EXHIBIT 10.23
REINSURANCE AND INDEMNITY AGREEMENT
This Reinsurance and Indemnity Agreement ("Agreement") is entered
into as of the "Effective Date" described below. Its parties are:
UNIVERSAL FIRE & CASUALTY INSURANCE COMPANY
("Company")
and
NORTH POINTE INSURANCE COMPANY
("Reinsurer")
BACKGROUND
Company and Reinsurer are both property and casualty insurance
companies licensed in various states, and have been under common control for
several years. Only the Company is licensed in Missouri. Company's shareholders
have entered into an agreement to sell the Company. If Reinsurer is not licensed
in Missouri at the time that the Company is sold, the parties will want to enter
into an agreement in which Company cedes and Reinsurer assumes 100% of the
insurance coverages written under the "Subject Business" (as defined below), all
such risks being located in Missouri, as further described below. When Reinsurer
is licensed in Missouri, all future insurance coverages written under the
Subject Business will be written directly by Reinsurer.
This Agreement is to be considered an Indemnity Reinsurance
Agreement under IC 27-6-1.1-2.
NOW, THEREFORE, in consideration of this Agreement's terms, the
parties agree:
TERMS
1. LIABILITY OF REINSURER
1.1 Company will cede, and Reinsurer will assume 100% of the Assumed Liability
arising under or as a result of all insurance policies written by the
Company on risks located in the State of Missouri ("Subject Business").
The Subject Business includes homeowners, dwelling fire, vacancy and
commercial insurance policies. All such insurance policies issued under
the Subject Business are called the "Policies." Reinsurer's liability with
respect to each cession under this Agreement will commence obligatorily
and simultaneously with that of the Company, subject to this Agreement's
terms. Because Reinsurer does not qualify for full credit with the
Company's regulators, Reinsurer will assure that Company is given this
full credit by funding its obligations under this Agreement by a trust or
escrow arrangement with a bank of Reinsurer's choosing, which must be
acceptable to Company's regulators.
1.2 Reinsurer will assume responsibility for all of the Assumed Liability
(including Loss, Allocated Loss Adjustment Expenses, and Extra Contractual
Obligations) for the Subject Business.
2. COMMENCEMENT
This Agreement shall take effect as of the Effective Date, and shall cover all
Policies in-force on or entered into after the Effective Date and during this
Agreement's term.
3. DEFINITIONS
3.1 "EFFECTIVE DATE" means 12:01 a.m. of the date on which North Pointe
Holdings Corporation and Reinsurer (which are Company's shareholders) sell
100% of the outstanding shares in Company to Universal Holding
Corporation.
3.2 "GROSS WRITTEN PREMIUM" means the gross premiums for the Subject Business
written by Company less cancellations and return premiums.
3.3 "LOSS" means any loss on a Policy of Subject Business, and will follow the
coverage provided by that Policy.
3.4 "ASSUMED LIABILITY" means all Loss and Allocated Loss Adjustment Expenses
payments made by or on behalf of Company with respect to the Subject
Business in settlement of claims or losses, payment of benefits, or in
satisfaction of judgments or awards (including interest where added to the
judgment), and including any "Extra Contractual Obligations." Nothing in
this definition will be construed to mean that the Assumed Liability is
not recoverable by Company until salvage, subrogation and other potential
recoveries are ascertained.
3.5 "POLICY" means all insurance policies and other contracts of insurance
entered into between an insured and Company covering the insurance
obligations of the Subject Business.
3.6 "ALLOCATED LOSS ADJUSTMENT EXPENSES" means the expenses directly allocated
to a particular claim including, but not limited to all governmental
administrative agency, alternative dispute resolution, arbitration, court
costs, fees, and expenses; fees, costs and expenses for legal services,
whether by outside or our staff counsel; photographic costs, materials,
and labor; experts' fees or costs; cost of copies of documents or records;
cost of depositions and court reporters or recorded statements and similar
fees; medical cost containment expenses; all costs and expenses incurred
in connection with a declaratory judgment action; cost of autopsies; cost
of medical examinations of a claimant to determine insured's liability, or
the degree of permanency or length of disability; and all other
compensation, fees, costs and expenses chargeable to the investigation or
defense of a claim or the investigation or
2
prosecution of fraud or criminal conduct involving a claim. This
definition does not include any compensation for independent or staff
claim adjusters involved in the normal handling of a claim to determine
the cause or extent of responsibility for the injury or disease, or any
expenses required by law to be treated as a loss payment.
3.7 "PREJUDGMENT INTEREST OR DELAYED DAMAGES" means interest, forfeitures,
deposits, fines, fees, costs or damages added to an order, sanction,
settlement, verdict, award, or judgment based on the amount of time prior
to the settlement, verdict, award, or judgment whether or not made part of
the order, sanction, settlement, verdict, award, or judgment.
4. TERM AND TERMINATION
4.1 This Agreement's initial term expires at 12:01 on the anniversary of the
Effective Date. Either party has the right to terminate this Agreement
after this initial term upon six months advance written notice.
4.2 Reinsurer's obligation to assume and pay 100% of the Assumed Liability of
all Subject Business will continue if this Agreement terminates.
Notwithstanding the termination of this Agreement, its provisions shall
continue to apply to all cessions in force at the termination so that each
party's obligations under this Agreement will be fully performed. However,
upon termination, Reinsurer shall have no obligation to indemnify Company
with respect to Policies not yet entered into by Company.
5. TERRITORY
This Agreement's territorial limits will be Company's Subject Business as
written in Missouri.
6. ORIGINAL CONDITIONS
All Subject Business ceded under this Agreement will be subject to the same
rates, terms, clauses, conditions, waivers, alterations, modifications, and
interpretations, and cancellations as the respective Policies. Reinsurer shall
follow the fortunes of the Company with respect to Subject Business.
7. EXTRA CONTRACTUAL OBLIGATIONS
7.1 "Extra Contractual Obligations" are those liabilities, interest costs,
expenses and damages, including compensatory, punitive, exemplary or
consequential damages or sanctions, including all associated litigation
expenses, not covered under any other provision of this Agreement or which
arise from or relate to any type of act by Reinsurer (who, as provided
below, has exclusive responsibility for all claims related to the Subject
Business), or any failures to act of any type by Reinsurer or Reinsurer's
handling of any claim or loss under a Policy brought or asserted by an
insured, an
3
assignee of an insured or a third party. By way of example, but not in
limitation, Extra Contractual Obligations include interest, costs,
expenses, liabilities and/or damages from Reinsurer's failure to settle
for any reason within the limits of a Policy, alleged or actual
negligence, fraud, or bad faith in rejecting an offer of settlement or in
preparing for trial in an action against an insured under a Policy or in
the preparation or prosecution of an appeal in such an action. Liabilities
will include losses incurred by Company on Subject Business arising from
any financial or credit risk, as defined below, and liabilities arising
from the handling of any claim or loss on the Subject Business covered by
this Agreement. The term "financial or credit risk" shall mean any cost,
expense or Loss (or Allocated Loss Adjustment Expenses) incurred by
Company (or advanced by Company to protect Company's own interests, as
determined in Company's sole discretion) on Subject Business arising as a
result of:
(a) Loss, damages or associated litigation expenses which should have
been recoverable under a self-insured retention or a deductible,
within the limit of any Policy.
(b) Loss, damages or associated litigation expenses for which Company is
entitled to contribution or indemnity pursuant to the retentions, if
any, scheduled or provided for in any Policy.
The date on which Company incurs an Extra Contractual Obligation will be
deemed, in all circumstances, to be the date of the original loss.
7.2 "Extra Contractual Obligations" does not include liabilities incurred
solely due to the willful misconduct or the fraud of Company's directors,
officers or employees serving on or after the Effective Date acting
individually or collectively or in collusion with any individual or other
person involved in the presentation, defense or settlement of any claim or
loss covered under this Agreement.
8. EXCESS OF ORIGINAL POLICY LIMITS
This Agreement is intended to and will protect Company, within its limits, in
connection with loss in excess of the limit of its original Policy, such loss in
excess of the limit having been incurred because of failure by Company, or if
due in any part by Reinsurer, 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 its insured or in the preparation or prosecution of an appeal consequent
upon such action.
However, this Article shall not apply where the loss has been incurred due to
fraud by a member of the Board of Directors, officer or employee of the Company
serving on or after the Effective Date acting individually or collectively or in
collusion with any individual or corporation or any other organization or party
involved in the presentation, defense or settlement of any claim covered
hereunder.
4
For the purpose of this Article, the word "loss" shall mean any amounts for
which the Company would have been contractually liable to pay had it not been
for the limit of the original Policy.
9. COMPANY'S COVENANTS
9.1 Any thing related to the Subject Business or Policy (including payments,
correspondence and legal papers) that Company receives from any third
party will be delivered to Reinsurer within three (3) business days of
receipt. Notwithstanding anything else in this Agreement to the contrary,
Reinsurer's obligations under Sections 7 and 8 above will not apply to any
negligence, fraud or bad faith claim relating to some thing not delivered
to Reinsurer by Company in breach of this section.
9.2 Company will not contact any policyholder under any Policy or any producer
of the Subject Business. All contact with such parties will be handled
through Reinsurer.
10. PREMIUM
Reinsurer will collect 100% of the Gross Written Premium on Company's behalf.
Reinsurer will pay to Company a ceding commission of 1.5%, subject to any of
Reinsurer's other reimbursement obligations under this Agreement. Company or
Reinsurer may offset any balance whether on an account premium, commission,
claims or losses, adjustments, expenses, salvage or any other amounts that are
due from party to the other, however, such offsets are permitted only with
respect to obligations arising under this Agreement.
11. REPORTS AND REMITTANCES
11.1 By the fifteenth of each month, Reinsurer will prepare an accounting for
the previous month, a copy of which it will then deliver to Company,
stating all Gross Written Premium during the billing period (and those
adjustments provided for in this Agreement) and the resulting Ceding
Commission.
11.2 Company will remit to Reinsurer any money it receives from any third party
on the Subject Business within five (5) business days of receipt.
11.3 Reinsurer will pay any balance due Company together with its monthly
report. All settlements between Company and Reinsurer shall be made in
cash or cash equivalents. In addition to the reports required above,
Company and Reinsurer will furnish each other such other information as
may be reasonably required by the other party for such party's quarterly
and annual statements and internal records.
5
12. MANAGEMENT OF CLAIMS AND LOSSES
Reinsurer has exclusive responsibility for all claims and losses related to the
Subject Business and the Policies. Reinsure will investigate and settle or
defend all such claims and losses at its sole expense. When requested by
Company, Reinsurer will permit Company to review any of these claim files.
Company has no right to participate in or be associated with Reinsurer in the
handling of these claims. All payments of claims or losses, including ex gratia
payments, made in accordance with sound and generally accepted industry practice
shall be made by Reinsurer and shall be unconditionally binding on Company.
13. CURRENCY
All dollar amounts in this Agreement are expressed in terms of United States
dollars.
14. SALVAGE AND SUBROGATION
Company assigns all of its salvage and subrogation rights related to the Subject
Business to Reinsurer. Reinsurer may enforce these rights of salvage and
subrogation in its sole discretion.
15. INSPECTION OF RECORDS
Company and Reinsurer will allow the other party to inspect, audit and copy, at
any reasonable time and after reasonable notice, the records of the other party
pertaining to the Subject Business insured under this Agreement.
16. ARBITRATION
Any dispute or difference relating to this Agreement that the parties cannot
resolve will be resolved by binding arbitration as described below.
16.1 Choosing an Arbitration Panel. Company and Reinsurer will each choose an
arbitrator and those two arbitrators will choose a third arbitrator. The
two party-appointed arbitrators will be active or retired disinterested
executive officers of insurance or reinsurance companies. The third
arbitrator will be an attorney who is also an active or retired officer of
a reinsurance company or insurance company. If a party fails to choose an
arbitrator within thirty (30) days following a written request by the
other party to do so, the requesting party may choose two arbitrators who
shall in turn choose the third arbitrator. If an arbitrator dies or its
disabled, a replacement will be named by the same process in which the
arbitrator to be replaced was selected.
16.2 Presentation. Each party shall present its case by written brief to the
arbitrators within thirty (30) days following the date of appointment of
the third arbitrator. Disputes will be decided after the submission of
legal memoranda unless at least two members of the panel agree that there
are material issues of fact in dispute requiring
6
an evidentiary hearing. If a hearing is held, evidence may be introduced
without following the strict rules of evidence but cross-examination and
rebuttal shall be allowed.
16.3 Decision of the Arbitrators. The arbitrators will make their decision with
regard to the custom and usage of the insurance/reinsurance business at
the time of contract (or amendment if the dispute involves an amendment).
The arbitrators shall issue their decision in writing within forty-five
(45) days following the initial, responsive and reply memoranda, or, in
the event an evidentiary hearing is held, termination of the hearing
unless the parties both consent to an extension. The decision of the
majority of the Arbitrators will be final and binding on all parties.
Judgment upon the final decision of the Arbitrators may be entered in any
court of competent jurisdiction.
16.4 Expenses of Arbitration. Each party will bear the expense of its own
arbitrator, and will jointly and equally bear with the other the expense
of the Umpire and of the arbitration. If one party chooses two of the
arbitrators, as above provided, the expense of all of the arbitrators and
the arbitration will be equally divided between the two parties.
16.5 Place of Arbitration. Any arbitration proceedings shall take place in
Detroit, Michigan or such other location on which the parties agree.
16.6 Confidentiality. Reinsurer and Company agree that the existence, conduct
and content of any arbitration will be kept confidential and no party will
disclose to any person any information about such arbitration, except as
may be required by law or for financial reporting purposes in each party's
financial statements.
16.7 Survival of Article. This Article shall survive termination of this
Agreement.
16.8 Other Actions. Submission of a matter to arbitration shall be a condition
precedent to any right to institute a proceeding at law or in equity
concerning such matter, except for injunctive or other provisional relief
pending the arbitration of a matter subject to arbitration pursuant to
this Agreement.
This Section will survive this Agreement's termination.
17. INSOLVENCY OF COMPANY
The Company's insolvency will not effect the Reinsurer's obligations under this
Agreement. In such a case, payment under this Agreement would be made to Company
or its liquidator, receiver or statutory successor.
If the Company enters insolvency proceedings, the Company's liquidator, receiver
or statutory successor will give written notice to Reinsurer of the pendency of
a claim against Company on any Policy within a reasonable time after the claim
is filed in the insolvency
7
proceeding. While any such claim is pending, Reinsurer may investigate the claim
and interpose, at its own expense, in the proceeding where the claim is to be
adjudicated, any defense or defenses that it may deem available to Company or
its liquidator or receiver or statutory successor. The expense thus incurred by
Reinsurer will be chargeable, subject to court approval, against Company as part
of the expense of liquidation or otherwise as an administrative cost of the
insolvency proceedings to the extent of a proportionate share of the benefits
which may accrue to Company solely as a result of the defense so undertaken by
Reinsurer.
Should Company go into liquidation or should a receiver be appointed, Reinsurer
shall be entitled to deduct from any sums which may be or may become due to
Company under this Reinsurance Agreement, any sums which are due to Reinsurer by
Company under this Agreement and which are payable at a fixed or stated date, as
well as any other sums due to Reinsurer which are permitted to be offset under
applicable law.
18. PREMIUM TAXES
Company will file and pay all premium taxes on the Subject Business, and deliver
a copy of the tax filing to Reinsurer. Reinsurer will reimburse Company in
arrears for any premium tax paid within ten (10) business days of Reinsurer's
receipt of the tax filing.
19. INDEMNITY
In addition to any other provision in this Agreement, as of the Effective Date,
Reinsurer will indemnify Company for any costs, damage, liability, expense
and/or loss of any type or kind arising out of, with regard to or relating in
any manner to any Missouri claim, risk or Policy and/or under or related to the
Subject Business.
20. MISCELLANEOUS
20.1 Michigan law governs this Agreement.
20.2 This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original but which together shall constitute one and
the same instrument.
20.3 This Agreement will be automatically modified to conform to any law or
governmental regulation having application to or jurisdiction over its
parties or subject matter, without prior notice.
20.4 This Agreement has been negotiated by the parties and the fact that the
initial and final draft shall have been prepared by one party or the other
will not give rise to any presumption for or against any party to this
Agreement or be used in any form in the construction or interpretation of
this Agreement or any of its provisions.
8
20.5 The parties intend this Agreement to both bind and benefit them and their
respective successors. Neither this Agreement nor any rights or
obligations under this Agreement may be assigned or delegated by either
party without the prior written consent of the other.
20.6 There is no privity between Company's insureds and Reinsurer. Reinsurer's
liability is only to indemnify Company. This Agreement is not for the
benefit of any insured under any Policy.
20.7 No error or inadvertent omission on the part of one party shall relieve
the other party of liability pursuant to this Agreement, provided that any
such errors and/or omissions are rectified as soon after discovery as
feasible.
20.8 By executing this Agreement, each party reaffirms to the other than it is
undertaking the Agreement in utmost good faith.
NORTH POINTE INSURANCE COMPANY
By: /s/ Xxxx X. Xxxxx
--------------------------------------
Xxxx X. Xxxxx, Chief Financial Officer
UNIVERSAL FIRE & CASUALTY INSURANCE CO.
By: /s/ B. Xxxxxxx Xxxxxxx
--------------------------------------
B. Xxxxxxx Xxxxxxx, President
9
