AGREEMENT REGARDING INSURANCE
Exhibit
2.4
This
Agreement Regarding Insurance (this “Agreement”) is entered into this 29th day
of September, 2006, between First Professionals Insurance Company, Inc., a
Florida corporation (“FPIC”), and Physicians’ Reciprocal Insurers, a New York
insurance reciprocal (“PRI”).
WHEREAS,
FPIC and PRI have entered into and remain parties to certain agreements, to
wit:
the Physicians and Surgeons Excess Professional Liability Excess Cessions
Reinsurance Contract Treaties for 1998-1999, 1999-2000, 2000-2001, 2001-2002,
2002-2003, 2003-2004 (collectively, the “XOL Treaties”); the Death, Disability
or Retirement Quota Share Reinsurance Agreement (the “DD&R Treaty”); and the
Physicians and Surgeons Professional Liability Quota Share Reinsurance Agreement
relating to insurance policies covering Pennsylvania insureds (the “Pennsylvania
Treaty”);
WHEREAS,
FPIC, PRI and Sun Trust Bank, Central Florida have entered into a Reinsurance
Trust Agreement, dated November 27, 2001 (the “Trust Agreement”) under which PRI
deposits collateral securing the Pennsylvania Treaty;
WHEREAS,
FPIC and PRI desire, subject to obtaining approval of the New York State
Insurance Department, to commute the XOL Treaties and the DD&R Treaty
(collectively,
the “Commutations”) and
the parties hereto deem it in their best interests to do so; and
WHEREAS,
prior to the date hereof, PRI has filed an application with the New
York State Insurance Department
seeking approval of a commutation agreement in
the form of
Exhibit A
hereto with respect to the DD&R Treaty;
NOW,
THEREFORE, in consideration of the mutual promises, covenants, conditions and
provisions set forth below, it is agreed as follows:
1. Commutations.
As soon as practicable after the date hereof, PRI will file an application
seeking approval of
a commutation agreement in
the form of
Exhibit B
hereto with respect to the XOL Treaties. Within three business days of PRI’s
receiving all required approvals of the New York State Insurance Department
with
respect to both (i.e., the DD&R Treaty, on the one hand, and the XOL
Treaties, on the other hand) Commutations (the “Approvals”), PRI and FPIC will
execute and deliver to one another a commutation agreement in the form of
Exhibit
C
hereto (which Exhibit reflects the completion and filling in of the blanks
of
Exhibit
A
hereto) with respect to the DD&R Treaty and a commutation agreement in the
form of Exhibit
D
hereto (which Exhibit reflects the completion and filling in of the blanks
of
Exhibit
B
hereto)with respect to the XOL Treaties; provided, however, that neither party
hereto shall be obligated to enter into either such Commutation unless and
until
the Approvals are received in respect of both Commutations and the other party
performs its obligation to enter into both
Commutations.
PRI will use all commercially reasonable efforts to obtain the Approvals as
soon
as reasonably practicable and FPIC will cooperate fully with PRI in that regard.
Unless otherwise agreed in writing by FPIC and PRI, the obligations of the
parties under this Section 1 to enter into the Commutations will be and become
null and void if the Approvals have not been obtained by November 15, 2006,
promptly after which date PRI will withdraw its applications seeking the
Approvals. Consequently, the parties understand and acknowledge that should
the
parties ever seek to enter into commutations of either or both of the DD&R
Treaty and/or the XOL Treaty with each other following such termination of
the
obligations under this Section 1 (notwithstanding that the other provisions
of
this Agreement continue in effect), they will be required to do so through
agreements separate and apart from this Agreement and on whatever terms the
parties may then agree, whether or not similar to the terms of the Commutations
contemplated by this Agreement.
2. Pennsylvania
Treaty Collateral.
PRI acknowledges and agrees that under the terms of the Pennsylvania Treaty
it
will cause PRI’s independent consulting actuary to update its reserve analysis
(with an indication of an estimated low end, mid-point and high end of the
range) twice each year on a reasonably prompt basis, as of June 30 and December
31 beginning with December 31, 2006, with respect to the business covered by
the
Pennsylvania Treaty and to provide FPIC with a copy of the updated analysis
promptly after receipt (each, a “Reserve Analysis”). Each Reserve Analysis shall
continue to be performed using actuarially sound assumptions and on a basis
consistent with the latest reserve analysis prior to the date of this Agreement
performed by PRI’s independent consulting actuary with respect to the business
covered by the Pennsylvania Treaty. PRI and FPIC acknowledge and agree that
under the Pennsylvania Treaty PRI is at all times required to maintain
collateral under the Trust Agreement covering reserves in an amount equal to
the
high end of the range indicated in the latest Reserve Analysis
delivered.
IN
WITNESS WHEREOF, FPIC and PRI have executed this Agreement as of the date first
above indicated.
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FIRST
PROFESSIONALS INSURANCE
COMPANY,
INC.
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| By: | /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III | |
| Name: | ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, III | |
| Title: | Vice President | |
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PHYSICIANS’ RECIPROCAL
INSURERS
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| By: | /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Name: | ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ | |
| Title: | Treasurer | |
Exhibit
A
TERMINATION
AND COMMUTATION ADDENDUM
to
the
DEATH,
DISABILITY OR RETIREMENT QUOTA SHARE
REINSURANCE
AGREEMENT
Effective:
January 1, 2000
entered
into by and between
PHYSICIANS’
RECIPROCAL INSURERS
Manhasset,
New York
(hereinafter
referred to as the “Company”)
and
FIRST
PROFESSIONALS INSURANCE COMPANY, INC.
Jacksonville,
Florida
(hereinafter
referred to as the “Reinsurer”)
It
is Hereby Agreed
that this Agreement and the Reinsurer’s 100% share in interests and liabilities
in respect of this Agreement shall be terminated and commuted at 11:59 p.m.,
Eastern Standard Time, ________________________, 2005.
In
Consideration Thereof,
the Reinsurer shall pay to the Company $____________, as promptly as possible
after the execution of this Addendum. Upon receipt thereof, the Company shall
release the Reinsurer from all further liability, whether known or unknown,
under this Agreement and the Reinsurer shall release the Company from all
further liability thereunder, whether known or unknown.
In
Witness Whereof,
the parties hereto by their respective duly authorized representatives have
executed this Addendum as of the dates under mentioned at:
Manhasset,
New York, this _________ day of ________________ in the year
________.
|
Physicians’ Reciprocal Insurers |
Jacksonville,
Florida, this _________
day of ________________ in the year ________.
|
First Professionals Insurance Company, Inc. |
Exhibit
B
COMMUTATION
AND MUTUAL RELEASE AGREEMENT
This
COMMUTATION AND RELEASE AGREEMENT (the “Commutation Agreement”) is made and
effective as of September 29, 2006 by and between Physicians’
Reciprocal Insurers,
a New York insurance reciprocal (hereinafter
referred to as the “REINSURED”), and First
Professionals Insurance Company, Inc.
formerly known as Florida Physicians Insurance Company, Inc., a Florida
insurance company (hereinafter referred to as the “REINSURER”).
W
I T NE S S E T H:
WHEREAS,
the REINSURED and the REINSURER are parties to the “Reinsurance Agreements”
indicated in Schedule
“A”
attached hereto and made a part of the Commutation Agreement and whereby,
amongst others, the REINSURER, agreed to reinsure certain insurance policy
risks
insured by the REINSURED; and
WHEREAS,
the REINSURED and the REINSURER now desire to fully and finally settle and
commute all of their respective past, present and future obligations and
liabilities known and unknown, discovered and undiscovered under all Reinsurance
Agreements listed in Schedule
“A”
with respect to reinsurance business ceded by Reinsured to Reinsurer;
and,
WHEREAS,
the parties hereto recognize and understand that a portion of the REINSURER’s
obligation to the REINSURED under the Reinsurance Agreements, listed in
Schedule
“A”,
may become due in the future; that these future obligations and liabilities
have
been evaluated and independently estimated by both parties and cannot be
determined in an amount certain by either party at this time, and that a
commutation of these obligations of the REINSURER negotiated on the basis of
each parties’ independent calculations of outstanding losses, loss reserves and
IBNR will eliminate the uncertainty of contingent liabilities for presently
unresolved and unasserted claims; and
WHEREAS,
the REINSURER has offered to pay and the REINSURED has agreed to accept in
full
satisfaction of the REINSURER’S past, present and future obligations and
liabilities under the Reinsurance Agreements listed in Schedule
“A”,
for the sum of $____ million (as of June 30, 2006, appropriately adjusted for
subsequent activity) to be paid in the manner set forth herein;
NOW,
THEREFORE, in consideration of the covenants set forth herein and the payments
to be made hereunder, it is agreed by and between the REINSURED and the
REINSURER as follows:
1. Upon
execution and delivery of this Commutation Agreement by both the REINSURED
and
the REINSURER, the REINSURER shall pay the REINSURED the sum of $____
million (as of June 30, 2006, appropriately adjusted for subsequent activity)
by
the forgiveness of net amounts due to the REINSURER under the reinsurance
agreements at the time with the balance by a wire transfer payment to
___________ Bank, ABA Routing Number ______________, Account Name:
________________ Account, Account Number: ____________________ Ref: First
Professionals Commutation and Mutual Release Agreement Payment.
The REINSURER and REINSURED agree that there are no other amounts due or owing
between them with respect to reinsurance business ceded by REINSURED to
REINSURER with respect to the Reinsurance Agreements listed in Schedule
“A”.
2. The
REINSURED shall accept the sums set forth in Paragraph 1 herein, as full and
final settlement of any and all amounts claimed heretofore or hereinafter to
be
due by the REINSURER to REINSURED, arising under or in respect of the
Reinsurance Agreements with respect to reinsurance business ceded by REINSURED
to REINSURER .
3. The
REINSURER hereby releases and discharges the REINSURED, its predecessors,
parents, affiliates, agents, employees, officers, directors, shareholders,
policyholders and assigns from any and all liabilities, including, but not
limited to, all obligations, adjustments, executions, offsets, actions, causes
of action, suits, debts, sums of money, accounts, reckonings, bonds, bills,
covenants, contracts, controversies, agreements, promises, damages, judgments,
claims, demands, duties, acts, omissions, costs, expenses and/or losses
whatsoever, whether known or unknown, reported or unreported, discovered or
undiscovered, and whether arising in the past, present or future, which the
REINSURER, and its successors and assigns ever had, now have, or hereafter
may
have, whether grounded in law or equity, in contract or in tort, against the
REINSURED by reason of any matter whatsoever arising out of the Reinsurance
Agreements with respect to reinsurance business ceded by REINSURED to REINSURER,
it being the intention of the parties that this Commutation Agreement operate
as
a full and final settlement of the REINSURED’S past, current and future
liabilities to the REINSURER under said Reinsurance Agreements, except as
otherwise provided herein.
4. The
REINSURED hereby releases and discharges the REINSURER, its predecessors,
parents, affiliates, agents, employees, officers, directors, shareholders,
policyholders and assigns from any and all liabilities, including, but not
limited to, all obligations, adjustments, executions, offsets, actions, causes
of action, suits, debts, sums of money, accounts, reckonings, bonds, bills,
covenants, contracts, controversies, agreements, promises, damages, judgments,
claims, demands, duties, acts, omissions, costs, expenses and/or losses
whatsoever, whether known or unknown, reported or unreported, and whether
arising in the past, present or future which the REINSURED, and its successors
and assigns ever had, now have, or hereafter may have, whether grounded in
law
or equity, in contract or in tort, against the REINSURER by reason of any matter
whatsoever arising out of the Reinsurance Agreements with respect to reinsurance
business ceded by REINSURED to REINSURER, it being the intention of the parties
that this Commutation Agreement operate as a full and final settlement of the
REINSURER’S past, current and future liabilities to the REINSURED under said
Reinsurance Agreements except as otherwise provided herein.
5. The
REINSURED and the REINSURER absolutely, irrevocably and unconditionally covenant
and agree with each other, and their respective successors and assigns, that
after the effective date of the Commutation Agreement, neither party will for
any reason whatsoever, demand, claim or file suit or initiate arbitration or
any
other proceedings against the other party in respect of any matters relating
to
the Reinsurance Agreements as indicated in Schedule
“A”
or any other part of this Commutation Agreement.
6. The
REINSURED acknowledges the
payment described in Paragraph 1 herein, as a complete accord, satisfaction,
settlement and commutation of any and all of the liability and obligations
of
the parties under the Reinsurance Agreements. Accordingly, the REINSURED agrees
to indemnify, hold harmless and defend REINSURER (and all other persons released
under paragraph 4 herein) from and against, and pay on their behalf, any
judgment, action, cause of action, suit, demand, debt, payment, award, loss,
claim, damage, liability, or expense (including, but not limited to, costs
of
defense incurred in investigation or defending any actions or proceedings and
reasonable attorney’s fees) incurred by any of them, resulting from any action
filed
against the REINSURER by any policyholder, insured, claimant, or other
beneficiary under the Reinsurance Agreements, including any agent or successor
in interest to any such policyholder, insured, claimant, or beneficiary.
"Policyholder, insured, claimant, and beneficiary" will have the same definition
herein as in the policies reinsured under the Reinsurance Agreements, and for
purposes hereof will include any other potential recipient of proceeds from
the
policies reinsured under the Reinsurance Agreements. It being agreed expressly
that nothing in this Commutation Agreement will in any manner create any
obligations or establish any rights against either the REINSURED or the
REINSURER in favor of any third parties or persons not parties to this
Commutation Agreement. REINSURER shall give prompt notice to REINSURED of the
commencement of any action or proceeding.
7. The
parties agree that in the event payment, as described in Paragraph 1 herein,
is
not made by the REINSURER, then this Commutation Agreement shall be considered
null and void. Moreover, if any court of competent jurisdiction renders a final
order or ruling declaring this Commutation Agreement or the payment made under
paragraph 1 herein null and void, then this Commutation shall be rescinded
and
each of the REINSURER and the REINSURED shall be restored to the position they
were in just prior to the execution of this Commutation Agreement.
8. This
Commutation Agreement is the product of arm’s length negotiations and the terms
hereof have been completely read and fully understood and voluntarily accepted
by both the REINSURED and the REINSURER. Each party has enlisted its own
independent advisors and has been represented by its own legal
counsel.
9. The
rights, duties and obligations under this Commutation Agreement shall be final
and binding upon and inure to the benefit of the parties hereto and their
respective officers, directors, employees, affiliated companies, stockholders,
parents, predecessors, successors, liquidators, receivers and
assigns.
10. The
REINSURER represents and warrants to the REINSURED that: (a) it is a corporation
in good standing in its state of domicile; (b) that it is fully authorized
and
empowered to execute and deliver this Commutation Agreement; (c) that the person
executing this Commutation Agreement is fully authorized to do so; (d) that
there are no pending conditions, agreements, transactions, or negotiations
to
which it is a party that would render this Commutation Agreement or any part
thereof void, voidable or unenforceable; (e) that no additional authorization,
consent or approval of any governmental entity is required to make this
Commutation Agreement valid and enforceable against the REINSURER in accordance
with its terms; (f) no claim or loss being paid or settled by this Commutation
Agreement has been previously assigned, sold and/or transferred to any other
entity.
11. The
REINSURED represents and warrants to the REINSURER that: (a) it is a corporation
in good standing in its state of domicile; (b) that it is fully authorized
and
empowered to execute and deliver this Commutation Agreement; (c) that the person
executing this Commutation Agreement is fully authorized to do so; (d) that
there are no pending conditions, agreements, transactions, or negotiations
to
which it is a party that would render this Commutation Agreement or any part
thereof void, voidable or unenforceable; (e) that no additional authorization,
consent or approval of any governmental entity is required to make this
Commutation Agreement valid and enforceable against the REINSURED in accordance
with its terms; (f) no claim or loss being paid or settled by this Commutation
Agreement has been previously assigned, sold and/or transferred to any other
entity.
12. This
Commutation Agreement shall constitute the entire agreement between the parties
with respect to its subject matter. This Commutation Agreement may not be
modified or amended, except by written instrument executed by each of the
parties hereto. Waiver by any of the parties of any term, provision or condition
shall not be construed to be a waiver of any other term, provision or condition
of this Commutation Agreement.
13.
This
Commutation Agreement shall be interpreted under and governed by the laws of
the
State of Florida without regard to conflict of law principles.
14. The
REINSURED and the REINSURER hereby agree to execute promptly any and all
supplemental agreements, releases, affidavits, waivers and all other documents
of any nature or kind which the other party may reasonable require in order
to
implement the provisions or objectives of this Commutation
Agreement.
15. The
REINSURED and the REINSURER hereby agree to keep the terms and conditions of
this Commutation Agreement confidential and will not disclose (except as
required by any state Insurance Department, applicable law, regulation, or
legal
process) the existence and/or terms and conditions of this Commutation Agreement
to third parties. The REINSURED and the REINSURER hereby agree that their
directors, officers, partners, members, employees, affiliates,
retrocessionaires, brokers, agents, managing general agents or other
representatives (including, without limitation, financial advisors, attorneys,
accountants, and actuaries) may be permitted to know the existence and the
terms
and conditions of this Commutation Agreement on a confidential, need to know
basis in the course of normal business. Should either the REINSURED or the
REINSURER be requested by subpoena or similar governmental or judicial notice
to
disclose the existence and the terms and conditions of the Commutation
Agreement, they must promptly notify the other party in order that the other
may
seek a protective order or other appropriate remedy either by itself or jointly
with the party receiving the request. In the event that no such protective
order
or other appropriate remedy is sought or obtained, then the party receiving
the
subpoena or similar governmental or judicial notice will furnish only that
portion of information concerning this Commutation Agreement which it is legally
required, as it is advised by its own counsel, and will exercise all reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded the terms and conditions of this Commutation Agreement.
16. REINSURED
and REINSURER acknowledge that some State laws provide that a general release
does not extend to claims which the creditor does not know or suspect to exist
in his favor at the time of executing release, which if known by him must have
significantly affected his settlement with the debtor. REINSURED and REINSURER
expressly waive any and all rights under any such federal or state statute
or
law of similar effect with respect to this Commutation Agreement.
17. This
Agreement may be executed and delivered in multiple counterparts, each of which,
when so executed and delivered, shall be an original, but such counterparts
shall together constitute but one and the same instrument and
agreement.
18. Any
statements, communications or notices to be provided pursuant to this
Commutation and Mutual Release Agreement shall be sent to the attention of
the
person indicated below, until such time as notice of any change of persons
to be
notified or change of address is forwarded to the Parties:
(a)
REINSURER: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esquire
President
Administrators
for the
Professions, Inc.
III
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇
▇▇▇▇▇
(b)
REINSURED: ▇▇▇▇▇▇
▇. ▇▇▇▇▇ ▇▇.
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President
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First Professionals Insurance Company,
Inc.
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▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
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▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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IN
WITNESS WHEREOF, the parties have executed this Commutation Agreement as of
the
day and year first written above.
Physicians’
Reciprocal Insurers (“REINSURED”)
Signature:
________________________________
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esquire
Title: Chief
Executive Officer & President, Administrators For
The
Professions, Inc.
Attorney In Fact for Physicians’
Reciprocal
Insurers
Date:
________________, 2006
First
Professionals Insurance Company, Inc. formerly known as Florida Physicians
Insurance Company, Inc. (“REINSURED”)
Signature:
________________________________
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
Title: President
Date:
________________, 2006
SCHEDULE
“A”
REINSURANCE
AGREEMENTS
1.
Physicians and Surgeons Excess Professional Liability Excess Cessions
Reinsurance Contract Treaties for 1998-1999, 1999-2000, 2000-2001, 2001-2002,
2002-2003, 2003-2004.
2.
Death, Disability or Retirement Quota Share Reinsurance Agreement from 1999
to
present.
Exhibit
C
TERMINATION
AND COMMUTATION ADDENDUM
to
the
DEATH,
DISABILITY OR RETIREMENT QUOTA SHARE
REINSURANCE
AGREEMENT
Effective:
January 1, 2000
entered
into by and between
PHYSICIANS’
RECIPROCAL INSURERS
Manhasset,
New York
(hereinafter
referred to as the “Company”)
and
FIRST
PROFESSIONALS INSURANCE COMPANY, INC.
Jacksonville,
Florida
(hereinafter
referred to as the “Reinsurer”)
It
is Hereby Agreed
that this Agreement and the Reinsurer’s 100% share in interests and liabilities
in respect of this Agreement shall be terminated and commuted at 11:59 p.m.,
Eastern Standard Time, ________________________, 2005.
In
Consideration Thereof,
the Reinsurer shall pay to the Company $61.8 million (as of June 30, 2006,
appropriately adjusted for subsequent activity), as promptly as possible after
the execution of this Addendum. Upon receipt thereof, the Company shall release
the Reinsurer from all further liability, whether known or unknown, under this
Agreement and the Reinsurer shall release the Company from all further liability
thereunder, whether known or unknown.
In
Witness Whereof,
the parties hereto by their respective duly authorized representatives have
executed this Addendum as of the dates under mentioned at:
Manhasset,
New York, this _________ day of ________________ in the year
________.
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Physicians’ Reciprocal Insurers |
Jacksonville,
Florida, this _________
day of ________________ in the year ________.
|
First Professionals Insurance Company, Inc. |
Exhibit
D
COMMUTATION
AND MUTUAL RELEASE AGREEMENT
This
COMMUTATION AND RELEASE AGREEMENT (the “Commutation Agreement”) is made and
effective as of September 29, 2006 by and between Physicians’
Reciprocal Insurers,
a New York insurance reciprocal (hereinafter
referred to as the “REINSURED”), and First
Professionals Insurance Company, Inc.
formerly known as Florida Physicians Insurance Company, Inc., a Florida
insurance company (hereinafter referred to as the “REINSURER”).
W
I T NE S S E T H:
WHEREAS,
the REINSURED and the REINSURER are parties to the “Reinsurance Agreements”
indicated in Schedule
“A”
attached hereto and made a part of the Commutation Agreement and whereby,
amongst others, the REINSURER, agreed to reinsure certain insurance policy
risks
insured by the REINSURED; and
WHEREAS,
the REINSURED and the REINSURER now desire to fully and finally settle and
commute all of their respective past, present and future obligations and
liabilities known and unknown, discovered and undiscovered under all Reinsurance
Agreements listed in Schedule
“A”
with respect to reinsurance business ceded by Reinsured to Reinsurer;
and,
WHEREAS,
the parties hereto recognize and understand that a portion of the REINSURER’s
obligation to the REINSURED under the Reinsurance Agreements, listed in
Schedule
“A”,
may become due in the future; that these future obligations and liabilities
have
been evaluated and independently estimated by both parties and cannot be
determined in an amount certain by either party at this time, and that a
commutation of these obligations of the REINSURER negotiated on the basis of
each parties’ independent calculations of outstanding losses, loss reserves and
IBNR will eliminate the uncertainty of contingent liabilities for presently
unresolved and unasserted claims; and
WHEREAS,
the REINSURER has offered to pay and the REINSURED has agreed to accept in
full
satisfaction of the REINSURER’S past, present and future obligations and
liabilities under the Reinsurance Agreements listed in Schedule
“A”,
for the sum of $17.2 million (as of June 30, 2006, appropriately adjusted for
subsequent activity) to be paid in the manner set forth herein;
NOW,
THEREFORE, in consideration of the covenants set forth herein and the payments
to be made hereunder, it is agreed by and between the REINSURED and the
REINSURER as follows:
12. Upon
execution and delivery of this Commutation Agreement by both the REINSURED
and
the REINSURER, the REINSURER shall pay the REINSURED the sum of $17.2
million (as of June 30, 2006, appropriately adjusted for subsequent activity)
by
the forgiveness of net amounts due to the REINSURER under the reinsurance
agreements at the time with the balance by a wire transfer payment to
___________ Bank, ABA Routing Number ______________, Account Name:
________________ Account, Account Number: ____________________ Ref: First
Professionals Commutation and Mutual Release Agreement Payment.
The REINSURER and REINSURED agree that there are no other amounts due or owing
between them with respect to reinsurance business ceded by REINSURED to
REINSURER with respect to the Reinsurance Agreements listed in Schedule
“A”.
13. The
REINSURED shall accept the sums set forth in Paragraph 1 herein, as full and
final settlement of any and all amounts claimed heretofore or hereinafter to
be
due by the REINSURER to REINSURED, arising under or in respect of the
Reinsurance Agreements with respect to reinsurance business ceded by REINSURED
to REINSURER .
14. The
REINSURER hereby releases and discharges the REINSURED, its predecessors,
parents, affiliates, agents, employees, officers, directors, shareholders,
policyholders and assigns from any and all liabilities, including, but not
limited to, all obligations, adjustments, executions, offsets, actions, causes
of action, suits, debts, sums of money, accounts, reckonings, bonds, bills,
covenants, contracts, controversies, agreements, promises, damages, judgments,
claims, demands, duties, acts, omissions, costs, expenses and/or losses
whatsoever, whether known or unknown, reported or unreported, discovered or
undiscovered, and whether arising in the past, present or future, which the
REINSURER, and its successors and assigns ever had, now have, or hereafter
may
have, whether grounded in law or equity, in contract or in tort, against the
REINSURED by reason of any matter whatsoever arising out of the Reinsurance
Agreements with respect to reinsurance business ceded by REINSURED to REINSURER,
it being the intention of the parties that this Commutation Agreement operate
as
a full and final settlement of the REINSURED’S past, current and future
liabilities to the REINSURER under said Reinsurance Agreements, except as
otherwise provided herein.
15. The
REINSURED hereby releases and discharges the REINSURER, its predecessors,
parents, affiliates, agents, employees, officers, directors, shareholders,
policyholders and assigns from any and all liabilities, including, but not
limited to, all obligations, adjustments, executions, offsets, actions, causes
of action, suits, debts, sums of money, accounts, reckonings, bonds, bills,
covenants, contracts, controversies, agreements, promises, damages, judgments,
claims, demands, duties, acts, omissions, costs, expenses and/or losses
whatsoever, whether known or unknown, reported or unreported, and whether
arising in the past, present or future which the REINSURED, and its successors
and assigns ever had, now have, or hereafter may have, whether grounded in
law
or equity, in contract or in tort, against the REINSURER by reason of any matter
whatsoever arising out of the Reinsurance Agreements with respect to reinsurance
business ceded by REINSURED to REINSURER, it being the intention of the parties
that this Commutation Agreement operate as a full and final settlement of the
REINSURER’S past, current and future liabilities to the REINSURED under said
Reinsurance Agreements except as otherwise provided herein.
16. The
REINSURED and the REINSURER absolutely, irrevocably and unconditionally covenant
and agree with each other, and their respective successors and assigns, that
after the effective date of the Commutation Agreement, neither party will for
any reason whatsoever, demand, claim or file suit or initiate arbitration or
any
other proceedings against the other party in respect of any matters relating
to
the Reinsurance Agreements as indicated in Schedule
“A”
or any other part of this Commutation Agreement.
17. The
REINSURED
acknowledges the payment described in Paragraph 1 herein, as a complete accord,
satisfaction, settlement and commutation of any and all of the liability and
obligations of the parties under the Reinsurance Agreements. Accordingly, the
REINSURED agrees to indemnify, hold harmless and defend REINSURER (and all
other
persons released under paragraph 4 herein) from and against, and pay on their
behalf, any judgment, action, cause of action, suit, demand, debt, payment,
award, loss, claim, damage, liability, or expense (including, but not limited
to, costs of defense incurred in investigation or defending any
actions
or
proceedings and reasonable attorney’s fees) incurred by any of them, resulting
from any action filed against the REINSURER by any policyholder, insured,
claimant, or other beneficiary under the Reinsurance Agreements, including
any
agent or successor in interest to any such policyholder, insured, claimant,
or
beneficiary. "Policyholder, insured, claimant, and beneficiary" will have the
same definition herein as in the policies reinsured under the Reinsurance
Agreements, and for purposes hereof will include any other potential recipient
of proceeds from the policies reinsured under the Reinsurance Agreements. It
being agreed expressly that nothing in this Commutation Agreement will in any
manner create any obligations or establish any rights against either the
REINSURED or the REINSURER in favor of any third parties or persons not parties
to this Commutation Agreement. REINSURER shall give prompt notice to REINSURED
of the commencement of any action or proceeding.
18. The
parties agree that in the event payment, as described in Paragraph 1 herein,
is
not made by the REINSURER, then this Commutation Agreement shall be considered
null and void. Moreover, if any court of competent jurisdiction renders a final
order or ruling declaring this Commutation Agreement or the payment made under
paragraph 1 herein null and void, then this Commutation shall be rescinded
and
each of the REINSURER and the REINSURED shall be restored to the position they
were in just prior to the execution of this Commutation Agreement.
19. This
Commutation Agreement is the product of arm’s length negotiations and the terms
hereof have been completely read and fully understood and voluntarily accepted
by both the REINSURED and the REINSURER. Each party has enlisted its own
independent advisors and has been represented by its own legal
counsel.
20. The
rights, duties and obligations under this Commutation Agreement shall be final
and binding upon and inure to the benefit of the parties hereto and their
respective officers, directors, employees, affiliated companies, stockholders,
parents, predecessors, successors, liquidators, receivers and
assigns.
21. The
REINSURER represents and warrants to the REINSURED that: (a) it is a corporation
in good standing in its state of domicile; (b) that it is fully authorized
and
empowered to execute and deliver this Commutation Agreement; (c) that the person
executing this Commutation Agreement is fully authorized to do so; (d) that
there are no pending conditions, agreements, transactions, or negotiations
to
which it is a party that would render this Commutation Agreement or any part
thereof void, voidable or unenforceable; (e) that no additional authorization,
consent or approval of any governmental entity is required to make this
Commutation Agreement valid and enforceable against the REINSURER in accordance
with its terms; (f) no claim or loss being paid or settled by this Commutation
Agreement has been previously assigned, sold and/or transferred to any other
entity.
22. The
REINSURED represents and warrants to the REINSURER that: (a) it is a corporation
in good standing in its state of domicile; (b) that it is fully authorized
and
empowered to execute and deliver this Commutation Agreement; (c) that the person
executing this Commutation Agreement is fully authorized to do so; (d) that
there are no pending conditions, agreements, transactions, or negotiations
to
which it is a party that would render this Commutation Agreement or any part
thereof void, voidable or unenforceable; (e) that no additional authorization,
consent or approval of any governmental entity is required to make this
Commutation Agreement valid and enforceable against the REINSURED in accordance
with its terms; (f) no claim or loss being paid or settled by this Commutation
Agreement has been previously assigned, sold and/or transferred to any other
entity.
15. This
Commutation Agreement shall constitute the entire agreement between the parties
with respect to its subject matter. This Commutation Agreement may not be
modified or amended, except by written instrument executed by each of the
parties hereto. Waiver by any of the parties of any term, provision or condition
shall not be construed to be a waiver of any other term, provision or condition
of this Commutation Agreement.
16. This
Commutation Agreement shall be interpreted under and governed by the laws of
the
State of Florida without regard to conflict of law principles.
17. The
REINSURED and the REINSURER hereby agree to execute promptly any and all
supplemental agreements, releases, affidavits, waivers and all other documents
of any nature or kind which the other party may reasonable require in order
to
implement the provisions or objectives of this Commutation
Agreement.
15. The
REINSURED and the REINSURER hereby agree to keep the terms and conditions of
this Commutation Agreement confidential and will not disclose (except as
required by any state Insurance Department, applicable law, regulation, or
legal
process) the existence and/or terms and conditions of this Commutation Agreement
to third parties. The REINSURED and the REINSURER hereby agree that their
directors, officers, partners, members, employees, affiliates,
retrocessionaires, brokers, agents, managing general agents or other
representatives (including, without limitation, financial advisors, attorneys,
accountants, and actuaries) may be permitted to know the existence and the
terms
and conditions of this Commutation Agreement on a confidential, need to know
basis in the course of normal business. Should either the REINSURED or the
REINSURER be requested by subpoena or similar governmental or judicial notice
to
disclose the existence and the terms and conditions of the Commutation
Agreement, they must promptly notify the other party in order that the other
may
seek a protective order or other appropriate remedy either by itself or jointly
with the party receiving the request. In the event that no such protective
order
or other appropriate remedy is sought or obtained, then the party receiving
the
subpoena or similar governmental or judicial notice will furnish only that
portion of information concerning this Commutation Agreement which it is legally
required, as it is advised by its own counsel, and will exercise all reasonable
efforts to obtain reliable assurance that confidential treatment will be
accorded the terms and conditions of this Commutation Agreement.
16. REINSURED
and REINSURER acknowledge that some State laws provide that a general release
does not extend to claims which the creditor does not know or suspect to exist
in his favor at the time of executing release, which if known by him must have
significantly affected his settlement with the debtor. REINSURED and REINSURER
expressly waive any and all rights under any such federal or state statute
or
law of similar effect with respect to this Commutation Agreement.
17. This
Agreement may be executed and delivered in multiple counterparts, each of which,
when so executed and delivered, shall be an original, but such counterparts
shall together constitute but one and the same instrument and
agreement.
18. Any
statements, communications or notices to be provided pursuant to this
Commutation and Mutual Release Agreement shall be sent to the attention of
the
person indicated below, until such time as notice of any change of persons
to be
notified or change of address is forwarded to the Parties:
(a)
REINSURER: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esquire
President
Administrators
for the Professions, Inc.
III
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇
(b)
REINSURED: ▇▇▇▇▇▇
▇. ▇▇▇▇▇ ▇▇.
|
President
|
|
First Professionals Insurance Company,
Inc.
|
|
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
|
|
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
|
IN
WITNESS WHEREOF, the parties have executed this Commutation Agreement as of
the
day and year first written above.
Physicians’
Reciprocal Insurers (“REINSURED”)
Signature:
________________________________
Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇, Esquire
Title: Chief
Executive Officer & President, Administrators For
The
Professions, Inc.
Attorney In Fact for Physicians’
Reciprocal
Insurers
Date:
________________, 2006
First
Professionals Insurance Company, Inc. formerly known as Florida Physicians
Insurance Company, Inc. (“REINSURED”)
Signature:
________________________________
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇▇, ▇▇.
Title: President
Date:
________________, 2006
SCHEDULE
“A”
REINSURANCE
AGREEMENTS
1.
Physicians and Surgeons Excess Professional Liability Excess Cessions
Reinsurance Contract Treaties for 1998-1999, 1999-2000, 2000-2001, 2001-2002,
2002-2003, 2003-2004.
2.
Death, Disability or Retirement Quota Share Reinsurance Agreement from 1999
to
present.