Exhibit 2.6
CROP HAIL
INSURANCE SERVICES AND INDEMNITY AGREEMENT
This Insurance Services and Indemnity Agreement, (hereinafter referred to as the
"Agreement") is made and entered into by and between IGF Insurance Company
(hereinafter referred to as "IGF"), an Indiana domiciled property and casualty
insurer with principal offices located at 0000 Xxxxx, Xxx Xxxxxx, Xxxx 00000 and
Continental Casualty Company, (hereinafter referred to as "CCC"), an Illinois
domiciled property and casualty insurer with principal offices located at CNA
Plaza, Chicago, Illinois, effective January 1, 1998 for the benefit of IGF and
CCC.
WHEREAS, CCC and IGF, IGF Holdings, Inc. and Xxxxxx International Group, Inc.
have entered into a Strategic Alliance Agreement (hereinafter referred to as the
"SAA"), and pursuant to Article 6 thereof have agreed to execute certain
Ancillary Agreements;
WHEREAS, among the Ancillary Agreements CCC and IGF have entered into is a Crop
Hail Quota Share Contract (hereinafter referred to as the "Reinsurance
Contract") effective January 1,1998 for certain policies issued by CCC and
reinsured 100% by IGF (as defined in the Reinsurance Contract, and hereinafter
referred to as the "Policy (ies) "), pursuant to the terms of such Reinsurance
Contract;
WHEREAS, in connection therewith CCC and IGF wish to enter into an agreement for
the provision of insurance services and indemnity;
WHEREAS, IGF possesses the staff and expertise to administer the Policies and
agrees to assume certain duties and responsibilities to administer such
Policies; and
WHEREAS, CCC'S offer to write such business is based on IGF'S acceptance of such
duties and responsibilities as described herein;
NOW, THEREFORE, the parties, in consideration of the mutual agreements,
covenants, and provisions herein contained, agree as follows:
I. TERM
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This Agreement shall take effect with the Reinsurance Contract and shall have
the same term and cancellation provisions in their entirety as provided in the
Reinsurance Contract, except as specified in Sections 4.5 and 4.7 of Article IV
and Sections 12.1 through 12. 6 of Article XII of this Agreement. If this
Agreement is terminated or expires for any reason, the Reinsurance Contract
shall simultaneously terminate or expire.
II. APPOINTMENTS
Section 2.1: IGF shall serve as CCC'S marketing, production, and underwriting
agent for the Policies and shall adjust any claims made under the Policies.
Section 2.2: IGF warrants that it has and shall maintain throughout the term of
this Agreement any and all licenses required to perform and provide the services
specified in this Agreement in CCC's state of domicile and in all other states
or provinces in which IGF is performing services on behalf of CCC. IGF also
warrants that it shall abide by all rules and regulations as required by
insurance department, bureau of insurance, or other appropriate regulatory
agency of the states or provinces in which Policies are written, including any
rate, form, or other filings as required by each state insurance department,
bureau of insurance, or other appropriate regulatory agency.
Section 2.3: Payment of all commissions due on Policies produced by producers
shall be made directly by IGF to the producers.
Section 2.4: In consideration for these appointments, IGF and CCC agree to
exercise all authority and perform all duties required by this Agreement.
III. UNDERWRITING AUTHORITY AND RELATED DUTIES
Section 3.1: IGF is authorized, and agrees on behalf of CCC, to accept and
decline insurance risks, underwrite, price, bind, issue, and cancel or nonrenew
the Policies, make customary endorsements, changes, assignments, transfers and
modifications of existing Policies, subject to limitations provided herein. IGF
warrants that it shall accept and decline insurance risks, underwrite, price,
issue, and cancel or nonrenew the Policies, make customary endorsements,
changes, assignments, transfers and modifications of existing Policies in a
timely and professional manner through qualified persons, fully familiar with
generally accepted standards in the United States and Canada, as appropriate,
and for the 1998 Crop Year according to CCC's formal written guidelines as may
be provided from time to time to IGF, and for the 1999 Crop Year and subsequent
Crop Years according to formal written guidelines of the Underwriting Committee
(as defined in the SAA) as may be provided from time to time to IGF.
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Section 3.2: Nothing stated anywhere in this Agreement shall impair IGF'S right
to cancel or nonrenew any Policy, providing such action is in full compliance
with applicable law and CCC receives advance notice of IGF'S intent. CCC has the
right to cancel or nonrenew any Policy upon the prior approval of IGF unless
this Agreement expires or is terminated, whereupon CCC may do so without prior
approval but shall provide ten (10) days prior written notice to IGF.
Section 3.3: CCC agrees that it shall, upon written request from IGF, promptly
appoint such persons as agents of CCC or grant such persons a power of attorney
as requested by IGF. CCC also agrees that it shall, upon written request from
IGF promptly file with appropriate regulatory authorities such forms and rates
as requested by IGF. IGF's staff shall perform the administrative functions
necessary for CCC to make such appointment and grant such powers.
IV. CLAIMS AUTHORITY AND RELATED DUTIES
Section 4.1: IGF is authorized and agrees on behalf of CCC to adjust,
compromise, process and pay all claims arising under the Policies issued under
this Agreement, including the right to litigate claims in CCC's name, except as
provided in Section 4.5 of Article IV herein. IGF warrants that any claims
arising under the Policies will be handled in a timely and professional manner
by qualified persons, fully familiar with generally accepted claims handling
standards in the United States and Canada, as appropriate, and for the 1998 Crop
Year according to CCC's formal written guidelines as may be provided from time
to time to IGF. IGF is authorized and agrees to investigate, monitor, and handle
any claims under any of the Policies issued under this Agreement and reinsured
pursuant to the Reinsurance Contract on CCC'S behalf or retain any independent
claims consultant or adjuster as may be required.
Section 4.2: CCC and IGF shall provide the other with prompt notification of any
losses or claims, or any information that makes a loss or claim reasonably
likely under the Policies and as provided elsewhere in this Agreement.
Section 4.3: In recognition of statutory, regulatory and legal duties to handle
claims in a prompt and fair manner, CCC and IGF agree to exercise their
commercially reasonable best efforts and cooperate fully with the other to
handle claims in said manner and in full compliance with all such requirements.
Section 4.4: Within 15 days after the end of each calendar month while this
Agreement is in effect, IGF shall promptly report to CCC on all open and closed
claims handled by it during such month in the reporting format as mutually
agreed to between CCC and IGF.
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Such reports shall include information on all claims and allocated claims
expenses reserved, paid and outstanding. IGF shall report within thirty (30)
days of any such developments, significant developments on claims, including but
not limited to, major reserve increases or decreases, settlements, or new
information changing the liability assessment or valuation previously reported
to CCC by IGF. IGF shall send CCC a copy of any claim file upon request by CCC.
All claim files will be the joint property of CCC and IGF during the period this
Agreement is in effect.
Section 4.5: Upon termination of this Agreement, or in the event of an order of
liquidation of CCC during the period this Agreement is in effect, such files
shall become the sole property of CCC or its estate. IGF shall have reasonable
access to, and the right to copy, any such claim files in CCC'S possession on a
timely basis, if requested.
Section 4.6: IGF shall pursue salvage or subrogation on behalf of CCC in all
appropriate cases, on any claims arising under the Policies.
Section 4.7: In the event this Agreement is terminated and unless otherwise
mutually agreed to between CCC and IGF, IGF shall have the right and duty to
settle and handle all subsequent claims and losses until such time as all
Policies issued, underwritten or serviced by IGF pursuant to this Agreement have
expired and the Reinsurance Contract has expired, and all known claims
thereunder have been paid or settled, have runoff or otherwise have been
disposed of in the judgment of CCC, and all incurred but not reported loss
reserves have been reduced to zero, and any amounts owed to CCC by others or
under the Reinsurance Contract in regard to any claims have been collected by
CCC. Reinsurance indemnity for any claim or loss discussed herein shall be
provided in accordance with the terms and conditions of the Reinsurance
Contract.
Section 4.8: All claims and/or losses handled by IGF pursuant to Section 4.7
herein shall be reported to CCC by IGF within forty-five (45) days after the end
of each calendar quarter in such reporting format as requested by CCC.
Section 4.9: IGF agrees to notify CCC immediately upon notice of any allegations
of bad faith as respects any Policy covered under the Reinsurance Contract, and,
of the receipt of any notice that a lawsuit has been filed against IGF, any of
its employees or agents, and/or CCC by an insured on a Policy covered under the
Reinsurance Contract. IGF shall furnish CCC, upon CCC's request, with copies of
all pleadings and related file material pertaining thereto in a prompt and
timely fashion.
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V. ACCOUNTING AUTHORITY AND RELATED DUTIES
Section 5.1: The parties agree that IGF shall xxxx its customers directly for
the Policies and collect all premiums due and owing for such Policies. IGF shall
reimburse CCC for all premium taxes due under such Policies at such times as
requested by CCC to fulfill its filing and payment obligations.
Section 5.2: Within fifteen (15) days after the end of each month while this
Agreement is in effect, IGF shall provide CCC with an accounting report
containing the following information (on an Agreement Year [meaning each
January 1 - December 31 for which coverage applies under the Reinsurance
Contract], to date, on a state by state, basis): 1) limits of liability exposed
and number of policies written; 2) gross written premium; 3) paid losses and
number of losses paid; 3) reserves for outstanding losses and number of
outstanding losses; 4) unearned premium reserve; 5) amount of ceding commission
allowed under the Reinsurance Contract; and 6) loss adjustment expenses
(collectively, the information contained in 1- 6 is hereinafter referred to as
the "accounting information") and any other information mutually agreed to
between the parties in writing.
Section 5.3: On or before December 15th of each Agreement Year for which
coverage applies under the Reinsurance Contract, IGF shall forward to CCC a
"provisional final" accounting report of the accounting information for the
Agreement Year. If the net premiums due CCC exceeds the ceding commission and
losses paid (including loss adjustment expense), IGF shall pay the balance due
as soon as possible to CCC, not later than December 31st of each Agreement Year.
If the ceding commission and losses paid (including loss adjustment expense) due
IGF exceeds the net premiums, CCC shall pay the balance due as soon as possible
to IGF, not later than December 31st of each Agreement Year. Thereafter, a final
accounting shall be made when all cessions have expired or terminated, all
losses have been settled and all liability has been discharged for each
Agreement Year to which coverage applies under the Reinsurance Contract. If the
parties dispute the amount of premiums owed, IGF shall remit the undisputed
portions of the premium owed CCC.
Section 5.4: As soon as possible after the conclusion of each calender quarter
and Agreement Year the IGF will provide any other information CCC may require
for its Convention Statement which may be reasonably available to IGF. It is
understood and agreed that IGF and CCC shall each provide to the other any other
information mutually agreed to between the parties in writing.
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VI. REGULATORY COMPLIANCE AND RELATED DUTIES
Section 6.1: CCC and IGF agree to use their commercially reasonable best efforts
to achieve full compliance with all applicable statutory, regulatory and legal
requirements.
Section 6.2: CCC and IGF agree that IGF is authorized to file rules, rates and
forms on behalf of CCC within a state or province to include two (2) separate
company filings per jurisdiction. IGF will provide CCC with copies of all rule,
rate and form filings at least five (5) business days prior to filing. CCC will
have the right to approve such filing, but CCC's approval will not be
unreasonably withheld. CCC will have the opportunity to review all data relevant
to its rule, rate and form filing.
Section 6.3: IGF agrees to advise CCC of any complaints and/or inquiries
concerning rule, rate or form filings, and to provide CCC with the opportunity
to respond to regulators or consumers. CCC and IGF agree to provide the other,
promptly upon request, with all information and support required for any
regulatory compliance obligation and for any reports, statements or other
filings required by regulatory authorities.
Section 6.4: IGF agrees to monitor all legal, statutory and regulatory
developments affecting the Policies hereunder and promptly report same to CCC.
Should any such changes affect the Policies hereunder, the parties agree to
ensure full compliance with such changes. IGF agrees to prepare any
documentation necessary to assure such compliance. In the event that CCC becomes
aware of any such development, it shall report it promptly to IGF.
Section 6.5: In the event that any State, by statute, regulation or otherwise,
prohibits or restricts IGF'S authority hereunder, the parties agree that IGF's
authority to act on behalf of CCC shall be so restricted in that State.
VII. COMPENSATION
The parties agree that compensation for the performance of the mutual duties
specified hereunder shall be as follows: (i) for Agreement Year 1998 CCC shall
receive reimbursement, in such amount as the parties agree by April 1, 1998, for
its direct overhead expenses/fixed costs of operating and maintaining its crop
insurance program, including but not limited to, office rent, staffing, premium
processing, accounting and billing, claim handling, commissions, filing of 1998
crop hail forms, rules and rates, development and filing of hail endorsements,
marketing, advertising, licensing, and other expenses incurred for business
already issued prior to the closing date of the transaction between IGF and CCC,
in the manner that the parties agree by April 1, 1998; (ii) and in addition for
Agreement Year 1998 and subsequent Agreement Years, IGF agrees to reimburse CCC
for all its reasonable fronting costs, including its costs and expenses related
to the production of Policies pursuant to this Agreement, related to rule,
rate and form filings under this Agreement and related to the performance
of its obligations under this Agreement.
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VIII. INDEMNIFICATION
Section 8.1: In addition to the obligations of IGF pursuant to the terms of the
Reinsurance Contract, IGF shall indemnify CCC as follows in Sections 8.2 and
8.3. However, Sections 8.2 and 8.3 shall not apply to any liability, claim,
suit, demand, damages (including punitive and exemplary damages), judgment,
cost, interest and expense (including but not limited to attorneys' fees and
disbursements) or regulatory fines or administrative penalties caused by the
action of or the failure to take action by any employee of CCC. Nor shall
Sections 8.2 and 8.3 prevent the application of any available reinsurance
proceeds.
Section 8.2: IGF shall indemnify, defend and hold harmless CCC, its agents,
employees, subsidiaries and affiliates from and against all liability, claims,
suits, demands, damages (including punitive and exemplary damages), judgments,
costs, interest and expense (including but not limited to attorneys' fees and
disbursements) arising out of, or in connection with, any Policy issued under
this Agreement and reinsured under the Reinsurance Contract, including but not
limited to production activities (such as claims made by producers against CCC
for commissions allegedly due them on Policies under the Agreement), failure of
producers to be properly licenced, producers, underwriting activities, policy
issuance, claim handling and the resolution of coverage issues; provided
however, that notwithstanding any other provisions of this Agreement, such
indemnification of IGF shall not extend to any matter subject to the obligations
of CCC or its affiliates under the Reinsurance Contract or the Crop Hail Quota
Share Agreement.
Section 8.3: IGF agrees to indemnify, defend and hold CCC harmless and make full
and prompt reimbursement for any regulatory fines or administrative penalties
levied against CCC relating to IGF'S failure to fulfill any policy, rate, claim
payment or other filing or obligations required by or to regulatory authorities.
CCC shall use its commercially reasonable best efforts to advise IGF as soon as
possible of any such fine or penalty, or any information indicating that a fine
or penalty may be levied.
Section 8.4: Any inadvertent delay, omission or error shall not be held to
relieve either party hereto from any liability which would attach to it
hereunder if such delay, omission or error had not been made.
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Section 8.5: CCC agrees to save, indemnify, and hold IGF harmless against any
and all loss, liability or damage resulting from any misrepresentation or breach
of warranty by CCC under the terms of this Agreement.
Section 8.6: The indemnities provided in Sections 8.1, 8.2, 8.3, and 8.5 herein
shall survive any termination of this Agreement.
IX. ARBITRATION
In the event of an irreconcilable dispute between the parties to this Agreement,
such dispute shall be submitted for decision to the process of arbitration in
the manner and pursuant to the procedure set forth in the ARBITRATION Article of
the Reinsurance Contract.
X. MODIFICATION
There will be no modification of or change in the terms of this Agreement
without the written approval of the parties to this Agreement.
XI. BINDING EFFECT OF AGREEMENT
This Agreement will be binding upon and inure to the benefit of the parties,
their successors and assigns.
XII. TERMINATION
Section 12.1: This Agreement and IGF'S obligations, except as specified in
Article I, Sections 4.5 and 4.7 of Article IV, and Section 8.6 of Article VIII
hereunder, shall terminate automatically and without notice upon the occurrence
of any one or more of the following events: (a) termination of the Reinsurance
Contract; or (b) termination or modification of IGF'S participation in the
Reinsurance Contract.
Section 12.2: Any termination of this Agreement shall be subject always to IGF'S
duty to satisfy, fulfill, fully perform and discharge all of its obligations
pursuant to this Agreement.
Section 12.3: This Agreement, except as specified in Article I, Sections 4.5 and
4.7 of Article IV, and Section 8.6 of Article VIII, may be terminated at any
time by mutual written agreement.
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Section 12.4: Notwithstanding anything herein to the contrary, should the Put
Right or Call Right be triggered, then IGF must stop using CCC front at the end
of the crop year in which the Put or Call right was exercised.
Section 12.5: Immediately, following receipt of written notice from CCC, on
account of IGF's failure to comply with a condition or provision of this
Agreement within thirty (30) days after such failure is brought the IGF's
attention in writing this Agreement shall terminate.
Section 12.6: Unless otherwise directed by CCC in writing, in the event this
Agreement is terminated, IGF shall continue to perform the duties necessary to
service all Policies, at its own expense, until all liability underlying the
Policies shall have been terminated. Such services shall consist of, but shall
not necessarily be limited to, cancellations, return premiums, endorsements,
account current reporting and claim settlements. IGF shall also issue, for and
on behalf of CCC, an effective notice of non-renewal to all policyholders
terminating their coverage upon the expiration of their Policy term next
following the termination of this Agreement. Should good cause exist for CCC to
assume such duties, IGF shall reimburse CCC for the expenses it shall incur in
performing such duties. IGF shall also provide CCC, at IGF's expense, with a
copy of all insurance records on unexpired Policies and all insurance claim
files.
XIII. CONTRIBUTION
IGF, upon any payment hereunder, shall fully share in the subrogation,
contribution and salvage rights of CCC, as applicable, to the extent of IGF'S
payment to CCC.
XIV. RESOLUTION OF CONFLICTING TERMS
In the event of any conflict or inconsistency between this Agreement and the
Reinsurance Contract, this Agreement shall prevail and be controlling.
Notwithstanding anything to the contrary contained in Article IX herein, any
irreconcilable dispute between the parties to this Agreement shall be resolved
by arbitration, in the manner and pursuant to the procedure set forth in the
Reinsurance Contract, as more fully set forth in Article IX of this Agreement.
XV. SEVERABILITY
In the event any provision of this Agreement shall be declared invalid or
unenforceable by any regulatory body or court having jurisdiction, such validity
or enforceability shall not affect the validity or enforceability of the
remaining portions of this Agreement.
XVI. ASSIGNMENT
IGF and CCC agree that this Agreement is non-assignable, in whole or in part,
without the written consent of the other party.
XVII. RECORDS
Section 17.1: Upon reasonable notice, IGF or its designated representative, or
CCC and its designated representative, shall have access at any reasonable time
to inspect and audit the books and records which pertain in any way to this
Agreement and may make copies of any records pertaining thereto. This right of
inspection, audit and information shall survive termination of this Agreement
and shall run to the natural expiry of all liabilities under the policies
covered under the Reinsurance Contract.
Section 17.2: Subject to provisions regarding ownership of policies and claims
files, the records for the Policies shall be the property of IGF and be left in
IGF's possession, provided IGF has then rendered and continues to render timely
accounts and payments of all monies due CCC. Otherwise, the records, and the use
and control of expirations, shall be the property of CCC and IGF shall
immediately thereafter forward all such records to CCC.
XVIII. ENTIRE AGREEMENT
This Agreement, the Strategic Alliance Agreement, the MPCI Insurance Services
and Indemnity Agreement, the Ancillary Agreements, the Reinsurance Contract, the
Crop Hail Quota Share Agreement, the Multiple Peril Crop Insurance Quota Share
Contract, and the Multiple Peril Crop Insurance Quota Share Agreement between
the parties hereto, represent the entire agreement and understanding among the
parties signatory to this Agreement. No other oral or written agreements or
contracts relating to the risks reinsured hereunder currently exist and/or are
contemplated between the parties.
XIX. ADDITIONAL SERVICES
Section 19.1: IGF is willing to assist CNA:
A. In administering insurance products marketed or developed by CNA
outside the agreements listed in Article XVIII;
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B. In performing services, including but not limited to regulatory
compliance, processing, debt collection, accounting, or other activities related
to CNA's Business in years prior to the 1998 Crop Year;
C. In performing loss adjustment and claims processing related to any
insurance or other products of CNA outside the agreements listed in Article
XVIII; and
D. Any other services outside the the agreements listed in Article
XVIII that utilize the staff and expertise of IGF that it is willing to perform
on behalf of CNA.
Any services provided under this Section shall be based on terms included in a
separate agreement or agreements or an amendment or amendments to this Agreement
outlining the terms, conditions, and compensation for the performance of such
services. In general, the fees for services performed shall be those outlined in
Section 19.2.
Section 19.2: Subject to specific provisions to the contrary in any separate
agreements or amendments to this Agreement regarding services to be performed by
IGF on behalf of CNA under Section 19.1, the following schedule of fees shall
apply to all such separate agreements or amendments to this Agreement:
ADMINISTRATOR EMPLOYEE PROVIDING SERVICE RATE PER
HOUR
Executive - President, Executive Vice President $205.00
Internal Legal Staff - Indianapolis and Des Moines $150.00
Corporate Manager - I.e., Accounting, National Claims Mgt. Staff $85.00
Field Manager Rate - Service Office Director, Regional Claims Mgt. $60.00
Field Service Rate - Claims Adjuster $40.00
After April 1, 1999, the rates contained in this fee schedule shall be
recalculated annually for a five (5) year period thereafter by multiplying the
effective rate for the prior year by a factor of 1.05. IGF shall provide the CNA
with a report that provides an accounting of functions performed and expenses
incurred and the related fees and costs associated production of Policies
pursuant to this Agreement, related to rule, rate and form filings under this
Agreement and related to the performance of its obligations under this
Agreement.
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Section 19.3: Subject to specific provisions to the contrary in any separate
agreements or amendments to this Agreement regarding services to be performed by
IGF on behalf of CNA under Section 19.1, CNA shall reimburse IGF for all actual
transportation, communication, meals, lodging, outside legal, and administrative
expenses related to the functions performed on behalf of CNA including actual
computer service costs for processing data.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
in duplicate by their duly authorized representatives.
CONTINENTAL CASUALTY COMPANY:
By: _______________________________________________________________
Name: _______________________________________________________________
Title: _______________________________________________________________
Date: _______________________________________________________________
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IGF INSURANCE COMPANY
and its AFFILIATED COMPANIES
By: _______________________________________________________________
Name: _______________________________________________________________
Title: _______________________________________________________________
Date: _______________________________________________________________
