Table of Contents

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

FORM 10-Q

(Mark One)

x QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the quarterly period ended September 30, 2008

 

¨ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934

For the transition period from                      to                     

Commission File number 000-52833

United Insurance Holdings Corp.

(exact name of Registrant as specified in the charter)

 

Delaware   75-3241967
(State of Incorporation)   (IRS Employer Identification Number)

360 Central Avenue, Suite 900

St. Petersburg, Florida 33701

(Address, including zip code, of principal executive offices)

727-895-7737

(Registrant’s telephone number, including area code)

FMG Acquisition Corp.

Four Forest Park, Second Floor, Farmington, CT 06032

(Former name and address)

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

Yes   x     No   ¨

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, or a non-accelerated filer. See definition of “accelerated filer and large accelerated filer” in Rule 12b-2 of the Exchange Act

 

Large accelerated filer   ¨   Accelerated filer   ¨   Non-accelerated filer   ¨   Smaller reporting company   x

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

Yes   ¨     No   x

As of November 10, 2008, 10,548,932 shares of common stock, par value $0.0001 per share, were issued and outstanding.

 

 

 


Table of Contents

UNITED INSURANCE HOLDINGS CORP.

 

PART I. FINANCIAL INFORMATION

   3

I TEM  1: F INANCIAL S TATEMENTS

   3

Condensed Consolidated Balance Sheets

   3

Condensed Consolidated Statements of Operations

   4

Condensed Consolidated Statements of Stockholders’ Equity and Comprehensive Income

   5

Condensed Consolidated Statements of Cash Flows

   6

Notes to Condensed Consolidated Financial Statements

   8

I TEM  2: M ANAGEMENT S D ISCUSSION AND A NALYSIS OF F INANCIAL C ONDITION AND R ESULTS OF O PERATIONS

   21

I TEM  3: Q UANTITATIVE AND Q UALITATIVE D ISCLOSURES ABOUT M ARKET R ISK

   35

I TEM  4T: C ONTROLS AND P ROCEDURES

   35

PART II. OTHER INFORMATION

   35

I TEM  1: L EGAL P ROCEEDINGS

   35

I TEM  1A: R ISK F ACTORS

   35

I TEM  2: U NREGISTERED S ALES OF E QUITY S ECURITIES AND U SE OF P ROCEEDS

   35

I TEM  3: D EFAULTS UPON S ENIOR S ECURITIES

   37

I TEM  4: S UBMISSION OF M ATTERS TO A V OTE OF S ECURITY H OLDERS

   37

I TEM  5: O THER I NFORMATION

   38

I TEM  6: E XHIBITS

   38

SIGNATURES

   39

 

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UNITED INSURANCE HOLDINGS CORP.

PART I. FINANCIAL INFORMATION

 

Item 1: Financial Statements

Condensed Consolidated Balance Sheets

(Unaudited)

In thousands, except share and par value amounts

 

     September 30,
2008
    December 31,
2007

ASSETS

    

Investments available for sale, at fair value:

    

Fixed maturities (amortized cost of $102,045 and $105,508, respectively)

   $ 100,670     $ 107,410

Equity securities (cost of $14,391 and $6,782, respectively)

     11,732       6,072

Short-term investments (cost of $10,300 and $300, respectively)

     10,300       300
              

Total investments

     122,702       113,782
              

Cash and equivalents

     34,667       56,852

Premiums receivable, net of allowances for credit losses of $165 and $160, respectively

     12,163       9,966

Reinsurance recoverable

     14,003       16,816

Prepaid reinsurance premiums

     38,900       26,345

Deferred policy acquisition costs

     8,421       7,547

Property and equipment at cost, net of accumulated depreciation and amortization of $271 and $221, respectively

     295       108

Deferred tax assets, net

     5,588       4,733

Other assets

     5,986       6,277
              

Total Assets

   $ 242,725     $ 242,426
              

LIABILITIES AND STOCKHOLDERS’ EQUITY

    

Liabilities:

    

Unpaid losses and loss adjustment expenses

   $ 37,166     $ 36,005

Unearned premiums

     75,539       73,051

Reinsurance payable

     30,661       10,852

Accrued tax distribution payable

     7,290       9,227

Advance premiums

     3,325       2,396

Accounts payable and accrued expenses

     11,828       13,858

Current portion of notes payable

     4,327       11,000

Shares subject to mandatory redemption

     —         2,564

Income taxes payable

     2       2,303

Other liabilities

     811       2,238

Long-term notes payable

     36,879       32,833
              

Total Liabilities

     207,828       196,327
              

Commitments and contingencies (Note 10)

    

Stockholders’ Equity:

    

Preferred stock, $0.0001 par value; 1,000,000 shares authorized; none issued or outstanding for 2008 and 2007

     —         —  

Common stock, $0.0001 par value; 50,000,000 shares authorized; 10,548,932 issued and outstanding for 2008 and 2007

     1       1

Additional paid-in capital

     —         7,463

Accumulated other comprehensive income (loss)

     (2,516 )     744

Retained earnings

     37,412       37,891
              

Total Stockholders’ Equity

     34,897       46,099
              

Total Liabilities and Stockholders’ Equity

   $ 242,725     $ 242,426
              

See accompanying notes to condensed consolidated financial statements.

 

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UNITED INSURANCE HOLDINGS CORP.

Condensed Consolidated Statements of Operations

(Unaudited)

In thousands, except share and per share amounts

 

     Three months ended
September 30,
    Nine months ended
September 30,
 
     2008     2007     2008     2007  

REVENUE:

        

Gross premiums written

   $ 36,200     $ 34,885     $ 106,808     $ 117,797  

Gross premiums ceded

     (2,936 )     4,351       (56,501 )     (57,544 )
                                

Net premiums written

     33,264       39,236       50,307       60,253  

Decrease (increase) in net unearned premiums

     (13,175 )     (14,798 )     10,067       1,946  
                                

Net premiums earned

     20,089       24,438       60,374       62,199  

Net investment income

     1,695       2,028       5,049       5,936  

Net realized investment gains (losses)

     278       (84 )     1,156       (87 )

Commission and fees

     732       722       2,030       2,088  

Policy assumption bonus

     2,159       902       6,442       11,575  

Other revenue

     1,039       995       2,331       2,657  
                                

Total revenue

     25,992       29,001       77,382       84,368  
                                

EXPENSES:

        

Losses and loss adjustment expenses

     12,500       7,610       24,974       18,451  

Policy acquisition costs

     4,388       5,031       13,178       13,051  

Operating and underwriting expenses

     1,637       1,479       4,538       4,688  

Salaries and wages

     805       590       2,335       1,807  

General and administrative expenses

     (82 )     563       2,296       1,979  

Interest expense

     497       1,142       1,963       5,364  
                                

Total expenses

     19,745       16,415       49,284       45,340  
                                

Income before other income (expenses)

     6,247       12,586       28,098       39,028  

OTHER INCOME (EXPENSES):

        

Other income

     2,564       —         2,564       —    
                                

Total other income (expenses)

     2,564       —         2,564       —    
                                

Income before income taxes

     8,811       12,586       30,662       39,028  

Provision (benefit) for income taxes

     (67 )     1,550       4,092       7,285  
                                

Net income

   $ 8,878     $ 11,036     $ 26,570     $ 31,743  
                                

Weighted average shares outstanding

        

Basic

     10,548,932       10,548,932       10,548,932       10,548,932  
                                

Diluted

     11,830,069       11,775,088       11,782,273       11,775,088  
                                

Earnings per share

        

Basic

   $ 0.84     $ 1.05     $ 2.52     $ 3.01  
                                

Diluted

   $ 0.75     $ 0.94     $ 2.26     $ 2.70  
                                

PRO FORMA COMPUTATION RELATED TO CONVERSION OF CERTAIN SUBSIDIARIES TO C-CORPORATIONS FOR INCOME TAX PURPOSES:

  

Historical income before income taxes

   $ 8,811     $ 12,586     $ 30,662     $ 39,028  

Pro forma provision for income taxes

     3,399       4,855       11,828       15,055  
                                

Pro forma net income

   $ 5,412     $ 7,731     $ 18,834     $ 23,973  
                                

Pro forma earnings per share

        

Basic

   $ 0.51     $ 0.73     $ 1.79     $ 2.27  
                                

Diluted

   $ 0.46     $ 0.66     $ 1.60     $ 2.04  
                                

See accompanying notes to condensed consolidated financial statements.

 

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UNITED INSURANCE HOLDINGS CORP.

Condensed Consolidated Statements of Stockholders’ Equity and Comprehensive Income

For the nine months ended September 30, 2008

(Unaudited)

In thousands, except share amounts

 

    Common Stock   Members’
Certificates
of
    Additional
Paid-in
    Accumulated
Other
Comprehensive
    Retained     Total
Stockholders’
    Comprehensive  
    Shares   Amount   Interest     Capital     Income (loss)     Earnings     Equity     Income (loss)  

Balance at January 1, 2008, as previously reported

  —     $ —     $ 7,464     $ —       $ 744     $ 37,891     $ 46,099    

Retroactive effects on equity due to reverse acquisition transaction effective September 30, 2008

  10,548,932     1     (7,464 )     7,463       —         —         —      
                                                   

Balance at January 1, 2008, as restated

  10,548,932     1     —         7,463       744       37,891       46,099    

Net Income

  —       —       —         —         —         26,570       26,570     $ 26,570  

Exercise of UIH ownership option

  —       —       —         63       —         —         63       —    

Net unrealized change in investments, net of tax effect of $1,966

  —       —       —         —         (3,260 )     —         (3,260 )     (3,260 )

Distributions to UIH members prior to Merger

  —       —       —         —         —         (9,325 )     (9,325 )     —    

Recapitalization as result of the Merger

  —       —       —         (4,635 )     —         (17,724 )     (22,359 )     —    

Costs associated with the Merger

  —       —       —         (2,891 )     —         —         (2,891 )     —    
                                                         

Balance at September 30, 2008

  10,548,932   $ 1   $ —       $ —       $ (2,516 )   $ 37,412     $ 34,897     $ 23,310  
                                                         

See accompanying notes to condensed consolidated financial statements.

 

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UNITED INSURANCE HOLDINGS CORP.

Condensed Consolidated Statements of Cash Flows

(Unaudited)

In thousands

 

     Nine Months Ended
September 30,
 
     2008     2007  

Cash flow provided by operating activities:

    

Net income

   $ 26,570     $ 31,743  

Adjustments to reconcile net income to net cash provided by operating activities:

    

Depreciation and amortization

     498       1,227  

Realized (gains) losses

     (1,156 )     87  

Provision for uncollectible premiums

     24       163  

Deferred income taxes, net

     1,283       3,030  

Other income

     (2,564 )     —    

Changes in operating assets and liabilities, net of effect of Merger:

    

Premiums receivable

     (2,221 )     (2,117 )

Reinsurance recoverable

     2,813       22,986  

Prepaid reinsurance premiums

     (12,555 )     (5,902 )

Deferred policy acquisition costs

     (874 )     (1,249 )

Income taxes, net

     (2,301 )     (13 )

Other assets

     1,102       (2,993 )

Reserve for loss and LAE

     1,161       (24,653 )

Unearned premiums

     2,488       3,956  

Reinsurance payable

     19,809       (1,997 )

Advance premiums

     929       (580 )

Accounts payable and accrued expenses

     (2,194 )     (10,455 )

Other liabilities

     (1,516 )     (193 )
                

Net cash provided by operating activities

     31,296       13,040  
                

Cash flow provided by (used in) investing activities:

    

Proceeds from sales of investments available for sale

     40,441       33,541  

Purchases of investments available for sale

     (54,547 )     (25,831 )

Cost of property and equipment acquired

     (237 )     (48 )
                

Net cash provided by (used in) investing activities

     (14,343 )     7,662  
                

Cash flow used in financing activities:

    

Proceeds from borrowings

     —         33,000  

Repayments of borrowings

     (19,505 )     (38,171 )

Net cash paid by UIH to FMG prior to Merger

     (5,703 )     —    

Payment of Merger costs

     (2,731 )     —    

Contributions by owners, prior to Merger

     63       501  

Distributions to owners, prior to Merger

     (11,262 )     (18,281 )
                

Net cash used in financing activities

     (39,138 )     (22,951 )
                

Decrease in cash

     (22,185 )     (2,249 )

Cash and cash equivalents at beginning of period

     56,852       46,248  
                

Cash and cash equivalents at end of period

   $ 34,667     $ 43,999  
                

Supplemental cash flow information:

    

Cash paid during the period for:

    

Interest

   $ 2,027     $ 3,106  

Income taxes

   $ 4,120     $ 3,575  

 

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Condensed Consolidated Statements of Cash Flows (Continued)

On September 30, 2008, United Insurance Holding Corp. (“UIHC”), formerly known as FMG Acquisition Corp. (“FMG”) acquired United Insurance Holdings, LC (“UIH”). We accounted for the transaction as a reverse acquisition and recapitalization since UIH was deemed to be the accounting acquirer. Accordingly, the Condensed Consolidated Statements of Cash Flows do not reflect certain transactions that occurred during the third quarter of 2008 prior to the effective date of the Merger. Such transactions include:

 

   

We issued 8,929,819 shares of our common stock to the members of UIH, as well as warrants to purchase 1,273,569 shares of our common stock. Each common stock warrant allows the holder to purchase one share of our common stock at an exercise price of $6.00 per share. The warrants are exercisable beginning October 4, 2008, and expire on October 4, 2011.

 

   

We paid cash of $15,740, pursuant to the stock purchase agreement, to repurchase 1,980,671 shares of our common stock on September 29, 2008.

 

   

We repurchased 869,565 shares from two former stockholders by exchanging notes payable for the shares. The notes have a face value of $7,527 and bear interest at 11% per year (see Note 9).

 

   

We paid cash of $10,039 to holders of 1,267,863 shares of our common stock who did not vote in favor of the Merger and elected to have their shares of common stock converted to cash.

 

   

FMG Investors, LLC agreed to surrender 179,819 shares of UIHC common stock it owned. No consideration was paid for these surrendered shares and the shares were cancelled. FMG Investors, LLC also agreed to surrender 179,819 of the common stock warrants that it owned. See Note 11 for a further discussion of FMG Investors, LLC being a related party to UIHC.

 

   

The underwriter for our IPO agreed to surrender 100,000 of the 450,000 unit purchase options it owned. They also agreed to accelerate the expiration date of their remaining 350,000 unit purchase options to October 4, 2010. Each unit purchase option consists of a share of common stock and a warrant to purchase a share of common stock. The unit purchase options are exercisable beginning October 4, 2008, at an exercise price of $10.00 per unit.

See accompanying notes to condensed consolidated financial statements.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

1) ORGANIZATION AND BUSINESS

United Insurance Holdings Corp. (“UIHC”, “we”, the “Company”), formerly known as FMG Acquisition Corp. (“FMG”), was originally formed under the laws of the State of Delaware in 2007 as a blank-check company. We were formed specifically as a vehicle to effect a merger, acquisition or similar business combination with one operating business, with efforts focused on seeking a business combination within the insurance industry. We consummated our initial public offering (“IPO”) on October 11, 2007. On September 30, 2008, we completed a merger pursuant to the Amended and Restated Agreement and Plan of Merger, dated August 15, 2008, as amended on September 23, 2008, by and among UIHC, United Subsidiary Corp., a Florida corporation (“Merger Sub”) and our wholly-owned subsidiary, and United Insurance Holdings, L.C., a Florida limited liability company (“UIH”), whereby Merger Sub was merged into UIH, with UIH remaining as the surviving entity (the “Merger”). In connection with the Merger, we changed our name from “FMG Acquisition Corp.” to “United Insurance Holdings Corp.” Our certificate of incorporation in Delaware has been amended to reflect our new status as an insurance holding company.

Through our wholly-owned UIH subsidiary, and UIH’s three wholly-owned subsidiaries, UIHC is engaged in the property and casualty insurance business in the State of Florida. The three subsidiaries of UIH include United Property & Casualty Insurance Company (“UPCIC”), United Insurance Management, LC (“UIM”) and Skyway Claims Services, LC (“Skyway”). We operate under one business segment.

UPCIC was formed in 1999 under the laws of the State of Florida and is authorized by the Florida Office of Insurance Regulation (“OIR”) to underwrite homeowners’ and dwelling property and casualty lines. UPCIC began operations by both assuming policies from Citizens Property Insurance Corporation (“Citizens”), and by actively writing our own policies throughout the State of Florida utilizing our vast, independent agency network. In 2004 and 2005, UPCIC supplemented its voluntary writings by assuming policies from Citizens. Our assumed policies comprise approximately 25% of UPCIC’s in-force premium. Beginning in October 2008, UPCIC plans to assume additional policies from Citizens under a new agreement with Citizens (see Note 15 for further details). The OIR has also authorized UPCIC to write flood coverage and a smaller commercial auto (“Garage”) line of business.

UIM is a managing general agent (“MGA”) formed in 1999 under the laws of the State of Florida. UIM manages all aspects of UPCIC’s operations, including underwriting, policy administration, collections and disbursements, accounting and claims processes.

Skyway was formed in 2004 under the laws of the State of Florida to provide claims appraisal services. Skyway is currently one of several companies that provide such services to UPCIC, and it mainly provides appraisal services for claims arising from Dade, Broward and Palm Beach counties.

 

2) BASIS OF PRESENTATION AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES

 

  a) Basis of Presentation

The accompanying condensed consolidated interim financial statements are unaudited and are prepared in accordance with the instructions for Form 10-Q and Article 10 of Regulation S-X. In compliance with those instructions, certain information and footnote disclosures normally included in annual consolidated financial statements prepared in accordance with accounting principles generally accepted in the United States of America (“GAAP”) have been condensed or omitted.

Results of operations and cash flows for the interim periods are not necessarily indicative of the results that may be expected for the entire year or any other future period as a result of the presentation described above.

All significant intercompany transactions and accounts have been eliminated.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

In the opinion of management, our condensed consolidated interim financial statements include all the normal recurring adjustments necessary to fairly present our condensed consolidated statements of operations, financial position, cash flows and stockholders’ equity as of September 30, 2008, and for all periods presented. These condensed consolidated financial statements and footnotes should be read in conjunction with FMG’s financial statements and UIH’s consolidated financial statements for the year ended December 31, 2007, contained within FMG’s Form S-4/A filed on September 2, 2008.

 

  b) Use of Estimates

The preparation of financial statements in conformity with accounting principles generally accepted in the United States of America requires management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosures of contingent assets and liabilities at the date of the financial statements and reported amounts of revenues and expenses during the reporting period. Accordingly, actual results could differ from those estimates.

 

  c) Merger Accounting

We accounted for the Merger as a reverse acquisition and recapitalization since UIH was deemed to be the accounting acquirer. Accordingly, the historical assets, liabilities and operations reflected in these financial statements are those of UIH, and are recorded at the historical cost basis of UIH. UIHC’s assets and liabilities were recorded at their fair value on the date of the Merger and are consolidated with the assets and liabilities of UIH after consummation of the Merger.

 

  d) Reclassifications

Since we accounted for the Merger as a reverse acquisition and recapitalization, we have retroactively restated certain equity accounts for periods prior to the Merger [see Notes 2(c) and 5]. Also, certain amounts in the 2007 financial statements have been reclassified to conform to the 2008 presentation.

 

  e) Recent Accounting Pronouncements

On October 10, 2008, the Financial Accounting Standards Board (“FASB”) issued FASB Staff Position 157-3, Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active (“FSP 157-3”). In FSP 157-3, the FASB clarifies the application of Statement of Financial Accounting Standards No. 157 (“SFAS No. 157”), Fair Value Measurements when the market for that financial asset is not active. FSP 157-3 was effective upon issuance and applies to financial assets within the scope of accounting pronouncements that require or permit fair value measurements in accordance with SFAS No. 157. The adoption of FSP 157-3 will have no material effect on our consolidated financial statements. See Note 7 for further information on fair value measurements.

 

3) MERGER

On September 30, 2008, UIHC completed the acquisition of UIH and merged UIH with a transitory, wholly-owned subsidiary created specifically for that purpose. We accounted for the transaction as a reverse acquisition and recapitalization with UIH being the surviving entity. In exchange for 100% of the membership units in UIH, we paid the members of UIH $25,000 cash, we issued 8,929,819 shares of our common stock (at a quoted market value of $7.91 per share on September 29, 2008) and we granted warrants to purchase 1,273,569 shares of our common stock (at a quoted market value of $0.35 per warrant on September 29, 2008). If certain income targets are met, we will also pay up to $5,000 in cash of additional consideration to the former members of UIH. The warrants are exercisable at $6.00 per share beginning October 4, 2008, and expire on October 4, 2011.

The $2,901 transaction costs associated with the Merger are recorded to additional paid-in-capital on the Condensed Consolidated Balance Sheets since the transaction costs did not exceed the $25,000 cash received in the transaction.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

We did not present in our footnotes any pro forma information regarding the effects of the Merger as if it took place on January 1, 2008, because, prior to the Merger, UIHC was a blank-check company with no material operations.

 

4) POLICY ASSUMPTION BONUS AGREEMENTS

As part of a policy assumption (“Takeout”) agreement with Citizens that ended in 2006, UPCIC received takeout bonuses for policies assumed from Citizens during multiple assumptions in 2004 and 2005. The bonuses were calculated at 17.5% of the written premium originally assumed, net of adjustments related to policies that we did not renew or retain. The bonus money due to UPCIC was on deposit with an escrow agent, as specified by the terms of the takeout agreement. To receive the bonuses, UPCIC was required to offer to renew the assumed policies for a period of three years at UPCIC’s approved rates and on substantially similar terms. Approximately three years after each assumption date, the escrow agent distributed the bonus funds to UPCIC, and will distribute to UPCIC the investment income earned thereon in November 2008. During the three months ended September 30, 2008 and 2007, UPCIC recognized takeout bonuses of $2,158 and $902, respectively, which included $217 and $128 of investment income, respectively, from the 2004 and 2005 takeout periods. During the nine months ended September 30, 2008 and 2007, UPCIC recognized takeout bonuses of $6,442 and $11,575, respectively, which included $739 and $1,041 of investment income, respectively, from the 2004 and 2005 takeout periods.

 

5) EARNINGS PER SHARE

Earnings per share (“EPS”) amounts are calculated in accordance with SFAS No. 128, Earnings per Share . Basic EPS is computed by dividing net income by the weighted-average number of common stock shares outstanding for the period. Diluted EPS is computed by dividing net income by the weighted-average number of common stock shares and common stock equivalents outstanding, computed using the treasury stock method during the periods presented.

The table below reflects the diluted weighted average number of common stock shares outstanding using the treasury stock method:

 

     Three Months Ended
September 30,
   Nine Months Ended
September 30,
     2008    2007    2008    2007

Weighted average shares – basic

   10,548,932    10,548,932    10,548,932    10,548,932

Effect of dilutive common stock equivalents:

           

Warrants

   1,281,137    1,226,156    1,233,341    1,226,156

Unit options

   —      —      —      —  
                   

Weighted average shares—diluted

   11,830,069    11,775,088    11,782,273    11,775,088
                   

We have a unit purchase option outstanding for 350,000 units; each unit consists of a share of common stock and a warrant to purchase a share of common stock. For the three- and nine-month periods ended September 30, 2008 and 2007, the unit purchase option was anti-dilutive; therefore, the shares associated with the unit purchase option are not included in the diluted weighted average shares outstanding in the table above.

On the Condensed Consolidated Statement of Operations, we retroactively restated EPS for periods prior to the Merger. We accounted for the Merger as a reverse acquisition and recapitalization [see Note 2(c)] and since the consideration paid was cash and common stock, the shares outstanding at the time the Merger was effective were deemed to be the historical shares outstanding prior to the Merger. Since our IPO occurred during October 2007, for the three- and nine-month periods ended September 30, 2007 there was no quoted market price; therefore, we used the average quoted market price of our common stock for the first 15 days subsequent to the IPO as the average market price in our treasury stock method calculation to compute our dilutive common stock equivalents for the 2007 periods shown in the table above.

On the Condensed Consolidated Statements of Operations, the pro forma computation of income taxes for the three- and nine-month periods ended September 30, 2008 and 2007, represents the tax effects that would have been reported had all of our subsidiaries been subject to U.S. Federal and State income taxes as C-corporations for all periods presented. Pro forma taxes are based upon the statutory income tax rates and adjustments to income for estimated permanent differences occurring during each period. Actual rates and expenses could have differed had all our subsidiaries actually been subject to U.S. Federal and State income taxes for all periods presented. Therefore, the pro forma amounts are for informational purposes only and are not intended to be indicative of the results of operations had we been subject to U.S. Federal and State income taxes as a C-corporation for all periods presented.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

6) INCOME TAXES

Prior to September 30, 2008, UIH had elected to be treated as a partnership for income tax purposes (UPCIC was taxed as a C-corporation from its inception). The taxable income and all tax credits of UIH and its two limited liability company subsidiaries, UIM and Skyway, were reportable by the entities’ members on their individual tax returns.

On September 30, 2008, UIHC’s subsidiary merged with UIH. Since UIHC is a C-corporation, UIH and its two limited liability company subsidiaries will convert to C-corporations for tax purposes, effective on October 1, 2008. UIHC and its subsidiaries have adopted Statement of Financial Accounting Standards No. 109, Accounting for Income Taxes (“SFAS No. 109”). SFAS No. 109 requires the use of the asset and liability method of accounting for income taxes. Under this method, deferred tax assets and liabilities are recognized for the future tax consequences attributable to differences between the financial statement carrying amounts of existing assets and liabilities and their respective tax bases. Deferred tax assets and liabilities are measured using enacted tax rates expected to apply to taxable income in the years in which those temporary differences are expected to be recovered or settled. Under SFAS No. 109, the effect on deferred tax assets and liabilities of a change in tax rates is recognized in operations in the period that includes the enactment date.

 

7) FAIR VALUE MEASUREMENTS

On January 1, 2008, we adopted SFAS No. 157, which provides a revised definition of fair value, establishes a framework for measuring fair value and expands financial statement disclosure requirements for fair value information. Under SFAS No. 157, fair value is defined as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants (an exit price). SFAS No. 157 establishes a fair value hierarchy that distinguishes between inputs based on market data from independent sources (observable inputs) and a reporting entity’s internal assumptions based upon the best information available when external market data is limited or unavailable (unobservable inputs). The fair value hierarchy in SFAS No. 157 prioritizes fair value measurements into three levels based on the nature of the inputs as follows:

 

Level 1 –

   Valuations based on quoted prices in active markets for identical assets and liabilities;

Level 2 –

   Valuations based on observable inputs that do not meet the criteria for Level 1, including quoted prices in inactive markets and quoted prices in active markets for similar, but not identical instruments; and

Level 3 –

   Valuations based on unobservable inputs.

We do not have any investments in our portfolio which require us to use unobservable inputs. For fair value measurements of securities for which quoted prices in active markets are unavailable, we use observable inputs such as quoted prices in inactive markets, quoted prices in active markets for similar instruments, benchmark interest rates, broker quotes and other relevant inputs.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

The following table presents our fair value measurements of investments by level:

 

     September 30, 2008
     Total    Level 1 Inputs    Level 2 Inputs    Level 3 Inputs

Fixed maturities

   $ 100,670    $ 50,711    $ 49,959    —  

Equity securities

     11,732      11,452      280    —  

Short-term investments

     10,300      10,300      —      —  
                         

Total investments

   $ 122,702    $ 72,463    $ 50,239    —  
                         

The following table depicts our realized and unrealized gains (losses) by fixed maturities and equity securities:

 

     Three Months Ended
September 30,
    Nine Months Ended
September 30,
 
     2008     2007     2008     2007  

Net realized gains (losses):

        

Fixed maturities

   $ 278     $ (38 )   $ 1,328     $ (38 )

Equity securities

     —         (46 )     (172 )     (49 )
                                

Total realized gains (losses)

   $ 278     $ (84 )   $ 1,156     $ (87 )
                                

Net unrealized gains (losses):

        

Fixed maturities

   $ (1,968 )   $ 802       (3,277 )     (225 )

Equity securities

     (1,548 )     116       (1,949 )     167  
                                

Total unrealized gains (losses)

   $ (3,516 )   $ 918     $ (5,226 )   $ (58 )
                                

The following table depicts the balance of unrealized gains (losses):

 

     September 30,
2008
    December 31,
2007
   September 30,
2007
 

Balance of unrealized gains (losses)

   $ (4,034 )   $ 1,192    $ (816 )

 

8) REINSURANCE

We follow industry practice of reinsuring a portion of our risks and paying for that protection based primarily upon modeled projected maximum losses and total insured values of all policies in effect and subject to such reinsurance. Reinsurance involves an insurance company transferring, or “ceding”, all or a portion of its exposure on insurance underwritten by it to another insurer, known as a reinsurer. The ceding of insurance does not legally discharge the insurer from its primary liability for an amount up to the policy limits. To the extent that reinsurers are unable to meet the obligations they assume under these reinsurance agreements, the ceding company remains liable for the insured loss.

Reinsurance agreements provide UPCIC with increased capacity to write more and larger risks and maintain our exposure to loss within our capital resources. We use per-occurrence, excess-of-loss agreements for our catastrophe program; per-risk, excess-of-loss agreements for our non-catastrophe homeowners’ and dwelling program; and a quota share agreement for our non-catastrophe Garage program. Our catastrophe reinsurance agreements are designed to coincide with the seasonality of Florida’s hurricane season; therefore, our agreements have a term that runs from June 1 st to May 31 st , and we make quarterly installment payments on July 1 st , October 1 st , January 1 st and April 1 st . Each year, upon commencement of our new reinsurance agreements, we debit prepaid reinsurance premiums and credit reinsurance payable for the entire contract amount.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

In 2008 and 2007, the per-occurrence, excess-of-loss catastrophe programs had two components, one of which was obtained through the private market and a component obtained from the Florida Hurricane Catastrophe Fund (“FHCF”). In 2008, the second layer contract (first private layer) includes one reinstatement of coverage at 100% additional premium; the remaining private layer contracts include one reinstatement of coverage at no additional premium. To protect UPCIC in the event a reinstatement of coverage of the first private layer contract becomes necessary, UPCIC purchased a Reinsurance Premium Protection policy from a private reinsurer that reimburses UPCIC the amount of any reinstatement premium that UPCIC pays. In 2007, the private layer contracts included one reinstatement of coverage at no additional premium. In 2008 and 2007, the FHCF provided one reinstatement of the full coverage amount at no additional premium on the limited apportionment layer (or lower layer); however, the FHCF only provides one instance of coverage on its other contracts.

In 2008, the entire catastrophe program provides for reimbursement of up to $405,074 of qualified loss and loss adjustment expense (“LAE “) in excess of UPCIC’s retained loss and LAE of $15,510. The first layer of coverage was obtained from the FHCF and provides for reimbursement of up to $10,000 in excess of the first $15,510. The second layer of coverage was obtained from the private market and provides for reimbursement of up to $43,005 in excess of $25,510. The third layer was obtained from the private market and provides for reimbursement of up to $18,341 in excess of $68,514. The fourth layer was also obtained from the private market and provides for reimbursement of up to $13,315 in excess of $86,855. The top layer of coverage was obtained from the private market and provides reimbursement up to $10,000 in excess of $100,170. The 2008 reinsurance program also provides mandatory FHCF coverage and optional Temporary Increase in Coverage Layer (“TICL”) coverage. The mandatory coverage obtained from the FHCF is projected to be 90% of $199,834 in excess of $74,649. The TICL coverage is projected to be 90% of $145,070 in excess of $274,483. The FHCF mandatory and TICL coverage act as a single layer of reinsurance and inure to the benefit of the private reinsurance coverage.

In 2007, the entire catastrophe program provided for reimbursement of up to $374,327 of qualified loss and LAE in excess of UPCIC’s retained loss and LAE of $16,500. The first layer of coverage was obtained from the FHCF and provides for reimbursement of up to $10,000 in excess of the first $16,500. The next two layers of coverage were obtained from the private market; the first of these two layers provides for reimbursement of up to $14,172 in excess of $26,500 and the second provides for reimbursement of up to $33,622 in excess of $40,672. The next layer of coverage was obtained from both the private market and from the FHCF. The FHCF portion provides for reimbursement of up to 90% of $212,539 in excess of $70,980 while the private portion provides for reimbursement of up to $21,254 in excess of $70,980. The final layer of coverage was also obtained from both the private market and the FHCF. The FHCF portion provides for reimbursement of up to 90% of $107,309 and the private portion provides reimbursement up to $10,731 in excess of $283,519.

For 2008, the per-risk, excess-of-loss program provides coverage for losses arising out of property business up to $1,700 in excess of $1,000 per risk, subject to a maximum recovery on any one loss occurrence, regardless of the number of risks involved, of $3,400. The contract also provides coverage for losses arising out of a combination of property and casualty business up to $1,700 for property and $500 for casualty in excess of $1,000 per occurrence, subject to a maximum recovery on any one loss occurrence, regardless of the number of risks involved for property or the number or type of insureds for casualty, of $2,200. Should a loss recovery, or series of loss recoveries, exhaust the coverage provided under the contracts, one reinstatement of coverage is included at no additional premium and another reinstatement of coverage is included at 100% additional premium. For 2007, the per-risk, excess-of-loss program provided coverage up to $1,300 in excess of $1,000 per risk. The maximum recovery on any one loss occurrence, irrespective of the number of risks involved, was $1,300. Should a loss recovery, or series of loss recoveries, exhaust the coverage provided under the contracts, one reinstatement of coverage was included at 100% additional premium.

There were no material changes to the Garage reinsurance program during the three or the nine months ended September 30, 2008.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

For the 2008-2009 contract year, we agreed to pay $49,849 in catastrophe and per-risk premiums, pending receipt from the FHCF of the final adjustment to our FHCF contract. Premiums ceded under our various agreements are summarized in the following table:

 

     Three Months Ended
September 30,
    Nine Months Ended
September 30,
 
     2008     2007     2008     2007  

Catastrophe excess-of-loss

   $ 383     $ 7,054     $ (48,094 )   $ (50,455 )

Non-catastrophe excess-of-loss

     —         —         (443 )     (421 )

Quota share

     (835 )     (1,072 )     (2,174 )     (2,612 )

Flood

     (2,484 )     (1,631 )     (5,790 )     (4,056 )
                                

Total premiums ceded

   $ (2,936 )   $ 4,351     $ (56,501 )   $ (57,544 )
                                

We amortize our prepaid reinsurance premiums over the 12-month contract period, and we record that amortization in Decrease (increase) in net unearned premiums on our Condensed Consolidated Statements of Operations. The table below depicts the components of that line item:

 

     Three Months Ended     Nine Months Ended  
     September 30,     September 30,  
     2008     2007     2008     2007  

Decrease (increase) in gross unearned premiums

   $ (1,753 )   $ 4,236     $ (2,488 )   $ (3,956 )

Increase (decrease) in prepaid reinsurance premiums

     (11,422 )     (19,034 )     12,555       5,902  
                                

Decrease (increase) in net unearned premiums

   $ (13,175 )   $ (14,798 )   $ 10,067     $ 1,946  
                                

 

9) LONG-TERM NOTES PAYABLE

 

  a) Note Payable to the Florida State Board of Administration (“FSBA”)

We have a $20,000 note payable to the FSBA which we amended on November 7, 2008, with an effective date of July 1, 2008. UPCIC agreed to certain covenants, the violation of which could cause an event of default. Among others, these covenants include: 1) maintaining statutory surplus above $50,000, 2) refraining from the payment of dividends when principal and/or interest payments related to the note are past due, and 3) maintaining a Minimum Writing Ratio (“Writing Ratio”). UPCIC may meet either:

 

   

a Writing Ratio based on Net Written Premium to Surplus of 1:1 for July 1, 2008 through the end of the first calendar year on December 31, 2008, a 1.5:1 ratio for the second calendar year from January 1, 2009 through December 31, 2009, and a 2:1 ratio for the third calendar year beginning on January 1, 2010 and thereafter for the remaining term of the note agreement, or

 

   

a Writing Ratio based on Gross Written Premium to Surplus of 3:1 for July 1, 2008 through the end of the first calendar year on December 31, 2008, a 4.5:1 ratio for the second calendar year from January 1, 2009 through December 31, 2009, and a 6:1 ratio for the third calendar year beginning on January 1, 2010 and thereafter for the remaining term of the note agreement.

For purposes of calculating the writing ratio on a quarterly basis, the amended note defines surplus as the sum of the $20,000 new capital contributed to UPCIC at the time the note was executed and the outstanding principal balance of the note. UPCIC will be assessed an interest rate penalty of 25 basis points or 450 basis points above the stated rate of the note if it fails to meet the writing ratios discussed above. The stated rate for the FSBA note is a rate equivalent to the 10-year Treasury Bond rate.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

Beginning on January 1, 2010, if UPCIC’s writing ratio based on net written premium to surplus falls below 1:1 for three consecutive quarters, and if UPCIC’s writing ratio based on gross written premium to surplus falls below 3:1 for three consecutive quarters, UPCIC will be obligated to repay a portion of the FSBA note such that the Writing Ratio will be obtained for the following quarter provided that UPCIC is capable of repayment without creating a financially hazardous condition. In addition, if UPCIC defaults on any covenant, the FSBA may, at its sole discretion, increase the interest rate to 25%, which is the maximum interest rate permitted by law; accelerate the repayment of principal and interest; shorten the term of the note or call the note and demand full repayment. As of September 30, 2008, UPCIC was in compliance with each of the loan covenants, as amended.

During the second and third quarters we incurred an additional 450 basis points of interest expense as we did not meet the Writing Ratio as stated in the initial note agreement with the FSBA. At September 30, 2008, we met the Writing Ratio as defined in the amended agreement and we will not incur an additional interest rate charge for the fourth quarter of 2008. At September 30, 2008, our interest rate was 8.49% on this note.

 

  b) Note Payable to Columbus Bank and Trust (“CB&T”)

In March 2008, we amended the loan agreement between UIM and CB&T. The note accrues interest at a rate equivalent to the 30-day LIBOR rate plus 300 basis points (reduced from 400 basis points above 30-day LIBOR). At September 30, 2008 and December 31, 2007, the interest rate on the note was 6.2% and 9.8%, respectively and the balance of the note was $4,327 and $23,833, respectively.

On August 11, 2008, we entered into a Second Amendment to the loan agreement with CB&T. The Second Amendment calls for principal payments to cease after the July 2008 installment and recommence with the April 2009 installment. During the period from August 1, 2008 through March 31, 2009, interest only payments will be made to CB&T. See Note 11 for a discussion of related party transactions with CB&T.

Our loan agreement with CB&T contains certain covenants, including the maintenance of minimum specified financial ratios and balances. On August 13, 2008, CB&T waived, until January 1, 2009, the debt covenant related to maintenance of a minimum debt service coverage ratio of at least 2:1 on a quarterly basis. We were in compliance with the terms of the covenants at September 30, 2008.

 

  c) Notes Payable to Five Noteholders

On August 15, 2008, we entered into a note purchase agreement with five noteholders. The issuance of any notes under this agreement was contingent upon our stockholders voting for the Merger transaction. Upon approval of the Merger on September 29, 2008, by our stockholders, we issued unsecured notes payable with a total face amount of $18,280. In exchange, we received $10,000 cash from certain accredited investors and 869,565 shares of our common stock from two former UIHC stockholders, the shares being valued at $6,878 at the time the notes were issued. We recorded a discount on these notes of $1,402 which will be amortized to interest expense over the three-year term. The notes bear interest at 11% per year, and require semi-annual interest-only payments each April 1 st and October 1 st . The entire principal balance is due and payable on September 29, 2011; however, we have the option to prepay in full any principal amount then outstanding within 30 days after each of the first and second anniversary dates of the notes. Any such prepayment will be made at 105% of the principal amount prepaid. Management currently does not intend to prepay these notes. At September 30, 2008 and December 31, 2007, the balances on the notes were $16,878 (net of $1,402 discount on notes) and zero, respectively.

We agreed to certain covenants, the violation of which could cause an event of default. Among others, these covenants include refraining from incurring debt that would cause our aggregate debt balance, including the $18,280 incurred under this note agreement, to exceed $58,280 (excluding the FSBA note amount), and refraining from making any payments (e.g., dividends or distributions), whether in cash, securities or other property, that would reduce consolidated net worth, as defined in the note agreement, to less than $45,000. We were in compliance with the terms of the covenants at September 30, 2008; however, since our consolidated net worth at September 30, 2008 was below $45,000, we could not make any dividends or distributions to our stockholders.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

  d) Other Debt-Related Items

On September 10, 2006, UIH and York entered into a $20,000 loan agreement (“York Note”). In connection with the transaction, York received a 4.75% equity interest in UIH (“Ownership Interest”) and entered into a redeemable Put Agreement (the “Put”) with UIH. The Put provided the holder of the Ownership Interest with an option to sell its entire interest back to UIH at a purchase price of two times the consolidated book value of UIH at the end of the fiscal quarter immediately preceding the Put date. The Put date would have been the date within the periods of September 15, 2009 through September 15, 2010, or September 15, 2011 through September 15, 2012 upon which the holder of the Put would have had to provide written notice of its intent to exercise the option. When the Merger between FMG and UIH became effective, York exchanged its Ownership Interest (including the ability to exercise the Put) for the merger consideration. To account for the fact that the Put no longer represents a liability to us as of the close of the merger on September 30, 2008, we reversed the liability of $2,564 we had recorded prior to the Merger and recorded it in Other Income on the Condensed Consolidated Statement of Operations.

 

10) COMMITMENTS AND CONTINGENCIES

 

  a) Litigation

We are involved in claims-related legal actions arising in the ordinary course of business. Amounts resulting from claims-related legal actions are accrued in Unpaid Losses and Loss Adjustment Expenses during the period an unfavorable outcome becomes probable and the amounts can be estimated. Revisions to our estimates are based on our analysis of subsequent information that we receive regarding various factors, including: (i) per claim information; (ii) company and industry historical loss experience; (iii) judicial decisions and legal developments in the awarding of damages, and (iv) trends in general economic conditions, including the effects of inflation. Management revises the estimates based on the results of their analysis. In the opinion of management, the ultimate disposition of these matters will not have a material adverse effect on our consolidated financial position, results of operations, or liquidity. We are not currently involved in any material non-claims-related litigation.

 

  b) Regulatory and Other

We operate in a regulatory environment where certain entities have the authority to require us to participate in assessments. Currently these entities include, but are not limited to, the Florida Insurance Guaranty Association (“FIGA”), Citizens, and FHCF. There have been no changes in our co-insurance participation that occurred in the first nine months of 2008 that would impact us. The Board of Directors of FIGA held separate meetings to discuss their continued financial challenges in connection with the insolvency of a particular insurance company assumed subsequent to the 2005-2006 hurricane season. During the second quarter of 2008, indications became clear that the FHCF may not be able to raise sufficient money to pay their claims on a timely basis. The FHCF has the authority to raise additional cash to pay claims through the issuance of bonds, the retirement of which would be funded by imposing additional assessments on future insurance premiums written in the state. Because of our participation in assigned risk plans, we may be exposed to losses that surpass the capitalization of these facilities and/or to additional assessments from these facilities. In addition, while we can recoup these assessments from policyholders through premium rate increases, our payment of the assessments and our recoupments may not offset each other in the same fiscal period in our financial statements.

We are also subject to changing social, economic, and regulatory conditions. Regulatory authorities as well as legislative bodies in the State of Florida seek to influence and restrict premium rates, require premium refunds to policyholders, restrict the ability of insurers to cancel or non-renew policies, require insurers to continue to write new policies

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

or limit their ability to write new policies. They can also limit insurers’ ability to change coverage terms or impose underwriting standards or impose additional regulations regarding agent and broker compensation. All of these items result in an expansion of the overall regulation of insurance products and the insurance industry. The ultimate changes and effects on our business, if any, are uncertain. However, based upon information currently known to management, the effect of regulation is not considered to have a material effect on our consolidated financial statements.

 

  c) Leases

We lease office space and office equipment under operating leases. In June 2008, we entered into a new six-year operating lease agreement for office space for our corporate headquarters. The new lease provides us with an option for two renewal periods of five years each.

At September 30, 2008, the minimum future lease payments under our non-cancelable operating leases are as follows:

 

     Total

Remaining 2008

   $ 95

2009

     390

2010

     404

2011

     419

2012

     404

Thereafter

     686
      

Total

   $ 2,398
      

 

11) RELATED PARTY TRANSACTIONS

During the three months ended September 30, 2008 and 2007, we paid board-of-directors fees and commissions for premiums produced to Alpha Insurance, Comegys Insurance Corner and San of Tampa Bay (insurance agencies owned by a person that served as a UIH director until the close of the Merger) totaling $242 and $254, respectively. Those same payments totaled $615 and $637 during the nine months ended September 30, 2008 and 2007, respectively. The commissions paid were determined in accordance with industry rates. As of September 30, 2008, the owner of the aforementioned insurance agencies no longer serves as a director, but remains a common stockholder.

We place private reinsurance through BMS Group, Ltd., a broker that employs a person that served as a UIH director until the close of the Merger. The reinsurers pay commissions to the broker determined in accordance with industry rates. As of September 30, 2008, the aforementioned person no longer serves as a director, but remains a common stockholder.

We have entered into an investment-management agreement with Synovus Trust Company, N.A. (“Synovus Trust”), which provides discretionary investment management services for the investment accounts of our subsidiaries. The agreement was effective October 8, 2003, and remains in effect until terminated by either party. Synovus Trust is owned by Synovus Financial Corporation (“Synovus”). Synovus owned 14.6% of our outstanding common shares at September 30, 2008, and owned 17.2% of UIH at December 31, 2007. Our subsidiaries incurred combined fees under the agreement of $8 and $13 for the three months ended September 30, 2008 and 2007, respectively, and $60 and $89 for the nine months ended September 30, 2008 and 2007, respectively.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

During 2008 and 2007, we had various secured loan agreements with CB&T. CB&T is a subsidiary of Synovus. The amount outstanding on the note payable executed in February 2007 was $4,327 and $23,833 at September 30, 2008 and December 31, 2007, respectively. Total interest incurred related to the CB&T loan agreements was $63 and $880 for the three months ended September 30, 2008 and 2007, respectively, and $691 and $2,506 for the nine months ended September 30, 2008 and 2007, respectively. The interest rates charged and earned were determined in accordance with industry rates.

During the first quarter of 2008, UIH’s Chairman of the Board of Directors exercised an option for $63 to purchase additional membership units of UIH. No further UIH equity purchase options exist.

In a private placement immediately prior to the offering that took place on October 11, 2007 (the “Offering”), certain of our directors purchased, through FMG Investors, LLC, warrants which they can exercise to purchase 1,250,000 shares of our common stock. The warrants were purchased at a price of $1.00 per warrant from the Company and not as part of the Offering. FMG Investors, LLC surrendered warrants to purchase 179,819 shares of our common stock back to the Company as a result of the Merger. The remaining warrants to purchase 1,070,181 shares of our common stock are held in escrow until 90 days after the Merger date.

In addition to surrendering the warrants mentioned above, FMG Investors LLC, also agreed as part of the Merger transaction to reduce the number of UIHC common shares it owned by 179,819. No consideration was paid for these surrendered shares and these shares were cancelled.

On September 29, 2008, we issued notes payable with a total face amount of $7,527 to two of our former stockholders. These notes are part of the note agreement we entered into on August 15, 2008, with various accredited investors. In exchange for these notes, we received 869,565 shares of UIHC common stock, with a total value of $6,878 at the time the notes were issued. We recorded a discount on these notes of $649 which will be amortized to interest expense over the three-year term. The notes bear interest at 11% per year, and require semi-annual interest-only payments each April 1 st and October 1 st . The entire principal balance is due and payable on September 29, 2011.

 

12) COMPREHENSIVE INCOME (LOSS)

Comprehensive income (loss) includes unrealized gains and losses; net of the related income tax effect, on debt and equity securities classified as available-for-sale, and is included as a component of stockholders’ equity.

 

     Three Months Ended
September 30,
    Nine Months Ended
September 30,
 
     2008     2007     2008     2007  

Net unrealized gains (losses)

   $ (3,516 )   $ 918     $ (5,226 )   $ (58 )

Tax effect

     1,323       (282 )     1,966       22  
                                

Net unrealized holding gains (losses), net of tax

   $ (2,193 )   $ 636     $ (3,260 )   $ (36 )
                                

 

13) CAPITAL TRANSACTIONS

During the first quarter of 2008, UIH’s Chairman of the Board of Directors exercised an option for $63 to purchase additional membership units of UIH.

On September 29, 2008, we increased in the number of authorized shares of our common stock from 20,000,000 to 50,000,000 with a $0.0001 par value per share.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

As further detailed in Note 3, we completed the acquisition of, and merger with, UIH effective September 30, 2008. The following transactions relating to our capital stock occurred in connection with the Merger:

 

   

We issued 8,929,819 shares of our common stock to the members of UIH, as well as warrants to purchase 1,273,569 shares of our common stock. Each common stock warrant allows the holder to purchase one share of our common stock at an exercise price of $6.00 per share. The warrants are exercisable beginning October 4, 2008, and expire on October 4, 2011.

 

   

We paid cash of $15,740 pursuant to the stock purchase agreements to repurchase 1,980,671 shares of our common stock on September 29, 2008.

 

   

We repurchased 869,565 shares from two former stockholders by exchanging notes payable for the shares. The notes have a face value of $7,527 and bear interest at 11% per year (see Note 9).

 

   

We paid cash of $10,039 to holders of 1,267,863 shares of our common stock who did not vote in favor of the Merger and elected to have their shares of common stock converted to cash.

 

   

FMG Investors, LLC surrendered 179,819 shares of UIHC common shares it owned. No consideration was paid for these surrendered shares and the shares were cancelled. FMG Investors, LLC also surrendered 179,819 of the common stock warrants that it owned. See Note 11 for a further discussion of FMG Investors, LLC being a related party to UIHC.

 

   

The underwriter for our IPO surrendered 100,000 of the 450,000 unit purchase options it owned. They also agreed to accelerate the expiration date of their remaining 350,000 unit purchase options to October 4, 2010. Each unit purchase option consists of a share of common stock and a warrant to purchase a share of common stock. The unit purchase options are exercisable beginning October 4, 2008, at an exercise price of $10.00 per unit.

We have a right to redeem the warrants if the last sale price of the common stock equals or exceeds $11.50 per share, for any 20 trading days within a 30 trading day period ending on the third business day prior to the notice of redemption to warrant holders. If we call the warrants for redemption, our management will have the option to require any holder that wishes to exercise his, her or its warrant to do so on a “cashless basis.” If our management takes advantage of this option, all holders of warrants would pay the exercise price by surrendering his, her or its warrants for that number of shares of common stock equal to the quotient obtained by dividing (x) the product of the number of shares of common stock underlying the warrants, multiplied by the difference between the exercise price of the warrants and the “fair market value” by (y) the fair market value. If we call our warrants for redemption and our management does not take advantage of this option, Pali Capital would still be entitled to exercise its warrants (350,000) for cash or on a cashless basis.

As discussed in the “Related Party Transactions” section above, FMG Investors, LLC, a related party, holds warrants to purchase 1,070,181 shares of our common stock, which are being held by an escrow agent pursuant to an escrow agreement until 90 days after the Merger date. As long as these warrants are held by FMG Investors, LLC or certain permitted assigns, they are non-redeemable and can be exercised on a “cashless” basis.

See Note 9(c) for a discussion on restrictions on dividends or distributions related to the note purchase agreement with five noteholders.

Prior to the recently completed Merger, and in accordance with the UIH Members Agreement, UIH provided cash distributions to each of its members on an annual basis to allow each member to pay any federal income tax which may have been owed on the taxable income attributable to the person/entity as a member of UIH. UIH paid a tax distribution of $9,262 to its members during the nine months ended September 30, 2008. UIH has accrued $7,325 for a tax distribution related to the taxable income attributable to the members of UIH for the nine months ending on September 30, 2008, the date the Merger was completed. The tax distribution will be paid to members prior to year end. No non-tax-related distributions were declared by UIH during the three months ended September 30, 2008 and 2007, but $2,000 and zero were declared and paid during the nine months ended September 30, 2008 and 2007, respectively. The $2,000 non-tax-related distribution was authorized under the Merger agreement.

 

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UNITED INSURANCE HOLDINGS CORP.

Notes to Condensed Consolidated Financial Statements

(Unaudited)

In thousands, except share and per share amounts

 

14) REGULATORY REQUIREMENTS AND RESTRICTIONS

UPCIC’s assets, liabilities and results of operations have been reported in accordance with GAAP, which varies from statutory accounting practices (“SAP”) prescribed or permitted by insurance regulatory authorities. Prescribed statutory accounting practices are found in a variety of publications of the National Association of Insurance Commissioners (“NAIC”), state laws and regulations, as well as through general practices. The principal differences between SAP and GAAP are that under SAP: (1) certain assets that are not admitted assets are eliminated from the balance sheet, (2) acquisition costs for policies are expensed as incurred, while they may be deferred and amortized over the estimated life of the policies under GAAP, (3) differences in the computation of deferred income taxes, and (4) valuation allowances are established against investments. UPCIC must file with applicable state insurance regulatory authorities an “Annual Statement” which reports, among other items, net income (loss) and stockholders’ equity (called “surplus as regards policyholders” or “surplus” in statutory reporting).

Statutory surplus was $52,598 and $51,699 at September 30, 2008 and December 31, 2007, respectively. Statutory net income was $(2,736) and $1,956 for the three months ended September 30, 2008 and 2007, respectively and $5,947 and $7,912 for the nine months ended September 30, 2008 and 2007, respectively.

GAAP differs in some respects from reporting practices prescribed or permitted by the OIR. To retain our certificate of authority, the Florida insurance laws and regulations require that UPCIC maintain capital and surplus equal to the statutory minimum capital and surplus requirement defined in the Florida Insurance Code as the greater of 10% of the insurer’s total liabilities or $4 million. UPCIC’s statutory capital surplus was $52,598 at September 30, 2008, and exceeded the minimum capital and surplus requirements. UPCIC is also required to adhere to prescribed premium-to-capital surplus ratios, with which we were in compliance as of September 30, 2008.

Under Florida law, a domestic insurer may not pay any dividend or distribute cash or other property to its stockholders except out of that part of its available and accumulated capital and surplus funds which is derived from realized net operating profits on its business and net realized capital gains. A Florida domestic insurer may not make dividend payments or distributions to stockholders without prior approval of the Florida OIR if the dividend or distribution would exceed the larger of (1) the lesser of (a) 10.0% of its capital surplus or (b) net income, not including realized capital gains, plus a two year carry forward, (2) 10.0% of capital surplus with dividends payable constrained to unassigned funds minus 25% of unrealized capital gains or (3) the lesser of (a) 10.0% of capital surplus or (b) net investment income plus a three year carry forward with dividends payable constrained to unassigned funds minus 25% of unrealized capital gains. At September 30, 2008, we were in compliance with these requirements.

 

15) SUBSEQUENT EVENTS

On October 14, 2008, UPCIC assumed approximately four thousand one hundred policies from Citizens. On November 6, 2008, we received $3,736 in premium from this assumption, net of ceding commission of $598; however, Florida law allows policyholders to “opt out” of the assumption at any time until we issue them a UPCIC renewal policy. The policies were removed from Citizens pursuant to an assumption agreement with Citizens dated August 27, 2008. In conjunction with the assumption agreement, UPCIC agreed to a Consent Order from the OIR that allows UPCIC to assume as many as 75,000 policies from Citizens over a period of 18 months from August 27, 2008. In addition, we agreed that any rates charged to policyholders within one year of the actual date of removal of policies removed pursuant to the Consent Order shall remain at or below the approved rates for Citizens.

On November 7, 2008, we amended our note payable to the FSBA. The amendment to the note, which was effective on July 1, 2008, changes some of the terms of the agreement, including the Minimum Writing Ratio that UPCIC is required to meet. Please see Note 9(a) for additional details regarding the amended note.

 

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UNITED INSURANCE HOLDINGS CORPORATION

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Item 2: Management’s Discussion and Analysis of Financial Condition and Results of Operations

FORWARD-LOOKING STATEMENTS

Statements in this Quarterly Report on Form 10-Q for the nine months ended September 30, 2008 (Form 10-Q) or in documents that are incorporated by reference that are not historical fact are “forward-looking statements” within the meaning of the Private Securities Reform Litigation Act of 1995. These forward-looking statements include statements about anticipated growth in revenues, earnings per share, estimated unpaid losses on insurance policies, investment returns and expectations about our liquidity. These statements are based on current expectations, estimates and projections about the industry and market in which we operate, and management’s beliefs and assumptions. Without limiting the generality of the foregoing, words such as “may,” “will,” “expect,” “believe,” “anticipate,” “intend,” “could,” “would,” “estimate,” or “continue” or the negative other variations thereof or comparable terminology are intended to identify forward-looking statements. Forward-looking statements are not guarantees of future performance and involve certain known and unknown risks and uncertainties that could cause actual results to differ materially from those expressed or implied by such statements. The risks and uncertainties include, without limitation, uncertainties related to estimates, assumptions and projections relating to unpaid losses and loss adjustment expenses and other accounting policies, losses from the hurricanes that occurred in 2005 and 2004 and in other estimates, assumptions and projections contained in this Form 10-Q; inflation and other changes in economic conditions (including changes in interest rates and financial markets); the impact of new regulations adopted in Florida which affect the property and casualty insurance market; the costs of reinsurance; assessments charged by various governmental agencies; pricing competition and other initiatives by competitors; our ability to obtain regulatory approval for requested rate changes and the timing thereof; legislative and regulatory developments; the outcome of litigation pending against us, including the terms of any settlements; risks related to the nature of our business; dependence on investment income and the composition of our investment portfolio; the adequacy of our liability for loss and loss adjustment expense; insurance agents; claims experience; ratings by industry services; catastrophe losses; reliance on key personnel; weather conditions (including the severity and frequency of storms, hurricanes, tornadoes and hail); acts of war and terrorist activities; and other matters described from time to time by us in this Form 10-Q and in our other filings with the U.S. Securities and Exchange Commission (“SEC”).

You are cautioned not to place reliance on these forward-looking statements, which are valid only as of the date they were made. We undertake no obligation to update or revise any forward-looking statements to reflect new information or the occurrence of unanticipated events or otherwise. In addition, readers should be aware that accounting principles generally accepted in the U.S. (“GAAP”) prescribe when a company may reserve for particular risks, including litigation exposures. Accordingly, results for a given reporting period could be significantly affected if and when a reserve is established for a major contingency. Reported results may therefore appear to be volatile in certain accounting periods.

COMPANY OVERVIEW

On September 30, 2008, United Insurance Holdings Corp. (formerly known as FMG Acquisition Corp. or “FMG”), completed a merger pursuant to an Amended and Restated Agreement and Plan of Merger, dated August 15, 2008, as amended on September 23, 2008, whereby United Subsidiary Corp., a wholly-owned subsidiary of FMG, merged with and into United Insurance Holdings, L.C., a Florida limited liability company (“UIH”), with UIH remaining as the surviving entity (the “Merger”). In connection with the Merger, FMG changed its name to United Insurance Holdings Corp. (which is referred to herein as “UIHC” or “we”).

Prior to the merger, we were a blank-check company with no operations, formed as a vehicle for an acquisition of an operating business in the insurance industry. The following information is provided about us, our business and securities, reflecting the consummation of the Merger.

 

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UNITED INSURANCE HOLDINGS CORPORATION

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Through UIH and UIH’s three wholly-owned subsidiaries, UIHC is engaged in the property and casualty insurance business in the State of Florida. The three subsidiaries of UIH include United Property & Casualty Insurance Company (“UPCIC”), United Insurance Management, LC (“UIM”) and Skyway Claims Services, LC (“Skyway”). We operate under one business segment.

UPCIC was formed in 1999 under the laws of the State of Florida and is authorized by the Florida Office of Insurance Regulation (“OIR”) to underwrite homeowners’ and dwelling property and casualty lines. UPCIC began operations by both assuming policies from Citizens Property Insurance Corporation (“Citizens”), and by actively writing our own policies throughout the State of Florida utilizing our vast, independent agency network. In 2004 and 2005, UPCIC supplemented its voluntary writings by assuming policies from Citizens. The assumed policies comprise approximately 25% of UPCIC’s in-force premium. Beginning in October 2008, UPCIC plans to assume additional policies from Citizens under a new agreement with Citizens. The OIR has also authorized UPCIC to write flood coverage and a smaller commercial auto (“Garage”) line of business.

UIM is a managing general agent (“MGA”) formed in 1999 under the laws of the State of Florida. UIM manages all aspects of UPCIC’s operations, including underwriting, policy administration, collections and disbursements, accounting and claims processes.

Skyway was formed in 2004 under the laws of the State of Florida to provide claims appraisal services. Skyway is currently one of several companies that provide such services to UPCIC, and it mainly provides appraisal services for claims arising from Dade, Broward and Palm Beach counties.

MERGER TRANSACTION

On September 30, 2008, in a cash and stock transaction, we completed the acquisition of 100% of the ownership interests in UIH and merged UIH with a transitory, wholly-owned subsidiary created specifically for that purpose. As consideration for the Merger, we paid members of UIH an aggregate of $25 million in cash and we issued 8,929,819 shares of our common stock and warrants to purchase 1,273,569 shares of the our common stock. The cash consideration for the Merger was funded with cash held in our trust account established in connection with our initial public offering, as well as the net proceeds of the debt financing which closed on September 29, 2008. Former members of UIH may receive additional cash consideration of up to $5 million, in the aggregate, based on our achievement of certain net income targets. The warrants are exercisable at $6.00 per share beginning October 4, 2008, and expire on October 4, 2011. Each warrant allows the holder to purchase one share of our common stock.

We accounted for the Merger as a reverse acquisition and recapitalization since UIH was deemed to be the accounting acquirer. Accordingly, the historical assets, liabilities and operations reflected in these financial statements are those of UIH, and are recorded at the historical cost basis of UIH. UIHC’s assets and liabilities were recorded at their fair value on the date of the Merger and are consolidated with the assets and liabilities of UIH after consummation of the Merger.

On the Condensed Consolidated Statement of Operations, we retroactively restated EPS for periods prior to the Merger. Since the consideration paid in the Merger transaction was cash and common stock, the shares outstanding at the time the Merger was effective were deemed to be the historical shares outstanding prior to the Merger.

Prior to September 30, 2008, UIH had elected to be treated as a partnership for income tax purposes. The taxable income and all tax credits of UIH and its two limited liability company subsidiaries were reportable by UIH’s members on their individual tax returns. Accordingly, these income taxes are not reflected in our financial statements for the periods prior to September 30, 2008. On the Condensed Consolidated Statements of Operations, the pro forma computation

 

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UNITED INSURANCE HOLDINGS CORPORATION

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

of income tax for the three- and nine-month periods ended September 30, 2008 and 2007, represents the tax effects that would have been reported had all our subsidiaries been subject to U.S. Federal and State income taxes as a C-corporation for all periods presented. Since UIHC is a C-corporation, UIH and its two limited liability company subsidiaries converted to C-corporation status for tax purposes, effective on October 1, 2008 (UPCIC was taxed as a C-corporation from its inception). Subsequent to the Merger date, all income taxes will be recorded in accordance with Statements of Financial Accounting Standards (“SFAS”) No. 109, Accounting for Income Taxes on our financial statements.

Prior to the Merger, and in accordance with the UIH Members Agreement, UIH provided cash distributions to each of its members on an annual basis to allow each member to pay any federal income tax which may have been owed on the taxable income attributable to the person/entity as a member of UIH. UIH paid a tax distribution of $9.3 million to its members during the nine months ended September 30, 2008. UIH has accrued $7.3 million for a tax distribution related to the taxable income attributable to its members for the nine months ending on September 30, 2008, the date the Merger was completed. The accrued tax distribution will be paid to UIH’s members prior to year end.

On August 15, 2008, in a transaction related to the Merger, we entered into a note purchase agreement with five noteholders. The issuance of any notes under this agreement was contingent upon our stockholders voting for the Merger. Upon approval of the Merger by our stockholders on September 29, 2008, we issued unsecured notes payable with a total face amount of $18.3 million. In exchange, we received $10.0 million cash from certain accredited investors and 869,565 shares of our common stock, valued at $6.9 million at the time the notes were issued, from two former UIHC stockholders. We recorded a discount on these notes of $1.4 million which will be amortized to interest expense over the three-year term. The notes bear interest at 11% per year, and require semi-annual interest-only payments each April 1 st and October 1 st . The entire principal balance is due and payable on September 29, 2011; however, we have the option to prepay in full any principal amount then outstanding within 30 days after each of the first and second anniversary dates of the notes. Any such prepayment will be made at 105% of the principal amount prepaid.

The following additional transactions occurred in connection with the Merger:

 

   

We paid cash of $15.7 million pursuant to agreements to repurchase 1,980,671 shares of our common stock on September 29, 2008.

 

   

We paid cash of $10 million to holders of 1,267,863 shares of our common stock who did not vote in favor of the Merger and elected to have their shares of common stock converted to cash.

 

   

FMG Investors, LLC surrendered 179,819 shares of UIHC common stock it owned. No consideration was paid for these surrendered shares and the shares were cancelled. FMG Investors, LLC also surrendered 179,819 of the common stock purchase warrants that it owned.

 

   

The underwriter for our IPO surrendered 100,000 of the 450,000 unit purchase options it owned. They also agreed to accelerate the expiration date of their remaining 350,000 unit purchase options to October 4, 2010. Each unit purchase option consists of a share of common stock and a warrant to purchase a share of common stock. The unit purchase options are exercisable beginning October 4, 2008, at an exercise price of $10.00 per unit.

 

   

UIH paid to UIHC $5.7 million of cash, which was primarily used to repurchase certain shares of our common stock as described above.

 

   

UIH paid a non-tax related distribution of $2 million to its members as permitted in the Amended and Restated Agreement and Plan of Merger.

 

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UNITED INSURANCE HOLDINGS CORPORATION

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

OPERATIONAL RISKS

The following is a description of the most significant risks facing us and how we attempt to mitigate those risks:

 

  i) LEGAL/REGULATORY RISK—the risk that changes in the regulatory environment in which an insurer operates could create additional expenses not anticipated by the insurer in pricing our products. That is, regulatory initiatives designed to reduce insurer profits, restrict underwriting practices and risk classifications, or mandate rate reductions and refunds could create costs for the insurer beyond those recorded in the financial statements, as could new legal theories or insurance company insolvencies (through guaranty fund assessments). We attempt to mitigate this risk by monitoring proposed regulatory legislation and by assessing the impact of new laws. As we write business only in the State of Florida, we are more exposed to this risk than more geographically-balanced companies.

 

  ii) CREDIT RISK—the risk that financial instruments, which potentially subject us to concentrations of credit risk, may decline in value or default, or the risk that reinsurers, to which business is ceded and from which receivables are recorded on the balance sheet, may not pay. We minimize this risk by adhering to a conservative investment strategy and entering into reinsurance agreements with financially sound reinsurers.

 

  iii) INTEREST RATE RISK—the risk that interest rates will change and cause a decrease in the value of an insurer’s investments. To the extent that liabilities come due more quickly than assets mature, an insurer might have to sell assets prior to maturity and potentially recognize a gain or a loss. This risk is managed by the monitoring of the investment portfolio by management, the investment committee and our outside investment manager.

 

  iv) GEOGRAPHIC RISK—the risk of currently writing all of our policies in the State of Florida. We minimize this risk by entering into reinsurance agreements with financially sound reinsurers.

 

  v) CATASTROPHIC EVENT RISK—the risk associated with writing insurance policies that cover losses resulting from catastrophes, including hurricanes, tropical storms, tornadoes or other weather-related events. We mitigate our risk of catastrophic events through the use of reinsurance, forecast-modeling techniques and the monitoring of concentrations of risk, all designed to protect the statutory surplus of UPCIC.

CRITICAL ACCOUNTING POLICIES

During the nine months ended September 30, 2008, we made no significant changes to our critical accounting policies and estimates. Please refer to the section entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of United Insurance Holdings, L.C. – Critical Accounting Policies” in our proxy statement/prospectus (No. 333-150327), dated September 4, 2008, as supplemented.

 

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UNITED INSURANCE HOLDINGS CORPORATION

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

RECENT ACCOUNTING PRONOUNCEMENTS

On October 10, 2008, the Financial Accounting Standards Board (“FASB”) issued FASB Staff Position 157-3, Determining the Fair Value of a Financial Asset When the Market for That Asset Is Not Active ( FSP 157-3 ) . In FSP 157-3, the FASB clarifies the application of Statement of Financial Accounting Standards No. 157 (“SFAS No. 157”), Fair Value Measurements when the market for that financial asset is not active. FSP 157-3 was effective upon issuance and applies to financial assets within the scope of accounting pronouncements that require or permit fair value measurements in accordance with SFAS No. 157. The adoption of FSP 157-3 will have no material effect on our consolidated financial statements.

The following discussion and analysis of our financial condition and results of operations should be read in conjunction with the interim condensed consolidated financial statements and related notes, and in conjunction with the sections entitled “Management’s Discussion and Analysis of Financial Condition and Results of Operations” for each of FMG and UIH in our proxy statement/prospectus (No. 333-150327), dated September 4, 2008, as supplemented.

ANALYSIS OF FINANCIAL CONDITION (September 30, 2008 versus December 31, 2007)

Total Investments

Total Investments increased $8.9 million, or 7.8%, to $122.7 million at September 30, 2008, compared to $113.8 million as of December 31, 2007. The increase primarily resulted from purchases of $34.3 million of fixed maturities, $10.2 million of equity securities and $10.0 million of certificates of deposit, offset by sales of $38.7 million of fixed maturities and $1.7 million of equity securities during the nine months ended September 30, 2008. In addition, unrealized losses on investments held for sale increased by $5.2 million. The increase in unrealized losses is primarily related to our corporate bonds. As the global economy has begun to slow, investors have increasingly sold their positions in corporate bonds to reinvest in U.S. Treasuries. As a result, the values of our corporate bonds have declined.

The fixed maturities and the equity securities that are available for sale and carried at fair value represent 91.6 % of total investments as of September 30, 2008, compared to 99.7% as of December 31, 2007.

Below is a summary of net realized gains (losses) for the nine months ended September 30, 2008 and 2007 by category:

 

     Nine Months Ended
September 30,
 
     2008     2007  
     (in thousands)  

Fixed maturities

   $ 1,379     $ 3  

Equity securities

     45       132  
                

Total realized gains

     1,424       135  
                

Fixed maturities

     (51 )     (41 )

Equity securities

     (217 )     (181 )
                

Total realized losses

     (268 )     (222 )
                

Net realized gains (losses) on investments

   $ 1,156     $ (87 )
                

 

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UNITED INSURANCE HOLDINGS CORPORATION

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Our investments at September 30, 2008, consisted mainly of U.S. Treasuries and corporate bonds. The corporate bonds we hold are substantially all in the conglomerate, energy and technology/telecommunications industries, with no material holdings in the financial industry. Approximately 85% of our fixed maturities are U.S. Treasuries or corporate bonds rated “A” or better; the remaining 15% are corporate bonds rated “BBB”. The equity holdings reflect a similar diversification, with most of our holdings being in the energy, healthcare, industrial and technology sectors; less than 3% of our holdings are in the financial sector. See Note 7 to the interim condensed consolidated financial statements for the period ended September 30, 2008, for the fair value disclosure in accordance to SFAS No. 157 related to these investments. Short-term investments at September 30, 2008, relate to certificates of deposits with a maturity date of greater than 90 days.

We have determined that none of our securities reflect an impairment that qualifies as other than temporary per SFAS No. 115.

RESULTS OF OPERATIONS (Nine Months Ended September 30, 2008 versus Nine Months Ended September 30, 2007)

REVENUE

Gross Premiums Written

Gross premiums written decreased $11.0 million, or 9.3%, to $106.8 million for the nine months ended September 30, 2008, compared to $117.8 million for the nine months ended September 30, 2007.

The number of policies-in-force at September 30, 2008 increased to 71,300 from 62,800 at September 30, 2007; however, this increase in policies-in-force was offset by several factors which caused a net decrease in gross written premiums. Specifically, there was a decrease in policies written in the Tri-County area (Dade, Broward and Palm Beach Counties) and an increase in policies written in other locations in Florida that have lower average written premium. In addition, in the fourth quarter of 2007, the OIR implemented new wind mitigation credits (to be applied to all companies’ policies) that also reduced the average premium during the nine months ended September 30, 2008, compared to the same period in the prior year. These factors combined to decrease the average premium per policy from $2,368 at September 30, 2007, to $1,784 at September 30, 2008. The full effect of the wind mitigation credits as a decrease to gross premiums written will be reflected through our entire book as of November 30, 2008. On October 14, 2008, we selected approximately 4,100 policies for assumption from Citizens. By Florida law, policyholders may choose to “opt out” of the assumption and keep their Citizens policy. We expect the ultimate number of policies assumed in October to be approximately 3,700, with in-force premium of $6.3 million.

Gross Premiums Ceded

Gross premiums ceded decreased by $1.0 million or 1.8% to $56.5 million for the nine months ended September 30, 2008, compared to $57.5 million for the nine months ended September 30, 2007. Substantially all of the decrease is related to our catastrophe reinsurance contracts. The premium paid on those contracts is the product of the amount of coverage purchased and rate on line (“ROL”). The ROL for the various contracts decreased significantly from the prior contract year due to additional capital being added in reinsurance markets, an increase in the number of competitors in the reinsurance markets, and the lack of catastrophic weather events in Florida in 2006 and 2007.

 

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Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

Decrease (Increase) in Net Unearned Premiums

Net unearned premiums decreased $10.1 million for the nine months ended September 30, 2008, compared to a decrease of $1.9 million for the nine months ended September 30, 2007. On September 30, 2007, we recorded premium adjustments, as stipulated by contract, of $7.0 million that lowered the unearned premium related to those contracts; however, no premium adjustments were required at September 30, 2008, thereby causing most of the decrease in net unearned premiums. The remaining decrease in net unearned premiums resulted from changes in our gross written premium.

Net Premiums Earned

Net premiums earned decreased $1.8 million, or 2.9%, to $60.4 million for the nine months ended September 30, 2008, compared to $62.2 million for the nine months ended September 30, 2007. The decrease in net premiums earned is due to the decreases in gross written premium, gross ceded premiums, and net unearned premiums as discussed above.

Net Investment Income

Net investment income decreased $0.9 million, or 14.9%, to $5.0 million for the nine months ended September 30, 2008, compared to $5.9 million for the nine months ended September 30, 2007. During the nine months ended September 30, 2008, more of our portfolio was invested in cash equivalents and equities than was invested in fixed maturities, while more of our portfolio was invested in fixed maturities than was invested in cash equivalents and equities during the same period in 2007. Since our fixed maturities have a much higher yield than we could earn from equity dividends or interest on cash equivalents, our net investment income decreased.

Net Realized Investment Gains and Losses

Net realized investment gains and losses increased to a $1.2 million gain for the nine months ended September 30, 2008, compared to a $0.1 million loss for the nine months ended September 30, 2007. The table in the section above captioned “Total Investments” depicts the gains and losses by investment category.

Policy Assumption Bonus

Policy assumption bonus, which includes interest income earned on the bonus amounts, decreased to $6.4 million for the nine months ended September 30, 2008, compared to $11.6 million for the same period in 2007. The decrease resulted because we collected bonus on approximately 19,000 policies during the nine months ended September 30, 2008, compared to our collection of bonus on approximately 32,100 policies during the same period in 2007.

 

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EXPENSES

Loss and Loss Adjustment Expenses

Loss and loss adjustment expenses (“LAE”), our most significant expense, represent actual payments made and changes in estimated future payments to be made to or on behalf of our policyholders, including expenses required to settle claims and losses. We revise our estimates based on the results of analysis of estimated future payments to be made. This process assumes that past experience, adjusted for the effects of current developments and anticipated trends, is an appropriate basis for predicting future events.

Loss and LAE increased by $6.5 million, or 35.4%, to $25.0 million for the nine months ended September 30, 2008, compared to $18.5 million for the nine months ended September 30, 2007. The increase is primarily attributable to $3.6 million of incurred loss and LAE related to claims resulting from Tropical Storm Fay. Also, incurred but not reported (“IBNR”) loss and LAE increased by $4.4 million, offset by a $1.4 million decrease in case incurred loss and LAE. Case incurred loss and LAE decreased due to normal fluctuations in claims activity.

Interest Expense

Interest expense decreased $3.4 million, or 63.4%, to $2.0 million for the nine months ended September 30, 2008, compared to $5.4 million for the nine months ended September 30, 2007. The change is attributable to several factors. First, we extinguished our note payable to York during the first quarter of 2007, which accelerated the amortization of the participation fee of $1.1 million and original issue discount of $0.7 million related to the York note; $0.3 million of interest was also recognized in the first quarter of 2007 prior to the extinguishment. Interest expense related to the CB&T loan decreased by $1.8 million, attributable to a decrease in the outstanding loan balance as a result of normal principal repayments as well as the application of the $13.1 million balance in the escrow account, which we were required to maintain, against the outstanding principal balance. Interest expense related to the FSBA note increased by $0.5 million because our Writing Ratio fell below 1.5:1 at March 31, 2008 and June 30, 2008; therefore, we were assessed a 450 basis point interest penalty during the second and third quarters. See Note 9 to our interim condensed consolidated financial statements for more information regarding interest expense related to the FSBA note and the amendment to the FSBA note which was effective July 1, 2008. For the fourth quarter of 2008, we will not incur any additional interest penalties.

Other Income

Other income increased to $2.6 million for the nine months ended September 30, 2008, compared to zero for the nine months ended September 30, 2007. As a result of the acquisition and Merger that is more fully described earlier in this document, York will not be able to exercise the Put it held in relation to its ownership interest in UIH. Upon the effectiveness of the Merger, all membership interests in UIH, including those held by York, ceased to exist by operation of law and were converted into the right to receive the merger consideration. Furthermore, members of UIH exchanging certificates representing their membership interests executed and returned to our transfer agent a letter of transmittal acknowledging that all rights, preferences, privileges and obligations owed by UIH to such holder relating to the UIH membership interests being surrendered ceased upon the consummation of the Merger. York voted in favor of the Merger, surrendered their ownership units to the transfer agent and received their merger consideration; therefore, we reversed the $2.6 million Put liability, which increased other income.

Provision for Income Tax

The provision for income tax decreased $3.2 million to $4.1 million for the nine months ended September 30, 2008, compared to $7.3 million for the nine months ended September 30, 2007. The change in income tax year over year is attributable to the profitability of the insurance subsidiary which decreased due to the decreases in the policy assumption

 

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bonus and the net written premiums, as well as the increase in loss and LAE incurred related to Tropical Storm Fay as discussed above. The effective income tax rate for UPCIC was 37.1% for the nine months ended September 30, 2008, compared to 36.2% for the nine months ended September 30, 2007.

Prior to September 30, 2008, UIH had elected to be treated as a partnership for income tax purposes. For future periods after September 30, 2008, UIHC and all of its subsidiaries will record a provision for income taxes since all of the companies will be C-corporation entities for income tax purposes.

Net Income

As a result of the foregoing, our net income for the nine months ended September 30, 2008 was $26.6 million, compared to net income of $31.7 million for the nine months ended September 30, 2007.

RESULTS OF OPERATIONS (Three Months Ended September 30, 2008 versus Three Months Ended September 30, 2007)

REVENUE

Gross Premiums Written

Gross premiums written increased $1.3 million, or 3.8%, to $36.2 million for the three months ended September 30, 2008, compared to $34.9 million for the three months ended September 30, 2007.

During the three months ended September 30, 2008, we wrote 8,100 new policies versus 5,100 during the same period of 2007. However, offsetting the impact of the increase in the number of the new policies written are several factors that mitigated the increase in gross premiums written. Specifically, there was a decrease in policies written in the Tri-County area (Dade, Broward and Palm Beach Counties) and an increase in policies written in other locations in Florida that have lower average written premium. In addition, in the fourth quarter of 2007, the OIR implemented new wind mitigation credits (to be applied to all companies’ policies) that also reduced the average premium during the three months ended September 30, 2008, compared to the same period in the prior year. Other than the increase in new policies written, these factors combined to decrease the average premium rate per policy to $1,784 at September 30, 2008, compared to $2,368 at September 30, 2007. On October 14, 2008, we selected approximately 4,100 policies for assumption from Citizens. By Florida law, policyholders may choose to “opt out” of the assumption and keep their Citizens policy. We expect the ultimate number of policies assumed in October to be approximately 3,700, with in-force premium of $6.3 million.

Gross Premiums Ceded

Gross premiums ceded increased by $7.3 million or 167.5% to $(2.9) million for the three months ended September 30, 2008, compared to $4.4 million for the three months ended September 30, 2007. As discussed earlier, we recorded $7.0 million of premium adjustments that lowered the premium that was payable on those contracts. No premium adjustments were required at September 30, 2008, thereby causing the increase in gross premiums ceded.

 

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Decrease (Increase) in Net Unearned Premiums

Net unearned premiums increased $13.2 million for the three months ended September 30, 2008, compared to an increase of $14.8 million for the three months ended September 30, 2007. The change was due to the previously discussed $7.0 million premium adjustments made in the third quarter of 2007, offset by changes in gross written premium.

Net Premiums Earned

Net premiums earned decreased $4.3 million, or 17.8%, to $20.1 million for the three months ended September 30, 2008, compared to $24.4 million for the three months ended September 30, 2007. The decrease in net premiums earned is due to the increases in gross ceded premiums and net unearned premiums as discussed above.

Net Investment Income

Net investment income decreased $0.3 million, or 16.4 %, to $1.7 million for the three months ended September 30, 2008, compared to $2.0 million for the three months ended September 30, 2007. During the three months ended September 30, 2008, more of our portfolio was invested in cash equivalents and equities than was invested in fixed maturities, while more of our portfolio was invested in fixed maturities than was invested in cash equivalents and equities during the same period in 2007. Since our fixed maturities securities have a much higher yield than we could earn from equity dividends or interest on cash equivalents, our net investment income decreased.

Net Realized Investment Gains and Losses

Net realized investment gains and losses increased to a $0.3 million gain, for the three months ended September 30, 2008, compared to a $0.1 million loss for the three months ended September 30, 2007. The table in the section above captioned “Total Investments” depicts the gains and losses by investment category.

Policy Assumption Bonus

Policy assumption bonus, which includes interest income earned on the bonus amounts, increased to $2.2 million for the three months ended September 30, 2008, compared to $0.9 million for the same period in 2007. The increase resulted because we collected bonus on approximately 6,300 policies during the three months ended September 30, 2008, while we collected bonus on approximately 2,200 policies during the same period in 2007.

EXPENSES

Loss and Loss Adjustment Expenses

Loss and LAE, our most significant expense, represent actual payments made and changes in estimated future payments to be made to or on behalf of our policyholders, including expenses required to settle claims and losses. We revise our estimates based on the results of analysis of estimated future payments to be made. This process assumes that past experience, adjusted for the effects of current developments and anticipated trends, is an appropriate basis for predicting future events.

 

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Loss and LAE increased by $4.9 million, or 64.3%, to $12.5 million for the three months ended September 30, 2008, compared to $7.6 million for the three months ended September 30, 2007. The increase is primarily attributable to $3.6 million of incurred loss and LAE related to claims resulting from Tropical Storm Fay, as well as a $1 million increase in IBNR.

Policy Acquisition Costs

Policy acquisition costs decreased $0.6 million, or 12.8%, to $4.4 million for three months ended September 30, 2008, compared to $5.0 million for the three months ended September 30, 2007, primarily due to a decrease in agents’ commissions. Since we amortize agents’ commissions over the 12-month period related to the policies written, agents’ commissions have decreased due to the decline in gross written premium during most of 2008, despite the recent increase in gross written premium during the third quarter of 2008. Policy acquisition costs consists of agents’ commissions, policy administration fees and premium taxes, less commissions earned on reinsurance ceded and policy fees earned.

General and Administrative Expenses

General and administrative expenses decreased $0.7 million or 100% to $(0.1) million for the three months ended September 30, 2008, compared to $0.6 million for the three months ended September 30, 2007. The decrease resulted when we reclassified approximately $0.7 million of costs directly associated with the merger to additional paid-in capital. These Merger costs had been recorded as expense during the first and second quarters of 2008 but were reclassified upon successful completion of the Merger.

The table below summarizes what general and administrative expenses would have been for the three months ended September 30, 2008, had we not consummated the Merger:

 

     (In thousands)
     2008     2007

G&A expense, unadjusted

   $ (82 )   $ 563

Add back merger costs:

    

Consulting

     359       —  

Professional services

     1,844       —  

Printing

     24       —  
              

G&A expense as it would have appeared

   $ 2,145     $ 563
              

Since the Merger has been consummated and we are no longer a blank-check company, we will incur additional compliance costs that we have not incurred in the past. Specifically, but not exclusively, we will incur compliance costs to document and test our internal control procedures as well as perform management’s assessment to satisfy the requirements of Section 404 of the Sarbanes-Oxley Act of 2002.

Interest Expense

Interest expense decreased $0.6 million, or 56.5%, to $0.5 million for the three months ended September 30, 2008, compared to $1.1 million for the three months ended September 30, 2007. Interest expense related to the CB&T loan decreased by $0.8 million, attributable to a decrease in the outstanding loan balance as a result of normal principal repayments as well as the

 

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application of the $13.1 million balance in the escrow account, that we were required to maintain, against the outstanding principal. Interest related to the FSBA note increased by $0.2 million because our Writing Ratio fell below 1.5:1 at June 30, 2008, and we were assessed a 450 basis point interest penalty in the third quarter. See Note 9(a) to our interim condensed consolidated financial statements for more information regarding interest expense related to the FSBA note and the amendment to the FSBA note which was effective July 1, 2008. For the fourth quarter of 2008, we will not incur any additional interest penalties.

Other Income

Other income increased to $2.6 million for the three months ended September 30, 2008, compared to zero for the three months ended September 30, 2007. As a result of the acquisition and Merger that is more fully described earlier in this document, York will not be able to exercise the Put it held in relation to its ownership interest in UIH. Upon the effectiveness of the Merger, all membership interests in UIH, including those held by York, ceased to exist by operation of law and were converted into the right to receive the merger consideration. Furthermore, members of UIH exchanging certificates representing their membership interests executed and returned to our transfer agent a letter of transmittal acknowledging that all rights, preferences, privileges and obligations owed by UIH to such holder relating to the UIH membership interests being surrendered ceased upon the consummation of the Merger. York voted in favor of the Merger, surrendered their ownership units to the transfer agent and received their merger consideration; therefore, we reversed the $2.6 million Put liability, which increased other income.

Provision for Income Tax

The provision for income tax decreased $1.6 million to $(0.1) million for the three months ended September 30, 2008, compared to $1.5 million for the three months ended September 30, 2007. The change in income tax quarter over quarter is primarily attributable to the occurrence of Tropical Storm Fay. The storm increased our case incurred loss and LAE as well as IBNR loss and LAE; this in turn reduced our annualized income which we use to calculate our income tax provision. The effective income tax rate for UPCIC was 36.2% for the three months ended September 30, 2008, as compared to 38.3% for the three months ended September 30, 2007.

Net Income

As a result of the foregoing, our net income for the three months ended September 30, 2008 was $8.9 million compared to net income of $11.0 million for the three months ended September 30, 2007.

LIQUIDITY AND CAPITAL RESOURCES

UIHC is a holding company with no business operations of its own. Therefore, our ability to meet our debt payment obligations and pay our taxes and administrative expenses is dependent upon intercompany service agreements with, and dividends from, our subsidiaries, including our insurance company subsidiary, UPCIC. UPCIC is subject to extensive regulation by the OIR, including restrictions on the amount of dividends that it can pay to its shareholder, UIHC.

There are no restrictions on the payment of dividends to us by our non-insurance company subsidiaries other than state corporate laws regarding solvency. As a result, our non-insurance company subsidiaries generate revenues, profits and net cash flows that are generally unrestricted as to their availability for payment of dividends to UIHC. We may use these revenues to service our corporate financial obligations, such as debt service, general and administrative expenses and shareholder dividends. Our administrative functions are conducted through UIM.

Our ability to meet our debt payment obligations and pay our general and administrative expenses is largely dependent on cash dividends we receive from UIM. UIM’s primary source of revenue, from which dividends to us have been paid, is the service fees and commissions it receives from our insurance company, UPCIC, pursuant to a management agreement in effect between those entities.

The primary sources of cash flow for our insurance company subsidiary, UPCIC, are gross premiums written, loss reimbursements by our reinsurers, investment income, and proceeds from the sale or maturity of investments. Funds are used by UPCIC for ceded premium payments to reinsurers, loss and LAE payments, other underwriting expenses, purchases of investments and fee payments to UIM. The primary sources of cash for UIM are policy fees and managing general agent fee income. Primarily, UIM uses cash for policy acquisition costs, commissions to producers, interest, and general and administrative expenses.

Our reconciliation of net income to net cash provided from operations is generally influenced by the collection of premiums in advance of paid losses, the quarterly payment of reinsurance premiums and the annual signing of new reinsurance contracts at the beginning of hurricane season, the payment of any litigation settlements and the timing of our loss payments.

 

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For the nine months ended September 30, 2008, operations provided net operating cash flow of $31.3.million, compared to $13.0 million for nine months ended September 30, 2007.

For the nine months ended September 30, 2008, $31.3 million of net operating cash flow was provided mainly by our generation of $26.6 million of net income which was increased primarily by $19.8 million increase in amounts payable to reinsurers, a $2.8 million decrease in reinsurance recoverable, and a $2.5 million increase in unearned premiums and the net income was decreased primarily due to a $12.6 million increase in prepaid reinsurance premiums, a $2.2 million decrease in accounts payable and accrued expenses, a $2.2 million increase in premiums receivable, and a $2.3 million decrease in income taxes, net.

Subject to catastrophic occurrences, net operating cash flow is currently expected to be positive in both the short-term and the reasonably foreseeable future.

For the nine months ended September 30, 2008, net investing activities used $14.3 million, as compared to providing $7.7 million for the nine months ended September 30, 2007. Our available-for-sale investment portfolio is highly liquid as it consists entirely of readily marketable securities. For the nine months ended September 30, 2008, investing activities generated $40.4 million from the sale of available-for-sale investments and used $54.5 million for the purchase of available-for-sale investments.

For the nine months ended September 30, 2008, net financing activities used $39.1 million, as compared to using $23.0 million for the nine months ended September 30, 2007. For the nine months ended September 30, 2008, the uses of cash in connection with financing activities included $19.5 million for the repayment of the CB&T loan. Per a loan amendment further described in Note 9(b) in the notes to the condensed consolidated financial statements at September 30, 2008, the principal repayments to CB&T will cease until April 2009. We incurred new indebtedness that was undertaken as part of the recently completed Merger; however no principal payments are required until the notes mature on September 29, 2011. Interest payments are payable semi-annually beginning April, 1, 2009. On November 7, 2008 we amended our FSBA note effective July 1, 2008. The Writing Ratio calculation and criteria were amended as discussed in Note 9(a) of our Condensed Consolidated Financial Statements. UPCIC will meet the Writing Ratio at September 30, 2008, thus our fourth quarter interest rate will be the stated rate which is the rate-equivalent to the 10-year Treasury Bond rate and will not include any interest penalties.

UIH paid a tax distribution of $9.3 million to its members during the nine months ended September 30, 2008. We also expect to pay a tax related distribution to the former members of UIH totaling $7.3 million prior to year end. The distribution will be paid to former UIH members to allow them to pay federal income tax which may be owed by them due to the income attributable to them as members of UIH, which was a partnership for tax purposes through September 30, 2008.

There is a provision in the Amended and Restated Agreement and Plan of Merger, dated August 15, 2008, as amended on September 23, 2008, which provides for potential additional consideration to be paid of up to $5 million to the former UIH members. The UIH members will be paid $2.00 in cash for each dollar exceeding UIHC’s net income (as defined in the Merger Agreement) of $25,000,000 during either of the periods of (i) July 1, 2008 through June 30, 2009, and (ii) January 1, 2009 through December 31, 2009.

We believe that we maintain sufficient liquidity to pay claims, operating expenses and other obligations as they come due. We held $34.7 million and $56.9 million of cash and cash equivalents at September 30, 2008 and December 31, 2007, respectively. We monitor our expected claims payment needs and maintain a sufficient portion of our invested assets in cash and cash equivalents to enable us to fund our claims payments without having to sell longer-duration investments. As

 

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necessary, we adjusts our holdings of short-term investments and cash and cash equivalents to provide sufficient liquidity to respond to changes in the anticipated pattern of claims payments.

GAAP differs in some respects from reporting practices prescribed or permitted by the OIR. To retain our certificate of authority, the Florida insurance laws and regulations require that UPCIC maintain capital and surplus equal to the statutory minimum capital and surplus requirement defined in the Florida Insurance Code as the greater of 10% of the insurer’s total liabilities or $4 million. UPCIC’s statutory capital surplus was $52.6 million at September 30, 2008, and exceeded the minimum capital and surplus requirements. UPCIC is also required to adhere to prescribed premium-to-capital surplus ratios, with which we were in compliance with as of September 30, 2008.

In relation to the notes issued on September 29, 2008 pursuant to a note repurchase agreement dated as of August 15, 2008, we agreed to certain covenants, the violation of which could cause an event of default. Among others, these covenants include refraining from incurring debt that would cause our aggregate debt balance, including the $18,279,570 incurred under this note agreement, to exceed $58,279,570 (excluding the FSBA note amount), and refraining from making any payments (e.g., dividends or distributions), whether in cash, securities or other property, that would reduce consolidated net worth, as defined in the note agreement, to less than $45,000,000. We were in compliance with the terms of the covenants at September 30, 2008; however, since our consolidated net worth at September 30, 2008 was below $45,000,000, we could not make any dividends or distributions to our stockholders.

Our loan agreement with CB&T contains certain covenants, including the maintenance of minimum specified financial ratios and balances. On August 13, 2008, CB&T waived, until January 1, 2009, the debt covenant related to maintenance of a minimum debt service coverage ratio of at least 2:1 on a quarterly basis. We were in compliance with the terms of the covenants at September 30, 2008. We anticipate we will be in compliance with this ratio during 2009.

We believe our current capital resources, together with cash flow from operations, will be sufficient to meet currently anticipated working capital requirements. There can be no assurance, however, that such will be the case in the future.

OFF-BALANCE SHEET ARRANGEMENTS

As of September 30, 2008, we have no off-balance sheet arrangements.

RELATED PARTY TRANSACTIONS

See Note 11 of our Condensed Consolidated Financial Statements entitled “Related Party Transactions.”

 

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Item 3: Quantitative and Qualitative Disclosures about Market Risk

Since we are a smaller reporting company, we are not required to furnish this information.

 

Item 4T: Controls and Procedures

(a) Under the supervision and with the participation of our management, including our principal executive officer and principal financial officer, we conducted an evaluation of the effectiveness of the design and operations of our disclosure controls and procedures, as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Securities Exchange Act of 1934, as amended (the Exchange Act), as of the end of the period covered by this report. Based on our evaluation, our principal executive officer and principal financial officer concluded that our disclosure controls and procedures were effective such that the material information required to be included in our Securities and Exchange Commission (“SEC”) reports is recorded, processed, summarized and reported within the time periods specified in SEC rules and forms. These disclosure controls and procedures include controls and procedures designed to ensure that information required to be disclosed by us in the reports we file or submit is accumulated and communicated to management, including our principal executive officer and our principal financial officer, as appropriate, to allow timely decisions regarding required disclosure.

(b) During the fiscal quarter ended September 30, 2008, there was no change in our internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, our internal control over financial reporting.

Part II. OTHER INFORMATION

 

Item 1: Legal Proceedings

We may be party to claims and legal actions arising in the ordinary course of business. While it is not feasible to predict or determine the outcome of these matters, we do not anticipate that these matters will have a material adverse effect on our business, on our consolidated financial position or on our results of operations.

 

Item 1A: Risk Factors

Since we are a smaller reporting company, we are not required to furnish this information.

 

Item 2: Unregistered Sales of Equity Securities and Use of Proceeds

Unregistered Sales of Equity Securities. For the quarter ended September 30, 2008, there were no unregistered sales of UIHC’s equity securities.

Use of Proceeds. On October 11, 2007, UIHC consummated its initial public offering (IPO) and received proceeds of $37,869,000. UIHC intended to use substantially all of the net proceeds of the IPO to acquire a target business, including identifying and evaluating prospective acquisition candidates, selecting the target business, and structuring, negotiating and consummating the business combination. To the extent that any capital stock was used in whole or in part as consideration to effect a business combination, the proceeds held in the trust fund as well as any other net proceeds not expended were to be used to finance the operations of the target business.

 

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On September 30, 2008, as discussed in prior sections of this document, UIHC acquired UIH, an insurance company. UIHC used the IPO proceeds as follows: 1) $25,000,000 paid to UIH’s members as part of the consideration for the merger with UIH, 2) $1,514,760 paid to the underwriters for their IPO fee, 3) $386,793 paid for costs and fees related to the offering, 4) $10,039,397 was paid to certain stockholders who did not vote in favor of the Merger transaction and converted their shares to cash equal to a pro rata portion of the trust account where UIHC had placed the majority of the IPO proceeds and 5) $928,050 was used for costs associated with the Merger transaction.

Purchases of Equity Securities by the Issuer. The following table summarizes the securities that UIHC repurchased during the quarter ended September 30, 2008:

 

Date

   Total Number of
Shares Purchased
   Average Price Paid
per Share
   Total Number of
Shares Purchased as
Part of Publicly
Announced Plans or
Programs
   Maximum Number of
Shares that May Yet
Be Purchased Under
the Plans or
Programs

September 1 - September 30, 2008

   4,118,099    $ 7.93    1,267,863    —  

On August 15, 2008, UIHC entered into a note agreement with various accredited investors in relation to the acquisition of UIH. Under the note agreement, on September 29, 2008, UIHC issued notes payable with a total face amount of $7.5 million in exchange for 869,565 shares of UIHC common stock from two former UIHC stockholders with a total value of $6.9 million at the time the notes were issued. No further repurchases of common stock shares is anticipated under this note agreement.

On September 8, 2008, UIHC mailed a proxy statement to its stockholders to ask for shareholder approval and adoption of the Merger transaction with UIH. If a stockholder did not vote in favor of the Merger, then the stockholder could at the same time demand UIHC convert such stockholder’s shares into cash equal to a pro rata portion of the trust account held by UIHC. UIHC purchased 1,267,863 shares of its common stock at $7.91 per share The stockholder had to make this election and return their common stock shares electronically by September 29, 2008, thus this program has expired.

On September 29, 2008, UIHC purchased 1,980,671 shares of its common stock in a series of private transactions. UIHC paid $15,740,352, in the aggregate, for these shares (average price of $7.95 per share). No further repurchases of common stock shares is anticipated under this program.

Working Capital Restrictions and Other Limitations on Payment of Dividends. Under Florida law, a domestic insurer may not pay any dividend or distribute cash or other property to its stockholders except out of that part of its available and accumulated capital and surplus funds which is derived from realized net operating profits on its business and net realized capital gains. A Florida domestic insurer may not make dividend payments or distributions to stockholders without prior approval of the Florida OIR if the dividend or distribution would exceed the larger of (1) the lesser of (a) 10.0% of its capital surplus or (b) net income, not including realized capital gains, plus a two year carry forward, (2) 10.0% of capital surplus with dividends payable constrained to unassigned funds minus 25% of unrealized capital gains or (3) the lesser of (a) 10.0% of capital surplus or (b) net investment income plus a three year carry forward with dividends payable constrained to unassigned funds minus 25% of unrealized capital gains. At September 30, we were in compliance with these requirements.

 

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In relation to the notes issued on September 29, 2008 pursuant to a note repurchase agreement dated as of August 15, 2008, we agreed to certain covenants, the violation of which could cause an event of default. Among others, these covenants include refraining from incurring debt that would cause our aggregate debt balance, including the $18,279,570 incurred under this note agreement, to exceed $58,279,570 (excluding the FSBA note amount), and refraining from making any payments (e.g., dividends or distributions), whether in cash, securities or other property, that would reduce consolidated net worth, as defined in the note agreement, to less than $45,000,000. We were in compliance with the terms of the covenants at September 30, 2008; however, since our consolidated net worth at September 30, 2008 was below $45,000,000, we could not make any dividends or distributions to our stockholders.

Our loan agreement with CB&T contains certain covenants, including the maintenance of minimum specified financial ratios and balances. On August 13, 2008, CB&T waived, until January 1, 2009, the debt covenant related to maintenance of a minimum debt service coverage ratio of at least 2:1 on a quarterly basis. We were in compliance with the terms of the covenants at September 30, 2008.

 

Item 3: Defaults upon Senior Securities

None

 

Item 4: Submission of Matters to a Vote of Security Holders

A special meeting of stockholders was held on September 29, 2008. The meeting was called to allow stockholders to vote on the following proposals related to the proposed merger of FMG and UIH.

 

   

Proposal 1 – The Merger Proposal was a proposal to acquire all of the issued membership units of UIH pursuant to the Agreement and Plan of Merger, dated as of April 2, 2008, as amended and restated on August 15, 2008, by and among FMG, UIH and a transitory, wholly-owned subsidiary of FMG.

 

   

Proposal 2 – The First Amendment Proposal was a proposal to amend our Certificate of Incorporation to delete several provisions specific to blank-check companies.

 

   

Proposal 3—The Second Amendment Proposal was a proposal to amend our Certificate of Incorporation to increase the authorized number of common shares from 20 million to 50 million.

 

   

Proposal 4—The Third Amendment Proposal was a proposal to amend our Certificate of Incorporation to change the name of the Company from FMG Acquisition Corp. to United Insurance Holdings Corp.

 

   

Proposal 5—The Director Proposal was a proposal to appoint Gregory C. Branch, Alec L. Poitevint, II and Kent G. Whittemore as directors of the Company, upon which election Thomas Sargent and David E. Sturgess would resign as directors. Gordon G. Pratt, Larry G. Swets, Jr. and James R. Zuhlke will continue on as directors of the Company.

 

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Table of Contents

UNITED INSURANCE HOLDINGS CORP.

The results of the voting are summarized in the following table:

 

     Shares Voting
“For”
   Shares Voting
“Against”
   Shares
Abstaining

Proposal 1

   4,064,642    1,377,813    —  

Proposal 2

   4,542,337    776,468    123,600

Proposal 3

   4,542,337    776,468    123,600

Proposal 4

   4,861,337    777,468    103,600

Proposal 5

   4,607,137    —      835,268

In Proposal 1, stockholders who held 1,377,813 shares of our common stock exercised their conversion rights. Of the stockholders who did not vote in favor of the Merger, only 1,267,863 shares of common stock were returned electronically to our stock transfer agent; thus, 109,950 shares were not redeemed for cash as the stockholders did not remit their shares to us, as required, by September 29, 2008.

 

Item 5: Other Information

 

  Item 4.01 Changes in Registrant’s Certifying Accountant.

On September 30, 2008, United Subsidiary Corp., a Florida corporation (“Merger Sub”) and wholly-owned subsidiary of FMG Acquisition Corp., a Delaware corporation (“FMG”), consummated a merger with and into United Insurance Holdings, L.C., a Florida limited liability company (“UIH”), with UIH remaining as the surviving entity (the “Merger”). In connection with the Merger, FMG changed its name from “FMG Acquisition Corp.” to “United Insurance Holdings Corp.” (“UIHC”).

The Merger was treated as a reverse acquisition and recapitalization for accounting purposes and, as such, the historical financial statements of the accounting acquirer, UIH, will become the historical financial statements of UIHC. DeMeo, Young, McGrath (“DYM”) was the independent auditor that audited UIH’s financial statements for the fiscal years ended December 31, 2007 and 2006, and Rothstein Kass & Company (“RKC”) was the independent auditor that audited and reviewed FMG’s financial statements for the fiscal year ended December 31, 2007 and the fiscal quarters ended March 31, 2008 and June 30, 2008, respectively. On November 10, 2008, UIHC (with the approval of its Board of Directors) dismissed RKC as its independent registered public accounting firm and formally engaged DYM to be UIHC’s independent registered public accounting firm for the fiscal year ending December 31, 2008 and to complete a review of UIHC’s Form 10-Q for the quarterly period ended September 30, 2008, which will contain only the financial results of UIH because the quarterly period ended on the day the reverse acquisition was completed.

(1) RKC was the independent registered public accounting firm that audited and reviewed FMG’s financial statements for the fiscal year ended December 31, 2007 and the fiscal quarters ended March 31, 2008 and June 30, 2008, respectively. FMG engaged RKC to be the independent registered public accounting firm for United for the year ending December 31, 2008. In connection with the closing of the Merger, on November 10, 2008, UIHC’s Board of Directors (i) dismissed RKC as its independent registered public accounting firm and (ii) formally engaged DYM to be UIHC’s independent registered public accounting firm for the fiscal year ending December 31, 2008 and to complete a review of UIHC’s Form 10-Q for the quarterly period ended September 30, 2008, which will contain only the financial results of UIH since the quarterly period ended on the day the reverse acquisition was completed. DYM was the independent auditor that audited UIH’s financial statements for the fiscal years ended December 31, 2007 and 2006. RKC’s report on FMG’s financial statements for the fiscal year ended December 31, 2007 did not contain an adverse opinion or a disclaimer of opinion, or a qualification or modification as to uncertainty, audit scope, or accounting principles. In addition, since May 22, 2007 (inception) through November 10, 2008, (i) there were no disagreements with RKC on any matter of accounting principles or practices, financial statement disclosure or auditing scope or procedure, which disagreement(s), if not resolved to the satisfaction of RKC, would have caused it to make reference to the subject matter of the disagreement(s) in connection with its report and (ii) there were no “reportable events” (as described in Item 304(a)(1)(v) of Regulation S-K).

UIHC has provided RKC with a copy of this Item 4.01 disclosure and has requested that RKC furnish UIHC with a letter addressed to the United States Securities and Exchange Commission (the “Commission”) stating whether it agrees with the statements made by UIHC in this Item 4.01 disclosure and, if not, stating the respects in which it does not agree. RKC has not yet had adequate opportunity to furnish such a letter; therefore, UIHC has requested that RKC furnish the letter as promptly as possible so that UIHC can file the letter with the Commission within 10 business days after the date of filing of this report on Form 10-Q.

(2) As noted above in paragraph (1), on November 10, 2008, UIHC’s Board of Directors formally engaged DYM to be UIHC’s independent registered public accounting firm for the fiscal year ending December 31, 2008 and to complete a review of UIHC’s Form 10-Q for the quarterly period ended September 30, 2008. DYM was the independent registered public accounting firm that audited UIH’s financial statements for the fiscal years ended December 31, 2007 and 2006. During the fiscal year ended December 31, 2007 and during the transition period through November 10, 2008, UIHC did not consult with DYM with respect to any of (i) the application of accounting principles to a specified transaction, either completed or proposed; (ii) the type of audit opinion that was rendered on FMG’s financial statements or the type of audit opinion that might be rendered on UIHC’s financial statements; or (iii) any other matter that was either the subject of a disagreement (as defined in Item 304(a)(1)(iv) of Regulation S-K) or a reportable event of the type described in Item 304(a)(1)(v) of Regulation S-K. During the fiscal years ended December 31, 2007 and 2006 and during the transition period through November 10, 2008, UIH did not consult with DYM with respect to any of (i) the application of accounting principles to a specified transaction, either completed or proposed; (ii) the type of audit opinion that was rendered on UIH’s financial statements or the type of audit opinion that might be rendered on UIHC’s financial statements; or (iii) any other matter that was either the subject of a disagreement (as defined in Item 304(a)(1)(iv) of Regulation S-K) or a reportable event of the type described in Item 304(a)(1)(v) of Regulation S-K.

 

Item 6: Exhibits

 

2.1    Amendment to Amended and Restated Agreement and Plan of Merger By and Among FMG Acquisition Corp., United Subsidiary Corp. and United Insurance Holdings, LC, dated as of September 23, 2008*
3.1    Second Amended and Restated Certificate of Incorporation.*
10.1    Letter Agreement, dated October 27, 2008, amending Unit Purchase Option granted to Pali Capital, Inc.*
10.2    Form of Stock Purchase Agreements between FMG Acquisition Corp. and Certain Stockholders.*
10.3    Addendum Number One to Insurance Capital Build-Up Incentive Program Surplus Note, dated November 7, 2008 and effective July 1, 2008, between the State Board of Administration of Florida and United Property & Casualty Insurance Company.**
10.4    Form of Property Catastrophe Excess of Loss Reinsurance Agreement between United Property and Casualty Insurance Company and Various Reinsurance Companies, effective June 1, 2008.*
10.5    Form of the Florida Hurricane Catastrophe Fund Reimbursement Contract between United Property and Casualty Insurance Company and the State Board of Administration of Florida, effective June 1, 2008.*
10.6    Form of Multi-Line Per Risk Excess of Loss Reinsurance Agreement between United Property and Casualty Insurance Company and Various Reinsurance Companies, effective June 1, 2008.*
10.7    Form of Reinstatement Premium Protection Reinsurance Agreement between United Property and Casualty Insurance Company and Various Reinsurance Companies, effective June 1, 2008.*
10.8    Form of Promissory Note issued by FMG Acquisition Corp. to those parties to that certain Note Purchase Agreement dated August 15, 2008.*
31.1    Certification of Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act. *
31.2    Certification of Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act. *
32.1    Certification of Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act. *
32.2    Certification of Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act. *
* filed herewith
** incorporated by reference to United Insurance Holdings Corp.’s Form 8-K filed with the SEC on November 12, 2008.

 

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Table of Contents

UNITED INSURANCE HOLDINGS CORP.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

    UNITED INSURANCE HOLDINGS CORP.
Date: November 14, 2008     By:  

/s/ Donald J. Cronin

      Donald J. Cronin, President and Chief Executive Officer
      (Principal Executive Officer)
     
     

/s/ Nicholas W. Griffin

     

Nicholas W. Griffin, Chief Financial Officer

(Principal Financial Officer

 

39

Exhibit 2.1

 

 

AMENDMENT TO

AMENDED AND RESTATED

AGREEMENT AND PLAN OF MERGER

BY AND AMONG

FMG ACQUISITION CORP.,

UNITED SUBSIDIARY CORP.

AND

UNITED INSURANCE HOLDINGS LC

Dated as of September 23, 2008

 

 


AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER

THIS AMENDMENT (the “ Amendment ”) to the Amended and Restated Agreement and Plan of Merger dated as of August 15, 2008 (the “ Merger Agreement ”), by and among FMG Acquisition Corp. (“ Parent ”), United Subsidiary Corp. (“ Merger Sub ”) and United Insurance Holdings LC (the “ Company ”), is entered into by the parties hereto as of September 23, 2008.

RECITALS:

A. Parent, Company and Merger Sub intend to effect the merger of Merger Sub with and into the Company (the “ Merger ”), with the Company continuing as the surviving entity in the Merger, as a result of which the entire issued and outstanding membership interest of the Company (the “ Membership Interest ”) will automatically be exchanged into the right to receive the Merger Consideration (as defined herein), without interest, upon the terms and subject to the conditions set forth in this Agreement and in accordance with the Florida Business Corporation Act (the “ FBCA ”) and the Florida Limited Liability Company Act (the “ Florida Act ”), each as amended.

B. Parent, Company and Merger Sub entered into an Amended and Restated Agreement and Plan of Merger as of August 15, 2008.

C. Parent, Company and Merger Sub desire to amend and modify the Merger Agreement, as set forth in this Amendment.

D. The undersigned, acting under authority granted by their respective Boards of Directors, have determined it is advisable and in the best interests of each of Parent, Merger Sub and the Company, and their respective stockholders and members, that the Merger Agreement be amended and modified as set forth in this Amendment.

NOW, THEREFORE, in consideration of the premises, the mutual promises contained herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

All capitalized terms used and not defined herein shall have the meanings ascribed thereto in the Merger Agreement.

1. Section l.3(a), subsections (v), (vi) and (vii) are deleted in their entirety and replaced with the following:

“(v) In addition to Sections 1.3(a)(i)-(iv), a number of shares of Common Stock equal to the quotient obtained by dividing (A) by (B), in accordance with the allocation set forth in Exhibit A. For the purposes of this subsection, (A) is the product obtained by multiplying (1) the percentage of Common Stock which will be owned by the Members in the aggregate immediately following the Closing, after giving effect to the shares purchased by


FMG, its officers, directors or affiliates in privately negotiated transactions with a limited number of institutional investors at or prior to the Special Meeting (the “ Privately Purchased Shares ”) and the Exchange Offer and (2) the amount of the original issue discount (“ OID ”) of the Notes and (B) is $8.00;

(vi) In addition to Sections 1.3(a)(i)-(v), a number of shares of Common Stock equal to the quotient obtained by dividing (A) by (B), in accordance with the allocation set forth in Exhibit A. For the purposes of this subsection, (A) is the product obtained by multiplying (l) the percentage of Common Stock which will be owned by the Members in the aggregate immediately following the Closing, after giving effect to the Privately Purchased Shares and the Exchange Offer and (2) ten percent (10%) of the amount of cash required for the Privately Purchased Shares above the sum of $11,232,884 (being the amount reserved for the conversion rights of the public stockholders) and the cash proceeds received from the sale of Notes and (E) is $8.00;

(vii) In addition to Sections 1.3(a)(i)-(vi), a number of shares of Common Stock equal to the product obtained by multiplying (A) and (B) and dividing the resulting product by (C), in accordance with the allocation set forth in Exhibit A. For purposes of this subsection, (A) is the percentage of Common Stock which will be owned by the Members in the aggregate immediately following the Closing, on a fully diluted basis, after giving effect to the Privately Purchased Shares and the Exchange Offer and (B) is the product obtained by multiplying the excess of the average per share price of the Privately Purchased Shares over $8.00 and the sum of (I) the number of shares of Common Stock received by the Company in the Exchange Offer and (2) the number of Privately Purchased Shares and (C) is $8.00; and”

2. Section 6.1 (g) of the Merger Agreement is deleted in its entirety and replaced with the following:

“(g) Private Placement . The Private Placement shall have been consummated.”

3. The parties hereto agree that all of the provisions of Article IX - Miscellaneous are hereby incorporated by reference into this Amendment and shall fully apply to this Amendment as if such provisions were set forth herein.

* * * *

[Remainder of Page Left Blank - Signature Page Follows]

 

3


IN WITNESS WHEREOF, the Parties hereto have caused this Agreement and Plan of Merger to be signed and delivered by their respective duly authorized officers as of the date first above written.

 

UNITED INSURANCE HOLDINGS LC
By:  

 

Name:   Gregory C. Branch
Title:   Chairman
FMG ACQUISITION CORP.
By:  

 

Name:   Gordon G. Pratt
Title:   Chairman and President
UNITED SUBSIDIARY CORP.
By:  

 

Name:   Gordon G. Pratt
Title:   Chairman and President

 

4

EXHIBIT 3.1

SECOND AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

FMG ACQUISITION CORP.

FMG Acquisition Corp., a Delaware corporation (the “Corporation”), does hereby certify as follows:

1. The name of the Corporation is FMG Acquisition Corp. The date of filing of its original Certificate of Incorporation with the Secretary of State was May 22, 2007 under the name of FMG Acquisition Corp. The date of filing of its Amended and Restated Certificate of Incorporation with the Secretary of State was October 4, 2007 under the name of FMG Acquisition Corp.

2. This Second Amended and Restated Certificate of Incorporation of FMG Acquisition Corp., in the form attached hereto as Exhibit A , has been duly adopted in accordance with the provisions of Sections 228, 242 and 245 of the Delaware General Corporation Law by the directors and stockholders of the Corporation.

3. This Second Amended and Restated Certificate of Incorporation restates, integrates and amends the Amended and Restated Certificate of Incorporation of the Corporation.

4. This Second Amended and Restated Certificate of Incorporation shall be effective on the date of filing with the Secretary of State of the State of Delaware.

5. The text of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as set forth on Exhibit A attached hereto and incorporated herein by reference.

IN WITNESS WHEREOF, the Corporation has caused this Second Amended and Restated Certificate of Incorporation to be duly executed on its behalf by an authorized officer on this 29th clay of September, 2008.

 

FMG ACQUISITION CORP.

By:

   
 

Name: Donald J. Cronin

 

Title: Chief Executive Officer


EXHIBIT A

SECOND AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

United Insurance Holdings Corp.

FIRST: The name of the corporation is United Insurance Holdings Corp. (the “Corporation”).

SECOND: The address of the Corporation’s registered office in the State of Delaware is National Registered Agents, Inc., 160 Greentree Drive, Suite 101, Dover, Delaware 19904, County of Kent. The name of the Corporation’s registered agent at such address is National Registered Agents, Inc.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the Delaware General Corporation Law, as amended from time to time (the “DGCL”). In addition to the powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges which are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation.

FOURTH: The total number of shares of all classes of capital stock which the Corporation shall have authority to issue is 51,000,000, of which 50,000,000 shares shall be Common Stock of the par value of $.0001 per share and 1,000,000 shares shall be Preferred Stock of the par value of $.0001 per share.

A. Preferred Stock. The Board of Directors is expressly granted authority to issue shares of the Preferred Stock, in one or more series, and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof as shall be stated and expressed in the resolution or resolutions adopted by the Board of Directors providing the issue of such series (a “Preferred Stock Designation”) and as may be permitted by the DGCL. The number of authorized shares of Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of the capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, without a separate vote of the holders of the Preferred Stock, or any series thereof, unless a vote of any such holders is required pursuant to any Preferred Stock Designation.

B. Common Stock. Except as otherwise required by law or as otherwise provided in any Preferred Stock Designation, the holders of the Common Stock shall exclusively possess all voting power and each share of Common Stock shall have one vote.

FIFTH: The Corporation’s existence shall be perpetual.


SIXTH: The Board of Directors shall be divided into two classes: Class A and Class B. The number of directors in each class shall be as nearly equal as possible. Commencing at the first Annual Meeting of Stockholders, and at each annual meeting thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the second succeeding annual meeting of stockholders after their election. Except as the DGCL may otherwise require, in the interim between annual meetings of stockholders or special meetings of stockholders called for the election of directors and/or the removal of one or more directors and the filling of any vacancy in that connection, newly created directorships and any vacancies in the Board of Directors, including unfilled vacancies resulting from the removal of directors for cause, may be filled by the vote of a majority of the remaining directors then in office, although less than a quorum (as defined in the Corporation’s Bylaws), or by the sole remaining director. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified.

SEVENTH: The following provisions are inserted for the management of the business and for the conduct of the affairs of the Corporation, and for further definition, limitation and regulation of the powers of the Corporation and of its directors and stockholders:

A. Election of directors need not be by ballot unless the by-laws of the Corporation so provide.

B. The Board of Directors shall have the power, without the assent or vote of the stockholders, to make, alter, amend, change, add to or repeal the by-laws of the Corporation.

C. The directors in their discretion may submit any contract or act for approval or ratification at any annual meeting of the stockholders or at any meeting of the stockholders called for the purpose of considering any such act or contract, and any contract or act that shall be approved or be ratified by the vote or the holders of a majority of the stock of the Corporation which is represented in person or by proxy at such meeting and entitled to vote thereat (provided that a lawful quorum of stockholders be there represented in person or by proxy) shall be as valid and binding upon the Corporation and upon all the stockholders as though it had been approved or ratified by every stockholder of the Corporation, whether or not the contract or act would otherwise be open to legal attack because of directors’ interests, or for any other reason.

D. In addition to the powers and authorities hereinbefore or by statute expressly conferred upon them, the directors are hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation: subject, nevertheless, to the provisions of the statutes of Delaware, of this Certificate of Incorporation, and to any by-laws from time to time made by the stockholders; provided, however, that no by-law so made shall invalidate any prior act of the directors which would have been valid if such by-law had not been made.

EIGHTH: A. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director, except for liability (i) for any breach of the director’s duty of loyalty to the

 

2


Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the DGCL, or (iv) for any transaction from which the director derived an improper personal benefit. If the DGCL is amended to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the DGCL, as so amended. Any repeal or mortification of this paragraph A by the stockholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation with respect to events occurring prior to the time of such repeal or modification.

B. The Corporation, to the full extent permitted by Section 145 of the DGCL, as amended from time to time, shall indemnify all persons whom it may indemnify pursuant thereto. Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative, or investigative action, suit or proceeding for which such officer or director may be entitled to indemnification hereunder shall be paid by the Corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized hereby.

NINTH: Whenever a compromise or arrangement is proposed between this Corporation and its creditors or any class of them and/or between this Corporation and its stockholders or any class of them, any court of equitable jurisdiction within the State of Delaware may, on the application in a summary way of this Corporation or of any creditor or stockholder thereof or on the application of any receiver or receivers appointed for this Corporation under Section 291 of Title 8 of the Delaware Code or on the application of trustees in dissolution or of any receiver or receivers appointed for this Corporation under Section 279 of Title 8 of the Delaware Code order a meeting of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, to be summoned in such manner as the said court directs. If a majority in number representing three fourths in value of the creditors or class of creditors, and/or of the stockholders or class of stockholders of this Corporation, as the case may be, agree to any compromise or arrangement and to any reorganization of this Corporation as a consequence of such compromise or arrangement, the said compromise or arrangement and the said reorganization shall, if sanctioned by the court to which the said application has been made, be binding on all the creditors or class of creditors, and/or on all the stockholders or class of stockholders, of this Corporation, as the case may be, and also on this Corporation.

TENTH: The Corporation hereby elects not to be governed by Section 203 of the DGCL.

 

3

EXHIBIT 10.1

STRICTLY CONFIDENTIAL

October 27, 2008

Nick Griffin

Chief Financial Officer

United Insurance Holdings Corp.

700 Central Avenue, Suite 302

St. Petersburg, FL 33701

 

  Re:

Unit Purchase Options

Dear Nick,

Consistent with my letter to Patrick Delacey of Raymond James & Associates dated August 1, 2008 and as further noted in FMG Acquisition Corp.’s Proxy Statement/Prospectus dated September 4, 2008, this is to confirm that the underwriters of FMG’s initial public offering in October 2007 and certain of their employees which received 450,000 unit purchase options in conjunction with FMG’s IPO have agreed to forfeit 100,000 of such options and to have expiration date for the remaining 350,000 unit purchase options be shortened by two years to October 4, 2010.

Please don’t hesitate to contact me with any questions at XXX-XXX-XXXX.

 

Very truly yours,
PALI CAPITAL, INC.

By:

 

/s/  R. Michael Powell

 

R. Michael Powell

 

Managing Director

E XHIBIT 10.2

STOCK PURCHASE AGREEMENT

AGREEMENT dated                          , 2008, by and between                  , with a principal place of business at                              (the “ Seller ”), and FMG Acquisitions Corp., a Delaware corporation with an address at Four Forest Park, Farmington CT (the “ Buyer ”). Buyer and the Seller are sometimes hereinafter collectively referred to as the “ Parties ”.

WHEREAS, Seller is the legal and beneficial owner of                      shares (the “ Securities ”) of common stock, par value $0.0001 per share (the “ Common Stock ”) of FMG Acquisitions Corp., a Delaware corporation (the “ Company ”), and

WHEREAS, in consideration of $                      and for other good and valuable consideration. Seller desires to transfer and sell to Buyer all right, title and interest in the Securities and Buyer desires to purchase all such right, title and interest in the Securities (the “ Sale ”):

NOW THEREFORE, in consideration of the mutual promises herein contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. Sale of Securities.

(a) Securities to be Acquired . At the Closing, and upon the terms and subject to the conditions of this Agreement, and upon the representations, warranties and covenants herein made, the Seller shall transfer and sell to Buyer, and Buyer agrees to purchase from the Seller, the Securities, for the Purchase Price hereinafter set forth.

(b) Purchase Price . Upon the terms and Subject to the conditions set forth in this Agreement, upon the representations, warranties and covenants made herein, and in exchange for the Securities, Buyer hereby agrees to deliver to the Seller at the Closing an amount equal to $          per share of Common Stock, totaling $                      in the aggregate, in immediately available funds (the “ Purchase Price ”), which funds shall be delivered to the Seller as Seller shall direct.

2. Representations and Warranties of Seller . Seller hereby represents and warrants to Buyer, which representations and warranties shall survive the Closing, the following:

(a) The Securities are wholly-owned by Seller free and clear of all liens, agreements, security interests, claims, charges and encumbrances of any kind and nature and no third party holds any right or interest (beneficial or otherwise) in the Securities. The Securities are not subject to any restrictions, directly or indirectly, with respect to their transferability or any other restrictions, other than as set forth in Section 3 below. Seller: (1) owned the Securities as of September 5, 2008, (2) had the sole and exclusive right to vote the Securities at the special meeting of FMG’s stockholders held on September 29, 2008 (the “ Special Meeting ”) and (3) had the sole and exclusive right to exercise the conversion rights attached to the Securities at the Special Meeting.


(b) This Agreement is the valid and binding obligation of Seller, enforceable against Seller in accordance with its terms. Seller has full power and authority to enter into and consummate this Agreement and the Securities, the consent of no other party or entity is necessary for the consummation of the transactions contemplated herein. The execution, delivery and performance by Seller of this Agreement will not result in any willful violation of and will not conflict with, or result in a breach of, any of the terms of, or constitute a default under, any provision of state or federal law to which Seller is subject, any mortgage, indenture, agreement, document, instrument, judgment, decree, order, rule or regulation, or other restriction to which Seller is a party or by which Seller may be bound, or result in the creation of any lien upon any of the properties or assets of Seller pursuant to any such term, or result in the suspension, revocation, impairment, forfeiture or non-renewal of any permit, license, authorization or approval applicable to Seller or any of Seller’s respective assets or properties.

(c) No governmental, administrative or other third party consents or approval are required, necessary or appropriate in order for Seller to convey, transfer and assign to and vest in Buyer good and marketable right, title and interest in and to the Securities, free and clear of all liens, security interests, claims, charges and encumbrances of any nature whatsoever.

(d) There is no action, suit, investigation or proceeding pending, to the knowledge of the Seller, threatened against or affecting either of the Seller which: (i) seeks to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated in this Agreement or (ii) questions the validity or legality of any transactions or seeks to recover damages or to obtain other relief in connection with any transactions.

(e) Based on the actual knowledge of the Seller, without an independent investigation or inquiry, there are no proceedings pending or threatened against the Company or the Seller, relating to the Securities.

(f) Seller understands that Seller (and not the Buyer) shall be responsible for any and all tax liabilities of Seller that may arise as a result of the transactions contemplated by this Agreement.

(g) Seller has analyzed the proposed terms of the merger by and among the Company, United Subsidiary Corp., a newly-incorporated Florida corporation and a wholly-owned subsidiary of FMG, and United Insurance Holdings, L.C. (the “ Merger ”) and the business to be acquired thereby and has voluntarily elected to sell the Securities, and further acknowledges it has not been coerced into such investment decision.

(h) Seller represents that both the amount of Securities and the Purchase Price were negotiated figures by the parties and that the terms and conditions by the parties of this Agreement may differ from arrangements entered into with other holders of Common Stock.

3. Representations and Warranties of Seller. The Buyer hereby represents and warrants to Seller, which representations and warranties shall survive the Closing, the following:

(a) Buyer has all requisite power and authority to execute, deliver and perform under this Agreement and the other agreements, certificates and instruments to be executed by Buyer in connection with or pursuant to this Agreement. Upon execution and delivery by Buyer at the Closing, this Agreement is a legal, valid and binding agreement of Buyer, enforceable against Buyer in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity).


(b) The execution, delivery and performance of this Agreement by Buyer will not conflict with or result in the breach of any term or provision of, or violate or constitute a default under, any charter provision or bylaw or under any material agreement to which Buyer is a party or by which Buyer is in any way bound or obligated.

(c) No governmental, administrative or other third party consents or approvals are required, necessary or appropriate on the part of Buyer in connection with the transactions contemplated by this Agreement.

4. Closing.

(a) Time; Place; Outcome . The closing of the Sale of the Securities (the “ Closing ”) will take place on the date mutually agreed upon by both Buyer and Seller, but in any event no later than one business day following consummation of the Merger, unless mutually agreed to a later date by both Parties. At the Closing, Seller shall to transfer Buyer clear and marketable title to the Securities, free and clear of any and all liens, claims, encumbrances and adverse interests of any kind (other than as provided in Section 3 above), and Buyer shall deliver the funds representing the Purchase Price to Seller.

(b) Conditions Precedent to Buyer’s Obligations . The obligations of the Buyer at the Closing shall be subject to the satisfaction on or prior to the Closing of the following conditions precedent, any one or more of which may be waived by the Buyer:

(i) Representations and Warranties . The representation and warranties by Seller in Section 2 hereof shall be true and accurate on and as of the Closing.

(ii) Performance . Seller shall have performed and complied with all agreements and conditions contained herein or in other ancillary documents incident to the transactions contemplated by this Agreement required to be performed or complied with by them prior to or at the Closing.

(iii) Proceedings and Documents . All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be presented and delivered to Buyer, shall be presented and delivered to the Buyer, shall be satisfactory in substance and form to the Buyer or his counsel, and the Buyer or his counsel shall have received all such counterpart originals (or certified to other copies) of such documents as they may reasonably request.

(iv) Performance . Seller shall have obtained in timely fashion any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the transaction and sale of the Securities.

(v) Seller Vote . Seller shall have voted all of its Securities in favor of the Merger and not sought conversion of its Securities or, in the event Seller has already elected conversion of its Securities, it shall have properly and validly withdrawn such conversion request.


(vi) Stockholder Approval . The Company shall have received the approval of its stockholders with respect to the Merger, as set forth more particularly in the Company’s proxy statement dated September 4, 2008 (the “ Proxy Statement ”), and the other proposals set forth in the Proxy Statement.

(vii) Consummation of Merger . The Merger shall have been consummated.

(c) Conditions Precedent to Seller’ Obligations . The obligations of the Seller at Closing shall be subject to the satisfaction, on or prior to the Closing, of the following conditions precedent, any one or more of which may be waived by the Seller.

(i) Representations and Warranties . The representations of and warranties by the Buyer in Section 3 hereof shall be true and accurate on and as of the Closing.

(ii) Performance . The Buyer shall have performed and complied with all agreements and conditions contained herein or in other ancillary documents incident to the transactions contemplated by this Agreement required to be performed or complied with by him prior to or at the Closing.

(iii) Consents; Authorizations . The Buyer shall have secured all permits, consents and authorizations, if any, that shall be necessary or required lawfully to consummate this Agreement.

(iv) Proceedings and Documents . All corporate and other proceedings in connection with the transactions contemplated by this Agreement and all documents and instruments incident to such transactions shall be satisfactory in substance and form to Seller or their counsel, and Seller or their counsel shall have received all such counterpart originals (or certified or other copies) of such documents as they may reasonably request.

(d) At any time and from time to time after the Closing, the Parties shall duly execute, acknowledge and deliver all such further assignments, conveyances, instruments and documents, and shall take such other action consistent with the terms of this Agreement to carry out the transactions contemplated by this Agreement.

5. Miscellaneous.

(a) Entire Agreement . This Agreement contains the entire understanding of the Parties and supersedes all previous verbal and written agreements. There are no other agreements, representations, or warranties set forth herein.

(b) Notices . All notices or other documents under this Agreement shall be in writing and delivered in person or mailed by certified mail, postage prepaid, addressed to the Parties at the addresses first above written, on any new address designated in like manner by any party hereto.

(c) Waiver . No delay or failure by either party to exercise any right under this Agreement, and no partial or single exercise of such right, shall constitute a waiver of that or any other right, unless otherwise expressly provided herein.


(d) Survival of Agreements . All agreements, covenants, representations and warranties contained herein or made in writing in connection with the transactions contemplated hereby shall survive the execution and delivery of this Agreement.

(e) Events of Termination . Anything herein or elsewhere to contrary notwithstanding, this Agreement may be terminated by written notice of termination at any time before the purchase of the Securities by mutual written consent of the Parties.

(f) Governing Law . This Agreement shall be construed in accordance with and governed by the laws of the State of New York. Parties submits to the jurisdiction of any state or federal court sitting in New York, New York, in any action or proceeding arising out of or relating to this Agreement and agrees that all claims in respect of the action or proceeding may be heard and determined in any such court. Each Party also agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Parties waives any defense of inconvenient forum to the maintenance of an action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Each Party agrees that a final judgment in any action or proceeding so brought shall be conclusive and may be enforced by suit on the judgment or in any manner provided by law or at equity. In the event of suit under this Agreement, the prevailing party shall be entitled to costs, including reasonable attorneys’ fees; provided , however , in the event that damages are reduced from the original claim brought by the initiating party, the amount of costs provided shall so reflect such reduction by an equal pro rata amount.

(g) Successors and Assigns . The provisions of this Agreement shall be binding upon and inure to the benefit of Parties and their respective successors and assigns.

(h) Execution and Counterparts . This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

(i) Headings . The descriptive headings of the Sections hereof are inserted for convenience only and do not constitute a part of this Agreement.

(j) Trust Fund Waiver . Since October 11, 2007, the Company has had at least $37,452,930 in a trust fund established by the Company for the benefit of its public stockholders (the “ Trust Fund ”), invested in U.S. government securities in a trust account at Deutsche Bank Trust Company Americas (the “ Trust Account ”), held in trust by Continental Stock Transfer & Trust Company (the “ Trustee ”) pursuant to the Investment Management Trust Account Agreement dated as of October 4, 2007, between Parent and Trustee (the “ Trust Agreement ”). Seller understands that, except for a portion of the interest earned on the amounts held in the Trust Fund, the Company may disburse monies from the Trust Fund only: (a) to its public stockholders in the event of the conversion of their shares or the dissolution and liquidation of the Company, (b) to the Company and the underwriters listed in the Prospectus (with respect to such underwriters deferred underwriting compensation only) after the Company consummates a business combination (as describes in the Prospectus) or (c) as consideration to the sellers of a target business with which the Company completes a business combination. Seller agrees that it does not now have, and shall not


at anytime have, other than with respect to any Common Stock owned by Seller following the sale of the Securities pursuant hereto, any claim to, or make any claim against, the Trust Fund or any asset contained therein, regardless of whether such claim arises as a result of, in connection with or relating in any way to, the business relationship between Seller, on the one hand, and the Company, on the other hand, this Agreement, or any other agreement or any other theory of legal liability. Seller hereby irrevocably waives any and all claims it may have, now or in the future (in each case, however, prior to the consummation of a business combination), and will not seek recourse against, the Trust Fund for any reason whatsoever in respect thereof. In the event Seller commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Company, which proceeding seeks, in whole or in part, relief against the Trust Fund or the public stockholders of the Company, whether in the form of money damages or injunctive relief, the Company shall be entitled to recover from Seller the associated legal fees and costs in connection with any such action.

Exhibit 10.4

PROPERTY CATASTROPHE

EXCESS OF LOSS REINSURANCE AGREEMENT

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St Petersburg, Florida

EFFECTIVE: June 1, 2008

EXPIRATION: June 1, 2009

 

    
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PROPERTY CATASTROPHE EXCESS OF LOSS REINSURANCE AGREEMEMT

TABLE OF CONTENTS

 

ARTICLE    DESCRIPTION    PAGE

  1

  

Business Reinsured

   1

  2

  

Cover

   1

  3

  

Term

   1

  4

  

Territory

   2

  5

  

Exclusions

   3

  6

  

Definitions

   4

  7

  

Net Retained Lines

   7

  8

  

Other Reinsurance

   7

  9

  

Premium

   7

  10

  

Reinstatement

   8

  11

  

Notice of Loss and Loss Settlements

   8

  12

  

Salvage and Subrogation

   9

  13

  

Offset

   9

  14

  

Unauthorized Reinsurance

   9

  15

  

Taxes

   11

  16

  

Currency

   11

  17

  

Delay, Omission or Error

   11

  18

  

Access to Records

   12

  19

  

Arbitration

   12

  20

  

Service of Suit

   14

  21

  

Insolvency

   14

  22

  

Third Party Rights

   15

  23

  

Severability

   15

  24

  

Confidentiality

   16

  25

  

Entire Agreement

   16

  26

  

Law and Jurisdiction

   16

  27

  

Intermediary

   16

  28

  

Mode of Execution

   17

Attachments:

Schedule A – First Property Catastrophe Excess of Loss Reinsurance

Schedule B – Second Property Catastrophe Excess of Loss Reinsurance

Schedule C – Third Property Catastrophe Excess of Loss Reinsurance

Schedule D – Fourth Property Catastrophe Excess of Loss Reinsurance

Nuclear Incident Exclusion Clause - Physical Damage - Reinsurance - USA

Terrorism Exclusion Clause

 

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PROPERTY CATASTROPHE

EXCESS OF LOSS REINSURANCE AGREEMENT

issued to

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St Petersburg, Florida

(hereinafter referred to as the “Company”)

by

the Subscribing Reinsurers executing the

attached Interests and Liabilities Contract

(hereinafter referred to as the “Reinsurer”)

ARTICLE 1

BUSINESS REINSURED

This Agreement is to indemnify the Company in respect of its net excess liability as a result of any loss or losses which may occur during the term of this Agreement under any 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, covering business classified by the Company as property and written in the State of Florida, Such business shall include but not be limited to Homeowners, Condominium owners, and business written under the Company’s Garage Program.

ARTICLE 2

COVER

The Reinsurer will be liable in respect of each and every Loss Occurrence, for the Ultimate Net Loss over and above an initial Ultimate Net Loss for that excess layer as shown in the Schedules attached hereto, each and every Loss Occurrence, subject to a limit shown as for that excess layer as shown in the Schedules attached hereto, each and every Loss Occurrence.

Recoveries made by the Company under the Florida Hurricane Catastrophe Fund (“FHCF”) and Temporary Increased Coverage Limit (“TICL”) shall be deemed to inure to the benefit of this Agreement, whether collectible or not.

ARTICLE 3

TERM

This Agreement shall become effective at 12:01 a.m., Local Standard Time at the location where the loss occurrence commences, June 1, 2008, with respect to losses arising out of loss occurrences commencing at or after that time and date, and shall remain in full force and effect

 

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until 12:01 a.m. Local Standard Time at the location where the loss occurrence commences, June 1, 2009.

The Company may terminate or reduce a Subscribing Reinsurer’s percentage share in this Agreement at any time by giving prior written notice to the Subscribing Reinsurer by certified mail in the event of any of the following:

 

1)

The Subscribing Reinsurer’s policyholders’ surplus falls by 20% or more; or

 

2)

A State Insurance Department or other legal authority orders the Subscribing Reinsurer to cease writing business; or

 

3)

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

 

4)

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

 

5)

The Subscribing Reinsurer ceases assuming new and renewal property treaty reinsurance business; or

 

6)

The Subscribing Reinsurer’s A.M. Best’s or Standard and Poor’s rating is downgraded below A-.

In the event the Company terminates or reduces a Subscribing Reinsurer’s percentage share in accordance with this paragraph, the termination or reduction will be effective for losses occurring on or after the date of the written notice to the Subscribing Reinsurer and the premium due to the Subscribing Reinsurer for any reduced percentage share for the Agreement Year will be reduced on a pro rata basis for the portion of the Agreement Year which is unexpired as of that date. If a loss has been paid under this Agreement or a Subscribing Reinsurer’s share is terminated after November 30, 2008 then no such return premium shall be made.

For the purpose of this clause Full Premium shall mean the fully adjusted premium that would have been earned by the Reinsurer for the period of this Reinsurance Agreement had it not been terminated, taking into account any minimum premium condition and including any reinstatement premium in respect of losses occurring prior to the date of termination.

Should this Agreement expire while a loss covered hereunder is in progress, the Reinsurer shall be responsible for the loss in progress in the same, manner and to the same extent it would have been responsible had the Agreement expired the day following the conclusion of the loss in progress.

ARTICLE 4

TERRITORY

This Agreement shall follow the territorial limits of the Company’s Original Policies.

 

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ARTICLE 5

EXCLUSIONS

This Agreement does not apply to and specifically excludes the following:

 

1.

Reinsurance assumed except as respects the following; Reinsurance assumed as a result of the depopulation of the Citizens Property and Casualty Insurance Company and any successor organisation of this entity and/or any reinsurance assumed from Private Carriers as a result of depopulations.

 

2.

Financial guarantee and/or insolvency business.

 

3.

Third party liability and medical payments business.

 

4.

Liability as a member, subscriber or reinsurer of any Pool, Syndicate or Association; and any combination of insurers or reinsurers formed for the purpose of covering specific perils, specific classes of business or for the purpose of insuring risks located in specific geographical areas and any assessments from Citizens Property and Casualty Insurance Company and any successor organisation of this entity.

 

5.

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.

 

6.

All Accident and Health, Fidelity, Surety, Boiler and Machinery, Workers’ Compensation and Credit business.

 

7.

All Ocean Marine business.

 

8.

Flood and/or earthquake when written as such.

 

9.

Difference in Conditions insurances and similar kinds of insurances, however styled, insofar as they may provide coverage for losses from the following causes:

 

  a.

Flood, surface water, waves, tidal water or tidal waves, overflow of streams or other bodies of water or spray from any of the foregoing, all whether wind-driven or not, except when covering property in transit; or

 

  b.

Earthquake, landslide, subsidence or other earth movement or volcanic eruption, except when covering property in transit.

 

10.

Mortgage Impairment insurances and similar kinds of insurances, however styled.

 

11.

All automobile business.

 

12.

Loss or damage directly or indirectly occasioned by, happening through or in consequences of war, invasion, acts of foreign enemies, hostilities (whether war be declared or not), civil war, rebellion, revolution, insurrection, military or usurped power, or confiscation or nationalisation or requisition or destruction of or damage to property by or under the order of any government or public or local authority.

 

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13.

Loss and/or Damage and/or Costs and/or Expenses arising from seepage and/or pollution and/or contamination, other than contamination from smoke. Nevertheless, this exclusion does not preclude any payment of the cost of removal of debris of property damaged by a loss otherwise covered hereunder, subject always to a limit of 25% of the Company’s property loss under the applicable original policy.

 

14.

Nuclear risks as defined in the “Nuclear Incident Exclusion Clause—Physical Damage Reinsurance” attached to and forming part of this Agreement.

 

15.

All liability arising out of mold, spores and/or fungus but this exclusion shall not apply to those losses which follow as a direct result of a loss caused by a peril otherwise covered hereunder.

 

16.

Terrorism, in accordance with NMA2930c, attached hereto.

ARTICLE 6

DEFINITIONS

 

A.

The term “Loss Occurrence” shall mean the sum of all individual losses directly occasioned by any one disaster, accident or loss or series of disasters, accidents or losses arising out of one event which occurs within the area of one state of the United States or province of Canada and states or provinces contiguous thereto and to one another. However, the duration and extent of any one “Loss Occurrence” shall be limited to all individual losses sustained by the Company occurring during any period of 168 consecutive hours arising out of and directly occasioned by the same event except that the term “Loss Occurrence” shall be further defined as follows:

 

  (i)

As regards windstorm, hail, tornado, hurricane, cyclone, including ensuing collapse and water damage, all individual losses sustained by the Company occurring during any period of 96 consecutive hours arising out of and directly occasioned by the same event, However, the event need not be limited to one state or province or states or provinces contiguous thereto.

 

  (ii)

As regards riot, riot attending a strike, civil commotion, vandalism and malicious mischief, all individual losses sustained by the Company occurring during any period of 72 consecutive hours within the area of one municipality or county and the municipalities or counties contiguous thereto arising out of and directly occasioned by the same event. The maximum duration of 72 consecutive hours may be extended in respect of individual losses which occur beyond such 72 consecutive hours during the continued occupation of an Assured’s premises by strikers, provided such occupation commenced during the aforesaid period.

 

  (iii)

As regards earthquake (the epicenter of which need not necessarily be within the territorial confines referred to in the opening paragraph of this Article) and fire following directly occasioned by the earthquake, only those individual fire losses which commence during the period of 168 consecutive hours may be included in the Company’s “Loss Occurrence”.

 

  (iv)

As regards “Freeze”, only individual losses directly occasioned by collapse, breakage of glass and water damage (caused by bursting of frozen pipes and tanks) may be included in the Company’s “Loss Occurrence”.

 

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For all “Loss Occurrences”, other than (ii) above, the Company may choose the date and time when any such period of consecutive hours commences provided that it is not earlier than the date and time of the occurrence of the first recorded individual loss sustained by the Company arising out of that disaster, accident or loss and provided that only one such period of 168 consecutive hours shall apply with respect to one event, except for any “Loss Occurrence” referred to in sub-paragraph (i) above where only one such period of 96 consecutive hours shall apply with respect to one event, regardless of the duration of the event.

As respects those “Loss Occurrences” referred to in (ii) above, if the disaster, accident or loss occasioned by the event is of greater duration than 72 consecutive hours, then the Company may divide that disaster, accident or loss into two or more “Loss Occurrences” provided no two periods overlap and no individual loss is included in more than one such period and provided that no period commences earlier than the date and time of the occurrence of the first recorded individual loss sustained by the Company arising out of that disaster, accident or loss.

No individual losses occasioned by an event that would be covered by the 72 hours clause, may be included in any loss occurrence claimed under the 96 hours clause, nor may individual losses occasioned by an event that would be covered by either the 72 or 96 hours clauses, be included in any “Loss Occurrence” claimed under the 168 hours provision.

Losses directly or indirectly occasioned by:

 

  (i)

loss of, alteration of, or damage to

or

 

  (ii)

a reduction in the functionality, availability or operation of

a computer system, hardware, programme, software, data, information repository, microchip, integrated circuit or similar device in computer equipment or non-computer equipment, whether the property of the policyholder of the Company or not, do not in and of themselves constitute an event unless arising out of one or more of the following perils:

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

Any date change, including leap year calculations, shall not in and of itself be regarded as a loss occurrence for the purposes of this Agreement.

 

B.

The term “Ultimate net loss” as used herein is defined as the sum or sums (including 90% of any extra contractual obligations and/or 90% of any loss in excess of policy-limits, and any loss adjustment expenses as hereinafter defined, provided there is an indemnity loss hereunder, any loss adjustment expense/fair rental value unrecoverable from the FHCF) 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 salvage, 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

 

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Agreement are not recoverable until the Company’s Ultimate Net Loss has been ascertained.

 

C.

The terms “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 any amount paid or payable by the Company in excess of its policy limits, but otherwise within the terms of its policy, as a result of an action against it by its insured or its insured’s assignee to recover damages the insured is legally obligated to pay because of the Company’s alleged or actual negligence or bad faith in rejecting a settlement within policy limits, or in discharging its duty to defend or prepare the defense in the trial of an action against its insured, or in discharging its duty to prepare or prosecute an appeal consequent upon such an action.

 

  2.

“Extra contractual obligations” shall mean any punitive, exemplary, compensatory or consequential damages, other than loss in excess of policy limits, paid or payable by the Company as a result of an action against, it by its insured or its insured’s assignee, which action alleges negligence or bad faith on the part of the Company in handling a claim under a policy subject to this Agreement.

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 Agreement 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, settlement of any claim covered hereunder.

Savings Clause (Applicable only if the Reinsurer is domiciled in the State of New York): In no event shall coverage be provided to the extent that such coverage is not: permitted under Mew York law.

 

D.

The term “Loss adjustment expense” as used herein shall mean expenses assignable to the investigation, appraisal, adjustment, settlement, litigation, defense and/or appeal of claims, regardless of how such expenses are classified for statutory reporting purposes. Loss adjustment expense shall include, but not be limited to, loss adjustment expense not recoverable from the FHCF, interest on judgments, expenses of outside adjusters, and a pro rata share of the salaries and expenses of the Company’s field employees according to the time occupied adjusting such losses but excluding salaries of the Company’s officials and any normal overhead charges, and declaratory judgment expenses or other legal expenses and costs incurred in connection with coverage questions and legal actions connected thereto.

 

E.

The term “Declaratory judgment expense” as used herein shall mean the Company’s own costs and legal expense incurred in direct connection with declaratory judgment

 

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actions brought to determine the Company’s defense and/or indemnification obligations that are assignable to specific claims arising out of policies reinsured by this Agreement, regardless of whether the declaratory judgment action is considered successful or unsuccessful. Any declaratory judgment expense will be deemed to have been incurred by the Company on the date of the original loss, if any, giving rise to the declaratory judgment action.

 

F.

The term “Agreement Year” as used herein shall be defined as the period from 12:01 a.m., Local Standard Time at the location where the loss occurrence commences, June 1, 2008, until 12:01 a.m., Local Standard Time at the location where the loss occurrence commences, June 1, 2009. However, if this Agreement is terminated, Agreement Year as used herein shall mean the period from 12:01 a.m., Local Standard Time at the location where the loss occurrence commences, June 1, 2008 through the effective date of termination.

ARTICLE 7

NET RETAINED LINES

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

It is understood and agreed that 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 reinsurers, whether specific or general, any amounts which may have become due from them, whether such inability arises from the insolvency of such other reinsurers or otherwise.

ARTICLE 8

OTHER REINSURANCE

The Company shall be permitted to carry other 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 Agreement.

ARTICLE 9

PREMIUM

 

A.

As premium for each excess layer of reinsurance coverage provided by this Agreement, the Company shall pay the Reinsurer the greater of the following:

 

  1.

The amount, shown as “Minimum Premium” for that excess layer in the Schedules attached hereto; or

 

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  2.

The percentage, shown as “provisional rate” for that excess layer in the Schedules attached hereto to the Company’s Total Insurance Values in-force for Coverages A, B, C and D in respect of the Company’s Homeowners/Dwelling/ Condominium Business as at September 30, 2008.

 

B.

The Company shall pay the Reinsurer a deposit premium for each excess layer of the amount, shown as “Deposit Premium” for that excess layer in the Schedules attached hereto, which is payable in four installments. The first three installments shall be an amount equal to 25% of “Deposit Premium” for that excess layer at July 1, 2008, October 1, 2008, and January 1, 2009. The fourth installment for each excess layer shall be equal to the adjusted deposit premium for that excess layer, computed in accordance with paragraph C below and is due on April 1, 2009. However, in the event this Agreement is terminated, there shall be no deposit premium installments due after the effective date of termination.

 

C.

“Adjusted deposit premium” as used herein shall mean:

 

  1.

The premium due hereunder for each excess layer, computed in accordance with paragraph A above; less

 

  2.

The first, second and third installments paid for each excess layer in accordance with paragraph B above.

 

D.

No later than April 1, 2009 (or the effective date of termination in the event this Agreement is terminated prior to April 1, 2009), the Company shall provide a report to the Reinsurer setting forth the premium due hereunder for each excess layer, computed in accordance with paragraph A above, and the adjusted deposit premium for each excess layer, computed in accordance with paragraph C above. In the event this Agreement is terminated prior to April 1, 2009, any additional premium due the Reinsurer or return premium due the Company shall be remitted promptly, Should the Total Insurance Values in-force for Coverages A, B, C and D in respect of the Company’s Homeowners/Dwelling/Condominium Business as at September 30, 2.008 increase less than 10% of $27,881,367,472, there will be no additional premium due the Reinsurer.

ARTICLE 10

REINSTATEMENT

Loss payments under this Agreement will reduce the limit of coverage afforded by the amounts paid, but the limit of coverage will be reinstated from the time of the occurrence of the loss.

Nevertheless, the Reinsurer’s liability for each excess layer shall not exceed the amount shown in the Schedules attached hereto, as respects loss or losses arising out of one occurrence.

ARTICLE 11

NOTICE OF LOSS AND LOSS SETTLEMENTS

 

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The Company shall notify the Reinsurer promptly of all claims which, in the opinion of the Company, may involve the Reinsurer, and of all subsequent developments regarding these claims which may materially affect the position of the Reinsurer. The notification shall be made in the form of a report, submitted no less frequently than on a quarterly basis, that details losses paid and expected Ultimate Net Losses for each claim related to a Loss Occurrence subject to this Agreement.

All loss settlements made by the Company, provided they are within the terms of the Company’s original policies and of this Agreement, shall be binding upon Reinsurers and amounts falling to the share of Reinsurers shall be payable without delay upon reasonable evidence of the amount being given by the Company.

ARTICLE 12

SALVAGE AND SUBROGATION (BRMA 47E)

The Reinsurer shall be credited with salvage or subrogation recoveries (i.e., reimbursement obtained or recovery made by the Company, less loss adjustment expense incurred in obtaining such reimbursement or making such recovery) on account of claims and settlements involving reinsurance hereunder. Salvage thereon 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 salvage or 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 13

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 the Agreement. 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 14

UNAUTHORIZED REINSURANCE

(Applies only to a Reinsurer who does not qualify for full credit with any insurance regulatory authority having jurisdiction over the Company’s reserves.)

As regards policies or bonds issued by the Company corning within the scope of this Agreement, the Company agrees that when it shall file with the insurance regulatory authority or set up on its books reserves for unearned premium and 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 unearned premium (including but not limited to, the unearned portion of any deposit premium installment), known outstanding losses that have been reported to the Reinsurer and allocated loss adjustment expense relating thereto, and losses and allocated loss

 

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adjustment expense paid by the Company but not recovered from the Reinsurer, including all case reserves plus any reasonable amount estimated to be unreported from known Loss Occurrences as shown in the statement prepared by the Company (hereinafter referred to as “Reinsurer’s Obligations”) by funds withheld, cash advances or a Letter of Credit. 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.

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 and containing provisions acceptable to the insurance regulatory authorities 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 be automatically extended for one year from its date of expiration or any future expiration date unless thirty (30) days (sixty (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.

The Reinsurer and Company agree that the Letters of Credit provided by the Reinsurer pursuant to the provisions of this Agreement may be drawn upon at any time, notwithstanding any other provision of this Agreement, 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:

 

  (a)

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

 

  (b)

to make refund of any sum which is in excess of the actual amount required to pay the Reinsurer’s Obligations under this Agreement;

 

  (c)

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;

 

  (d)

to pay the Reinsurer’s share of any other amounts the Company claims are due under this Agreement.

In the event the amount drawn by the Company on any Letter of Credit is in excess of the actual amount required for (a) or (c), or in the case of (d), 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.

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.

 

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At annual intervals, 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:

 

  (a)

If the statement shows that the Reinsurer’s Obligations exceed the balance of credit as of the statement date, the Reinsurer shall, within thirty (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.

 

  (b)

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 thirty (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 15

TAXES

The Company will be liable for taxes (except Federal Excise Tax) on premiums reported to the Reinsurer hereunder.

Federal Excise Tax applies only to those Reinsurers, excepting Underwriters at Lloyd’s London and other Reinsurers exempt from the Federal Excise Tax, who are domiciled outside the United States of America.

The Reinsurer has agreed to allow for the purposes of paying the Federal Excise Tax 1% of the premium payable hereon to the extent such premium is subject to Federal Excise Tax.

In the event of any return of premium becoming due hereunder the Reinsurer will deduct 1% from the amount of the return of the Company or its agent should take steps to recover the Tax from the U.S. Government.

ARTICLE 16

CURRENCY

The currency to be used for all purposes of this Agreement shall be United States of America currency.

ARTICLE 17

DELAY, OMISSION OR ERROR

Any inadvertent delay, omission or error shall not be held to relieve either party hereto from any liability which would attach to it hereunder if such delay, omission or error had not been made, providing such delay, omission or error is rectified upon discovery.

 

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ARTICLE 18

ACCESS TO RECORDS

The Reinsurers or their designated representatives shall have free access at any reasonable time to all records of the Company which pertain in any way to this Agreement.

ARTICLE 19

ARBITRATION

Conditions Preceden t As a condition precedent to any right of action under this Agreement, any dispute arising out of or in connection with this Agreement between the Company and any Reinsurer hereon (whether or not arising during the term of this Agreement or after expiration or termination of this Agreement), other than as to its actual formation or validity but including interpretation or implementation of its terms, will be submitted to the decision of a board of arbitration composed of two (2) arbitrators and an umpire meeting at a site in the city or town in which the Company is domiciled.

Submission to Arbitration Notice requesting arbitration or any other notice made in connection therewith will be in writing and sent certified or registered mail, return receipt requested. The notice requesting arbitration will state in particular all issues to be resolved in the view of the claimant, will appoint the arbitrator selected by the claimant and will set a date for the hearing, which date will be no sooner than ninety (90) days and no later than one hundred and fifty (150) days from the date that the notice requesting arbitration is mailed. Notwithstanding the foregoing, the board, at its discretion, may defer the date for hearing, but it is the express intention of the parties that any dispute shall be expeditiously and timely resolved but with all due consideration to the rights of the respective parties and the board shall be mindful of this intent. Within thirty (30) days of receipt of the claimant’s notice, the respondent will notify the claimant of any additional issues to be resolved in the arbitration and of the name of its appointed arbitrator.

Arbitrator Board Membership The arbitrators will be active or retired disinterested officials of insurance or reinsurance companies or Underwriting Members of Lloyd’s who have experience of the class of business which is the subject matter of this Agreement. The Company and the Reinsurer as aforesaid will each appoint an arbitrator and the two (2) arbitrators will choose and appoint an umpire who will be an active or retired disinterested official of an insurance or reinsurance company or an Underwriting Member of Lloyd’s or an attorney before instituting the hearing. If the respondent fails to appoint its arbitrator within thirty (30) days after having received the claimant’s written request for arbitration, the claimant is authorised to and will appoint the second arbitrator. If the two (2) arbitrators fail to agree upon the appointment of an umpire within thirty (30) days after notification of the appointment of the second arbitrator, within ten (10) days thereof, the two (2) arbitrators will request the American Arbitration Association to appoint an umpire for the arbitration with the qualifications set forth above in this Article. Notwithstanding the appointment of an umpire by the American Arbitration Association, the arbitration proceedings shall not be governed by the American Arbitration Association’s commercial arbitration rules. The umpire will promptly notify in writing all parties to the arbitration of his selection.

 

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Submission of Briefs The claimant and respondent will each submit initial briefs to the board of arbitration outlining the issues in dispute and the basis and reasons for their respective positions within thirty (30) days of the date of notice of appointment of the umpire. The claimant and the respondent may submit reply briefs within ten (10) days after filing of the initial brief(s). Initial and reply briefs may be amended by the submitting party at any time, but not later than ten (10) days prior to the date of commencement of the arbitration, Reasonable responses will be allowed at the arbitration to new material contained in any amendments filed to the briefs but not previously responded to.

Arbitration Award The board will make its award with regard to this Agreement recognising the custom and the usage of the insurance and reinsurance business. The award will be in writing and will state the factual and a legal basis for the award. The award will be based upon a hearing in which evidence will be allowed and in which the formal rules of evidence will not apply, but in which cross examination and rebuttal will be allowed. At its own election or at the request of the board, either party may submit a post-hearing brief for consideration of the board in its decision within twenty (20) days of the close of the hearing. The board will make its award within thirty (30) days following the close of the hearing or the submission of post-hearing briefs, whichever is later, unless the parties consent to an extension. A decision by the majority of the members of the board will be final and binding upon all parties to the proceeding. Either party may apply to any court of competent jurisdiction for an order confirming the award; a judgement of such court will thereupon be entered on the award. If such an order is issued, the attorneys’ fees of the party so applying and court costs will be paid by the party against whom confirmation is sought.

Arbitration Expense Each party will bear the expense of the one arbitrator to be selected by it and will jointly and equally bear with the other party(ies) the expense of any stenographer requested, and of the umpire. The remaining costs of the arbitration proceedings will be finally allocated by the board.

Discovery Subject to customary and recognised legal rules of privilege, each party participating in the arbitration will have the obligation to produce as witnesses to the arbitration such of its employees or those of its affiliates or of its brokers or agents as any other participating party may request, providing always that the same witnesses and documents be relevant to the issues before the arbitration and provided further that the parties may mutually agree as to further discovery prior to the arbitration. The umpire will be the final judge of rules of privilege and as to relevancy of any witnesses and documents upon the petition of any participating party, and may require such disclosure as he or she sees fit.

Consolidation To the extent agreed by the Company, the original arbitrating Reinsurer and other Reinsurers hereon where the issues in dispute between the Company and the original arbitrating Reinsurer are related or largely identical or similar with issues in dispute between the Company and other Reinsurers hereon, all parties may join together in a consolidated arbitration under the terms and conditions contained in this Agreement to resolve all common issues, provided however, that:

 

a)

the two (2) arbitrators and umpire will be appointed by the Company and the original arbitrating Reinsurer;

 

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b)

each party to a consolidated arbitration will have the right to its own attorney, position, and related claims and defences;

 

c)

each party will not, in presenting its position, be prevented from presenting its position by the position put forth by any other party; and

 

d)

the cost and the expenses of the arbitration, including the fees of the arbitrators, exclusive of attorney’s fees, which will be borne exclusively by the respective retaining party, will be borne pro rata by each party participating in the consolidated arbitration.

Procedure To the extent not otherwise mutually agreed or provided for in this Article, the procedures and rules applicable to arbitration under the laws of the state in which the Company is domiciled, will govern the procedures of the arbitration with the appointed umpire fulfilling the role and authority of the judge unless the parties otherwise mutually agree.

ARTICLE 20

SERVICE OF SUIT

It is agreed that in the event of the failure of the Reinsurers hereon to pay any amount claimed to be due hereunder, the Reinsurers hereon, at the request of the Company, will submit to the jurisdiction of a Court of competent jurisdiction within the United States. Nothing in this Clause constitutes or should be understood to constitute a waiver of Reinsurers’ rights to commence an action in any Court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another Court as permitted by the laws of the United States or of any State in the United States. It is further agreed that service of process in such suit may be made upon Messrs Mendes and Mount, 750 Seventh Avenue, New York, New York 10019-6829, and that in any suit instituted against any one of them upon this Agreement, Reinsurers will abide by the final decision of such Court or of any Appellate Court in the event of an appeal.

The above-named are authorized and directed to accept service of process on behalf of Reinsurers in any such suit and/or upon the request of the Company to give a written undertaking to the Company that they will enter a general appearance upon Reinsurers’ behalf in the event such a suit shall be instituted.

Further, pursuant to any statute of any state, territory or district of the United States which makes provision therefore, Reinsurers hereon hereby designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute, or his successor or successors in office, as their true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Company or any beneficiary hereunder arising out of this Agreement of insurance (or reinsurance), and hereby designate the above-named as the person to whom the said officer is authorized to mail such process or a true copy thereof.

ARTICLE 21

INSOLVENCY

In the event of the insolvency of the Company, the reinsurance under this Agreement shall be payable by the Reinsurer to the Company or its liquidator, receiver or statutory successor on

 

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the basis of the liability of the Company under the Original Policy or policies reinsured, without diminution because of the insolvency of the Company, except as provided by Section 4118 (a) of the New York Insurance Law except (a) where this Agreement specifically provides another payee in the event of the insolvency of the Company and (b) where a Reinsurer(s) subscribing a participation hereunder with the consent of the original insured or insureds, has assumed such policy obligations of the Company to such payees.

If the Company should become insolvent, then the liquidator, receiver or statutory successor of the Company shall give written notice to the Reinsurer of the pendency of any claim against the Company which is likely to produce a loss under this Agreement within a reasonable time after such claim if filed in the insolvency proceeding; during the pendency of such claim, the Reinsurer under this Agreement may investigate such claim and interpose, at its own expense, in the proceeding where such claim is to be adjudicated, any defense or defenses which the Reinsurer may deem available to the Company or its liquidator or receiver or statutory successor. The expense thus incurred by the Reinsurer shall be chargeable, subject to court approval, against the insolvent Company as part of the expense of liquidation to the extent of the benefit which may accrue to the Company solely as a result of the defense undertaken by the Reinsurer.

If those Reinsurers subscribing a majority participation in this Agreement elect to interpose defense to a claim, the expense shall be apportioned in accordance with the terms of this Agreement as though such expenses had been incurred by the Company.

Should the Company go into liquidation or should a receiver be appointed the Reinsurer shall be entitled to deduct from any sums which may be due or may become due to the Company under this Agreement, any sums which are due to the Reinsurer by the Company under this Agreement and which are due at a fixed or stated date, as well as any other sums due to the Reinsurer which are permitted to be offset under applicable law.

ARTICLE 22

THIRD PARTY RIGHTS (BRMA 52C)

This Agreement is solely between the Company and the Reinsurer, and in no instance shall any other party have any rights under this Agreement except as expressly provided otherwise in the Insolvency Article.

ARTICLE 23

SEVERABILITY

If any provision of this Agreement shall be rendered illegal or unenforceable by the laws, regulations or public policy of any state, such provision shall be considered void in such state, but this shall not affect the validity or enforceability of any other provision of this Agreement or the enforceability of such provision in any other jurisdiction.

 

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ARTICLE 24

CONFIDENTIALITY

For a period of three years following the termination or expiration of this Agreement, the contracting parties undertake to regard, the terms of this Agreement (and any confidential, proprietary information relating thereto provided in writing to such other party) as confidential, with the parties to effect the same prudence and care afforded by such party to its own confidential, proprietary information. Each party further agrees that it shall not disclose any of such information to any third party without the prior written consent of the other party or except as may be required by applicable law or regulation, or by legal process (including without limitation as may be required by United States Federal tax law or regulation), or to the auditors, professional advisors, accountants, retrocessionaires, related managing general agents, directors or officers of such party with a reasonable need to know such information, Except as expressly set forth above, the parties agree and acknowledge that this Article is not intended to restrict or limit the conduct of the other party’s current or proposed business.

ARTICLE 25

ENTIRE AGREEMENT (BRMA 74B)

This Agreement constitutes the entire agreement between the parties. In no event shall this Agreement, provide any guarantee of profit, directly or indirectly, from the Reinsurer to the Company or from the Company to the Reinsurer. This Agreement may be clarified, amended or modified only by written agreement signed by both parties. Such written agreement shall become part of this Agreement.

ARTICLE 26

LAW AND JURISDICTION

This Agreement shall be governed by the laws of the State of Florida and shall be subject to the jurisdiction of the courts of the United States of America (subject to the provisions of the Service of Suit Clause (U.S.A.).

ARTICLE 27

INTERMEDIARY

BMS Intermediaries Ltd., One America Square, London, EC3N 2.LS is hereby recognized as the Intermediary negotiating this Agreement for all business hereunder. All communications (including but not limited to notices, statements, premiums, return premiums, commissions, taxes, losses, loss adjustment expense, salvages and loss settlements) relating thereto shall be transmitted to the Company or the Reinsurer through BMS Intermediaries Ltd. 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 only to constitute payment to the Company to the extent that such payments are actually received by the Company.

 

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ARTICLE 28

MODE OF EXECUTION

 

A.

This Agreement may be executed by:

 

  1.

an original written ink signature of paper documents;

 

  2.

an exchange of facsimile copies showing the original written ink signature of paper documents;

 

  3.

electronic signature technology employing computer software and a digital signature or digitizer pen pad to capture a person’s handwritten signature in such a manner that the signature is unique to the person signing, is under the sole control of the person signing, is capable of verification to authenticate the signature and is linked to the document signed in such a manner that if the data is changed, such signature is invalidated.

 

B.

The use of any one or a combination of these methods of execution shall constitute a legally binding and valid signing of this Agreement. This Agreement may be executed in one or more counterparts, each of which, when duly executed, shall be deemed an original.

Signed in St Petersburg, Florida this 20 day of June, 2008

 

For and on behalf of the Company

   

 

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SCHEDULE A

First Property Catastrophe Excess of Loss Reinsurance

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St. Petersburg, Florida

This Schedule is attached to and forms a part of the Property Catastrophe Excess of Loss Reinsurance Agreement and sets out specific terms, conditions and participating Reinsurers for the Company’s First Property Catastrophe Excess of Loss Reinsurance.

COVER

The Reinsurer will be liable in respect of each and every Loss Occurrence for the Ultimate Net Loss over and above an initial Ultimate Net Loss of $25,509,580 each and every Loss Occurrence, subject to a limit of liability to the Reinsurer of $43,004,587 each and every Loss Occurrence.

PREMIUM

The Company shall pay the Reinsurer a deposit premium of $15,051,605 in accordance with Article 9, Premium, of the Agreement. The deposit premium shall be adjusted in accordance with Article 9, Premium, of the Agreement, by a provisional rate of 0.05398% to the Company’s n Total Insurance Values in-force for Coverages A, B, C and D in respect of the Company’s ( Homeowners/Dwelling/Condominium Business as at September 30, 2008 subject to a minimum premium $12,041,284. (Minimum premium to be 80% of the developed Deposit Premiums which are in turn based on TIV at September 30, 2008 of $27,881,367,472.)

REINSTATEMENT

Each claim hereon reduces the amount of indemnity under this Agreement from the time of occurrence of the loss but such amount is hereby reinstated from the time of occurrence of the loss in consideration of the payment by the Company of an additional premium calculated by applying to the premium earned hereon, the percentage of the face amount of this Agreement so reinstated. Nevertheless, the Reinsurer’s liability hereunder shall never exceed $43,004,587 for any one loss occurrence and $86,009,174 for all loss occurrences during the term of this Agreement.

 

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SCHEDULE B

Second Property Catastrophe Excess of Loss Reinsurance

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St. Petersburg, Florida

This Schedule is attached to and forms a part of the Property Catastrophe Excess of Loss Reinsurance Agreement and sets out specific terms, conditions and participating Reinsurers for the Company’s Second Property Catastrophe Excess of Loss Reinsurance.

COVER

The Reinsurer will be liable in respect of each and every Loss Occurrence for the Ultimate Net Loss over and above an initial Ultimate Net Loss of $68,514,167 each and every Loss Occurrence, subject to a limit of liability to the Reinsurer of $18,341,079 each and every Loss Occurrence.

In the event the limit and retention provided by the FHCF and/or the limit and retention provided by the Temporary Increase in Coverage Limits (“TICL”) are adjusted in accordance with the provisions of the reimbursement contract between the Company and the State Board of Administration of the State of Florida, the Company’s additional retention, if any, will be included in the limit of liability of the Reinsurer. In no event shall the limit of liability to the Reinsurer exceed $18,341,079 each and every Loss Occurrence.

In the event the coverage provided by the Temporary Increase in Coverage Limits (“TICL”) and/or the coverage provided by the FHCF is depleted or exhausted, the Reinsurer will be liable in respect of each and every Loss Occurrence for the Ultimate Net Loss over and above an initial Ultimate Net Loss of $68,514,167 each and every Loss Occurrence, subject to a limit of liability to the Reinsurer of $18,341,079.

PREMIUM

The Company shall pay the Reinsurer a deposit premium of $4,768,680 in accordance with Article 9, Premium, of the Agreement. The deposit premium shall be adjusted in accordance with Article 9, Premium, of the Agreement, by a provisional rate 0.01710% to the Company’s Total Insurance Values in-force for Coverages A, B, C and D in respect of the Company’s Homeowners/Dwelling/Condominium Business as at September 30, 2008 subject to a minimum premium of $3,814,944, (Minimum premium to be 80% of the developed Deposit Premiums which are in turn based on TIV at September 30, 2008 of $27,881,367,472.)

REINSTATEMENT

In the event of the whole or any portion of the liability under this Agreement being exhausted by loss, the amount so exhausted shall be automatically reinstated from the time of the occurrence of the loss; Nevertheless, the Reinsurer’s liability hereunder shall never be more than $18,341,079 in respect of any one Loss Occurrence nor more than $36,682,158 in respect of all Loss Occurrences during the term of this Agreement.

The premium for such reinstatement, if any, is included within the deposit premium stated in PREMIUM.

 

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SCHEDULE C

Third Property Catastrophe Excess of Loss Reinsurance

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St. Petersburg, Florida

This Schedule is attached to and forms a part of the Property Catastrophe Excess of Loss Reinsurance Agreement and sets out specific terms, conditions and participating Reinsurers for the Company’s Third Property Catastrophe Excess of Loss Reinsurance.

COVER

The Reinsurer will be liable in respect of each and every Loss Occurrence for the Ultimate Net Loss over and above an initial Ultimate Net Loss of $86,855,246 each and every Loss Occurrence, subject to a limit of liability to the Reinsurer of $13,314,760 each and every Loss Occurrence.

In the event the limit and retention provided by the FHCF and/or the limit and retention provided by the Temporary Increase in Coverage Limits (“TICL”) are adjusted in accordance with the provisions of the reimbursement contract between the Company and the State Board of Administration of the State of Florida, the Company’s additional retention, if any, will be included in the limit of liability of the Reinsurer. In no event shall the limit of liability to the Reinsurer exceed $13,314,760 each and every Loss Occurrence.

In the event the coverage provided by the Temporary Increase in Coverage Limits (“TICL”) and/or the coverage provided by the FHCF is depleted, exhausted or otherwise unavailable, the Reinsurer will be liable in respect of each and every Loss Occurrence for the Ultimate Net Loss over and above an initial Ultimate Met Loss of $86,855,246 each and every Loss Occurrence, subject to a limit of liability to the Reinsurer of $13,314,760.

PREMIUM

The Company shall pay the Reinsurer a deposit premium of $2,130,361 in accordance with Article 9, Premium, of the Agreement, The deposit premium shall be adjusted in accordance with Article 9, Premium, of the Agreement, by a provisional rate of 0.00764% to the Company’s Total Insurance Values in-force for Coverages A, B, C and D in respect of the Company’s Homeowners/Dwelling/Condominium Business as at September 30, 2008 subject to a minimum premium of $1,704,289, (Minimum premium to be 80% of the developed Deposit Premiums which are in turn based on TIV at September 30, 2008 of $27,881,367,472.)

REINSTATEMENT

In the event of the whole or any portion of the liability under this Agreement being exhausted by loss, the amount so exhausted shall be automatically reinstated from the time of the occurrence of the loss; Nevertheless, the Reinsurer’s liability hereunder shall never be more than $13,314,759 in respect of any one Loss Occurrence nor more than $26,629,518 in respect of all Loss Occurrences during the term of this Agreement.

The premium for such reinstatement, if any, is included within the deposit premium stated in PREMIUM.

 

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SCHEDULE D

Fourth Property Catastrophe Excess of Loss Reinsurance

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY St. Petersburg, Florida

This Schedule is attached to and forms a part of the Property Catastrophe Excess of Loss Reinsurance Agreement and sets out specific terms, conditions and participating Reinsurers for the Company’s Third Property Catastrophe Excess of Loss Reinsurance.

COVER

The Reinsurer will be liable in respect of each and every Loss Occurrence for the Ultimate Net Loss over and above an initial Ultimate Net Loss of $100,170,005 each and every Loss Occurrence, subject to a limit of liability to the Reinsurer of $10,000,000 each and every Loss Occurrence.

In the event the limit and retention provided by the FHCF and/or the limit and retention provided by the Temporary Increase in Coverage Limits (“TICL”) are adjusted in accordance with the provisions of the reimbursement contract between the Company and the State Board of Administration of the State of Florida, the Company’s additional retention, if any, will be included in the limit of liability of the Reinsurer. In no event shall the limit of liability to the Reinsurer exceed $10,000,000 each and every Loss Occurrence.

In the event the coverage provided by the Temporary Increase in Coverage Limits (“TICL”) and/or the coverage provided by the FHCF is depleted, exhausted or otherwise unavailable, the Reinsurer will be liable in respect of each and every Loss Occurrence for the Ultimate Net Loss over and above an initial Ultimate Net Loss of $100,170,005 each and every Loss Occurrence, subject to a limit of liability to the Reinsurer of $10,00,000.

PREMIUM

The Company shall pay the Reinsurer a deposit premium of $1,200,000 in accordance with Article 9, Premium, of the Agreement. The deposit premium shall be adjusted in accordance with Article 9, Premium, of the Agreement, by a provisional rate of 0.00930% to the Company’s Total Insurance Values in-force for Coverages A, B, C and D in respect of the Company’s Homeowners/Dwelling/Condominium Business as at September 30, 2008 subject to a minimum premium of $960,000. (Minimum premium to be 80% of the developed Deposit Premiums which are in turn based on TIV at September 30, 2008 of $27,881,367,472.)

REINSTATEMENT

In the event of the whole or any portion of the liability under this Agreement being exhausted by loss, the amount so exhausted shall be automatically reinstated from the time of the occurrence of the loss; Nevertheless, the Reinsurer’s liability hereunder shall never be more than $10,000,000 in respect of any one Loss Occurrence nor more than $20,000,000 in respect of all Loss Occurrences during the term of this Agreement.

The premium for such reinstatement, if any, is included within the deposit premium stated in PREMIUM.

 

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NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL-DAMAGE - REINSURANCE - U.S.A.

 

1.

This Agreement does not cover any loss or liability accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, from any Pool of Insurers or Reinsurers formed for the purpose of covering Atomic or Nuclear Energy risks.

 

2.

Without in any way restricting the operation of paragraph (1) of this Clause, this Agreement does not cover any loss or liability accruing to the Reassured, directly or indirectly and whether as Insurer or Reinsurer, from any insurance against Physical Damage (including business interruption or consequential loss arising out of such Physical Damage) to:

 

  I.

Nuclear reactor power plants including all auxiliary property on the site, or

 

  II.

Any other nuclear reactor, installation, including laboratories handling radioactive materials in connection with reactor installations, and “critical facilities” as such, or

 

  III.

Installations for fabricating complete fuel elements or for processing substantial quantities of “special nuclear material,” and for reprocessing, salvaging, chemically separating, storing or disposing of “spent” nuclear fuel or waste materials, or

 

  IV.

Installations other than those listed in paragraph (2) III above using substantial quantities of radioactive isotopes or other products of nuclear fission.

 

3.

Without in any way restricting the operation of paragraphs (1) and (2) hereof, this Agreement does not cover any loss or liability by radioactive contamination accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, from any insurance on property which is on the same site as a nuclear reactor power plant or other nuclear installation and which normally would be insured therewith except that this paragraph (3) shall not operate.

 

  (a)

where Reassured does not have knowledge of such nuclear reactor power plant or nuclear installation, or

 

  (b)

where the said insurance contains a provision excluding coverage for damage to property caused by or resulting from radioactive contamination, however caused. However, on and after 1st January, 1960 this sub-paragraph (b) shall only apply provided the said radioactive contamination exclusion provision has been approved by the Governmental Authority having jurisdiction thereof.

 

4.

Without in any way restricting the operation of paragraphs (1), (2) and (3) hereof, this Agreement does not cover any loss or liability by radioactive contamination accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, when such radioactive contamination is a named hazard specifically insured against.

 

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5.

It is understood and agreed that this Clause shall not extend to risks using radioactive isotopes in any form where the nuclear exposure is not considered by the Reassured to be the primary hazard.

 

6.

The term “special nuclear material” shall have the meaning given it in the Atomic Energy Act of 1954 or by any law amendatory thereof.

 

7.

Reassured to be sole judge of what constitutes:

 

  (a)

substantial quantities, and

 

  (b)

the extent of installation, plant or site.

Note - Without in any way restricting the operation of paragraph (I) hereof, it is understood and agreed that

 

  (a)

all policies issued by the Reassured on or before 31st December 1957 shall be free from the application of the other provisions of this Clause until expiry date or 31st December 1960 whichever first occurs whereupon all the provisions of this Clause shall apply.

 

  (b)

with respect to any risk located in Canada policies issued by the Reassured on or before 31st December 1958 shall be free from the application of the other provisions of this Clause until expiry date or 31st December 1960 whichever first occurs whereupon all the provisions of this Clause shall apply.

In accordance with NMA 1119 (12/12/57)

 

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TERRORISM EXCLUSION

(Property Treaty Reinsurance)

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

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

 

(i)

involves violence against one or more persons; or

 

(ii)

involves damage to property; or

 

(iii)

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

 

(iv)

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

 

(v)

is designed to interfere with or to disrupt an electronic system.

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

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

NMA2930c

22/11/02

Form approved by Lloyd’s Market Association [Non-Marine]

 

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INTERESTS AND LIABILITIES CONTRACT

to

PROPERTY CATASTROPHE

EXCESS OF LOSS REINSURANCE AGREEMENT

issued to

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St Petersburg, Florida

(hereinafter referred to as the “Company”)

by

VARIOUS UNDERWRITERS AT LLOYD’S, LONDON

(as per the schedule attached)

(hereinafter referred to as the “Subscribing Reinsurer”)

The Subscribing Reinsurer’s share in the Interests and Liabilities of the Reinsurers as set forth in the AGREEMENT attached hereto and made part of this Contract shall be for the percentage stated below.

The share of the Subscribing Reinsurer in the Interests and Liabilities of the Reinsurers in respect of the said AGREEMENT shall be separate and apart from the shares of the other Subscribing Reinsurers to the said AGREEMENT, and the Interests and Liabilities of the Subscribing Reinsurer shall not be joint with those of the other Subscribing Reinsurers and in no event shall the Subscribing Reinsurer participate in the Interests and Liabilities of the other Subscribing Reinsurers.

The terms of this Interests and Liabilities Contract shall be from 12:01 Local Standard Time at the location where the loss occurrence commences, 1 st  June, 2008 until Eastern 12:01 Local Standard Time at the location where the loss occurrence commences 1 st  June, 2009.

Signed in                                  this                      day of                                         , 2008

For and on behalf of the Subscribing Reinsurer:

 

 

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Exhibit 10.5

 

LOGO   

STATE BOARD OF ADMINISTRATION

OF FLORIDA

 

1801 HERMITAGE BOULEVARD

TALLAHASSEE, FLORIDA 32308

(850) 488-4406

 

POST OFFICE BOX 13300

32317-3300

  

CHARLIE CRIST

GOVERNOR

AS CHAIRMAN

 

ALEX SINK

CHIEF FINANCIAL OFFICER

AS TREASURER

 

BILL McCOLLUM

ATTORNEY GENERAL

AS SECRETARY

 

BOB MILLIGAN

INTERIM EXECUTIVE DIRECTOR

REIMBURSEMENT CONTRACT

Effective: June 1, 2008

(Contract)

between

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St. Petersburg, FL

(Company)

NAIC # 10969

and

THE STATE BOARD OF ADMINISTRATION OF THE STATE OF FLORIDA (SBA)

WHICH ADMINISTERS THE FLORIDA HURRICANE CATASTROPHE FUND (FHCF)

PREAMBLE

The Legislature of the State of Florida has enacted Section 215.555, Florida Statutes “Statute”, which directs the SBA to administer the FHCF. This Contract, consisting of the principal document entitled Reimbursement Contract, addressing the mandatory FHCF coverage, and Addenda, is subject to the Statute and to any administrative rule adopted pursuant thereto, and is not intended to be in conflict therewith. All provisions in the principle document are equally applicable to each Addenda unless specifically superseded by one of the Addenda.

In consideration of the promises set forth in this Contract, the parties agree as follows:

ARTICLE I - SCOPE OF AGREEMENT

As a condition precedent to the SBA’s obligations under this Contract, the Company, an Authorized Insurer or an entity writing Covered Policies under Section 627.351, Florida Statutes, in the State of Florida, shall report to the SBA in a specified format the business it writes which is described in this Contract as Covered Policies.

The terms of this Contract shall determine the rights and obligations of the parties. This Contract provides reimbursement to the Company under certain circumstances, as described herein, and does not provide or extend insurance or reinsurance coverage to any person, firm, corporation or other entity. The SBA shall reimburse the Company for its Ultimate Net Loss on Covered Policies in excess of the Company’s Retention as a result of each Loss Occurrence commencing during the Contract Year, to the extent funds are available, all as hereinafter defined.

 

     FHCF-2008K
  1    Rule 19-8.010 F.A.C.


ARTICLE II - PARTIES TO THE CONTRACT

This Contract is solely between the Company and the SBA which administers the FHCF. In no instance shall any insured of the Company or any claimant against an insured of the Company, or any other third party, have any rights under this Contract, except as provided in Article XIV. The SBA will only disburse funds to the Company, except as provided for in Article XIV of this Contract. The Company shall not, without the prior approval of the Office of Insurance Regulation, sell, assign, or transfer to any third party, in return for a fee or other consideration any sums the FHCF pays under this Contract or the right to receive such sums.

ARTICLE III - TERM

This Contract shall apply to Loss Occurrences which commence during the period from 12:00:01 a.m., Eastern Time, June 1, 2008, to 12:00 midnight Eastern Time, May 31, 2009 (Contract Year).

The Company must designate a coverage level, make the required selections, and return this fully executed Contract (two originals) to the FHCF Administrator so that the Contract is received by the FHCF Administrator no later than 5 p.m., Central Time, June 1, 2008. Failure to do so may result in a referral to the Office of Insurance Regulation within the Department of Financial Services for administrative action. Furthermore, the Company’s coverage level under this Contract will be deemed as follows:

 

(1)

For Companies that are a member of a National Association of Insurance Commissioners (NAIC) group, the same coverage level selected by the other Companies of the same NAIC group shall be deemed. If executed Contracts for none of the members of an NAIC group have been received by the FHCF Administrator, the coverage level from the prior Contract Year shall be deemed.

 

(2)

For Companies that are not a member of an NAIC group under which other Companies are active participants in the FHCF, the coverage level from the prior Contract Year shall be deemed.

 

(3)

For New Participants, as that term is defined in Article V(21), that are a member of an NAIC group, the same coverage level selected by the other Companies of the same NAIC group shall be deemed.

 

(4)

For New Participants that are not a member of an NAIC group under which other Companies are active participants in the FHCF, the 45%, 75% or 90% coverage levels may be selected providing that the FHCF Administrator receives executed Contracts within 30 calendar days of the effective date of the first Covered Policy, otherwise, the 45% coverage level shall be deemed.

Pursuant to the terms of this Contract, the SBA shall not be liable for Loss Occurrences which commence after the effective time and date of expiration or termination. Should this Contract expire or terminate while a Loss Occurrence covered hereunder is in progress, the SBA shall be responsible for such Loss Occurrence in progress in the same manner and to the same extent it would have been responsible had the Contract expired the day following the conclusion of the Loss Occurrence in progress.

ARTICLE IV - LIABILITY OF THE FHCF

 

(1)

The SBA shall reimburse the Company, with respect to each Loss Occurrence commencing during the Contract Year for the “Reimbursement Percentage” elected, this percentage times the amount of Ultimate Net Loss paid by the Company in excess of the Company’s Retention, as adjusted pursuant to Article V(28), plus 5% of the reimbursed losses for Loss Adjustment Expense Reimbursement.

 

(2)

The Reimbursement Percentage will be 45% or 75% or 90%, at the Company’s option as elected under Article XVIII.

 

     FHCF-2008K
  2    Rule 19-8.010 F.A.C.


(3)

The aggregate liability of the FHCF with respect to all Reimbursement Contracts covering this Contract Year shall not exceed the limit set forth under Section 215.555(4)(c)l., Florida Statutes. For specifics regarding loss reimbursement calculations, see section (3)(c) of Article X herein.

 

(4)

Upon the occurrence of a Covered Event, the SBA shall evaluate the potential losses to the FHCF and the FHCF’s capacity at the time of the event. The initial Projected Payout Multiple used to reimburse the Company for its losses shall not exceed the Projected Payout Multiple as calculated based on the capacity needed to provide the FHCF’s mandatory coverage. The SBA shall make adjustments to the Projected Payout Multiple in order to reimburse the optional coverage based on the SBA’s ongoing evaluation of potential losses and capacity.

 

(5)

Reimbursement amounts shall not be reduced by reinsurance paid or payable to the Company from other sources.

 

(6)

After the end of the calendar year, the SBA shall notify insurers of the estimated Borrowing Capacity and the Balance of the Fund as of December 31. In May and October of each year, the SBA shall publish in the Florida Administrative Weekly a statement of the FHCF’s estimated Borrowing Capacity and the projected Balance of the Fund as of December 31.

 

(7)

The obligation of the SBA with respect to all Contracts covering a particular Contract Year shall not exceed the Balance of the Fund as of December 31 of that Contract Year, together with the maximum amount the SBA is able to raise through the issuance of revenue bonds or other means available to the SBA under Section 215.555, Florida Statutes, up to the limit in accordance with Section 215.555(4)(c)l., Florida Statutes. The obligations and the liability of the SBA are more fully described in Rule 19-8.013, Florida Administrative Code (F.A.C.).

ARTICLE V - DEFINITIONS

 

(1)

Actual Claims-Paying Capacity of the FHCF

This term means the sum of the Balance of the Fund as of December 31 of a Contract Year, plus any reinsurance purchased by the FHCF, plus the amount the SBA is able to raise through the issuance of revenue bonds up to the limit in accordance with Section 215.555(4)(c)l. and (6), Florida Statutes.

 

(2)

Actuarially Indicated

This term means, with respect to Premiums paid by Companies for reimbursement provided by the FHCF, an amount determined in accordance with the definition provided in Section 215.555(2)(a), Florida Statutes.

 

(3)

Additional Living Expense (ALE)

ALE losses covered by the FHCF are not to exceed 40 percent of the insured value of a Residential Structure or its contents based on the coverage provided in the policy. Fair rental value, loss of use, loss of rents, or business interruption losses are not covered by the FHCF.

 

(4)

Administrator

This term means the entity with which the SBA contracts to perform administrative tasks associated with the operations of the FHCF. The Administrator is Paragon Strategic Solutions Inc., 3600 American Boulevard West, Suite 700, Minneapolis, Minnesota 55431. The telephone number is (800) 689-3863, and the facsimile number is (800) 264-0492.

 

(5)

Authorized Insurer

This term is defined in Section 624.09(1), Florida Statutes.

 

(6)

Borrowing Capacity

This term means the amount of funds which are able to be raised by the issuance of revenue bonds or through other financing mechanisms, less bond issuance expenses and reserves.

 

(7)

Citizens Property Insurance Corporation (Citizens)

This term means the entity formed under Section 627.351(6), Florida Statutes and refers to both Citizens Property Insurance Corporation High Risk Account and Citizens Property Insurance Corporation Personal Lines and Commercial Lines Accounts.

 

     FHCF-2008K
  3    Rule 19-8.010 F.A.C.


(8)

Contract

This term means this Reimbursement Contract for the current Contract Year.

 

(9)

Covered Event

This term means any one storm declared to be a hurricane by the National Hurricane Center, which causes insured losses in Florida, both while it is still a hurricane and throughout any subsequent downgrades in storm status by the National Hurricane Center. Any storm, including a tropical storm, which does not become a hurricane is not a Covered Event.

 

(10)

Covered Policy or Covered Policies

 

  (a)

Covered Policy, as defined in Section 215.555(2)(c), Florida Statutes, is further clarified to mean only that portion of a binder, policy or contract of insurance that insures real or personal property located in the State of Florida to the extent such policy insures a Residential Structure, as defined in definition (27) herein, or the contents of a Residential Structure, located in the State of Florida.

 

  (b)

Due to the specialized nature of the definition of Covered Policies, Covered Policies are not limited to only one line of business in the Company’s annual statement required to be filed by Section 624.424, Florida Statutes. Instead, Covered Policies are found in several lines of business on the Company’s annual statement. Covered Policies will at a minimum be reported in the Company’s statutory annual statement as:

 

  l.

Fire

 

  2.

Allied Lines

 

  3.

Farmowners Multiple Peril

 

  4.

Homeowners Multiple Peril

 

  5.

Commercial Multiple Peril (non liability portion, covering condominiums and apartments)

 

  6.

Inland Marine

Note that where particular insurance exposures, e.g. mobile homes, are reported on an annual statement is not dispositive of whether or not the exposure is a Covered Policy.

 

  (c)

This definition applies only to the first-party property section of a policy pertaining strictly to the structure, its contents, appurtenant structures, or ALE coverage.

 

  (d)

Covered Policy also includes any collateral protection insurance policy covering personal residences which protects both the borrower’s and the lender’s financial interest, in an amount at least equal to the coverage for the dwelling in place under the lapsed homeowner’s policy, if such policy can be accurately reported as required in Section 215.555(5), Florida Statutes. A Company will be deemed to be able to accurately report data if the required data, as specified in the Premium Formula adopted in Section 215.555(5), Florida Statutes, is available.

 

  (e)

See Article VI of this Contract for specific exclusions.

 

(11)

Deductible Buy-Back Policies

This term means a specific policy that provides coverage to a policyholder for some portion of the policyholder’s deductible under a policy issued by another insurer.

 

(12)

Estimated Claims-Paying Capacity of the FHCF

This term means the sum of the projected Balance of the Fund as of December 31 of a Contract Year, plus any reinsurance purchased by the FHCF, plus the most recent estimate of the Borrowing Capacity of the FHCF, determined pursuant to Section 215.555(4)(c), Florida Statutes.

 

(13)

Excess Policies

This term, for the purposes of this Contract, means a policy that provides insurance protection for large commercial property risks that provides a layer of coverage above a primary layer (which is insured by a different insurer) that acts much the same as a very large deductible.

 

(14)

Florida Department of Financial Services (Department)

This term means the Florida regulatory agency, created pursuant to Section 20.121, Florida Statutes, which is charged with regulating the Florida insurance market and administering the Florida Insurance Code.

 

     FHCF-2008K
  4    Rule 19-8.010 F.A.C.


(15)

Florida Insurance Code

This term means those chapters identified in Section 624.01, Florida Statutes, which are designated as the Florida Insurance Code.

 

(16)

Formula or the Premium Formula

This term means the Formula approved by the SBA for the purpose of determining the Actuarially Indicated Premium to be paid to the FHCF. The Premium Formula is defined as an approach or methodology which leads to the creatiou of premium rates. The resulting rates are therefore incorporated as part of the Premium Formula.

 

(17)

Fund Balance or Balance of the Fund as of December 31

These terms mean the amount of assets available to pay claims, not including any bonding proceeds, resulting from Covered Events which occurred during the Contract Year.

 

(18)

Insurer Group

For purposes of the coverage option election in Section 215.555(4)(b), Florida Statutes, Insurer Group means the group designation assigned by the National Association of Insurance Commissioners (NAIC) for purposes of filing consolidated financial statements. A Company is a member of a group as designated by the NAIC until such Company is assigned another group designation or is no longer a member of a group recognized by the NAIC.

 

(19)

Loss Occurrence

This term means the sum of individual insured losses incurred under Covered Policies resulting from the same Covered Event. “Losses” means direct incurred losses under Covered Policies and excludes Loss Adjustment Expenses.

 

(20)

Loss Adjustment Expense Reimbursement

 

  (a)

Loss Adjustment Expense Reimbursement shall be 5% of the reimbursed losses under this Contract as provided in Article IV, pursuant to Section 215.555(4)(b)l., Florida Statutes.

 

  (b)

To the extent that loss reimbursements are limited to the Payout Multiple applied to each Company, the 5% Loss Adjustment Expense is included in the total Payout Multiple applied to each Company.

 

(21)

New Participant(s)

This term means all Companies which begin writing Covered Policies on or after the beginning of the Contract Year. A Company that removes exposure from either Citizens entity, as that term is defined in (7) above, pursuant to an assumption agreement effective on or after June 1 and had written no other Covered Policies before June 1 is also considered a New Participant.

 

(22)

Office of Insurance Regulation

This term means that office within the Department of Financial Services and which was created in Section 20.121(3), Florida Statutes.

 

(23)

Payout Multiple

This term means the multiple as calculated in accordance with Section 215.555(4)(c), Florida Statutes, which is derived by dividing the single season Claims-Paying Capacity of the FHCF by the total aggregate industry Reimbursement Premium for the FHCF for the Contract Year billed as of December 31 of the Contract Year. The final Payout Multiple is determined once Reimbursement Premiums have been billed as of December 31 and the amount of bond proceeds has been determined.

 

(24)

Premium

This term means the same as Reimbursement Premium.

 

(25)

Projected Payout Multiple

The Projected Payout Multiple is used to calculate a Company’s projected payout pursuant to Section 215.555(4)(d)2., Florida Statutes. The Projected Payout Multiple is derived by dividing the estimated single season Claims-Paying Capacity of the FHCF by the estimated total aggregate industry Reimbursement Premium for the FHCF for the Contract Year. The Company’s Reimbursement Premium as paid to the SBA for the Contract Year is multiplied by the Projected Payout Multiple to estimate the Company’s coverage from the FHCF for the Contract Year.

 

     FHCF-2008K
  5    Rule 19-8.010 F.A.C.


(26)

Reimbursement Premium

This term means the Premium determined by multiplying each $1,000 of insured value reported by the Company in accordance with Section 215.555(5)(b), Florida Statutes, by the rate as derived from the Premium Formula, as described in Rule 19-8.028, F.A.C.

 

(27)

Residential Structures

This term means dwelling units used as a home or residence, including the primary structure and appurtenant structures insured under the same policy and any other structures covered under endorsements associated with a policy covering a residential structure, the principal function of which at the time of loss was as a primary or secondary residence. Covered Residential Structures do not include any structures listed under Article VI herein.

 

(28)

Retention

The Company’s Retention means the amount of hurricane losses under Covered Policies which must be incurred by the Company before it is eligible for reimbursement from the FHCF.

 

  (a)

When the Company experiences covered losses from one or two Covered Events during the Contract Year, the Company’s full Retention shall be applied to each of the Covered Events.

 

  (b)

When the Company experiences covered losses from more than two Covered Events during the Contract Year, the Company’s full Retention shall be applied to each of the two Covered Events causing the largest covered losses for the Company. For each other Covered Event resulting in covered losses, the Company’s Retention shall be reduced to one-third of its full Retention and applied to all other Covered Events.

 

  1.

All reimbursement of covered losses for each Covered Event shall be based on the Company’s full Retention until January 1 of the Contract Year. Adjustments to reflect a reduction to one-third of the full Retention shall be made as soon as practicable after January 1 of the Contract Year provided the Company reports its losses as specified in this Contract.

 

  2.

Adjustments to the Company’s Retention shall be based upon its paid and outstanding losses as reported on the Company’s Proof of Loss Reports but shall not include incurred but not reported losses. The Company’s Proof of Loss Reports shall be used to determine which Covered Events constitute the Company’s two largest Covered Events, and the reduction to one-third of the full Retention shall be applied to all other Covered Events for the Contract Year. After this initial determination, any subsequent adjustments shall be made by the SBA only if the quarterly loss reports reveal that loss development patterns have resulted in a change in the order of Covered Events entitled to the reduction to one- third of the full Retention.

 

  (c)

The Company’s full Retention is established in accordance with the provisions of Section 215.555(2)(e), Florida Statutes, and shall be determined by multiplying the Retention Multiple by the Company’s Reimbursement Premium for the Contract Year.

 

  (d)

Once the Company’s limit of coverage has been exhausted, the Company will not be entitled to further reimbursements.

 

(29)

Retention Multiple

 

  (a)

The Retention Multiple is applied to the Company’s Reimbursement Premium to determine the Company’s Retention. The Retention Multiple for the 2008/2009 Contract Year shall be equal to $4.5 billion, adjusted based upon the reported exposure for the 2007/2008 Contract Year to reflect the percentage growth in exposure to the FHCF since 2004, divided by the estimated total industry Reimbursement Premium at the 90% reimbursement percentage level for the Contract Year as determined by the SBA.

 

  (b)

The Retention Multiple as determined under (29)(a) above shall be adjusted to reflect the reimbursement percentage elected by the Company under this Contract as follows:

 

  1.

If the Company elects a 90% reimbursement percentage, the adjusted Retention Multiple is 100% of the amount determined under (29)(a) above;

 

     FHCF-2008K
  6    Rule 19-8.010 F.A.C.


  2.

If the Company elects a 75% reimbursement percentage, the adjusted Retention Multiple is 120% of the amount determined under (29)(a) above; or

 

  3.

If the Company elects a 45% reimbursement percentage, the adjusted Retention Multiple is 200% of the amount determined under (29)(a) above.

 

(30)

Ultimate Net Loss

 

  (a)

This term means all losses of the Company under Covered Policies, prior to the application of the Company’s FHCF Retention, as defined under (28) above, and reimbursement percentage, and excluding loss adjustment expense, arising from each Loss Occurrence during the Contract Year, provided, however, that the Company’s loss shall be determined in accordance with the deductible level written under the policy sustaining the loss.

 

  (b)

Salvages and all other recoveries, excluding reinsurance recoveries, shall be first deducted from such loss to arrive at the amount of liability attaching hereunder.

 

  (c)

All salvages, recoveries or payments recovered or received subsequent to a loss settlement under this Contract shall be applied as if recovered or received prior to the aforesaid settlement and all necessary adjustments shall be made by the parties hereto.

 

  (d)

Nothing in this clause shall be construed to mean that losses under this Contract are not recoverable until the Company’s Ultimate Net Loss has been ascertained.

 

  (e)

The SBA shall be subrogated to the rights of the Company to the extent of its reimbursement of the Company. The Company agrees to assist and cooperate with the SBA in all respects as regards such subrogation. The Company further agrees to undertake such actions as may be necessary to enforce its rights of salvage and subrogation, and its rights, if any, against other insurers as respects any claim, loss, or payment arising out of a Covered Event.

ARTICLE VI – EXCLUSIONS

This Contract does not provide reimbursement for:

 

(1)

Any losses not defined as being within the scope of a Covered Policy.

 

(2)

Any policy which excludes wind or hurricane coverage.

 

(3)

Any Excess Policy or Deductible Buy-Back Policy that requires individual ratemaking.

 

(4)

Any policy for Residential Structures, as defined in Article V(27) herein, that provides a layer of coverage underneath an Excess Policy, as defined in Article V(13) herein, issued by a different insurer.

 

(5)

Any liability of the Company attributable to losses for fair rental value, loss of rent or rental income, or business interruption.

 

(6)

Any collateral protection policy that does not meet the definition of Covered Policy as defined in Article V(10)(d) herein.

 

(7)

Any reinsurance assumed by the Company.

 

(8)

Any exposure for hotels, motels, timeshares, shelters, camps, retreats, and any other rental property used solely for commercial purposes.

 

(9)

Any exposure for homeowner associations if no habitational structures are insured under the policy.

 

(10)

Any exposure for condominium structures or units that are non-owner occupied for six (6) or more time periods by different parties during the course of a twelve (12) month period.

 

(11)

Commercial healthcare facilities and nursing homes; however, a nursing home which is an integral part of a retirement community consisting primarily of habitational structures that are not nursing homes will not be subject to this exclusion.

 

(12)

Any exposure under commercial policies covering only appurtenant structures or structures that do not function as a habitational structure (e.g. a policy covering only the pool of an apartment complex).

 

(13)

Personal contents in a commercial storage facility covered under a policy that covers only those personal contents.

 

(14)

Policies covering only Additional Living Expense.

 

     FHCF-2008K
  7    Rule 19-8.010 F.A.C.


(15)

Any exposure for barns or barns with apartments.

 

(16)

Any exposure for builders risk coverage or new residential structures still under construction.

 

(17)

Any exposure described as a vacant property under a commercial policy.

 

(18)

Any exposure for recreational vehicles or boats (including boat related equipment) requiring licensing and written on a separate policy or endorsement.

 

(19)

Any liability of the Company for extra contractual obligations and excess of original policy limits liabilities.

 

(20)

Any losses paid in excess of a policy’s hurricane limit in force at the time of each Covered Event, including individual coverage limits (i.e., building, appurtenant structures, contents, and additional living expense). This exclusion includes overpayments of a specific individual coverage limit even if total payments under the policy are within the aggregate policy limit.

 

(21)

Any losses paid under a policy for Additional Living Expense, written as a time element coverage, in excess of the Additional Living Expense exposure reported for that policy under the Data Call for the applicable Contract Year (unless policy limits have changed effective after June 30 th of the Contract Year).

 

(22)

Any losses for which the Company’s claims files do not adequately support. Claim file support shall be deemed adequate if in compliance with the Records Retention Requirements outlined on the Form FHCF-L1B (Proof of Loss Report) applicable to the Contract Year.

 

(23)

Any losses attributable to loss assessments that are not hurricane-related expenses.

 

(24)

Losses in excess of the sum of the Balance of the Fund as of December 31 of the Contract Year and the amount the SBA is able to raise through the issuance of revenue bonds or by the use of other Financing mechanisms, up to the limit pursuant to Section 215.555(4)(c), Florida Statutes.

 

(25)

Any liability assumed by the Company from Pools, Associations, and Syndicates. Exception: Covered Policies assumed from Citizens under the terms and conditions of an executed assumption agreement between the Authorized Insurer and Citizens are covered by this Contract.

 

(26)

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, howsoever 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.

 

(27)

Any liability of the Company for loss or damage caused by or resulting from nuclear reaction, nuclear radiation, or radioactive contamination from any cause, whether direct or indirect, proximate or remote, and regardless of any other cause or event contributing concurrently or in any other sequence to the loss.

 

(28)

The FHCF does not provide coverage for water damage which is generally excluded under property insurance contracts and has been defined to mean flood, surface water, waves, tidal water, overflow of a body of water, storm surge, or spray from any of these, whether or not driven by wind.

 

(29)

Specialized Fine Arts Risks as defined in Rule 19-8.028(4)(d), F.A.C.

 

(30)

Claims for loss assessment coverage under Covered Policies with an effective date after the date of the Covered Event for which the loss assessments are attributed.

ARTICLE VII - MANAGEMENT OF CLAIMS AND LOSSES

The Company shall investigate and settle or defend all claims and losses. All payments of claims or losses by the Company within the terms and limits of the appropriate coverage parts of Covered Policies shall be binding on the SBA, subject to the terms of this Contract, including the provisions in Article XIII relating to inspection of records and examinations.

 

     FHCF-2008K
  8    Rule 19-8.010 F.A.C.


ARTICLE VIII – LOSS REIMBURSEMENT ADJUSTMENTS

 

(1)

Offsets

The SBA reserves the right to offset amounts payable to the SBA from the Company, including amounts payable under previous Contract Years, against any reimbursement or advance amounts due and payable to the Company from the SBA as a result of the liability of the SBA.

 

(2)

Reimbursement Adjustments

Section 215.555(4)(d) and (e), Florida Statutes, provides the SBA with the right to seek the return of excess loss reimbursements which have been paid to the Company along with interest thereon. Excess loss reimbursements are those payments made to the Company by the SBA that are in excess of the Company’s coverage under the Contract Year. Excess loss reimbursements may result from adjustments to the Projected Payout Multiple or the Payout Multiple, incorrect exposure (Data Call) submissions or resubmissions, incorrect calculations of Reimbursement Premiums or Retentions, incorrect Proof of Loss Reports, incorrect calculation of reinsurance recoveries, or subsequent readjustment of policyholder claims, including subrogation and salvage, or any combination of the foregoing. The Company will be sent an invoice showing the due date for adjustments along with the interest due thereon through the due date. The applicable interest rate for interest credits, and for interest charges for adjustments beyond the Company’s control, will be the average rate earned by the SBA for the FHCF for the first five months of the Contract Year. The applicable interest rate for interest charges due to adjustments resulting from incorrect exposure submissions or Proof of Loss Reports will accrue at this rate plus 5%. However, in recognition that the SBA’s loss examination process for a particular Contract Year may span several years, and to eliminate the disparity between Companies scheduled for loss examinations throughout a multi-year process, the interest rate applicable to reimbursement adjustments resulting from loss reimbursement examinations shall not include the additional 5%. All interest will continue to accrue if not paid by the due date.

ARTICLE IX - REIMBURSEMENT PREMIUM

 

(1)

The Company shall, in a timely manner, pay the SBA its Reimbursement Premium for the Contract Year. The Reimbursement Premium for the Contract Year shall be calculated in accordance with Section 215.555, Florida Statutes, with any rules promulgated thereunder, and with Article X(2).

 

(2)

Since the calculation of the Actuarially Indicated Premium assumes that the Companies will pay their Reimbursement Premiums timely, interest charges will accrue under the following circumstances. A Company may choose to estimate its own Premium installments. However, if the Company’s estimation is less than the provisional Premium billed, an interest charge will accrue on the difference between the estimated Premium and the final Premium. If a Company estimates its first installment, the Administrator shall bill that estimated Premium as the second installment as well, which will be considered as an estimate by the Company. No interest will accrue regarding any provisional Premium if paid as billed by the FHCF’s Administrator, except in the case of an estimated second installment as set forth in this Article. Also, if a Company makes an estimation that is higher than the provisional Premium billed but is less than the final Premium, interest will not accrue. If the Premium payment is not received from a Company when it is due, an interest charge will accrue on a daily basis until the payment is received. Interest will also accrue on Premiums resulting from submissions or resubmissions Finalized after December 1 of the Contract Year. An interest credit will be applied for any Premium which is overpaid as either an estimate or as a provisional Premium. Interest shall not be credited past December 1 of the Contract Year. The applicable interest rate for interest credits will be the average rate earned by the SBA for the FHCF for the First Five months of the Contract Year. The applicable interest rate for interest charges will accrue at this rate plus 5%.

 

     FHCF-2008K
  9    Rule 19-8.010 F.A.C.


ARTICLE X - REPORTS AND REMITTANCES

 

(1)

Exposures

 

  (a)

If the Company writes Covered Policies before June 1 of the Contract Year, the Company shall report to the SBA, unless otherwise provided in Rule 19-8.029, F.A.C., no later than the statutorily required date of September 1 of the Contract Year, by ZIP Code or other limited geographical area as specified by the SBA, its insured values under Covered Policies as of June 30 of the Contract Year as outlined in the annual reporting of insured values form, FHCF- D1A (Data Call) adopted for the Contract Year under Rule 19-8.029, F.A.C., and other data or information in the format specified by the SBA.

 

  (b)

If the Company first begins writing Covered Policies on or after June 1 but prior to December 1 of the Contract Year, the Company shall report to the SBA, no later than March 1 of the Contract Year, by ZIP Code or other limited geographical area as specified by the SBA, its insured values under Covered Policies as of December 31 of the Contract Year as outlined in the Supplemental Instructions for New Participants section of the Data Call adopted for the Contract Year under Rule 19-8.029, F.A.C., and other data or information in the format specified by the SBA.

 

  (c)

If the Company first begins writing Covered Policies on or after December 1 but through and including May 31 of the Contract Year, the Company shall not report its exposure data for the Contract Year to the SBA.

 

  (d)

The requirement that a report is due on a certain date means that the report shall be in the physical possession of the FHCF’s Administrator in Minneapolis no later than 5 p.m. on the due date. If the applicable due date is a Saturday, Sunday or legal holiday, then the actual due date will be the day immediately following the applicable due date which is not a Saturday, Sunday or legal holiday. For purposes of the timeliness of the submission, neither the United States Postal Service postmark nor a postage meter date is in any way determinative. Reports sent to the SBA in Tallahassee, Florida, will be returned to the sender. Reports not in the physical possession of the FHCF’s Administrator by 5 p.m., Central Time, on the applicable due date are late.

 

  (e)

Pursuant to the provisions of Section 215.557, Florida Statutes, the reports of insured values under Covered Policies by ZIP Code submitted to the SBA pursuant to Section 215.555, Florida Statutes, are confidential and exempt from the provisions of Section 119.07(1), Florida Statutes, and Section 24(a), Art. I of the State Constitution.

 

(2)

Reimbursement Premium

 

  (a)

If the Company writes Covered Policies before June 1 of the Contract Year, the Company shall pay the FHCF its Reimbursement Premium in installments due on or before August 1, October 1, and December 1 of the Contract Year in amounts to be determined by the FHCF. However, if the Company’s Reimbursement Premium for the prior Contract Year was less than $5,000, the Company’s full provisional Reimbursement Premium, in an amount equal to the Reimbursement Premium paid in the prior year, shall be due in full on or before August 1 of the Contract Year. The Company will be invoiced for amounts due, if any, beyond the provisional Reimbursement Premium payment, on or before December 1 of the Contract Year. In addition, if control of the Company has been transferred through any legal or regulatory proceeding to a state regulator or court appointed receiver or rehabilitator (referred to in the aggregate as “State action”), the full annual provisional Reimbursement Premium as billed and any outstanding balances will be due and payable on August 1, or the date that such State action occurs after August 1 of the Contract Year. Such acceleration will not apply when the receiver or rehabilitator provides a letter of assurance to the FHF that the Company will have the resources to pay the premium in installments in accordance with the contractual provisions.

 

  (b)

A New Participant that first begins writing Covered Policies on or after June 1 but prior to December 1 of the Contract Year shall pay the FHCF a provisional Reimbursement Premium of

 

     FHCF-2008K
  10    Rule 19-8.010 F.A.C.


 

$1,000 upon execution of this Contract. The Administrator shall calculate the Company’s actual Reimbursement Premium for the period based on its actual exposure as of December 31 of the Contract Year, as reported on or before March 1. To recognize that New Participants have limited exposure during this period, the actual Premium as determined by processing the Company’s exposure data shall then be divided in half, the provisional Premium shall be credited, and the resulting amount shall be the total Premium due for the Company for the remainder of the Contract Year. However, if that amount is less than $1,000, then the Company shall pay $1,000. The Premium payment is due no later than May 1 of the Contract Year. The Company’s Retention and coverage will be determined based on the total Premium due as calculated above.

 

  (c)

A New Participant that first begins writing Covered Policies on or after December 1 but through and including May 31 of the Contract Year shall pay the FHCF a Reimbursement Premium of $1,000 upon execution of this Contract.

 

  (d)

The requirement that the Reimbursement Premium is due on a certain date means that the Premium shall be in the physical possession of the FHCF no later than 5 p.m., Eastern Time, on the due date applicable to the particular installment. If remitted by check to the FHCF’s Post Office Box, the check shall be physically in the Post Office Box 550261, Tampa, FL 33655- 0261, as set out on the invoice sent to the Company. If remitted by check by hand delivery, the check shall be physically on the premises of the FHCF’s bank in Tampa, Florida, as set out on the invoice sent to the Company. If remitted electronically, the wire transfer shall have been completed to the FHCF’s account at its bank in Tampa, Florida, as set out on the invoice sent to the Company. If the applicable due date is a Saturday, Sunday or legal holiday, then the actual due date will be the day immediately following the applicable due date which is not a Saturday, Sunday or legal holiday. For purposes of the timeliness of the remittance, neither the United States Postal Service postmark nor a postage meter date is in any way determinative. Premium checks sent to the SBA in Tallahassee, Florida, or to the FHCF’s Administrator in Minneapolis, Minnesota, will be returned to the sender. Reimbursement Premiums not in the physical possession of the FHCF by 5 p.m., Eastern Time, on the applicable due date are late.

 

  (e)

Except as required by Section 215.555(7)(c), Florida Statutes, or as described in the following sentence, Reimbursement Premiums, together with earnings thereon, received in a given Contract Year will be used only to pay for losses attributable to Covered Events occurring in that Contract Year or for losses attributable to Covered Events in subsequent Contract Years and will not be used to pay for past losses or for debt service on revenue bonds. Pursuant to Section 215.555(6)(a)1., Florida Statutes, Reimbursement Premiums and earnings thereon may be used for payments relating to revenue bonds in the event Emergency Assessments are insufficient. If Reimbursement Premiums or earnings thereon are used for debt service on revenue bonds, then the amount of the Reimbursement Premiums or earnings thereon so used shall be returned, without interest, to the Fund when Emergency Assessments or other legally available funds remain available after making payment relating to the revenue bonds and any other purposes for which Emergency Assessments were levied.

 

(3)

Claims and Losses

 

  (a)

In General

 

  1.

Claims and losses resulting from Loss Occurrences commencing during the Contract Year shall be reported by the Company and reimbursed by the FHCF as provided herein and in accordance with the Statute, this Contract, and any rules adopted pursuant to the Statute. For a Company participating in a quota share primary insurance agreement(s) with Citizens Property Insurance Corporation High Risk Account, Citizens and the Company shall report only their respective portion of losses under the quota share primary insurance agreement(s). Pursuant to Section 215.555(4)(c), Florida Statutes, the SBA is obligated to pay for losses not to exceed the Actual Claims-Paying Capacity of the FHCF, up to the limit in accordance with Section 215.555(4)(c)l., Florida Statutes, for any one Contract Year.

 

     FHCF-2008K
  11    Rule 19-8.010 F.A.C.


  2.

If the Company is in non-compliance with Section 215.555, Florida Statutes for any Contract Year, including deadlines for sending in Contracts, addendums or attachments to Contracts, Data Call submissions or resubmissions, loss reports, or in responding to SBA exam requirements, the SBA reserves the right to withhold reimbursements or advances until such time the Company becomes compliant,

 

  (b)

Loss Reports

 

  1.

At the direction of the SBA, the Company shall report its projected Ultimate Net Loss from each Loss Occurrence to provide information to the SBA in determining any potential liability for possible reimbursable losses under the Contract on the Interim Loss Report, Form FHCF-LIA, adopted for the Contract Year under Rule 19-8.029, F.A.C. Interim Loss Reports (including subsequent Interim Loss Reports if required by the SBA) will be due in no less than fourteen days from the date of the notice from the SBA that such a report is required.

 

  2.

FHCF loss reimbursements will be issued based on Ultimate Net Loss information reported by the Company on the Proof of Loss Report, Form FHCF-L1B, adopted for the Contract Year under Rule 19-8.029, F.A.C. To qualify for reimbursement, the Proof of Loss Report must have the original signatures of two executive officers authorized by the Company to sign the report. The Company must also submit a detailed claims listing (as outlined on the Proof of Loss Report) at the same time it submits its first Proof of Loss Report for a specific Covered Event that qualifies the Company for reimbursement under that Covered Event, and should be prepared to supply a detailed claims listing for any subsequent Proof of Loss Report upon request. While a Company may submit a Proof of Loss Report requesting reimbursement at any time following a Loss Occurrence, all Companies shall submit a mandatory Proof of Loss Report for each Loss Occurrence no earlier than December 1 and no later than December 31 of the Contract Year during which the Covered Event(s) occurs using the most current data available, regardless of the amount of Ultimate Net Loss or the amount of loss reimbursements or advances already received. Reports may be faxed only if the Company does not qualify for a reimbursement.

 

  3.

Updated Proof of Loss Reports for each Loss Occurrence are due quarterly thereafter until all claims and losses resulting from a Loss Occurrence are fully discharged including any adjustments to such losses due to salvage or other recoveries, or the Company has received its full coverage under the Contract Year in which the Loss Occurrence(s) occurred, in accordance with the following guidelines:

 

  a.

For quarterly Proof of Loss Reports due by 3/31, an insurer whose losses exceed 50% of its FHCF Retention for a specific Loss Occurrence shall submit a Proof of Loss Report.

 

  b.

For quarterly Proof of Loss Reports due by 6/30, an insurer whose losses exceed 75% of its FHCF Retention for a specific Loss Occurrence shall submit a Proof of Loss Report.

 

  c.

For quarterly Proof of Loss Reports due by 9/30 and thereafter, an insurer whose losses exceed its FHCF Retention for a specific Loss Occurrence shall submit a Proof of Loss Report.

If the Company’s Retention must be recalculated as the result of an exposure resubmission, and if the recalculated Retention changes the FHCF’s reimbursement obligations, then the Company shall submit additional Proof of Loss Reports for recalculation of the FHCF’s obligations.

 

  4.

Annually thereafter, those Companies which received their full coverage under the Contract Year in which the Loss Occurrence(s) occurred shall submit a mandatory year-end Proof of Loss Report for each Loss Occurrence, as applicable, using the most current data available. This Proof of Loss Report shall be filed no earlier than December 1 and no later than December 31 of each year and shall continue until the earlier of the expiration of the commutation period described in (3)(d) below or until all claims and losses resulting from the Loss Occurrence are fully discharged including any adjustments to such losses due to salvage or other recoveries.

 

     FHCF-2008K
  12    Rule 19-8.010 F.A.C.


  5.

The SBA, except as noted below, will determine and pay, within 30 days or as soon as practicable after receiving Proof of Loss Reports, the reimbursement amount due based on losses paid by the Company to date and adjustments to this amount based on subsequent quarterly information. The adjustments to reimbursement amounts shall require the SBA to pay, or the Company to return, amounts reflecting the most recent determination of losses.

 

  a.

The SBA shall have the right to consult with all relevant regulatory agencies to seek all relevant information, and shall consider any other factors deemed relevant, prior to the issuance of reimbursements.

 

  b.

The SBA shall require commercial self-insurance funds established under Section 624.462, Florida Statutes, to submit contractor receipts to support paid losses reported on a Proof of Loss Report, and the SBA may hire an independent consultant to confirm losses, prior to the issuance of reimbursements.

 

  c.

The SBA shall have the right to conduct a claims examination prior to the issuance of any advances or reimbursements submitted by Companies that have been placed under regulatory supervision by a State or where control has been transferred through any legal or regulatory proceeding to a state regulator or court appointed receiver or rehabilitator.

 

  6.

If a Covered Event occurs during the Contract Year, but after December 31, at the direction of the SBA, Companies shall file an Interim Loss Report within 30 days after the Covered Event and Proof of Loss Reports quarterly thereafter. Subparagraphs 2-5 above regarding Proof of Loss Reports shall apply.

 

  7.

All Proof of Loss Reports received will be compared with the FHCF’s exposure data to establish the facial reasonableness of the reports. The SBA may also review the results of current and prior Contract Year exposure and loss examinations to determine the reasonableness of the reported losses. Except as noted in paragraph 4. above, Companies meeting these tests for reasonableness will be scheduled for reimbursement. Companies not meeting these tests for reasonableness will be handled on a case-by-case basis and will be contacted to provide specific information regarding their individual book of business. The discovery of errors in a Company’s reported exposure under the Data Call may require a resubmission of the current Contract Year Data Call which, as the Data Call impacts the Company’s premium, retention, and coverage for the Contract Year, will be required before the Company’s request for reimbursement or an advance will be fully processed by the Administrator.

 

  (c)

Loss Reimbursement Calculations

 

  1.

In general, the Company’s paid Ultimate Net Losses must exceed its full FHCF Retention for a specific Covered Event before any reimbursement is payable from the FHCF for that Covered Event. As described in Article V(28), Retention adjustments will be made after January 1 of the Contract Year. No interest is payable on additional payments to the Company due to this type of Retention adjustment. Each Company sustaining reimbursable losses will receive the amount of reimbursement due under the Contract up to the amount of the Company’s payout. If more than one Covered Event occurs in any one Contract Year, any reimbursements due from the FHCF shall take into account the Company’s Retention for each Covered Event. However, the Company’s reimbursements from the FHCF for all Covered Events occurring during the Contract Year shall not exceed, in aggregate, the Projected Payout Multiple or Payout Multiple, as applicable, times the individual Company’s Reimbursement Premium for the Contract Year.

 

  2.

In determining reimbursements under this Contract, the SBA shall reimburse each of the Companies, including entities created pursuant to Section 627.351(6), Florida Statutes, for the amount (if any) of reimbursement due under the individual Company’s Contract, but not to exceed for all Loss Occurrences, an amount equal to the Projected Payout Multiple or the Payout Multiple, as applicable, times the individual Company’s Reimbursement Premium for the Contract Year.

 

     FHCF-2008K
  13    Rule 19-8.010 F.A.C.


  3.

Reserve established. When a Covered Event occurs in a subsequent Contract Year when reimbursable losses are still being paid for a Covered Event in a previous Contract Year, the SBA will establish a reserve for the outstanding reimbursable losses for the previous Contract Year, based on the length of time the losses have been outstanding, the amount of losses already paid, the percentage of incurred losses still unpaid, and any other factors specific to the loss development of the Covered Events involved.

 

  (d)

Commutation

 

  1.

Not less than 36 months or more than 60 months after the end of the Contract Year, the Company shall report to the FHCF all claims and losses, both reported and unreported, for the Contract Year which are not finally settled and which may be reimbursable losses under this Contract. The Company and the SBA or their respective representatives shall attempt, by mutual agreement, to determine the capitalized value of all claims and losses, both reported and unreported, resulting from Loss Occurrences commencing during the Contract Year, and the Company shall provide the SBA with a copy of a written opinion on such capitalized value by the Company’s certifying actuary. Payment by the SBA of its portion of any amount or amounts so mutually agreed and certified by the Company’s certifying actuary shall constitute a complete and final release of the SBA in respect of all claims and losses, both reported and unreported, under this Contract.

 

  2.

If agreement on capitalized value cannot be reached within 60 days after the Company reports its claims and losses to the FHCF, the Company and the SBA may mutually appoint an actuary or appraiser to investigate, determine and capitalize such claims or losses. If both parties then agree, the SBA shall pay its portion of the amount so determined to be the capitalized value of such claims or losses.

 

  3.

If the parties fail to agree, then any difference shall be settled by a panel of three actuaries, one to be chosen by each party and the third by the two so chosen. If either party does not appoint an actuary within 30 days, the other party may appoint two actuaries. If the two actuaries fail to agree on the selection of a third actuary within 30 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 property claims and losses and shall be members of the Casualty Actuarial Society and of the American Academy of Actuaries. None of the actuaries shall be under the control of either party to this Contract. Each party shall submit its case to its actuary within 30 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.

 

  4.

The reasonable and customary expense of the actuaries and of the commutation (as a result of 2. and 3. above) shall be equally divided between the two parties. Said commutation shall take place in Tallahassee, Florida, unless some other place is mutually agreed upon by the Company and the SBA.

 

(4)

Advances

 

  (a)

In accordance with Section 215.555(4)(e), Florida Statutes, the SBA may make advances for loss reimbursements as defined herein, at market interest rates, to the Company in accordance with Section 215.555(4)(e), Florida Statutes. An advance is an early reimbursement which allows the Company to continue to pay claims in a timely manner. Advances will be made based on the Company’s paid and reported outstanding losses for Covered Policies (excluding all incurred but not reported [IBNR] losses) as reported on a Proof of Loss Report, and shall include Loss Adjustment Expense Reimbursement as calculated by the FHCF. In order to be eligible for an advance, the Company must submit its exposure data for the Contract Year as required under paragraph (1) of this Article. Except as noted below, advances, if approved, will

 

     FHCF-2008K
  14    Rule 19-8.010 F.A.C.


 

be made as soon as practicable after the SBA receives a written request, signed by two officers of the Company, for an advance of a specific amount and any other information required for the specific type of advance under subparagraphs (c) and (e) below. All reimbursements due to a Company shall be offset against any amount of outstanding advances plus the interest due thereon.

 

  (b)

For advances or excess advances, which are advances that are in excess of the amount to which the Company is entitled, the market interest rate shall be the prime rate as published in the Wall Street Journal on the first business day of the Contract Year. This rate will be adjusted annually on the first business day of each subsequent Contract Year, regardless of whether the Company executes subsequent Contracts. All interest charged will commence on the date the SBA issues a check for an advance and will cease on the date upon which the FHCF has received the Company’s Proof of Loss Report(s) for the Covered Event(s) for which the Company qualifies for reimbursement(s). If such reimbursement(s) are less than the amount of outstanding advance(s) issued to the Company, interest will continue to accrue on the outstanding balance of the advance(s) until subsequent Proof of Loss Reports qualify the Company for reimbursement under any Covered Event equal to or exceeding the amount of any outstanding advance(s). Interest shall be billed on a periodic basis. If it is determined that the Company received funds in excess of those to which it was entitled, the interest as to those sums will not cease on the date of the receipt of the Proof of Loss Report but will continue until the Company reimburses the FHCF for the overpayment.

 

  (c)

If the Company has an outstanding advance balance as of December 31 of this or any other Contract Year, the Company is required to have an actuary certify outstanding and incurred but not reported losses as reported on the applicable December Proof of Loss Report.

 

  (d)

The specific type of advances enumerated in the Section 215.555, Florida Statutes, follow.

 

  1.

Advances to Companies to prevent insolvency, as defined under Article XIV of this Contract.

 

  a.

Section 215.555(4)(e)l., Florida Statutes, provides that the SBA shall advance to the Company amounts necessary to maintain the solvency of the Company, up to 50 percent of the SBA’s estimate of the reimbursement due to the Company.

 

  b.

In addition to the requirements outlined in subparagraph (4)(a) above, the requirements for an advance to a Company to prevent insolvency are that the Company demonstrates it is likely to qualify for reimbursement and that the immediate receipt of moneys from the SBA is likely to prevent the Company from becoming insolvent, and the Company provides the following information:

 

  i. Current assets;

 

  ii. Current liabilities other than liabilities due to the Covered Event;

 

  iii. Current surplus as to policyholders;

 

  iv. Estimate of other expected liabilities not due to the Covered Event; and

 

  v. Amount of reinsurance available to pay claims for the Covered Event under other reinsurance treaties.

 

  c.

The SBA’s final decision regarding an application for an advance to prevent insolvency shall be based on whether or not, considering the totality of the circumstances, including the SBA’s obligations to provide reimbursement for all Covered Events occurring during the Contract Year, granting an advance is essential to allowing the entity to continue to pay additional claims for a Covered Event in a timely manner.

 

  2.

Advances to entities created pursuant to Section 627.351(6), Florida Statutes.

 

  a.

Section 215.555(4)(e)2., Florida Statutes, provides that the SBA may advance to an entity created pursuant to Section 627.351(6), Florida Statutes, up to 90% of the lesser of the SBA’s estimate of the reimbursement due or the entity’s share of the actual aggregate Reimbursement Premium for that Contract Year, multiplied by the current available liquid assets of the FHCF.

 

     FHCF-2008K
  15    Rule 19-8.010 F.A.C.


  b.

In addition to the requirements outlined in subparagraph (4)(a) above, the requirements for an advance to entities created pursuant to Section 627.351(6), Florida Statutes are that the entity must demonstrate to the SBA that the advance is essential to allow the entity to pay claims for a Covered Event.

 

  3.

Advances to limited apportionment companies.

Section 215.555(4)(e)3., Florida Statutes, provides that the SBA may advance the amount of estimated reimbursement payable to limited apportionment companies.

 

  (e)

In determining whether or not to grant an advance and the amount of an advance, the SBA:

 

  1. Shall determine whether its assets available for the payment of obligations are sufficient and sufficiently liquid to fulfill its obligations to other Companies prior to granting an advance;

 

  2. Shall review and consider all the information submitted by such Companies;

 

  3. Shall review such Companies’ compliance with all requirements of Section 215.555, Florida Statutes;

 

  4. Shall consult with all relevant regulatory agencies to seek all relevant information;

 

  5. Shall review the damage caused by the Covered Event and when that Covered Event occurred;

 

  6. Shall consider whether the Company has substantially exhausted amounts previously advanced; and

 

  7. Shall consider any other factors deemed relevant.

 

  8. Shall require commercial self-insurance funds established under section 624.462, Florida Statutes, to submit a copy of written estimates of expenses in support of the amount of advance requested.

 

  (f)

Any amount advanced by the SBA shall be used by the Company only to pay claims of its policyholders for the Covered Event or Covered Events which have precipitated the immediate need to continue to pay additional claims as they become due.

 

(5)

Delinquent Premium Payments

Failure to submit a Premium or Premium installment when due is a violation of the terms of this Contract and Section 215.555, Florida Statutes. Interest on late payments shall be due as set forth in Article IX(2) of this Contract.

 

(6)

Inadequate Data Submissions

If exposure data or other information required to be reported by the Company under the terms of this Contract is not received by the FHCF in the format specified by the FHCF and is inadequate to the extent that the FHCF requires resubmission of data, the Company will be required to pay the FHCF a resubmission fee of $1,000 for resubmissions that are not a result of an examination by the SBA. If a resubmission is necessary as a result of an examination report issued by the SBA, the first resubmission fee will be $2,000. If the Company’s examination-required resubmission is inadequate and the SBA requires an additional resubmission(s), the resubmission fee for each subsequent resubmission shall be $2,000. A resubmission of exposure data may delay the processing of the Company’s request for reimbursement or an advance.

 

(7)

Delinquent Submissions

Failure to submit an exposure submission or resubmission, or loss reports, when due is a violation of the terms of this Contract and Section 215.555, Florida Statutes.

ARTICLE XI - TAXES

In consideration of the terms under which this Contract is issued, the Company agrees to make no deduction in respect of the Premium herein when making premium tax returns to the appropriate authorities. Should any taxes be levied on the Company in respect of the Premium herein, the Company agrees to make no claim upon the SBA for reimbursement in respect of such taxes.

 

     FHCF-2008K
  16    Rule 19-8.010 F.A.C.


ARTICLE XII - ERRORS AND OMISSIONS

Any inadvertent delay, omission, or error on the part of the SBA shall not be held to relieve the Company from any liability which would attach to it hereunder if such delay, omission, or error had not been made.

ARTICLE XIII - INSPECTION OF RECORDS

The Company shall allow the SBA to inspect, examine, and verify, at reasonable times, all records of the Company relating to the Covered Policies under this Contract, including Company Files concerning claims, losses, or legal proceedings regarding subrogation or claims recoveries which involve this Contract, including premium, loss records and reports involving exposure data on Covered Policies. This right by the SBA to inspect, examine, and verify shall survive the completion and closure of an exposure examination or loss examination file and the termination of the Contract. The Company shall have no right to re-open an exposure or loss reimbursement examination once closed and the findings have been accepted by the Company; any re-opening shall be at the sole discretion of the SBA. If the FHCF Finance Corporation has issued revenue bonds and relied upon the exposure and loss data submitted and certified by the Company as accurate to determine the amount of bonding needed, the SBA may choose not to require, or accept, a resubmission if the resubmission will result in additional reimbursements to the Company. All discovered errors, inadvertent omissions, and typographical errors associated with the data reporting of insured values, discovered prior to the closing of the file and acceptance of the examination findings by the Company, shall be corrected to reflect the proper values. The Company shall retain its records in accordance with the requirements for records retention regarding exposure reports and claims reports outlined herein, and in any administrative rules adopted pursuant to Section 215.555, Florida Statutes. Companies writing covered collateral protection policies, as defined in definition (10)(d) of Article V herein, must be able to provide documentation that the policy covers personal residences, protects both the borrower’s and lender’s interest, and that the coverage is in an amount at least equal to the coverage for the dwelling in place under the lapsed homeowner’s policy.

 

(1)

Examination Requirements for Exposure Verification

The Company shall retain complete and accurate records, in policy level detail, of all exposure data submitted to the SBA in any Contract Year until the SBA has completed its examination of the Company’s exposure submissions. The Company shall also retain complete and accurate records of any completed exposure examination for any Contract Year in which the Company incurred losses until the completion of the loss reimbursement examination for that Contract Year. The records to be retained shall include the exam file which supports the exposure reported to the SBA and any other information which would allow for a complete examination of the Company’s reported exposure data. The exam file shall be prepared according to the SBA Exam File Specifications outlined in the Data Call. The Company must also have available, at the time of the examination, a copy of its underwriting manual, a copy of its rating manual, and staff to respond to the questions of the SBA or its agents. The Company is also required to retain declarations pages and policy applications to support reported exposure. To meet the requirement that the application must be retained, the Company may retain either the actual application or may retain the actual application in an electronic format. A complete list of records to be retained are set forth in Form FHCF-EAPI, adopted for the Contract Year under Rule 19-8.030, F.A.C.

 

(2)

Examination Requirements for Loss Reports

The Company shall retain complete and accurate records of all reported losses and/or advances submitted to the SBA until the SBA has completed its examination of the Company’s reimbursable losses. The records to be retained are set forth as part of the Proof of Loss Report, Form FHCF-L1B, adopted for the Contract Year under Rule 19-8.029, F.A.C, and Form FHCF-LAP1, adopted for the Contract Year under Rule 19-8.030, F.A.C. The Company must also retain the required exposure exam file for the Contract Year in which the loss occurred, and must have available any other information which would allow for a complete examination of the Company’s losses.

 

     FHCF-2008K
  17    Rule 19-8.010 F.A.C.


(3)

Examination Procedures

 

  (a)

The FHCF will send an examination notice to the Company providing the commencement date of the examination, the site of the examination, any accommodation requirements of the examiner, and the reports and data which must be assembled by the Company and forwarded to the FHCF upon request. The Company shall be prepared to choose one location in which to be examined, unless otherwise specified by the SBA.

 

  (b)

The reports and data are required to be forwarded to the FHCF as set forth in an examination notice letter. The information is then forwarded to the examiner. If the FHCF receives accurate and complete records as requested, the examiner will contact the Company to inform the Company as to what policies or other documentation will be required once the examiner is on site. Any records not required to be provided to the examiner in advance shall be made available at the time the examiner arrives on site. Any records to support reported losses which are. provided after the examiner has left the work-site will, at the SBA’s discretion, result in an additional examination of exposure and/or loss records or an extension or expansion of the examination already in progress. All costs associated with such additional examination or with the extension or expansion of the original examination shall be borne by the Company.

 

  (c)

At the conclusion of the examiner’s work and the management review of the examiner’s report, findings, recommendations, and work papers, the FHCF will forward a preliminary draft of the examination report to the Company and require a response from the Company by a date certain as to the examination findings and recommendations.

 

  (d)

If the Company accepts the examination findings and recommendations, and there is no recommendation for resubmission of the Company’s exposure data, the examination report will be finalized and the exam file closed.

 

  (e)

If the Company disputes the examiner’s findings, the areas in dispute will be resolved by a meeting or a conference call between the Company and FHCF management.

 

  (f)    l.

The recommendation of a loss reimbursement examination could require the Company to resubmit or update its loss reports or exposure data.

 

  2. If the recommendation of the examiner is to resubmit the Company’s exposure data for the Contract Year in question, then the FHCF will send the Company a letter outlining the process for resubmission and including a deadline to resubmit. The resubmission will include a data file to be submitted to the FHCF’s Administrator and an exam file to be submitted to the offices of the SBA. The resubmission is also required to be accompanied by a detailed written description of the specific changes made to the resubmitted data. Once the resubmission is received by the FHCF’s Administrator, the FHCF’s Administrator calculates a revised Reimbursement Premium for the Contract Year which has been examined. The SBA shall then review the resubmission with respect to the examiner’s findings, and accept the resubmission or contact the Company with any questions regarding the resubmission. Once the SBA has accepted the resubmission as a sufficient response to the examiner’s findings, the FHCF’s Administrator will send the Company an invoice for any Reimbursement Premium and interest due or to refund Reimbursement Premium, as the case may be. Once the resubmission has been approved, the exam file is closed.

 

  3. If the recommendation of the examiner is either to resubmit the Company’s exposure data for the Contract Year in question or giving the option to pay the estimated Premium difference, then the FHCF will send the Company a letter outlining the process for resubmission or for paying the estimated Premium difference and including a deadline for the resubmission or the payment to be received by the FHCF’s Administrator. If the Company chooses to resubmit, the same procedures outlined in Article XIII(3)(f)2. apply.

 

  4.

If the recommendation of the examiner is to update the Company’s Proof of Loss Report(s) for the Contract Year under review, the FHCF will send the Company a letter outlining the process for submitting the Proof of Loss Report(s) and including a deadline to file. The

 

     FHCF-2008K
  18    Rule 19-8.010 F.A.C.


 

updated Proof of Loss Report(s) will be submitted to the FHCF’s Administrator with a copy of the Proof of Loss Report(s) and a supporting detailed claims listing to be submitted to the offices of the SBA. The report is required to be accompanied by a detailed written description of the specific changes made. Once the Proof of Loss Report(s) is received by the FHCF Administrator, the FHCF’s Administrator will calculate a revised reimbursement. The SBA shall then review the submitted Proof of Loss Report(s) with respect to the examiner’s findings, and accept the Proof of Loss Report(s) as filed or contact the Company with any questions. Once the SBA has accepted the corrected Proof of Loss Report(s) as a sufficient response to the examiner’s findings, the FHCF’s Administrator will send the Company an invoice for any overpayments and interest due or the additional reimbursement owed the Company, as the case may be. Once the Proof of Loss Report(s) is approved, the exam file is closed.

 

  (g)

If the Company continues to dispute the examiner’s findings and/or recommendations and no resolution of the disputed matters is obtained through discussions between the Company and FHCF management, then the process within the SBA is at an end and further administrative remedies may be pursued under Chapter 120, Florida Statutes.

 

  (h)

The examiner’s list of errors is made available in the examination report sent to the Company. Given that the examination was based on a sample of the Company’s policies or claims rather than the whole universe of the Company’s Covered Policies or reported claims, the error list is not intended to provide a complete list of errors but is intended to indicate what information needs to be reviewed and corrected throughout the Company’s book of Covered Policy business or claims information to ensure more complete and accurate reporting to the FHCF.

 

(4)

Costs of the Examinations

The costs of the examinations shall be borne by the SBA. However, in order to remove any incentive for a Company to delay preparations for an examination, the SBA shall be reimbursed by the Company for any examination expenses incurred in addition to the usual and customary costs, which additional expenses were incurred as a result of the Company’s failure, despite proper notice, to be prepared for the examination or as a result of a Company’s failure to provide requested information. All requested information must be complete and accurate. The Company shall be notified of any administrative remedies which may be obtained under Chapter 120, Florida Statutes.

ARTICLE XIV - INSOLVENCY OF THE COMPANY

Company shall notify the FHCF immediately upon becoming insolvent. Except as otherwise provided below, no covered loss reimbursements will be made until the FHCF has completed and closed its examination of the insolvent Company’s losses, unless an agreement is entered into by the court appointed receiver specifying that all data and computer systems required for FHCF exposure and loss examinations will be maintained until completion of the Company’s exposure and loss examinations. Except as otherwise provided below, in order to account for potential erroneous reporting, the SBA shall hold back 25% of requested loss reimbursements until the exposure and loss examinations for the Company are completed. Only those losses supported by the examination will be reimbursed. Pursuant to Section 215.555(4)(g), Florida Statutes, the FHCF is required to pay the “net amount of all reimbursement moneys” due an insolvent insurer to the Florida Insurance Guaranty Association (FIGA) for the benefit of Florida policyholders. For the purpose of this Contract, a Company is insolvent when an order of liquidation with a finding of insolvency has been entered by a court of competent jurisdiction. In light of the need for an immediate infusion of funds to enable policyholders of insolvent companies to be paid for their claims, the SBA may enter into agreements with FIGA allowing exposure and loss examinations to take place immediately without the usual notice and response time limitations and allowing the FHCF to make loss reimbursements (net of any amounts payable to the SBA from the Company or FIGA) to FIGA before the examinations are completed and before the response time expires for claims filing by reinsurers and financial institutions, which have a priority interest in those funds

 

     FHCF-2008K
  19    Rule 19-8.010 F.A.C.


pursuant, to Section 215.555(4)(g), Florida Statutes. Such agreements must ensure the availability of the necessary records and adequate security must be provided so that if the FHCF determines that it overpaid FIGA on behalf of the Company, or if claims are filed by reinsurers or financial institutions having a priority interest in these funds, that the funds will be repaid to the FHCF by FIGA with in a reasonable time.

ARTICLE XV - TERMINATION

The FHCF and the obligations of both parties under this Contract can be terminated only as may be provided by law or applicable rules.

ARTICLE XVI - VIOLATIONS

Pursuant to the provisions of Section 215.555(10), Florida Statutes, any violation of the terms of this Contract by the Company constitutes a violation of the Insurance Code of the State of the Florida. Pursuant to the provisions of Section 215.555(11), Florida Statutes, the SBA is authorized to take any action necessary to enforce any administrative rules adopted pursuant to Section 215.555, Florida Statutes, and the provisions and requirements of this Contract.

ARTICLE XVII - APPLICABLE LAW

 

(1)

Applicable Law: This Contract shall be governed by and construed according to the laws of the State of Florida in respect of any matter relating to or arising out of this Contract.

 

(2)

Notice of Rights: Pursuant to Chapter 120, Florida Statutes, and the Uniform Rules of Procedure, codified as Chapters 28-101 through 28-111, F.A.C., a person whose substantial interests are affected by a decision of the SBA regarding the FHCF may request a hearing within 21 days shall have waived his or her right to a hearing. The hearing may be a formal hearing or an informal hearing pursuant to the provisions of Sections 120.569 and 120.57, Florida Statutes. The petition must be filed (received) in the office of the Agency Clerk, General Counsel’s Office, State Board of Administration of Florida, P.O. Box 13300, Tallahassee, FL 32317-3300 or 1801 Hermitage Blvd., Suite 100, Tallahassee, FL 32308, within the 21 day period.

 

     FHCF-2008K
  20    Rule 19-8.010 F.A.C.


ARTICLE XVIII – REIMBURSEMENT CONTRACT ELECTIONS

Reimbursement Percentage

For purposes of determining reimbursement (if any) due the Company under this Contract and in accordance with the Statute, the Company has the option to elect a 45% or 75% or 90% reimbursement percentage under this Contract. If the Company is a member of an NAIC group, all members must elect the same reimbursement percentage, and the individual executing this Contract on behalf of the Company, by placing his or her initials in the box under (a) below, affirms that the Company has elected the same reimbursement percentage as all members of its NAIC group. If the Company is an entity created pursuant to Section 627.351, Florida Statutes, the Company must elect the 90% reimbursement percentage. The Company shall not be permitted to change its reimbursement percentage during the Contract Year. The Company shall be permitted to change its reimbursement percentage at the beginning of a new Contract Year, but may not reduce its reimbursement percentage if a Covered Event required the issuance of revenue bonds, until the bonds have been fully repaid.

IMPORTANT NOTE: The FHCF issued revenue honds in July of 2006 as a result of its liabilities for Covered Events under the Contract Year effective June 1, 2005. As those bonds have not been fully repaid, the Company may not select a Reimbursement Percentage that is less than its selection under the prior Contract Year effective June 1, 2007.

The Reimbursement Percentage elected by the Company for the prior Contract Year effective June 1, 2007 was as follows: United Property and Casualty Insurance Company - 90%

 

(a)

NAIC Group Affirmation: Initial the following box if the Company is part of an NAIC Group:

 

 
       

 

(b)

Reimbursement Percentage Electiou: The Company hereby elects the following Reimbursement Percentage for the Contract Year from 12:00:01 a.m., Eastern Time, June 1, 2008, to 12:00 a.m., Eastern Time, May 31, 2009, (the individual executing this Contract on behalf of the Company shall place his or her initials in the box to the left of the percentage elected for the Company):

 

     
      45%        OR               75 %       OR      

/s/ DJC

   90%

Reporting Exposure for a Single Structure, with a Mix of Commercial Habitational and Commercial Non-Habitational Exposure, Written on a Commercial Policy

This section is applicable to all Companies which either have exposure for single structures with a mix of commercial habitational and commercial non-habitational exposure written under a Commercial Policy, or have the authority to write such policies. If the Company does not have the authority to write this type of exposure, this section does not apply; initial the N/A box on the next page, which completes this ARTICLE. If the Company does write, or has the authority to write, this type of exposure, please read and complete the remainder of this ARTICLE.

 

     FHCF-2008K
  21    Rule 19-8.010 F.A.C.


Commercial-Residential Class Code

If a single structure is used for both habitational and non-habitational purposes and the structure has a commercial-residential class code (based on a classification plan on file with and reviewed by the Administrator), the entire exposure for the structure should be reported to the FHCF under the Data Call, and the FHCF will reimburse losses for the entire structure as well.

Commercial Non-Residential/Business Class Code

If a single structure is used for both habitational and non-habitational purposes and the structure has a commercial non-residential or business class code (based on a classification plan on file with and reviewed by the Administrator), the habitational portion of that structure should be identified and reported to the FHCF under the Data Call.

However, in recognition of the unusual nature of commercial structures with incidental habitational exposure and the hardship some companies may face in having to carve out such incidental habitational exposure, as well as the losses to such structures, the FHCF will accommodate these companies by allowing them to exclude the entire exposure for the single structure from their Data Call submission, providing the following two conditions are met:

 

(1)

The decision to not carve out and report the incidental habitational exposure shall apply to all such structures insured by the Company; and

 

(2)

If the incidental habitational exposure is not reported to the FHCF, the Company agrees it shall not report losses to the structure and the FHCF shall not reimburse any losses to the structure.

Initial the CARVING box below if the Company is able to carve out and report its incidental habitational exposure, OR , if this requirement presents a hardship, the Company must communicate its decision to not carve out and to not report the incidental exposure by having the individual executing this Contract on behalf of the Company placing his or her initials in the NOT CARVING box below. If the Company does not currently write such policies, but has the authority to write such policies after the start date of this Contract, the decision to carve or not carve out the incidental habitational exposure must be indicated below.

 

     
       OR                 OR           
  CARVING       NOT CARVING          NA   

By initialing the CARVING or NOT CARVING box above, the Company is making an irrevocable decision for the corresponding Contract Year Data Call submission and any subsequent resubmissions.

Important Note: Since this election will impact your Data Call submission, please share this decision

with the individual(s) responsible for compiling your Data Call submission.

Additional Living Expense (ALE) Written as Time Element Coverage

If your Company writes Covered Policies that provide ALE coverage on a time element basis (i.e. coverage is based on a specific period of time as opposed to a stated dollar limit), you must initial the ‘Yes – Time Element ALE’ box below, if your Company does not write time element ALE coverage, initial ‘No – Time Element ALE’ box below.

 

   
         OR           
 

Yes – Time

Element ALE

     

No – Time

Element ALE

  

 

     FHCF-2008K
  22    Rule 19-8.010 F.A.C.


ARTICLE XIX – SIGNATURES

Approved by:

 

Florida Hurricane Catastrophe Fund    
By:   State Board of Administration of the State of Florida      
By:            
  Executive Director       Date
Approved as to legality:    
By:            
 

Linda Lettera

General Counsel

FL Bar ID#311911

      Date
  United Property and Casualty Insurance Company      
  Donald J Cronin/Press & CEO      
  Typed Name/Title      
By:          
  Signature       Date

 

     FHCF-2008K
  23    Rule 19-8.010 F.A.C.


     STATE BOARD OF ADMINISTRATION   

CHARLIE CRIST

GOVERNOR

AS CHAIRMAN

 

ALEX SINK

CHIEF FINANCIAL OFFICER

AS TREASURER

 

BILL McCOLLUM

ATTORNEY GENERAL

AS SECRETARY

 

BOB MILLIGAN

INTERIM EXECUTIVE DIRECTOR

LOGO    OF FLORIDA   
       
   1801 HERMITAGE BOULEVARD   
   TALLAHASSEE, FLORIDA 32308   
   (850)488-4406   
       
   POST OFFICE BOX 13300   
   32317-3300   
       
       
       

 

ATTENTION: 

THIS ADDENDUM MUST BE COMPLETED, SIGNED, AND RETURNED BY ALL COMPANIES EXECUTING A REIMBURSEMENT CONTRACT REGARDLESS OF CHOICE TO ACCEPT OR REJECT THIS OPTIONAL COVERAGE

ADDENDUM NO. 1

to

REIMBURSEMENT CONTRACT

Effective: June 1, 2008

(Contract)

between

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St. Petersburg, FL

(Company)

NAIC # 10969

and

THE STATE BOARD OF ADMINISTRATION OF THE STATE OF FLORIDA (SBA) WHICH ADMINISTERS THE FLORIDA HURRICANE CATASTROPHE FUND (FHCF)

It is Hereby Agreed , effective at 12:00:01 a.m., Eastern Time, June 1, 2008, that this Contract shall be amended as follows:

TEMPORARY EMERGENCY OPTIONS FOR ADDITIONAL COVERAGE PURSUANT TO SECTION 215.555(16), FLORIDA STATUTES.

Pursuant to Section 215.555(16), Florida Statutes, the Temporary Emergency Options for Additional Coverage (TEACO) provision allows the Company to select additional FHCF reimbursement coverage below its mandatory FHCF coverage layer under the Reimbursement Contract. The optional coverage provided in this Addendum No. 1 expires on May 31, 2009. Coverage associated with TEACO shall otherwise be consistent with terms and conditions as relates to the Reimbursement Contract including, but not limited to, definitions, coverage for Covered Policies as defined, exclusions, loss reporting, and examination procedures.

To be eligible for this optional coverage, the Company must return a fully executed Addendum No. 1 (two originals) no later than 5 p.m., Central Time, June 1, 2008. New Participants, as defined in Article V of the Contract, must return a fully executed Addendum No. 1 (two

 

     FHCF-2008K-1
  1    Rule 19-8.010, F.A.C.


originals) within thirty days of writing its first Covered Policy and prior to a Loss Occurrence, as both terms are defined in Article V of the Contract, under which the company would be eligible for reimbursements under the Contract. Any Company failing to meet the applicable deadline shall not be eligible for optional coverage under Addendum No. 1.

 

I.

TEACO Coverage

The Company may purchase its mandatory FHCF premium share of coverage underneath its FHCF retention in excess of one of three industry retention levels, which are specified as $3 billion, $4 billion, or $5 billion. The price for the layer of coverage below its mandatory FHCF coverage is 75 cents for each dollar of coverage for the Company’s share of the layer associated with a $5 billion industry retention, 80 cents for each dollar of coverage for the Company’s share of the layer associated with the $4 billion industry retention, or 85 cents for each dollar of coverage for the Company’s share of the layer of coverage associated with the $3 billion industry retention. The Company’s TEACO coverage shall be on an occurrence basis, and the premium for coverage will include one reinstatement. The Company’s TEACO retention shall replace the Company’s mandatory FHCF retention when it selects a TEACO option.

The SBA shall reimburse the Company for 45 percent, 75 percent, or 90 percent of its losses from each Covered Event in excess of the Company’s TEACO retention, plus 5 percent of the reimbursed losses to cover loss adjustment expense, limited in total to the amount of TEACO coverage purchased by the Company. The reimbursement percentage shall be the same as the coverage level selected by the Company under its Reimbursement Contract. The Company’s maximum reimbursement under its TEACO option shall be its mandatory FHCF premium share of two times the difference between the industry retention calculated under Section 215.555(2)(e), Florida Statutes, and the $3 billion, $4 billion, or $5 billion industry TEACO retention based on the Company’s selection of the TEACO option.

The full limit of the TEACO coverage purchased shall apply only to each of the Company’s two largest Covered Events. The TEACO coverage does not apply to other Covered Events resulting in losses.

 

II.

TEACO Premium

The Company’s TEACO premium shall be calculated based on its share of the mandatory FHCF reimbursement premium. Total TEACO premium shall be calculated based on the assumption that all insurers entering into Reimbursement Contracts also accepted the TEACO option:

 

  A.

The industry TEACO premium associated with the $3 billion retention option would be equal to 85% of the difference for the coverage between the industry retention level calculated under Section 215.555(2)(e), Florida Statutes, and the $3 billion industry TEACO retention level.

 

  B.

The industry TEACO premium associated with the $4 billion retention option would be equal to 80% of the difference for the coverage between the industry retention level calculated under Section 215.555(2)(e), Florida Statutes, and the $4 billion industry TEACO retention level.

 

  C.

The industry TEACO premium associated with the $5 billion retention option would be equal to 75% of the difference for the coverage between the industry retention level calculated under Section 215.555(2)(e), Florida Statutes, and the $5 billion industry TEACO retention level.

 

     FHCF-2008K-1
  2    Rule 19-8.010, F.A.C.


The TEACO premium shall be due and payable in three installments on August 1, 2007, on October 1, 2007, and on December 1, 2007.

 

III.

TEACO Retention

The TEACO retention is the amount of losses below which a TEACO Company is not entitled to reimbursement from the FHCF under the TEACO coverage option.

The TEACO retention multiple for each TEACO coverage option shall be calculated by dividing $3 billion, $4 billion, or $5 billion by the total estimated mandatory FHCF reimbursement premium assuming all insurers selected the 90% coverage option. The TEACO retention multiple shall be used for determining an insurer’s retention if the insurer has selected a TEACO option. The TEACO retention multiples outlined above shall be adjusted to reflect the coverage level selected by the Company under its Reimbursement Contract. For insurers electing the 90 percent coverage level, the adjusted retention multiple is 100 percent of the amount determined under the preceding paragraph. For insurers electing the 75 percent coverage level, the adjusted retention multiple is 120 percent of the amount determined under the preceding paragraph. For insurers electing the 45 percent coverage level, the adjusted retention multiple is 200 percent of the amount determined under the preceding paragraph.

 

IV.

Liability of the FHCF

The liability of the FHCF with respect to all TEACO addenda shall not exceed an amount equal to two times the difference between the industry retention level calculated under Section 215.555(2)(e), Florida Statutes, and the $3 billion, $4 billion, or $5 billion industry TEACO retention level options actually selected, but in no event may the FHCF’s obligation exceed the actual claims-paying capacity of the FHCF plus the additional TEACO capacity provided for under Section 215.555(16)(g), Florida Statutes.

The additional capacity shall apply only to the additional coverage provided by the TEACO option and shall not otherwise affect any insurer’s reimbursement from the FHCF.

 

V.

Coordination of Coverage

Reimbursement amounts under TEACO shall not be reduced by reinsurance paid or payable to the Company from sources other than the FHCF.

The TEACO coverage shall be in addition to all other coverage provided by the SBA under the Company’s Reimbursement Contract and shall be in addition to the claims-paying capacity of the FHCF as defined in Section 215.555(4)(c)l., Florida Statutes.

The TEACO coverage selected is irrevocable and shall not reduce, overlap, or duplicate coverage otherwise provided for in the Reimbursement Contract or offset any co-payments.

 

     FHCF-2008K-1
  3    Rule 19-8.010, F.A.C.


VI.

Addendum No. 1 TEACO Coverage Election

ALL COMPANIES EXECUTING A REIMBURSEMENT CONTRACT MUST INDICATE ITS TEACO COVERAGE PROVIDED BELOW THE FHCF RETENTION BY SELECTING ONE OF THREE TEACO RETENTION LEVELS OR REJECT ALL SUCH COVERAGE. IF ADDENDUM NO. I IS RETURNED WITHOUT A TEACO RETENTION SELECTED, IT SHALL BE DEEMED BY THE STATE BOARD OF ADMINISTRATION TO BE A CHOICE TO REJECT TEACO COVERAGE.

If your Company does not want to purchase any TEACO coverage, print “No Coverage” on the line below and initial the box.

 

 
No Coverage         

If your company elects to purchase TEACO coverage, select a TEACO retention level option by initialing the applicable box below.

 

     
                      
 

Company selects

$3 billion

TEACO

Retention

Option

   OR   

Company selects

$4 billion

TEACO

Retention

Option

   OR   

Company selects

$5 billion

TEACO

Retention

Option

  

 

VII.

Signatures

 

         
  United Property and Casualty Insurance Company      
By:        
  Name/Title       Date

 

Approved by:    
Florida Hurricane Catastrophe Fund    
By:   State Board of Administration of the State of Florida      
By:            
  Executive Director       Date
Approved as to legality:    
By:            
  Linda Lettera       Date
  General Counsel, FL Bar ID#311911      

 

     FHCF-2008K-1
  4    Rule 19-8.010, F.A.C.


LOGO    STATE BOARD OF ADMINISTRATION   

CHARLIE CRIST

GOVERNOR

AS CHAIRMAN

 

ALEX SINK

CHIEF FINANCIAL OFFICER

AS TREASURER

 

BILL McCOLLUM

ATTORNEY GENERAL

AS SECRETARY

 

BOB MILLIGAN

INTERIM EXECUTIVE DIRECTOR

   OF FLORIDA   
       
   1801 HERMITAGE BOULEVARD   
   TALLAHASSEE, FLORIDA 32308   
   (850) 488-4406   
       
   POST OFFICE BOX 13300   
   32317-3300   
       
       

 

ATTENTION: 

THIS ADDENDUM MUST BE COMPLETED, SIGNED, AND RETURNED BY ALL COMPANIES EXECUTING A REIMBURSEMENT CONTRACT REGARDLESS OF CHOICE TO ACCEPT OR REJECT THIS OPTIONAL COVERAGE

ADDENDUM NO. 2

to

REIMBURSEMENT CONTRACT

Effective: June 1, 2008

(Contract)

between

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St. Petersburg, FL

(Company)

NAIC # 10969

and

THE STATE BOARD OF ADMINISTRATION OF THE STATE OF FLORIDA (SBA) WHICH ADMINISTERS THE FLORIDA HURRICANE CATASTROPHE FUND (FHCF)

It is Hereby Agreed, effective at 12:00:01 a.m., Eastern Time, June 1, 2007, that this Contract shall be amended as follows:

TEMPORARY INCREASE IN COVERAGE LIMIT OPTIONS FOR ADDITIONAL COVERAGE PURSUANT TO SECTION 215.555(17), FLORIDA STATUTES.

Pursuant to Section 215.555(17), Florida Statutes, the Temporary Increase in Coverage Limit (TICL) Options provision allows the Company to select additional FHCF reimbursement coverage above its mandatory FHCF coverage layer under the Reimbursement Contract. The optional coverage selections provided in this Addendum No. 2 expires on May 31, 2009. Coverage provided under TICL shall otherwise be consistent with terms and conditions as relates to the Reimbursement Contract including, but not limited to, definitions, coverage for Covered Policies as defined, exclusions, loss reporting, and examination procedures.

To be eligible for this optional coverage, the Company must return a fully executed Addendum No. 2 (two originals) no later than 5 p.m., Central Time, June 1, 2008. New Participants, as

 

     FHCF-2008K-2
  1    Rule 19-8.010, F.A.C.


defined in Article V of the Contract, must return a fully executed Addendum No. 2 (two originals) within thirty days of writing its first Covered Policy and prior to a Loss Occurrence, as both terms are defined in Article V of the Contract, under which the company would be eligible for reimbursements under the Contract. Any Company failing to meet the applicable deadline shall not be eligible for optional coverage under Addendum No. 2.

 

I.

TICL Coverage

The Company may purchase one of twelve optional coverages above its mandatory FHCF coverage provided for in the FHCF Reimbursement Contract. The TICL options allow the Company to purchase its mandatory FHCF premium share of one of the twelve optional layers of coverage. The optional layers of coverage above the mandatory FHCF coverage are $12 billion, $11 billion, $10 billion, $9 billion, $8 billion, $7 billion, $6 billion, $5 billion, $4 billion, $3 billion, $2 billion, or $1 billion.

The purchase of a TICL option increases the Company’s coverage under the Reimbursement Contract as calculated pursuant to Section 215.555(4)(d)2., Florida Statutes. The Company’s increased coverage shall be the FHCF reimbursement premium multiplied by the TICL multiple. Each TICL coverage multiple shall be calculated by dividing $12 billion, $11 billion, $10 billion, $9 billion, $8 billion, $7 billion, $6 billion, $5 billion, $4 billion, $3 billion, $2 billion, or $1 billion by the aggregate mandatory FHCF premium under the Reimbursement Contract paid by all companies.

In order to determine the Company’s total limit of coverage, the Company’s TICL coverage multiple is added to its regular Payout Multiple under the Reimbursement Contract. The total of these two multiples shall represent a number that, when multiplied by an insurer’s mandatory FHCF reimbursement premium under the Reimbursement Contract, defines the Company’s total limit of FHCF reimbursement coverage for the Contract Year under the Reimbursement Contract and Addendum No. 2. The SBA shall reimburse the Company for 45 percent, 75 percent, or 90 percent of its losses from each Covered Event in excess of the Company’s FHCF Retention under the Reimbursement Contract, plus 5 percent of the reimbursed losses to cover loss adjustment expense, not to exceed the Company’s total limit of coverage as defined above. The percentage shall be the same as the coverage level selected by the Company under its Reimbursement Contract.

 

II.

TICL Premium

The Company’s TICL premium shall be determined as specified in Section 215.555(5), Florida Statutes, and shall be due and payable in three installments on August 1, 2008, October 1, 2008, and December 1, 2008.

 

III.

Liability of the FHCF

Pursuant to Section 215.555(17)(g), Florida Statutes, the liability of the FHCF with respect to all TICL addenda shall not exceed $12 billion and shall depend on the number of insurers that select the TICL optional coverage and the TICL coverage options selected. In no circumstance shall the liability of the FHCF exceed its actual claims-paying capacity as defined in Section 215.555(2)(m), Florida Statutes.

The additional TICL capacity shall apply only to the additional coverage provided under the TICL options and shall not otherwise affect any insurer’s reimbursement from the FHCF if the insurer chooses not to select a TICL option to increase its limit of FHCF coverage.

 

     FHCF-2008K-2
  2    Rule 19-8.010, F.A.C.


IV.

Coordination of Coverage

Reimbursement amounts under TICL shall not be reduced by reinsurance paid or payable to the Company from sources other than the FHCF.

The TICL coverage shall be in addition to all other coverage provided by the FHCF under the Company’s Reimbursement Contract or other Addenda to the Reimbursement Contract, and shall be in addition to the claims-paying capacity of the FHCF as defined in Section 215.555(4)(c)l., Florida Statutes, but only with respect to those insurers that select the TICL coverage.

The TICL coverage selected is irrevocable and shall not overlap or duplicate coverage otherwise provided for in the Reimbursement Contract, or any Addenda to the Reimbursement Contract, or offset any co-payments or retention amounts.

 

V.

Addendum No. 2 TICL Coverage Election

ALL COMPANIES EXECUTING A REIMBURSEMENT CONTRACT MUST INDICATE BELOW THE LEVEL OF OPTIONAL TICL COVERAGE SELECTED, IF ANY. IF ADDENDUM NO. 2 IS RETURNED WITHOUT A TICL COVERAGE OPTION SELECTED, IT SHALL BE DEEMED BY THE STATE BOARD OF ADMINISTRATION TO BE A CHOICE TO REJECT TICL COVERAGE.

If your Company does not want to purchase any TICL coverage, print “No Coverage” on the line below and initial the box.

 

 
                 

By selecting an option below (initial the applicable box), the Company is selecting its proportionate share based on its mandatory FHCF reimbursement premium to the total mandatory FHCF reimbursement premiums paid by all companies of the layer of optional coverage.

 

       
                              
 

Company

selects

$1 billion

TICL Coverage Option

   OR   

Company

selects

$2 billion

TICL Coverage Option

   OR   

Company

selects

$3 billion

TICL Coverage Option

   OR   

Company

selects

$4 billion

TICL Coverage Option

  

 

     FHCF-2008K-2
  3    Rule 19-8.010, F.A.C.


       
                              
 

Company

selects

$5 billion

TICL Coverage Option

   OR   

Company

selects

$6 billion

TICL Coverage Option

   OR   

Company

selects

$7 billion

TICL Coverage Option

   OR   

Company

selects

$8 billion

TICL Coverage Option

  

 

       
                              
 

Company

selects

$9 billion

TICL Coverage Option

   OR   

Company

selects

$10 billion

TICL Coverage Option

   OR   

Company

selects

$11 billion

TICL Coverage Option

   OR     

Company

selects

$12 billion

TICL Coverage Option

  

 

VI.

Signatures

 

         
  United Property and Casualty Insurance Company      
By:        
  Name/Title       Date

 

Approved by:    
Florida Hurricane Catastrophe Fund    
By:   State Board of Administration of the State of Florida      
By:            
  Executive Director       Date
Approved as to legality:    
By:            
  Linda Lettera       Date
  General Counsel, FL Bar ID#311911      

 

     FHCF-2008K-2
  4    Rule 19-8.010, F.A.C.


LOGO    STATE BOARD OF ADMINISTRATION   

CHARLIE CRIST

GOVERNOR

AS CHAIRMAN

 

ALEX SINK

CHIEF FINANCIAL OFFICER

AS TREASURER

 

BILL McCOLLUM

ATTORNEY GENERAL

AS SECRETARY

 

BOB MILLIGAN

INTERIM EXECUTIVE DIRECTOR

   OF FLORIDA   
       
   1801 HERMITAGE BOULEVARD   
   TALLAHASSEE, FLORIDA 32308   
   (850) 488-4406   
       
   POST OFFICE BOX 13300   
   32317-3300   
       
       

 

ATTENTION: 

THIS ADDENDUM MUST BE COMPLETED, SIGNED, AND RETURNED BY ALL COMPANIES ELIGIBLE FOR COVERAGE UNDER THIS ADDENDUM REGARDLESS OF CHOICE TO ACCEPT OR REJECT THIS OPTIONAL COVERAGE

ADDENDUM NO. 4

to

REIMBURSEMENT CONTRACT

Effective: June 1, 2008

(Contract)

between

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St. Petersburg, FL

(Company)

NAIC # 10969

and

THE STATE BOARD OK ADMINISTRATION OF THE STATE OF FLORIDA (SBA) WHICH ADMINISTERS THE FLORIDA HURRICANE CATASTROPHE FUND (FHCF)

It is Hereby Agreed, effective at 12:00:01 a.m., Eastern Time, June 1, 2008, that this Contract shall be amended as follows:

ADDITIONAL COVERAGE OPTION (up to $10 million) PURSUANT TO SECTION 215.555(4)(b)4., FLORIDA STATUTES.

Pursuant to Section 215.555(4)(b)4., Florida Statutes, certain Companies may select additional FHCF reimbursement coverage of up to $10 million dollars. The additional premium to be charged for this additional reimbursement coverage shall be 50 percent of the additional reimbursement coverage provided, which shall include one prepaid full reinstatement. The additional premium shall be due and payable in three equal installments on August 1, 2008, on October 1, 2008, and on December 1, 2008.

The minimum retention level that must be retained associated with this additional coverage layer is 30 percent of the insurer’s surplus as of December 31, 2007, for each Covered Event. For an insurer which began writing property insurance in 2008 and did not have a surplus as of

 

     FHCF-2008K-4
  1    Rule 19-8.010, F.A.C.


December 31, 2007, surplus shall be deemed to be the surplus reported to the Office of Insurance Regulation at the time the insurer received its Certificate of Authority.

The reimbursement percentage applicable to this additional coverage shall be 100 percent, which includes reimbursement for loss adjustment expense as provided under the Reimbursement Contract.

This additional reimbursement coverage shall be in addition to all other coverage provided by the SBA under the Company’s Reimbursement Contract and shall be in addition to the claims-paying capacity of the FHCF as defined in Section 215.555(4)(e)1., Florida Statutes, but only with respect to those insurers that select the additional coverage option. Coverage provided in this additional coverage option shall otherwise be consistent with terms and conditions as relates to the Reimbursement Contract including, but not limited to, definitions, coverage for Covered Policies as defined, exclusions, loss reporting, and examination procedures.

While this additional coverage shall not reduce, overlap, or duplicate coverage otherwise provided for in the Reimbursement Contract or offset any co-payments, the amount of coverage selected herein is irrevocable. Any amount of additional coverage selected herein that would in effect overlap FHCF coverage otherwise provided for in the Reimbursement Contract, or any other Addenda to the Reimbursement Contract, shall be deemed by the FHCF to shift above the highest level of coverage otherwise provided by the FHCF.

The claims-paying capacity with respect to all other participating insurers, including eligible Companies that do not select the additional coverage option, shall be limited to their reimbursement premium’s proportionate share of the actual claims-paying capacity as defined in Section 215.555(4)(c)l., Florida Statutes and as provided for under the terms of the Reimbursement Contract, plus any coverage provided under any other Addenda to the Reimbursement Contract.

The optional coverage provided in this Addendum expires on May 31, 2009 and is not renewable. To be eligible for this optional coverage, the Company must return a fully executed Addendum No, 4 (two originals) no later than 5 p.m., Central Time, June 30, 2008. A Company failing to meet the applicable deadline shall not be eligible for optional coverage under Addendum No. 4 for the 2008 Contract Year. Furthermore, there shall be no coverage under this Addendum for any Loss Occurrence, as defined in Article V of the Contract and under which the Company would be eligible for reimbursements under the Contract, that occurs prior to the FHCF receiving the fully executed Addendum No. 4 (original copies).

New Participants, as defined in Article V of the Contract, must return a fully executed Addendum No. 4 (two originals) within thirty days of writing its first Covered Policy and prior to a Loss Occurrence under which the company would be eligible for reimbursements under the Contract. A Company failing to meet the applicable deadline shall not be eligible for optional coverage under Addendum No. 4 for the 2008 Contract Year.

ALL COMPANIES EXECUTING A REIMBURSEMENT CONTRACT AND ELIGIBLE FOR THIS ADDITIONAL COVERAGE MUST INDICATE BELOW THE AMOUNT OF ADDITIONAL COVERAGE SELECTED, IF ANY.

 

     FHCF-2008K-4
  2    Rule 19-8.010 F.A.C.


If your Company does not wish to purchase the additional coverage under this Addendum, print “No Coverage” on the line below and initial the box.

 

 
                 

If your Company is eligible for the coverage under this Addendum and elects to purchase this coverage, indicate the amount of additional coverage up to $10 million (there is no additional coverage available in excess of $10 million) on the line below:

$10 million

IF THIS ADDENDUM NO. 4 IS RETURNED WITHOUT THE BLANK SPACE IMMEDIATELY ABOVE FILLED IN WITH A DOLLAR AMOUNT. IT SHALL BE DEEMED BY THE STATE BOARD OF ADMINISTRATION TO BE A CHOICE TO REJECT THE ADDITIONAL COVERAGE.

 

         
  United Property and Casualty Insurance Company      
By:        
  Name/Title       Date

 

Approved by:    
Florida Hurricane Catastrophe Fund    
By:   State Board of Administration of the State of Florida      
By:            
  Robert Milligan       Date
  Interim Executive Director      
Approved as to legality:    
By:            
  Linda Lettera       Date
  General Counsel      
  FL Bar ID#311911      

 

     FHCF-2008K-4
  3    Rule 19-8.010, F.A.C.

Exhibit 10.6

MULTI-LINE PER RISK

EXCESS OF LOSS REINSURANCE AGREEMENT

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St Petersburg, Florida

EFFECTIVE: June 1, 2008

EXPIRATION: June 1, 2009

BMS


MULTI-LINE PER RISK EXCESS OF LOSS REINSURANCE AGREEMENT

TABLE OF CONTENTS

 

ARTICLE

  

DESCRIPTION

   PAGE
1   

Business Reinsured

   1
2   

Cover

   1
3   

Term

   2
4   

Territory

   3
5   

Exclusions

   3
6   

Definitions

   5
7   

Net Retained Lines

   8
8   

Premium

   8
9   

Reinstatement

   8
10   

Notice of Loss and Loss Settlements

   9
11   

Salvage and Subrogation

   9
12   

Offset

   9
13   

Unauthorized Reinsurance

   10
14   

Taxes

   11
15   

Currency

   12
16   

Delay, Omission or Error

   12
17   

Access to Records

   12
18   

Arbitration

   12
19   

Service of Suit

   14
20   

Insolvency

   15
21   

Third Party Rights

   16
22   

Severability

   16
23   

Confidentiality

   16
24   

Entire Agreement

   16
25   

Law and Jurisdiction

   17
26   

Intermediary

   17
27   

Mode of Execution

   17

Attachments:

Nuclear Incident Exclusion Clause - Physical Damage - Reinsurance - USA Terrorism Exclusion Clause

 

v.3499070

    
     BMS


MULTI-LINE PER RISK

EXCESS OF LOSS REINSURANCE AGREEMENT

issued to

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St Petersburg, Florida

(Hereinafter referred to as the “Company”)

by

the Subscribing Reinsurers executing the

attached Interests and Liabilities Contract

(Hereinafter referred to collectively as the “Reinsurer”)

ARTICLE 1

BUSINESS REINSURED

This Agreement shall cover losses occurring during the term of this Agreement under policies, contracts and/or binders of insurance (hereinafter “Policies”), in force at the effective date hereof or issued or renewed during the term of this Agreement by or on behalf of the company, subject to the terms, conditions and limitations hereinafter set forth and classified by the Company as Property and Casualty Business, including but not limited to Homeowners and Condominium owners Policies, written in the State of Florida.

ARTICLE 2

COVER

 

A.

As respects a loss arising out of Property Business, the Reinsurer will be liable in respect of each and every loss, each and every Risk, for the Ultimate Net Loss over and above an initial Ultimate Net Loss of $1,000,000 each and every loss, each and every Risk, subject to a limit of liability to the Reinsurer of $1,700,000 each and every loss, each and every Risk and further subject to a limit of liability to the Reinsurer of $1,700,000 each Loss Occurrence.

 

B.

As respects a loss arising out of a combination of Property Business and Casualty Business, the Reinsurer will be liable in respect of each and every Loss Occurrence, irrespective of the number and kinds of insureds or Policies in respect of Casualty Business, and each and every risk, in respect of Property Business, for the Ultimate Net Loss over and above an initial Ultimate Net loss of $1,000,000 each and every Loss Occurrence, subject to a limit of liability to the Reinsurer of $2,200,000 each and every loss Occurrence.

 

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In the event of a combined Property and Casualty Loss, for purposes of this Agreement Casualty losses will be included in Ultimate Net Loss but will not be recoverable hereunder.

It is warranted for purposes of this Agreement that the maximum Policy limit as respects Casualty Business is $500,000. Any amounts greater than this maximum limit will be reinsured elsewhere or so deemed.

The Company shall be the sole judge as to what constitutes one risk.

ARTICLE 3

TERM

This Agreement shall become effective at 12:01 a.m., Local Standard Time at the location of the risk, June 1, 2008, and shall apply to losses arising out of Loss Occurrences commencing at or after that time and date, and shall remain in full force and effect until 12:01 Local Standard Time at the location of the risk, June 1, 2009.

In the event that this Agreement is not renewed and at; the Company’s option, run-off coverage shall be provided for all policies in force at the date of non renewal until their natural expiry date. The Premium for this run-off period shall be calculated by applying the adjustable rate to the unearned Premium applicable to those policies in-force at the date of expiration.

Furthermore, with effect from 12:01 a.m. Local Standard Time at the location of the risk, June 1, 2008, the Company may terminate or reduce a Subscribing Reinsurer’s percentage share in this Agreement at any time by giving prior written notice to the Subscribing Reinsurer by certified mail in the event of any of the following:

 

1)

The Subscribing Reinsurer’s policyholders’ surplus falls by 20% or more; or

 

2)

A State Insurance Department or other legal authority orders the Subscribing Reinsurer to ceasing writing business;

 

3)

The Subscribing Reinsurer has become insolvent or has been placed into liquidation or receivership (whether voluntary or involuntary), or there has been instituted against it proceedings 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 operation; or

 

4)

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

 

5)

The Subscribing Reinsurer’s A.M. Best’s or Standard and Poors rating is downgraded below A- or by two grades at one time, namely A++ to A or A+ to A-.

 

6)

The Subscribing Reinsurer or ceases assuming new and renewal property treaty reinsurance business.

 

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In the event the Company terminates or reduces a Subscribing Reinsurer’s percentage share in accordance with this paragraph, the termination or reduction will be effective for losses occurring on or after the date of the written notice to the Subscribing Reinsurer and the premium due to the Subscribing Reinsurer for any reduced percentage share for the Agreement Year will be reduced on a pro rata basis for the portion of the Agreement Year which is unexpired as of that date. If a loss has been paid under this Agreement or a Subscribing Reinsurer’s share is terminated after November 30, 2008 then no such return premium shall be made.

For the purpose of this clause Full Premium shall mean the fully adjusted premium that would have been earned by the Reinsurer for the period of this Reinsurance Agreement had it not been terminated, taking into account any minimum premium condition and including any reinstatement premium in respect of losses occurring prior to the date of termination.

Should this Agreement expire while a loss covered hereunder is in progress, the Reinsurer shall be responsible for the loss in progress in the same manner and to the same extent it would have been responsible had the Agreement expired the day following the conclusion of the loss in progress.

ARTICLE 4

TERRITORY

This Agreement shall follow the territorial limits of the Company’s Original Policies.

ARTICLE 5

EXCLUSIONS

This Agreement does not apply to and specifically excludes the following:

 

1.

All excess of loss reinsurance assumed by the Company.

 

2.

Reinsurance assumed by the Company under obligatory reinsurance agreements, except as respects the following:

 

  a.

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

 

  b.

Reinsurance assumed as a result of the depopulation of the Florida Residential Property and Casualty Joint Underwriting Association and/or any reinsurance assumed from private carriers as a result of depopulations.

 

3.

Financial guarantee and/or insolvency business.

 

4.

Third party liability and medical payments business, unless written as part of a Homeowners/Condominium Policy.

 

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5.

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.

 

6.

All Accident and Health, Fidelity, Surety, Boiler and Machinery, Workers’ Compensation and Credit business.

 

7.

All Ocean Marine business.

 

8.

Flood and/or earthquake when written as such.

 

9.

Difference in Conditions insurances and similar kinds of insurances, however styled, insofar as they may provide coverage for losses from the following causes:

 

  a.

Flood, surface water, waves, tidal water or tidal waves, overflow of streams or other bodies of water or spray from any of the foregoing, all whether wind-driven or not, except when covering property in transit; or

 

  b.

Earthquake, landslide, subsidence or other earth movement or volcanic eruption, except when covering property in transit.

 

10.

Mortgage Impairment insurances and similar kinds of insurances, however styled.

 

11.

All automobile business.

 

12.

War Risks in accordance with the War exclusion clause of the original policies.

 

13.

Loss and/or Damage and/or Costs and/or Expenses arising from seepage and/or pollution and/or contamination, other than contamination from smoke. Nevertheless, this exclusion does not preclude any payment of the cost of removal of debris of property damaged by a loss otherwise covered hereunder, subject always to a limit of 25% of the Company’s property loss under the applicable original policy.

 

14.

Nuclear risks as defined in the “Nuclear Incident Exclusion Clause—Physical Damage Reinsurance” attached to and forming part of this Agreement.

 

15.

All liability arising out of mold, spores and/or fungus but this exclusion shall not apply to those losses which follow as a direct result of a loss caused by a peril otherwise covered hereunder.

 

16.

Terrorism, in accordance with NMA2930b, attached hereto.

 

17.

Any loss, costs or expense arising directly or indirectly related to lead based paint.

 

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ARTICLE 6

DEFINITIONS

 

A.

The term “Ultimate net loss” as used herein is defined as the sum or sums (including 90% of any extra contractual obligations, 90% of any loss in excess of policy limits, and any loss adjustment expenses 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 salvage, 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 Agreement are not recoverable until the Company’s Ultimate Net Loss has been ascertained.

 

B.

With respect to Property Business, the term “Loss Occurrence” shall mean the sum of all individual losses directly occasioned by any one disaster, accident or loss or series of disasters, accidents or losses arising out of one event which occurs within the area of one state of the United States or province of Canada and states or provinces contiguous thereto and to one another. However, the duration and extent of any one “Loss Occurrence” shall be limited to all individual losses sustained by the Company occurring during any period of 168 consecutive hours arising out of and directly occasioned by the same event except that the term “Loss Occurrence” shall be further defined as follows:

 

  (i)

As regards windstorm, hail, tornado, hurricane, cyclone, including ensuing collapse and water damage, all individual losses sustained by the Company occurring during any period of 96 consecutive hours arising out of and directly occasioned by the same event. However, the event need not be limited to one state or province or states or provinces contiguous thereto.

 

  (ii)

As regards riot, riot attending a strike, civil commotion, vandalism and malicious mischief, all individual losses sustained by the Company occurring during any period of 72 consecutive hours within the area of one municipality or county and the municipalities or counties contiguous thereto arising out of and directly occasioned by the same event. The maximum duration of 72 consecutive hours may be extended in respect of individual losses which occur beyond such 72 consecutive hours during the continued occupation of an Assured’s premises by strikers, provided such occupation commenced during the aforesaid period.

 

  (iii)

As regards earthquake (the epicenter of which need not necessarily be within the territorial confines referred to in the opening paragraph of this Article) and fire following directly occasioned by the earthquake, only those individual fire losses which commence during the period of 168 consecutive hours may be included in the Company’s “Loss Occurrence”.

 

  (iv)

As regards “Freeze”, only individual losses directly occasioned by collapse, breakage of glass and water damage (caused by bursting of frozen pipes and tanks) may be included in the Company’s “Loss Occurrence”.

 

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For all “Loss Occurrences”, other than (ii) above, the Company may choose the date and time when any such period of consecutive hours commences provided that it is not earlier than the date and time of the occurrence of the first recorded individual loss sustained by the Company arising out of that disaster, accident or loss and provided that only one such period of 168 consecutive hours shall apply with respect to one event, except for any “Loss Occurrence” referred to in sub-paragraph (i) above where only one such period of 96 consecutive hours shall apply with respect to one event, regardless of the duration of the event.

As respects those “Loss Occurrences” referred to in (ii) above, if the disaster, accident or loss occasioned by the event is of greater duration than 72 consecutive hours, then the Company may divide that disaster, accident or loss into two or more “Loss Occurrences” provided no two periods overlap and no individual loss is included in more than one such period and provided that no period commences earlier than the date and time of the occurrence of the first recorded individual loss sustained by the Company arising out of that disaster, accident or loss.

No individual losses occasioned by an event that would be covered by 96 hours clauses may be included in any “Loss Occurrence” claimed under the 168 hours provision.

Losses directly or indirectly occasioned by:

 

  (i)

loss of, alteration of, or damage to

or

 

  (ii)

a reduction in the functionality, availability or operation of

a computer system, hardware, programme, software, data, information repository, microchip, integrated circuit or similar device in computer equipment or non-computer equipment, whether the property of the policyholder of the Company or not, do not in and of themselves constitute an event unless arising out of one or more of the following perils:

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

 

C.

With respect to Casualty Business, the term “Loss Occurrence” as used in this Agreement shall mean each accident, casualty, disaster or loss, or series of accidents, casualties, disasters or losses, arising out of or caused by one event.

 

D.

The terms “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 any amount paid or payable by the Company in excess of its policy limits, but otherwise within the terms of its policy, as a result of an action against it by its insured or its insured’s assignee to recover damages the insured is legally obligated to pay because of the

 

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Company’s alleged or actual negligence or bad faith in rejecting a settlement within policy limits, or in discharging its duty to defend or prepare the defense in the trial of an action against its insured, or in discharging its duty to prepare or prosecute an appeal consequent upon such an action.

 

  2.

“Extra contractual obligations” shall mean any punitive, exemplary, compensatory or consequential damages, other than loss in excess of policy limits, paid or payable by the Company as a result of an action against it by its insured or its insured’s assignee, which action alleges negligence or bad faith on the part of the Company in handling a claim under a policy subject to this Agreement.

Notwithstanding anything stated herein, this Agreement 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, settlement of any claim covered hereunder.

Savings Clause (Applicable only if the Reinsurer is domiciled in the State of New York): In no event shall coverage be provided to the extent that such coverage is not permitted under New York law.

 

E.

The term “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 a pro rata share of the salaries and expenses of the Company’s field employees according to the time occupied adjusting such losses and expenses of the Company’s officials incurred in connection with the losses, but excluding salaries of the Company’s officials and any normal overhead charges, and declaratory judgment expenses or other legal expenses and costs incurred in connection with coverage questions and legal actions connected thereto.

 

F.

The term “Declaratory judgment expense” as used herein shall mean the Company’s own costs and legal expense incurred in direct connection with declaratory judgment actions brought to determine the Company’s defense and/or indemnification obligations that are assignable to specific claims arising out of policies reinsured by this Agreement, regardless of whether the declaratory judgment action is considered successful or unsuccessful. Any declaratory judgment expense will be deemed to have been incurred by the Company on the date of the original loss, if any, giving rise to the declaratory judgment action.

 

G.

The term “Gross Net Earned Premium Income” as used herein shall mean gross premiums earned during the period less cancellations and return premiums and less premiums paid for reinsurance, recoveries under which shall inure to the benefit of Reinsurers hereon.

 

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H.

The term “Agreement Year” as used herein shall be defined as the period from 12:01 a.m., Local Standard Time at the location of the risk, June 1, 2008, until 12:01 a.m., Local Standard Time at the location of the risk, June 1, 2009, However, if this Agreement is terminated, Agreement Year as used herein shall mean the period from 12:01 a.m., Local Standard Time at the location of the risk, June 1, 2008 through the effective date of termination.

ARTICLE 7

NET RETAINED LINES

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

It is understood and agreed that 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 reinsurers, whether specific or general, any amounts which may have become due from them, whether such inability arises from the insolvency of such other reinsurers or otherwise.

ARTICLE 8

PREMIUM

An annual deposit premium of $500,000 shall be payable to Reinsurers in four equal quarterly installments of $125,000 at July 1, 2008, October 1, 2008, January 1, 2009 and April 1, 2009.

As soon as practicable following the expiration of this Agreement, the Company will calculate a premium at a rate of .325% of the Gross Net Earned Premium Income.

Should the premium so calculated exceed the deposit premium paid in accordance with the paragraphs above, the Company will immediately pay the Reinsurer the difference. Should the calculated premium be less than the deposit premium, the Reinsurer shall immediately return the difference, subject to a minimum premium of $400,000.

ARTICLE 9

REINSTATEMENT

SECTION A only:

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 Loss Occurrence commences. For each amount of limit reinstated the Company agrees to pay the Reinsurer an additional premium calculated at pro rata of 50% of the Reinsurer’s premium, being pro rata only as to

 

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the fraction of the face value of this Agreement (i.e., the fraction of $1,700,000) so reinstated. Nevertheless, the Reinsurer’s liability for losses hereunder shall never exceed $1,700,000 in respect of each and every Loss, each and every Risk, and shall be further limited to $3,400,000 in all during the term of this Agreement.

ARTICLE 10

NOTICE OF LOSS AND LOSS SETTLEMENTS

The Company shall notify the Reinsurer promptly of all claims which, in the opinion of the Company, may involve the Reinsurer, and of all subsequent developments regarding these claims which may materially affect the position of the Reinsurer. The notification shall be made in the form of a report, submitted no less frequently than on a quarterly basis, that details losses paid and expected Ultimate Net Losses for each claim related to a Loss Occurrence subject to this Agreement.

All loss settlements made by the Company, provided they are within the terms of the Company’s original policies and of this Agreement, shall be binding upon Reinsurers and amounts falling to the share of Reinsurers shall be payable without delay upon reasonable evidence of the amount being given by the Company.

ARTICLE 11

SALVAGE AND SUBROGATION (BRMA 47E)

The Reinsurer shall be credited with salvage or subrogation recoveries (i.e., reimbursement obtained or recovery made by the Company, less loss adjustment expense incurred in obtaining such reimbursement or making such recovery) and receivables from future policyholder assessments on account of claims and settlements involving reinsurance hereunder. Salvage thereon 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 salvage or 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 12

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 the Agreement. 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.

 

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ARTICLE 13

UNAUTHORIZED REINSURANCE

(Applies only to a Reinsurer who does not qualify for full credit with any insurance regulatory authority having jurisdiction over the Company’s reserves.)

As regards policies or bonds issued by the Company coming within the scope of this Agreement, the Company agrees that when it shall file with the insurance regulatory authority or set up on its books reserves for unearned premium and 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 unearned premium (including but not limited to, the unearned portion of any deposit premium installment), known outstanding losses that have been reported to the Reinsurer and allocated loss adjustment expense relating thereto, and losses and allocated loss adjustment expense paid by the Company but not recovered from the Reinsurer, including ail case reserves plus any reasonable amount estimated to be unreported from known Loss Occurrences as shown in the statement prepared by the Company (hereinafter referred to as “Reinsurer’s Obligations”) by funds withheld, cash advances or a Letter of Credit. 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.

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 and containing provisions acceptable to the insurance regulatory authorities 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 be automatically extended for one year from its date of expiration or any future expiration date unless thirty (30) days (sixty (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.

The Reinsurer and Company agree that the Letters of Credit provided by the Reinsurer pursuant to the provisions of this Agreement may be drawn upon at any time, notwithstanding any other provision of this Agreement, 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:

 

  (a)

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

 

  (b)

to make refund of any sum which is in excess of the actual amount: required to pay the Reinsurer’s Obligations under this Agreement;

 

  (c)

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;

 

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  (d)

to pay the Reinsurer’s share of any other amounts the Company claims are due under this Agreement.

In the event the amount drawn by the Company on any Letter of Credit is in excess of the actual amount required for (a) or (c), or in the case of (d), 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.

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.

At annual intervals, 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:

 

  (a)

If the statement shows that the Reinsurer’s Obligations exceed the balance of credit as of the statement date, the Reinsurer shall, within thirty (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,

 

  (b)

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 thirty (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 14

TAXES

The Company will be liable for taxes (except Federal Excise Tax) on premiums reported to the Reinsurer hereunder.

Federal Excise Tax applies only to those Reinsurers, excepting Underwriters at Lloyd’s London and other Reinsurers exempt from the Federal Excise Tax, who are domiciled outside the United States of America.

The Reinsurer has agreed to allow for the purposes of paying the Federal Excise Tax 1% of the premium payable hereon to the extent such premium is subject to Federal Excise Tax.

In the event of any return of premium becoming due hereunder the Reinsurer will deduct 1% from the amount of the return of the Company or its agent should take steps to recover the Tax from the U.S. Government.

 

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ARTICLE 15

CURRENCY

The currency to be used for all purposes of this Agreement shall be United States of America currency.

ARTICLE 16

DELAY, OMISSION OR ERROR

Any inadvertent delay, omission or error shall not be held to relieve either party hereto from any liability which would attach to it hereunder if such delay, omission or error had not been made, providing such delay, omission or error is rectified upon discovery.

ARTICLE 17

ACCESS TO RECORDS

The Reinsurers or their designated representatives shall have free access at any reasonable time to view and/or copy all records of the Company which pertain in any way to this Agreement. This article shall survive termination and remain in force as long as any liability remains under this Agreement.

ARTICLE 18

ARBITRATION

Conditions Precedent As a condition precedent to any right of action under this Agreement, any dispute arising out of or in connection with this Agreement between the Company and any Reinsurer hereon (whether or not arising during the term of this Agreement or after expiration or termination of this Agreement), other than as to its actual formation or validity but including interpretation or implementation of its terms, will be submitted to the decision of a board of arbitration composed of two (2) arbitrators and an umpire meeting at a site in the city or town in which the Company is domiciled.

Submission to Arbitration Notice requesting arbitration or any other notice made in connection therewith will be in writing and sent certified or registered mail, return receipt requested. The notice requesting arbitration will state in particular all issues to be resolved in the view of the claimant, will appoint the arbitrator selected by the claimant and will set a date for the hearing, which date will be no sooner than ninety (90) days and no later than one hundred and fifty (150) days from the date that the notice requesting arbitration is mailed. Notwithstanding the foregoing, the board, at its discretion, may defer the date for hearing, but it is the express intention of the parties that any dispute shall be expeditiously and timely resolved but with all due consideration to the rights of the respective parties and the board shall be mindful of this intent. Within thirty (30) days of receipt of the claimant’s notice, the respondent will notify the claimant of any additional issues to be resolved in the arbitration and of the name of its appointed arbitrator.

 

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Arbitrator Board Membership The arbitrators will be active or retired disinterested officials of insurance or reinsurance companies or Underwriting Members of Lloyd’s who have experience of the class of business which is the subject matter of this Agreement. The Company and the Reinsurer as aforesaid will each appoint an arbitrator and the two (2) arbitrators will choose and appoint an umpire who will be an active or retired disinterested official of an insurance or reinsurance company or an Underwriting Member of Lloyd’s or an attorney before instituting the hearing. If the respondent fails to appoint its arbitrator within thirty (30) days after having received the claimant’s written request for arbitration, the claimant is authorized to and will appoint the second arbitrator. If the two (2) arbitrators fail to agree upon the appointment of an umpire within thirty (30) days after notification of the appointment of the second arbitrator, within ten (10) days thereof, the two (2) arbitrators will request the American Arbitration Association to appoint an umpire for the arbitration with the qualifications set forth above in this Article. Notwithstanding the appointment of an umpire by the American Arbitration Association, the arbitration proceedings shall not be governed by the American Arbitration Association’s commercial arbitration rules. The umpire will promptly notify in writing all parties to the arbitration of his selection.

Submission of Briefs The claimant and respondent will each submit initial briefs to the board of arbitration outlining the issues in dispute and the basis and reasons for their respective positions within thirty (30) days of the date of notice of appointment of the umpire. The claimant and the respondent may submit reply briefs within ten (10) days after filing of the initial brief(s). Initial and reply briefs may be amended by the submitting party at any time, but not later than ten (10) days prior to the date of commencement of the arbitration. Reasonable responses will be allowed at the arbitration to new material contained in any amendments filed to the briefs but not previously responded to.

Arbitration Award The board will make its award with regard to this Agreement recognizing the custom and the usage of the insurance and reinsurance business. The award will be in writing and will state the factual and a legal basis for the award. The award will be based upon a hearing in which evidence will be allowed and in which the formal rules of evidence will not apply, but in which cross examination and rebuttal will be allowed. At its own election or at the request of the board, either party may submit a post-hearing brief for consideration of the board in its decision within twenty (20) days of the close of the hearing. The board will make its award within thirty (30) days following the close of the hearing or the submission of post-hearing briefs, whichever is later, unless the parties consent to an extension. A decision by the majority of the members of the board will be final and binding upon all parties to the proceeding. Either party may apply to any court of competent jurisdiction for an order confirming the award; a judgment of such court will thereupon be entered on the award. If such an order is issued, the attorneys’ fees of the party so applying and court costs will be paid by the party against whom confirmation is sought

Arbitration Expenses Each party will bear the expense of the one arbitrator to be selected by it and will jointly and equally bear with the other party(ies) the expense of any stenographer requested, and of the umpire. The remaining costs of the arbitration proceedings will be finally allocated by the board.

Discovery Subject to customary and recognized legal rules of privilege, each party participating in the arbitration will have the obligation to produce as witnesses to the arbitration such of its employees or those of its affiliates or of its brokers or agents as any

 

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other participating party may request, providing always that the same witnesses and documents be relevant to the issues before the arbitration and provided further that the parties may mutually agree as to further discovery prior to the arbitration. The umpire will be the final judge of rules of privilege and as to relevancy of any witnesses and documents upon the petition of any participating party, and may require such disclosure as he or she sees fit.

Consolidation To the extent agreed by the Company, the original arbitrating Reinsurer and other Reinsurers hereon where the issues in dispute between the Company and the original arbitrating Reinsurer are related or largely identical or similar with issues in dispute between the Company and other Reinsurers hereon, all parties may join together in a consolidated arbitration under the terms and conditions contained in this Agreement to resolve all common issues, provided however, that:

 

a)

the two (2) arbitrators and umpire will be appointed by the Company and the original arbitrating Reinsurer;

 

b)

each party to a consolidated arbitration will have the right to its own attorney, position, and related claims and defenses;

 

c)

each party will not, in presenting its position, be prevented from presenting its position by the position put forth by any other party; and

 

d)

the cost and the expenses of the arbitration, including the fees of the arbitrators, exclusive of attorney’s fees, which will be borne exclusively by the respective retaining party, will be borne pro rata by each party participating in the consolidated arbitration.

Procedure To the extent not otherwise mutually agreed or provided for in this Article, the procedures and rules applicable to arbitration under the laws of the state in which the Company is domiciled, will govern the procedures of the arbitration with the appointed umpire fulfilling the role and authority of the judge unless the parties otherwise mutually agree.

ARTICLE 19

SERVICE OF SUIT

It is agreed that in the event of the failure of the Reinsurers hereon to pay any amount claimed to be due hereunder, the Reinsurers hereon, at the request of the Company, will submit to the jurisdiction of a Court of competent jurisdiction within the United States. Nothing in this Clause constitutes or should be understood to constitute a waiver of Reinsurers’ rights to commence an action in any Court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another Court as permitted by the laws of the United States or of any State in the United States. It is further agreed that service of process in such suit may be made upon Messrs Mendes and Mount, 750 Seventh Avenue, New York, New York 10019-6829, and that in any suit instituted against any one of them upon this Agreement, Reinsurers will abide by the final decision of such Court or of any Appellate Court in the event of an appeal.

 

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The above-named are authorized and directed to accept service of process on behalf of Reinsurers in any such suit and/or upon the request of the Company to give a written undertaking to the Company that they will enter a general appearance upon Reinsurers’ behalf In the event such a suit shall be instituted.

Further, pursuant to any statute of any state, territory or district of the United States which makes provision therefore, Reinsurers hereon hereby designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute, or his successor or successors in office, as their true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Company or any beneficiary hereunder arising out of this Agreement of insurance (or reinsurance), and hereby designate the above-named as the person to whom the said officer is authorized to mail such process or a true copy thereof.

ARTICLE 20

INSOLVENCY

In the event of the insolvency of the Company, the reinsurance under this Agreement shall be payable by the Reinsurer to the Company or its liquidator, receiver or statutory successor on the basis of the liability of the Company under the Original Policy or policies reinsured, without diminution because of the insolvency of the Company, except as provided by Section 4118 (a) of the New York Insurance Law except (a) where this Agreement specifically provides another payee for such insurance in the event of the insolvency of the Company and (b) where a Reinsurer(s) subscribing a participation hereunder with the consent of the original insured or insureds, has assumed such policy obligations of the Company to such payees.

If the Company should become insolvent, then the liquidator, receiver or statutory successor of the Company shall give written notice to the Reinsurer of the pendency of any claim against the Company which is likely to produce a loss under this Agreement within a reasonable time after such claim if filed in the insolvency proceeding; during the pendency of such claim, the Reinsurer under this Agreement may investigate such claim and interpose, at its own expense, in the proceeding where such claim is to be adjudicated, any defense or defenses which the Reinsurer may deem available to the Company or its liquidator or receiver or statutory successor. The expense thus incurred by the Reinsurer shall be chargeable, subject to court approval, against the insolvent Company as part of the expense of liquidation to the extent of the benefit which may accrue to the Company solely as a result of the defense undertaken by the Reinsurer.

If those Reinsurers subscribing a majority participation in this Agreement elect to interpose defense to a claim, the expense shall be apportioned in accordance with the terms of this Agreement as though such expenses had been incurred by the Company.

Should the Company go into liquidation or should a receiver be appointed the Reinsurer shall be entitled to deduct from any sums which may be due or may become due to the Company under this Agreement, any sums which are due to the Reinsurer by the Company under this Agreement and which are due at a fixed or stated date, as well as any other sums due to the Reinsurer which are permitted to be offset under applicable law.

 

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ARTICLE 21

THIRD PARTY RIGHTS (BRMA 52C)

This Agreement is solely between the Company and the Reinsurer, and in no instance shall any other party have any rights under this Agreement except as expressly provided otherwise in the Insolvency Article.

ARTICLE 22

SEVERABILITY

If any provision of this Agreement shall be rendered illegal or unenforceable by the laws, regulations or public policy of any state, such provision shall be considered void in such state, but this shall not affect the validity or enforceability of any other provision of this Agreement or the enforceability of such provision in any other jurisdiction.

ARTICLE 23

CONFIDENTIALITY

For a period of three years following the termination or expiration of this Agreement, the contracting parties undertake to regard the terms of this Agreement (and any confidential, proprietary information relating thereto provided in writing to such other party) as confidential, with the parties to effect the same prudence and care afforded by such party to its own confidential, proprietary information. Each party further agrees that it shall not disclose any of such information to any third party without the prior written consent of the other party or except as may be required by applicable law or regulation, or by legal process (including without limitation as may be required by United States Federal tax law or regulation), or to the auditors, professional advisors, accountants, retrocessionaires, related managing general agents, directors or officers of such party with a reasonable need to know such information. Except as expressly set forth above, the parties agree and acknowledge that this Article is not intended to restrict or limit the conduct of the other party’s current or proposed business.

ARTICLE 24

ENTIRE AGREEMENT (BRMA 74B)

This Agreement constitutes the entire agreement between the parties. In no event shall this Agreement provide any guarantee of profit, directly or indirectly, from the Reinsurer to the Company or from the Company to the Reinsurer. This Agreement may be clarified, amended or modified only by written agreement signed by both parties. Such written agreement shall become part of this Agreement.

 

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ARTICLE 25

LAW AND JURISDICTION

This Agreement shall be governed by the laws of the State of Florida and shall be subject to the jurisdiction of the courts of the United States of America (subject to the provisions of the Service of Suit Clause (U.S.A.).

ARTICLE 26

INTERMEDIARY

BMS Intermediaries Ltd., One America Square, London, EC3N 2LS is hereby recognized as the Intermediary negotiating this Agreement for all business hereunder. All communications (including but not limited to notices, statements, premiums, return premiums, commissions, taxes, losses, loss adjustment expense, salvages and loss settlements) relating thereto shall be transmitted to the Company or the Reinsurer through BMS Intermediaries Ltd. 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 only to constitute payment to the Company to the extent that such payments are actually received by the Company.

ARTICLE 27

MODE OF EXECUTION

A. This Agreement may be executed by:

 

  1.

an original written ink signature of paper documents;

 

  2.

an exchange of facsimile copies showing the original written ink signature of paper documents;

 

  3.

electronic signature technology employing computer software and a digital signature or digitizer pen pad to capture a person’s handwritten signature in such a manner that the signature is unique to the person signing, is under the sole control of the person signing, is capable of verification to authenticate the signature and is linked to the document signed in such a manner that if the data is changed, such signature is invalidated.

 

B.

The use of any one or a combination of these methods of execution shall constitute a legally binding and valid signing of this Agreement. This Agreement may be executed in one or more counterparts, each of which, when duly executed, shall be deemed an original.

Signed in St Petersburg, Florida this                          day of                  , 2008

 

For and on behalf of the Company
   

 

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TERRORISM EXCLUSION

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

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

 

  (i)

involves violence against one or more persons; or

 

  (ii)

involves damage to property; or

 

  (iii)

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

 

  (iv)

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

 

  (v)

is designed to interfere with or to disrupt an electronic system.

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

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

19/12/01

NMA2930B

 

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NUCLEAR INCIDENT EXCLUSION CLAUSE - PHYSICAL-DAMAGE - REINSURANCE - U.S.A.

 

1.

This Contract does not cover any loss or liability accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, from any Pool of Insurers or Reinsurers formed for the purpose of covering Atomic or Nuclear Energy risks.

 

2.

Without in any way restricting the operation of paragraph (1) of this Clause, this Contract does not cover any loss or liability accruing to the Reassured, directly or indirectly and whether as Insurer or Reinsurer, from any insurance against Physical Damage (including business interruption or consequential loss arising out of such Physical Damage) to:

 

  I.

Nuclear reactor power plants including all auxiliary property on the site, or

 

  II.

Any other nuclear reactor, installation, including laboratories handling radioactive materials in connection with reactor installations, and “critical facilities” as such, or

 

  III.

Installations for fabricating complete fuel elements or for processing substantial quantities of “special nuclear material,” and for reprocessing, salvaging, chemically separating, storing or disposing of “spent” nuclear fuel or waste materials, or

 

  IV.

Installations other than those listed in paragraph (2) III above using substantial quantities of radioactive isotopes or other products of nuclear fission.

 

3.

Without in any way restricting the operation of paragraphs (1) and (2) hereof, this Contract does not cover any loss or liability by radioactive contamination accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, from any insurance on property which is on the same site as a nuclear reactor power plant or other nuclear installation and which normally would be insured therewith except that this paragraph (3) shall not operate.

 

  (a)

where Reassured does not have knowledge of such nuclear reactor power plant or nuclear installation, or

 

  (b)

where the said insurance contains a provision excluding coverage for damage to property caused by or resulting from radioactive contamination, however caused. However, on and after 1st January, 1960 this sub-paragraph (b) shall only apply provided the said radioactive contamination exclusion provision has been approved by the Governmental Authority having jurisdiction thereof.

 

4.

Without in any way restricting the operation of paragraphs (1), (2) and (3) hereof, this Contract does not cover any loss or liability by radioactive contamination accruing to the Reassured, directly or indirectly, and whether as Insurer or Reinsurer, when such radioactive contamination is a named hazard specifically insured against.

 

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5.

It is understood and agreed that this Clause shall not extend to risks using radioactive isotopes in any form where the nuclear exposure is not considered by the Reassured to be the primary hazard.

 

6.

The term “special nuclear material” shall have the meaning given it in the Atomic Energy Act of 1954 or by any law amendatory thereof.

 

7.

Reassured to be sole judge of what constitutes:

 

  (a)

substantial quantities, and

 

  (b)

the extent of installation, plant or site.

Note - Without in any way restricting the operation of paragraph (I) hereof, it is understood and agreed that

 

  (a)

all policies issued by the Reassured on or before 31st December 1957 shall be free from the application of the other provisions of this Clause until expiry date or 31st December 1960 whichever first occurs whereupon all the provisions of this Clause shall apply.

 

  (b)

with respect to any risk located in Canada policies issued by the Reassured on or before 31st December 1958 shall be free from the application of the other provisions of this Clause until expiry date or 31st December 1960 whichever first occurs whereupon all the provisions of this Clause shall apply.

In accordance with NMA 1119 (12/12/57)

 

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Contract No. A84522002

INTERESTS AND LIABILITIES CONTRACT

to

MULTI-LINE PER RISK

EXCESS OF LOSS REINSURANCE AGREEMENT

issued to

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St Petersburg, Florida

(hereinafter referred to as the “Company”)

by

(hereinafter referred to as the “Subscribing Reinsurer”)

The Subscribing Reinsurer’s share in the Interests and Liabilities of the Reinsurers as set forth in the AGREEMENT attached hereto and made part of this Contract shall be for the percentage stated below.

The share of the Subscribing Reinsurer in the Interests and Liabilities of the Reinsurers in respect of the said AGREEMENT shall be separate and apart from the shares of the other Subscribing Reinsurers to the said AGREEMENT, and the Interests and Liabilities of the Subscribing Reinsurer shall not be joint with those of the other Subscribing Reinsurers and in no event shall the Subscribing Reinsurer participate in the Interests and Liabilities of the other Subscribing Reinsurers.

The terms of this Interests and Liabilities Contract shall be from 12:01 a.m. Local Standard Time at the location of the risk, 1 st  June, 2008, to 12:01 am Local Standard Time at the location of the risk, 1 st  June, 2009.

Signed in _________________ this _____ day of ____________, 2008

 

   

 

For and on behalf of the Subscribing Reinsurer:

   

Participation hereon:

 

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Exhibit 10.7

REINSTATEMENT PREMIUM PROTECTION

REINSURANCE AGREEMENT

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St: Petersburg, Florida

EFFECTIVE:     June 1, 2008

EXPIRATION:  June 1, 2009

 

BMS


REINSTATEMENT PREMIUM PROTECTION REINSURANCE AGREEMENT

TABLE OF CONTENTS

 

ARTICLE

  

DESCRIPTION

   PAGE

1

  

Business Reinsured

   1

2

  

Term

   1

3

  

Concurrency of Conditions

   2

4

  

Premium

   2

5

  

Notice of Loss and Loss Settlements

   3

6

  

Salvage and Subrogation

   4

7

  

Offset

   4

8

  

Unauthorized Reinsurance

   4

9

  

Taxes

   6

10

  

Currency

   6

11

  

Delay, Omission or Error

   6

12

  

Access to Records

   6

13

  

Arbitration

   7

14

  

Service of Suit

   9

15

  

Insolvency

   9

16

  

Third Party Rights

   10

17

  

Severability

   10

18

  

Confidentiality

   10

19

  

Entire Agreement

   11

20

  

Law and Jurisdiction

   11

21

  

Intermediary

   11

22

  

Mode of Execution

   11

 

BMS


REINSTATEMENT PREMIUM PROTECTION REINSURANCE AGREEMENT

issued to

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St Petersburg, Florida

(hereinafter referred to as the “Company”)

by

the Subscribing Reinsurers executing the

attached Interests and Liabilities Contract

(hereinafter referred to as the “Reinsurer”)

ARTICLE 1

BUSINESS REINSURED

By this Agreement the Reinsurer agrees to indemnify the Company for 100% of any net reinstatement premium which the Company pays or becomes liable to pay as a result of loss occurrences commencing during the Term of this Agreement under the provisions of the First Layer of the Company’s Property Catastrophe Excess of Loss Reinsurance Agreement, (BMS Policy No, A84522005, Schedule A) effective June 1, 2008 (hereinafter referred to as the “Original Agreement”), subject to the terms, conditions and limitations hereinafter set forth.

ARTICLE 2

TERM

This Agreement shall become effective at 12:01 a.m., Local Standard Time at the location where the loss occurrence commences, June 1, 2008, with respect to reinstatement premium payable by the Company under the provisions of the original Agreement as a result of losses arising out of loss occurrences commencing at or after that time and date, and shall remain in full force and effect until 12:01 a.m. Local Standard Time at the location where the loss occurrence commences, June 1, 2009.

The Company may terminate or reduce a Subscribing Reinsurer’s percentage share in this Agreement at any time by giving prior written notice to the Subscribing Reinsurer by certified mail in the event of any of the following:

 

1)

The Subscribing Reinsurer’s policyholders’ surplus falls by 20% or more; or

 

2)

A State Insurance Department or other legal authority orders the Subscribing Reinsurer to cease writing business; or

 

3)

The Subscribing Reinsurer has become insolvent or has been placed into liquidation or receivership (whether voluntary or involuntary), or there has been instituted against it proceedings for the appointment of a receiver, liquidator, rehabilitator, conservator, or

 

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trustee in bankruptcy, or other agent known by whatever name, to take possession of its assets or control of its operation; or

 

4)

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

 

5)

The Subscribing Reinsurer ceases assuming new and renewal property treaty reinsurance business; or

 

6)

The Subscribing Reinsurer’s A.M. Best’s or Standard and Poor’s rating is downgraded below A.

In the event the Company terminates or reduces a Subscribing Reinsurer’s percentage share in accordance with this paragraph, the termination or reduction will be effective for losses occurring on or after the date of the written notice to the Subscribing Reinsurer and the premium due to the Subscribing Reinsurer for any reduced percentage share for the Agreement Year will be reduced on a pro rata basis for the portion of the Agreement Year which is unexpired as of that date. If a loss has been paid under this Agreement or a Subscribing Reinsurer’s share is terminated after November 30, 2008 then no such return premium shall be made.

For the purpose of this clause Full Premium shall mean the fully adjusted premium that would have been earned by the Reinsurer for the period of this Reinsurance Agreement had it not been terminated, taking into account any minimum premium condition and including any reinstatement premium in respect of losses occurring prior to the date of termination.

Should this Agreement expire while a loss covered hereunder is in progress, the Reinsurer shall be responsible for the loss in progress in the same manner and to the same extent it would have been responsible had the Agreement expired the day following the conclusion of the loss in progress.

ARTICLE 3

CONCURRENCY OF CONDITIONS

It is agreed that this Agreement will follow the terms, conditions, exclusions, definitions, warranties and settlement of the Company under the Original Agreement, which are not inconsistent with the provisions of this Agreement.

The Company shall advise the Reinsurer of any material changes in the Original Agreement which may affect the liability of the Reinsurer under this Agreement.

ARTICLE 4

PREMIUM

 

A.

As premium for the reinsurance provided hereunder for the Term of this Agreement, the Company shall pay the Reinsurer the product of the following:

 

  1.

A “Reinstatement Factor” of 1.27 times

 

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  2.

The Final Adjusted Rate on Line under the Original Agreement; times

 

  3.

The final adjusted premium paid by the Company under the Original Agreement.

“Final Adjusted Rate on Line” as used herein shall mean the final adjusted premium paid by the Company under the Original Agreement divided by $43,004,587.

 

B.

The Company shall pay the Reinsurer a deposit premium of $6,697,964, which is payable in four installments. The first three installments of $1,674,491 on July 1, 2008, October 1, 2008, and January 1, 2009. The fourth installment shall be equal to the adjusted deposit premium, computed in accordance with paragraph C below and is due as promptly as possible after the reinsurance premium under the Original Agreement has been finally determined. However, in the event this Agreement is terminated, there shall be no deposit premium installments due after the effective date of termination.

 

C.

“Adjusted Deposit Premium” as used herein shall mean:

 

  1.

The premium due hereunder, computed in accordance with the paragraph A above; less

 

  2.

The first, second and third installments paid in accordance with paragraph B above.

 

D.

As promptly as possible after the reinsurance premium under the Original Agreement has been finally determined, the Company shall provide a report to the Reinsurer setting forth the premium due, computed in accordance with the paragraph A above, and the adjusted deposit premium, computed in accordance with paragraph C above. In the event this Agreement is terminated prior to April 1, 2009, any additional premium due the Reinsurer or return premium due the Company shall be remitted promptly.

 

E.

At the beginning of each Agreement Quarter, the Company shall furnish the Reinsurer with such information as the Reinsurer may require to complete its Annual Convention Statement.

 

F.

“Agreement Quarter” as used herein shall mean each of the following periods; June 1 through August 31 of 2008; September 1 through November 30 of 2008; December 1, 2008 through February 28, 2009; and March 1 through May 31 of 2009.

ARTICLE 5

NOTICE OF LOSS AND LOSS SETTLEMENTS

The Company shall notify the Reinsurer promptly of all claims which, in the opinion of the Company, may involve the Reinsurer, and of all subsequent developments regarding these claims which may materially affect the position of the Reinsurer. The notification shall be made in the form of a report, submitted no less frequently than on a quarterly basis, that details losses paid and expected Ultimate Net Losses for each claim related to a Loss Occurrence subject to this Agreement.

 

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All loss settlements made by the Company, provided they are within the terms of the Company’s original policies and of this Agreement, shall be binding upon Reinsurers and amounts falling to the share of Reinsurers shall be payable without delay upon reasonable evidence of the amount being given by the Company.

ARTICLE 6

SALVAGE AND SUBROGATION (BRMA 47E)

The Reinsurer shall be credited with salvage or subrogation recoveries (i.e., reimbursement obtained or recovery made by the Company, less loss adjustment expense incurred in obtaining such reimbursement or making such recovery) on account of claims and settlements involving reinsurance hereunder. Salvage thereon 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 salvage or 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 7

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 the Agreement. 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 8

UNAUTHORIZED REINSURANCE

(Applies only to a Reinsurer who does not qualify for full credit with any insurance regulatory authority having jurisdiction over the Company’s reserves.)

As regards policies or bonds issued by the Company coming within the scope of this Agreement, the Company agrees that when it shall file with the insurance regulatory authority or set up on its books reserves for unearned premium and 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 unearned premium (including but not limited to, the unearned portion of any deposit premium installment), known outstanding losses that have been reported to the Reinsurer and allocated loss adjustment expense relating thereto, and losses and allocated loss adjustment expense paid by the Company but not recovered from the Reinsurer, including all case reserves plus any reasonable amount estimated to be unreported from known Loss Occurrences as shown in the statement prepared by the Company (hereinafter referred to as “Reinsurer’s Obligations”) by funds withheld, cash advances or a Letter of Credit. 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.

 

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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 and containing provisions acceptable to the insurance regulatory authorities 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 be automatically extended for one year from its date of expiration or any future expiration date unless thirty (30) days (sixty (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.

The Reinsurer and Company agree that the Letters of Credit provided by the Reinsurer pursuant to the provisions of this Agreement may be drawn upon at any time, notwithstanding any other provision of this Agreement, 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:

 

  (a)

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

 

  (b)

to make refund of any sum which is in excess of the actual amount required to pay the Reinsurer’s Obligations under this Agreement;

 

  (c)

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;

 

  (d)

to pay the Reinsurer’s share of any other amounts the Company claims are clue under this Agreement.

In the event the amount drawn by the Company on any Letter of Credit is in excess of the actual amount required for (a) or (c), or in the case of (d), 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.

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.

At annual intervals, 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:

 

  (a)

If the statement shows that the Reinsurer’s Obligations exceed the balance of credit as of the statement date, the Reinsurer shall, within thirty (30) days after receipt of

 

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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.

 

  (b)

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 thirty (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 9

TAXES

The Company will be liable for taxes (except Federal Excise Tax) on premiums reported to the Reinsurer hereunder.

Federal Excise Tax applies only to those Reinsurers, excepting Underwriters at Lloyd’s London and other Reinsurers exempt from the Federal Excise Tax, who are domiciled outside the United States of America.

The Reinsurer has agreed to allow for the purposes of paying the Federal Excise Tax 1% of the premium payable hereon to the extent such premium is subject to Federal Excise Tax.

In the event of any return of premium becoming due hereunder the Reinsurer will deduct 1% from the amount of the return of the Company or its agent should take steps to recover the Tax from the U.S. Government.

ARTICLE 10

CURRENCY

The currency to be used for all purposes of this Agreement shall be United States of America currency.

ARTICLE 11

DELAY, OMISSION OR ERROR

Any inadvertent delay, omission or error shall not be held to relieve either party hereto from any liability which would attach to it hereunder if such delay, omission or error had not been made, providing such delay, omission or error is rectified upon discovery.

ARTICLE 12

ACESS TO RECORDS

The Reinsurers or their designated representatives shall have free access at any reasonable time to all records of the Company which pertain in any way to this Agreement.

 

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ARTICLE 13

ARBITRATION

Conditions Precedent As a condition precedent to any right of action under this Agreement, any dispute arising out of or in connection with this Agreement between the Company and any Reinsurer hereon (whether or not arising during the term of this Agreement or after expiration or termination of this Agreement), other than as to its actual formation or validity but including interpretation or implementation of its terms, will be submitted to the decision of a board of arbitration composed of two (2) arbitrators and an umpire meeting at a site in the city or town in which the Company is domiciled.

Submission to Arbitration Notice requesting arbitration or any other notice made in connection therewith will be in writing and sent certified or registered mail, return receipt requested. The notice requesting arbitration will state in particular all issues to be resolved in the view of the claimant, will appoint the arbitrator selected by the claimant and will set a date for the hearing, which date will be no sooner than ninety (90) days and no later than one hundred and fifty (150) days from the date that the notice requesting arbitration is mailed. Notwithstanding the foregoing, the board, at its discretion, may defer the date for hearing, but it is the express intention of the parties that any dispute shall be expeditiously and timely resolved but with all due consideration to the rights of the respective parties and the board shall be mindful of this intent. Within thirty (30) days of receipt of the claimant’s notice, the respondent will notify the claimant of any additional issues to be resolved in the arbitration and of the name of its appointed arbitrator.

Arbitrator Board Membership The arbitrators will be active or retired disinterested officials of insurance or reinsurance companies or Underwriting Members of Lloyd’s who have experience of the class of business which is the subject matter of this Agreement. The Company and the Reinsurer as aforesaid will each appoint an arbitrator and the two (2) arbitrators will choose and appoint an umpire who will be an active or retired disinterested official of an insurance or reinsurance company or an Underwriting Member of Lloyd’s or an attorney before instituting the hearing. If the respondent fails to appoint its arbitrator within thirty (30) days after having received the claimant’s written request for arbitration, the claimant is authorised to and will appoint the second arbitrator, If the two (2) arbitrators fail to agree upon the appointment of an umpire within thirty (30) days after notification of the appointment of the second arbitrator, within ten (10) days thereof, the two (2) arbitrators will request the American Arbitration Association to appoint an umpire for the arbitration with the qualifications set forth above in this Article. Notwithstanding the appointment of an umpire by the American Arbitration Association, the arbitration proceedings shall not be governed by the American Arbitration Association’s commercial arbitration rules. The umpire will promptly notify in writing all parties to the arbitration of his selection.

Submission of Briefs The claimant and respondent will each submit initial briefs to the board of arbitration outlining the issues in dispute and the basis and reasons for their respective positions within thirty (30) days of the date of notice of appointment of the umpire. The claimant and the respondent may submit reply briefs within ten (10) days after filing of the initial brief(s). Initial and reply briefs may be amended by the submitting party at any time, but not later than ten (10) days prior to the date of commencement of the arbitration. Reasonable

 

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responses will be allowed at the arbitration to new material contained in any amendments filed to the briefs but not previously responded to.

Arbitration Award The board will make its award with regard to this Agreement recognising the custom and the usage of the insurance and reinsurance business. The award will be in writing and will state the factual and a legal basis for the award. The award will be based upon a hearing in which evidence will be allowed and in which the formal rules of evidence will not apply, but in which cross examination and rebuttal will be allowed. At its own election or at the request of the board, either party may submit a post-hearing brief for consideration of the board in its decision within twenty (20) days of the close of the hearing. The board will make its award within thirty (30) days following the close of the hearing or the submission of post-hearing briefs, whichever is later, unless the parties consent to an extension. A decision by the majority of the members of the board will be final and binding upon all parties to the proceeding. Either party may apply to any court of competent jurisdiction for an order confirming the award; a judgement of such court will thereupon be entered on the award. If such an order is issued, the attorneys’ fees of the party so applying and court costs will be paid by the party against whom confirmation is sought

Arbitration Expense Each party will bear the expense of the one arbitrator to be selected by it and will jointly and equally bear with the other party(ies) the expense of any stenographer requested, and of the umpire. The remaining costs of the arbitration proceedings will be finally allocated by the board.

Discovery Subject to customary and recognised legal rules of privilege, each party participating in the arbitration will have the obligation to produce as witnesses to the arbitration such of its employees or those of its affiliates or of its brokers or agents as any other participating party may request, providing always that the same witnesses and documents be relevant to the issues before the arbitration and provided further that the parties may mutually agree as to further discovery prior to the arbitration. The umpire will be the final judge of rules of privilege and as to relevancy of any witnesses and documents upon the petition of any participating party, and may require such disclosure as he or she sees fit.

Consolidation To the extent agreed by the Company, the original arbitrating Reinsurer and other Reinsurers hereon where the issues in dispute between the Company and the original arbitrating Reinsurer are related or largely identical or similar with issues in dispute between the Company and other Reinsurers hereon, all parties may join together in a consolidated arbitration under the terms and conditions contained in this Agreement to resolve all common issues, provided however, that;

 

a)

the two (2) arbitrators and umpire will be appointed by the Company and the original arbitrating Reinsurer;

 

b)

each party to a consolidated arbitration will have the right to its own attorney, position, and related claims and defences;

 

c)

each party will not, in presenting its position, be prevented from presenting its position by the position put forth by any other party; and

 

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d)

the cost and the expenses of the arbitration, including the fees of the arbitrators, exclusive of attorney’s fees, which will be borne exclusively by the respective retaining party, will be borne pro rata by each party participating in the consolidated arbitration.

Procedure To the extent not otherwise mutually agreed or provided for in this Article, the procedures and rules applicable to arbitration under the laws of the state in which the Company is domiciled, will govern the procedures of the arbitration with the appointed umpire fulfilling the role and authority of the judge unless the parties otherwise mutually agree.

ARTICLE 14

SERVICE OF SUIT

It is agreed that in the event of the failure of the Reinsurers hereon to pay any amount claimed to be due hereunder, the Reinsurers hereon, at the request of the Company, will submit to the jurisdiction of a Court of competent jurisdiction within the United States. Nothing in this Clause constitutes or should be understood to constitute a waiver of Reinsurers’ rights to commence an action in any Court of competent jurisdiction in the United States, to remove an action to a United States District Court, or to seek a transfer of a case to another Court as permitted by the laws of the United States or of any State in the United States. It is further agreed that service of process in such suit may be made upon Messrs Mendes and Mount, 750 Seventh Avenue, New York, New York 10019-6829, and that in any suit instituted against any one of them upon this Agreement, Reinsurers will abide by the final decision of such Court or of any Appellate Court in the event of an appeal.

The above-named are authorized and directed to accept service of process on behalf of Reinsurers in any such suit and/or upon the request of the Company to give a written undertaking to the Company that they will enter a general appearance upon Reinsurers’ behalf in the event such a suit shall be instituted.

Further, pursuant to any statute of any state, territory or district of the United States which makes provision therefore, Reinsurers hereon hereby designate the Superintendent, Commissioner or Director of Insurance or other officer specified for that purpose in the statute, or his successor or successors in office, as their true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Company or any beneficiary hereunder arising out of this Agreement of insurance (or reinsurance), and hereby designate the above-named as the person to whom the said officer is authorized to mail such process or a true copy thereof.

ARTICLE 15

INSOLVENCY

In the event of the insolvency of the Company, the reinsurance under this Agreement shall be payable by the Reinsurer to the Company or its liquidator, receiver or statutory successor on the basis of the liability of the Company under the Original Policy or policies reinsured, without diminution because of the insolvency of the Company, except as provided by Section 4118 (a) of the New York Insurance Law except (a) where this Agreement specifically provides another payee for such insurance in the event of the insolvency of the Company and (b) where a

 

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Reinsurer(s) subscribing a participation hereunder with the consent of the original insured or insureds, has assumed such policy obligations of the Company to such payees.

If the Company should become insolvent, then the liquidator, receiver or statutory successor of the Company shall give written notice to the Reinsurer of the pendency of any claim against the Company which is likely to produce a loss under this Agreement within a reasonable time after such claim if filed in the insolvency proceeding; during the pendency of such claim, the Reinsurer under this Agreement may investigate such claim and interpose, at its own expense, in the proceeding where such claim is to be adjudicated, any defense or defenses which the Reinsurer may deem available to the Company or its liquidator or receiver or statutory successor. The expense thus incurred by the Reinsurer shall be chargeable, subject to court approval, against the insolvent Company as part of the expense of liquidation to the extent of the benefit which may accrue to the Company solely as a result of the defense undertaken by the Reinsurer.

If those Reinsurers subscribing a majority participation in this Agreement elect to interpose defense to a claim, the expense shall be apportioned in accordance with the terms of this Agreement as though such expenses had been incurred by the Company.

Should the Company go into liquidation or should a receiver be appointed the Reinsurer shall be entitled to deduct from any sums which may be due or may become due to the Company under this Agreement, any sums which are due to the Reinsurer by the Company under this Agreement and which are due at a fixed or stated date, as well as any other sums due to the Reinsurer which are permitted to be offset under applicable law.

ARTICLE 16

THIRD PARTY RIGHTS (BRMA 52C)

This Agreement is solely between the Company and the Reinsurer, and in no instance shall any other party have any tights under this Agreement except as expressly provided otherwise in the Insolvency Article.

ARTICLE 17

SEVERABILITY

If any provision of this Agreement shall be rendered illegal or unenforceable by the laws, regulations or public policy of any state, such provision shall be considered void in such state, but this shall not affect the validity or enforceability of any oilier provision of this Agreement or the enforceability of such provision in any other jurisdiction.

ARTICLE 18

CONFIDENTIALITY

For a period of three years following the termination or expiration of this Agreement, the contracting parties undertake to regard the terms of this Agreement (and any confidential, proprietary information relating thereto provided in writing to such other party) as confidential, with the parties to effect the same prudence and care afforded by such party to its own confidential, proprietary information. Each party further agrees that it shall not disclose any of

 

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such information to any third party without the prior written consent of the other party or except as may be required by applicable law or regulation, or by legal process (including without limitation as may be required by United States Federal tax law or regulation), or to the auditors, professional advisors, accountants, retrocessionaires, related managing general agents, directors or officers of such party with a reasonable need to know such information. Except as expressly set forth above, the parties agree and acknowledge that this Article is not intended to restrict or limit the conduct of the other party’s current or proposed business.

ARTICLE 19

ENTIRE AGREEMENT (BRMA 74B)

This Agreement constitutes the entire agreement between the parties. In no event shall this Agreement provide any guarantee of profit, directly or indirectly, from the Reinsurer to the Company or from the Company to the Reinsurer. This Agreement may be clarified, amended or modified only by written agreement signed by both parties. Such written agreement shall become part of this Agreement.

ARTICLE 20

LAW AND JURISDICTION

This Agreement shall be governed by the laws of the State of Florida and shall be subject to the jurisdiction of the courts of the United States of America (subject to the provisions of the Service of Suit Clause (U.S.A.).

ARTICLE 21

INTERMEDIARY

BMS Intermediaries Ltd., One America Square, London, EC3N 2LS is hereby recognized as the Intermediary negotiating this Agreement for all business hereunder. All communications (including but not limited to notices, statements, premiums, return premiums, commissions, taxes, losses, loss adjustment expense, salvages and loss settlements) relating thereto shall be transmitted to the Company or the Reinsurer through BMS Intermediaries Ltd. 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 only to constitute payment to the Company to the extent that such payments are actually received by the Company.

ARTICLE 22

MODE OF EXECUTION

 

A.

This Agreement may be executed by:

 

  1.

an original written ink signature of paper documents;

 

  2.

an exchange of facsimile copies showing the original written ink signature of paper documents;

 

  3.

electronic signature technology employing computer software and a digital signature or digitizer pen pad to capture a person’s handwritten signature in such a manner

 

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that the signature is unique to the person signing, is under the sole control of the person signing, is capable of verification to authenticate the signature and is linked to the document signed in such a manner that if the data is changed, such signature is invalidated.

 

B.

The use of any one or a combination of these methods of execution shall constitute a legally binding and valid signing of this Agreement. This Agreement may be executed in one or more counterparts, each of which, when duly executed, shall be deemed an original.

Signed in St Petersburg, Florida this 20 day of June, 2008

 

For and on behalf of the Company

   

 

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Contract No. A84522023

INTERESTS AND LIABILITIES CONTRACT

to

REINSTATEMENT PREMIUM PROTECTION

REINSURANCE AGREEMENT

issued to

UNITED PROPERTY AND CASUALTY INSURANCE COMPANY

St Petersburg, Florida

(hereinafter referred to as the “Company”)

by

(hereinafter referred to as the “Subscribing Reinsurer”)

The Subscribing Reinsurer’s share in the Interests and Liabilities of the Reinsurers as set forth in the AGREEMENT attached hereto and made part of this Contract shall be for the percentage stated below.

The share of the Subscribing Reinsurer in the Interests and Liabilities of the Reinsurers in respect of the said AGREEMENT shall be separate and apart from the shares of the other Subscribing Reinsurers to the said AGREEMENT, and the Interests and Liabilities of the Subscribing Reinsurer shall not be joint with those of the other Subscribing Reinsurers and in no event shall the Subscribing Reinsurer participate in the Interests and Liabilities of the other Subscribing Reinsurers.

The terms of this Interests and Liabilities Contract shall be from 12:01 Local Standard Time at the location where the loss occurrence commences, 1st June, 2008 until Eastern 12:01 Local Standard Time at the location where the loss occurrence commences 1 st  June, 2009.

Signed in                  . this          day of              , 2008

 

For and on behalf of the Subscribing Reinsurer:
   

Participation hereon:

 

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     BMS

Exhibit 10.8

PROMISSORY NOTE

FMG ACQUISITION CORP.

11% NOTE DUE SEPTEMBER 29, 2011

September 29,2008

This Note was issued with original issue discount within the meaning of section 1273(a) of the U.S. Internal Revenue Code of 1986. The issue price is $930 for each $1,000 of stated principal amount. The original issue discount is $70 for each $1,000 of stated principal amount. The issue date is September 29,2008. The yield to maturity is 13.9% compounded semi-annually.

FOR VALUE RECEIVED, the undersigned, FMG ACQUISITION CORP. (the “Company”), a corporation organized and existing under the laws of the State of Delaware, hereby promises to pay to                      or registered assigns, the principal sum of                      (or so much thereof as shall not have been prepaid) on September 29, 2011, with interest (computed on the basis of a 360-day year of twelve 30 day months) on the unpaid balance hereof at the rate of 11% per annum from the date hereof, payable semiannually, on each of the 1st day of October and April, commencing with April 1, 2009, until the principal hereof shall have become due and payable, and all other amounts owed by the Company to the holder of this Note hereunder.

Payments of the principal and of the interest with respect to this Note are to be made in lawful money of the United States of America at New York, New York or at such other place as the Company shall have designated by written notice to the holder of this Note as provided in the Note Purchase Agreement referred to below.

The Company further agrees to pay interest on the aggregate unpaid principal amount hereof from the date hereof until the principal amount shall be paid in full, at the rates of interest and at the times set forth in the Note Purchase Agreement referred to below.

This Note is one of a series of Notes issued pursuant to the Note Purchase Agreement, dated as of August 15,2008 (as from time to time amended, the “ Note Purchase Agreement ”), between the Company and the respective Purchasers named therein and is entitled to the benefits thereof. Unless otherwise indicated, capitalized terms used in this Note shall have the respective meanings ascribed to such terms in the Note Purchase Agreement.

The Company hereby expressly waives notice of default, presentment or demand for payment, protest or notice of nonpayment or dishonor, or notice or demands of any kind.

Upon surrender of this Note for transfer accompanied by a written instrument of transfer duly executed, by the registered holder hereof or such holder’s attorney duly authorized in


writing, a new Note for a like principal amount will be issued to, and registered in the name of, the transferee. Prior to due presentment for transfer, the Company may treat the person in whose name this Note is registered as the owner hereof for the purpose of receiving payment and for all other purposes, and the Company will not be affected by any notice to the contrary.

This Note is also subject to optional prepayment, in whole at the times and on the terms specified in the Note Purchase Agreement, but not otherwise.

If an Event of Default occurs and is continuing, the principal of this Note may be declared or otherwise become due and payable in the manner, at the price and with the effect provided in the Note Purchase Agreement.

This Note shall be construed and enforced in accordance with, and the rights of the Company and the holder of this Note shall be governed by, the laws of the State of Delaware, excluding choice-of-law principles of the law of such State that would permit the application of the laws of a jurisdiction other than such State.

[Remainder of this page is intentionally left blank.]

 

2


FMG ACQUISITION CORP.
By:  

 

Name:   Gordon G. Pratt
Title:   Chairman and President

 

3

UNITED INSURANCE HOLDINGS CORP.

EXHIBIT 31.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT

I, Donald J. Cronin, certify that:

1. I have reviewed this quarterly report on Form 10-Q of United Insurance Holdings Corp.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and


UNITED INSURANCE HOLDINGS CORP.

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

/s/ Donald J. Cronin
Donald J. Cronin
Chief Executive Officer
November 14, 2008

UNITED INSURANCE HOLDINGS CORP.

EXHIBIT 31.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT

I, Nicholas W. Griffin, certify that:

1. I have reviewed this quarterly report on Form 10-Q of United Insurance Holdings Corp.;

2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

4. The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15(d)-15(f)) for the registrant and have:

(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

5. The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and


UNITED INSURANCE HOLDINGS CORP.

(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

/s/ Nicholas W. Griffin
Nicholas W. Griffin
Chief Financial Officer
November 14, 2008

UNITED INSURANCE HOLDINGS CORP.

EXHIBIT 32.1

CERTIFICATION OF CHIEF EXECUTIVE OFFICER PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT

In connection with the Quarterly Report on Form 10-Q of United Insurance Holdings Corp. for the quarter ended September 30, 2008 as filed with the Securities and Exchange Commission (the “Report”), I, Donald J. Cronin, Chief Executive Officer of United Insurance Holdings Corp. hereby certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (1)

The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (2)

The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of United Insurance Holdings Corp.

 

By:   /s/ Donald J Cronin      
Donald J. Cronin, Chief Executive Officer       November 14, 2008

UNITED INSURANCE HOLDINGS CORP.

EXHIBIT 32.2

CERTIFICATION OF CHIEF FINANCIAL OFFICER PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT

In connection with the Quarterly Report on Form 10-Q of United Insurance Holdings Corp. for the quarter ended September 30, 2008 as filed with the Securities and Exchange Commission (the “Report”), I, Nicholas W. Griffin, Chief Financial Officer of United Insurance Holdings Corp., hereby certify pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that:

 

  (1)

The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

  (2)

The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of United Insurance Holdings Corp.

 

By:  

/ s/ Nicholas W. Griffin

     
Nicholas W. Griffin, Chief Financial Officer       November 14, 2008