Exhibit 10.89
INDEXED WARRANTY EXCESS OF LOSS REINSURANCE CONTRACT
(hereinafter referred to as the "Contract")
issued to
RENAISSANCE REINSURANCE LTD. and all other insurance or reinsurance companies
50% or more owned by and/or affiliated with RenaissanceRe Holdings Ltd.,
including any insurance or reinsurance companies managed by either of them or by
their affiliated companies or agencies.
(hereinafter referred to as the "Reinsured")
and
PLATINUM UNDERWRITERS REINSURANCE, INC.
(hereinafter referred to as the "Reinsurer)
ARTICLE 1 - BUSINESS COVERED
This Contract shall indemnify the Reinsured for losses arising out of "Named
Perils" in respect of business arising from its International Property Whole
Account.
ARTICLE 2 - TERM
This Contract shall be effective during the twelve months commencing 12:01 a.m.
June 11, 2003 and ending 12:01 a.m. June 10, 2004, both days inclusive.
ARTICLE 3 - TERRITORY
This Contract will cover losses worldwide, wherever the original losses occur.
ARTICLE 4 - EXCLUSIONS
All exclusions as per the original Agreement, as well as the following:
1. Nuclear Incident, as attached.
2. War, as attached
3. Insolvency Funds Exclusions, as attached.
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4. Losses emanating from Stonington Insurance Company DeSoto Prime
Insurance Company and DeSoto Insurance Company, other than where
coverage is written by Renaissance Reinsurance Limited as
reinsurance of such companies.
ARTICLE 5 - LIMIT AND RETENTION
This Contract shall pay when the Reinsured's Aggregate Losses, as defined in
Article 6 - Definitions, has exceeded US $10,000, subject to a limit of
$12,500,000 per qualifying Loss Occurrence and/or $25,000,000 in the aggregate
for all losses occurring during the period of this Contract, as further outlined
in Article 7 - Index Warranty.
ARTICLE 6 - DEFINITIONS
The term "Aggregate Loss" as used herein shall mean the Reinsured's actual gross
losses, as accounted for by the Reinsured during the Term, on business included
in their International Property Whole Account, including outstanding loss
reserves settlement expenses and acquisition costs.
The Reinsured may also include any reinstatement premiums and/or loss related
additional premiums, payable under the Reinsured's original contracts of
reinsurance in its Aggregate Loss claims hereunder, together with a sum
equivalent to any amount under such original contracts of reinsurance which, but
for the loss under consideration, would have been returned to the original
reinsured by way of a no claims bonus, profit commission, or similar contractual
provision.
The Retrocedent may also include in its Aggregate Loss claims hereunder losses
arising from Catastrophe linked Securities including but not limited to
so-called "Acts of God" Bonds.
The term "loss Occurrence" as used herein shall mean all individual losses
arising out of one and the same event as defined in the original polices (ies)
of the Index Company. As regards windstorm, hail, tornado, hurricane cyclone
including ensuing collapse and water damage, a Loss Occurrence shall be further
defined to be all individual losses sustained by the Index Company occurring
during any period of 72 consecutive hours arising out of and directly occasioned
by the same event. However, the event need not be limited to one state or
province of states or provinces contiguous thereto. It is understood and agreed
that the Contract will not cover the Reinsured for losses arising out of a Loss
Occurrence where any part of the loss has occurred prior to the inception of
this contract.
ARTICLE 7 - INDEX WARRANTY
The Reinsured warrants that no claims shall be payable hereunder unless a Loss
Occurrence penetrates the Index Layer Limits as outlined below, hereinafter
called a "qualifying" Loss Occurrence. That is no claim shall be payable
hereunder unless the
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Index Company has an incurred loss to the Index Cover as a result of a Loss
Occurrence(s) taking place during the period.
Aggregate Losses collectible hereunder will be subject to the following
limitation:
The cumulative Loss Index, divided by the cumulative Index Layer Limit
multiplied by $12,500, 000.
The Loss Index shall be based on a "deemed" Index Cover, being a Property
Catastrophe Excess of Loss reinsurance program purchased by Platinum
Underwriters, the Index Company, providing the following coverage, the Index
Layer Limits: $10,000,000 excess of $30,000,000 and $15,000,000 excess of
$40,000,000
as part of the following contracts:
1. Aon Policy No. BA0319408, PTP Policy No. 0400007
2. Aon Policy No. XX0000000, PTP Policy No. 0400008
The Reinsured will be liable for 50% of all economics of the above contracts.
The Reinsured and Reinsurer will each share in 50% of all loss recoveries,
premiums and reinstatement premiums.
ARTICLE 8 - EXTENDED EXPIRATION
If this Contract expires while a loss occurrence covered hereunder is in
progress, the Reinsurer's liability hereunder shall, subject to the other terms
and conditions of this Contract, be determined as if the entire loss occurrence
had occurred prior to the expiration of this Contract, provided that no part of
such loss occurrence is claimed against any renewal or replacement of this
Contract.
ARTICLE 9 - OTHER REINSURANCE
The Reinsured is granted permission to carry excess of loss catastrophe
(including but not limited to business classified by the Reinsured as index,
OLW, swaps and cat-linked covers), excess of loss per risk, pro-rata reinsurance
and aggregate stop loss, recoveries under which shall inure to the sole benefit
of the Reinsured and shall be entirely disregarded for the purposes of
determining the amount of Aggregate Losses under this Contract.
ARTICLE 10 - PREMIUM
The Retrocedent shall pay to the Reinsurer a flat premium of $3,060,000 which
includes a 2% commission.
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ARTICLE 11 - CURRENCY
Whenever the word "Dollars" or the "$" sign appears in this Contract, they shall
be construed to mean United States Dollars and all transactions under this
Contract shall be in United States Dollars.
Amounts paid or received by the Reinsured in any other currency shall be
converted to United States Dollars at the rate of exchange at the date such
transaction is entered on the books of the Reinsured.
ARTICLE 12 - NOTICE OF LOSS AND LOSS SETTLEMENTS
The Reinsured shall advise the Reinsurer promptly of any Loss Occurrences that,
in the opinion of the Reinsured, may result in a claim being made hereunder and
of all subsequent developments thereto, which would materially affect the
position of the Reinsurer.
The Reinsurer shall accept the figures reported by the Reinsured for the
incurred loss of the Index Company. In the event of a qualifying Loss Occurrence
the amount of the Index Company's incurred loss shall be first determined by the
estimate provided to the Reinsured by the Index Company following the
commencement date of that Loss Occurrence.
If the estimated incurred loss amount is less than the Index Layer Retention and
is subsequently revised to an amount greater than the index Layer Retention, the
Reinsured may make its claim to this contract at the time that the Reinsured
receives notice of the upward revision from the Index Company.
The Reinsured may make provisional collections subject to the agreement of the
Reinsurer, and such collection will not be unreasonably withheld, however, it is
understood that collections hereunder shall be paid as the Reinsured's Aggregate
Losses are paid.
If, subsequent to the Reinsurer making a payment under this contract, the
estimated incurred loss amount is re-valued downwards to an amount that is less
than the Index Layer Retention, the Reinsured shall reimburse the Reinsurer for
the amount of the loss paid by the Reinsurer.
The Reinsured shall have the option whether or not to make a claim under this
contract.
ARTICLE 13 - OFFSET
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The Reinsured and the Reinsurer shall have the right to offset any balance or
amounts due from one party to the other under the terms of this Contract. The
party asserting the right of offset may exercise such right any time whether the
balances due are on account of premiums or losses or otherwise.
ARTICLE 14 - ERRORS AND OMISSIONS
Any inadvertent delay, omission or error shall not be held to relieve either
party hereto from any liability which would attach to them hereunder if such
delay, omission or error had not been made, provided such delay, omission or
error is rectified as soon as reasonably practicable upon discovery.
ARTICLE 15 - TAXES
In consideration of the terms under which this Contract is made, the Reinsured
agrees not to claim any deduction of the premium hereon when making Canadian tax
returns or when making tax returns, other than income or profit tax returns, to
any state or territory of the United States of America or to the District of
Columbia.
ARTICLE 16 - INSOLVENCY
In the event of the insolvency of the Reinsured, this reinsurance shall be
payable directly to the Reinsured or to its liquidator, receiver, conservator or
statutory successor on the basis of the liability of the Reinsured without
diminution because of the insolvency of the Reinsured or because the liquidator,
receiver, conservator or statutory successor of the Reinsured has failed to pay
all or a portion of any claim. It is agreed, however, that the liquidator,
receiver, conservator or statutory successor of the Reinsured shall give written
notice to the Reinsurer of the pendency of a claim against the Reinsured
indicating the policy or bond reinsured which claim would involve a possible
liability on the part of the Reinsurer within a reasonable time after such claim
is filed in the conservation or liquidation proceeding or in the receivership,
and that during the pendency of such claim, the Reinsurer may investigate such
claim and interpose, at its own expense, in the proceeding where such claim is
to be adjudicated, any defense or defenses that it may deem available to the
Reinsured or its liquidator, receiver, conservator or statutory successor. The
expense thus incurred by the Reinsurer shall be chargeable, subject to the
approval of the court, against the Reinsured as part of the expense of
conservation or liquidation to the extent of a pro rata share of the benefit
which may accrue to the Reinsured solely as a result of the defense undertaken
by the Reinsurer.
Where two or more Reinsurers are involved in the same claim and a majority in
interest elect to interpose defense to such claim, the expense shall be
apportioned in accordance with the terms of this Contract as though such expense
had been incurred by the insolvent Reinsured.
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In the event of the insolvency of the Reinsured, the reinsurance under this
Contract shall be payable directly by the Reinsurer to the Reinsured or to its
liquidator, receiver, conservator or statutory successor, except as provided by
Section 4118(a) of the New York Insurance Law or except (a) where this Contract
specifically provides another payee of such reinsurance in the event of the
insolvency of the Reinsured and (b) where the Reinsurerr with the consent of the
direct reinsured or reinsureds has assumed such policy obligations of the
Reinsured as direct obligations of the Reinsurer to the payees under such
policies and in substitution for the obligations of the Reinsured to such
payees.
ARTICLE 17 - ARBITRATION
As a condition precedent to any right of action hereunder, any irreconcilable
dispute between the parties to this Contract will be submitted for decision to a
board of arbitration composed of two arbitrators and an umpire meeting in
Bermuda.
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.
The members of the board of arbitration shall be active or retired disinterested
officials of insurance or reinsurance companies, or Underwriters at Lloyd's,
London, not under the control or management of either party to this Contract.
Each party shall appoint its arbitrator, and the two arbitrators shall choose an
umpire before instituting the hearing. If the respondent fails to appoint its
arbitrator within four (4) weeks after being requested to do so by the claimant,
the latter shall also appoint the second arbitrator. If the two arbitrators fail
to agree upon the appointment of an umpire within four (4) weeks after their
nominations, each of them shall name three of whom the other shall decline two,
and the decision shall be made by drawing lots.
The claimant shall submit its initial brief within forty-five (45) days from
appointment of the umpire. The respondent shall submit its brief within
forty-five (45) days thereafter, and the claimant may submit a reply brief
within thirty (30) days after filing of the respondent's brief.
The board shall make its decision with regard to the custom and usage of the
insurance and reinsurance business. The board shall issue its decision in
writing based upon a hearing in which evidence may be introduced without
following strict rules of evidence but in which cross-examination and rebuttal
shall be allowed. The board shall make its decision within sixty (60) days
following the termination of the hearings unless the parties consent to an
extension. The majority decision of the board shall be final and binding upon
all parties to the proceeding. Judgment may be entered upon the award of the
board in any court having jurisdiction.
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 clause, and
communications shall be made by the Reinsured to each of the Reinsurers
constituting the one party provided, however, that nothing therein shall impair
the rights of such Reinsurers to assert several
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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.
Each party shall bear the expense of its own arbitrator and shall jointly and
equally bear with the other party the expense of the umpire and the remaining
costs of the arbitration proceedings.
ARTICLE 18 - GOVERNING LAW
This Contract shall be governed by and construed in accordance with the laws of
Bermuda.
ARTICLE 19 - PARTICIPATION
This Agreement obligates the Reinsurer for 100% of the interests and liabilities
set forth under this Agreement.
The participation of the Reinsurer in the interests and liabilities of this
Agreement shall be separate and apart from the participations of any other
Reinsurers and shall not be joint with those of other Reinsurers, and the
Reinsurer shall in no event participate in the interests and liabilities of any
other Reinsurers.
IN WITNESS WHEREOF, the parties hereto, by their authorized representatives,
have executed this Agreements as of the following date:
In New York, New York this 15th day of November, 2003.
PLATINUM REINSURANCE UNDERWRITERS INC.
/s/ Xx Xxxxxx
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In Hamilton, Bermuda this 2nd day of February, 2003
RENAISSANCE REINSURANCE LTD
/s/ Xxxxx X'Xxxxxxx
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NUCLEAR ENERGY RISKS EXCLUSION CLAUSE (REINSURANCE)
(WORLDWIDE EXCLUDING U.S.A. & CANADA)
This Contract 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 Contract Nuclear Energy Risks shall be defined as all
first party and/or third party insurances (other than Workers' Compensation
and/or Employers' Liability) in respect of:
i) Nuclear reactors and nuclear power stations or plants;
ii) Any other premises or facilities whatsoever related to or
concerned with:
a) the production of nuclear energy or
b) the production or storage or handling of nuclear fuel or
c) nuclear waste.
iii) Any other premises or facilities eligible for insurance by any
local Nuclear Pool and/or Association but only to the extent
of the requirements of the local Pool and/or Association, it
being the intention always that Reinsurers shall follow the
fortunes of the Company insofar as the Company complies with
the requirements of any such local Pool and/or Association.
However, this exclusion shall not apply:
a) to any insurance or reinsurance in respect of the
construction, erection or installation of buildings, plant
and other property (including contractor's plant and
equipment used in connection therewith):
i) for the storage of nuclear fuel - prior to the commencement of
storage;
ii) as regards reactor installations - prior to the commencement
of loading of nuclear fuel into the reactor, or prior to the
initial criticality, depending on the commencement of the
insurance or reinsurance of the relevant local Nuclear Pool
and/or Association.
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b) to any Machinery Breakdown or other Engineering insurance
or reinsurance not coming within the scope of (a) above,
nor affording coverage in the "high radioactivity" zone.
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NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL DAMAGE - REINSURANCE U.S.A.
1. This Reinsurance does not cover any loss or liability accruing to the
Reassured, directly or indirectly and whether as Insurer or Reinsurer,
from any Pool of Insurers or Reinsurers formed for the purpose of covering
Atomic or Nuclear Energy risks.
2. Without in any way restricting the operation of paragraph (1) of this
Clause, this Reinsurance does not cover any loss or liability accruing to
the Reassured, directly or indirectly and whether as Insurer or Reinsurer,
from any insurance against Physical Damage (including business
interruption or consequential loss arising out of such Physical Damage)
to:
I. Nuclear reactor power plants including all auxiliary property
on the site, or
II. Any other nuclear reactor installation, including laboratories
handling radioactive materials in connection with reactor
installations, and "critical facilities" as such, or
III. Installations for fabricating complete fuel elements or for
processing substantial quantities of "special nuclear
material", and for reprocessing, salvaging, chemically
separating, storing or disposing of "spent" nuclear fuel or
waste materials, or
IV Installations other than those listed in paragraph (2) III
above using substantial quantities of radioactive isotopes or
other products of nuclear fission.
3. Without in any way restricting the operations of paragraphs (1) and (2)
hereof, this Reinsurance does not cover any loss or liability by
radioactive contamination accruing to the Reassured, directly or
indirectly, and whether as Insurer or Reinsurer, from any insurance on
property which is on the same site as a nuclear reactor power plant or
other nuclear installation and which normally would be insured therewith
except that this paragraph (3) shall not operate
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(a) where Reassured does not have knowledge of such nuclear reactor power
plant or nuclear installation, or (b) where said insurance contains a
provision excluding coverage for damage to property caused by or
resulting from radioactive contamination, however caused. However on
and after 1st January 1960 this sub-paragraph
(b) shall only apply provided the said radioactive contamination
exclusion provision has been approved by the Governmental Authority
having jurisdiction thereof.
4. Without in any way restricting the operations of paragraphs (1), (2) and
(3) hereof, this Reinsurance does not cover any loss or liability by
radioactive contamination accruing to the Reassured, directly or
indirectly, and whether as Insurer or Reinsurer, when such radioactive
contamination is a named hazard specifically insured against.
5. It is understood and agreed that this Clause shall not extend to risks
using radioactive isotopes in any form where the nuclear exposure is not
considered by the Reassured to be the primary hazard.
6. The term "special nuclear material" shall have the meaning given it in the
Atomic Energy Act of 1954 or by any law amendatory thereof.
7. Reassured to be sole judge of what constitutes:
(a) substantial quantities, and
(b) the extent of installation, plant or site.
Note: Without in any way restricting the operation of paragraph (1) hereof, it
is understood and agreed that
(a) all policies issued by the Reassured on or before 31st December 1957
shall be free from the application of the other provisions of this
Clause until expiry date or 31st December 1960 whichever first occurs
whereupon all the provisions of this Clause shall apply,
(b) with respect to any risk located in Canada policies issued by the
Company on or before 31st December 1958 shall be free from the
application of the other provisions of this Clause until expiry date
or 31st December 1960 whichever first occurs whereupon all the
provisions of this Clause shall apply.
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NUCLEAR INCIDENT EXCLUSION CLAUSE PHYSICAL DAMAGE AND LIABILITY (BOILER AND
MACHINERY POLICIES) - 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 original Boiler and Machinery Insurance or Reinsurance
contracts of the Reassured shall be deemed to include the following
provisions of this paragraph;
This Policy does not apply to "loss," whether it be direct or indirect,
proximate or remote
(a) from an Accident caused directly or indirectly by nuclear reaction,
nuclear radiation or radioactive contamination, all whether
controlled or uncontrolled; or
(b) from nuclear reaction, nuclear radiation or radioactive
contamination, all whether controlled or uncontrolled, caused
directly or indirectly by, contributed to or aggravated by an
Accident.
(3) However, it is agreed that loss arising out of the use of Radioactive
Isotopes in any form is not hereby excluded from reinsurance protection.
(4) Without in any way restricting the operation of paragraph (1) hereof, it
is understood and agreed that
(a) all policies issued by the Reassured effective on or before 30th
April, 1958, shall be free from the application of the other
provisions of this Clause until expiry date or 30th April, 1961,
whichever first occurs, whereupon all the provisions of this Clause
shall apply,
(b) with respect to any risk located in Canada policies issued by the
Reassured effective on or before 30th June, 1958, shall be free from
the application of the other provisions of this Clause until expiry
date of 30th June, 1961, whichever first occurs, whereupon all the
provisions of this Clause shall apply.
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NORTH AMERICAN WAR EXCLUSION CLAUSE (REINSURANCE)
As regards interests which at time of loss or damage are on shore, no liability
shall attach hereto in respect of any loss or damage which is occasioned by war,
invasion, hostilities, acts of foreign enemies, civil war, rebellion,
insurrection, military or usurped power, or martial law or confiscation by order
of any government or public authority.
This War Exclusion Clause shall not, however, apply to interests which at time
of loss or damage are within the territorial limits of the United States of
America (comprising the fifty States of the Union and the District of Columbia
and including Bridges between the U.S.A. and Mexico provided they are under
United States ownership), Canada, St. Pierre and Miquelon, provided such
interests are insured under policies, endorsements or binders containing a
standard war or hostilities or warlike operations exclusion clause.
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INSOLVENCY FUNDS EXCLUSION CLAUSE
It is agreed that this Contract excludes all liability of the Company arising by
contract, operation of law, or otherwise, from its participation or membership,
whether voluntary or involuntary, in any insolvency fund. "Insolvency Fund"
includes any guaranty fund, insolvency fund, plan, pool, association, fund or
other arrangement, howsoever denominated, established or governed, which
provides for any assessment of or payment or assumption by the Company of part
or all of any claim, debt, charge, fee, or other obligation of an insurer, or
its successors or assigns, which has been declared by any competent authority to
be insolvent, or which is otherwise deemed unable to meet any claim, debt,
charge, fee or other obligation in whole or in part.
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