.
.
.
Exhibit 10.22
COMPREHENSIVE AUTOMATIC TREATY
REINSURANCE AGREEMENT
TABLE OF CONTENTS
PAGE
----
ARTICLE
Preamble...................................................... 2
1 Acquisition................................................... 2
2 Commencement And Termination.................................. 2
3 Termination Of Any Prior Agreement............................ 5
4 Business And Territory Covered................................ 7
5 Exclusions.................................................... 8
6 Retention And Limit........................................... 9
7 Definitions................................................... 10
8 Premium And Commission........................................ 11
9 Accounts, Reports And Payments................................ 12
10 Claims And Losses............................................. 13
11 Salvage And Subrogation....................................... 14
12 Reinsurance Follows Original Policies......................... 14
13 Taxes......................................................... 14
14 Federal Excise Tax............................................ 15
15 Access To Records............................................. 15
16 Currency...................................................... 16
17 Service Of Suit............................................... 16
18 Arbitration................................................... 17
19 Indemnification And Errors And Omissions...................... 18
20 Insolvency.................................................... 19
21 Security...................................................... 19
22 Reserves And Risk Limits...................................... 21
23 Confidentiality............................................... 22
24 Offset........................................................ 23
25 Governing Law................................................. 23
26 Participation................................................. 23
27 Assignment.................................................... 23
28 Notice........................................................ 24
EXHIBITS
Exhibit No. 1................................................. 29
Exhibit No. 2 - Issuers or Sellers/Servicers and Maximum
Assumed Amount Per Issue Under Exclusion B.................... 30
Exhibit No. 3 - Company Risk Codes............................ 31
1
COMPREHENSIVE AUTOMATIC TREATY
REINSURANCE AGREEMENT
(hereinafter referred to as "Agreement")
made and entered into by and between
MBIA Insurance Corporation, Armonk, New York; and/or MBIA Assurance
S.A., Paris, France; and/or MBIA UK Insurance Limited, London,
England; and/or Capital Markets Assurance Corporation, Armonk, New
York; and/or any other insurance or reinsurance company subsidiaries
of MBIA Inc. listed in Exhibit No. 1 attached to this Agreement
(hereinafter referred to as the "Company"), and
RAM REINSURANCE COMPANY LTD.
(hereinafter referred to as the "Reinsurer").
In consideration of the mutual covenants hereinafter contained and other
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
ARTICLE 1
ACQUISITION
In the event that, following the execution of this Agreement, the Company
notifies the Reinsurer of a proposed acquisition by the Company of an insurance
company (a "Target") and provides the Reinsurer as soon as practicable with full
particulars as to how such affiliation is likely to affect this Agreement and
such due diligence information as the Reinsurer may reasonably request with
respect thereto (the "Information"), the Reinsurer shall provide, within 30 days
following receipt of the Information, a written notice to the Company which
notice shall state whether or not the Reinsurer will consent to the inclusion of
such Target as a reinsured hereunder upon consummation of the acquisition of
such Target by the Company. If the Reinsurer consents to the inclusion of a
Target as a reinsured hereunder, such Target shall be included in the term
"Company" from and after the date on which the Company's acquisition of the
Target is consummated, and the Company shall prepare and deliver to the
Reinsurer an addendum to this Agreement that revises Exhibit No. 1 to include
the name of such Target thereon. The 30 day period referred to in this paragraph
shall not commence until all of the information reasonably requested by the
Reinsurer has been received by the Reinsurer.
ARTICLE 2
COMMENCEMENT AND TERMINATION
Covering the liabilities for Proportionate Share of Net Loss and Net Allocated
Loss Adjustment Expenses on Policies attaching on or after 12:01 a.m. (in the
time zone in which the Policy is issued), July 1, 2005 (the "Effective Time").
This Agreement may be terminated on a run-off
2
basis by the Company or by the Reinsurer as of 12:01 a.m. Eastern Standard Time,
July 1, 2006 or any July 1 thereafter by one party giving to the other at least
120 days' prior notice of termination (the "Termination Time"). Notice of
termination must be provided in writing by certified letter. In addition, this
Agreement shall automatically terminate on a run-off basis on or after July 1,
2006, as of the effective time and date of any replacement Comprehensive
Automatic Reinsurance Treaty entered into by the Company with respect to the
Policies described under "Business and Territory" below.
In the event of termination on a run-off basis (and until any termination on a
cut-off basis as provided herein), the Reinsurer will be entitled to receive its
Proportionate Share of all premiums paid after the Termination Time with respect
to, and will remain liable for the Reinsurer's Proportionate Share of Losses,
Allocated Loss Adjustment Expenses and applicable reserves with respect to, all
Policies ceded hereunder prior to the Termination Time until the natural
expiration of such Policies.
Only the Company shall have the right to terminate the Policies covered by this
Agreement on a cut-off basis (whether or not this Agreement has been previously
terminated on run-off basis) or run-off basis at any time by written notice to
the Reinsurer in the event:
A. that a Reinsurer Downgrade Event (as defined below) has occurred; provided
that the foregoing shall not be deemed an event of termination if the
Reinsurer, within 90 days of the occurrence of such Reinsurer Downgrade
Event, either (1) restores the Reinsurer's Standard & Poor's and Moody's
financial strength ratings and/or financial enhancement ratings to the
ratings in effect as of the Effective Time, or (2) provides such additional
security or takes any additional action that restores the reinsurance
credit that the Company receives under any Applicable Rating Agency or
regulatory method with respect to this Agreement as of the Effective Time,
it being agreed that all costs and expenses related to such efforts shall
be the sole responsibility of the Reinsurer,
B. that the Policyholders' Surplus of the Reinsurer is less than the amount
required in order for the Company to be entitled to credit for the
reinsurance provided by this Agreement by any Applicable Rating Agency,
regulatory body of any jurisdiction in which the Company legally operates
or to which it submits its statutory financial statements; or
C. there is a breach of any provision of this Agreement by the Reinsurer,
provided that the Company shall have first given written notice by
certified letter to the Reinsurer of such breach and the Reinsurer shall
not have cured such breach within 30 Business Days following receipt of
such notice from the Company; or
D. of a Change in Control (as defined below), provided that the Company gives
written notice by certified letter of its intention to terminate within 120
Business Days of becoming aware of the Change of Control or of receipt of
the notice set forth below. The Reinsurer shall be required to notify the
Company in writing (by certified letter) of any Change of Control within no
more than 15 Business Days after the Reinsurer becomes aware of such Change
of Control. For the purposes of this Agreement, a "Change of Control" will
be deemed to occur when (x) an individual person, corporation or other
entity acquires directly or indirectly more than forty-nine percent (49%)
of the voting
3
securities of the Reinsurer or the Reinsurer's intermediate or ultimate
parent or obtains the power to vote (directly or through proxies) more than
forty-nine percent (49%) of the voting securities of the Reinsurer or the
Reinsurer's intermediate or ultimate parent or (y) an individual person,
corporation or other entity who is a monoline insurance company who issues
financial guarantee or similar policies or a multiline insurance company
that issues financial guarantee or similar policies acquires directly or
indirectly more than twenty-five percent (25%) of the voting securities of
the Reinsurer or the Reinsurer's intermediate or ultimate parent or obtains
the power to vote (directly or through proxies) more than twenty-five
percent (25%) of the voting securities of the Reinsurer or the Reinsurer's
intermediate or ultimate parent; provided, however, that a "Change of
Control" shall not be deemed to have occurred pursuant to this paragraph D
if (i) such individual person, corporation or other entity is under common
control with the Reinsurer or the Reinsurer's intermediate or ultimate
parent or (ii) as a result of a merger, exchange offer, or similar
transaction, the holders of the voting securities of the ultimate
controlling person or persons of the Reinsurer exchange such securities
for, or such securities are converted into the right to receive, an
equivalent amount of voting securities of a newly-formed holding company;
or
E. the Reinsurer undertakes, as a new line of business, to write, on a primary
basis, financial guaranty or similar policies in direct competition with
the business the Company is engaged in as of the date of this Agreement;
provided that such activities shall expressly not include any reinsurance
business, any retrocessions accepted by the Reinsurer or any financial
guaranty or similar policy written incidentally to the Reinsurer's
reinsurance business; and provided further that the Company shall have
first provided written notice by certified letter to the Reinsurer of such
competitive activity and requesting that it cease and the Reinsurer shall
not have ceased such business activity within a period of 60 days following
receipt of such notice from the Company.
As used in this Agreement, "Reinsurer Downgrade Event" shall have the following
meaning:
"Reinsurer Downgrade Event' shall mean, with respect to the Reinsurer, either
(i) a downgrade of the Standard & Poor's financial strength rating below the
rating in effect as of the Effective Time (or, with respect to any Prior
Agreement, the Effective Time of such Prior Agreement), (ii) a downgrade of the
Moody's financial strength rating below the rating in effect as of the Effective
Time (or, with respect to any Prior Agreement, the Effective Time of such Prior
Agreement), (iii) a downgrade or withdrawal of the Standard & Poor's financial
enhancement rating below the rating in effect as of the Effective Time, (or,
with respect to any Prior Agreement, the Effective Time of such Prior
Agreement), (iv) the Reinsurer is no longer rated by the Applicable Rating
Agencies, or (v) a deterioration in any additional security provided or
additional action taken by the Reinsurer if such deterioration results in the
failure to maintain the reinsurance credit that the Company receives under any
applicable rating agency or regulatory method for this Agreement or (vi) there
is more than a ten (10%) percent decrease in the reinsurance credit that the
Company receives under any applicable rating agency or regulatory method for
this Agreement and the Reinsurer has failed to cure such decrease within 30 days
of receipt of written notice of such decrease, except that such decrease shall
not constitute a Reinsurer Downgrade Event if it arose out of the failure of the
Company to file any required report or to promptly inform the Reinsurer of any
information not otherwise available to the
4
Reinsurer that, if known by the Reinsurer, would have assisted the Reinsurer in
taking steps necessary to maintain the applicable amount of credit.
A termination on a cut-off basis shall be effective as of the date specified in
the written notice of termination, which date shall be no less than 25 Business
Days after the Reinsurer's receipt of the written notice of termination in the
case of a termination pursuant to subparagraphs A., B., C. or E. and no less
than 60 Business Days after the Reinsurer's receipt of the written notice of
termination in the case of termination pursuant to subparagraph D. In the event
of a termination on cut-off basis, (i) the Reinsurer will pay to the Company on
the effective date of the cut-off termination an amount equal to its
Proportionate Share of the reserves (including but not limited to Net Loss and
Net Allocated Loss Adjustment Expense reserves) and the unearned premium
reserve, net of applicable ceding commission and the Reinsurer's Percentage
Share of the anticipated salvage carried on the books and records of the
Company, as respects Policies covered hereunder which are in force at such date;
and (ii) immediately upon the payment referred to in clause (i) of this
sentence, the Company shall grant the Reinsurer a complete and final release
with respect to this Agreement, and all liabilities of the Reinsurer whatsoever,
whether such liabilities are known or unknown at the time of the termination,
arising out of this Agreement and all Policies shall be discharged and the
Reinsurer shall not be entitled to any premiums earned with respect to any
period of time after the effective date of termination. It is understood and
agreed that the Company will assume all liabilities hereunder unless prohibited
by any regulatory body of a jurisdiction in which the Company legally operates
or to which it submits its statutory financial statements.
Notwithstanding the termination of this Agreement as herein provided, the
provisions of this Agreement shall continue to apply to all Policies covered
hereunder to the end that all obligations and liabilities assumed by the
Reinsurer hereunder prior to such termination other than such obligations and
liabilities as are reassumed by the Company in connection with a termination on
a cut-off basis, shall be fully performed and discharged.
Except as provided in this Agreement, the rights, powers, remedies, and
privileges provides in this Agreement are cumulative and not exclusive of any
rights, powers, remedies, and privileges provided by law.
In addition to its right to terminate this Agreement on a cut off basis upon the
occurrence of the events specified above, the Company shall, upon the occurrence
of any such events, have the right to terminate on a cut off basis all, but not
less than all, other reinsurance agreements between the Company and the
Reinsurer, whether facultative or treaty, by giving notice in the manner
prescribed, and on the same basis, as set forth above.
ARTICLE 3
TERMINATION OF ANY PRIOR AGREEMENT
The Company may terminate any one or more Prior Agreements on a cut-off basis
(whether or not the Prior Agreement has been previously terminated on run-off
basis) by written notice to the Reinsurer in the event that a Reinsurer
Downgrade Event has occurred.
5
A termination of a Prior Agreement on a cut-off basis shall be effective as of
the date specified in the written notice of termination, which date shall be no
less than 25 Business Days after the Reinsurer's receipt of the written notice
of termination. In the event of such a termination of a Prior Agreement on a
cut-off basis, (i) the Reinsurer will pay to the Company on the effective date
of the cut-off termination an amount equal to the Reinsurer's Proportionate
Share of reserves (including but not limited to loss and allocated loss
adjustment expense reserves) and the unearned premium reserve, net of applicable
ceding commission and the Reinsurer's Percentage Share of the anticipated
salvage carried on the books and records of the Company, as respects the Subject
Prior Policies which are in force at the effective date of the cut-off
termination; and (ii) immediately upon the payment referred to in clause (i) of
this sentence, the Company shall grant the Reinsurer a complete and final
release with respect to the Subject Prior Policies being reassumed by the
Company, and all liabilities of the Reinsurer whatsoever, whether such
liabilities are known or unknown at the time of the termination, arising out of
the Subject Prior Policies being reassumed by the Company shall be discharged,
and the Reinsurer shall not be entitled to any premiums earned with respect to
any period of time after the effective date of termination. It is understood and
agreed that the Company will assume all liabilities with respect to any Policies
under each Subject Prior Agreement terminated pursuant to this Agreement unless
prohibited by any regulatory body of a jurisdiction in which the Company legally
operates of to which it submits its statutory financial statements.
Notwithstanding the termination of a Prior Agreement as herein provided, the
provisions of each Subject Prior Agreement shall continue to apply to all
Subject Prior Policies covered under each the Subject Prior Agreement to the end
that all obligations and liabilities assumed by the Reinsurer under the Subject
Prior Agreement prior to such termination, other than such obligations and
liabilities under the Subject Prior Agreement as are reassumed by the Company in
connection with a termination on a cut-off basis under this Article, shall be
fully performed and discharged.
As used in this Article, the following terms have the following respective
meanings:
"Reserve," "loss reserve," "allocated loss adjustment expense reserve,"
"unearned premium reserve" and "ceding commission" shall have the meanings
set forth in the Subject Prior Agreement under which the Subject Prior
Policy is ceded.
"Prior Agreement" shall mean any reinsurance agreement under which the
Company cedes reinsurance to the Reinsurer which is (i) classified by the
Company, in its sole judgment, as surplus reinsurance, and (ii) which
originally became effective prior to the Effective Time.
"Prior Policies" shall mean any binder, policy, surety bond or contract of
insurance of reinsurance or amendment or endorsement thereto issued by the
Company and constituting business ceded under a Prior Agreement.
"Recoveries" shall mean any amount received by the Company in respect of
any loss and allocated loss adjustment expense covered by the Reinsurer
under a Subject Prior Agreement whether by subrogation, salvage,
reimbursement or other recovery from the Issuer (or from an underlying
obligor of that Issuer).
6
"Subject Prior Agreement" shall mean a Prior Agreement subject to
termination on cut-off basis under this Article.
"Subject Prior Policies"' shall mean the Prior Policies ceded under a
Subject Prior Agreement.
ARTICLE 4
BUSINESS AND TERRITORY COVERED
(a) This Agreement shall cover all Policies that provide insurance against
financial loss by reason of nonpayment of obligations arising under Issues sold
or otherwise issued by Issuers or Sellers/Servicers.
(b) In the event of a refinancing (whether by refunding or otherwise) of the
obligations insured under a Policy (the "Refinanced Obligations") by the
issuance of new obligations that are insured by the Company (the "Refinancing
Obligations"), (i) undertaken, in the sole judgment of the Company, to mitigate,
prevent or improve the Company's position in respect of a claim or loss under
the Policy or (ii) undertaken, in the sole judgment of the Company, to improve
the credit quality or credit risk profile of the related Policy or exposure, or
(iii), structured with terms or pricing that, in the sole opinion of the
Company, are less attractive than current market terms or pricing for such a
transaction but are undertaken because the pricing or terms in the Company's
sole opinion, are superior to the original structure, the Reinsurer shall
automatically assume under this Agreement the Proportionate Share of the
Refinancing Obligations as is designated by the Company, regardless of whether
the par amount of such Refinancing Obligations exceeds $175,000,000, provided,
however; that such Proportionate Share of the Refinancing Obligations shall not
exceed the Reinsurer's Proportionate Share assumed with respect to the
Refinanced Obligations. Any Policy issue by the Company in respect of the
Refinancing Obligations shall be deemed to be a Policy hereunder to the same
extent as that of the original Policy.
(c) The liability of the Reinsurer shall be subject in all respects to and shall
not be affected by all the general and specific stipulations, clauses, waivers,
extensions, modifications, amendments and endorsements of any of the Policies,
subject to the exclusions set forth below and the other terms and conditions of
this Agreement as set forth herein.
(d) The Reinsurer shall be bound by the judgment of the Company as to the
obligation(s) and liability(ies) of the Company under any original insurance or
reinsurance in accordance with Article 12 hereof. The Reinsurer acknowledges the
Company's obligations to make payment under its Policies or Prior Policies are
unconditional, irrevocable and non-cancellable by the Company for any reason and
that the Company has waived, to the fullest extent permitted by applicable law,
and agreed not to assert any and all rights (whether by counterclaim, set-off or
otherwise) and defenses (including, without limitation, any defense of fraud
(other than fraud by the related beneficiary) or any defense based or
misrepresentation, breach of warranty, or non-disclosure of information by any
person) whether acquired by subrogation, assignment or otherwise to the extent
such rights and defenses may be available to the Company to avoid
7
payment of its obligations under any Policy or Prior Policy in accordance with
the express provisions of any Policy or Prior Policy.
ARTICLE 5
EXCLUSIONS
The following general exclusions apply in respect of all Policies ceded to the
Reinsurer under this Agreement:
A. All liability of the Company arising by agreement, 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 otherwise is deemed unable to meet any
claim, debt, charge, fee, or other obligation in whole or in part.
B. The amount by which the portion of the Reinsurer's Percentage Share of the
Pro Rata Share of Par Amount per Issue under a Policy covering an Issue
sold by an Issuer to Seller/Servicer to be identified in Exhibit No. 2
attached to and forming part of this Agreement exceeds the "Maximum Assumed
Amount Per Issue" (to be either zero or a stated dollar amount) specified
in Exhibit No. 2 provided that Exhibit No. 2 may be amended only with the
prior consent of the Company, which consent will not be unreasonably
withheld and which consent shall not be required if such amendment is based
on regulatory or rating agency limitations applicable to the Reinsurer or
the Reinsurer's internal risk limits. Any such amended Exhibit No. 2; shall
(x) be in electronic form; (y) be in the format provided in Exhibit No. 2;
and (z) include in its text its effective date substantially similar in
form to the following: "This Amended Exhibit No. 2 Effective as of July 1,
2005"; and shall identify, for each Issuer or Seller/Servicer, the name of
the Issuer or Seller/Servicer and the applicable "Maximum Assumed Amount
Per Issue" for that Issuer or Seller/Servicer (to be either zero or a
stated dollar amount). No amendment to Exhibit No. 2 shall be effective
with respect to any Issue for which the Company has issued a written
mandate letter or other similar written evidence of commitment prior to the
delivery of such amendment.
C. The Company maintains the right in its sole discretion to exclude any
Policy that would have otherwise been ceded hereunder. The Company shall
provide a list of any such Policies to the Reinsurer on a quarterly basis.
The Reinsurer shall have the right, upon written notice to the Company
given no later than 15 Business Days after receipt of such quarterly list
of excluded Policies, to assume the Reinsurer's Percentage Share of the Pro
Rata Share of the liabilities for Net Loss and Net Allocated Loss
Adjustment Expense of any such excluded Policy. In the event the Reinsurer
exercises such right, the Pro Rata Share with respect to such Policy shall
be determined by the Company in accordance with the terms hereof.
8
D. No Policy shall be ceded to the Reinsurer hereunder if the Issuer, Seller
or Servicer under such Policy is listed on the Company's most current
Caution List; provided, however, that this Section D shall not apply with
respect to Refinancing Obligations.
E. Nothing in this Agreement requires the Company to cede any CDO business
covered hereunder that has already been ceded to another reinsurance cover.
ARTICLE 6
RETENTION AND LIMIT
The Company shall cede and the Reinsurer shall accept the Reinsurer's
Proportionate Share of each Issue relating to Policies covered hereunder. In
addition to being liable for its Proportionate Share of any Net Loss, the
Reinsurer shall be liable for its Proportionate Share of Net Allocated Loss
Adjustment Expense.
With respect to Policies for which the Par Amount of the Issue exceeds [ * ],
the Company shall cede to the Reinsurer the Reinsurer's Percentage Share of a
Pro Rata Share of Par Amount, which Pro Rata Share shall, at the Company's
election, be [ * ] In the event that the Company maintains a minimum net
retained share of gross insured outstanding principal under all Issues for such
an Issuer, Seller or Servicer equal to at least 50% (excluding Issues that have
been advance refunded), the Company shall cede to the Reinsurer the Reinsurer's
Percentage Share of a Pro Rata Share up to [ * ] of each Issue for such Issuer.]
With respect to any Policy ceded by the company hereunder, the Reinsurer's
Proportionate Share of the Pro Rata Share of Par Amount of any Issue related to
such Policy shall not exceed the Single Issue Limit set forth in the table below
next to the "Business Class" applicable to such Policy, as classified by the
Company (pursuant to the Company's risk codes attached hereto as Exhibit No. 3
and made a part hereof):
[ * ]
* Confidential treatment requested for redacted portion.
The Company and/or its affiliates maintain the right to purchase non
proportional and excess of loss reinsurance (or similar types of loss
protection) with respect to Policies. Such reinsurance shall inure to the sole
benefit of the Company or its affiliates. The Company shall be able to obtain
loss protection for a Policy which may inure to the benefit of the Reinsurer,
regardless of whether the Reinsurer has consented to the purchase thereof and
the Company shall be entitled to deduct the Reinsurer's Proportionate Share of
the cost of such loss protection from any amount payable to the Reinsurer
hereunder. The Company agrees to notify the Reinsurer in writing, after the end
of each calendar quarter, in the event that its net exposure to any Policy ceded
hereunder is zero; provided that the failure to provide such notice shall not
affect any rights or obligations of any party under this Agreement.
The parties agree that Exhibit No. 3 may be amended by the Company effective the
first day of any calendar quarter, provided that (i) the Company submits an
amended Exhibit No. 3 to the Reinsurer at least 30 Business Days prior to the
effective date of the amended Exhibit No. 3 and
9
(ii) the amended Exhibit No. 3 is (x) delivered to the Reinsurer in electronic
form, (y) is in the format provided in Exhibit No. 3, and (z) includes in its
text its effective date substantially similar in form to the following: "This
Amended Exhibit No. 3 Effective as of July 1, 2005."
ARTICLE 7
DEFINITIONS
A. "Allocated Loss Adjustment Expenses" as used in this Agreement means all
court costs, interest upon judgments, and mitigation, investigation,
adjustment, and legal expenses chargeable to or incurred in: (i) the
mitigation, investigation, negotiation, settlement of or defense against a
Loss, (ii) loss prevention, mitigation or investigation in respect of
Policies as to which the Company has posted a loss reserve, (iii) the
investigation, prevention and workout of a potential Loss, or (iv) the
protection, perfection and exercise of any subrogation or salvage or
reimbursement rights or security interests with respect to a Policy.
Allocated Loss Adjustment Expenses shall exclude all office expenses,
salaries and other compensation and expenses of officials and employees of
the Company, and all expenses (including, but not limited to, travel and
costs and expenses incurred in respect of the outside consultants and
independent contractors) attributable to routine surveillance activities.
B. "Applicable Rating Agencies" as used in this Agreement mean Moody's and
Standard and Poor's.
C. "Business Day" means any day other than a Saturday, Sunday or holiday on
which banks in New York, New York and ▇▇▇▇▇▇▇▇, Bermuda are not open for
business.
D. "Issue" as used in this Agreement means all obligations of one Issuer sold
or created simultaneously which are covered by a Policy or several related
Policies and which may be secured by a single revenue source (with
essentially the same structure), accepting credit risk on a common pool of
reference credits or obligations, or in the case of structured finance or
asset-backed securities, secured by a common pool of assets. The Company
shall be the sole judge of what constitutes one Issue.
E. "Issuer"" as used in this Agreement means, with respect to an Issue, the
entity issuing the bonds, notes, or other instruments comprising the Issue
or the entity whose obligations are the subject of a Policy or several
related Policies. The Company shall be the sole judge of what constitutes
one Issuer.
F. "Loss" as used in this Agreement means the aggregate amount of payments for
which the Company is liable with respect to a claim under a Policy.
G. "Moody's" as used in this Agreement means ▇▇▇▇▇'▇ Investors Services, Inc.
H. "Net" as used in this Agreement means, with respect to any Policy, after
giving effect to other Policy specific facultative and/or quota share or
other non-proportional reinsurance in effect with respect to such Policy
inuring to the benefit of this Agreement.
10
I. "Net Premium" as used in this Agreement means, with respect to any Policy,
all premium received by the Company in respect of such Policy, less premium
paid by the Company for other Policy specific facultative and/or treaty
reinsurance in effect with respect to such Policy inuring to the benefit of
this Agreement.
J. "Par Amount" as used in this Agreement means the face amount of an Issue or
Issues, except in the case of zero coupon or originally issued discount
bonds or notes, in which case the Par Amount shall exclude the accreted
interest component of the face amount.
K. "Policy" as used in this Agreement means each binder, policy, surety bond
or contract of insurance or reinsurance or amendment or endorsement thereto
issued by the Company and constituting business covered as defined in the
Business and Territory Covered Article. The Company shall be the sole judge
of what constitutes a Policy under this Agreement.
L. "Proportionate Share" as used in this Agreement with respect to any Policy
means the Reinsurer's Percentage Share times the Pro Rata Share applicable
to that Policy.
M. "Pro Rata Share" as used in this Agreement means the percentage specified
as such by the Company with respect to a particular Policy at the time the
Policy is ceded to the Reinsurer.
N. "Reinsurer's Percentage Share" as used in this Agreement means the
percentage specified in Article 26 of this Agreement.
O. "Seller" as used in this Agreement means a selling or servicing
organization that originates and/or services assets that back asset-backed
or mortgage-backed securities.
P. "Servicer" as used in this Agreement means a servicing organization that
services assets that back asset-backed or mortgage-backed securities.
Q. "Standard & Poor's" or "S&P" as used in this Agreement means Standard &
Poor's Rating Services, Inc.
ARTICLE 8
PREMIUM AND COMMISSION
The Company shall pay to the Reinsurer its Proportionate Share of the Net
Premium after deducting from such Net Premium a flat ceding commission equal to
the amount set forth below. Such ceding commission shall be based on the
then-current reinsurance credit which the Company receives with respect to the
reinsurance provided by the Reinsurer under the applicable rating agency method,
whichever is lower. In addition, the Company may, in its sole discretion,
immediately adjust the ceding commission with respect to any policies reinsured
under any other reinsurance agreement between the Company and the Reinsurer in
line with the then current reinsurance credit which the Company receives under
the applicable rating agency method, whichever is lower.
11
[ * ]
* Confidential treatment requested for redacted portion.
At any time, the Reinsurer may adjust the ceding commission by either (x)
restoring of increasing the Reinsurer's Standard & Poor's and Moody's financial
strength or financial enhancement ratings such that the Company receives an
increase in capital credit, or (y) providing such additional security as would
be necessary to restore or increase the reinsurance credit that the Company
receives under the rating agency method, it being agreed that all costs and
expenses related to such efforts shall be the sole responsibility of the
Reinsurer.
If the reinsurance credit the Company receives is either increased or decreased
as set forth above, the revised ceding commission figure shall be applied to any
Net Premium paid to the Reinsurer and to the amount of the unearned premium
reserve from and after the time of the occurrence of the event which
precipitated such increase or decrease.
No exercise of any right pursuant to this Article 8 and no failure or delay by
the Company in exercising any right, power or privilege arising under this
Agreement, including, without limitation the Company's ability to terminate this
Agreement and other reinsurance agreements on a run-off or cut-off basis as set
forth in Article 2 hereof, will operate as a waiver thereof, nor will any single
or partial exercise of any right under this Article 8 preclude any other or
further exercise of any right, power or privilege of the Company arising under
this Agreement.
Nothing in this Agreement shall entitle the Reinsurer to receive any
compensation other than as may described in this Article 8 and any such
compensation shall be limited to the compensation to be received by the
Reinsurer as set forth in this Article 8 and Article 11.
ARTICLE 9
ACCOUNTS, REPORTS AND PAYMENTS
A. The Company shall furnish to the Reinsurer monthly accounts of Policies
ceded hereunder within 25 days after the close of each calendar month,
showing premiums due the Reinsurer, adjustments to premium reserves, if
any, and ceding commission, Federal Excise Tax, if any, the Proportionate
Share of paid Losses and Allocated Loss Adjustment Expenses due from the
Reinsurer, supported by statistical details as set forth herein.
The net balance shown shall be payable by the debtor party at the time the
account is rendered, if the Company is the debtor party, and within 10 days
of the Reinsurer's receipt of the account, if the Reinsurer is the debtor
party.
B. The statistical details referred to in the preceding paragraph shall be
comprised of the following:
1. Net Premiums ceded during the month;
2. Less ceding commissions with respect to Policies ceded during the
month;
12
3. Less U. S. Federal Excise Tax, to the extent applicable;
4. Less the Reinsurer's Proportionate Share of Net Losses paid during the
month;
5. Less the Reinsurer's Proportionate Share of Net Allocated Loss
Adjustment Expenses paid by the Company during the month;
6. Plus the Reinsurer's Proportionate Share of Net subrogation, salvage
and other recoveries received by the Company on Net Losses and Net
Allocated Loss Adjustment Expenses under the Policies;
7. Net balance due the Reinsurer or the Company, as the case may be.
C. In addition to the monthly account required by Section B of this Article,
with respect to all in-force business covered by this Agreement, the
Company shall provide to the Reinsurer within 45 days of the close of each
calendar quarter, (i) quarterly reports showing the Reinsurer's
Proportionate Share of all Net contingency, Loss, Allocated Loss Adjustment
Expenses, and unearned premium reserves maintained by the Company (ii) any
"credit watch" or "caution list" reports prepared by the Company with
respect to such ceded Policies, and (iii) such additional statistics as may
reasonably be required by the Reinsurer on such ceded Policies.
D. All reports delivered pursuant to this Article 9 shall itemize Allocated
Loss Adjustment Expenses so that such expenses are separately identifiable
by (i) Policy or, (ii) if more than one Policy covers the same Issuer,
Seller or Servicer, by Issuer, Seller or Servicer (as the case may be).
E. The Reinsurer shall provide the Company with such information as the
Company may reasonably request.
ARTICLE 10
CLAIMS AND LOSSES
(1) The Company shall have complete and sole control of and direction of all
efforts to: (i) mitigate, investigate, negotiate, settle or defend a Net
Loss, (ii) prevent, mitigate, or investigate a probable Net Loss under
Policies as to which the Company has posted a loss reserve, (iii)
investigate and work out a potential Net Loss, and (iv) to protect, perfect
and exercise any subrogation, salvage or reimbursement rights or security
interests with respect to any Policy, and may take any action as it may
deem advisable with respect thereto. All Net Loss settlements by the
Company, all salvage and subrogation settlements, and all settlements with
an Issuer (or with an underlying obligor of that Issuer), shall be final,
conclusive and unconditionally binding upon the Reinsurer and the Reinsurer
hereby agrees to be bound by any determination made by the Company
hereunder.
(2) The Company will give to the Reinsurer at least three Business Days' notice
of Net Loss that the Company will require a cash loss payment for all Net
Losses; and such payment
13
is due within one Business Day of receipt by the Reinsurer of such notice
of Net Loss. The Reinsurer shall effect payment by wire transfer of federal
funds to the party designated by the Company in the notice. Details of the
Net Loss will be provided to the Reinsurer by the Company promptly by mail,
or by such other means as requested by the Reinsurer.
(3) The Reinsurer shall pay to the Company the Reinsurer's Proportionate Share
of any Net Allocated Loss Adjustment Expenses paid by the Company at the
times and in the manner specified in the Accounts, Reports and Payments
Article.
ARTICLE 11
SALVAGE AND SUBROGATION
(1) The Company shall pay the Reinsurer the Reinsurer's Proportionate Share of
any Recovery in respect of any Net Loss covered by the Reinsurer under this
Agreement at the times and in the manner specified in the Accounts, Reports
and Payments Article.
(2) "Recovery" as used in this Agreement means any amount received by the
Company in respect of any Net Loss covered by the Reinsurer under this
Agreement whether by subrogation, salvage, or reimbursement from the Issuer
(or from an underlying obligor of that Issuer).
ARTICLE 12
REINSURANCE FOLLOWS ORIGINAL POLICIES
This Agreement shall be construed as an honorable undertaking between the
parties hereto and shall not be defeated by technical legal construction, it
being the intention of this Agreement that the fortunes of the Reinsurer with
respect to a Net Loss covered by the Reinsurer under this Agreement or with
respect to any exercise by the Company pursuant to the first paragraph of
Article 10 hereunder shall follow the fortunes of the Company. Nothing herein
shall in any manner create any obligations or establish any rights against the
Reinsurer in favor of any third parties or any persons not parties to this
Agreement.
ARTICLE 13
TAXES
The Company shall be liable for all taxes due on the Premiums paid with respect
to the Policies. For any portion of the Reinsurer's Proportionate Share of
Premium due to the Reinsurer pursuant to Article 8 hereof which is subject to
U.S. Federal Excise Tax, the Company shall act as the withholding agent and
remit such tax to the United States Internal Revenue Service as set forth in
Article 14 hereof.
The Company shall not be liable for any taxes (including, without limitation,
any United Kingdom Insurance Premium Tax or similar tax on reinsurance premiums
that may apply or be imposed prospectively by any taxing authority or
jurisdiction) imposed on the Reinsurer's
14
Proportionate Share of Premium due or paid by the Company to the Reinsurer
pursuant to this Agreement. The Reinsurer shall not be liable for any taxes that
may be imposed on ceding commissions due or paid by the Reinsurer to the Company
pursuant to this Agreement.
ARTICLE 14
FEDERAL EXCISE TAX
(This Article applies only to those reinsurers domiciled outside of the United
States of America who are not exempt from the Federal Excise Tax.)
In the event that any United States Federal Excise Tax is due with respect to
any premium due under this Agreement, the Company agrees to withhold and remit
such tax to the United States Internal Revenue Service on behalf of the
Reinsurer.
For any reinsurance premium payments made to a foreign reinsurer, the Company is
required under the Internal Revenue Code to withhold, for U.S. Federal Excise
Tax purposes, 1% of the gross premiums paid on policies of reinsurance that
cover risks wholly or partly within the United States unless:
1. the reinsurance premiums paid to the foreign reinsurer are exempt from
U.S. Federal Excise Tax pursuant to an applicable U.S. income tax
treaty; or
2. the foreign reinsurer elects under Internal Revenue Code Section
953(d) to be treated as a U.S. insurance company for all purposes of
the Internal Revenue Code.
The Company must receive a signed statement on an annual basis from an officer
of the foreign reinsurance company certifying that it qualifies under either of
the foregoing exceptions in order for the Company not to withhold the 1% U.S.
Federal Excise Tax on the reinsurance premiums that it pays to the foreign
reinsurer.
The foreign reinsurer must provide written notice to the Company to the extent
that the reinsurer retrocedes to a foreign reinsurer any risk undertaken with
respect to any Policy.
In the event of any return of premium becoming due hereunder, the Reinsurer will
deduct the percentage specified by United States law from the amount of the
return and the Company or its agent should take steps to recover the Tax from
the United States Government.
ARTICLE 15
ACCESS TO RECORDS
The Reinsurer and its duly designated representatives shall have the right to
inspect at all reasonable times the books, records, and documents of the Company
with respect to its participation in the insurance or reinsurance provided by
the Company. In addition, the Company shall, and shall cause its affiliates and
agents to make available any director, officer or employee of the Company and/or
its affiliates and agents, to interview in connection with this Agreement
15
and the Policies; The Reinsurer's rights under this provision shall survive
termination of this Agreement and shall continue to exist as long as one of the
parties hereto has a claim against any other arising from this Agreement. The
Reinsurer hereby agrees that it will, at least 90 days in advance of undertaking
an activity in competition with the Company's primary financial guaranty
insurance business, notify the Company of any such planned activity (including
defining the areas to be included in such activity and the proposed extent
thereof), and under such circumstances the Company may limit or restrict
Reinsurer's access to its books, records and documents that are related to any
such activity to the extent that the Company believes such information to be
proprietary, confidential, integral or essential to its business and which it
believes is not essential to the Reinsurer's business or operations covered by
this Agreement.
ARTICLE 16
CURRENCY
Where the word "dollars" and/or the sign "$" appear in this Agreement, they
shall meal United States dollars.
For purposes of this Agreement, where the Company receives premiums or pays
losses in currencies other than United States dollars, any payments of such
amounts, or portions, thereof, to the Reinsurer may be remitted in either the
original currency received by the Company or in United States dollars; provided,
however, where the Company receives premiums or pays losses in currencies other
than United States dollars, to the extent the Company converts such premiums or
losses into United States dollars, such premiums of losses shall be converted
into United States dollars at the actual rates of exchange at which these
premiums or losses are entered in the Company's books.
ARTICLE 17
SERVICE OF SUIT
(This Article shall apply only if the Reinsurer is domiciled outside of the
United States of America or if the Reinsurer is not authorized in the State of
New York.)
(1) In the event of the failure of the Reinsurer to pay any amount claimed to
be due hereunder, the Reinsurer, at the request of the Company, will submit
to the jurisdiction of a court of competent jurisdiction within the United
States of America. 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 of
America, to remove an action to a district court of the United States of
America, or to seek a transfer of a case to another court as permitted by
the laws of the Unites States of America or of any State in the United
States of America. It is further agreed that service of process on the
Reinsurer in such suit may be made upon Messrs Mendes & Mount, ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or other agent previously designated
by the Reinsurer which designation has been previously notified to the
Company), and that in any suit instituted against the Reinsurer, the
Reinsurer will abide by the final decision of such court or, in the case of
an appeal, the appellate court.
16
(2) The above-named firm is authorized and directed to accept service of
process on behalf of the Reinsurer in any such suit and/or upon the request
of the Company to give written undertaking to the Company that such firm
will enter a general appearance upon the Reinsurer's behalf in the event
such a suit shall be instituted.
(3) Further, pursuant to any statute of any state, territory or district of the
United States of America which makes provision therefor, the Reinsurer
hereon hereby designates the superintendent, commissioner or director of
insurance or other officer specified for that purpose in the statute, or
his successor or successors in office, as its true and lawful attorney upon
whom may be served any lawful process in action, suit or proceeding
instituted by or on behalf of the Company or any beneficiary hereunder
arising out of this Agreement, and hereby designates the above named as the
person to whom the said officer is authorized to mail such process or a
true copy thereof.
ARTICLE 18
ARBITRATION
(1) As a condition precedent to any right of action hereunder, any dispute
arising out of or related to this Agreement shall be finally settled by
arbitration. The arbitration shall be conducted by a board of arbitration
composed of two arbitrators and an umpire, meeting in Armonk, New York,
unless otherwise agreed.
(2) The members of the board of arbitration shall be active or retired
disinterested officials of insurance or reinsurance companies. Each party
shall appoint its arbitrator, and the two arbitrators shall choose an
umpire before instituting the hearing. If the respondent fails to appoint
its arbitrator within four weeks after being requested to do so by the
claimant, the latter shall also appoint the second arbitrator. If the two
arbitrators fail to agree upon the appointment of an umpire within four
weeks after their nominations, the umpire shall be selected by the regional
director of the American Arbitration Association in New York, New York, or
the regional director's delegate. The arbitration shall be conducted in the
English language.
(3) The claimant shall submit its initial brief within 20 days from appointment
of the umpire. The respondent shall submit its brief within 20 days after
receipt of the claimant's brief and the claimant shall submit a reply brief
within 10 days after receipt of the respondent's brief.
(4) The board shall make its decision with regard to the custom and usage of
the insurance and reinsurance business. The board shall issue its decision
in writing based upon a hearing in which evidence may be introduced without
following strict rules of evidence but in which cross-examination and
rebuttal shall be allowed. The board shall make its decision within 60 days
following the termination of the hearings unless the parties consent to an
extension. The majority decision of the board shall be final and binding
upon all parties to the proceeding. Judgment may be entered upon the award
of the board in any court having jurisdiction thereof or having
jurisdiction over the parties or their assets.
17
(5) 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 the one party; provided, however, that nothing
herein shall impair the rights of such reinsurers to assert several, rather
than joint, defenses or claims, nor be construed as changing the liability
of the reinsurers under the terms of this Agreement from several to joint.
(6) Each party shall bear the expense of its own arbitrator and shall jointly
and equally bear with the other party the expense of the umpire. The
remaining costs of the arbitration proceedings shall be allocated by the
board.
(7) Unless prohibited by applicable law, an arbitral award hereunder and any
judgment thereon shall bear interest from the date the arbitral award was
rendered at the rate equal from time to time to the rate publicly announced
by Citibank, N. A., as its base rate plus 2%.
(8) The parties consent to the jurisdiction of the Supreme Court of the State
of New York, County of New York, and of the United States District Court
for the Southern District of New York, for all purposes in connection with
such arbitration, including without limitation any application to compel
arbitration or to confirm an arbitration award. The parties consent that
any process or notice of motion or other application to either of said
Courts, and any paper in connection with arbitration, may be served by
certified mail, return receipt requested, or by personal service or in such
other manner as may be permissible under the rules of the applicable court
or panel provided a reasonable time for appearances is allowed. Service
upon the Company shall be directed to the Company, in care of the Company's
General Counsel. Service upon the Reinsurer shall be directed to the
Reinsurer in care of its General Counsel.
ARTICLE 19
INDEMNIFICATION AND ERRORS AND OMISSIONS
Any recitals in this Agreement to the terms and provisions of any original
insurance or reinsurance are merely descriptive. The Reinsurer is reinsuring, to
the amount herein provided, the obligations of the Company under any original
insurance or reinsurance. The Company, shall be the sole judge as to:
(a) what shall constitute a claim or loss covered under any original
insurance of reinsurance written by the Company;
(b) the Company's liability thereunder; and
(c) the amount or amounts which it shall be proper for the Company to pad
thereunder.
The Reinsurer shall be bound by the judgment of the Company as to the
obligation(s) an( liability(ies) of the Company under any original insurance or
reinsurance.
18
Any inadvertent error, omission or delay in complying with the terms and
conditions of this Agreement shall not be held to relieve either party hereto
from any liability which would attach to it hereunder if such error, omission or
delay had not been made, provided such error, omission or delay is rectified
immediately upon discovery.
ARTICLE 20
INSOLVENCY
(1) In the event of the insolvency of the Company, reinsurance provided by this
Agreement shall be payable by the Reinsurer on the basis of the liability
of the Company under the Policies ceded without diminution because of the
insolvency of the Company or because its liquidator, receiver, conservator
or statutory successor (hereinafter referred to as the "Liquidator") has
failed to pay all or a portion of any claim. The Liquidator shall give
written notice to the Reinsurer of the pendency of a claim against the
Company under any Policy ceded to Reinsurers and covered by this Agreement
within a reasonable time after such claim is filed in the conservation or
liquidation proceeding or in the receivership. During the pendency of such
claim, the Reinsurer may investigate such claim and interpose at its own
expense, in the proceeding where such claim is to be adjudicated, any
defense or defenses that it may deem available to the Company or the
Liquidator. The expense thus incurred by the Reinsurer shall be chargeable,
subject to the approval of the court, against the Company as part of the
expense of conservation or liquidation to the extent of a Proportionate
Share of the benefit which may accrue to the Company solely as a result of
the defense undertaker by the Reinsurer.
(2) Where two or more Reinsurers are involved in the same claim and a majority
in interest elect to interpose defense to such claim, the expense shall be
apportioned in accordance with the terms of this Agreement as though such
expense has been incurred by the Company.
(3) In the event of the insolvency of the Company, the reinsurance provided by
this Agreement shall be payable directly by the Reinsurer to the Company or
to the Liquidator, except (a) where the Policy 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 the direct
insured(s) has assumed the obligations of the Company under the Policies as
the direct obligations of the Reinsurer to the payees under such Policies
and in substitution for the obligations of the Company to such payees.
ARTICLE 21
SECURITY
(1) When a governing body of any jurisdiction in which the Company legally
operates or to which it submits, requires as a condition to credit for the
reinsurance provided by this Agreement that the Reinsurer post a Letter of
Credit for the benefit of the Company, establish a Trust Account for the
benefit of the Company or deposit funds under the control of the Company
then the Reinsurer, at its option, shall either (a) post and maintain
19
such a Letter of Credit, or (b) establish such a Trust Account, or (c)
deposit such funds in the form and amount necessary to permit the Company
to avoid on any statutory financial statement filed by the Company the
penalty to surplus which would result from the loss of credit for the
reinsurance. In addition, with respect to the reinsurance ceded hereunder
of any Policy issued by MBIA Assurance S.A. and/or MBIA UK Insurance
Limited, the Reinsurer, at its option, shall either (a) post and maintain a
Letter of Credit, or (b) establish a Trust Account, or (c) deposit funds in
the form and amount necessary to permit the Company, under the applicable
laws and regulations in the State of New York, to avoid on any statutory
financial statement filed by the Company the penalty to surplus which would
result from the loss of credit for the reinsurance for such Policies if the
Company had issued such Policies and ceded the reinsurance directly to the
Reinsurer hereunder.
(2) 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 Proportionate Share of
Net Losses and Net Allocated Loss Adjustment Expenses paid by the
Company under this Agreement;
(b) if this Agreement has been terminated pursuant to the Commencement and
Termination Article, to reimburse the Company for unearned premium due
to the Company;
(c) to fund an account with the Company in an amount at least equal to the
deduction allowed for the reinsurance provided by this Agreement, from
the Company's liabilities for Policies ceded under the Agreement, such
amount to include, if applicable, but not be limited to, amounts for
net contingency reserves, loss reserves for paid, reported and
incurred but not reported losses, allocated loss adjustment expense
reserves and unearned premium reserves; or
(d) to pay any other amounts the Company claims are due under the
Agreement.
All of the foregoing should be applied without diminution because of insolvency
on the part of the Company or Reinsurer.
(3) If the Reinsurer elects to provide a Letter of Credit under section (1) of
this Article, the Reinsurer shall cause the Letter of Credit to be issued,
in place and effective no later than the "as of date" of the first
quarterly filing prepared by the Company for the appropriate regulatory
authority after the Effective Time.
(4) The Reinsurer may comply with section (1) of this Article by entering into
a trust agreement to establish a Trust Account for the benefit of the
Company that meets the requirements of New York Insurance Department
Regulation 114 to cover an amount
20
equal to or greater than reserves to be maintained by the Reinsurer. The
assets deposited in such trust account shall be valued according to their
fair market value and shall consist only of cash (United States legal
tender), certificates of deposit (issued by a United States bank and
payable in United States legal tender), and investment of the types
specified in paragraphs (1), (2), (3), (8) and (10) of New York Insurance
Law Section 1404(a), provided that such investments are issued by an
institution that is not a parent, subsidiary or affiliate of either the
Reinsurer or the Company. Prior to depositing assets with the trustee, the
Reinsurer shall execute assignments, endorsements in blank, or transfer
legal title to the trustee of all shares, obligations or any other assets
requiring assignments, in order that the Company, or the trustee upon the
direction of the Company, may whenever necessary negotiate any such assets
without consent or signature from the Reinsurer or any other entity. All
settlements of account under such a trust agreement between the Company and
the Reinsurer shall be made in cash or its equivalent. The Reinsurer and
the Company agree that the assets in the trust account may be withdrawn by
the Company at any time and be used and applied 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, without diminution because of insolvency of the Company or the
Reinsurer, only for the following purposes:
(a) to reimburse the Company for the Reinsurer's Proportionate Share of
Net Losses and Net Allocated Loss Adjustment Expenses paid by the
Company under this Agreement;
(b) if this Agreement has been terminated pursuant to the Commencement and
Termination Article, to reimburse the Company for unearned premium due
to the Company;
(c) to fund an account with the Company in an amount at least equal to the
deduction allowed for the reinsurance provided by this Agreement, from
the Company's liabilities for Policies ceded under the Agreement, such
amount to include, if applicable, but not be limited to, amounts for
Net contingency reserves, loss reserves for paid, reported and
incurred but not reported losses, allocated loss adjustment expense
reserves and unearned premium reserves; or
(d) to pay any other amounts the Company claims are due under the
Agreement.
All of the foregoing should be applied without diminution because of insolvency
on the part of the Company or Reinsurer.
ARTICLE 22
RESERVES AND RISK LIMITS
When a regulatory body of any jurisdiction in which the Company legally operates
or to which it submits its statutory financial statements requires as a
condition to credit for the reinsurance provided by this Agreement that the
Reinsurer establish and maintain certain reserves (including but not limited to
contingency, unearned premium, loss and loss expense reserves upon the
21
liabilities ceded under this Agreement) and risk limits, the Reinsurer shall
establish and maintain those reserves and risk limits. Without limiting the
generality of the foregoing, the Reinsurer hereby acknowledges that in order for
the Company to obtain credit for the reinsurance provided by this Agreement in
determining its reserves and risk limits under the New York and Florida
Insurance Laws, the Reinsurer must establish and maintain a reserve in an amount
equal to the Reinsurer's Proportionate Share of the amount by which the Company
reduces its contingency reserves attributable to the Policies covered by the
Agreement and the Reinsurer agrees to establish such a reserve. The amount of
reserves to be established by the Reinsurer to meet these requirements will be
reported quarterly by the Company pursuant to the Accounts, Reports, and
Payments Article.
ARTICLE 23
CONFIDENTIALITY
As a condition to receiving any information from MBIA with respect to any Policy
(the "MBIA Information") the Reinsurer agrees to: (i) hold and treat the MBIA
Information in strict confidence, (ii) use it solely for the purpose of its
reinsurance pursuant to this Agreement, (iii) take all reasonable measures to
keep the MBIA Information secret and confidential, (iv) disclose the MBIA
Information only to (a) those officers, directors, employees, advisors, legal
counsel and auditors (collectively, "Representatives") who "need to know" in
order to evaluate the transactions contemplated by this Agreement, (b) any
rating agency in connection with their rating of the Reinsurer, (c) regulatory
authorities having applicable jurisdiction over the Reinsurer or the transaction
to which such MBIA Information relates, but only as may be required or requested
by such regulatory authorities, and (d) as may be necessary or appropriate in
connection with any retrocession; provided, that (1) in the case of disclosure
pursuant to (a) - (d) above the Reinsurer will inform such Representatives or
other persons set forth in this clause (iv) that the MBIA Information in
confidential and direct them to keep it confidential, and (2) in the case of
disclosure pursuant to (d) above, receipt by the Reinsurer, which will be made
available to MBIA upon request of a written obligation of confidentiality that
covers the MBIA Information from any proposed retrocessional reinsurer
containing provisions substantially similar to those set fort in this paragraph,
and further that the Reinsurer shall remain liable hereunder for any breach by
such prospective retrocessional reinsurer, and (v) not disclose or otherwise
make available any of the MBIA Information to any third party, except as set
forth in (iv) above without MBIA's written consent. Notwithstanding anything
contained herein to the contrary, any MBIA Information which is in the public
domain (through no breach of this paragraph by Reinsurer or any of its
Representatives of the obligations set forth in this paragraph), (2) was
lawfully in Reinsurer's or any of its Representatives' possession at the time of
disclosure; or (3) MBIA Information which was lawfully received from a third
party that, to the Reinsurer's or any of its Representatives' knowledge, was not
under an obligation of confidentiality, directly or indirectly, to MBIA will not
be deemed confidential. If the Reinsurer is requested or required in connection
with a judicial or governmental proceeding or by applicable law or regulation to
disclose any MBIA Information, unless prohibited by applicable law, court order,
subpoena or similar legal process, the Reinsurer shall provide MBIA with timely
notice of such request so that MBIA can seek, at MBIA's expense, an appropriate
protective order. It is understood and agreed that MBIA would be irreparably
injured by a breach of these conditions, that money damages would not be a
sufficient remedy for any breach, and
22
that, in addition to MBIA's remedies available at law for losses, claims,
damages, liabilities or expenses suffered or incurred in connection with a
breach of this Confidentiality provision, or in equity, MBIA will be entitled to
seek, and to obtain, specific performance and injunctive or other equitable
relief as a remedy for any breach.
ARTICLE 24
OFFSET
Each party hereto 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 Net
Premiums or on account of Net Losses or otherwise, due from such party to the
other party hereto under this Agreement or under any other reinsurance agreement
heretofore or hereafter entered into by and between them, and may offset the
same against any balance or balances due or to become due to the former from the
latter under the same or any other reinsurance agreement between them. The party
asserting the right of offset shall have and may exercise such right whether the
balance(s) due or to become due to such party from the other are on account of
premiums or on account of Losses or otherwise and regardless of the capacity,
whether as assuming reinsurer or as ceding company, in which each party acted
under this Agreement. In the event of the insolvency of a party hereto, offsets
shall be allowed only in accordance with the provisions of Section 7427 of the
Insurance Law of the State of New York.
ARTICLE 25
GOVERNING LAW
This Agreement shall be governed by the laws of the State of New York.
ARTICLE 26
PARTICIPATION
[ * ]
* Confidential treatment requested for redacted portion.
ARTICLE 27
ASSIGNMENT
The Reinsurer may not assign any of its rights or obligations hereunder without
the prior written consent of the Company.
23
ARTICLE 28
NOTICE
Except as otherwise expressly provided herein, all notices, requests, demands,
instructions, consents or other communications provided for hereunder shall be
in writing and delivered or mailed by registered or certified mail or by
overnight courier or by facsimile communication, in each case prepaid and
addressed to the intended recipient at its address for notices specified in
paragraph B of this Article.
All notices, requests, demands, consents, approvals or other communications
under this Agreement shall be addressed as follows (or to any other address as
may be designated in writing by the recipient):
If to the Company:
MBIA Insurance Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Reinsurance Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to the Company's General Counsel.
If to the Reinsurer:
RAM Reinsurance Company Ltd
RAM Re House
▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇ ▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇: Chief Risk Manager
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to the Company's General Counsel.
The Company and Reinsurer shall provide each other, with wiring instructions
promptly after execution of this Agreement and at the time of any change in such
instructions.
24
IN WITNESS WHEREOF the parties hereto, by their respective duly authorized
officers, have executed this COMPREHENSIVE AUTOMATIC TREATY REINSURANCE
AGREEMENT, in triplicate, as of the dates recorded below:
ACCEPTED:\
At: Hamilton, Bermuda
Reinsurer: RAM Reinsurance Company Ltd.
Authorized Signature:
----------------------------------------
Date:
----------------------------------------
At: Armonk New York
Company: MBIA Insurance Corporation
Authorized Signature:
----------------------------------------
Date:
----------------------------------------
Company: MBIA Assurance S.A.
Authorized Signature:
----------------------------------------
Date:
----------------------------------------
Company: MBIA UK Insurance Limited
Authorized Signature:
----------------------------------------
Date:
----------------------------------------
Company: Capital Markets Assurance Corporation
Authorized Signature:
----------------------------------------
Date:
----------------------------------------
25