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EXHIBIT 10.100
COMMUTATION AGREEMENT AND RELEASE
between
ALPINE INSURANCE COMPANY
Chicago, Illinois
(hereinafter referred to as the "Company")
and
TRANSCO SYNDICATE #1 LTD.
Chicago, Illinois
(hereinafter referred to as the "Reinsurer")
This Commutation Agreement and Release is entered into by and between the
Company and Reinsurer and shall be effective December 31, 1996 ("the
Commutation Date").
WHEREAS, the Company and the Reinsurer entered into a Casualty Quota Share
Reinsurance Agreement effective from the period commencing 12:01 A.M., July 1,
1994, (the "Contract"); and
WHEREAS, pursuant to the Contract, the Reinsurer was obligated to
reinsure certain risks insured by the Company in consideration of payment of
premium; 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 Contract, with a release being given by the
Company to the Reinsurer:
NOW, THEREFORE, IT IS HEREBY AGREED BY AND BETWEEN THE PARTIES HERETO THAT:
1. In consideration of the commutation of its liabilities and
obligations under the Contract, the Reinsurer shall transfer,
deliver and convey to the Company all of the Reinsurer's right,
title and interest in and to the assets listed on Schedule A hereto
(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 assets 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
Contract heretofore entered
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into between the parties and the parties agree that no further
adjustments of any kind shall be required to be made pursuant to
the Contract, including, without limitation any wording concerning
commutation set forth therein.
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 Contract 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, account, 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 Contract. The
Company acknowledges the aforementioned payment as a complete
accord, satisfaction, settlement and commutation of all the
Reinsurer's liabilities and obligations under the Contract 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 Agreement and Release, 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 related directly or indirectly to the
Contract, 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
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full and final settlement of the Company's past, current and future
liabilities to the Reinsurer under said Contract.
5. The rights, duties and obligations set forth herein shall inure to
the benefit of and be binding upon any and all successors and
assigns of the parties hereto.
6. Each of the parties hereto expressly warrants and represents
that the execution of this Commutation and Release Agreement is
fully authorized by such party; that the person or persons executing
this document on behalf of such party have the necessary and
appropriate authority to do so; and that there are no pending
agreements, transactions, or negotiations to which such party is a
party that would render this Commutation Agreement and Release or
any part hereof void, voidable, or unenforceable.
7. Each of the parties hereby expressly warrants and represents
that no commission is due or payable to any party as a result of the
negotiation or execution of this Commutation Agreement and Release.
8. 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 Commutation Agreement and Release. This
Commutation Agreement and Release shall neither be modified nor
amended, nor any of its provisions waived, except by a written
agreement signed by the parties hereto.
9. 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
Agreement and Release and agree that this Commutation Agreement and
Release shall remain in full force and effect, notwithstanding the
existence of any such different or additional facts.
10. This Commutation Agreement and Release shall be interpreted
and governed by the laws of the State of Illinois without
consideration as to its conflict of law principals.
11. 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 this Commutation Agreement and
Release and the right to reasonable attorneys' fees, costs and
interest; or
(b) The right to deem this Commutation Agreement and Release
null and void and to enforce the original Contract as if this
Commutation Agreement and Release did not exist.
IN WITNESS WHEREOF, the parties hereto have caused this Commutation Agreement
and Release to be executed in duplicate by their duly authorized
representatives.
ALPINE INSURANCE COMPANY
BY: [SIG]
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TITLE: President
DATE: January 9, 1997
WITNESS: [SIG]
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TRANSCO SYNDICATE #1 LTD.
BY: [SIG]
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TITLE: President
DATE: January 9, 1997
WITNESS: [SIG]
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