Exhibit 10.46


 


Catastrophe Workers’ Compensation


Reinsurance Contract


Effective: January 1, 2004


 


issued to


 


AmCOMP Preferred Insurance Company


North Palm Beach, Florida


AmCOMP Assurance Corporation


North Palm Beach, Florida


and


any and all insurance companies which are now or


hereafter come under the same ownership or management as the


AmCOMP Group


North Palm Beach, Florida


 





 





















 


Catastrophe Workers’ Compensation


Reinsurance Contract


Effective:
January 1, 2004


 


issued to


 


AmCOMP Preferred Insurance Company


North Palm Beach, Florida


AmCOMP Assurance Corporation


North Palm Beach, Florida


and


any and all insurance companies which are now or


hereafter come under the same ownership or management as the


AmCOMP Group


North Palm Beach, Florida


 


	
  Reinsurers

  	
   

  	
  Participations

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Axis Specialty Limited

  	
   

  	
  25.0

  	
  %

  
	
  Everest Reinsurance
  Company

  	
   

  	
  20.0

  	
   

  
	
  GE Reinsurance Corporation

  	
   

  	
  32.5

  	
   

  
	
  IOA RE, Inc.

  (for Catlin Insurance Company Ltd.)

  	
   

  	
  10.0

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Through Benfield Limited

  	
   

  	
   

  	
   

  
	
  Lloyd’s Underwriters and Companies

  Per Signing Schedule(s)

  	
   

  	
  12.5

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Total

  	
   

  	
  100.0

  	
  %

  



 





















 


Table of Contents


 


 


	
  Article

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  I

  	
   

  	
  Classes of Business Reinsured

  	
  1

  
	
  II

  	
   

  	
  Term

  	
  1

  
	
  III

  	
   

  	
  Special Termination

  	
  2

  
	
  IV

  	
   

  	
  Territory (BRMA 51A)

  	
  2

  
	
  V

  	
   

  	
  Exclusions

  	
  3

  
	
  VI

  	
   

  	
  Retention and Limit

  	
  6

  
	
  VII

  	
   

  	
  Reinstatement

  	
  6

  
	
  VIII

  	
   

  	
  Definitions

  	
  7

  
	
  IX

  	
   

  	
  Other Reinsurance

  	
  9

  
	
  X

  	
   

  	
  Annuities at Company’s
  Option

  	
  10

  
	
  XI

  	
   

  	
  Claims

  	
  10

  
	
  XII

  	
   

  	
  Commutation

  	
  10

  
	
  XIII

  	
   

  	
  Subrogation

  	
  11

  
	
  XIV

  	
   

  	
  Premium

  	
  11

  
	
  XV

  	
   

  	
  Late Payments

  	
  12

  
	
  XVI

  	
   

  	
  Offset (BRMA 36C)

  	
  13

  
	
  XVII

  	
   

  	
  Access to Records (BRMA 1D)

  	
  13

  
	
  XVIII

  	
   

  	
  Liability of the Reinsurer

  	
  14

  
	
  XIX

  	
   

  	
  Net Retained Lines (BRMA
  32E)

  	
  14

  
	
  XX

  	
   

  	
  Errors and Omissions

  	
  14

  
	
  XXI

  	
   

  	
  Currency (BRMA 12A)

  	
  14

  
	
  XXII

  	
   

  	
  Taxes (BRMA 50B)

  	
  15

  
	
  XXIII

  	
   

  	
  Federal Excise Tax (BRMA
  17A)

  	
  15

  
	
  XXIV

  	
   

  	
  Reserves

  	
  15

  
	
  XXV

  	
   

  	
  Insolvency

  	
  17

  
	
  XXVI

  	
   

  	
  Arbitration

  	
  17

  
	
  XXVII

  	
   

  	
  Service of Suit (BRMA 49C)

  	
  18

  
	
  XXVIII

  	
   

  	
  Agency Agreement

  	
  19

  
	
  XXIX

  	
   

  	
  Intermediary (BRMA 23A)

  	
  19

  



 


 





















 


Catastrophe Workers’ Compensation


Reinsurance Contract


Effective: January 1, 2004


 


issued to


 


AmCOMP Preferred Insurance Company


North Palm Beach, Florida


AmCOMP Assurance Corporation


North Palm Beach, Florida


and


any and all insurance companies which are now or


hereafter come under the same ownership or management as the


AmCOMP Group


North Palm Beach, Florida


(hereinafter referred to collectively as the “Company”)


 


by


 


The Subscribing Reinsurer(s) Executing the


Interests and Liabilities Agreement(s)


Attached Hereto


(hereinafter referred to as the “Reinsurer”)


 


Article I - Classes of Business Reinsured


 


By this Contract the Reinsurer agrees to
reinsure the excess liability which may accrue to the Company under its
policies, contracts and binders of insurance or reinsurance (hereinafter called
“policies”) in force at the effective date hereof or issued or renewed on or
after that date, and classified by the Company as Workers’ Compensation and
Employers Liability business, subject to the terms, conditions and limitations
hereinafter set forth.


 


Article II - Term


 


A.           This Contract shall become effective on January 1,
2004, with respect to losses arising out of occurrences commencing on or after
that date, and shall remain in force until December 31, 2004, both days
inclusive.


 


B.             Unless otherwise mutually agreed, the
Reinsurer shall have no liability for losses arising out of occurrences
commencing after the effective date of termination or expiration.


 


C.             Notwithstanding the provisions above, in the
event that any policy subject to this Contract is required by statute,
regulation or by order of an insurance department to be continued in force, the
Reinsurer agrees to extend reinsurance coverage hereunder following the
termination or expiration of this Contract with respect to such policy until
the first date that the Company may lawfully non-renew, cancel or terminate
such policy, whether or not the


 


1





















 


Company
actually does non-renew, cancel or terminate such policy. However, under no
circumstances shall runoff coverage under this provision exceed 23 months.


 


D.            Seven years after the termination or
expiration of this Contract, the Company shall advise the Reinsurer of any
outstanding claims and/or occurrences (each hereinafter referred to as a “claim”)
arising during the term hereof, which have not been finally settled and which
may cause a recovery under this Contract, and no liability shall attach
hereunder for any claim not reported to the Reinsurer within this seven year
period.


 


Article III - Special Termination


 


Notwithstanding the provisions of Article II
above, the Company may terminate a Subscribing Reinsurer’s percentage share in
this Contract by giving not less than 30 days prior written notice to the
Subscribing Reinsurer in the event any of the following circumstances occur:


 


1.               The Subscribing Reinsurer’s policyholders’
surplus at the inception of this Contract has been reduced by more than 20.0%
of the amount of surplus 12 months prior to that date; or


 


2.               The Subscribing Reinsurer’s policyholders’
surplus at any time during the term of this Contract has been reduced by more
than 20.0% of the amount of surplus at the date of the Subscribing Reinsurer’s
most recent financial statement filed with regulatory authorities and available
to the public as of the inception of this Contract; or


 


3.               The Subscribing Reinsurer’s A.M. Best’s
rating has been assigned or downgraded below A- (including any NR rating)
and/or Standard & Poor’s rating has been assigned or downgraded below
BBB+; or


 


4.               The Subscribing Reinsurer has become merged
with, acquired by or controlled by any other company, corporation or individual(s)
not controlling the Subscribing Reinsurer’s operations previously; or


 


5.               A State Insurance Department or other legal
authority has ordered the Subscribing Reinsurer to cease writing business; or


 


6.               The Subscribing Reinsurer has become
insolvent or has been placed into liquidation or receivership (whether
voluntary or involuntary) or proceedings have been instituted against the
Subscribing Reinsurer for the appointment of a receiver, liquidator,
rehabilitator, conservator or trustee in bankruptcy, or other agent known by
whatever name, to take possession of its assets or control of its operations;
or


 


7.               The Subscribing Reinsurer has ceased assuming
new and renewal treaty reinsurance business.


 


Article IV - Territory (BRMA 51A)


 


The territorial limits of this Contract shall
be identical with those of the Company’s policies.


 


2





















 


Article V - Exclusions


 


A.           This Contract does not apply to and specifically excludes the
following:


 


1.               Reinsurance assumed by the Company, except:


 


a.               Agency reinsurance where the policies
involved are to be reunderwritten in accordance with the underwriting standards
of the Company and reissued as Company policies at the next anniversary or
expiration date;


 


b.              Intercompany reinsurance between any of the
reinsured companies under this Contract.


 


2.               Ex-gratia payments.


 


3.               Risks subject to a deductible in excess of
$25,000, or a self-insured retention excess of $25,000, unless such deductible
or self-insured retention is otherwise mandated by statute or regulatory
authority.


 


4.               Nuclear risks as defined in the “Nuclear
Incident Exclusion Clause - Liability - Reinsurance (U.S.A.)” and the “Nuclear
Incident Exclusion Clause - Liability - Reinsurance (Canada)” and loss or
liability defined in the “Nuclear Incident Exclusion Clause - Reinsurance -
No. 4” attached to and forming part of this Contract.


 


5.               Pollution liability coverages excluded under
the provisions of the “Pollution Exclusion Clause - General Liability -
Reinsurance (BRMA 39C)” attached to and forming part of this Contract.


 


6.               Liability as a member, subscriber or
reinsurer of any Pool, Syndicate or Association, but this exclusion shall not
apply to Assigned Risk Plans or similar state-mandated plans.


 


7.               All liability of the Company 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 guaranty fund, insolvency fund, plan, pool, association,
fund or other arrangement, however denominated, established or governed, which
provides for any assessment of or payment or assumption by the Company of part
or all of any claim, debt, charge, fee or other obligation of an 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.


 


8.               Loss or liability as excluded in the “War
Risk Exclusion Clause (Reinsurance)” attached to and forming part of this
Contract.


 


9.               Operation under the jurisdiction of the
United States Longshore and Harbor Workers’ Compensation Act or the Jones Act,
except for incidental exposures (i.e., 10.0% or less of the insured’s estimated
payroll when the account is quoted).


 


3





















 


10.         Operations
employing the process of nuclear fission or fusion or handling of radioactive
material, which operations include but are not limited to:


 


a.               The use of nuclear reactors such as atomic
piles, particle accelerators or generators; or


 


b.              The use, handling or transportation of
radioactive materials, or the use, handling or transportation of any weapon of
war or explosive device employing nuclear fission or fusion.


 


However,
subparagraphs a and b above shall not apply to:


 


i.                  The exclusive use of particle accelerators
incidental to ordinary industrial or education research pursuits, or


 


ii.               The
exclusive use, handling or transportation of radioisotopes for medical or
industrial use, or to radium or radium compounds.


 


11.         Operation
of docks or wharves as related to port authorities.


 


12.         The
manufacturing, mining, refining, processing, distribution, installation,
removal or encapsulment of asbestos.


 


13.         Risks
involving known exposure to the following substances:


 


a.               Dioxin;


 


b.              Polychlorinated biphenols;


 


c.               Asbestos.


 


14.         All
railway operations except sidetrack agreements.


 


15.         Amusement
parks, carnivals or circuses. This exclusion shall not apply to miniature golf
courses or driving range operations.


 


16.         Subaquaeous
operations.


 


17.         Underground
mining; however, this exclusion shall not be construed to apply to open
pit-quarrying or “surface mining” operations.


 


18.         Blasting
operations, except for incidental exposures (i.e., 10.0% or less of the
insured’s estimated payroll when the account is quoted).


 


19.         Demolition
of buildings or structures in excess of five stories.


 


20.         Shoring,
underpinning or moving of buildings or structures.


 


21.         Erection
or repair of scaffolds if 10.0% or more of the insured’s annual remuneration is
attributed to NCCI Class Code 9529.


 


4





















 


22.         Construction
of tunnels or dams.


 


23.         Fireworks,
fuses, or any explosive substance (as defined below) as follows:


 


a.               Manufacturers or importers of such items;


 


b.              Loading of such items into containers for use
as explosive objects, propellent charges or detonation devices and the storage
thereof (except as previously provided for, on an incidental basis, in
exclusion 18);


 


c.               Manufacturers or importers of any product in
which such items are an ingredient;


 


d.              Handling, storage, transportation or use of
such items (except as previously provided for, on an incidental basis, in
exclusion 18).


 


“Explosive
substance” is defined as any substance manufactured for the express purpose of
exploding as differentiated from commodities used industrially and which are
only incidentally explosive.


 


24.         Onshore
and offshore gas and oil drilling operations.


 


25.         Operations
where principal business includes the use of any owned or unowned aircraft, or
any device or machine intended for and/or aiding in the achievement of
atmospheric flight, projection or orbit, for flight, and/or the ownership or
operation of any airport. This exclusion shall not apply where exposure is
incidental (i.e., constitutes 10.0% or less of the insured’s payroll) to the
principal business operations and the aircraft contains eight seats or fewer.


 


26.         Municipal
law enforcement organizations and municipal fire fighting organizations,
whether professional or voluntary.


 


27.         Logging
or forestry operations.


 


28.         Professional
employment organizations (PEO’s).


 


29.         Professional
sports teams.


 


30.         Operations
where the principal business of the risk is manufacturing, production,
distribution, refining or storage of natural or artificial fuel, gas, butane,
propane, liquefied petroleum gases or gasoline. This exclusion shall not apply
to any risk whose principal business operations are any of the following:


 


a.               Retail gasoline service station, either full
or self service;


 


b.              Convenience store with gasoline sales with
its petroleum gas and/or storage tanks located below ground.


 


31.         Notwithstanding
any provision to the contrary within this Contract or any amendment thereto,
loss, damage, cost or expense directly or indirectly caused by, contributed to


 


5





















 


by,
resulting from or arising out of or in connection with any “act of terrorism”
as defined in the Terrorism Risk Insurance Act of 2002 (the “Act”), regardless
of any other cause or event contributing concurrently or in any sequence to the
loss.


 


Notwithstanding
the above and subject otherwise to the terms, conditions and limitations of
this Contract, this Contract will pay actual loss or damage caused by any act
of terrorism which does not meet the definition of “act of terrorism” set forth
in the Act, provided in no event will this Contract provide coverage for loss,
damage, cost or expense directly or indirectly caused by, contributed to by,
resulting from, or arising out of or in connection with biological, chemical or
nuclear explosion, pollution, contamination and/or fire following thereon.


 


B.             In the event the Company is inadvertently
bound on any risk which is excluded under subparagraph 9, subparagraphs 14
through 27, or subparagraph 30 of paragraph A above, the reinsurance provided
under this Contract shall apply on such risk until discovery by the Company of
the existence of such risk and for 30 days thereafter or for a period of time
specific to the applicable state cancellation requirements, not to exceed 120
days. This limitation shall not apply as respects Arizona. Coverage shall cease
after such time or at policy anniversary as respects Arizona policies, unless
the Company has received from the Reinsurer written notice of its approval of
such risk within 30 days.


 


C.             Notwithstanding the foregoing, any
reinsurance falling within the scope of one or more of the exclusions set forth
above that is specially accepted by the Reinsurer from the Company shall be
covered under this Contract and subject to all of the terms and conditions
hereof, except as such terms are modified by the special acceptance. In the
event a reinsurer becomes a party to this Contract subsequent to one or more
special acceptances hereunder, the new reinsurer shall automatically accept
such special acceptance(s) as being covered hereunder.


 


Article VI - Retention and Limit


 


A.           The Company shall retain and be liable for
the first $10,000,000 of ultimate net loss (regardless of the combination of
classes of business, number of policies or number of interests involved)
arising out of each occurrence. The Reinsurer shall then be liable for the
amount by which such ultimate net loss exceeds the Company’s retention, but the
liability of the Reinsurer shall not exceed $10,000,000 as respects any one
occurrence.


 


B.             The Company’s ultimate net loss, for the
purpose of this Contract, shall be deemed to be a maximum of $5,000,000 any one
life from the ground up.


 


Article VII
- Reinstatement


 


A.           In the event all or any portion of the
reinsurance hereunder is exhausted by loss, the amount so exhausted shall be
reinstated immediately from the time the occurrence commences hereon. For each
amount so reinstated the Company agrees to pay additional premium equal to the
product of the following:


 


6





















 


1.               The percentage of the occurrence limit
reinstated (based on the loss paid by the Reinsurer); times


 


2.               The earned reinsurance premium for the term
of this Contract (exclusive of reinstatement premium).


 


B.             Whenever the Company requests payment by the
Reinsurer of any loss hereunder, the Company shall submit a statement to the
Reinsurer of reinstatement premium due the Reinsurer. If the earned reinsurance
premium for the term of this Contract has not been finally determined as of the
date of any such statement, the calculation of reinstatement premium due shall
be based on the annual deposit premium and shall be readjusted when the earned
reinsurance premium for the term of this Contract has been finally determined.
Any reinstatement premium shown to be due the Reinsurer as reflected by any
such statement (less prior payments, if any) shall be payable by the Company
concurrently with payment by the Reinsurer of the requested loss. Any return
reinstatement premium shown to be due the Company shall be remitted by the
Reinsurer as promptly as possible after receipt and verification of the Company’s
statement.


 


C.             Notwithstanding anything stated herein, the
liability of the Reinsurer hereunder shall not exceed $10,000,000 as respects
loss or losses arising out of any one occurrence, nor shall it exceed
$20,000,000 in all during the term of this Contract.


 


Article VIII
- Definitions


 


A.           “Ultimate net loss” as used herein is defined
as the sum or sums (including loss in excess of policy limits, extra
contractual obligations and any loss adjustment expense, as hereinafter
defined) paid or payable by the Company in settlement of claims and in
satisfaction of judgments rendered on account of such claims, after deduction
of all recoveries from subrogation, all recoveries and all claims on inuring
insurance or reinsurance, whether collectible or not. Nothing herein shall be
construed to mean that losses under this Contract are not recoverable until the
Company’s ultimate net loss has been ascertained.


 


B.             “Loss in excess of policy limits” and “extra
contractual obligations” as used herein shall be defined as follows:


 


1.               “Loss in excess of policy limits” shall mean
90.0% of any amount paid or payable by the Company in excess of its policy
limits, but otherwise within the terms of its policy, such loss in excess of
the Company’s policy limits having been incurred because of, but not limited
to, failure by the Company to settle within the policy limits or by reason of
the Company’s 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 an action
against its insured or reinsured or in the preparation or prosecution of an
appeal consequent upon such an action.


 


2.               “Extra contractual obligations” shall mean
90.0% of any punitive, exemplary, compensatory or consequential damages paid or
payable by the Company, not covered by any other provision of this Contract and
which arise from the handling of any claim on business subject to this
Contract, such liabilities arising because of, but


 


7





















 


not
limited to, failure by the Company to settle within the policy limits or by
reason of the Company’s 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
an action against its insured or reinsured or in the preparation or prosecution
of an appeal consequent upon such an action. An extra contractual obligation
shall be deemed, in all circumstances, to have occurred on the same date as the
loss covered or alleged to be covered under the policy.


 


Notwithstanding
anything stated herein, this Contract shall not apply to any loss in excess of
policy limits or any extra contractual obligation incurred by the Company as a
result of any fraudulent and/or criminal act by any officer or director of the
Company acting individually or collectively or in collusion with any individual
or corporation or any other organization or party involved in the presentation,
defense or settlement of any claim covered hereunder.


 


If
any provision of this paragraph B 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 Contract or the enforceability of
such provision in any other jurisdiction.


 


C.             “Occurrence” as used herein is defined as an
accident or occurrence or a series of accidents or occurrences arising out of
or caused by one event, whether involving one or more of the Company’s
policies, except that:


 


1.               As respects Workers’ Compensation policies,
each occupational or industrial disease or cumulative injury case contracted by
an employee of an insured shall be deemed to have been caused by a separate
occurrence commencing on:


 


a.               The date of disability for which compensation
is payable if the case is compensable under the Workers’ Compensation Law;


 


b.              The date disability due to the disease
actually began if the case is not compensable under the Workers’ Compensation
Law; or


 


c.               The date of cessation of employment if claim
is made after employment has ceased.


 


2.               Notwithstanding the provisions of
subparagraph 1 above, as respects losses resulting from occupational disease
and cumulative trauma suffered by employees of an insured for which the employer
is liable as a result of a sudden and accidental event not exceeding 48 hours
in duration, all such losses shall be considered one occurrence and may be
combined with losses not classified as occupational disease or cumulative
trauma which arise out of the same event and the combination of such losses
shall be considered as one occurrence within the meaning hereof.


 


3.               Notwithstanding the foregoing, the following
shall apply to occurrences involving natural disasters:


 


a.               An occurrence shall be limited to damage,
injury or loss arising out of a natural disaster during any continuous 168 hour
period.


 


8





















 


b.              The Company may choose the date and time when
such 168 hour period commences and if the occurrence is of greater duration
than 168 hours, the Company may divide such occurrence into two or more
occurrences, provided no two periods overlap and provided no period commences
earlier than the date and time of the first loss to the Company in such
occurrence.


 


c.               “Natural disaster” shall mean loss caused by
the perils of tornado, cyclone, windstorm, hurricane and hail arising from the
same atmospheric disturbance; earthquake, including ensuing fire, landslide,
mudslide, flood, tidal wave; volcanic eruptions; flood; tides; tidal wave;
landslide/mudslide; and meteors.


 


D.            “Occupational or industrial disease” shall
mean any abnormal condition that fulfills all of the following conditions:


 


1.               It is not traceable to a definite compensable
accident occurring during the employee’s present or past employment; and


 


2.               It has been caused by exposure to a disease
producing agent or agents present in the workers’ occupational environment; and


 


3.               It has resulted in a disability or death.


 


E.              “Cumulative injury” is any injury that
fulfills all of the following conditions:


 


1.               It is not traceable to a definite compensable
accident occurring during the employee’s present or past employment; and


 


2.               It has occurred from, and has been aggravated
by, a repetitive employment-related activity; and


 


3.               It has resulted in a disability or death.


 


F.              “Loss adjustment expense” as used herein
shall mean expenses assignable to the investigation, appraisal, adjustment,
settlement, litigation, defense and/or appeal of specific claims, regardless of
how such expenses are classified for statutory reporting purposes. Loss
adjustment expense shall include, but not be limited to, interest on judgments,
expenses of outside adjusters and claims-specific declaratory judgment expenses
or other legal expenses and costs incurred in connection with coverage
questions and legal actions connected thereto, but shall not include office
expenses or salaries of the Company’s regular employees other than medical
management personnel whose cost the Company will bill to specific cases on a
time and expense basis.


 


Article IX - Other Reinsurance


 


A.           The Company shall be permitted to carry
facultative reinsurance, recoveries under which shall inure to the benefit of
this Contract.


 


9





















 


B.             The Company shall be permitted to carry underlying excess of loss
reinsurance and quota share reinsurance, recoveries under which shall inure
solely to the benefit of the Company and be entirely disregarded in applying
all of the provisions of this Contract.


 


Article X - Annuities at Company’s Option


 


A.           Whenever the Company is required, or elects,
to purchase an annuity or to negotiate a structured settlement in excess of the
retention of this Contract, either in satisfaction of a judgment or in an
out-of-court settlement or otherwise, the cost of the annuity or the structured
settlement, as the case may be, shall be deemed part of the Company’s ultimate
net loss, provided such annuity or structured settlement terms grant the
Company full and final release as respects the indemnity potion of the
settlement. Additionally, it is the Company’s intent to place all annuities or
structured settlements with a carrier rated “A” or better by A.M. Best.


 


B.             The terms “annuity” or “structured settlement”
shall be understood to mean any insurance policy, lump sum payment, agreement
or device of whatever nature resulting in the payment of a lump sum by the
Company in settlement of any or all future liabilities which may attach to it
as a result of an occurrence.


 


C.             In the event the Company purchases an annuity
which inures in whole or in part to the benefit of the Reinsurer, it is
understood that the liability of the Reinsurer is not released thereby. In the
event the Company is required to provide benefits not provided by the annuity
for whatever reason, the Reinsurer shall pay its proportional share of any
loss.


 


Article XI - Claims


 


A.           Whenever a claim or settlement by the Company
appears likely, in the sole judgment of the Company, to result in a claim under
this Contract, the Company shall notify the Reinsurer. Further, the Company
shall notify the Reinsurer whenever a claim involves a fatality, amputation,
spinal cord damage, brain damage, blindness or extensive burns, regardless of
liability, including all subsequent developments. The Reinsurer shall have the
right to participate, at its own expense, in the defense of any claim or suit
or proceeding involving this reinsurance.


 


B.             All claim settlements made by the Company,
provided such settlements are within the terms of this Contract, shall be
binding upon the Reinsurer, and the Reinsurer agrees to pay all amounts for
which it may be liable upon receipt of reasonable evidence of the amount paid
by the Company.


 


Article XII -
Commutation


 


A.           Either the Company or the Reinsurer may request commutation of that
portion of any excess loss hereunder represented by any outstanding claim or
claims after seven years from the date of an occurrence. If both parties desire
to commute a claim or claims, then within 60 days after such agreement, the
Company shall submit a statement of valuation of the outstanding claim or
claims showing the elements considered
reasonable to establish 


 


10





















 


the
ultimate net loss and the Reinsurer shall pay the amount requested. Commutation
of loss will be calculated on the present value of the loss within the layer of
coverage.


 


B.             If agreement, as outlined in the paragraph
above, cannot be reached, the effort can be abandoned or, alternately, the
Company and the Reinsurer may mutually appoint an actuary or appraiser to
investigate, determine and capitalize such claim or claims. If both parties
then agree, the Reinsurer shall pay its proportion of the amount so determined
to be the capitalized value of such claim or claims.


 


C.             If the parties, as outlined in the paragraphs
above, fail to agree, they may abandon the effort or they may agree to settle
any difference using a panel of three actuaries, one to be chosen by each party
and the third by the two so chosen. If either party refuses or neglects to
appoint an actuary within 60 days, the other party may appoint two actuaries.
If the two actuaries fail to agree on the selection of a third actuary within
60 days of their appointment, each of them shall name two, of whom the other
shall decline one and the decision shall be made by drawing lots. All the
actuaries shall be regularly engaged in the valuation of Workers’ Compensation
claims and shall be Fellows of the Casualty Actuarial Society or Members of the
American Academy of Actuaries. None of the actuaries shall be under the control
of either party to this Contract.


 


D.            Each party shall submit its case to its
actuary within 60 days of the appointment of the third actuary. The decision in
writing of any two actuaries, when filed with the parties hereto, shall be
final and binding on both parties. The expense of the actuaries and of the
commutation shall be equally divided between the two parties. Said commutation
shall take place in North Palm Beach, Florida, unless some other place is
mutually agreed upon by the Company and the Reinsurer.


 


Article XIII - Subrogation


 


The Reinsurer shall be credited with
recoveries from subrogation (i.e., reimbursement obtained or recovery made by
the Company, less the actual cost, excluding salaries of officials and
employees of the Company and sums paid to attorneys as retainer, of obtaining
such reimbursement or making such recovery) on account of claims and
settlements involving reinsurance hereunder. Recoveries therefrom shall always
be used to reimburse the excess carriers in the reverse order of their priority
according to their participation before being used in any way to reimburse the
Company for its primary loss. The Company hereby agrees to enforce its rights
to subrogation relating to any loss, a part of which loss was sustained by the
Reinsurer, and to prosecute all claims arising out of such rights.


 


Article XIV
- Premium


 


A.           As premium for the reinsurance provided
hereunder, the Company shall pay the Reinsurer 0.27% of its net earned premium
for the term of this Contract, subject to a minimum premium
of $630,000 (or a pro rata portion thereof if this Contract is terminated prior
to December 31, 2004).


 


11





















 


B.             The Company shall pay the Reinsurer an annual
deposit premium of $700,000 in four equal installments of $175,000 on January 1,
April 1, July 1 and October 1 of 2004. However, no deposit
premium installments shall be due after the effective date of termination.


 


C.             Within 60 days following the termination or
expiration of this Contract and within 60 days following the 12-month period
thereafter, the Company shall provide a report to the Reinsurer setting forth
the premium due hereunder for the term of this Contract, computed in accordance
with paragraph A, and any additional premium due the Reinsurer shall be
remitted by the Company with its report. If the premium so computed is less
than the previously paid, but more than the minimum premium, the balance shall
be refunded by the Reinsurer to the Company within 30 days of the report.


 


D.            “Net earned premium” as used herein is
defined as the Company’s gross earned premium for the classes of business
subject to this Contract, adjusted for experience modification, discounts,
credits, surcharges, expense constants and deductible credits, plus or minus
the Reinsurer’s pro rata share of any premium arising from audit adjustments,
minus cancellation and return premium, minus premiums paid for facultative reinsurance
which inures to the benefit of this Contract.


 


Article XV - Late Payments


 


A.           The provisions of this Article shall not
be implemented unless specifically invoked, in writing, by one of the parties
to this Contract.


 


B.             In the event any premium, loss or other
payment due either party is not received by the intermediary named Article XXIX
(hereinafter referred to as the “Intermediary”) by the payment due date, the
party to whom payment is due may, by notifying the Intermediary in writing,
require the debtor party to pay, and the debtor party agrees to pay, an
interest penalty on the amount past due calculated for each such payment on the
last business day of each month as follows:


 


1.               The number of full days which have expired
since the due date or the last monthly calculation, whichever the lesser, times


 


2.               1/365ths of the six-month United States
Treasury Bill rate as quoted in The Wall
Street Journal on the first business day of the month for which the
calculation is made; times


 


3.               The amount past due, including accrued
interest.


 


It
is agreed that interest shall accumulate until payment of the original amount
due plus interest penalties have been received by the Intermediary.


 


C.             The establishment of the due date shall, for
purposes of this Article, be determined as follows:


 


1.               As respects the payment of routine deposits
and premiums due the Reinsurer, the due date shall be as provided for in the
applicable section of this Contract. In the event a due date is not
specifically stated for a given payment, it shall be deemed due 30 days


 


12





















 


after
the date of transmittal by the Intermediary of the initial billing for each
such payment.


 


2.               Any claim or loss payment due the Company
hereunder shall be deemed due 30 business days after the proof of loss and
demand for payment is transmitted to the Reinsurer. If such loss or claim
payment is not received within the 30 days, interest will accrue on the payment
or amount overdue in accordance with paragraph B above, from the date the proof
of loss and demand for payment was transmitted to the Reinsurer.


 


3.               As respects any payment, adjustment or return
due either party not otherwise provided for in subparagraphs 1 and 2 above, the
due date shall be as provided for in the applicable section of this
Contract. In the event a due date is not specifically stated for a given
payment, it shall be deemed due 30 business days following transmittal of
written notification that the provisions of this Article have been invoked.


 


For
purposes of interest calculations only, amounts due hereunder shall be deemed
paid upon receipt by the Intermediary.


 


D.            Nothing herein shall be construed as limiting
or prohibiting a Subscribing Reinsurer from contesting the validity of any
claim, or from participating in the defense of any claim or suit, or
prohibiting either party from contesting the validity of any payment or from
initiating any arbitration or other proceeding in accordance with the
provisions of this Contract. If the debtor party prevails in an arbitration or
other proceeding, then any interest penalties due hereunder on the amount in
dispute shall be null and void. If the debtor party loses in such proceeding,
then the interest penalty on the amount determined to be due hereunder shall be
calculated in accordance with the provisions set forth above unless otherwise
determined by such proceedings. If a debtor party advances payment of any
amount it is contesting, and proves to be correct in its contestation, either
in whole or in part, the other party shall reimburse the debtor party for any
such excess payment made plus interest on the excess amount calculated in
accordance with this Article.


 


E.              Interest penalties arising out of the
application of this Article that are $1,000 or less from any party shall
be waived unless there is a pattern of late payments consisting of three or
more items over the course of any 12-month period.


 


Article XVI
- Offset (BRMA 36C)


 


The Company and the Reinsurer shall have the
right to offset any balance or amounts due from one party to the other under
the terms of this Contract. The party asserting the right of offset may
exercise such right any time whether the balances due are on account of
premiums or losses or otherwise.


 


Article XVII - Access to Records (BRMA 1D)


 


The Reinsurer or its designated
representatives shall have access at any reasonable time to all records of the
Company which pertain in any way to this reinsurance.


 


13





















 


Article XVIII - Liability of the Reinsurer


 


A.           The liability of the Reinsurer shall follow
that of the Company in every case and be subject in all respects to all the
general and specific stipulations, clauses, waivers and modifications of the
Company’s policies and any endorsements thereon. However, in no event shall
this be construed in any way to provide coverage outside the terms and
conditions set forth in this Contract.


 


B.             Nothing herein shall in any manner create any
obligations or establish any rights against the Reinsurer in favor of any third
party or any persons not parties to this Contract.


 


Article XIX - Net Retained Lines (BRMA 32E)


 


A.           This Contract applies only to that portion of
any policy which the Company retains net for its own account (prior to
deduction of any underlying reinsurance specifically permitted in this
Contract), and in calculating the amount of any loss hereunder and also in
computing the amount or amounts in excess of which this Contract attaches, only
loss or losses in respect of that portion of any policy which the Company
retains net for its own account shall be included.


 


B.             The amount of the Reinsurer’s liability
hereunder in respect of any loss or losses shall not be increased by reason of
the inability of the Company to collect from any other reinsurer(s), whether
specific or general, any amounts which may have become due from such
reinsurer(s), whether such inability arises from the insolvency of such other
reinsurer(s) or otherwise.


 


Article XX - Errors and Omissions


 


Except as provided in paragraph D of Article II,
inadvertent delays, errors or omissions made in connection with this Contract
or any transaction hereunder shall not relieve either party from any liability
which would have attached had such delay, error or omission not occurred,
provided always that such error or omission is rectified as soon as possible
after discovery.


 


Article XXI - Currency (BRMA 12A)


 


A.           Whenever the word “Dollars” or the “$” sign
appears in this Contract, they shall be construed to mean United States Dollars
and all transactions under this Contract shall be in United States Dollars.


 


B.             Amounts paid or received by the Company in
any other currency shall be converted to United States Dollars at the rate of
exchange at the date such transaction is entered on the books of the Company.


 


14





















 


Article XXII
- Taxes (BRMA
50B)


 


In consideration of the terms under which
this Contract is issued, the Company will not claim a deduction in respect of
the premium hereon when making tax returns, other than income or profits tax
returns, to any state or territory of the United States of America or the
District of Columbia.


 


Article XXIII - Federal Excise Tax (BRMA 17A)


 


(Applicable to those reinsurers, excepting
Underwriters at Lloyd’s London and other reinsurers exempt from Federal Excise
Tax, who are domiciled outside the United States of America.)


 


A.           The Reinsurer has agreed to allow for the
purpose of paying the Federal Excise Tax the applicable percentage of the premium
payable hereon (as imposed under Section 4371 of the Internal Revenue
Code) to the extent such premium is subject to the Federal Excise Tax.


 


B.             In the event of any return of premium
becoming due hereunder the Reinsurer will deduct the applicable percentage from
the return premium payable hereon and the Company or its agent should take
steps to recover the tax from the United States Government.


 


Article XXIV
- Reserves


 


(Applies only to a reinsurer which does not
qualify for full credit with any insurance regulatory authority having
jurisdiction over the Company’s reserves, or which is or becomes rated B++ or
lower or holds an NR rating by A.M. Best or is or becomes rated BBB or
lower by Standard & Poor’s.)


 


A.           As regards policies or bonds issued by the Company
coming within the scope of this Contract, the Company agrees that when it shall
file with the insurance regulatory authority or set up on its books reserves
for unearned premium (includes deposit premiums paid in excess of ceded
premiums earned by the Reinsurer) losses covered hereunder which it shall be
required by law to set up, it will forward to the Reinsurer a statement showing
the proportion of such reserves which is applicable to the Reinsurer. The
Reinsurer hereby agrees to fund such reserves in respect of known outstanding
losses that have been reported to the Reinsurer and allocated loss adjustment
expense relating thereto, losses and allocated loss adjustment expense paid by
the Company but not recovered from the Reinsurer, plus reserves for losses and
allocated loss adjustment expense incurred but not reported, as shown in the
statement prepared by the Company (hereinafter referred to as “Reinsurer’s
Obligations”) by Regulation 114 trust accounts, funds withheld, cash advances
or a Letter of Credit, or combination thereof. The Reinsurer shall have the
option of determining the method of funding provided it is acceptable to the
insurance regulatory authorities having jurisdiction over the Company’s
reserves.


 


B.             When funding by a Letter of Credit, the
Reinsurer agrees to apply for and secure timely delivery to the Company of a
clean, irrevocable and unconditional Letter of Credit issued by a bank meeting
the NAIC Securities Valuation Office credit standards for issuers of Letters of
Credit and containing provisions acceptable to the insurance regulatory
authorities


 


15





















 


having
jurisdiction over the Company’s reserves in an amount equal to the Reinsurer’s
proportion of said reserves. Such Letter of Credit shall be issued for a period
of not less than one year, and shall contain an “evergreen” clause, which
automatically extends the term for one year from its date of expiration or any
future expiration date unless 30 days (60 days where required by insurance
regulatory authorities) prior to any expiration date the issuing bank shall
notify the Company by certified or registered mail that the issuing bank elects
not to consider the Letter of Credit extended for any additional period.


 


C.             The Reinsurer and Company agree that the
Letters of Credit provided by the Reinsurer pursuant to the provisions of this
Contract may be drawn upon at any time, notwithstanding any other provision of
this Contract, and be utilized by the Company or any successor, by operation of
law, of the Company including, without limitation, any liquidator,
rehabilitator, receiver or conservator of the Company for the following
purposes, unless otherwise provided for in a separate Trust Agreement:


 


1.               To reimburse the Company for the Reinsurer’s
Obligations, the payment of which is due under the terms of this Contract and
which has not been otherwise paid;


 


2.               To make refund of any sum which is in excess
of the actual amount required to pay the Reinsurer’s Obligations under this
Contract, if so requested by the Reinsurer;


 


3.               To fund an account with the Company for the
Reinsurer’s Obligations. Such cash deposit shall be held in an interest bearing
account separate from the Company’s other assets, and interest thereon not in
excess of the prime rate shall accrue to the benefit of the Reinsurer;


 


4.               To pay the Reinsurer’s share of any other
amounts the Company claims are due under this Contract.


 


In the event the amount
drawn by the Company on any Letter of Credit is in excess of the actual amount
required for subparagraphs 1 or 3, or in the case of subparagraph 4, the actual
amount determined to be due, the Company shall promptly return to the Reinsurer
the excess amount so drawn. All of the foregoing shall be applied without
diminution because of insolvency on the part of the Company or the Reinsurer.


 


D.            The issuing bank shall have no responsibility
whatsoever in connection with the propriety of withdrawals made by the Company
or the disposition of funds withdrawn, except to ensure that withdrawals are
made only upon the order of properly authorized representatives of the Company.


 


E.              At quarterly intervals and on an estimated
basis 45 days prior to each December 31, or more frequently as agreed but
never more frequently than quarterly, the Company shall prepare a specific
statement of the Reinsurer’s Obligations, for the sole purpose of amending the
Letter of Credit, in the following manner:


 


1.               If the statement shows that the Reinsurer’s
Obligations exceed the balance of credit as of the statement date, the
Reinsurer shall, within 30 days after receipt of notice of such excess, secure
delivery to the Company of an amendment to the Letter of Credit increasing the
amount of credit by the amount of such difference.


 


16





















 


2.               If, however, the statement shows that the
Reinsurer’s Obligations are less than the balance of credit as of the statement
date, the Company shall, within 30 days after receipt of written request from
the Reinsurer, release such excess credit by agreeing to secure an amendment to
the Letter of Credit reducing the amount of credit available by the amount of
such excess credit.


 


Article XXV
- Insolvency


 


A.           In the event of the insolvency of one or more
of the reinsured companies, this reinsurance shall be payable directly to the
company or to its liquidator, receiver, conservator or statutory successor on
the basis of the liability of the company without diminution because of the
insolvency of the company or because the liquidator, receiver, conservator or
statutory successor of the company has failed to pay all or a portion of any
claim. 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.


 


B.             Where two or more reinsurers are involved in
the same claim and a majority in interest elect to interpose defense to such
claim, the expense shall be apportioned in accordance with the terms of this
Contract as though such expense had been incurred by the company.


 


C.             It is further understood and agreed that, in
the event of the insolvency of one or more of the reinsured companies, the
reinsurance under this Contract shall be payable directly by the Reinsurer to
the company or to its liquidator, receiver or statutory successor, except as
provided by Section 4118(a) of the New York Insurance Law or except (1) where
this Contract 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.


 


Article XXVI
- 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 Contract, it is hereby mutually agreed
that such dispute or difference of opinion shall be submitted to arbitration.
One Arbiter shall be chosen by the Company, the other by the Reinsurer, and an
Umpire shall be chosen by the two Arbiters before they enter upon arbitration,
all of whom shall be active or retired disinterested executive officers of
insurance or reinsurance companies or Lloyd’s


 


17





















 


London
Underwriters. In the event that either party should fail to choose an Arbiter
within 30 days following a written request by the other party to do so, the
requesting party may choose two Arbiters who shall in turn choose an Umpire
before entering upon arbitration. If the two Arbiters fail to agree upon the
selection of an Umpire within 30 days following their appointment, the Umpire
shall be appointed in accordance with the procedures of the American
Arbitration Association.


 


B.             Each party shall present its case to the
Arbiters within 30 days following the date of appointment of the Umpire. The
Arbiters shall consider this Contract 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 both parties; but failing to agree,
they shall call in the Umpire and the decision of the majority shall be final
and binding upon both parties. Judgment upon the final decision of the Arbiters
may be entered in any court of competent jurisdiction.


 


C.             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 Company
to each of the reinsurers constituting one party, provided, however, 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 participating under the terms of this Contract from
several to joint.


 


D.            Each party 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
one party, as above provided, the expense of the Arbiters, the Umpire and the
arbitration shall be equally divided between the two parties.


 


E.              Any arbitration proceedings shall take place
at a location mutually agreed upon by the parties to this Contract, but
notwithstanding the location of the arbitration, all proceedings pursuant
hereto shall be governed by the law of the state in which the Company has its
principal office.


 


Article XXVII - Service of Suit (BRMA 49C)


 


(Applicable if the Reinsurer is not domiciled
in the United States of America, and/or is not authorized in any State,
Territory or District of the United States where authorization is required by
insurance regulatory authorities)


 


A.           It is agreed that in the event the Reinsurer
fails to pay any amount claimed to be due hereunder, the Reinsurer, 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.


 


B.             Further, pursuant to any statute of any
state, territory or district of the United States which makes provision
therefor, the Reinsurer hereby designates the party named in its Interests


 


18





















 


and
Liabilities Agreement, or if no party is named therein, 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 Contract.


 


Article XXVIII - Agency Agreement


 


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


 


Article XXIX - Intermediary (BRMA 23A)


 


Benfield Inc. is hereby recognized as the
Intermediary negotiating this Contract for all business hereunder. All
communications (including but not limited to notices, statements, premium,
return premium, commissions, taxes, losses, loss adjustment expense, salvages
and loss settlements) relating thereto shall be transmitted to the Company or
the Reinsurer through Benfield Inc., 3600 West 80th Street, Minneapolis,
Minnesota 55431. Payments by the Company 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 Company only to the
extent that such payments are actually received by the Company.


 


In Witness Whereof, the Company by its duly authorized
representative has executed this Contract as of the date undermentioned at:


 


North Palm Beach, Florida, this 9th day of July in the year 2004.


 


	
   

  	
  /s/
  [ILLEGIBLE]

  
	
   

  	
  AmCOMP
  Preferred Insurance Company

  
	
   

  	
  AmCOMP
  Assurance Corporation

  
	
   

  	
  any
  and all insurance companies which are now or hereafter come under

  
	
   

  	
  the
  same ownership or management as the AmCOMP Group

  



 


19





















 


Nuclear Incident Exclusion Clause - Liability - Reinsurance
(U.S.A.)


(Approved
by Lloyd’s Underwriters’ Fire and Non-Marine Association)


 


(1)          This reinsurance does not cover any loss or
liability accruing to the Reassured as a member of, or subscriber to, any
association of insurers or reinsurers formed for the purpose of covering
nuclear energy risks or as a direct or indirect reinsurer of any such member, subscriber
or association.


 


(2)          Without in any way restricting the operation
of paragraph (1) of this Clause it is understood and agreed that for all
purposes of this reinsurance all the original policies of the Reassured (new,
renewal and replacement) of the classes specified in Clause II of this
paragraph (2) from the time specified in Clause III in this paragraph (2) shall
be deemed to include the following provision (specified as the Limited
Exclusion Provision):


 


Limited Exclusion Provision.*


 


I.                 It is agreed that the policy does not apply
under any liability coverage, to 


(injury, sickness, disease, death
or destruction


(bodily injury or property damage


with
respect to which an insured under the policy is also an insured under a nuclear
energy liability policy issued by Nuclear Energy Liability Insurance
Association, Mutual Atomic Energy Liability Underwriters or Nuclear Insurance
Association of Canada, or would be an insured under any such policy but for its
termination upon exhaustion of its limit of liability.


II.             Family Automobile Policies (liability only),
Special Automobile Policies (private passenger automobiles, liability only),
Farmers Comprehensive Personal Liability Policies (liability only),
Comprehensive Personal Liability Policies (liability only) or policies of a
similar nature; and the liability portion of combination forms related to the
four classes of policies stated above, such as the Comprehensive Dwelling
Policy and the applicable types of Homeowners Policies.


III.         The
inception dates and thereafter of all original policies as described in II
above, whether new, renewal or replacement, being policies which either


(a)          become effective on or after 1st May, 1960, or


(b)         become effective before that date and contain
the Limited Exclusion Provision set out above;


provided
this paragraph (2) shall not be applicable to Family Automobile Policies,
Special Automobile Policies, or policies or combination policies of a similar
nature, issued by the Reassured on New York risks, until 90 days following
approval of the Limited Exclusion Provision by the Governmental Authority
having jurisdiction thereof.


 


(3)          Except for those classes of policies specified
in Clause II of paragraph (2) and without in any way restricting the
operation of paragraph (1) of this Clause, it is understood and agreed
that for all purposes of this reinsurance the original liability policies of
the Reassured (new, renewal and replacement) affording the following coverages:


 


Owners,
Landlords and Tenants Liability, Contractual Liability, Elevator Liability,
Owners or Contractors (including railroad) Protective Liability, Manufacturers
and Contractors Liability, Product Liability, Professional and Malpractice
Liability, Storekeepers Liability, Garage Liability, Automobile Liability
(including Massachusetts Motor Vehicle or Garage Liability)


 


shall
be deemed to include, with respect to such coverages, from the time specified
in Clause V of this paragraph (3), the following provision (specified as the
Broad Exclusion Provision):


 


Broad Exclusion Provision.*


 


It is agreed that the policy
does not apply:


I.                 Under any Liability Coverage to


(injury, sickness, disease, death or destruction


(bodily
injury or property damage


(a)          with respect to which an insured under the
policy is also an insured under a nuclear energy liability policy issued by
Nuclear Energy Liability Insurance Association, Mutual Atomic Energy Liability
Underwriters or Nuclear Insurance Association of Canada, or would be an insured
under any such policy but for its termination upon exhaustion of its limit of
liability; or


(b)         resulting from the hazardous properties of
nuclear material and with respect to which (1) any person or organization
is required to maintain financial protection pursuant to the Atomic Energy Act
of 1954, or any law amendatory thereof, or (2) the insured is, or had this
policy not been issued would be, entitled to indemnity from the United States
of America, or any agency thereof, under any agreement entered into by the
United States of America, or any agency thereof, with any person or
organization.


 


1





















 


II.             Under any Medical Payments Coverage, or under
any Supplementary Payments Provision relating to


(immediate medical or surgical relief


(first aid,


to expenses incurred with respect to


(bodily injury, sickness, disease or death


(bodily injury


resulting
from the hazardous properties of nuclear material and arising out of the
operation of a nuclear facility by any person or organization.


III.         Under
any Liability Coverage to


(injury, sickness, disease, death or destruction


(bodily
injury or property damage


resulting
from the hazardous properties of nuclear material, if


(a)          the nuclear material (1) is at any
nuclear facility owned by, or operated by or on behalf of, an insured or (2) has
been discharged or dispersed therefrom;


(b)         the nuclear material is contained in spent
fuel or waste at any time possessed, handled, used, processed, stored,
transported or disposed of by or on behalf of an insured; or


(c)          the


(injury, sickness, disease, death or destruction


(bodily injury or property damage


arises
out of the furnishing by an insured of services, materials, parts or equipment
in connection with the planning, construction, maintenance, operation or use of
any nuclear facility, but if such facility is located within the United States
of America, its territories, or possessions or Canada, this exclusion (c) applies
only to


(injury to or destruction of property at such nuclear
facility


(property damage to such nuclear facility and any
property thereat.


IV.         As used in this endorsement:


“hazardous
properties” include radioactive, toxic or explosive properties; “nuclear
material” means source material, special nuclear material or byproduct
material; “source material”, “special nuclear material”, and “byproduct
material” have the meanings given them in the Atomic Energy Act of 1954 or in
any law amendatory thereof; “spent fuel” means any fuel element or fuel
component, solid or liquid, which has been used or exposed to radiation in a
nuclear reactor; “waste” means any waste material (1) containing byproduct
material and (2) resulting from the operation by any person or
organization of any nuclear facility included within the definition of nuclear
facility under paragraph (a) or (b) thereof; “nuclear facility” means


(a)          any nuclear reactor,


(b)         any equipment or device designed or used for (1) separating
the isotopes of uranium or plutonium, (2) processing or utilizing spent
fuel, or (3) handling processing or packaging waste,


(c)          any equipment or device used for the
processing, fabricating or alloying of special nuclear material if at any time
the total amount of such material in the custody of the insured at the premises
where such equipment or device is located consists of or contains more than 25
grams of plutonium or uranium 233 or any combination thereof, or more than 250
grams of uranium 235,


(d)         any structure, basin, excavation, premises or
place prepared or used for the storage or disposal of waste, and includes the
site on which any of the foregoing is located, all operations conducted on such
site and all premises used for such operations; “nuclear reactor” means any
apparatus designed or used to sustain nuclear fission in a self-supporting
chain reaction or to contain a critical mass of fissionable material;


(With respect to injury to or destruction of property,
the word “injury” or “destruction,”


(“property
damage” includes all forms of radioactive contamination of property,


(includes all forms of radioactive contamination of
property.


V.             The inception dates and thereafter of all
original policies affording coverages specified in this paragraph (3), whether
new, renewal or replacement, being policies which become effective on or after
1st May, 1960, provided this paragraph (3) shall not be applicable to


(i)             Garage and
Automobile Policies issued by the Reassured on New York risks, or


(ii)          statutory liability
insurance required under Chapter 90, General Laws of Massachusetts, until 90 days following approval of the Broad Exclusion Provision by the
Governmental Authority having jurisdiction thereof.


(4)          Without in any way restricting the operation
of paragraph (1) of this Clause, it is understood and agreed that paragraphs
(2) and (3) above are not applicable to original liability policies
of the Reassured in Canada and that with respect to such policies this Clause
shall be deemed to include the Nuclear Energy Liability Exclusion Provisions
adopted by the Canadian Underwriters’ Association or the Independent Insurance
Conference of Canada.


 










*NOTE.     The words printed in italics in the Limited Exclusion
Provision and in the Broad Exclusion Provision shall apply only in relation to
original liability policies which include a Limited Exclusion Provision or a
Broad Exclusion Provision containing those words.


 


2





















 


Nuclear Incident Exclusion Clause - Liability - Reinsurance
(Canada)


 


1.               This Agreement does not cover any loss or
liability accruing to the Reinsured as a member of, or subscriber to, any
association of insurers or reinsurers formed for the purpose of covering
nuclear energy risks or as a direct or indirect reinsurer of any such member,
subscriber, or association.


 


2.               Without in any way restricting the operation
of paragraph 1 of this clause it is agreed that for all purposes of this
Agreement all the original liability contracts of the Reinsured, whether new,
renewal or replacement, of the following classes, namely,


 


Personal Liability,


Farmers Liability,


Storekeepers Liability,


 


which become effective on or after 31st
December 1984, shall be deemed to include, from their inception dates and
thereafter, the following provision: --


 


Limited Exclusion Provision


 


This
Policy does not apply to bodily injury or property damage with respect to which
the Insured is also insured under a contract of nuclear energy liability
insurance (whether the Insured is named in such contract or not and whether or
not it is legally enforceable by the Insured) issued by the Nuclear Insurance
Association of Canada or any other group or pool of insurers or would be an
Insured under any such policy but for its termination upon exhaustion of its
limit of liability.


 


With
respect to property, loss of use of such property shall be deemed to be
property damage.


 


3.               Without in any way restricting the operation
of paragraph 1 of this clause it is agreed that for all purposes of this
Agreement all the original liability contracts of the Reinsured, whether new,
renewal or replacement, of any class whatsoever (other than Personal Liability,
Farmers Liability, Storekeepers Liability or Automobile Liability contracts),
which become effective on or after 31st December 1984, shall be deemed to
include, from their inception dates and thereafter, the following provision: --


 


Broad Exclusion Provision


 


It
is agreed that this Policy does not apply:


 


(a)          to
liability imposed by or arising under the Nuclear Liability Act; or


 


(b)         to
bodily injury or property damage with respect to which an Insured under this
Policy is also insured under a contract of nuclear energy liability insurance
(whether the Insured is named in such contract or not and whether or not it is
legally enforceable by the Insured) issued by the Nuclear Insurance Association
of Canada or any other insurer or group or pool of insurers or would be an
Insured under any such policy but for its termination upon exhaustion of its
limit of liability; or


 


(c)          to
bodily injury or property damage resulting directly or indirectly from the
nuclear energy hazard arising from:


 


(1)          the
ownership, maintenance, operation or use of a nuclear facility by or on behalf
of an Insured;


 


1





















 


(2)          the
furnishing by an Insured of services, materials, parts or equipment in
connection with the planning, construction, maintenance, operation or use of
any nuclear facility; and


 


(3)          The
possession, consumption, use, handling, disposal or transportation of
fissionable substances or of other radioactive material (except radioactive
isotopes, away from a nuclear facility, which have reached the final stage of
fabrication so as to be useable for any scientific, medical, agricultural,
commercial or industrial purpose) used, distributed, handled or sold by an
Insured.


 


As used in this Policy:


 


(I)            The
term “nuclear energy hazard” means the radioactive, toxic, explosive or other
hazardous properties of radioactive material;


 


(II)        The
term “radioactive material” means uranium, thorium, plutonium, neptunium, their
respective derivatives and compounds, radioactive isotopes of other elements
and any other substances that the Atomic Energy Control Board may, by
regulation, designate as being prescribed substances capable of releasing
atomic energy, or as being requisite for the production, use or application of
atomic energy;


 


(III)    The term
“nuclear facility” means:


 


(a)          any
apparatus designed or used to sustain nuclear fission in a self-supporting
chain reaction or to contain a critical mass of plutonium, thorium and uranium
or any one or more of them;


 


(b)         any
equipment or device designed or used for (i) separating the isotopes of
plutonium, thorium and uranium or any one or more of them, (ii) processing
or utilizing spent fuel, or (iii) handling, processing or packaging waste;


 


(c)          any
equipment or device used for the processing, fabricating or alloying of
plutonium, thorium or uranium enriched in the isotope uranium 233 or in the
isotope uranium 235, or any one or more of them if at any time the total amount
of such material in the custody of the Insured at the premises where such
equipment or device is located consists of or contains more than 25 grams of
plutonium or uranium 233 or any combination thereof, or more than 250 grams of
uranium 235;


 


(d)         any
structure, basin, excavation, premises or place prepared or used for the
storage or disposal of waste radioactive material;


 


and
includes the site on which any of the foregoing is located, together with all
operations conducted thereon and all premises used for such operations.


 


(IV)    The term
“fissionable substance” means any prescribed substance that is, or from which
can be obtained, a substance capable of releasing atomic energy by nuclear
fission.


 


(V)        With
respect to property, loss of use of such property shall be deemed to be
property damage.


 


2





















 


Nuclear Incident Exclusion Clause Reinsurance - No. 4


 


(1)           This reinsurance does not cover any
loss or liability accruing to the Reassured as a member of, or subscriber to,
any association of insurers formed for the purpose of covering nuclear energy
risks or as a direct or indirect reinsurer of any such member, subscriber or
association.


 


(2)           Without in any way restricting the
operations of Nuclear Incident Exclusion Clause No. 1B - Liability, No. 2
- Physical Damage, No. 3 - Boiler and Machinery and paragraph (1) of
this clause, it is understood and agreed that for all purposes as respects the
reinsurance assumed by the Reinsurer from the Reassured, all original insurance
policies or contracts of the Reassured (new, renewal and replacement) shall be
deemed to include the applicable existing Nuclear Clause and/or Nuclear
Exclusion Clause(s) in effect at the time and any subsequent revisions thereto
as agreed upon and approved by the Insurance Industry and/or a qualified
Advisory or Rating Bureau.


 





















 


Pollution Exclusion Clause - General Liability - Reinsurance


 


A.           This reinsurance excludes all loss and/or
liability accruing to the reinsured company as a result of:


 


1.               bodily injury or property damage arising out
of the actual, alleged or threatened discharge, dispersal, release or escape of
pollutants:


 


a.               at or from premises owned, rented or occupied
by a named insured;


 


b.              at or from any site or location used by or
for a named insured or others for the handling, storage, disposal, processing
or treatment of waste;


 


c.               which are at any time transported, handled,
stored, treated, disposed of, or processed as waste by or for a named insured
or any person or organization for whom a named insured may be legally
responsible; or


 


d.              at or from any site or location on which a
named insured or any contractors or subcontractors working directly or
indirectly on behalf of a named insured are performing operations:


 


(i)             if
the pollutants are brought on or to the site or location in connection with
such operations; or


 


(ii)          if
the operations are to test for, monitor, clean up, remove, contain, treat,
detoxify or neutralize the pollutants;


 


2.               any governmental direction or request that a
named insured test for, monitor, clean up, remove, contain, treat, detoxify or
neutralize pollutants.


 


B.             Subparagraphs A(1)(a) and A(1)(d)(i) above
do not apply to bodily injury or property damage caused by heat, smoke or fumes
from a hostile fire.


 


C.             “Hostile fire” means a fire which becomes
uncontrollable or breaks out from where it was intended to be.


 


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


 





















 


War Risk Exclusion Clause (Reinsurance)


 


As regards interests which at time of loss or
damage are on shore, no liability shall attach hereto in respect of any loss or
damage which is occasioned by war, invasion, hostilities, acts of foreign
enemies, civil war, rebellion, insurrection, military or usurped power, or
martial law or confiscation by order of any government or public authority.


 


Nevertheless, this clause shall not be
construed to apply to loss or damage occasioned by riots, strikes, civil
commotion, vandalism or malicious damage.