PERSONAL AND COMMERCIAL AUTOMOBILE QUOTA SHARE REINSURANCE AGREEMENT (hereinafter referred to as the Agreement) between

 

 

(This Article only applies to reinsurers domiciled outside of the United States and/or unauthorized in any state, territory, or district of the United States having jurisdiction over the Company.  The foregoing is not intended to conflict with, or override, the obligation of the parties hereto to arbitrate their disputes as provided by the Arbitration Article).

A.

It is agreed that in the event of the failure of the Reinsurer hereon to perform its obligations under this Agreement, the Reinsurer hereon, at the request of the Company, will 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 the 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 Lawrence F. Metz, Esq., Senior Vice President and General Counsel, Maiden Holdings, Ltd., 6000 Midlantic Drive, Suite 200S, Mount Laurel, NJ 08054, , and that in any suit instituted, the Reinsurer 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 the Reinsurer in any such suit and/or upon the request of the Company to give written undertaking to the Company that they will enter a general appearance upon the Reinsurer'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, the Reinsurer hereon hereby designates 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 its 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 Company or any  beneficiary hereunder arising out of this Agreement of reinsurance, and hereby designates the above-named as the person to whom the said officer is authorized to mail such process or a true copy thereof.

 

 

In the event of the Insolvency of one or more of the reinsured companies, this reinsurance shall be payable on the basis of reported claims allowed by the court overseeing the liquidation against the company under the contract or contracts reinsured without diminution because of the insolvency of the company, directly to the company or to its domiciliary receiver except (1) where this Agreement specifically provides another payee of such reinsurance in the event of the insolvency of the company or (2) where the Reinsurer with the consent of the direct insured or insureds has assumed such policy obligations of the company as direct obligations of the Reinsurer to the payees under such policies and in substitution for the obligations of the company to such payees. 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 be adjudicated, any defense or defenses that it may deem available to the company or its liquidator, receiver, conservator or statutory successor. The expense thus incurred by the Reinsurer shall be chargeable, subject to the approval of the Court, against the 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.

A.	As a condition precedent to any right of action hereunder, any dispute arising out of this Agreement shall be submitted to the decision of a board of arbitration composed of two arbitrators and an umpire, meeting in Winston-Salem, North Carolina unless otherwise agreed.

B.

The members of the board of arbitration shall be active or retired disinterested officials of insurance or reinsurance companies. Each party shall appoint its arbitrator and the two arbitrators shall choose an umpire before instituting the hearing. If the respondent fails to appoint its arbitrator within four weeks after being requested to do so by the claimant, the latter shall also appoint the second arbitrator. If the two arbitrators fail to agree upon the appointment of an umpire within four weeks after their nominations, each of them shall name three, of whom the other shall decline two and the decision shall be made by drawing lots.

D.

The board shall make its decision with regard to the custom and usage of the insurance and reinsurance business. The board shall issue its decision in writing based upon a hearing in which evidence may be introduced without following strict rules of evidence but in which cross examination and rebuttal shall be allowed. The board shall make its decision within 60 days following the termination of the hearings unless the parties consent to an extension. The majority decision of the board shall be final and binding upon all parties to the proceeding. Judgment may be entered upon the award of the board in any court having jurisdiction thereof.

 

E.

If more than one reinsurer is involved in the same dispute, all such reinsurers shall constitute and act as one party for purposes of this clause and communications shall be made by the Company to each of the reinsurers constituting the one party, provided, however, that nothing therein 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.

F.	Each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the expense of the umpire. The remaining costs of the arbitration proceedings shall be allocated by the board.

G.

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 hereinbefore 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 they have the jurisdiction to authorize any punitive, exemplary or consequential damage awards between the parties hereto.

 

 

A.

Headings

 

The headings in this Agreement are for the convenience of reference only and shall not affect its interpretation.

B.	Preparation

This Agreement has been jointly prepared by the parties hereto and the terms hereof shall not be construed in favor of or against any such party by reason of its participation in such preparation.

C.	Reasonableness and Utmost Good Faith

Each of the parties hereto shall act reasonably and in utmost good faith on all matters within the terms of this Agreement.

D.	Enforceability

In consideration of the mutual covenants and agreements contained herein, the parties hereto do hereby agree that this Agreement, and each and every provision hereof, is and shall be enforceable by and between them according to its terms.

 

E.

Authority

The Company and the Reinsurer each warrant that it is duly authorized to execute, deliver and perform this Agreement.

F.

Rights

The Reinsurer does not waive any rights under this Agreement in connection with any act of fraud, misrepresentation, or material non-disclosure by the Company.

G.	No Implied Waiver

No consent or waiver, express or implied, by any party to or of any breach or default by any other party in the performance by such other party of its obligations hereunder shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance of obligations hereunder by such other party.  Failure on the part of any party to complain of any act of any other party or to declare any other party in default, irrespective of how long such failure continues, shall not constitute a waiver by such first party of its rights hereunder.

 

H.	Amendments and Alterations

 

This Agreement may be changed, altered or amended as the parties may agree, subject to the prior approval of the North Carolina Insurance Department, Missouri Insurance Department, Michigan Insurance Department and California Insurance Department, to the extent such approval is required, provided such change, alteration or amendment is evidenced in writing by an endorsement executed by the Company and the Reinsurer and attached to this Agreement.

I.	Agency Agreement

If more than one reinsured company is named as a party to this Agreement, the first named company shall be deemed the agent of the other reinsured companies for purposes of sending or receiving notices required by the terms and conditions of this Agreement, and for purposes of remitting or receiving any monies due any party.

J.

Survival

Any obligation by one party to make payment to the other party shall survive the termination of the Agreement.

 

K.	Entire Agreement

This written Agreement and the underwriting information provided for its formation and mutually agreed letters of intent, clarification and/or understanding, if any, constitute the entire agreement between the parties.  However, in no event shall there be any provision that provides a guarantee of profit, directly or indirectly, from the Reinsurer to the Company or from the Company to the Reinsurer.

L.	Assignment

This Agreement may not be assigned by any party without the written consent of the other parties and the prior approval of the North Carolina Insurance Department, Missouri Insurance Department, Michigan Insurance Department and California Insurance Department, to the extent such approval is required.

M.

Notices

Any notice and other communication required or permitted hereunder shall be in writing and shall be delivered personally, sent by facsimile transmission (and immediately after transmission confirmed by telephone), or sent by certified, registered or express mail, postage prepaid; provided, however, that the party delivering a communication by facsimile transmission shall retain the electronically generated confirmation of delivery, showing the telephone number to which the transmission was sent and the date and time of the transmission.  Any such notice shall be deemed given when so delivered personally or sent by facsimile transmission (and immediately after transmission confirmed by telephone), or, if mailed, on the date shown on the receipt thereof, as follows (or to such other address or facsimile number as the party shall furnish the other party in accordance with this paragraph):

If to the Company, to:

GMAC Insurance Management Corporation

500 West Fifth Street

Winston-Salem, NC 27101-2728

Att’n:  Don Bolar

with a copy to:

American Capital Acquisition Corp.

59 Maiden Lane, 21st Floor

New York, New York 10038

Att’n: Barry Karfunkel

 

If to the Reinsurer, to:

Maiden Insurance Company Ltd

Schroders House

131 Front Street, 2nd Floor

Hamilton HM 12, Bermuda

Telephone:

441 ###-###-####

Fax

441 ###-###-####

 

Technology Insurance Company, Inc.

59 Maiden Lane, 6th Floor

New York, New York 10038

Att’n: General Counsel

 

MK Re, Ltd.

7 Reid Street, Suite 400

Hamilton

Bermuda

With a copy to:

Maiden Insurance Company Ltd

48 Par-la-Ville Road, Suite 1141

Hamilton HM 11, Bermuda

Attention: Lawrence Metz

 

 

Notwithstanding any provision to the contrary within this reinsurance agreement or any endorsement thereto, it is agreed that this reinsurance agreement excludes loss, damage, cost, or expense directly or indirectly caused by, contributed to by, resulting from, or arising out of or in connection with any act of terrorism, as defined herein, regardless of any other cause or event contributing concurrently or in any other sequence to the loss.

 

An act of terrorism includes any act, or preparation in respect of action, or threat of action designed to influence the government de jure or de facto of any nation or any political division thereof, or in pursuit of political, religious, ideological, or similar purposes to intimidate the public or a section of the public of any nation by any person or group(s) of persons whether acting alone or on behalf of or in connection with any organization(s) or government(s) de jure or de facto, and which:

 

(i)	involves violence against one or more persons; or

 

(ii)	involves damage to property; or

 

(iii)

endangers life other than that of the person committing the action; or

 

(iv)	creates a risk to health or safety of the public or a section of the public; or

 

(v)	is designed to interfere with or to disrupt an electronic system.

 

This reinsurance agreement also excludes loss, damage, cost, or expense directly or indirectly caused by, contributed to by, resulting from, or arising out of or in connection with any action in controlling, preventing, suppressing, retaliating against, or responding to any act of terrorism.

 

Notwithstanding the above and subject otherwise to the terms, conditions, and limitations of this reinsurance agreement in respect of all business classified as Personal lines and Commercial Lines, this reinsurance agreement will pay actual loss or damage (but not related cost or expense) caused by any act of terrorism provided such act is not directly or indirectly caused by, contributed to by, resulting from, or arising out of or in connection with biological, chemical, or nuclear pollution or contamination.

Any loss reimbursement the Company receives from the United States Government under the Terrorism Risk Insurance Act of 2002 (the "Terrorism Act") as a result of a loss occurrence commencing during the term of this Agreement shall inure to the benefit of this Agreement in the proportion that the Company's insured losses (as defined in the Terrorism Act) in that loss occurrence under policies reinsured under this Agreement bear to the Company's total insured losses in that loss occurrence.

If a loss reimbursement received by the Company under the Terrorism Act is based on the Company's insured losses in more than one loss occurrence and the United States Government does not designate the amount allocable to each loss occurrence, the reimbursement shall be pro rated in the proportion that the Company's insured losses in each loss occurrence bear to the Company's total insured losses rising out of all loss occurrences to which the recovery applies.

 

This Agreement does not apply to loss or liability in any way or to any extent arising out of the actual or alleged presence or actual, alleged or threatened presence of fungi including, but not limited to, mold, mildew, mycotoxins, microbial volatile organic compounds or other “microbial contamination”.  This includes:

a.  Any supervision, instruction, recommendations, warnings, or advice given or which should have been given in connection with the above; and

b.  Any obligation to share damages with or repay someone else who must pay damages because of such injury or damage.

For purposes of this exclusion, “microbial contamination” means any contamination, either airborne or surface, which arises out of or is related to the presence of fungi, mold, mildew, mycotoxins, microbial volatile organic compounds or spores, including, without limitation, Penicillium, Aspergillus, Fusarium, Aspergillus Flavus and Stachybotrys chartarum.

Losses resulting from the above causes do not in and of themselves constitute an event unless arising out of one or more of the following perils, in which case this exclusion does not apply.

Fire, lightning, explosion, aircraft or vehicle impact, falling objects, windstorm, hail, tornado, cyclone, hurricane, earthquake, volcano, tsunami, flood, freeze or weight of snow.

If this reinsurance contract includes cover for Extra Contractual Obligations or Excess of Policy Limit payments, then such losses which arise out of claims resulting from the above causes may be included in Ultimate Net Loss but only up to a maximum of 25% of the Ultimate Net Loss.

As a condition precedent to coverage hereunder, notice of any claims arising hereunder must be given by the Company to the Reinsurer, in writing, within 24 months after the commencement date of the loss occurrence to which such claims relate.

 

 

This Agreement does not apply to:

 

(1)	Pollution, seepage, contamination or environmental impairment insurances, however styled.

(2)	Loss or damage caused directly or indirectly by pollution, seepage, contamination or environmental impairment, unless said loss or damage follows as a result of a loss caused directly by a peril covered hereunder.

(3)	Expenses resulting from any governmental direction or request that material present in or part of or utilized on an Insured’s property be removed or modified, except as provided in (5) below.

(4)	Expenses incurred in testing for and / or monitoring pollutants.

(5)	Expenses incurred in removing debris, unless

(a)

the debris results from a loss caused directly by a peril covered hereunder, and

(b)

the debris to be removed is itself covered hereunder, and

(c)

the debris is on an insured’s premises, subject, however to a limit of US$5,000 plus 25% of (i) the property damage loss, any risk, any one location, any one original insured, and (ii) any deductible applicable to the loss.

(6)	Expense incurred to extract pollutants from land or water at the Insured’s premises unless (i) the release, discharge or dispersal of pollutants results from a loss caused by a peril covered hereunder, and (ii) such expenses shall not exceed US$10,000.

(7)	Loss of income due to any increased period of time required to resume operations resulting from enforcement of any law regulating the prevention, control, repair, clean-up or restoration of environmental damage.

(8)	Claim under paragraphs (2), and / or (5) and / or (6) above, unless notice thereof is given to the Company within 180 days after the date of the loss occurrence to which such claims relate, or the expiration date of the original policy, whichever is earlier.

“Pollutants” shall mean any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste. Waste includes materials to be recycled, reconditioned or reclaimed.

 

 

It is agreed that the following is excluded hereunder:

(1)	All business derived directly or indirectly from any Pool, Association or Syndicate which maintains its own reinsurance facilities.

(2)

Any Pool or Scheme, (whether voluntary or mandatory) formed after 1st March, 1968 for the purpose of insuring property whether on a country-wide basis or in respect of designated areas.  This exclusion shall not apply to so-called Automobile Insurance Plans or other Pools formed to provide coverage for Automobile Physical Damage.

It is agreed that business written by the Reinsured for the same perils, which is known at the time to be insured by, or in excess of underlying amounts placed in the following Pools, Associations or Syndicates, whether by way of insurance or reinsurance, is excluded hereunder.

Industrial Risk Insurers

Associated Factory Mutuals

Improved Risk Mutuals

Any Pool, Association or Syndicate formed for the purpose of writing oil, gas or petro-chemical plants and/or oil or gas drilling rigs.

United States Aircraft Insurance Group

Canadian Aircraft Insurance Group

Associated Aviation Underwriters

American Aviation Underwriters

Section B does not apply:

(1)	Where the Total Insured Value over all interest of the risk in question is less than $250,000,000.

(2)	to interests traditionally underwritten as Inland Marine or Stock and/or Contents written on a Blanket Basis.

(3)	to Contingent Business Interruption, except when the Reinsured is aware that the key location is known at the time to be insured in any Pool, Association or Syndicate named above.

(4)	to risks as follows:

 

 

offices, hotels, apartments, hospitals, educational establishments, public utilities (other than railroad schedules) and builder's risks on the classes of risks specified in this subsection (4) only.

Where this Clause attaches to Catastrophe Excess of Loss Reinsurance Agreements, the following SECTION C is added:

Nevertheless the Reinsurers specifically agree that liability accruing to the Reinsured from its participation in residual market mechanisms including but not limited to,

(1)	The following so-called "Coastal Pools"

Alabama Insurance Underwriting Association

Florida Windstorm Underwriting Association

Louisiana Insurance Underwriting Association

Mississippi Windstorm Underwriting Association

North Carolina Insurance Underwriting Association

Texas Catastrophe Property Insurance Association

(2)	All "Fair Plan" and "Rural Risk Plan" Business,

for all perils otherwise protected hereunder shall not be excluded, except that this reinsurance does not include any increase in such liability resulting from:

(i)

The inability of any other participant in such residual market mechanisms including but not limited to "Coastal Pool" and/or "Fair Plan" and/or "Rural Risk Plan" to meet its liability.

(ii)

Any claim against such residual market mechanisms including but not limited to "Coastal Pool" and/or "Fair Plan" and/or "Rural Risk Plan" or any participant therein, including the Reinsured whether by way of subrogation or

otherwise, brought by or on behalf of any insolvency fund (as defined in the Insolvency Funds Exclusion Clause incorporated in this Agreement).

 

Notwithstanding SECTION C above, in respect of the FWUA, FPCJUA and RPCJUA, where an assessment (calculated pursuant to the legislation governing the FWUA, FPCJUA and RPCJUA as at 31 December, 1994) is made against the Reinsured by the FWUA, the FPCJUA, the RPCJUA, or any combination thereof, the maximum loss that the Reinsured may include in the Ultimate Net Loss in respect of any loss occurrence hereunder shall not exceed the percentage of the assessment that is directly attributable to the loss occurrence and which the Reinsured must pay to the FWUA, the FPCJUA and RPCJUA specifically for the calendar year in which the loss occurrence occurs.  For the purposes of this section, the percentage of the assessment directly attributable to the loss occurrence should be determined by dividing the occurrence loss for the relevant entity (FWUA, FPCJUA or RPCJUA) by the total losses for the year for the relevant entity and multiplying the resultant number by the Reinsured's assessment from the relevant entity.  Any assessment or percentage of an assessment payable in subsequent calendar years in respect of the loss occurrence may not be included in the Ultimate Net Loss hereunder.  Moreover, notwithstanding SECTION C above, in respect to the FWUA, FPCJUA and the RPCJUA, the Ultimate Net Loss hereunder shall not include any monies expended to purchase bonds as a consequence of being a member of the FWUA, the FPCJUA or the RPCJUA.

In the event that the legislation governing the FWUA, the FPCJUA or the RPCJUA as at 31 December, 1994, is amended the parties hereto agree to immediate discussion at the request of either party for a suitable revision in the terms of the Agreement.  Failing agreement on such revision within thirty days after such a request, it is agreed that a Reassured's assessments by the FWUA, the FPCJUA or the RPCJUA shall, for the purposes of this section, be calculated as if the amendment had not taken place.

(hereinafter referred to as the “Contract”)

of

(hereinafter referred to as the “Subscribing Reinsurer”)

with respect to the

(hereinafter referred to as the “Agreement”)

Issued to

Winston-Salem, North Carolina

 

1.

The Subscribing Reinsurer shall have a 20% share in the Interests and Liabilities of the Reinsurer (as defined in the Agreement) as set forth in the Agreement attached hereto.

2.

This Contract shall be effective from 12:01 a.m., Eastern Standard Time, March 1, 2010 to 12:01 a.m. Eastern Standard Time, March 1, 2013, and shall automatically renew for successive three-year periods thereafter unless terminated, cancelled or commuted earlier in accordance with the terms of this Agreement.

3.

The share of the Subscribing Reinsurer in the interests and liability of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer.  In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.

In Witness Whereof, the parties hereto by their duly authorized representatives have executed this Contract effective March 1, 2010.

 

 

INTEGON NATIONAL INSURANCE COMPANY

(For and on behalf of the participants in the Company Pool)

 

BY:	/s/ Mike Weiner
ITS:	Chief Financial Officer
DATE:	September 27, 2010
TECHNOLOGY INSURANCE COMPANY, INC.
BY:	/s/ Stephen Ungar
ITS:	Secretary
DATE:	August 16, 2010

(hereinafter referred to as the “Contract”)

of

(hereinafter referred to as the “Subscribing Reinsurer”)

with respect to the

(hereinafter referred to as the “Agreement”)

Issued to

Winston-Salem, North Carolina

 

1.

The Subscribing Reinsurer shall have a 50% share in the Interests and Liabilities of the Reinsurer (as defined in the Agreement) as set forth in the Agreement attached hereto.

4.

This Contract shall be effective from 12:01 a.m., Eastern Standard Time, March 1, 2010 to 12:01 a.m. Eastern Standard Time, March 1, 2013, and shall automatically renew for successive three-year periods thereafter unless terminated, cancelled or commuted earlier in accordance with the terms of this Agreement.

5.

The share of the Subscribing Reinsurer in the interests and liability of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer.  In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.

In Witness Whereof, the parties hereto by their duly authorized representatives have executed this Contract effective March 1, 2010.

 

INTEGON NATIONAL INSURANCE COMPANY

(For and on behalf of the participants in the Company Pool)

 

BY:	/s/ Mike Weiner
ITS:	Chief Financial Officer
DATE:	September 27, 2010
MAIDEN INSURANCE COMPANY LTD.
BY:	David A. Jamnick
ITS:	Senior Vice President / CUO
DATE:	September 30, 2010

(hereinafter referred to as the “Contract”)

of

(hereinafter referred to as the “Subscribing Reinsurer”)

with respect to the

(hereinafter referred to as the “Agreement”)

Issued to

Winston-Salem, North Carolina

1.

The Subscribing Reinsurer shall have a 30% share in the Interests and Liabilities of the Reinsurer (as defined in the Agreement) as set forth in the Agreement attached hereto.

6.

This Contract shall be effective from 12:01 a.m., Eastern Standard Time, March 1, 2010 to 12:01 a.m. Eastern Standard Time, March 1, 2013, and shall automatically renew for successive three-year periods thereafter unless terminated, cancelled or commuted earlier in accordance with the terms of this Agreement.

7.

The share of the Subscribing Reinsurer in the interests and liability of the Reinsurer shall be several and not joint with the share of any other subscribing reinsurer.  In no event shall the Subscribing Reinsurer participate in the interests and liabilities of the other subscribing reinsurers.

In Witness Whereof, the parties hereto by their duly authorized representatives have executed this Contract effective March 1, 2010.

 

INTEGON NATIONAL INSURANCE COMPANY

(For and on behalf of the participants in the Company Pool)

 

BY:	/s/ Mike Weiner
ITS:	Chief Financial Officer
DATE:	September 27, 2010
MK Re Ltd.
BY:	/s/ Michael F. Bott
ITS:	Vice President
DATE:	August 31, 2010