Exhibit 10.13
PROPERTY RISK EXCESS OF LOSS REINSURANCE QUOTA SHARE TREATY
REINSURED: Wellington Reinsurance Limited, London,
United Kingdom.
PERIOD: Continuous contract always open in respect
of risks attaching on or after the 1st
January 2003, subject to six months prior
notice of cancellation to be tendered by the
Reinsurer and three months prior notice of
cancellation to be tendered by the
Reinsured, such notice to be effective at
any 31st December but such notice not to be
effective prior to the 31st December 2005 if
tendered by the Reinsured.
In the event of cancellation, all business
accepted by the Reinsured to run to natural
expiry or, at the option of the Reinsured,
portfolio conditions as detailed hereon
shall apply.
TYPE: Quota Share Treaty.
CLASS: All Property Risk Excess of Loss Reinsurance
business underwritten by the Reinsured.
TERRITORIAL
SCOPE: Losses wheresoever arising.
TREATY DETAIL: To take a 20% Quota Share of all Property
Risk Excess of Loss Reinsurance business
written by the Reinsured, but subject to
maximum aggregate of Original Gross Premiums
ceded of:
For the period 1st January 2003 to
31st December 2003 USD29,900,000
For the period 1st January 2003 to
31st December 2004 USD59,800,000
For the period 1st January 2003 to
31st December 2005 USD89,700,000
The Term "Original Gross Premiums" as used
herein shall mean all Gross Premium received
by the Reinsured in respect of the business
reinsured hereunder before deduction of any
commissions, premium taxes and similar
deductions, brokerage and profit commission
but after the deduction of any returned
premiums.
RATE: Original Gross Premiums
CEDING
COMMISSION: All original commissions and brokerage plus
7.5% overrider on Original Net Premiums.
The Term "Original Net Premiums" as used
herein shall mean all Original Gross Premium
of the Reinsured in respect of the business
reinsured hereunder during the period of
this agreement,
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less commissions, premium taxes and similar
deductions, brokerage and profit commission
and returned premiums.
TAXES: As applicable
PROFIT
COMMISSION: 15% to be calculated on each Underwriting
Year (or GAAP accounting year as mutually
agreed) separately, after 15% Reinsurers
expenses (which include the overrider).
The first calculation for each Year to be
made 24 months after the inception of such
Underwriting Year with adjustments
calculated annually thereafter as necessary
or until the close of the Year in accordance
with the Portfolio provisions as detailed
hereon.
Any deficit resulting from the Profit
Commission calculation for any Year to be
carried forward for a maximum of three
subsequent years of account.
PORTFOLIO: At the end of the thirtieth month of each
year of account, if required by the
Reinsured, Reinsurers hereon agree to close
the year based on the figures provided by
the Reinsured and effect a portfolio
transfer into the next open year of all
outstanding losses as may be agreed.
CASH LOSS: For losses equal to or greater than
USD500,000 for 100% of the treaty.
ACCOUNTS: Quarterly accounts to be submitted within
60 days of the close of each quarter, with
remittances of balances by either party 30
days thereafter.
GENERAL
CONDITIONS: Cessions hereunder shall be subject to the
same periods, terms, clauses and conditions
and warranties as the original. Furthermore,
this reinsurance is to follow original
settlements and/or agreements in all
respects.
Acceptances in currencies other than
Sterling, United States or Canadian Dollars
or Euros shall be at the rates of exchange
as used in the books of the reinsured.
Reinsurers shall benefit from recoveries
under all reinsurances purchased by the
Reassured protecting the business hereunder
and shall be debited with their proportion
of the cost of such reinsurances.
Confidentiality Clause as attached
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Extra Contractual Obligations Inclusion
Clause NMX 100 as attached
Offset Clause as attached
UK Jurisdiction Clause as attached
Outstanding Claims Advance Clause as
attached
Continuity of Agreement Clause as attached
Mediation Clause as attached
Arbitration Clause as attached
Insolvency Event Clause
Delays, Errors or Omissions Clause
Alterations and Amendments Clause
Access to Records Clause
EXCLUSIONS: War and Civil War Exclusion Clause 1978 as
attached
Terrorism Exclusion Clause NMA 2930B as
attached
Nuclear Energy Risks Exclusion Clause
(Reinsurance) 1994 NMA 1975A (Japanese
Amendment)
Nuclear Incidents Exclusion Clause -
Reinsurance - USA and Canada
Information Technology Hazards (Risk)
Exclusion Clause NMA 2928 as attached
Excluding Casualty business written as such
Excluding Ocean Marine business
Excluding Satellites and Space Risks
Excluding Professional Indemnity, Bonds and
Motor Liability business
WORDING: As agreed by the parties
INFORMATION: 2003 Estimated Gross Premium Income: up to
USD29,900,000
2004 Estimated Gross Premium Income: up to
USD29,900,000
2005 Estimated Gross Premium Income: up to
USD29,900,000
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This Agreement has been signed in London, this 20th day of June, 2002.
For and behalf of the Reassured - Wellington Reinsurance Limited.
/s/ Julian Cusack
- -----------------
This Agreement has been signed in Hamilton, Bermuda, this 20th day of June, 2002
For and on behalf of Montpelier Reinsurance Ltd.
/s/ Russell Fletcher
- -------------------------------
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OUTSTANDING CLAIMS ADVANCE CLAUSE
Applicable to so-called US Situs business protected hereunder.
In respect of all loss or losses arising in respect of that business designated
above, the Reinsurer agrees within 14 days, if so requested by the Reinsured, to
provide by special settlement an Outstanding Claims Advance equal to its
proportionate share of outstanding losses hereunder including Incurred but not
Reported (IBNR) losses, by one of the following two (2) alternatives to be
chosen by the Reinsured following good faith efforts to reach mutual agreement
with the Reinsurer:
1. Claims to be advanced with interest to by calculated at the 3 monthly LIBOR
rate for United States Dollars plus 1.50%. The three monthly LIBOR rate for
each such collection shall be the rate ruling at 12:00 GMT on the date each
such advance is made by the Reinsurer. Interest payments shall be made by
the Reinsured to the Reinsurer 3 months after the date of the first invoice
and quarterly thereafter.
2. Claims to be paid at a mutually agreed Present Value of the incurred loss
including IBNR for which an Outstanding Claims Advance is requested.
Such proportionate share for any loss shall be computed as at any one time by
comparing the recovery due hereunder by reason of the Reinsured's paid loss and
that recovery which would be due hereunder if it were permitted for such loss to
also include the value of the Reinsured's notified outstanding amounts including
IBNR for that same loss. The Reinsurer's undertakings are further conditioned
upon the understanding that:
1. this Agreement applies only to loss reserve deposits and not to premium
reserve deposits;
2. any deposits or advances hereunder will only be established for the benefit
of Reinsured's ceding companies. Any amounts appropriated from any
Outstanding Claims Advance provided by or on behalf of the Reinsurer shall
be deemed to have been sums paid by the Reinsurer on account of its
proportion of settled losses (if any) for which the Reinsurer is properly
liable under this Agreement and the amount of such payments shall be
brought into account in the Accounts to the credit of Reinsurer;
3. the amount of any Outstanding Claims Advance or Letter Of Credit provided
by common account Reinsurers shall be netted against any Outstanding Claims
Advance amount provided hereunder.
The foregoing option may be exercised at any time in respect of each original
incurred loss. In the event that the Reinsured requests an increase in an
Outstanding Claims Advance, such adjustment shall only be made on the next
applicable calendar quarter (being 1st January, 1st April, 1st July and 1st
October).
CONFIDENTIALITY CLAUSE
The Reinsured has designated the underwriting information used to place this
Agreement as confidential and proprietary information ('confidential
information'). The Reinsurer agrees that the confidential information shall only
be disclosed to those employees of the Reinsurer who need to know the
information in connection with the evaluation of this risk, who have been
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informed of the confidential nature of the confidential information and who have
agreed not to disclose the confidential information to anyone not participating
in the evaluation of the risk on behalf of The Reinsurer. The Reinsurer shall,
unless disclosure is lawfully required by a competent court of jurisdiction,
hold in confidence, and shall require its employees to hold in confidence, the
confidential information.
The Reinsurer shall be under a continuing non-delegable duty not to disclose,
directly or indirectly or permit the disclosure of directly or indirectly, the
confidential information to any third person.
EXTRA-CONTRACTUAL OBLIGATIONS CLAUSE NMX 100
This Agreement shall exclude all cover in respect of Extra-Contractual
Obligations howsoever arising, such Extra-Contractual Obligations being defined
as any award made by a court of competent jurisdiction against an insurer or
reinsurer, which award is not within the coverage granted by any insurance
and/or reinsurance contract made between the parties in dispute.
Notwithstanding the foregoing, this Agreement shall extend to cover any loss
arising from Claims Related Extra-Contractual Obligation:
(a) awarded against the Reinsured or
(b) incurred by the Reinsured where he has paid his share of a Claims Related
Extra-Contractual Obligation awarded against one or more of his
co-insurers.
It is warranted that any recovery under this Agreement in respect of Claims
Related Extra-Contractual Obligations shall be for that part of any award which
corresponds to the Reinsured's share of the reinsurance and/or reinsurance
policy and/or contract giving rise to the award and all proportional protection
effected by the Reinsured shall provide or shall be deemed to provide pro-rata
coverage for such obligation.
This Agreement shall also extend to cover all loss from Extra-Contractual
Obligations howsoever arising where the loss is incurred by the Reinsured as a
result of his participation in any insurance or reinsurance which provides cover
for such loss, it being understood and agreed that such loss results from a
contractual liability incurred by the Reinsured.
A Claims Related Extra-Contractual Obligation shall be defined as the amount
awarded against an insurer or Reinsurer found liable by a court of competent
jurisdiction to pay damages to an insured or reinsured in respect of the conduct
of a claim made under an insurance and/or reinsurance policy and/or contract,
where such liability has arisen because of:
(a) the failure of the insurer or Reinsurer to agree or pay a claim within the
policy limits or to provide defence against such claims as required by law
or
(b) bad faith or negligence in rejecting an offer of settlement or
(c) negligence or breach of duty in the preparation of the defence or the
conduct of it trial or the preparation or prosecution of any appeal and/or
subrogation and/or any subsequent action resulting therefrom
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There shall be no liability under this Agreement in respect of
(a) any assumption of liability by way of participation in any mutual scheme
designed specifically to cover Extra-Contractual Obligation; or
(b) any Extra-Contractual Obligation arising from the fraud of a director,
officer or employee of the Reinsured acting individually or collectively or
in collusion with an individual or corporation or with any other
organisation or party involved in the presentation, defence or settlement
of any claim.
Any loss arising under this Agreement in respect of Claims Related Extra-
Contractual Obligations shall be deemed to be a loss arising from the same event
as that giving rise to the claim to which the Extra-Contractual Obligation is
related; but recovery hereunder is subject to the insurance and/or reinsurance
policy and/or contract which gives rise to the Extra-Contractual Obligation
falling within the scope of this Agreement.
OFFSET CLAUSE
Each party hereto shall have the right to offset any balance or balances,
whether on account of premium or on account of losses, due from one party to
another party under this Agreement, against any balance or balances due and
payable to one party from the other under this Agreement. However, in the event
of the insolvency of any party hereto, offset shall only be allowed in
accordance with applicable statutes and regulations.
UK JURISDICTION CLAUSE
This Agreement is governed by and is to be construed according to the Law of
England. All questions or disputes arising out of or in connection with this
Agreement, which cannot be decided by Mediation or Arbitration, shall be
referred to an English Court and litigated solely in London.
MEDIATION CLAUSE
In the event of any dispute or difference of opinion arising out of or relating
to this Agreement, including but not limited to the formation, interpretation,
validity, performance or breach of this Agreement, whether such dispute arises
before or after the expiration of this Agreement, the Reinsured and the
Reinsurer agree that, prior to requesting Arbitration, they will submit such
dispute to non-binding Mediation which will be held in London, England.
Mediation shall be initiated by the delivery of a written notice of a request
for Mediation by one party to the other. Each party shall submit a list of not
more than four potential mediators to the other party within thirty days of the
delivery of such written notice. The two Parties shall then agree on the
appointment of one Mediator from the combined lists. The Mediator shall be an
active or retired officer of an insurance or reinsurance company or an
Underwriter at Lloyd's, and shall be a disinterested third party to the
Mediation.
The Mediator will schedule an initial Mediation session within thirty days of
appointment and will be responsible for the formulation of an agenda to be
distributed to the parties involved in the Mediation not less than five days
before the Mediation commences.
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Additionally, the Mediator will arrange the neutral site where the Mediation
will take place and advise the parties of the time the Mediation shall commence.
The Mediator will have no power of enforcement of any decision which may be
rendered nor will the Mediator have any right to the assessment of any damages,
including punitive damages, to either party participating in this Mediation.
If, in the opinion of the Mediator, the parties cannot resolve the dispute or
difference of opinion, the dispute shall then be submitted to binding
Arbitration in accordance with the Arbitration Clause. Each party shall bear the
expense of its own representatives and shall jointly and equally bear with the
other party the expenses of the Mediation.
ARBITRATION CLAUSE
For any dispute not resolved by mediation such dispute or other matter in
question between the Reinsured and the Reinsurer arising out of, or relating to
the formation, interpretation, performance, or breach of this Agreement, whether
such dispute arises before or after termination of this Agreement, shall be
settled by arbitration. Arbitration shall be initiated by the delivery of a
written notice of demand for arbitration by one party to the other within a
reasonable time after the dispute has arisen.
Each party shall appoint an individual as arbitrator and the two so appointed
shall then appoint a third arbitrator. If either party refuses or neglects to
appoint an arbitrator within sixty days, the other party may appoint the second
arbitrator. If the two arbitrators do not agree on a third arbitrator within
sixty days of their appointment, each one of the arbitrators shall nominate
three individuals. Each arbitrator shall then decline two of the nominations
presented by the other arbitrator. The third arbitrator shall then be chosen
from the remaining two nominations by drawing lots. The arbitrators shall be
active or retired officers of insurance or reinsurance companies or Lloyd's of
London Underwriters; the arbitrators shall be disinterested parties.
The arbitration bearings shall be held in London, England, or such place as may
be mutually agreed by the arbitrators. Each party shall submit its case to the
arbitrators within sixty days of the selection of the third arbitrator or within
such longer period as may be agreed by the arbitrators. The arbitrators shall
interpret this agreement as an honourable engagement and shall not be obliged to
follow judicial formalities or the rules of evidence except to the extent
required by English law; they shall make their decisions according to the custom
and practice of the reinsurance business. The decision, rendered by a majority
of the arbitrators, shall not include awards for Extra-Contractual Obligations
and shall be final and binding on both parties. Such decision shall be a
condition precedent to any right of legal action arising out of the arbitrated
dispute which either party may have against the other. Judgment upon the award
rendered may be entered in any court having jurisdiction thereof.
Each party shall pay the fee and expenses of its own arbitrator and one half of
the fee and expenses of the third arbitrator. In the event that two arbitrators
are chosen by one party, as above provided, the fees and expenses of the
arbitrators shall be equally divided between the two parties. All other expenses
of the arbitration shall be equally divided between the parties.
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This arbitration agreement shall be construed as a separate and independent
contract between the parties hereto and arbitration hereunder shall be a
condition precedent to the commencement of any action at law.
WAR EXCLUSION CLAUSE 1978
Loss or Damage directly or indirectly occasioned by, or happening through or in.
consequence of War, Invasion, Acts of Foreign Enemies, Hostilities (whether war
be declared or not), Civil War, Rebellion, Revolution, Insurrection, Military or
Usurped Power or Confiscation, or Nationalisation, or Requisition, or
Destruction of or Damage to property by, or under the order of, any government
or public or local authority, but this exclusion shall not apply to business
written in accordance with the Market War and Civil War Risks Exclusion
Agreement, nor to business outside the scope of this Agreement.
NUCLEAR EXCLUSION CLAUSES
Nuclear Energy Risks for those applicable classes of business and territories as
appropriate in accordance with the Market clauses set out below.
(a) NUCLEAR INCIDENT EXCLUSION CLAUSE - LIABILITY - REINSURANCE - U.S.A. - NMA
1590 (including amended definition of "Waste")
(b) NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL DAMAGE - REINSURANCE - U.S.A.
- NMA 1119
(c) NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL DAMAGE AND LIABILITY (BOILER
AND MACHINERY POLICIES) REINSURANCE - U.S.A. - NMA 1166
(d) NUCLEAR INCIDENT EXCLUSION CLAUSE - LIABILITY - REINSURANCE - CANADA - NMA
1979
(e) NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL DAMAGE - REINSURANCE - CANADA
- NMA 1980
(f) NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL DAMAGE AND LIABILITY (BOILER
AND MACHINERY POLICIES) REINSURANCE - CANADA - NMA 1251
(g) NUCLEAR ENERGY RISKS EXCLUSION CLAUSE (REINSURANCE) (1994) - WORLDWIDE
EXCLUDING U.S.A. AND CANADA -NMA 1975(A)
Notwithstanding the provisions of the exclusion clause as set out in paragraph
(g) above, it is understood and agreed that in respect of Japanese business
certain liabilities the type of which by market practice and custom have not
been declared to the Japanese Nuclear Pool shall not fall within the scope of
this exclusion.
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TERRORISM EXCLUSION (PROPERTY TREATY REINSURANCE) NMA2930B
Notwithstanding any provision to the contrary within this reinsurance agreement
or any endorsement thereto, it is agreed that this reinsurance agreement
excludes loss, damage, cost, or expense directly or indirectly caused by,
contributed to by, resulting from, or arising out of or in connection with any
act of terrorism, as defined herein, regardless of any other cause or event
contributing concurrently or in any other sequence to the loss.
An act of terrorism includes any act, or preparation in respect of action, or
threat of action designed to influence the government de jure or de facto of any
nation or any political division thereof, or in pursuit of political, religious,
ideological, or similar purposes to intimidate the public or a section of the
public of any nation by any person or group(s) of persons whether acting alone
or on behalf of or in connection with any organisation(s) or government(s) de
jure or de facto, and which:
(i) involves violence against one or more persons; or
(ii) involves damage to property; or
(iii) endangers life other than that of the person committing the action; or
(iv) creates a risk to health or safety of the public or a section of the
public; or
(v) is designed to interfere with or to disrupt an electronic system.
This reinsurance agreement also excludes loss, damage, cost, or expense directly
or indirectly caused by, contributed to by, resulting from, or arising out of or
in connection with any action in controlling, preventing, suppressing,
retaliating against, or responding to any act of terrorism.
Notwithstanding the above and subject otherwise to the terms, conditions, and
limitations of this reinsurance agreement in respect only of personal lines this
reinsurance agreement will pay actual loss or damage (but not related cost or
expense) caused by any act of terrorism provided such act is not directly or
indirectly caused by, contributed to by, resulting from, or arising out of or in
connection with biological, chemical, or nuclear pollution or contamination.
INFORMATION TECHNOLOGY HAZARDS (RISK) EXCLUSION CLAUSE - NMA2928
Losses arising, directly or indirectly, out of:
(i) loss of, alteration of, or damage to
or
(ii) a reduction in the functionality, availability or operation of
a computer system, hardware, programme, software, data, information repository,
microchip, integrated circuit or similar device in computer equipment or
non-computer equipment, whether the property of the policyholder of the
reinsured or not, are excluded hereon unless arising out of one or more of the
following perils:
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fire, lightning, explosion, aircraft or vehicle impact, falling objects,
windstorm, hail, tornado, cyclone, hurricane, earthquake, volcano, tsunami,
flood, freeze or weight of snow.
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