UNDER THIS AGREEMENT, IF SUCH FAILURE OR DELAY IS CAUSED BY FORCE MAJEURE.
"FORCE MAJEURE" SHALL MEAN ANY ACT OF GOD, STRIKE, LOCKOUT, ACT OF PUBLIC ENEMY,
ANY ACCIDENT, EXPLOSION, FIRE, STORM, EARTHQUAKE, FLOOD, DROUGHT, PERIL OF SEA,
RIOT, EMBARGO, WAR OR FOREIGN, FEDERAL, STATE OR MUNICIPAL ORDER OR DIRECTIVE
ISSUED BY A COURT OR OTHER AUTHORIZED OFFICIAL, SEIZURE, REQUISITION OR
ALLOCATION, ANY FAILURE OR DELAY OF TRANSPORTATION, SHORTAGE OF OR INABILITY TO
OBTAIN SUPPLIES, EQUIPMENT, FUEL OR LABOR OR ANY OTHER CIRCUMSTANCE OR EVENT
BEYOND THE REASONABLE CONTROL OF THE PARTY RELYING UPON SUCH CIRCUMSTANCE OR
EVENT; PROVIDED, HOWEVER, THAT NO SUCH FORCE MAJEURE CIRCUMSTANCE OR EVENT SHALL
EXCUSE ANY FAILURE OR DELAY BEYOND A
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PERIOD EXCEEDING TEN (10) DAYS FROM THE DATE SUCH PERFORMANCE WOULD HAVE BEEN
DUE BUT FOR SUCH CIRCUMSTANCE OR EVENT.
I.
ALL ARTICLES OF THIS AGREEMENT SHALL
SURVIVE THE TERMINATION OF THIS AGREEMENT UNTIL ALL OBLIGATIONS BETWEEN THE
PARTIES HAVE BEEN FINALLY SETTLED, PROVIDED HOWEVER THAT THIS AGREEMENT SHALL
NOT BE CONSTRUED TO PROVIDE REINSURANCE FOR BUSINESS COVERED, OTHER THAN AS
SPECIFICALLY DESCRIBED IN THE ARTICLES OF THIS AGREEMENT ENTITLED REINSURANCE
COVERAGE NOR TO LOSS OCCURRING AFTER THE TERMINATION DATE OF THIS AGREEMENT
OTHER THAN AS EXPRESSED IN THE ARTICLE ENTITLED COMMENCEMENT AND TERMINATION.
J.
THIS AGREEMENT MAY BE EXECUTED BY THE
PARTIES HERETO IN ANY NUMBER OF COUNTERPARTS, AND BY EACH OF THE PARTIES HERETO
IN SEPARATE COUNTERPARTS, EACH OF WHICH COUNTERPARTS, WHEN SO EXECUTED AND
DELIVERED, SHALL BE DEEMED TO BE AN ORIGINAL, BUT ALL SUCH COUNTERPARTS SHALL
TOGETHER CONSTITUTE BUT ONE AND THE SAME INSTRUMENT.
K.
EACH PARTY TO THIS AGREEMENT SHALL HONOR
THE TERMS SET FORTH HEREIN AS IF THIS AGREEMENT WERE A SEPARATE AGREEMENT
BETWEEN THE REINSURER AND EACH COMPANY. BALANCES PAYABLE OR RECOVERABLE BY THE
REINSURER, OR EACH NAMED COMPANY, SHALL NOT SERVE TO OFFSET ANY BALANCES,
PAYABLE, OR RECOVERABLE TO, ANY COMPANY HEREUNDER.
REPORTS AND REMITTANCES MADE TO THE REINSURER IN ACCORDANCE WITH THE APPLICABLE
ARTICLES HEREOF ARE TO BE IN SUFFICIENT DETAIL TO IDENTIFY BOTH THE REINSURER'S
LOSS OBLIGATIONS DUE EACH REINSURED COMPANY AND EACH REINSURED COMPANY'S PREMIUM
REMITTANCE UNDER THE REPORT. IN THE EVENT OF INSOLVENCY OF ANY OF THE PARTIES TO
THIS AGREEMENT, OFFSETS SHALL ONLY BE ALLOWED IN ACCORDANCE WITH SECTION 7427 OF
THE NEW YORK INSURANCE LAW.
THIS AGREEMENT IS ENTERED INTO AS OF THE DATE HEREOF BY THE PARTIES HERETO,
SUBJECT IN ANY CASE TO THE SATISFACTION OF APPLICABLE INSURANCE REGULATORY
REQUIREMENTS OF NEW YORK AND MASSACHUSETTS, INCLUDING ANY CONDITIONS SUCH
REGULATORS MAY IMPOSE ON THE TERMS OF THIS AGREEMENT SUBSEQUENT TO THE DATE
HEREOF. SUBJECT TO THE FOREGOING, THIS AGREEMENT SHALL BE EFFECTIVE AS OF
APRIL 1, 2006.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the Company and the Reinsurer have caused this Amended and
Restated Agreement to be executed August 30, 2006.
TOWER INSURANCE COMPANY OF NEW YORK
By:
/s/ Francis M. Colalucci
Name: Francis M. Colalucci
Title: Senior Vice-President and Chief Financial Officer
TOWER NATIONAL