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EXHIBIT 10.27
REINSURANCE AGREEMENT
between
RELIANCE STANDARD LIFE INSURANCE COMPANY
and
ORACLE REINSURANCE COMPANY LTD.
This Agreement is made and entered into on the 27 day of January, 1998
by and between Reliance Standard Life Insurance Company, a corporation duly
organized under the insurance laws of the State of Illinois (hereinafter
referred to as "Ceding Company"), and Oracle Reinsurance Company Ltd., a
corporation duly organized under the insurance laws of Bermuda (hereinafter
referred to as "Reinsurer").
WHEREAS, the parties desire to provide for the reinsurance on a quota
share basis by the Reinsurer of a portion of Ceding Company's liabilities under
group long-term disability claims incurred prior to January 1, 1996 and
outstanding as of the Effective Date, as defined below, on the terms more
specifically provided below;
NOW, THEREFORE, the parties agree as follows:
I. APPROVAL
This Agreement shall have no force or effect until it shall have been
approved or deemed approved by the Director of Insurance of the State of
Illinois as and in the manner required by the Illinois Insurance Code and the
regulations thereunder (collectively, the "Illinois Laws").
II. REINSURANCE
The reinsurance provided for hereunder shall become effective as of
12:01 a.m. on January 1, 1998 (the "Effective Date").
III. BUSINESS COVERED
Ceding Company agrees to cede, and Reinsurer agrees to accept as
indemnity reinsurance, 27.838118% (the "Reinsured Percentage") of Ceding
Company's liabilities with respect to claims incurred under Ceding Company's
group long-term disability policies prior to January 1, 1996 which are open and
outstanding as of the Effective Date (the "Reinsured Claims"). This Agreement
shall not, however, relate in any way to liabilities with respect to Reinsured
Claims which are the subject of reinsurance cessions effected by Ceding Company
prior to the Effective Date, and such liabilities shall be disregarded for
purposes of applying all of the provisions of this
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Agreement.
IV. REINSURANCE PREMIUM
Ceding Company shall pay to Reinsurer, within ten (10) days of receipt
of the approval referenced in Section I hereof, or upon such other date to which
Ceding Company and Reinsurer mutually agree, an initial reinsurance premium
which shall be equal to the Reinsured Percentage of Ceding Company's aggregate
statutory reserves with respect to the Reinsured Claims, as required by
applicable regulatory authorities (the "Reinsured Claim Reserves"), determined
as of the Effective Date, less the sum of an initial ceding commission equal to
$4,833,950.00 and federal excise tax in the amount equal to 1% of the Reinsured
Claim Reserves, together with interest on the amount of the Reinsured Claim
Reserves for the period beginning on the Effective Date and ending on the date
of such payment at the rate of six percent (6%) per annum.
V. REPORTS AND RECONCILIATION
A. Quarterly Reports and Payments
Ceding Company will furnish to Reinsurer within thirty (30)
days after the close of each calendar quarter during which this Agreement is in
effect, commencing with the calendar quarter ending on March 31, 1998, on forms
mutually acceptable to Ceding Company and to Reinsurer, the following
information relating to the Reinsured Claims with respect to such quarter:
1. total benefit amounts paid with respect to Reinsured
Claims;
2. the amount of the expense allowance, which for
purposes hereof shall equal three percent (3%) of benefits
paid with respect to the Reinsured Claims during the
applicable calendar quarter;
3. the total amount of the Covered Claim Expenses (as
defined in Section VI hereof) incurred by Ceding Company
during such calendar quarter; and
4. the total amount of the Reinsured Claim Reserves as
of the end of such calendar quarter.
Reinsurer shall remit to Ceding Company, in cash, the Reinsured
Percentage multipled by the sum of (a) the amount described in clause 1 above,
(b) the amount described in clause 2 above and (c) the amount described in
clause 3 above, all as reflected in each such report, within ten (10) days of
receipt of such report.
B. Annual Investment Return Commission
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1. Ceding Company shall be entitled to share, on an annual
basis, in a portion of the Investment Return of Reinsurer on the
reserves maintained by Reinsurer with respect to the Reinsured Claims
(the "Reinsurer's Reserves"). The amount of such portion shall be equal
to the lesser of (a) the product of (i) seventy percent (70%) of the
amount by which the Investment Return for the applicable calendar year,
expressed as a percentage, exceeds six percent (6%), multiplied by (ii)
the Average Reserves or (b) two percent (2%) of the Average Reserves
for such calendar year, as increased, in either case, by any Carryover
Amount existing as of the end of such calendar year.
For purposes of the preceding paragraph and the formula contained
therein:
"Investment Return" shall mean the Reinsurer's net investment income
earned after investment expenses plus realized gains and losses divided
by the product of (i) one-half (1/2) and (ii) the sum of the
Reinsurer's total invested assets as of the first day of the applicable
calendar year and the Reinsurer's total invested assets as of the last
day of such calendar year. For purposes of the Investment Return
Commission calculation in 1998, the year of the inception of this
Agreement, and the year of termination of this Agreement, the
Investment Return shall be calculated based upon the dates the
Agreement was in force on an annualized basis.
"Average Reserves" shall mean the product of (a) one-half (1/2) and (b)
the sum of the Reinsurer's Reserves as of the first day of the
applicable calendar year and the Reinsurer's Reserves as of the last
day of such calendar year.
"Carryover Amount" shall mean, as to each calendar year beginning with
calendar year 1999, the cumulative sum of any amounts in the preceding
calendar years by which the amount obtained pursuant to clause (b) of
such formula exceeded the amount obtained pursuant to clause (a) of
such formula, and which amounts have not already been applied so as to
increase the amount payable pursuant to such formula.
2. Reinsurer will furnish to Ceding Company within fifteen
(15) days after the close of each calendar year during which this
Agreement is in effect, commencing with the calendar year ending on
December 31, 1998, on forms mutually acceptable to Ceding Company and
to Reinsurer, reports setting forth the amounts of the Investment
Return and the Average Reserves for such calendar year, along with the
amounts of any Carryover Amount existing as of the end of such calendar
year, including, in each case, supporting calculations. Each payment
due pursuant to this Section shall be made by Reinsurer to Ceding
Company within ten (10) days of its receipt of the calculation thereof
from Ceding Company.
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VI. CLAIMS
All settlements made by Ceding Company with respect to the Reinsured
Claims shall under all circumstances be binding upon Reinsurer. Reinsurer shall
pay the Reinsured Percentage of the Covered Claim Expenses, net of any portion
thereof for which Ceding Company is entitled to be reimbursed from any third
party reinsurer, relating to any contest or compromise of a Reinsured Claim, and
Reinsurer shall share in the total amount of savings in the same proportion.
"Covered Claim Expenses" shall include costs of investigation, legal fees, court
costs, interest charges, and extracontractual payments or damages not resulting
from the negligence or willful misconduct of Ceding Company, if any, relating to
the Reinsured Claims. Compensation of salaried officers and employees shall not
be considered Covered Claim Expenses.
VII. LETTERS OF CREDIT
A. Reinsurer agrees to maintain, at all times during which any
liabilities or obligations to Ceding Company under this Agreement remain
outstanding, one or more letters of credit from a financial institution or
institutions acceptable to Ceding Company, the terms of which letters of credit
shall comply with all provisions of the Illinois Laws as may be necessary in
order for Ceding Company to receive a reduction from the Reinsured Claim
Reserves in the full amount of the reinsurance ceded hereunder. Reinsurer shall
cause the terms of such letters of credit to be amended as may be necessary to
assure continued compliance with the Illinois Laws in the event of any changes
or modifications that may occur thereto from time to time, except to the extent
that such changes or modifications, by their terms, do not apply to letters of
credit issued prior to the effective date of such changes. The amount of such
letter of credit shall at all times be at least equal to the Reinsured
Percentage of the claim reserves that would be required to be held by Ceding
Company if not for the reinsurance cession provided for in this Agreement.
B. Reinsurer and Ceding Company agree that, notwithstanding any other
provisions in this Agreement, the letter(s) of credit provided by Reinsurer
pursuant to the provisions of Section VII(A), (i) may be drawn upon by Ceding
Company at any time, (ii) shall remain under the exclusive control of Ceding
Company and (iii) may be utilized by Ceding Company or its successors in
interest only for one or more of the following reasons:
1. To reimburse Ceding Company for Reinsurer's share of
premiums returned to the owners of policies reinsured under this
Agreement on account of cancellations of such policies.
2. To reimburse Ceding Company for Reinsurer's share of
surrenders and benefits or losses paid by Ceding Company under
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the terms and provisions of the policies reinsured under this
Agreement.
3. To fund an account with Ceding Company in an amount at
least equal to the deduction, for reinsurance ceded, from Ceding
Company's liabilities for the Reinsured Claims. This amount shall
include, but not be limited to, amounts for policy reserves, claims and
losses incurred (including losses incurred but not reported) and
unearned premium reserves. Ceding Company shall be liable to Reinsurer
for interest at a rate equal to a base rate, as determined from time to
time by Bank of America, plus three percent (3%), on all amounts in
such account for the period beginning when they are obtained pursuant
to the letter of credit until the time they actually become due to
Ceding Company under this Agreement.
4. To pay any other amounts Ceding Company claims are due
under this Agreement. Ceding Company shall return to Reinsurer any
amounts drawn down in excess of the actual amounts required for such
amounts or any amounts that are subsequently determined not to be due.
5. To pay existing liabilities between Ceding Company
and Reinsurer upon a termination of this Agreement pursuant to
Section XIII hereof.
The foregoing provisions of this Section VII(B) shall be applied
without diminution because of insolvency on the part of Ceding Company or
Reinsurer.
VIII. INSPECTION
Each party hereto shall allow the other party to inspect, at all
reasonable times, all of its books and records with respect to all transactions
under or relating to this Agreement. Each party shall hold in confidence the
results of such inspection.
IX. ERRORS AND OMISSIONS
If any failure of either party hereto to comply with any provision of
this Agreement is shown to have been unintentional, and if such party promptly
takes appropriate steps to cure such failure, such party shall not be deemed by
reason of such failure to be in breach of its obligations under this Agreement.
The failure of either party to make any remittance to the other required by this
Agreement shall not be deemed to be a breach of this Agreement if cured within
five (5) business days after written notice of the party to receive such
remittance that such remittance is due and unpaid, unless such notice is the
third or greater such notice given in any one calendar year. Such notice will be
effective upon receipt.
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X. INSOLVENCY
The reinsurance provided under this Agreement shall be payable by
Reinsurer on the basis of the liability of Ceding Company with respect to the
Reinsured Claims without diminution because of the insolvency of Ceding Company.
In the event of the insolvency of Ceding Company, payments by Reinsurer shall be
made directly to Ceding Company or its liquidator, receiver or statutory
successor.
In such event, the liquidator, receiver, or statutory successor of
Ceding Company shall give written notice of the pendency of a Reinsured Claim
against Ceding Company on the Reinsured Policy within a reasonable time after
such Reinsured Claim is filed in the insolvency proceeding. During the pendency
of any such claim, Reinsurer may investigate such claim and interpose, at its
own expense, in the proceeding where such claim is to be adjudicated any
defenses which Reinsurer considers available to Ceding Company or its
liquidator, receiver, or statutory successor. The expense thus incurred by
Reinsurer shall be chargeable against Ceding Company as part of the expense of
liquidation to the extent of a proportionate share of the benefit which may
accrue to Ceding Company solely as a result of the defense undertaken by
Reinsurer.
XI. ARBITRATION
In the event of any dispute arising under this Agreement either party
hereto may elect that such dispute be resolved by arbitration. In order to make
such an election, such party must select an arbitrator and give written notice
to the other party of its election and of the name and address of the arbitrator
so selected. Within twenty (20) days after receiving that notice, the other
party shall select an arbitrator and give the first party notice of the name and
address of said arbitrator. If the other party fails to notify the first party
of the name and address of an arbitrator within such 20-day period, the
arbitrator selected by the first party shall serve as sole arbitrator. Within
twenty (20) days thereafter the two arbitrators so selected shall select a third
arbitrator. Should the two arbitrators be unable to agree upon a choice of the
third within such time period, each shall provide the name of an acceptable
third arbitrator and lots shall be drawn to select the third.
The arbitrators shall conduct any arbitration under this Agreement in
accordance with the rules of the American Arbitration Association. Each party
shall submit its case to the arbitrators within thirty (30) days after the third
arbitrator is chosen. The Court of Arbitrators will be held in Philadelphia, PA.
The arbitrators shall be active or retired and disinterested officers
of life or health insurance companies other than the two parties to this
Agreement or any of their affiliates and shall be
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familiar with the reinsurance business. The arbitrators shall base their
decision on the terms and conditions of this Agreement and, as necessary, on the
generally accepted customs and practices of the life and health insurance and
life and health reinsurance industry rather than solely on a strict
interpretation of applicable law. They shall decide by a majority of votes, and
their written decision shall be binding upon the parties and shall not be
subject to appeal. The cost of arbitration, including the fees of the
arbitrators, shall be borne by the losing party unless the arbitrators shall
decide otherwise.
The parties intend this Section XI to be enforceable in accordance with
the Federal Arbitration Act, including any amendments thereto which are
subsequently adopted. In the event that either party refuses to submit to
arbitration as required by this Section XI, the other party may request a United
States Federal District Court to compel arbitration in accordance with the
Federal Arbitration Act. Both parties consent to the jurisdiction of any such
court to enforce this Article and to confirm and enforce the performance of any
award of the arbitrators.
XII. NO THIRD PARTY BENEFICIARIES
This Agreement is solely between Ceding Company and Reinsurer.
Performance of the respective obligations of each party under this Agreement
shall be rendered solely to the other party. In no event shall any policyholder
or insured of Ceding Company, any beneficiary of such policyholder or insured or
any other person or entity (other than Ceding Company and Reinsurer) have any
rights under this Agreement and Ceding Company shall remain solely liable to
such policyholder, insured or beneficiary of such insured. Without limiting the
generality of the foregoing, Reinsurer shall have no direct or indirect
obligation to insureds, claimants or beneficiaries under the Reinsured Claims or
the policies under which such claims arose.
XIII. TERMINATION
A. This Agreement shall terminate upon the first to occur of
any of the following events:
1. At such time as all of Ceding Company's liabilities and
obligations with respect to the Reinsured Claims have been satisfied or
expired in their entirety, and Reinsurer has paid to Ceding Company in
full all amounts owing to Ceding Company under the provisions of this
Agreement.
2. At any time, by mutual written consent of the
parties.
3. Upon the delivery to Reinsurer of an election in
writing by Ceding Company, in the event that an event
constituting a Change of Control (as defined below) occurs
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with respect to Reinsurer.
4. Upon the delivery to Reinsurer of an election in writing by
Ceding Company, thirty (30) or less days prior to the scheduled
expiration of one or more of the letters of credit required to be
maintained by Reinsurer pursuant to Section VII hereof if, at such time
Reinsurer has not provided assurance acceptable to Ceding Company, in
its sole discretion, that such letter or letters of credit will be
renewed for an additional term of not less than one (1) year or
replaced with one or more letters of credit meeting the requirements of
Section VII hereof and having a term or terms of no less than one (1)
year.
For purposes of Section XIII(A)(3), a "Change of Control" shall be
deemed to have occurred (1) if individuals who, as of the effective date of this
Plan, constitute the Board of Directors of Reinsurer's parent company, Delphi
International Ltd. (the "Board of Directors" generally and as of the date of
this Agreement the "Incumbent Board"), cease for any reason to continue to
constitute at least a majority of the directors constituting the Board of
Directors, provided that any person becoming a director subsequent to the date
of this Agreement whose election, or nomination for election by International's
shareholders, was approved by a vote of at least three-quarters (3/4) of the
then directors who are members of the Incumbent Board (other than an election or
nomination of an individual whose initial assumption of office is (A) in
connection with the acquisition by a third person, including a "group" as such
term is used in Section 13(d)(3) of the Securities and Exchange Act of 1934, as
amended (the "1934 Act"), of beneficial ownership, directly or indirectly, of
20% or more of the combined voting securities ordinarily having the right to
vote for the election of directors of International(unless such acquisition of
beneficial ownership was approved by a majority of the Board of Directors who
are members of the Incumbent Board), or (B) in connection with an actual or
threatened election contest relating to the election of the directors of
International, as such terms are used in Rule 14a- 11 of Regulation 14A
promulgated under the ▇▇▇▇ ▇▇▇) shall be, for purposes of this Plan, considered
as though such person were a member of the Incumbent Board; or (2) if the
stockholders of International approve a merger, consolidation, recapitalization
or reorganization of International, reverse split of any class of voting
securities of International, or an acquisition of securities or assets by
International, or the sale or disposition by International of all or
substantially all of International's assets, or if any such transaction is
consummated without stockholder approval, other than any such transaction in
which the holders of outstanding International voting securities immediately
prior to the transaction receive, with respect to such International voting
securities, voting securities of the surviving or transferee entity representing
more than 60 percent of the total voting power outstanding immediately after
such transaction, with the voting power of each such continuing holder relative
to other
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such continuing holders not substantially altered in the transaction; or (3) if
the stockholders of International approve a plan of complete liquidation of
International.
B. In the event of any termination of this Agreement pursuant to
subsections 2, 3 or 4 of Section XIII(A), Reinsurer shall pay to Ceding Company,
no later than the effective date of such termination, the full amount of the
reserves required to be maintained by Ceding Company with respect to the portion
of the Reinsured Claim Reserves ceded pursuant to this Agreement, along with all
other amounts owing to Ceding Company under the provisions of this Agreement, as
of such effective date.
XIV. SETOFFS
Ceding Company and Reinsurer may setoff any balance due and payable by
it to the other party against any balance due and payable from such other party.
XV. CURRENCY
All amounts as to which payments are provided for hereunder
shall be paid in U.S. dollars.
XVI. NOTICES
Any notice, report, statement, or other communication provided for or
appropriate under this Agreement shall be in writing and be given by personal
delivery, by a nationally recognized overnight delivery service, or by first
class United States mail, postage prepaid, as follows:
To Reinsurer:
Oracle Reinsurance Company Ltd.
Clarendon House
11 Church Street
▇▇▇▇▇▇▇▇, Bermuda
Attention: ▇▇▇▇▇ ▇'▇▇▇▇▇▇
To Ceding Company:
Reliance Standard Life Insurance Company
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Either party may change its address for purposes of receipt of any such
communication by giving ten (10) days notice of such change to the other party
in the manner above prescribed.
XVII. GOVERNING LAW
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This Agreement shall be deemed to have been made under and shall be
governed by the laws, regulations and decisions of the State of Illinois in all
respects, including matters of construction, validity, and performance, without
giving effect to principles of conflicts of laws.
XVIII. POLICY FORMS
Reinsurer acknowledges receipt from Ceding Company of specimen forms of
the insurance policies under which the Reinsured Claims have been incurred.
XIX. ENTIRE AGREEMENT; AMENDMENTS
This Agreement constitutes the entire agreement of the parties hereto
with respect to the Reinsured Claims and there are no understandings between the
parties other than as expressed in this Agreement. Any amendment, change or
modification to this Agreement shall be null and void unless the same is made by
a written amendment to this Agreement signed by both parties hereto.
XX. EXPENSES
Except as may be otherwise expressly provided in this
Agreement, whether or not the transactions contemplated hereby are consummated,
each of the parties hereto shall pay its own costs and expenses incident to
preparing for, entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
XXI. COUNTERPARTS
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which shall constitute one
and the same instrument and shall become effective when one or more counterparts
have been signed by each of the parties and delivered to the other parties.
XXII. ASSIGNMENT; BINDING EFFECT
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by any
of the parties hereto without the prior written consent of the other party, and
any such assignment that is attempted without such consent shall be null and
void. Subject to the preceding sentence, this Agreement shall be binding upon,
inure to the benefit of, and be enforceable by the parties and their respective
successors and permitted assigns.
XXIII. INVALID PROVISIONS
If any provision of this Agreement is held to be illegal,
invalid, or enforceable under any present or future law, and if the
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rights or obligations of the parties hereto under this Agreement will not be
materially and adversely affected thereby, (a) such provision shall be fully
severable; (b) this Agreement shall be construed and enforced as if such
illegal, invalid, or unenforceable provision had never comprised a part hereof;
and (c) the remaining provisions of this Agreement shall remain in full force
and effect and shall not be affected by the illegal, invalid, or unenforceable
provision or by its severance herefrom.
XXIV. WAIVER
Any term or condition of this Agreement may be waived in
writing at any time by the party that is entitled to the benefit thereof. A
waiver on one occasion shall not be deemed to be a waiver of the same or any
other breach or nonfulfillment on a future occasion. All remedies, either under
the terms of this Agreement, or by law or otherwise afforded, shall be
cumulative and not alternative, except as otherwise provided by law.
XXV. JURISDICTION; DESIGNATED ATTORNEY
In the event of the failure of Reinsurer to perform its
obligations under the terms of this Agreement, Reinsurer, at the request of
Ceding Company, shall (i) submit to the jurisdiction of any court of competent
jurisdiction in any state of the United States, (ii) comply with all
requirements necessary to give such court jurisdiction, and (iii) shall abide by
the final decision of the court or of any appellate court in the event of an
appeal. Reinsurer hereby designates the Illinois Director of Insurance (or an
attorney designated by such Director) as Reinsurer's true and lawful attorney
upon whom may be served any lawful process in any action, suit, or proceeding
instituted by or on behalf of the Ceding Company.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the date first written above.
Attest: RELIANCE STANDARD LIFE INSURANCE COMPANY
______________________ By: ___________________________________
Name:
Title:
Attest: ORACLE REINSURANCE COMPANY LTD.
______________________ By: ___________________________________
Name:
Title:
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