Exhibit
10.14
COINSURANCE AGREEMENT
between
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
and
UNION FIDELITY LIFE INSURANCE COMPANY
Dated as of April 15, 2004
TABLE OF
CONTENTS
SCHEDULES
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COINSURANCE
AGREEMENT
This
Coinsurance Agreement, dated as of April 15, 2004 (this “Agreement”), is made
and entered into by and between GE Capital Life Assurance Company of New York,
an insurance company organized under the laws of the State of New York (the “Company”),
and Union Fidelity Life Insurance Company, an insurance company organized under
the laws of the State of Illinois (the “Reinsurer”). Defined terms used herein are defined below.
The Company
and the Reinsurer mutually agree to reinsure the risks described in this
Agreement under the terms and conditions stated herein. This Agreement is an indemnity coinsurance
agreement solely between the Company and the Reinsurer, and the performance of
the obligations of each party under this Agreement shall be rendered solely to
the other party. In no instance shall
anyone other than the Company or the Reinsurer have any rights under this
Agreement. The Company shall be and
shall remain the only party hereunder that is liable to any insured, contract
holder, policyholder, claimant or beneficiary under any insurance policy or
contract reinsured hereunder.
This Agreement
is entered into in connection with an intercompany reorganization among the
Company, the Reinsurer and certain of their Affiliates.
ARTICLE I
DEFINITIONS
1.1. Definitions. As used in this Agreement, the following
terms shall have the following meanings (definitions are applicable to both the
singular and the plural forms of each term defined in this Article):
“Accounting
Period” means calendar quarter, except that the last Accounting Period
shall be the period commencing with the first day of the calendar quarter in
which the Termination Date falls and ending with the Termination Date.
“Affiliate”
means any other Person that directly or indirectly controls, is controlled by,
or is under common control with, the first Person. “Control” (including the terms, “controlled by” and
“under common control with”) means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract or credit arrangement, as trustee or executor, or otherwise.
“Agreement”
shall have the meaning specified in the first paragraph of this Agreement.
“Annual
Report” shall have the meaning specified in Section 7.4.
“Applicable
Law” means any federal, state, local or foreign law (including common law),
statute, ordinance, rule, regulation, order, writ, injunction, judgment,
permit, governmental agreement or decree applicable to a Person or any of such
Person’s subsidiaries,
properties, assets, or to such Person’s officers, directors, managing
directors, employees or agents in their capacity as such.
“Assets”
shall have the meaning specified in Section 5.3(a).
“Assignment
Letter Agreement” means the letter agreement dated the date hereof among
General Electric Capital Corporation, a Delaware corporation, the Reinsurer,
the Company and certain affiliates of the Company relating to the assignment by
General Electric Capital Corporation of the Capital Maintenance Agreement.
“Benefits”
shall have the meaning specified in Section 2.3(a).
“Business
Day” means any day other than a Saturday, Sunday or other day on which
commercial banks in the States of Illinois or Virginia are required or
authorized by law to be closed.
“Capital
Maintenance Agreement” means the Capital Maintenance Agreement between
General Electric Capital Corporation, a Delaware corporation, and the
Reinsurer.
“Ceding
Commission” shall have the meaning specified in Section 5.2.
“Claims
Settlement Account” shall have the meaning specified in Section 4.1(a).
“Closing
Date” means April 15, 2004.
“Code”
means the Internal Revenue Code of 1986, as amended.
“Company
Account” shall have the meaning specified in Section 11.1(e).
“CPR”
shall have the meaning specified in Section 13.3.
“CPR
Arbitration Rules” shall have the meaning specified in Section 13.4(a).
“Dispute”
shall have the meaning specified in Section 13.1(a).
“Eligible
Securities” shall have the meaning specified in Section 11.1(c).
“Expense
Allowance” shall have the meaning specified in Section 6.1.
“Extra
Contractual Liabilities” means all liabilities for damages (including
compensatory, consequential, exemplary, punitive, bad faith or similar or other
damages) which relate to the marketing, sale, underwriting, issuance, delivery,
cancellation or administration of the Reinsured Contracts, including liability
arising out of or relating to any alleged or actual acts, errors or omissions
by the Company or its agents, whether intentional or otherwise, with respect to
any of the Reinsured Contracts, including (A) any alleged or actual reckless
conduct or bad faith in connection with the handling of any claim arising out of
or under Reinsured Contracts, or (B) the marketing, sale, underwriting,
issuance, delivery, cancellation or administration of any of the Reinsured
Contracts.
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“Force
Majeure” shall have the meaning specified in Section 3.7(b)(iii).
“Funding
Requirement” shall have the meaning specified in Section 11.1(e).
“GAAP”
means U.S. generally accepted accounting principles consistently applied.
“Governmental
Authority” means any foreign or national government, any state or other
political subdivision thereof, and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
“Inception
Date” shall have the meaning specified in Section 2.1.
“Initial
Notice” shall have the meaning specified in Section 13.2.
“Initial
Reinsurance Premium” shall have the meaning specified in Section 5.1.
“Initial
Report” shall have the meaning specified in Section 7.1.
“Insolvency
Fund” means any guarantee fund, insolvency fund, plan, pool, association,
fund or other arrangement, however denominated, established or governed, which
provides for any assessment of or payment or assumption by the Company of part
or all of any claim, debt, charge, fee or other obligation of an insurer or
reinsurer, or its successors or assigns, which has been declared by any
competent authority to be insolvent, or which is otherwise deemed unable to
meet any claim, debt, charge, fee or other obligation in whole or in part.
“Minimum
Claims Settlement Amount” shall have the meaning specified in Section
4.1(b).
“Person”
means any natural person, firm, limited liability company, general partnership,
limited partnership, joint venture, association, corporation, trust,
Governmental Authority or other entity.
“Quarterly
Report” shall have the meaning specified in Section 7.2.
“Quarterly
Settlement” shall have the meaning specified in Section 5.3(a).
“RBC
Reporting Letter Agreement” means the letter agreement dated the date
hereof among the Company, the Reinsurer and certain affiliates of the Company
relating to the Reinsurer’s requirement to provide periodic certifications and
reports regarding the Reinsurer’s risk based capital ratio.
“Reinsured
Contracts” means the structured settlements immediate annuity contracts
issued by the Company and recorded in the Company’s valuation system on or
prior to December 3, 2003 or reinsured by the Company under reinsurance
agreements in effect prior to January 1, 2004, and, in each case, written on
the policy forms described in Schedule A.
“Reinsured
Risks” shall have the meaning specified in Section 2.1.
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“Response”
shall have the meaning specified in Section 13.2.
“SAP”
means statutory accounting practices prescribed or permitted by the Insurance
Department of the State of New York.
“Tax DAC”
means specified policy acquisition expenses capitalized and amortized under
section 848 of the Code.
“Termination
Date” means the effective date of any termination of this Agreement as
provided in Article VIII.
“Termination
Letter Agreement” means the letter agreement dated the date hereof among
the Company, the Reinsurer and certain affiliates of the Company relating to
the rescission of this Agreement upon the failure of certain events to occur
after the date hereof.
“Total SAP
Ceded Reserves” means, as of any given date, the gross policy reserves of
the Company calculated in accordance with SAP with respect to the Reinsured
Risks.
“Total GAAP
Ceded Reserves” means, as of any given date, the gross policy reserves of
the Company calculated in accordance with GAAP with respect to the Reinsured
Risks.
“Trust
Account” shall have the meaning set forth in Section 11.1(a).
“Trust
Agreement” shall have the meaning set forth in Section 11.1(a).
“Trustee”
shall have the meaning set forth in Section 11.1(a).
ARTICLE II
COVERAGE
2.1. Coverage. Upon the terms and subject to the conditions
and other provisions of this Agreement, as of 12:01 a.m. Eastern Time on
January 1, 2004 (the “Inception Date”), the Company hereby cedes to the
Reinsurer, and the Reinsurer hereby agrees to indemnify the Company for, one
hundred percent (100%) of the liability incurred by the Company for Benefits on
or after the Inception Date (the “Reinsured Risks”).
2.2. Conditions. (a) If the Company’s liability under any of
the Reinsured Contracts is changed because of changes made on or after the
Inception Date in the terms and conditions of the Reinsured Contracts
(including to any contract riders or endorsements thereto) that are required
due to changes in Applicable Law, the Reinsurer will share in the change
proportionately to the coinsurance share hereunder and the Company and the
Reinsurer will make all appropriate adjustments to amounts due each other under
this Agreement.
(b) Except as otherwise
set forth in paragraph (a) above, no changes, amendments or modifications made
on or after the Inception Date in the terms and conditions of the
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Reinsured Contracts which adversely affect the liability of the
Reinsurer hereunder shall be covered hereunder without the prior written
approval of such changes, amendments or modifications by the Reinsurer, which
approval shall not be unreasonably withheld or delayed. In the event that any such changes,
amendments or modifications are made in any Reinsured Contract without the
prior written approval of the Reinsurer, this Agreement will cover liability
incurred by the Company for Benefits as if the non-approved changes, amendments
or modifications had not been made.
2.3. Benefits. (a)
Subject to the provisions of Sections 2.2, 2.3(b) and (c) and the terms
and conditions of this Agreement, “Benefits” shall mean the actual benefits
payable by the Company under the Reinsured Contracts.
(b) Any Extra
Contractual Liabilities resulting from actions of the Company or its agents or
reinsured by the Company under the Reinsured Contracts shall be treated as a
Benefit payable for the purposes of this Agreement to the extent permitted by
state law, except to the extent that any such Extra Contractual Liabilities are
attributable to the conduct of the Company in the administration of the
Reinsured Contracts on or after the Inception Date, other than actions taken by
the Company at the written request or direction of the Reinsurer.
(c) This Agreement
excludes all liability arising by contract, operation of law, or otherwise from
the Company’s participation or membership, whether voluntary or involuntary, in
any Insolvency Fund.
2.4. Territory. The territorial limits of this Agreement
shall be identical with those of the Reinsured Contracts.
2.5. Ceded Reinsurance. Subsequent to the Inception Date, the
Company will not enter into any reinsurance arrangements with respect to the
Reinsured Contracts without the prior written consent of the Reinsurer, in its
sole discretion.
ARTICLE III
ADMINISTRATION; GENERAL PROVISIONS
3.1. Contract Administration. (a)
Subject to Section 3.7, the Company shall provide policyholder and
claims servicing with respect to the Reinsured Contracts in accordance with the
terms hereof. All Benefits paid by the
Company shall be binding upon the Reinsurer; provided, however,
that such Benefits are within the terms, conditions and limitations of the
Reinsured Contracts. The Company shall
provide policyholder and claims servicing with respect to the Reinsured
Contracts (including the administration of claims for Benefits thereunder) in
good faith and with the care, skill, prudence and diligence of a person
experienced in administering structured settlement business. The Company shall provide policyholder and
claims servicing with respect to the Reinsured Contracts, (i) in
accordance with the terms of the Reinsured Contracts, (ii) in accordance with
the applicable terms of this Agreement, (iii) in compliance with Applicable Law
and, subject to the foregoing, (iv) in the same manner as it conducts its own
business not subject to this Agreement and (v) in accordance with the Company’s
administrative performance standards in effect on the date hereof, with such
revisions
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to such standards as are no less favorable to the Reinsurer than such
standards. Notwithstanding the
foregoing, the parties may, from time to time, mutually develop specific and/or
different standards for providing such services with respect to the Reinsured
Contracts.
(b) The Company may
subcontract for the performance of any policyholder or claims servicing service
or services with respect to the Reinsured Contracts to (i) an Affiliate or (ii)
any other Person with the prior written consent of the Reinsurer, such consent
not to be unreasonably withheld; provided, that the Company also
subcontracts for such service or services for its own structured settlement
annuities business not subject to this Agreement to such subcontractor; and provided,
further, that no such subcontracting shall relieve the Company from any
of its obligations or liabilities hereunder, and the Company shall remain
responsible for all obligations or liabilities of such subcontractor with
regards to the providing of such service or services as if provided by the
Company.
3.2. Claims Settlements. The Company agrees that it will provide
prompt notice to the Reinsurer of its intention to contest, compromise or
litigate a claim with respect to a Reinsured Contract, along with copies of all
pleadings and reports of investigation with respect thereto. The Reinsurer shall have the right, at its
own expense, to participate jointly with the Company in the investigation,
adjustment or defense of such claims.
In addition, in the event that litigation arises against the Company in
connection with a claim which seeks damages in excess of $1 million or other
remedies deemed material to the Reinsurer, the Reinsurer may, upon written
notice to the Company, assume the defense thereof with counsel selected by the
Reinsurer and reasonably satisfactory to the Company. If the Reinsurer assumes such defense, the Company shall have the
right, at its own expense, to participate jointly with the Reinsurer in the
defense thereof. If the Reinsurer
assumes the defense of litigation, the Reinsurer shall not settle such
litigation without the Company’s prior written consent (which consent shall not
be unreasonably withheld or delayed) unless (i) there is no finding or
admission of any violation of law or any violation of the rights of any Person,
(ii) such settlement would not reasonably be expected to have material adverse
precedential consequences to the Company and (iii) the sole relief provided is
monetary damages that are paid in full by the Reinsurer.
3.3. Inspection. The Company shall keep accurate and complete
records, files and accounts of all transactions and matters with respect to the
Reinsured Contracts and the administration hereof in accordance with Applicable
Law and its record management practices in effect from time to time for the
Company’s insurance business not covered by this Agreement. The Reinsurer and its designated
representatives may upon reasonable notice inspect, at the offices of the
Company where such records are located, the papers and any and all other books
or documents of the Company reasonably relating to this Agreement, including
the Reinsured Contracts and the administration thereof by the Company
(including compliance with the provisions of Section 3.1), and shall have
access to appropriate employees and representatives of the Company, in each
case during normal business hours for such period as this Agreement is in
effect or for as long thereafter as the Company seeks performance by the
Reinsurer pursuant to the terms of this Agreement or the Reinsurer reasonably
needs access to such records for regulatory, tax or similar purposes. The information obtained shall be used only
for purposes relating to the transactions contemplated under this Agreement.
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3.4. Errors and Omissions. If any delay, omission, error or failure to
pay amounts due or to perform any other act required by this Agreement is
unintentional and caused by misunderstanding or oversight, the Company and the
Reinsurer will adjust the situation to what it would have been had the
misunderstanding or oversight not occurred.
The party first discovering such misunderstanding or oversight, or an
act resulting from such misunderstanding or oversight, will notify the other
party in writing promptly upon discovery thereof, and the parties shall act to
correct such misunderstanding or oversight within twenty (20) Business Days of
such other party’s receipt of such notice.
However, this Section shall not be construed as a waiver by either party
of its right to enforce strictly the terms of this Agreement.
3.5. Age, Sex and Other Adjustments. If the Company’s liability under any of the
Reinsured Contracts is changed because of a misstatement of age or sex or any
other material fact, the Reinsurer will share in the change proportionately to
the coinsurance share hereunder and the Company and the Reinsurer will make all
appropriate adjustments to amounts due each other under this Agreement.
3.6. Setoff. Any debts or credits, matured or unmatured,
in favor of or against either the Company or the Reinsurer with respect to this
Agreement are deemed mutual debts or credits, as the case may be, and shall be
setoff from any amounts due to the Company or the Reinsurer hereunder, as the
case may be, and only the net balance shall be allowed or paid.
3.7. Administration by Reinsurer. (a)
At any time from and after the fifteenth (15th) anniversary of the
Inception Date, the Reinsurer shall have the right to assume from the Company
the administration of the Reinsured Contracts, provided that the
Reinsurer provides twelve (12) months prior written notice of such assumption,
which notice may be given as early as the fourteenth (14th) anniversary of the
Inception Date to take effect as of the fifteenth (15th) anniversary of the
Inception Date. The Reinsurer shall bear
all transition costs associated with an assumption of the administration of the
Reinsured Contracts pursuant to this paragraph (a) of this Section 3.7.
(b) In addition to the
provisions of Section 3.7(a), the Reinsurer shall have the right, upon written
notice to the Company to assume from the Company the administration of the
Reinsured Contracts upon the occurrence of any of the following events:
(i) A voluntary or involuntary proceeding
is commenced in any jurisdiction by or against the Company for the purpose of
conserving, rehabilitating or liquidating the Company;
(ii) There is a material breach by the Company
of any material term or condition of this
Article III that is not cured by the Company within thirty (30) days after
receipt of written notice from the Reinsurer of such breach or act (provided
that the Reinsurer shall not have the right to assume such administration (A)
for so long as the Company is making a good faith effort to cure such a breach,
not to exceed an additional one hundred eighty (180) days or (B) during the
pendency of any dispute resolution proceedings as set forth in Article XIII
regarding an alleged material breach); or
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(iii) The Company is unable to perform the services
required under this Article III for a period of thirty (30) consecutive days
for any reason, other than as a result of a Force Majeure, it being understood
that nothing in this Section 3.7(b)(iii) shall relieve the Company from its
administrative responsibilities under this Agreement. For purposes of this Agreement “Force Majeure” means any acts or
omissions of any civil or military authority, acts of God, acts or omissions of
the Reinsurer, fires, strikes or other labor disturbances, equipment failures,
fluctuations or non-availability of electrical power, heat, light, air
conditioning or telecommunications equipment, or any other act, omission or
occurrence beyond the Company’s reasonable control, irrespective of whether
similar to the foregoing enumerated acts, omissions or occurrences.
(c) The Company shall
bear all transition costs associated with an assumption of the administration
of the Reinsured Contracts pursuant to Section 3.7(b).
(d) In the event of the
Reinsurer’s assumption of the administration of the Reinsured Contracts, the Reinsurer
and the Company shall enter into an administrative services agreement in the
form attached hereto as Schedule B and the provisions of Article VI shall
become inoperative.
ARTICLE IV
CLAIMS SETTLEMENT ACCOUNT; CLAIMS
4.1. Claims Settlement Account. (a)
On the Closing Date, the Reinsurer shall establish a separate bank
account (the “Claims Settlement Account”) in its own name for the payment of
Benefits and shall authorize two signatories who shall be representatives of
the Company and approved by the Reinsurer in writing to issue drafts in the
name of the Reinsurer and showing the identity of the Company. The Reinsurer shall fund such account for
payment of Benefits in accordance with the provisions of Section 4.1(b). Any interest earned on the Claims Settlement
Account shall belong to the Reinsurer.
The Claims Settlement Account shall be administered by the Company in a
fiduciary capacity and shall be used solely by the Company to make payments of
Benefits in accordance with the terms of this Agreement.
(b) The Reinsurer shall
deposit $2 million in the Claims Settlement Account on the Closing Date and
shall thereafter fund the Claims Settlement Account on or before the fifth
(5th) day of each month in amounts agreed by the Company and the Reinsurer from
time to time in amounts sufficient to provide funds to the Company for the
payment of Benefits during the next thirty (30) days, or such other amount as
may be mutually agreed by the parties (such initial deposit amount and each
minimum funding amount as agreed from time to time shall be referred to as a
“Minimum Claims Settlement Amount”). In
addition, the Reinsurer shall deposit to the Claims Settlement Account such
additional amounts as may be required to keep the balance of such account above
zero at all times. In consideration of
the Reinsurer providing the Claims Settlement Account arrangement, the Company
agrees that it shall apply funds in the
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Claims Settlement Account against the Reinsurer’s liability under this
Agreement until such funds are exhausted.
(c) The Company shall
keep true and complete records, in accordance with Applicable Law and its
record management practices in effect from time to time for the Company’s
insurance business not covered by this Agreement, clearly recording the
deposits in and withdrawals from the Claims Settlement Account, including
records relating to the payment of Benefits from the Claim Settlement
Account. The Company will make
available to the Reinsurer or its designated representative, or shall furnish
to the Reinsurer or its designated representative, upon request of the
Reinsurer or its designated representative, copies of all such records. All copies furnished in the ordinary course
of business shall be furnished by the Company at the Company’s cost, which
shall be included in the Expense Allowance.
Any extraordinary costs reasonably incurred by the Company in response
to requests from the Reinsurer shall be reimbursed by the Reinsurer.
(d) Within thirty (30)
days after each calendar month (or more frequently as mutually agreed by the
parties), the Company shall render a complete accounting to the Reinsurer
detailing all transactions with respect to the Claims Settlement Account, in
such form as agreed by the parties.
(e) The parties agree to
deliver to the depository bank such depository resolutions, signature cards, and other documents as may be
requested of them in order to use such accounts at the depository bank in
accordance with the provisions of this Article IV.
(f) Upon a termination
of this Agreement pursuant to Article VIII, the Reinsurer shall close the
Claims Settlement Account and any closing balance therein shall be the property
of the Reinsurer. The Company’s claims
payment authority under this Agreement with respect to the Claims Settlement
Account shall terminate immediately upon termination of this Agreement pursuant
to Article VIII or the assumption by the Reinsurer of the administration of the
Reinsured Contracts pursuant to Section 3.7.
Upon termination of its authority to pay claims, the Company shall
promptly return to the Reinsurer all unused check stock held by it in
connection with this Agreement.
ARTICLE V
REINSURANCE ASSET TRANSFER; CEDING COMMISSION
5.1. Initial Reinsurance Premium. As consideration for the reinsurance by the
Reinsurer of the Reinsured Risks under this Agreement, on the Closing Date the
Reinsurer shall be entitled to an amount equal to one hundred percent (100%) of
the Total SAP Ceded Reserves as of the close of business on the day immediately
preceding the Inception Date (the “Initial Reinsurance Premium”).
5.2. Ceding Commission. On the Closing Date, the Company shall be
entitled to a ceding commission (the “Ceding Commission”) in an amount determined
in accordance with Schedule C.
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5.3. Amounts Due the Parties. (a)
Except as otherwise specifically provided herein, all amounts due to be
paid to the Company under this Agreement shall be determined on a net basis,
giving full effect to Section 3.6.
The net amount due the Reinsurer from the Company on the Closing Date
under Section 5.1 and Section 5.2 shall consist of (i) the investment assets
(the “Assets”) set forth on Schedule D, which assets have a statutory book
value as of the close of business on the day immediately preceding the
Inception Date equal to (A) the Initial Reinsurance Premium, less (B) the
Ceding Commission, less (C) an amount equal to accrued but unpaid interest on
the Assets as of the close of business on the day immediately preceding the
Inception Date, plus (ii) an amount equal to the investment cash flows received
on the Assets between the Inception Date and the Closing Date. The Company shall pay such net amount
concurrent with its delivery of the Initial Report. Each net amount subsequently due with respect to each Accounting
Period ending after the Inception Date (the “Quarterly Settlement”) shall be
paid in cash by the Reinsurer to the Company no later than thirty (30) days
after delivery of the Quarterly Report, as applicable. Each net amount subsequently due with
respect to each calendar year ending after the Inception Date as reflected on
an Annual Report shall be paid in cash by the Reinsurer to the Company no later
than thirty (30) days after delivery of the Annual Report.
(b) The Company shall
deliver to the Reinsurer possession of the Assets and such bills of sale,
endorsements, assignments and other good and sufficient instruments of
conveyance and transfer in form and substance reasonably acceptable to the
parties as shall be effective to vest in the Reinsurer all of the right, title
and interest of the Company in and to the Assets. Delivery of the Assets shall be a condition precedent of
reinsurance coverage hereunder.
ARTICLE VI
EXPENSE ALLOWANCES
6.1. Expense Allowance. As reimbursement for expenses incurred by
the Company in the providing of policyholder and Benefit payment services with
respect to the Reinsured Contracts, the Reinsurer shall pay to the Company with
respect to each calendar month ending after the Inception Date, an expense
allowance (each an “Expense Allowance”) in an amount calculated in accordance
with Schedule E, as subsequently adjusted in accordance with the methodology
and procedures set forth on Schedule E.
ARTICLE VII
ACCOUNTING AND SETTLEMENT
7.1. Initial Report. A report shall be provided by the Company to
the Reinsurer on the Closing Date providing the data required in
Schedule F – Part I (the “Initial Report”).
7.2. Quarterly Settlement Reports. As soon as practicable but not more than
forty (40) days following each Accounting Period ending after the Closing Date
(or more
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frequently as mutually agreed by the parties), the Company shall supply
the Reinsurer with a report that shall provide the financial data for such
Accounting Period required in Schedule F – Part II (the “Quarterly
Report”). For the avoidance of doubt,
the first Quarterly Report will include all transactions with respect to the
Reinsured Contracts occurring from the Inception Date through June 30, 2004.
7.3. Quarterly Financial Reports. As soon as practicable but not more than
forty (40) days following the end of each Accounting Period ending after the
Closing Date (or more frequently as mutually agreed by the parties), the
Company shall supply the Reinsurer with reports related to the Reinsured
Contracts as may be reasonably requested for use in connection with the
preparation of the Reinsurer’s SAP financial statements or other reports
prepared by the Reinsurer in compliance with its internal reporting
requirements. The parties shall
cooperate in good faith to establish the form for the providing of such reports.
7.4. Annual Reports. Within forty-five (45) days after the end of
each calendar year during the term of this Agreement (or more frequently as
mutually agreed by the parties), the Company shall supply the Reinsurer with a
report that shall provide the financial data for such year required in
Schedule F – Part III (the “Annual Report”).
7.5. Additional Reports and Updates. For so long as this Agreement remains in
effect, each of the parties shall periodically furnish to the other such other
reports and information as may be reasonably requested by such other party for
regulatory, tax or similar purposes and reasonably available to it.
7.6. Delayed Payments. In the event that all or any portion of any
payment due either party pursuant to this Agreement becomes overdue, the
portion of the amount overdue shall bear interest at an annual rate equal to
the then current thirty (30) day U.S. Treasury Bill discount rate on the date
that the payment becomes overdue plus 200 basis points, for the period that the
amount is overdue.
ARTICLE VIII
DURATION AND TERMINATION
8.1. Duration. Except as otherwise provided herein, this
Agreement shall be unlimited in duration.
8.2. Reinsurer’s Liability. The Reinsurer’s liability with respect to
the Reinsured Risks will terminate on the earliest of: (i) the date the Company’s liability
with respect to the Reinsured Risks is terminated and all amounts due the
Company from the Reinsurer with respect to such Reinsured Risks are paid to the
Company by or on behalf of the Reinsurer; and (ii) the date this Agreement
is terminated upon the written agreement of the parties.
8.3. Notice of Termination. Upon the termination of the Reinsurer’s
liability with respect to the Reinsured Risks referred to in Section 8.2 above,
the parties shall mutually give the Trustee written notice of their intention
to terminate the Trust Account.
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ARTICLE IX
INSOLVENCY
9.1. Payments. In the event of the insolvency of the
Company, all reinsurance made, ceded, renewed or otherwise becoming effective
under this Agreement shall be payable by the Reinsurer directly to the Company
or to its liquidator, receiver, or statutory successor on the basis of the
liability of the Company under the contracts reinsured, without diminution because
of the insolvency of the Company. It is
agreed and understood, however, that (i) in the event of the insolvency of the
Company, the Reinsurer shall be given written notice of the pendency of a claim
against the insolvent Company on a Reinsured Contract within a reasonable time
after such claim is filed in the insolvency proceeding and (ii) during the
pendency of such claim the Reinsurer may investigate such claim and interpose,
at its own expense, in the proceeding where such claim is to be adjudicated any
defenses which it may deem available to the Company or its liquidator, receiver
or statutory successor.
9.2. Expenses. It is further understood that any expense
thus incurred by the Reinsurer pursuant to Section 9.1 shall be
chargeable, subject to court approval, against the insolvent Company as part of
the expense of liquidation to the extent of a proportionate share of the
benefit which may accrue to the Company solely as a result of the defense
undertaken by the Reinsurer. Where two
or more assuming reinsurers are involved in the same claim and a majority in
interest elect to interpose defenses to such claim, the expense shall be
apportioned in accordance with the terms of this Agreement as though such
expense had been incurred by the Company.
ARTICLE X
CREDIT FOR REINSURANCE
10.1. Reinsurance Credit. Notwithstanding any other provision of this
Agreement to the contrary, if the Reinsurer becomes unauthorized or otherwise
unaccredited as an insurer or reinsurer in any U.S. jurisdiction to which the
Company must provide statutory statements of financial condition such that the
Company will not obtain full statutory financial statement credit for
reinsurance in such state for the reinsurance provided under this Agreement,
the Reinsurer, upon the request of the Company, will establish, at the
Reinsurer’s sole cost and option, trust accounts for the benefit of the
Company, letters of credit, or other acceptable alternatives necessary to
permit the Company to obtain such full statutory financial statement credit for
such reinsurance in all applicable jurisdictions. The Company shall cooperate with the Reinsurer to take such
steps. In addition, in such event, the
Reinsurer agrees to amend this Agreement and the Trust Agreement to the extent
required under Applicable Law in order to provide the Company with such full
statutory financial statement credit.
12
ARTICLE XI
REINSURANCE SECURITY
11.1. Trust. (a) On the Closing Date,
the Reinsurer shall enter into a trust agreement in the form attached as
Schedule G (the “Trust Agreement”) and establish a trust account (the “Trust
Account”) for the benefit of the Company with respect to the Reinsured Risks
with a bank (the “Trustee”) designated as a Qualified United States Financial
Institution by the Securities Valuation Office of the National Association of
Insurance Commissioners or any successor organization or regulatory agency
having similar duties.
(b) The Reinsurer agrees to
deposit, and maintain in the Trust Account with respect to this Agreement,
assets to be held in trust by the Trustee for the benefit of the Company as
security for the payment of the Reinsurer’s obligations to the Company under
this Agreement.
(c) The parties agree that the
assets so deposited with respect to this Agreement shall be valued according to
their current statutory book value on the books of the Reinsurer and shall
consist only of cash (United States legal tender), certificates of deposit
(issued by a United States bank and payable in United States legal tender), and
other assets of the type specified on Schedule H attached hereto (“Eligible
Securities”).
(d) The Reinsurer, prior to
depositing assets with the Trustee, shall execute all assignments and
endorsements in blank, or transfer legal title to the Trustee of all shares,
obligations or any other assets requiring assignments, in order that, to the
extent practicable, the Company, or the Trustee upon direction of the Company,
may whenever necessary negotiate any such assets without consent or signature
from the Reinsurer or any other entity.
The Company recognizes that certain assets in the Trust Account will not
be readily negotiable and that certain notices, opinions of counsel,
representations and/or consents will be required for the Company to obtain good
and marketable title to such assets.
(e) The Reinsurer and the
Company agree that the assets in the Trust Account with respect to this
Agreement may be withdrawn for the following purposes only:
(i) to pay or reimburse the Company for any
amount due the Company pursuant to this Agreement to the extent not so paid or
reimbursed by the Reinsurer;
(ii) to pay to the Reinsurer, in accordance
with paragraph (h) below, any amounts held in the Trust Account that exceed an
amount (the “Funding Requirement”) equal to the sum of Total SAP Ceded Reserves
and any additional reserves attributable to the Reinsured Risks that arise as a
result of regulatory asset adequacy analysis requirements of the Reinsurer,
less, prior to the date on which the Claims Settlement Account is closed, the
Minimum Claims Settlement Amount then in effect; and
(iii) in the event that General Electric Capital
Corporation breaches its obligations under the Capital Maintenance Agreement,
to fund an
13
account with the Company
(the “Company Account”) in an amount at least equal to the deduction, for
reinsurance ceded, from the Company’s liabilities ceded under this
Agreement. Such amount shall include,
but not be limited to, amounts for policy reserves, reserves for claims and
losses incurred (including losses incurred but not reported), loss and loss
adjustment expenses, and unearned premiums.
(f) In the event that
the Company withdraws assets from the Trust Account for the purposes set forth
in Section 11.1(e)(i) above in excess of actual amounts required to meet the
Reinsurer’s obligations to the Company, the Company will promptly return such
excess to the Reinsurer, plus interest at an annual rate equal to the then
current thirty (30) day U.S. Treasury Bill discount rate on the date of
withdrawal plus 200 basis points for the period during which the amounts were
held pursuant to Section 11.1(e)(i). In
the event that the Company withdraws assets from the Trust Account for the
purposes set forth in Section 11.1(e)(iii) above, (i) the Reinsurer shall be
relieved of its obligation to maintain assets in the Trust Account pursuant to
this Section 11.1 to the extent of the amount of funds held in the Company
Account and (ii) the Company shall first apply the funds in the Company Account
in satisfaction of the Reinsurer’s liability under this Agreement until the
funds in the Company Account are exhausted.
In the event that the Company withdraws assets from the Trust Account
for the purposes set forth in Section 11.1(e)(iii) above, promptly following
the date the Reinsurer’s liability with respect to the Reinsured Risks is
terminated, the Company shall return to the Reinsurer any assets so withdrawn
that, together with any and all interest, dividends and other earnings thereon
from the date of withdrawal to the date of return, are in excess of actual
amounts required to meet the Reinsurer’s obligations to the Company under this
Agreement.
(g) The initial deposit
to the Trust Account with respect to this Agreement shall be made on the
Closing Date and shall consist of assets with a statutory book value equal to
the Total SAP Ceded Reserves as of the close of business on the day immediately
preceding the Inception Date, less an amount of assets with a statutory book
value equal to the initial Minimum Claims Settlement Amount.
(h) The aggregate
statutory book value of the assets held in the Trust Account with respect to
this Agreement, shall at all times be at least equal to the Funding
Requirement, and shall be adjusted on a quarterly basis so as to equal the
Funding Requirement. On a quarterly
basis, the Company shall promptly prepare and deliver to the Reinsurer a specific
statement of the Funding Requirement and the Reinsurer shall promptly prepare
and deliver to the Company a specific statement of the statutory book value of
the assets in the Trust Account, in each case as of the end of the
quarter. If the statement shows that
the Funding Requirement exceeds 100% of the balance of the Trust Account with
respect to this Agreement as of the statement date, the Reinsurer shall, within
ten (10) Business Days after receipt of such notice of excess, secure delivery
to the Trustee of additional cash or Eligible Securities having a current
statutory book value equal to such difference.
If the statement shows that the Funding Requirement is less than 100% of
the balance of the Trust Account with respect to this Agreement as of the
statement date, the Company shall, within ten (10) Business Days after delivery
of such statement to the Reinsurer, deliver a notice of withdrawal to the
Trustee directing the Trustee to withdraw from the Trust Account and deliver to
the Reinsurer assets from the Trust Account having a current statutory book
value equal to such excess amount. In
14
addition to the foregoing, the Reinsurer shall prepare
and deliver to the Company on a quarterly basis a specific statement of the
market value of the assets in the Trust Account as of the end of the quarter.
ARTICLE XII
DEFERRED ACQUISITION
COSTS
12.1. Tax DAC Information Sharing. To ensure consistency in their respective
Tax DAC calculations for tax purposes, the Company and the Reinsurer will
exchange information pertaining to the amount of net consideration under this
Agreement each year. The Company will
submit a schedule to the Reinsurer by February 28 of each year presenting its
calculation of the net consideration for the preceding taxable year. The Reinsurer may contest the calculation by
providing to the Company an alternative calculation in writing within thirty
(30) days of receipt of the Company’s schedule. The Company and the Reinsurer will act in good faith to resolve
any differences in the schedule of calculations within thirty (30) days of
receipt of the alternative calculation to ensure consistent amounts are
reported on the respective tax returns for the preceding tax year.
ARTICLE XIII
DISPUTE RESOLUTION
13.1. General Provisions. (a) Any dispute,
controversy or claim arising out of or relating to this Agreement or the
validity, interpretation, breach or termination thereof (a “Dispute”), shall be
resolved in accordance with the procedures set forth in this Article XIII,
which shall be the sole and exclusive procedures for the resolution of any such
Dispute unless otherwise specified below.
(b) Commencing with the
request contemplated by Section 13.2, all communications between the parties or
their representatives in connection with the attempted resolution of any
Dispute, including any mediator’s evaluation referred to in Section 13.3, shall
be deemed to have been delivered in furtherance of a Dispute settlement and
shall be exempt from discovery and production, and shall not be admissible in
evidence for any reason (whether as an admission or otherwise), in any arbitral
or other proceeding for the resolution of the Dispute.
(c) In connection with
any Dispute, the parties expressly waive and forego any right to (i) punitive,
exemplary, statutorily-enhanced or similar damages in excess of compensatory
damages, and (ii) trial by jury.
(d) The specific
procedures set forth below, including but not limited to the time limits
referenced therein, may be modified by agreement of the parties in writing.
15
(e) All applicable
statutes of limitations and defenses based upon the passage of time shall be
tolled while the procedures specified in this Article XIII are pending. The parties will take such action, if any,
required to effectuate such tolling.
13.2. Consideration by Senior Executives. If a Dispute is not resolved in the normal
course of business at the operational level, the parties shall attempt in good
faith to resolve such Dispute by negotiation between executives who hold, at a
minimum, the office of President and CEO of the respective business entities
involved in such Dispute. Either party
may initiate the executive negotiation process by providing a written notice to
the other (the “Initial Notice”).
Fifteen (15) days after delivery of the Initial Notice, the receiving
party shall submit to the other a written response (the “Response”). The
Initial Notice and the Response shall include (i) a statement of the Dispute
and of each party’s position, and (ii) the name and title of the executive who
will represent that party and of any other person who will accompany the
executive. Such executives will meet in person or by telephone within thirty
(30) days of the date of the Initial Notice to seek a resolution of the
Dispute.
13.3. Mediation. If a Dispute is not resolved by negotiation
as provided in Section 13.2 within forty-five (45) days from the delivery of
the Initial Notice, then either party may submit the Dispute for resolution by
mediation pursuant to the CPR Institute for Dispute Resolution (the “CPR”)
Model Mediation Procedure as then in effect.
The parties will select a mediator from the CPR Panels of Distinguished Neutrals, but such mediator must have prior U.S.
reinsurance experience either as a lawyer or as a present or former officer or
management employee of a reinsurance company, but not of the Company, or the
Reinsurer, or any of their respective affiliates. Either party at
commencement of the mediation may ask the mediator to provide an evaluation of
the Dispute and the parties’ relative positions.
13.4. Arbitration. (a) If a Dispute
is not resolved by mediation as provided in Section 13.3 within thirty (30)
days of the selection of a mediator (unless the mediator chooses to withdraw
sooner), either party may submit the Dispute to be finally resolved by
arbitration pursuant to the CPR Rules for Non-Administered Arbitration as then
in effect (the “CPR Arbitration Rules”).
The parties consent to a single, consolidated arbitration for all known
Disputes existing at the time of the arbitration and for which arbitration is
permitted.
(b) The neutral
organization for purposes of the CPR Arbitration Rules will be the CPR. The arbitral tribunal shall be composed of
three arbitrators who are each experienced in the U.S. reinsurance business, of
whom each party shall appoint one in accordance with the “screened” appointment
procedure provided in Rule 5.4 of the CPR Arbitration Rules. The non-party appointed arbitrator must have
prior U.S. reinsurance experience as a present or former officer or management
employee of a reinsurance company, but not of the Company, or the Reinsurer, or
any of their respective affiliates. The
arbitration shall be conducted in New York City. Each party shall be permitted to present its case, witnesses and
evidence, if any, in the presence of the other party. A written transcript of the proceedings shall be made and
furnished to the parties. The
arbitrators shall determine the Dispute in accordance with the law of New York,
without giving effect to any conflict of law rules or other rules that might
render such law inapplicable or unavailable, and shall apply this Agreement
according to its terms, provided that the provisions relating to arbitration
shall be governed by the Federal Arbitration Act, 9 U.S.C.
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§§ 1 et seq. The arbitral
tribunal shall endeavor to render its award or order resulting from any
arbitration within forty-five (45) days following the termination of the
arbitration proceedings.
(c) The parties agree to
be bound by any award or order resulting from any arbitration conducted
hereunder and further agree that judgment on any award or order resulting from an
arbitration conducted under this Section may be entered and enforced in any
court having jurisdiction thereof.
(d) Except as expressly
permitted by this Agreement, no party will commence or voluntarily participate
in any court action or proceeding concerning a Dispute, except (i) for
enforcement as contemplated by Section 13.4(c) above, (ii) to restrict or
vacate an arbitral decision based on the grounds specified under applicable
law, or (iii) for interim relief as provided in paragraph (e) below. For purposes of the foregoing the parties
hereto submit to the non-exclusive jurisdiction of the courts of the State of
New York.
(e) In addition to the
authority otherwise conferred on the arbitral tribunal, the tribunal shall have
the authority to make such orders for interim relief, including injunctive
relief, as it may deem just and equitable.
Notwithstanding paragraph (d) above, each party acknowledges that in the
event of any actual or threatened breach of certain of the provisions of this
Agreement, the remedy at law would not be adequate, and therefore injunctive or
other interim relief may be sought immediately to restrain such breach. If the tribunal shall not have been
appointed, either party may seek interim relief from a court having jurisdiction
if the award to which the applicant may be entitled may be rendered ineffectual
without such interim relief. Upon
appointment of the tribunal following any grant of interim relief by a court,
the tribunal may affirm or disaffirm such relief, and the parties will seek
modification or rescission of the court action as necessary to accord with the
tribunal’s decision.
(f) Each party will
bear its own attorneys’ fees and costs incurred in connection with the
resolution of any Dispute in accordance with this Article XIII.
ARTICLE XIV
MISCELLANEOUS
PROVISIONS
14.1. Headings and Schedules. Headings used herein are not a part of this
Agreement and shall not affect the terms hereof. The attached Schedules are a part of this Agreement.
14.2. Notices. All notices, requests, demands and other communications
under this Agreement must be in writing and will be deemed to have been duly
given or made as follows: (a) if sent
by registered or certified mail in the United States return receipt requested,
upon receipt; (b) if sent by reputable overnight air courier, two business days
after mailing; (c) if sent by facsimile transmission, with a copy mailed on the
same day in the manner provided in (a) or (b) above, when transmitted and
receipt is confirmed by telephone; or (d) if otherwise actually personally
delivered, when delivered, and shall be delivered as follows:
17
If to the
Company:
GE Capital Life Assurance Company of New York
6610 West Broad Street
Richmond, VA
23230
Facsimile: (804) 281-6165
Attention: Chief Executive Officer
With a copy to:
GE Capital
Life Assurance Company of New York
6610 West Broad Street
Richmond, VA
23230
Facsimile: (804) 281-6005
Attention: General Counsel
If to the
Reinsurer:
Union Fidelity Life Insurance Company
200 North Martingale Road
Schaumburg, IL 60173-2096
Facsimile: (847) 330-3404
Attention: Chief Financial Officer
With a copy to:
Union Fidelity
Life Insurance Company
200 North Martingale Road
Schaumburg, IL 60173-2096
Facsimile: (847) 605-3044
Attention: General Counsel
or to such
other address or to such other Person as either party may have last designated
by notice to the other party.
14.3. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors, permitted
assigns and legal representatives.
Neither this Agreement, nor any right or obligation hereunder, may be
assigned by any party without the prior written consent of the other party
hereto. Any assignment in violation of
this Section 14.3 shall be void and shall have no force and effect. Nothing in this Section 14.3 shall be
construed to prohibit the Reinsurer from retroceding all or any portion of the
business reinsured hereunder.
14.4. Execution in Counterpart. This Agreement may be executed by the
parties hereto in any number of counterparts, and by each of the parties hereto
in separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
18
14.5. Currency. Whenever the word “Dollars” or the “$” sign
appear in this Agreement, they shall be construed to mean United States
Dollars, and all transactions under this Agreement shall be in United States
Dollars.
14.6. Amendments. This Agreement may not be changed, altered
or modified unless the same shall be in writing executed by the Company and the
Reinsurer.
14.7. Governing Law. This Agreement will be construed, performed and enforced in
accordance with the laws of the State of New York without giving effect to its
principles or rules of conflict of laws thereof to the extent such principles
or rules would require or permit the application of the laws of another
jurisdiction.
14.8. Entire Agreement; Severability. (a)
This Agreement and the Termination Letter Agreement constitute the
entire agreement between the parties hereto relating to the subject matter
hereof and supersede all prior and contemporaneous agreements, understandings,
statements, representations and warranties, negotiations and discussions,
whether oral or written, of the parties and there are no general or specific
warranties, representations or other agreements by or among the parties in
connection with the entering into of this Agreement or the subject matter
hereof except as specifically set forth or contemplated herein or in the
Termination Letter Agreement.
(b) If any provision of
this Agreement is held to be void or unenforceable, in whole or in part,
(i) such holding shall not affect the validity and enforceability of the
remainder of this Agreement, including any other provision, paragraph or
subparagraph, and (ii) the parties agree to attempt in good faith to
reform such void or unenforceable provision to the extent necessary to render
such provision enforceable and to carry out its original intent.
14.9. Contemporaneous Agreements. Concurrent with the execution of this
Agreement, the parties and/or their Affiliates are also entering into the
Capital Maintenance Agreement, the RBC Reporting Letter Agreement and the
Assignment Letter Agreement.
14.10. No
Waiver; Preservation of Remedies.
No consent or waiver, express or implied, by any party to or of any
breach or default by any other party in the performance by such other party of
its obligations hereunder shall be deemed or construed to be a consent or
waiver to or of any other breach or default in the performance of obligations
hereunder by such other party hereunder.
Failure on the part of any party to complain of any act or failure to
act of any other party or to declare any other party in default, irrespective
of how long such failure continues, shall not constitute a waiver by such first
party of any of its rights hereunder. The rights and remedies provided
are cumulative and are not exclusive of any rights or remedies that any party
may otherwise have at law or equity.
14.11. Cooperation. Each party hereto shall cooperate fully with
the other in all reasonable respects in order to accomplish the objectives of
this Agreement including making available to each their respective officers and
employees for interviews and meetings with Governmental Authorities and
furnishing any additional assistance, information and documents as may be
reasonably requested by a party from time to time.
19
14.12. Third Party Beneficiary. Nothing in this Agreement will confer any
rights upon any Person that is not a party or a successor or permitted assignee
of a party to this Agreement.
14.13. Tax Exception to Any Confidentiality. Notwithstanding anything to the contrary set
forth herein or in any other agreement to which the parties hereto are parties
or by which they are bound, any obligations of confidentiality contained herein
and therein, as they relate to the transactions, shall not apply to the federal
tax structure or federal tax treatment of the transactions, and each party
hereto (and any employee, representative, or agent of any party hereto) may
disclose to any and all persons, without limitation of any kind, the federal
tax structure and federal tax treatment of the transactions. The preceding sentence is intended to cause
the transactions to be treated as not having been offered under conditions of
confidentiality for purposes of Section 1.6011-4(b)(3) (or any successor
provision) of the Treasury Regulations promulgated under Section 6011 of the
Internal Revenue Code of 1986, as amended, and shall be construed in a manner
consistent with such purpose. In
addition, each party hereto acknowledges that it has no proprietary or
exclusive rights to the federal tax structure of the transactions or any
federal tax matter or federal tax idea related to the transactions.
14.14. Interpretation. Wherever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation.”
14.15. Survival. Article XIII and Article XIV shall survive the termination of
this Agreement.
20
IN WITNESS
WHEREOF, the parties hereto have caused this Agreement to be executed by their
duly authorized representatives.
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GE CAPITAL
LIFE ASSURANCE COMPANY
OF NEW YORK
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By
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/s/
Victor C. Moses
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Name: Victor C. Moses
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Title: Senior Vice President
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UNION FIDELITY LIFE INSURANCE COMPANY
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By
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/s/
Glenn Joppa
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Name: Glenn Joppa
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Title: Senior Vice President and Secretary
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21
SCHEDULE A
POLICY FORMS
8001
8101
8201
8401
1700
GECLANY RA&Q
SCHEDULE B
FORM OF
ADMINISTRATIVE SERVICES AGREEMENT
SCHEDULE
A
SSA
UFLIC/GECLANY
ADMINISTRATIVE
SERVICES AGREEMENT
by and between
GE CAPITAL
LIFE ASSURANCE COMPANY OF NEW YORK
and
UNION FIDELITY
LIFE INSURANCE COMPANY
Effective as
of [ ]
ADMINISTRATIVE SERVICES AGREEMENT
This
ADMINISTRATIVE SERVICES AGREEMENT (this “Agreement”), effective as of
[ ]
(the “Effective Date”), is entered into by and between GE CAPITAL LIFE
ASSURANCE COMPANY OF NEW YORK, an insurance company organized under the laws of
the State of New York (the “Company”), and UNION FIDELITY LIFE INSURANCE
COMPANY, an insurance company organized under the laws of the State of Illinois
(the “Administrator”).
RECITALS:
WHEREAS, the
Company and the Administrator have entered into a Coinsurance Agreement dated
as of April 15, 2004 (the “Coinsurance Agreement”) which provides for the
parties to enter into this Agreement;
WHEREAS,
pursuant to the Coinsurance Agreement, the Administrator has agreed to
indemnify the Company for, among other things, 100% of the liability of the
Company for Benefits payable on or after the Inception Date with respect to the
Reinsured Contracts (capitalized terms used herein and not defined herein,
unless otherwise indicated, have the respective meanings assigned to them in
the Coinsurance Agreement); and
WHEREAS, the Company
wishes to appoint the Administrator to provide policyholder and claim servicing
with respect to the Reinsured Contracts as set forth herein, and the
Administrator desires to provide such administrative services;
NOW,
THEREFORE, in consideration of the covenants and agreements set forth herein,
the parties hereto agree as follows:
ARTICLE I
AUTHORITY
As between the
Company and the Administrator, the Company hereby appoints the Administrator,
and the Administrator hereby accepts appointment, to provide as an independent
contractor of the Company, from and after the Effective Date, all of the
policyholder and claim servicing services necessary or appropriate with respect
to the Reinsured Contracts including those set forth in this Agreement (the “Administrative
Services”), all on the terms as set forth in this Agreement. Notwithstanding any other provision of this
Agreement to the contrary, the Company shall have the final right to direct the
Administrator in the performance of the Administrative Services in accordance
with the standards for services set forth in Section 2.1, including the right
to direct the Administrator to perform any action necessary for the Reinsured
Contracts or the policyholder and claim servicing thereof to comply with Applicable
Law, or to cease performing any action that constitutes a violation of
Applicable Law. All services hereunder
shall be performed by the Administrator in the name of and on behalf of the
Company. The Administrator shall
maintain a toll-free number for use by policyholders, certificateholders and
beneficiaries. Any and all
correspondence with policyholders, certificateholders and beneficiaries and
check stock utilized by the Administrator for payments under the Reinsured
Contracts shall be in the name of the Company or in the name of the
Administrator and disclosing that the Administrator is acting as the
administrative agent of the Company.
ARTICLE II
STANDARD FOR SERVICES;
FACILITIES; SUBCONTRACTING;
POLICYHOLDER SERVICING
2.1. Standard for Services. The Administrator shall provide policyholder
and claims servicing with respect to the Reinsured Contracts in good faith and
with the care, skill, prudence and diligence of a person experienced in
administering structured settlement business.
Without limiting the generality of the foregoing, the Administrator
shall provide policyholder and claims servicing with respect to the Reinsured
Contracts (i) in accordance with the terms of the Reinsured Contracts, (ii) in
accordance with the applicable terms of this Agreement, (iii) in compliance with Applicable Law, (iv) in
accordance with industry standards, (v) in accordance with standards of service
as agreed to by the Administrator and the Company and, subject to the
foregoing, (vi) to the extent applicable, in the same manner as it conducts its
own business not subject to this Agreement.
2.2. Facilities and Personnel. To the extent not sub-contracted to a
Subcontractor, the Administrator shall at all times maintain sufficient
facilities and trained personnel of the kind necessary to perform its
obligations under this Agreement in accordance with the performance standards
set forth herein.
2.3. Subcontracting. The Administrator may subcontract for the
performance of any policyholder or claims servicing service or services with
respect to the Reinsured Contracts to (i) an Affiliate or (ii) any other Person
with the prior written consent of the Company, such consent not to be
unreasonably withheld (in each case, the “Subcontractor”); provided,
that, no such subcontracting shall relieve the Administrator from any of its
obligations or liabilities hereunder, and the Administrator shall remain
responsible for all obligations or liabilities of such Subcontractor with
regards to the providing of such service or services as if provided by the
Administrator.
2.4. Policyholder Servicing. The Administrator shall provide policyholder
servicing with regards to the Reinsured Contracts, including changes of
address, responding to policyholder inquiries and similar services.
ARTICLE III
CLAIMS HANDLING
The Administrator shall pay all Benefits
payable on or after the Inception Date with respect to the Reinsured Contracts
(each, a “Claim” and collectively the “Claims”) in accordance with procedures
and guidelines established by the Company, such procedures and guidelines to be
in accordance with the standards of service set forth in Section 2.1.
2
ARTICLE IV
REGULATORY AND LEGAL
PROCEEDINGS
4.1. Regulatory Complaints and
Proceedings. The Administrator
shall:
(i) respond to any Claims payment related
complaints or inquiries made by any Governmental Authority, within the
Governmental Authority’s requested time frame for response or, if no such time
frame is provided, within the time frame as allowed by Applicable Law; and
promptly provide a copy of such response to the Company;
(ii) promptly notify the Company of any
non-Claims payment related complaints or inquiries initiated by a Governmental
Authority, and of any proceedings (either Claims or non-Claims related)
initiated by a Governmental Authority, and, in either case, prepare and send to
the Governmental Authority, with a copy to the Company, a response within the
Governmental Authority’s requested time frame for response or, if no such time
frame is provided, within the time frame as allowed by Applicable Law; provided,
that, subject to meeting such time frames, the Administrator shall provide such
response to the Company for its prior review and comment;
(iii) subject to Section 4.4, supervise and
control the investigation, contest, defense and/or settlement of all
complaints, inquiries and proceedings by Governmental Authorities at its own
cost and expense, and in the name of the Company when necessary; and
(iv) at the Company’s request, provide to the
Company a report in a form mutually agreed by the parties summarizing the
nature of any complaints, inquiries or proceedings by Governmental Authorities,
the alleged actions or omissions giving rise to such complaints, inquiries or
proceedings and copies of any files or other documents that the Company may
reasonably request in connection with its review of these matters.
Notwithstanding the foregoing, the Company shall
retain final authority for the resolution of inquiries by Governmental
Authorities and consumer complaints; provided, however the Company
agrees to act reasonably in the exercise of such authority.
4.2. Legal Proceedings. The Administrator shall:
(i) notify the Company promptly of any
lawsuit, action, arbitration or other dispute resolution proceedings that are
instituted or threatened with respect to any matter relating to the Reinsured
Contracts (“Legal Proceeding(s)”), and in no event more than five (5) Business
Days after receipt of notice thereof;
3
(ii) subject to Section 4.4, supervise and
control the investigation, contest, defense and/or settlement of all Legal
Proceedings at its own cost and expense, and in the name of the Company when
necessary; and
(iii) keep the Company fully informed of the
progress of all Legal Proceedings handled by the Administrator in which the
Company is named a party and, at the Company’s request, provide to the Company
a report summarizing the nature of any Legal Proceedings, the alleged actions
or omissions giving rise to such Legal Proceedings and copies of any files or
other documents that the Company may reasonably request in connection with its
review of these matters in each case other than such files, documents and other
information as would, in the judgment of counsel to the Administrator, lead to
the loss or waiver of legal privilege.
4.3. Notice to Administrator. The Company shall give prompt notice to the
Administrator of any Legal Proceeding made or brought against the Company after
the Inception Date arising under or in connection with the Reinsured Contracts
to the extent known to it and not made against or served on the Administrator
or a Subcontractor as administrator hereunder, and in no event more than five
(5) Business Days after receipt of notice thereof, and shall promptly furnish
to the Administrator copies of all pleadings in connection therewith. The Administrator shall assume the defense
of the Company.
4.4. Defense of Regulatory and Legal
Proceedings. Notwithstanding
anything in this Agreement to the contrary, the Company shall have the right to
engage in its own separate legal representation, at its own expense, and to
participate fully in the defense of any Legal Proceedings or complaints,
inquiries or proceedings by Governmental Authorities with respect to the
Reinsured Contracts in which the Company is a named party without waiving any
right to indemnification it may have under Article XV hereof. The Administrator and the Company shall
cooperate with each other with respect to the administration of any Legal
Proceeding and any complaint, inquiry or proceeding by Governmental
Authorities. The Administrator shall
not settle any Legal Proceeding or any complaint, inquiry or proceeding by
Governmental Authorities without the Company’s prior written consent (which
consent shall not be unreasonably withheld or delayed) unless (i) there is no
finding or admission of any violation of law or any violation of the rights of
any Person, (ii) such settlement would not reasonably be expected to have
material adverse precedential consequences to the Company and (iii) the sole
relief provided is monetary damages that are paid in full by the Administrator.
ARTICLE V
NOTIFICATION TO POLICYHOLDERS
The
Administrator agrees to send to policyholders of the Reinsured Contracts a
written notice prepared by the Administrator, reasonably acceptable to the
Company and approved by the New York Insurance Department to the effect that
the Administrator, or such other Person designated by the Administrator in
accordance with the terms of this Agreement, has been appointed by the Company
to provide Administrative Services. The
Administrator shall send
4
such notice by first class U.S. mail at a time reasonably acceptable to
the Company and the Administrator and in all events in accordance with
Applicable Law. The parties intend to
minimize the cost associated with any notification under this Article V,
including by means of inclusion of the notice in a regularly scheduled mailing
to policyholders in lieu of a separate mailing. The cost associated with such notification under this Article V
(upon the initial assumption of the administration of the Reinsured Contracts
under Section 3.7 of the Coinsurance Agreement) shall be a transition cost
payable by the Administrator or the Company in accordance with Section 3.7(a)
or 3.7(c) of the Coinsurance Agreement, as applicable.
ARTICLE VI
INSOLVENCY FUND ACCOUNTINGS
6.1. Quarterly Accountings. Within thirty (30) days after the end of
each calendar quarter that this Agreement is in effect (or more frequently as
mutually agreed by the parties), the Company shall submit to the Administrator
a written statement of accounting in a form and containing such information to
be agreed upon by the parties hereto (each, an “Insolvency Fund Quarterly
Accounting”) setting forth the Insolvency Fund amounts assessed or payable to
the extent that such assessments constitute Reinsured Risks with respect to the
Reinsured Contracts (collectively, the “Post-Effective Date Assessments”). The Administrator shall remit to the Company
an amount equal to the Post-Effective Date Assessments set forth in an
Insolvency Fund Quarterly Accounting received by the Administrator within ten
(10) Business Days of receipt by the Administrator of such Insolvency Fund
Quarterly Accounting.
6.2. Adjustments Regarding Insolvency
Fund Accountings. In the event that
subsequent data or calculations require revision of any of the Insolvency Fund
Quarterly Accountings, the required revision and appropriate payments
thereunder shall be made within ten (10) Business Days after the parties hereto
mutually agree as to the appropriate revision.
ARTICLE VII
CERTAIN ACTIONS BY COMPANY
7.1. Filings. The Company shall prepare and timely file
any filings required to be made with any Governmental Authority that relate to
the Company generally and not just to the Reinsured Contracts, including
filings with guaranty associations and filings and premium tax returns with
taxing authorities. The Administrator
shall, in a timely fashion in light of the dates such filings by the Company
are required, provide to the Company all information in the possession of the Administrator
with respect to the Reinsured Contracts that may be reasonably required for the
Company to prepare such filings and tax returns.
7.2. Annual Adjustment. The Company shall pay or provide to the
Administrator the benefit of any Post-Effective Date Assessments which have
been or can be applied to reduce the Company’s premium tax liability (“Premium
Tax Credits”). The Company shall
provide to the Administrator by March 15 of each year a statement of the amount
of
5
Premium Tax Credits for the prior calendar year and the Company will
pay or credit to the Administrator an amount equal to such Premium Tax Credits.
ARTICLE VIII
REGULATORY MATTERS AND AUDIT REPORTING
8.1. Regulatory Compliance and Reporting. The Administrator shall provide to the
Company such information with respect to the Reinsured Contracts as is required
to satisfy all current and future informational reporting, prior approval and
any other requirements imposed by any Governmental Authority. Upon the reasonable request of the Company,
the Administrator shall timely prepare such reports and summaries, including
statistical summaries, as are necessary or reasonably required to satisfy any requirements
imposed by a Governmental Authority upon the Company with respect to the
Reinsured Contracts. In addition, the
Administrator, upon the reasonable request of the Company, shall promptly
provide to the Company copies of all existing records relating to the Reinsured
Contracts (including, with respect to records maintained in machine readable
form, hard copies) that are necessary to satisfy such requirements. All copies of records furnished in the
ordinary course of business shall be furnished by the Administrator at the
Administrator’s cost. Any extraordinary
costs reasonably incurred by the Administrator in response to requests from the
Company shall be reimbursed by the Company.
Among other responsibilities:
(i) The Administrator shall promptly
prepare and furnish to Governmental Authorities all reports and related
summaries (including, without limitation, statistical summaries), certificates
of compliance and other reports required or requested by a Governmental
Authority.
(ii) The Administrator shall assist the Company
and cooperate with the Company in doing all things necessary, proper or
advisable, in the most expeditious manner practicable in connection with any
and all market conduct or other Governmental Authority examinations relating to
the Reinsured Contracts.
8.2. Reporting and Accounting. The Administrator shall assume the reporting
and accounting obligations set forth below:
(i) As soon as practicable but not more
than forty (40) days after the end of each calendar quarter that this Agreement
is in effect (or more frequently as mutually agreed by the parties), the
Administrator shall timely provide to the Company the Quarterly Reports. As soon as practicable but not more than
forty-five (45) days after the end of each calendar year that this Agreement is
in effect, the Administrator shall timely provide to the Company the Annual
Reports. In addition, as soon as
practicable but not more than forty (40) days after the end of each calendar
quarter that this Agreement is in effect (or more frequently as mutually agreed
by the parties), the Administrator shall timely provide to the Company such
other
6
reports and summaries of transactions (and, upon
request of the Company, detailed supporting records) related to the Reinsured
Contracts as may be reasonably required for use in connection with the
preparation of the Company’s statutory and GAAP financial statements, tax
returns and other required financial reports and to comply with the
requirements of the regulatory authorities having jurisdiction over the
Company. The parties shall cooperate in
good faith to establish the manner for the providing of such reports.
(ii) As soon as practicable but not more than
forty (40) days after the end of each calendar quarter that this Agreement is
in effect (or more frequently as mutually agreed by the parties), the
Administrator shall report to the Company the amount of statutory reserves that
the Company is required to maintain in connection with the Reinsured Risks with
respect to the Reinsured Contracts as of the quarter end.
(iii) The Administrator shall promptly provide
notice to the Company of any changes in the reserve methodology used by the
Administrator in calculating statutory reserves for the Reinsured Contracts.
(iv) Within forty-five (45) days after each
calendar year end (or such longer time as may be agreed by the parties) that
this Agreement is in effect, the Administrator shall provide to the Company (a)
an opinion of an actuary reasonably acceptable to the Company as to the
adequacy of statutory reserves for the Reinsured Contracts, prepared according
to accepted actuarial standards of practice, and as otherwise required for
regulatory reporting purposes and (b) an analysis which reasonably supports
such opinion.
8.3. Additional Reports and Updates. For so long as this Agreement remains in
effect, each party shall periodically furnish to the other such other reports
and information as may be reasonably required by such other party for
regulatory, tax or similar purposes and reasonably available to it.
ARTICLE IX
MISCELLANEOUS ADMINISTRATIVE SERVICES
The
Administrator shall provide such Administrative Services as are not performed
by or on behalf of the Company on the date hereof but the need for which may arise
due to changes or developments in Applicable Law.
7
ARTICLE X
BOOKS AND RECORDS
The
Administrator shall keep accurate and complete records, files and accounts of
all transactions and matters with respect to the Reinsured Contracts and the
administration thereof in accordance with Applicable Law, including New York
Regulation 152, and its record management practices in effect from time to time
for the Administrator’s insurance business not covered by this Agreement, if
any. All such records pertaining to the
Reinsured Contracts shall be the property of the Company, provided that the
Administrator shall at all times have the right to retain a copy of such books
and records. The parties to this
Agreement and their designated representatives may upon reasonable notice
inspect, at the offices of the Administrator or the Company where such records
are located, the papers and any and all other books or documents of the
Administrator or the Company reasonably relating to this Agreement, including
the Reinsured Contracts, and shall have access to appropriate employees and
representatives of the other party, in each case during normal business hours
for such period as this Agreement is in effect or for as long thereafter as any
rights or obligations of any party survives or the Administrator or the Company
reasonably need access to such records for regulatory, tax or similar purposes.
The information obtained shall be used only for purposes relating to the transactions
contemplated under this Agreement.
ARTICLE XI
COOPERATION
Each party
hereto shall cooperate fully with the other in all reasonable respects in order
to accomplish the objectives of this Agreement including making available to
each their respective officers and employees for interviews and meetings with
Governmental Authorities and furnishing any additional assistance, information
and documents as may be reasonably requested by a party from time to time.
ARTICLE XII
PRIVACY REQUIREMENTS
In providing
the Administrative Services provided for under this Agreement, and in
connection with maintaining, administering, handling and transferring the data
of the policyholders and other recipients of benefits under the Reinsured
Contracts, the Administrator shall, and shall cause its Affiliates and any
permitted Subcontractors to, comply with all confidentiality and security
obligations applicable to them in connection with the collection, use,
disclosure, maintenance and transmission of personal, private, health or
financial information about individual policyholders or benefit recipients,
including the provisions of privacy policies under which such information was
gathered, those laws currently in place and which may become effective during
the term of this Agreement, including the Gramm-Leach-Bliley Act, the Health
Insurance Portability and Accountability Act of 1996 and any other Applicable
Laws.
8
The Administrator shall entitle the Company and its agents and
representatives, the Commissioner of Health and Human Services and such other
Governmental Authorities, to the extent required by Applicable Law, to audit
the Administrator’s compliance herewith.
The Administrator shall also enable individual subjects of personally
identifiable information, upon request from such individuals, to review and
correct information maintained by the Administrator about them, and to restrict
use of such information. The
Administrator shall promptly report to the Company any violation of this
provision of which the Administrator becomes aware. Unless required by Applicable Law, the Administrator shall not
during the term of this Agreement, modify the privacy policies under which information
utilized by the Administrator in administering the Reinsured Contracts is
gathered, without the Company’s prior written consent, which consent shall not
be unreasonably withheld. The parties
agree to comply with the terms of the Business Associate Addendum attached
hereto, if applicable, or such other written agreement as may be required by
Applicable Law on the date hereof.
ARTICLE XIII
CONSIDERATION FOR ADMINISTRATIVE SERVICES
Apart from the
performance by the Company of its obligations under the Coinsurance Agreement,
there shall be no fee or other consideration due to the Administrator for
performance of the Administrative Services under this Agreement.
ARTICLE XIV
BANK ACCOUNT; USE OF COMPANY LETTERHEAD
When and on
terms reasonably requested by the Administrator, the Company shall open, modify
or close, and make available for use by the Administrator for the payment of
amounts to be paid by the Administrator hereunder one or more bank accounts of
the Company and check stock of the Company.
The Administrator shall maintain such account(s) and pay all applicable
bank fees and check stock costs. The
Company shall adopt such resolutions and execute such documents as required to
designate senior officers of the Administrator (by title) as signatories on
such account(s) and authorize the Administrator to certify to such bank(s),
from time to time, the names of such officers.
The Company shall also make available to the Administrator, at the sole
expense of the Administrator, such letterhead, printed forms and other
documents of the Company as may be reasonably required by the Administrator in
performing services hereunder. Upon
termination of this Agreement, the Administrator shall promptly return to the
Company all such unused check stock, letterhead, printed forms and other
documents held by it in connection with this Agreement as provided under this
Article XIV.
9
ARTICLE XV
INDEMNIFICATION
Any claim for
or with respect to indemnification arising out of, or relating to, this Agreement
or the Administrative Services hereunder shall be permitted under and governed
by the provisions of Article V of the Master Agreement, dated as of [ ], 2004, among General Electric
Company, General Electric Capital Corporation, GEI, Inc., GE Financial
Assurance Holdings, Inc. and Genworth Financial, Inc (the “Master Agreement”),
to the extent such provisions are applicable, as if this Agreement were a
Transaction Document under the Master Agreement.
ARTICLE XVI
DURATION; TERMINATION
16.1. Duration. This Agreement shall commence on the
Effective Date and continue with respect to each Reinsured Contract until no
further Administrative Services in respect of such Reinsured Contract is
required, unless this Agreement is earlier terminated under Section 16.2.
16.2. Termination. (a)
This Agreement is subject to immediate termination at the option of the
Company, upon written notice to the Administrator, on the occurrence of any of
the following events:
(i) A voluntary or involuntary proceeding
is commenced in any jurisdiction by or against the Administrator for the
purpose of conserving, rehabilitating or liquidating the Administrator;
(ii) There is a material breach by the
Administrator of any material term or condition of this Agreement that is not
cured by the Administrator within thirty (30) days after receipt of written
notice from the Company of such breach or act (provided that the Company shall
not have the right to terminate this Agreement (A) for so long as the
Administrator is making a good faith effort to cure such breach, not to exceed
an additional one hundred eighty (180) days or (B) during the pendency of any
dispute resolution proceedings as set forth in Article XVII regarding an
alleged material breach); or
(iii) The Administrator is unable to perform the
services required under this Agreement for a period of thirty (30) consecutive
days for any reason other than as a result of a Force Majeure, it being
understood that nothing in this Section 16.2(a)(iii) shall relieve the Administrator
from its administrative responsibilities under this Agreement. For purposes of this Agreement, “Force
Majeure” means any acts or omissions of any civil or military authority, acts
of God, acts or omissions of the Company, fires, strikes or other labor
disturbances, equipment failures, fluctuations or non-availability
10
of electrical power, heat, light, air conditioning or
telecommunications equipment, or any other act, omission or occurrence beyond the
Administrator’s reasonable control, irrespective of whether similar to the
foregoing enumerated acts, omissions or occurrences.
(b) This Agreement may
be terminated at any time upon the mutual written consent of the parties
hereto, which writing shall state the effective date of termination.
(c) In the event that
this Agreement is terminated under any of the provisions of
Section 16.2(a), the Administrator shall select a third-party
administrator to perform the services required by this Agreement. The Company shall have the right to approve
any such administrator selected by the Administrator, but such approval will
not unreasonably be withheld or delayed.
If the Administrator fails to select an administrator pursuant to this
Section 16.2(c), the Company shall select such an administrator. In either case, the Administrator shall pay
all fees and charges imposed by the selected administrator and shall bear all
transition costs associated with the transition of the performance of the
services required under this Agreement to such administrator, including the
expense of sending policyholder notices as provided in Article V.
ARTICLE XVII
DISPUTE RESOLUTION
17.1. General Provisions. (a) Any dispute, controversy or claim arising out of or
relating to this Agreement or the validity, interpretation, breach or
termination thereof (a “Dispute”), shall be resolved in accordance with the
procedures set forth in this Article XVII, which shall be the sole and
exclusive procedures for the resolution of any such Dispute unless otherwise
specified below.
(b) Commencing with the
request contemplated by Section 17.2, all communications between the
parties or their representatives in connection with the attempted resolution of
any Dispute, including any mediator’s evaluation referred to in
Section 17.3, shall be deemed to have been delivered in furtherance of a
Dispute settlement and shall be exempt from discovery and production, and shall
not be admissible in evidence for any reason (whether as an admission or otherwise),
in any arbitral or other proceeding for the resolution of the Dispute.
(c) In connection with
any Dispute, the parties expressly waive and forego any right to (i) punitive,
exemplary, statutorily-enhanced or similar damages in excess of compensatory damages
(provided that any such liability with respect to a Third Party Claim (as
defined in the Master Agreement) shall be considered direct damages), and (ii)
trial by jury.
(d) The specific
procedures set forth below, including but not limited to the time limits
referenced therein, may be modified by agreement of the parties in writing.
11
(e) All applicable
statutes of limitations and defenses based upon the passage of time shall be
tolled while the procedures specified in this Article XVII are pending. The parties will take such action, if any,
required to effectuate such tolling.
17.2. Consideration by Senior Executives. If a Dispute is not resolved in the normal
course of business at the operational level, the parties shall attempt in good
faith to resolve such Dispute by negotiation between executives who hold, at a
minimum, the office of President and CEO of the respective business entities
involved in such Dispute. Either party
may initiate the executive negotiation process by providing a written notice to
the other (the “Initial Notice”).
Fifteen (15) days after delivery of the Initial Notice, the receiving
party shall submit to the other a written response (the “Response”). The
Initial Notice and the Response shall include (i) a statement of the Dispute
and of each party’s position, and (ii) the name and title of the executive who
will represent that party and of any other person who will accompany the
executive. Such executives will meet in person or by telephone within thirty
(30) days of the date of the Initial Notice to seek a resolution of the
Dispute.
17.3. Mediation.
If a Dispute is not resolved by negotiation as provided in Section 17.2
within forty-five (45) days from the delivery of the Initial Notice, then
either party may submit the Dispute for resolution by mediation pursuant to the
CPR Institute for Dispute Resolution (the “CPR”) Model Mediation Procedure as
then in effect. The parties will select a mediator from the CPR Panels of Distinguished
Neutrals, but such mediator must have prior U.S. reinsurance experience either
as a lawyer or as a present or former officer or management employee of a
reinsurance company, but not of the Company, or the Administrator, or any of
their respective affiliates. Either
party at commencement of the mediation may ask the mediator to provide an
evaluation of the Dispute and the parties’ relative positions.
17.4. Arbitration. (a) If a Dispute is not
resolved by mediation as provided in Section 17.3 within thirty (30) days
of the selection of a mediator (unless the mediator chooses to withdraw
sooner), either party may submit the Dispute to be finally resolved by
arbitration pursuant to the CPR Rules for Non-Administered Arbitration as then
in effect (the “CPR
Arbitration Rules”). The parties consent to a single, consolidated
arbitration for all known Disputes existing at the time of the arbitration and
for which arbitration is permitted.
(b) The neutral
organization for purposes of the CPR Arbitration Rules will be the CPR. The
arbitral tribunal shall be composed of three arbitrators who are each
experienced in the U.S. reinsurance business, of whom each party shall appoint
one in accordance with the “screened” appointment procedure provided in Rule 5.4
of the CPR Arbitration Rules. The
non-party appointed arbitrator must have prior U.S. reinsurance experience as a
present or former officer or management employee of a reinsurance company, but
not of the Company, or the Administrator, or any of their respective
affiliates. The arbitration shall be
conducted in New York City. Each party
shall be permitted to present its case, witnesses and evidence, if any, in the
presence of the other party. A written transcript of the proceedings shall be
made and furnished to the parties. The arbitrators shall determine the Dispute
in accordance with the law of New York, without giving effect to any conflict
of law rules or other rules that might render such law inapplicable or
unavailable, and shall apply this Agreement according to its terms, provided
that the provisions relating to arbitration shall be governed by the Federal
Arbitration Act, 9 U.S.C. §§ 1 et seq. The arbitral tribunal shall endeavor to render its award or order
12
resulting from any arbitration within forty-five (45) days following
the termination of the arbitration proceedings.
(c) The parties agree to
be bound by any award or order resulting from any arbitration conducted
hereunder and further agree that judgment on any award or order resulting from
an arbitration conducted under this Section 17.4 may be entered and
enforced in any court having jurisdiction thereof.
(d) Except as expressly
permitted by this Agreement, no party will commence or voluntarily participate
in any court action or proceeding concerning a Dispute, except (i) for
enforcement as contemplated by Section 17.4(c) above, (ii) to restrict or
vacate an arbitral decision based on the grounds specified under applicable
law, or (iii) for interim relief as provided in paragraph (e) below. For
purposes of the foregoing the parties hereto submit to the non-exclusive
jurisdiction of the courts of the State of New York.
(e) In addition to the
authority otherwise conferred on the arbitral tribunal, the tribunal shall have
the authority to make such orders for interim relief, including injunctive
relief, as it may deem just and equitable. Notwithstanding paragraph (d) above,
each party acknowledges that in the event of any actual or threatened breach of
certain of the provisions of this Agreement, the remedy at law would not be
adequate, and therefore injunctive or other interim relief may be sought
immediately to restrain such breach. If
the tribunal shall not have been appointed, either party may seek interim
relief from a court having jurisdiction if the award to which the applicant may
be entitled may be rendered ineffectual without such interim relief. Upon
appointment of the tribunal following any grant of interim relief by a court, the
tribunal may affirm or disaffirm such relief, and the parties will seek
modification or rescission of the court action as necessary to accord with the
tribunal’s decision.
(f) Each party will
bear its own attorneys’ fees and costs incurred in connection with the
resolution of any Dispute in accordance with this Article XVII.
ARTICLE XVIII
MISCELLANEOUS PROVISIONS
18.1. Headings and Schedules. Headings used herein are not a part of this
Agreement and shall not affect the terms hereof. The attached Schedules are a part of this Agreement.
18.2. Notices. All notices, requests, demands and other communications
under this Agreement must be in writing and will be deemed to have been duly
given or made as follows: (a) if sent
by registered or certified mail in the United States return receipt requested,
upon receipt; (b) if sent by reputable overnight air courier, two business days
after mailing; (c) if sent by facsimile transmission, with a copy mailed on the
same day in the manner provided in (a) or (b) above, when transmitted and
receipt is confirmed by telephone; or (d) if otherwise actually personally
delivered, when delivered, and shall be delivered as follows:
13
If to the
Company:
GE Capital
Life Assurance Company of New York
6610 West Broad Street
Richmond, VA
23230
Facsimile: (804) 281-6165
Attention: Chief Executive Officer
With a copy
to:
GE Capital
Life Assurance Company of New York
6610 West Broad Street
Richmond, VA
23230
Facsimile: (804) 281-6005
Attention: General Counsel
If to the
Administrator:
Union Fidelity Life Insurance Company
200 North Martingale Road
Schaumburg, IL 60173-2096
Facsimile: (847) 330-3404
Attention: Chief Financial Officer
With a copy
to:
Union Fidelity
Life Insurance Company
200 North Martingale Road
Schaumburg, IL 60173-2096
Facsimile: (847) 605-3044
Attention: General Counsel
or to such
other address or to such other Person as either party may have last designated
by notice to the other party.
18.3. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors,
permitted assigns and legal representatives.
Neither this Agreement, nor any right or obligation hereunder, may be
assigned by any party without the prior written consent of the other party
hereto and without the prior written consent of the New York Insurance
Department and the Illinois Insurance Department. Any
assignment in violation of this Section 18.3 shall be void and shall have
no force and effect.
18.4. Execution in Counterpart. This Agreement may be executed by the
parties hereto in any number of counterparts, and by each of the parties hereto
in separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed to be an original, but all such counterparts shall
together constitute but one and the same instrument.
14
18.5. Safeguarding Customer Information. The Administrator shall implement and
maintain appropriate measures designed to meet the objectives of New York
Insurance Department Regulation No. 173, with respect to safeguarding the
Company’s customer information and customer information systems. The Administrator shall adjust its
information security program at the reasonable request of the Company for any
relevant changes indicated by the Company’s assessment of risk around its
customer information and customer information systems. Confirming evidence that the Administrator
has satisfied its obligations under this Agreement shall be made available,
during normal business hours, for inspection by the Company, representatives of
the Company, and any governmental agency that has regulatory authority over the
Company’s business activities.
18.6. Currency. Whenever the word “Dollars” or the “$” sign
appear in this Agreement, they shall be construed to mean United States
Dollars, and all transactions under this Agreement shall be in United States
Dollars.
18.7. Amendments. This Agreement may not be changed, altered
or modified unless the same shall be in writing executed by the Company and the
Administrator.
18.8. Governing Law. This Agreement will be construed, performed and enforced in
accordance with the laws of the State of New York without giving effect to its
principles or rules of conflict of laws thereof to the extent such principles
or rules would require or permit the application of the laws of another
jurisdiction.
18.9. Entire Agreement; Severability. (a)
This Agreement constitutes the entire agreement between the parties
hereto relating to the subject matter hereof and supersedes all prior and
contemporaneous agreements, understandings, statements, representations and
warranties, negotiations and discussions, whether oral or written, of the
parties and there are no general or specific warranties, representations or
other agreements by or among the parties in connection with the entering into
of this Agreement or the subject matter hereof except as specifically set forth
or contemplated herein.
(b) If any provision of
this Agreement is held to be void or unenforceable, in whole or in part,
(i) such holding or provision shall not affect the validity and
enforceability of the remainder of this Agreement, including any other
provision, paragraph or subparagraph, and (ii) the parties agree to
attempt in good faith to reform such void, unenforceable or violative provision
to the extent necessary to render such provision enforceable and to carry out
its original intent.
18.10. No Waiver; Preservation of Remedies. No consent or waiver, express or implied, by
any party to or of any breach or default by any other party in the performance
by such other party of its obligations hereunder shall be deemed or construed to
be a consent or waiver to or of any other breach or default in the performance
of obligations hereunder by such other party hereunder. Failure on the part of any party to complain
of any act or failure to act of any other party or to declare any other party
in default, irrespective of how long such failure continues, shall not
constitute a waiver by such first party of any of its rights hereunder. The rights and remedies provided are cumulative and are not
exclusive of any rights or remedies that any party may otherwise have at law or
equity.
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18.11. Third Party Beneficiary. Nothing in this Agreement will confer any
rights upon any Person that is not a party or a successor or permitted assignee
of a party to this Agreement.
18.12. Tax Exception to Any Confidentiality. Notwithstanding anything to the contrary set
forth herein or in any other agreement to which the parties hereto are parties
or by which they are bound, any obligations of confidentiality contained herein
and therein, as they relate to the transactions, shall not apply to the federal
tax structure or federal tax treatment of the transactions, and each party
hereto (and any employee, representative, or agent of any party hereto) may disclose
to any and all persons, without limitation of any kind, the federal tax
structure and federal tax treatment of the transactions. The preceding sentence is intended to cause
the transactions to be treated as not having been offered under conditions of confidentiality
for purposes of Section 1.6011-4(b)(3) (or any successor provision) of the
Treasury Regulations promulgated under Section 6011 of the Internal Revenue
Code of 1986, as amended, and shall be construed in a manner consistent with
such purpose. In addition, each party
hereto acknowledges that it has no proprietary or exclusive rights to the
federal tax structure of the transactions or any federal tax matter or federal
tax idea related to the transactions.
18.13. Interpretation. Wherever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed to be followed by
the words “without limitation.”
18.14. Survival. Article XVII and Article XVIII shall survive the termination of
this Agreement.
18.15. Licensing. At all times during the term of this
Agreement, the Administrator shall maintain in full force and effect all
licenses required to be maintained by it under Applicable Law with respect to
this Agreement, including, if applicable, an independent claims adjuster
license.
16
IN WITNESS
WHEREOF, the Company and the Administrator have executed this Agreement as of
the date first above written.
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GE CAPITAL
LIFE ASSURANCE COMPANY
OF NEW YORK
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By:
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Name:
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Title:
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UNION
FIDELITY LIFE INSURANCE
COMPANY
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By:
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Name:
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Title:
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17
BUSINESS
ASSOCIATE ADDENDUM
I. Purpose.
In order to
disclose certain information to the party providing a service under this
Agreement (“Provider”) under this Addendum, some of which may constitute
Protected Health Information (defined below), the party to whom a service under
this Agreement is being provided (“Recipient”) and Provider mutually agree to
comply with the terms of this Addendum for the purpose of satisfying the
requirements of the Health Insurance Portability and Accountability Act of 1996
(“HIPAA”) and its implementing privacy regulations at 45 C.F.R. Parts 160-164
(“HIPAA Privacy Rule”). These
provisions shall apply to Provider to the extent that Provider is considered a
“Business Associate” under the HIPAA Privacy Rule and all references in this
section to Business Associates shall refer to Provider. Capitalized terms not otherwise defined
herein shall have the meaning assigned in the Agreement. Notwithstanding anything else to the
contrary in the Agreement, in the event of a conflict between this Addendum and
the Agreement, the terms of this Addendum shall prevail.
II. Permitted Uses and Disclosures.
A. Business Associate agrees to use or disclose Protected Health
Information (“PHI”) that it creates for or receives from Recipient or its
Subsidiaries only as follows. The
capitalized term “Protected Health Information or PHI” has the meaning set
forth in 45 Code of Federal Regulations Section 164.501, as amended from time
to time. Generally, this term means
individually identifiable health information including, without limitation, all
information, data and materials, including without limitation, demographic,
medical and financial information, that relates to the past, present, or future
physical or mental health or condition of an individual; the provision of
health care to an individual; or the past present, or future payment for the
provision of health care to an individual; and that identifies the individual
or with respect to which there is a reasonable basis to believe the information
can be used to identify the individual.
This definition shall include any demographic information concerning
members and participants in, and applicants for, Recipient’s or its
Subsidiaries’ health benefit plans. All
other terms used in this Addendum shall have the meanings set forth in the
applicable definitions under the HIPAA Privacy Rule.
B. Functions and Activities on
Company’s Behalf. Business
Associate is permitted to use and disclose PHI it creates for or receives from
Recipient or its Subsidiaries only for the purposes described in this Addendum
or the Agreement that are not inconsistent with the provisions of this
Addendum, or as required by law, or following receipt of prior written approval
from whichever of the Recipient or its Subsidiary for which the relevant PHI
was created or from which the relevant PHI was received. In addition to these specific requirements
below, Business Associate may use or disclose PHI only in a manner that would
not violate the HIPAA Privacy Rule if done by the Recipient or its
Subsidiaries.
C. Business Associate’s Operations. Business Associate is permitted by this Agreement to use PHI it
creates for or receives from Recipient or its Subsidiaries: (i) if such use is
reasonably necessary for Business Associate’s proper management and
administration; and (ii) as reasonably necessary to carry out Business Associate’s
legal responsibilities.
Business Associate is permitted to disclose PHI it
creates for or receives from Recipient or its Subsidiaries for the purposes
identified in this Section only if the following conditions are met:
(1) The disclosure is required by law; or
(2) The
disclosure is reasonably necessary to Business Associate’s proper management
and administration, and Business Associate obtains reasonable assurances in
writing from any person or organization to which Business Associate will disclose
such PHI that the person or organization will:
a. Hold such PHI as
confidential and use or further disclose it only for the purpose for which
Business Associate disclosed it to the person or organization or as required by
law; and
b. Notify Business
Associate (who will in turn promptly notify whichever of the Recipient or its
Subsidiary for which the relevant PHI was created or from which the relevant
PHI was received) of any instance of which the person or organization becomes
aware in which the confidentiality of such PHI was breached.
D. Minimum Necessary Standard. In performing the functions and activities on Recipient’s or its
Subsidiaries’ behalf pursuant to the Agreement, Business Associate agrees to
use, disclose or request only the minimum necessary PHI to accomplish the
purpose of the use, disclosure or request.
Business Associate must have in place policies and procedures that limit
the PHI disclosed to meet this minimum necessary standard.
E. Prohibition on
Unauthorized Use or Disclosure. Business Associate will
neither use nor disclose PHI it creates or receives for or from Recipient, its
Subsidiaries, or from another business associate of Recipient or its
Subsidiaries, except as permitted or required by this Addendum or the Agreement
that are not inconsistent with the provisions of this Addendum, or as required
by law, or following receipt of prior written approval from whichever of the
Recipient or its Subsidiary for which the relevant PHI was created or from
which the relevant PHI was received.
F. De-identification of
Information. Business Associate agrees neither to
de-identify PHI it creates for or receives from Recipient or its Subsidiaries
or from another business associate of Recipient or its Subsidiaries, nor use or
disclose such de-identified PHI, unless such de-identification is expressly
permitted under the terms and conditions of this Addendum or the Agreement and
related to Recipient’s or its Subsidiaries’ activities for purposes of
“treatment”, “payment” or “health care operations”, as those terms are defined
under the HIPAA Privacy Rule.
De-identification of PHI, other than as expressly permitted under the
terms and conditions of the Addendum for Business Associate to perform services
for Recipient or its Subsidiaries, is not a permitted use of PHI under this
Addendum. Business Associate further
agrees that it will not create a “Limited Data Set” as defined by the HIPAA
Privacy Rule using PHI it creates or receives, or receives from another
business associate of Recipient or its Subsidiaries, nor use or disclose such
Limited Data Set unless: (i) such creation, use or disclosure is expressly
permitted under the terms and conditions of
2
this Addendum or the Agreement that are not
inconsistent with the provisions of this Addendum; and such creation, use or
disclosure is for services provided by Business Associate that relate to
Recipient’s or its Subsidiaries’ activities for purposes of “treatment”,
“payment” or “health care operations”, as those terms are defined under the
HIPAA Privacy Rule.
G. Information Safeguards. Business
Associate will develop, document, implement, maintain and use appropriate
administrative, technical and physical safeguards to preserve the integrity and
confidentiality of and to prevent non-permitted use or disclosure of PHI
created for or received from Recipient or its Subsidiaries. These safeguards must be appropriate to the
size and complexity of Business Associate’s operations and the nature and scope
of its activities. Business Associate
agrees that these safeguards will meet any applicable requirements set forth by
the U.S. Department of Health and Human Services, including (as of the
effective date or as of the compliance date, whichever is applicable) any
requirements set forth in the final HIPAA security regulations. Business Associate agrees to mitigate, to
the extent practicable, any harmful effect that is known to Business Associate
resulting from a use or disclosure of PHI by Business Associate in violation of
the requirements of this Addendum.
III. Conducting Standard Transactions. In the course of performing services for
Recipient or its Subsidiaries, to the extent that Business Associate will
conduct Standard Transactions for or on behalf of Recipient or its
Subsidiaries, Business Associate will comply, and will require any
subcontractor or agent involved with the conduct of such Standard Transactions
to comply, with each applicable requirement of 45 C.F.R. Part 162. “Standard Transaction(s)” shall mean a
transaction that complies with the standards set forth at 45 C.F.R. parts 160
and 162. Further, Business Associate
will not enter into, or permit its subcontractors or agents to enter into, any
trading partner agreement in connection with the conduct of Standard
Transactions for or on behalf of the Recipient or its Subsidiaries that:
a. Changes the
definition, data condition, or use of a data element or segment in a Standard
Transaction;
b. Adds any data
element or segment to the maximum defined data set;
c. Uses any code or
data element that is marked “not used” in the Standard Transaction’s
implementation specification or is not in the Standard Transaction’s
implementation specification; or
d. Changes the meaning
or intent of the Standard Transaction’s implementation specification.
IV. Sub-Contractors, Agents or Other Representatives. Business Associate will require any of its subcontractors, agents
or other representatives to which Business Associate is permitted by this
Addendum or the Agreement (or is otherwise given Recipient’s or the relevant
Subsidiary’s prior written approval) to disclose any of the PHI Business
Associate creates or receives for or from Recipient or its Subsidiaries, to
provide reasonable assurances in writing that subcontractor
3
or agent will comply with the same restrictions and conditions that
apply to the Business Associate under the terms and conditions of this Addendum
with respect to such PHI.
V. Protected Health Information Access, Amendment and
Disclosure Accounting.
A. Access. Business
Associate will promptly upon Recipient’s or its Subsidiary’s request make
available to Recipient, its Subsidiary, or, at Recipient’s or such Subsidiary’s
direction, to the individual (or the individual’s personal representative) for
inspection and obtaining copies any PHI about the individual which Business
Associate created for or received from Recipient or its Subsidiary and that is
in Business Associate’s custody or control, so that Recipient or its Subsidiary
may meet its access obligations under 45 Code of Federal Regulations
§ 164.524.
B. Amendment.
Upon Recipient’s or its Subsidiary’s request Business Associate will
promptly amend or permit Recipient or its Subsidiary access to amend any
portion of the PHI which Business Associate created for or received from
Recipient or its Subsidiary, and incorporate any amendments to such PHI, so
that Recipient or its Subsidiary may meet its amendment obligations under 45
Code of Federal Regulations § 164.526.
C. Disclosure Accounting. So that Recipient or its Subsidiaries may meet their disclosure
accounting obligations under 45 Code of Federal Regulations § 164.528:
1. Disclosure Tracking.
Business Associate will record for each disclosure, not excepted from
disclosure accounting under Section V.C.2 below, that Business Associate makes
to Recipient or its Subsidiaries of PHI that Business Associate creates for or
receives from Recipient or its Subsidiaries, (i) the disclosure date, (ii) the
name and member or other policy identification number of the person about whom
the disclosure is made, (iii) the name and (if known) address of the person or
entity to whom Business Associate made the disclosure, (iv) a brief description
of the PHI disclosed, and (v) a brief statement of the purpose of the
disclosure (items i-v, collectively, the “disclosure information”). For repetitive disclosures Business
Associate makes to the same person or entity (including Recipient or its
Subsidiaries) for a single purpose, Business Associate may provide a) the
disclosure information for the first of these repetitive disclosures, (b) the
frequency, periodicity or number of these repetitive disclosures and (c) the
date of the last of these repetitive disclosures. Business Associate will make this disclosure information
available to Recipient or its Subsidiaries promptly upon Recipient’s or its
Subsidiaries’ request.
2. Exceptions from Disclosure Tracking. Business Associate need not record
disclosure information or otherwise account for disclosures of PHI that this
Addendum or Recipient or the relevant Subsidiary in writing permits or requires
(i) for the purpose of Recipient’s or its Subsidiaries’ treatment activities,
payment activities, or health care operations, (ii) to the individual who is
the subject of the PHI disclosed or to that individual’s personal
representative; (iii) to persons involved in that individual’s health care or
payment for health care; (iv) for notification for disaster relief purposes,
(v) for national security or intelligence purposes, (vi) to law enforcement
officials or correctional institutions regarding inmates; or (vii) pursuant to
an authorization; (viii) for disclosures
4
of certain PHI made as part of a Limited Data Set;
(ix) for certain incidental disclosures that may occur where reasonable
safeguards have been implemented; and (x) for disclosures prior to April 14,
2003.
3. Disclosure Tracking Time Periods. Business Associate must have available for
Recipient and its Subsidiaries the disclosure information required by this
section for the 6 years preceding Recipient’s or its Subsidiaries’ request for
the disclosure information (except Business Associate need have no disclosure
information for disclosures occurring before April 14, 2003).
VI. Additional Business Associate
Provisions
A. Reporting of Breach of Privacy
Obligations. Business Associate
will provide written notice to whichever of the Recipient or its Subsidiary for
which the relevant PHI was created or from which the relevant PHI was received
of any use or disclosure of PHI that is neither permitted by this Addendum nor
given prior written approval by Recipient or the relevant Subsidiary promptly
after Business Associate learns of such non-permitted use or disclosure. Business Associate’s report will at least:
(i) Identify
the nature of the non-permitted use or disclosure;
(ii) Identify the
PHI used or disclosed;
(iii) Identify who
made the non-permitted use or received the non-permitted disclosure;
(iv) Identify what
corrective action Business Associate took or will take to prevent further
non-permitted uses or disclosures;
(v) Identify what
Business Associate did or will do to mitigate any deleterious effect of the
non-permitted use or disclosure; and
(vi) Provide such
other information, including a written report, as Recipient or the relevant
Subsidiary may reasonably request.
B. Amendment.
Upon the effective date of any final regulation or amendment to
final regulations promulgated by the U.S. Department of Health and Human
Services with respect to PHI, including, but not limited to the HIPAA privacy
and security regulations, this Addendum and the Agreement will automatically be
amended so that the obligations they impose on Business Associate remain in
compliance with these regulations.
In addition,
to the extent that new state or federal law requires changes to Business
Associate’s obligations under this Addendum, this Addendum shall automatically
be amended to include such additional obligations, upon notice by Recipient or
its Subsidiaries to Business Associate of such obligations. Business Associate’s continued performance
of services under the Agreement shall be deemed acceptance of these additional
obligations.
5
C. Audit and Review of
Policies and Procedures. Business Associate agrees to provide,
upon Recipient request, access to and copies of any policies and procedures
developed or utilized by Business Associate regarding the protection of
PHI. Business Associate agrees to
provide, upon Recipient’s request, access to Business Associate’s internal
practices, books, and records, as they relate to Business Associate’s services,
duties and obligations set forth in this Addendum and the Agreement(s) under
which Business Associate provides services and / or products to or on behalf of
Recipient or its Subsidiaries, for purposes of Recipient’s or its Subsidiaries’
review of such internal practices, books, and records.
6
SCHEDULE C
CEDING COMMISSION
The Ceding
Commission shall be the sum of the following:
1. an amount equal
to the excess of the Total SAP Ceded Reserves over Total GAAP Ceded Reserves
measured as of the close of business on the day immediately preceding the
Inception Date (which amount may be negative);
2. an amount equal
to the unamortized PVFP intangible asset balance of the Company (excluding any
related mark to market adjustments for SFAS 115 requirement) with respect to
the Reinsured Contracts as measured as of the close of business on the day
immediately preceding the Inception Date, determined in accordance with GAAP;
3. an amount equal
to the unamortized deferred acquisition costs of the Company (excluding any
related mark to market adjustments for SFAS 115 requirement) with respect to
the Reinsured Contracts as measured as of the close of business on the day
immediately preceding the Inception Date, determined in accordance with GAAP;
and
4. an amount equal
to the excess of the GAAP book value of the Assets (excluding any related mark
to market adjustments for SFAS 115 requirement) over the SAP book value of the
Assets measured as of the close of business on the day immediately preceding
the Inception Date (which amount may be negative).
SCHEDULE
D
ASSETS
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Transfer Document
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From
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To
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Nature of
Transfer
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Cash Map
Cross-Reference
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Schedule
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GECLANY SS Coinsurance
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GECLANY
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UFLIC
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Treaty
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(87
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Schedule D
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Called Securities*
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Parent
Name
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Issuer
Name
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1Q04 Cusip
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1Q04 Tax
lot
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12/31/03
Local Par
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12/31/03
GAAP BV (incl attached derivative)
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12/31/03
Accrued Interest
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12/31/03
GAAP BV + Accrued Interest
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12/31/03
STAT BV (incl attached derivative)
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12/31/03
Accrued Interest
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12/31/03 STAT BV + Accrued Interest
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[Individual Asset
Details Omitted]
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Asset Sub Total
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372,765,989.34
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6,381,126.81
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379,147,116.15
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372,753,784.91
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6,381,126.81
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379,134,911.72
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Cash
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20,269.30
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20,269.30
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Total
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372,774,054.21
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379,155,181.02
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* These Securities
will not be transferred. The “Call Amount” will be settled in cash
SCHEDULE E
EXPENSE
ALLOWANCES
The “Annual
Expense Reimbursement Factor” used to calculate the Expense Allowance is as
follows:
Policy
Maintenance Factor $23.84
per Policy
Such Annual
Expense Reimbursement Factor will be adjusted (i) for the year beginning
January 1, 2005 and, thereafter, every three (3) years during the term of
this Agreement based on a triennial cost/time study prepared in accordance with
the methodology set forth below (the “Triennial Study”) and (ii) for the years
between the Triennial Studies based on a report setting forth the Annual
Expense Reimbursement Factor prepared in accordance with the methodology set
forth below (the “Annual Expense Reimbursement Factor Report”).
(a) Triennial Study. As soon as practicable (and in any event
within sixty (60) days) prior to January 1, 2005 and prior to the beginning of
every third calendar year thereafter during the term of this Agreement, the
Company shall cause to be prepared and delivered to the Reinsurer the Triennial
Study which sets forth the Annual Expense Reimbursement Factor for the next
calendar year, together with all supporting data used in preparing the Triennial
Study and work papers, in reasonable detail, setting forth the determination of
such Annual Expense Reimbursement Factors based on such Triennial Study (such
documents, together with the Triennial Study, the “Triennial Study Documents”).
(b) Annual Expense Reimbursement
Factor Report. As soon as
practicable (and in any event within thirty (30) days) prior to January 1, 2006
and prior to the beginning of each calendar year thereafter in which no
Triennial Study is prepared, the Company shall cause to be prepared and
delivered to the Reinsurer the Annual Expense Reimbursement Factor Report,
together with all supporting data used in preparing the Annual Expense
Reimbursement Factor Report and work papers, in reasonable detail, setting
forth the determination of such Annual Expense Reimbursement Factor for the
next calendar year (such documents, together with the Annual Expense
Reimbursement Factor Report, the “Annual Expense Reimbursement Factor
Documents”).
(c) Methodology. At the time of the Triennial Study,
historical costs (to include costs directly related to maintaining and
administering policies, processing claims and reporting results) will be
determined for the Policy Maintenance Factor identified above. For a given Annual Expense Reimbursement
Factor the identified costs will be divided by the total historical number of
units of measure for both the Reinsured Contracts and the retained block of
business to derive an historical cost per unit. The historical cost per unit will be used as a prospective cost
per unit for the next calendar year.
For the two
succeeding years in the period between the Triennial Studies the historical
dollar amounts by Policy Maintenance Factor will be adjusted (rolled forward)
for current year cost changes agreed to by the Reinsurer and the Company (in
accordance with the procedures set forth below). This rolled forward historical
cost will then be divided by the total historical number of units for
the current period to determine a prospective cost per unit for the next
calendar year.
An additional
adjustment, positive or negative, to the prospective cost per unit determined
by either the Triennial Study or the two succeeding years may be negotiated
between the parties. The additional
adjustment is for special projected costs or benefits of productivity, process
improvements, inflation, loss of scale, and any other cost variation which was
not included in the prior Triennial Study or the succeeding roll forward.
The combined
prospective unit cost and additional adjustment is the Annual Expense
Reimbursement Factor. The Expense
Allowance will be determined quarterly and billed to the Reinsurer in three
equal installments during the quarter at the end of the month. Each installment will be determined by multiplying
the actual number of units at the beginning of the quarter covered by this
Agreement times the Annual Expense Reimbursement Factor (divided by twelve).
(d) Review of Documents. Following the delivery of the Annual Expense
Reimbursement Factor Documents or the Triennial Study Documents, as applicable,
the Company shall (i) provide to the Reinsurer or its designated representative
copies of such additional work papers and other documents relating to its
preparation of the Annual Expense Reimbursement Factor Report or Triennial
Study, as applicable, as the Reinsurer or its designated representative may
reasonably request, including, without limitation, claims files and practices
and (ii) cooperate with, and make its personnel and facilities reasonably
available to, the Reinsurer and the Reinsurer’s designated representative for
the purpose of providing such other information as the Reinsurer or the
Reinsurer’s designated representative may reasonably request concerning Annual
Expense Reimbursement Factor Documents or the Triennial Study Documents, as
applicable, and the calculation of the Annual Expense Reimbursement Factor.
(e) Notice of Disagreement. In the event that the Reinsurer has any
disagreement with any of the Annual Expense Reimbursement Factor Documents or
the Triennial Study Documents, as applicable, the Reinsurer shall give written
notice of all such disagreements (a “Notice of Disagreement”) to the Company
within thirty (30) days after the Annual Expense Reimbursement Factor Documents
or the Triennial Study Documents, as applicable, are delivered to the
Reinsurer. Any Notice of Disagreement
shall set forth each item in disagreement and shall provide reasonable
specificity as to the basis for each disagreement and shall specify the total
adjustment to the Annual Expense Reimbursement Factor, as proposed by the
Company as a result of such items in disagreement.
(f) Dispute Resolution. If the Reinsurer does not deliver a Notice
of Disagreement to the Company within such thirty (30) day period, the Annual
Expense Reimbursement Factor Documents and the Triennial Study Documents, as
applicable, shall be final and binding upon the parties hereto and shall
constitute the final calculation of the Annual Expense Reimbursement Factor for
the next calendar year. If the
Reinsurer delivers a Notice of Disagreement to the Company within such thirty
(30) day period, the parties shall (and shall cause their respective designated
representatives to) negotiate in good faith to resolve all disagreements as
promptly as practicable. Any changes in
the Annual Expense Reimbursement Factor, if any, that are agreed to by the
Company and the Reinsurer within sixty (60) days of the
aforementioned delivery of the Annual Expense Reimbursement Factor
Documents or the Triennial Study Documents, as applicable, shall be
incorporated into a final calculation of the Annual Expense Reimbursement
Factor. If the parties and their
respective designated representatives are unable to resolve all disagreements
within sixty (60) days of delivery of the Annual Expense Reimbursement Factor
Documents or the Triennial Study Documents, as applicable, then all unresolved
disagreements will be submitted within ten (10) days after the end of such
sixty (60) day period for resolution in accordance herewith to an independent
certified public accounting firm of national standing and reputation (the
“Accounting Firm”) mutually acceptable to the Company and the Reinsurer. The parties shall cooperate in good faith
with the Accounting Firm and shall give the Accounting Firm access to all data
and other information requested by the Accounting Firm for purposes of such
resolution. The Accounting Firm shall,
within thirty (30) days after its engagement, deliver to the Company and the
Reinsurer a definitive calculation of the Annual Expense Reimbursement Factor,
which shall be final and binding upon the parties hereto and shall be so
reflected in the calculation of the Annual Expense Reimbursement Factor. The Company and the Reinsurer shall each pay
one-half of the fees and expenses of the Accounting Firm.
(g) Expense Allowance Pending
Resolution. In the event of a
dispute with respect to any Annual Expense Reimbursement Factor for the next
succeeding Calendar year, the Company and the Reinsurer agree that the Annual
Expense Reimbursement Factor then in effect under this Agreement shall remain
in effect pending resolution of such dispute and adjustment, if any, in
accordance with the dispute resolution procedure set forth in paragraph (f) above.
SCHEDULE F – PART I
INITIAL REPORT
|
1.
|
Total SAP Ceded Reserves
Gross Policy Reserves calculated in accordance with SAP with respect to the
reinsured risks.
|
|
|
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$
|
|
|
|
|
|
|
|
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2.
|
Ceding Commission:
|
|
|
|
|
|
|
|
A.Excess SAP Ceded Reserves over GAAP Ceded Reserves:
|
|
|
|
|
|
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|
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|
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1) Total
SAP Ceded Reserves
|
|
$
|
|
|
|
|
|
2) Total
GAAP Ceded Reserves:
|
|
|
|
|
|
|
Gross Policy
Reserves calculated in accordance with GAAP with respect to the reinsured
risks.
|
|
$
|
|
|
|
|
|
Excess SAP
Reserves over GAAP Reserves (A1-A2)
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
B.Present Value of Future Profits (PVFP)
|
|
|
|
$
|
|
|
|
|
C.Deferred Acquisition Costs (DAC)
|
|
|
|
$
|
|
|
|
|
D.Asset Book Value Difference -Measured as of close
of business the day preceding the Inception Date
|
|
|
|
|
|
|
|
1) Asset Book Value (GAAP basis)
|
|
$
|
|
|
|
|
|
|
2) Asset Book Value (SAP basis)
|
|
$
|
|
|
|
|
|
Excess Asset
Book Value (D1-D2)
|
|
|
|
$
|
|
|
|
Total Ceding
Commission (A+B+C+D)
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
3.
|
Accrued Interest on Assets as of the day before
Inception Date
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
4.
|
Investment Cash Flows on the Assets from the Inception
Date through the Closing Date
|
|
|
|
$
|
|
|
|
Net Due
Reinsurer (1-2-3+4)
|
|
|
|
$
|
|
|
|
|
|
|
|
|
|
|
|
|
SCHEDULE F – PART II
QUARTERLY REPORT
|
1. Benefits
|
|
$
|
|
|
|
|
|
|
2. Withdrawals from Claims
Settlement Account
|
|
$
|
|
|
|
|
|
|
3. Expense Allowance
|
|
$
|
|
|
|
|
|
|
|
I.
|
Quarterly Settlement Amount (-1+2-3)
|
|
$
|
|
|
|
|
Net Due to (from) Reinsurer
|
|
$
|
|
SCHEDULE F – PART III
ANNUAL REPORT
|
1. Benefits
|
|
$
|
|
|
|
|
|
|
2. Withdrawals
from Claims Settlement Account
|
|
$
|
|
|
|
|
|
|
3. Expense
Allowance
|
|
$
|
|
|
|
|
|
|
|
I.
|
Quarterly Settlement Amount (-1+2-3)
|
|
$
|
|
|
|
|
Net Due to (from) Reinsurer (I-II)
|
|
$
|
|
SCHEDULE G
FORM OF TRUST AGREEMENT
SCHEDULE H
ELIGIBLE SECURITIES
Assets of the
types for which an Illinois-domiciled life insurance company could obtain full
statutory reserve credit under statutory accounting practices prescribed or
permitted by the Director of Insurance of the State of Illinois.