- 17 - January 2, 1991, Guardian could not recapture any of the policies underlying the 1988 Agreement and the 1989 Agreement, respectively. Beginning with each of those dates, Guardian had discretion to recapture policies under the related Agreement. If Guardian exercised this right before January 2, 1992, it had to pay an early recapture fee equal to the absolute value of any negative EAB.10 If Guardian exercised this right after January 1, 1992, or chose to leave the reinsurance in place after that date, Guardian did not have to pay a recapture fee, and petitioner had no recourse to recover its loss. Neither Guardian nor any of its representatives promised petitioner that Guardian would make petitioner whole if it recaptured either of the Agreements after January 1, 1992, and Guardian undertook no obligation to make petitioner whole. The Agreements were structured so that Guardian had an economic incentive to terminate the Agreements when the surplus relief, as measured by the EAB, was zero. If business was profitable, Guardian could have terminated the Agreements. Guardian also could have left the Agreements in place, when the EAB was equal to or greater than zero, if the underlying businesses generated a loss or if Guardian did not want to assume the risk of recapture. Business could have been so volatile, for example, that Guardian could have wanted to leave the Agreements in place because the cost of reinsurance would have been less 10 This type of early recapture fee arrangement was common in the industry.Page: Previous 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Next
Last modified: May 25, 2011