.
.
.
EXHIBIT 10.30
BLENDED AGGREGATE STOP LOSS
REINSURANCE AGREEMENT
ARTICLE PAGE
------- ----
COVERAGE..........................................................................................................1
LIABILITY OF THE REINSURERS.......................................................................................1
TERM..............................................................................................................1
TERRITORY.........................................................................................................1
EXCLUSIONS........................................................................................................2
DEFINITIONS.......................................................................................................2
RETENTION AND LIMIT...............................................................................................2
ULTIMATE NET LOSS.................................................................................................3
NET RETAINED LIABILITY............................................................................................4
PREMIUM AND MARGIN................................................................................................4
EXPERIENCE ACCOUNT................................................................................................4
CANCELLATION......................................................................................................5
REPORTS AND REMITTANCES...........................................................................................5
LOSS SETTLEMENTS AND PAYMENTS.....................................................................................5
COMMUTATION AND PROFIT COMMISSION.................................................................................6
OTHER REINSURANCE.................................................................................................6
OFFSET............................................................................................................6
EXTRA CONTRACTUAL OBLIGATIONS AND EXCESS LIMITS LIABILITY.........................................................6
SPECIAL TERMINATION...............................................................................................7
SALVAGE AND SUBROGATION...........................................................................................8
DELAYS, ERRORS OR OMISSIONS.......................................................................................8
AMENDMENTS........................................................................................................8
ACCESS TO RECORDS.................................................................................................8
INSOLVENCY........................................................................................................9
ARBITRATION.......................................................................................................9
CONFIDENTIALITY..................................................................................................11
TAXES............................................................................................................12
CURRENCY ........................................................................................................12
SERVICE OF SUIT..................................................................................................12
AGENCY...........................................................................................................13
SEVERABILITY.....................................................................................................13
GOVERNING LAW....................................................................................................13
BLENDED AGGREGATE STOP LOSS
REINSURANCE AGREEMENT
THIS AGREEMENT is made and entered into by and between
The insurance subsidiaries of XXXX & XXXXXXX HOLDINGS, INC.,
including but not limited to the following entities:
UNITED STATES FIRE INSURANCE COMPANY, New York
XXXX and XXXXXXX INSURANCE COMPANY, New Jersey
THE NORTH RIVER INSURANCE COMPANY, New Jersey
XXXX & XXXXXXX UNDERWRITERS Co. OF OHIO, Ohio
XXXX & XXXXXXX INDEMNITY COMPANY, New York
(hereinafter called the "Company")
of the one part, and the various Reinsurers as identified by the Interests and
Liabilities Agreements attaching to and forming a part of this Agreement
(hereinafter called the "Reinsurers") of the other part.
The parties hereto agree as herein below, in consideration of the mutual
covenants contained in the following Articles and upon the terms and conditions
set forth therein:
COVERAGE
--------
The Reinsurers will indemnify the Company in respect to losses under all
policies written by the Company.
LIABILITY OF THE REINSURERS
---------------------------
The liability of the Reinsurers will follow that of the Company in every case
and be subject in all respects to all the general and specific stipulations,
clauses, waivers, interpretations and modifications of the Company's policies
and any endorsements thereon.
TERM
----
This Agreement will apply to all losses occurring and/or claims made and/or
losses discovered during the period from January 1, 2000, to December 31, 2002,
both days inclusive, on inforce, new and renewal business.
TERRITORY
---------
The territorial scope of this Agreement will follow that of the Company's
policies.
Page 1
EXCLUSIONS
----------
This Agreement does not apply to and specifically excludes the following:
A. Loss caused directly or indirectly by war, whether or not declared, civil
war, insurrection, rebellion, or revolution or any act or condition
incidental to any of the foregoing. This exclusion will not be more
limiting than the war exclusion in any policy issued by the Company that is
subject to this Agreement.
B. Loss or liability excluded by the Solvency Funds Exclusion Clause attached
to this Agreement.
C. Loss or liability excluded by the Nuclear Incident Exclusion Clauses --
Liability -- Reinsurance, U.S.A. and Canada and Nuclear Energy Risks
Exclusion Clause (Reinsurance) (1994) (Worldwide excluding U.S.A. &
Canada), attached to this Agreement.
DEFINITIONS
-----------
The following definitions will apply to this Agreement:
A. "Claims made" will mean those claims first made against the insured during
the policy period and occurring on or after the retroactive date, if any.
B. "Subject Net Earned Premium Income" will mean all subject gross earned
premium less the earned portion of premium paid for inuring reinsurance.
C. "Occurrence," unless defined otherwise in the policies reinsured hereunder,
will mean each and every disaster, casualty, accident or loss or series of
disasters, casualties, accidents, or losses arising out of one event.
D. "Policies" will mean all policies, binders, contracts, or agreements of
insurance or reinsurance, whether written or oral.
RETENTION AND LIMIT
-------------------
The Reinsurer will indemnify the Company as follows:
Year 1: The Reinsurer will not be liable hereunder until the Company's Ultimate
Net Loss exceeds 66.0% of its Subject Net Earned Premium Income (such percentage
referred to as the "Year 1 Retention") and then the Reinsurer will be liable for
the amount of the Company's Ultimate Net Loss in excess of the Year 1 Retention,
subject to a maximum annual limit of liability to the Reinsurer of 15% of the
Company's Subject Net Earned Premium Income.
Year 1 will not include the Ultimate Net Loss and Subject Net Earned Premium
Income arising out of the insurance subsidiaries of Sen-Tech International
Holdings, Inc.
Page 2
Year 2: The Reinsurer will not be liable hereunder until the Company's Ultimate
Net Loss exceeds 73% of its Subject Net Earned Premium Income (such percentage
referred to as the "Year 2 Retention") and then the Reinsurer will be liable for
the amount of the Company's Ultimate Net Loss in excess of the Year 2 Retention,
subject to a maximum annual limit of liability to the Reinsurer of 15% of the
Company's Subject Net Earned Premium Income.
Year 3: The Reinsurer will not be liable hereunder until the Company's Ultimate
Net Loss exceeds 70% of its net Subject Net Earned Premium Income (such
percentage referred to as the "Year 3 Retention") and then the Reinsurer will be
liable for the amount of the Company's Ultimate Net Loss in excess of the Year 3
Retention, subject to a maximum annual limit of liability to the Reinsurer of
15% of the Company's Subject Net Earned Premium Income.
Notwithstanding anything to the contrary, the maximum annual dollar limit shall
be $125 million Ultimate Net Loss in Year 1, $150 million Ultimate Net Loss in
Year 2 and $150 million Ultimate Net Loss in Year 3.
The Company may choose to decrease the Year 1, Year 2 and/or Year 3 Retention by
up to 5 percentage points, in one percentage point increments, for any year or
years above. This election must be exercised by March 1st following the end of
the applicable accident year. For every 1% reduction in the Year 1, Year 2
and/or Year 3 Retention the maximum annual limit of liability for the year or
years in which the reduction occurs will increase by 1%.
ULTIMATE NET LOSS
-----------------
"Ultimate Net Loss" as used in this Agreement will mean the actual loss or
losses paid or payable by the Company including loss reserves, reserves for loss
expense (as described below) and reserves for loss and loss expense incurred but
not reported (IBNR) in respect of losses occurring and/or claims made and/or
losses discovered as per underlying coverage during the term of this Agreement.
Ultimate Net Loss shall include 100% of any extra contractual obligations and
excess limits liability after making deductions for all recoveries, salvage, and
inuring reinsurance (whether collectible or ,not). Ultimate Net Loss will
include net retained loss expense (including outside loss expense as defined by
the Company) paid or payable by the Company in the investigation, appraisal,
adjustment litigation and/or defense of claims under policies reinsured
hereunder as well as court costs, costs of supersedes and appeal bonds, pre/post
judgment interest costs and expense of declaratory judgment actions, being costs
incurred in connections with the determination of the Company's coverage
obligations, and legal actions connected therewith, but will not include
internal office expenses, salaries, per them or other remuneration of regular
employees.
All salvages, recoveries or reinsurance received subsequent to any loss
settlement hereunder shall be applied as if received prior to the settlement,
and all necessary adjustments will be made by the parties hereto. Nothing in
this definition means that losses under this Agreement are not recoverable until
the Company's Ultimate Net Loss has been ascertained.
Page 3
NET RETAINED LIABILITY
----------------------
This Agreement will apply only to that portion of any insurance or reinsurance
that the Company retains net for its own account, and such portion will be used
in calculating the amount of any loss hereunder as well as the amount in excess
of which this Agreement attaches. The amount of the Reinsurers' liability
hereunder with respect to any loss will not be increased by the inability of the
Company to collect from any other reinsurers any amounts that may have become
due from them, whether such inability arises from the insolvency of such
reinsurers or otherwise.
PREMIUM AND MARGIN
------------------
Premium: 5% of the cumulative Subject Net Earned Premium Income payable in
quarterly installments within 60 days after the end of each quarter.
If the Company elects to reduce the Retention of a covered year, an
additional premium will be due equal to 0.33% for each 1% increment,
multiplied by the applicable annual Subject Net Earned Premium Income.
Margin: $400,000 payable on January 1, 2000, plus .0749% (.30% annual rate
compounded quarterly) applied to the difference between the average
quarterly ceded unpaid Ultimate Net Loss and the average quarterly
balance in the Experience Account, payable quarterly 60 days after the
end of each quarter. The annual rate will increase .20% to .50% in
year 2005, and increase by an additional .10% for every year
thereafter, subject to a maximum annual rate of 1.20%.
The minimum annual Margin is $100,000 for all years after 2005, up to
and including the year of commutation or novation, if any.
In the event of commutation or novation, the cumulative Margin paid
will be no less than 2% of the difference between the cumulative ceded
Ultimate Net Loss and the cumulative ceded Premium or $500,000 if the
contract is commuted or novated before March 1, 2001, $750,000 if the
contract is commuted or novated before March 1, 2002, and $1 million
if the contract is commuted or novated before March 1, 2003, whichever
is greater. Any additional Margin will be paid within 5 days of
commutation or novation.
EXPERIENCE ACCOUNT
------------------
A notional Experience Account shall be calculated by the Reinsurer quarterly,
and maintained until there is a complete and final release of all of the
Reinsurer's obligations to the Company under this Agreement.
Page 4
The Experience Account balance at any given time will be calculated as follows:
1. Cumulative premium paid hereunder, if any, excluding Margin, plus
2. Cumulative Investment Credit (sum of all Investment Credits calculated to
date), less
3. The amount of paid loss and loss expense recovered or recoverable
hereunder.
The Investment Credit shall be equal to 1.8245% per quarter (7.5% annual rate
compounded quarterly) applied to the average quarterly balance of the Experience
Account for each quarter and credited to the Experience Account at the end of
each quarter.
The Experience Account fee shall be equal to .06244% (.25% annual rate
compounded quarterly) of the average quarterly balance of the Experience Account
for each quarter and shall be paid to the Reinsurer quarterly 60 days after the
end of each quarter.
CANCELLATION
------------
The Company shall have the right to cancel effective any quarter end by
providing thirty (30) days notice by certified or registered mail to the
Reinsurer. The Reinsurer will be fully and completely liable for all liability
during the period the contract was in effect prior to cancellation unless the
Commutation And Profit Commission clause is invoked.
REPORTS AND REMITTANCES
-----------------------
The Company will furnish the Reinsurers with a quarterly report within 60 days
following the end of each calendar quarter, indicating the following:
a) Cumulative Subject Net Earned Premium Income.
b) Summary of subject loss and loss expense paid during the year, and
inception to date.
c) Summary of subject loss reserves and loss expense reserves including a
report of incurred but not reported amounts.
d) The amount of Ultimate Net Loss (as defined) in excess of the Year 1, Year
2 and/or Year 3 Retention hereunder; and
e) A report detailing the activity of the Experience Account.
f) Premiums, Margins and Fees to be paid within 60 days following the last day
of the quarter.
LOSS SETTLEMENTS AND PAYMENTS
-----------------------------
All settlements made by the Company, provided they are within the terms of this
Agreement, will be unconditionally binding on the Reinsurers.
Any payments made by the Reinsurers shall be due quarterly in arrears within 60
days or 15 days following the receipt of the reports, whichever is later.
Page 5
COMMUTATION AND PROFIT COMMISSION
---------------------------------
At December 31, 2000, or at any time thereafter, this agreement may be commuted
in respect of all subject losses which are unsettled, if the valuation of such
losses and all other terms of the commutation are mutually agreed by the Company
and the Reinsurer. If the Experience Account is in a positive position following
commutation, then the positive balance shall be released to the Company as
Profit Commission on the date of Commutation. Upon commutation the Reinsurer
will be completely and fully released from all liability hereunder.
OTHER REINSURANCE
-----------------
The Company is permitted to purchase facultative reinsurance and/or treaty
reinsurance and to deduct the premium for such reinsurance that inures to the
benefit of this Agreement.
OFFSET
------
The Company and each Reinsurer hereunder will be entitled to deduct from amounts
due to the other party under this Agreement any amounts due itself from the
other party under this Agreement; however, in the event of the insolvency of any
party hereto, offset will be in accordance with applicable law.
EXTRA CONTRACTUAL OBLIGATIONS AND EXCESS LIMITS LIABILITY
---------------------------------------------------------
This Agreement will cover any losses arising from claims related extra
contractual obligations and/or excess limits liability.
"Extra contractual obligations" as used in this Agreement will mean those
liabilities not covered under any other provision of this Agreement, which arise
from the handling of any claim on business covered hereunder; such liabilities
arising because of, but not limited to, the following: failure to settle within
the policy limit, by reason of alleged or actual negligence, fraud, or bad faith
in rejecting an offer of settlement, in the preparation of the defense, in the
trial of any action against the insured or reinsured, or in the preparation or
prosecution of an appeal consequent upon such action.
"Excess limits liability" as used in this Agreement will mean damages payable in
excess of the policy limit as a result of alleged or actual negligence, fraud,
or bad faith in failing to settle and/or rejecting a settlement within the
policy limit, in the preparation of the defense, in the trial of any action
against the insured or reinsured, or in the preparation or prosecution of an
appeal consequent upon such action. Excess limits liability is any amount for
which the Company would have been contractually liable to pay had it not been
for the limits of the reinsured policy.
There will be no recovery hereunder where the extra contractual obligation or
excess limits liability has been incurred due to fraud committed by a member of
the board of directors or a corporate officer of the Company, acting
individually, collectively, or in collusion with a member of the board of
directors, a corporate officer, or a partner of any other corporation,
Page 6
partnership, or organization involved in the defense or settlement of a claim on
behalf of the Company.
The date on which any extra contractual obligation and/or excess limits
liability is incurred by the Company will be deemed, in all circumstances, to be
the date of the occurrence under the Company's occurrence policy and/or the date
of the first claim made against the Company's claims made policy. Nothing in
this Article will be construed to create a separate or distinct loss apart from
the original covered loss that gave rise to the extra contractual obligations
and/or excess limits liability discussed in the preceding paragraphs. In no
event will the total liability of the Reinsurers exceed their applicable limit
of liability as set forth in the Retention and Limit Article.
If any provision of this Article will be rendered illegal or unenforceable by
the laws, regulations, or public policy of any state, such provision will be
considered void in such state, but this will not affect the validity or
enforceability of any other provision of this Agreement or the enforceability of
such provision in any other jurisdiction.
SPECIAL TERMINATION
-------------------
The Reinsurer may terminate this Agreement before 3/1/2001 or 3/1/2002 upon the
happening of any of the following circumstances:
1. A state insurance department or other legal authority orders the Company to
stop writing business, or
2. The Company has become insolvent or has been placed into liquidation or
receivership (whether voluntary or involuntary), or has been instituted
against it proceedings for the appointment of a receiver, liquidator,
rehabilitator, conservator, or trustee in bankruptcy, or other agent known
by whatever name, to take possession of its assets or control of its
operations, or
3. The Company and/or Fairfax Financial Holdings, Ltd.'s audited Canadian GAAP
Equity has been reduced by 20% of the amount of the audited Canadian GAAP
Equity as of 1/l/2000, or has lost any part of, or has reduced its paid-up
capital since 1/1/2000, or
4. The Company and/or Fairfax Financial Holdings, Ltd. has become merged with,
acquired, or ultimately controlled by any company, corporation, or
individual(s) not controlling their operations previously, or
5. The Company and/or Fairfax Financial Holdings, Ltd. receives a rating
downgrade from its rating as of 1/1/2000 from A.M. Best's (lower than B++),
Xxxxx'x (lower than Baa3), or Standard & Poor's (lower than BBB) and/or are
put on rating watch with negative implications by any of these rating
agencies.
6. The Reinsurer determines that there is inadequate retrocessional protection
for its liabilities and obligations under this Agreement, in that the
insurance regulatory authorities having jurisdiction over its reserves,
would find the funding of such reserves under the retrocessional agreement
unacceptable.
If the Agreement is terminated before 3/1/2001, the Reinsurer will be fully and
completely released from all liability under the 2001 and 2002 years of this
Agreement. If the Agreement is
Page 7
terminated before 3/1/2002, the Reinsurer will be fully and completely released
from all liability under the 2002 year of this Agreement.
Notwithstanding anything to the contrary, the Reinsurer may terminate this
Agreement back to inception for any reason whatsoever before May 25, 2000, upon
which the Reinsurer will be fully and completely released from all liability
under this Agreement, and all amounts, if any, paid to the Reinsurer will be
returned to the Company.
SALVAGE AND SUBROGATION
-----------------------
The Reinsurers will be credited with their share of salvage and/or subrogation
in respect of claims and settlements under this Agreement, less their share of
recovery expense. Unless the Company and Reinsurers agree to the contrary, the
Company will enforce its right to salvage and/or subrogation and will prosecute
all claims arising out of such right. Should the Company refuse or neglect to
enforce this right, the Reinsurers are hereby empowered and authorized to
institute appropriate action in the name of the Company.
Amounts recovered from salvage and/or subrogation will always be used to
reimburse the excess reinsurers (and the Company, should it carry a portion of
excess coverage net) in the reverse order of their participation in the loss
before being used in any way to reimburse the Company for its primary loss. If
the amount recovered exceeds the recovery expense, the recovery expense will be
borne by each party in proportion to its benefit from the recovery. If the
recovery expense exceeds the amount recovered, the amount recovered (if any)
will be applied to the reimbursement of recovery expense and the remaining
expense as well as any originally incurred loss expense will be added to the
ultimate net loss.
DELAYS, ERRORS OR OMISSIONS
---------------------------
Any inadvertent delay, error, or omission will not be held to relieve either
party hereto from any liability that would attach to it hereunder if such delay,
error, or omission had not been made, providing any error or omission will be
rectified upon discovery.
AMENDMENTS
----------
This Agreement may be altered or amended in any of its terms and conditions by
mutual consent of the Company and the Reinsurers either by addenda hereto or by
an exchange of letters; such addenda or letters will then constitute a part of
this Agreement.
ACCESS TO RECORDS
-----------------
Provided the Company received prior notice, the Reinsurers or their designated
representatives will have the right to inspect at any reasonable time, all
records of the Company that pertain in any way to this Agreement.
Page 8
INSOLVENCY
----------
(If more than one reinsured company is referenced within the definition of
"Company" in the Preamble to this Agreement, this Article will apply severally
to each such company. Further, this Article and the laws of the domiciliary
state will apply in the event of the insolvency of any company intended to be
covered hereunder. In the event of a conflict between any provision of this
Article and the laws of the domiciliary state of any company intended to be
covered hereunder, that domiciliary state's laws will prevail.)
In the event of the Company's insolvency, the reinsurance afforded by this
Agreement will be payable by the Reinsurers on the basis of the Company's
liability under the policies reinsured without diminution because of the
Company's insolvency or because its liquidator, receiver, conservator, or
statutory successor has failed to pay all or a portion of any claims, subject
however to the right of the Reinsurers to offset against such funds due
hereunder, any sums that may be payable to them by said insolvent Company in
accordance with the applicable law. The reinsurance will be payable by the
Reinsurers directly to the Company, or to its liquidator, receiver, conservator,
or statutory successor except (a) where this Agreement specifically provides
another payee of such reinsurance in the event of the Company's insolvency or
(b) where the Reinsurers, with the consent of the direct insured or insureds,
have assumed such policy obligations of the Company as direct obligations of
themselves to the payees under such policies in substitution for the Company's
obligation to such payees. Then, and in that event only, the Company, with the
prior approval by the Superintendent of Insurance of the state of New York of
the Certificate of Assumption on New York risks, is entirely released from its
obligation and the Reinsurers will pay any loss directly to payees under such
policies.
The Company's liquidator, receiver, conservator, or statutory successor will
give written notice of the pendency of a claim against the Company under the
policies reinsured within a reasonable time after such claim is filed in the
insolvency proceeding. During the pendency of such claim, the Reinsurers may
investigate said claim and interpose in the proceeding where the claim is to be
adjudicated, at their own expense, any defense that they may deem available to
the Company, or to its liquidator, receiver, conservator, or statutory
successor. The expense thus incurred by the Reinsurers will be chargeable
against the Company, subject to court approval, as part of the expense of
conservation or liquidation to the extent that such proportionate share of the
benefit will accrue to the Company solely as a result of the defense undertaken
by the Reinsurers. Where two or more Reinsurers are involved in the same claim,
and a majority in interest elect to interpose defense to such claim, the expense
will be apportioned in accordance with the terms of this Agreement as though
such expense had been incurred by the Company.
ARBITRATION
-----------
As a condition precedent to any right of action under this Agreement, any
dispute (whether during the currency of this agreement or after expiration or
termination of this Agreement) between the Company and any Reinsurer arising out
of or in connection with this Agreement, including its formation or actual
validity, will be submitted to the decision of a board of arbitration
(hereinafter called the "board") composed of two arbitrators and an umpire
meeting at a site in Morristown, New Jersey, unless some other site is mutually
agreed by the parties. The
Page 9
members of the board will be impartial and disinterested, active or former
executive officers of insurance or reinsurance companies or Underwriters at
Lloyd's, London.
To the extent not otherwise mutually agreed or provided for in this Article, the
procedures and rules applicable to arbitration under the laws of the State of
New York, as from time to time set forth, will govern the procedures of the
arbitration. All time limitations stated in this Article may be amended by
mutual consent of the parties, and will be amended automatically to the extent
made necessary by any circumstances beyond the control of the parties.
All notices in connection with the arbitration will be in writing and sent
certified or registered mail, return receipt requested. The claimant's notice
demanding arbitration will reference this Article, will state in particulars all
issues to be resolved in its view, and will name the arbitrator appointed by it.
Within 30 days of receipt of the claimant's notice, the respondent will notify
the claimant of any additional issues to be resolved in the arbitration and of
the name of its appointed arbitrator.
If the respondent fails to appoint its arbitrator within 30 days after having
received the claimant's notice demanding arbitration, the claimant is authorized
to and will appoint the second arbitrator and will notify the respondent of the
name of the arbitrator appointed for it. The two arbitrators will appoint an
umpire before instituting the hearing. If the two arbitrators fail to agree upon
the appointment of an umpire within 30 days after notification of the
appointment of the second arbitrator, within 10 days thereafter the claimant
will petition the United States District Court having geographical jurisdiction
over the site of arbitration to appoint the umpire (or if the federal court
declines to act, the state court having general jurisdiction in such area); the
selection of the umpire will be within the exercise of sound discretion by the
court. The board will notify the claimant and the respondent of the umpire's
identity within 10 days of the umpire's appointment.
The arbitration hearing will commence within 60 days of the appointment of the
umpire. Within 30 days of the date of notice of appointment of the umpire, the
claimant and respondent will each submit initial briefs to the board outlining
the issues in dispute and the basis and reasons for their respective positions.
Within 10 days after filing of the initial briefs the claimant and the
respondent may submit reply briefs. Initial and reply briefs may be amended by
the submitting party at any time, but not later than 10 days prior to the date
of commencement of the arbitration hearing. Reasonable responses will be allowed
at the hearing to new material contained in any amendments filed to the briefs
but not previously addressed.
Subject to customary and recognized legal rules of privilege, each party will
have the obligation to produce as witnesses to the arbitration such of its
employees or those of its affiliates as the other party may request, and any
documents that the other party may request, providing always that those
witnesses and documents be relevant to the issues before the arbitration and
provided further that the parties may mutually agree as to further discovery
prior to the arbitration. The board may, at its discretion, request and consider
underwriting and placement information provided by the Company to the
Reinsurers, as well as any correspondence exchanged by the parties that is
related to this Agreement. Upon the petition of either the claimant or the
respondent, the umpire will be the final judge of rules of privilege and as to
relevancy of any witnesses and documents.
Page 10
The board will conduct the hearing and make its award with regard to the terms
expressed in this Agreement, the original intentions of the parties to the
extent reasonably ascertainable, and the custom and usage of the
property-casualty insurance and reinsurance business. At the hearing, evidence
will be allowed but the formal rules of evidence will not apply; cross
examination and rebuttal will be allowed. Within 20 days of the close of the
hearing, at their own election or at the request of the board, the claimant and
the respondent may submit post-hearing briefs to be considered by the board
before making its decision.
The board will make its award within 30 days following the close of the hearing
or the submission of post-hearing briefs, whichever is later. The decision by
the majority of the members of the board will be in writing and will be final
and binding upon the parties. The board is empowered to grant interim relief as
it may deem appropriate. Either the claimant or the respondent may apply to the
United States District Court in the Company's state of domicile for an order
confirming the award; a judgment of such court will thereupon be entered on the
award. If such an order is issued, the party against whom confirmation is sought
will pay the attorneys' fees and court costs the applying party incurs in
pursuing the order.
The claimant and the respondent will each bear the expense of the arbitrator
appointed by or for it and will jointly and equally bear the expense of the
umpire and any stenographer requested. The remaining costs of the arbitration
proceedings will be allocated by the board.
To the extent requested by the Company, the Reinsurer, or other Reinsurers
hereon, where the issues in dispute between the Company and the Reinsurer are
related or largely identical or similar to issues in dispute between the Company
and other Reinsurers, all parties may join together in a consolidated
arbitration under the terms and conditions contained in this Article to resolve
all common issues; provided, however, that:
A. The two arbitrators and umpire will be appointed by the Company and
the original arbitrating Reinsurer;
B. Each party to a consolidated arbitration will have the right to its
own attorney, position, and related claims and defenses;
C. No party will be prevented from presenting its position by the
position put forth by any other party;
D. The consolidated arbitration will not be construed as changing the
liability of the Reinsurers under the terms of this Agreement from
several to joint; and
E. The cost and expenses of the arbitration, including the fees of the
arbitrators and the umpire (but exclusive of attorneys' fees, which
will be borne exclusively by the respective retaining party), will be
borne pro rata by each party participating in the consolidated
arbitration.
CONFIDENTIALITY
---------------
Neither party will disclose material details of this Agreement without the other
party's prior consent. However, this restriction will not apply to disclosures
made to agents, shareholders, policyholders, auditors, accountants, arbitrators,
legal counsel, or other third parties in the
Page 11
ordinary course of business, or to disclosures made to arbitration panels,
governmental agencies, regulatory authorities, or courts of law.
TAXES
-----
The Company will pay all taxes (except Federal Excise Tax) on premiums reported
to the Reinsurers on this Agreement.
CURRENCY
--------
The sign "$" in this Agreement refers to United States of America Dollars, and
all payments hereunder will be made in that currency.
SERVICE OF SUIT
---------------
(This Article applies to Reinsurers domiciled outside the United States of
America and/or unauthorized in any state, territory, or district of the United
States of America that has jurisdiction over the Company and in which a subject
suit has been instituted. This Article is not intended to conflict with or
override the parties' obligation to arbitrate their disputes in accordance with
the Arbitration Article.)
In the event any Reinsurer hereon fails to pay any amount claimed due hereunder,
such Reinsurer, at the request of the Company, will submit to the jurisdiction
of a court of competent jurisdiction within the United States and will comply
with all requirements necessary to give that court jurisdiction. Nothing in this
Article constitutes or should be understood to constitute a waiver of the
Reinsurer's right to commence an action in any court of competent jurisdiction
in the United States, to remove an action to a United States District Court, or
to seek a transfer of a case to another court as permitted by the laws of the
United States or of any state in the United States. Service of process in such
suit may be made upon Mendes and Mount, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, or another party specifically designated in the applicable Interests
and Liabilities Agreement attached hereto. In any suit instituted against it
upon this Agreement, the Reinsurer will abide by the final decision of such
court or of any appellate court in the event of an appeal.
The above named are authorized and directed to accept service of process on
behalf of the Reinsurer in any such suit and/or upon the request of the Company
to give a written undertaking to the Company that they will enter a general
appearance upon the Reinsurer's behalf in the event such a suit is instituted.
Further, pursuant to any statute of any state, territory, or district of the
United States that makes provision therefor the Reinsurer hereby designates the
Superintendent, Commissioner, or Director of Insurance or other officer
specified for that purpose in the statute, or the successor or successors in
office, as its true and lawful attorney upon whom may be served any lawful
process in any action, suit, or proceeding instituted by or on behalf of the
Company or any beneficiary
Page 12
hereunder arising out of this Agreement, and hereby designates the above named
as the person to whom the said officer is authorized to mail such process or a
true copy thereof.
AGENCY
------
For purposes of sending and receiving notices and payments required by this
Agreement, the reinsured company that is set forth first in the definition of
"Company" in the Preamble to this Agreement will be deemed the agent of all
other reinsured companies referenced in the Preamble. In no event, however, will
any reinsured company be deemed the agent of another with respect to the terms
of the Insolvency Article.
SEVERABILITY
------------
If any provision of this Agreement will be rendered illegal or unenforceable by
the laws, regulations or public policy of any state, such provision will be
considered void in such state, but this will not affect the validity or
enforceability of any other provision of this Agreement or the enforceability of
such provision in any other jurisdiction.
GOVERNING LAW
-------------
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
Page 13
INSOLVENCY FUNDS EXCLUSION CLAUSE
This Agreement excludes all liability of the Company arising by contract,
operation of law, or otherwise, from its participation or membership, whether
voluntary or involuntary, in any insolvency fund. "Insolvency fund" includes any
guaranty fund, insolvency fund, plan, pool, association, fund, or other
arrangement, howsoever denominated, established, or governed, that provides for
any assessment of or payment or assumption by the Company of part or all of any
claim, debt, charge, fee, or other obligation of an insurer, or its successors
or assigns, which has been declared by any competent authority to be insolvent,
or which is otherwise deemed unable to meet any claim, debt, charge, fee, or
other obligation in whole or in part.
Page 1
U.S.A.
------
NUCLEAR INCIDENT EXCLUSION CLAUSE--LIABILITY--REINSURANCE
1. This reinsurance does not cover any loss or liability accruing to the
Reassured as a member of, or subscriber to, any association of insurers or
reinsurers formed for the purpose of covering nuclear energy risks or as a
direct or indirect reinsurer of any such member, subscriber or association.
2. Without in any way restricting the operation of paragraph I of this Clause
it is understood and agreed that for all purposes of this reinsurance all
the original policies of the Reassured (new, renewal and replacement) of
the classes specified in Clause 11 of this paragraph 2 from the time
specified in Clause III in this paragraph 2 shall be deemed to include the
following provision (specified as the Limited Exclusion Provision):
Limited Exclusion Provision*
----------------------------
I. It is agreed that the policy does not apply under any liability
coverage, to { injury, sickness, disease, death or destruction bodily
injury or property damage with respect to which an insured under
bodily injury or property damage the policy is also an insured under a
nuclear energy liability policy issued by Nuclear Energy Liability
Insurance Association, Mutual Atomic Energy Liability Underwriters or
Nuclear Insurance Association of Canada, or would be an insured under
any such policy but for its termination upon exhaustion of its limit
of liability.
II. Family Automobile Policies (liability only), Special Automobile
Policies (private passenger automobiles, liability only), Farmers
Comprehensive Personal Liability Policies (liability only),
Comprehensive Personal Liability Policies (liability only) or policies
of a similar nature; and the liability portion of combination forms
related to the four classes of policies stated above, such as the
Comprehensive Dwelling Policy and the applicable types of Homeowners
Policies.
III. The inception dates and thereafter of all original policies as
described in II above, whether new, renewal or replacement, being
policies which either
(a) become effective on or after 1st May, 1960, or
(b) become effective before that date and contain the Limited
Exclusion Provision set out above; provided this paragraph 2
shall not be applicable to Family Automobile Policies, Special
Automobile Policies, or policies or combination policies of a
similar nature, issued by the Reassured on New York risks, until
90 days following approval of the Limited Exclusion Provision by
the Governmental Authority having jurisdiction thereof.
3. Except for those classes of policies specified in Clause 11 of paragraph 2
and without in any way restricting the operation of paragraph I of this
Clause, it is understood and agreed that for all purposes of this
reinsurance the original liability policies of the Reassured (new, renewal
and replacement) affording the following coverages:
Page 1 of 4
Owners, Landlords and Tenants Liability, Contractual Liability, Elevator
Liability, Owners or Contractors (including railroad) Protective Liability,
Manufacturers and Contractors Liability, Product Liability, Professional and
Malpractice Liability, Storekeepers Liability, Garage Liability, Automobile
Liability (including Massachusetts Motor Vehicle or Garage Liability) shall be
deemed to include, with respect to such coverages, from the time specified in
Clause V of this paragraph 3, the following provision (specified as the Broad
Exclusion Provision):
Broad Exclusion Provision*
It is agreed that the policy does not apply:
I. Under any Liability Coverage, to { injury, sickness, disease, death or
destruction bodily injury or property damage
(a) with respect to which an insured under the policy is also an
insured under a nuclear energy liability policy issued by Nuclear
Energy Liability Insurance Association, Mutual Atomic Energy
Liability Underwriters or Nuclear Insurance Association of
Canada, or would be an insured under any such policy but for its
termination upon exhaustion of its limit of liability; or
(b) resulting from the hazardous properties of nuclear material and
with respect to which (1) any person or organization is required
to maintain financial protection pursuant to the Atomic Energy
Act of 1954, or any law amendatory thereof, or (2) the insured
is, or had this policy not been issued would be, entitled to
indemnity from the United States of America, or any agency
thereof, under any agreement entered into by the United States of
America, or any agency thereof, with any person or organization.
II. Under any Medical Payments Coverage, or under any Supplementary
Payments Provision relating to
{ immediate medical or surgical relief first aid to expenses
incurred with respect, to
{ bodily injury sickness, disease or death, bodily injury resulting
from the hazardous properties of nuclear material and arising out
of the operation of a nuclear facility by any person or
organization.
III. Under any Liability Coverage, to
{ injury sickness disease, death or destruction bodily injury or
property damage resulting from the hazardous properties of nuclear
material, if
(a) the nuclear material (1) is at any nuclear facility owned by, or
operated by or on behalf of, an insured or (2) has been
discharged or dispersed therefrom;
Page 2 of 4
(b) the nuclear material is contained in spent fuel or waste at any
time possessed, handled, used, processed, stored, transported or
disposed of by or on behalf of an insured; or
(c) the injury, sickness, disease, death or destruction bodily injury
or property damage arises out of the furnishing by an insured of
services, materials, parts or equipment in connection with the
planning, construction, maintenance, operation or use of any
nuclear facility, but if such facility is located within the
United States of America, its territories, or possessions or
Canada, this exclusion (c) applies only to injury to or
destruction of property at such nuclear facility property damage
to such nuclear facility and any property thereat.
IV. As used in this endorsement:
"HAZARDOUS PROPERTIES" include radioactive, toxic or explosive properties;
"NUCLEAR MATERIALS" means source materials, special nuclear material, or
byproduct material; "SOURCE MATERIAL," "SPECIAL NUCLEAR MATERIAL," AND "BY
PRODUCT MATERIAL" have the meanings given them in the Atomic Energy Act of
1954 or in any law amendatory thereof, "SPENT FUEL" means any fuel element
or fuel component, solid or liquid, which has been used or exposed to
radiation in a nuclear reactor; "waste" means any waste material (1)
containing byproduct material and (2) resulting from the operation by any
person or organization of any nuclear facility included within the
definition of nuclear facility under paragraph (a) or (b) thereof-,
"NUCLEAR FACILITY" means
(a) any nuclear reactor,
(b) any equipment or device designed or used for (1) separating the
isotopes of uranium or plutonium, (2) processing or utilizing spent
fuel, or (3) handling, processing or packaging waste,
(c) any equipment or device used for the processing, fabricating or
alloying of special nuclear material if at any time the total amount
of such material in the custody of the insured at the premises where
such equipment or device is located consists of or contains more than
25 grams of plutonium or uranium 233 or any combination thereof, or
more than 250 grams of uranium 235,
(d) any structure, basin, excavation, premises or place prepared or used
for the storage or disposal of waste, and includes the site on which
any of the foregoing is located, all operations conducted on such site
and all premises used for such operations; "NUCLEAR REACTOR" means any
apparatus designed or used to sustain nuclear fission in a
self-supporting chain reaction or to contain a xxxxxxxx xxxx of
fissionable material; With respect to injury to or destruction of
property, the word "injury" or "destruction" includes all forms of
radioactive contamination of property; "property damage" includes all
forms of radioactive contamination of property.
V. The inception dates and thereafter of all original policies affording
coverages specified in this paragraph 3, whether new, renewal or
replacement, being policies
Page 3 of 4
which become effective on or after 1st May, 1960, provided this paragraph 3
shall not be applicable to
(i) Garage and Automobile Policies issued by the Reassured on New York
risks, or
(ii) statutory liability insurance required under Chapter 90, General Laws
of Massachusetts, until 90 days following approval of the Broad
Exclusion Provision by the Governmental Authority having jurisdiction
thereof.
4. Without in any way restricting the operation of paragraph I of this Clause,
it is understood and agreed that paragraphs 2 and 3 above are not
applicable to original liability policies of the Reassured in Canada and
that with respect to such policies this Clause shall be deemed to include
the Nuclear Energy Liability Exclusion Provisions adopted by the Canadian
Underwriters' Association of the Independent Insurance Conference of
Canada,
--------------------------------------------------------------------------------
* NOTE: The words printed in italics in the Limited Exclusion Provision and in
the Broad Exclusion Provision shall apply only in relation to original liability
policies which include a Limited Exclusion Provision or a Broad Exclusion
Provision containing those words.
N.M.A. 1590 (21/9/67) Approved by Lloyd's Underwriters' Non-Marine Association.
AMENDMENT TO THE DEFINITION OF WASTE
It is agreed that the definition of "WASTE" CONTAINED in subparagraph IV above
is amended to read as follows:
"WASTE" means any material
(a) containing byproduct material other than the tailings or waste
produced by the extraction or concentration of uranium or thorium from
any ore processed primarily for its source material content, and (b)
resulting from the operation by any person or organization of any
nuclear facility included under the first two paragraphs of the
definition of nuclear facility.
Page 4 of 4
CANADA
------
NUCLEAR INCIDENT EXCLUSION CLAUSE -- LIABILITY -- REINSURANCE
1. This Agreement does not cover any loss or liability accruing to the
Reinsured as a member of, or subscriber to, any association of insurers or
reinsurers formed for the purpose of covering nuclear energy risks or as a
direct or indirect reinsurer of any such member, subscriber or association.
2. Without in any way restricting the operation of paragraph I of this clause
it is agreed that for all purposes of this Agreement all the original
liability contracts of the Reinsured, whether new, renewal or replacement,
of the following classes, namely,
Personal Liability, Farmers' Liability, Storekeepers' Liability, which become
effective on or after 31st December 1992, shall be deemed to include, from their
inception dates and thereafter, the following provision:
Limited Exclusion Provision
---------------------------
This Policy does not apply to bodily injury or property damage with respect
to which the Insured is also insured under a contract of nuclear energy
liability insurance (whether the Insured is unnamed in such contract and
whether or not it is legally enforceable by the Insured) issued by the
Nuclear Insurance Association of Canada or any other group or pool of
insurers or would be an Insured under any such policy but for its
termination upon exhaustion of its limits of liability.
With respect to property, loss of use of such property shall be deemed to
be property damage.
3. Without in any way restricting the operation of paragraph I of this clause
it is agreed that for all purposes of this Agreement all the original
liability contracts of the Reinsured, whether new, renewal or replacement,
of any class whatsoever (other than Personal Liability, Farmers' Liability,
Storekeepers' Liability or Automobile Liability contracts), which become
effective on or after 31st December 1992, shall be deemed to include from
their inception dates and thereafter, the following provision:
Broad Exclusion Provision
-------------------------
It is agreed that this Policy does not apply:
(a) to liability imposed by or arising from any nuclear liability act, law or
statute or any law amendatory thereof; nor
(b) to bodily injury or property damage with respect to which an Insured under
this policy is also insured under a contract of nuclear energy liability
insurance (whether the Insured is unnamed in such contract and whether or
not it is legally enforceable by the Insured) issued by the Nuclear
Insurance Association of Canada or any other insurer or group or pool of
insurers or would be an Insured under any such policy but for its
termination upon exhaustion of its limit of liability; nor
Page 1 of 3
(c) to bodily injury or property damage resulting directly or indirectly from
the nuclear energy hazard arising from:
(i) the ownership, maintenance; operation or use of a nuclear facility by
or on behalf of an Insured;
(ii) the furnishing by an Insured of services, materials, parts or
equipment in connection with the planning, construction, maintenance,
operation or use of any nuclear facility; and
(iii) the possession, consumption, use, handling, disposal or
transportation of fissionable substances, or of other radioactive
material (except radioactive isotopes, away from a nuclear facility,
which have reached the final stage of fabrication so as to be usable
for any scientific, medical, agricultural, commercial or industrial
purpose) used, distributed, handled or sold by an Insured.
As used in this Policy:
1. The term "nuclear energy hazard" means the radioactive, toxic, explosive,
or other hazardous properties of radioactive material;
2. The term "radioactive material" means uranium, thorium, plutonium,
neptunium, their respective derivatives and compounds, radioactive isotopes
of other elements and any other substances which may be designated by or
pursuant to any law, act or statute, or law amendatory thereof as being
prescribed substances capable of releasing atomic energy, or as being
requisite for the production, use or application of atomic energy;
3. The term "nuclear facility" means:
(a) any apparatus designed or used to sustain nuclear fission in a
self-supporting chain reaction or to contain a xxxxxxxx xxxx of
plutonium, thorium and uranium or any one or more of them;
(b) any equipment or device designed or used for (i) separating the
isotopes of plutonium, thorium and uranium or any one or more of them,
(ii) processing or utilizing spent fuel, or (iii) handling, processing
or packaging waste;
(c) any equipment or device used for the processing, fabricating or
alloying of plutonium, thorium or uranium enriched in the isotope
uranium 233 or in the isotope uranium 235, or any one or more of them
if at any time the total amount of such material in the custody of the
Insured at the premises where such equipment or device is located
consists of or contains more than 25 grams of plutonium or uranium 233
or any combination thereof, or more than 250 grams of uranium 235;
(d) any structure, basin, excavation, premises or place prepared or used
for the storage or disposal of waste radioactive material;
and includes the site on which any of the foregoing is located, together
with all operations conducted thereon and all premises used for such
operations.
4. The term "fissionable substance" means any prescribed substance that is, or
from which can be obtained, a substance capable of releasing atomic energy
by nuclear fission.
Page 2 of 3
5. With respect to property, loss of use of such property shall be deemed to
be property damage.
N.M.A. 1979 a (01/04/96)
Form approved by Lloyd's Underwriters' Non-Marine Association Limited
Page 3 of 3
NUCLEAR ENERGY RISKS EXCLUSION CLAUSE (REINSURANCE) (1994)
(WORLDWIDE EXCLUDING U.S.A. & CANADA)
This agreement shall exclude Nuclear Energy Risks whether such risks are written
directly and/or by way of reinsurance and/or via Pools and/or Associations.
For all purposes of this agreement Nuclear Energy Risks shall mean all first
party and/or third party insurances or reinsurances (other than Workers'
Compensation and Employers' Liability ) in respect of
I. All Property on the site of a nuclear power station. Nuclear Reactors,
reactor buildings and plant and equipment therein on any site other than a
nuclear power station.
II. All Property, on any site (including but not limited to the sites referred
to in (I) above) used or having been used for:
(a) the generation of nuclear energy; or
(b) the Production, Use or Storage of Nuclear Material.
III. Any other Property eligible for insurance by the relevant local Nuclear
Insurance Pool and/or Association but only to the extent of the
requirements of that local Pool and/or Association.
IV. The supply of goods and services to any of the sites, described in (I) to
(III) above, unless such insurances or reinsurances shall exclude the
perils of irradiation and contamination by Nuclear Material.
Except as undernoted, Nuclear Energy Risks shall not include:
(i) Any insurance or reinsurance in respect of the construction or
erection or installation or replacement or repair or maintenance or
decommissioning of Property as described in (I) to (III) above
(including contractors' plant and equipment);
(ii) Any Machinery Breakdown or other Engineering insurance or reinsurance
not coming within the scope of (i) above;
Provided always that such insurance or reinsurance shall exclude the perils of
irradiation and contamination by Nuclear Material.
However, the above exemption shall not extend to:
(1) The provision of any insurance or reinsurance whatsoever in respect of
(a) Nuclear Material;
(b) Any Property in the High Radioactivity Zone or Area of any
Nuclear Installation as from the introduction of Nuclear Material
or - for reactor installations - as from fuel loading or first
criticality where so
Page 1 of 3
agreed with the relevant local Nuclear Insurance Pool and/or
Association.
(2) The provision of any insurance or reinsurance for the undernoted
perils:
- Fire, lightning, explosion; - Earthquake; - Aircraft and
other aerial devices or articles dropped therefrom;
- Irradiation and radioactive contamination; - Any other peril
insured by the relevant local Nuclear Insurance Pool and/or
Association; in respect of any other Property not specified in (1)
above which directly involves the Production, Use or Storage of
Nuclear Material as from the introduction of Nuclear Material into
such Property.
Definitions
-----------
"Nuclear Material" means:
(i) Nuclear fuel, other than natural uranium and depleted uranium, capable
of producing energy by a self-sustaining chain process of nuclear
fission outside a Nuclear Reactor, either alone or in combination with
some other material; and
(ii) Radioactive Products or Waste.
"Radioactive Products or Waste" means any radioactive material produced in, or
any material made radioactive by exposure to the radiation incidental to the
production or utilisation of nuclear fuel, but does not include radioisotopes
which have reached the final stage of fabrication so as to be usable for any
scientific, medical, agricultural, commercial or industrial purpose.
"Nuclear Installation" means:
(i) Any Nuclear Reactor;
(ii) Any factory using nuclear fuel for the production of Nuclear
Material, or any factory for the processing of Nuclear Material,
including any factory for the reprocessing of irradiated nuclear
fuel; and
(iii) Any facility where Nuclear Material is stored, other than storage
incidental to the carriage of such material.
"Nuclear Reactor" means any structure containing nuclear fuel in such an
arrangement that a self-sustaining chain process of nuclear fission can occur
therein without an additional source of neutrons.
"Production, Use or Storage of Nuclear Material" means the production,
manufacture, enrichment, conditioning, processing, reprocessing, use, storage,
handling and disposal of Nuclear Material.
Page 2 of 3
"Property" shall mean all land, buildings, structures, plant, equipment,
vehicles, contents (including but not limited to liquids and gases) and all
materials of whatever description whether fixed or not.
"High Radioactivity Zone or Area" means:
(i) For nuclear power stations and Nuclear Reactors, the vessel or
structure which immediately contains the core (including its supports
and shrouding) and all the contents thereof, the fuel elements, the
control rods and the irradiated fuel store; and
(ii) For non-reactor Nuclear Installations, any area where the level of
radioactivity requires the provision of a biological shield.
N.M.A. 1975a (10/3/94) Approved by Lloyd's Underwriters' Non-Marine Association.
Page 3 of 3
INTERESTS AND LIABILITIES AGREEMENT
attaching to and forming a part of
BLENDED AGGREGATE STOP LOSS
REINSURANCE AGREEMENT
between
The insurance subsidiaries of XXXX & XXXXXXX HOLDINGS, INC.,
including but not limited to the following entities:
UNITED STATES FIRE INSURANCE COMPANY, New York
XXXX and XXXXXXX INSURANCE COMPANY, New Jersey
THE NORTH RIVER INSURANCE COMPANY, New Jersey
XXXX & XXXXXXX UNDERWRITERS Co. OF OHIO, Ohio
XXXX & XXXXXXX INDEMNITY COMPANY, New York
(hereinafter called the "Company")
and
FEDERAL INSURANCE COMPANY
(hereinafter called the "Subscribing Reinsurer")
It is hereby mutually understood and agreed by and between the Company and the
Subscribing Reinsurer that effective, January 1, 2000, Standard Time, to
December 31, 2002, both days inclusive, the Subscribing Reinsurer's share in the
interests and liabilities of the Reinsurers on the attached Agreement will be
100.00%.
The share of the Subscribing Reinsurer will be separate and apart from the
shares of the other Reinsurers and will not be joint with those of the other
Reinsurers, and the Subscribing Reinsurer will in no event participate in the
interests and liabilities of the other Reinsurers.
If the Subscribing Reinsurer wishes to designate an alternate party to that
named in the Service of Suit Article contained in the attached Agreement, then
service of process will be made upon the party hereinafter named:
1.
IN WITNESS WHEREOF, the parties hereto have caused this Interests
and Liabilities Agreement to be executed by their duly
authorized representatives.
The insurance subsidiaries of XXXX & XXXXXXX HOLDINGS, INC.,
including but not limited to the following entities:
UNITED STATES FIRE INSURANCE COMPANY, New York
XXXX and XXXXXXX INSURANCE COMPANY, New Jersey
THE NORTH RIVER INSURANCE COMPANY, New Jersey
XXXX & XXXXXXX UNDERWRITERS Co. OF OHIO, Ohio
XXXX & XXXXXXX INDEMNITY COMPANY, New York
Signature: /s/ XXXX XXXX XXXXXXXXX Title: Executive Vice President and CFO
---------------------------------- -----------------------------------------
Attest: Date: September 28, 2000
---------------------------------- -----------------------------------------
CHUBB RE, INC.
FOR AND ON BEHALF OF
FEDERAL INSURANCE COMPANY
Signature: Title: Underwriter
----------------------------------- ----------------------------------------
Attest: Date: September 29, 2000
----------------------------------- ----------------------------------------
2.
Interests and Liabilities Agreement
attaching to and forming a part of
BLENDED AGGREGATE STOP LOSS REINSURANCE AGREEMENT
Between
The insurance subsidiaries of XXXX & XXXXXXX HOLDINGS, INC.,
including but not limited to the following entities:
UNITED STATES FIRE INSURANCE COMPANY, New York
XXXX AND XXXXXXX INSURANCE COMPANY, New Jersey
THE NORTH RIVER INSURANCE COMPANY, New Jersey
XXXX & XXXXXXX UNDERWRITERS CO. OF OHIO, Ohio
XXXX & XXXXXXX INDEMNITY COMPANY, New York
SENECA INSURANCE COMPANY, INC., New York
XXXX & XXXXXXX SPECIALTY INSURANCE COMPANY, Connecticut
(hereinafter called the "Company")
and
ORC RE LIMITED
(hereinafter called the "Subscribing Reinsurer")
I. It is hereby mutually understood and agreed by and between the Company and
this Subscribing Reinsurer that effective January 1, 2001, Standard Time, to
December 31, 2002, both days inclusive, this Subscribing Reinsurer's share will
be 100% in the interests and liabilities of the attached Blended Aggregate Stop
Loss Reinsurance Agreement ("Reinsurance Agreement").
II. As to this Interests and Liabilities Agreement, this Subscribing Reinsurer
is liable for the period of January 1, 2001, Standard Time, to December 31,
2002, both days inclusive, and this Subscribing Reinsurer will be liable for
Year 2 and Year 3 but not for Year 1 as described in the section entitled
"Retention and Limit" of the Reinsurance Agreement. As to this Subscribing
Reinsurer, this Interests and Liabilities Agreement expressly includes Seneca
Insurance Company, Inc. and Xxxx & Xxxxxxx Specialty Insurance Company.
III. As to this Interests and Liabilities Agreement and this Subscribing
Reinsurer, the section of the Reinsurance Agreement entitled "Premium and
Margin" is replaced in its entirety as follows:
PREMIUM
-------
Premium: 5% of the cumulative Subject Net Earned Premium Income. A
bordereau shall be prepared by the Company and provided to this
Subscribing Reinsurer quarterly per the Reports and Remittances
article of this Agreement.
If the Company elects to reduce the Retention of a covered year, an
additional premium will be due equal to 0.33% for each 1% increment,
multiplied by the applicable annual Subject Net Earned Premium Income.
1.
IV. As to this Interests and Liabilities Agreement and as to this Subscribing
Reinsurer, the section of the Reinsurance Agreement entitled "Special
Termination" is deleted in its entirety.
V. As to this Interests and Liabilities Agreement and as to this Subscribing
Reinsurer, the second paragraph of the section entitled "Experience Account" of
the Reinsurance Agreement is hereby amended to read as follows:
The Experience Account balance at any given time will be calculated as follows:
1. Cumulative premium paid hereunder, if any, plus
----
2. Cumulative Investment Credit (sum of all Investment Credits calculated to
date), less
----
3. The amount of paid loss and loss expense recovered or recoverable
hereunder, less
----
4. Cumulative Federal Excise Tax paid.
VI. As to this Interests and Liabilities Agreement and as to this Subscribing
Reinsurer, a new section entitled Credit For Reinsurance is hereby added to read
to read as follows:
CREDIT FOR REINSURANCE
(a) As regards contracts and policies or bonds issued by the Company
coming within the scope of the Agreement, the Company agrees that when
it shall file with the insurance regulatory authority or set up on its
books reserves for unearned premium and losses covered hereunder which
it shall be required by law to set up, it will forward to the
Subscribing Reinsurer a statement showing the reserves which are
applicable to the Subscribing Reinsurer. The Subscribing Reinsurer
hereby agrees that it will apply for and secure delivery to the
Company of a clean, irrevocable and unconditional Letter of Credit,
issued by an approved bank, or establish a trust account or trust
accounts ("Trust Account") for the benefit of the Company in each case
containing provisions acceptable to the insurance regulatory
authorities having jurisdiction over the Company's reserves in an
amount equal to the Ultimate Net Losses including IBNR, as shown in
the statement prepared by the Company (hereinafter referred to as the
"Company's Obligations").
(b) The Letter of Credit shall be issued for a period of not less than
one (1) year and shall automatically extended for one (1) year from
its date of expiration or any future expiration date unless thirty
(30) days prior to any expiration date the issuing bank shall notify
the Company by certified or registered mail that the issuing bank
elects not to consider the Letter of Credit extended for any
additional period.
(c) The Subscribing Reinsurer and Company agree that the Letters of
Credit or Trust Account provided by the Subscribing Reinsurer pursuant
to the provisions of this Agreement may be drawn upon at any time,
notwithstanding any other provision of this Agreement, and be utilized
by the Company or any successor, by operation of law, of the Company
including, without limitation, any liquidator, rehabilitator, receiver
or conservator of the Company for the following purposes, unless
otherwise provided for in the separate Trust Agreement.
2.
(i) to reimburse the Company for the Company's Obligations, the
payment of which is due under the terms of this Agreement
and which has not been otherwise paid;
(ii) to make refund of any sum which is in excess of the actual
amount required to pay the Company's Obligations under this
Agreement; or
(iii) to fund an account with the Company for the Company's
Obligations. Such cash deposit shall be held in an interest
bearing account separate from the Company's other assets,
and interest thereon not in excess of the prime rate shall
accrue to the benefit of the Subscribing Reinsurer.
(c) In the event the amount drawn by the Company on any Letter of
Credit or Trust Account is in excess of the actual amount required for
(i) or (iii), the Company shall promptly return to the Subscribing
Reinsurer the excess amount so drawn. All of the foregoing shall be
applied without diminution because of insolvency on the part of the
Company or the Subscribing Reinsurer.
(d) The issuing trustee bank shall have no responsibility whatsoever
in connection with the priority of withdrawals made by the Company or
the disposition of funds withdrawn, except to ensure that withdrawals
are made only upon the order of properly authorized representatives of
the Company.
(e) At quarterly intervals, or more frequently as agreed, the Company
shall prepare a specific statement of the Company's Obligations, for
the sole purpose of amending the Letter of Credit or adjusting the
Trust Account balance, in the following manner:
(i) If the statement shows that the Company's Obligations exceed
the balance of credit of the Letter of Credit or market
value of the eligible assets held in the Trust Account as of
the statement date, the Subscribing Reinsurer shall, within
thirty (30) days after receipt of notice of such excess,
secure delivery to the Company of an amendment of the Letter
of Credit by the amount of, or adding eligible assets to the
Trust Account with a market value equal to, such difference.
(ii) If, however, the statement shows that the Company's
Obligations are less than the balance of credit or market
value of the eligible assets held in the Trust Account as of
the statement date, the Reinsured shall, within thirty (30)
days after receipt of written request from the Subscribing
Reinsurer, release such excess credit or assets by agreement
to secure an amendment to the Letter of Credit reducing the
amount of credit available by the amount of such excess or
withdraw assets from the Trust Account with such excess
value and delivering them to the Reinsurer.
3.
VII. As to this Interest and Liabilities Agreement and this Subscribing
Reinsurer, the section of the Reinsurance Agreement entitled "Reports and
Remittances" is amended as to section (e) to read as follows:
e) A report detailing items a, b, c, and d, above.
VIII. As to this Interest and Liabilities Agreement and the Reinsurance
Agreement and this Subscribing Reinsurer, the section entitled "Taxes" of the
Reinsurance Agreement is amended to read in its entirety as follows:
TAXES
-----
a) The Company will pay all taxes on premiums reported to the
Subscribing Reinsurer.
b) The Subscribing Reinsurer has agreed to allow for the purpose of
paying the Federal Excise Tax the applicable percentage of the premium
payable hereon (as imposed under Section 4371 of the Internal Revenue
Code) to the extent such premium is subject to the Federal Excise Tax.
c) In the event of any return of premium becoming due hereunder, the
Subscribing Reinsurer will deduct the applicable percentage from the
return premium payable hereon and the Company or its agent should take
steps to recover the tax from the United State Government.
IX. Except as otherwise provided in this Interests and Liabilities Agreement,
all of the terms of the Reinsurance Agreement will remain unamended and shall
continue to be, and shall remain, in full force and effect in accordance with
their respective terms. In the event of any conflict or inconsistency between
this Interest and Liabilities Agreement and the Reinsurance Agreement, this
Interests and Liabilities Agreement will prevail.
IN WITNESS WHEREOF, the parties have caused this Amendment Number 1 to the
Reinsurance Agreement to be executed by their duly authorized representatives.
The insurance subsidiaries of XXXX & XXXXXXX HOLDINGS, INC., including but not
limited to the following entities:
UNITED STATES FIRE INSURANCE COMPANY, New York
XXXX AND XXXXXXX INSURANCE COMPANY, New Jersey
THE NORTH RIVER INSURANCE COMPANY, New Jersey
XXXX & XXXXXXX UNDERWRITERS CO. OF OHIO, Ohio
XXXX & XXXXXXX INDEMNITY COMPANY, New York
Signature: /s/ XXXXXXXX XxXXXXXX Title: Vice President
------------------------------------ -----------------------------------
Attest: Date: May 17, 2002
------------------------------------ -----------------------------------
4.
ORC RE LIMITED
Signature: /s/ Title: General Manager
------------------------------------ -----------------------------------
Attest: /s/ Date: May 16, 2002
------------------------------------ -----------------------------------
5.
