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EXHIBIT 10.76
COMMUTATION AGREEMENT AND RELEASE
between
TRANSCO SYNDICATE #1, LTD.,
ALPINE INSURANCE COMPANY
and their subsidiary, affiliated or associated companies
(hereinafter collectively referred to as the "Company")
and
RE CAPITAL REINSURANCE CORPORATION
Stamford, Connecticut
(hereinafter referred to as the "Reinsurer")
This Commutation Agreement and Release is entered into by and between the
Company and ZRC and shall be effective April 15, 1995 ("the Commutation Date").
WHEREAS, the Company and the Reinsurer entered into Casualty Excess of
Loss Agreements effective for the periods (i) commencing 12:01 A.M., January 1,
1991 and ending Midnight, December 31, 1991; (ii) commencing 12:01 A.M., January
1, 1992 and ending Midnight, December 31, 1992; and (iii) commencing 12:01 A.M.,
January 1, 1993 and ending Midnight, December 31, 1993 (collectively referred to
as the "Contracts"); and
WHEREAS, pursuant to the Contracts, the Reinsurer was obligated to
reinsure certain risks insured by the Company in consideration of payment of
premium; and
WHEREAS, the Reinsurer and Zurich Reinsurance Centre, Inc. ("ZRC")
entered into an Asset Transfer and Assumption Agreement dated as of April 26,
1995, pursuant to which the Reinsurer assigned and transferred, and ZRC accepted
and assumed, all the rights and obligations of the Reinsurer under and pursuant
to the Contracts; and
WHEREAS, the Reinsurer and the Company desire as of the Commutation
Date to fully and finally settle and commute all obligations and liabilities
known and unknown between them under the Contracts with a Release being given
by the Company to the Reinsurer:
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NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO THAT:
1. The Reinsurer shall pay to the Company ONE MILLION, EIGHT HUNDRED
NINETY, FOUR HUNDRED TWENTY-TWO ($1,890,422.00) DOLLARS (the
"Commutation Payment") within ten (10) working days from the date the
Reinsurer receives a duly executed original copy of this Commutation
Agreement and Release from the Company.
2. The Company shall accept the sum set forth in Paragraph 1 above as the
total amount due in full and final settlement of any and all amounts
due from the Reinsurer to the Company under the Contracts heretofore
entered into between the parties and the parties agree that no further
adjustments of any kind shall be required to be made pursuant to the
Contracts, including, without limitation, Article XI (Commutation)
thereof.
3. Subject only to receipt of the Commutation Payment, the Company hereby
releases and discharges the Reinsurer, its past, present and future
directors, officers, employees, consultants, attorneys, agents,
administrators, successors, assigns and receivers from any and all
past, present and future claims, causes of action, liabilities and
obligations arising under or related, directly or indirectly, to the
Contracts or the administration thereof, whether known or unknown,
reported or unreported, and whether currently existing or arising in
the future, including but not limited to: any and all past present and
future payment obligations, adjustments, setoffs, actions, omissions,
causes of action, suits, debts, sums of money, accounts, demands,
covenants, controversies, bonds, bills, promises, damages, judgments,
claims, costs, expenses, losses, representations and warranties
whatsoever; it being the intention of the parties that this
commutation and release shall operate as a full and final settlement
of the Reinsurer's past, current and future liabilities to the Company
in respect of the Contracts. The Company acknowledges the
aforementioned payment as a complete accord, satisfaction, settlement
and commutation of all the Reinsurer's liabilities and obligations
under the Contracts and agrees to indemnify and hold the Reinsurer
harmless from and against any and all liabilities, costs, damages and
expenses, including without limitation, attorney's fees, incurred in
connection with any and all claims or actions against the Company or
the Reinsurer, or either of their successors or assigns, arising under
or related to the said reinsurance agreement.
4. Effective on the same date on which the Company shall release and
discharge the Reinsurer as provided in Paragraph 3 of this Commutation
and Release Agreement, the Reinsurer shall release and discharge the
Company, its past, present and future directors, officers, employees,
consultants, attorneys, agents, administrators, successors, assigns
and receivers from any and all past, present and future claims,
causes of action, liabilities and obligations arising under or
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related directly or indirectly to the Contracts, other than any
liabilities or obligations under or pursuant to this Commutation
Agreement and Release, whether known or unknown, reported or
unreported, and whether currently existing or arising in the future,
including but not limited to: any and all past, present and future
payment obligations, adjustments, setoffs, actions, omissions, causes
of action, suits, debts, sums of money, accounts, demands. covenants,
controversies, bonds bills, promises, damages, judgments, claims,
costs, expenses, losses, representations and warranties whatsoever; it
being the intention of the parties that this commutation and release
shall operate as a full and final settlement of the Company's past,
current and future liabilities to the Reinsurer under said Contracts.
5. The rights, duties and obligations set forth herein shall inure to the
benefit of and be binding upon any and all predecessors, successors,
affiliates, officers, directors, employees, parents, subsidiaries,
stockholders, receivers and assigns of the parties hereto.
6. The parties hereto expressly warrant and represent that the execution
of this Commutation and Release Agreement is fully authorized by each
of them; that the person or persons executing this document have the
necessary and appropriate authority to do so; that there are no
pending agreements, transactions, or negotiations to which any of them
are a party that would render this Agreement or any part hereof void,
voidable, or unenforceable.
7. This Agreement contains the entire agreement between the parties as
respects its subject matter. All prior discussions and agreements
between the parties concerning the subject matter herein are merged
into this Agreement. This Commutation Agreement and Release shall
neither be modified or amended, nor any of its provisions waived
except by a written agreement signed by the parties hereto.
8. The parties acknowledge that they may hereafter discover facts
different from or in addition to those now known or believed to be
true regarding the subject matter of this Commutation and agree that
this Commutation shall remain in full force and effect,
notwithstanding the existence of any such different or additional
facts.
9. This Commutation Agreement and Release shall be interpreted and
governed by the laws of the State of New York without consideration as
to its conflict of law principles.
10. In the event of a material breach of this Commutation Agreement and
Release (including without limitation, failure of consideration), the
non-breaching party shall have all rights and remedies available at
common law. In such event, the non-breaching party shall have the
right to exercise any of the following remedies:
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(a) The right to bring suit on the Commutation Agreement and Release
and the right to reasonable attorneys' fees, costs and interest; or
(b) The right to deem the Commutation Agreement and Release null and
void and to enforce the original Contracts as if this Agreement did not
exist.
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IN WITNESS WHEREOF, the parties hereto have caused this Commutation Agreement
and Release to be executed in duplicate by their duly authorized
representatives.
ZURICH REINSURANCE CENTRE, INC. on behalf of
RE CAPITAL REINSURANCE CORPORATION
BY: [sig]
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TITLE: Senior Vice President
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DATE: June 19, 1995
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WITNESS:
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TRANSCO SYNDICATE #1, LTD.
BY: [sig]
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TITLE: Secretary/General Counsel
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DATE: June 20, 1995
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WITNESS: [sig]
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ALPINE INSURANCE COMPANY
BY: [sig]
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TITLE: Secretary/General Counsel
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DATE: June 20, 1995
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WITNESS: [sig]
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