AGGREGATE LOSS RATIO REINSURANCE AGREEMENT
BETWEEN
NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PA.
(HEREAFTER CALLED THE "RETROCEDENT")
AND
GRANITE REINSURANCE COMPANY, LTD.
(HEREINAFTER CALLED THE "RETROCESSIONAIRE")
INDEX
ARTICLE SUBJECT PAGE
I BUSINESS COVERED........................ 1.
II TERM AND TERMINATION.................... 1.
III TERRITORY............................... 1.
IV COVERAGE................................ 1.
V LIMIT OF LIABILITY ..................... 1.
VI PREMIUM................................. 2.
VII DEFINITIONS............................. 2.
VIII REPORTS AND ACCOUNTING ................ 2.
IX TRUST FUND.............................. 2.
X COVENANTS............................... 2.
XI SERVICE OF SUIT......................... 3.
XII ACCESS TO RECORDS....................... 3.
XIII ARBITRATION............................. 3.
XIV CONFIDENTIALITY......................... 4.
XV ERRORS AND OMISSIONS .................. 4.
XVI FEDERAL EXCISE TAX...................... 4.
XVII FOLLOW THE FORTUNES..................... 4.
XVIII GOVERNING LAW........................... 5.
XIX INSOLVENCY.............................. 5.
XX OFFSET.................................. 5.
XXI SEVERABILITY............................ 6.
XXII SPECIAL TERMINATION OR SETTLEMENT....... 6.
XXIII CURRENCY REVALUATION.................... 7.
AGGREGATE LOSS RATIO REINSURANCE AGREEMENT
BETWEEN
NATIONAL UNION FIRE INSURANCE COMPANY OF
PITTSBURGH, PA.
(HEREINAFTER CALLED THE "RETROCEDENT")
AND
GRANITE REINSURANCE COMPANY, LTD.
(HEREINAFTER CALLED THE "RETROCESSIONAIRE")
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ARTICLE I BUSINESS COVERED
--------- ----------------
All liability assumed under Quota Share Reinsurance Agreements from Superior
Insurance Company and its wholly-owned insurance subsidiaries and Pafco General
Insurance Company effective January 1, 2000.
ARTICLE II TERM AND TERMINATION
---------- --------------------
Effective from 12:01 a.m. Eastern Standard Time January 1, 2000 until all
liabilities are finalized.
ARTICLE III TERRITORY
----------- ---------
As per the Underlying Agreements.
ARTICLE IV COVERAGE
---------- --------
The Retrocessionaire shall be liable separately for each Reinsurance Agreement,
for losses incurred (including all Loss Adjustment Expenses) in excess of a loss
ratio of 79%. All terms & conditions of the Underlying Agreements, copies
attached hereto, shall apply.
ARTICLE V LIMIT OF LIABILITY
--------- ------------------
The Retrocessionaire shall be liable separately for each Reinsurance Agreement,
for 18% of earned premium on each Underlying Agreement, however, not in excess
of 6% of the combined earned premium on the Underlying Agreements.
ARTICLE VI PREMIUM
---------- -------
The Retrocedent shall pay an initial deposit premium of $10,000 within 15 days
of receipt of the first cash premium payment received on any of the Underlying
Agreements. The final premium shall be 12.5% of the premium cash payments
received and the difference between that premium and the deposit premium shall
be paid upon the finalization of all liabilities in accordance with the
Underlying Agreements. In addition the Retrocedent shall pay 100% of the payment
received upon the finalization of the liabilities in accordance with the
Underlying Agreements. Such payment shall be made within 30 days of receipt of
the payment on the Underlying Agreements. However, no payment shall be made
after the deposit premium unless all conditions of this agreement have been
complied with.
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ARTICLE VII DEFINITIONS
----------- -----------
Loss Ratio, shall be in accordance with the Underlying Agreements.
ARTICLE VIII REPORTS AND ACCOUNTING
------------ ----------------------
The Retrocedent shall forward to the Retrocessionaire a copy of all reports
received in accordance with the Underlying Agreements within 10 days of their
receipt. In the event the paid loss (including all loss adjustment expenses) are
in excess of 79% of the earned premium on any individual agreement, the
Retrocessionaire shall pay such excess within 5 days of receipt of the accounts
statement, however, not in excess of the limit of liability.
ARTICLE IX TRUST FUND
---------- ----------
The Retrocessionaire shall establish a Trust Account acceptable to regulatory
authorities of the Retrocedent. The deposit shall be $1 million and shall be
made upon the execution of this agreement. In the event the Loss Ratio on any of
the Underlying Agreements is in excess of 79%, the Retrocessionaire shall
deposit additional securities to increase the Trust Account, if necessary, to
the amount calculated as follows: the combined results, calculated separately
for each agreement, of the difference between the Loss Ratio and 79%; plus, the
ratio of unallocated loss adjustment expenses times the earned premium on the
Underlying Agreements, however, not in excess of the limit of liability. Such
deposit shall be made within 10 days of request by the Retrocedent. All deposits
shall be released upon the finalization of all liabilities.
A letter of credit acceptable to regulatory authorities may be utilized in place
of a Trust Account. In the event the Retrocessionaire or the bank issuing the
letter of credit gives notice of their intent not to extend the Letter of Credit
at any anniversary date, without the approval of the Retrocedent, the full
amount of the Letter of Credit shall be considered due and payable immediately.
ARTICLE X COVENANTS
--------- ---------
It is understood and agreed that the Retrocessionaire will not enter any new
reinsurance agreements without approval of Retrocedent.
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ARTICLE XI SERVICE OF SUIT
--------- ----------------
A. It is agreed that in the event of the failure of the Retrocessionaire hereon
to pay any amount claimed to be due hereunder, the Retrocessionaire hereon, at
the request of the Retrocedent, will submit to the jurisdiction of a court of
competent jurisdiction within the United States. Nothing in this clause
constitutes or should be understood to constitute a waiver of Retrocessionaire'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, Retrocessionaire will abide by the final decision of
such court or of any Appellate Court in the event of an appeal.
B. The above-named are authorized and directed to accept service of process on
behalf of Retrocessionaire in any such suit and/or upon the request of the
Retrocedent to give a written undertaking to the Retrocedent that they will
enter a general appearance upon Retrocessionaire's behalf in the event such a
suit shall be instituted.
C. Further, pursuant to any statute of any state, territory or district of the
United States which makes provision therefore, Retrocessionaire hereon hereby
designate the Superintendent, Commissioner or 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 Retrocedent or any beneficiary hereunder arising out of this contract of
reinsurance, and hereby designate the above-named Mendes & Mount as the person
to whom the said officer is authorized to mail such process or a true copy
thereof.
ARTICLE XII ACCESS TO RECORDS
--------- -----------------
The Retrocessionaire, or its duly authorized representative, shall have free
access at all reasonable times during and after the currency of this agreement,
to books and records maintained by any of the division, department and branch
offices of the Retrocedent which are involved in the subject matter of this
Agreement and which pertain to the reinsurance provided hereunder and all claims
made in connection therewith. Notwithstanding the provisions of the preceding
sentence, if undisputed balances due from the Retrocessionaire under this
Agreement have not been paid for the two most recent reported calendar quarters,
the Retrocessionaire shall not have access to any of the Retrocedent's records
relating to this Agreement without the specific consent of the Retrocedent.
ARTICLE XIII ARBITRATION
--------- -----------
A. All disputes or differences arising out of the interpretation of this
Agreement shall be submitted to the decision of two arbitrators, one to be
chosen by each party, and in the event of the arbitrators failing to
agree, to the decision of an umpire to be chosen by the arbitrators. The
arbitrators and umpire shall be disinterested active or retired executive
officials of fire or casualty insurance or reinsurance companies or
Underwriters at Lloyd's, London. If either of the parties fails to appoint
an arbitrator within one month after being required by the other party in
writing to do so, or if the arbitrators fail to appoint an umpire within
one month of a request in writing by either of them to do so, such
arbitrator or umpire, as the case may be, shall at the request of either
party be appointed by a Justice of the Supreme Court of the State of New
York.
B.The arbitration proceeding shall take place in New York, New York. The
applicant shall submit its case within one month after the appointment
of the court of arbitration, and the respondent shall submit its reply
within one month after the receipt of the claim. The arbitrators and
umpire are relieved from all judicial formality and may abstain from
following the strict rules of law. Punitive damages shall not be awarded
by the panel against either party which are apart from the punitive
damages that may be in dispute. They shall settle any dispute under the
Agreement according to an equitable rather than a strictly legal
interpretation of its terms.
C. Their written decision shall be provided to both parties and shall be
final and not subject to appeal.
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D. Each party shall bear the expenses of his arbitrator and shall jointly
and equally share with the other the expenses of the umpire and of the
arbitration.
E. This Article shall survive the termination of this Agreement.
ARTICLE XIV CONFIDENTIALITY
----------- ---------------
All terms and conditions of this Agreement and any materials provided in the
course of inspection shall be kept confidential by the Retrocessionaire as
against third parties, unless the disclosure is required pursuant to process of
law or unless the disclosure is to retrocessionaire's, financial auditors or
governing regulatory bodies. Disclosing or using this information for any
purpose beyond the scope of this Agreement, or beyond the exceptions set forth
above, is expressly forbidden without the prior consent of the Retrocedent.
ARTICLE XV ERRORS AND OMISSIONS
---------- --------------------
Any inadvertent delay, omission or error shall not relieve either party hereto
from any liability which would attach to it hereunder if such delay, omission or
error had not been made, provided such delay, omission or error is rectified
immediately upon discovery.
ARTICLE XVI FEDERAL EXCISE TAX
----------- ------------------
A. The Retrocessionaire has agreed to allow for the purpose of paying the
Federal Excise Tax 1% of the premium payable hereon to the extent such premium
is subject to Federal Excise Tax. B. In the event of any return of premium
becoming due hereunder the Retrocessionaire will deduct 1% from the amount of
the return and the Retrocedent or its agent should take steps to recover the Tax
from the United States Government.
ARTICLE XVII FOLLOW THE FORTUNES
------------ -------------------
A. The Retrocessionaire's liability shall attach simultaneously with that of
the Retrocedent and shall be subject in all respects to the same risks,
terms, conditions, interpretations, waivers, and to the same modification,
alterations and cancellations as the respective insurances (or
reinsurances) of the Retrocedent, the true intent of this Agreement being
that the Retrocessionaire shall, in every case to which this Agreement
applies, follow the underwriting fortunes of the Retrocedent.
B. Nothing shall in any manner create any obligations or establish any rights
against the Retrocessionaire in favor of any third parties or any persons
not parties to this Agreement.
ARTICLE XVIII GOVERNING LAW
------------- -------------
This Agreement shall be governed by and construed in accordance with the laws of
the state of New York.
ARTICLE XIX INSOLVENCY
----------- ----------
A. In the event of the insolvency of the Retrocedent, this reinsurance shall
be payable directly to the Retrocedent, or to its liquidator, receiver,
conservator or statutory successor immediately upon demand on the basis of
the liability of the Retrocedent without diminution because of the
insolvency of the Retrocedent or because the liquidator, receiver,
conservator or statutory successor of the Retrocedent has failed to pay
all or a portion of any
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claim. It is agreed, however, that the liquidator, receiver, conservator
or statutory successor of the Retrocedent shall give written notice to the
Retrocessionaire of the pendency of a claim against the Retrocedent which
would involve a possible liability on the part of the Retrocessionaires,
indicating the policy or bond reinsured, within a reasonable time after
such claim is filed in the conservation or liquidation proceeding or in
the receivership. It is further agreed that during the pendency of such
claim the Retrocessionaire may investigate such claim and interpose, at
their own expense, in the proceeding where such claim is to be
adjudicated, any defense or defenses that they may deem available to the
Retrocedent or its liquidator, receiver, conservator, or statutory
successor. The expense thus incurred by the Retrocessionaire shall be
chargeable, subject to the approval of the Court, against the Retrocedent
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 Retrocedent solely
as a result of the defense undertaken by the Retrocessionaire.
Retrocedent
ARTICLE XX OFFSET
---------- -------
Each party hereto shall have, and may exercise at any time and from time to
time, the right to offset any undisputed balance or balances, whether on account
of premiums or on account of losses or otherwise, due from such party to the
other (or, if more than one, any other) party hereto under this Agreement or
under any other reinsurance agreement heretofore or hereafter entered into by
and between them, and may offset the same against any undisputed balance or
balances due to the former from the latter under the same or any other
reinsurance agreement between them, and the party asserting the right of offset
shall have and may exercise such right whether the undisputed balance or
balances due to such party from the other are on account of premiums or on
account of losses or otherwise and regardless of the capacity, whether as
assuming insurer or as ceding insurer, in which each party acted under the
agreement or, if more than one, the different agreements involved, provided,
however, that, in the event of the insolvency of a party hereto, offsets shall
only be allowed in accordance with the provisions of Section 7427 of the
Insurance Law of the State of New York. Where the Retrocedent is authorized
under the Insurance Companies Act (Canada) to insure in Canada risks, for the
purpose of this Article, the branch of a Retrocedent in Canada shall be
considered as a party separate and distinct from the Retrocedent and the right
of offset provided for in this Article shall belong to and be applied against
that branch as though it were a separate and distinct party.
ARTICLE XXI SEVERABILITY
----------- ------------
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.
ARTICLE XXII SPECIAL TERMINATION OR SETTLEMENT
------------ ---------------------------------
SECTION I (TERMINATION)
A. Either party may terminate this Agreement upon 45 days notice in the event
that:
1. The other party should at any time become insolvent, or suffer any
impairment of capital, or file a petition in bankruptcy, or go into
liquidation, rehabilitation, or voluntary supervision, or have a
receiver appointed, or be acquired or controlled by any other
insurance Retrocedent or organization, or
2. There is a severance or obstruction of free and unfettered
communication and/or normal commercial and/or financial intercourse
between the United States of America and the country in which the
Retrocessionaire is incorporated or has its principal office as a
result of war, currency regulations, or any circumstances arising
out of political, financial or economic emergency.
B. The Retrocedent may terminate this Agreement forthwith in the event that:
86
5. The Retrocessionaire ceases writing reinsurance and elects to
run-off its existing business.
6. As respects domestic Retrocessionaires: Upon application of the NAIC
Insurance Regulatory Information System (IRIS) tests to the
Retrocessionaire's quarterly and annual statements (which the
Retrocessionaire hereby agrees to furnish to the Retrocedent upon
request) it is found that four (4) or more of the Retrocessionaire's
IRIS financial ratio values are outside of the usual range
established in the IRIS system.
7. As respects alien Retrocessionaires: Upon review of the Insurance
Solvency International (ISI) Performance Tests as published with
respect to the Retrocessionaire (or upon application of such
Performance Tests to the Retrocessionaire's annual financial
statements which the Retrocessionaire hereby agrees to furnish to
the Retrocedent upon request) it is found that four (4) or more of
the Retrocessionaire's ratios are outside of the normal range (as
defined by the ISI standard).
Termination under A. or B. shall be effected by written notice of cancellation.
The Retrocedent will specify the mode of payment, i.e., a run-off basis or a
clean-cut basis with portfolio transfer, if applicable. In the event the
Retrocedent elects a run-off basis, the Retrocessionaire will fund all of the
outstanding ceded liabilities through a Trust Account or by providing a Letter
of Credit that meets the requirements of the New York State Insurance
Department.
SECTION II (SETTLEMENT)
After termination of this Agreement under this or any article, including the
natural expiry of the Agreement, if the Retrocessionaire has any residual
liability to the Retrocedent, the Retrocessionaire will, at the request of the
Retrocedent, furnish to the Retrocedent statements as specified in Section IB.,
above, and if four or more values are outside of the usual range established in
the IRIS or ISI system (as applicable in accordance with Section IB., above) the
Retrocedent shall have the option of an immediate settlement of all present and
future obligations under this Agreement-.in accordance with Section III, below,
or requiring the Retrocessionaire to fund all of the outstanding ceded
liabilities through a Trust Account or by providing a Letter of Credit that
meets the requirements of the New York State Insurance Department. In the event
the Retrocedent elects the funding option, it shall the notify the
Retrocessionaire in writing and the Retrocessionaire shall provide such funding
within 15 days of such notification; however, it is agreed that the Retrocedent
retains the right to require settlement in accordance with Section III at any
subsequent date.
SECTION III (PAYMENT)
A. Amounts due the Retrocedent or the Retrocessionaire under this Article shall
include all present and future obligations and shall include unearned premiums,
outstanding losses (including IBNR), and all other balances. B. In the event of
a clean-cut termination with portfolio transfer or an immediate settlement of
all present and future obligations the Retrocedent will, upon receipt of
payment, provide to the Retrocessionaires a full and final release of
Retrocessionaire's liability under the Agreement.
C. When requested by either party an appraisal of outstanding losses and IBNR
shall be made by an disinterested actuary.
D. Settlement shall take into account adjustment for net present value.
This Article shall survive the termination of this Agreement
ARTICLE XXIII CURRENCY REVALUATION
------------- --------------------
It is agreed that underwriting to contractual and/or understanding limits will
be done in terms of United States (U.S.) dollar equivalent on the basis of
exchange rates in effect at the time of inception of new or renewal business or
at the time an addition to an existing risk takes place. In the event there is a
reduction in parity value of the U.S. dollar from that existing at the time the
risk was written which results in the contractual and/or understanding limits
being exceeded, the RetrocedentRetrocedent shall be held covered for such excess
until next renewal of the risk, at which time underwriting will then conform to
the contractual and/or understanding U.S. dollar limits in effect at the time.
87
IN WITNESS WHEREOF: the parties hereto have caused this Agreement to be executed
by their authorized representatives.
IN: THIS DAY OF 2000
----------------------------- ------------- -------------
NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA
BY:
---------------------------
Title:
-------------------------
And in: this day of 2000
------------------------------ ---------- -----------
GRANITE REINSURANCE COMPANY, LTD.
BY:
-------------------------
Title:
-----------------------
88
