Exhibit 10.2
Execution Copy
PROPORTIONAL EXCESS OF LOSS REINSURANCE AGREEMENT
(hereinafter referred to as the "Agreement")
between
GIBRALTAR CASUALTY COMPANY, a Delaware Corporation
(hereinafter referred to as the "Company")
and
PRUDENTIAL PROPERTY AND CASUALTY INSURANCE COMPANY, an Indiana Corporation
(hereinafter referred to as the "Reinsurer")
(Both the Company and the Reinsurer collectively are referred
to as the "Parties" and individually as "Party")
WHEREAS, The Prudential Insurance Company of America ("Prudential") is the
ultimate parent of the Reinsurer;
WHEREAS Prudential and Everest Reinsurance Holdings, Inc., a Delaware
corporation ("Holdings"), have executed a Stock Purchase Agreement dated as of
February 24, 2000 ("Sale Agreement") wherein Holdings will purchase from
Prudential all issued and outstanding shares of the Company, a wholly owned
subsidiary of Prudential, effective as of the "Closing Date" set forth in the
Sale Agreement.
WHEREAS, as of the "Closing Date," as this term is defined in the Sale
Agreement, the Company has outstanding "Loss Reserves," as defined in the Sale
Agreement, relating to all Policies, as defined herein, in the amount stated in
the "Closing Date Financial Statement," as defined in the Sale Agreement.
WHEREAS, the Company also has potential adverse Loss Reserves development
("Adverse Loss Development"), as defined herein, and the Company desires
reinsurance coverage for such Adverse Loss Development.
NOW, THEREFORE, in consideration of mutual covenants, representations,
warranties, and agreements contained herein and in the Sale Agreement, the
Parties agree as follows:
ARTICLE I - CLASSES OF BUSINESS COVERED
A. By this Agreement and subject to the terms and conditions set
forth below, the Reinsurer agrees to indemnify the Company for the
Adverse Loss Development that may accrue to the Company under all
policies, contracts, and binders of insurance or reinsurance
(hereinafter "Policies") issued or renewed by the Company prior to
the Closing Date.
B. Adverse Loss Development is defined as the Company's Ultimate Net
Loss that is in excess of the Loss Reserves carried by the Company
at the Closing Date. Subject to the Reinsurer's Limit of Liability
set forth in Article V hereof, the Reinsurer shall reimburse the
Company for the Adverse Loss Development paid by the Company,
provided that the Company has paid an amount equal to the Loss
Reserves carried by the Company at the Closing Date. Provided,
however, that this Agreement shall not apply to the first four
million dollars ($4,000,000) of any Settlement Concessions on
Gibraltar-Sourced Business, as those terms are defined in the
Quota Share Reinsurance Agreement between the Parties ("Quota
Share Reinsurance Agreement"), in excess of Settlement Concessions
listed on Schedule A to the Quota Share Reinsurance Agreement.
C. "Ultimate Net Loss" is defined as the Company's determination of
the sum or sums (including Loss Adjustment Expenses, as defined
herein) incurred by the Company in settlement of claims and in
satisfaction of judgments rendered on account of such claims under
all Policies, after deduction of all reinsurance and insurance
recoveries and subrogation and salvage recoveries collected and
received by the Company and losses paid prior to the Closing Date.
Nothing herein shall be construed to mean that losses under this
Agreement are not recoverable until the Company's Ultimate Net
Loss has been ascertained. Ultimate Net Loss shall not include
Loss in Excess of Policy Limits or Extra Contractual Obligations
(as defined herein) incurred by the Company.
ARTICLE II - COMMENCEMENT AND TERMINATION
A. This Agreement shall become effective on the Closing Date and
shall continue in force thereafter until two (2) years after the
earlier of when (i) the Company settles all claims under all
Policies, or (ii) the Reinsurer exhausts its Limits of Liability
as set forth in Article V.
B. Neither Party may terminate this Agreement.
ARTICLE III - TERRITORY
The territorial scope of this Agreement shall be identical to that of the
Policies reinsured hereunder.
ARTICLE IV - CONSIDERATION
The consideration for the reinsurance coverage is deemed paid as of the Closing
Date and, with respect to the Reinsurer, includes, among other things, certain
operational and other assistance (i) previously provided to the Reinsurer by
Prudential, which is deemed paid as of the Closing Date, and (ii) to be provided
to the Reinsurer in connection with this Agreement by Prudential, including
pursuant to the Keepwell Agreement between Prudential and the Reinsurer of even
date herewith. No further consideration shall be due to the Reinsurer.
ARTICLE V - REINSURER'S LIMIT OF LIABILITY AND COMPANY'S RETENTION
The Reinsurer shall pay to the Company an 80% quota share interest of the first
two hundred million dollars ($200,000,000) of Adverse Loss Development paid by
the Company, with the Reinsurer's maximum liability under this Agreement limited
to one hundred and sixty million dollars ($160,000,000). The Company may
reinsure its 20% quota share retention in the first two hundred million dollars
($200,000,000) of Adverse Loss Development only with an affiliate within its
insurance holding company system, with `affiliate' and `insurance holding
company system' having the meanings set forth under Section 5001 of the Delaware
Insurance Code. Such reinsurance by the Company of any share of its 20% quota
share retention with an affiliate is permissible only if the assuming affiliate
fully retains and does not further cede or retrocede any share of its assumption
of the 20% quota share retention, except to another affiliate of the Company;
and any affiliate of the Company which assumes some share of the Company's 20%
quota share retention under this provision shall be subject to the same
prohibition on ceding or retroceding any share of the Company's 20% quota share
retention to any person or entity that is not an affiliate of the Company.
ARTICLE VI - LOSS IN EXCESS OF POLICY LIMITS/EXTRA CONTRACTUAL OBLIGATIONS
Ultimate Net Loss shall not include any amounts that the Company pays or is held
liable to pay in excess of its Policy limit, but otherwise within the terms of
its Policy ("Loss in Excess of Policy Limits"), or any punitive, exemplary,
compensatory or consequential damages ("Extra Contractual Obligations"), because
of alleged or actual bad faith or negligence on its part in rejecting a
settlement within Policy limits, or in discharging its duty to defend or prepare
the defense in the trial of an action against its policyholder, or in
discharging its duty to prepare or prosecute an appeal consequent upon such an
action, or in otherwise handling a claim under a Policy.
ARTICLE VII - OTHER REINSURANCE
Subject always to the retention provision set forth in Article V above, on or
after the Closing Date, the Company shall be permitted to obtain other
reinsurance, recoveries under which shall inure solely to the benefit of the
Company and all recoveries under such other reinsurance shall be entirely
disregarded in applying all of the provisions of this Agreement; provided,
however, that the Quota Share Reinsurance Agreement shall inure to the benefit
of this Agreement.
ARTICLE VIII - LOSS ADJUSTMENT EXPENSES
Loss Adjustment Expenses shall include both allocated and unallocated loss
expenses and shall be included in the Ultimate Net Loss, and are defined as all
expenses of the Company, including expenses for declaratory judgment actions,
monitoring of underlying litigation or claims, and coverage opinions, incurred
by the Company in the settlement, investigation, defense, or adjustment of all
claims under all Policies.
ARTICLE IX - SUBROGATION AND SALVAGE
The Reinsurer shall be credited with subrogation and salvage collected and
received by the Company, less the actual cost, excluding salaries and expenses
of officials and employees of the Company respecting their time spent on
subrogation and salvage recoveries and also excluding sums paid to any attorney
as a retainer in obtaining such reimbursement or making such recovery, on
account of claims and settlements involving the reinsurance coverage hereunder.
Enforcement of subrogation and salvage rights shall be determined solely by the
Company.
ARTICLE X - ORIGINAL CONDITIONS
A. The Reinsurer shall follow the fortunes of the Company for it
Ultimate Net Loss for all loss settlements and shall pay as
paid by the Company.
B. The reinsurance coverage provided under this Agreement shall be
subject to all interpretations, modifications, waivers, and
alterations of the Policies; provided, however, that the
agreements set forth on Exhibit A hereto that are in force as of
the Closing Date shall remain, or shall for purposes of
determining the parties' rights and obligations under this
Agreement be deemed to have remained, in force during the term of
this Agreement and shall not be modified or altered, or shall
for purposes of determining the parties' rights and obligations
under this Agreement be deemed not to have been modified or
altered, during the term of this Agreement, unless otherwise
mutually agreed by the Parties.
C. Nothing herein shall in any manner create any obligations or
establish any rights against the Reinsurer in favor of any third
party or any person not a Party to this Agreement.
ARTICLE XI - REPORTS AND REMITTANCES
A. The first statement of account shall be due to the Reinsurer from
the Company forty-five (45) days after the close of the first
fiscal quarter that includes the Closing Date.
B. Thereafter, the Company shall submit quarterly statements of
account ("quarterly reports") within forty-five (45) days after
the end of each calendar quarter.
C. Such quarterly reports shall be sent by both facsimile
transmission and United States Postal Service or any other
delivery service used by the Company.
D. Such quarterly reports shall be in the form attached hereto as
Exhibit B, or in any other form mutually agreed by the Parties.
E. Remittances shall be on a "Net Basis," defined as amounts owed
between the Parties under this Agreement.
F. Remittances shall be due to the Company from the Reinsurer within
forty-five (45) days from the date of receipt of the facsimile
transmission of each quarterly report.
G. Failure of a Party to pay amounts owed when due under this
Agreement shall result in imposition on that Party of an interest
penalty equal to the rate of interest announced by Citibank,
N.A. as its prime or base rate as of the due date of any
remittance, calculated on the basis of the actual number of days
elapsed past the due date of any remittance divided by three-
hundred-and-sixty-five (365) days and payment of other losses,
costs, and expenses accrued or incurred by the other Party as a
result of the late payment.
ARTICLE XII - OFFSET
The Company and the Reinsurer shall have the right to offset any balance or
amounts due from one Party to the other under this Agreement.
ARTICLE XIII - ACCESS TO RECORDS
A. The Company shall place at the disposal of the Reinsurer at all
reasonable times, and the Reinsurer will have the right to
inspect, all books, records, and papers of the Company in
connection with any reinsurance coverage hereunder or any claims
in connection herewith.
B. All records reviewed by the Reinsurer are deemed proprietary
and confidential property of the Company. Further, unless pursuant
to the express, written permission of the Company, the Reinsurer
shall not disclose the contents of such information to any other
person, persons, entity, or entities; provided, that the Reinsurer
may disclose such information or portions thereof in connection
with any arbitration hereunder or any legal or regulatory process,
or to its directors, officers and employees and the directors,
officers and employees of its affiliates and to its agents,
representatives, attorneys, accountants, auditors, reinsurers
(collectively, "the Reinsurer's Representatives"), in each case,
who have a legitimate need to know such information (which would
include, but not be limited to the right to dispute and/or assess
in furtherance of a dispute) and who are informed of and agree
to be bound by the confidentiality terms of this Agreement.
The Reinsurer shall indemnify and hold harmless the Company for
all damages resulting from any unauthorized disclosure by the
Reinsurer or the Reinsurer's Representatives of records obtained
pursuant to this Article. Nothing contained in this Agreement
shall be construed to prevent the Company from applying to a court
of competent jurisdiction for equitable relief including
injunction and specific performance as a remedy if the Reinsurer
or any of the Reinsurer's Representatives breach or threaten to
breach any of the provisions of this Article. Without prejudice to
the rights and remedies otherwise available at law or equity to
the Company, it is understood and agreed that the Company would
be irreparably injured by a breach of this Article, that money
damages would not be a sufficient remedy for any actual or
threatened breach of this Article by the Reinsurer or any of the
Reinsurer's Representatives and that the Company shall (without
proof of actual damages) be entitled to equitable relief. In the
event of litigation relating to this Article, if a court of
competent jurisdiction determines that the Reinsurer or any of the
Reinsurer's Representatives have breached this Article, then the
Reinsurer shall be liable and pay to the Company the reasonable
legal fees incurred by the Company in connection with the subject
litigation, including any appeal therefrom.
ARTICLE XIV - ERRORS AND OMISSIONS
Inadvertent delays, errors or omissions in connection with this Agreement or any
transaction hereunder shall not relieve either Party of any liability which
would have attached had such delay, error or omission not occurred, provided
always that such error or omission is rectified as soon as possible after
discovery.
ARTICLE XV - SECURITY
A. If the Company is or becomes unable to take credit in any financial
statement filed with its domiciliary insurance regulator or with
insurance regulators in New Jersey, California or any other state in
which it currently is approved as a surplus lines insurer (or any
successors to said regulators) for the reinsurance coverage provided
hereunder, or if Prudential's Financial Strength Rating published by
A.M. Best becomes less than "A-," the Reinsurer agrees to fund within
thirty (30) days from receipt of notice from the Company that funding
is required its share of Adverse Loss Development (and to replenish
such funding from time to time as necessary) by:
1. Clean, irrevocable and unconditional letters of credit issued and
confirmed, if confirmation is required by the insurance regulatory
authorities involved, by a qualified United States financial
institution acceptable to said insurance regulatory authorities;
2. cash; and/or
3. a Trust in compliance with the requirements of and acceptable to
said insurance regulatory authorities.
B. With regard to funding in whole or in part by letters of credit, it is
agreed that each letter of credit will be in a form that would be
acceptable to the Company's domiciliary insurance regulatory authority,
will be issued for a term of at least one year and will include an
"evergreen clause," that automatically extends the term for at least
one additional year at each expiration date unless written notice of
non-renewal is given to the Company not less than 30 days prior to said
expiration date. The Company and the Reinsurer further agree that said
letters of credit may be drawn upon by the Company or its successors in
interest at any time, without diminution because of the insolvency of
the Company or the Reinsurer, but only for one or more of the following
purposes:
1. To reimburse itself for the Reinsurer's share of paid Adverse Loss
Development, unless paid in cash by the Reinsurer;
2. To reimburse itself for the Reinsurer's share of any other amounts
claimed to be due hereunder, unless paid in cash by the Reinsurer;
3. To fund a cash account in an amount equal to the Reinsurer's
share of Adverse Loss Development funded by means of a letter
of credit that is under non-renewal notice, if said letter of
credit has not been renewed or replaced by the Reinsurer 10
days prior to its expiration date;
4. To refund to the Reinsurer any sum in excess of the actual
amount required to fund the Reinsurer's share of Adverse Loss
Development and other amounts claimed to be due hereunder, if
so requested by the Reinsurer.
C. In the event the amount drawn by the Company on any letter of credit is
in excess of the actual amount required for B (1), B (3) or B (4), or
in the case of B (2), the actual amount determined to be due, the
Company shall promptly return to the Reinsurer the excess amount so
drawn.
D. In the event of funding through a Trust:
1. The Reinsurer shall establish a Trust Account for the benefit
of the Company to fund the amounts receivable under the
Agreement in a qualified United States financial institution
reasonably acceptable to the Company and to said insurance
regulatory authorities.
2. The assets deposited into the Trust Account shall be valued
according to their current fair market value and shall consist
only of cash (United States legal tender), certificates of
deposit (issued by a United States bank and payable in United
States legal tender) and investments of the type permitted by
and acceptable to said insurance regulatory authorities or any
combination of the above, provided that such investments are
issued by an institution that is not the parent, subsidiary or
affiliate of either the Reinsurer or the Company;
3. The Reinsurer, prior to depositing assets with the trustee,
shall execute assignments, endorsements in blank, or transfer
legal title to the trustee of all shares, obligations or any
other assets requiring assignments, in order that the Company,
or the trustee upon the Company's direction, may whenever
necessary negotiate any such assets without consent or
signature from the Reinsurer or any other entity;
4. All settlements of account between the Reinsurer and the Company
shall be in cash or its equivalent;
5. The assets in the trust account may be withdrawn by the
Company at any time, notwithstanding any other provisions in
this Agreement, and shall be utilized by the Company or any
successor by operation of law, including without limitation
any liquidator, rehabilitator, receiver or conservator of the
Company, for the purposes set forth in paragraphs B(1) -B(4)
above.
ARTICLE XVI - INSOLVENCY
In the event of the insolvency of the Company, the reinsurance coverage
hereunder shall be payable directly to the Company or to its domiciliary
liquidator, receiver, conservator or statutory successor on the basis of the
amount of claim allowed in the insolvency proceeding without diminution by
reason of the inability of the Company to pay all or any part of the 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 covered
hereunder 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.
ARTICLE XVII - ARBITRATION
A. Except with respect to disputes arising solely out of or solely in
connection with Article XIII above (Access to Records), 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
Agreement, including its formation and validity, it is hereby mutually
agreed that such dispute or difference of opinion shall be submitted to
arbitration.
B. Except as provided in subsections A. and D. of this Article or with
respect to judicial proceedings instituted in aid of arbitration, this
Article shall constitute a waiver of the Parties' 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 might otherwise be permitted by
the laws of the United States or of any State or other jurisdiction in
the United States.
C. 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 United States domiciled insurance or reinsurance
companies. 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.
D. The Arbiters and the Umpire ("the Arbitration Panel") shall consider
this Agreement 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 majority decision
of the Arbitration Panel shall be final and binding on both Parties.
Judgment upon the final decision of the Arbitration Panel may be
entered in any court of competent jurisdiction.
E. Except as provided in sub-section G. of this Article, 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.
F. Any arbitration pursuant to this Article shall be conducted in New
York, New York unless otherwise agreed by the parties; provided,
however, that the Arbitration Panel may choose to take evidence and/or
convene a hearing in a place other than New York for the convenience of
the parties, the witnesses or the Arbitration Panel.
G. The Arbitration Panel shall have the power to award costs, expenses,
and interest to the prevailing Party in an arbitration.
ARTICLE XVIII - SERVICE OF SUIT
A. It is agreed that in the event of the failure of the Reinsurer to pay
any amount claimed to be due hereunder or to otherwise perform its
obligations hereunder, the Reinsurer will, at the request of the
Company, submit to the jurisdiction of any court of competent
jurisdiction within the State of New Jersey or such other jurisdiction
within the United States as the Company can select as a forum, and will
comply with all requirements necessary to give such court jurisdiction
and all matters arising hereunder shall be determined in accordance
with the law and practice of such court.
B. Service of process in such suit may be made on the Reinsurer by serving
the Commissioner of Insurance of the State of New Jersey, who shall
forward such process to the Reinsurer in accordance with Article XXIII
or at such other address as the Reinsurer shall advise. In any suit
instituted, the Reinsurer will abide by the final decision of such
court.
C. Further, pursuant to any statute of any state, territory, or district
of the United States of America which makes provisions therefore, the
Reinsurer herein hereby designates the superintendent, commissioner or
director of insurance or other officer specified for that purpose in
the statute, or his successor or successors in office, as 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 Agreement of reinsurance
and hereby designates the above-named person to whom the said office is
authorized to mail such process or a true copy thereof.
D. This Article is not meant to supersede Article XVII of this Agreement
or override the obligation of the parties to arbitrate their disputes
in accordance with Article XVII.
ARTICLE XIX - ENTIRE AGREEMENT
This Agreement, the Sale Agreement and the Guaranty, and any exhibits to such
agreements, collectively constitute the entire agreement between the Parties
regarding the subject matter hereof and supercede all prior agreements and
understandings, both written and oral and do not confer any rights or remedies
to any other party or any other person.
ARTICLE XX - AMENDMENTS AND ALTERATIONS
This Agreement shall not be changed, supplemented, modified, or amended except
by an endorsement/addendum signed by the Parties and attached hereto.
ARTICLE XXI - NO WAIVER
No forbearance to enforce any provision or right hereunder shall be deemed a
waiver thereof, and no waiver of any breach of any term or covenant herein shall
be construed as a waiver of any other breach of the same, or any other term or
covenant herein.
ARTICLE XXII - CONSTRUCTION
This Agreement is the result of arms-length negotiations between the Parties and
has been prepared jointly by the Parties. In applying and interpreting the
provisions of this Agreement, there shall be no presumption that either the
Company or the Reinsurer prepared this Agreement, or that this Agreement shall
be construed in favor of or against either the Company or the Reinsurer.
ARTICLE XXIII - NOTICES
Any notice or other communication required or permitted hereunder shall be in
writing and shall be delivered personally, telegraphed, telexed, sent by
facsimile transmission, or sent by certified, registered or express mail,
postage prepaid, to:
If to the Reinsurer, to:
Richard Green,
Vice President
Prudential Property and Casualty Insurance Company
23 Main St., 4th Floor
Holmdel, NJ 07032
Phone: 732-946-5082
Fax: 732-946-5029
with a copy to:
Doreen Faga
President, Gibraltar Operations
The Prudential Insurance Company of America
Eisenhower Corporate Center, Building 3
290 West Mt. Pleasant Avenue
Livingston, NJ 07039
Phone: 973-548-5980
Fax: 973-548-5950
If to the Company, to:
Janet J. Burak
Senior Vice President and General Counsel
Everest Reinsurance Holdings
477 Martinsville Road
P.O. Box 830
Liberty Corner, NJ 07938
Phone: 908-604-3170
Fax: 908-604-3450
or in each case to such other address as a party may designate for itself by
like notice to the other party.
ARTICLE XXIV - GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of
the State of New York.
IN WITNESS WHEREOF, the Company, by its duly authorized representative, has
executed this Agreement as of the date undermentioned at:
Livingston, New Jersey, this 19th day of September 2000.
/S/ DOREEN FAGA
---------------------------------
Doreen Faga
President, Gibraltar Casualty Co.
IN WITNESS WHEREOF, the Reinsurer, by its duly authorized representative, has
executed this Agreement as of the date undermentioned at:
Holmdel, New Jersey, this 19th day of September 2000.
/S/ RICHARD M. GREEN
---------------------------------
Richard M. Green
EXHIBIT A
Aggregate Stop Loss Retrocession Agreement between Prudential Reinsurance
Company and Gibraltar Casualty Company (effective 10/6/95)
Quota Share Reinsurance Agreement issued to Gibraltar Casualty Company by
Prudential Reinsurance Company (dated May 1, 1985) (Gibraltar's cession to
Prudential Reinsurance for MUF eligible business)
Direct Excess Quota Share Reinsurance Agreement between Prudential Reinsurance
Company and Gibraltar Casualty Company (effective January 1, 1986)
Quota Share Reinsurance Agreement between Prudential Reinsurance Company and
Gibraltar Casualty Company ("Med Mal") effective 1/1/89
MUF Commutation Agreements between Gibraltar Casualty Company, Prudential
Reinsurance Company and various MUF participants executed between 1985 and 1987,
the "MUF Buybacks"