EXHIBIT 10.2
RIC (LANDMARK)
QUOTA SHARE REINSURANCE AGREEMENT
By and Between
LANDMARK AMERICAN INSURANCE COMPANY
(as Cedent)
and
ROYAL INDEMNITY COMPANY
(as Reinsurer)
DATED: September 2, 2003
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
Section 1.1 Definitions........................................................................... 2
ARTICLE II BASIS OF REINSURANCE
Section 2.1 Cession............................................................................... 5
Section 2.2 Effect of Reinsured Contracts......................................................... 5
Section 2.3 Other Reinsurance..................................................................... 5
ARTICLE III PREMIUMS AND ALLOWANCES
Section 3.1 Cedent's Payment Obligations.......................................................... 6
Section 3.2 Reinsurer's Payment Obligations....................................................... 6
Section 3.3 Reinsurance Administration............................................................ 7
ARTICLE IV CONSIDERATION
Section 4.1 Consideration......................................................................... 7
ARTICLE V ACCOUNTING AND REINSURANCE SETTLEMENT
Section 5.1 Delivery of Accounting and Settlement Reports......................................... 7
Section 5.2 Report of Allowances.................................................................. 7
Section 5.3 Payment of Amounts Indicated in Accounting and Settlement Reports..................... 7
ARTICLE VI ACCOMMODATION CONTRACTS
Section 6.1 Accommodation Contracts............................................................... 8
ARTICLE VII REINSURED CONTRACT ADMINISTRATION
Section 7.1 Administrative Services............................................................... 9
ARTICLE VIII INSOLVENCY
Section 8.1 Insolvency............................................................................ 9
Section 8.2 Notice of Pendency of Claim........................................................... 9
Section 8.3 Notice of Insolvency.................................................................. 9
ARTICLE IX DURATION AND TERMINATION
Section 9.1 Effectiveness......................................................................... 10
Section 9.2 Termination........................................................................... 10
ARTICLE X DUTY OF COOPERATION
Section 10.1 Full Cooperation...................................................................... 10
Section 10.2 Furnishing of Relevant Information.................................................... 11
ARTICLE XI INDEMNIFICATION
Section 11.1 Indemnification by Reinsurer.......................................................... 11
Section 11.2 Indemnification by Cedent............................................................. 11
ARTICLE XII REINSURANCE CREDIT
Section 12.1 Reinsurance Credit.................................................................... 11
Section 12.2 Notification.......................................................................... 12
ARTICLE XIII ARBITRATION
Section 13.1 Arbitration........................................................................... 12
Section 13.2 Notice of Arbitration................................................................. 12
Section 13.3 Arbitration Panel..................................................................... 12
Section 13.4 Submission of Briefs.................................................................. 13
Section 13.5 Arbitration Board's Decision.......................................................... 13
Section 13.6 Jurisdiction.......................................................................... 13
Section 13.7 Expenses.............................................................................. 13
Section 13.8 Production of Documents and Witnesses................................................. 14
Section 13.9 Relief Available...................................................................... 14
Section 13.10 Consolidation......................................................................... 14
ARTICLE XIV MISCELLANEOUS PROVISIONS
Section 14.1 Amendment, Modification and Waiver.................................................... 14
Section 14.2 Entire Agreement...................................................................... 14
Section 14.3 Governing Law......................................................................... 15
Section 14.4 Severability.......................................................................... 15
Section 14.5 Counterparts.......................................................................... 15
Section 14.6 Consent to Jurisdiction............................................................... 15
Section 14.7 Third Party Beneficiaries............................................................. 15
Section 14.8 Binding; Assignment................................................................... 16
Section 14.9 Specific Performance.................................................................. 16
Section 14.10 Descriptive Headings.................................................................. 16
Section 14.11 Waiver of Doctrine of Utmost Good Faith............................................... 16
Section 14.12 Expenses ............................................................................. 16
Section 14.13 Survival ............................................................................. 16
Section 14.14 Notices .............................................................................. 16
Section 14.15 Interpretation........................................................................ 18
Section 14.16 Construction.......................................................................... 18
Section 14.17 Territory............................................................................. 18
Section 14.18 Confidentiality....................................................................... 19
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EXHIBITS
EXHIBIT A Form of Accounting and Settlement Reports
SCHEDULES
Schedule 6.1(b) Third Parties to Whom Reinsurer May Assign its Authority
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RIC (LANDMARK) QUOTA SHARE REINSURANCE AGREEMENT
THIS RIC (LANDMARK) QUOTA SHARE REINSURANCE AGREEMENT
(together with all Exhibits hereto, this "RIC (Landmark) Quota Share Reinsurance
Agreement") is made as of the Closing Date (as defined herein), by and between
Landmark American Insurance Company, a property and casualty insurance company
organized under the laws of the State of Oklahoma ("Cedent"), and Royal
Indemnity Company, a property and casualty insurance company organized under the
laws of the State of Delaware ("Reinsurer").
WHEREAS, Guaranty National Insurance Company, a corporation
organized and existing under the laws of the State of Colorado ("Guaranty
National"), and Alleghany Insurance Holdings LLC, a Delaware limited liability
company ("AIHL"), have entered into a Stock Purchase Agreement, dated as of June
6, 2003 (the "Landmark Stock Purchase Agreement"), pursuant to which AIHL will
purchase all of the issued and outstanding shares of common stock of Cedent;
WHEREAS, pursuant to an Assignment and Assumption Agreement,
dated as of July 1, 2003, by and between AIHL and Underwriters Reinsurance
Company, a property and casualty insurance company organized under the laws of
the state of New Hampshire, AIHL assigned, and Underwriters Reinsurance Company
assumed, all of the rights and obligations of AIHL under the Landmark Stock
Purchase Agreement;
WHEREAS, effective as of August 18, 2003, the name of
Underwriters Reinsurance Company was changed to RSUI Indemnity Company;
WHEREAS, Guaranty National and Cedent are terminating the 1993
Reinsurance Agreement (as defined below) in accordance with the Termination
Endorsement (as defined in the Landmark Stock Purchase Agreement);
WHEREAS, Reinsurer is an affiliate of Guaranty National and a
party to the Landmark Stock Purchase Agreement only for the purposes of Sections
5.12, 5.15 and 5.16 therein and for the purpose of entering into this RIC
(Landmark) Quota Share Reinsurance Agreement, pursuant to which Cedent will
cede, and Reinsurer will assume, on a 100% quota share basis, the liabilities
and obligations arising out of the Reinsured Contracts (as defined below);
WHEREAS, Cedent wishes to cede to Reinsurer such liabilities
and obligations, and Reinsurer desires to assume such liabilities and
obligations, subject to the terms and conditions of this RIC (Landmark) Quota
Share Reinsurance Agreement; and
WHEREAS, Reinsurer will administer all aspects of the
Reinsured Contracts and the Reinsured Liabilities (all as defined below) subject
to the terms and conditions of the RIC (Landmark) Administrative Services
Agreement (as defined below).
NOW, THEREFORE, for and in consideration of the premises and
the promises and the mutual agreements hereinafter set forth and set forth in
the Landmark Stock Purchase Agreement and RIC (Landmark) Administrative Services
Agreement, the parties hereto, intending to be legally bound, covenant and agree
as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Capitalized terms used but not
defined herein and which are defined in the Landmark Stock Purchase Agreement
shall have the meanings ascribed to them in the Landmark Stock Purchase
Agreement. As used in this RIC (Landmark) Quota Share Reinsurance Agreement, the
following terms shall have the meanings set forth herein:
"AAA" shall have the meaning set forth in Section 13.3.
"Accommodation Contracts" shall have the meaning set forth in
Section 6.1.
"Accommodation Period" shall have the meaning set forth in
Section 6.1.
"Affiliate" of any Person means another Person that from time
to time, directly or indirectly controls, is controlled by, or is under common
control with, such first Person, where "control" means the possession, directly
or indirectly, of the power to direct or cause the direction of the management
policies of a Person, whether through the ownership of voting securities, by
contract, as trustee or executor, or otherwise. For the purposes of this RIC
(Landmark) Quota Share Reinsurance Agreement, the term "Affiliated" has a
meaning correlative to the foregoing.
"AIHL" shall have the meaning set forth in the recitals.
"Applicable Law" means any applicable order, law, statute,
regulation, rule, ordinance, writ, injunction, directive, judgment, decree,
principal of common law, constitution or treaty enacted, promulgated, issued,
enforced or entered by any Governmental Entity, including any amendments thereto
that may be adopted from time to time.
"Board" shall have the meaning set forth in Section 13.1.
"Business Day" means a Monday, Tuesday, Wednesday, Thursday or
Friday on which banking institutions in the State of New York are not authorized
or obligated by Applicable Law to close.
"Closing" means the closing of the transactions contemplated
by the Landmark Stock Purchase Agreement.
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"Closing Date" shall mean the date on which the Closing takes
place.
"Company Insurance Contracts" shall have the meaning set forth
in the Landmark Stock Purchase Agreement.
"Damages" means all costs, expenses, fines, penalties, losses,
judgments, damages, Reinsured Liabilities and other amounts (including
attorneys', actuaries', accountants' and experts' fees and settlement amounts)
arising out of any suit, claim or proceeding.
"Excluded Liabilities" means any liability or obligation of
Cedent for:
(1) Extra Contractual Liabilities and any related
attorneys' fees and other expenses incurred by Cedent (i) to the extent
caused by acts, errors or omissions by Cedent or any of its officers,
employees, agents or representatives that occurred after the Closing
Date, or (ii) to the extent arising out of or relating to the Company
Insurance Contracts; and
(2) any liability or obligation arising out of or
relating to Cedent's failure to follow in all material respects any
written recommendation made by the Administrator (as defined in the RIC
(Landmark) Administrative Services Agreement) pursuant to the RIC
(Landmark) Administrative Services Agreement unless by following such
recommendation Cedent, in its reasonable judgment, would not comply in
all material respects with Applicable Law or the terms of the Reinsured
Contracts, in which case all liabilities and obligations arising from
changes necessary to conform the conduct contemplated by such
recommendation in all material respects to Applicable Law and the terms
of the Reinsured Contracts shall be considered Reinsured Liabilities.
"Extra Contractual Liabilities" means all liabilities or
obligations, other than those arising under the express terms of and within the
express limits of the insurance or reinsurance contracts, whether to
policyholders, Governmental Entities or any other Person, which liabilities and
obligations shall include, without limitation, any liability for punitive,
exemplary, special or any other form of extra-contractual damages relating to
the Reinsured Contracts which arises from any act, error or omission, whether or
not intentional, in bad faith or otherwise, including, without limitation, any
act, error or omission relating to (i) the investigation, coverage analysis,
defense, trial, settlement or handling of claims, benefits, or payments arising
out of or relating to the Reinsured Contracts or (ii) the failure to pay or the
delay in payment of benefits, claims or any other amounts due or alleged to be
due under or in connection with the Reinsured Contracts.
"Governmental Entity" means any foreign, domestic, federal,
territorial, state or local U.S. or non-U.S. governmental authority,
quasi-governmental authority, instrumentality, court or government
self-regulatory organization, commission, tribunal or organization or any
political or other subdivision, department, branch or representative of any of
the foregoing.
"Guaranty National" shall have the meaning set forth in the
recitals.
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"Landmark Ancillary Agreements" means this RIC (Landmark)
Quota Share Reinsurance Agreement, the RIC (Landmark) Administrative Services
Agreement and the other agreements identified as Landmark Ancillary Agreements
in the Landmark Stock Purchase Agreement.
"Landmark Stock Purchase Agreement" shall have the meaning set
forth in the recitals.
"90-Day Treasury Rate" means the annual yield rate, as of any
given date, of actively traded U.S. Treasury securities having remaining
duration to maturity of three months, as such rate is published under "Treasury
Constant Maturities" in Federal Reserve Statistical Release H.15(519).
"1993 Reinsurance Agreement" shall mean the reinsurance
agreement dated January 1, 1993, by and between Guaranty National and Cedent.
"Person" means an individual, corporation, partnership, joint
venture, association, limited liability company, trust, unincorporated
organization, or other entity.
"Policyholder(s)" means, as applicable, the named insureds
under, or policyholders with respect to, the Reinsured Contracts or any other
person entitled to payment under the Reinsured Contracts.
"Qualifying Letter of Credit" means a clean, irrevocable,
unconditional and evergreen letter of credit issued by a bank and in a form
acceptable to the Insurance Department of the State of Oklahoma.
"Reinsurance Recoverables" means all amounts due under
reinsurance agreements entered into with Unaffiliated Reinsurers relating to the
Reinsured Contracts, including all receivables, recoverables, returns, amounts
in respect of profit sharing and all other sums to which Cedent may be entitled
under the third party reinsurance agreements except to the extent related to
reinsurance recoverables for Excluded Liabilities.
"Reinsured Contracts" means (i) Accommodation Contracts and
(ii) all policies, binders and contracts of insurance issued in Cedent's name
prior to the Closing Date, other than the Company Insurance Contracts.
"Reinsured Liabilities" means all liabilities and obligations
of any nature arising out of or relating to the Reinsured Contracts, including
without limitation (i) any loss or allocated loss expense or unearned premium
obligation, (ii) Extra Contractual Liabilities and any related attorney fees and
other expenses, and (iii) any liabilities and obligations arising out of or
relating to a right to purchase additional coverage and obligations arising
under legal or regulatory requirements, but excluding Excluded Liabilities.
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"RIC (Landmark) Administrative Services Agreement" means the
RIC (Landmark) Administrative Services Agreement being entered into between
Reinsurer and Cedent relative to this RIC (Landmark) Quota Share Reinsurance
Agreement.
"RSUI" shall mean Royal Specialty Underwriting, Inc., a
Georgia company.
"Tax" or "Taxes" means all federal, state, county, local,
municipal, foreign and other taxes, assessments, duties or similar charges of
any kind whatsoever, including all corporate franchise, income, gross receipts,
occupation, windfall profits, sales, use, ad valorem, value-added, profits,
license, withholding, payroll, employment, excise, insurance premium, real
property, personal property, customs, net worth, capital gains, transfer, stamp,
documentary, social security, disability, environmental, alternative minimum,
estimated, recapture and other taxes, and including all interest, penalties and
additions imposed with respect thereto.
"Unaffiliated Reinsurers" shall mean reinsurers unaffiliated
with Cedent other than Reinsurer.
ARTICLE II
BASIS OF REINSURANCE
Section 2.1 Cession. As of July 1, 2003, Cedent hereby cedes
to Reinsurer, and Reinsurer hereby accepts and agrees to reinsure and indemnify
Cedent for, one hundred percent (100%) of all Reinsured Liabilities, net of
collectible reinsurance from Unaffiliated Reinsurers. The Reinsurer shall follow
in all respects the fortunes of the Cedent with respect to the Reinsured
Contracts and the Reinsured Liabilities being assumed by the Reinsurer under
this RIC (Landmark) Quota Share Reinsurance Agreement.
Section 2.2 Effect of Reinsured Contracts. Except as otherwise
set forth in this RIC (Landmark) Quota Share Reinsurance Agreement, the
reinsurance provided under this RIC (Landmark) Quota Share Reinsurance Agreement
shall be subject to the same clauses, terms, limits, conditions, endorsements,
modifications, and waivers of or affecting the Reinsured Contracts, it being the
intent of the parties that Reinsurer shall follow the fortunes and settlements
made by or on behalf of the Cedent in all respects.
Section 2.3 Other Reinsurance. In the event that there is
reinsurance provided by Unaffiliated Reinsurers that relates to the Reinsured
Contracts or the Reinsured Liabilities, the amount of Reinsurer's liability
under this RIC (Landmark) Quota Share Reinsurance Agreement will be increased by
reason of the inability of Cedent to collect any reinsurance from any such
Unaffiliated Reinsurer, whether specific or general, that may have become due
from them, whether that inability arises from insolvency or otherwise.
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ARTICLE III
PREMIUMS AND ALLOWANCES
Section 3.1 Cedent's Payment Obligations. Cedent agrees to pay
to Reinsurer one hundred percent (100%) of the following amounts which are
actually received by Cedent in respect of the Reinsured Contracts:
(a) premiums and other receivables to the extent they
relate to the Reinsured Contracts;
(b) litigation and claim recoveries from third parties to
the extent they relate to the Reinsured Contracts and/or the Reinsured
Liabilities;
(c) any and all amounts paid by Reinsurer relating to the
Reinsured Contracts which are not Reinsured Liabilities;
(d) Reinsurance Recoverables and any and all recoveries
from third parties to the extent they relate to the Reinsured Liabilities and
Reinsured Contracts; and
(e) any refunds or tax credits actually received by
Cedent based upon such taxes and assessments for which Reinsurer has paid to, or
on behalf of, Cedent pursuant to Sections 3.2(a)(ii) and 3.2(a)(iii).
Section 3.2 Reinsurer's Payment Obligations. Reinsurer agrees
to reimburse, or pay on behalf of, Cedent the following:
(a) (i) any and all state and local premium, surplus
lines, unauthorized insurance or other similar taxes imposed on premiums
written, collected or received, as applicable under the law of the applicable
jurisdiction, on or after the Closing Date relating to the Reinsured Contracts;
(ii) any and all guaranty fund or other residual market assessments incurred by
Cedent with respect to premiums relating to the Reinsured Contracts and the
Reinsured Liabilities; and (iii) any and all state or local Taxes imposed on
Cedent in connection with the performance of the parties' obligations pursuant
to any of the Ancillary Agreements, to the extent that such obligations relate
to the Reinsured Contracts.
(b) producer compensation paid by the Cedent to the
extent based on premiums arising from the Reinsured Contracts;
(c) any and all amounts actually paid by Cedent, other
than by Reinsurer as Administrator under the RIC (Landmark) Administrative
Services Agreement, relating to the Reinsured Contracts which are Reinsured
Liabilities; and
(d) dividends actually paid to Policyholders by Cedent at
the request of Reinsurer.
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Section 3.3 Reinsurance Administration.
(a) Reinsurer, as Administrator under the RIC (Landmark)
Administrative Services Agreement, shall have the responsibility and authority
to take all steps reasonably necessary to administer the third party reinsurance
contracts with respect to the Reinsured Contracts and the Reinsured Liabilities.
(b) Reinsurer shall have a continuing obligation during
the term of this RIC (Landmark) Quota Share Reinsurance Agreement to fund the
Bank Accounts (as such term is defined in the RIC (Landmark) Administrative
Services Agreement) in an amount sufficient to satisfy all Reinsured Liabilities
as such liabilities become due. Notwithstanding any other provisions of this RIC
(Landmark) Quota Share Reinsurance Agreement to the contrary, Cedent shall have
no responsibility whatsoever to provide funds to satisfy the Reinsured
Liabilities or fund the Bank Accounts.
ARTICLE IV
CONSIDERATION
Section 4.1 Consideration. The consideration to be paid to the
Reinsurer for assuming the Reinsured Liabilities under the terms of this RIC
(Landmark) Quota Share Reinsurance Agreement shall be the transfer to Reinsurer
of all reserves formerly held by Guaranty National with respect to Landmark
under the 1993 Reinsurance Agreement.
ARTICLE V
ACCOUNTING AND REINSURANCE SETTLEMENT
Section 5.1 Delivery of Accounting and Settlement Reports.
Within thirty (30) days following the end of each calendar month, Reinsurer, in
its capacity as Administrator for Cedent under the RIC (Landmark) Administrative
Services Agreement, shall provide Cedent with accounting and settlement reports
(including underlying journal entries contemplated by the RIC (Landmark)
Administrative Services Agreement) substantially in the format set forth in
EXHIBIT A. (to the extent the relevant underlying information is available to
Reinsurer's systems) Reinsurer and Cedent shall have the right to change the
format of the reports upon thirty (30) days' prior written notice; provided,
however, that the change shall involve no material additional cost to Cedent.
Section 5.2 Report of Allowances. Within thirty (30) days
following receipt of the report required to be provided by Reinsurer under
Section 5.1 hereof, Reinsurer shall provide Cedent with a report of the
allowances set forth in Section 3.2 in a format to be mutually agreed upon by
the parties.
Section 5.3 Payment of Amounts Indicated in Accounting and
Settlement Reports. Simultaneously with Reinsurer's delivery of the accounting
and
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settlement reports required to be provided under Section 5.1 hereof, Reinsurer
shall pay any amounts due to Cedent indicated by such accounting and settlement
reports. Cedent shall pay any amount due to Reinsurer on or before the thirtieth
(30th) Business Day following its receipt of the accounting and settlement
reports required to be provided to Cedent by Reinsurer under Section 5.1 hereof.
Any late payment of an amount required by this RIC (Landmark) Quota Share
Reinsurance Agreement to be paid or remitted by Cedent to Reinsurer or by
Reinsurer to Cedent shall bear simple interest from and including the date such
payment is due under this provision until, but excluding, the date of payment,
at a rate per annum equal to the 90-Day Treasury Rate.
ARTICLE VI
ACCOMMODATION CONTRACTS
Section 6.1 Accommodation Contracts.
(a) From the Closing Date until February 1, 2004 (the
"Accommodation Period"), Reinsurer shall be permitted to use Cedent's approved
policy forms to write insurance contracts in Cedent's name in the U.S. and its
territories (the "Accommodation Contracts") in accordance with Section 5.1 of
the RIC (Landmark) Administrative Services Agreement; provided, however, under
no circumstances shall Reinsurer to write in Cedent's name more than ten million
dollars ($10,000,000) in gross written premiums during the Accommodation Period.
(b) Reinsurer acknowledges that its authority to issue
the Accommodation Contracts in Cedent's name pursuant to this Section 6.1 is
subject to the following additional limitations: (i) Reinsurer shall not assign
or delegate its authority to a third party other than its Affiliates or entities
listed on SCHEDULE 6.1(b); and (ii) Reinsurer shall not issue any Accommodation
Contracts outside the United States.
(c) During the Accommodation Period, Cedent shall
cooperate with Reinsurer and its Affiliates as reasonably requested by them to
assist them in writing the Accommodation Contracts; provided, however, that
Reinsurer shall be responsible for promptly reimbursing Cedent for any
reasonable out-of-pocket costs and expenses incurred in providing such
cooperation. Such reimbursement shall be provided by wire transfer of
immediately available funds no later than ten (10) Business Days following
Cedent's transmittal of invoices therefor to Cedent in accordance with the
notice procedures set forth in Section 14.14 hereof.
(d) During the Accommodation Period, Cedent shall use
commercially reasonable efforts to maintain all legal and regulatory authority
and qualification in order to permit the issuance of Accommodation Contracts in
all jurisdictions where such authority and qualification is maintained prior to
the Closing Date.
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ARTICLE VII
REINSURED CONTRACT ADMINISTRATION
Section 7.1 Administrative Services.
(a) The Reinsured Contracts shall be administered by
Reinsurer pursuant to the terms and conditions of the RIC (Landmark)
Administrative Services Agreement.
(b) Notwithstanding any other provision of this RIC
(Landmark) Quota Share Reinsurance Agreement to the contrary, in no event shall
the Cedent have any obligation or liability to the Reinsurer hereunder for any
default of its obligations under this RIC (Landmark) Quota Share Reinsurance
Agreement caused by the failure of Reinsurer to perform its obligations as
Administrator under RIC (Landmark) Administrative Services Agreement.
ARTICLE VIII
INSOLVENCY
Section 8.1 Insolvency. In the event of the insolvency of
Cedent, all reinsurance under this RIC (Landmark) Quota Share Reinsurance
Agreement shall be payable by Reinsurer on the basis of the liability of Cedent
under the Reinsured Contracts without diminution because of the insolvency of
Cedent. In the event of insolvency and the appointment of a conservator,
liquidator or statutory successor of Cedent, all amounts payable by Reinsurer
hereunder to Cedent shall be payable directly to Cedent or to such conservator,
liquidator or statutory successor.
Section 8.2 Notice of Pendency of Claim. It is understood,
however, that in the event of the insolvency of Cedent, the liquidator or
receiver or statutory successor of Cedent shall give written notice to Reinsurer
of the pendency of a claim against Cedent on the Reinsured Contracts reinsured
hereunder within a reasonable time after such claim is filed in the insolvency
proceeding and during the pendency of such claim. Reinsurer may investigate such
claim and interpose, at its own expense, in the proceeding where such claim is
to be adjudicated, any defense or defenses which it may deem available to Cedent
or its liquidator or receiver or statutory successor. It is further understood
that the expense thus incurred by Reinsurer shall be chargeable, subject to
court approval, against Cedent as part of the expense of liquidation to the
extent of a proportionate share of the benefit which may accrue to Cedent as a
result of the defense undertaken by Reinsurer.
Section 8.3 Notice of Insolvency. If either Cedent or
Reinsurer becomes insolvent, such party shall notify the other party of the
insolvency within five (5) Business Days thereof.
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ARTICLE IX
DURATION AND TERMINATION
Section 9.1 Effectiveness. This RIC (Landmark) Quota Share
Reinsurance Agreement shall commence on the Closing Date. This RIC (Landmark)
Quota Share Reinsurance Agreement shall remain in effect until all Reinsured
Liabilities have been finally settled or expire unless earlier terminated
according to the provisions of Section 9.2.
Section 9.2 Termination.
(a) This RIC (Landmark) Quota Share Reinsurance Agreement
may be terminated by a writing stating the effective date of termination:
(i) by mutual written agreement of the parties
at the time specified in such written agreement; or
(ii) at the option of Cedent, upon the issuance
of an order of liquidation or rehabilitation against Reinsurer;
provided, however, that in the event an order of liquidation or
rehabilitation is issued against Reinsurer, before Cedent may terminate
this RIC (Landmark) Quota Share Reinsurance Agreement, Reinsurer shall
have an opportunity to contest or appeal such order for a period of
sixty (60) days from the date of issuance.
(b) In the event that this RIC (Landmark) Quota Share
Reinsurance Agreement is terminated under Section 9.2(a)(ii), Reinsurer shall
return or cause to be returned, within twenty (20) days by wire transfer of
immediately available funds to an account designated by Cedent in writing, all
Reinsured Liabilities, evaluated as of the effective date of termination, and
assets equal to those Reinsured Liabilities, less any amounts actually allowed
to Cedent by Reinsurer as a ceding commission on that portion of the Reinsured
Liabilities being returned as unearned premium reserve, and upon payment of
such, Reinsurer shall be released of all liability for its Reinsured Liabilities
under this RIC (Landmark) Quota Share Reinsurance Agreement.
ARTICLE X
DUTY OF COOPERATION
Section 10.1 Full Cooperation. The parties hereto shall
cooperate in a commercially reasonable manner in order to accomplish the
objectives of this RIC (Landmark) Quota Share Reinsurance Agreement including,
without limitation, making available to each other their respective officers and
employees for interviews and meetings with governmental authorities and
furnishing any additional assistance, information and documentation as may be
reasonably requested by the other party from time to time.
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Section 10.2 Furnishing of Relevant Information. Upon request,
each party hereto shall furnish to the other relevant information concerning the
Reinsured Contracts and Reinsured Liabilities, including but not limited to
studies used in the determination of reserves and other Reinsured Liabilities,
and each shall have the right to review and copy the books and records of the
other concerning such Reinsured Contracts and Reinsured Liabilities upon
reasonable notice, during normal business hours and at the requesting party's
own cost and expense.
ARTICLE XI
INDEMNIFICATION
Section 11.1 Indemnification by Reinsurer. Reinsurer hereby
indemnifies Cedent and its Affiliates and its and their respective officers,
directors, employees, agents and representatives against and agrees to hold each
of them harmless from any and all Damages incurred or suffered by any of them
arising out of or relating to (i) the Reinsured Contracts, (ii) the Reinsured
Liabilities, (iii) any breach or nonfulfillment by Reinsurer of, or any failure
by Reinsurer to perform, any of the terms or conditions of, or any duties or
obligations under, this RIC (Landmark) Quota Share Reinsurance Agreement, and
(iv) any enforcement of this indemnity.
Section 11.2 Indemnification by Cedent. Cedent hereby
indemnifies Reinsurer and its Affiliates and its and their respective officers,
directors, employees, agents and representatives against and agrees to hold each
of them harmless from any and all Damages incurred or suffered by any of them
arising out of or relating to (i) Excluded Liabilities, (ii) any breach or
nonfulfillment by Cedent of, or any failure by Cedent to perform, any of the
terms or conditions of, or any duties or obligations under, this RIC (Landmark)
Quota Share Reinsurance Agreement or the RIC (Landmark) Administrative Services
Agreement other than breaches or nonfulfillments which result, directly or
indirectly, from the failure of the Administrator to perform its obligations
under RIC (Landmark) Administrative Services Agreement, and (iii) any
enforcement of this indemnity.
ARTICLE XII
REINSURANCE CREDIT
Section 12.1 Reinsurance Credit. Notwithstanding any other
provision of this RIC (Landmark) Quota Share Reinsurance Agreement to the
contrary, if Reinsurer becomes unauthorized or otherwise unaccredited in any
State, the District of Columbia, Canada or any other jurisdiction where
authorization or accreditation is required by insurance regulatory authorities
in order for Cedent to obtain full credit on its statutory quarterly and annual
statements filed with such jurisdiction for the reinsurance being provided under
this RIC (Landmark) Quota Share Reinsurance Agreement, Reinsurer, upon the
request of Cedent, will immediately establish, at its sole cost and option, a
trust
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agreement meeting the requirements of New York Regulation 114 and/or a
Qualifying Letter of Credit in an amount necessary to permit Cedent to obtain
full credit for such reinsurance in such jurisdiction.
Section 12.2 Notification. Reinsurer shall notify Cedent
within five (5) Business Days of any loss of license or authorization or other
change or condition that may affect the ability of Cedent to obtain full credit
for the reinsurance being provided under this RIC (Landmark) Quota Share
Reinsurance Agreement.
ARTICLE XIII
ARBITRATION
Section 13.1 Arbitration. As a condition precedent to any
cause of action, any and all disputes between Cedent and Reinsurer arising out
of, relating to, or concerning this RIC (Landmark) Quota Share Reinsurance
Agreement, whether sounding in contract or tort and whether arising during or
after termination of this RIC (Landmark) Quota Share Reinsurance Agreement,
including whether the dispute is subject to arbitration, shall be submitted to
the decision of a board of arbitration composed of two arbitrators and an umpire
("Board") meeting at a site in Wilmington, Delaware. The arbitration shall be
conducted under the Federal Arbitration Act and shall proceed as set forth
below.
Section 13.2 Notice of Arbitration. A notice requesting
arbitration, or any other notice made in connection therewith, shall be in
writing and shall be sent certified or registered mail, return receipt requested
to the affected parties. The notice requesting arbitration shall state in
particulars all issues to be resolved in the view of the claimant, shall appoint
the arbitrator selected by the claimant and shall set a tentative date for the
hearing, which date shall be no sooner than ninety (90) days and no later than
one hundred fifty (150) days from the date that the notice requesting
arbitration is mailed. Within thirty (30) days of receipt of claimant's notice,
the respondent shall notify claimant of any additional issues to be resolved in
the arbitration and of the name of its appointed arbitrator.
Section 13.3 Arbitration Panel. Unless otherwise mutually
agreed, the members of the Board shall be impartial and disinterested and shall
be active or former executive officers of property-casualty insurance companies,
reinsurance companies, or Lloyd's Underwriters or active or inactive lawyers
with at least twenty (20) years of experience in insurance and reinsurance.
Cedent and Reinsurer shall each appoint an arbitrator and the two (2)
arbitrators shall choose an umpire before instituting the hearing. If the
respondent fails to appoint its arbitrator within thirty (30) days after having
received claimant's written request for arbitration, the claimant is authorized
to and shall appoint the second arbitrator. If the two arbitrators fail to agree
upon the appointment of an umpire within thirty (30) days after notification of
the appointment of the second arbitrator, within ten (10) days thereof, the two
(2) arbitrators shall request the American Arbitration Association ("AAA") to
appoint an umpire for the arbitration with the
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qualifications set forth in this Article. If the AAA fails to name an umpire,
either party may apply to the court named below to appoint an umpire with the
above required qualifications. The umpire shall promptly notify in writing all
parties to the arbitration of his selection and of the scheduled date for the
hearing. Upon resignation or death of any member of the Board, a replacement
shall be appointed in the same fashion as the resigning or deceased member was
appointed.
Section 13.4 Submission of Briefs. The claimant and respondent
shall each submit initial briefs to the Board outlining the issues in dispute
and the basis, authority and reasons for their respective positions within
thirty (30) days of the date of notice of appointment of the umpire. The
claimant and the respondent may submit reply briefs to the Board within ten (10)
days after filing of the initial brief(s). Initial and reply briefs may be
amended by the submitting party at any time, but not later than ten (10) days
prior to the date of commencement of the arbitration hearing. Reasonable
responses shall be allowed at the arbitration hearing to new material contained
in any amendments filed to the briefs but not previously responded to.
Section 13.5 Arbitration Board's Decision. The Board shall
make a decision and award with regard to the terms of this RIC (Landmark) Quota
Share Reinsurance Agreement and the original intentions of the parties to the
extent reasonably ascertainable. The Board's decision and award shall be in
writing and shall state the factual and legal basis for the decision and award.
The decision and award shall be based upon a hearing in which evidence shall be
allowed and which the formal rules of evidence shall not strictly apply but in
which cross examination and rebuttal shall be allowed. At its own election or at
the request of the Board, either party may submit a post-hearing brief for
consideration of the Board within twenty (20) days of the close of the hearing.
The Board shall make its decision and award within thirty (30) days following
the close of the hearing or the submission of post-hearing briefs, whichever is
later, unless the parties consent to an extension. Every decision by the Board
shall be by a majority of the members of the Board and each decision and award
by the majority of the members of the Board shall be final and binding upon all
parties to the proceeding.
Section 13.6 Jurisdiction. Either party may apply to the
Chancery Court of the State of Delaware for an order compelling arbitration or
confirming any decision and the award; a judgment of that Court shall thereupon
be entered on any decision or award. If such an order is issued, the attorneys'
fees of the party so applying and court costs will be paid by the party against
whom confirmation is sought. The Board may award interest calculated from the
date the Board determines that any amounts due the prevailing party should have
been paid to the prevailing party.
Section 13.7 Expenses. Each party shall bear the expense of
the one arbitrator appointed by it and shall jointly and equally bear with the
other party the expense of any stenographer requested, and of the umpire.
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Section 13.8 Production of Documents and Witnesses. Subject to
customary and recognized legal rules of privilege, each party participating in
the arbitration shall have the obligation to produce those documents and as
witnesses to the arbitration those of its employees as any other participating
party reasonably requests providing always that the same witnesses and documents
be obtainable and relevant to the issues before the arbitration and not be
unduly burdensome or excessive. The parties may mutually agree as to pre-hearing
discovery prior to the arbitration hearing and in the absence of agreement, upon
the request of any party, pre-hearing discovery may be conducted as the Board
shall determine in its sole discretion to be in the interest of fairness, full
disclosure, and a prompt hearing, decision and award by the Board. The Board
shall be the final judge of the procedures of the Board, the conduct of the
arbitration, of the rules of evidence, the rules of privilege and production and
of excessiveness and relevancy of any witnesses and documents upon the petition
of any participating party. To the extent permitted by law, the Board shall have
the authority to issue subpoenas and other orders to enforce their decisions.
Section 13.9 Relief Available. Nothing herein shall be
construed to prevent any participating party from applying to the Chancery Court
of the State of Delaware to issue a restraining order or other equitable relief
to maintain the "status quo" of the parties participating in the arbitration
pending the decision and award by the Board or to prevent any party from
incurring irreparable harm or damage at any time prior to the decision and award
of the Board. The Board shall also have the authority to issue interim decisions
or awards in the interest of fairness, full disclosure, and a prompt and orderly
hearing and decision and award by the Board.
Section 13.10 Consolidation. In the event that there is a
dispute between the Cedent and Reinsurer which implicates the provisions of this
RIC (Landmark) Quota Share Reinsurance Agreement and the RIC (Landmark)
Administrative Services Agreement, Cedent and Reinsurer hereby agree to
consolidate any such dispute under such agreements in a single arbitration
proceeding.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
Section 14.1 Amendment, Modification and Waiver. This RIC
(Landmark) Quota Share Reinsurance Agreement may not be amended, modified or
waived except by an instrument or instruments in writing signed and delivered on
behalf of each of the parties hereto. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privileged. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
Section 14.2 Entire Agreement. This RIC (Landmark) Quota Share
Reinsurance Agreement (together with the exhibits hereto and the other
agreements,
14
documents and instruments delivered in connection herewith) the Acquisition
Agreement, the RIC (Landmark) Administrative Services Agreement and the other
Landmark Ancillary Agreements constitute the entire agreement among the parties
with respect to the subject matter hereof and thereof and supersede all other
prior agreements and understandings, both written and verbal, among the parties
or any of them with respect to the subject matter hereof.
Section 14.3 Governing Law. This RIC (Landmark) Quota Share
Reinsurance Agreement shall be governed by and construed in accordance with the
laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
Section 14.4 Severability. Any term or provision of this RIC
(Landmark) Quota Share Reinsurance Agreement which is invalid or unenforceable
in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this RIC (Landmark) Quota
Share Reinsurance Agreement or affecting the validity or enforceability of any
of the terms or provisions of this RIC (Landmark) Quota Share Reinsurance
Agreement in any other jurisdiction. If any provision of this RIC (Landmark)
Quota Share Reinsurance Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as would be enforceable.
Section 14.5 Counterparts. This RIC (Landmark) Quota Share
Reinsurance Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement.
Section 14.6 Consent to Jurisdiction. Each of the parties
hereto irrevocably and unconditionally submits to the exclusive jurisdiction of
the state and federal courts located in the State of Delaware for the purposes
of enforcing this Quota Share Agreement or the RIC (Landmark) Administrative
Services Agreement. If any action is brought in a state court, the parties shall
take such actions as are within their control to cause any matter contemplated
hereby to be assigned to the Chancery Court of the State of Delaware. In any
action, suit or other proceeding, each of the parties hereto irrevocably and
unconditionally waives and agrees not to assert by way of motion, as a defense
or otherwise any claims that it is not subject to the jurisdiction of the above
courts, that such action or suit is brought in an inconvenient forum or that the
venue of such action, suit or other proceeding is improper. Each of the parties
hereto also agrees that any final and unappealable judgment against a party
hereto in connection with any action, suit or other proceeding shall be
conclusive and binding on such party and that such award or judgment may be
enforced in any court of competent jurisdiction, either within or outside of the
United States. A certified or exemplified copy of such award or judgment shall
be conclusive evidence of the fact and amount of such award or judgment.
Section 14.7 Third Party Beneficiaries. Except for the
provisions of Article XI, nothing in this RIC (Landmark) Quota Share Reinsurance
Agreement, express or implied, is intended to or shall confer upon any person,
other than the parties hereto
15
any rights, benefits or remedies of any nature whatsoever under or by reason of
this RIC (Landmark) Quota Share Reinsurance Agreement.
Section 14.8 Binding; Assignment. This RIC (Landmark) Quota
Share Reinsurance Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns. Neither this RIC
(Landmark) Quota Share Reinsurance Agreement, nor any rights, interests or
obligations hereunder, may be directly or indirectly assigned, delegated,
sublicensed or transferred by any party to this RIC (Landmark) Quota Share
Reinsurance Agreement, in whole or in part, to any other person (including any
bankruptcy trustee) by operation of law or otherwise, whether voluntarily or
involuntarily, without the prior written consent of the parties hereto.
Section 14.9 Specific Performance. The parties recognize and
agree that if for any reason any of the provisions of this RIC (Landmark) Quota
Share Reinsurance Agreement are not performed in accordance with their specific
terms or are otherwise breached, immediate and irreparable harm or injury would
be caused for which money damages would not be an adequate remedy. Accordingly,
each party agrees that, in addition to any other available remedies, each other
party shall be entitled to an injunction restraining any violation or threatened
violation of any of the provisions of this RIC (Landmark) Quota Share
Reinsurance Agreement without the necessity of posting a bond or other form of
security pending the outcome of any arbitration. In the event that any action
should be brought in equity to enforce any of the provisions of this RIC
(Landmark) Quota Share Reinsurance Agreement, no party will allege, and each
party hereby waives the defense, that there is an adequate remedy at law.
Section 14.10 Descriptive Headings. The descriptive article
and section headings herein are inserted for convenience of reference only and
are not intended to be part of or to affect the meaning or interpretation of
this RIC (Landmark) Quota Share Reinsurance Agreement.
Section 14.11 Waiver of Doctrine of Utmost Good Faith.
Reinsurer absolutely and irrevocably waives resort to the doctrine of "utmost
good faith" or any similar doctrine in connection with the formation or
performance of this Agreement.
Section 14.12 Expenses. Unless otherwise specifically provided
herein, all costs and expenses incurred in connection with this RIC (Landmark)
Quota Share Reinsurance Agreement shall be paid by the party incurring such cost
or expense.
Section 14.13 Survival. The provisions of Articles XII, XIII
and XIV hereof shall survive the termination of this RIC (Landmark) Quota Share
Reinsurance Agreement.
Section 14.14 Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be given (and
shall be deemed to have been duly given upon receipt) by delivery in person, by
facsimile (which is confirmed), by courier (delivery of which is confirmed), or
by registered or certified mail
16
(postage prepaid, return receipt requested) to the respective parties to this
RIC (Landmark) Quota Share Reinsurance Agreement as follows:
If to Reinsurer:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
General Counsel
Royal Indemnity Company
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to (which shall not constitute notice to Reinsurer
for purposes of this Section 14.14):
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
If to Cedent:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Executive Vice President
Landmark American Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to (which shall not constitute notice to Cedent
for purposes of this Section 14.14):
▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
General Counsel
Alleghany Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
17
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above. In
no event shall the provision of notice pursuant to this Section 14.14 constitute
notice for service of any writ, process or summons in any suit, action or other
proceeding.
Section 14.15 Interpretation.
(a) When a reference is made in this RIC (Landmark) Quota
Share Reinsurance Agreement to a Section or Article, such reference shall be to
a section or article of this RIC (Landmark) Quota Share Reinsurance Agreement
unless otherwise clearly indicated to the contrary. Whenever the words
"include", "includes" or "including" are used in this RIC (Landmark) Quota Share
Reinsurance Agreement, they shall be deemed to be followed by the words "without
limitation." The words "hereof," "herein" and "herewith" and words of similar
import shall, unless otherwise stated, be construed to refer to this RIC
(Landmark) Quota Share Reinsurance Agreement as a whole and not to any
particular provision of this RIC (Landmark) Quota Share Reinsurance Agreement.
The meaning assigned to each term used in this RIC (Landmark) Quota Share
Reinsurance Agreement shall be equally applicable to both the singular and the
plural forms of such term, and words denoting any gender shall include all
genders. Where a word or phrase is defined herein, each of its other grammatical
forms shall have a corresponding meaning.
(b) The parties have participated jointly in the
negotiation and drafting of this RIC (Landmark) Quota Share Reinsurance
Agreement; consequently, in the event an ambiguity or question of intent or
interpretation arises, this RIC (Landmark) Quota Share Reinsurance Agreement
shall be construed as if drafted jointly by the parties thereto, and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this RIC (Landmark) Quota Share
Reinsurance Agreement.
Section 14.16 Construction. This RIC (Landmark) Quota Share
Reinsurance Agreement is the result of arms-length negotiations between the
parties hereto and has been prepared jointly by the parties. In applying and
interpreting the provisions of this RIC (Landmark) Quota Share Reinsurance
Agreement, there shall be no presumptions that this RIC (Landmark) Quota Share
Reinsurance Agreement was prepared by any one party or that this RIC (Landmark)
Quota Share Reinsurance Agreement shall be construed in favor of or against any
one party.
Section 14.17 Territory. This RIC (Landmark) Quota Share
Reinsurance Agreement applies to losses arising out of Reinsured Contracts
wherever written.
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Section 14.18 Confidentiality. Each party hereto will hold,
and will use its reasonable best efforts to cause its Affiliates, and their
respective representatives to hold, in strict confidence from any Person (other
than any such Affiliates or representatives), except with the prior written
consent of the other party or unless (i) compelled to disclose by judicial or
administrative process (including without limitation in connection with
obtaining the necessary approvals of this Agreement and the transactions
contemplated hereby of governmental or regulatory authorities) or by other
requirements of Applicable Law or (ii) disclosed in an action or proceeding
brought by a party hereto in pursuit of its rights or in the exercise of its
remedies hereunder, this RIC (Landmark) Quota Share Reinsurance Agreement, the
terms and conditions hereof, and all documents and information concerning the
other party or any of its Affiliates furnished to it by the other party or such
other party's representatives in connection with the transactions contemplated
hereby, except to the extent that such documents or information can be shown to
have been (a) previously known by the party receiving such documents or
information, (b) in the public domain (either prior to or after the furnishing
of such documents or information hereunder) through no fault of such receiving
party or (c) later acquired by the receiving party from another source if the
receiving party is not aware that such source is under an obligation to another
party hereto to keep such documents and information confidential.
19
IN WITNESS WHEREOF, Cedent and Reinsurer have caused their
names to be subscribed by their respective authorized officers.
ROYAL INDEMNITY COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
LANDMARK AMERICAN INSURANCE COMPANY
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President