EXHIBIT
10.16


 


FORM
OF BROKERAGE BUSINESS POOLING AGREEMENT


 


This Brokerage Business
Pooling Agreement (“Pooling Agreement”) by and between Tower Insurance Company
of New York (“TICNY”), an insurance company domiciled in New York, Tower
National Insurance Company (“TNIC”), an insurance company domiciled in
Massachusetts (collectively called “Tower”) and CastlePoint Insurance Company
(“CPIC”), an insurance company domiciled in
[             ],
is dated this      day of
                  ,
200[ ], and is made effective as of 12:01 a.m.,
[             ],
200[ ], (the “Effective Date”).


 


WHEREAS, TICNY, TNIC and CPIC are each authorized
to transact, and do transact, a multiple line property and casualty insurance
business; and


 


WHEREAS, TICNY, TNIC and CPIC desire to pool
their respective Brokerage Business (defined below) in order to make more
efficient use of available surplus and achieve other operating efficiencies;
and


 


WHEREAS, TICNY will act as the manager of such
pool;


 


NOW,
THEREFORE, for
mutual considerations, the sufficiency and receipt of which is hereby
acknowledged, TICNY, TNIC and CPIC agree as follows:


 


ARTICLE
I          Definitions


 


The following terms,
whenever used herein, shall have the following meanings:


 


“Brokerage Business”
shall mean broad classes of business that are underwritten on an individual
policy basis by an insurance company’s underwriting staff through wholesale and


 


 

















 


retail agents, and for which most or all of the
services are provided by the insurance company as part of the overall product
offering.


 


“Brokerage
Business Pool” shall mean Brokerage Business written by or on behalf of the
Participating Companies or assumed by a Participating Company (including such
business assumed by TICNY from its affiliates), that is pooled and allocated to
each of the Participating Companies based upon their Pooling Percentage as set
forth in this Pooling Agreement.


 


“Existing Reinsurance”
shall mean reinsurance ceded by a Participating Company that is in effect on
the Effective Date, to the extent that such reinsurance relates to the
Brokerage Business of such Participating Company.


 


“Management
Fees” shall mean the management fees payable by CPIC and TNIC to TICNY pursuant
to Article XIV.


 


“Net
Liability” shall mean the loss and loss adjustment expense liability remaining
after the application of Existing Reinsurance and, with respect to TICNY, Pool
Reinsurance, in each case to the extent collectible; provided, however,
that “Net Liability” shall not include liability with respect to losses and
loss adjustment expenses incurred prior to the Effective Date.


 


“Net Loss Ratio” shall
mean, for any period of time, the ratio of Net Losses and loss adjustment
expenses incurred during such period to Net Premium Earned for such period.


 


“Net
Losses” shall mean, for any period of time, any and all amounts that a
Participating Company is required to pay to or on behalf of insureds for
insurance claims made under its Policies, after the application of any
applicable reinsurance but not including loss adjustment expenses.


 


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“Net Premium Earned”
shall mean, for any period of time, the earned portion of premiums written by a
Participating Company after payment for reinsurance, if any.


 


“Net
Written Premium” shall mean direct premium written on the Policies covered by
this Agreement plus additions, less refunds and return premium for
cancellations and reductions (but not dividends) and less premium paid or
payable for reinsurance that inures to the benefit of the Participating
Companies.


 


“Participating
Companies” shall mean TICNY, TNIC and CPIC.


 


“Policies”
shall mean all policies, certificates, binders, contracts and agreements of
insurance covering Brokerage Business issued or renewed on or after the
Effective Date by or on behalf of TICNY, TNIC or CPIC, as the case may be, all
of which shall be subject to this Pooling Agreement.


 


“Pool
Reinsurance” shall mean property catastrophe and excess of loss reinsurance
ceded by TICNY to an insurer that is not a Participating Company and that
inures to the benefit of the Brokerage Business Pool.


 


“Pooling
Percentages” shall be those percentages set forth on Schedule A attached, as
amended from time to time.


 


ARTICLE
II               
Cessions to Brokerage Business Pool


 


CPIC and TNIC shall
automatically and obligatorily cede to TICNY as reinsurance, and TICNY shall be
obligated to accept as assumed reinsurance, one hundred percent (100%) of the
Net Liabilities with respect to Policies issued or assumed by CPIC and TNIC, to
be combined with the Net Liabilities of TICNY under Policies issued or assumed
by TICNY, provided, however, that the total gross written


 


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premium of CPIC after pooling shall not exceed $150
million for the first twelve (12) month period ending March 31, 2007, subject
to a growth factor of 25% per each twelve (12) month period thereafter.


 


ARTICLE
III      Participation in Brokerage Business Pool


 


TICNY
shall establish the Brokerage Business Pool, which shall consist of the Net
Liability under all Brokerage Business written or assumed by Tower and CPIC
(including business assumed by TICNY pursuant to this Pooling Agreement). 
Tower shall automatically and obligatorily cede to CPIC, and retain for Tower’s
own account, the applicable Pooling Percentages of such Net Liability and CPIC
shall automatically and obligatorily accept such cessions. 
Notwithstanding the foregoing, if Tower (i) writes business of the type that it
has historically not written or (ii) writes more than 25% of its gross written
premiums outside the state of New York in any 12 month period ending on the
anniversary date of this Pooling Agreement, then such non-historical business
and the excess of business not in New York over 25% may, at CPIC’s discretion,
be excluded from the pool. In addition, the pool shall exclude any property
excess of loss liabilities over $10 million resulting from any one
occurrence.  TICNY and TNIC shall determine how the Tower Pooling
Percentage will be allocated between each of them. Such Pooling Percentages
shall be applied to all Brokerage Business written by the Participating
Companies.  Any change in the Pooling Percentages shall be made only by a
written amendment to this Pooling Agreement signed by the parties hereto or as
otherwise set forth in Article XVI of this Pooling Agreement.  The
Participating Companies acknowledge that, following the acceptance or retention
of a percentage of the Brokerage Business Pool by a Participating Company, such
pooled business shall be subject to such reinsurance as may be entered into by
such Participating Company on or after the Effective Date that is for the
benefit of such Participating Company as to its participation in the Brokerage
Business Pool and does not inure to the benefit of the Brokerage Business Pool.


 


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ARTICLE
IV       Reinsurance


 


TICNY,
as pool manager, shall negotiate, obtain and maintain such Pool Reinsurance as
it deems appropriate with respect to the liabilities of the Brokerage Business
Pool, which reinsurance shall inure to the benefit of the Participating
Companies according to their respective Pooling Percentages. TICNY shall
purchase property and casualty excess of loss reinsurance and property
catastrophe excess of loss reinsurance from third party reinsurers to protect
the net exposure of the Participating Companies. The property catastrophe
excess of loss reinsurance purchased by TICNY may provide for up to approximately
10% of the combined surplus of Tower and CPIC to be retained by the pool prior
to reinsurance by third party reinsurance companies (“Pooled Retention”). Any
of the Participating Companies also shall have the right, in its discretion, to
require TICNY to increase the Pooled Retention by an additional amount of up to
10% of the surplus of CastlePoint Reinsurance Company (“CPRe”) provided that
TICNY purchases reinsurance for such additional Pooled Retention from CPRe. In
addition, for the first 12 months of this Pooling Agreement, Tower shall
reimburse CPIC for the property catastrophe excess of loss premium paid to CPRe
to protect CPIC’s net exposure to the Pooled Retention that is in excess of an
amount equal to the product of $10 million multiplied by CPIC’s Pooling
Percentage in the Brokerage Business pool.


 


ARTICLE
V        Losses and Loss Adjustment
Expenses


 


A.           
All loss settlements made by TICNY with regards to the Brokerage Business,
whether under strict policy conditions or by way of compromise, shall be
unconditionally binding upon CPIC and TNIC.


 


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B.           
Each Participating Company shall be liable for its proportionate share of loss
adjustment expenses incurred under or in connection with the Policies and shall
be credited with its proportionate share of any recoveries of such expense.


 


C.           
If a Participating Company pays or is held liable to pay any punitive,
exemplary, compensatory, or consequential damages (hereinafter called “Extra
Contractual Obligations”) because of alleged or actual negligence on its part
in handling a claim under a Policy, one hundred percent (100%) of such Extra
Contractual Obligations (to the extent permitted by law) shall be added to the Net
Liability, if any, of such Participating Company under the Policy involved, and
the sum thereof shall be subject to this Pooling Agreement.


 


D.           
If a Participating Company pays or is held liable to pay in connection with any
loss amounts in excess of the limit of its original Policy, such loss in excess
of that limit having been incurred because of its failure to settle within the
Policy limit or by reason of alleged or actual negligence in rejecting an offer
of settlement or in the preparation of the defense or in the trial of any
action against the original insured or reinsured or in the preparation or
prosecution of an appeal consequent upon such action (hereinafter called an
“Excess of Policy Limits Loss”), one hundred percent (100%) of such Excess of
Policy Limits Loss (to the extent permitted by law) shall be added to the Net
Liability, if any, of such Participating Company under the Policy involved, and
the sum thereof shall be subject to this Pooling Agreement.


 


ARTICLE
VI       Salvage and Subrogation


 


Each of the Participating
Companies shall be credited with its proportionate share of salvage and
subrogation on account of losses under the Policies.


 


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ARTICLE
VII     Original Conditions Apply


 


All
reinsurance under this Pooling Agreement shall be subject to the same rates,
terms, conditions and waivers, and to the same modifications and alterations as
the respective Policies.  Each of the Participating Companies shall be
credited with the proportion equal to its Pooling Percentage of the original
premiums received under the Policies issued on or after the Effective Date, but
after deduction of premiums, if any, ceded under Existing Reinsurance and Pool
Reinsurance.


 


ARTICLE
VIII   Ceding Commission


 


Each of the Participating
Companies shall be charged with a ceding commission in an amount equal to such
Participating Company’s Pooling Percentage of actual commissions paid to agents
or brokers, premium taxes, guarantee fund assessments, fees and assessments for
boards, bureaus and associations, fees and assessments for industry and
residual markets, and other similar expenses incurred by the Participating
Companies on all premiums ceded hereunder, but after deduction of ceding
commissions or expense reimbursement amounts recovered under Existing
Reinsurance and Pool Reinsurance.


 


ARTICLE
IX      Remittances and Reports


 


A.           
As soon as practicable consistent with its standard financial reporting
practices, but no later than thirty (30) days after the end of each calendar
month, TICNY shall submit a pooling report to TNIC and CPIC setting forth the
following information as regards the Brokerage Business Pool:


 


1.            
Net Written Premium received during the month;


 


2.            
Net Premium Earned received during the month


 


3.            
Ceding commission thereon;


 


4.            
Losses and loss adjustment expenses paid during the month;


 


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5.            
Salvage and subrogation recoveries received;


 


6.            
Recoverables under inuring reinsurance; and


 


7.            
Management Fees due.


 


B.           
The balance shown to be due a Participating Company shall be remitted within
fifteen (15) days after the issuance of the reports by TICNY on a collected
basis; provided that TICNY may retain, as manager, a reserve out of amounts
otherwise due TNIC and CPIC for the payment of amounts reasonably estimated by
TICNY to be payable during the next sixty (60) days by the Brokerage Business
Pool and allocable to TNIC and CPIC hereunder.  Such balance shall be
remitted in cash or in readily marketable securities (valued at fair market
value) in an amount equal to such balance.  Should discrepancies arise in
the process of the verification of any report, such differences, once resolved,
should be remitted promptly.


 


C.           
As soon as practicable consistent with its financial reporting practices, but
no later than thirty (30) days after the end of each calendar quarter, TICNY
shall report to TNIC and CPIC ceded unearned premium reserves and ceded
outstanding loss and loss adjustment expense reserves as regards the Brokerage
Business as of the end of such quarter.


 


ARTICLE
X        Offset


 


Each of the Participating
Companies shall have and may exercise at any time, and from time to time, the
right to offset any balance or balances whether on account of premiums, losses
or amounts otherwise due from one Participating Company to the other under the
terms of this Pooling Agreement, subject to the provision of applicable law.


 


ARTICLE
XI      Errors and Omissions


 


Inadvertent delays,
errors or omissions made in connection with this Pooling Agreement or any
transaction hereunder shall not relieve any Participating Company from any


 


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liability that would have attached had such delay,
error or omission not occurred, provided always that such error or omission
will be rectified as soon as possible after discovery.


 


ARTICLE XII
    Access to Records


 


The files and records of
each Participating Company with respect to this Pooling Agreement and the
Brokerage Business subject hereto shall be open to examination by any officer
or director of each of the other Participating Companies or their duly
authorized representatives during normal business hours.


 


ARTICLE
XIII   Term


 


A.           
This Pooling Agreement will become effective on the Effective Date. 
Either Tower or CPIC may terminate their respective participation in the
Brokerage Business Pool as of the date thirty six (36) months after the
Effective Date and thereafter as of the close of a calendar quarter by giving
at least six (6) months prior written notice to the other party by certified or
registered mail.


 


B.           
CPIC shall have the right to terminate its participation in the Brokerage
Business Pool at any time on or after twenty four (24) months after the
Effective Date and thereafter by giving sixty (60) days prior written notice by
certified or registered mail to Tower if the sum of the cumulative Net Loss
Ratio for the Brokerage Business Pool plus the Management Fee Percentage (as
defined in Article XIV) equals or exceeds 99 % for the period from the
Effective Date to the end of the calendar quarter immediately preceding the
date of such notice. If the Participating Companies cannot agree as to the
calculation of the Net Loss Ratio or Management Fee Percentage, within 30 days
of receiving the appropriate report, the calculation shall be arbitrated. The actuarial
firm of Towers Perrin shall furnish an arbiter for Tower, and CPIC will choose
another actuarial firm to furnish its arbiter. Those two arbiters will select a
third independent actuarial firm to furnish the third arbiter.


 


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C.           
This Pooling Agreement may be terminated with respect to new or renewal
business (a) at any time on or after thirty-six (36) months from the Effective
Date by mutual consent in writing by each of the Participating Companies or
(b) as of the close of a calendar quarter, upon not less than six (6)
months or sixty (60) days, prior written notice, as the case may be, by a
Participating Company to the other Participating Companies of such
Participating Company’s exercise of its right to terminate its participation in
the Brokerage Business Pool, as set forth in Paragraph A or B, above, as the
case may be.


 


D.           
If this Pooling Agreement is terminated pursuant to this Article XIII, all
rights and obligations of the Participating Companies with respect to Brokerage
Business ceded pursuant to this Pooling Agreement prior to such termination
shall continue to be governed by the terms of this Pooling Agreement.


 


ARTICLE
XIV   Pool Management


 


TICNY agrees to act as the
manager of the Brokerage Business Pool and to provide management services which
shall include, but not be limited to, the following:


 


1.            
Marketing, underwriting and issuance of Policies;


 


2.            
Determining premium rates and other underwriting terms and conditions with
respect to the issuance of Policies;


 


3.            
Establishing commissions and fees to be paid to producers and/or brokers in
connection with the underwriting of Policies;


 


4.            
Establishing commissions and fees to be paid to service providers by or for the
account of the Brokerage Business Pool;


 


5.            
Collecting premiums and other amounts due under Policies;


 


6.            
Adjusting settling, defending and paying claims under Policies;


 


7.            
Perform all administrative and policyholder services in connection with the
issuance of Policies;


 


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8.            
Purchasing, managing and administering Existing Reinsurance and Pool Reinsurance;


 


9.            
Underwriting audit and control, product development and state filings;


 


10.         
Loss prevention/premium audit;


 


11.         
Information technology;


 


12.         
Accounting and cash management; and


 


13.         
Human resources and other administrative functions;


 


Expenses
incurred in connection with the foregoing services excluding loss adjustment
expense included in the Net Loss Ratio (the “Management Expenses”) shall be
shared between the Participating Companies based upon their respective Pooling
Percentages.


 


CPIC and TNIC shall pay
to TICNY management fees for the foregoing services (“Management Fees”) during
each calendar year of this Pooling Agreement (or part thereof) equal to (i) (A)
the management fee percentage for such year (as set forth below) (the
“Management Fee Percentage”) times (B) their respective Pooling Percentage of
the gross written premium of the Brokerage Business for such year, net of
return premiums and net of ceded reinsurance premiums for Pool Reinsurance less
(ii) their pooling percentage of (A) ceding commissions set forth in Article
VIII and (B) the shared Management Expenses as set forth above and less (iii)
loss adjustment expenses included in the Net Loss Ratio. The Management Fee
Percentage for the Brokerage Business shall be 34% (which shall be applied
during each year as to premium written during the year) until April 1, 2007 and
be adjusted based on Net Loss Ratio of the pooled business.


 


The Management Fee
Percentage shall, on each six month anniversary of the Effective Date, increase
nine-tenths of a percentage point for every percentage point by which the Net
Loss Ratio is below 61% up to a maximum Management Fee Percentage of 36%, and
decrease nine-tenths of a 


 


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percentage point for every percentage point by which
the Net Loss Ratio exceeds 61%, subject to a minimum Management Fee Percentage
of 31% as follows:


 


	
  Net
  Loss Ratio

  	
   

  	
  Management
  Fee Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  64.33% or higher

  	
   

  	
  31.0

  	
   

  
	
  64

  	
   

  	
  31.3

  	
   

  
	
  63

  	
   

  	
  32.2

  	
   

  
	
  62

  	
   

  	
  33.1

  	
   

  
	
  61

  	
   

  	
  34.0

  	
   

  
	
  60

  	
   

  	
  34.9

  	
   

  
	
  59

  	
   

  	
  35.8

  	
   

  
	
  58.78 or lower

  	
   

  	
  36.0

  	
   

  



 


Such Management Fee
Percentage shall remain provisional until all losses for a given year have been
settled (or deemed settled as set forth below).  Within sixty (60) days
following the end of each year, TICNY shall calculate the Net Loss Ratio for
each year that remains open and shall forward copies of such calculations to
TNIC and CPIC.  The Participating Companies will settle amounts due within
ten (10) days thereafter.  The Net Loss Ratio for each year shall be
deemed to be finalized six (6) years following the close of such year or at any
time before six (6) years by mutual agreement of the Participating Companies.
However, in recognition that regulatory authorities may not approve an
intercompany transaction containing these management fees, the Participating
Companies shall use their best good faith effort to structure the transaction
for the Participating Companies in order that the sum of the Net Loss Ratio
plus Management Fees equals 95% for the Brokerage Business Pool.


 


ARTICLE
XV     Amendments 


 


This Pooling Agreement
may be amended only if in writing and signed by each Participating Company.


 


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ARTICLE
XVI   Adjustments to Participation


 


TICNY may, in its sole
discretion, change the Pooling Percentages effective as of the date that is six
(6) months following the Effective Date and, from time to time, as of any six
(6) month anniversary of the Effective Date thereafter, upon not less ninety
(90) days prior written notice to CPIC; provided, however that
the Pooling Percentage of CPIC shall at all times during the term of this
Pooling Agreement be a minimum of 25% and a maximum of 45%, and provided
further, however, that the total gross written premium of CPIC assumed under
this Pooling Agreement shall not exceed $150 million for the twelve (12) month
period ending March 31, 2007, subject to a growth factor of 25% per twelve (12)
month period ending March 31, thereafter. Each such change shall apply to
Policies issued or renewed after the effective date of such change. 
Exhibit A shall be revised to reflect all such changes and the effective date
of each such change. If the maximum gross written premium after pooling is
attained in any twelve (12) month period ending March 31 as set forth herein,
then the Pooling Percentage, which shall apply to all premiums and losses on a
pro-rated basis for such period, of CPIC shall be decreased for that twelve
(12) month period, even if such Pooling Percentage is below 25%.


 


ARTICLE
XVII  Investments


 


The investments of the
Participating Companies and any income, gains or losses derived therefrom and
expenses related thereto, are not part of, nor are they subject to the terms
of, this Pooling Agreement.


 


ARTICLE
XVIII               
Insolvency


 


A.           
In the event of the insolvency or the appointment of a liquidator, receiver or
other statutory successor of a Participating Company, any amount due such
Participating Company as a ceding party shall be payable by the accepting party
on the basis of the liability of the ceding party under the Policies


 


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reinsured without diminution because
of the insolvency of the ceding party.  Payments by the accepting party
shall be made directly to the ceding party or to the liquidator, receiver or
statutory successor, except (a) where any Policy specifically provides another
payee of such reinsurance in the event of the insolvency of the ceding party,
or (b) where the accepting party, with the consent of the direct insured or
insureds, has assumed such Policy obligations of the ceding party as direct
obligations of the accepting party to payees under such Policies and in
substitution for the obligations of the ceding party to such payees.


 


B.           
The liquidator or receiver or statutory successor of the ceding party shall
give written notice to the accepting party of the pendency of any claim against
the insolvent ceding party on the Policies reinsured within a reasonable time
after such claim is filed in the insolvency proceeding.  During the
pendency of such claim, the accepting party may investigate the claim and
interpose in the proceeding where the claim is to be adjudicated, at its own
expense, any defense or defenses which it may deem available to the ceding
party or its liquidator or receiver or statutory successor.  The expenses
thus incurred by the accepting party shall be chargeable, subject to court
approval, against the insolvent ceding party solely as a result of the defense
undertaken by the accepting party.


 


ARTICLE
XIX   Arbitration


 


A.           
As a condition precedent to any right of action hereunder, in the event of any
dispute or difference of opinion hereafter arising with respect to this Pooling
Agreement (except as set forth in Article XIII, it is hereby mutually agreed
that such dispute or difference of opinion shall be submitted to
arbitration.  One Arbiter shall be chosen by each Participating Company
that is a party to such dispute and an Umpire shall be chosen by the Arbiters
before they enter upon arbitration, all of whom shall be active or retired
disinterested executive officers of insurance or reinsurance companies or
Underwriters at Lloyd’s of London.  In the event that a Participating
Company should fail to choose an Arbiter within


 


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thirty (30) days following a
written request by another Participating Company to do so, the requesting
Participating Company’s Arbiter shall choose a second arbiter before entering
upon arbitration.  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) by a judge of the United States District Court having jurisdiction
over the geographical area in which the arbitration is to take place, or if
that court declines to act, the state court having general jurisdiction in such
area.


 


B.           
Participating Companies party to the dispute shall present their case to the
Arbiters within thirty (30) days following the date of appointment of the
Umpire.  The Arbiters shall consider this Pooling Agreement as an
honorable engagement rather than merely as a legal obligation and they are
relieved of all judicial formalities and may abstain from following the strict
rules of law.  The decision of the Arbiters shall be final and binding on
all Participating Companies; but failing to agree, they shall call in the
Umpire and the decision of the majority shall be final and binding upon all
parties.  Judgment upon the final decision of the Arbiters may be entered
in any court of competent jurisdiction.


 


C.           
Each Participating Company that is a party to the dispute shall bear the
expense of its own Arbiter, and shall jointly and equally bear with the other
the expense of the Umpire and of the arbitration.  In the event that the
two Arbiters are chosen by the requesting Participating Company, as above
provided, the expense of the Arbiters, the Umpire and the arbitration shall be
equally divided between the Participating Companies that are parties to the
arbitration.


 


ARTICLE
XX     Miscellaneous Provisions


 


A.           
Headings used herein are not a part of this Pooling Agreement and shall not
affect the terms hereof.


 


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B.           
All notices, requests, demands and other communications under this Pooling
Agreement must be in writing and will be deemed to have been duly given or made
as follows:  (a) if sent by registered or certified mail in the United
States return receipt requested, upon receipt; (b) if sent by reputable overnight
air courier, two business days after mailing; (c) if sent by facsimile
transmission, with a copy mailed on the same day in the manner provided in (a)
or (b) above, when transmitted and receipt is confirmed by telephone; or (d) if
otherwise actually personally delivered, when delivered.


 


C.           
This Pooling Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors, permitted assigns and legal
representatives.  Neither this Pooling Agreement, nor any right or
obligation hereunder, may be assigned by any party without the prior written
consent of the other party hereto.


 


D.           
This Pooling Agreement may be executed by the parties hereto in any number of
counterparts, and by each of the parties hereto in separate counterparts, each
of which counterparts, when so executed and delivered, shall be deemed to be an
original, but all such counterparts shall together constitute but one and the
same instrument.


 


E.           
This Pooling Agreement will be construed, performed and enforced in accordance
with the laws of the State of New York without giving effect to its principles
or rules of conflict of laws thereof to the extent such principles or rules
would require or permit the application of the laws of another jurisdiction.


 


F.            
This Pooling Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, statements, representations and
warranties, negotiations and discussions, whether oral or written, of the
parties and there are no general or specific warranties, representations or
other agreements by or among the parties in connection with the entering into
of this Pooling Agreement or the subject matter hereof


 


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except as specifically set forth or
contemplated herein. If any provision of this Pooling Agreement is held to be
void or unenforceable, in whole or in part, (i) such holding shall not
affect the validity and enforceability of the remainder of this Pooling
Agreement, including any other provision, paragraph or subparagraph, and
(ii) the parties agree to attempt in good faith to reform such void or
unenforceable provision to the extent necessary to render such provision
enforceable and to carry out its original intent.


 


G.           
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 hereunder.  Failure on the part of any party to complain
of any act or failure to 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 any of its rights hereunder. 
The rights and remedies provided are cumulative and are not exclusive of any
rights or remedies that any party may otherwise have at law or equity.


 


H.           
Except as expressly provided for in the insolvency provisions above, nothing in
this Pooling Agreement will confer any rights upon any person that is not a
party or a successor or permitted assignee of a party to this Pooling
Agreement.


 


I.            
Wherever the words “include,” “includes” or “including” are used in this
Pooling Agreement, they shall be deemed to be followed by the words “without
limitation.”


 


J.            
This Article XX shall survive the termination of this Pooling Agreement.


 


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IN WITNESS WHEREOF, the Participating
Companies have caused this Pooling Agreement to be executed as of the day and
year first above written.


 


 


	
   

  	
  TOWER
  INSURANCE COMPANY OF NEW YORK

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  TOWER
  NATIONAL INSURANCE COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  CASTLEPOINT
  INSURANCE COMPANY

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


18

















 


EXHIBIT
A


 


POOLING
PERCENTAGES


 


The percentages of participation of
Net Liability of the Pooling Agreement to which this Exhibit A is attached
shall be as indicated below:


 


	
  Company

  	
   

  	
  Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Tower

  	
   

  	
  75

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  CastlePoint Insurance
  Company

  	
   

  	
  25

  	
  %

  



 


 


19