Exhibit 2.1(g)
ESCROW AGREEMENT [Ohio State & Investors Guaranty Business], dated as of
May 21, 1997, (the "Agreement") by and among Employers Reassurance
Corporation, a Kansas corporation (the "Corporation"), Great Southern Life
Insurance Company a Texas corporation ("the Company") and Bankers Trust
Company, a New York banking corporation (as escrow agent hereunder, the
"Escrow Agent").
The Corporation, the Company and the Escrow Agent acknowledge the
following:
(a)The Company reinsures the Corporation in accordance with the agreements
named below:
(i)Modified Coinsurance Retrocession Agreement (Ohio State Plans)
(ii)Modified Coinsurance Retrocession Agreement (Investors Guaranty Plans)
(b)The Corporation reinsures the original ceding insurer in accordance with
the agreements named below:
(i)Automatic Coinsurance Reinsurance Agreement with The Ohio State Life
Insurance Company
(ii)Automatic Coinsurance Reinsurance Agreement with Investors Guaranty
Life Insurance Company
(c)The Corporation and the Company desire to segregate the funds pertaining
to the reinsurance agreements identified in this section (the "Treaties").
(d)The Corporation will cause to be deposited into the escrow account for
this Agreement the funds pertaining to the Treaties.
(e)The Escrow Agent is willing to act as escrow agent with respect to the
Escrow Fund (as hereinafter defined) upon the terms and conditions of this
Agreement.
(f)The funds deposited pertaining to the Treaties shall be held by the
Escrow Agent and distributed by the Escrow Agent in accordance with the
terms and conditions of this Agreement.
1. Appointment of Escrow Agent. The Corporation and the Company hereby
appoint Bankers Trust Company as escrow agent in accordance with the terms
and conditions set forth herein, and the Escrow Agent hereby accepts such
appointment.
2. Deposit into, and withdrawals from, the Escrow Fund. As soon as
practicable after the execution of this Agreement, the Corporation shall
cause to be deposited with the Escrow Agent the net initial consideration
applicable to the Treaties. As soon as practicable after the end of each
premium reporting period required by the Treaties, the Corporation shall
cause to be deposited with the Escrow Fund the net reinsurance premium if
positive, and withdrawn from the Escrow Fund the net reinsurance premium if
negative, in each case for the period applicable to the Treaties. Deposits
described in this section, net of any such withdrawals, are referred to as
the "Escrowed Proceeds", the receipt of which will be acknowledged by the
Escrow Agent substantially in the form of Exhibit B attached hereto. The
Escrowed Proceeds shall be held by the Escrow Agent upon the terms and
conditions hereinafter set forth. The Escrow Fund shall remain the
property of the Corporation until released to the Company in accordance
with Sections 4 and 5.
3. Investment of the Escrow Fund. (a) During the term of this Agreement,
the Escrow Agent shall invest and reinvest the Escrowed Proceeds and any
interest or income earned thereon (collectively, the "Escrow Fund") in
accordance with Schedule A attached hereto. Notwithstanding the foregoing,
the Escrow Agent shall have the power to sell or liquidate the foregoing
investments whenever the Escrow Agent shall be required to release all or
any portion of the Escrow Fund pursuant to Section 4 hereof.
(b) The Escrow Agent shall not have any liability for any loss sustained as
a result of any investment made as provided above, any liquidation of any
such investment prior to its maturity, or any failure to give the Escrow
Agent any written instruction to invest or reinvest the Escrowed Funds or
any earnings thereon.
4. Distribution of Escrow Fund. The Agent shall hold the Escrow Fund in
its possession until instructed hereunder to deliver the Escrow Fund or any
specified portion thereof as follows:
(a) For the purpose of administering the business covered by the Treaties,
the Company is entitled (without any specific consent from the Corporation)
to withdraw (and transfer to its administrator) not more than $1,000,000
per calendar quarter as a dual advance against the net balance due the
original ceding insurer for the same quarter under the reinsurance
agreements shown before Section 1 of this Agreement and the balance due the
Corporation for the same quarter under the retrocession agreements shown
before Section 1 of this Agreement. To effect such withdrawal, the Company
shall deliver a written release notice to the Escrow Agent, signed by an
authorized person of the Company, as set forth on Exhibit A attached
hereto, and the Escrow Agent shall make the release within five Business
Days.
(b) The Corporation has the right to withdraw not more than 30% of the
statutory profits, including interest thereon, derived from the Treaties.
The Corporation is not required to apply the withdrawals permitted by this
subparagraph (b) to the Treaties. To effect such withdrawal, the
Corporation shall deliver a written release notice to the Escrow Agent,
signed by an authorized person of the Corporation, as set forth on Exhibit
A attached hereto, and the Escrow Agent shall make the release within five
Business Days.
5. Final Distribution of Escrow Fund. The Escrow Agent shall distribute the
remaining balance, if any, of the Escrow Fund as follows: If the
Corporation delivers a written release notice to the Escrow Agent, signed
by an authorized person of the Corporation and by an authorized person of
the Company, as set forth on Exhibit A attached hereto, the Escrow Agent
shall release the Escrow Fund to the parties referenced in such notice
within five Business Days.
6. Resignation of Escrow Agent. The Escrow Agent may resign and be
discharged from its duties hereunder at any time by giving written notice
of such resignation to the Corporation and the Company specifying a date
when such resignation shall take effect and upon delivery of the Escrow
Fund to the successor escrow agent designated by all parties hereto (other
than the Escrow Agent) in writing. Upon such notice, a successor Escrow
Agent shall be appointed with the mutual consent of the Corporation and the
Company. Such successor Escrow Agent shall become the Escrow Agent
hereunder upon the resignation date specified in such notice. If the
Corporation and the Company are unable to agree upon a successor Escrow
Agent within thirty (30) days after such notice, the Escrow Agent shall be
entitled to apply to a court of competent jurisdiction for the appointment
of a successor. The Escrow Agent shall continue to serve until its
successor accepts the escrow and receives the Escrow Fund. The Corporation
and the Company shall have the right at any time upon their mutual consent
to substitute a new Escrow Agent by giving notice thereof to the Escrow
Agent then acting. Upon its resignation and delivery of the Escrow Fund as
set forth in this Section 6, the Escrow Agent shall be discharged of and
from any and all further obligations arising in connection with the escrow
contemplated by this Agreement.
7. Indemnification of Escrow Agent. (a) The Escrow Agent shall have no
duties or responsibilities whatsoever with respect to the Escrow Fund
except as are specifically set forth herein. The Escrow Agent shall
neither be responsible for or under, nor chargeable with knowledge of the
terms and conditions of, any other agreement, instrument or document in
connection herewith. The Escrow Agent may conclusively rely upon, and
shall be fully protected from all liability, loss, cost, damage or expense
in acting or omitting to act pursuant to any written notice, instrument,
request, consent, certificate, document, letter, telegram, opinion, order,
resolution or other writing hereunder without being required to
determine the authenticity of such document, the correctness of any fact
stated therein, the propriety of the service thereof or the capacity,
identity or authority of any party purporting to sign or deliver such
document. The Escrow Agent shall have no responsibility for the contents
of any such writing contemplated herein and may rely without any liability
upon the contents thereof.
(b) The Escrow Agent shall not be liable for any action taken or omitted by
it in good faith and reasonably believed by it to be authorized hereby or
with the rights or powers conferred upon it hereunder, nor for action taken
or omitted by it in good faith, and in accordance with advice of counsel
(which counsel may be of the Escrow Agent s own choosing), and shall not be
liable for any mistake of fact or error of judgment or for any acts or
omissions of any kind except for its own negligence, willful misconduct or
gross negligence.
(c) Each of the Corporation and the Company agrees to jointly and severally
indemnify the Escrow Agent and its employees, directors, officers and
agents and hold each harmless against any and all liabilities incurred by
it hereunder as a consequence of such party s action, and the parties agree
jointly and severally to indemnify the Escrow Agent and hold it harmless
against any claims, costs, payments, and expenses (including the fees and
expenses of counsel) and all liabilities incurred by it in connection with
the performance of its duties hereunder and them hereunder, except in
either case for claims, costs, payments, and expenses (including the fees
and expenses of counsel) and liabilities incurred by the Escrow Agent
resulting from its own negligence, willful misconduct or gross negligence.
The Corporation, and the Company agree to reimburse each other for one-half
of any payments made by them pursuant to this Section 7(c) with respect to
liabilities for which the parties are jointly liable pursuant to this
Section 7(c).
8. Compensation of Escrow Agent. The Corporation will pay 30% and the
Company will pay 70% of the customary fees and expenses for all services
rendered by the Escrow Agent hereunder in accordance with Schedule B
attached hereto (as such schedule may be amended from time to time). The
Escrow Agent shall also be entitled to reimbursement on demand for all
loss, liability, damage or expenses paid or incurred by it in the
administration of its duties hereunder, including, but not limited to, all
reasonable and appropriate counsel, advisors and agents fees and
disbursements and all taxes or other governmental charges. At all times,
the Escrow Agent will have a first lien on funds in the Escrow Fund for
payment of customary fees and expenses and all such reasonable loss,
liability, damage or expenses. Such compensation and expenses shall be
paid from the Escrow Fund.
9. Further Assurances. From time to time on and after the date hereof, the
other parties hereto shall deliver or cause to be delivered to the Escrow
Agent such further documents and instruments and shall do and cause to be
done such further acts as the Escrow Agent shall reasonably request (it
being understood that the Escrow Agent shall have no obligation to make any
such request) to carry out more effectively the provisions and purposes of
this Agreement, to evidence compliance herewith or to assure itself that it
is protected in acting hereunder.
10. Termination of Agreement. This Agreement shall terminate on the final
disposition of the Escrow Fund provided that the rights of the Escrow Agent
and the obligations of the other parties hereto under Sections 7 and 8
shall survive the termination hereof and the resignation or removal of the
Escrow Agent.
11. Consents to Service Process. Each of the parties hereto hereby
irrevocably consents to the jurisdiction of the courts of the State of New
York and the State of Missouri and of any Federal Court located in such
States in connection with any action, suit or other proceeding arising out
of or relating to this Agreement or any action taken or omitted hereunder,
and waives any claim of forum non conveniens and any objections as to
laying of venue.
12. Reports; Inspection. The Escrow Agent shall furnish to the Corporation,
the Company and to Xxxxxxx Life, Inc. (1055 Broadway, Kansas City, Missouri
64105) monthly reports of the assets held by the Escrow Agent in the Escrow
Fund. Each report shall show all deposits, withdrawals, substitutions and
a listing of assets as of the end of the month. The Corporation and the
Company shall each have the right to inspect the assets held by the Escrow
Agent in the Escrow Fund during the normal business hours of the Escrow
Agent upon at least three business days advance written notice.
13. Miscellaneous. (a)This Agreement embodies the entire agreement and
understanding among the parties relating to the subject matter hereof and
may not be changed orally, but only by instrument in writing signed by the
parties hereto.
(b) All notices and other communications under this Agreement shall be in
writing and shall be deemed given when delivered personally, on the next
Business Day after delivery to a recognized overnight courier or mailed
first class (postage prepaid) or when sent by facsimile to the parties
(which facsimile copy shall be followed, in the case of notices or other
communications sent to the Escrow Agent, by delivery of the original) at
the following addresses (or to such other address as a party may have
specified by notice given to the other parties pursuant to this provision):
If to the Corporation:
Employers Reassurance Corporation
5200 Xxxxxxx X.X. Xxx 0000
Xxxxxxxx Xxxx, Xxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile 000 000-0000
If to the Company:
Great Southern Life Insurance Company
000 Xxxx 00xx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx
Attention: Xxxx Xxxxxxx
Facsimile: 000 000-0000
With a copy to:
Xxxxxx X. Xxxxxxx, III
Xxxxxxx & Xxxx X.X.
0000 Xxxxx Xxxxxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
If to the Bank:
Bankers Trust Company
Corporate Trust and Agency Group
Four Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Insurance Trust Services
Facsimile 000 000-0000
(c) The headings of the Sections of this Agreement have been inserted for
convenience and shall not modify, define, limit or expand the express
provisions of this Agreement.
(d) This Agreement and the rights and obligations hereunder of parties
hereto may not be assigned except with the prior written consent of the
other parties hereto. This Agreement shall be binding upon and inure to
the benefit of each party s respective successors and permitted assigns.
Except as expressly provided herein, no other person shall acquire or have
any rights under or by virtue of this Agreement. This Agreement is
intended to be for the sole benefit of the parties hereto, and (subject to
the provisions of this Section 12(d) their respective successors and
assigns, and none of the provisions of this Agreement are intended to be,
nor shall they be construed to be, for the benefit of any third person.
(e) This Agreement may not be amended, supplemented or otherwise modified
without the prior written consent of the parties hereto.
(f) The Escrow Agent makes no representation as to the validity, value,
genuineness or the collectability of any security or other document or
instrument held by or delivered to it.
(g) The Escrow Agent shall not be called upon to advise any party as to the
wisdom in selling or retaining or taking or refraining from any action with
respect to any securities or other property deposited hereunder.
(h) Any payments of income from the Escrow Fund shall be subject to
withholding regulations then in force with respect to United States taxes.
Each of the Corporation and the Company will provide the Escrow Agent with
its Employer Identification Number for use by the Escrow Agent if
necessary. It is understood that the Escrow Agent shall be responsible for
income reporting only with respect to income earned on the escrow Fund and
will not be responsible for any other reporting.
(i) This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without reference to the principles of
conflict of laws.
(j) This Agreement may be executed in two or more counterparts, each of
which shall be an original, but all of which together shall constitute one
and the same instrument.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
EMPLOYERS REASSURANCE CORPORATION GREAT SOUTHERN LIFE INSURANCE
as Corporation COMPANY, as Company
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxxxxx
Name:Xxxxx X. Xxxxxx Name: Xxxx X. Xxxxxxx
Title: Executive Vice President Actuary Title: Senior Vice President
BANKERS TRUST COMPANY,
as Escrow Agent
By: /s/ Xxxx Xxxxxxxx
Name: Xxxx Xxxxxxxx
Title: Assistant Vice President
Schedule A
Permitted Investments
The Escrow Agent shall accept instructions from Xxxxxxx Life, Inc., 0000
Xxxxxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000 ("Xxxxxxx") regarding investment of
the Escrow Fund.
Exhibit A
Authorized Person(s)
For the Corporation: Xxxxx X. Xxxxxx
For the Company:
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
For Xxxxxxx:
Xxxxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxx
Exhibit B
RECEIPT
This receipt is given pursuant to the Escrow Agreement (the "Agreement")
dated a of (the"Agreement") by and among.
and collectively with
and Bankers Trust Company, a New York banking corporation (as
escrow agent hereunder, the "Escrow Agent").
Bankers Trust Company, as Escrow Agent, hereby acknowledges receipt of $
constituting Escrowed Proceeds to be held in escrow pursuant to the terms
of the Escrow Agreement.
IN WITNESS WHEREOF, the undersigned has executed this Receipt on:
BANKERS TRUST COMPANY,
As Escrow Agent
By:
ESCROW AGREEMENT
[Ohio State & Investors Guaranty Business]
GREAT SOUTHERN LIFE INSURANCE COMPANY a Texas corporation
