EXHIBIT 10.81
Liberty American Insurance Company
Pinellas Park, Florida
Mobile USA Insurance Company
Pinellas Park, Florida
and
any and all other companies which are now
or may hereafter become member companies of
Liberty American Insurance Group, Inc.
Hereinafter referred to collectively as the "Company"
$50,000,000 EXCESS $240,000,000
FLORIDA ONLY CATASTROPHE REINSURANCE CONTRACT
EFFECTIVE: OCTOBER 1, 2004
REINSURANCE CONFIRMATION
BUSINESS REINSURED
Business classified by the Company as Property business. In force, new and
renewal business.
TERM
Effective October 1, 2004, with respect to losses arising out of loss
occurrences commencing on or after that date, through May 31, 2005 both days
inclusive. Extended expiration in the event a loss occurrence is in progress at
expiration.
TERRITORY
State of Florida and extra territorial limits of the Company's policies.
EXCLUSIONS
See attached.
RETENTION AND LIMIT
100% of $50,000,000 ultimate net loss each loss occurrence excess of
$240,000,000 ultimate net loss each loss occurrence, not to exceed $50,000,000
in all during the term of this Contract.
No claim shall be made as respects any one loss occurrence unless at least two
risks insured or reinsured by the Company are involved in such loss occurrence.
For purposes hereof, the Company shall be the sole judge of what constitutes one
risk.
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FLORIDA HURRICANE CAT FUND
FHCF inuring to Catastrophe Reinsurance Program. Recoveries deemed in place,
however, the full payout limit may be reduced by prior loss occurrences for
which recoveries were made from the FHCF.
OTHER REINSURANCE
The Company shall carry a 15% quota share reinsurance of its direct personal
lines business, recoveries under which to inure to the benefit of this Contract,
or so deemed.
DEFINITIONS
UNL includes LAE. See attached.
LOSS OCCURRENCE
No reinstatement same wind event. See attached.
LOSS NOTICES AND SETTLEMENTS
Individual loss notices and settlements.
PREMIUM
$2,000,000 payable at inception.
LATE PAYMENTS
See attached. Interest penalty based on 6-month United States Treasury Xxxx
Xxxx. Interest penalty of less than $100 shall be waived.
OTHER PROVISIONS
Salvage and Subrogation
Offset (BRMA 36D)
Access to Records (BRMA 1D)
Liability of the Reinsurer
Net Retained Lines (BRMA 32E)
Errors and Omissions (BRMA 14F)
Currency (BRMA 12A)
Taxes (BRMA 50C)
Federal Excise Tax (BRMA 17A)
Reserve Requirements (Evergreen LOC for unearned premium, outstanding
losses/LAE, including all case reserves plus any reasonable amount estimated to
be unreported from known loss occurrences)
Insolvency
Arbitration
Service of Suit
Agency Agreement
Governing Law (State of Florida)
Confidentiality
Severability
Intermediary (BRMA 23A)
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ALLOCATION OF FINAL SHARES
The Company shall have the right to review all authorizations and the full
authority to allocate final shares. Such decisions will be at the sole
discretion of the Company and may result in other than a "proportional signdown"
of authorizations. As respects signdowns within the London marketplace, the
final allocation of shares to individual companies or syndicates may not be
proportionate to the original authorizations.
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EXCLUSIONS
This Contract does not apply to and specifically excludes the following:
1. Financial Guarantee and Insolvency.
2. Nuclear risks as defined in the "Nuclear Incident Exclusion Clause -
Physical Damage - Reinsurance (U.S.A.)" and "Nuclear Incident
Exclusion Clause - Physical Damage - Reinsurance (Canada)" attached
to and forming part of this Contract.
3. Loss or damage caused by or resulting from 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, but
this exclusion shall not apply to loss or damage covered under a
standard policy with a standard War Exclusion Clause.
4. Loss or liability excluded under the provisions of the "Pools,
Associations and Syndicates Exclusion Clause" attached to and
forming part of this Contract.
5. 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.
6. Losses in respect of overhead transmission and distribution lines
and their supporting structures, other than those on or within 300
meters (or 1,000 feet) of the insured premises. It is understood and
agreed that public utilities extension and/or suppliers extension
and/or contingent business interruption coverages are not subject to
this exclusion, provided that these are not part of a transmitters'
or distributors' Policy.
7. Accident and Health, Casualty, Fidelity and/or Surety business.
8. Pollution and seepage coverages excluded under the provisions of the
"Pollution and Seepage Exclusion Clause (BRMA 39A)" attached to and
forming part of this Contract.
9. Notwithstanding any other provision to the contrary within this
Contract or any amendment thereto, it is agreed that this Contract
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 organization(s) or government(s) de
jure or de facto, and which:
a. Involves violence against one or more persons; or
b. Involves damage to property; or
c. Endangers life other than that of the person committing
the action; or
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d. Creates a risk to health or safety of the public or a
section of the public; or
e. Is designed to interfere with or to disrupt an
electronic system.
This Contract 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 Contract, in respect only of
personal lines this Contract 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.
10. Loss or liability in any way or to any extent arising out of the
actual or alleged presence or actual, alleged or threatened presence
of fungi including, but not limited to, mold, mildew, mycotoxins,
microbial volatile organic compounds or other "microbial
contamination". This includes:
a. Any supervision, instruction, recommendations, warnings
or advice given or which should have been given in
connection with the above; and
b. Any obligation to share damages with or repay someone
else who must pay damages because of such injury or
damage.
For purposes of this exclusion, "microbial contamination" means any
contamination, either airborne or surface, which arises out of or is
related to the presence of fungi, mold, mildew, mycotoxins,
microbial volatile organic compounds or spores, including, without
limitation, Penicillium, Aspergillus, Fusarium, Aspergillus Flavus
and Stachybotrys chartarum.
Losses resulting from the above causes do not in and of themselves
constitute an event unless arising out of one or more of the
following perils, in which case this exclusion does not apply:
Fire, lightning, explosion, aircraft or vehicle impact,
falling objects, windstorm, hail, tornado,
cyclone, hurricane, earthquake, volcano, tsunami, flood,
freeze or weight of snow.
Notice of any claims for mold-related losses must be given by the
Company to the Reinsurer, in writing, within 24 months after the
commencement date of the loss occurrence to which such claims
relate.
11. Loss or liability excluded under the provisions of the "Electronic
Data Endorsement B" (NMA 2915) attached to and forming part of this
Contract.
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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 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 any action against its
insured or reinsured or in the preparation or prosecution of an
appeal consequent upon such an action.
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.
Notwithstanding anything stated herein, the amount included in the
ultimate net loss for any one loss occurrence as respects loss in excess
of policy limits and extra contractual obligations shall not exceed 25.0%
of the Company's indemnity loss hereunder arising out of that loss
occurrence.
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.
If any provision of this paragraph B 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.
C. "Loss adjustment expense" as used herein shall mean expenses assignable to
the investigation, appraisal, adjustment, settlement, litigation, defense
and/or appeal of specific claims, regardless of how such expenses are
classified for statutory reporting purposes. Loss adjustment expense shall
include, but not be limited to, declaratory judgments, interest on
judgments, expenses of outside adjusters, and a pro rata share of the
salaries and expenses of the Company's field employees according to the
time occupied adjusting such losses and expenses of the Company's
officials incurred in connection with the losses, but shall not include
office expenses or salaries of the Company's regular employees.
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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 herein (hereinafter referred to as the
"Intermediary") by the payment due date, the party to whom payment is due
may, by notifying the Intermediary in writing, require the debtor party to
pay, and the debtor party agrees to pay, an interest penalty on the amount
past due calculated for each such payment on the last business day of each
month as follows:
1. The number of full days which have expired since the due date or the
last monthly calculation, whichever the lesser, times
2. 1/365ths of the six-month United States Treasury Xxxx Xxxx 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 10 business 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 10 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 10
business 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 a debtor party advances payment of any
amount it is contesting, and proves to be correct in its contestation,
either in whole or in part, the other party shall reimburse the debtor
party for any such excess payment made plus interest on the excess amount
calculated in accordance with this Article.
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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.
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NON BRMA ARTICLES
LOSS OCCURRENCE
A. The term "loss occurrence" shall mean the sum of all individual losses
directly occasioned by any one disaster, accident or loss or series of
disasters, accidents or losses arising out of one event which occurs
within the area of one state of the United States or province of Canada
and states or provinces contiguous thereto and to one another. However,
the duration and extent of any one "loss occurrence" shall be limited to
all individual losses sustained by the Company occurring during any period
of 168 consecutive hours arising out of and directly occasioned by the
same event, except that the term "loss occurrence" shall be further
defined as follows:
1. As regards windstorm, hail, tornado, hurricane, cyclone, including
ensuing collapse and water damage, all individual losses sustained
by the Company occurring during any period of 72 consecutive hours
arising out of and directly occasioned by the same event. However,
the event need not be limited to one state or province or states or
provinces contiguous thereto.
2. As regards riot, riot attending a strike, civil commotion, vandalism
and malicious mischief, all individual losses sustained by the
Company occurring during any period of 72 consecutive hours within
the area of one municipality or county and the municipalities or
counties contiguous thereto arising out of and directly occasioned
by the same event. The maximum duration of 72 consecutive hours may
be extended in respect of individual losses which occur beyond such
72 consecutive hours during the continued occupation of an insured's
premises by strikers, provided such occupation commenced during the
aforesaid period.
3. As regards earthquake (the epicenter of which need not necessarily
be within the territorial confines referred to in the introductory
portion of this paragraph) and fire following directly occasioned by
the earthquake, only those individual fire losses which commence
during the period of 168 consecutive hours may be included in the
Company's "loss occurrence."
4. As regards "freeze," only individual losses directly occasioned by
collapse, breakage of glass and water damage (caused by bursting
frozen pipes and tanks) may be included in the Company's "loss
occurrence."
5. As regards firestorms, brush fires, and other fires or series of
fires, irrespective of origin (except as provided in subparagraphs 2
and 3 above), which spread through trees, grassland or other
vegetation, all individual losses sustained by the Company which
occur during any period of 168 consecutive hours within a 100-mile
radius of any one fixed point selected by the Company may be
included in the Company's "loss occurrence." However, an individual
loss subject to this subparagraph cannot be included in more than
one "loss occurrence."
B. For all those "loss occurrences," other than those referred to in
subparagraph 2 of paragraph A above, the Company may choose the date and
time when any such period of consecutive hours commences, provided that it
is not earlier than the date and time of the occurrence of the first
recorded individual loss sustained by the Company arising out of that
disaster, accident or loss, and provided that only one such period of 168
consecutive hours shall apply with respect to one event, except for any
"loss occurrence" referred to in subparagraph 1 of paragraph A above where
only one such period of 72 consecutive hours shall apply with respect to
one event, regardless of the duration of the event.
C. As respects those "loss occurrences" referred to in subparagraph 2 of
paragraph A above, if the disaster, accident or loss occasioned by the
event is of greater duration than 72 consecutive hours, then the Company
may divide that disaster, accident or loss into two or more "loss
occurrences," provided no two periods overlap and no individual loss is
included in more than one such period and
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provided that no period commences earlier than the date and time of the
occurrence of the first recorded individual loss sustained by the Company
arising out of that disaster, accident or loss.
D. No individual losses occasioned by an event that would be covered by 72
hours clauses may be included in any "loss occurrence" claimed under the
168 hours provision.
FLORIDA HURRICANE CATASTROPHE FUND
A. Any loss reimbursement paid or payable to the Company under the Florida
Hurricane Catastrophe Fund (FHCF) as a result of loss occurrences
commencing during the term of this Contract shall inure to the benefit of
this Contract. Further, any FHCF loss reimbursement shall be deemed to be
paid to the Company in accordance with the reimbursement contract between
the Company and the State Board of Administration of the State of Florida
at the full payout level set forth therein and will be deemed not to be
reduced by any reduction or exhaustion of the FHCF's claims paying
capacity.
B. Prior to the determination of the Company's FHCF retention and payout, if
any, under the reimbursement contract, the Reinsurer's liability hereunder
will be determined provisionally based on the projected payout, determined
in accordance with the provisions of the reimbursement contract. Following
determination of the payout under the reimbursement contract, the ultimate
net loss under this Contract will be recalculated. If, as a result of such
calculation, the loss to the Reinsurer in any one loss occurrence is less
than the amount previously paid by the Reinsurer, the Company shall
promptly remit the difference to the Reinsurer. If the loss to the
Reinsurer in any one loss occurrence is greater than the amount previously
paid by the Reinsurer, the Reinsurer shall promptly remit the difference
to the Company.
C. If an FHCF reimbursement amount is based on the Company's losses in more
than one loss occurrence and the FHCF does not designate the amount
allocable to each loss occurrence, the FHCF reimbursement amount shall be
prorated in the proportion that the Company's losses in each loss
occurrence bear to the Company's total losses arising out of all loss
occurrences to which the FHCF reimbursement applies.
D. Any reimbursement premiums or emergency assessment paid by the Company
under the FHCF shall be deemed to be premiums paid for inuring
reinsurance.
LOSS NOTICES AND SETTLEMENTS
A. Whenever losses sustained by the Company appear likely to result in a
claim hereunder, the Company shall notify the Reinsurer, and the Reinsurer
shall have the right to participate in the adjustment of such losses at
its own expense.
B. All loss settlements made by the Company, provided they are within the
terms of this Contract, shall be binding upon the Reinsurer, and the
Reinsurer agrees to pay all amounts for which it may be liable upon
receipt of reasonable evidence of the amount paid (or scheduled to be
paid) by the Company.
SALVAGE AND SUBROGATION
The Reinsurer shall be credited with salvage (i.e., reimbursement obtained or
recovery made by the Company, less the actual cost, excluding salaries of
officials and employees of the Company and sums paid to attorneys as retainer,
of obtaining such reimbursement or making such recovery) on account of claims
and settlements involving reinsurance hereunder. Salvage thereon shall always be
used to reimburse the excess carriers in the reverse order of their priority
according to their participation before being used in any way to reimburse the
Company for its primary loss. The Company hereby agrees to
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enforce its rights to salvage or subrogation relating to any loss, a part of
which loss was sustained by the Reinsurer, and to prosecute all claims arising
out of such rights.
LIABILITY OF THE REINSURER
A. The liability of the Reinsurer shall follow that of the Company in every
case and be subject in all respects to all the general and specific
stipulations, clauses, waivers and modifications of the Company's policies
and any endorsements thereon. However, in no event shall this be construed
in any way to provide coverage outside the terms and conditions set forth
in this Contract.
B. Nothing herein shall in any manner create any obligations or establish any
rights against the Reinsurer in favor of any third party or any persons
not parties to this Contract.
RESERVE REQUIREMENTS
A. If the Reinsurer is unauthorized in any state of the United States of
America or the District of Columbia, the Reinsurer agrees to fund its
share of the Company's ceded United States unearned premium and
outstanding loss and loss adjustment expense reserves (including all case
reserves plus any reasonable amount estimated to be unreported from known
loss occurrences) by:
1. Clean, irrevocable and unconditional letters of credit issued and
confirmed, if confirmation is required by the insurance regulatory
authorities involved, by a bank or banks meeting the NAIC Securities
Valuation Office credit standards for issuers of letters of credit
and acceptable to said insurance regulatory authorities; and/or
2. Escrow accounts for the benefit of the Company; and/or
3. Cash advances;
if, without such funding, a penalty would accrue to the Company on any
financial statement it is required to file with the insurance regulatory
authorities involved. The Reinsurer, at its sole option, may fund in other
than cash if its method and form of funding are acceptable to the
insurance regulatory authorities involved.
B. If the Reinsurer is unauthorized in any province or jurisdiction of
Canada, the Reinsurer agrees to fund 115% of its share of the Company's
ceded Canadian unearned premium and outstanding loss and loss adjustment
expense reserves (including all case reserves plus any reasonable amount
estimated to be unreported from known loss occurrences) by:
1. A clean, irrevocable and unconditional letter of credit issued and
confirmed, if confirmation is required by the insurance regulatory
authorities involved, by a Canadian bank or banks meeting the NAIC
Securities Valuation Office credit standards for issuers of letters
of credit and acceptable to said insurance regulatory authorities,
for no more than 15/115ths of the total funding required; and/or
2. Cash advances for the remaining balance of the funding required;
if, without such funding, a penalty would accrue to the Company on any
financial statement it is required to file with the insurance regulatory
authorities involved.
C. With regard to funding in whole or in part by letters of credit, it is
agreed that each letter of credit will be in a form acceptable to
insurance regulatory authorities involved, will be issued for a term of at
least one year and will include an "evergreen clause," which automatically
extends the term for at least one additional year at each expiration date
unless written notice of non-renewal is given to the Company not less than
30 days prior to said expiration date. The Company and the Reinsurer
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further agree, notwithstanding anything to the contrary in this Contract,
that said letters of credit may be drawn upon by the Company or its
successors in interest at any time, without diminution because of the
insolvency of the Company or the Reinsurer, but only for one or more of
the following purposes:
1. To reimburse itself for the Reinsurer's share of unearned premiums
returned to insureds on account of policy cancellations, unless paid
in cash by the Reinsurer;
2. To reimburse itself for the Reinsurer's share of losses and/or loss
adjustment expense paid under the terms of policies reinsured
hereunder, unless paid in cash by the Reinsurer;
3. To reimburse itself for the Reinsurer's share of any other amounts
claimed to be due hereunder, unless paid in cash by the Reinsurer;
4. To fund a cash account in an amount equal to the Reinsurer's share
of any ceded unearned premium and/or outstanding loss and loss
adjustment expense reserves (including all case reserves plus any
reasonable amount estimated to be unreported from known loss
occurrences) funded by means of a letter of credit which is under
non-renewal notice, if said letter of credit has not been renewed or
replaced by the Reinsurer 10 days prior to its expiration date;
5. To refund to the Reinsurer any sum in excess of the actual amount
required to fund the Reinsurer's share of the Company's ceded
unearned premium and/or outstanding loss and loss adjustment expense
reserves (including all case reserves plus any reasonable amount
estimated to be unreported from known loss occurrences), if so
requested by the Reinsurer.
In the event the amount drawn by the Company on any letter of credit is in
excess of the actual amount required for C(1), C(2) or C(4), or in the
case of C(3), the actual amount determined to be due, the Company shall
promptly return to the Reinsurer the excess amount so drawn.
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
Contract specifically provides
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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.
ARBITRATION
A. As a condition precedent to any right of action hereunder, any dispute or
difference between the Company and any Reinsurer relating to the
interpretation or performance of this Contract, including its formation or
validity, or any transaction under this Contract, whether arising before
or after termination, shall be submitted to arbitration.
B. 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 provided that communication shall be made by the Company to each
of the reinsurers constituting the one party, and provided, however, that
nothing therein 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 Reinsurer under the terms of this Contract
from several to joint.
C. Upon written request of any party, each party shall choose an arbitrator
and the two chosen shall select a third arbitrator. If either party
refuses or neglects to appoint an arbitrator within 30 days after receipt
of the written request for arbitration, the requesting party may appoint a
second arbitrator. If the two arbitrators fail to agree on the selection
of a third arbitrator within 30 days of their appointment, the Company
shall petition the American Arbitration Association to appoint the third
arbitrator. If the American Arbitration Association fails to appoint the
third arbitrator within 30 days after it has been requested to do so,
either party may request a justice of a court of general jurisdiction of
the state in which the arbitration is to be held to appoint the third
arbitrator. All arbitrators shall be active or retired officers of
insurance or reinsurance companies, or Lloyd's London Underwriters, and
disinterested in the outcome of the arbitration. Each party shall submit
its case to the arbitrators within 30 days of the appointment of the third
arbitrator.
D. The parties hereby waive all objections to the method of selection of the
arbitrators, it being the intention of both sides that all the arbitrators
be chosen from those submitted by the parties.
E. The arbitrators shall have the power to determine all procedural rules for
the holding of the arbitration including but not limited to inspection of
documents, examination of witnesses and any other matter relating to the
conduct of the arbitration. The arbitrators shall interpret this Contract
as an honorable engagement and not as merely a legal obligation; they are
relieved of all judicial formalities and may abstain from following the
strict rules of law. The arbitrators may award interest and costs. Each
party shall bear the expense of its own arbitrator and shall share equally
with the other party the expenses of the third arbitrator and of the
arbitration.
F. The decision in writing of the majority of the arbitrators shall be final
and binding upon both parties. Judgment may be entered upon the final
decision of the arbitrators in any court having jurisdiction. The
arbitration shall take place in Pinellas Park, Florida, unless otherwise
mutually agreed between the Company and the Reinsurer.
G. This Article shall remain in full force and effect in the event any other
provision of this Contract shall be found invalid or non-binding.
H. All time limitations stated in this Article may be amended by mutual
consent of the parties, and will be amended automatically to the extent
made necessary by any circumstances beyond the control of the parties.
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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.
GOVERNING LAW
This Contract shall be governed as to performance, administration and
interpretation by the laws of the State of Florida exclusive of the rules with
respect to conflicts of law, except as to rules with respect to credit for
reinsurance in which case the applicable rules of all states shall apply.
CONFIDENTIALITY
The Reinsurer, except with the express prior written consent of the Company,
shall not directly or indirectly, communicate, disclose or divulge to any third
party, any knowledge or information that may be acquired either directly or
indirectly as a result of the inspection of the Company's books, records and
papers. The restrictions as outlined in this Article shall not apply to
communication or disclosures that the Reinsurer is required to make to its
statutory auditors, retrocessionaires, legal counsel, arbitrators involved in
any arbitration procedures under this Contract or disclosures required upon
subpoena or other dully-issued order of a court or other governmental agency or
regulatory authority.
SEVERABILITY
If any provision of this Contract should be invalid under applicable laws, the
latter shall control but only to the extent of the conflict without affecting
the remaining provisions of this Contract.
SERVICE OF SUIT
(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. This
Article is not intended to conflict with or override the parties' obligations to
arbitrate their disputes in accordance with the Arbitration Article)
A. It is agreed that in the event the Reinsurer fails to pay any amount
claimed to be due hereunder, the Reinsurer, at the request of the Company,
will submit to the jurisdiction of any court of competent jurisdiction
within the United States. Nothing in this Article constitutes or should be
understood to constitute a waiver of the Reinsurer's rights to commence an
action in any court of competent jurisdiction in the United States, to
remove an action to a United States District Court, or to seek a transfer
of a case to another court as permitted by the laws of the United States
or of any state in the United States.
B. Further, pursuant to any statute of any state, territory or district
of the United States which makes provision therefore, 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.
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