DEFEND IN ACCORDANCE WITH REASONABLE
PROFESSIONAL STANDARDS, THE RETROCESSIONAIRE SHALL HAVE THE RIGHT WITHOUT WAIVER
OR MODIFICATION OF THIS ACCORD AND SATISFACTION TO ASSUME THE DEFENSE OF ANY
ACTIONS AT THE RETROCEDENT'S SOLE COST AND EXPENSE AFTER 10 DAYS WRITTEN NOTICE
TO THE RETROCEDENT AND THE RETROCEDENT SHALL PROVIDE THE RETROCESSIONAIRE WITH
UNENCUMBERED SECURITY WHICH IN THE RETROCESSIONAIRE'S REASONABLE OPINION WILL BE
OF SUCH QUALITY AND IN SUCH AMOUNT AS TO SECURE ITS ESTIMATED FULL COST AND
EXPENSE OF SUCH DEFENSE.
ARTICLE III
INDEPENDENT INVESTIGATION
SECTION 3.1
INDEPENDENT INVESTIGATION.
THE RETROCEDENT AND THE
RETROCESSIONAIRE ACKNOWLEDGE THAT THEY HAVE EACH ENTERED INTO THIS AGREEMENT IN
RELIANCE ON THEIR OWN INDEPENDENT INVESTIGATION AND ANALYSIS OF THE FACTS
UNDERLYING THEIR PARTICIPATION IN THE RETROCESSION AGREEMENT, AND THAT NO
REPRESENTATIONS, WARRANTIES OR PROMISES OF ANY KIND HAVE BEEN MADE, DIRECTLY OR
INDIRECTLY, TO INDUCE THEM TO EXECUTE THIS AGREEMENT OTHER THAN THOSE WHICH ARE
EXPRESSLY SET FORTH HEREIN.
NEVERTHELESS, THE PARTIES ACKNOWLEDGE THAT THEY MAY
LATER DISCOVER FACTS DIFFERENT FROM OR IN ADDITION TO THOSE NOW KNOWN OR
BELIEVED TO BE KNOWN REGARDING THEIR PARTICIPATION IN THE RETROCESSION AGREEMENT
AND AGREE THAT THIS AGREEMENT SHALL REMAIN IN FORCE NOTWITHSTANDING THE
EXISTENCE OF OR BELIEF REGARDING ANY DIFFERENT OR ADDITIONAL FACTS.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.1
REPRESENTATIONS AND WARRANTIES OF EACH PARTY.
EACH PARTY HERETO
REPRESENTS AND WARRANTS TO THE OTHER PARTY THAT:
(A)
THE EXECUTION OF THIS AGREEMENT IS FULLY AUTHORIZED BY IT;
(B)
THE PERSON OR PERSONS EXECUTING THIS AGREEMENT ON ITS BEHALF HAVE THE
NECESSARY AND APPROPRIATE AUTHORITY TO DO SO;
3
(C)
IT HAS NO NOTICE OF ANY PENDING ACTION, AGREEMENTS, TRANSACTIONS, OR
NEGOTIATIONS TO WHICH IT IS A PARTY OR IS LIKELY TO BE MADE A PARTY THAT WOULD
RENDER THIS AGREEMENT OR ANY PART THEREOF VOID, VOIDABLE, OR UNENFORCEABLE; AND
(D)
ANY AUTHORIZATION, CONSENT, OR APPROVAL OF ANY GOVERNMENTAL ENTITY,
REQUIRED TO MAKE THIS AGREEMENT VALID AND BINDING HAS BEEN OBTAINED.
SECTION 4.2
REPRESENTATION AND WARRANTY OF THE RETROCEDENT.
THE RETROCEDENT
REPRESENTS AND WARRANTS TO THE RETROCESSIONAIRE THAT, AS OF THE EFFECTIVE TIME,
THE RETROCEDENT IS NOT STATUTORILY INSOLVENT BASED ON ITS FINANCIAL STATEMENTS
PREPARED IN ACCORDANCE WITH STATUTORY ACCOUNTING PRACTICES WHICH ARE PRESCRIBED
OR PERMITTED BY THE STATE INSURANCE REGULATORY AUTHORITY OF THE STATE OF
DELAWARE.
ARTICLE V
MISCELLANEOUS
SECTION 5.1
HEADINGS.
HEADINGS USED HEREIN ARE NOT A PART OF THIS AGREEMENT
AND SHALL NOT AFFECT THE TERMS HEREOF.
SECTION 5.2
NOTICES.
ALL NOTICES, REQUESTS, DEMANDS AND OTHER COMMUNICATIONS
UNDER THIS AGREEMENT MUST BE IN WRITING AND WILL BE DEEMED TO HAVE BEEN DULY
GIVEN OR MADE AS FOLLOWS:
(A) IF SENT BY REGISTERED OR CERTIFIED MAIL IN THE
UNITED STATES RETURN RECEIPT REQUESTED, UPON RECEIPT; (B) IF SENT BY REPUTABLE
OVERNIGHT AIR COURIER TWO BUSINESS DAYS AFTER MAILING; (C) IF SENT BY FACSIMILE
TRANSMISSION, WITH A COPY MAILED ON THE SAME DAY IN THE MANNER PROVIDED IN (A)
OR (B) ABOVE, WHEN TRANSMITTED AND RECEIPT IS CONFIRMED BY TELEPHONE; OR (D) IF
OTHERWISE ACTUALLY