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EXHIBIT 10.9
SPECIFIC EXCESS
REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 1995
ISSUED TO
MEDICAL INTER-INSURANCE EXCHANGE OF NEW JERSEY
LAWRENCEVILLE, NEW JERSEY
(HEREINAFTER REFERRED TO AS THE "COMPANY")
BY
THE SUBSCRIBING REINSURER(S) EXECUTING
THE INTERESTS AND LIABILITIES AGREEMENT(S)
ATTACHED HERETO
(HEREINAFTER REFERRED TO AS THE "SUBSCRIBING REINSURER")
PREAMBLE
It is understood that the SUBSCRIBING REINSURERS participating in this Contract
through the INTERMEDIARY named in ARTICLE XXII have a 100% part of 100% share in
the interests and liabilities of the "Reinsurer".
ARTICLE I: CLASSES OF BUSINESS REINSUED
A. By this Contract, the REINSURER agrees to reinsure the liability which
may accrue to the COMPANY under all of its original policies,
contracts, binders and certificates of insurance or reinsurance
classified by the COMPANY as:
Medical and Dental Practitioners Liability (including Corporate
and Professional Premises Liability Coverage, where
applicable);
Hospital and Other Heathcare Institution Professional Liability;
Commercial General Liability, Employers' Liability, Automobile
Liability and all other Non-Professional (including
Excess/Umbrella) Liability unless excluded under Article III; all
either written in respect of Health Care Institutions or in
conjunction with Professional Liability coverages written for such
institutions.
(hereinafter called "policies"), unless otherwise excluded under
ARTICLE III: EXCLUSIONS, issued or renewed on or after the
effective date, subject to the terms, conditions and limitations
hereinafter set forth.
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B. It is understood that this Contract applies to losses first occurring
under occurrence policies and/or claims made thereon under claims made
policies issued or renewed on or after the effective date hereof.
Permanent Protection Plan policies underwritten by the COMPANY shall in
all cases be deemed to be LOSS OCCURRENCE policies covering on a losses
occurring during basis. REINSURERS shall be subject to all of the
conditions of the Permanent Protection Plan policies including policy
limits and aggregate limit formulas under the extended reporting
coverage therein.
ARTICLE II: COMMENCEMENT AND TERMINATION
A. This Contract shall become effective on January 1, 1995, and shall
continue in force thereafter until terminated.
B. Either party may terminate this Contract on any December 31 by giving
the other party not less than 90 days prior written notice.
C. Unless otherwise mutually agreed, reinsurance hereunder on business in
force on the effective date of termination shall remain in full force
and effect until expiration, cancellation or next premium anniversary
of such business, whichever first occurs, but in no event beyond 12
months following the effective date of termination, plus any extension
of coverage for extended reporting as per the original policies of the
COMPANY.
REINSURERS shall remain liable in respect of policies issued or renewed
during the TERM in force on the basis of underlying coverage.
REINSURERS shall receive their share of premiums for such respective
policies and there shall not be any return of unearned premium in
respect thereto.
ARTICLE III: EXCLUSIONS
This Contract does not apply to and specifically excludes the following:
1. Reinsurance assumed, except reinsurance from American Medical
Mutual, Inc. Risk Retention Group, where the underwriting is
through New Jersey State Medical Underwriters, Inc.
2. Claims emanating from policies issued by the COMPANY with
effective dates after the termination date of this Contract.
3. Directors and Officers Liability when written as such.
4. Financial Guaranty and Insolvency Business.
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5. All liability of the COMPANY arising by contract, operation of
law, or otherwise, from its participation or membership, whether
voluntary or involuntary, in any insolvency fund. "Insolvency
fund" includes any guaranty fund, insolvency fund, plan, pool,
association, fund or other arrangement, however denominated,
established or governed, which provides for any assessment of or
payment or assumption by the COMPANY of part or all of any claim,
debt, charge, fee or other obligation or an insurer, or its
successors or assigns, which has been declared by any competent
authority to be insolvent, or which is otherwise deemed unable to
meet any claim, debt, charge, fee or other obligation in whole or
in part.
6. Nuclear risks as defined in the "Nuclear Incident Exclusion Clause
- Liability - Reinsurance U.S.A. and Canada" except for incident
arising from nuclear medicine, attached to and forming part of
this Contract.
7. Any business derived from participation in any Pool, Association
or Syndicate.
ARTICLE IV: RETENTIONS AND LIMITS
A. COVERAGE A (Each Insured Coverage): The COMPANY shall retain and be
liable for the first $X amount as per the table below of paid Ultimate
Net Loss as respects any one original policy, each claim. The REINSURER
shall then be liable for the amount by which such paid ULTIMATE NET
LOSS exceeds the COMPANY'S RETENTION, but the liability of the
REINSURER shall not exceed $8,000,000 ULTIMATE NET LOSS plus pro rata
LOSS ADJUSTMENT EXPENSES as respects any one original policy, each
claim.
Notwithstanding the above, the COMPANY shall also retain the first
$8,000,000 of paid ULTIMATE NET LOSS plus pro rata LOSS ADJUSTMENT
EXPENSES in the aggregate otherwise recoverable under COVERAGE A.
States Class of Business Retention $X =
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Other than PA Medical & Dental Practitioner Prof. Liab. $2,000,000
Other than PA Hospital & All Other Health Care Institutions
Professional Liability $3,000,000
PA All Professional Liability
(Physicians, Surgeons & Institutions) $2,200,000
All States General Liability, Employers' Liability,
Automobile Liability and all Non Professional
Liability Coverage written in conjunction with
Professional Liability (health care) coverages. $3,000,000
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In no event shall REINSURERS be liable for more than $24,000,000
Ultimate Net Loss, inclusive of all pro rata LOSS ADJUSTMENT EXPENSE,
LOSS IN EXCESS OF POLICY LIMITS, and EXTRA CONTRACTUAL OBLIGATIONS, in
the aggregate for COVERAGE A.
B. COVERAGE B (Each Insured Coverage): The COMPANY shall retain and be
liable for paid Ultimate Net Loss equal to the sum of the RETENTION and
LIMIT under COVERAGE A as respects any original policy, each claim. The
REINSURER shall then be liable for 90% of the amount by which such paid
ULTIMATE NET LOSS exceeds the sum of the RETENTION and LIMIT under
COVERAGE A, but the liability of the REINSURER shall not exceed 90% of
$10,000,000 plus pro rata LOSS ADJUSTMENT EXPENSES as respects any
original policy, each claim.
In no event shall REINSURERS be liable for more than $27,000,000 (being
90% of $30,000,000) ULTIMATE NET LOSS, inclusive of all pro rata LOSS
ADJUSTMENT EXPENSE, LOSS IN EXCESS OF POLICY LIMITS, and EXTRA
CONTRACTUAL OBLIGATIONS, in the Aggregate for COVERAGE B.
C. Under no circumstances shall REINSURERS be liable for aggregate
coverage although the COMPANY'S original policies may provide aggregate
coverage.
D. In order for the COMPANY to be able to recover a claim under COVERAGES
A and B above, the COMPANY must report the respective claim recoverable
for each contract year within ten years from January 1 of such contract
year.
E. Under no circumstance shall COVERAGE B LIMIT be available or used by
the COMPANY in respect of COVERAGE A ULTIMATE NET LOSS coverage.
ARTICLE V: DEFINITIONS
A. "ULTIMATE NET LOSS" as used herein is defined as the sum or sums
(including LOSS IN EXCESS OF POLICY LIMITS, EXTRA CONTRACTUAL
OBLIGATIONS, as hereinafter defined) paid or payable by the COMPANY in
settlement of claims including any and all vicarious liability arising
from BUSINESS REINSURED and in satisfaction of judgments rendered on
account of such claims, after deduction of all salvage, all recoveries,
including the Pennsylvania catastrophe fund, if applicable, and all
claims on inuring insurance or reinsurance, whether collectible or no.
ULTIMATE NET LOSS shall not include any LOSS ADJUSTMENT EXPENSE.
Nothing herein shall be construed to mean that losses under this
Contract are not recoverable until the COMPANY'S ULTIMATE NET LOSS has
been ascertained. ULTIMATE NET LOSS shall be
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calculated on a per claim, per policy per insured basis. If the COMPANY
issues multiple policies to an insured, the policies will be deemed to
be one original policy for purposes of coverage under this Reinsurance
Contract.
B. "LOSS IN EXCESS OF POLICY LIMITS" and "EXTRA CONTRACTUAL OBLIGATIONS"
as used herein shall be defined as follows:
1. "LOSS IN EXCESS OF POLICY LIMITS" shall mean 90% subject to the
limitations below of any amount paid or payable by the COMPANY IN
EXCESS of its policy limits, but otherwise within the terms of its
policy, as a result of a settlement by the COMPANY or an action
against it by its insured or its insured's assignee to recover
damages the insured is legally obligated to pay to a third party
claimant because of the COMPANY'S alleged or actual negligence,
breach of contract or bad faith in rejecting a settlement within
policy limits, or in discharging its duty to defend or prepare the
defense in the trial of an action against its insured, or in
discharging its duty to prepare or prosecute an appeal consequent
upon such an action. A LOSS IN EXCESS OF POLICY LIMITS shall be
deemed to have occurred on the same date as the loss covered or
alleged to be covered under the policy.
The COMPANY shall only include the amount of 90% of LOSS IN EXCESS
OF POLICY LIMITS within ULTIMATE NET LOSS to reach the COVERAGE A
LIMIT in respect of underlying policies underwritten with limits
equal to or greater than $2,000,000 and up to $10,000,000 as
respects any original policy, each loss. There is no coverage for
LOSS IN EXCESS OF POLICY LIMITS for original policies with limits
of $2,000,000 or less.
The COMPANY shall include the amount of 90% of LOSS IN EXCESS OF
POLICY LIMITS within ULTIMATE NET LOSS to reach the COVERAGE B
LIMIT in respect of underlying policies underwritten with limits
greater than $10,000,000 and up to $20,000,000 as respects any
original policy, each loss.
2. "EXTRA CONTRACTUAL OBLIGATIONS" shall mean 90% of any punitive,
exemplary, compensatory, multiplied or consequential damages,
other than LOSS IN EXCESS OF POLICY LIMITS paid or payable by the
COMPANY as a result of an action against it by its insured, its
insured's assignee or a third party claimant, which action alleges
negligence, breach of contract or bad faith on the part of the
COMPANY in handling a claim under a policy subject to this
Contract. An EXTRA
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CONTRACTUAL OBLIGATION shall be deemed to have occurred on the
same date as the loss covered or alleged to be covered under the
policy.
The COMPANY shall only include the amount of 90% of EXTRA
CONTRACTUAL OBLIGATIONS within ULTIMATE NET LOSS to reach the
COVERAGE A LIMIT in respect of underlying policies underwritten
with limits equal to or greater than $2,000,000 and up to $10,000
as respect any original policy, each loss. There is no coverage
for EXTRA CONTRACTUAL OBLIGATIONS for original policies with
limits of $2,000,000 or less.
The COMPANY shall include the amount of 90% of EXTRA CONTRACTUAL
OBLIGATIONS within ULTIMATE NET LOSS to reach the COVERAGE B LIMIT
in respect of underlying policies underwritten with limits greater
than $10,000,000 and up to $20,000,000 as respects any original
policy, each loss.
Notwithstanding anything stated herein, this Contract shall not apply
to any LOSS IN EXCESS OF POLICY LIMITS or any EXTRA CONTRACTUAL
OBLIGATION incurred by the COMPANY as a result of any fraudulent and/or
criminal act by any officer or director of the COMPANY acting
individually or collectively or in collusion with any individual or
corporation or any other organization or party involved in the
presentation, defense or settlement of any claim covered hereunder.
C. "LOSS OCCURRENCE" means a loss occurrence or medical incident, or
otherwise the series of accidents, acts, errors or omissions including
continuous or repeated exposure to substantially the same general
harmful conditions giving rise to coverage, all as defined and provided
within the underlying policies underwritten by the COMPANY.
D. "CLAIMS MADE" as used herein shall mean the earlier of (1) or (2)
below:
1. When the insured first gives notice to the COMPANY that a claim
has been made against the insured; or
2. When the insured first gives notice to the COMPANY of a specific
medical incident involving a particular person which may result in
a claim against the original insured.
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Notwithstanding the above, and in all cases, the CLAIMS MADE date shall
be as defined and provided within the underlying policies underwritten
by the COMPANY.
E. "LOSSES INCURRED" as used herein shall mean losses and pro rata LOSS
ADJUSTMENT EXPENSES paid by the REINSURER as of the effective date of
calculation, plus the ceded reserves for known losses and pro rata LOSS
ADJUSTMENT EXPENSES outstanding as of the same date, less the
REINSURER'S proportion of any salvages recovered, all as respects
losses and related pro rata LOSS ADJUSTMENT EXPENSES under policies
issued or renewed during the contract year under consideration.
F. 1. "LOSS ADJUSTMENT EXPENSE" as used herein shall mean expenses
allocable to the investigation defense and/or settlement of
specific claims, including litigation expenses and postjudgment
interest and legal expenses and costs incurred in connection with
coverage questions and legal actions connected thereto, but not
including office expenses or salaries of the COMPANY's regular
employees.
2. "Pro rata LOSS ADJUSTMENT EXPENSES" as used herein shall mean the
result obtained by multiplying the covered indemnity percentage,
as calculated below by the COMPANY'S "LOSS ADJUSTMENT EXPENSE" for
a given claim. The percentage shall be determined by dividing the
amount of ULTIMATE NET LOSS indemnity for a coverage section by
the COMPANY'S total ULTIMATE NET LOSS for a given claim.
G. "GROSS EXCESS LIMITS PREMIUM" as used herein shall mean the net written
increased limits premium of the COMPANY for the Classes of Business
Reinsured for the respective layer of coverage limit hereon. Such
premiums shall represent the incremental gross premium of the COMPANY
pertaining to the respective coverage layer hereon for which GROSS
EXCESS LIMITS PREMIUM is being calculated. Such net written premium
shall be comprised of claims made premium for underlying policies
written on such basis and occurrence premium as respects underlying
policies written on a loss occurrence basis (i.e. Permanent Protection
Plan policies). It is understood that net written increased limits
premium is less cancellation and return premium but is gross of any
deductions for original acquisition costs (i.e. brokerage).
H. The first contract year shall be from January 1, 1995 through December
31, 1995, both days inclusive, and each subsequent 12-month period
shall be a separate contract year.
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ARTICLE VI: CLAIMS AND LOSS ADJUSTMENT EXPENSES
A. Within 60 days after the end of each calendar quarter, the COMPANY
shall provide the REINSURER with a claims bordereau outlining any claim
on which the COMPANY has placed a reserve value of $1,000,000 or more.
B. The COMPANY shall include with each claim bordereau, the following
information as respects new claims, pending claims and closed claims
during the quarter:
1. Claim number or reference number;
2. Named of Insured;
3. Name of Claimant;
4. Subject policy limit;
5. CLAIMS MADE date;
6. LOSS OCCURRENCE date;
7. Indemnity (paid and outstanding);
8. Expenses (paid and outstanding);
9. Indemnity recovery; if any;
10. Expense recovery; if any;
11. Status.
12. Claim manager report which includes narrative loss description of
each claim.
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C. The REINSURER shall have the right, at its own expense, to be
associated in the defense of any claim, suit or proceeding involving
this reinsurance.
D. The COMPANY shall, at its full discretion, adjust and settle all claims
and losses. All such adjustments and settlements shall be binding on
the REINSURER and the REINSURER agrees to pay all amounts for which it
may be liable immediately after receipt of reasonable evidence of the
amount paid by the COMPANY.
ARTICLE VII: SALVAGE AND SUBROGATION
The REINSURER shall be credited with salvage (i.e., reimbursement obtained or
recovery made by the COMPANY, less the actual cost, excluding salaries of
officials and employees of the COMPANY and sums paid to attorneys as retainer,
of obtaining such reimbursement or making such recovery) on account of claims
and settlements involving reinsurance hereunder. Salvage thereon shall always be
used to reimburse the excess carriers in the reverse order of their priority
according to their participation before being used in any way to reimburse the
COMPANY of its primary loss. The COMPANY hereby agrees to enforce its rights to
salvage or subrogation relating to any loss, a part of which loss was sustained
by the REINSURER, and to prosecute all claims arising out of such rights.
ARTICLE VIII: COVERAGE A PREMIUM
A. Deposit Premium: As respects each contract year, the COMPANY shall pay
the REINSURERS an annual Deposit Premium equal to the greater of 50% of
GROSS EXCESS LIMITS PREMIUM or $3,500,000 in four equal installments of
$875,000 on March 31, June 30, September 30 and December 31 of each
contract year.
B. Minimum Premium: As respects each contract year, the COMPANY shall pay
REINSURERS Actual Premium as per D. below, but not less than the
Minimum Premium which is equal to 21% of GROSS EXCESS LIMITS PREMIUM in
respect of policies with limits attaching in respect of COVERAGE A or
$1,500,000, whichever is greater.
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C. Maximum Premium: As respects each contract year, the COMPANY shall pay
REINSURERS Actual Premium as per D. below, but not greater than the
Maximum Premium which is equal to 63% of GROSS EXCESS LIMITS PREMIUM in
respect of policies with limits attaching in respect of COVERAGE A or
$4,500,000, whichever is greater.
D. Actual Premium: As respects each contract year, the COMPANY shall
calculate Actual Premium which shall equal the sum of the Minimum
Premium (in B. above) plus 100% of LOSSES INCURRED (net of the
$8,000,000 ULTIMATE NET LOSS plus pro rata LOSS ADJUSTMENT EXPENSE
deductible) subject to the Minimum Premium (in B. above) and the
Maximum Premium (in C. above).
The COMPANY shall calculate and report any downward Actual Premium for
each contract year within 60 days after the end of 36 months from the
beginning of each contract year, and within 60 days after the end of
each 12-month period thereafter until all ULTIMATE NET LOSES and pro
rata LOSS ADJUSTMENT EXPENSES subject hereto have been settled. The
COMPANY shall calculate and report any upward Actual Premium for each
agreement period within 60 days after the end of 12 months from the
beginning of each contract year, and within 60 days after the end of
each 12-month period thereafter until all ULTIMATE NET LOSSES and pro
rata LOSS ADJUSTMENT EXPENSES subject hereto have been settled.
The REINSURER shall pay the COMPANY any reported downward Actual
premium less amounts previously paid in respect of Deposit Premium and
prior net Actual Premium payments upon 15 days of receipt of the
COMPANY'S report or 75 days in arrears of the respective year end
reporting date, whichever is later.
The COMPANY shall pay the REINSURERS any reported upward Actual Premium
less amounts previously paid in respect of Deposit Premium and prior
net Actual Premium payments upon the reporting of such Actual Premium
development to REINSURERS.
ARTICLE IX: COVERAGE B PREMIUM
A. Minimum Premium: As respects each contract year, the COMPANY shall pay
the REINSURERS an annual Minimum Premium equal to 90% of GROSS EXCESS
LIMITS PREMIUM for policies with limits attaching hereunder in respect
of COVERAGE B. Minimum Premium above shall be payable by the COMPANY to
REINSURERS quarterly within 45 days in arrears from the end of each
quarter
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paying all amounts due in respect of premiums collected by the COMPANY
for the respective quarter.
B. Reinstatement Premium: As respects each contract year, and in the event
of the whole or any portion of the second COVERAGE B indemnity limit
being exhausted by loss, the amount so exhausted shall be automatically
reinstated from the time of the loss and the COMPANY shall pay to the
REINSURERS an Additional Premium calculated by applying to the annual
Minimum Premium to REINSURERS for the respective contract year, the
percentage that the amount of indemnity so reinstated bears to the
total amount of indemnity coverage afforded under COVERAGE B, subject
to a minimum of 100% as to time, to be paid simultaneously with the
payment of loss by the REINSURERS. Notwithstanding the above, the first
90% of $10,000,000 indemnity LIMIT shall be reinstated by the COMPANY
free of charge.
Nevertheless, the REINSURERS liability in any one claim shall never
exceed 90% of $10,000,000 ULTIMATE NET LOSS plus pro rata LOSS
ADJUSTMENT EXPENSES in respect of COVERAGE B.
C. Maximum Premium: As respects each contract year, the Maximum Premium
shall equal the product of the Minimum Premium multiplied by 2 (two).
ARTICLE X: COVERAGE B CEDING COMMISSIONS
The REINSURERS shall pay to the COMPANY 17.5% of all COVERAGE B Minimum Premium
and Reinstatement Premium payable hereon by the COMPANY at the time the COMPANY
pays such premiums.
ARTICLE XI: OFFSET
The COMPANY 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 are on account of premiums or losses or otherwise.
ARTICLE XII: ACCESS TO RECORDS
A. The COMPANY shall place at the disposal of the REINSURER at all
reasonable time, and the REINSURER shall have the right to inspect,
through authorized representatives, all books, records, policies,
endorsements and papers of the COMPANY in connection with any
resinsurance hereunder, or claims in connection herewith.
B. The REINSURER agrees that it will not disclose any confidential
information obtained by it hereunder to parties not subject to this
Contract except under the following circumstances and then only when
necessary:
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1. When disclosure of such information is required in the normal
course of the REINSURERS business; or
2. With the prior written consent of the COMPANY; or
3. When the REINSURER is required by a subpoena or court order to
disclose such information. The REINSURER shall promptly notify the
COMPANY of any attempt by a third party to obtain from it any such
confidential information.
C. The REINSURER will provide the COMPANY or its designated representative
with such information as the REINSURER and COMPANY may agree is
necessary to the COMPANY'S handling of the business reinsured herein.
D. The obligation contained in this Article shall survive termination of
this Contract.
ARTICLE XIII: LIABILITY OF THE REINSURER
A. The liability of the REINSURER shall follow that of the COMPANY in
every case and be subject in all respects to all the general and
specific stipulations, clauses, waivers and modifications of the
COMPANY'S policies and any endorsements thereon. However, in no event
shall this be construed in any way to provide coverage outside the
terms and conditions set forth in this Contract.
B. Nothing herein shall in any manner create any obligation or establish
any rights against the REINSURER in favor of any third party or any
persons not parties to this Contract.
ARTICLE XIV: NET RETAINED LIABILITY
A. This Contract applies only to that portion of any insurance or
reinsurance which the COMPANY retains net for its own account (prior to
deduction of any underlying reinsurance), and in calculating the amount
of any loss hereunder and also in computing the amount or amounts in
excess of which this Contract attaches only loss or losses in respect
of that portion of any policy which the COMPANY retains net for its own
account shall be included.
B. The amount of the REINSURERS liability hereunder in respect of any loss
or losses shall not be increased by reason of the inability of the
COMPANY to collect from any other reinsurer(s), whether specific or
general, any amounts which may have become due from such reinsurer(s),
whether such inability arises from the insolvency of such other
reinsurer(s) or otherwise.
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ARTICLE XV: DELAYS, ERRORS OR OMISSIONS
Inadvertent delays, errors or omissions made in connections with this Contract
or any transaction hereunder shall not relieve either party from any liability
which would have attached had such delay, error or omission not occurred,
provided always that such error or omission not occurred, provided always that
such error or omission will be rectified as soon as possible after discovery. In
no event shall late notification of any claim, except as provided in the sunset
clause under ARTICLE IV, Section D, by the COMPANY constitute a ground upon
which the REINSURER has been prejudice by such late notice. As used in this
Article, the term "prejudice" shall mean that a different outcome in the
handling of any claim would have resulted but for the untimely notice to
REINSURERS.
ARTICLE XVI: CURRENCY
Whenever the word "Dollars" or the "$" 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.
ARTICLE XVII: FEDERAL EXCISE TAX
If the REINSURER is subject to the FEDERAL EXCISE TAX, the REINSURER agrees to
allow, for the purpose of paying the TAX, up to 1% of the premium payable hereon
to the extent such premium is subject to the TAX. In the event of any return
premium becoming due hereunder, the REINSURER will deduct from the amount of the
return premium the same percentage as it allowed, and the COMPANY or its agents
should take steps to recover the TAX from the U.S.
Government.
ARTICLE XVIII: UNAUTHORIZED REINSURERS
A. If the REINSURER is unauthorized in any state of the United States of
America or the District of Columbia, the REINSURER agrees to fund its
share of the COMPANY'S ceded outstanding loss and LOSS ADJUSTMENT
EXPENSE reserves and ceded incurred but not reported loss reserves and
COVERAGE A return premium accrued by the COMPANY, as determined by the
COMPANY, respectively by:
1. Clean, irrevocable and unconditional letters of credit issued and
confirmed, if confirmation is required by the insurance regulatory
authorities involved, by a bank or banks meeting the NAIC
Securities Valuation Office credit standards for issuers of
letters of credit and acceptable to said insurance regulatory
authorities; and/or
2. Trust accounts in conformity with New York Regulation 114 for the
benefit of the COMPANY and as may be required by any other
insurance regulatory authority; and/or
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3. Cash advances;
if without such funding, a penalty would accrue to the COMPANY on
any financial statement it is required to file with the insurance
regulatory authorities involved. The REINSURER, at its sole
option, may fund in other than cash if its method and form of
funding are acceptable to the insurance regulatory authorities
involved and the COMPANY.
B. With regard to funding in whole or in part by letters of credit, it is
agreed that each letter of credit will be in a form acceptable to
insurance regulatory authorities involved, will be issued for a term of
at least one year and will include an "evergreen clause" which
automatically extends the term for at least one additional year at each
expiration date unless written notice of non-renewal is given to the
COMPANY not less than 30 days prior to said expiration date. The
COMPANY and the REINSURER further agree, notwithstanding anything to
the contrary in this Contract, that said letters of credit may be drawn
upon by the COMPANY or its successors in interest at any time, without
diminution because of the insolvency of the COMPANY or the REINSURER,
but only for one or more of the following purposes.
1. To reimburse itself for the REINSURER'S share of losses and/or
LOSS ADJUSTMENT EXPENSES paid under the terms of policies
reinsured hereunder, unless paid in cash by the REINSURER;
2. To reimburse itself for the REINSURER'S share of any COVERAGE A
return premium due and other amounts claimed to be due hereunder,
unless paid in cash by the REINSURER.
3. To fund a cash account in an amount equal to the REINSURER'S share
of any outstanding loss and LOSS ADJUSTMENT EXPENSE reserves and
ceded incurred but not reported loss reserves or COVERAGE A return
premium funded by means of a letter of credit which (a) is under
non-renewal notice, if said letter of credit has not been renewed
or replaced by the REINSURER 10 days prior to its expiration date,
or (b) the REINSURER has failed to increase to the amount
requested by the COMPANY, it being understood that nothing in this
Contract in any way shall restrict or limit the rights of the
COMPANY under the terms of the letter of credit;
4. To refund to the REINSURER any sum in excess of the actual amount
required to fund the REINSURER'S share of the COMPANY'S ceded
outstanding loss and LOSS ADJUSTMENT EXPENSE reserves and ceded
incurred but not reported loss reserves or COVERAGE A return
premium, if so requested by the REINSURER.
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In the event the amount drawn by the COMPANY on any letter of
credit is in excess of the actual amount required for B(1) or
B(3), or in the case of B(2), the actual amount determined to be
due, the COMPANY shall promptly return to the REINSURER the excess
amount so drawn.
ARTICLE XIX: INSOLVENCY
A. In the event of the INSOLVENCY of the COMPANY, this reinsurance shall
be payable directly to the COMPANY or to its liquidator, receiver,
conservator or statutory successor immediately upon demand, with
reasonable provision for verification, on the basis of the liability of
the COMPANY without diminution because of the INSOLVENCY of the COMPANY
or because the liquidator, receiver, conservator or statutory successor
of the COMPANY has failed to pay all or a portion of any claim. It is
agreed, however, that the liquidator, receiver, conservator or
statutory successor of the COMPANY shall give written notice to the
REINSURER of the pendency of a claim against the COMPANY indicating the
policy or bond reinsured which claim would involve a possible liability
on the part of the REINSURER within a reasonable time after such claim
is filed in the conservation or liquidation proceeding or in the
receivership, and that during the pendency of such claim, the REINSURER
may investigate such claim and interpose, at its own expense, in the
proceeding where such claim is to adjudicated, any defense or defenses
that it may deem available to the COMPANY or its liquidator, receiver,
conservator, or statutory successor. Accidental failure to give such
notice shall not excuse the obligation unless REINSURERS are
substantially prejudiced by the failure to give such notice. The
expense thus incurred by the REINSURER shall be chargeable, subject to
the approval of the Court, against the COMPANY as part of the expense
of conservation or liquidation to the extent of a pro rata share of the
benefit which may accrue to the COMPANY solely as a result of the
defense undertaken by the REINSURER.
B. Where two or more reinsurers are involved in the same claim and a
majority in interest elect to interpose defense to such claim, the
expense shall be apportioned in accordance with the terms of this
Contract as though such expense had been incurred by the COMPANY.
C. It is further understood and agreed that, in the event of the
INSOLVENCY of the COMPANY, the reinsurance under this Contract shall be
payable directly by the REINSURER to the COMPANY or to its liquidator,
receiver or statutory successor.
15
16
ARTICLE XX: ARBITRATION
A. As a condition precedent to any right of action hereunder, in the event
of any dispute or difference of opinion hereafter arising with respect
to this Contract, it is hereby mutually agreed that such dispute or
difference of opinion shall be submitted to ARBITRATION. One Arbiter
shall be chosen by the COMPANY, the other by the REINSURER, and an
Umpire shall be chosen by the two Arbiters before they enter upon
ARBITRATION, all of whom shall be active or retired disinterested
executive officers of insurance or reinsurance companies. In the event
that either party should fail to choose an Arbiter within 30 days
following a written request by the other party to do so, the requesting
party may choose two Arbiters who shall in turn choose an Umpire before
entering upon ARBITRATION. If the two Arbiters fail to agree upon the
selection of an Umpire within 30 days following their appointment, each
Arbiter shall nominate three candidates within 10 days thereafter, two
of whom the other shall decline, and the decision shall be made by
drawing lots. Nothing herein shall prevent either party from commencing
a proceeding in the United States District Court having jurisdiction
over the dispute for the purposes of having said court select an Umpire
pursuant to the Federal Arbitration Act 9 USC 1 er seq.
B. Each party shall present its case to the Arbiters within 30 days
following the date of appointment of the Umpire. The Arbiters shall
consider this Contract as an honorable engagement rather than merely as
a legal obligation and they are relieved of all judicial formalities
and may abstain from following the strict rules of law. The decision of
the Arbiters shall be final and binding on both parties; but failing to
agree, they shall call in the Umpire and the decision of the majority
shall be final and binding upon both parties. Judgment upon the final
written decision of the Arbiters may be entered in any court of
competent jurisdiction.
C. 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 COMPANY to each of the
reinsurers constituting one party, provided, however, 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 participating under the terms of this
Contract from several to joint.
D. Each party shall bear the expense of its own Arbiter, and shall jointly
and equally bear with the other the expense of the Umpire and of the
ARBITRATION. In the event that the two Arbiters are chosen by one
party, as above provided, the expense of the Arbiters, the Umpire and
the ARBITRATION shall be equally divided between the two parties.
E. Any ARBITRATION proceedings shall take place at a location in
Lawrenceville, New Jersey. All proceedings pursuant hereto shall be
governed by the law of the State of New Jersey.
16
17
ARTICLE XXI: SERVICE OF SUIT
A. It is agreed that in the event of the failure of the REINSURER hereon
to pay any amount claimed to be due hereunder, the REINSURERS hereon,
at the request of the COMPANY, will submit to the jurisdiction of a
court of competent jurisdiction within the United States. The foregoing
shall not constitute a waiver of the right of the REINSURERS to
commence any suit in, or to remove, remand or transfer any suit to any
other court of competent jurisdiction in accordance with the applicable
statutes of the state or United States pertinent thereto.
B. It is further agreed that service of process in such suit may be made
upon Xxxxx & Tract, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000-0000, Xxxxxx
Xxxxxx of America, and that in any suit instituted against any one of
them upon this Contract, the REINSURER will abide by the final decision
of such Court or of any Appellate Court in the event of an appeal.
C. The above named are authorized and directed to accept service of
process on behalf of the REINSURER in any suit and/or upon the request
of the COMPANY to give a written undertaking to the COMPANY that they
will enter a general appearance upon the REINSURERS behalf in the event
such suit shall be instituted.
D. Further, pursuant to any statute of any state, territory or District of
the United States which makes provision therefor, the REINSURER hereon
hereby designate the Superintendent, Commissioner or Director of
Insurance or other officer specified for that purposes in the statute,
or his successor or successors in office, as their true and lawful
attorney upon whom may be served any lawful proceeding in any action,
suit or proceeding instituted by or on behalf of the COMPANY or any
beneficiary hereunder arising out of this Contract, and hereby
designate the above named as the person to whom said officer is
authorized to mail such process or a true copy thereof.
ARTICLE XXII - INTERMEDIARIES
Medical Brokers, Inc., Pergasus Advisors, Inc. and Xxxxx Xxxxxxxx Ltd. Are
hereby recognized as the INTERMEDIARIES negotiating this Contract for all
business hereunder. All communications (including but not limited to notices,
statements, premium, return premium, commissions, taxes, losses, LOSS ADJUSTMENT
EXPENSE, salvage and loss settlements) relating thereto shall be transmitted to
the COMPANY or the REINSURER through Pegasus Advisors, Inc. Payments by the
COMPANY to the INTERMEDIARIES shall be deemed to constitute payment to the
REINSURER. Payments by the REINSURER to the INTERMEDIARIES shall be deemed to
constitute payment to the COMPANY only to the extent that such payments are
actually received by the COMPANY. Notwithstanding the above, the COMPANY and
REINSURERS hereby agree that all payments will be direct from the REINSURER to
the COMPANY, or from the COMPANY to the REINSURERS, as appropriate.
17
18
INTERESTS AND LIABILITIES AGREEMENT
TO THE
SPECIFIC EXCESS REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 0000
XXXXXXX
XXXXXXX XXXXX-XXXXXXXXX XXXXXXXX XX XXX XXXXXX
LAWRENCEVILLE, NEW JERSEY
(HEREINAFTER REFERRED TO AS THE "COMPANY")
AND
SWISS REINSURANCE COMPANY
(HEREINAFTER REFERRED TO AS THE "REINSURER")
It is hereby mutually agreed that the Reinsurer shall have a 38.23% share in the
interests and liabilities as set forth in the document attached hereto entitled
"SPECIFIC EXCESS REINSURANCE CONTRACT, Effective: January 1, 1995, issued to
Medical Inter-Insurance Exchange of New Jersey". The share of the Reinsurer
shall be separate and apart from the shares of the other reinsurers and shall
not be joint with those of the other reinsurers and the Reinsurer shall in no
event participate in the interest and liabilities of the other reinsurers.
IN WITNESS WHEREOF, the parties hereto, by the respective duly authorized
officers, have executed this Agreement, in triplicate, as of the dates
undermentioned.
In Lawrenceville, New Jersey, this 27th day of September 1996,
For and on Behalf of Medical Inter-Insurance Exchange of New Jersey
By: /S/ Xxxx Xxxxxxxx
----------------------------------------------
In Zurich, Switzerland, this 2nd day of September 1996,
For and on Behalf of Swiss Reinsurance Company
By: /s/ X. Xxxxxxxxx /s/ Xxxxx Xxxx
----------------------------------------------
19
INTERESTS AND LIABILITIES AGREEMENT
TO THE
SPECIFIC EXCESS REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 0000
XXXXXXX
XXXXXXX XXXXX-XXXXXXXXX XXXXXXXX XX XXX XXXXXX
LAWRENCEVILLE, NEW JERSEY
(HEREINAFTER REFERRED TO AS THE "COMPANY")
AND
HANNOVER RUCKVERSICHERUNGS
(HEREINAFTER REFERRED TO AS THE "REINSURER")
It is hereby mutually agreed that the Reinsurer shall have a 32.35% share in the
interests and liabilities as set forth in the document attached hereto entitled
"SPECIFIC EXCESS REINSURANCE CONTRACT, Effective: January 1, 1995, issued to
Medical Inter-Insurance Exchange of New Jersey". The share of the Reinsurer
shall be separate and apart from the shares of the other reinsurers and shall
not be joint with those of the other reinsurers and the Reinsurer shall in no
event participate in the interest and liabilities of the other reinsurers.
IN WITNESS WHEREOF, the parties hereto, by their respective duly authorized
officers, have executed this Agreement, in triplicate, as of the dates
undermentioned.
In Lawrenceville, New Jersey, this 27th day of September 1996,
For and on Behalf of Medical Inter-Insurance Exchange of New Jersey
By: /S/ Xxxx Xxxxxxxx
----------------------------------------------
In Hannover, Germany, this 12th day of September 1996,
For and on Behalf of Hannover Ruckversicherungs
HANNOVER
Ruckversicherungs-Alktiengesellschaft
By: Reference #
----------------------------------------------
XXXXX UND XXXXX 0-000000-0000
Ruckversicherungs-Alktengesellschaft
/s/ X. Xxxxxxx /s/ X. x. Xxxxxxxx
North American Treaty Dpt.-VR 11
20
INTERESTS AND LIABILITIES AGREEMENT
TO THE
SPECIFIC EXCESS REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 0000
XXXXXXX
XXXXXXX XXXXX-XXXXXXXXX XXXXXXXX XX XXX XXXXXX
LAWRENCEVILLE, NEW JERSEY
(HEREINAFTER REFERRED TO AS THE "COMPANY")
AND
UNDERWRITERS REINSURANCE COMPANY
(HEREINAFTER REFERRED TO AS THE "REINSURER")
It is hereby mutually agreed that the Reinsurer shall have a 17.65% share in the
interests and liabilities as set forth in the document attached hereto entitled
"SPECIFIC EXCESS REINSURANCE CONTRACT, Effective: January 1, 1995, issued to
Medical Inter-Insurance Exchange of New Jersey". The share of the Reinsurer
shall be separate and apart from the shares of the other reinsurers and shall
not be joint with those of the other reinsurers and the Reinsurer shall in no
event participate in the interest and liabilities of the other reinsurers.
IN WITNESS WHEREOF, the parties hereto, by the respective duly authorized
officers, have executed this Agreement, in triplicate, as of the dates
undermentioned.
In Lawrenceville, New Jersey, this 27th day of September 1996,
For and on Behalf of Medical Inter-Insurance Exchange of New Jersey
By: /s/ Xxxx Xxxxxxxx
----------------------------------------------
In Woodland Hills, California, this 26th day of August 1996,
For and on Behalf of Underwriters Reinsurance Company
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
21
INTERESTS AND LIABILITIES AGREEMENT
TO THE
SPECIFIC EXCESS REINSURANCE CONTRACT
EFFECTIVE: JANUARY 1, 0000
XXXXXXX
XXXXXXX XXXXX-XXXXXXXXX XXXXXXXX XX XXX XXXXXX
LAWRENCEVILLE, NEW JERSEY
(HEREINAFTER REFERRED TO AS THE "COMPANY")
AND
PMA REINSURANCE COMPANY
(HEREINAFTER REFERRED TO AS THE "REINSURER")
It is hereby mutually agreed that the Reinsurer shall have a 11.77% share in the
interests and liabilities as set forth in the document attached hereto entitled
"SPECIFIC EXCESS REINSURANCE CONTRACT, Effective: January 1, 1995, issued to
Medical Inter-Insurance Exchange of New Jersey". The share of the Reinsurer
shall be separate and apart from the shares of the other reinsurers and shall
not be joint with those of the other reinsurers and the Reinsurer shall in no
event participate in the interest and liabilities of the other reinsurers.
IN WITNESS WHEREOF, the parties hereto, by the respective duly authorized
officers, have executed this Agreement, in triplicate, as of the dates
undermentioned.
In Lawrenceville, New Jersey, this 27th day of September 1996,
For and on Behalf of Medical Inter-Insurance Exchange of New Jersey
By: /s/ Xxxx Xxxxxxxx
----------------------------------------------
In Philadelphia, Pennsylvania, this 25th day of September 1996,
For and on Behalf of PMA Reinsurance Company
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
22
Endorsement I
TERMINATION ENDORSEMENT
FOR
SPECIFIC EXCESS REINSURANCE CONTRACT
EFFECTIVE JANUARY 1, 1995
ISSUED TO
MEDICAL INTER-INSURANCE EXCHANGE OF NEW JERSEY
(HEREINAFTER REFERRED TO AS "COMPANY")
BY
THE SUBSCRIBING REINSURERS
(HEREINAFTER REFERRED TO AS "SUBSCRIBING REINSURERS")
The COMPANY and the SUBSCRIBING REINSURERS hereby mutually agree to terminate
the captioned agreement at the close of December 31, 1995 in accordance with
Article II of the captioned contract.
SUBSCRIBING REINSURERS shall remain liable in respect of policies issued on
January 1, 1995 through December 31, 1995, both days inclusive, on the basis of
underlying coverage in accordance with the captioned contract.
IN WITNESS WHEREOF, the SUBSCRIBING REINSURER has caused this TERMINATION
ENDORSEMENT to be executed by its duly authorized officer on this 2nd day of
September, 1996.
SWISS REINSURANCE COMPANY
By: /s/ X. Xxxxxxxxx /s/ Xxxxx Xxxx
----------------------------------------------
Title:
-------------------------------------------
23
Endorsement I
TERMINATION ENDORSEMENT
FOR
SPECIFIC EXCESS REINSURANCE CONTRACT
EFFECTIVE JANUARY 1, 1995
ISSUED TO
MEDICAL INTER-INSURANCE EXCHANGE OF NEW JERSEY
(HEREINAFTER REFERRED TO AS "COMPANY")
BY
THE SUBSCRIBING REINSURERS
(HEREINAFTER REFERRED TO AS "SUBSCRIBING REINSURERS")
The COMPANY and the SUBSCRIBING REINSURERS hereby mutually agree to terminate
the captioned agreement at the close of December 31, 1995 in accordance with
Article II of the captioned contract.
SUBSCRIBING REINSURERS shall remain liable in respect of policies issued on
January 1, 1995 through December 31, 1995, both days inclusive, on the basis of
underlying coverage in accordance with the captioned contract.
IN WITNESS WHEREOF, the SUBSCRIBING REINSURER has caused this TERMINATION
ENDORSEMENT to be executed by its duly authorized officer on this 12th day of
September, 1996.
HANNOVER RUCKVERSICHERUNGS
HANNOVER
By: Ruckversicherungs-Aktiengesellschaft Reference #:
----------------------------------------------
XXXXX UND XXXXX 0-000000-0000
Title: Ruckversicherungs-Aktiengesellschaft
-------------------------------------------
/s/ X. Xxxxxxx /s/ X. x. Xxxxxxxx
North American Treaty Dpt.-VR 11
24
Endorsement I
TERMINATION ENDORSEMENT
FOR
SPECIFIC EXCESS REINSURANCE CONTRACT
EFFECTIVE JANUARY 1, 1995
ISSUED TO
MEDICAL INTER-INSURANCE EXCHANGE OF NEW JERSEY
(HEREINAFTER REFERRED TO AS "COMPANY")
BY
THE SUBSCRIBING REINSURERS
(HEREINAFTER REFERRED TO AS "SUBSCRIBING REINSURERS")
The COMPANY and the SUBSCRIBING REINSURERS hereby mutually agree to terminate
the captioned agreement at the close of December 31, 1995 in accordance with
Article II of the captioned contract.
SUBSCRIBING REINSURERS shall remain liable in respect of policies issued on
January 1, 1995 through December 31, 1995, both days inclusive, on the basis of
underlying coverage in accordance with the captioned contract.
IN WITNESS WHEREOF, the SUBSCRIBING REINSURER has caused this TERMINATION
ENDORSEMENT to be executed by its duly authorized officer on this 26th day of
August, 1996.
UNDERWRITERS REINSURANCE COMPANY
By: /s/ Xxxxxx Xxxxxxx
----------------------------------------------
Title: Sr. Vice President
-------------------------------------------
25
Endorsement I
TERMINATION ENDORSEMENT
FOR
SPECIFIC EXCESS REINSURANCE CONTRACT
EFFECTIVE JANUARY 1, 1995
ISSUED TO
MEDICAL INTER-INSURANCE EXCHANGE OF NEW JERSEY
(HEREINAFTER REFERRED TO AS "COMPANY")
BY
THE SUBSCRIBING REINSURERS
(HEREINAFTER REFERRED TO AS "SUBSCRIBING REINSURERS")
The COMPANY and the SUBSCRIBING REINSURERS hereby mutually agree to terminate
the captioned agreement at the close of December 31, 1995 in accordance with
Article II of the captioned contract.
SUBSCRIBING REINSURERS shall remain liable in respect of policies issued on
January 1, 1995 through December 31, 1995, both days inclusive, on the basis of
underlying coverage in accordance with the captioned contract.
IN WITNESS WHEREOF, the SUBSCRIBING REINSURER has caused this TERMINATION
ENDORSEMENT to be executed by its duly authorized officer on this ______ day of
January, 1996.
PMA REINSURANCE COMPANY
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------------
Title: Vice President
-------------------------------------------
