EXHIBIT 10.21
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
TABLE OF CONTENTS
ARTICLE PAGE
- ------- ----
I Classes of Business Reinsured 1
II Commencement and Termination 1
III Territory (BRMA 51A) 3
IV Exclusions 3
V Special Acceptances 7
VI Retention and Limit 7
VII Definitions 8
VIII Annuities at Company's Option 10
IX Claims 11
X Commutation 11
XI Special Commutation 12
XII Salvage and Subrogation 14
XIII Reinsurance Premium 14
XIV Late Payments 14
XV Offset (BRMA 36A) 16
XVI Access to Records (BRMA 1D) 16
XVII Liability of the Reinsurer 16
XVIII Net Retained Lines (BRMA 32E) 16
XIX Errors and Omissions (BRMA 14F) 16
XX Currency (BRMA 12A) 17
XXI Taxes (BRMA 50B) 17
XXII Federal Excise Tax 17
XXIII Reserves and Letters of Credit 17
XXIV Insolvency 19
XXV Arbitration (BRMA 6J) 20
XXVI Service of Suit (BRMA 49C) 21
XXVII Entire Agreement 21
XXVIII Governing Law (BRMA 71B) 21
XXIX Agency Agreement 21
XXX Intermediary (BRMA 23A) 21
(BENFIELD LOGO)
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
(hereinafter referred to collectively as the "Company")
by
The Subscribing Reinsurer(s) Executing the
Interests and Liabilities Agreement(s)
Attached Hereto
(hereinafter referred to as the "Reinsurer")
ARTICLE I - CLASSES OF BUSINESS REINSURED
By this Contract the Reinsurer agrees to reinsure the excess liability which may
accrue to the Company under its policies, contracts and binders of insurance or
reinsurance (hereinafter called "policies") in force at the effective date
hereof or issued or renewed on or after that date, and classified by the Company
as Workers' Compensation, Employers Liability, including coverage provided under
the U.S. Longshore and Harbor Workers' Compensation Act and the Jones Act, and
General Liability business, subject to the terms, conditions and limitations
hereinafter set forth.
ARTICLE II - COMMENCEMENT AND TERMINATION
A. This Contract shall become effective at 12:01 a.m., Local Standard Time,
January 1, 2007, with respect to losses arising out of occurrences
commencing at or after that time and date, and shall continue in force
thereafter until terminated.
B. Either party may terminate this Contract at 12:01 a.m., Local Standard
Time, on any January 1 by giving the other party not less than 90 days
prior notice by certified or registered mail.
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C. Notwithstanding the provisions of paragraph B above, the Company may
terminate a Subscribing Reinsurer's percentage share in this Contract in
the event any of the following circumstances occur as clarified by public
announcement for subparagraphs 1 through 6 below and upon discovery for
subparagraphs 7 and 8 below. The Company has 120 days from the date of
applicable public announcement or discovery to exercise the option to
terminate a Subscribing Reinsurer's percentage share in this Contract. The
effective date of special termination shall not be sooner than one day
after the Company provides the Subscribing Reinsurer notice of its election
to specially terminate, unless mutually agreed otherwise:
1. The Subscribing Reinsurer's policyholders' surplus at the beginning of
any contract year has been reduced by more than 20.0% of the amount of
surplus 12 months prior to that date; or
2. The Subscribing Reinsurer's policyholders' surplus at any time during
any contract year has been reduced by more than 20.0% of the amount of
surplus at the date of the Subscribing Reinsurer's most recent
financial statement filed with regulatory authorities and available to
the public as of the beginning of the contract year; or
3. The Subscribing Reinsurer's A.M. Best's rating has been assigned or
downgraded below A- (inclusive of "Not Rated" ratings) and/or Standard
& Poor's rating has been assigned or downgraded below BBB+ (inclusive
of "Not Rated" ratings); or
4. The Subscribing Reinsurer has become merged with, acquired by or
controlled by any other company, corporation or individual(s) not
controlling the Subscribing Reinsurer's operations previously; or
5. A State Insurance Department or other legal authority has ordered the
Subscribing Reinsurer to cease writing business; or
6. The Subscribing Reinsurer has become insolvent or has been placed into
liquidation or receivership (whether voluntary or involuntary) or
proceedings have been instituted against the Subscribing Reinsurer for
the appointment of a receiver, liquidator, rehabilitator, conservator
or trustee in bankruptcy, or other agent known by whatever name, to
take possession of its assets or control of its operations; or
7. The Subscribing Reinsurer has reinsured its entire liability under
this Contract without the Company's prior written consent; or
8. The Subscribing Reinsurer has ceased assuming new and renewal treaty
reinsurance business.
D. Unless the Company elects that the Reinsurer have no liability for losses
arising out of occurrences commencing after the effective date of
termination, and so notifies the Reinsurer prior to or as promptly as
possible after the effective date of termination, reinsurance hereunder on
business in force on the effective date of termination 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 12 months
plus odd time (not exceeding 18 months in all) following the effective date
of termination.
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ARTICLE III - TERRITORY (BRMA 51A)
The territorial limits of this Contract shall be identical with those of the
Company's policies.
ARTICLE IV - EXCLUSIONS
A. This Contract does not apply to and specifically excludes the following:
1. Lines of business not identified in the Classes of Business Reinsured
Article.
2. All excess of loss reinsurance assumed by the Company.
3. Reinsurance assumed by the Company under obligatory reinsurance
agreements, except:
a. Agency reinsurance where the policies involved are to be
reunderwritten in accordance with the underwriting standards of
the Company and reissued as Company policies at the next
anniversary or expiration date; and
b. Intercompany reinsurance between any of the reinsured companies
under this Contract.
4. Business written by the Company on a co-indemnity basis where the
Company is not the controlling carrier.
5. Business written to apply in excess of a deductible of more than
$25,000, and business issued to apply specifically in excess over
underlying insurance. However, if the Company is required, by any
state regulation, to provide a deductible of more than $25,000, this
exclusion shall not apply.
6. Nuclear risks as defined in the "Nuclear Incident Exclusion Clause -
Liability - Reinsurance (U.S.A.)" attached to and forming part of this
Contract.
7. As regards interests which at time of loss or damage are on shore, no
liability shall attach hereto in respect of any loss or damage which
is occasioned by 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. This War Exclusion Clause shall not, however, apply to
interests which at time of loss or damage are within the territorial
limits of the United States of America (comprising the Fifty States of
the Union, the District of Columbia, and including bridges between the
United States of America and Mexico provided they are under United
States ownership), Canada, St. Pierre and Miquelon, provided such
interests are insured under policies containing a standard war or
hostilities or warlike operations exclusion clause.
8. Liability as a member, subscriber or reinsurer of any Pool, Syndicate
or Association, but this exclusion shall not apply to Assigned Risk
Plans or similar plans.
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9. 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.
10. Workers' Compensation where the principal exposures, as defined by the
governing class code, include:
a. Operation of aircraft, but only if the annual estimated policy
premium is $250,000 or more;
b. Railroad, subway or street railway operations;
c. Operation or navigation of vessels or barges;
d. Manufacture, production or refining of gas, natural or artificial
fuel, or other liquefied petroleum fuel, but only if the annual
estimated policy premium is $250,000 or more;
e. Manufacturing, assembly, packing or processing of fireworks,
fuses, nitroglycerine, magnesium, pyroxylin, ammunition or
explosives. This exclusion does not apply to the assembly,
packing or processing of explosives when the estimated annual
premium is under $250,000;
f. Wrecking or demolition of structures, but only if the annual
estimated policy premium is $250,000 or more;
g. Underground mining.
11. As respects Workers' Compensation and Employers Liability only, unless
otherwise excluded as set forth above, the reinsurance provided under
this Contract shall not apply to any loss, cost or expense arising out
of or related to, either directly or indirectly, any "terrorist
activity," as defined herein, but this exclusion shall only apply when
the activity includes, involves or is associated with the use of any
biological, chemical, radioactive or nuclear agent, material, device
or weapon, or when the predominant business of the policyholder, as
defined by the governing class code, is:
a. The operation of: airports and aircraft; flight schools; bridges,
dams, tunnels or locks; department stores; shopping malls; chain
retail stores; casinos and casino hotels; cruise lines;
railroads; ports/public transit authorities; security services;
stadiums; convention/exhibition centers; or theme/amusement
parks;
b. The manufacture and distribution of: automobiles; chemicals,
petrochemicals or pharmaceuticals; utilities (electric, gas,
water and sewer); major defense/aerospace products; or high-tech
equipment, but only if the policyholder
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employs more than 20 personnel at the location of a terrorist
activity at the time of its occurrence;
c. The management or operation of the following type of structures,
but only if greater than 25 stories in height:
apartments/condominiums/co-ops; hotels/motels; or office
buildings;
d. Businesses primarily engaged in the entertainment, media or
transportation industry limited to the following: major media
providers (NBC, FOX, ABC, CBS, etc.); television and motion
picture studios; Broadway theaters; major internet companies
(AOL, Yahoo, etc.); professional sports teams; major
telecommunications companies (AT&T, WorldCom/MCI, etc.); national
truck rental companies (Ryder, Penske, U-Haul, etc.); or major
national motor freight common carriers (J.B. Hunt, Red Arrow,
etc.);
e. Policyholders primarily located in, or predominantly doing
business as: hospitals; universities; nuclear facilities;
financial institutions; or governmental buildings and national
landmarks.
"Terrorist activity" shall mean any deliberate, unlawful act that:
a. Is declared by any authorized government official to be or to
involve terrorism, terrorist activity or acts of terrorism; or
b. Includes, involves, or is associated with the use or threatened
use of force, violence or harm against any person, tangible or
intangible property, the environment, or any natural resources,
where the act or threatened act is intended, in whole or in part,
to:
i. Promote or further any political, ideological,
philosophical, racial, ethnic, social or religious cause or
objective of the perpetrator or any organization,
association or group affiliated with the perpetrator; or
ii. Influence, disrupt or interfere with any government related
operations, activities or policies; or
iii. Intimidate, coerce or frighten the general public or any
segment of the general public; or
iv. Disrupt or interfere with a national economy or any segment
of a national economy; or
c. Includes, involves, or is associated with, in whole or in part,
any of the following activities, or the threat thereof:
i. Hijacking or sabotage of any form of transportation or
conveyance, including but not limited to spacecraft,
satellite, aircraft, train, vessel or motor vehicle;
ii. Hostage taking or kidnapping;
iii. The use of any bomb, incendiary device, explosive or
firearm;
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iv. The interference with or disruption of basic public or
commercial services and systems, including but not limited
to the following services or systems: electricity, natural
gas, power, postal, communications, telecommunications,
information, public transportation, water, fuel, sewer or
waste disposal;
v. The injuring or assassination of any elected or appointed
government official or any government employee;
vi. The seizure, blockage, interference with, disruption of, or
damage to any government buildings, institutions, functions,
events, tangible or intangible property or other assets; or
vii. The seizure, blockage, interference with, disruption of, or
damage to tunnels, roads, streets, highways, or other places
of public transportation or conveyance.
d. Any of the activities listed in subparagraph c, above, shall be
considered terrorist activity, except where the Company can
demonstrate to the Reinsurer that the foregoing activities or
threats thereof were motivated solely by personal objectives of
the perpetrator that are unrelated, in whole or in part, to any
intention to:
i. Promote or further any political, ideological,
philosophical, racial, ethnic, social or religious cause or
objective of the perpetrator or any organization,
association or group affiliated with the perpetrator;
ii. Influence, disrupt or interfere with any government-related
operations, activities or policies;
iii. Intimidate, coerce or frighten the general public or any
segment of the general public; or
iv. Disrupt or interfere with a national economy or any segment
of a national economy.
12. As respects General Liability policies, exposures, other than those
identified below, as included in the General Liability section of the
Company's Commercial Lines Manual:
a. Class 97111 - Logging;
b. Class 58873 - Sawmill;
c. Class 59984 - Woodyard and Drivers;
d. Class 95410 - Grading of Land;
e. Class 45819 - Lumber Yard;
f. Class 10073 - Repair Shops and Drivers;
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g. Class 43822 - Timber Cruiser;
h. Class 99793 - Truckmen Not Otherwise Classified;
i. Class 91591 - Contractors - Subcontracted Work Other Than
Construction;
j. Class 49452 - Vacant Land.
B. Any exclusion set forth in subparagraphs 10 and/or 12 of paragraph A shall
be waived automatically when, in the opinion of the Company, the exposure
excluded therein is incidental to the principal exposure on the risk in
question.
C. If the Company is bound, without the knowledge and contrary to the
instructions of the Company's supervisory underwriting personnel, on any
business falling within the scope of one or more of the exclusions set
forth in subparagraphs 10 and/or 12 of paragraph A, the exclusion shall be
suspended with respect to such business until the Company has the first
opportunity to cancel the policy in compliance with governmental
requirements.
D. If the Company is required to accept an assigned risk which conflicts with
one or more of the exclusions set forth in subparagraph 10 of paragraph A,
reinsurance shall apply, but only for the difference between the Company's
retention and the minimum limit required by the applicable state statute,
and in no event shall the Reinsurer's liability exceed the limit set forth
in the Retention and Limit Article.
ARTICLE V - SPECIAL ACCEPTANCES
From time to time the Company may request a special acceptance of reinsurance
falling outside the scope of the provisions set forth in this Contract. If each
Subscribing Reinsurer whose share in the interests and liabilities of the
Reinsurer is 20.0% or greater agrees to a special acceptance, such special
acceptance shall be binding on all Subscribing Reinsurers with respect to their
respective shares. If such agreement is not achieved, such special acceptance
shall be made to this Contract only with respect to the interests and
liabilities of each Subscribing Reinsurer who agrees to the special acceptance.
In the event a reinsurer becomes a party to this Contract subsequent to one or
more special acceptances hereunder, the new reinsurer shall automatically accept
such special acceptance(s) as being covered hereunder.
ARTICLE VI - RETENTION AND LIMIT
A. The Company shall retain and be liable for the first $2,000,000 of ultimate
net loss arising out of each occurrence. The Reinsurer shall then be liable
(subject to the provisions of paragraph B below) for the amount by which
such ultimate net loss exceeds the Company's retention, but the liability
of the Reinsurer shall not exceed $3,000,000 as respects any one
occurrence, nor shall the liability of the Reinsurer exceed $51,000,000 in
all for the contract year.
B. Notwithstanding the provisions of paragraph A above, no claim shall be made
under this Contract during any contract year unless and until cumulative
subject excess losses paid from losses arising out of occurrences
commencing during the contract year (being losses which would be
recoverable from the Reinsurer under paragraph A above were it not for the
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provisions of this paragraph) exceed an annual aggregate retention of 1.8%
of net earned premium. The Company shall retain and be liable for such
annual aggregate retention in addition to its initial loss retention
stipulated in paragraph A above.
C. As respects any loss or losses arising out of terrorist activity, the
liability of the Reinsurer shall not exceed $3,000,000 each contract year.
Terrorism losses that apply to the annual aggregate deductible shall not
reduce the liability of the Reinsurer as respects the aggregate terrorism
limit.
D. The Company shall be permitted to carry quota share and excess reinsurance,
recoveries under which shall inure solely to the benefit of the Company and
be entirely disregarded in applying all of the provisions of this Contract.
E. The Company shall purchase or be deemed to have purchased inuring excess
facultative reinsurance to limit its ultimate net loss under any one
coverage, any one policy (exclusive of loss in excess of policy limits or
extra contractual obligations) to $2,000,000 each occurrence as respects
General Liability and Employers Liability business subject hereto.
F. The Company shall be permitted to carry excess of loss reinsurance
applying to Workers' Compensation risks in the State of Minnesota,
recoveries under which shall inure to the benefit of this Contract.
Such coverage shall be provided through the Minnesota Workers'
Compensation Reinsurance Association. It is understood that the liability
of the Reinsurer for Minnesota Workers' Compensation risks is not
released.
In the event the Company accrues liability that is not provided by any
inuring reinsurance, for whatever reason, the Reinsurer agrees to reinsure
such excess liability.
ARTICLE VII - 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 any 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 an action against its insured or
reinsured or in the preparation or prosecution of an appeal consequent
upon such an action.
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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.
If any provision of this Article 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.
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.
C. "Occurrence" as used herein is defined as an accident or occurrence or a
series of accidents or occurrences arising out of or caused by one event,
except that:
1. As respects General Liability policies where the Company's limit of
liability for Products and Completed Operations coverages is
determined on the basis of the insured's aggregate losses during a
policy period, all such losses proceeding from or traceable to the
same causative agency shall, at the Company's option, be deemed to
have been caused by one occurrence commencing at the beginning of the
policy period, it being understood and agreed that each renewal or
annual anniversary date of the policy involved shall be deemed the
beginning of a new policy period;
2. Each occupational or industrial disease case or cumulative trauma case
contracted by an employee of an insured shall be deemed to have been
caused by a separate occurrence, commencing on:
a. The date of disability for which compensation is payable if the
case is compensable under the Workers' Compensation Law;
b. The date disability due to the disease actually began if the case
is not compensable under the Workers' Compensation Law;
c. The date of cessation of employment if claim is made after
employment has ceased.
3. Notwithstanding the provisions of subparagraph 2 above, as respects
losses resulting from occupational or industrial disease or cumulative
trauma suffered by employees of
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an insured for which the employer is liable, as a result of a sudden
and accidental event not exceeding 72 hours in duration, all such
losses shall be considered one occurrence and may be combined with
losses classified as other than occupational or industrial disease or
cumulative trauma which arise out of the same event and the
combination of such losses shall be considered as one occurrence
within the meaning hereof.
D. "Occupational or industrial disease" is any abnormal condition that
fulfills all of the following conditions:
1. It is not traceable to a definite compensable accident occurring
during the employee's past or present employment.
2. It has been caused by exposure to a disease producing agent or agents
present in the worker's occupational environment.
3. It has resulted in disability or death.
E. "Cumulative trauma" is an injury that fulfills all of the following
conditions:
1. It is not traceable to a definite compensable accident occurring
during the employee's past or present employment.
2. It has occurred from and has been aggravated by a repetitive
employment related activity.
3. It has resulted in disability or death.
F. "Loss adjustment expense" as used herein shall mean expenses allocable to
the investigation, defense and/or settlement of specific claims, including
litigation expenses, interest on judgments, declaratory judgment expenses
or other legal expenses and costs incurred in connection with coverage
questions and legal actions connected thereto, and salaries and expenses of
salaried adjusters associated with claims covered under policies of the
Company reinsured hereunder but not including office expenses or salaries
of the Company's regular employees.
G. "Contract year" as used in this Contract shall mean the period from 12:01
a.m., Local Standard Time, January 1, 2007 to 12:01 a.m., Local Standard
Time, January 1, 2008, and each respective 12-month period thereafter that
this Contract continues in force. However, if this Contract is terminated,
the final contract year shall be from the beginning of the then current
contract year through the date of termination if this Contract is
terminated on a "cutoff" basis, or the end of the runoff period if this
Contract is terminated on a "runoff" basis.
ARTICLE VIII - ANNUITIES AT COMPANY'S OPTION
A. Whenever the Company is required, or elects, to purchase an annuity or to
negotiate a structured settlement, either in satisfaction of a judgment or
in an out-of-court settlement or otherwise, the cost of the annuity or the
structured settlement, as the case may be, shall be deemed part of the
Company's ultimate net loss.
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B. The terms "annuity" or "structured settlement" shall be understood to mean
any insurance policy, lump sum payment, agreement or device of whatever
nature resulting in the payment of a lump sum by the Company in settlement
of any or all future liabilities which may attach to it as a result of an
occurrence.
C. In the event the Company purchases an annuity which inures in whole or in
part to the benefit of the Reinsurer, it is understood that the liability
of the Reinsurer is not released thereby. In the event the Company is
required to provide benefits not provided by the annuity for whatever
reason, the Reinsurer shall pay its share of any loss.
ARTICLE IX - CLAIMS
A. Whenever a claim is reserved by the Company for an amount greater than
50.0% of its retention hereunder and/or whenever a claim appears likely to
result in a claim under this Contract, the Company shall notify the
Reinsurer. Further, the Company shall notify the Reinsurer whenever a claim
involves a fatality, major limb amputation, spinal cord damage, brain
damage, blindness or extensive burns, regardless of liability, if the
policy limits or statutory benefits applicable to the claim are greater
than the Company's retention hereunder. The Reinsurer shall have the right
to participate, at its own expense, in the defense of any claim or suit or
proceeding involving this reinsurance.
B. All claim settlements made by the Company, provided they are within the
terms of this Contract (including but not limited to ex-gratia payments),
shall be binding upon the Reinsurer, and the Reinsurer agrees to pay all
amounts for which it may be liable upon receipt of satisfactory evidence of
the amount paid by the Company.
ARTICLE X - COMMUTATION
A. Upon mutual agreement, the Company may commute the contract year.
B. Unless otherwise mutually agreed, the calculation for the commutation shall
be calculated in accordance with the following formula:
1. The net reinsurance premium earned (i.e., the gross reinsurance
premium earned less the ceding commission allowed) for the contract
year; less
2. The Reinsurer's paid losses and loss adjustment expense on losses
arising out of occurrences commencing during the contract year; less
3. The Reinsurer's margin at 25.0% of the net reinsurance premium earned
(i.e., the gross reinsurance premium earned less the ceding commission
allowed) for the contract year; equals
4. The commutation balance.
C. Payment to the Company of the commutation balance will result in a full and
final commutation of all known and unknown losses and shall constitute a
complete and final
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release of the Reinsurer and the Company in respect of any and all
liabilities on business covered under this Contract during the contract
year commuted.
D. Should the calculation be zero or negative, no payment shall be made and
the Company shall have the option to provide a full and final commutation
of all known and unknown losses, which shall constitute a complete and
final release of the Reinsurer and the Company with respect to any and all
liabilities on business covered under this Contract during the contract
year commuted.
ARTICLE XI - SPECIAL COMMUTATION
A. In the event a Subscribing Reinsurer meets the following conditions, the
Company may require a commutation of that portion of any excess loss
hereunder represented by any outstanding claim or claims, including any
related loss adjustment expense.
1. The Subscribing Reinsurer's A.M. Best's rating has been assigned or
downgraded below A- (inclusive of "Not Rated" ratings) and/or Standard
& Poor's rating has been assigned or downgraded below BBB+ (inclusive
of "Not Rated" ratings); or
2. The Subscribing Reinsurer has ceased assuming new and renewal treaty
reinsurance business.
"Outstanding claim or claims" shall be defined as known or unknown claims,
including any billed yet unpaid claims. However, unless otherwise mutually
agreed, this paragraph shall not apply unless the outstanding claim or
claims is for an amount not less than $5,000.
B. If the Company elects to require commutation as provided in paragraph A
above, the Company shall submit a Statement of Valuation of the outstanding
claim or claims as of the last day of the month immediately preceding the
month in which the Company elects to require commutation, as determined by
the Company. Such Statement of Valuation shall include the elements
considered reasonable to establish the excess loss and shall set forth or
attach the information relied upon by the Company and the methodology
employed to calculate the excess loss. The Subscribing Reinsurer shall then
pay the amount requested within 30 calendar days of receipt of such
Statement of Valuation, unless the Subscribing Reinsurer needs additional
information from the Company to assess the Company's Statement of Valuation
or contests such amount.
C. If the Subscribing Reinsurer needs additional information from the Company
to assess the Company's Statement of Valuation or contests the amount
requested, the Subscribing Reinsurer shall so notify the Company within 15
calendar days of receipt of the Company's Statement of Valuation. The
Company shall supply any reasonably requested information to the
Subscribing Reinsurer within 15 calendar days of receipt of the
notification. Within 30 calendar days of the date of the notification or of
the receipt of the information, whichever is later, the Subscribing
Reinsurer shall provide the Company with its Statement of Valuation of the
outstanding claim or claims as of the last day of the month immediately
preceding the month in which the Company elects to require commutation, as
determined by the Subscribing Reinsurer. Such Statement of Valuation shall
include the elements considered reasonable to establish the excess loss and
shall set forth or attach the information relied upon by the Subscribing
Reinsurer and the methodology employed to calculate the excess loss.
Page 12
D. In the event the Subscribing Reinsurer's Statement of Valuation of the
outstanding claim or claims is viewed as unacceptable to the Company, the
Company may either abandon the commutation effort, or may seek to settle
any difference by using an independent actuary agreed to by the parties.
E. If the parties cannot agree on an acceptable independent actuary within 15
calendar days of the date of the Subscribing Reinsurer's Statement of
Valuation, then each party shall appoint an actuary as party arbitrators
for the limited and sole purpose of selecting an independent actuary. If
the actuaries cannot agree on an acceptable independent actuary within 15
calendar days of the date of the Subscribing Reinsurer's Statement of
Valuation, the Company shall supply the Subscribing Reinsurer with a list
of at least three proposed independent actuaries, and the Subscribing
Reinsurer shall select the independent actuary from that list.
F. Upon selection of the independent actuary, both parties shall present their
respective written submissions to the independent actuary. The independent
actuary may, at his or her discretion, request additional information. The
independent actuary shall issue his or her decision within 45 calendar days
after the written submissions have been filed and any additional
information has been provided.
G. The decision of the independent actuary shall be final and binding. The
expense of the independent actuary shall be equally divided between the two
parties. For the purposes of this Article, unless mutually agreed
otherwise, an "independent actuary" shall be an actuary who satisfies each
of the following criteria:
1. Is regularly engaged in the valuation of claims resulting from lines
of business subject to this Contract; and
2. Is either a Fellow of the Casualty Actuarial Society or of the
American Academy of Actuaries; and
3. Is disinterested and impartial regarding this commutation.
H. Notwithstanding paragraphs A, B and C above, in the event that the
Subscribing Reinsurer no longer meets the conditions set forth in
subparagraph 1 or 2 in paragraph A above, this commutation may continue on
a mutually agreed basis.
I. Payment by the Subscribing Reinsurer of the amount requested in accordance
with paragraph B, C or F above, shall release the Subscribing Reinsurer
from all further liability for outstanding claim or claims, known or
unknown, under this Contract, which shall release the Company from all
further liability for payments of salvage or subrogation amounts, known or
unknown, to the Subscribing Reinsurer under this Contract.
J. In the event of any conflict between this Article and any other Article of
this Contract, the terms of this Article shall control.
K. This Article shall not apply to a Subscribing Reinsurer which is rated "A+"
or better by A.M. Best at the beginning of any Contract year.
L. This Article shall survive the termination of this Contract.
Page 13
ARTICLE XII - 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) or subrogation on
account of claims and settlements involving reinsurance hereunder. Salvage or
subrogation 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 where it is
economically reasonable in the judgment of the Company, 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 XIII - REINSURANCE PREMIUM
A. As premium for the reinsurance provided hereunder during each contract
year, the Company shall pay the Reinsurer 4.929% (3.450% net) of its net
earned premium.
The Reinsurer shall allow the Company a 30.0% commission on all premiums
ceded to the Reinsurer hereunder. The Company shall allow the Reinsurer
return commission on return premiums at the same rate.
B. Within 30 days after the end of each month, the Company shall report its
net earned premium for the month. The premium due the Reinsurer, at the
rate shown in paragraph A, shall be paid by the Company with its report. In
the event this Contract is terminated in accordance with paragraph C of the
Commencement and Termination Article, no payments shall be due as respects
each Subscribing Reinsurer after the effective date of termination.
C. Within 60 days after the end of each contract year, the Company shall
provide a report to the Reinsurer setting forth the premium due hereunder
for the contract year, computed in accordance with paragraph A, and any
additional premium due the Reinsurer or return premium due the Company
shall be remitted promptly.
D. "Net earned premium" as used herein is defined as the Company's gross
earned premium collected on the classes of business subject to this
Contract, less only the earned portion of premiums, if any, ceded by the
Company for reinsurance which inures to the benefit of this Contract and
less dividends incurred.
ARTICLE XIV - 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 in the Intermediary Article (BRMA 23A)
(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
Page 14
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 sum of 400 basis points plus 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 45 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 45 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 14 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 the 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.
Page 15
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.
ARTICLE XV - OFFSET (BRMA 36A)
The Company and the Reinsurer may offset any balance or amount due from one
party to the other under this Contract or any other contract heretofore or
hereafter entered into between the Company and the Reinsurer, whether acting as
assuming reinsurer or ceding company. This provision shall not be affected by
the insolvency of either party to this Contract.
ARTICLE XVI - ACCESS TO RECORDS (BRMA 1D)
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 XVII - 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.
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 XVIII - NET RETAINED LINES (BRMA 32E)
A. This Contract applies only to that portion of any policy which the Company
retains net for its own account (prior to deduction of any underlying
reinsurance specifically permitted in this Contract), and in calculating
the amount of any loss hereunder and also in computing the amount or
amounts in excess of which this Contract attaches, only loss or losses in
respect of that portion of any policy which 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 have become due from such reinsurer(s), whether such
inability arises from the insolvency of such other reinsurer(s) or
otherwise.
ARTICLE XIX - 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
Page 16
delay, error or omission not occurred, provided always that such error or
omission is rectified as soon as possible after discovery.
ARTICLE XX - 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 on the books of the Company.
ARTICLE XXI - 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 XXII - FEDERAL EXCISE TAX
A. The Reinsurer has agreed to allow for the purpose of paying the Federal
Excise Tax the applicable percentage of the premium payable hereon (as
imposed under Section 4371 of the Internal Revenue Code) to the extent such
premium is subject to the Federal Excise Tax.
B. In the event of any return of premium becoming due hereunder the Reinsurer
will deduct the applicable percentage from the return premium payable
hereon and the Company or its agent should take steps to recover the tax
from the United States Government.
ARTICLE XXIII - RESERVES AND LETTERS OF CREDIT
[Applies only to a reinsurer which does not qualify for full credit with any
insurance regulatory authority having jurisdiction over the Company's reserves,
which is or becomes rated "B++" or lower by A.M. Best (inclusive of "Not Rated"
ratings) and/or Standard & Poor's rating is or becomes "BBB+" or lower
(inclusive of "Not Rated" ratings).]
A. As regards policies or bonds issued by the Company coming within the scope
of this Contract, the Company agrees that when it shall file with the
insurance regulatory authority or set up on its books reserves for losses
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
to fund such reserves in respect of known outstanding losses that have been
reported to the Reinsurer and allocated loss adjustment expense relating
thereto, losses and allocated loss adjustment expense paid by the Company
but not recovered from the Reinsurer, plus reserves for losses incurred but
not reported, as shown in the statement prepared by the
Page 17
Company (hereinafter referred to as "Reinsurer's Obligations") by funds
withheld, cash advances or a Letter of Credit. The Reinsurer shall have the
option of determining the method of funding provided it is acceptable to
the insurance regulatory authorities having jurisdiction over the Company's
reserves with regards to unauthorized reinsurers; or, should the Reinsurer
be downgraded, the method of funding shall be mutually agreed.
B. When funding by a Letter of Credit, the Reinsurer agrees to apply for and
secure timely delivery to the Company of a clean, irrevocable and
unconditional Letter of Credit issued by a bank meeting the NAIC Securities
Valuation Office credit standards for issuers of Letters of Credit and
containing provisions acceptable to the insurance regulatory authorities
having jurisdiction over the Company's reserves in an amount equal to the
Reinsurer's proportion of said reserves. Such Letter of Credit shall be
issued for a period of not less than one year, and shall contain an
"evergreen" clause, which automatically extends the term for one year from
its date of expiration or any future expiration date unless 30 days (60
days where required by insurance regulatory authorities) prior to any
expiration date the issuing bank shall notify the Company by certified or
registered mail that the issuing bank elects not to consider the Letter of
Credit extended for any additional period.
C. The Reinsurer and Company agree that the Letters of Credit provided by the
Reinsurer pursuant to the provisions of this Contract may be drawn upon at
any time, notwithstanding any other provision of this Contract, 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:
1. To reimburse the Company for the Reinsurer's Obligations, the payment
of which is due under the terms of this Contract and which has not
been otherwise paid;
2. To make refund of any sum which is in excess of the actual amount
required to pay the Reinsurer's Obligations under this Contract, if so
requested by the Reinsurer;
3. 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;
4. To pay the Reinsurer's share of any other amounts the Company claims
are due under this Contract.
In the event the amount drawn by the Company on any Letter of Credit is in
excess of the actual amount required for subparagraphs 1 or 3, or in the
case of subparagraph 4, the actual amount determined to be due, 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.
D. 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.
Page 18
E. 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 Letter of
Credit, in the following manner:
1. If the statement shows that the Reinsurer's Obligations exceed the
balance of credit as of the statement date, the Reinsurer shall,
within 30 days after receipt of notice of such excess, secure delivery
to the Company of an amendment to the Letter of Credit increasing the
amount of credit by the amount of such difference.
2. 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 30 days after receipt of written request from the
Reinsurer, release such excess credit by agreeing to secure an
amendment to the Letter of Credit reducing the amount of credit
available by the amount of such excess credit.
F. This Article shall not apply to a reinsurer which satisfies both of the
following conditions:
1. Qualifies for full credit with any insurance regulatory authority
having jurisdiction over the Company's reserves; and
2. Is rated "A+" or better by A.M. Best at the beginning of any contract
year.
ARTICLE XXIV - 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 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
Page 19
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 XXV - ARBITRATION (BRMA 6J)
A. As a condition precedent to any right of action hereunder, in the event of
any dispute or difference of opinion hereafter arising with respect to this
Contract, it is hereby mutually agreed that such dispute or difference of
opinion shall be submitted to arbitration. One Arbiter shall be chosen by
the Company, the other by the Reinsurer, and an Umpire shall be chosen by
the two Arbiters before they enter upon arbitration, all of whom shall be
active or retired disinterested executive officers of insurance or
reinsurance companies or Lloyd's London Underwriters. In the event that
either party should fail to choose an Arbiter within 30 days following a
written request by the other party to do so, the requesting party may
choose two Arbiters who shall in turn choose an Umpire before entering upon
arbitration. If the two Arbiters fail to agree upon the selection of an
Umpire within 30 days following their appointment, each Arbiter shall
nominate three candidates within 10 days thereafter, two of whom the other
shall decline, and the decision shall be made by drawing lots.
B. Each party shall present its case to the Arbiters within 30 days following
the date of appointment of the Umpire. The Arbiters shall consider this
Contract as an honorable engagement rather than merely as a legal
obligation and they are relieved of all judicial formalities and may
abstain from following the strict rules of law. The decision of the
Arbiters shall be final and binding on both parties; but failing to agree,
they shall call in the Umpire and the decision of the majority shall be
final and binding upon both parties. Judgment upon the final decision of
the Arbiters may be entered in any court of competent jurisdiction.
C. If more than one reinsurer is involved in the same dispute, all such
reinsurers shall constitute and act as one party for purposes of this
Article and communications shall be made by the Company to each of the
reinsurers constituting one party, provided, however, that nothing herein
shall impair the rights of such reinsurers to assert several, rather than
joint, defenses or claims, nor be construed as changing the liability of
the reinsurers participating under the terms of this Contract from several
to joint.
D. Each party shall bear the expense of its own Arbiter, and shall jointly and
equally bear with the other the expense of the Umpire and of the
arbitration. In the event that the two Arbiters are chosen by one party, as
above provided, the expense of the Arbiters, the Umpire and the arbitration
shall be equally divided between the two parties.
E. Any arbitration proceedings shall take place at a location mutually agreed
upon by the parties to this Contract, but notwithstanding the location of
the arbitration, all proceedings pursuant hereto shall be governed by the
law of the state in which the Company has its principal office.
Page 20
ARTICLE XXVI - 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 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.
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 XXVII - ENTIRE AGREEMENT
This written Contract constitutes the entire agreement between the parties
hereto with respect to the business being reinsured hereunder, and there are no
understandings between the parties hereto other than as expressed in this
Contract. Any change or modification to this Contract will be made by amendment
to this Contract and signed by the parties.
ARTICLE XXVIII - GOVERNING LAW (BRMA 71B)
This Contract shall be governed by and construed in accordance with the laws of
the State of Louisiana.
ARTICLE XXIX - 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.
ARTICLE XXX - INTERMEDIARY (BRMA 23A)
Benfield Inc. 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
Page 21
Benfield Inc. 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:
DeRidder, Louisiana, this ________ day of ________________ in the year ________.
______________________________________________________
American Interstate Insurance Company
American Interstate Insurance Company of Texas
Silver Oak Casualty, Inc.
Page 22
NUCLEAR INCIDENT EXCLUSION CLAUSE - LIABILITY - REINSURANCE (U.S.A.)
(Approved by Lloyd's Underwriters' Fire and Non-Marine Association)
(1) This reinsurance does not cover any loss or liability accruing to the
Reassured as a member of, or subscriber to, any association of insurers or
reinsurers formed for the purpose of covering nuclear energy risks or as a
direct or indirect reinsurer of any such member, subscriber or association.
(2) Without in any way restricting the operation of paragraph (1) of this
Clause it is understood and agreed that for all purposes of this
reinsurance all the original policies of the Reassured (new, renewal and
replacement) of the classes specified in Clause II of this paragraph (2)
from the time specified in Clause III in this paragraph (2) shall be deemed
to include the following provision (specified as the Limited Exclusion
Provision):
LIMITED EXCLUSION PROVISION.*
I. It is agreed that the policy does not apply under any liability
coverage, to
(injury, sickness, disease, death or destruction
(bodily injury or property damage
with respect to which an insured under the policy is also an insured
under a nuclear energy liability policy issued by Nuclear Energy
Liability Insurance Association, Mutual Atomic Energy Liability
Underwriters or Nuclear Insurance Association of Canada, or would be
an insured under any such policy but for its termination upon
exhaustion of its limit of liability.
II. Family Automobile Policies (liability only), Special Automobile
Policies (private passenger automobiles, liability only), Farmers
Comprehensive Personal Liability Policies (liability only),
Comprehensive Personal Liability Policies (liability only) or policies
of a similar nature; and the liability portion of combination forms
related to the four classes of policies stated above, such as the
Comprehensive Dwelling Policy and the applicable types of Homeowners
Policies.
III. The inception dates and thereafter of all original policies as
described in II above, whether new, renewal or replacement, being
policies which either
(a) become effective on or after 1st May, 1960, or
(b) become effective before that date and contain the Limited
Exclusion Provision set out above;
provided this paragraph (2) shall not be applicable to Family
Automobile Policies, Special Automobile Policies, or policies or
combination policies of a similar nature, issued by the Reassured on
New York risks, until 90 days following approval of the Limited
Exclusion Provision by the Governmental Authority having jurisdiction
thereof.
(3) Except for those classes of policies specified in Clause II of paragraph
(2) and without in any way restricting the operation of paragraph (1) of
this Clause, it is understood and agreed that for all purposes of this
reinsurance the original liability policies of the Reassured (new, renewal
and replacement) affording the following coverages:
Owners, Landlords and Tenants Liability, Contractual Liability,
Elevator Liability, Owners or Contractors (including railroad)
Protective Liability, Manufacturers and Contractors Liability, Product
Liability, Professional and Malpractice Liability, Storekeepers
Liability, Garage Liability, Automobile Liability (including
Massachusetts Motor Vehicle or Garage Liability)
shall be deemed to include, with respect to such coverages, from the time
specified in Clause V of this paragraph (3), the following provision
(specified as the Broad Exclusion Provision):
BROAD EXCLUSION PROVISION.*
It is agreed that the policy does not apply:
I. Under any Liability Coverage to
(injury, sickness, disease, death or destruction
(bodily injury or property damage
(a) with respect to which an insured under the policy is also an
insured under a nuclear energy liability policy issued by Nuclear
Energy Liability Insurance Association, Mutual Atomic Energy
Liability Underwriters or Nuclear Insurance Association of
Canada, or would be an insured under any such policy but for its
termination upon exhaustion of its limit of liability; or
(b) resulting from the hazardous properties of nuclear material and
with respect to which (1) any person or organization is required
to maintain financial protection pursuant to the Atomic Energy
Act of 1954, or any law amendatory thereof, or (2) the insured
is, or had this policy not been issued would be, entitled to
indemnity from the United States of America, or any agency
thereof, under any agreement entered into by the United States of
America, or any agency thereof, with any person or organization.
II. Under any Medical Payments Coverage, or under any Supplementary
Payments Provision relating to
(immediate medical or surgical relief
(first aid,
to expenses incurred with respect to
(bodily injury, sickness, disease or death
(bodily injury
resulting from the hazardous properties of nuclear material and
arising out of the operation of a nuclear facility by any person or
organization.
III. Under any Liability Coverage to
(injury, sickness, disease, death or destruction
(bodily injury or property damage
resulting from the hazardous properties of nuclear material, if
(a) the nuclear material (1) is at any nuclear facility owned by, or
operated by or on behalf of, an insured or (2) has been
discharged or dispersed therefrom;
(b) the nuclear material is contained in spent fuel or waste at any
time possessed, handled, used, processed, stored, transported or
disposed of by or on behalf of an insured; or
(c) the
(injury, sickness, disease, death or destruction
(bodily injury or property damage
arises out of the furnishing by an insured of services,
materials, parts or equipment in connection with the planning,
construction, maintenance, operation or use of any nuclear
facility, but if such facility is located within the United
States of America, its territories, or possessions or Canada,
this exclusion (c) applies only to
(injury to or destruction of property at such nuclear
facility
(property damage to such nuclear facility and any property
thereat.
IV. As used in this endorsement:
"hazardous properties" include radioactive, toxic or explosive
properties; "nuclear material" means source material, special nuclear
material or byproduct material; "source material", "special nuclear
material", and "byproduct material" have the meanings given them in
the Atomic Energy Act of 1954 or in any law amendatory thereof; "spent
fuel" means any fuel element or fuel component, solid or liquid, which
has been used or exposed to radiation in a nuclear reactor; "waste"
means any waste material (1) containing byproduct material and (2)
resulting from the operation by any person or organization of any
nuclear facility included within the definition of nuclear facility
under paragraph (a) or (b) thereof; "nuclear facility" means
(a) any nuclear reactor,
(b) any equipment or device designed or used for (1) separating the
isotopes of uranium or plutonium, (2) processing or utilizing
spent fuel, or (3) handling processing or packaging waste,
(c) any equipment or device used for the processing, fabricating or
alloying of special nuclear material if at any time the total
amount of such material in the custody of the insured at the
premises where such equipment or device is located consists of or
contains more than 25 grams of plutonium or uranium 233 or any
combination thereof, or more than 250 grams of uranium 235,
(d) any structure, basin, excavation, premises or place prepared or
used for the storage or disposal of waste, and includes the site
on which any of the foregoing is located, all operations
conducted on such site and all premises used for such operations;
"nuclear reactor" means any apparatus designed or used to sustain
nuclear fission in a self-supporting chain reaction or to contain
a critical mass of fissionable material;
(With respect to injury to or destruction of property, the
word "injury" or "destruction,"
("property damage" includes all forms of radioactive
contamination of property,
(includes all forms of radioactive contamination of
property.
V. The inception dates and thereafter of all original policies affording
coverages specified in this paragraph (3), whether new, renewal or
replacement, being policies which become effective on or after 1st
May, 1960, provided this paragraph (3) shall not be applicable to
(i) Garage and Automobile Policies issued by the Reassured on
New York risks, or
(ii) statutory liability insurance required under Chapter 90,
General Laws of Massachusetts, until 90 days following
approval of the Broad Exclusion Provision by the
Governmental Authority having jurisdiction thereof.
(4) Without in any way restricting the operation of paragraph (1) of this
Clause, it is understood and agreed that paragraphs (2) and (3) above are
not applicable to original liability policies of the Reassured in Canada
and that with respect to such policies this Clause shall be deemed to
include the Nuclear Energy Liability Exclusion Provisions adopted by the
Canadian Underwriters' Association or the Independent Insurance Conference
of Canada.
- ----------
* NOTE. The words printed in italics in the Limited Exclusion Provision and
in the Broad Exclusion Provision shall apply only in relation to original
liability policies which include a Limited Exclusion Provision or a Broad
Exclusion Provision containing those words.
21/9/67 N.M.A. 1590
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
REINSURERS PARTICIPATIONS
---------- --------------
AXIS Reinsurance Company 10.0%
Hannover Ruckversicherungs-Aktiengesellschaft 22.5
Partner Reinsurance Company of the U.S. 25.0
THROUGH BENFIELD LIMITED (PLACEMENT ONLY)
AXA RE 10.0
THROUGH BENFIELD LIMITED
Lloyd's Underwriters and Companies Per
Signing Schedule(s) 22.5
-----
TOTAL 100.0%
=====
INTERESTS AND LIABILITIES AGREEMENT
of
AXIS Reinsurance Company
New York, New York
(hereinafter referred to as the "Subscribing Reinsurer")
with respect to the
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to and duly executed by
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
The Subscribing Reinsurer hereby accepts a 10.0% share in the interests and
liabilities of the "Reinsurer" as set forth in the attached Contract captioned
above.
This Agreement shall become effective at 12:01 a.m., Local Standard Time,
January 1, 2007, and shall continue in force until terminated in accordance with
the provisions of the attached Contract.
The Subscribing Reinsurer's share in the attached Contract shall be separate and
apart from the shares of the other reinsurers, and shall not be joint with the
shares of the other reinsurers, it being understood that the Subscribing
Reinsurer shall in no event participate in the interests and liabilities of the
other reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized
representative has executed this Agreement as of the date undermentioned at:
New York, New York, this _______ day of __________________ in the year ________.
_______________________________________________________
AXIS Reinsurance Company
INTERESTS AND LIABILITIES AGREEMENT
of
AXA RE
Paris, France
(hereinafter referred to as the "Subscribing Reinsurer")
with respect to the
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to and duly executed by
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
The Subscribing Reinsurer hereby accepts a 10.0% share in the interests and
liabilities of the "Reinsurer" as set forth in the attached Contract captioned
above.
This Agreement shall become effective at 12:01 a.m., Local Standard Time,
January 1, 2007, and shall continue in force until terminated in accordance with
the provisions of the attached Contract.
The Subscribing Reinsurer's share in the attached Contract shall be separate and
apart from the shares of the other reinsurers, and shall not be joint with the
shares of the other reinsurers, it being understood that the Subscribing
Reinsurer shall in no event participate in the interests and liabilities of the
other reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized
representative has executed this Agreement as of the date undermentioned at:
Paris, France, this _______ day of _______________________ in the year ________.
____________________________________________________________
AXA RE
INTERESTS AND LIABILITIES AGREEMENT
of
Hannover Ruckversicherungs-Aktiengesellschaft
Hannover, Germany
(hereinafter referred to as the "Subscribing Reinsurer")
with respect to the
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to and duly executed by
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
The Subscribing Reinsurer hereby accepts a 22.5% share in the interests and
liabilities of the "Reinsurer" as set forth in the attached Contract captioned
above.
This Agreement shall become effective at 12:01 a.m., Local Standard Time,
January 1, 2007, and shall continue in force until terminated in accordance with
the provisions of the attached Contract.
The Subscribing Reinsurer's share in the attached Contract shall be separate and
apart from the shares of the other reinsurers, and shall not be joint with the
shares of the other reinsurers, it being understood that the Subscribing
Reinsurer shall in no event participate in the interests and liabilities of the
other reinsurers.
In any action, suit or proceeding to enforce the Subscribing Reinsurer's
obligations under the attached Contract, service of process may be made upon
Mendes & Mount, 750 Seventh Avenue, New York, New York 10019.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized
representative has executed this Agreement as of the date undermentioned at:
Hannover, Germany, this _______ day of ___________________ in the year ________.
________________________________________________________
Hannover Ruckversicherungs-Aktiengesellschaft
INTERESTS AND LIABILITIES AGREEMENT
of
Partner Reinsurance Company of the U.S.
New York, New York
(hereinafter referred to as the "Subscribing Reinsurer")
with respect to the
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to and duly executed by
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
The Subscribing Reinsurer hereby accepts a 25.0% share in the interests and
liabilities of the "Reinsurer" as set forth in the attached Contract captioned
above.
This Agreement shall become effective at 12:01 a.m., Local Standard Time,
January 1, 2007, and shall continue in force until terminated in accordance with
the provisions of the attached Contract.
The Subscribing Reinsurer's share in the attached Contract shall be separate and
apart from the shares of the other reinsurers, and shall not be joint with the
shares of the other reinsurers, it being understood that the Subscribing
Reinsurer shall in no event participate in the interests and liabilities of the
other reinsurers.
IN WITNESS WHEREOF, the Subscribing Reinsurer by its duly authorized
representative has executed this Agreement as of the date undermentioned at:
Greenwich, Connecticut, this _______ day of ______________ in the year ________.
___________________________________________________
Partner Reinsurance Company of the U.S.
INTERESTS AND LIABILITIES AGREEMENT
of
Certain Underwriting Members of Lloyd's
shown in the Signing Schedule attached hereto
(hereinafter referred to as the "Subscribing Reinsurer")
with respect to the
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to and duly executed by
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
The Subscribing Reinsurer hereby accepts a 15.0% share in the interests and
liabilities of the "Reinsurer" as set forth in the attached Contract captioned
above.
This Agreement shall become effective at 12:01 a.m., Local Standard Time,
January 1, 2007, and shall continue in force until terminated in accordance with
the provisions of the attached Contract.
The Subscribing Reinsurer's share in the attached Contract shall be separate and
apart from the shares of the other reinsurers, and shall not be joint with the
shares of the other reinsurers, it being understood that the Subscribing
Reinsurer shall in no event participate in the interests and liabilities of the
other reinsurers.
In any action, suit or proceeding to enforce the Subscribing Reinsurer's
obligations under the attached Contract, service of process may be made upon
Mendes & Mount, 750 Seventh Avenue, New York, New York 10019.
Signed for and on behalf of the Subscribing Reinsurer in the Signing Schedule
attached hereto.
INTERESTS AND LIABILITIES AGREEMENT
of
Certain Insurance Companies
shown in the Signing Schedule(s) attached hereto
(hereinafter referred to as the "Subscribing Reinsurer")
with respect to the
FIRST CASUALTY EXCESS OF LOSS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 2007
issued to and duly executed by
American Interstate Insurance Company
DeRidder, Louisiana
American Interstate Insurance Company of Texas
Austin, Texas
Silver Oak Casualty, Inc.
DeRidder, Louisiana
and
any other insurance companies which are now or
hereafter come under the ownership, control or management of
Amerisafe Insurance Group
The Subscribing Reinsurer hereby accepts a 17.5% share in the interests and
liabilities of the "Reinsurer" as set forth in the attached Contract captioned
above.
This Agreement shall become effective at 12:01 a.m., Local Standard Time,
January 1, 2007, and shall continue in force until terminated in accordance with
the provisions of the attached Contract.
The Subscribing Reinsurer's share in the attached Contract shall be separate and
apart from the shares of the other reinsurers, and shall not be joint with the
shares of the other reinsurers, it being understood that the Subscribing
Reinsurer shall in no event participate in the interests and liabilities of the
other reinsurers.
In any action, suit or proceeding to enforce the Subscribing Reinsurer's
obligations under the attached Contract, service of process may be made upon
Mendes & Mount, 750 Seventh Avenue, New York, New York 10019.
Signed for and on behalf of the Subscribing Reinsurer in the Signing Schedule(s)
attached hereto.