If the amount due to the Company for the Reinsurers’ liability hereunder is in excess of fifty thousand dollars ($50,000), the Reinsurers will, upon receipt of proof of loss, remit the amount due within ten (10) working days.
ARTICLE VII ? OFFSET
The Company or the Reinsurer shall have, and may exercise at any time and from time to time, the right to offset any balance or balances, whether on account of premiums or on account of losses or otherwise, due from one party to the other under the terms of this Agreement.
ARTICLE VII – CASH CALLS
A. In the event a negative balance results in any one month (claims exceed premiums collected), and/or in the event the claims fund (if any) is depleted, the Company may make an immediate cash call upon the Reinsurer. The Reinsurer agrees to make payment to the Company within five (5) business days after the Reinsurer’s receipt of the cash call.
B. The Company may also make an immediate cash call upon the Reinsurer in the event the Company is presented with any single claim in excess of the then current balance of the claims fund, regardless of when the claim is presented to the Company. The Reinsurer agrees to make payment to the Company within five (5) business days after the claim has been reviewed and approved by the Company and/or the Reinsurer.
ARTICLE VII ? TERRITORY
This Agreement shall only apply to policies issued to insured’s domiciled in the United States, its territories and possessions.
ARTICLE VII? ERRORS AND OMISSIONS
Inadvertent delays, errors or omissions made in connection with this Agreement or any transaction hereunder shall not relieve either party from any liability which would have attached had such delay, error or omission not occurred, provided always that such delay, error or omission will be rectified as soon as possible after discovery.
ARTICLE VII? ACCESS TO RECORDS
The Reinsurer and the Company, or its duly appointed representatives, shall have the right at any reasonable time to examine all records in the possession of the Companyeach other and/or the Manager referring to business effected hereunder.
ARTICLE VII ? SERVICE OF SUIT
(Applicable if the Reinsurer is not domiciled in the United States of America and/or is not authorized in any state, territory, or district of the United States where authorization is required by insurance regulatory authorities.)
1. 1. It is agreed that in the event the Reinsurer fails to pay any amount claimed to be due hereunder, the Reinsurer, at the request of the Company, will submit to the jurisdiction of any court of competent jurisdiction within the United States. Nothing in this Article constitutes or should be understood to constitute a waiver of the Reinsurer’s rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a United States District Court, or seek a transfer of a case to another court as permitted by the laws of the United States or of any state of the United States.
2. 2. Further, pursuant to any statute or regulation of any state, territory, or district of the United States which makes provision therefore, the Reinsurer hereby designates the Superintendent, Commissioner, or Director of Insurance, or any other officer specified for that purpose in the statute, or his successor or successors in office, as its true and lawful attorney upon whom may be served any lawful process in any action, suit, or proceeding instituted by or on behalf of the Company or any beneficiary hereunder arising out of this Agreement.
ARTICLE VII ? INSOLVENCY
In the event of the insolvency of the Company, this reinsurance shall be payable directly to the Company, or to its liquidator, receiver, conservator or statutory successor immediately upon demand, with reasonable provision for verification, on the basis of the liability of the Company without diminution because of the insolvency of the Company or because the liquidator, receiver, conservator or statutory successor of the Company has failed to pay all or a portion of any claim. It is agreed, however, that the liquidator, receiver, conservator or statutory successor of the Company shall give written notice to the Reinsurers of the pendency of a claim against the Company indicating the policy or reinsurance reinsured which claim would involve a possible liability on the part of the Reinsurer(s) within a reasonable time after such that claim is filed in the conservation or liquidation proceeding or in the receivership, and that during the pendency of such that claim, the Reinsurer(s) may investigate such claim and interpose, at its own expense, in the proceeding where such that claim is to be adjudicated, any defense(s) or defenses that it they may deem available to the Company or its liquidator, receiver, conservator or statutory successor. Theis expense thus incurred by the Reinsurer shall be chargeable, subject to the court approval, of the Court, against the Company as part of the expense of conservation or liquidation to the extent of a pro rata share of the benefit which may accrue to the Company solely as a result of the defense undertaken by the Reinsurer(s).
It is further understood and agreed that, in the event of the insolvency of the Company, the reinsurance under this Agreement shall be payable directly by the Reinsurer to the Company or to its liquidator, receiver or statutory successor, except (a) where this Agreement specifically provides another payee of such reinsurance in the event of the insolvency of the Company or (b) where the Reinsurer with the consent of and in accordance with all of the requirements of the Insurance Department of the Company’s state of domicile and the direct insured or insured has assumed such policy obligations of the Company as direct obligations of the Reinsurer to the payees under such policies and in substitution for the obligations of the Company to such payees.
The Reinsurer shall be liable only for the amounts reinsured and shall not be or become liable for any amounts or reserves to be held by the Company on policies reinsured under this Agreement.
When two (2) or more Reinsurers are involved in the same claim and a majority in interest elect to interpose a defense or defenses to that claim, the expense shall be apportioned in accordance with the terms of the reinsurance agreement as though that expense had been incurred by the Company.
This insolvency clause shall not preclude the Reinsurer(s) from asserting any excuse or defense to payment of reinsurance other than the excuses or defenses on the insolvency of the Company and the failure of the Company’s liquidator, receiver, conservator or statutory successor to pay all or portion of any claim.
In the event of the insolvency, bankruptcy, receivership, conservation, rehabilitation or dissolution of one or more Reinsurer, the Company may retain all or any portion of any amount then due the Reinsurer(s) or which may become due to the Reinsurer(s) under this Agreement and use such amounts for the purposes of paying any and all liabilities of the Reinsurer(s) incurred under this Agreement. When all such liability hereunder has been discharged, the Company shall pay the Reinsurer, its liquidator, receiver, conservator or statutory successor the balance of such amounts withheld.
If the Reinsurer is unauthorized in the State of Missouri, the Reinsurer hereby agrees to voluntarily submit to the jurisdiction of an alternate dispute resolution panel or court of competent jurisdiction within the United States and/or the State of Missouri and further agrees to comply with all requirements necessary to give the panel or court jurisdiction. The Reinsurer hereby warrants that it has designated an agent upon whom service of process may be effected and agrees to abide by the final decision of the panel or court.
ARTICLE VII ? ARBITRATION
As a condition precedent to any right of action hereunder, any dispute arising out of the interpretation, performance or breach of this Agreement, including the formation or validity thereof, shall be submitted for decision to a panel of three (3) arbitrators. Notice requesting arbitration shall be in writing and sent certified or registered mail, return receipt requested.
One arbitrator shall be chosen by each party and the two (2) arbitrators shall, before instituting the hearing, choose an impartial third arbitrator who shall preside at the hearing. If either party fails to appoint its arbitrator within thirty (30) days after being requested to do so by the other party, the latter, after ten (10) days notice by certified or registered mail, return receipt requested, of its intention to do so, may appoint the second arbitrator. If the two (2) arbitrators fail to agree upon the third arbitrator within thirty (30) days following their appointment, each arbitrator shall nominate three (3) candidates within ten (10) days thereafter, two (2) of whom the other shall decline, and the decision shall be made be drawing lots. All arbitrators shall be disinterested active or former executive officers of insurance or reinsurance companies or Underwriters at Lloyd’s, London.
Within thirty (30) days after notice of appointment of all arbitrators, the panel shall meet and determine timely periods for briefs, discovery procedures and schedules for hearings. The panel shall be relieved of all judicial formality and shall not be bound by the strict rules of procedure and evidence. Unless the panel agrees otherwise, arbitration shall take place in the state of domicile, but the venue may be changed when deemed by the panel to be in the best interest of the arbitration proceeding. Insofar as the arbitration panel looks to substantiate law, it shall consider the law of the state of domicile. The decision of any two (2) arbitrators when rendered in writing shall be final and binding. The panel is empowered to grant interim relief as it may deem appropriate.
The panel shall interpret this Agreement as an honorable engagement rather than as merely as a legal obligation and shall make its decision considering the custom and practice of the applicable insurance and reinsurance business as promptly as possible following the termination of the hearings. Judgement upon the award may be entered in any court having jurisdiction thereof.
Each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the cost of the third arbitrator. The remaining costs of the arbitration shall be allocated by the panel. The panel may, at its discretion, award such further costs and expenses as it considers appropriate, including but not limited to attorney’s fees, to the extent permitted by law.
A. Resolution of disputes as a condition precedent to any right of action arising hereunder, in the event og any dispute between the Reinsurer (or its successor in interest) and the Company (or its successors in interest), arising out of or relating to provisions of this Agreement, shall be submitted to arbitration in the manner set forth below.
B. One arbitrator shall be chosen by the Company, the other by the Reinsurer, and an Umpire shall be chosen by the two (2) arbitrators before they enter upon arbitration, all of whom shall be active or retired disinterested executive officers of insurance or reinsurance companies. In the event that either party should fail to choose an arbitrator within thirty (30) days following a written request by the other party to do so, the requesting party may choose two (2) arbitrators who shall in turn choose an Umpire before entering upon arbitration. If the two (2) arbitrators fail to agree upon the selection of an Umpire within thirty (30) days following their appointment, each arbitrator shall nominate three (3) candidates within ten (10) days thereafter, two (2) of whom the other shall decline, and the decision shall be made by drawing lots.
C. Each party shall present its case to the arbitrator within thirty (30) days following the date of appointment of the Umpire. The arbitrators shall consider this agreement as an honorable engagement rather than merely a legal obligation and they are relieved of all judicial formalities and may abstain from following the strict rules of law. The decision of the arbitrators shall be final and binding on both parties; but filing to agree, they shall call in the Umpire and the decision of the majority shall be final and binding upon both parties. Judgment upon the final decision of the arbitrators may be entered in any court of competent jurisdiction.
D. If more than one reinsurer is involved in the same dispute, all such reinsurers shall constitute and act as one party for purposes of this Article and communications shall be made by the Company to each of the reinsurers constituting one party, provided, however, that nothing herein shall impair the rights of such reinsurer to assert several, rather than joint, defenses or claims, nor be construed as changing the liability of the reinsurer participating under the terms of this Agreement from several to joint.
E. Any arbitration proceedings shall take place at Kaknsas City, Missouri, with all proceedings pursuant hereto governed by the law of the State of Missouri.
F. Each party shall pay the fee and expenses of its own arbitrator and equally bear the fee and expenses of the third arbitrator. All other expenses of the arbitration shall be equally divided between the parties. The panel may, at its discretion, award such further costs and expenses as it considers appropriate, including, but not limited to, attorney’s fees, to the extent permitted by law.
G. This Article shall survive the cancellation expiration of this Agreement.
ARTICLE VII – FEDERAL AND STATE MANDATE
In the event any provision of this Agreement is deemed by the Company to be in conflict with any federal or state regulators, statute or code, the provision in question will automatically be modified to be in compliance and any such modification will become part of this Agreement.
ARTICLE VII? CONTROLLING LAW
This Agreement shall be governed by and construed in accordance with the laws of the state of domicile of the Company.
ARTICLE VII ? SEVERABILITY
If any part, term, or provision of this Agreement shall be held void, illegal, or unenforceable, the validity of the remaining portion or portions shall not be affected thereby.
ARTICLE XXV ? UNAUTHORIZED REINSURERS
1. Clean, irrevocable and unconditional Letters of Credit issued and confirmed, if confirmation is required by the insurance regulatory authorities involved, by a bank or banks meeting the NAIC Securities Valuation Office credit standards for issuers of Letters of Credit and acceptable to said insurance regulatory authorities; and/or
2. Escrow accounts for the benefit of the Company; and/or
3. Cash advances;
Without such funding, a penalty would accrue to the Company on any financial statement it is required to file with the insurance regulatory authorities involved. The Reinsurer, at its sole option, may fund in other than cash if its method and form of funding are acceptable to the insurance regulatory authorities involved.
With regard to funding in whole or in part by Letters of Credit, it is agreed that each Letter of Credit will be in a form acceptable to the insurance regulatory authorities involved, will be issued for a term of at least one year, and will include an evergreen clause, which automatically extends the term for at least one additional year at each expiration date unless written notice of non-renewal is given to the Company not less than thirty (30) days prior to said expiration date. The Company and the Reinsurer further agree, notwithstanding anything to the contrary in this Agreement, that said Letters of Credit may be drawn upon by the Company or its successors in interest at any time, without diminution because of the insolvency of the Company or the Reinsurer, but only for one or more of the following purposes:
1. To reimburse the Company for the Reinsurer’s share of unearned premiums returned to the Company on account of the cancellation of the original policy(policies), unless paid in cash by the Reinsurer.
2. To reimburse the Company for the Reinsurer’s share of any other losses and/or loss adjustment expenses paid under the terms of the original policy(policies), unless paid in cash by the Reinsurer.
3. To reimburse the Company for the Reinsurer’s share of any other amounts claimed to be due hereunder, unless paid in cash by the Reinsurer.
4. To fund a cash account in an amount equal to the Reinsurer’s share of any ceded unearned premium and/or losses outstanding and loss adjustment expenses reserves (including IBNR) funded by means of a Letter of Credit which is under non-renewal notice, if said Letter of Credit has not been renewed or replaced by the Reinsurer Ten (10) days prior to its expiration date.
5. To refund to the Reinsurer any sum in excess of the actual amount required to fund the Reinsurer’s share of the Company’s ceded unearned premium and/or losses outstanding and loss adjustment expense reserves (including IBNR), if so requested by the Reinsurer.
In the event that the amount drawn by the Company on any Letter of Credit is in excess of the actual amount required for Items 1., 2., or 4. above, or in the case of Item 3., the actual amount determined to be due, the Company shall promptly return to the Reinsurer the excess amount so drawn.
ARTICLE VII ? TAXES
In consideration of the terms under which this Agreement is issued, the Company undertakes not to claim any deduction of the premium hereon when making Canadian tax returns or when making tax returns, other than income or profit tax returns, to any state or territory of the United States of America or to the District of Columbia.