VALUE PLAN POLICIES
ACCOUNTANTS PROFESSIONAL LIABILITY
QUOTA SHARE TREATY
(hereinafter referred to as the "Agreement")
Effective: January 1, 2002
issued to
Continental Casualty Company
Chicago, Illinois
(hereinafter referred to as the "Company")
by
AmerInst Insurance Company Limited
Hamilton, Bermuda
(hereinafter referred to as the "Reinsurer")
ARTICLE 1 - DEFINITION OF COMPANY
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As respects the use of "Company" within this Agreement, it is understood and
agreed that Company shall mean the insurance companies owned directly or
indirectly by CNA Financial Corporation which are affiliated with, controlled by
or under common management of CNA, with the exception of the life insurance
companies, CNA Re Management Company Limited, RVI Guarantee Company Limited, and
CNA Surety Corporation and their respective subsidiaries.
It is further agreed that notice will be given to the Reinsurer within 45
(forty-five) days of the acquisition of a company having in-force business that
the Company wishes to have covered by this Agreement. In the event that either
party hereto maintains that the inclusion hereunder of some portion of the
in-force business of any such new acquisition calls for alteration in the
existing terms of this Agreement, and the parties are unable to negotiate terms
that are mutually acceptable, then that portion of the newly acquired in-force
business not considered mutually acceptable shall be covered for an additional
period of forty-five (45) days from the date the dissenting party gives to the
other written notice that said portion of the newly acquired in-force business
is unacceptable.
ARTICLE 2 - BUSINESS COVERED
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The Company agrees to cede and the Reinsurer agrees to accept a 10% quota share
of the Company's net retained liability on policies classified by the Company as
Value Plan
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Accountants Professional Liability for members of the American Institute of
Certified Public Accountants, written or renewed with an effective date on or
after the inception of this Agreement, subject to the following terms,
conditions and exclusions.
ARTICLE 3 - TERM AND CANCELLATION
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This Agreement will apply to losses for claims first made and/or losses
discovered after 12:02A.M. Local Standard Time, January 1, 2002, at the location
of the original insured, as respects new and renewal policies becoming effective
on and after said date and this Agreement will terminate at 11:59 P.M. on
December 31, 2003, Local Standard Time, at the location of the original insured.
Policies in force as of 11:59 P.M. December 31, 2003, shall run-off to natural
expiry until policy expiration, termination or next anniversary date, whichever
comes first, including where applicable any discovery period coverage as per the
original policies. A claim first made under any discovery period coverage shall
be deemed to have been made on the day the original policy expired or was
cancelled and the premium, for such discovery period coverage, shall be
considered fully earned on the last day the original policy was in force.
The Company may exercise the option to cut-off the Reinsurer's liability as of
11:59 P.M. Local Standard Time, December 31, 2003, or the termination date
chosen by the Reinsurer, but no later than the first anniversary of termination,
by giving the Reinsurer thirty (30) days prior written notice of its intent to
do so. The Reinsurer will return to the Company the unearned reinsurance premium
applicable to the unexpired liability as calculated on a monthly pro rata basis
less the rate of commission allowed in accordance with the Article 13 - Ceding
Commission.
If the Company requests the return of the unearned reinsurance premium reserve
the Reinsurer will continue to be liable for its pro rata share of the aggregate
losses after such cut off date, being pro rata as to the time such original
policies are in force under this Agreement.
ARTICLE 4 - QUOTA SHARE PARTICIPATION
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The Company shall cede and the Reinsurer shall accept 10% of the Company's net
retained liability from each policy covered hereunder for each loss or annual
aggregate where applicable. However, the Reinsurers' share of the Company's net
liability shall not be more than 10% of each covered policy for each claim or
annual aggregate where applicable.
In the event that a loss covered hereunder involves more than one of the
Company's policies, this Agreement shall provide coverage for each and every
policy in such loss.
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In addition, as respects each loss, the Reinsurer agrees to pay a 10% quota
share of up to $1,000,000 of any Excess of Original Policy Limit (as provided
for in Article 10); and, in addition as respects each loss, the Reinsurer agrees
to pay a 10% quota share of up to $1,000,000 of any Extra Contractual Obligation
(as provided for in Article 11).
ARTICLE 5 - TERRITORY
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The territorial limits of this Treaty shall be identical with those of the
Company's policies.
ARTICLE 6 - ORIGINAL CONDITIONS
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All amounts ceded hereunder shall be subject to the same gross rating and to the
same clauses, conditions and modifications of the Company's policies, subject to
the limits, terms, exclusions and conditions of this Agreement.
Except as specifically and expressly provided for in Article 22 Insolvency, the
provisions of this Agreement are intended solely for the benefit of the parties
to and executing this Agreement, and nothing in this Agreement shall in any
manner create or be construed to create, any obligations to or establish any
rights against any party to this Agreement in favor of any third parties or
other persons not parties to and executing this Agreement.
ARTICLE 7 - EXCLUSIONS
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This Agreement shall not apply to and specifically excludes:
A. all assumed reinsurance; except as respects inter-company reinsurance.
B. policies written on other than a claims made form;
C. loss or liability accruing to the Company directly or indirectly from any
insurance written by or through any pool or association including pools or
associations in which membership by the Company is required by any statutes
or regulations;
D. loss or liability excluded under the Nuclear Incident Exclusion Clauses -
Liability - Reinsurance (U.S.A. and Canada) attached to this Agreement;
E. 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
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otherwise deemed unable to meet any claim, debt, charge, fee or other
obligation in whole or in part.
F. Any policy, other than Value Plan policies, classified by the Company as
Accountants Professional Liability for members of the American Institute of
Certified Public Accountants.
ARTICLE 8 - DEFINITIONS
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Unless more specifically defined in the Company's policies, in which case this
Agreement will follow the definition therein, the term "loss" as used in this
Agreement shall mean one or more accidents, casualties or losses arising out of
or following one event.
The term "net retained liability" means the remaining portion of the Company's
gross liability on each policy reinsured under this Agreement after deduction of
all Facultative Reinsurance which insures to the Company's sole benefit.
The term "policies" as used herein means the Company's binders, policies and
contracts providing insurance on the business covered under this Agreement. A
policy written on an installment premium shall be considered renewed as of the
end of each annual period commencing with the inception date of the policy.
ARTICLE 9 - LOSSES, EXPENSES, SUBROGATION AND SALVAGE
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Losses shall be reported by the Company in summary form as hereinafter provided.
The Company will have the right to settle all claims under its policies. All
loss settlements made by the Company, whether under strict policy conditions or
by way of compromise, shall be binding upon the Reinsurer. The Reinsurer agrees
to pay or allow, as the case may be, as stated in Article 4, its proportionate
share of the amount of any settlement, award, or judgment paid by the Company or
for which the Company has become liable to pay (including interest accrued prior
to final judgment if included as part of loss on reinsured policies) after
deduction of all recoveries, salvages, subrogations and reinsurance, whether
recovered or not.
In addition, the Reinsurer shall also be liable for its' proportionate share of
loss expenses as respects losses covered under this Agreement, unless the policy
reinsured hereunder includes such loss expenses within the limit of liability.
In that instance, loss expense will be considered as part of the loss. Loss
expense as used in this Agreement will mean all expenses incurred by the Company
in the investigation, appraisal, adjustment, litigation and/or defense of claims
under policies reinsured hereunder, including court costs, interest accrued
prior to final judgment if included as expense on reinsured policies, and
interest accrued after final judgment, but excluding internal office expenses,
salaries, per diem, and other remuneration of regular Company employees.
However, in the event a verdict or
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judgment is reduced by an appeal or a settlement, subsequent to the entry of the
judgment, resulting in an ultimate saving on such verdict or judgment, or a
judgment is reversed outright, the expense incurred in securing such final
reduction or reversal will be prorated between the Reinsurer and the Company in
the proportion that each benefits from such reduction or reversal, and the
expenses incurred up to the time of the original verdict or judgment will be (a)
pro rated in proportion to each party's interest in such verdict or judgment, or
(b) when the terms and conditions of the Company's original policies reinsured
hereunder include expense as part of the policy limit, be added to the Company's
loss.
Regardless of whether or not the policy reinsured hereunder includes loss
expenses within the limit of liability, in addition, the Reinsurer shall bear
its proportionate share of all legal expenses and other costs incurred in
connection with coverage questions and legal actions connected thereto arising
under policies covered by this Agreement. The Reinsurer's proportionate share of
these costs and expenses will be the same as the Reinsurer's proportionate share
of "loss" as defined herein.
ARTICLE 10 - EXCESS OF ORIGINAL POLICY LIMITS
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This Agreement shall protect the Company as provided in Article 4 - Quota Share
Participation in connection with loss in excess of the limit of the original
policy, such loss in excess of the limit having been incurred because of failure
by it to settle within the policy limit or by reason of alleged or actual
negligence, fraud or bad faith in rejecting an offer of settlement or in the
preparation of the defense or in the trial of any action against its insured or
reinsured or in the preparation or prosecution of an appeal consequent upon such
action. However, this Article shall not apply where the loss has been incurred
due to fraud by a member of the Board of Directors or a corporate officer of the
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.
For the purpose of this Article, the word "loss" shall mean any amounts for
which the Company would have been contractually liable to pay had it not been
for the limit of the original policy.
ARTICLE 11 - EXTRA CONTRACTUAL OBLIGATIONS
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This Agreement shall protect the Company as provided in Article 4 - Quota Share
Participation where the loss includes any extra contractual obligations.
The term "Extra Contractual Obligations" is defined as those liabilities not
covered under any other provision of this Agreement and which arise from the
handling of any claim on business covered hereunder, such liabilities arising
because of, but not limited to, the following: failure by the Company to settle
within the policy limit, or by reason of alleged or actual negligence, fraud or
bad faith in rejecting an offer of settlement or in preparation of
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the defense or in trial of any action against its insured or reinsured or in the
preparation or prosecution of an appeal consequent upon such action.
The date on which any Extra Contractual Obligation loss is incurred by the
Company shall be deemed, in all circumstances, to be the date of the original
occurrence, or the date the original claim is first made, whichever is
applicable.
However, this Article shall not apply where the loss has been incurred due to
fraud by a member of the Board of Directors or a corporate officer of the
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 loss covered hereunder.
ARTICLE 12 - PREMIUM
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The Company shall pay to the Reinsurer 10% of the Company's Original Gross
Premium for policy limits ceded for each new or renewal policy written during
the period this Agreement is in effect, in respect to its net retained liability
on the business covered hereunder.
The term "Original Gross Premium" means the total of the gross premiums written,
plus deposits and additions, less cancellations and returns, by the Company on
business covered hereunder during the period for which calculations are being
made, less deductions for reinsurance premiums which inure to the benefit of the
Reinsurer. The Company will be permitted to purchase facultative reinsurance on
any risk it desires and to deduct the premium thereof.
ARTICLE 13 - CEDING COMMISSION
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The Reinsurer agrees to allow the Company a commission allowance of 28.5% on the
Original Gross Premium ceded under this Agreement. On all return premiums the
Company shall return to the Reinsurer the commission allowance of 28.5%.
The commission allowance which the Reinsurer makes to the Company on the
business transacted under this Agreement includes provision for all taxes,
assessments and any other expenses whatsoever, except loss adjustment expenses.
ARTICLE 14 - REPORTS AND REMITTANCES
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A. Within 15 days after the end of each calendar quarter, the Company shall
report to the Reinsurer:
1. Ceded net written premium for the quarter, less return premium
adjusted for ceding commission received during the quarter;
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2. Ceding commission thereon;
3. Ceded losses and loss adjustment expenses paid during this quarter.
The positive balance of (1) less (2) less (3) shall be remitted by the
Company 30 days after the end of the following calendar quarter. Any
balance shown to be due the Company shall be remitted by the Reinsurer
within 30 days after the end of the following calendar quarter after
receipt and verification of the Company's report.
B. Within 30 days after each calendar quarter, the Company shall report to the
Reinsurer the ceded unearned premiums and ceded outstanding loss reserves
as of the end of the calendar quarter.
C. Annually the Company shall furnish the Reinsurer with such information as
the Reinsurer may require to complete its Annual Convention Statement.
ARTICLE 15 - OFFSET
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The Company or the Reinsurer shall have the right to offset any balance or
amounts due from one party to the other under the terms of this Agreement. 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 16 - CURRENCY
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Whenever the word "Dollars" or the "$" sign appears in this Agreement, they
shall be construed to mean United States Dollars and all transactions under this
Agreement shall be in United States Dollars.
ARTICLE 17 - ACCESS TO RECORDS
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The Reinsurer, or their duly accredited representative, will have access to the
books and records of the Company on matters reasonably relating to this
reinsurance at all reasonable times for the purpose of obtaining information
concerning this Agreement or the subject matter hereof. Except as provided in
the following sentence, access to premium records is restricted to within four
years of the expiration of this Agreement. The Reinsurer will be permitted
access to premium records subsequent to the aforementioned period only on the
condition that either a) there are no balances payable hereunder by the
Reinsurer that are overdue as provided in the Interest Penalty Article of this
Agreement or b) the Reinsurer has funded all balances due hereunder in an
interest bearing trust fund or with a Letter of Credit as hereinafter provided.
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Should the Reinsurer choose option b) of the foregoing paragraph, the Reinsurer
agrees to provide the Company a Trust Agreement established at Morgan Guaranty
Trust Company of New York, New York, or at a mutually agreed successor Trustee,
or a clean, irrevocable, and evergreen Letter of Credit, issued by Morgan
Guaranty Trust Company of New York, New York, or by a mutually agreed bank, of
which the Company will be the beneficiary, which will secure in full all
balances due from the Reinsurer to the Company with respect to this Agreement.
Such Trust Agreement and/or Letter of Credit will be established under laws of
the state of New York and will meet all requirements of the state regulatory
authorities applicable to the Company. The Reinsurer is responsible for all
costs associated with providing such Trust Agreement and/or Letters of Credit as
required under this Article.
ARTICLE 18 - ERRORS AND OMISSIONS
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Any inadvertent delay, omission or error shall not be held to relieve either
party hereto from any liability or duty which would attach to it hereunder if
such delay, omission, or error had not been made, provided such omission or
error is rectified as soon as possible after discovery.
ARTICLE 19 - TAXES
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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 20 - FEDERAL EXCISE TAX
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Federal Excise Tax applies only to those Reinsurers, excepting Underwriters at
Lloyds, London and other Reinsurers exempt from Federal Excise Tax, who are
domiciled outside the United States of America.
The Reinsurer agrees to allow for the purpose of paying the Federal Excise Tax
the applicable percentage of the premium payable hereon (as imposed under
Section 4371 of the Internal Revenue Code) to the extent such premium is subject
to the Federal Excise Tax.
In the event of any return of premium becoming due hereunder, the Reinsurer will
deduct the same applicable percentage from the return premium payable hereon and
the Company, or its agent, is responsible for recovering the tax from the U.S.
government.
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ARTICLE 21 - INTEREST PENALTY
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The interest amounts provided for in this Article will apply to the Reinsurer or
to the Company in the following circumstances:
A. Loss payment owed by the Reinsurer to the Company shall have a due date to
the Company of 90 calendar days following the date of the billing and/or
proof of loss.
B. Payment of any premium shall be due to the Reinsurer within 90 calendar
days of the date specified in this Agreement. Any premium adjustments will
be due by the debtor party within 150 calendar days of the expiration of
this Agreement.
C. Payment on return of premiums, commissions, profit sharing or any amounts
not provided in paragraph A. or B. above, shall have the due date as
specified in this Agreement. If no due date is specified, the due date
shall be 90 days following the date of billing.
D. Failure by the Reinsurer or the Company to comply with their respective
payment obligations within the time periods as herein provided will result
in a compound interest penalty payable at a rate equal to the 90 day
Treasury Bill rate as published in the Money Rate Section or any successor
section of The Wall Street Journal on the first business day following the
-----------------------
date a remittance becomes due, plus 1 % per annum, to be compounded and
adjusted quarterly. Any interest that occurs pursuant to this Article shall
be calculated by the party to which it is owed. The accumulation of the
number of days that any payment is past due will stop on the date that the
intermediary, where applicable, receives payment.
E. The validity of any claim or payment may be contested under the provisions
of this Agreement. To the extent the debtor party prevails in whole or part
in an arbitration or any other proceeding, there shall be no interest
penalty due. Otherwise, any interest will be calculated and due as outlined
above.
F. If a Reinsurer advances payment of any claim it is contesting, and prevails
in the contest, the Company shall return such payment plus pay interest on
same, calculated as per the provisions of this Article.
G. Any interest which occurs pursuant to this Article may be waived by the
party to which it is owed. Further, any interest which is calculated
pursuant to this Article that is $100 or less shall be waived. Waiver of
such interest shall not affect the waiving party's rights to similar
interest for any other failure by the other party to make payment when due
under this Article.
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H. Nothing in this Article shall diminish any legal remedies that either party
may have against the other.
ARTICLE 22 - AMENDMENTS
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This Agreement may be altered or amended in any of its terms and conditions by
mutual consent of the Company and the Reinsurer by an Endorsement hereto. Such
Endorsement will then constitute a part of this Agreement.
ARTICLE 23 - INSOLVENCY
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In the event of the insolvency of the Company, 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 Reinsurers of the pendency of a claim which 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 their own expense, in the proceeding
where such claim is to be adjudicated any defense or defenses that they may deem
available to the Company or its liquidator, receiver, conservator or statutory
successor. The expenses this 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 as a result of the defense undertaken by the
Reinsurer.
As to all reinsurance made, ceded, renewed or otherwise becoming effective under
this Agreement, the reinsurance shall be payable as set forth above by the
Reinsurer to the Company or to its liquidator, receiver, conservator or
statutory successor, except as provided by Sections 4118(a)(1)(A) and 1114(c) of
the New York Insurance Law or except (1) where the Agreement specifically
provides another payee 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. Then, and in that event only, the
Company, with the prior approval of the certificate of assumption on New York
risks by the Superintendent of Insurance of the State of New York, is entirely
released from its obligation and the Reinsurer pays any loss directly to payees
under such policy.
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ARTICLE 24 - FUNDING OF RESERVES
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As regards policies or bonds issued by the Company within the scope of this
Agreement, the Company agrees that when it shall file with the insurance
regulatory authority or set up on its books reserves for losses, unearned
premium reserves and loss development allowance covered hereunder which it shall
be required by law to set up, it will forward to the Reinsurer a statement
showing the proportion of such reserves which is applicable to the Reinsurer.
The Reinsurer hereby agrees that it will fund such reserves by trust agreements
for the benefit of the Company, letters of credit, or a combination thereof, in
an amount equal to the Reinsurer's proportion of reserves in respect of losses,
unearned premium reserves, incurred but not reported reserves for losses and
loss expense, allocated loss adjustment expense relating thereto, and losses and
allocated loss adjustment expense paid by the Company but not recovered from the
Reinsurer as shown in the statement prepared by the Company (hereinafter
referred to as "Reinsurer's Obligations").
If the Reinsurer's choice of funding is or includes a letter of credit, it will
apply for and secure delivery to the Company of a clean, irrevocable and
unconditional Letter of Credit, dated on or before December 31 of the year in
which the request is made, issued by a bank, and containing provisions
acceptable to the insurance regulatory authorities having jurisdiction over the
Company's reserves. The Letter of Credit shall be issued for a period of not
less than one year, and shall be automatically extended for one year from its
date of expiration or any future expiration date unless thirty (30) days prior
to any expiration date the issuing bank shall notify the Company by certified or
registered mail that the issuing bank elects not to consider the Letter of
Credit extended for any additional period.
The Reinsurer and the Company agree that the trust agreements and/or Letters of
Credit provided by the Reinsurer pursuant to the provisions of this Agreement
may be drawn upon at any time, notwithstanding any other provision of this
Agreement, and be utilized by the Company or any successor, by operation of law,
of the Company including, without limitation, any liquidator, rehabilitator,
receiver or conservator of the Company for the following purposes, unless
otherwise provided for in a separate Trust Agreement:
A. to reimburse the Company for the Reinsurer's Obligations, the payment of
which is due under the terms of this Agreement and which has not been
otherwise paid;
B. to make refund of any sum which is in excess of the actual amount required
to pay the Reinsurer's Obligations under this Agreement;
C. to fund an account with the Company for the Reinsurer's Obligations. Such
cash deposit shall be held in an interest bearing account separate from the
Company's other assets, and interest thereon not in excess of the prime
rate shall accrue to the benefit of the Reinsurer.
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In the event the amount drawn by the Company on any trust agreement and/or
Letter of Credit is in excess of the actual amount required for A) or C), the
Company shall promptly return to the Reinsurer the excess amount so drawn. All
of the foregoing shall be applied without diminution because of insolvency on
the part of the Company or the Reinsurer.
The issuing bank shall have no responsibility whatsoever in connection with the
propriety of withdrawals made by the Company or the disposition of funds
withdrawn, except to ensure that withdrawals are made only upon the order of
properly authorized representatives of the Company.
At annual intervals, or more frequently as agreed, but never more frequently
than quarterly, the Company shall prepare a specific statement of the
Reinsurer's Obligations, for the sole purpose of amending the trust agreement
and/or Letter of Credit, in the following manner:
A. if the statement shows that the Reinsurer's Obligations exceed the balance
of credit as of the statement date, the Reinsurer shall, within thirty (30)
days after receipt of notice of such excess, secure delivery to the Company
of an amendment to the trust agreement and/or Letter of Credit increasing
the amount of credit by the amount of such difference;
B. if however, the statement shows that the Reinsurer's Obligations are less
than the balance of credit as of the statement date, the Company shall
within thirty (30) days after receipt of written request from the
Reinsurer, release such excess credit by agreeing to secure an amendment to
the trust agreement and/or Letter of Credit reducing the amount of credit
available by the amount of such excess credit.
ARTICLE 25 - SERVICE OF SUIT
- ----------------------------
This Article applies only to the Reinsurer signatory hereto who is domiciled
outside the United States of America or, should the Company be authorized to do
business in the State of New York, that Reinsurer who is unauthorized in New
York as respects suits instituted in New York. This Article is not intended to
conflict with nor override the parties obligation to arbitrate their disputes in
accordance with the Arbitration Article.
It is agreed that in the event of the failure of the Reinsurer hereon to pay any
amount claimed to be due hereunder, the Reinsurer hereon, at the request of the
Company, will submit to the jurisdiction of a 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.
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It is further agreed that service of process in such suit may be made upon
Mendes & Mount, 750 Seventh Avenue, New York, New York 10019-6829, and that in
any suit instituted against one of them upon this Agreement, the Reinsurer will
abide by the final decision of such Court or of any Appellate Court in the event
of an appeal.
The above named are authorized and directed to accept service of process on
behalf of the Reinsurer in any such suit and/or upon the request of the Company
to give a written undertaking to the Company that they will enter a general
appearance upon the Reinsurer's behalf in the event such a suit is instituted.
Further, pursuant to any statute of any state, territory or district of the
United States which makes provision thereof, the Reinsurer hereon hereby
designates 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 their true and lawful attorney upon whom may be served
any lawful process in any action, suit or proceeding instituted by or on behalf
of the Company or any beneficiary hereunder arising out of this Agreement, and
hereby designate the above named as the person to whom the said officer is
authorized to mail such process or a true copy thereof.
ARTICLE 26 - ARBITRATION
- ------------------------
As a condition precedent to any right of action hereunder, any dispute arising
out of this Agreement, whether arising before or after termination, shall be
submitted to the decision of a board of arbitration composed of three
arbitrators meeting in Chicago, Illinois unless otherwise agreed.
The members of the board of arbitration shall be active or retired,
disinterested officials of insurance or reinsurance companies or Lloyd's of
London Underwriters, or underwriting members of any Exchange formed for the
purpose of writing insurance or reinsurance. Each party shall appoint its
arbitrator, and the two arbitrators shall choose a third arbitrator before
instituting the hearing. If the respondent fails to appoint its arbitrator
within four weeks after being requested to do so by the claimant, the claimant
shall also appoint the second arbitrator. If the two arbitrators fail to agree
upon the appointment of a third arbitrator within four weeks after their
nominations, each of them shall name three and the decision of the third umpire
shall be made by mutual agreement. If the two arbitrators are unable to agree
upon the third arbitrator within thirty (30) days of their appointment, the
third arbitrator shall be selected from a list of six individuals (three named
by each arbitrator) by a judge of the federal district court having jurisdiction
over the geographical area in which the arbitration is to take place, or if the
federal court declines to act, the state court having general jurisdiction in
such area.
The claimant shall submit its initial brief within 20 days from the appointment
of the umpire. The respondent shall submit its brief within 20 days thereafter,
and the claimant may submit
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a reply brief within 10 days after filing of the respondent's brief. The parties
shall have discovery rights equivalent to those available to litigants in
Illinois. In setting a hearing date, the board shall not commence the hearing
within 21 days of the completion of discovery.
The board shall make its decision with due regard to the custom and usage of the
insurance and reinsurance business. The board shall issue its decision in
writing based upon a hearing in which evidence may be introduced without
following strict rules of law and evidence but in which cross-examination and
rebuttal shall be allowed. The board shall make its decision within 60 days
following the termination of the hearings unless the parties consent to an
extension. The majority decision of the board shall be final and binding upon
all parties to the proceeding. Judgment may be entered upon the award of the
board in any court having jurisdiction thereof.
Each party shall bear the expense of its own arbitrator and shall jointly and
equally bear with the other party the expense of the third arbitrator. The
remaining costs of the arbitration proceedings shall be allocated by the board.
The board is prohibited from awarding punitive, exemplary and/or treble damages
of whatever nature in connection with any arbitration proceeding concerning this
Agreement.
ARTICLE 27 - LAW TO GOVERN
- --------------------------
This Agreement, including all matters relating to formation, validity and
performances thereof, shall be interpreted in accordance with the law of the
State of Illinois, exclusive of its rules with respect to conflict of laws,
except as to rules with respect to credit for reinsurance where the laws of the
(a) the domicile of the individual ceding company shall apply, and (b) the laws
of the other states applying their laws with respect to credit for reinsurance
with a foreign reinsurer shall also apply.
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IN WITNESS WHEREOF, the parties acknowledge that no intermediary is involved in
or brought about this transaction, and the parties hereto, by their authorized
representatives, have executed this Agreement:
on this 29th day of November, 2001
CONTINENTAL CASUALTY COMPANY
By: /s/ Raymond Cyborski
-----------------------------
Attested by: Corinne Kruse
and on this 4th day of December
AMERINST INSURANCE COMPANY LIMITED
By: /s/ Richard Lowther
-----------------------------
Richard Lowther, VP
Attested by: Eva Dillas
--------------------
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