R:\96RIL\11766.DOC
Per Event Reinsurance Contract
($250,000 xs $250,000)
Effective: October 1, 1996
issued to
Associated International Insurance Company
Woodland Hills, California
Calvert Insurance Company
Philadelphia, Pennsylvania
Timberline Insurance Company
Eugene, Oregon
through the auspices of
Gryphon Insurance Group, Inc.
New York, New York
E. W. Blanch Co.
Reinsurance Services
3500 West 80th Street
Minneapolis, Minnesota 55431
Per Event Reinsurance Contract
($250,000 xs $250,000)
Effective: October 1, 1996
issued to
Associated International Insurance Company
Woodland Hills, California
Calvert Insurance Company
Philadelphia, Pennsylvania
Timberline Insurance Company
Eugene, Oregon
through the auspices of
Gryphon Insurance Group, Inc.
New York, New York
Reinsurer Participation
Scandinavian Reinsurance Company, Ltd. 100.0%
Total 100.0%
E. W. Blanch Co.
Reinsurance Services
3500 West 80th Street
Minneapolis, Minnesota 55431
Table of Contents
Article Page
I Business Reinsured 1
II Term 1
III Territory (BRMA 51A) 2
IV Exclusions 2
V Retention and Limit 3
VI Definitions 3
VII Other Reinsurance 7
VIII Loss Settlements 7
IX Commutation 8
X Salvage and Subrogation 9
XI Reinsurance Premium 9
XII Experience Account 9
XIII Late Payments 10
XIV Offset (BRMA 36C) 12
XV Access to Records 12
XVI Liability of the Reinsurer 12
XVII Net Retained Lines 12
XVIII Errors and Omissions (BRMA 14F) 13
XIX Currency (BRMA 12A) 13
XX Taxes (BRMA 50B) 13
XXI Federal Excise Tax 13
XXII Unauthorized Reinsurers 13
XXIII Insolvency 14
XXIV Arbitration 15
XXV Service of Suit (BRMA 49C) 16
XXVI Agency Agreement 17
XXVII Intermediary (BRMA 23A) 17
Schedule A
Per Event Reinsurance Contract
($250,000 xs $250,000)
Effective: October 1, 1996
issued to
Associated International Insurance Company
Woodland Hills, California
Calvert Insurance Company
Philadelphia, Pennsylvania
Timberline Insurance Company
Eugene, Oregon
through the auspices of
Gryphon Insurance Group, Inc.
New York, New York
(hereinafter referred to collectively as the "Company")
by
The Subscribing Reinsurer(s) Executing the
Interests and Liabilities Agreements
Attached Hereto
(hereinafter referred to as the "Reinsurer")
Article I - Business Reinsured
By this Contract the Reinsurer agrees to reinsure and/or
indemnify the Company for the net excess liability which may
accrue to the Company under its policies, contracts and binders
of insurance or reinsurance (hereinafter called "policies") in
force on the effective date hereof, or issued or renewed on or
after that date, for all lines of business (direct and assumed),
subject to the terms, conditions and limitations hereinafter set
forth.
Article II - Term
A. This Contract shall become effective on October 1, 1996, with
respect to occurrences arising out of loss events commencing
on or after that date, and shall remain in force until
December 31, 1996, both days inclusive. Notwithstanding the
foregoing, in the event any state auditor determines this
Contract is not in compliance with any rule or regulation
pertaining to this reinsurance, this Contract may be rescinded
by the Company with 30 days prior written notice to the
Reinsurer by certified mail.
B. Except as provided in paragraph C below, reinsurance hereunder
on business in force on the effective date of expiration shall
remain in full force and effect until expiration, cancellation
or next premium anniversary of such business, whichever first
occurs, but in no event beyond 36 months, plus odd time (not
exceeding 42 months in all) as respects multiple year
policies, nor 12 months plus odd time (not exceeding 18 months
in all) as respects policies of one year policy terms or less,
following the effective date of expiration. However, these
limitations shall not apply to any Extended Reporting Period
(hereinafter referred to as "ERP") or Extended Discovery
Endorsement (hereinafter referred to as "EDE") provisions or
policies classified by the Company as Project Specific
Coverage.
C. Notwithstanding the provisions of paragraph B above, the
Company shall have the option of reassuming the unexpired
liability of the Reinsurer hereunder on business in force on
the effective date of expiration, in which event the Reinsurer
shall not be liable for claims made or losses arising out of
loss events commencing after that date. As respects policies
providing an aggregate limit of liability which are in force
on the effective date of expiration, the Reinsurer shall be
liable for the entire aggregate loss under such policies if
the inception date of the policy period falls on or before the
effective date of expiration, as respects policies written on
an occurrence basis, or if the first claim is made on or
before the effective date of expiration as respects policies
written on a claims made basis.
D. If this Contract expires while a loss event covered hereunder
is in progress, the Reinsurer's liability hereunder shall,
subject to the other terms and conditions of this Contract, be
determined as if the entire loss event had occurred prior to
the expiration of this Contract, provided that no part of such
loss event is claimed against any renewal or replacement of
this Contract.
Article III - Territory (BRMA 51A)
The territorial limits of this Contract shall be identical with
those of the Company's policies.
Article IV - Exclusions
This Contract does not apply to and specifically excludes the
following:
1. Reinsurance assumed by the Company (unless an assumed
program has been specifically declared to this Contract
and accepted by the Reinsurer), except inter-company
reinsurance between any member companies of Gryphon
Insurance Group, Inc.
2. Financial guarantee and insolvency.
3. Business written by the Company on a co-indemnity
basis where the Company is not an equal or controlling
carrier.
4. Nuclear risks as defined in the "Nuclear Incident
Exclusion Clause - Liability - Reinsurance" and the
"Nuclear Incident Exclusion Clause - Physical Damage"
attached to and forming part of this Contract.
5. Liability as a member, subscriber or reinsurer of any
Pool, Syndicate or Association which is not underwritten
or controlled by the Company. However, this exclusion
shall not apply to Assigned Risk Plans or similar plans.
6. 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.
Article V - Retention and Limit
A. As respects business subject to this Contract, the Company
shall retain and be liable for the first $250,000 of ultimate
net loss arising out of each loss event. The Reinsurer shall
then be liable for the amount by which such ultimate net loss
exceeds the Company's retention, but the liability of the
Reinsurer shall not exceed $250,000 as respects any one loss
event, nor shall it exceed $2,500,000 as respects all loss
events subject to this Contract.
B. With respect to business subject hereunder, the maximum policy
limit (except statutory) with respect to any one coverage, any
one policy shall be deemed not to exceed $5,000,000 any one
loss event, with limits in excess of this amount deemed
reinsured elsewhere.
Article VI - Definitions
A. "Net excess liability" as used herein shall mean those amounts
payable by the Company as defined in the ultimate net loss
definition set forth in paragraph B below.
B. "Ultimate net loss" as used herein is defined as the sum or
sums (including loss in excess of policy limits, extra
contractual obligations, prejudgment interest if included as
part of an award or judgment and any loss adjustment expense,
as herein after 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.
C. "Loss in excess of policy limits" and "extra contractual
obligations" as used herein shall mean:
1. "Loss in excess of policy limits" shall mean 90% of
any amount paid or payable by the Company under a policy
ceded to this Contract in excess of its policy limits, but
otherwise within the terms of its policy, as a result of
an action against it by its insured or its insured's
assignee to recover damages the insured is legally
obligated to pay to a third party claimant because of the
Company's alleged or actual negligence or bad faith in
rejecting a settlement within policy limits, or in
discharging its duty to defend or prepare the defense in
the trial of an action against its insured, or in
discharging its duty to prepare or prosecute an appeal
consequent upon such an action.
2. "Extra contractual obligations" shall mean 90% of any
punitive, exemplary, compensatory or consequential
damages, other than loss in excess of policy limits, paid
or payable by the Company under a policy ceded to this
Contract as a result of an action against it by its
insured, its insured's assignee or a third party claimant,
which action alleges negligence or bad faith on the part
of the Company in handling a claim under a policy subject
to this Contract.
Any loss in excess of policy limits or extra contractual
obligation shall be deemed to have occurred on the same date
as the loss covered or alleged to be covered under the policy.
Notwithstanding anything stated herein, this Contract shall
not apply to any loss 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 an individual or corporation or any other
organization or party involved in the presentation, defense or
settlement of any claim covered hereunder.
D. "Loss adjustment expense" as used herein shall mean expenses
allocable to the investigation, defense and/or settlement of
specific claims, including 1) prejudgment interest, unless
included as part of the award or judgment; 2) post-judgment
interest; and 3) legal expenses and costs incurred in
connection with coverage questions and legal actions connected
thereto; but not including office expenses or salaries of the
Company's regular employees, except that allocated outside
costs of the Company's or RA&MCO's salaried adjusters shall be
included. Claim costs shall also be included which are
incurred by RA&MCO and billed hourly to the Company in
accordance with its management agreement.
With respect to legal expenses and costs incurred in direct
connection with declaratory judgment actions brought to
resolve policy language coverage disputes between the Company
and its insured, such expenses shall, for purposes of this
Contract, not exceed an amount equal to the applicable limit
of the policy or policies involved unless agreed to by the
Reinsurer.
E. The term "loss event" as used herein shall mean an accident,
occurrence, claim made, loss discovered or any other
circumstance that triggers coverage as provided, defined, or
interpreted in the Company's original policies, however:
1. Where the Company's policy provides for an aggregate
limit of liability, the term "loss event" shall mean all
losses subject to that aggregate limit, each aggregate
period. For purposes of this Contract, the date of loss
for purposes of this reinsurance will be the inception
date of each aggregate period, as respects policies
written on an occurrence basis and the date the first
claim is made as respects policies written on a claims
made basis. Nevertheless, the Company may extract from
any aggregate "loss event" a single loss so it may be
combined with losses from other policies and submitted as
a single "loss event."
In the event the Company's losses arising out of a
single "loss event" involve policies providing different
types of coverage such as an occurrence and a claims made
policy, all losses can be combined and submitted as a
single "loss event" utilizing the occurrence date of loss
for the purpose of reinsurance coverage. In the event the
Company's losses arising out of a single "loss event"
involve multiple claims made policies, all losses can be
combined and submitted as a single "loss event" utilizing
the date the first claim is made for the purpose of
reinsurance coverage.
2. As respects policies written on a claims made basis,
the date of loss shall be the date the claim is made under
the original policy. As respects any extended reporting
or discovery period provisions under a claims made policy
subject hereto, it is understood and agreed that the
following shall apply:
a. Claims made against and/or reported to the Company
during the extended reporting or discovery period shall
be deemed to have occurred on the last full day of the
applicable policy period;
b. If the Company issues a separate policy and/or
reinstates the aggregate limit provided under a policy,
premium and losses during the period to which said
separate policy and/or reinstated limit applies may, at
the time of issuance and at the Company's option, be
allocated to (i) the contract which is in effect at the
effective date of said separate policy and/or at the
beginning of the period to which the reinstated limit
applies, or (ii) the contract which was in effect at the
effective date of the original policy. If the Company
elects (i), said losses shall be subject to a separate
retention and limit (as specified in the Retention and
Limit Article) from that of the original policy period.
3. As respects multiple year policies, whether issued
with one limit or reinstatement of the limit, each 12-
month period within a multiple year policy shall be
considered a separate period as regards the Company's
retention and the aggregate policy limit. However, as
respects business classified by the Company as "Project
Specific" coverages, the entire multiple year term shall
be considered one period as regards the Company's
retention and the aggregate policy limit.
4. As respects property losses subject hereto, all
individual losses directly occasioned by any one disaster,
occurrence or loss or series of disasters, occurrences or
losses arising out of one occurrence which occurs anywhere
in the world, but limited in the United States of America
and Canada to 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 event"
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
loss event, except that the term "loss event" shall be
further defined as follows:
a. 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 loss event.
However, the loss event need not be limited to one state
or province or states or provinces contiguous thereto.
b. 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 loss 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 assured's premises by strikers,
provided such occupation commenced during the aforesaid
period.
c. As regards earthquake (the epicenter of which need
not necessarily be within the territorial confines
referred to above) 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
event."
d. As regards "freeze," only individual losses
directly occasioned by collapse, breakage of glass and
water damage (caused by bursting frozen pipes and tanks
and melting snow) may be included in the Company's "loss
event."
Except for those "loss events" referred to in
subparagraphs (a) and (b) 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, occurrence or loss, and provided that only
one such period of 168 consecutive hours shall apply with
respect to one loss event.
However, as respects those "loss events" referred to
in subparagraphs (a) and (b) above, if the disaster,
occurrence or loss occasioned by the occurrence is of
greater duration than 72 consecutive hours, then the
Company may divide that disaster, occurrence or loss into
two or more "loss events," provided that no two periods
overlap and no individual loss is included in more than
one such period, and 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, occurrence or loss.
It is understood that losses arising from a
combination of two or more perils as a result of the same
occurrence shall be considered as having arisen from one
"loss event." Notwithstanding the foregoing, the hourly
limitations as stated above shall not be exceeded as
respects the applicable perils and no single "loss event"
shall encompass a time period greater than 168 consecutive
hours.
Notwithstanding the foregoing, it is understood that the
Company shall be the sole judge of what constitutes a single
"loss event."
F. "Net earned premium" as used herein is defined as gross earned
premium of the Company for the classes of business reinsured
hereunder, less cancellations and return premiums, and less
the earned portion of premiums ceded by the Company for
reinsurance which inures to the benefit of this Contract or
increases the Company's available capacity.
Article VII - Other Reinsurance
A. The Company is permitted, but not required, to purchase other
facultative and/or other treaty reinsurance on business
subject to this Contract. Premiums ceded by the Company for
reinsurance which inures to the benefit of this Contract or
increases the Company's available capacity shall be deducted
in determining subject premium hereunder as provided in
Article XI.
B. It is agreed by the Company that inuring reinsurance
agreements in force at the inception of this Contract shall
remain in force during the term of this Contract, or so
deemed.
Article VIII - Loss Settlements
A. Wherever losses sustained by the Company appear, in the
opinion of the Company, likely to result in claim hereunder,
the Company shall notify the Reinsurer. The Reinsurer shall
have the right to participate in the adjustment of the loss 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.
Article IX - Commutation
A. Subject to the terms of this Article, the Company may, at its
sole option, commute this Contract at any December 31, with 90
days prior written notice by the Company to the Reinsurer.
B. If the Company elects to commute this Contract, the Reinsurer
shall pay to the Company the following amounts within 60
business days of the date of commutation:
1. Commuted value of ceded unpaid ultimate net loss:
a. If, at the time of Commutation, the ceded unpaid
ultimate net loss, as defined herein, is less than or
equal to the balance in the Experience Account, the
Reinsurer agrees to pay all ceded unpaid ultimate net
loss at the amount valued by the Company.
b. If, at the time of commutation, the ceded unpaid
ultimate net loss is greater than the balance in the
Experience Account, the ceded unpaid ultimate net loss
shall be commuted at a present value amount to be
mutually agreed. If the present value amount of the
ceded unpaid ultimate net loss cannot be mutually
agreed by the Company and the Reinsurer, then a
mutually acceptable independent third party actuary
shall be called upon to make an independent estimation
of the present value amount of the ceded unpaid
ultimate net loss (the cost of which shall be shared
equally by the Company and Reinsurer). If the
actuary's estimation is acceptable to both Reinsurer
and Company, then this Contract shall be commuted at
the value as estimated by the actuary. If the
actuary's value is unacceptable to either the Company
or the Reinsurer, or if the parties cannot agree on the
selection of the actuary, then this Contract will not
be commuted at that time.
2. Profit Sharing:
Upon commutation under subparagraph 1 above, the
Reinsurer shall pay to the Company a Profit Sharing equal
to the positive balance, if any, of the Experience Account
after deducting the value of the commuted ceded unpaid
ultimate net loss as per subparagraph 1 above.
C. Payment of the ceded unpaid ultimate net loss and Profit
Sharing, if any, by the Reinsurer as described above shall
constitute a complete and final release of the Reinsurer in
respect of any and all of the Reinsurer's obligations of any
nature whatsoever to the Company under or related to this
Contract.
Article X - 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 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.
Article XI - Reinsurance Premium
As premium for the reinsurance provided hereunder, the Company
shall pay the Reinsurer $1,250,000 as promptly as possible after
the inception of this Contract.
Article XII - Experience Account
A. An "Experience Account" shall be established and maintained by
the Reinsurer, the balance of which, at any point in time,
shall be defined as:
1. 100% of the cumulative earned reinsurance premium
paid to the Reinsurer hereunder; less
2. The cumulative Reinsurer's Margin paid hereunder;
less
3. 100% of cumulative ultimate net loss payments made by
the Reinsurer hereunder; plus
4. The cumulative Experience Account Investment Credit
since the inception of this Contract.
B. The Experience Account Investment Credit shall equal the
average daily balance of the Experience Account multiplied by
the interest credit rate (or pro rata portion thereof)
credited annually, in arrears.
C. The interest credit rate applicable to the Experience Account
shall be equal to the one-year U.S. Treasury note rate as
published in The Wall Street Journal on the inception date of
this Contract.
D. The "Reinsurer's Margin" shall be an amount equal to 12.5% the
earned reinsurance premium hereunder.
Article XIII - Late Payments
A. It is understood and agreed that 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 in
Article XXVII (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. 1/365th of the six month (or nearest thereto) U.S.
Treasury Bill rate, as quoted in the Wall Street Journal
on the first business day of the month for which the
calculation is being 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 45 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 five business days following receipt
by the applicable Subscribing Reinsurer of written
notification that payment has been received from
Subscribing Reinsurers constituting at least 662/3% of the
interests and liabilities of all Subscribing Reinsurers
participating under the applicable layer of this Contract,
who are active as of the due date; it being understood
that said date shall not be later than 75 days from the
date of transmittal by the Intermediary of the initial
billing for each such payment.
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 deemed
as five business days following receipt 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
1) a Subscribing Reinsurer from contesting the validity of any
claim, or from participating in the defense or control of any
claim or suit; or 2) 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.
E. As provided under Article VIII, it is understood and agreed
that the Company shall furnish the Reinsurer with usual and
customary claim information and nothing herein shall be
construed as limiting or prohibiting a Subscribing Reinsurer
from requesting additional information that it may deem
necessary.
F. As respects subparagraph 2 of paragraph C above, a Subscribing
Reinsurer shall be deemed not to be active when it 1) ceases
assuming new or renewal reinsurance business through the
Intermediary; 2) is declared insolvent, or put in liquidation,
conservatorship or rehabilitation by a competent regulatory
authority or court; 3) is declared insolvent, or is the
subject of an administrative order or enters provisional
liquidation and/or liquidation; or 4) has a reduction in its
statutory surplus or shareholders' funds of 50% or more from
its statutory surplus or shareholders' funds as of the
effective date of this Contract.
G. 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.
Article XIV - Offset (BRMA 36C)
The Company and the Reinsurer shall have the right to offset
any balance or amounts due from one party to the other under
the terms of this Contract. The party asserting the right of
offset may exercise such right any time whether the balances
due are on account of premiums or losses or otherwise.
Article XV - Access to Records
The Reinsurer or its designated representatives shall have
access at any reasonable time to all records of the Company
which pertain in any way to this reinsurance.
Article XVI - 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.
Article XVII - Net Retained Lines
A. This Contract applies only to that portion of any insurance or
reinsurance (whether inter-company reinsurance and/or
reinsurance assumed which has been declared to this Contract
and accepted by the Reinsurer) the Company retains net for its
own account, and in calculating the amount of any loss
hereunder and also computing the amount or amounts in excess
of which this Contract attaches, only loss or losses in
respect of that portion of any insurance or reinsurance the
Company retains net for its own account shall be included.
B. The amount of the Reinsurer's liability hereunder in respect
of any loss or losses shall not be increased by reason of the
inability of the Company to collect from any other
reinsurer(s), whether specific or general, any amounts which
may be due from such reinsurer(s), whether such inability
arises from the insolvency of such other reinsurer(s) or
otherwise.
Article XVIII - Errors and Omissions (BRMA 14F)
Inadvertent delays, errors or omissions made in connection with
this Contract or any transaction hereunder shall not relieve
either party from any liability which would have attached had
such delay, error or omission not occurred, provided always that
such error or omission is rectified as soon as possible after
discovery.
Article XIX - Currency (BRMA 12A)
A. Whenever the word "Dollars" or the "$" sign appears in this
Contract, they shall be construed to mean United States
Dollars and all transactions under this Contract shall be in
United States Dollars.
B. Amounts paid or received by the Company in any other currency
shall be converted to United States Dollars at the rate of
exchange at the date such transaction is entered into the
books of the Company.
Article XX - Taxes (BRMA 50B)
In consideration of the terms under which this Contract is
issued, the Company will not claim a deduction in respect of the
premium hereon when making tax returns, other than income or
profits tax returns, to any state or territory of the United
States of America or the District of Columbia.
Article XXI - Federal Excise Tax
If the Reinsurer is subject to the Federal Excise Tax, the
Reinsurer agrees to allow the Company to withhold the required
amount for the purpose of paying the Tax. In the event of any
return premium becoming due hereunder, the Reinsurer will deduct
from the amount of the return premium the same percentage as it
allowed, and the Company or its agent should take steps to
recover the Tax from the U. S. Government.
Article XXII - Unauthorized Reinsurers
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 outstanding
loss and loss adjustment expense reserves (including incurred
but not reported loss reserves) by 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, 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. 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 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
losses and/or loss adjustment expense paid under the terms
of policies reinsured hereunder, unless paid in cash by
the Reinsurer;
2. To reimburse itself for the Reinsurer's share of any
other amounts claimed to be due hereunder, unless paid in
cash by the Reinsurer;
3. To fund a cash account in an amount equal to the
Reinsurer's share of any ceded outstanding loss and loss
adjustment expense reserves (including incurred but not
reported loss reserves) 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;
4. 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 outstanding loss and loss adjustment
expense reserves (including incurred but not reported loss
reserves), 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 B(1) or
B(3), or in the case of B(2), the actual amount determined to
be due, the Company shall promptly return to the Reinsurer the
excess amount so drawn.
C. Notwithstanding the foregoing, the Company shall share in the
funding of the aforementioned letters of credit in an amount
not to exceed 25 basis points.
Article XXIII - 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 immediately upon demand, with reasonable
provision for verification, 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 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.
Article XXIV - Arbitration
A. As a condition precedent to any right of action hereunder, any
dispute arising out of the interpretation, performance or
breach of this Contract, including the formation or validity
thereof, shall be submitted for decision to a panel of three
arbitrators. Notice requesting arbitration will be in writing
and sent certified or registered mail, return receipt
requested.
B. One arbitrator shall be chosen by each party and the two
arbitrators shall, before instituting the hearing, choose an
impartial third arbitrator who shall preside at the hearing.
If either party fails to appoint its arbitrator within thirty
(30) days after being requested to do so by the other party,
the latter, after ten (10) days notice by certified or
registered mail of its intention to do so, may appoint the
second arbitrator.
C. If the two arbitrators are unable to agree upon the third
arbitrator within thirty (30) days of their appointment, the
two arbitrators will jointly petition the American Arbitration
Association to appoint the third arbitrator from the AAA's
Panel of Reinsurance Arbitrators.
D. All arbitrators shall be disinterested active or former
executive officers of insurance or reinsurance companies,
underwriters at Lloyd's of London, reinsurance intermediaries
and attorneys actively or formerly engaged in practicing law
in the areas of insurance or reinsurance.
E. Within thirty (30) days after notice of appointment of all
arbitrators, the panel shall meet and determine timely periods
for briefs, discovery procedures and schedules for hearings.
F. The panel shall be relieved of all judicial formality and
shall not be bound by the strict rules of procedure and
evidence. The arbitration shall take place in Woodland Hills,
California or, if unanimously agreed by the panel, any other
mutually acceptable location.
G. 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. However, nothing shall impair the
rights of such reinsurers to assert several rather than joint
defenses or claims, nor shall this provision be construed as
changing the liability of the reinsurers under the terms of
this Contract from several to joint.
H. The panel shall make its decision considering custom and
practice as promptly as possible following the termination of
hearings. The decision of any two arbitrators, when rendered
in writing shall be final and binding, and judgment upon the
award may be entered in any court having jurisdiction. The
panel is empowered to grant such interim relief as it may deem
appropriate.
I. Each party shall bear the expense of its own arbitrator and
shall jointly and equally with the other party bear the cost
of the third arbitrator. The remaining costs of the
arbitration shall be allocated by the panel. The panel may,
at its discretion, award such further costs and expenses as it
considers appropriate, including but not limited to attorney's
fees and interest to the extent permitted by law. Insofar as
the arbitration panel chooses to look to substantive law, it
shall consider the law of the State of California.
Article XXV - Service of Suit (BRMA 49C)
(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)
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 therefor,
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.
Article XXVI - Agency Agreement
Gryphon Insurance Group shall be deemed the agent of the
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.
Article XXVII - Intermediary (BRMA 23A)
E. W. Blanch Co. is hereby recognized as the Intermediary
negotiating this Contract for all business hereunder. All
communications (including but not limited to notices, statements,
premium, return premium, commissions, taxes, losses, loss
adjustment expense, salvages and loss settlements) relating
thereto shall be transmitted to the Company or the Reinsurer
through E. W. Blanch Co., Reinsurance Services, 3500 West 80th
Street, Minneapolis, Minnesota 55431. Payments by the Company to
the Intermediary shall be deemed to constitute payment to the
Reinsurer. Payments by the Reinsurer to the Intermediary shall
be deemed to constitute payment to the Company only to the extent
that such payments are actually received by the Company.
In Witness Whereof, the Company by its duly authorized
representative has executed this Contract as of the date
undermentioned at:
New York, New York,this ___ day of_______________ 199___.
_________________________________________
Gryphon Insurance Group, Inc., on behalf of
Associated International Insurance Company
Calvert Insurance Company
Timberline Insurance Company
Schedule A
attached to the
Per Event Reinsurance Contract
($250,000 xs $250,000)
Effective: October 1, 1996
issued to
Associated International Insurance Company
Woodland Hills, California
Calvert Insurance Company
Philadelphia, Pennsylvania
Timberline Insurance Company
Eugene, Oregon
through the auspices of
Gryphon Insurance Group, Inc.
New York, New York
A. Umbrella business produced by Jean Deal & Associates, Dallas,
Texas for the Specialty Lines Division of Gryphon Insurance
Group, Inc., Woodland Hills, California.
B. DIC business produced by the Pacific Coast DIC Division of
Gryphon Insurance Group, Inc., Woodland Hills, California.
C. General Property E&S business produced by the General E&S
Division of Gryphon Insurance Group, Inc., Woodland Hills,
California.
D. Animal Mortality business produced by American Equine
Insurance Group, Rolling Meadows, Illinois for Gryphon
Insurance Group, Inc., Hoboken, New Jersey.
E. Canadian business produced by KMS Insurance Services, Toronto,
Canada for Gryphon Insurance Group, Inc., Hoboken, New Jersey.
F. Midwest Garage program produced by Business Risk Services,
Geneva, Illinois for Gryphon Insurance Group, Inc., Hoboken,
New Jersey.