Exhibit 10.17
REINSURANCE AGREEMENT
EFFECTIVE JULY 1, 0000
XXXXXXX
XXXXXXX XXXXXXXXX XXXXXXXXXXX
XXXXXXX, XXXXXXXXX
AND
DARWIN NATIONAL ASSURANCE COMPANY
FARMINGTON, CONNECTICUT
TABLE OF CONTENTS
Page
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Preamble................................................................. 1
ARTICLE I BUSINESS COVERED............................................ 1
ARTICLE II EFFECTIVE DATE, TERM AND CANCELLATION....................... 1
ARTICLE III TERRITORY................................................... 2
ARTICLE IV RETENTION AND LIMIT......................................... 2
ARTICLE V ULTIMATE NET LOSS........................................... 2
ARTICLE VI EXTRA CONTRACTUAL OBLIGATIONS AND EXCESS POLICY LIMITS...... 3
ARTICLE VII REINSURANCE PREMIUM AND COMMISSION.......................... 4
ARTICLE VIII REPORTS AND REMITTANCES..................................... 4
ARTICLE IX CLAIMS...................................................... 5
ARTICLE X SALVAGE AND SUBROGATION..................................... 5
ARTICLE XI RESERVES AND TAXES.......................................... 5
ARTICLE XII OFFSET...................................................... 6
ARTICLE XIII ERRORS OR OMISSIONS......................................... 6
ARTICLE XIV INSOLVENCY.................................................. 6
ARTICLE XV REINSURER'S SECURITY........................................ 7
Signatures............................................................... 8
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REINSURANCE AGREEMENT
(hereinafter referred to as the "Agreement")
Between
DARWIN NATIONAL ASSURANCE COMPANY
Farmington, Connecticut
(hereinafter referred to as "Reinsurer")
and
CAPITOL INDEMNITY CORPORATION
Madison, Wisconsin
(hereinafter referred to as the "Company")
ARTICLE I
BUSINESS COVERED
A. This Agreement is to indemnify the Company on a quota share basis
in respect of the Company's Ultimate Net Loss which the Company may pay as a
result of losses:
(i) arising from Policies of Capitol Indemnity Corporation written on
or after July 1, 2004 by Darwin Professional Underwriters, Inc.
B. This Agreement is solely between the Company and the Reinsurer, and
nothing contained in this Agreement shall create any obligations or establish
any rights against the Company or the Reinsurer in favor of any person or entity
not a party hereto.
C. The term "Policies" shall mean binders, policies and contracts of
insurance or reinsurance on the lines of business covered hereunder.
D. Under this Agreement, the indemnity for reinsured loss applies to
all lines of business written or assumed by the Company.
ARTICLE II
EFFECTIVE DATE, TERM AND CANCELLATION
A. This Agreement shall become effective 12:01 a.m., Central Standard
Time, July 1, 2004, for six months through 12:01 a.m., Central Standard Time,
January 1, 2005, and for each subsequent twelve-month period.
B. Upon termination of this Agreement, the reinsurance under this
Agreement shall remain in effect for all Policies to which this Agreement
attached, including those which are in-force on the expiration date until their
cancellation, non-renewal or natural expiration, whichever occurs first. The
reinsurance under this
Agreement shall also remain in effect for Policies which are required by a
regulatory agency to be renewed or extended after the termination of this
Agreement.
If this Agreement shall terminate while a loss covered hereunder is in
progress, it is agreed that, subject to the other conditions of this Agreement,
Reinsurer shall indemnify the Company as if the entire loss had occurred during
the time this Agreement is in-force provided the loss covered hereunder started
before the time of termination.
C. Cancellation of this agreement may occur with ninety (90) days
prior written notice, initiated by either party, by certified or registered
mail.
ARTICLE III
TERRITORY
Subject to the limitations in Article I, this Agreement applies to
Policies issued by the Company within the United States of America, its
territories and possessions. This Agreement shall apply to losses covered
hereunder wherever occurring.
ARTICLE IV
RETENTION AND LIMIT
A. The Company shall retain zero percent (0%), net of any other
outside reinsurance purchased, of Ultimate Net Loss as respects any one loss
occurrence. Reinsurer shall fully reimburse the Company for any and all losses
and expenses arising from the failure of an unaffiliated reinsurer to timely pay
Company amounts due Company in connection with business covered by this
Agreement. The Reinsurer shall then be liable for the amount by which the
Company's Ultimate Net Loss exceeds the Company's retention.
B. The Company's retention and the Reinsurer's limit of liability for
each loss occurrence, as set forth above, shall apply irrespective of the number
of Policies affected or number of hazards in one policy and regardless of the
number of lines of business involved.
ARTICLE V
ULTIMATE NET LOSS
A. The term "Ultimate Net Loss" used herein shall mean the actual sum
paid or payable by the Company in settlement of losses or liability after making
deductions for all recoveries, all salvages, and all claims upon other
reinsurances which inure to the benefit of the Reinsurer under this Agreement to
the extent such amounts are actually collected by the Company. Ultimate Net Loss
shall exclude unallocated loss adjustment expenses incurred by the Company.
Ultimate net loss will be inclusive of loss
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expense arising from declaratory judgment expense and one hundred percent (100%)
of any claims related extra contractual obligations and/or excess of policy
limits.
B. The term "Ultimate Net Loss" shall, in addition, include Extra
Contractual obligations as defined in ARTICLE VI - EXTRA CONTRACTUAL OBLIGATIONS
and EXCESS POLICY LIMITS, but only as respects business covered under this
Agreement.
C. All Allocated Loss Adjustment Expenses defined below shall be paid
on a pro rata basis, and the Reinsurer shall indemnify the Company for that
portion of the Company's Allocated Loss Adjustment Expenses allocated to a
single loss occurrence which bears the same ratio to total Allocated Loss
Adjustment Expenses as the Reinsurer's portion of the Company's Ultimate Net
Loss, bears to the entire amount of the Company's Ultimate Net Loss.
D. In the event a verdict, award or judgment is ultimately
compromised, reduced or revised on appeal, the Reinsurer shall indemnify the
Company for the Allocated Loss Adjustment Expenses incurred in obtaining such
reduction or reversal in the ratio that the benefit the Reinsurer derives from
such reduction, reversal or compromise bears to the total benefit derived
therefrom.
E. The term "Allocated Loss Adjustment Expenses" shall mean all
allocated expenses incurred by the Company in connection with the investigation,
settlement, defense or mitigation of any claim or loss which is the subject
matter of Policies written by the Company, provided such Policies are the
subject of this Agreement and shall exclude the salaries of the Company
employees, office expenses or any other unallocated expenses.
F. All salvages, recoveries or payments recovered or received
subsequent to a loss settlement under this Agreement shall be applied as if
recovered or received prior to the aforesaid settlement and the parties shall
make all necessary adjustments hereto.
G. Nothing in this Article V shall be construed to mean that losses
are not recoverable hereunder until the Ultimate Net Loss of THE COMPANY has
been ascertained.
ARTICLE VI
EXTRA CONTRACTUAL OBLIGATIONS AND EXCESS POLICY LIMITS
A. This Agreement shall protect the Company where the Ultimate Net
Loss includes Extra Contractual Obligations or Excess Policy Limits.
B. "Extra Contractual Obligations" are defined as those liabilities
not covered under any provision of this Agreement 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 Company to settle within the
policy limit, or by reason of
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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 in the preparation of an appeal consequent upon such
action.
C. "Excess Policy Limits" are defined as those damages payable in
excess of the policy limit as a result of alleged or actual negligence, fraud,
or bad faith in failing to settle and/or rejecting a settlement within the
policy limit, in the preparation of the defense, in the trial of any action
against the insured or reinsured, or in the preparation or prosecution of an
appeal consequent upon such action.
D. The date on which an Extra Contractual Obligation or Excess Policy
Limits is incurred by the Company shall be deemed, in all circumstances, to be
the date of the original accident, casualty, disaster or loss occurrence.
ARTICLE VII
REINSURANCE PREMIUM AND COMMISSION
A. The Company shall pay to the Reinsurer:
100% of the written premium charged and collected by the Company in
connection with the Policies referenced in Article I(A), net of any
other outside reinsurance purchased on this subject premium.
The reinsurance premiums set forth above shall be subject to a
commission allowance payable to the Company in an amount equal to the
compensation paid by the Company to Darwin Professional Underwriters, Inc. in
relation to such business. The Reinsurer shall also compensate the Company for
additional expenses incurred by the Company in an amount equal to one percent
(1%) of the premium ceded in connection with the Policies described in Article
I(A), provided that such additional compensation shall not exceed twenty five
thousand dollars ($25,000) in any single calendar year.
ARTICLE VIII
REPORTS AND REMITTANCES
A. The Company shall furnish the Reinsurer with all necessary data
respecting losses for as long as one of the parties hereto has a claim against
the other arising from this Agreement.
B. Within 15 days of the end of any month the Company shall furnish
the Reinsurer with a report of reinsurance premium due. Any balances shown to be
due will be remitted with said report.
C. Payment by the Reinsurer of its proportion of loss and Allocated
Loss Adjustment Expenses paid by the Company shall be made by the Reinsurer to
the Company within 15 days after proof of payment is received by the Reinsurer.
The
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Reinsurer shall have the right, at its option, to offset the amount of loss
against any reinsurance premium and/or commission balance or balances past due.
ARTICLE IX
CLAIMS
The Company shall promptly notify the Reinsurer of each claim, which
may involve the reinsurance provided hereunder and of all subsequent
developments relating thereto, stating the amount claimed and estimate of the
Company's Ultimate Net Loss and Allocated Loss Adjustment Expenses.
ARTICLE X
SALVAGE AND SUBROGATION
A. The Reinsurer shall be subrogated, as respects any loss for which
the Reinsurer shall actually pay or become liable, but only to the extent of the
amount of payment by or the amount of liability to the Reinsurer, to all the
rights of the Company against any person or other entity who may be legally
responsible in damages for such loss. The Company hereby agrees to enforce such
rights, but in case the Company shall refuse or neglect to do so, the Reinsurer
is hereby authorized and empowered to bring any appropriate action in the name
of the Company or its policyholders, or otherwise to enforce such rights.
B. Any recoveries, salvages or reimbursements applying to risks
covered under this Agreement shall always be used to reimburse the excess
carriers (from the last to the first, beginning with the carrier of the last
excess), according to their participation, before being used in any way to
reimburse the Company for its primary loss.
C. In the event there are any recoveries, salvages or reimbursements
recovered subsequent to a loss settlement, it is agreed that if the expenses
incurred in obtaining salvage or other recoveries are less than the amount
recovered, such expenses shall be borne by each party in the proportion that
each party benefits from the recoveries; otherwise, the amount recovered shall
first be applied to the reimbursement of the expense of recovery and the
remaining expense shall be borne by the Company and the Reinsurer in proportion
to the liability of each party for the loss before such recovery had been
obtained. Expenses hereunder shall exclude all office expenses of the Company
and all salaries and expenses of its officials and employees.
ARTICLE XI
RESERVES AND TAXES
A. The Reinsurer shall maintain legal reserves with respect to claims
hereunder.
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B. The Reinsurer shall reimburse the Company for any taxes which the
Company may be obligated to pay in connection with the Policies reinsured
pursuant to this Agreement.
ARTICLE XII
OFFSET
Each party hereto shall have, and may exercise at any time and from
time to time, the right to offset any balance or balances, whether on account of
premiums or on account of losses or otherwise, due from such party to the other
party hereto under this Agreement or under any other reinsurance agreement
heretofore or hereafter entered into by and between them, and may offset the
same against any balance or balances due or to become due to the former from the
latter under the same or any other reinsurance agreement between them; and the
party asserting the right of offset shall have and may exercise such right
whether the balance or balances due or to become due to such party from the
other are on account of premiums or on account of losses or otherwise and
regardless of the capacity, whether as assuming insurer or as ceding insurer, in
which each party acted under the agreement or the different agreements involved,
provided however, that, in the event of the insolvency of a party hereto,
offsets shall only be allowed in accordance with the provisions of sec. 645.56,
Wis. Stats.
ARTICLE XIII
ERRORS OR OMISSIONS
Errors or omissions on the part of the Company shall not invalidate
the reinsurance under this Agreement.
ARTICLE XIV
INSOLVENCY
A. Notwithstanding any other provision to the contrary, in the event
of insolvency of the Company, the reinsurance provided by this Agreement shall
be payable by the Reinsurer on the basis of the liability of the Company for the
business reinsured hereunder, without diminution because of such insolvency,
directly to the Company or its liquidator, receiver or statutory successor,
except 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.
B. The Reinsurer shall be given written notice of the pendency of each
claim or loss, which may involve the reinsurance provided by this Agreement
within a reasonable time after such claim or loss, is filed in the insolvency
proceeding. The Reinsurer shall have the right to investigate each such claim or
loss and interpose, at its own expense, in the proceeding where the claim or
loss is to be adjudicated, any defense available to the Company, its liquidator,
receiver or statutory successor. The expense thus incurred by the Reinsurer
shall be chargeable, subject to court approval, against the
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insolvent Company as part of the expense of liquidation to the extent of a
proportionate share of the benefit, which may accrue to the Company solely as a
result of the defense undertaken by the Reinsurer.
C. Nothing contained in this Article is intended to change the
relationship of the parties to this Agreement or to enlarge upon the rights or
obligations of either party hereunder except as provided herein, to wit, to pay
the statutory successor of the Company on the basis of the amount of liability
determined in the liquidation or receivership proceeding rather than on the
basis of the actual amount of loss paid by the liquidator, receiver or statutory
successor to allowed claimants.
ARTICLE XV
REINSURER'S SECURITY
It is agreed that when the Company files with an insurance department
or establishes reserves for claims covered and unearned premium hereunder, as
required by law, the Company shall forward to the Reinsurer a statement showing
the proportion of such loss and unearned premium reserves which is applicable to
the Reinsurer. In the event that the Company is not permitted by any insurance
regulator to take full and complete credit on its financial statements for this
reinsurance, the Reinsurer hereby agrees to apply for and secure delivery to the
Company of a clean, irrevocable evergreen and unconditional Letter of Credit or
other collateral acceptable to the Company, with a minimum term of one year,
that is issued or confirmed, and presentable and payable in the United States by
any bank or trust company, and is in a format acceptable to the governmental
authority having jurisdiction over the Company's reserves, in an amount equal to
the Reinsurer's proportion of such loss and unearned premium and commission
reserves.
The Company and the Reinsurer agree that the Letter of Credit or other
collateral acceptable to the Company provided by the Reinsurer under this
provision may be drawn upon at any time, notwithstanding any other provisions in
this Agreement, including and without limitation by any liquidator,
rehabilitator, receiver or conservator of such Company for the following
purposes:
(1) to reimburse the Company for the Reinsurer's share of the Ultimate
Net Losses paid by the Company and which has not otherwise been paid by the
Reinsurer;
(2) to reimburse the Company for the Reinsurer's share of premium
returned under Policies reinsured under this Agreement on account of
cancellation of such Policies and which has not otherwise been paid by the
Reinsurer;
(3) to fund an account with the Company in an amount at least equal to
the deduction, for reinsurance ceded, from the Company's liabilities for
amounts ceded under this Agreement. Such cash deposits shall be held in an
interest bearing account separate from the Company's other assets, and
interest thereon shall accrue to the benefit of the Reinsurer. Such amount
shall include,
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but not be limited to, amounts for reserves for claims and losses incurred,
including losses incurred but not reported, loss adjustment expenses, and
unearned premiums;
(4) to reimburse the ceding insurer for the assuming insurer's share
of surrenders and benefits or losses paid by the ceding insurer under the
terms and provisions of the Policies reinsured under this Agreement; and
(5) to pay any other amounts the Company claims are due under this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives.
In Madison, Wisconsin, this 21st day of September, 2004.
CAPITOL INDEMNITY CORPORATION
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Xxxxx X. Xxxxx
President and
Chief Executive Officer
And in Farmington, Connecticut this 22nd day of September, 2004.
DARWIN NATIONAL ASSURANCE COMPANY
By: /s/ Xxxx X. Xxxxxxx, Xx.
------------------------------------
Xxxx Xxxxxxx
Chief Financial Officer
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