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Exhibit (10)(h)
QUOTA SHARE REINSURANCE TREATY AGREEMENT
(the "Agreement")
This Agreement is made and entered into by and between
MERCHANTS INSURANCE COMPANY OF NEW HAMPSHIRE, INC.
Buffalo, NY
(the "Reinsured")
N.A.I.C. Code: 23337
and
THE SUBSCRIBING UNDERWRITING MEMBERS OF LLOYD'S, LONDON
SPECIFICALLY IDENTIFIED ON THE SCHEDULES
ATTACHED TO THIS AGREEMENT
(the "Reinsurer")
in respect of business underwritten in the name of the Reinsured
by
Sureco National, LLC
Manalapan, New Jersey
(the "Program Manager")
under the attached Program Manager Agreement
(the "Program Manager Agreement")
with this Agreement commencing on January 1, 2000
("Commencement Date")
U.S. Classification: U.S. Reinsurance
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TABLE OF CONTENTS
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PREAMBLE IDENTITY OF PARTIES
ARTICLE I BUSINESS COVERED UNDER THIS AGREEMENT
ARTICLE 2 AMOUNT OF COVER
ARTICLE 3 EXCLUSIONS
ARTICLE 4 TERRITORIAL SCOPE
ARTICLE 5 COMMENCEMENT AND TERMINATION
ARTICLE 6 FOLLOW THE FORTUNES
ARTICLE 7 AIDS TO INTERPRETATION
ARTICLE 8 MANAGER APPOINTMENT
ARTICLE 9 NOTICES
ARTICLE 10 PREMIUM AND COMMISSIONS
ARTICLE 11 CONTINGENT COMMISSION
ARTICLE 12 TAX PROVISIONS
ARTICLE 13 PREMIUM ACCOUNTS, REPORTS AND PAYMENTS
ARTICLE 14 CLAIMS AND CLAIMS HANDLING
ARTICLE 15 CURRENCY
ARTICLE 16 EXPIRATIONS
ARTICLE 17 ERRORS AND OMISSIONS
ARTICLE 18 INSOLVENCY OF THE REINSURED
ARTICLE 19 AMENDMENT AND ALTERATIONS
ARTICLE 20 ARBITRATION
ARTICLE 21 SERVICE OF SUIT
ARTICLE 22 INTERMEDIARY
ARTICLE 23 PARTICIPATION
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QUOTA SHARE
REINSURANCE TREATY AGREEMENT
PREAMBLE
This Agreement is made and entered into by and between the Reinsured and the
Reinsurer, as shown on the cover sheet of this Agreement, on the terms and
conditions contained in this Agreement. Except as specifically and expressly
provided for in Article 17 of this Agreement, the provisions of this Agreement
are intended solely for the benefit of the Reinsured and Reinsurer and nothing
in this Agreement shall create or be construed to create any obligations to or
establish any rights against any party to this Agreement in favor of any third
parties whether they be insureds, claimants, or other third parties.
The Reinsured has entered into a Management Agreement with Syndicated Services
Company, Inc. ("Manager") pursuant to which Manager provides services to the
Reinsured regarding the business submitted by the Program Manager to the
Reinsured and is the subject of this Agreement. Manager will provide services to
Reinsured and Reinsurer as respects the business submitted by the Program
Manager as provided in this Agreement.
ARTICLE 1
BUSINESS COVERED UNDER THIS AGREEMENT
This Agreement applies to all "Policies" issued by Program Manager on behalf of
the Reinsured pursuant to the Program Manager Agreement between those parties
dated January 1, 2000. The term "Policies" and "Policy" shall include policies,
contracts, certificates, or binders of insurance including endorsements and
other modifications thereto, issued.
ARTICLE 2
AMOUNT OF COVER
1. QUOTA SHARE
The Reinsured agrees to cede and Reinsurer agrees to accept by way of
quota share reinsurance a 100% (one hundred percent) share
("Reinsurer's Quota Share") of all Loss and Loss Expenses, both as
defined herein.
2. LOSS AND LOSS EXPENSES
The term "Loss" shall mean the actual amount that the Reinsured is
liable to pay for claims, demands or losses under any Policies.
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The term "Loss Expenses" shall mean the actual amount of expenses that
the Reinsured incurs in the investigation, adjustment, appraisal and
defense of all claims, demands, and losses under the Policies,
including costs of any rescission or declaratory judgment action
arising out of or in connection with the Policies, and shall exclude
general office expenses, overheads and salaries of the Reinsured's or
the Program Manager's employees, except for (1) Reinsured's staff
attorneys representing insureds in the defense of claims, demands or
losses and (2) Reinsured's Claims Division personnel to the extent
permitted by the Claims Mandate as defined herein. It is agreed that
external legal costs incurred by the Program Manager shall be payable
by Reinsurers as Loss Expenses where such costs are allocable against
specific claims. Nothing in this Agreement shall be construed as
meaning that Loss and Loss Expenses are not recoverable hereunder until
the ultimate actual loss to the Reinsured has been ascertained.
All salvage and subrogation recoveries actually made by the Reinsured
incident to Loss and Loss Expense payments by Reinsured and all amounts
recoverable under all other reinsurance inuring to the benefit of this
Agreement shall be deducted in arriving at the amount of the
Reinsurer's liability for Loss and Loss Expenses. All salvages,
recoveries and payments recovered or received subsequent to a loss
settlement under this Agreement shall be applied as if recovered or
received prior to said settlement and all necessary adjustments shall
be made by the parties hereto.
The amount of the Reinsurer's liability for Loss and Loss Expenses
shall not be increased by reason of the inability of the Reinsured to
collect from any other Reinsurers, whether specific or general, any
amounts which may have become due from them whether such inability
arises from insolvency of such other Reinsurers or otherwise.
3. EXTRA CONTRACTUAL OBLIGATIONS AND LOSS IN EXCESS OF POLICY
LIMITS
Reinsurer shall pay Reinsurer's Quota Share of any liability incurred
by Reinsured as the result of any Extra Contractual Obligations or Loss
in Excess of Policy Limits, both as defined herein, in addition to any
liability incurred by the Reinsured for Loss or Loss Expenses related
to the claim, demand or loss which generated the Extra Contractual
Obligations or Loss in Excess of Policy Limits.
The term "Extra Contractual Obligations" shall mean those liabilities
of the Reinsured not covered under any other provision of this
Agreement and which arise from the handling of any demand, claim or
loss covered under this Agreement, such liabilities arising because of,
but not limited to, the following: failure by the Reinsured to settle
within the policy limit, or by reason of alleged or actual
negligence or bad faith in rejecting an offer of settlement or in the
preparation of the defense or in the trial of any action against its
insured or in the preparation or prosecution of an appeal consequent
upon such action.
The term "Loss in Excess of Policy Limits" shall mean any liability of
the Reinsured arising because of failure to settle within the policy
limit or by reason of alleged or actual
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negligence, or bad faith in rejecting an offer of settlement or in the
preparation of the defense or in the trial of any action against its
insured or in the preparation or prosecution of any appeal consequent
upon such action.
The date on which any Extra Contractual Obligations or Loss in Excess
of Policy Limits is incurred by the Reinsured shall be deemed to be the
date of the insured's demand, claim, or loss under the Policy. Extra
Contractual Obligations and Loss in Excess of Policy Limits shall not
include any liabilities incurred by the Reinsured due to the fraud of a
member of its Board of Directors or one or more of its officers acting
individually or collectively or in collusion with any individual or any
other organization or party involved in the presentation, defense, or
settlement of any demand, claim or loss covered under this Agreement.
4. INDEMNIFICATION OF REINSURED
(a) Reinsurer shall indemnify, defend, and hold harmless the
Reinsured and Reinsured's directors, officers, employees, agents,
and representatives, for Reinsurer's Quota Share of any demand,
claim, loss, expense, cost, or liability, including reasonable
attorney's fees, arising out of or in connection with (1) the
errors or omissions of Manager, Program Manager, or the Claims
Handling Facility or (2) Manager, Program Manager or Claims
Handling Facility following the instructions, directions, or
procedures of the Reinsurer or Reinsured.
(b) In the event of the Program Manager discontinuing the servicing
of this Program for any reason then Reinsurer agree to pay their
Quota Share of the ongoing costs for such servicing.
(c) Reinsurer will pay their Quota Share of any penalties, fines or
other regulatory or statutory restitutions imposed on the
Reinsured by operation of this Agreement.
ARTICLE 3
EXCLUSIONS
This Agreement does not apply to and absolutely excludes the following:
1. All liability of the Reinsured 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
guarantee 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
Reinsured of part or all of any claim, debt, charge, fee or other
obligation of any 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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2. Business excluded by the attached Nuclear Incident Exclusion Clauses -
Liability Reinsurance, USA, and Canada, N.M.A. 1590 and 1979a and the
Nuclear Energy Risks Exclusion Clause (Reinsurance) (1984) (Worldwide
excluding U.S.A. and Canada), N.M.A. 1975a, copies of which are
attached.
3. Financial guarantee and insolvency insurance policies or business.
4. Any liability of the Reinsured arising as a result of its participation
in any pool or syndicate, except for intercompany transactions by and
between affiliates and except for any assessments imposed upon the
Reinsured arising from the Reinsured's involuntary share of any
Insurance Plan relating to Policies issued by the Program Manager on
behalf of the Reinsured shall be covered hereunder.
ARTICLE 4
TERRITORIAL SCOPE
The territorial scope of this Agreement shall be the same as that of the
Policies.
ARTICLE 5
COMMENCEMENT AND TERMINATION
This Agreement takes effect at 12:01 a.m. on the Commencement Date and applies
to Policies incepting on or with renewal dates on or after the Commencement
Date. This Agreement shall remain in full force and effect unless canceled at
12:01 a.m. on any subsequent anniversary of the Commencement Date by either
party giving to the other not less than twenty-four (24) months prior notice in
writing.
In the event of cancellation of this Agreement, all ceded Policies in force as
of the effective time and date of cancellation including any written during the
period of notice shall remain covered under this Agreement until their earliest
individual lawful non-renewal or termination, whichever occurs first. Reinsurer
shall follow the fortunes of the Reinsured with respect to the cancellation or
non-renewal of any Policies, it being the intention that the liability of
Reinsurer continue until all ceded Policies and legally required renewals
thereof expire, including any endorsements, including discovery, which extend
coverage under these policies.
The Policies shall be allocated to separate Agreement Years, each for twelve
months commencing at 12:01 a.m. on the Commencement Date and each anniversary
date thereof. Policy renewals shall be allocated to the Agreement Year in which
the renewal incepts. Discovery period endorsements and extended reporting
endorsements shall be allocated to the same Agreement Year as the expiring
Policies to which they attach.
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On or after the first anniversary of the Commencement Date, the Schedules
attached to the Program Manager Agreement may be amended by the Reinsurer on
behalf of the Reinsured provided that such amendments do not alter the rights
and obligations found in the body of the Program Manager Agreement to which the
Schedules are attached and provided they do not contravene any legal or
regulatory requirement to which the Reinsured is subject, which has been
confirmed in writing by the Reinsured. Amendments to the Schedules attached to
the Program Manager Agreement shall be subject to the terms of the Program
Manager Agreement governing amendments.
In addition to the above, at January 1, 2001 and each anniversary date thereof,
the rates to be used for Policies subject to this Agreement during the
subsequent twelve (12) month period shall be agreed by Reinsurers. Should the
Reinsurers and the Program Manager be unable to mutually agree the rates, this
Agreement shall be terminated at the anniversary date by either party giving to
the other not less than one hundred twenty (120) days prior notice in writing.
ARTICLE 6
FOLLOW THE FORTUNES
This Agreement shall be construed as an honorable undertaking between the
Reinsured and the Reinsurer and is not to be defeated by technical legal
constructions, it being the intention that the liability of the Reinsurer shall
follow the fortunes of the Reinsured's liability in every case and be subject in
all respects to all general and special stipulations, clauses, waivers and
modifications of the Policies and to all judicial or judicially enforceable
determinations of liability arising out of or in connection with the Policies.
ARTICLE 7
AIDS TO INTERPRETATION
This Agreement and the various rights and obligations arising hereunder shall
inure to the benefit of and be binding upon the parties and their respective
successors and permitted assigns. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York, without
regard to its conflicts of laws/rules. In the event that any one or more
provisions contained in this Agreement shall, for any reason, be held to be
invalid, illegal, or unenforceable, such invalidity, illegality, or
unenforceability shall not affect any other provisions of this Agreement and
this Agreement shall be construed as if such invalid, illegal, or unenforceable
provision had never been contained therein. This Agreement may be executed in
multiple counterparts, each of which shall be deemed an original, but all of
which taken together shall constitute one and the same instrument. Article,
paragraph and section headings are inserted for convenience only and shall not
constitute a part of this Agreement in construing or interpreting any provision
hereof. Whenever the context requires, words used in the singular shall be
construed to mean or include the plural and vice versa, and pronouns of any
gender shall be deemed to include and designate the masculine, feminine, or
neuter gender.
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ARTICLE 8
MANAGER APPOINTMENT
Reinsured and Reinsurer jointly appoint Manager to (1) monitor the activities
of, (2) obtain and regularly review information regarding the Policies
underwritten by, and (3) assess the procedures and performance of the Program
Manager to ensure compliance with established guidelines under the Program
Manager Agreement and attached schedules.
ARTICLE 9
NOTICES
All notices and other communications required or permitted under this Agreement
shall be deemed to have been duly given and made if in writing and if served
either by personal delivery to the party for whom intended, facsimile
transmission, courier service, or by being deposited, postage prepaid, certified
or registered mail, return receipt requested, in the official postal service for
the country in which the sender is located, bearing the address shown in this
Agreement for, or such other address as may be designated in writing hereinafter
by such party.
If to Reinsured: ▇▇▇▇▇▇ ▇▇▇, President
Merchants Insurance Company
of New Hampshire, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
With required copy to: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
Syndicated Services Company, Inc.
City Hall Plaza
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
If to Intermediary or Reinsurer: ▇▇▇▇▇▇▇ America, Inc. - Chicago
▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, lL 60601
▇.▇. ▇▇▇▇▇▇▇ & Company, Ltd.
St. Helen's
1 Undershaft
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇
With required copy to: Syndicated Services Company, Inc.
City Hall Plaza
▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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ARTICLE 10
PREMIUM AND COMMISSIONS
The premium payable to the Reinsurer ("Ceded Premium") shall be the Reinsurer's
Quota Share of the Original Gross Premium, as defined herein, for the Policies.
The Reinsurer will allow the Reinsured a ceding commission ("Ceding Commission")
on Ceded Premium as follows:
(a) a commission of 22.0% payable under the Program Manager Agreement;
(b) a 7.0% override payable to the Reinsured to cover board and bureau
fees, taxes, surcharges, surtaxes, assessments and overhead expenses;
(c) the 3% payable to Manager for services performed;
(d) 7.5% payable to the Program Manager in respect of costs incurred in the
operation of the Claims Mandate as more fully outlined in the Mandate
(operated by the designated Claim Facility) attached to the Program
Manager Agreement, which is attached to this Quota Share Agreement.
"Original Gross Premium" as used in this Agreement shall mean the gross written
premium collected by the Reinsured for the Policies less returns and
cancellations.
ARTICLE 11
CONTINGENT COMMISSION:
In addition to the Commission specified in ARTICLE 10 - PREMIUM AND COMMISSIONS
above, the Reinsurer will allow the Reinsured a Contingent Commission of 50.0%
in respect of the combined Cumulative Gross Underwriting Profit for business
written under this Agreement and for policies written under the Quota Share
Reinsurance Agreement between Mutual Service Casualty Insurance Company and the
Reinsurers hereunder. Cumulative Gross Underwriting Profit shall be defined as
the difference between the actual Gross Loss Ratio (being the ratio of paid and
outstanding losses and Loss Expenses plus any involuntary assessments,
surcharges or fees relative to policies written hereunder, plus an Incurred But
Not Reported ("IBNR") factor as scheduled below, plus 10.0% of any subrogation
recoveries paid or payable to the Claim Facility, to the Original Gross Premium
for the Agreement Years in question) and 45.0%, multiplied by the Original Gross
Premium for the Agreement Years in question. Should the Gross Loss Ratio so
calculated exceed 45.0%, no Contingent Commission shall be payable.
Contingent Commission to be calculated at December 31, 2001 and annually
thereafter in respect of Agreement Years expiring 12 months or more prior to the
date of calculation, until in the
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event of termination of this Agreement, all claims are finally settled or
closed. The following IBNR factors will be incorporated in respect of each
Agreement Year:
15% of Original Gross Premium in respect of the Agreement Year
expiring 12 months prior to the date of calculation.
7.5% of Original Gross Premium in respect of the Agreement
Year expiring 24 months prior to the date of calculation.
Nil in respect of Agreement Years expiring 36 months or more,
prior to the date of calculation.
At each calculation date, the Contingent Commission so calculated, less any
amounts previously paid, shall be payable to the Reinsured within 60 days of the
calculation date. Should the Contingent Commission so calculated be less than
the amount previously paid to the Reinsured, the difference being the Return
Profit Commission shall be due and payable by the Reinsured within 60 days of
the calculation date.
The Contingent Commission calculated hereunder shall be apportioned to each
Reinsurance Agreement in the same proportion as the respective 100% Original
Gross Premium ceded to each Reinsurance Agreement under the Reinsurance
Agreement Year to which the calculation applies. Final calculation and
apportionment to be agreed by the Lead Reinsurer on the Reinsurance Agreement
governing this Program, as presented and independently verified by Manager.
It is hereby noted and agreed that all IBNR factors are to be reviewed between
the Program Manager and the Reinsurers on each annual anniversary of this
Agreement. In the event of failure to agree between the parties, the above IBNR
factors shall remain in place.
It is understood and agreed that l ) any Contingent Commission paid by the
Reinsurers to the Reinsured, as aforesaid shall in turn be payable in full by
the Reinsured to the Program Manager named in this Agreement, and 2) any Return
Contingent Commission paid by the Program Manager as aforesaid shall in turn be
paid in full by the Reinsured to the Reinsurers.
ARTICLE 12
TAX PROVISIONS
The Reinsured shall be liable for all taxes except any Federal Excise Tax levied
on Ceded Premium.
Reinsured shall not claim any deduction in respect of Ceded Premium when making
tax returns, other than income or Profits tax returns, to any fiscal authority
of the United States of America or Canada or any State or Territory or
Providence thereof.
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ARTICLE 13
PREMIUM ACCOUNTS. REPORTS AND PAYMENTS
Within l5 days following the end of each month an account is expected to be
received by Manager from the Program Manager which Manager shall forward to the
Reinsured and Reinsurer when received.
Such accounts to Reinsurer shall detail separately for each Agreement Year the
transactions during the month attributable to that Agreement Year as follows:
1. Original Gross Premiums;
2. Ceding Commission;
3. Policy information, individual risk information on each Policy, and
other information reasonably requested by the Reinsurer.
Within 45 days following the end of the month, the Program Manager is expected
to remit to Manager the amount due under the account for that month which shall
be forwarded to the Reinsured and Reinsurer upon receipt.
In the event of a monthly account showing funds due from Reinsurer, Reinsurer
shall remit the amount due to Manager within 45 days following the end of the
month which shall be forwarded to the Reinsured upon receipt.
ARTICLE 14
CLAIMS AND CLAIMS HANDLING
The "Claims Mandate" which is either a part of the Program Manager Agreement or
a separate agreement as determined in the attached documents identifies the
Claims Handling Facility which shall operate in accordance with the Claims
Mandate. The Reinsurer shall abide by all loss settlements and compromises made
on behalf of the Reinsured and Reinsurer by the Claim Handling Facility. All
such settlements and compromises, including ex gratia payments, shall be
unconditionally binding upon the Reinsurer.
ARTICLE 15
CURRENCY
All dollar amounts appearing in this Agreement shall be understood to be in the
currency of the United States of America.
All payments hereunder shall be made in the currency of the United States of
America.
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ARTICLE 16
EXPIRATIONS
In the event the Reinsured becomes the owner of the Program Manager's expiration
rights under the Program Manager Agreement, the Reinsurer shall be entitled to
the Reinsurer's Quota Share of the expiration rights. The Reinsurer agrees to
pay the Reinsurer's Quota Share of any expenses or costs incurred by the
Reinsured in acquiring ownership and control to the expiration rights. Such
expenses and costs to be approved in advance by the Reinsurer.
ARTICLE 17
ERRORS AND OMISSIONS
No inadvertent delay, error or omission shall be held to relieve either party
hereto of any liability which would have attached to them under this Agreement
if such delay, error or omission had not been made, provided that rectification
is made immediately upon discovery.
ARTICLE 18
INSOLVENCY OF THE REINSURED
Amounts due under this Agreement shall be payable by the Reinsurer on the basis
of the liability of the Reinsured under the Policies without diminution because
of the insolvency of the Reinsured.
In the event of the insolvency of the Reinsured, the Liquidator or Receiver or
Statutory Successor of the Reinsured shall give written notice to the Reinsurer
of the pendency of any claim against the insolvent Reinsured on the Policies
within a reasonable time after such claim is filed in the insolvency
proceedings. During the pendency of such claim the Reinsurer may investigate
such claim and intervene, at their own expense, in the proceedings where such
claim is to be adjudicated and interpose any defense or defenses which they may
deem available to the Reinsured or its Liquidator or Receiver or Statutory
Successor. The expense thus incurred by the Reinsurer shall be chargeable,
subject to court approval, against the insolvent Reinsured as part of the
expense of liquidation to the extent of a proportionate share of the benefit
which may accrue to the Reinsured solely as a result of the defense so
undertaken by the Reinsurer.
When two or more Reinsurers are involved in the same claim and a majority in
interest elect to investigate the claim and/or to interpose defense to such
claim, the expense shall be apportioned in accordance with the terms of the
above paragraph as though such expense had been incurred by the Reinsured.
In the event of the insolvency of the Reinsured, the amounts due to the
Reinsured under this Agreement shall be payable by the Reinsurer directly to the
Reinsured or to its Liquidator,
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Receiver or Statutory Successor, except (a) where the Agreement specifically
nominates another payee of such reinsurance in the event of the insolvency of
the Reinsured and (b) where the Reinsurer, with the consent of the Reinsured's
original insureds or reinsured, has assumed such policy obligations of the
Reinsured as direct obligations of the Reinsurer to the payees under such risks
and in substitution for the obligations of the Reinsured to such payees.
ARTICLE 19
AMENDMENTS AND ALTERATIONS
This Agreement and the attached exhibits hereto, if any, embody the entire
agreement and understanding of the parties hereto with respect to the subject
matter hereof, and supersede all prior and contemporaneous agreements and
understandings, oral or written, relative thereto, and may only be changed in
writing, signed by or on behalf of both parties.
ARTICLE 20
ARBITRATION
All disputes arising out of the interpretation, performance or breach of this
Agreement, including the formation or validity thereof, shall be submitted for
decision to a panel of three arbitrators.
One arbitrator shall be chosen by each party and the two arbitrators shall,
before instituting the hearing, choose an impartial third arbitrator who shall
preside at the hearing. If either party fails to appoint its arbitrator within
thirty (30) days after being requested to do so by the other party, the latter,
after ten ( 10) days' notice of its intention to do so, may appoint the second
arbitrator.
If the two arbitrators are unable to agree upon the third arbitrator within
thirty (30) days of their appointment, the third arbitrator shall be selected
from a list of six individuals (three named by each arbitrator), with each
arbitrator eliminating two individuals from the other arbitrator's list, and the
third arbitrator shall be determined by a blind drawing from the two remaining
individuals.
All arbitrators shall be disinterested active or former executive officers of
insurance or reinsurance companies or Underwriters at Lloyd's of London.
Within thirty (30) days after notice of appointment of all arbitrators, the
panel shall meet and determine a schedule for the filing of briefs, discovery
procedures and hearings. The panel shall be relieved of all judicial formality
and shall not be bound by the strict rules of procedure and evidence. Unless the
panel agrees otherwise, arbitration shall take place in Boston, Massachusetts,
but the venue may be changed when deemed by the panel to be in the best interest
of the arbitration proceeding. Insofar as the arbitration panel looks to
substantive law, it shall consider the law of the State of New York. The
decision of any two arbitrators when rendered in writing shall be final and
binding. The panel is empowered to grant interim relief as it may deem
appropriate.
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The panel shall make its decision considering the custom and usage of the
applicable insurance and reinsurance business as promptly as possible following
the termination of the hearings. Judgment upon the award may be entered in any
court having jurisdiction thereof.
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 Reinsured to each of the Reinsurers
constituting the one party, provided 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 under the terms of this
Agreement 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 cost of the third arbitrator. The
remaining costs of the arbitration shall be allocated by the panel. The panel
may, at its discretion, award such further costs and expenses as it considers
appropriate, including not limited to attorney's fees.
ARTICLE 21
SERVICE OF SUIT
This Article applies only to any Reinsurer signatory hereto who is domiciled
outside the United States of America or, should the Reinsured be authorized to
do business in the State of New York, any Reinsurer who is unauthorized in New
York as respects suits instituted in New York.
In the event of the failure of the Reinsurer hereon to pay any amount claimed to
be due hereunder, the Reinsurer hereon, at the request of the Reinsured, shall
submit to the jurisdiction of a court of competent jurisdiction within the
United States. Nothing in this Article constitutes or should be understood to
constitute a waiver of Reinsurer's rights to commence an action in any court of
competent jurisdiction in the United States, to remove an action to a United
States District Court, or to seek a transfer of a case to another court as
permitted by the laws of the United States or of any State in the United States.
It is further agreed that service of process in such suit may be made upon
Mendes & Mount, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, and that in
any suit instituted against any one of them upon this Agreement, Reinsurer shall
abide by the final decision of such court or of any appellate court in the event
of an appeal.
The above-named are authorized and directed to accept service of process on
behalf of Reinsurer in any such suit and/or upon the request of the Reinsured to
give a written undertaking to the Reinsured that they will enter a general
appearance upon Reinsurer's behalf in the event such suit is instituted.
Further, pursuant to any statute of any state, territory or district of the
United States which makes provision therefore, Reinsurer hereon hereby
designates the Superintendent, Commissioner or
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Director of insurance or other officer specified for that purpose in the
Statute, or his successor or successors in office, as their true and lawful
attorney upon whom may be served any lawful process in any action, suit or
proceeding instituted by or on behalf of the Reinsured or any beneficiary
hereunder arising out of this Agreement, and hereby designate the above named as
the person to whom the said officer is authorized to mail such process or a true
copy thereof.
The provisions contained in this Article are not intended in any way to alter
the obligations of the parties to this Agreement to seek arbitration of any
dispute pursuant to the Arbitration Clause contained in this Agreement.
ARTICLE 22
INTERMEDIARY
▇▇▇▇▇▇▇ America, Inc. of Chicago, ▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ and/or ▇.▇. ▇▇▇▇▇▇▇ & Company, Ltd. of St. Helen's, 1 Undershaft, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇, is hereby recognized as the Intermediary negotiating this
Agreement. All communications (including but not limited to notices, statements,
premiums, return premiums, commissions, taxes, losses, loss adjustment expenses,
salvages, and loss settlements) relating thereto shall be transmitted to the
Reinsured or the Reinsurer through, ▇▇▇▇▇▇▇ America and/or ▇.▇. ▇▇▇▇▇▇▇.
Payments by the Reinsured to the Intermediary shall be deemed to constitute
payment to the Reinsurer. Payments by the Reinsurer to the Intermediary shall be
deemed to constitute payment to the Reinsured only to the extent that such
payments are actually received by the Reinsured.
ARTICLE 23
PARTICIPATION
This Agreement obligates each of the Reinsurers for its proportion of the
interests and liabilities set forth under this Agreement, such proportions being
shown in the attached Schedules.
The participation of each of the Reinsurers in the interests and liabilities of
this Agreement shall be separate and apart from the participation of the other
Reinsurers and shall not be joint with those of the other Reinsurers, and each
of the Reinsurers shall in no event participate in the interests and liabilities
of the other Reinsurers.
16
SIGNING SCHEDULE
attaching to and forming part of the
QUOTA SHARE REINSURANCE TREATY AGREEMENT
effective
January 1, 2000
entered into between
MERCHANTS INSURANCE COMPANY OF NEW HAMPSHIRE, INC.
Buffalo, NY
in respect of business underwritten in the name of the Reinsured
Sureco National, LLC
Manalapan, New Jersey
and the Reinsurers as designated below
Executed in Buffalo, New York this March 31st, day of 2000
For and on behalf of:
MERCHANTS INSURANCE COMPANY OF NEW HAMPSHIRE, INC.
Executed in London, England on the date as detailed on the Schedule attached
hereto
For the 100% amount appearing in Article 2
Reinsurers' shares hereon in respect of Schedule A of the
attached Program Manager Agreement.
For and on behalf of:
UNDERWRITING MEMBERS OF LLOYD'S