Exhibit 10.44
TITLE QUOTA SHARE REINSURANCE CONTRACT
BETWEEN DARWIN NATIONAL ASSURANCE COMPANY, DARWIN SELECT
INSURANCE COMPANY, CAPITOL INDEMNITY CORPORATION,
CAPITOL SPECIALTY INSURANCE CORPORATION, PLATTE RIVER
INSURANCE COMPANY AND/OR ANY OTHER ASSOCIATED,
AFFILIATED OR SUBSIDIARY COMPANIES OF ALLEGHANY
INSURANCE HOLDING LLC, BUT ONLY IN RESPECT OF BUSINESS
UNDERWRITTEN BY DARWIN PROFESSIONAL UNDERWRITERS, INC.
AND
THE REINSURERS SIGNATORY HERETO
COMMENCING SEPTEMBER 1, 2005
U.S. CLASSIFICATION U.S. REINSURANCE
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CONTENTS
PREAMBLE IDENTITY OF PARTIES
ARTICLE 1 BUSINESS REINSURED
ARTICLE 2 EXCLUSIONS
ARTICLE 3 COVER, LIMIT AND RETENTION
ARTICLE 4 TERRITORIAL SCOPE
ARTICLE 5 PERIOD
ARTICLE 6 SPECIAL TERMINATION
ARTICLE 7 FOLLOW THE FORTUNES
ARTICLE 8 EXCESS OF ORIGINAL POLICY LIMITS
ARTICLE 9 EXTRA-CONTRACTUAL OBLIGATIONS
ARTICLE 10 PREMIUM
ARTICLE 11 CEDING COMMISSION
ARTICLE 12 ACCOUNTS, REPORTS AND PAYMENTS
ARTICLE 13 NOTICE OF LOSS AND LOSS SETTLEMENTS
ARTICLE 14 INTEREST PENALTY
ARTICLE 15 UNEARNED PREMIUM AND LOSS RESERVES
ARTICLE 16 CURRENCY
ARTICLE 17 TAX PROVISIONS
ARTICLE 18 INSOLVENCY OF THE REASSURED
ARTICLE 19 OFFSET
ARTICLE 20 DELAYS, ERRORS AND OMISSIONS
ARTICLE 21 AMENDMENTS AND ALTERATIONS
ARTICLE 22 ACCESS TO RECORDS AND CLAIMS REVIEW
ARTICLE 23 ARBITRATION
ARTICLE 24 SERVICE OF SUIT
ARTICLE 25 CONFIDENTIALITY
ARTICLE 26 REGULATORY COMPLIANCE
ARTICLE 27 INTERMEDIARY
ARTICLE 28 GOVERNING LAW
ARTICLE 29 PARTICIPATION
ARTICLE 30 SEVERAL LIABILITY NOTICE
ATTACHMENTS:
1. NUCLEAR INCIDENT EXCLUSION CLAUSES - LIABILITY- REINSURANCE- U.S.A and
CANADA.
2. NUCLEAR ENERGY RISKS EXCLUSION CLAUSE - REINSURANCE - 1994 - (WORLDWIDE
excluding U.S.A and CANADA).
3. INSOLVENCY FUNDS EXCLUSION CLAUSE APPENDIX A - CLAIMS BORDEREAU FORMAT
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QUOTA SHARE REINSURANCE CONTRACT
PREAMBLE
This Contract is made and entered into between Darwin National Assurance
Company, Darwin Select Insurance Company, Capitol Indemnity Corporation, Capitol
Specialty Insurance Corporation, Platte River Insurance Company and/or any other
associated, affiliated or subsidiary companies of Alleghany Insurance Holding
LLC, but only in respect of business underwritten by Darwin Professional
Underwriters Inc. of 0 Xxxx Xxxxxxx Xxxx, Xxxxxxxxxx, Xxxxxxxxxxx 00000 (NAIC
Group Code 10472) (hereinafter referred to as "the Reassured") and the
Reinsurers signatory hereto (hereinafter referred to as "the Reinsurers"), on
the following terms and conditions:
ARTICLE 1
BUSINESS REINSURED
Business classified by the Reassured as Directors' & Officers' Liability,
Fiduciary Liability, Employment Practices Liability, Miscellaneous Professional
Liability, Insurance Agents Errors and Omissions Liability, and Lawyers
Professional Liability all as produced, accepted or referred through the
Reassured's "I-BIND" system.
It is understood and agreed that initially only business classified by the
Reassured as Private Commercial Directors' & Officers' Liability, Fiduciary
Liability and Employment Practices Liability shall be covered hereunder.
Coverage for all other classes of business to be added subject to review and
approval by the Reinsurers of Darwin Professional Underwriters' underwriting and
rating guidelines for those other business classes.
ARTICLE 2
EXCLUSIONS
This Contract does not apply to and absolutely excludes the following:
1. Nuclear Incidents, in accordance with the attached Nuclear Incident
Exclusion Clauses - Liability - Reinsurance - U.S.A./Canada.
2. Nuclear Energy Risks, in accordance with the attached Nuclear Energy Risks
Exclusion Clause (Reinsurance) (1994) (Worldwide excluding U.S.A. and
Canada).
3. Insolvency Funds, in accordance with the attached Insolvency Funds
Exclusion Clause.
4. Liability assumed by the Reassured as a Member or Reinsurer of any Pool,
Association or Syndicate.
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5. Financial Guarantee and Insolvency Insurance.
6. Surety Business.
7. Reinsurance Assumed Business, other than policies "fronted" by another
carrier and individually underwritten by Darwin Professional Underwriters,
Inc, and Inter-Company Pooling Arrangements.
8. Business classified by the Reassured as Accountants Errors & Omissions,
Actuarial Errors & Omissions, Architects and Engineers Errors & Omissions,
Engineering/Construction Risk Errors & Omissions, Financial Institutions
Errors & Omissions, Media Professional Liability, Medical Malpractice,
Hospital Professional Liability, Nursing Home Errors & Omissions.
9. Directors' & Officers' Liability, Fiduciary Liability and Employment
Practices Liability for publicly held companies.
10. Reps and Warranties, Tax Opinion, and Loss Mitigation Units.
11. Any risk with more than $500,000,000 in revenues or assets, or with more
than 1,500 employees.
ARTICLE 3
COVER, LIMIT AND RETENTION
The Reassured shall cede and the Reinsurers shall accept by way of reinsurance
under this Contract a 75% Quota Share of original policy limits up to a maximum
of USD2,000,000 or so deemed each and every claim each policy and/or program
each original insured.
The Reassured shall retain the remaining 25% Quota Share net for their own
account and unreinsured but, without prejudice to the foregoing, shall be at
liberty to protect that retention by way of inter-company reinsurance and/or
clash excess of loss reinsurance for their own account and benefit.
It is understood and agreed the Reinsurers hereon to bear their proportional
share of all loss adjustment and defense cost expenses, as per the original
policy. Original policies may provide for costs inclusive or costs in addition
coverage. Where coverage is issued on a costs inclusive basis, costs shall be
included within the limit hereon. Where coverage is issued on a cost in addition
basis, pro rata costs shall be payable in addition to the limit hereon.
The Reassured shall be at liberty to effect specific facultative reinsurance,
for the common account of themselves and Reinsurers, when they consider it in
the best interest of the Reinsurers to do so.
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It is understood and agreed that the limits hereon apply separately to each
original coverage and/or section thereof as applicable, issued by the Reassured,
unless written on a combined, shared limit basis, as per original policies.
The meaning of "each and every loss", "claim", "claim made" and "losses
discovered" shall follow the definitions in the policies covered hereunder, as
finally determined by the Reassured. The Reassured shall also be the determinant
of what constitutes "each Insured", "each coverage", "each section" and "each
policy".
Where the Reassured issues more than one policy to the same original insured
covering the same class of business, (such as on a layered basis), then the
combination of such policies shall be considered a program for the purposes
hereof, as solely determined by the Reassured.
ARTICLE 4
TERRITORIAL SCOPE
This Contract shall cover wherever the Reassured's original policies cover.
ARTICLE 5
PERIOD
This Contract shall cover claims made or losses discovered, as original, on
original policies written or renewed with effective dates during the period
September 1st, 2005 12:01 a.m. Standard Time to April 1st, 2007 12:01 a.m.
Standard Time at the place and location of risks insured.
It is understood and agreed the maximum original policy period shall be 12
months plus odd time not to exceed 18 months in all, plus extended reporting
period coverage or endorsements, as original. For the purposes of this Contract,
any extension, discovery period or extended reporting endorsement attaching to a
policy covered hereunder shall be considered as part of the period of the said
policy, subject to the provision that a separate limit of liability will not
apply in respect thereof unless required by statute. Policies classified by the
Reassured as "Run-Off" may be issued for periods up to 72 months.
Upon expiry of this Contract, policies in force at the effective time and date
of expiration hereof shall continue to be covered hereunder until their
individual natural expiration or termination dates, whichever sooner, including
extensions, discovery periods, or other similar extended reporting endorsements
attaching to such policies. The Reassured may however, subject to agreement by
Reinsurers hereon, terminate the liability of the Reinsurers for claims made or
losses discovered, as original, after the effective time and date of expiration
hereof and, in such event, the unearned premium on all ceded policies attaching
hereunder shall be returned to the
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Reassured by the Reinsurers less any ceding commission previously allowed on
unearned premium.
ARTICLE 6
SPECIAL TERMINATION CLAUSE
A. Either party may terminate this Contract upon 30 days notice in the event
that the other party's surplus has been reduced by 30% or more of the
amount of surplus at June 30th, 2005.
B. The Reassured may terminate the Reinsurer's participation hereon at any
time by giving 30 days' prior written notice to the Reinsurer in the event
that:
(1) A State Insurance Department or other legal authority has ordered
the subscribing Reinsurer to cease writing business; or
(2) The subscribing Reinsurer has become insolvent or has been placed
into liquidation or receivership or proceedings have been instituted
against the subscribing Reinsurer for the appointment of a receiver,
liquidator, rehabilitator, conservator or trustee in bankruptcy, or
other agents known by whatever name, to take possession of its
assets or control of its operation; or
(3) The subscribing Reinsurer has reinsured its entire liability under
this Contract without the Reassured's prior written consent.
However, the Reinsurer shall be at liberty to effect catastrophe
excess and/or aggregate stop loss excess reinsurance; or
(4) The subscribing Reinsurer has ceased assuming new and renewal treaty
reinsurance business; or
(5) The subscribing Reinsurer experiences a downgrading in their
financial strength rating from Standard and Poor's Group below BBB
or a downgrading in rating from A.M. Best Company below A-.
In the event of such termination, the liability of the Reinsurer shall be
terminated as follows:
Policies in force at the effective time and date of termination of this Contract
shall continue to be covered hereunder until their individual expiration dates,
including extensions, discovery periods or other such similar reporting
endorsements or provisions attached thereto.
The Reassured may however terminate the liability of the Reinsurer for claims
made or losses discovered, as original, after the effective time and date of
termination of this Contract and, in such event, the unearned premium at the
termination date applicable to in force policies, including extensions,
discovery periods or other similar extended reporting endorsements or
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provisions attached thereto, shall be returned to the Reassured by the
Reinsurers less any ceding commission previously allowed on unearned premium.
ARTICLE 7
FOLLOW THE FORTUNES
The Reinsurer's liability shall attach simultaneously with that of the Reassured
and shall be subject in all respects to the same risks, terms, conditions,
interpretations, and cancellations as the respective original policies and
contracts of insurance of the Reassured, the true intent of this Contract being
that the Reinsurer shall, subject to the terms, conditions, and limits of this
Contract and the policies subject to this Contract follow the underwriting
fortunes of the Reassured. Nothing shall in any manner create any obligations or
establish any rights against the Reinsurer in favor of any third parties or any
persons not parties to this Contract, except as provided for in Article,
INSOLVENCY OF THE REASSURED.
ARTICLE 8
EXCESS OF ORIGINAL POLICY LIMITS
In addition to the coverage afforded under Article, COVER, LIMIT AND RETENTION
should the Reassured incur additional liability as the result of an award in
excess of their original policy limit as defined below, the Reinsurers shall
accept the additional liability up to an additional Contract limit in addition
to any contractual loss hereunder (subject to the Reassured's 25%
co-participation hereon), it being understood the maximum additional recoverable
in respect of specific excess of original policy limits and extra contractual
obligations coverage shall be USD2,000,000 any one claim (for 100%).
Awards in excess of the original policy limit are defined as contractual losses
which the Reassured may be legally liable to pay, but in excess of the original
policy limit, such losses in excess of the original policy limit having been
incurred because of, but not limited to, the following: failure by the Reassured
to settle within the original policy limit or by reason of alleged or actual
negligence, fraud or bad faith in rejecting an offer of settlement or in the
preparation of the defense or in the trial of any action against an insured or
in the preparation or prosecution of an appeal consequent upon such action.
The date on which any liability in excess of original policy limits is incurred
by the Reassured shall be deemed, in all circumstances, to be the date the
original claim was made or occurred.
However, this Article shall not apply where such awards in excess of original
policy limit have been incurred due to the fraud of a member of the Board of
Directors or a corporate officer of the Reassured 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.
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ARTICLE 9
EXTRA-CONTRACTUAL OBLIGATIONS
In addition to the coverage afforded under Article, COVER, LIMIT AND RETENTION
should the Reassured incur additional liability as the result of an award in
respect of any extra-contractual obligations, as defined below, the Reinsurers
shall accept the additional liability up to an additional Contract limit in
addition to any contractual loss hereunder (subject to the Reassured's 25%
co-participation hereon), it being understood the maximum additional recoverable
in respect of specific excess of original policy limits and extra contractual
obligations coverage shall be USD2,000,000 (for 100%) any one claim.
"Extra-contractual obligations" are defined as those liabilities not covered
under any other provision of this Contract and which arise from the handling of
any claim on business covered hereunder, such liabilities arising because of,
but not limited to, the following: failure by the Reassured to settle within the
policy limit, or by reason of alleged or actual negligence, fraud or bad faith
in rejecting an offer of settlement or in the preparation of the defense or in
the trial of any action against an insured or in the preparation or prosecution
of an appeal consequent upon such action.
The date on which any extra-contractual obligation is incurred by the Reassured
shall be deemed, in all circumstances, to be the date the original claim was
made or occurred.
However, this Article shall not apply where such extra-contractual obligations
have been incurred due to the fraud of a member of the Board of Directors or a
corporate officer of the Reassured 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.
ARTICLE 10
PREMIUM
In consideration of the liabilities undertaken by the Reinsurers in accordance
with the terms of this Contract, the Reassured shall pay to the Reinsurers their
75% Quota Share proportion of the Reassured's Original Gross Net Written Premium
for limits attaching hereon.
For the purposes of this Contract, the Reassured's Original Gross Net Written
Premium for limits attaching hereon, shall be defined as the gross written
premium charged by the Reassured to their insureds less cancellations and return
premiums, less premiums paid for any overlying limits and less premiums paid for
inuring facultative reinsurance. Premiums paid for overlying limits shall be
calculated in accordance with the Reassured's ILF's established for those
limits.
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ARTICLE 11
CEDING COMMISSION
The Reinsurers agree to allow the Reassured to deduct and retain for their own
benefit as ceding commission 28.0% of Original Gross Net Written Premiums
payable to the Reinsurers in accordance with the terms of Article, PREMIUM.
ARTICLE 12
ACCOUNTS, REPORTS AND PAYMENTS
A quarterly account of premiums written, ceding commissions, paid loss and loss
adjustment expenses, unearned premium and outstanding loss and loss adjustment
expense reserves shall be rendered by the Reassured within 45 days of the close
of each calendar quarter being within 45 days of September 30th, 2005, and
quarterly thereafter. The net account balance, being the premiums written less
ceding commissions, paid loss and loss adjustment expenses, if due the
Reinsurers, shall be settled by the Reassured within 60 days from the close of
each calendar quarter; and if the net account balance is due to the Reassured by
the Reinsurers, settlement by the Reinsurers shall be made within 15 days of
receipt by the Reinsures of the quarterly account.
A risk bordereaux shall be provided by the Reassured to the Reinsurers and shall
contain the following information: policy number, insured name, policy term,
class or classes of business, policy limit(s), whether the policy provides
separate or shared limits among coverages, policy deductible(s), NAICS code, and
if defense costs are within or in addition to the limit. In addition, the
following information specific to each class of business shall be provided:
revenues and/or assets (for D&O), number of employees (for EPLI), plan assets
(for Fiduciary), nature of professional services (for MPL, Insurance Agents, and
Lawyers). Finally, information shall be provided on whether the account was
written via "straight through processing" or referral.
ARTICLE 13
NOTICE OF LOSS AND LOSS SETTLEMENTS
Reinsurers agree to abide by all loss settlements of the Reassured which at its
sole discretion shall adjust, settle or compromise all losses and all such
adjustments, settlements or compromises shall be binding upon Reinsurers subject
to the terms, conditions and limitations of the original policies and this
Contract.
Where the Reassured's original policies and/or specific coverage parts of their
original policies provide for loss adjustment expenses in addition to limit, all
loss adjustment expenses paid by the Reassured shall be apportioned in
proportion to the respective interests in the loss of the parties hereto as such
interests finally appear, provided that in the event a verdict or judgment is
reduced by an appeal or a settlement, subsequent to the entry of the judgment,
resulting in an ultimate
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saving on such verdict or judgment, or a judgment is reversed outright, the
expense incurred in securing such final reduction or reversal shall be pro rata
between the Reinsurers and the Reassured in the proportion that each benefits
from such reduction or reversal; and the expenses incurred up to the time and
date of the original verdict or judgment shall be pro-rated in proportion to
each party's interest in such verdict or judgment.
In the event of external legal or external adjustment expenses, including
outside monitoring counsel expenses, which are incurred by the Reassured in
connection with a claim or potential claim hereunder and which are not the
subject of the Reassured's original policy, then Reinsurers shall also be liable
for their proportion of such expenses in addition to their share of the loss
recoverable hereunder.
The Reinsurers shall also accept additional liability, solely on cessions made
hereunder, for legal expenses incurred in respect of coverage questions and
legal actions in connection with a claim or potential claim hereunder
(hereinafter referred to as "declaratory judgment and/or rescission expenses").
It is understood and agreed that:
1. When there is no contractual loss, other than declaratory judgment and/or
rescission expenses, the declaratory judgment and/or rescission expenses
shall be considered a Loss for the purposes of recovery hereunder.
2. When a contractual loss, exclusive of declaratory judgment and/or
rescission expenses, is incurred hereunder, the Reinsurers shall be liable
for their proportionate share of such declaratory judgment and/or
rescission expenses, as the respective interests in the loss of the
parties hereto finally appear, up to an additional limit of this Contract
(subject to the Reassured's 25% co-participation hereon) in addition to
any Loss recoverable hereunder.
For the purposes of this Contract loss adjustment expenses shall include all
expenses of litigation, including post judgment interest, but shall exclude the
salaries of regular employees and all office expenses of the Reassured.
All salvages, recoveries or payments recovered or received subsequent to a loss
settlement under this Contract shall be applied as if recovered or received
prior to the aforesaid settlement and all necessary adjustments shall be made by
the parties hereto.
A paid and outstanding loss bordereaux for all claims to be rendered by the
Reassured within 45 days of the end of each calendar quarter, being within 45
days of September 30th, 2005 and quarterly thereafter.
It is understood and agreed, both by the Reassured and Reinsurers, that all paid
and outstanding losses shall be advised to Reinsurers by quarterly bordereaux;
it being further understood and agreed that individual loss reports are to be
provided to Reinsurers for all losses of USD250,000 or greater.
The bordereaux shall solely comprise numerical details of the paid and
outstanding amounts of each loss together with other data to identify the claim,
all as shown on the example bordereaux
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format(s) attached hereto as Appendix A to this Contract and which have been
mutually agreed by the Reassured and Reinsurers. It is clearly understood and
agreed that such bordereaux shall not provide any other details of the claim and
that there shall be no requirement to provide assessment of potential liability
or other evaluations of each claim, except as provided herein for losses of
USD250,000 or greater.
Losses and expenses which the Reassured has paid shall be debited to the
Reinsurers in the quarterly accounts rendered in accordance with the Article,
ACCOUNTS, REPORTS AND SETTLEMENTS. Notwithstanding such quarterly bordereaux
settlements, the Reassured may request an immediate cash loss settlement from
Reinsurers in the event that the amount due from Reinsurers in respect of an
individual claim is USD500,000 or more for 100% hereon). Such cash loss xxxxxxxx
shall be made solely utilizing the same format as the quarterly bordereaux
collections.
ARTICLE 14
INTEREST PENALTY
The provisions of this Article shall not be implemented unless specifically
invoked, in writing, by the Reassured or Reinsurer. The interest amounts
provided for in this Article will apply to the Reinsurer or to the Reassured in
the following circumstances:
1. Loss payment owed by the Reinsurer to the Reassured shall have a due date
to the Reassured of 45 calendar days following the date of the Reinsurer's
receipt of the billing, but no later than 90 days from the Reassured's
date of the billing.
2. Payment of any premium installments shall be due to the Reinsurer within
30 calendar days of the date specified in this Contract. Any premium
adjustments will be due by the debtor party within 60 calendar days of the
date specified in this Contract.
3. Payment of return premiums, commissions, profit sharing, or any other
amounts not provided in paragraphs 1 or 2 above, shall be due by the
debtor party within 60 calendar days of the due date specified in this
Contract. If no due date is specified, the due date shall be 60 days
following the date of the debtor party's receipt of the billing, but no
later than 90 days from the creditor party's date of the billing.
4. Failure by the Reinsurer or Reassured to comply with their respective
payment obligations within the time periods as herein provided will result
in a compound interest penalty payable at a rate equal to the 90 day
Treasury Xxxx rate as published in the Money Rate Section or any successor
section of the Wall Street Journal on the first business day following the
date a remittance becomes due, plus 2% per annum, to be compounded and
adjusted quarterly. Any interest which occurs pursuant to this Article
shall be calculated by the party to which it is owed. The accumulation of
the number of days that any payment is past due will stop on the date the
Intermediary, where applicable, receives payment.
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5. The validity of any claim or payment may be contested under the provisions
of this Contract. If the debtor party prevails in such action, there shall
be no interest penalty due. Otherwise, any interest will be calculated and
due as outlined above.
6. If a Reinsurer advances payment of any claim it is contesting, and
prevails such action, the Reassured shall return such payment plus pay
interest on same, calculated as per the provisions of this Article.
7. Any interest which occurs pursuant to this Article may be waived by the
party to which it is owed. Further, any interest which is calculated
pursuant to this Article that is USD100 or less shall be waived. Waiver of
such interest, however, shall not affect the waiving party's right to
similar interest for any other failure by the other party to make payment
when due under this Article.
8. Nothing in this Article shall diminish any legal remedies which either
party may have against the other.
ARTICLE 15
UNEARNED PREMIUM AND OUTSTANDING LOSS RESERVES
This Article applies only to those Reinsurers signatory hereto who do not
qualify for credit under the regulations of the State insurance authorities or
departments which have jurisdiction over the Reassured's reserves.
The Reassured agrees that when, for its Annual Convention Statement purposes, it
files with the authorities or departments mentioned above or sets up in its
books statutory reserves for known outstanding losses and allocated loss
expenses reinsured by this Contract, for unearned premium in respect of business
coming within the scope of this Contract, or for incurred but not reported
losses (IBNR), hereinafter "The Stated Reserves", it shall forward to the
Reinsurers a clear statement of the Reinsurers' proportion of The Stated
Reserves detailing separately the amounts involved for known outstanding losses
and allocated loss expenses and for unearned premium and IBNR, and also how
those amounts are calculated. Reserves for IBNR shall be equal to the actual
amount of IBNR carried on the books of the Reassured for statutory reporting
purposes.
The Reinsurers, promptly upon receipt of the Reassured's statement, shall apply
for, and secure delivery to the Reassured of, clean irrevocable and
unconditional Letters of Credit or such equivalent funding acceptable to the
Reassured, for the benefit of the Reassured in amounts equal to their proportion
of The Stated Reserves.
All Letters of Credit procured pursuant to this Contract shall be issued by a
Bank which is a Member of the Federal Reserve and acceptable to the authorities
or departments mentioned in the first paragraph of this Article current at the
date of the Reassured's statement. Such Letter of Credit shall be in full
conformity with the requirements of such authorities or departments.
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Further, all such Letters of Credit shall be "Evergreen" in that they shall be
issued for an initial period of not less than one year and shall be
automatically extended for one year from their original expiration dates and
subsequently from their extended expiration dates unless and until, at least
thirty days before any expiration date, the issuing bank gives notice to the
Reassured by registered mail that the issuing bank elects not to extend the life
of the Letter of Credit in question beyond its forthcoming expiration date.
In consideration of the contract of the Reinsurers to furnish such Letters of
Credit to the Reassured to enable it to obtain credit for the reinsurance
provided under this Contract, the Reassured hereby undertakes to hold such
Letters of Credit and the proceeds of any drawings made upon them in trust for
the Reinsurers and to use and apply the proceeds of any such drawings for the
following purposes only:
a. To pay the Reinsurers' share or to reimburse the Reassured for that share
of any liability for loss or allocated loss expense reinsured by this
Contract or for unearned premium in respect of business coming within the
scope of this Contract;
b. To refund to the Reinsurers any balance by which the amount of the Letter
of Credit exceeds the Reinsurers' proportion of any liability for loss or
allocated loss expense reinsured by this Contract, incurred but not
reported losses (IBNR) or for unearned premium in respect of business
coming within the scope of this Contract.
c. In the event that one or more of the Reinsurers participating in the
Letter of Credit gives timely notice of cancellation or non-renewal of
their participation in the Letter of Credit and provided that the
obligations secured by the Letter of Credit remain unliquidated and
undischarged at the time of receipt by the Reassured of such notice, the
Reassured shall create a cash deposit account, separate from its own
assets, in an amount equal to the participation of the canceling or
non-renewing Reinsurer(s) in the Letter of Credit. That cash deposit
account may then be used as in subparagraphs a. and b. above. It is
understood and agreed that this procedure may only be implemented before
the expiry of the notice period in respect of cancellation or non-renewal
and that if it is implemented, the Reassured will ensure that a rate of
interest is obtained for the Reinsurers on such a deposit account that is
at least equal to the rate which would be paid by Citibank N.A. in New
York, and further that the Reassured will account to the Reinsurers on an
annual basis for all interest accruing on the cash deposit account for the
benefit of the Reinsurers.
The issuing bank shall have no responsibility whatsoever in connection with the
propriety of drawings made by the Reassured on the Letters of Credit issued
under this Contract or in connection with the disposition of any funds so
withdrawn, except to ensure that drawings are made only upon the order of
properly authorized representatives of the Reassured.
All Letters of Credit procured for the Reassured under this Contract shall be
adjusted at annual intervals, or more frequently as agreed (but never more
frequently than quarterly), to reflect the current balance of the Reinsurers'
proportion of the Reassured's known outstanding loss and allocated loss expense
reserves and unearned premium reserves, and the Reassured shall produce
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a statement for this purpose detailed in the same way as the original statement
on the basis of which such Letters of Credit were first issued. If the statement
shows that the Reinsurers' proportion of such losses and allocated expenses,
IBNR or unearned premium reserves exceeds the current amount of the Letters of
Credit, the Reinsurers shall, within thirty days after receipt of the statement,
secure the amendment of the Letters of Credit increasing their amount to the
amount of the current balance of these items. If, however, the statement shows
that the Reinsurers' proportion of the current balance of those items is less
than the amount of the Letters of Credit the Reassured shall, within thirty days
of receipt of a written request from the Reinsurers to do so, facilitate the
release of the excessive security by authorizing the amendment of the Letters of
Credit so as to reduce their amount to the current balance required.
All expenses incurred in the establishment or maintenance of such Letters of
Credit shall be paid by the Reinsurers.
ARTICLE 16
CURRENCY
The currency to be used for all purposes of this Contract shall be United States
Dollars. All amounts paid or received by the Reassured in any other currency
shall be converted into United States Dollars at the rates of exchange at which
such transactions are converted in the books of the Reassured.
ARTICLE 17
TAX PROVISIONS
The Reassured shall be liable for all taxes (except Federal Excise Tax) levied
on it with respect to premiums payable to the Reinsurers hereunder. Federal
Excise Tax applies only to those Reinsurers, excepting Underwriters at Lloyd's,
London and other Reinsurers exempt from the Federal Excise Tax, who are
domiciled outside the United States of America.
To the extent that such premium is subject to Federal Excise Tax, the Reinsurers
hereby agree to allow as a deduction from the premium, for the purpose of paying
Federal Excise Tax, all applicable percentages of the premium payable hereon.
In the event of any return premium becoming due hereunder the Reinsurers will
deduct all applicable percentages from the amount of the return, and the
Reassured or its agents shall take steps to recover the tax from the Government
of the United States of America.
In consideration of the terms under which this Contract is issued, the Reassured
undertakes not to claim any deduction in respect of premium payable hereon when
making tax returns, other than Income or Profits tax returns, to any fiscal
authority of the United States of America or any State or Territory thereof.
Page 14
ARTICLE 18
INSOLVENCY OF THE REASSURED
Amounts due to the Reassured under this Contract shall be payable by the
Reinsurers on the basis of the liability of the Reassured under the original
policies reinsured hereunder without diminution because of the insolvency of any
one or all of the Reassured Companies.
In the event of the insolvency of the Reassured and the appointment of a
Liquidator, Receiver, Conservator or Statutory Successor, the Liquidator or
Receiver or Conservator or Statutory Successor of the Reassured shall give
written notice to the Reinsurers of the pendency of any claim against the
insolvent Reassured on the original policies reinsured hereunder within a
reasonable time after such claim is filed in the insolvency proceedings. During
the pendency of such claim the Reinsurers may investigate such claim and
intervene, at their own expense, in the proceedings where such claim is to be
adjudicated and interpose any defense or defenses which they may deem available
to the Reassured or its Liquidator or Receiver or Conservator or Statutory
Successor. The expense thus incurred by the Reinsurers shall be chargeable,
subject to court approval, against the insolvent Reassured as part of the
expense of liquidation to the extent of a proportionate share of the benefit
which may accrue to the Reassured solely as a result of the defense so
undertaken by the Reinsurers.
When two or more Reinsurers are involved in the same claim and a majority in
interest elect to investigate the claim and/or to interpose defense to such
claim, the expense shall be apportioned in accordance with the terms of the
above paragraph as though such expense had been incurred by the Reassured.
Should the Reassured go into liquidation or should a receiver be appointed, the
Reinsurers shall be entitled to deduct from any sums which may be or may become
due to the Reassured under this Contract any sums which are due to the
Reinsurers from the Reassured under this Contract and which are payable at a
fixed or stated date, as well as any other sums due to the Reinsurers which are
permitted to be offset under applicable law.
In the event of the insolvency of the Reassured, the amounts due to the
Reassured under this Contract shall be payable by the Reinsurers directly to the
Reassured or to its Liquidator, Receiver or Statutory Successor.
It is the mutual intent of the parties that, in the event of the insolvency of
the Reassured, this Article shall be read to conform with the state or
regulatory requirements of the jurisdiction in which the liquidation or
receivership is conducted In the event that any provision of this Article is in
conflict with such state or regulatory requirements, then such provision shall
be reformed to be in compliance with such state or regulatory requirements.
Page 15
ARTICLE 19
OFFSET
Each party hereto shall have, and may exercise in the event of insolvency of the
other or the non-payment by the other of obligations when due hereunder, the
right to offset any balance or balances whether on account of premiums,
commissions, claims or losses, adjustment expenses, salvage or any amount due
from that party to the other party hereto under this Contract only against any
balance or balances due or to become due to the offsetting party from the other
party under this Contract only. The terms of this Article shall apply separately
to this Contract and to each successive renewal of this Contract.
ARTICLE 20
DELAYS, ERRORS AND OMISSIONS
No inadvertent delay, error or omission shall be held to relieve either party
hereto of any liability which would have attached to them under this Contract if
such delay, error or omission had not been made, provided that rectification is
made immediately upon discovery.
ARTICLE 21
AMENDMENTS AND ALTERATIONS
The terms herein contained comprise the whole Contract between the Reassured and
the Reinsurers and may only be changed in writing, signed by or on behalf of
both parties.
ARTICLE 22
ACCESS TO RECORDS AND CLAIMS REVIEW
All documents and records in the possession of the Reassured concerning this
Contract shall be made available upon reasonable notice at the request of the
Reinsurers for inspection at the Reassured's offices by the Reinsurers or their
nominated representatives for the purposes of obtaining information concerning
this Contract or the subject matter hereof.
Specifically, the Reinsurers shall be entitled to nominate a representative to
assess the Reassured's claims and claims procedures.
For the avoidance of doubt, it is hereby expressly agreed that the rights given
to the Reinsurers by this Article shall continue in effect notwithstanding the
expiration of this Contract and shall be exercised at the Reinsurers' own
expense.
Page 16
ARTICLE 23
ARBITRATION
As a condition precedent to any right of action hereunder, all disputes or
differences arising out of or connected with this Contract (whether or not
arising before or after expiration) its interpretation or implementation, shall
be referred to arbitration in Farmington, Connecticut, U.S.A., the city in which
the Reassured's principal office is located.
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 stating the nature of the dispute and the remedy sought. Those
Reinsurers involved in the dispute or other matter in controversy shall be
considered as one party for the purpose of allocating the cost of the
arbitration.
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 (60) days, the other party may appoint the
second arbitrator. If the two arbitrators do not agree on a third arbitrator
within sixty (60) days of their appointment, within ten (10) days thereafter the
two arbitrators will request the American Arbitration Association ("AAA") to
appoint a third arbitrator with the qualifications set forth below in this
Article without regard to the AAA's Commercial Arbitration Rules. If the AAA
fails to appoint a third arbitrator within thirty (30) days after its receipt of
the two arbitrators' request, either party may apply to a court of competent
jurisdiction to appoint a third arbitrator with the qualifications set forth
below in this Article. The third arbitrator will immediately notify each party
of his selection. In the event of the resignation or death of any member of the
arbitrator panel, a replacement will be appointed in the same manner as the
resigning or deceased member was appointed.
Each arbitrator shall be an active or retired officer of an insurance or
reinsurance company or Underwriter at Lloyd's London; no arbitrator shall have a
personal or financial interest in the result of the arbitration, and shall not
be a present or former officer, attorney, or consultant of the Reassured or the
Reinsurer or either's affiliates.
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, and shall make any award
with a view to effecting the general purpose of this Contract in a reasonable
manner with due regard to the custom and usage of the insurance and reinsurance
business.
The arbitrators shall have full discretion to make such orders as they think fit
in connection with all procedural matters in the Arbitration, including but not
limited to the conduct of the reference by written or oral submissions, the
production of documents, the examination of witnesses, and the imposition of
time limits for the taking of necessary procedural steps. The arbitrators shall
also have full discretion to make such orders as they think fit with regard to
the payment of the costs of the Arbitration including attorneys' costs and fees.
Page 17
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 Reassured to each of the Reinsurers
constituting the one party, provided 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 under the terms of this
Contract from several to joint.
Any Award or order of the arbitrators or a majority thereof shall be binding on
the parties and there shall be no right of appeal there from.
Except as provided above, arbitration shall be based, insofar as applicable,
upon the procedures of the American Arbitration Association.
ARTICLE 24
SERVICE OF SUIT
(This Article only applies to Reinsurers domiciled outside of the United States
and/or unauthorized in any state, territory, or district of the United States
having jurisdiction over the Reinsured.)
It is agreed that in the event of the failure of the Reinsurer hereon to pay any
amount claimed to be due hereunder, the Reinsurer hereon, at the request of the
Reinsured, 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. It is further agreed that service of process in such suit may
be made upon Mendes & Mount, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000,
and that in any suit instituted, the Reinsurer will abide by the final decision
of such Court or of any Appellate Court in the event of an appeal.
The above-named are authorized and directed to accept service of process on
behalf of the Reinsurer in any such suit and/or upon the request of the
Reinsured to give a written undertaking to the Reinsured that they will enter a
general appearance upon the Reinsurer's behalf in the event such a suit shall be
instituted.
Further, pursuant to any statute of any state, territory or district of the
United States which makes provision therefore, the Reinsurer hereon hereby
designates the Superintendent, Commissioner or Director of Insurance or other
officer specified for that purpose in the statute, or his successor or
successors in office, as 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 Reinsured or any beneficiary hereunder arising out of this Contract of
reinsurance, and hereby designates the above-named as the person to whom the
said officer is authorized to mail such process or a true copy thereof.
Page 18
ARTICLE 25
CONFIDENTIALITY
The confidential nature of this Contract is acknowledged by all parties.
Moreover, the Reinsurers will only disclose to third parties, such as
regulators, auditors, rating agencies, shareholders, reinsurers and the like,
such details of this Contract as are necessary to comply with their obligations
to such third parties as part of their normal business practice.
It is a condition binding on Reinsurers hereon that they may not disclose any
details of this Contract at any time to any other third party without the
agreement of the Reassured.
ARTICLE 26
REGULATORY COMPLIANCE
If any provision of this Contract shall be rendered illegal or unenforceable by
the laws, regulations or public policy of any State in the United States, 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
validity or enforceability of such provision in any other jurisdiction.
ARTICLE 27
INTERMEDIARY
Xxxxxxx America Incorporated is hereby recognized as the Intermediary
negotiating this Contract for all business hereunder. All communications
including notices, premiums, return premiums, commissions, taxes, losses, loss
adjustment expenses, salvages and loss settlements relating thereto shall be
transmitted to the Reinsurer or the Reassured through Xxxxxxx America
Incorporated at The Pinnacle, 0000 Xxxxxxxxx Xxxx, X.X., Xxxxx 000, Xxxxxxx
Xxxxxxx 00000. Payments by the Reassured to the Intermediary will be deemed to
constitute payment to the Reinsurer. Payments by the Reinsurer to the
Intermediary will be deemed only to constitute payment to the Reassured to the
extent that such payments are actually received by the Reassured.
ARTICLE 28
GOVERNING LAW
This Contract shall be governed by and construed in accordance with the laws of
the State of Connecticut.
Page 19
ARTICLE 29
PARTICIPATION
This Contract obligates each of the Reinsurers for their proportion of the
interests and liabilities set forth under this Contract, such proportions being
shown in the attached Schedules.
ARTICLE 30
SEVERAL LIABILITY NOTICE
The subscribing Reinsurers' obligations under contracts of reinsurance to which
they subscribe are several and not joint and are limited solely to the extent of
their individual subscriptions. The subscribing Reinsurers are not responsible
for the subscription of any co-subscribing Reinsurer who for any reason does not
satisfy all or part of its obligations.
IN WITNESS WHEREOF the parties hereto have, by their duly authorized
representative, executed this Contract as follows:
Signed in Farmington, Connecticut, this 19th day of January 2006.
For and on behalf of the Reassured:
Signed by: /s/ Xxxxxxx Xxxxx
Officers Title: President and CEO
Print Name: Xxxxxxx Xxxxx
And for the Reinsurer(s) by means of and in accordance with the attached
Schedule(s), which shall be considered to form an integral part of this
Contract.
Page 20
NUCLEAR INCIDENT EXCLUSION CLAUSE-LIABILITY-REINSURANCE (U.S.A.)
(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
Page 21
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):
Page 22
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
Page 23
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 by product
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 xxxxxxxx xxxx 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.
Page 24
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
Page 25
NUCLEAR INCIDENT EXCLUSION CLAUSE-LIABILITY-REINSURANCE-CANADA
1. This Agreement does not cover any loss or liability accruing to the
Reinsured 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 I of this clause
it is agreed that for all purposes of this Agreement all the original
liability contracts of the Reinsured, whether new, renewal or replacement,
of the following classes, namely,
Personal Liability.
Farmers' Liability.
Storekeepers' Liability.
which become effective on or after 31st December 1992, shall be deemed to
include, from their inception dates and thereafter, the following
provision:
Limited Exclusion Provision.
This Policy does not apply to bodily injury or property damage with
respect to which the Insured is also insured under a contract of nuclear
energy liability insurance (whether the Insured is unnamed in such
contract and whether or not it is legally enforceable by the Insured)
issued by the Nuclear Insurance Association of Canada or any other group
or pool of insurers or would be an Insured under any such policy but for
its termination upon exhaustion of its limits of liability.
With respect to property, loss of such property shall be deemed to be
property damage.
3. Without in any way restricting the operation of paragraph I of this
clause it is agreed that for all purposes of this Agreement all the
original liability contracts of the Reinsured, whether new, renewal or
replacement, of any class whatsoever (other than Personal Liability,
Farmers' Liability, Storekeepers' Liability or Automobile Liability
contracts), which become effective on or after 31st December 1992,
shall be deemed to include from their inception dates and thereafter,
the following provision:
Broad Exclusion Provision.
It is agreed that this Policy does not apply:
(a) to liability imposed by or arising from any nuclear liability
act, law or statute or any law amendatory thereof; nor
(b) to bodily injury or property damage with respect to which an
Insured under this policy is also insured under a contract of
nuclear energy liability insurance
Page 26
(whether the Insured is unnamed in such contract and whether or not
it is legally enforceable by the Insured) issued by the Nuclear
Insurance Association of Canada or any other insurer or group or
pool of insurers or would be an Insured under any such policy but
for its termination upon exhaustion of its limit or liability; nor
(c) to bodily injury or property damage resulting directly or indirectly
from the nuclear energy hazard arising from:
(i) the ownership, maintenance, operation or use of a nuclear
facility by or on behalf of an Insured;
(ii) 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; and
(iii) the possession, consumption, use, handling, disposal or
transportation of fissionable substances, or of other
radioactive material (except radioactive isotopes, away from a
nuclear facility, which have reached the final stage of
fabrication so as to be usable for any scientific, medical,
agricultural, commercial or industrial purpose) used,
distributed, handled or sold by an Insured.
As used in this Policy:
1. The term "nuclear energy hazard" means the radioactive, toxic,
explosive, or other hazardous properties of radioactive material;
2. The term "radioactive material" means uranium, thorium, plutonium,
neptunium, their respective derivatives and compounds, radioactive
isotopes of other elements and any other substances which may be
designated by or pursuant to any law, act or statute, or law
amendatory thereof as being prescribed substances capable of
releasing atomic energy, or as being requisite for the production,
use of application of atomic energy;
3. The term "nuclear facility" means:
(a) any apparatus designed or used to sustain nuclear fission in
self-supporting chain reaction or to contain a xxxxxxxx xxxx
of plutonium, thorium or uranium or any one or more of them;
(b) any equipment or device designed or used for (i) separating
the isotopes of plutonium, thorium and uranium or any one or
more of them, (ii) processing or utilizing spent fuel, or
(iii) handling, processing or packaging waste;
Page 27
(c) any equipment or device used for the processing,
fabricating or alloying of plutonium, thorium or uranium
enriched in the isotope uranium 233 or in the isotope
uranium 235, or any one or more of them 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
radioactive material;
and includes the site on which any of the foregoing is located,
together with all operations conducted thereon and all premises used
for such operations.
4. The term "fissionable substance" means any prescribed substance that
is, or from which can be obtained, a substance capable of releasing atomic
energy by nuclear fission.
5. With respect to property, loss of use of such property shall be
deemed to be property damage.
NMA 1979a (01/04/96) Form approved by Lloyd's Underwriters' Non-Marine
Association Limited
Page 28
NUCLEAR ENERGY RISKS EXCLUSION CLAUSE (REINSURANCE) (1994)
(WORLDWIDE EXCLUDING U.S.A. & CANADA)
This agreement shall exclude Nuclear Energy Risks whether such risks are written
directly and/or by way of reinsurance and/or via Pools and/or Associations.
For all purposes of this agreement Nuclear Energy Risks shall mean all first
party and/or third party insurances or reinsurances (other than Workers'
Compensation and Employers' Liability) in respect of:-
(I) All Property on the site of a nuclear power station. Nuclear Reactors,
reactor buildings and plant and equipment therein on any site other than a
nuclear power station.
(II) All Property, on any site (including but not limited to the sites referred
to in (I) above) used or having been used for:
a) The generation of nuclear energy; or
b) The Production, Use or Storage of Nuclear Material.
(III) Any other Property eligible for insurance by the relevant local Nuclear
Insurance Pool and/or Association but only to the extent of the
requirements of that local Pool and/or Association.
(IV) The supply of goods and services to any of the sites, described in (I) to
(Ill) above, unless such insurances or reinsurances shall exclude the
perils of irradiation and contamination by Nuclear Material.
Except as undernoted, Nuclear Energy Risks shall not include: -
(i) Any insurance or reinsurance in respect of the construction or erection or
installation or replacement or repair or maintenance or decommissioning of
Property as described in (I) to (III) above (including contractors' plant
and equipment);
(ii) Any Machinery Breakdown or other Engineering insurance or reinsurance
not coming within the scope of (I) above;
Provided always that such insurance or reinsurance shall exclude the perils of
irradiation and contamination by Nuclear Material.
However, the above exemption shall not extend to:
(1) The provision of any insurance or reinsurance whatsoever in respect of:
(a) Nuclear Material;
Page 29
(b) Any Property in the High Radioactivity Zone or Area of any Nuclear
Installation as from the introduction of Nuclear Material or - for
reactor installations - as from fuel loading or first criticality
where so agreed with the relevant local Nuclear Insurance Pool
and/or Association.
(2) The provision of any insurance or reinsurance for the undernoted perils: -
- Fire, lightning, explosion;
- Earthquake;
- Aircraft and other aerial devices or articles dropped therefrom;
- Irradiation and radioactive contamination;
- Any other peril insured by the relevant local Nuclear Insurance Pool
and/or Association;
in respect of any other Property not specified in (1) above which directly
involves the Production, Use or Storage of Nuclear Material as from the
introduction of Nuclear Material into such Property.
Definitions
"Nuclear Material" means: -
(i) Nuclear fuel, other than natural uranium and depleted uranium, capable of
producing energy by a self-sustaining chain process of nuclear fission
outside a Nuclear Reactor, either alone or in combination with some other
material; and
(ii) Radioactive Products or Waste.
"Radioactive Products or Waste" means any radioactive material produced in, or
any material made radioactive by exposure to the radiation incidental to the
production or utilization of nuclear fuel, but does not include radioisotopes
which have reached the final stage of fabrication so as to be usable for any
scientific, medical, agricultural, commercial or industrial purpose.
"Nuclear Installation" means: -
(i) Any Nuclear Reactor;
(ii) Any factory using nuclear fuel for the production of Nuclear Material, or
any factory for the processing of Nuclear Material, including any factory
for the reprocessing of irradiated nuclear fuel; and
(iii) Any facility where Nuclear Material is stored, other than storage
incidental to the carriage of such material.
"Nuclear Reactor" means any structure containing nuclear fuel in such an
arrangement that a self-sustaining chain process of nuclear fission can occur
therein without an additional source of neutrons.
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"Production, Use or Storage of Nuclear Material" means the production,
manufacture, enrichment, conditioning, processing, reprocessing, use, storage,
handling and disposal of Nuclear Material.
"Property" shall mean all land, buildings, structures, plant, equipment,
vehicles, contents (including but not limited to liquids and gases) and all
materials of whatever description whether fixed or not.
"High Radioactivity Zone or Area" means: -
(i) For nuclear power stations and Nuclear Reactors, the vessel or structure
which immediately contains the core (including its supports and shrouding)
and all the contents thereof, the fuel elements, the control rods and the
irradiated fuel store; and
(ii) For non-reactor Nuclear Installations, any area where the level of
radioactivity requires the provision of a biological shield.
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INSOLVENCY FUND EXCLUSION CLAUSE
It is agreed that this Contract excludes all liability of the Reassured 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 guarantee fund, insolvency fund, plan, pool,
association, fund or other arrangement, howsoever denominated, established or
governed, which provides for any assessment of or payment or assumption by the
Reassured 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.
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ADDENDUM NO. 1
attaching to and forming part of the
QUOTA SHARE REINSURANCE CONTRACT
Commencing September 1, 2005
made between
DARWIN NATIONAL ASSURANCE COMPANY, DARWIN
SELECT INSURANCE COMPANY, CAPITOL INDEMNITY CORPORATION, CAPITOL
SPECIALTY INSURANCE CORPORATION, PLATTE RIVER INSURANCE COMPANY AND/OR ANY
OTHER ASSOCIATED, AFFILIATED OR SUBSIDIARY COMPANIES OF ALLEGHANY INSURANCE
HOLDING LLC, BUT ONLY IN RESPECT OF BUSINESS UNDERWRITTEN BY
DARWIN PROFESSIONAL UNDERWRITERS, INC.
AND
THE REINSURERS SIGNATORY HERETO
It is hereby noted and agreed that with effect from November 1st, 2005 12:01
a.m. Standard Time, the following amendment is made to this Contract:
1. Article 1, BUSINESS REINSURED is deleted in its entirety and replaced with
the following:
BUSINESS REINSURED
Business classified by the Reassured as Private Commercial or Not-For
Profit Directors' & Officers' Liability, Fiduciary Liability, Employment
Practices Liability, Miscellaneous Professional Liability, Insurance
Agents Errors and Omissions Liability, and Lawyers Professional Liability
all as produced, accepted or referred through the Reassured's "I-BIND"
system.
It is understood and agreed that only business classified by the Reassured
as Private Commercial or Not-For Profit Directors' & Officers' Liability,
Fiduciary Liability and Employment Practices Liability shall be covered
hereunder.
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It is understood and agreed that coverage for Miscellaneous Professional
Liability, Insurance Agents Errors & Omissions Liability, and Lawyers
Professional Liability shall be added subject to review and approval by
the Reinsurers of Darwin Professional Underwriters' underwriting and
rating guidelines for those other business classes.
ALL OTHER TERMS AND CONDITIONS REMAIN UNALTERED
IN WITNESS WHEREOF the parties hereto have, by their duly authorized
representative, executed this Addendum No. 1 as follows:
Signed in Farmington, Connecticut this 28th day April of 2006.
For and on behalf of the Reinsured:
Signed by: /s/ Xxxxxxx Xxxxx
-----------------------
Name/Title
And for the Reinsurers by means of and in accordance with the attached
Schedules, which shall be considered to form an integral part of this Addendum
No. 1 and the Agreement to which it relates.
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ADDENDUM NO. 2
attaching to and forming part of the
QUOTA SHARE REINSURANCE CONTRACT
Commencing September 1, 2005
made between
DARWIN NATIONAL ASSURANCE COMPANY, DARWIN
SELECT INSURANCE COMPANY, CAPITOL INDEMNITY CORPORATION, CAPITOL
SPECIALTY INSURANCE CORPORATION, PLATTE RIVER INSURANCE COMPANY
AND/OR ANY OTHER ASSOCIATED, AFFILIATED OR SUBSIDIARY COMPANIES OF
ALLEGHANY INSURANCE HOLDING LLC, BUT ONLY IN RESPECT OF BUSINESS
UNDERWRITTEN BY DARWIN PROFESSIONAL UNDERWRITERS, INC.
AND
THE REINSURERS SIGNATORY HERETO
It is hereby noted and agreed that with effect from September 1st, 2005 12:01
a.m. Standard Time, the following amendment is made to this Contract:
1. Article 13, NOTICE OF LOSS AND LOSS SETTLEMENTS is deleted in its entirety
and replaced with the following:
NOTICE OF LOSS AND LOSS SETTLEMENTS
Reinsurers agree to abide by all loss settlements of the Reassured which at its
sole discretion shall adjust, settle or compromise all losses and all such
adjustments, settlements or compromises shall be binding upon Reinsurers subject
to the terms, conditions and limitations of the original policies and this
Contract.
Where the Reassured's original policies and/or specific coverage parts of their
original policies provide for loss adjustment expenses in addition to limit, all
loss adjustment expenses paid by the Reassured shall be apportioned in
proportion to the respective interests in the loss of the parties hereto as such
interests finally appear, provided that in the event a verdict or judgment is
reduced by an appeal or a settlement, subsequent to the entry of the judgment,
resulting in an ultimate saving on such verdict or judgment, or a judgment is
reversed outright, the expense incurred in securing such final reduction or
reversal shall be pro rata between the Reinsurers and the
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Reassured in the proportion that each benefits from such reduction or reversal;
and the expenses incurred up to the time and date of the original verdict or
judgment shall be pro-rated in proportion to each party's interest in such
verdict or judgment.
In the event of external legal or external adjustment expenses, including
outside monitoring counsel expenses, which are incurred by the Reassured in
connection with a claim or potential claim hereunder and which are not the
subject of the Reassured's original policy, then Reinsurers shall also be liable
for their proportion of such expenses in addition to their share of the loss
recoverable hereunder.
The Reinsurers shall also accept additional liability, on business reinsured
hereunder, for legal expenses incurred in respect of coverage questions and
legal actions in connection with a claim or potential claim hereunder
(hereinafter referred to as "declaratory judgment and/or rescission expenses").
It is understood and agreed that:
1. When there is no contractual loss, other than declaratory judgment
and/or rescission expenses, the declaratory judgment and/or rescission
expenses shall be considered a loss for the purposes of recovery
hereunder up to the limit of this Contract (subject to the Reassured's
25% co-participation hereon).
2. When a contractual loss, exclusive of declaratory judgment and/or
rescission expenses, is incurred hereunder, the Reinsurers shall he
liable for their proportionate share of such declaratory judgment
and/or rescission expenses, as the respective interests in the loss of
the parties hereto finally appear, up to an additional limit of this
Contract (subject to the Reassured's 25% co-participation hereon) in
addition to any loss recoverable hereunder.
For the purposes of this Contract loss adjustment expenses shall include all
expenses of litigation, including post judgment interest, but shall exclude the
salaries of regular employees and all office expenses of the Reassured.
All salvages, recoveries or payments recovered or received subsequent to a loss
settlement under this Contract shall be applied as if recovered or received
prior to the aforesaid settlement and all necessary adjustments shall be made by
the parties hereto.
A paid and outstanding loss bordereaux for all claims to be rendered by the
Reassured within 45 days of the end of each calendar quarter, being within 45
days of September 30th, 2005 and quarterly thereafter.
It is understood and agreed, both by the Reassured and Reinsurers, that all paid
and outstanding losses shall be advised to Reinsurers by quarterly bordereaux;
it being further understood and agreed that individual loss reports are to be
provided to Reinsurers for all losses of USD250,000 or greater.
The bordereaux shall solely comprise numerical details of the paid and
outstanding amounts of each loss together with other data to identify the claim,
all as shown on the example bordereaux
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format(s) attached hereto as Appendix A to this Contract and which have been
mutually agreed by the Reassured and Reinsurers. It is clearly understood and
agreed that such bordereaux shall not provide any other details of the claim and
that there shall be no requirement to provide assessment of potential liability
or other evaluations of each claim, except as provided herein for losses of USD
250,000 or greater.
Losses and expenses which the Reassured has paid shall be debited to the
Reinsurers in the quarterly accounts rendered in accordance with the Article,
ACCOUNTS, REPORTS AND SETTLEMENTS. Notwithstanding such quarterly bordereaux
settlements, the Reassured may request an immediate cash loss settlement from
Reinsurers in the event that the amount due from Reinsurers in respect of an
individual claim is USD500,000 or more for 100% hereon). Such cash loss xxxxxxxx
shall be made solely utilizing the same format as the quarterly bordereaux
collections.
ALL OTHER TERMS AND CONDITIONS REMAIN UNALTERED
IN WITNESS WHEREOF the parties hereto have, by their duly authorized
representative, executed this Addendum No. 2 as follows:
Signed in Farmington, Connecticut this 28th day of April 2006.
For and on behalf of the Reinsured:
Signed by: /s/ Xxxxxxx Xxxxx
---------------------
Name/Title
And for the Reinsurers by means of and in accordance with the attached
Schedules, which shall be considered to form an integral part of this Addendum
No. 2 and the Agreement to which it relates.
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