest Credit components of the Funds
Withheld Account by the Ceding Company until depleted.
Thereafter, Reinsurers shall pay from other funds of
Reinsurers subject to all of the terms hereon.
ARTICLE 11: FUNDS WITHHELD ACCOUNT AND INTEREST CREDIT
FUNDS WITHHELD ACCOUNT
For purposes of this Article, the Ceding Company shall maintain a cumulative
Funds Withheld Account separately for each individual Coverage Year comprised of
the following Coverage Year amounts:
1. The Funds Withheld Account at October 30th preceding the Coverage Year
shall be equal to zero.
2. The Funds Withheld Account at each subsequent calendar quarter end
shall be equal to:
a. The Funds Withheld Account at the end of such prior calendar
quarter; plus
b. Any amounts credited or debited during the quarter for the
following:
Section A Advance and Actual Consideration, Section B Actual
Consideration including adjustments, Additional Coverage
Consideration, if any; less
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c. Reinsurers' Expense Charge, if any; less
d. Ceding Commissions; less
e. Ceded Ultimate Net Losses paid under this Treaty for the prior
calendar quarter from the Funds Withheld Account (including
Commutation payments); plus
f. Interest Credit.
The Ceding Company shall report balances quarterly to the Reinsurers as soon as
practicable but no later than 75 (seventy-five) days in arrears of each calendar
quarter end.
The Reinsurers shall not transfer or assign their rights to the Funds Withheld
Account hereon unless this Treaty is surrendered and a new Treaty is issued.
Under any and all circumstances, the Ceding Company must make a book entry of a
transfer or assignment in order for such transfer or assignment to be valid.
Upon finalization of the payment of all losses recoverable hereon and/or
Commutation for any Coverage Year, if any, the Reinsurers will pay to the Ceding
Company the entire amount of the remaining Funds Withheld Account balance, if
any, received by the Reinsurers.
Interest Credit
For each Coverage Year, the Ceding Company shall credit the Funds Withheld
Account monthly at each month end with interest calculated by applying a monthly
rate equal to one-twelfth (1/12th) of the percentage stipulated below multiplied
by the actual daily average Funds Withheld Account balance for the respective
calendar month where the percentage equals:
7.254% if the 12 month U.S. Treasury Bill rate is 7.254% or less:
or
7.254 + 50% of the amount by which the 12 month U.S. Treasury Bill rate is
greater than 7.254%.
The 12 month U.S. Treasury bill rate to be used each year is the rate in effect
on the first business day of each year as reported in the Wall Street Journal on
the second business day of each year.
Interest Credit shall continue even in the event of the Ceding Company's
insolvency.
All Reinsurers' Expense Charges shall be deemed debited from the Funds Withheld
Account as of the November 1st preceding the applicable Coverage Year.
ARTICLE 12: LIABILITY OF THE REINSURER AND CURRENCY
A. The liability of the Reinsurer shall follow that of the Ceding Company
in every case and be subject in all respects to all the general and
specific stipulations, clauses, waivers and modifications of the Ceding
Company's policies and any endorsements thereon. However, in no event
shall this be construed in any way to provide coverage outside the
terms and conditions set forth in this Treaty.
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B. Nothing herein shall in any manner create any obligation or establish any
rights against the Reinsurer in favor of any third party or any persons
not parties to this Treaty.
C. All of the provisions of this Treaty involving dollar amounts are
expressed in terms or United States Dollars and all Consideration and
loss and allocated Loss Adjustment Expense payments hereunder shall be
made in United States Dollars.
ARTICLE 13: COMMUTATION
The Ceding Company shall have the sole option, effective at any calendar year
end on or after December 31st of each Coverage Year to commute all ceded
liability outstanding hereunder in respect of a specific Coverage Year. At
Commutation, the Funds Withheld Account shall be dissolved and the Ceding
Company shall pay the entire amount of the respective Coverage Year Funds
Withheld Account to the Reinsurers hereon. The Ceding Company may offset the
payment of the Funds Withheld Account against the Commutation payment required
at such time
Said payment shall constitute a full and final settlement of all terms of this
Treaty in respect of the specific Coverage Year; the Ceding Company will execute
a hold harmless agreement so stating and the Reinsurers will be thereby released
from all current and future liability hereunder for such Coverage Year.
ARTICLE 14: EXCESS OF ORIGINAL POLICY LIMITS
This Treaty shall protect the Ceding Company, within the limits hereof, for loss
in excess of its original policy, such loss in excess of the limit having been
incurred because of failure by it to settle within the policy limit or by reason
of alleged or actual negligence, fraud, or bad faith in rejecting an offer of
settlement or in the preparation of an appeal consequent upon such action.
For the purpose of this Article, the word "loss" shall mean any amounts for
which the Ceding Company would have been contractually liable to pay had it not
been for the limit of the original policy.
However, this Article shall not apply where the loss has been incurred due to
fraud by a member of the Board of Directors or a corporate officer of the Ceding
Company acting individually or collectively or in collusion with any individual
or corporation or any other organization or party involved in the presentation,
defense or settlement of any claim covered hereunder.
ARTICLE 15: EXTRA CONTRACTUAL OBLIGATIONS
This Treaty shall protect the Ceding Company for any Extra Contractual
Obligations within the limits hereof. The term "Extra Contractual Obligations"
is defined as those liabilities not covered under any other provision of this
Treaty and which arise from the handling of any claim on business covered
hereunder, such liabilities arising because of, but not limited to, the
following:
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failure by the Ceding Company to settle within the policy limit, or by reason of
alleged or actual negligence, fraud, or bad faith in rejecting an offer of
settlement or in the preparation of the defense or in the trial of any action
against its insured or reinsured or in the preparation or prosecution of an
appeal consequent upon such action.
The date on which any Extra Contractual Obligation is incurred by the Ceding
Company shall be deemed, in all circumstances to be the date of the original
Loss Occurrence.
However, this Article shall not apply where the loss has been incurred due to
fraud by a member of the Board of Directors or a corporate officer of the Ceding
Company acting individually or collectively or in collusion with any individual
or corporation or any other organization or party involved in the presentation,
defense or settlement of any claim covered hereunder.
ARTICLE 16: ERRORS AND OMISSIONS
Any inadvertent delay, omission or error shall not be held to relieve either
party hereto from any liability which would attach to it hereunder if such
delay, omission or error had not been made, providing such delay and
notification, omission or error is rectified upon discovery.
ARTICLE 17: ACCESS TO RECORDS
The Ceding Company shall place at the disposal of the Reinsurers at all times,
and the Reinsurers shall have the right to inspect, through its authorized
representatives, all books, records and papers of the Ceding Company in
connection with any reinsurance hereunder, or claims in connection herewith.
The Reinsurers agree that they will not disclose any confidential information
obtained by it hereunder to parties not subject to this Treaty except under the
following circumstances and then only as necessary:
A. When disclosure of such information is required in the normal course of
Reinsurers' business; or
B. With the prior written consent of the Ceding Company; or
C. When Reinsurers are required by a subpoena or court order to disclose
such information. The Reinsurers shall promptly notify the Ceding
Company of any attempt by a third party to obtain from it any such
confidential information.
Reinsurers will provide the Ceding Company or its designated representative with
such information as Reinsurers and Ceding Company may agree is necessary to the
Ceding Company's handling of the business reinsured herein.
The obligations contained in this provision shall survive termination of this
Treaty.
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ARTICLE 18: ACTUARIAL REVIEW
Should the Reinsurers desire at any time to review the loss reserves established
by the Ceding Company as respects Ultimate Net Losses, the Reinsurers shall
select an independent actuarial firm acceptable to the Ceding Company to perform
a reserve analysis. The costs of any reserve analysis performed under this
Article will be borne by the Reinsurers hereon. Such a review shall be subject
to the provisions of ARTICLE 17: ACCESS TO RECORDS.
ARTICLE 19: LOSS RESERVE AND ADVANCE PREMIUM FUNDING
The Reinsurers will maintain appropriate reserves with respect to their share of
the Advance Premium and loss reserves ceded and required under the terms of this
Treaty which are reported by the Ceding Company on the Business Covered of this
Treaty.
During the Term of this Treaty the Reinsurers agree to provide a clean,
irrevocable and unconditional Letter of Credit in favor of the Ceding Company
issued by a bank acceptable to the Ceding Company adjusted to at all times be
equal to the ceded cumulative Ultimate Net Losses outstanding and Advance
Premium ceded hereunder less the Funds Withheld Account balance at such dates.
Such Letter of Credit shall be in the form, amount and with an acceptable NAIC
bank required to allow the Ceding Company to take Full Statutory Credit for
amounts recoverable under this Treaty.
The Ceding Company also agrees to not make drawings upon the Letter of Credit
provided by the Reinsurers for any purpose other than to reimburse the Ceding
Company for loss settlements due under this Treaty for which one or more of the
Reinsurers are in default by more than seven days and provided that the Ceding
Company shall give the Reinsurers three days written notice prior to making any
drawings.
The Ceding Company shall reimburse the Reinsurers for annual security cost equal
to 0.50% (zero point five percent) of the amount of the Letter of Credit issued
or maintained hereon as of each December 31st. The Reinsurers shall request such
reimbursement whereupon the Ceding Company shall make payment by direct wire
transfer to the Reinsurers. All such amounts shall not be deducted from the
Funds Withheld Account.
ARTICLE 20: FUNDS WITHHELD TRUST ACCOUNT
In the event that the Ceding Company experiences any one of the following
circumstances, the Reinsurers may require a Trust Fund, with an independent
bank, to be established for the purposes of collateralizing the Funds Withheld
Account hereon:
1. The Ceding Company's A.M. Best's Rating is downgraded below B+; or
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2. The Ceding Company's combined statutory capital and surplus falls
below $60,000,000 (sixty million dollars); or
3. The Ceding Company is acquired or becomes controlled or
amalgamated with or has its shares purchased for the purpose of
gaining control by any other party.
The Ceding Company shall fully and promptly comply with such request from the
Reinsurers. The Ceding Company shall transfer marketable assets with a market
value equal to the required Funds Withheld Account balance within 30 (thirty)
days from the Reinsurers' request to do so. The Ceding Company shall also
transfer additional assets to the Trust Fund, if needed, to maintain the Trust
Fund balance to be equal to the Funds Withheld requirement at each calendar
quarter end including the requisite Interest Credit required hereon.
ARTICLE 21: INSOLVENCY
A. In the event of the insolvency of the Ceding Company, the reinsurance
under this Treaty shall be payable by the Reinsurers (on the basis of
the liability of the Ceding Company) to the Ceding Company or to its
liquidator, receiver or statutory successor.
B. It is agreed, however, that the liquidator or receiver or statutory
successor of the insolvent Ceding Company shall give written notice to
the Reinsurers of the pendency of a claim against the insolvent Ceding
Company on the policy or policies reinsured within a reasonable time
after such claim is filed in the insolvency proceeding and that, during
the pendency of such claim, the Reinsurers may investigate such claim
and interpose, at its own expense, in the proceeding where such claim
is to be adjudicated, any defense or defenses which it may deem
available to the Ceding Company or its liquidator or receiver or
statutory successor. Accidental failure to give such notice shall not
excuse the obligation unless Reinsurers are substantially prejudiced by
the failure to give such notice. The expense thus incurred by the
Reinsurers shall be chargeable, subject to court approval, against the
insolvent Ceding Company as part of the expense of liquidation to the
extent of a proportionate share of the benefit which may accrue to the
Ceding Company solely as a result of the defense undertaken by the
Reinsurers.
C. Should the Ceding Company go into liquidation or should a receiver be
appointed, the Reinsurers shall be entitled to deduct from any sums
which may be or may become due to the Ceding Company under this Treaty
any sums which are due to the Reinsurers by the Ceding Company under
this Treaty and which are payable at a fixed or stated date, as well as
any other sums due the Reinsurers which are permitted to be offset
under applicable law.
ARTICLE 22: ARBITRATION
A. As a condition precedent to any right of action hereunder, in the event
of any dispute or difference of opinion hereinafter arising with
respect to this Treaty, it is hereby mutually agreed that such dispute
or difference of opinion shall be submitted to arbitration. One Arbiter
shall be chosen by the Ceding Company, the other by the Reinsurers, and
the 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 insurance or reinsurance
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companies. In the event that either party should fail to chose an
Arbiter within 30 (thirty) 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
(thirty) days following their appointment, each Arbiter shall nominate
three candidates within 10 (ten) days thereafter, two of whom the other
shall decline, and the decision shall be made by drawing lots.
B. Each party shall present its case to the Arbiters within 30 (thirty)
days following the date of appointment of the Umpire. The Arbiters
shall consider this Treaty 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
decision of the Arbiters shall be final and binding on both parties;
but failing to agree, they shall call in the Umpire and the decision of
the majority shall be final and binding upon both parties. The decision
shall be made in writing and will state the factual and legal basis
supporting such decision. Judgment upon the final decision of the
Arbiters may be entered in any court of competent jurisdiction.
C. If more than one Reinsurer is involved in the same dispute, all such
Reinsurers shall constitute and act as one party for the purposes of
this Article and communications shall be made by the Ceding Company to
each of the Reinsurers constituting one party provided, however, that
nothing herein shall impair the rights of such Reinsurers to assert
several, rather than joint, defenses or claims, nor be construed as
changing the liability of the Reinsurers participating under the terms
of this Treaty from several to joint.
D. 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. Any
arbitration shall be conducted in Lawrenceville, New Jersey.
ARTICLE 23: CHANGES IN ADMINISTRATIVE PRACTICE
If any intentional or unintentional change in the Ceding Company's processing or
payment of claims materially increases the Reinsurers' economic loss under this
Treaty from what the economic loss would have if there had been no such change,
the Reinsurers shall prepare, and the Ceding Company shall accept, an adjustment
of the portion of claims which is reimbursable, or any adjustments which will
make the Reinsurers' risk position equivalent to that which would have been
obtained under this Treaty if there had been no such change. The Reinsurers
shall have the right to use auditing techniques, sampling techniques, or to
otherwise investigate the nature and effect of any such change in administrative
practices or of any possible compensatory adjustment therefor. Any dispute with
respect to such adjustment shall be resolved by arbitration as provided in
ARTICLE 22: ARBITRATION.
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ARTICLE 24: TAXES
The Ceding Company is solely liable for any Federal Excise Tax (FET) applicable
to this Treaty. Any FET to be paid shall be paid directly by the Ceding Company
to the taxing authorities and is in addition to the Consideration. No deduction
shall be made from the Funds Withheld Account.
ARTICLE 25: SERVICE OF SUIT
It is agreed that in the event of the failure of Reinsurers hereon to pay any
amount claimed to be due hereunder, Reinsurers hereon, at the request of the
Ceding Company will submit to the jurisdiction of a court of competent
jurisdiction within the United States. The foregoing shall not constitute a
waiver of the right of the Reinsurers to commence any suit in, or to remove,
remand or transfer any suit to any other court of competent jurisdiction in
accordance with the applicable statutes of the state or United States pertinent
thereto. It is further agreed that this Treaty shall be governed by the laws of
the State of New Jersey.
It is further agreed that service of process in such suit may be made upon,
United States of America and that in any suit instituted against any one of them
upon this Treaty, Reinsurers will abide by the final decision of such Court or
any Appellate Court in the event of an appeal.
The above named are authorised and directed to accept service of process on
behalf of Reinsurers in any suit and/or upon the request of the Ceding Company
to give a written undertaking to the Ceding Company that they will enter a
general appearance upon ▇▇▇▇▇▇▇▇▇▇' behalf in the event such a suit shall be
instituted.
Further, pursuant to any statute of any state, territory or District of the
United States which makes provision therefor, Reinsurers hereon hereby designate
the Superintendent, Commissioner or Director of Insurance or other officer
specified for that purpose in the statute, or his successor of successors in
office, as their 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
Ceding Company or any beneficiary hereunder arising out of this Treaty, and
hereby designate the above named as the person to whom said officer is
authorized to mail such process or a true copy thereof.
ARTICLE 26: NO ASSIGNMENT
The Ceding Company and the Reinsurers hereon hereby agree that neither party
shall have the right to assign its respective interests and liabilities,
including the Funds Withheld Account, under this Treaty.
Notwithstanding the above, this Article shall not restrict the Ceding Company
from making investments it deems appropriate.
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ARTICLE 27: INTERMEDIARY
JLT Risk Solutions Ltd, ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇ is hereby recognised
as the intermediary negotiating this Treaty for all business hereunder and
through whom all communications relating hereto (including but not limited to
notices, statements and reports) shall be transmitted to both parties, it is
understood, as regards remittances due either party hereunder, that payment by
the Ceding Company to the Intermediary, shall constitute payment to the
Reinsurers but payment by the Reinsurer to the Intermediary shall only
constitute payment to the Ceding Company to the extent such payments are
actually received by the Ceding Company. Notwithstanding the foregoing, it is
agreed that all payments will be direct from the Reinsurer to the Ceding
Company, or from the Ceding Company to the Reinsurer as appropriate.
ARTICLE 28: ADDITIONAL RETENTION
Losses emanating from a loss limit of $3,000,000 (three million dollars) each
and every loss (inclusive of Loss Adjustment Expenses) excess of $1,000,000 (one
million dollars) each and every loss (inclusive of Loss Adjustment Expenses)
shall be subject to an annual aggregate retained amount of $10,000,000 (ten
million dollars) which shall not be the subject of this Treaty.
SIGNED IN LAWRENCEVILLE, NEW JERSEY, THIS DAY OF ,2000 FOR AND ON BEHALF
OF MIIX INSURANCE COMPANY.
BY:_______________________________________
TITLE:____________________________________
SIGNED IN , THIS DAY OF ,2000 FOR AND ON BEHALF OF
SWISS REINSURANCE COMPANY.
BY:_______________________________________
TITLE:____________________________________
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SWISS REINSURANCE COMPANY TREATY
THE CEDING COMPANY IS REQUESTED TO READ THIS TREATY CAREFULLY. IF IT IS BELIEVED
TO BE INCORRECT THE TREATY SHOULD BE IMMEDIATELY RETURNED, WITH AN EXPLANATION,
TO THE PERSON OR ENTITY DESIGNATED ON THE BACK PAGE OF THIS TREATY.
IN CONSIDERATION of the Ceding Company named in the Schedule having paid the
premium specified in the said Schedule to Swiss Reinsurance Company,
(hereinafter referred to as "Reinsurers"), whose duly authorised representative
has hereunto subscribed his name.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ AGREE to reinsure the Ceding Company against loss as more
fully set forth in this Treaty and the attachments hereto during the Period of
▇▇▇▇▇▇▇▇▇▇▇ stated in the said Schedule, or during any subsequent period as may
be mutually agreed upon between the Ceding Company and Reinsurers.
PROVIDED that the liability of Reinsurers subscribing to this Treaty shall not
exceed their proportion of the limits of liability expressed in the said
Schedule or such other limits of liability as may be substituted therefor by
Addendum hereon or attached hereto signed by or on behalf of Reinsurers.
If Reinsurers shall make any claim under this Treaty with knowledge that the
same is false or fraudulent as regards amount or otherwise, this Treaty shall
become null and void forthwith and any and all claims hereunder shall be
forfeited and of no force and effect.
IN WITNESS HEREOF I, being a representative of Reinsurers and duly authorised by
the said Reinsurers to sign this Treaty on their behalf, have hereunto
subscribed my name.
Dated this day of , Two Thousand.
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Policy Number: 901/LK9905493 Reinsurers reference:
THE SCHEDULE
COMPANY: MIIX INSURANCE COMPANY
ADDRESS: Two Princess Road, Lawrenceville, New Jersey,
United States of America.
PERIOD
OF REINSURANCE: Effective November 1, 1999 covering on a risks
attaching basis for Business Covered and continuous
thereafter unless terminated.
LIMIT OF LIABILITY: All as more fully set forth in the attached wording.
This Policy reinsures 25% of the Limit of Liability expressed in the attached
wording.
INTEREST: All as more fully set forth in the attached wording.
PREMIUM: All as more fully set forth in the attached wording
SEVERAL LIABILITY NOTICE
The subscribing Reinsurers' obligation under contracts of reinsurance to which
they subscribe are several and not joint and are limited solely to the extent of
their individual subscriptions. The subscribing Reinsurers are not responsible
for the subscription of any co-subscribing reinsurer who for any reason does not
satisfy all or part of its obligations.
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IN ALL COMMUNICATIONS PLEASE QUOTE
THE FOLLOWING REFERENCE
901/LK9905493
REINSURANCE
TREATY
THE COMPANY IS REQUESTED TO READ THIS TREATY CAREFULLY. IF IT
IS BELIEVED TO BE INCORRECT THE TREATY SHOULD BE IMMEDIATELY
RETURNED, WITH AN EXPLANATION TO:
JLT Risk Solutions Limited
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇.
