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Exhibit 10(ii)
AMENDED AND RESTATED
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REINSURANCE POOLING AGREEMENT
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This Amended and Restated Reinsurance Pooling Agreement (the
"Agreement"), effective as of 12:01 a.m., Eastern Standard Time, January 1, 1998
is between and among State Automobile Mutual Insurance Company, 518 East Broad
Street, Columbus, Ohio (hereinafter referred to as "State Auto Mutual"), State
Auto Property and Casualty Insurance Company, 112 Main Street, Greer, South
Carolina (hereinafter referred to as "State Auto P&C"), Milbank Insurance
Company, East Highway 12, Milbank, South Dakota (hereinafter referred to as
"Milbank") and Midwest Security Insurance Company, 2700 Midwest Drive, Onalaska,
Wisconsin (hereinafter referred to as "Midwest Security"). (State Auto Mutual,
State Auto P&C, Milbank and Midwest Security are herein collectively referred to
as the "State Auto Insurance Companies" or "Group").
BACKGROUND INFORMATION
----------------------
The members of the Group have determined that the underwriting
operations of the Group should be conducted by State Auto Mutual on behalf of
the Group which has been effected through the Amended and Restated Management
Agreement dated April 1, 1994 (the "4/1/94 Management Agreement") and as to
Midwest Security through the Management Agreement dated March 11, 1997 (the
"Midwest Management Agreement"), and by means of mutual reinsurance on a
percentage basis as herein provided.
State Auto Mutual and State Auto P&C originally entered into an
intercompany Reinsurance Agreement effective as of 12:01 a.m., January 1, 1987
(the "Reinsurance Agreement").
The Reinsurance Agreement has since been amended by an Addendum
effective January 1, 1987, adding an insolvency and arbitration provisions; by
Amendment Number 1 effective as of January 1, 1992 amending the pooling
percentages from 20% State Auto P&C - 80% State Auto Mutual to 30% and 70%
respectively; by Amendment Number 2 effective as of January 1, 1991 excluding
post retirement health care benefits as a pooled expense and as of January 1,
1994 excluding post employment benefits liability as a pooled expense; and by
Amendment Number 3 effective as of January 1, 1995 adding Milbank as a party and
adjusting the pooling percentages as follows: State Auto P&C 35%, State Auto
Mutual 55% and Milbank 10% and by an Amended and Restated Reinsurance Pooling
Agreement dated July 1, 1996 (the "7/1/96 Reinsurance Agreement"), which
excluded from the Reinsurance Agreement catastrophic loss claims and loss
adjustment expenses incurred by State Auto Mutual, State Auto P&C and Milbank in
the amount of $100,000,000 in excess of $120,000,000 of such losses and loss
adjustment expense and the premiums for such exposure. The parties to the 7/1/96
Reinsurance Agreement desire to amend that agreement effective January 1, 1998
to add Midwest Security as a party and adjust the Respective Percentages (as
defined below) as set forth herein.
The parties desire to amend and restate the Reinsurance Agreement as
set forth herein to provide for the continuation of the pooling arrangement it
effects, including the above-described previous amendments and the additional
amendment.
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STATEMENT OF AGREEMENT
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In consideration of the mutual covenants set forth herein and INTENDING
TO BE LEGALLY BOUND HEREBY, the parties hereto hereby agree as follows:
DEFINITIONS:
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1. As used in this Agreement:
a. "Net Liabilities" shall mean all direct liabilities plus
reinsurance assumed minus reinsurance ceded, except as
otherwise expressly excluded below.
b. "Net Premiums" shall mean all direct premiums plus
reinsurance assumed minus reinsurance ceded, except as
otherwise expressly excluded below.
c. "Respective Percentage" shall be:
As to Midwest Security 1%
As to Milbank 10%
As to State Auto P&C 37%
As to State Auto Mutual 52%
2. CESSION:
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(a) State Auto P&C Cession: State Auto Mutual hereby reinsures
and assumes and State Auto P&C hereby cedes and transfers to
State Auto Mutual all Net Liabilities incurred under or in
connection with all contracts and policies of insurance issued
by State Auto P&C outstanding and in force as of and
subsequent to 12:01 a.m. Eastern Standard Time, January 1,
1998. Such liabilities shall include State Auto P&C's reserves
for unearned premiums, outstanding losses and loss expenses
(including unreported losses) and all other outstanding
underwriting and administrative expenses as evidenced by State
Auto P&C's books and records at the close of business on
December 31, 1997, but shall not include intercompany
balances, liabilities incurred in connection with the
investment transactions of State Auto P&C, liabilities for
dividends to stockholders declared and unpaid, other
liabilities not incurred in connection with underwriting
operations, post retirement health care benefits liability,
and post employment benefits liability. It is further agreed
State Auto Mutual shall receive the Net Premiums for said
contracts and policies.
(b) Milbank Cession: State Auto Mutual hereby reinsures and
assumes and Milbank hereby cedes and transfers to State Auto
Mutual all Net Liabilities incurred under or in connection
with all contracts and policies of insurance issued by Milbank
outstanding and in force as of and subsequent to 12:01 a.m.
EST, January 1,
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1998. Such liabilities shall include Milbank's reserves for
unearned premiums, outstanding losses and loss expenses
(including unreported losses) and all other outstanding
underwriting and administrative expenses as evidenced by
Milbank's books and records at the close of business on
December 31, 1997, but shall not include intercompany
balances, liabilities incurred in connection with the
investment transactions of Milbank, liabilities for dividends
to stockholders declared and unpaid, other liabilities not
incurred in connection with underwriting operations, post
retirement health care benefits liability, and post employment
benefits liability. It is further agreed that State Auto
Mutual shall receive the Net Premiums for said contracts and
policies.
(c) Midwest Security Cession: State Auto Mutual hereby
reinsures and assumes and Midwest Security hereby cedes and
transfers to State Auto Mutual all Net Liabilities incurred
under or in connection with all contracts and policies of
insurance issued by Midwest Security outstanding and in force
as of and subsequent to 12:01 a.m. EST, January 1, 1998. Such
liabilities shall include Midwest Security's reserves for
unearned premiums, outstanding losses and loss expenses
(including unreported losses) and all other outstanding
underwriting and administrative expenses as evidenced by
Midwest Security's books and records at the close of business
on December 31, 1997, but shall not include intercompany
balances, liabilities incurred in connection with the
investment transactions of Midwest Security, liabilities for
dividends to stockholders declared and unpaid, other
liabilities not incurred in connection with underwriting
operations, post retirement health care benefits liability,
and post employment benefits liability. It is further agreed
that State Auto Mutual shall receive the Net Premiums for said
contracts and policies.
3. ASSETS TRANSFER TO STATE AUTO MUTUAL:
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(a) State Auto P&C: In consideration of the agreements herein
contained, State Auto P&C hereby agrees that there has been or
will be assigned and transferred to State Auto Mutual an
amount, in cash or other assets, equal to the aggregate of all
liabilities of State Auto P&C assumed by State Auto Mutual
under paragraph 2(a) hereof, less a ceding commission equal to
the sum of the acquisition expenses associated with the
unearned premium reserves which are transferred as provided
herein. There have been included among the assets assigned and
transferred to State Auto Mutual by State Auto P&C all of the
right, title and interest of State Auto P&C in and to all
assets relative to the underwriting operations of State Auto
P&C, due or that became due, as evidenced by its books and
records at the close of business on December 31, 1997, not
including investments, accrued investment income, intercompany
balances and bank deposits.
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(b) Milbank: In consideration of the agreements herein
contained, Milbank hereby agrees that there has been or will
be assigned and transferred to State Auto Mutual an amount, in
cash or other assets, equal to the aggregate of all
liabilities of Milbank assumed by State Auto Mutual under
paragraph 2(b) hereof, less a ceding commission equal to the
sum of the acquisition expenses associated with the unearned
premium reserves which are transferred as provided herein.
There shall be included among the assets assigned and
transferred to State Auto Mutual by Milbank all of the right,
title and interest of Milbank in and to all assets relative to
the underwriting operations of Milbank due or that may become
due as evidenced by its books and records at the close of
business on December 31, 1997 not including investments,
accrued investment income, intercompany balances and bank
deposits.
(c) Midwest Security: In consideration of the agreements
herein contained, Midwest Security hereby agrees that there
has been or will be assigned and transferred to State Auto
Mutual an amount, in cash or other assets, equal to the
aggregate of all liabilities of Midwest Security assumed by
State Auto Mutual under paragraph 2(c) hereof, less a ceding
commission equal to the sum of the acquisition expenses
associated with the unearned premium reserves which are
transferred as provided herein. There shall be included among
the assets assigned and transferred to State Auto Mutual by
Midwest Security all of the right, title and interest of
Midwest Security in and to all assets relative to the
underwriting operations of Midwest Security due or that may
become due as evidenced by its books and records at the close
of business on December 31, 1997, not including investments,
accrued investment income, intercompany balances and bank
deposits.
4. ASSUMPTION OF REINSURANCE:
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(a) State Auto P&C: State Auto P&C hereby reinsures and
assumes and State Auto Mutual hereby cedes and transfers to
State Auto P&C its Respective Percentage of all Net
Liabilities under all contracts and policies of insurance,
(including those ceded by State Auto P&C and reinsured by
State Auto Mutual as provided in paragraph 2(a)), on which
State Auto Mutual is subject to liability and which are
outstanding and in force on or after the effective date
hereof.
Such liabilities shall include reserves for unearned premiums,
outstanding losses (including unreported losses) and loss expenses and
all other underwriting and administrative expenses, but shall not
include intercompany balances, liabilities for federal income taxes,
liabilities incurred in connection with investment transactions,
liabilities for dividends to stockholders declared and unpaid, other
liabilities not incurred in connection with underwriting operations,
post retirement health care benefits liability and post employment
benefits liability.
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(b) Milbank: Milbank hereby reinsures and assumes and State
Auto Mutual hereby cedes and transfers to Milbank its
Respective Percentage of all Net Liabilities under all
contracts and policies of insurance, (including those ceded by
Milbank and reinsured by State Auto Mutual as provided in
paragraph 2(b)), on which State Auto Mutual is subject to
liability and which are outstanding and in force on or after
the effective date hereof.
Such liabilities shall include reserves for unearned premiums,
outstanding losses (including unreported losses) and loss expenses and
all other underwriting and administrative expenses, but shall not
include intercompany balances, liabilities for federal income taxes,
liabilities incurred in connection with investment transactions,
liabilities for dividends to stockholders declared and unpaid, other
liabilities not incurred in connection with underwriting operations,
post retirement health care benefits liability and post employment
benefits liability.
(c) Midwest Security: Midwest Security hereby reinsures and
assumes and State Auto Mutual hereby cedes and transfers to
Midwest Security its Respective Percentage of all Net
Liabilities under all contracts and policies of insurance,
(including those ceded by Midwest Security and reinsured by
State Auto Mutual as provided in paragraph 2(c), on which
State Auto Mutual is subject to liability and which are
outstanding and in force on or after the effective date
hereof.
Such liabilities shall include reserves for unearned premiums,
outstanding losses (including unreported losses) and loss expenses and
all other underwriting and administrative expenses, but shall not
include intercompany balances, liabilities for federal income taxes,
liabilities incurred in connection with investment transactions,
liabilities for dividends to stockholders declared and unpaid, other
liabilities not incurred in connection with underwriting operations,
post retirement health care benefits liability and post employment
benefits liability.
5. ASSET TRANSFER BY STATE AUTO MUTUAL:
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(a) State Auto P&C: In consideration of the agreements herein
contained, State Auto Mutual hereby agrees that there has been
or will be assigned and transferred to State Auto P&C an
amount, in cash or other assets, equal to the aggregate of all
liabilities of State Auto Mutual assumed by State Auto P&C
under paragraph 4(a) hereof, less a ceding commission equal to
the sum of the acquisition expenses associated with the
unearned premium reserves which are transferred as provided
herein. There shall be included among the assets assigned and
transferred to State Auto P&C by State Auto Mutual all of the
right, title and interest of State Auto Mutual in and to all
assets relative to the underwriting operations of State Auto
Mutual, due or that may become due, as evidenced by its books
and records at the close of business on December 31, 1997, not
including investments, accrued investment income, intercompany
balances and bank deposits.
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(b) Milbank: In consideration of the agreements herein
contained, State Auto Mutual hereby agrees that there has been
or will be assigned and transferred to Milbank an amount, in
cash or other assets, equal to the aggregate of all
liabilities of State Auto Mutual assumed by Milbank under
paragraph 4(b) hereof, less a ceding commission equal to the
sum of the acquisition expenses associated with the unearned
premium reserves which are transferred as provided herein.
There shall be included among the assets assigned and
transferred to Milbank by State Auto Mutual all of the right,
title and interest of State Auto Mutual in and to all assets
relative to the underwriting operations of State Auto Mutual,
due or that may become due, as evidenced by its books and
records at the close of business on December 31, 1997, not
including investments, accrued investment income, intercompany
balances and bank deposits.
(c) Midwest Security: In consideration of the agreements
herein contained, State Auto Mutual hereby agrees that there
has been or will be assigned and transferred to Midwest
Security an amount, in cash or other assets, equal to the
aggregate of all liabilities of State Auto Mutual assumed by
Midwest Security under paragraph 4(c) hereof, less a ceding
commission equal to the sum of the acquisition expenses
associated with the unearned premium reserves which are
transferred as provided herein. There shall be included among
the assets assigned and transferred to Midwest Security by
State Auto Mutual all of the right, title and interest of
State Auto Mutual in and to all assets relative to the
underwriting operations of State Auto Mutual, due or that may
become due, as evidenced by its books and records at the close
of business on December 31, 1997, not including investments,
accrued investment income, intercompany balances and bank
deposits.
6. PREMIUM COLLECTION AND PAYMENT OF LOSSES:
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As of the effective date of this Agreement and pursuant to the
terms of the 4/1/94 Management Agreement as amended from time to time,
and the Midwest Management Agreement, as amended from time to time,
State Auto P&C, Milbank and Midwest Security hereby authorize and
empower State Auto Mutual to collect and receive all premiums and to
take charge of, adjust and administer the payment of all losses with
respect to any and all contracts and policies of insurance previously
or thereafter issued by State Auto P&C, Milbank and Midwest Security
and to reinsure or terminate all such contracts and policies, and in
all respects to act as though said contracts and policies were issued
by State Auto Mutual. State Auto Mutual agrees to administer the
payment of all losses and loss adjustment expenses in connection with
such contracts and policies. None of the foregoing is intended to
affect or impair the direct obligation of State Auto P&C, Milbank and
Midwest Security to their insureds under policies issued by State Auto
P&C, Milbank and Midwest Security, respectively.
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7. PREMIUM PAYABLE BY STATE AUTO MUTUAL:
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(a) State Auto P&C: Commencing with the effective date of this
Agreement, State Auto Mutual hereby agrees to pay to State
Auto P&C its Respective Percentage of the Net Premiums written
by the parties hereto. Similarly, commencing with the
effective date of this Agreement, all losses, loss expenses,
underwriting expenses, and administrative expenses chargeable
to underwriting of the parties hereto, including the
policyholder dividends, less all losses and expenses recovered
and recoverable under reinsurance ceded to reinsurers other
than the parties hereto, (except for catastrophe reinsurance
ceded by State Auto Mutual and Milbank to State Auto P&C
pursuant to a Property Catastrophe Overlying Excess of Loss
Reinsurance Contract dated as of July 1, 1996 in which State
Auto P&C provides catastrophe coverage for State Auto Mutual
and Milbank for $100,000,000 of catastrophe losses and loss
expenses in excess of $120,000,000 of such losses and loss
expenses incurred by the Group) (the "State Auto P&C
Catastrophe Assumption Agreement") shall be prorated between
the parties on the basis of the Respective Percentage of each.
Accounts shall be rendered at quarterly intervals and shall be
settled within 60 days thereafter.
(b) Milbank: Commencing with the effective date of this
Agreement, State Auto hereby agrees to pay Milbank its
Respective Percentage of the Net Premiums written by the
parties hereto. Similarly, commencing with the effective date
of this Agreement, all losses, loss expenses, underwriting
expenses, and administrative expenses chargeable to
underwriting of the parties hereto, including policyholder
dividends, less all losses and expenses recovered and
recoverable under reinsurance ceded to reinsurers other than
the parties hereto, (except for the State Auto P&C Catastrophe
Assumption Agreement) shall be prorated between the parties on
the basis of the Respective Percentage of each. Accounts shall
be rendered at quarterly intervals and shall be settled within
sixty (60) days thereafter.
(c) Midwest Security: Commencing with the effective date of
this Agreement, State Auto hereby agrees to pay Midwest
Security its Respective Percentage of the Net Premiums written
by the parties hereto. Similarly, commencing with the
effective date of this Agreement, all losses, loss expenses,
underwriting expenses, and administrative expenses chargeable
to underwriting of the parties hereto, including policyholder
dividends, less all losses and expenses recovered and
recoverable under reinsurance ceded to reinsurers other than
the parties hereto, (except for the State Auto P&C Catastrophe
Assumption Agreement) shall be prorated between the parties on
the basis of the Respective Percentage of each. Accounts shall
be rendered at quarterly intervals and shall be settled within
sixty (60) days thereafter.
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8. OFFSET: It is understood and agreed that, insofar as is practicable
and consistent with the purposes and intentions of this Agreement, the
obligations of each company under this Agreement to transfer assets to
the other company may, in whole or in part, be offset against the
reciprocal reinsurance obligations of each company to the other company
so that each company shall deliver hereunder only a net amount of
assets required under such offset.
9. GENERAL STATEMENT OF INTENT: It is the purpose and intent of this
Agreement that:
(a) State Auto Mutual shall be liable as a reinsurer to State
Auto P&C, Milbank and Midwest Security on the policies and
contracts of insurance of State Auto P&C, Milbank and Midwest
Security respectively, issued and in force at 12:01 a.m., EST,
January 1, 1998, or on which there were, at that time,
unsettled claims or losses, and on policies and contracts
thereafter issued by State Auto P&C, Milbank and Midwest
Security to the extent of State Auto Mutual's Respective
Percentage.
(b) State Auto P&C shall be liable as a reinsurer to State
Auto Mutual, Milbank and Midwest Security on the policies and
contracts of insurance of State Auto Mutual, Milbank and
Midwest Security, respectively, issued and in force at 12:01
a.m., EST, January 1, 1998, or on which there were, at that
time, unsettled claims or losses, and on policies and
contracts thereafter issued by State Auto Mutual, Milbank and
Midwest Security to the extent of State Auto P&C's Respective
Percentage.
(c) Milbank shall be liable as a reinsurer to State Auto
Mutual, State Auto P&C and Midwest Security on the policies
and contracts of State Auto Mutual, State Auto P&C and Midwest
Security, respectively, issued and in force at 12:01 a.m.,
EST, on January 1, 1998 or on which there were, at that time,
unsettled claims or losses and on policies thereafter issued
by State Auto Mutual, State Auto P&C and Midwest Security to
the extent of Milbank's Respective Percentage.
(d) Midwest Security shall be liable as a reinsurer to State
Auto Mutual, State Auto P&C, and Milbank on the policies and
contracts of State Auto Mutual, State Auto P&C, and Milbank,
respectively, issued and in force at 12:01 a.m., EST, on
January 1, 1998 or on which there were, at that time,
unsettled claims or losses and on policies thereafter issued
by State Auto Mutual, State Auto P&C and Milbank to the extent
of Midwest Security's Respective Percentage.
(e) The parties hereto shall, on and after 12:01 a.m., EST,
January 1, 1998, participate on the basis of 52% for State
Auto, 37% for State Auto P&C, 10% for Milbank and 1% for
Midwest Security in all of the underwriting operations of each
of the three parties hereto.
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10. LOSSES EXCLUDED: Notwithstanding any of the foregoing, the parties
hereto understand and agree that this Amended and Restated Reinsurance
Pooling Agreement shall not apply to catastrophe losses and loss
expenses for residential and commercial property to the extent such
losses and loss expenses are covered by the State Auto P&C Catastrophe
Assumption Agreement. Once the aforesaid $100,000,000 of coverage is
exhausted by loss expenses and loss payments on behalf of any party
hereto, under either the State Auto P&C Catastrophe Assumption
Agreement or directly, all parties understand and agree that
catastrophe losses and loss expenses in excess of $220,000,000 shall
once again be ceded and assumed under the terms of this Amended and
Restated Reinsurance Agreement. All premiums attributable to the State
Auto P&C Catastrophe Assumption Agreement are to be paid to State Auto
P&C outside of the Amended and Restated Reinsurance Pooling Agreement.
11. LIABILITIES EXCLUDED: In addition to the liabilities set forth in
paragraphs 2(a), 2(b), 2(c) and 10 above, this Agreement shall not
apply to the investment operation or liabilities for federal income tax
or other liabilities excluded by this Agreement.
12. "FOLLOW THE FORTUNES": The reinsurance provided by the terms of
this Agreement shall be subject to the same terms and conditions under
which the original insurance was concluded, or which may be or may have
been agreed to during the term of the original insurance contract.
13. METHODS AND PROCEDURES: The president of State Auto Mutual, State
Auto P&C, Milbank and Midwest Security, or any officer of any of these
companies designated by said president, shall determine the methods and
procedures, including accounting transactions, by which the terms of
this Agreement shall be performed by and on behalf of the parties
hereto.
14. AMENDMENTS: This Agreement may be modified from time to time, so as
to adapt its provisions to the varying conditions of the business of
the Group, by a mutual agreement in writing of the parties hereto,
subject to ratification by the Board of Directors of each party and
with the approval of the insurance officials from the State of Ohio,
the State of South Carolina, the State of South Dakota, and the State
of Wisconsin as required by law.
15. TERM: This Agreement shall remain in full force and effect until
canceled by agreement of the parties or by the giving of ninety (90)
days notice by one of the parties to the other parties and to the
respective domiciliary insurance department of each of the parties.
16. INTERPRETATION: Wherever required to give the correct meaning
throughout this Agreement, the singular shall be interpreted in the
plural. Clerical errors or errors of involuntary or inadvertent
omission or commission shall not be interpreted as a discharge of
liability on behalf of any of the parties to this contract. Such errors
shall be rectified at the time of discovery or as soon as practicable
thereafter. Caption headings are for convenience only and are not
intended to affect the construction of the terms hereof.
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17. INSOLVENCY: The reinsurance made under this Agreement shall be
payable by the assuming reinsurer on the basis of the liability of the
ceding insurer under the contract or contracts reinsured without
diminution because of the insolvency of the ceding insurer. In the
event of insolvency of the ceding insurer, the liquidator or receiver
or statutory successor of such insurer shall give written notice to the
assuming reinsurer of the pendency of a claim against the insolvent
ceding insurer on the policy or bond reinsured within a reasonable time
after such claim is filed in the insolvency proceeding; that during the
pendency of such claim the assuming reinsurer may investigate such
claim and interpose, at its own expense, in the proceeding where such
claim is to be adjudicated any defense or defenses which it may deem
available to the ceding insurer or its liquidator or receiver or
statutory successors; that the expense thus incurred by the assuming
reinsurer shall be chargeable, subject to court approval, against the
insolvent ceding insurer as part of the expense of liquidation to the
extent of a proportionate share of the benefit which may accrue to the
ceding insurer solely as a result of the defense undertaken by the
assuming reinsurer. The reinsurance made effective under this Agreement
shall be payable by the assuming reinsurer to the ceding insurer or to
the liquidator, receiver or statutory successor of the ceding insurer.
18. ARBITRATION: In the event of any dispute hereafter arising with
respect to this Agreement, State Auto Mutual, State Auto P&C, Milbank,
and Midwest Security hereby agree that such dispute shall, upon the
request of the one of the parties, be submitted to arbitration. One
arbitrator shall be chosen by each party and those arbitrators shall
then select an umpire who shall hear and decide the issues to be
arbitrated. If one party fails to name an arbitrator within thirty (30)
days after receipt of a written request to do so, the party initiating
the arbitration may choose the arbitrators. The decision of the umpire
shall be final and binding on the parties. Each party shall bear the
expense of its arbitrator and the cost of the umpire shall be shared
equally. The arbitration shall take place at Columbus, Ohio or such
other location upon which the parties may mutually agree.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed as of the date and the year first above written.
Attest: STATE AUTOMOBILE MUTUAL
INSURANCE COMPANY
/s/John R. Lowther By /s/Robert H. Moone
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Secretary President
STATE AUTO PROPERTY AND CASUALTY
INSURANCE COMPANY
/s/John R. Lowther By /s/Robert H. Moone
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Secretary President
MILBANK INSURANCE COMPANY
/s/John R. Lowther By /s/Robert H. Moone
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Secretary President
MIDWEST SECURITY INSURANCE COMPANY
/s/John R. Lowther By /s/Robert H. Moone
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Secretary President