EXHIBIT 10.38
REINSURANCE AGREEMENT
BETWEEN
RANGER INSURANCE COMPANY
AND
THE NORTH RIVER INSURANCE COMPANY
EFFECTIVE MARCH 1, 1999
INDEX
ARTICLE DESCRIPTION PAGE
------- ----------- ----
Business Covered............................................
1 1
Term........................................................
2 1
Territory...................................................
3 1
Limit of Liability..........................................
4 1
Excess of Loss Reinsurance..................................
5 1
Ultimate Net Loss...........................................
6 1
Cash Call Provision.........................................
7 2
Extra Contractual Obligations...............................
8 2
Excess of Policy Limits.....................................
9 2
Follow the Fortunes.........................................
10 2
Errors and Omissions........................................
11 3
Ceding Commission...........................................
12 3
Reports and Remittances.....................................
13 3
Arbitration.................................................
14 3
Insolvency..................................................
15 4
Offset......................................................
16 4
Currency....................................................
17 4
Assignment..................................................
18 4
Regulatory Approvals........................................
19 4
Books and Records...........................................
20 4
Counterparts................................................
21 5
Governing Law...............................................
22 5
Headings....................................................
23 5
Entire Agreement, Amendments and Waivers....................
24 5
Validity and Enforceability of Agreement....................
25 5
REINSURANCE AGREEMENT
This
Reinsurance Agreement ("Agreement") is effective as of March 1, 1999
by and between The North River Insurance Company, a
New Jersey insurance company
(hereinafter known as the "COMPANY") and Ranger Insurance Company, a Delaware
insurance company (hereinafter known as the "REINSURER").
WHEREAS, the Reinsurer desires to reinsure certain excess liability
policies for municipalities of the Company and the Company desires that the
Reinsurer reinsure such business to the extent and upon the terms and conditions
set forth herein;
NOW THEREFORE, in consideration of the mutual covenants and promises
contained herein and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
ARTICLE ONE -- BUSINESS COVERED
The COMPANY obligates itself to cede one hundred percent (100%) of direct
written premiums and the REINSURER obligates itself to accept one hundred
percent (100%) of direct written premiums, as reinsurance, from the COMPANY for
all businesses classified as excess liability for public entities under any and
all binders, policies and contracts of insurance arranged or brokered through
Ranger Insurance Managers, Inc., a subsidiary of the Reinsurer, for the COMPANY,
which incept, renew or have an anniversary date on or after 12:01 a.m. Eastern
Time on March 1, 1999 and such polices which may hereafter come into force
during the term of this Agreement (hereinafter referred to as "Policy" or
"Policies" as appropriate), subject to exclusions, limitations and conditions
herein.
ARTICLE TWO -- TERM
This Agreement shall take effect as of 12:01 a.m., Eastern Time, March 1,
1999, and shall continue in full force and effect until all obligations and
liabilities incurred by the REINSURER and the COMPANY under the Agreement are
fully performed and discharged. The COMPANY may terminate this Agreement by
providing the REINSURER ninety (90) days prior written at any time. All
remaining liabilities under this Agreement may be commuted at any time, however,
subject to and upon agreement by both the COMPANY and the REINSURER.
ARTICLE THREE -- TERRITORY
This Agreement shall cover wherever the COMPANY'S Policies cover.
ARTICLE FOUR -- LIMIT OF LIABILITY
The COMPANY shall cede and the REINSURER shall accept, as reinsurance, one
hundred percent (100%) of the liability of all paid losses, associated allocated
loss adjustment expense, case reserve and any attributable IBNR including
associated allocated loss adjustment expense pertaining to the Policies covered
as defined in Article One of this Agreement.
ARTICLE FIVE -- EXCESS OF LOSS REINSURANCE
The REINSURER warrants to obtain and to maintain in effect during the term
of this Agreement, reinsurance coverage up to the full limit of liability for
all policies covered as defined in Article One of this Agreement, in which the
COMPANY is identified as a "named insured" for any paid loss and paid allocated
loss adjustment expense arising out of all business covered as defined in
Article One of this Agreement.
ARTICLE SIX -- ULTIMATE NET LOSS
"Ultimate Net Loss" shall mean the actual loss paid or payable by the
COMPANY in settlement of losses or liability including any extra contractual
obligations loss as defined in Article Eight-Extra Contractual Obligations
and/or excess of original policy limits loss as defined in Article Nine-Excess
of Policy Limits, after making deduction for all recoveries, all salvages and
all claims upon other reinsurances and shall include all allocated loss
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adjustment expense, legal expense, and all legal expense paid as a result of any
declaratory judgement actions brought to determine the COMPANY'S defense and/or
indemnification obligations under the Policies subject to this Agreement and all
other expenses arising from the handling and/or settlement of claims other than
salaries of employees (staff counsel shall not be considered salaried employees
for the purposes of this Agreement) and office expenses of the COMPANY. Any
declaratory judgment action expenses shall be deemed to have been fully incurred
on the same date as the original loss or effective date of the policy giving
rise to the action.
ARTICLE SEVEN -- CASH CALL PROVISION
Should the payment due from the Reinsurer exceed one hundred thousand
dollars ($100,000) as respects any one loss, the Company may give the Reinsurer
notice of payment made or its intention to make payment on a certain date. The
Reinsurer shall remit to the Company within 5 business days upon request for
payment of Ultimate Net Loss according to Article Six of this Agreement.
ARTICLE EIGHT -- EXTRA CONTRACTUAL OBLIGATIONS
This Agreement shall protect the Company for 100% of Extra Contractual
Obligations, as set forth in Article Six, Ultimate Net Loss. The term "extra
contractual obligations" is defined as those liabilities not covered under any
other provision of this Agreement and which arise from the handling of any claim
on the Policies, such liabilities arising because of, but not limited to,
failure by the COMPANY to settle within policy limits, or by reason of alleged
or actual negligence, fraud, misconduct 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 reinsured or in the preparation or prosecution of an
appeal consequent upon such action.
The date on which any extra contractual obligation is incurred by the
COMPANY shall be deemed, in all circumstances, to be the date of the original
loss or the effective date of the policy.
ARTICLE NINE -- EXCESS OF POLICY LIMITS
With respect to third party insurance of any kind this Agreement shall
protect the COMPANY for 100% in connection with Ultimate Net Loss as defined in
Article Six, in excess of the limit of any of the Policies, such loss in excess
of the limit having been incurred because of failure by the COMPANY to settle
within the policy limits or by reason of alleged or actual negligence,
misconduct, 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
reinsured or in the preparation or prosecution of an appeal consequent upon such
action.
For the purposes of this Article Nine, 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 Policy.
ARTICLE TEN -- FOLLOW THE FORTUNES
It is agreed that any reinsurance afforded hereunder is subject to the
terms and conditions of the Policy or Policies and automatically follows all
changes in coverage and all endorsements made a part of such Policy or Policies,
or any of the COMPANY'S evidences of liability subject to the other terms and
conditions of this Agreement, as set forth herein. Any increase in limits of
liability made in such Policy or Policies are automatically binding upon the
REINSURER from the date such increase is effective, subject always to the limits
and retention as set forth herein and other terms and conditions of this
Agreement.
The liability of the REINSURER shall be subject in all respects to all
general and specific stipulation, clauses, waivers, extensions, modifications
and endorsements of any of the COMPANY'S Policies, subject to the other terms
and conditions of this Agreement as set forth herein.
Should any regulatory or other legal restriction of any state require a
modification of any Policy to which this Agreement applies, the liability of the
REINSURER shall follow that of the COMPANY under all other terms and conditions
of this agreement.
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ARTICLE ELEVEN -- ERRORS AND OMISSIONS
Inadvertent delays, errors or omissions made in connection with this
Agreement shall not relieve either party from any liability which would have
attached had such delay, error or omission not occurred, provided that such
error or omission shall be rectified as soon as commercially reasonable after
discovery by the COMPANY or the REINSURER.
ARTICLE TWELVE -- CEDING COMMISSION
The COMPANY shall receive a commission allowance of twenty three percent
(23%) of the direct written premium of the Policies subject to this Agreement.
ARTICLE THIRTEEN -- REPORTS AND REMITTANCES
The COMPANY shall render a monthly bordereau account within thirty (30)
days after each calendar month end. This account shall summarize premiums,
return premiums, allowances for commissions, losses paid, and loss adjustment
expenses paid and salvage recovered. The account shall also reflect the net
balance due by either party. The net balance due by either party shall be paid
by the debtor party within thirty (30) days from the date of the report.
Reinsurer acknowledges that the Company and Ranger Insurance Company ("Ranger"),
an affiliated company of Reinsurer, have entered or will enter into a producer
agreement ("Producer Agreement") pursuant to which Ranger will provide agency
services to North River for the public entity business reinsured by this
Agreement. Reinsurer agrees that the monthly bordereau discussed above will net
both the premiums, commission, paid loss and loss adjustment expenses, under the
Producer Agreement and the reinsurance bordereau pursuant to this Agreement. A
single accounting statement will be provided to Reinsurer.
ARTICLE FOURTEEN -- ARBITRATION
Any and all disputes arising out of or relating to this Agreement shall be
submitted for resolution to an independent arbitrator mutually agreed to by the
COMPANY and the REINSURER, upon the written request of the COMPANY or the
REINSURER. If the parties are unable to mutually agree upon an arbitrator within
ten (10) calendar days after delivery of a written request for arbitration, the
COMPANY and the Reinsurer shall each nominate three (3) individuals who have
never been affiliated with any of the parties and who are present or former
executive officers of an insurance or reinsurance company and decline two (2) of
the three (3) individuals nominated by the other, and the list of the remaining
nominees shall be submitted to a court of competent jurisdiction and the court
shall select the arbitrator from among the names submitted. If a party fails to
nominate three (3) individuals within thirty (30) calendar days after being
requested to do so, the other party shall also appoint the second arbitrator and
the two arbitrators shall select the third arbitrator. If the two arbitrators
fail to agree upon the appointment of a third arbitrator within thirty (30)
calendar days after their nominations, the third arbitrator shall be chosen by
the manager of the American Arbitration Association and such third arbitrator
shall be a person who is an active or retired disinterested officer of an
insurance or reinsurance company.
Each party shall submit its case to the arbitrator(s) within thirty (30)
calendar days after the date of appointment of the arbitrator(s). The
arbitrator(s) shall make its determination with regard to the custom and usage
of the insurance and reinsurance business and render a written decision solely
as to the issue presented in the notice of arbitration within sixty (60)
calendar days after such submission. The majority decision of the arbitrators
shall be final and binding in all respects upon all parties hereto. Judgment
upon any award may only be entered in a Federal court of competent jurisdiction
located in the State of
New Jersey; provided, however, that if such judgment
cannot be entered in such a Federal court expeditiously, such judgment only then
may be entered in a state court of competent jurisdiction located in the State
of
New Jersey. Arbitration hereunder shall take place in
New Jersey unless the
COMPANY and the REINSURER agree otherwise. Except as otherwise provided herein,
the COMPANY and the REINSURER shall jointly and equally bear the costs, fees,
disbursements and other expenses of the arbitrator.
It is agreed that the jurisdiction of the arbitrators to make or render any
decision or award shall be limited by the limit of liability expressly herein
before set forth, and that the arbitrators shall have no jurisdiction to make
any decision or render any award exceeding such expressly stated limit of
liability of the REINSURER, nor do
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they have the jurisdiction to authorize any punitive, exemplary or consequential
damage awards between the parties hereto.
ARTICLE FIFTEEN -- INSOLVENCY
In the event of the insolvency, liquidation or rehabilitation of the
COMPANY or the appointment of a conservator, receiver, liquidator or statutory
successor of the COMPANY, an allocable portion of the reinsurance coverage
provided hereunder shall be payable by the REINSURER directly to the COMPANY or
to its conservator, receiver, liquidator or statutory successor, on the basis of
the liability of the COMPANY without diminution because of such insolvency,
liquidation, rehabilitation or appointment or because such conservator,
liquidator or statutory successor has failed to pay all or a portion of any
claims. In any such event, such reinsurance coverage shall be payable
immediately upon demand, with reasonable provision for verification, on the
basis of claims allowed against the COMPANY by any court of competent
jurisdiction or by any conservator, receiver, liquidator or statutory successor.
In any such event, the conservator, receiver, liquidator or statutory successor
of the COMPANY shall give written notice to the REINSURER of the pendency of
each claim against the COMPANY on the Policies within a reasonable time after
each such claim is filed in the insolvency, liquidation or rehabilitation
proceeding. During the pendency of any such claim, the REINSURER may, at its own
expense, investigate such claim and interpose in the proceeding in which such
claim is to be adjudicated any defense or defenses which the REINSURER may
reasonably deem available to the COMPANY or its conservator, receiver,
liquidator or statutory successor. The expenses incurred in connection therewith
by the REINSURER shall be chargeable, subject to court approval, against the
COMPANY as part of the expense of such insolvency, liquidation or rehabilitation
to the extent of any benefit which accrues to the COMPANY solely as a result of
the defense or defenses undertaken by the REINSURER.
ARTICLE SIXTEEN -- OFFSET
The COMPANY and the REINSURER may offset any balance or amount due from one
party to the other under the terms of this Agreement. The party asserting the
right of offset may exercise such right at any time with written approval from
the COMPANY, whether the balances due are related to premiums or losses. In the
event of insolvency of either party, the right of offset shall only be allowed
in accordance with the provisions of the controlling insurance law.
ARTICLE SEVENTEEN -- CURRENCY
Whenever the word "dollar" or the "$" sign appears in this Agreement, they
shall be construed to mean United States Dollars and all transactions under this
Agreement shall be in United States Dollars.
ARTICLE EIGHTEEN -- ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns. Neither
this Agreement nor any right hereunder may be assigned by any party without the
prior written consent of the other party affected thereby, which consent shall
not be unreasonably withheld.
ARTICLE NINETEEN -- REGULATORY APPROVALS
This Agreement may be subject to the non-disapproval or approval of certain
state insurance departments and, if so, may be subject to such terms and
conditions thereof as may be required by such state insurance departments to
alter or amend this agreement. Any amendments thereof, shall not change the
substance and or intent to this Agreement and the parties shall deem the
amendments acceptable.
ARTICLE TWENTY -- BOOKS AND RECORDS
The COMPANY and the REINSURER and their respective duly authorized
representatives shall, at all reasonable times, each be permitted access to all
books and records of the other pertaining to the Policies reinsured pursuant to
the provisions of this Agreement.
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ARTICLE TWENTY-ONE -- COUNTERPARTS
This Agreement may be executed in multiple counterparts, each of which
shall be deemed an original for all purposes and all of which shall be deemed,
collectively, one and the same instrument and agreement.
ARTICLE TWENTY-TWO -- GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the
laws of the State of
New Jersey without regard to its principles of choice of
law.
ARTICLE TWENTY-THREE -- HEADINGS
The headings of the Articles and paragraphs herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
ARTICLE TWENTY-FOUR -- ENTIRE AGREEMENT, AMENDMENTS AND WAIVERS
This Agreement constitutes the entire agreement between the parties
pertaining to the subject matter hereof and supersedes all prior agreements,
understandings, negotiations and discussions, whether oral or written, between
the parties hereto. No supplement, modification, amendment or waiver of this
Agreement shall be binding unless executed in writing by the party to be bound
thereby. No waiver of any of the provisions of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar), nor shall such waiver constitute a continuing waiver unless otherwise
expressly provided.
ARTICLE TWENTY-FIVE -- VALIDITY AND ENFORCEABILITY OF AGREEMENT
If any provision of this Agreement shall be rendered illegal or
unenforceable by the laws, regulations or public policy of any state, such
provision shall be considered void in such state, but this shall not affect the
validity or enforceability of any other provision of this Agreement or the
enforceability of such provision in any other jurisdiction.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on their behalf by their respective officers hereunto duly authorized
as of the date first written above.
The North River Insurance Company Ranger Insurance Company
By: /s/ XXXXXXX XXXXXXXX By: /s/ XXXXX X. XXXXXX
---------------------------------------- ----------------------------------------
Name: Xxxxxxx Xxxxxxxx Name: Xxxxx X. Xxxxxx
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Title: CFO Title: CVO
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