EXHIBIT 10.20
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Liberty American Insurance Company
Pinellas Park, Florida
Mobile USA Insurance Company
Pinellas Park, Florida
and
any and all other companies which are now
or may hereafter become member companies of
Liberty American Insurance Group, Inc.
Hereinafter referred to collectively as the "Company"
$5,000,000 EXCESS $190,000,000
FLORIDA ONLY EXCESS CATASTROPHE REINSURANCE CONTRACT
EFFECTIVE: SEPTEMBER 10, 2004
REINSURANCE CONFIRMATION
BUSINESS REINSURED
Business classified by the Company as Property business. In force, new and
renewal business.
TERM
Effective September 10, 2004, with respect to losses arising out of loss
occurrences commencing on or after that date, through May 31, 2005 both days
inclusive. Extended expiration in the event a loss occurrence is in progress at
expiration.
TERRITORY
State of Florida and extra territorial limits of the Company's policies.
EXCLUSIONS
See attached.
RETENTION AND LIMIT
100% of $5,000,000 ultimate net loss each loss occurrence excess of $190,000,000
ultimate net loss each loss occurrence.
No claim shall be made as respects any one loss occurrence unless at least two
risks insured or reinsured by the Company are involved in such loss occurrence.
For purposes hereof, the Company shall be the sole judge of what constitutes one
risk.
FLORIDA HURRICANE CAT FUND
FHCF inuring to Catastrophe Reinsurance Program. Recoveries deemed in place,
however, the full payout limit may be reduced by prior loss occurrences for
which recoveries were made from the FHCF.
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OTHER REINSURANCE
The Company shall carry a 15% quota share reinsurance of its direct personal
lines business, recoveries under which to inure to the benefit of this Contract,
or so deemed.
DEFINITIONS
UNL includes LAE. See attached.
LOSS OCCURRENCE
No reinstatement same wind event. See attached.
REINSTATEMENT
One full reinstatement during the contract year, with additional premium
calculated 100% as to time and pro rata as to amount.
LOSS NOTICES AND SETTLEMENTS
Individual loss notices and settlements.
PREMIUM
$175,000 payable in installments of $58,333.33 on September 10, 2004 and
December 1, 2004 and $58,333.34 on March 1, 2005.
LATE PAYMENTS
See attached. Interest penalty based on 6-month United States Treasury Bill
Rate. Interest penalty of less than $100 shall be waived.
OTHER PROVISIONS
Salvage and Subrogation
Offset (BRMA 36D)
Access to Records (BRMA 1D)
Liability of the Reinsurer
Net Retained Lines (BRMA 32E)
Errors and Omissions (BRMA 14F)
Currency (BRMA 12A)
Taxes (BRMA 50C)
Federal Excise Tax (BRMA 17A)
Reserve Requirements (Evergreen LOC for unearned premium, outstanding
losses/LAE, including all case reserves plus any reasonable amount estimated to
be unreported from known loss occurrences)
Insolvency
Arbitration
Service of Suit
Agency Agreement
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Governing Law (State of Florida)
Confidentiality
Severability
Intermediary (BRMA 23A)
ALLOCATION OF FINAL SHARES
The Company shall have the right to review all authorizations and the full
authority to allocate final shares. Such decisions will be at the sole
discretion of the Company and may result in other than a "proportional signdown"
of authorizations. As respects signdowns within the London marketplace, the
final allocation of shares to individual companies or syndicates may not be
proportionate to the original authorizations.
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EXCLUSIONS
This Contract does not apply to and specifically excludes the following:
1. Financial Guarantee and Insolvency.
2. Nuclear risks as defined in the "Nuclear Incident Exclusion Clause -
Physical Damage - Reinsurance (U.S.A.)" and "Nuclear Incident Exclusion
Clause - Physical Damage - Reinsurance (Canada)" attached to and forming
part of this Contract.
3. Loss or damage caused by or resulting from war, invasion, hostilities,
acts of foreign enemies, civil war, rebellion, insurrection, military or
usurped power, or martial law or confiscation by order of any government
or public authority, but this exclusion shall not apply to loss or damage
covered under a standard policy with a standard War Exclusion Clause.
4. Loss or liability excluded under the provisions of the "Pools,
Associations and Syndicates Exclusion Clause" attached to and forming part
of this Contract.
5. 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, however denominated, established or governed, which 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.
6. Losses in respect of overhead transmission and distribution lines and
their supporting structures, other than those on or within 300 meters (or
1,000 feet) of the insured premises. It is understood and agreed that
public utilities extension and/or suppliers extension and/or contingent
business interruption coverages are not subject to this exclusion,
provided that these are not part of a transmitters' or distributors'
Policy.
7. Accident and Health, Casualty, Fidelity and/or Surety business.
8. Pollution and seepage coverages excluded under the provisions of the
"Pollution and Seepage Exclusion Clause (BRMA 39A)" attached to and
forming part of this Contract.
9. Notwithstanding any other provision to the contrary within this Contract
or any amendment thereto, it is agreed that this Contract excludes loss,
damage, cost or expense directly or indirectly caused by, contributed to
by, resulting from, or arising out of or in connection with any act of
terrorism, as defined herein, regardless of any other cause or event
contributing concurrently or in any other sequence to the loss.
An "act of terrorism" includes any act, or preparation in respect of
action, or threat of action, designed to influence the government de jure
or de facto of any nation or any political division thereof, or in pursuit
of political, religious, ideological, or similar purposes to intimidate
the public or a section of the public of any nation by any person or
group(s) of persons, whether acting alone or on behalf of or in connection
with any organization(s) or government(s) de jure or de facto, and which:
a. Involves violence against one or more persons; or
b. Involves damage to property; or
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c. Endangers life other than that of the person committing the action;
or
d. Creates a risk to health or safety of the public or a section of the
public; or
e. Is designed to interfere with or to disrupt an electronic system.
This Contract also excludes loss, damage, cost or expense directly or
indirectly caused by, contributed to by, resulting from, or arising out of
or in connection with any action in controlling, preventing, suppressing,
retaliating against or responding to any act of terrorism.
Notwithstanding the above and subject otherwise to the terms, conditions,
and limitations of this Contract, in respect only of personal lines this
Contract will pay actual loss or damage (but not related cost or expense)
caused by any act of terrorism provided such act is not directly or
indirectly caused by, contributed to by, resulting from, or arising out of
or in connection with biological, chemical, or nuclear pollution or
contamination.
10. Loss or liability in any way or to any extent arising out of the actual
or alleged presence or actual, alleged or threatened presence of fungi
including, but not limited to, mold, mildew, mycotoxins, microbial
volatile organic compounds or other "microbial contamination". This
includes:
a. Any supervision, instruction, recommendations, warnings or advice
given or which should have been given in connection with the above;
and
b. Any obligation to share damages with or repay someone else who must
pay damages because of such injury or damage.
For purposes of this exclusion, "microbial contamination" means any
contamination, either airborne or surface, which arises out of or is
related to the presence of fungi, mold, mildew, mycotoxins, microbial
volatile organic compounds or spores, including, without limitation,
Penicillium, Aspergillus, Fusarium, Aspergillus Flavus and Stachybotrys
chartarum.
Losses resulting from the above causes do not in and of themselves
constitute an event unless arising out of one or more of the following
perils, in which case this exclusion does not apply:
Fire, lightning, explosion, aircraft or vehicle impact, falling
objects, windstorm, hail, tornado, cyclone, hurricane, earthquake,
volcano, tsunami, flood, freeze or weight of snow.
Notice of any claims for mold-related losses must be given by the Company
to the Reinsurer, in writing, within 24 months after the commencement date
of the loss occurrence to which such claims relate.
11. Loss or liability excluded under the provisions of the "Electronic Data
Endorsement B" (NMA 2915) attached to and forming part of this Contract.
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DEFINITIONS
A. "Ultimate net loss" as used herein is defined as the sum or sums (including
loss in excess of policy limits, extra contractual obligations and loss
adjustment expense, as hereinafter defined) paid or payable by the Company in
settlement of claims and in satisfaction of judgments rendered on account of
such claims, after deduction of all salvage, all recoveries and all claims on
inuring insurance or reinsurance, whether collectible or not. Nothing herein
shall be construed to mean that losses under this Contract are not
recoverable until the Company's ultimate net loss has been ascertained.
B. "Loss in excess of policy limits" and "extra contractual obligations" as used
herein shall be defined as follows:
1. "Loss in excess of policy limits" shall mean 90.0% of any amount paid or
payable by the Company in excess of its policy limits, but otherwise
within the terms of its policy, such loss in excess of the Company's
policy limits having been incurred because of, but not limited to, failure
by the Company to settle within the policy limits or by reason of the
Company's 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 an action.
2. "Extra contractual obligations" shall mean 90.0% of any punitive,
exemplary, compensatory or consequential damages paid or payable by the
Company, not covered by any other provision of this Contract and which
arise from the handling of any claim on business subject to this Contract,
such liabilities arising because of, but not limited to, failure by the
Company to settle within the policy limits or by reason of the Company's
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 an action. An extra
contractual obligation shall be deemed, in all circumstances, to have
occurred on the same date as the loss covered or alleged to be covered
under the policy.
Notwithstanding anything stated herein, the amount included in the ultimate
net loss for any one loss occurrence as respects loss in excess of policy
limits and extra contractual obligations shall not exceed 25.0% of the
Company's indemnity loss hereunder arising out of that loss occurrence.
Notwithstanding anything stated herein, this Contract shall not apply to any
loss in excess of policy limits or any extra contractual obligation incurred
by the Company as a result of any fraudulent and/or criminal act by any
officer or director of the 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.
If any provision of this paragraph B shall be rendered illegal or
unenforceable by the laws, regulations or public policy of any state, such
provision shall be considered void in such state, but this shall not affect
the validity or enforceability of any other provision of this Contract or the
enforceability of such provision in any other jurisdiction.
C. "Loss adjustment expense" as used herein shall mean expenses assignable to
the investigation, appraisal, adjustment, settlement, litigation, defense
and/or appeal of specific claims, regardless of how such expenses are
classified for statutory reporting purposes. Loss adjustment expense shall
include, but not be limited to, declaratory judgments, interest on judgments,
expenses of outside adjusters, and a pro rata share of the salaries and
expenses of the Company's field employees according to the time occupied
adjusting such losses and expenses of the Company's officials
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incurred in connection with the losses, but shall not include office expenses
or salaries of the Company's regular employees.
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LATE PAYMENTS
A. The provisions of this Article shall not be implemented unless specifically
invoked, in writing, by one of the parties to this Contract.
B. In the event any premium, loss or other payment due either party is not
received by the intermediary named herein (hereinafter referred to as the
"Intermediary") by the payment due date, the party to whom payment is due
may, by notifying the Intermediary in writing, require the debtor party to
pay, and the debtor party agrees to pay, an interest penalty on the amount
past due calculated for each such payment on the last business day of each
month as follows:
1. The number of full days which have expired since the due date or the last
monthly calculation, whichever the lesser, times
2. 1/365ths of the six-month United States Treasury Bill Rate as quoted in
The Wall Street Journal on the first business day of the month for which
the calculation is made; times
3. The amount past due, including accrued interest.
It is agreed that interest shall accumulate until payment of the original
amount due plus interest penalties have been received by the Intermediary.
C. The establishment of the due date shall, for purposes of this Article, be
determined as follows:
1. As respects the payment of routine deposits and premiums due the
Reinsurer, the due date shall be as provided for in the applicable section
of this Contract. In the event a due date is not specifically stated for a
given payment, it shall be deemed due 30 days after the date of
transmittal by the Intermediary of the initial billing for each such
payment.
2. Any claim or loss payment due the Company hereunder shall be deemed due 10
business days after the proof of loss or demand for payment is transmitted
to the Reinsurer. If such loss or claim payment is not received within the
10 days, interest will accrue on the payment or amount overdue in
accordance with paragraph B above, from the date the proof of loss or
demand for payment was transmitted to the Reinsurer.
3. As respects any payment, adjustment or return due either party not
otherwise provided for in subparagraphs 1 and 2 of paragraph C above, the
due date shall be as provided for in the applicable section of this
Contract. In the event a due date is not specifically stated for a given
payment, it shall be deemed due 10 business days following transmittal of
written notification that the provisions of this Article have been
invoked.
For purposes of interest calculations only, amounts due hereunder shall be
deemed paid upon receipt by the Intermediary.
D. Nothing herein shall be construed as limiting or prohibiting a subscribing
reinsurer from contesting the validity of any claim, or from participating in
the defense of any claim or suit, or prohibiting either party from contesting
the validity of any payment or from initiating any arbitration or other
proceeding in accordance with the provisions of this Contract. If the debtor
party prevails in an arbitration or other proceeding, then any interest
penalties due hereunder on the amount in dispute shall be null and void. If
the debtor party loses in such proceeding, then the interest penalty on the
amount determined to be due hereunder shall be calculated in accordance with
the provisions set forth above unless otherwise determined by such
proceedings. If a debtor party advances payment of any amount it is
contesting, and proves to be correct in its contestation, either in whole or
in part, the other party shall reimburse the debtor party for any such excess
payment made plus interest on the excess amount calculated in accordance with
this Article.
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E. Interest penalties arising out of the application of this Article that are
$100 or less from any party shall be waived unless there is a pattern of late
payments consisting of three or more items over the course of any 12-month
period.
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NON BRMA ARTICLES
LOSS OCCURRENCE
A. The term "loss occurrence" shall mean the sum of all individual losses
directly occasioned by any one disaster, accident or loss or series of
disasters, accidents or losses arising out of one event which occurs within
the area of one state of the United States or province of Canada and states
or provinces contiguous thereto and to one another. However, the duration and
extent of any one "loss occurrence" shall be limited to all individual losses
sustained by the Company occurring during any period of 168 consecutive hours
arising out of and directly occasioned by the same event, except that the
term "loss occurrence" shall be further defined as follows:
1. As regards windstorm, hail, tornado, hurricane, cyclone, including ensuing
collapse and water damage, all individual losses sustained by the Company
occurring during any period of 72 consecutive hours arising out of and
directly occasioned by the same event. However, the event need not be
limited to one state or province or states or provinces contiguous
thereto.
2. As regards riot, riot attending a strike, civil commotion, vandalism and
malicious mischief, all individual losses sustained by the Company
occurring during any period of 72 consecutive hours within the area of one
municipality or county and the municipalities or counties contiguous
thereto arising out of and directly occasioned by the same event. The
maximum duration of 72 consecutive hours may be extended in respect of
individual losses which occur beyond such 72 consecutive hours during the
continued occupation of an insured's premises by strikers, provided such
occupation commenced during the aforesaid period.
3. As regards earthquake (the epicenter of which need not necessarily be
within the territorial confines referred to in the introductory portion of
this paragraph) and fire following directly occasioned by the earthquake,
only those individual fire losses which commence during the period of 168
consecutive hours may be included in the Company's "loss occurrence."
4. As regards "freeze," only individual losses directly occasioned by
collapse, breakage of glass and water damage (caused by bursting frozen
pipes and tanks) may be included in the Company's "loss occurrence."
5. As regards firestorms, brush fires, and other fires or series of fires,
irrespective of origin (except as provided in subparagraphs 2 and 3
above), which spread through trees, grassland or other vegetation, all
individual losses sustained by the Company which occur during any period
of 168 consecutive hours within a 100-mile radius of any one fixed point
selected by the Company may be included in the Company's "loss
occurrence." However, an individual loss subject to this subparagraph
cannot be included in more than one "loss occurrence."
B. For all those "loss occurrences," other than those referred to in
subparagraph 2 of paragraph A above, the Company may choose the date and time
when any such period of consecutive hours commences, provided that it is not
earlier than the date and time of the occurrence of the first recorded
individual loss sustained by the Company arising out of that disaster,
accident or loss, and provided that only one such period of 168 consecutive
hours shall apply with respect to one event, except for any "loss occurrence"
referred to in subparagraph 1 of paragraph A above where only one such period
of 72 consecutive hours shall apply with respect to one event, regardless of
the duration of the event.
C. As respects those "loss occurrences" referred to in subparagraph 2 of
paragraph A above, if the disaster, accident or loss occasioned by the event
is of greater duration than 72 consecutive hours, then the Company may divide
that disaster, accident or loss into two or more "loss occurrences," provided
no two periods overlap and no individual loss is included in more than one
such period and
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provided that no period commences earlier than the date and time of the
occurrence of the first recorded individual loss sustained by the Company
arising out of that disaster, accident or loss.
D. No individual losses occasioned by an event that would be covered by 72 hours
clauses may be included in any "loss occurrence" claimed under the 168 hours
provision.
FLORIDA HURRICANE CATASTROPHE FUND
A. Any loss reimbursement paid or payable to the Company under the Florida
Hurricane Catastrophe Fund (FHCF) as a result of loss occurrences commencing
during the term of this Contract shall inure to the benefit of this Contract.
Further, any FHCF loss reimbursement shall be deemed to be paid to the
Company in accordance with the reimbursement contract between the Company and
the State Board of Administration of the State of Florida at the full payout
level set forth therein and will be deemed not to be reduced by any reduction
or exhaustion of the FHCF's claims paying capacity.
B. Prior to the determination of the Company's FHCF retention and payout, if
any, under the reimbursement contract, the Reinsurer's liability hereunder
will be determined provisionally based on the projected payout, determined in
accordance with the provisions of the reimbursement contract. Following
determination of the payout under the reimbursement contract, the ultimate
net loss under this Contract will be recalculated. If, as a result of such
calculation, the loss to the Reinsurer in any one loss occurrence is less
than the amount previously paid by the Reinsurer, the Company shall promptly
remit the difference to the Reinsurer. If the loss to the Reinsurer in any
one loss occurrence is greater than the amount previously paid by the
Reinsurer, the Reinsurer shall promptly remit the difference to the Company.
C. If an FHCF reimbursement amount is based on the Company's losses in more than
one loss occurrence and the FHCF does not designate the amount allocable to
each loss occurrence, the FHCF reimbursement amount shall be prorated in the
proportion that the Company's losses in each loss occurrence bear to the
Company's total losses arising out of all loss occurrences to which the FHCF
reimbursement applies.
D. Any reimbursement premiums or emergency assessment paid by the Company under
the FHCF shall be deemed to be premiums paid for inuring reinsurance.
LOSS NOTICES AND SETTLEMENTS
A. Whenever losses sustained by the Company appear likely to result in a claim
hereunder, the Company shall notify the Reinsurer, and the Reinsurer shall
have the right to participate in the adjustment of such losses at its own
expense.
B. All loss settlements made by the Company, provided they are within the terms
of this Contract, shall be binding upon the Reinsurer, and the Reinsurer
agrees to pay all amounts for which it may be liable upon receipt of
reasonable evidence of the amount paid (or scheduled to be paid) by the
Company.
SALVAGE AND SUBROGATION
The Reinsurer shall be credited with salvage (i.e., reimbursement obtained or
recovery made by the Company, less the actual cost, excluding salaries of
officials and employees of the Company and sums paid to attorneys as retainer,
of obtaining such reimbursement or making such recovery) on account of claims
and settlements involving reinsurance hereunder. Salvage thereon shall always be
used to reimburse the excess carriers in the reverse order of their priority
according to their participation before being used in any way to reimburse the
Company for its primary loss. The Company hereby agrees to
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enforce its rights to salvage or subrogation relating to any loss, a part of
which loss was sustained by the Reinsurer, and to prosecute all claims arising
out of such rights.
LIABILITY OF THE REINSURER
A. The liability of the Reinsurer shall follow that of the Company in every case
and be subject in all respects to all the general and specific stipulations,
clauses, waivers and modifications of the 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
Contract.
B. Nothing herein shall in any manner create any obligations or establish any
rights against the Reinsurer in favor of any third party or any persons not
parties to this Contract.
RESERVE REQUIREMENTS
A. If the Reinsurer is unauthorized in any state of the United States of America
or the District of Columbia, the Reinsurer agrees to fund its share of the
Company's ceded United States unearned premium and outstanding loss and loss
adjustment expense reserves (including all case reserves plus any reasonable
amount estimated to be unreported from known loss occurrences) by:
1. Clean, irrevocable and unconditional letters of credit issued and
confirmed, if confirmation is required by the insurance regulatory
authorities involved, by a bank or banks meeting the NAIC Securities
Valuation Office credit standards for issuers of letters of credit and
acceptable to said insurance regulatory authorities; and/or
2. Escrow accounts for the benefit of the Company; and/or
3. Cash advances;
if, without such funding, a penalty would accrue to the Company on any
financial statement it is required to file with the insurance regulatory
authorities involved. The Reinsurer, at its sole option, may fund in other
than cash if its method and form of funding are acceptable to the insurance
regulatory authorities involved.
B. If the Reinsurer is unauthorized in any province or jurisdiction of Canada,
the Reinsurer agrees to fund 115% of its share of the Company's ceded
Canadian unearned premium and outstanding loss and loss adjustment expense
reserves (including all case reserves plus any reasonable amount estimated to
be unreported from known loss occurrences) by:
1. A clean, irrevocable and unconditional letter of credit issued and
confirmed, if confirmation is required by the insurance regulatory
authorities involved, by a Canadian bank or banks meeting the NAIC
Securities Valuation Office credit standards for issuers of letters of
credit and acceptable to said insurance regulatory authorities, for no
more than 15/115ths of the total funding required; and/or
2. Cash advances for the remaining balance of the funding required;
if, without such funding, a penalty would accrue to the Company on any
financial statement it is required to file with the insurance regulatory
authorities involved.
C. With regard to funding in whole or in part by letters of credit, it is agreed
that each letter of credit will be in a form acceptable to insurance
regulatory authorities involved, will be issued for a term of at least one
year and will include an "evergreen clause," which automatically extends the
term for at least one additional year at each expiration date unless written
notice of non-renewal is given to the
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Company not less than 30 days prior to said expiration date. The Company and
the Reinsurer further agree, notwithstanding anything to the contrary in this
Contract, that said letters of credit may be drawn upon by the Company or its
successors in interest at any time, without diminution because of the
insolvency of the Company or the Reinsurer, but only for one or more of the
following purposes:
1. To reimburse itself for the Reinsurer's share of unearned premiums
returned to insureds on account of policy cancellations, unless paid in
cash by the Reinsurer;
2. To reimburse itself for the Reinsurer's share of losses and/or loss
adjustment expense paid under the terms of policies reinsured hereunder,
unless paid in cash by the Reinsurer;
3. To reimburse itself for the Reinsurer's share of any other amounts claimed
to be due hereunder, unless paid in cash by the Reinsurer;
4. To fund a cash account in an amount equal to the Reinsurer's share of any
ceded unearned premium and/or outstanding loss and loss adjustment expense
reserves (including all case reserves plus any reasonable amount estimated
to be unreported from known loss occurrences) funded by means of a letter
of credit which is under non-renewal notice, if said letter of credit has
not been renewed or replaced by the Reinsurer 10 days prior to its
expiration date;
5. To refund to the Reinsurer any sum in excess of the actual amount required
to fund the Reinsurer's share of the Company's ceded unearned premium
and/or outstanding loss and loss adjustment expense reserves (including
all case reserves plus any reasonable amount estimated to be unreported
from known loss occurrences), if so requested by the Reinsurer.
In the event the amount drawn by the Company on any letter of credit is in
excess of the actual amount required for C(1), C(2) or C(4), or in the case
of C(3), the actual amount determined to be due, the Company shall promptly
return to the Reinsurer the excess amount so drawn.
INSOLVENCY
A. In the event of the insolvency of one or more of the reinsured companies,
this reinsurance shall be payable directly to the company or to its
liquidator, receiver, conservator or statutory successor on the basis of the
liability of the company without diminution because of the insolvency of the
company or because the liquidator, receiver, conservator or statutory
successor of the company has failed to pay all or a portion of any claim. It
is agreed, however, that the liquidator, receiver, conservator or statutory
successor of the company shall give written notice to the Reinsurer of the
pendency of a claim against the company indicating the policy or bond
reinsured which claim would involve a possible liability on the part of the
Reinsurer within a reasonable time after such claim is filed in the
conservation or liquidation proceeding or in the receivership, and that
during the pendency of such claim, the Reinsurer may investigate such claim
and interpose, at its own expense, in the proceeding where such claim is to
be adjudicated, any defense or defenses that it may deem available to the
company or its liquidator, receiver, conservator or statutory successor. The
expense thus incurred by the Reinsurer shall be chargeable, subject to the
approval of the Court, against the company as part of the expense of
conservation or liquidation to the extent of a pro rata share of the benefit
which may accrue to the company solely as a result of the defense undertaken
by the Reinsurer.
B. 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 shall be
apportioned in accordance with the terms of this Contract as though such
expense had been incurred by the company.
C. It is further understood and agreed that, in the event of the insolvency of
one or more of the reinsured companies, the reinsurance under this Contract
shall be payable directly by the Reinsurer
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to the company or to its liquidator, receiver or statutory successor, except
as provided by Section 4118(a) of the New York Insurance Law or except (1)
where this Contract specifically provides another payee of such reinsurance
in the event of the insolvency of the company or (2) where the Reinsurer with
the consent of the direct insured or insureds has assumed such policy
obligations of the company as direct obligations of the Reinsurer to the
payees under such policies and in substitution for the obligations of the
company to such payees.
ARBITRATION
A. As a condition precedent to any right of action hereunder, any dispute or
difference between the Company and any Reinsurer relating to the
interpretation or performance of this Contract, including its formation or
validity, or any transaction under this Contract, whether arising before or
after termination, shall be submitted to arbitration.
B. If more than one reinsurer is involved in the same dispute, all such
reinsurers shall constitute and act as one party for purposes of this Article
provided that communication shall be made by the Company to each of the
reinsurers constituting the one party, and provided, however, that nothing
therein 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 Reinsurer under the terms of this Contract from several to joint.
C. Upon written request of any party, each party shall choose an arbitrator and
the two chosen shall select a third arbitrator. If either party refuses or
neglects to appoint an arbitrator within 30 days after receipt of the written
request for arbitration, the requesting party may appoint a second
arbitrator. If the two arbitrators fail to agree on the selection of a third
arbitrator within 30 days of their appointment, the Company shall petition
the American Arbitration Association to appoint the third arbitrator. If the
American Arbitration Association fails to appoint the third arbitrator within
30 days after it has been requested to do so, either party may request a
justice of a court of general jurisdiction of the state in which the
arbitration is to be held to appoint the third arbitrator. All arbitrators
shall be active or retired officers of insurance or reinsurance companies, or
Lloyd's London Underwriters, and disinterested in the outcome of the
arbitration. Each party shall submit its case to the arbitrators within 30
days of the appointment of the third arbitrator.
D. The parties hereby waive all objections to the method of selection of the
arbitrators, it being the intention of both sides that all the arbitrators be
chosen from those submitted by the parties.
E. The arbitrators shall have the power to determine all procedural rules for
the holding of the arbitration including but not limited to inspection of
documents, examination of witnesses and any other matter relating to the
conduct of the arbitration. The arbitrators shall interpret this Contract as
an honorable engagement and not as merely a legal obligation; they are
relieved of all judicial formalities and may abstain from following the
strict rules of law. The arbitrators may award interest and costs. Each party
shall bear the expense of its own arbitrator and shall share equally with the
other party the expenses of the third arbitrator and of the arbitration.
F. The decision in writing of the majority of the arbitrators shall be final and
binding upon both parties. Judgment may be entered upon the final decision of
the arbitrators in any court having jurisdiction. The arbitration shall take
place in Pinellas Park, Florida, unless otherwise mutually agreed between the
Company and the Reinsurer.
G. This Article shall remain in full force and effect in the event any other
provision of this Contract shall be found invalid or non-binding.
H. 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.
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AGENCY AGREEMENT
If more than one reinsured company is named as a party to this Contract, the
first named company shall be deemed the agent of the other reinsured companies
for purposes of sending or receiving notices required by the terms and
conditions of this Contract, and for purposes of remitting or receiving any
monies due any party.
GOVERNING LAW
This Contract shall be governed as to performance, administration and
interpretation by the laws of the State of Florida exclusive of the rules with
respect to conflicts of law, except as to rules with respect to credit for
reinsurance in which case the applicable rules of all states shall apply.
CONFIDENTIALITY
The Reinsurer, except with the express prior written consent of the Company,
shall not directly or indirectly, communicate, disclose or divulge to any third
party, any knowledge or information that may be acquired either directly or
indirectly as a result of the inspection of the Company's books, records and
papers. The restrictions as outlined in this Article shall not apply to
communication or disclosures that the Reinsurer is required to make to its
statutory auditors, retrocessionaires, legal counsel, arbitrators involved in
any arbitration procedures under this Contract or disclosures required upon
subpoena or other dully-issued order of a court or other governmental agency or
regulatory authority.
SEVERABILITY
If any provision of this Contract should be invalid under applicable laws, the
latter shall control but only to the extent of the conflict without affecting
the remaining provisions of this Contract.
SERVICE OF SUIT
(Applicable if the Reinsurer is not domiciled in the United States of America,
and/or is not authorized in any State, Territory or District of the United
States where authorization is required by insurance regulatory authorities. This
Article is not intended to conflict with or override the parties' obligations to
arbitrate their disputes in accordance with the Arbitration Article)
A. It is agreed that in the event the Reinsurer fails to pay any amount claimed
to be due hereunder, the Reinsurer, at the request of the Company, will
submit to the jurisdiction of any court of competent jurisdiction within the
United States. Nothing in this Article constitutes or should be understood to
constitute a waiver of the Reinsurer's rights to commence an action in any
court of competent jurisdiction in the United States, to remove an action to
a United States District Court, or to seek a transfer of a case to another
court as permitted by the laws of the United States or of any state in the
United States.
B. Further, pursuant to any statute of any state, territory or district of
the United States which makes provision therefore, the Reinsurer hereby
designates the party named in its Interests and Liabilities Agreement, or
if no party is named therein, the Superintendent, Commissioner or Director
of Insurance or other officer specified for that purpose in the statute,
or his successor or successors in office, as its true and lawful attorney
upon whom may be served any lawful process in any action, suit or
proceeding instituted by or on behalf of the Company or any beneficiary
hereunder arising out of this Contract.
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NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL DAMAGE - REINSURANCE
(U.S.A.)
1. This Reinsurance does not cover any loss or liability accruing to the
Reassured, directly or indirectly and whether as Insurer or Reinsurer, from
any Pool of Insurers or Reinsurers formed for the purpose of covering Atomic
or Nuclear Energy risks.
2. Without in any way restricting the operation of paragraph (1) of this Clause,
this Reinsurance does not cover any loss or liability accruing to the
Reassured, directly or indirectly and whether as Insurer or Reinsurer, from
any insurance against Physical Damage (including business interruption or
consequential loss arising out of such Physical Damage) to:
I. Nuclear reactor power plants including all auxiliary property on the
site, or
II. Any other nuclear reactor installation, including laboratories handling
radioactive materials in connection with reactor installations, and
"critical facilities" as such, or
III. Installations for fabricating complete fuel elements or for processing
substantial quantities of "special nuclear material," and for
reprocessing, salvaging, chemically separating, storing or disposing of
"spent" nuclear fuel or waste materials, or
IV. Installations other than those listed in paragraph (2) III above using
substantial quantities of radioactive isotopes or other products of
nuclear fission.
3. Without in any way restricting the operations of paragraphs (1) and (2)
hereof, this Reinsurance does not cover any loss or liability by radioactive
contamination accruing to the Reassured, directly or indirectly, and whether
as Insurer or Reinsurer, from any insurance on property which is on the same
site as a nuclear reactor power plant or other nuclear installation and which
normally would be insured therewith except that this paragraph (3) shall not
operate
(a) where Reassured does not have knowledge of such nuclear reactor power
plant or nuclear installation, or
(b) where said insurance contains a provision excluding coverage for damage
to property caused by or resulting from radioactive contamination,
however caused. However on and after 1st January 1960 this sub-paragraph
(b) shall only apply provided the said radioactive contamination
exclusion provision has been approved by the Governmental Authority
having jurisdiction thereof.
4. Without in any way restricting the operations of paragraphs (1), (2) and (3)
hereof, this Reinsurance does not cover any loss or liability by radioactive
contamination accruing to the Reassured, directly or indirectly, and whether
as Insurer or Reinsurer, when such radioactive contamination is a named
hazard specifically insured against.
5. It is understood and agreed that this Clause shall not extend to risks using
radioactive isotopes in any form where the nuclear exposure is not considered
by the Reassured to be the primary hazard.
6. The term "special nuclear material" shall have the meaning given it in the
Atomic Energy Act of 1954 or by any law amendatory thereof.
7. Reassured to be sole judge of what constitutes:
(a) substantial quantities, and
(b) the extent of installation, plant or site.
Note.-Without in any way restricting the operation of paragraph (1) hereof, it
is understood and agreed that
(a) all policies issued by the Reassured on or before 31st December 1957
shall be free from the application of the other provisions of this
Clause until expiry date or 31st December 1960 whichever first occurs
whereupon all the provisions of this Clause shall apply.
Page 16
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(b) with respect to any risk located in Canada policies issued by the
Reassured on or before 31st December 1958 shall be free from the
application of the other provisions of this Clause until expiry date or
31st December 1960 whichever first occurs whereupon all the provisions
of this Clause shall apply.
12/12/57
N.M.A. 1119
BRMA 35B
Page 17
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NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL DAMAGE - REINSURANCE
(CANADA)
1. This Agreement does not cover any loss or liability accruing to the
Reinsured, directly or indirectly, and whether as Insurer or Reinsurer, from
any Pool of Insurers or Reinsurers formed for the purpose of covering Atomic
or Nuclear Energy risks.
2. Without in any way restricting the operation of paragraph 1 of this clause,
this Agreement does not cover any loss or liability accruing to the
Reinsured, directly or indirectly, and whether as Insurer or Reinsurer, from
any insurance against Physical Damage (including business interruption or
consequential loss arising out of such Physical Damage) to:
(a) nuclear reactor power plants including all auxiliary property on the
site, or
(b) any other nuclear reactor installation, including laboratories handling
radioactive materials in connection with reactor installations, and
critical facilities as such, or
(c) installations for fabricating complete fuel elements or for processing
substantial quantities of prescribed substances, and for reprocessing,
salvaging, chemically separating, storing or disposing of spent nuclear
fuel or waste materials, or
(d) installations other than those listed in (c) above using substantial
quantities of radioactive isotopes or other products of nuclear fission.
3. Without in any way restricting the operation of paragraphs 1 and 2 of this
clause, this Agreement does not cover any loss or liability by radioactive
contamination accruing to the Reinsured, directly or indirectly, and whether
as Insurer or Reinsurer, from any insurance on property which is on the same
site as a nuclear reactor power plant or other nuclear installation and which
normally would be insured therewith, except that this paragraph 3 shall not
operate:
(a) where the Reinsured does not have knowledge of such nuclear reactor power
plant or nuclear installation, or
(b) where the said insurance contains a provision excluding coverage for
damage to property caused by or resulting from radioactive contamination,
however caused.
4. Without in any way restricting the operation of paragraphs 1, 2 and 3 of this
clause, this Agreement does not cover any loss or liability by radioactive
contamination accruing to the Reinsured, directly or indirectly, and whether
as Insurer or Reinsurer, when such radioactive contamination is a named
hazard specifically insured against.
5. This clause shall not extend to risks using radioactive isotopes in any form
where the nuclear exposure is not considered by the Reinsured to be the
primary hazard.
6. The term "prescribed substances" shall have the meaning given to it by the
Atomic Energy Control Act R.S.C. 1985(c), A-16 or by any law amendatory
thereof.
7. Reinsured to be sole judge of what constitutes:
(a) substantial quantities, and
(b) the extent of installation, plant or site.
8. Without in any way restricting the operation of paragraphs 1, 2, 3 and 4 of
this clause, this Agreement does not cover any loss or liability accruing to
the Reinsured, directly or indirectly, and whether as Insurer or Reinsurer,
caused:
Page 18
[BENFIELD LOGO]
(1) by any nuclear incident, as defined in the Nuclear Liability Act or any
other nuclear liability act, law or statute, or any law amendatory
thereof or nuclear explosion, except for ensuing loss or damage which
results directly from fire, lightning or explosion of natural, coal or
manufactured gas;
(2) by contamination by radioactive material.
NOTE: Without in any way restricting the operation of paragraphs 1, 2, 3 and 4
of this clause, paragraph 8 of this clause shall only apply to all
original contracts of the Reinsured, whether new, renewal or replacement,
which become effective on or after December 31, 1992.
N.M.A. 1980 (2/19/93)
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POOLS, ASSOCIATIONS AND SYNDICATES EXCLUSION CLAUSE
SECTION A:
Excluding:
(a) All business derived directly or indirectly from any Pool, Association or
Syndicate which maintains its own reinsurance facilities.
(b) Any Pool or Scheme (whether voluntary or mandatory) formed after March 1,
1968 for the purpose of insuring property whether on a country-wide basis
or in respect of designated areas. This exclusion shall not apply to
so-called Automobile Insurance Plans or other Pools formed to provide
coverage for Automobile Physical Damage.
SECTION B:
It is agreed that business written by the Company for the same perils, which is
known at the time to be insured by, or in excess of underlying amounts placed in
the following Pools, Associations or Syndicates, whether by way of insurance or
reinsurance, is excluded hereunder:
Industrial Risk Insurers,
Associated Factory Mutuals,
Improved Risk Mutuals,
Any Pool, Association or Syndicate formed for the purpose of writing
Oil, Gas or Petro-Chemical Plants and/or Oil or Gas Drilling Rigs,
United States Aircraft Insurance Group,
Canadian Aircraft Insurance Group,
Associated Aviation Underwriters,
American Aviation Underwriters.
Section B does not apply:
(a) Where The Total Insured Value over all interests of the risk in question
is less than $250,000,000.
(b) To interests traditionally underwritten as Inland Marine or stock and/or
contents written on a blanket basis.
(c) To Contingent Business Interruption, except when the Company is aware
that the key location is known at the time to be insured in any Pool,
Association or Syndicate named above, other than as provided for under
Section B(a).
(d) To risks as follows:
Offices, Hotels, Apartments, Hospitals, Educational Establishments, Public
Utilities (other than railroad schedules) and builder's risks on the
classes of risks specified in this subsection (d) only.
Where this clause attaches to Catastrophe Excesses, the following Section C is
added:
SECTION C:
Nevertheless the Reinsurer specifically agrees that liability accruing to the
Company from its participation in residual market mechanisms including but not
limited to:
(1) The following so-called "Coastal Pools":
Alabama Insurance Underwriting Association
Louisiana Insurance Underwriting Association
Mississippi Windstorm Underwriting Association
North Carolina Insurance Underwriting Association
Page 20
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South Carolina Windstorm and Hail Underwriting Association Texas
Windstorm Insurance Association
AND
(2) All "Fair Plan" and "Rural Risk Plan" business
AND
(3) Citizens Property Insurance Corporation ("CPIC") and the California
Earthquake Authority ("CEA")
for all perils otherwise protected hereunder shall not be excluded, except,
however, that this reinsurance does not include any increase in such liability
resulting from:
(i) The inability of any other participant in such "Coastal Pool" and/or
"Fair Plan" and/or "Rural Risk Plan" and/or Residual Market Mechanisms
to meet its liability.
(ii) Any claim against such "Coastal Pool" and/or "Fair Plan" and/or "Rural
Risk Plan" and/or Residual Market Mechanisms, or any participant
therein, including the Company, whether by way of subrogation or
otherwise, brought by or on behalf of any insolvency fund (as defined in
the Insolvency Fund Exclusion Clause incorporated in this Contract).
SECTION D:
(1) Notwithstanding Section C above, in respect of the CEA, where an
assessment is made against the Company by the CEA, the Company may
include in its Ultimate Net Loss only that assessment directly
attributable to each separate loss occurrence covered hereunder. The
Company's initial capital contribution to the CEA shall not be included
in the Ultimate Net Loss.
(2) Notwithstanding Section C above, in respect of CPIC, where an assessment
is made against the Company by CPIC, the maximum loss that the Company
may include in the Ultimate Net Loss in respect of any loss occurrence
hereunder shall not exceed the lesser of:
(a) The Company's assessment from CPIC for the accounting year in which
the loss occurrence commenced, or
(b) The product of the following:
(i) The Company's percentage participation in CPIC for the
accounting year in which the loss occurrence commenced; and
(ii) CPIC's total losses in such loss occurrence.
Any assessments for accounting years subsequent to that in which the loss
occurrence commenced may not be included in the Ultimate Net Loss hereunder.
Moreover, notwithstanding Section C above, in respect of CPIC, the Ultimate Net
Loss hereunder shall not include any monies expended to purchase or retire bonds
as a consequence of being a member of CPIC. For the purposes of this Contract,
the Company may not include in the Ultimate Net Loss any assessment or any
percentage assessment levied by CPIC to meet the obligations of an insolvent
insurer member or other party, or to meet any obligations arising from the
deferment by CPIC of the collection of monies.
- ---------------------------
NOTES: Wherever used herein the terms:
"Company" shall be understood to mean "Company," "Reinsured," "Reassured"
or whatever other term is used in the attached reinsurance
document to designate the reinsured company or companies.
Page 21
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"Agreement" shall be understood to mean "Agreement," "Contract," "Policy"
or whatever other term is used to designate the attached
reinsurance document.
"Reinsurers" shall be understood to mean "Reinsurers," "Underwriters" or
whatever other term is used in the attached reinsurance
document to designate the reinsurer or reinsurers.
Page 22
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POLLUTION AND SEEPAGE EXCLUSION CLAUSE
This Contract excludes loss and/or damage and/or costs and/or expenses arising
from seepage and/or pollution and/or contamination, other than contamination
from smoke. Nevertheless, this exclusion does not preclude payment of the cost
of removing debris of property damaged by a loss otherwise covered hereunder,
subject always to a limit of 25% of the Company's property loss under the
applicable original policy.
Page 23
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ELECTRONIC DATA ENDORSEMENT B
1. ELECTRONIC DATA EXCLUSION
Notwithstanding any provision to the contrary within the Policy or any
endorsement thereto, it is understood and agreed as follows:
(a) This Policy does not insure loss, damage, destruction, distortion,
erasure, corruption or alteration of ELECTRONIC DATA from any cause
whatsoever (including but not limited to COMPUTER VIRUS) or loss of
use, reduction in functionality, cost, expense of whatsoever nature
resulting therefrom, regardless of any other cause or event
contributing concurrently or in any other sequence to the loss.
ELECTRONIC DATA means facts, concepts and information converted to a
form useable for communications, interpretation or processing by
electronic and electromechanical data processing or electronically
controlled equipment and includes programs, software and other coded
instructions for the processing and manipulation of data or the
direction and manipulation of such equipment.
COMPUTER VIRUS means a set of corrupting, harmful or otherwise
unauthorized instructions or code including a set of maliciously
introduced unauthorized instructions or code, programmatic or
otherwise, that propagate themselves through a computer system or
network of whatsoever nature. COMPUTER VIRUS includes but is not
limited to 'Trojan Horses', 'worms' and 'time or logic bombs'.
(b) However, in the event that a peril listed below results from any of
the matters described in paragraph (a) above, this Policy, subject to
all its terms, conditions and exclusions, will cover physical damage
occurring during the Policy period to property insured by this Policy
directly caused by such listed peril.
Listed Perils
Fire
Explosion
2. ELECTRONIC DATA PROCESSING MEDIA VALUATION
Notwithstanding any provision to the contrary within the Policy or any
endorsement thereto, it is understood and agreed as follows:
Should electronic data processing media insured by this Policy suffer
physical loss or damage insured by this Policy, then the basis of valuation
shall be the cost of the blank media plus the costs of copying the ELECTRONIC
DATA from back-up or from originals of a previous generation. These costs
will not include research and engineering nor any costs of recreating,
gathering or assembling such ELECTRONIC DATA. If the media is not repaired,
replaced or restored the basis of valuation shall be the cost of the blank
media. However this Policy does not insure any amount pertaining to the value
of such ELECTRONIC DATA to the Assured or any other party, even if such
ELECTRONIC DATA cannot be recreated, gathered or assembled.
25/01/01
NMA2915
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