Arkansas Administrative Code
Agency 054 - Arkansas Insurance Department
Rule 054.00.96-002 - Credit for Reinsurance - Reg. 65
Universal Citation: AR Admin Rules 054.00.96-002
Current through Register Vol. 49, No. 9, September, 2024
SECTION 1. Authority
This regulation is promulgated pursuant to the authority granted to the Arkansas Insurance Commissioner ("Commissioner") by § 23-62-308 and § 23-61-108 of the Insurance Code; and the Administrative Procedure Act, Ark. Code Ann. §§ 25-15-201, et seq., and Section 7 of Act 1272 of 1995.
SECTION 2. Purpose
The purpose of this regulation is to set forth rules and procedural requirements which the Commissioner deems necessary to carry out the provisions of the Arkansas Law on Credit for Reinsurance, Ark. Code Ann. §§ 23-62-201, et seq. and §§ 23-62-301, et seq. of the Insurance Code. The actions and information required by this regulation are hereby declared to be necessary and appropriate in the public interest and for the protection of the ceding insurers in this state.
SECTION 3. Severability
If any provisions of this regulation, or their application to any person or circumstance, is held invalid, such determination shall not affect other provisions or applications of this regulation which can be given effect without the invalid provision or application, and to that end the provisions of this regulation are separable.
SECTION 4. Credit for Reinsurance - Reinsurer Licensed in this State
Pursuant to Ark. Code Ann. § 23-62-305(b), the Commissioner shall allow credit for reinsurance ceded by a domestic insurer to assuming insurers which were licensed in this state as of the date of the ceding insurer's statutory financial statement.
SECTION 5. Credit for Reinsurance - Accredited Reinsurers
A. Pursuant to Ark.
Code Ann. §
23-62-305(c),
the Commissioner shall allow credit for reinsurance ceded by a domestic insurer
to an assuming insurer which is accredited as a reinsurer in this state as of
the date of the ceding insurer's statutory financial statement. An accredited
reinsurer is one which:
(1) Files a properly
executed Form AR-1 or its successor, attached as exhibit "A" to this
regulation, as evidence of its submission to this state's jurisdiction and to
this state's authority to examine its books and records; and
(2) Files with the Commissioner a certified
copy of a letter or a certificate of authority or of compliance as evidence
that it is licensed to transact insurance or reinsurance in at least one state,
as defined in Ark. Code Ann. §
23-60-102(10)
as amended by Act 1272 of 1995, or, in the case of a United States branch of an
alien assuming insurer, is entered through and licensed to transact insurance
or reinsurance in at least one state, as defined in Ark, Code Ann. §
23-60-102(10)
as amended by Act 1272 of 1995; and
(3) Files annually with the Commissioner a
copy of its annual statement filed with the insurance department of its. state
of domicile or, in the case of an alien assuming insurer, with the state
through which it is entered and in which it is licensed to transact insurance
or reinsurance, and a copy of its most recent audited financial statement;
and
(4) Maintains a surplus as
regards policyholders in an amount not less than $20,000,000 and whose
accreditation has not been denied by the Commissioner within ninety (90) days
of its submission or, in the case of companies with a surplus as regards
policyholders of less than $20,000,000, whose accreditation has been approved
by the; Commissioner.
B.
If the Commissioner determines that the assuming insurer has failed to meet or
maintain any of these qualifications, he may upon written notice. and hearing
revoke the accreditation. No credit shall be allowed a domestic ceding insurer
with respect to reinsurance ceded after March 30, 1992 if the assuming
insurer's accreditation has been denied by the Commissioner or revoked by the
Commissioner after notice and hearing.
SECTION 6. Credit for Reinsurance - Reinsurer Domiciled and Licensed in Another State
A.
Pursuant to Ark. Code Ann. §
23-62-305(e),
the Commissioner shall allow credit for reinsurance ceded by a domestic insurer
to an assuming insurer which as of the date of the ceding insurer's statutory
financial statement;
(1) Is domiciled and
licensed in, or, in the case of a United States branch of an alien assuming
insurer, is entered through and licensed in, a state which employs standards
regarding credit for reinsurance substantially similar to those applicable
under the Act and this regulation;
(2) Maintains a surplus as regards
policyholders in an amount not less than $20,000,000; and
(3) Files a properly executed Form AR-1 with
the Commissioner as evidence of its submission to this state's authority to
examine its books and records.
B. The provisions of this section relating to
surplus as regards policyholders shall not apply to reinsurance ceded and
assumed pursuant to pooling arrangements among insurers in the same holding
company system. As used in this section, "substantially similar" standards
means credit for reinsurance standards which the Commissioner determines equal
or exceed the standards of the Act and this regulation.
SECTION 7. Credit for Reinsurance - Reinsurers Maintaining Trust Funds
A. Pursuant
to Ark. Code Ann. §
23-62-305(f),
as amended by Act 1272 of 1995, effective April 13, 1995, the Commissioner
shall allow credit for reinsurance ceded by a domestic insurer to an assuming
insurer which, as of the date of the ceding insurer's statutory financial
statement, 'maintains a trust fund in an amount prescribed below in a qualified
United States financial institution as defined in Ark. Code Ann. §
23-62-307(b),
for the payment of the valid claims of its United States policyholders and
ceding insurers, their assigns and successors in interest. The assuming insurer
shall report annually to the Commissioner substantially the same information as
that required to be reported on the NAIC annual statement form by licensed
insurers, to enable the Commissioner to determine the sufficiency of the trust
fund.
B. The following requirements
apply to the following categories of assuming insurer:
(1) The trust fund for a single assuming
insurer shall consist of funds in trust in an amount not less than the assuming
insurer's liabilities attributable to business written in the United States,
and in addition, a trusteed surplus of not less than $20,000,000.
(2) The trust fund for a group of individual
unincorporated underwriters shall consist of funds in trust in an amount not
less than the group's aggregate liabilities attributable to business written in
the United States and, in addition, the group shall maintain a trusteed surplus
of which $100,000,000 shall be held jointly for the benefit of the United
States ceding insurers of any member of the group. The group shall make
available to the Commissioner annual certifications by the group's domiciliary
regulator and its independent public accountants of the solvency of each
underwriter member of the group.
(3) The trust fund for a group of
incorporated insurers under common administration, whose members possess
aggregate policyholders surplus of $10,000,000,000 (calculated and reported in
substantially the same manner as prescribed by the annual statement
instructions and Accounting Practices and Procedures Manual of the National
Association of Insurance Commissioners) and which has continuously transacted
an insurance business outside the United States for at least three (3) years
immediately prior to making application for accreditation, shall consist of
funds in trust in an amount not less than the assuming insurers' liabilities
attributable to business ceded by United States ceding insurers to any members
of the group pursuant to reinsurance contracts issued in the name of such group
and, in addition, the group shall maintain a joint trusteed surplus of which
$100,000,000 shall he held jointly for the benefit of United States ceding
insurers of any member of the group. The group shall file a properly executed
Form AR-1 as evidence of the submission to this state's authority to examine
the books and records of any of its members and shall certify that any member
examined will bear the expense of any such examination. The group shall make
available to the Commissioner annual certifications by the members' domiciliary
regulators and their independent public accountants of the solvency of each
member of the group.
C.
The trust shall be established in a form approved by the Commissioner and
complying with Ark. Code Ann. §
23-62-305(f)
of the Regulation of Reserves Act, as amended by Act 1272 of 1995, and this
section. The trust instrument shall provide that:
(1) Contested claims shall be valid and
enforceable out of funds in trust to the extent remaining unsatisfied thirty
(30) days after entry of the final order of any court of competent jurisdiction
in the United States.
(2) Legal
title to the assets of the trust shall be vested in the trustee for the benefit
of the grantor's United States policyholders and ceding insurers, their assigns
and successors in interest.
(3) The
trust shall be subject to examination as determined by the
Commissioner.
(4) The trust shall
remain in effect for as long as the assuming insurer, or any member or former
member of a group of insurers, shall have outstanding obligations under
reinsurance agreements subject to the trust.
(5) No later than February 28th of each year,
the trustees of the trust shall report to the Commissioner in writing setting
forth the balance in the trust and listing the trust's investments at the
preceding year end, and shall certify the date of termination of the trust, if
so planned, or certify that the trust shall not expire prior to the next
following December 31st.
(6) No
amendment to the trust shall be effective unless reviewed and approved in
advance by the Commissioner.
SECTION 8. Credit for Reinsurance Required by Law
Per Ark. Code Ann. § 23-62-305(g), the Commissioner shall allow credit for reinsurance ceded by a domestic insurer to an assuming insurer not meeting the requirements of Ark. Code Ann. § 23-62-305(a) through (f) of the Act, as amended, but only with respect to the insurance of risks located in jurisdictions where such reinsurance is required by the applicable law or regulation of that jurisdiction. - As used in this section, "jurisdiction" means any state, district or territory of the United States and any lawful national government.
SECTION 9. Reduction from Liability for Reinsurance Ceded to an Unauthorized Assuming Insurer Pursuant to Ark. Code Ann. § 23-62-306, the Commissioner shall allow a reduction from liability for reinsurance ceded by a domestic insurer to an assuming insurer not meeting the requirements of Ark. Code Ann. § 23-62-305 in an amount not exceeding the liabilities carried by the ceding insurer. Such reduction shall be in the amount of funds held by or on behalf of the ceding insurer, including funds held in trust for the exclusive benefit of the ceding insurer, under a reinsurance contract with such assuming insurer as security for the payment of obligations thereunder. Such security must be held in the United States subject to withdrawal solely by, and under the exclusive control of, the ceding insurer or, in the case of a trust, held in a qualified United States financial institution as defined in Ark. Code Ann. § 23-62-307. This security may be in the form of any of the following:
A. Cash.
B. Securities listed by the Securities
Valuation Office of the National Association of Insurance Commissioners and
qualifying as admitted assets.
C.
Clean, irrevocable, unconditional and "evergreen" letters of credit issued or
confirmed by a qualified United States institution, as defined in Ark. Code
Ann. §
23-62-307,
effective no later than December 31st of the year for which filing is being
made, and in the possession of the ceding company on or before the filing date
of its annual statement. Letters of credit meeting applicable standards of
issuer acceptability as of the dates of their issuance, or confirmation shall,
notwithstanding the issuing or confirming institution's subsequent failure to
meet applicable standards of issuer acceptability, continue to be acceptable as
security until their expiration, extension, renewal, modification or amendment,
whichever first occurs.
D. Any
other form of security acceptable to the Commissioner. An admitted asset or a
reduction from liability for reinsurance ceded to an unauthorized assuming
insurer pursuant to Subsections (A), (B) and (C) of this Section of the rule
shall be allowed only when the requirements of Sections 10, 11 or 12 of this
regulation are met.
SECTION 10. Trust Agreements Qualified under Rule Section 9
A. As used in this section:
(1) "Beneficiary" means the entity for whose
sole benefit the trust has been established and any successor of the
beneficiary by operation of law. If a court of law appoints a successor in
interest to the named beneficiary, then the named beneficiary includes and is
limited to the court-appointed domiciliary receiver, including conservator,
rehabilitator or liquidator.
(2)
"Grantor" means the entity that has established a trust for the sole benefit of
the beneficiary. When established in conjunction with a reinsurance agreement,
the grantor is the unlicensed, unaccredited assuming insurer.
(3) "Obligations", as used in Subsection
(BJ(11) of this section, means:
(a) Reinsured
losses and allocated loss expenses paid by the ceding company, but not
recovered from the assuming insurer,*
(b) Reserves for reinsured losses reported
and outstanding;
(c) Reserves for
reinsured losses incurred but not reported; and
(d) Reserves for allocated reinsured loss
expenses and; unearned premiums.
B. Required conditions.
(1) The trust agreement shall be entered into
between the beneficiary, the grantor and a trustee which shall be a qualified
United States financial institution as defined in Ark. Code Ann. §
23-62-307
of the Act.
(2) The trust agreement
shall create a trust account into which assets shall be deposited.
(3) All assets in the trust account shall be
held by the trustee at the trustee's office in the United States, except that a
bank may apply for the Commissioner's permission to use a foreign branch office
of such bank as trustee for trust agreements established pursuant to this
section. If the Commissioner approves the use of such foreign branch office as
trustee, then its use must be approved by the beneficiary in writing and the
trust agreement must provide that the written notice described in Subsection
B(4)(a) of this section must also be presentable, as a matter of legal right,
at the trustee's principal office in the United States.
(4) The trust agreement shall provide that:
(a) The beneficiary shall have the right to
withdraw assets from the trust account at any time, without notice to the
grantor, subject only to written notice from the beneficiary to the
trustee;
(b) No other statement or
document is required to be presented in order to withdraw assets, except that
the beneficiary may be required to acknowledge receipt of withdrawn
assets;
(c) It is not subject to
any conditions or qualifications outside of the trust agreement; and
(d) It shall not contain references to any
other agreements or documents except as provided for under Paragraph (11) of
this Subsection (B).
(5)
The trust agreement shall be established' for the sole benefit of the
beneficiary.
(6) The trust
agreement shall require the trustee to:
(a)
Receive assets and hold all assets in a safe place;
(b) Determine that all assets are in such
form that the beneficiary, or the trustee upon direction by the beneficiary,
may whenever necessary negotiate any such assets, without consent or signature
from the grantor or any other person or entity;
(c) Furnish to the grantor and the
beneficiary a statement of all assets in the trust account upon its inception
and at intervals no less frequent than the end of each calendar
quarter;
(d) Notify the grantor and
the beneficiary within ten (10) days, of any deposits to or withdrawals from
the trust account;
(e) Upon written
demand of the beneficiary, immediately take any and all steps necessary to
transfer absolutely and unequivocally all right, title and interest in the
assets held in the trust account to the beneficiary and deliver physical
custody of the assets to the beneficiary; and
(f) Allow no substitutions or withdrawals of
assets from the trust account, except on written instructions from the
beneficiary; except that the trustee may, without the consent of but with
notice to the beneficiary, upon call or maturity of any trust asset, withdraw
such asset upon condition that the proceeds are paid into the trust
account.
(7) The trust
agreement shall provide that, at least thirty (30) days but not more than
forty-five (45) days prior to termination of the trust account, written
notification of termination shall be delivered by the trustee to the
beneficiary.
(8) The trust
agreement shall be made subject to and governed by the laws of the state in
which the trust is established.
(9)
The trust agreement shall prohibit invasion of the trust corpus for the purpose
of paying compensation to, or reimbursing the expenses of, the
trustee.
(10) The trust agreement
shall provide that the trustee shall be liable for its own negligence, willful
misconduct or lack of good faith.
(11) Notwithstanding other provisions of this
regulation, when a trust agreement is established in conjunction with a
reinsurance agreement covering risks other than life, annuities, and disability
(accident and health), where it is customary practice to provide a trust
agreement for a specific purpose, such a trust agreement may, notwithstanding
any other conditions in this regulation, provide that the ceding insurer shall
undertake to use and apply amounts drawn upon the trust account, without
diminution because of the insolvency of the ceding insurer or the assuming
insurer, for the following purposes:
(a) To
pay or reimburse the ceding insurer for the assuming insurer's share under the
specific reinsurance agreement regarding any losses and allocated loss expenses
paid by the ceding insurer, but not recovered from the assuming insurer, or for
unearned premiums due to the ceding insurer if not otherwise paid by the
assuming insurer;
(b) To make
payment to the assuming insurer of any amounts held in the trust account that
exceed 102 percent of the actual amount required to fund the assuming insurer's
obligations under the specific reinsurance agreement; or
(c) Where the ceding insurer has received
notification of termination of the trust account and where the assuming
insurer's entire obligations under the specific reinsurance agreement remain
unliquidated and undischarged ten (10) days prior to the termination date, to
withdraw amounts equal to the obligations and deposit those amounts in a
separate account, in the name of the ceding insurer in any qualified United
States financial institution as defined in Ark. Code Ann. §
23-62-307
apart from its general assets, in trust for such uses and purposes specified in
Subparagraphs (a) and (b) above as may remain executory after such withdrawal
and for any period after the termination date.
(12) The reinsurance agreement entered into
in conjunction with the trust agreement may, but need not, contain the
provisions required by Subsection (D)(1)(b) of this section, so long as these
required conditions are included in the trust agreement.
C. Permitted conditions.
(1) The trust agreement may provide that the
trustee may resign upon delivery of a written notice of resignation, effective
not less than ninety (90) days after receipt by the beneficiary and grantor of
the notice and that the trustee may be removed by the grantor by delivery to
the trustee and the beneficiary of a written notice of removal, effective not
less than ninety (90) days after receipt by the trustee and the beneficiary of
the notice, provided that no such resignation or removal shall be effective
until a successor trustee has been duly appointed and approved by the
beneficiary and the grantor and all assets in the trust have been duly
transferred to' the new trustee.
(2) The grantor may have the full and
unqualified right to vote any shares of stock in the trust account and to
receive from time to time payments of any dividends or interest upon any shares
of stock or obligations included in the trust account. Any such interest or
dividends shall be either forwarded promptly upon receipt to the grantor or
deposited in a separate account established in the grantor's name.
(3) The trustee may be given authority to
invest, and accept substitutions of, any funds in the account, provided that no
investment or substitution shall be made without prior approval of the
beneficiary, unless the trust agreement specifies categories of investments
acceptable to the beneficiary and authorizes the trustee to invest funds and to
accept substitutions which the trustee determines are at least equal in market
value to the assets withdrawn and that are consistent with the restrictions in
Subsection (D)(1)(b) of this section.
(4) The trust agreement may provide that the
beneficiary may at any time designate a party to which all or part of the trust
assets are to be transferred. Such transfer may be conditioned upon the trustee
receiving, prior to or simultaneously, other specified assets.
(5) The trust agreement may provide that,
upon termination of the trust account, all assets not previously withdrawn by
the beneficiary shall, with written approval by the beneficiary, be delivered
over to the grantor.
D.
Additional conditions applicable to reinsurance agreements.
(1) A reinsurance agreement, which is entered
into in conjunction with a trust agreement and the establishment of a trust
account, may contain provisions that:
(a)
Require the assuming insurer to enter into a trust agreement and to establish a
trust account for the benefit of the ceding insurer, and specifying what the
agreement is to cover;
(b)
Stipulate that assets deposited in the trust account shall be valued according
to their current fair market value and shall consist only of cash in the form
of United States legal tender, certificates of deposit issued by a United
States bank and payable in United States legal tender, and investments of the
types permitted by the Insurance Code or any combination of the above; provided
that such investments are issued by an institution that is not the parent,
subsidiary or affiliate of either the grantor or the beneficiary. The
reinsurance agreement may further specify the types of investments to be
deposited. Where a trust agreement is entered into in conjunction with a
reinsurance agreement covering risks other than life, annuities and disability
(accident and health), then the trust agreement may contain the provisions
required by this paragraph in lieu of including such provisions in the
reinsurance agreement;
(c) Require
the assuming insurer, prior to depositing assets with the trustee, to execute
assignments or endorsements in blank, or to transfer legal title to the trustee
of all shares, obligations or any other assets requiring assignments, in order
that the ceding insurer, or the trustee upon the direction of the ceding
insurer, may whenever necessary negotiate these assets without consent or
signature from the assuming insurer or any other entity;
(d) Require that all settlements of account
between the ceding insurer and the assuming insurer be made in cash or its
equivalent; and
(e) Stipulate that
the as suming insurer and the ceding insurer agree that the assets in the trust
account, established pursuant to the provisions of the reinsurance agreement,
may be withdrawn by the ceding insurer at any time, notwithstanding any other
provisions in the reinsurance agreement, and shall be utilized and applied by
the ceding' insurer or its successors in interest by operation of law,
including without limitation any liquidator, rehabilitatar, receiver or
conservator of such company, without diminution because of insolvency on the
part of the ceding insurer or the assuming insurer, only for the following
purposes:
(i) To reimburse the ceding insurer
for the assuming insurer's share of premiums returned to the owners of policies
reinsured under the reinsurance agreement because of cancellations of such
policies;
(ii) To reimburse the
ceding insurer for the assuming insurer's share of surrenders and benefits, or
losses paid by the ceding insurer pursuant to the provisions of the policies
reinsured under the reinsurance agreement;
(iii) To fund an account with the ceding
insurer in an amount at least equal to the deduction, for reinsurance ceded,
from the ceding insurer liabilities for policies ceded under the agreement. The
account shall include, but not be limited to, amounts for policy reserves,
claims and losses incurred (including losses incurred but not reported), loss
adjustment expenses and unearned premium reserves; and
(iv) To pay any other amounts the ceding
insurer claims are due under the reinsurance agreement.
(2) The reinsurance agreement may
also contain provisions that:
(a) Give the
assuming insurer the right to seek approval from the ceding insurer to withdraw
from the trust account all or any part of the trust assets and transfer those
assets to the assuming insurer, provided:
(i)
The assuming insurer shall, at the time of withdrawal, replace the withdrawn
assets with other qualified assets having a market value equal to the market
value of the assets withdrawn so as to maintain at all times the deposit ' in
the required amount, or
(ii) After
withdrawal and transfer, the market value of the trust account is no less than
102 percent of the required amount. The ceding insurer shall not unreasonably
or arbitrarily withhold its approval.
(b) Provide for:
(i) The return of any amount withdrawn in
excess of the actual amounts required for Subsections (D)(1)(e)(i),
(ii) and
(iii), or in the case of Subsection (D) (1)
(e) (iv), any amounts that are subsequently determined not to be due; and (ii)
Interest payments, at a rate not in excess of the prime rate of interest, on
the amounts held pursuant to Subsection (D)(1)(e)(iii).
(c) Permit the award by any arbitration panel
or court of competent jurisdiction of:
(i)
Interest at a rate different from that provided in Subparagraph
(b)(ii),
(ii) Court of arbitration
costs,
(iii) Attorney's fees,
and
(iv) Any other reasonable
expenses.
(3)
Financial reporting. A trust agreement may be used to reduce any liability for
reinsurance ceded to an unauthorized assuming insurer in financial statements
required to be filed with this Department in compliance with the provisions of
this regulation when established on or before the date of filing of the
financial statement of the ceding insurer. Further, the reduction for the
existence of an acceptable trust account may be up to the current fair market
value of acceptable assets available to be withdrawn from the trust account at
that time, but such reduction shall be no greater than the specific obligations
under the reinsurance agreement that the trust account was established to
secure.
(A) The failure of any trust
agreement to specifically identify the beneficiary as defined in Subsection (A)
of this section shall not be construed to affect any actions or rights which
the Commissioner may take or possess pursuant to the provisions of the laws of
this state.
SECTION 11. Letters of Credit Qualified under Rule Section 9
A. The letter of credit must
be clean, irrevocable and unconditional and issued or confirmed by a qualified
United States financial institution as defined in Ark. Code Ann. §
23-62-307.
The letter of credit shall contain an issue date and date of expiration; and
shall stipulate that the beneficiary need only draw a sight draft under the
letter of credit and present it to obtain funds; and that no other document
need be presented. The letter of credit shall also indicate that it is not
subject to any condition or qualifications outside of the letter of credit. In
addition, the letter of credit itself shall not contain reference to any other
agreements, documents or entities, except as provided in Subsection (I)(1)
below. As used in this section, "beneficiary" means the domestic insurer for
whose benefit the letter of credit has been established and any successor of
the beneficiary by operation of law. If a court of law appoints a successor in
interest to the named beneficiary, then the named beneficiary includes and is
limited to the court appointed domiciliary receiver, including conservator,
rehabilitator or liquidator.
B. The
heading of the letter of credit may include a boxed section which contains the
name of the applicant and other appropriate notations to provide a reference
for the letter of credit. The boxed section shall be clearly marked to indicate
that such information is for internal identification purposes only.
C. The letter of credit shall contain a
statement to the effect that the obligation of the qualified United States
financial institution under the letter of credit is in no way contingent upon
reimbursement with respect thereto.
D. The term of the letter of credit shall be
for at least one (1) year and shall contain an "evergreen clause" which
prevents the expiration of the letter of credit without due notice from the
issuer.
The "evergreen clause" shall provide for a period of no less than thirty (30) days' notice prior to expiry date or nonrenewal.
E. The letter of credit shall state whether
it is subject to and governed by the laws of this state or the most recent
publication of the Uniform Customs and Practice for Documentary Credits of the
International Chamber of Commerce; and all drafts drawn thereunder shall be
presentable at an office in the United States of a qualified United States
financial institution.
F. If the
letter of credit is made subject to the most recent publication of the Uniform
Customs and Practice for Documentary Credits of the International Chamber of
Commerce, then the letter of credit shall specifically address and make
provision for an extension of time to draw against the letter of credit in the
event that one or more of the occurrences specified in the most recent
publication occur.
G. The letter of
credit shall be issued or confirmed by a qualified United States financial
institution authorized to issue letters of credit, pursuant to Ark. Code Ann.
§
23-62-307.
H. If the letter of credit is issued by a
qualified United States financial institution authorized to issue letters of
credit, other than a qualified United States financial institution as described
in Subsection (G) of this section, then the following additional requirements
shall be met:
(1) The issuing qualified
United States financial institution shall formally designate the confirming
qualified United States financial institution as its agent for the receipt and
payment of the drafts, and
(2) The
"evergreen clause" shall provide for thirty (30) days' notice prior to expiry
date for nonrenewal.
I.
Reinsurance agreement provisions.
(1) The
reinsurance agreement in conjunction with which the letter of credit is
obtained may contain provisions which:
(a)
Require the assuming insurer to provide letters of credit to the ceding insurer
and specify what they are to cover.
(b) Stipulate that the assuming insurer and
ceding insurer agree that the letter of credit provided by the assuming insurer
pursuant to the provisions of the reinsurance agreement may be drawn upon at
any time, notwithstanding any other provisions in the agreement, and shall be
utilized by the ceding insurer or its successors in interest only for one (1)
or more of the following reasons;
(i) To
reimburse the ceding insurer for the assuming insurer's share of premiums
returned to the owners of policies reinsured under the reinsurance agreement on
account of cancellations of such policies;
(ii) To reimburse the ceding insurer for the
assuming insurer's share of surrenders and benefits or losses paid by the
ceding insurer under the terms and provisions of the policies reinsured under
the reinsurance agreement;
(iii) To
fund an account with the ceding insurer in an amount at least equal to the
deduction, for reinsurance ceded, from the ceding insurer's liabilities for
policies ceded under the agreement; such amount shall include, but not be
limited to, amounts for policy reserves, claims and losses incurred and
unearned premium reserves; and
(iv)
To pay any other amounts the ceding insurer claims are due under the
reinsurance agreement.
(c) All of the foregoing provisions of
Paragraph (1) of this subsection should be applied without diminution because
of insolvency on the part of the ceding insurer or assuming insurer.
(2) Nothing contained in Paragraph
(1) of this subsection shall preclude the ceding insurer and assuming insurer
from providing for:
(a) An interest payment,
at a rate not in excess of the prime rate of interest, on the amounts held
pursuant to Paragraph (1)(b)(iii) of this subsection; and/or
(b) The return of any amounts drawn down on
the letters of credit in excess of the actual amounts required for the above
or, in the case of Paragraph (1) (b) (iv) of this subsection, any amounts that
are subsequently determined not to be due.
(3) When a letter of credit is obtained in
conjunction with a reinsurance agreement covering risks other than life,
annuities and disability (health), where it is customary practice to provide a
letter of credit for a specific purpose, then the reinsurance agreement may, in
lieu of Paragraph (1) (b) of this subsection, require that the parties enter
into a "Trust Agreement" which may be incorporated into the reinsurance
agreement or be a separate document.
J. A letter of credit may not be used to
reduce any liability for reinsurance ceded to an unauthorized assuming insurer
in financial statements required to be filed with this Department unless an
acceptable letter of credit with the filing ceding insurer as beneficiary has
been issued on or before the date of filing of the financial statement.
Further, the reduction for the letter of credit may be up to the amount
available under the letter of credit, but no greater than the specific
obligation under the reinsurance agreement which the letter of credit was
intended to secure.
SECTION 12. Other Security
A ceding insurer may take credit for unencumbered funds withheld by the ceding insurer in the United States subject to withdrawal solely by the ceding insurer and under its exclusive control.
SECTION 13. Reinsurance Contract
Credit will not be granted to a ceding insurer for reinsurance effected with assuming insurers meeting the requirements of Sections 4, 5, 6, 7, or 9 of this regulation or otherwise in compliance with Ark. Code Ann. § 23-62-305, as amended by Act 1272 of 1995, after the adoption of this regulation unless the reinsurance agreement:
A. Includes
a proper insolvency clause pursuant to Ark. Code Ann. §
23-62-205;
and
B. Includes a provision whereby
the assuming insurer, if an unauthorized assuming insurer, has submitted to the
jurisdiction of a court of competent jurisdiction within the United States, has
agreed to comply with all requirements necessary to give such court
jurisdiction, has designated an agent upon whom service of process may be
effected, and has agreed to abide by the final decision of such
court.
SECTION 14. Contracts Affected
All new and renewal reinsurance transactions entered into after January 1, 1996 shall conform to the requirements of the Act and this regulation if credit is to be given to the ceding insurer for such reinsurance.
SECTION 15. Effective Date
The provisions of this rule shall become effective on January 1, 1996, upon statutory filing per Arkansas law.
EXHIBIT "A"
Disclaimer: These regulations may not be the most recent version. Arkansas may have more current or accurate information. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or the information linked to on the state site. Please check official sources.
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