TO THE EXTENT PERMITTED BY LAW, MAKE COMMERCIALLY REASONABLE EFFORTS TO
NOTIFY THE DISCLOSING PARTY PROMPTLY UPON RECEIPT OF THE DEMAND AND PRIOR TO
DISCLOSURE OF THE CONFIDENTIAL INFORMATION AND PROVIDE THE DISCLOSING PARTY A
REASONABLE OPPORTUNITY TO OBJECT TO THE
17
DISCLOSURE. IF SUCH NOTICE IS PROVIDED, THE RECEIVING PARTY MAY AFTER THE
PASSAGE OF FIVE (5) BUSINESS DAYS AFTER PROVIDING NOTICE, PROCEED TO DISCLOSE
THE CONFIDENTIAL INFORMATION AS NECESSARY TO SATISFY SUCH A DEMAND WITHOUT
VIOLATING THIS AGREEMENT. IF THE DISCLOSING PARTY TIMELY OBJECTS TO THE RELEASE
OF THE CONFIDENTIAL INFORMATION, THE RECEIVING PARTY WILL COMPLY WITH THE
REASONABLE REQUESTS OF THE DISCLOSING PARTY IN CONNECTION WITH THE DISCLOSING
PARTY'S EFFORTS TO RESIST RELEASE OF THE CONFIDENTIAL INFORMATION. THE
DISCLOSING PARTY SHALL BEAR THE COST OF RESISTING THE RELEASE OF THE
CONFIDENTIAL INFORMATION.
ARTICLE XXII
OFFSET
The Company and the Reinsurer shall have the right to offset any balance or
amounts due from one party to the other under the terms of this Agreement,as
permitted by sections 1308 and 7427 of the New York Insurance Law. The party
asserting the right of offset may exercise such right any time whether the
balances due are on account of premiums or losses or otherwise. However, in the
event of the insolvency of any party hereto, offset shall only be allowed in
accordance with applicable law.
ARTICLE XXIII
RECOVERIES
A.
ALL RECOVERIES, INCLUDING BUT NOT LIMITED
TO SALVAGE, SUBROGATION, PAYMENTS AND REVERSALS OR REDUCTIONS OF VERDICTS OR
JUDGMENTS (NET OF THE COST OF OBTAINING SUCH RECOVERY, PAYMENT OR REVERSAL OR
REDUCTION OF A VERDICT OR JUDGMENT) WHETHER RECOVERED, RECEIVED OR OBTAINED
PRIOR OR SUBSEQUENT TO A LOSS SETTLEMENT UNDER THIS AGREEMENT, INCLUDING AMOUNTS
RECOVERABLE UNDER OTHER REINSURANCE WHETHER COLLECTED OR NOT, SHALL BE APPLIED
AS IF RECOVERED, RECEIVED OR OBTAINED PRIOR TO THE AFORESAID SETTLEMENT AND
SHALL BE DEDUCTED FROM THE ACTUAL LOSSES SUSTAINED TO ARRIVE AT THE AMOUNT OF
THE NET LIABILITY. NOTHING IN THIS ARTICLE SHALL BE CONSTRUED TO MEAN AMOUNTS
ARE NOT RECOVERABLE FROM THE REINSURER UNTIL THE FINAL NET LIABILITY TO THE
COMPANY HAS BEEN ASCERTAINED. AMOUNTS RECOVERED FROM SALVAGE AND/OR SUBROGATION
WILL ALWAYS BE USED TO REIMBURSE ANY EXCESS REINSURERS (AND THE COMPANY SHOULD
IT CARRY A PORTION OF EXCESS COVERAGE NET) BEFORE BEING USED IN ANY WAY TO
REIMBURSE THE COMPANY AND THE REINSURER HEREON, WHO WILL SHARE PRO-RATA IN ANY
REMAINDER.
B.
THE REINSURER SHALL BE SUBROGATED, AS
RESPECTS ANY LOSS OCCURRENCE FOR WHICH THE REINSURER SHALL ACTUALLY PAY OR
BECOME LIABLE, BUT ONLY TO THE EXTENT OF THE AMOUNT OF PAYMENT BY OR THE AMOUNT
OF LIABILITY TO THE REINSURER, TO ALL THE RIGHTS OF THE COMPANY AGAINST ANY
PERSON OR OTHER ENTITY WHO MAY BE LEGALLY RESPONSIBLE FOR DAMAGES AS A RESULT OF
SAID LOSS OCCURRENCE. SHOULD THE COMPANY ELECT NOT TO ENFORCE SUCH RIGHTS, THE
REINSURER IS HEREBY AUTHORIZED AND EMPOWERED TO BRING ANY APPROPRIATE ACTION IN
THE NAME OF THE COMPANY OR ITS POLICYHOLDERS, OR OTHERWISE TO ENFORCE SUCH