EXHIBIT 10.42
THE GUARDIAN
REINSURANCE AGREEMENT
between
ARISTA INSURANCE COMPANY
New York, New York
(hereinafter referred to as the "Company")
and
THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
New York, New York
(hereinafter referred to as "The Guardian")
QUOTA SHARE
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CONTENTS
PREAMBLE
ARTICLE I BASIS OF REINSURANCE
ARTICLE II TERM AND CANCELLATION
ARTICLE III REINSURANCE'S LIABILITY
ARTICLE IV SPECIAL ACCEPTANCES
ARTICLE V SPECIAL ACCEPTANCES
ARTICLE VI OFFSET
ARTICLE VII PREMIUMS AND ACCOUNTS
ARTICLE VIII TAXES
ARTICLE IX ACCESS TO COMPANY'S RECORDS
ARTICLE X ARBITRATION
ARTICLE XI INSOLVENCY
ARTICLE XII CONTROL
ARTICLE XIII MISCELLANEOUS
ARTICLE XIV EXECUTION
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PREAMBLE
The Company and The Guardian mutually agree to reinsure New York State
Statutory, Super Statutory and Voluntary Disability Benefits Law policies on the
terms and conditions set out below. The Agreement is solely between the Company
and The Guardian, and performance of the obligations of each party under this
Agreement shall be rendered solely to the other party. In no instance shall
anyone other than Company or The Guardian have any rights under this Agreement.
Any change or modification to this Agreement shall be null and void unless made
by amendment to this Agreement and signed by both parties.
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ARTICLE I
BASIS OF REINSURANCE
The Company agrees to cede and The Guardian agrees to accept by way of
reinsurance, on the terms and conditions hereinafter appearing, a 50% quota
share participation in claim liabilities and producer commissions arising from
the Company's New York State Statutory, Super Statutory and Voluntary Disability
Benefits Law policies, both for business in force as of the effective date of
this Agreement as well as for new business issued and or acquired after the
effective date of this Agreement. The Guardian is liable only for claim
liabilities incurred and producer commissions earned on or after the effective
date of this treaty (regardless of the policy anniversary dates of the
underlying business).
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ARTICLE II
TERM AND CANCELLATION
This Agreement shall take effect at 12:01 A.M. Eastern Standard Time on January
1, 1998 and shall remain in force and effect for an indefinite period but may be
canceled, for in force business as well as new business, at any time by The
Guardian giving to the Company ninety (90) days prior written notice. This
Agreement may be canceled, for in force business as well as new business, by
the Company giving to The Guardian ninety (90) days prior written notice. In
the event that the Company is sold the Company will exert its best effort to
ensure that the reinsurance relationship with The Guardian continues.
Notwithstanding the foregoing, cancellation of this Agreement may be as of an
agreed date on any basis mutually acceptable to the parties hereto.
Unless otherwise agreed to by the parties hereto, The Guardian shall continue
to participate in all reinsurance coming within the terms of this Agreement
prior to the of cancellation of this Agreement.
It is agreed, however, that the reinsurance with respect to all policies in
force on the date of cancellation of this Agreement shall terminate as to each
such policy as of the date of cancellation of this Agreement. The Guardian
shall remain liable for its share of claim liabilities which are incurred and
producer commissions earned prior to the termination of this Agreement.
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ARTICLE III
REINSURANCE LIABILITY
All reinsurance provided hereunder shall be subject to the same clauses,
rates, terms, conditions and endorsements as the Company's original policies
insofar as they relate to the business covered pursuant to Article I
hereunder. This Agreement and the reinsurance coverage provided
hereunder is subject to the Company's maintaining its existing
underwriting and pricing criteria. Changes or revisions in the Company's
policies or rates shall not be made without the prior written approval of The
Guardian.
The maximum issue limit per person under each policy shall be as mandated by
New York State, unless the Company has issued superstatutory coverage under
its regular rate manual underwriting guidelines.
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ARTICLE IV
SPECIAL ACCEPTANCES
Any insurance coverage that is specially accepted by The Guardian from the
Company in writing shall be covered under this Agreement and subject to the
terms hereof, except as such terms shall be modified by such acceptance.
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ARTICLE V
LOSSES
Prompt written notice shall be given to The Guardian of all losses which, in the
opinion of the Company, will result in a claim hereunder.
The Company agrees that it will investigate and settle, or defend all losses
arising under policies reinsured hereunder, provided they are within the terms
of this Agreement.
The Company's original policies shall be binding on The Guardian, who agrees to
pay all amounts for which it may be liable upon being furnished by the Company
with reasonable evidence of the amount due, including its proportionate share of
legal expenses directly allocated according to the usual practice of the Company
and paid in connection with the losses within the scope of this Agreement, with
the exclusion of loss adjustment expenses and office expenses of the Company
and salaries of its employees.
If The Guardian so chooses, it will discharge its liability by
payment of the full amount of reinsurance to the Company. In no event
shall The Guardian be liable for punitive damages, statutory penalties or
compensatory damages which are awarded against the Company as a result
of an act, omission or course of conduct committed by or on behalf of the
Company in connection with the insurance reinsured under this Agreement.
For purposes of this provision, the following definitions shall apply:
1. "Punitive damages" are those damages awarded as a penalty, the amount
of which is not governed or fixed by statute.
2. "Statutory penalties" are those amounts which are awarded to as a
penalty but fixed in amount by statute.
3. "Compensatory damages" are those amounts awarded to compensate for
actual damages sustained, and are not awarded as penalty or fixed in
amount by statute.
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ARTICLE VI
OFFSET
The Company or The Guardian may offset any balance(s), from premiums,
commissions, losses or any other amount(s) due from one party to the other under
this Agreement or under any other reinsurance agreement heretofore or hereafter
entered into between the Company and The Guardian, whether acting as assuming
reinsurer or as ceding Company.
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ARTICLE VII
PREMIUM AND ACCOUNTS
The Company shall pay to The Guardian Reinsurance Premium for the business ceded
hereunder as follows:
For purposes of this treaty, Reinsurance Premium shall equal 50% of {the
Company's gross earned premium less an Expense Allowance}. The Company's
Expense Allowance will be calculated as follows:
8.0% of the Company's Gross Earned Premium; plus
Gross premium taxes, licenses & fees incurred by the Company; plus
DBL assessments incurred by the Company; plus
Experience Incentive = the Company's Gross Earned Premium x 0.50 x [0.88 -
Cost Percentage], where
- The Experience Incentive will have a minimum value of 0% and a
maximum value of +5%;
- The Cost Percentage = [Gross Incurred Claims + Gross Producer
Commissions Earned + Gross Premium Taxes Incurred + Gross DBL
Assessments Earned]/ Gross Earned Premium; and
- The Experience Incentive will be calculated by the Company
annually, within four months following the close of this
Agreement's anniversary; in addition, the Experience Incentive
will be estimated by the Company and paid quarterly, with an
annual payment reflecting the difference between the four
quarterly estimates and the annual calculation. In the event of
cancellation of this Agreement, the final Experience Incentive
will be calculated by the Company and paid no later than four
months after cancellation. Such payment shall reflect any
differences between the final calculation and the prior quarterly
estimated payments.
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Within five days (5) after each calendar quarter, the Company shall submit to
The Guardian estimates of the following, including any and all supporting
detail:
a. Reinsured earned premium.
b. Reinsured Commission Earned, Premium Taxes and DBL Assessments Earned.
c. Reinsured Losses Incurred.
d. Experience Incentive.
e. Net Amount due the Company/The Guardian.
Within thirty days (30) days after each calendar quarter, the Company shall
submit to The Guardian a final report on the following, including and all
supporting detail:
a. Reinsured earned premium.
b. Reinsured Commission Earned, Premium Taxes and DBL Assessments Earned.
c. Reinsured Losses Incurred.
d. Net Amount due the Company/The Guardian.
The balance due either The Guardian or the Company shall be payable promptly
within 15 days of the final quarterly report due date.
Following each calendar year, the Company shall submit to The Guardian the
following:
a. Audited statutory and GAAP financial statements deliverable within 120
days after the end of the calendar year
b. Certified Actuarial Opinion deliverable within 45 days after the end
of the calendar year.
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ARTICLE VIII
TAXES
The Guardian shall not be liable for the payment of any premium taxes in
connection with the business being reinsured under this Agreement.
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ARTICLE IX
ACCESS TO COMPANY'S RECORDS
The Company shall make available to The Guardian, and The Guardian or its
authorized representative, shall have the right to inspect, at all reasonable
times during the term of this Agreement and thereafter as may become necessary,
all books records, and papers of the Company pertaining to the reinsurance
provided hereunder.
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ARTICLE X
ARBITRATION
All disputes and differences between the Company and The Guardian on which an
amicable understanding cannot be reached shall be decided by arbitration at the
home office of the Company. The following procedures shall apply:
Upon written request of either party, each party shall choose an arbitrator and
the two chosen arbitrators shall select a third arbitrator. If either party
refuses or neglects to appoint an arbitrator within thirty (30) days after
receipt of the written request for arbitration, the requesting party may appoint
a second arbitrator. Such notice of arbitration shall be sent certified or
registered mail. If the two arbitrators fail to agree on the selection of the
third arbitrator within (30) days of their appointment, each of them shall name
three individuals, of whom the other shall decline two, and the decision as to
the third arbitrator shall be determined by drawing lots.
All arbitrators shall be active or retired officers of life or reinsurance
companies and disinterested in the outcome of the arbitration. Each party shall
submit its case to the arbitrators within thirty (30) days of the appointment of
the third arbitrator.
The parties hereby waive all objections to the method of choosing the
arbitrators, it being the intention of both parties that all the arbitrators be
chosen from those submitted by the parties.
The arbitrators shall have the power to determine all procedural rules for the
holding of the arbitration including, but not limited to inspecting documents,
examination of witnesses and any other matter relating to the conduct of the
arbitration.
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The arbitrators shall interpret this Agreement as an honorable engagement and
not merely as a legal obligation. The arbitrators shall consider customary and
standard practices of the life and health reinsurance business. Each party
shall bear the expense of its own arbitrator and related outside attorneys'
fees, and shall equally bear the expense of the third arbitrator and of the
arbitration.
This Agreement shall be construed in accordance with the laws of the State of
New York. The decision, in writing, of the majority of the arbitrators, shall
be final and binding upon both parties. Judgment may be entered upon the final
decision of the arbitrators in any court having jurisdiction.
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ARTICLE XI
INSOLVENCY
All claim liabilities and producer commissions reinsured under this Agreement
will be paid by The Guardian directly to the Company, its liquidator, receiver
or statutory successor, on the basis of the liability of the Company under the
policy or policies reinsured without diminution because of the insolvency of the
Company.
In the event of the insolvency of the Company, the liquidator, receiver or
statutory successor of the Company will give The Guardian written notice of a
pending claim against the Company on any reinsured policy within a reasonable
time after the claim is filed in the insolvency proceedings. While the claim is
pending, The Guardian may investigate the claim and interpose, at its own
expense, in the proceedings where the claim is to be adjudicated, any defense
which it may deem available to the Company or its liquidator, receiver or
statutory successor. Any expense incurred by The Guardian will be charged,
subject to court approval, against the Company as an expense of liquidation to
the extent of a proportionate share of the benefit that accrues to the Company
as a result of the defenses by The Guardian. Where two or more reinsurers are
involved and majority in interest elect to defend the claim, the expense will be
apportioned in accordance with the terms of the reinsurance agreement as if the
expense had been incurred by the Company.
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ARTICLE XII
CONTROL
It is understood and agreed that if at any time during the continuance of this
Agreement, the Company shall be acquired or controlled by, or merged with any
other company, then acting upon actual or constructive notice thereof, either
party shall have the right forthwith to terminate this Agreement by giving
thirty (30) days written notice by certified or registered mail.
In the event of such termination, this Agreement shall remain in full force and
effect only with respect to all claim liabilities and producer commissions
reinsured hereunder between the Agreement's effective date and time of
termination.
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ARTICLE XIII
MISCELLANEOUS
ASSIGNMENT: Neither the Company nor The Guardian may assign this
Agreement to another entity without the written consent of the other party.
APPLICABLE LAW: This Agreement shall be deemed to have been made and
shall be interpreted and construed pursuant to the laws of the State of New
York. The parties agree to submit to the jurisdiction of any court of competent
jurisdiction in the State of New York, to comply with all requirements necessary
to give such court jurisdiction, and to abide by the final decision of such
court or any Appellate Court in the event of appeal. The parties hereby
designate the State of New York Department of Insurance as its true and lawful
attorney upon whom may be served any lawful process and any action, suit, or
proceeding instituted by or on behalf of either party. This provision, however,
is not intended to conflict with or override the obligation of the parties to
arbitrate in accordance with Article XII.
NOTICES: All notices required or permitted to be given by any party
to this Agreement shall be in writing and sent to the other party addressed as
follows (or to such other addresses as the parties may hereafter designate by
notices given):
If to the Company: Arista Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx
If to the Reinsurer: The Guardian Life Insurance Company of America
0000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxx - Suite 2E
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MULTIPLE COUNTERPARTS: This Agreement may be executed in multiple
counterparts.
DRAFTING: The terms of this Agreement shall not be construed in favor of or
against any party on account of that party's participation or lack of
participation in the drafting of this Agreement.
ENTIRE AGREEMENT: This Agreement constitutes the entire agreement and
supersedes prior agreements, understandings and negotiations, oral and written,
between the parties with respect to the contents of this Agreement. No waiver,
amendment, modification hereof shall be of any force or effect unless it is in
writing and signed by the parties and making specific reference to this
Agreement.
SEPARABILITY OF PROVISIONS: If any provision of this Agreement is held to be
unenforceable by a tribunal having jurisdiction in the matter, then such
provision shall be enforced to the maximum extent possible and the remaining
provisions shall remain in full force and effect. Furthermore, in lieu of such
unenforceable provision, there shall be added automatically as part of this
Agreement a provision as similar in terms as may be possible and enforceable.
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ARTICLE XIV
EXECUTION
In witness of the above, this Agreement is signed in duplicate on the dates and
at the places indicated below with an effective date of January 1, 1998.
Date: Xxxxx 00, 0000 XXXXXX INSURANCE COMPANY
Place: NEW YORK, NEW YORK By: /s/ Illegible
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Witness: /s/ Xxxxxxx XxXxxxxxxxxx Title: President
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Date: March 19, 1998 THE GUARDIAN LIFE INSURANCE COMPANY OF AMERICA
Place: NEW YORK, NEW YORK By: /s/ X.X. Xxxx
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Witness: /s/ Xxxxx Petroslilo Title: /s/ Xxxxxx X. Xxxx
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Second Vice President
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