Exhibit (7)
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INDEMNITY REINSURANCE AGREEMENT
between
ALLSTATE LIFE INSURANCE COMPANY
and
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Dated as of June 1, 2006
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS.................................................. 1
ARTICLE II COVERAGE..................................................... 1
ARTICLE III ADMINISTRATION; GENERAL...................................... 2
ARTICLE IV GENERAL ACCOUNT ASSET TRANSFER; ADDITIONAL CONSIDERATION..... 4
ARTICLE V DURATION AND TERMINATION..................................... 5
ARTICLE VI INSOLVENCY................................................... 5
ARTICLE VII CREDIT FOR REINSURANCE....................................... 6
ARTICLE VIII DAC TAXES.................................................... 8
ARTICLE IX ARBITRATION.................................................. 9
ARTICLE X GENERAL PROVISIONS........................................... 10
SCHEDULES
SCHEDULE A - SEPARATE ACCOUNTS............................................ S-A
SCHEDULE B - REINSURED SEPARATE ACCOUNTS.................................. S-B
(i)
INDEMNITY REINSURANCE AGREEMENT
This Indemnity Reinsurance Agreement, dated as of June 1, 2006 (this
"Agreement"), is made and entered into by and between Allstate Life Insurance
Company, an Illinois domiciled stock life insurance company (the "Company"),
and The Prudential Insurance Company of America, a New Jersey life insurance
company, the "Reinsurer").
The Company, Allstate Life Insurance Company of New York, a New York
domiciled stock life insurance company, The Allstate Corporation, a Delaware
corporation, the Reinsurer and Prudential Financial, Inc., a New Jersey
corporation have entered into a Master Transaction Agreement dated as of
March 8, 2006 (the "Master Agreement"), which provides for, among other things,
the Company and the Reinsurer to enter into this Agreement.
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 and modified 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, cedent, Contractholder, claimant or
beneficiary under any annuity contract or agreement of assumed reinsurance
reinsured hereunder. Capitalized terms used herein and not defined herein,
unless otherwise indicated, have the respective meanings assigned to them in
the Master Agreement.
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. As used in this Agreement, the following terms
shall have the following meanings:
"Agreement" shall have the meaning specified in the Preamble.
"XXXX Administrative Services Agreement" means the Administrative Services
Agreement entered into between the Company and the Reinsurer as of the date
hereof.
"XXXX Contracts" means the VA Contracts issued by the Company.
"XXXX Separate Accounts" means the separate accounts of the Company
described on Schedule A.
"Company" shall have the meaning specified in the Preamble.
"Contractholder" means the holder of any XXXX Contract.
"Director" means the Director of Insurance of the State of Illinois.
"Inception Date" shall have the meaning specified in Section 2.1.
"Initial Reinsurance Premium" shall have the meaning specified in
Section 4.1.
"Master Agreement" shall have the meaning specified in the Preamble.
"Non-Guaranteed Elements" shall have the meaning specified in Section 3.2.
"Reinsured Contracts" means, collectively, the CG Life VA Contracts, the AML
VA Contracts and the Lincoln VA Contracts, with the corresponding separate
accounts set forth on Schedule B.
"Reinsured Risks" shall have the meaning specified in Section 2.1.
"Reinsurer" shall have the meaning specified in the Preamble.
"SAP" means statutory accounting practices prescribed or permitted by the
Director.
"Separate Account Charges" shall have the meaning specified in Section 4.2.
"Transition Services Agreement" means the Transition Services Agreement
entered into between the Company and the Reinsurer as of the date hereof.
ARTICLE II
COVERAGE
Section 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 June 1,
2006 (the "Inception Date"), the Company hereby cedes to the Reinsurer, and the
Reinsurer hereby agrees to indemnify the Company (i) on a coinsurance basis,
for one hundred percent (100%) of the General Account Liabilities of the
Company, the General Account Reinsured Liabilities and the Purchaser Extra
Contractual Obligations with respect to the Company and (ii) on a modified
coinsurance basis, for one hundred percent (100%) of the Separate Account
Liabilities of the Company and the Separate Account Reinsured Liabilities, in
each case, payable by the Company on or after the Inception Date (the
"Reinsured Risks").
Section 2.2. Conditions. (a) The Company, on its own initiative, shall not
change the terms and conditions of any XXXX Contract or consent to or cause any
change to the terms and conditions of any Reinsured Contract. If the Company's
liability under any of the XXXX Contracts is changed because of changes made on
or after the Inception Date in the terms and conditions of the XXXX Contracts
(including to any contract riders or endorsements thereto) that are required
due to changes in Applicable Law or, if the Company's liability with respect to
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any of the Reinsured Contracts (including to any contract riders or
endorsements thereto) is changed because of any changes made to the Reinsured
Contracts that are initiated by the policy issuing company and that do not
require the consent of the Company, 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. With respect to any change required by reason of the
requirement of any Governmental Entity or otherwise required by Applicable Law,
the Company shall, to the extent practicable, prior to the effectiveness of any
such change, promptly notify the Reinsurer of such proposed change and afford
the Reinsurer the opportunity, to the extent practicable, to object to such
change under applicable administrative procedures (both formal and informal).
(b) Except as otherwise set forth or contemplated herein, including in
paragraph (a) above, no changes, amendments or modifications made on or after
the Inception Date of the terms and conditions of the XXXX Contracts or the
Reinsured Contracts (including to any contract riders or endorsements thereto)
which adversely affect the liability of the Reinsurer hereunder shall be
covered hereunder unless made by the Reinsurer pursuant to the XXXX
Administrative Services Agreement or made or consented to by the Company with
the prior written approval of the Reinsurer. In the event that any such
changes, amendments or modifications are made or consented to in any XXXX
Contract or Reinsured Contract by the Company without the prior written
approval of the Reinsurer, this Agreement will cover Reinsured Risks incurred
by the Company under such XXXX Contract or Reinsured Contract as if the
non-approved changes, amendments or modifications had not been made.
Section 2.3. Territory. The territorial limits of this Agreement shall be
identical with those of the XXXX Contracts and the Reinsured Contracts.
ARTICLE III
ADMINISTRATION; GENERAL
Section 3.1. Contract Administration. Subject to the terms of the Transition
Services Agreement, the Reinsurer shall administer the XXXX Contracts and the
XXXX Separate Accounts directly on behalf of XXXX and shall administer the
Reinsured Contracts, the CG Life Separate Accounts, the AML Separate Accounts
and the Lincoln Separate Accounts as a sub-contractor of XXXX, in each instance
pursuant to the XXXX Administrative Services Agreement.
Section 3.2. Non-Guaranteed Elements. The Company shall set all charges and
interest rates to be credited on the XXXX Contracts and other non-guaranteed
elements of the XXXX Contracts ("Non-Guaranteed Elements") from and after the
Inception Date taking into account the recommendations of the Reinsurer. The
Company agrees that with respect to the Reinsured Contracts, it shall convey to
the appropriate parties under the Assumed Reinsurance Agreements or the Assumed
Liabilities Services Agreements, as applicable, the recommendations of the
Reinsurer with respect to Non-Guaranteed Elements as if such recommendations
were the Company's own.
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Section 3.3. Policy Exchanges, Replacements or Surrenders. Unless otherwise
agreed by the parties to this Agreement, the Company will not institute,
promote, or encourage any exchange, replacement or surrender program with
respect to the XXXX Contracts or with respect to the Reinsured Contracts.
Section 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 3.4 shall not be construed as a waiver by
either party of its right to enforce strictly the terms of this Agreement.
Section 3.5. Age, Sex and Other Adjustments. If the Company's liability
under any of the XXXX Contracts or 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 reinsurance share hereunder and the
Company and the Reinsurer will make all appropriate adjustments to amounts due
each other under this Agreement. The foregoing shall not affect the rights or
obligations of the parties or their respective Affiliates under the Master
Agreement or any other Ancillary Agreement.
Section 3.6. Set-off. 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
set off 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. For the
avoidance of doubt, no such set-off shall affect the rights or obligations of
the parties or their respective Affiliates under the terms of the Master
Agreement or any other Ancillary Agreement.
Section 3.7. Defenses. The Reinsurer accepts, reinsures and assumes the
Reinsured Risks subject to any and all defenses, setoffs and counterclaims to
which the Company would be entitled with respect to the Reinsured Risks, it
being expressly understood and agreed to by the parties hereto that no such
defenses, setoffs, or counterclaims are or shall be waived by the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby and that the Reinsurer is and shall be fully subrogated in and to all
such defenses, setoffs and counterclaims.
Section 3.8. Guaranty Fund Assessments and Premium Taxes. The Company and
the Reinsurer shall settle amounts due with regards guaranty fund assessments,
premium taxes and premium tax credits included in the General Account
Liabilities in accordance with the terms of the XXXX Administrative Services
Agreement.
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ARTICLE IV
GENERAL ACCOUNT ASSET TRANSFER; ADDITIONAL CONSIDERATION
Section 4.1. Initial Reinsurance Premium. As consideration for the
reinsurance by the Reinsurer of the General Account Liabilities of the Company
and the General Account Reinsured Liabilities under this Agreement, on the
Closing Date, the Reinsurer shall be entitled to an amount equal to one hundred
percent (100%) of the General Account Reserves of the Company as of the
Inception Date, less an amount equal to the Contract Loans as of the Inception
Date (the "Initial Reinsurance Premium"), as determined and adjusted in
accordance with Section 2.03 of the Master Agreement.
Section 4.2. Ceding Commission. On the Closing Date, as provided for in the
Master Agreement, the Reinsurer shall pay to the Company a ceding commission
equal to its share of the Adjusted Ceding Commission, determined and adjusted
in accordance with Section 2.01 of the Master Agreement.
Section 4.3. Additional Consideration. As additional consideration for the
Reinsurer entering into this Agreement, the Reinsurer shall be entitled to one
hundred percent (100%) of all deposits, premiums, Contract Loan repayments and
other considerations or payments with respect to the General Account
Liabilities of the Company and the General Account Reinsured Liabilities, to
the extent such amounts are either received or receivable on or after the
Inception Date by the Company or the Reinsurer or released from the Company's
suspense account on or after the Inception Date, including all amounts with
respect thereto actually paid or payable to the Company (or to the Reinsurer as
administrator) under the Assumed Reinsurance Agreements and all amounts
recovered or recoverable under the Ceded Reinsurance Agreements. In addition,
with respect to the Separate Account Liabilities of the Company and the
Separate Account Reinsured Liabilities, the Reinsurer shall be entitled to one
hundred percent (100%) of (i) all mortality and expense risk charges,
administrative expense charges, rider charges, contract maintenance charges,
back-end sales loads and other considerations billed separately for the XXXX
Contracts collected or collectible by the Company on or after the Inception
Date, and any other charges, fees and similar amounts received or receivable by
the Company from the XXXX Separate Account on or after the Inception Date
(collectively, the "Separate Account Charges") and (ii) all amounts paid or
payable to the Company (or to the Reinsurer as administrator) under the Assumed
Reinsurance Agreements or the Assumed Liabilities Services Agreement with
respect to the CG Life Separate Accounts, the AML Separate Accounts and the
Lincoln Separate Accounts. For the avoidance of doubt, the Separate Account
Charges shall include any revenue sharing fees, service fees and distribution
fees received or receivable from Funds pursuant to a plan adopted pursuant to
Rule 12b-1 under the Investment Company Act of 1940, as amended. For the
avoidance of doubt, the Company does not guarantee the collectibility of any
such amounts receivable or payable hereunder and the Reinsurer assumes all risk
of non-collectibility.
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ARTICLE V
DURATION AND TERMINATION
Section 5.1. Duration. Except as otherwise provided herein, this Agreement
shall be unlimited in duration.
Section 5.2. 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 thereto have been 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.
Section 5.3. Termination or Recapture. In the event of a termination or
recapture of liabilities pursuant to the terms of any Assumed Reinsurance
Agreement, upon notice from the Company, the Reinsurer shall comply with all
provisions of such Assumed Reinsurance Agreement on behalf of the Company,
including making all payments required to be made by the Company thereunder,
and shall be entitled to all amounts payable to the Company thereunder.
ARTICLE VI
INSOLVENCY
Section 6.1. 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 an
XXXX Contract or an Assumed Reinsurance Agreement 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.
Section 6.2. Expenses. It is further understood that any expense thus
incurred by the Reinsurer pursuant to Section 6.1 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.
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ARTICLE VII
CREDIT FOR REINSURANCE
Section 7.1. Trigger Events. (a) If, at any time, the Reinsurer (i) is not
authorized or accredited in the State of Illinois, (ii) fails to maintain Total
Adjusted Capital of at least 200% of the Company Action Level RBC as such terms
are defined in the Insurance Law of the State of New Jersey or (iii) the claims
paying rating of the Reinsurer assigned by A.M. Best's (including any successor
thereto) is lowered to A- or below or withdrawn, the Reinsurer shall provide a
letter of credit, with the Company as the sole beneficiary, in accordance with
the following provisions of this Article VII or other security arrangement
qualifying under Section 1104.60 of the Illinois Administrative Code, at the
direction of the Reinsurer.
(b) The Reinsurer hereby agrees to provide to the Company (i) within 60 days
after the end of each calendar quarter that this Agreement is in effect, a
certificate, signed by the Reinsurer's treasurer, stating whether the
Reinsurer's Total Adjusted Capital as of the end of such calendar quarter is at
least 200% of the Company Action Level RBC and (ii) within 60 days after the
end of each calendar year, at the request of the Company, the Reinsurer shall
provide to the Company such supporting work papers as the Reinsurer may have
available to support such calculation.
Section 7.2. Letter of Credit Provisions. In the event pursuant to
Section 7.1, the Reinsurer is required to provide a letter of credit, the
Reinsurer shall maintain in force a letter of credit equal to the General
Account Reserves. The letter of credit must be irrevocable, clean and
unconditional, contain an evergreen clause, as provided herein, and be issued
by a qualified United States financial institution, approved by the Company.
A qualified United States financial institution means an institution which
is:
(a) organized or licensed under the laws of the United States or any state
thereof;
(b) regulated, supervised and examined by United States federal or state
authorities having regulatory authority over banks and trust companies;
(c) designated by either the Director or the Securities Valuation Office
of the National Association of Insurance Commissioners as meeting such
standards of financial condition and standing as are considered
necessary and appropriate to regulate the quality of financial
institutions whose letters of credit will be acceptable to the
Director; and
(d) not affiliated with the Reinsurer.
In addition, the letter of credit must:
(e) contain a statement that identifies the Company as beneficiary and
includes the definition of beneficiary set forth in Section 1104.80 of
the Illinois Administrative Code;
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(f) contain a statement that it is not subject to any condition or
qualifications outside of the letter of credit;
(g) contain a statement to the effect that the obligation of the qualified
United States financial institution under the letter of credit is in
no way contingent upon reimbursement with respect thereto;
(h) contain an issue date and a date of expiration and shall stipulate
that the beneficiary need only draw a sight draft under the letter of
credit and present it to obtain funds and that no other document need
be presented;
(i) have a term of at least one (1) year and contain an evergreen clause
which prevents the expiration of the letter of credit without due
notice from the issuer and provides at least thirty (30) days written
notice to the beneficiary prior to the expiration date or nonrenewal;
(j) state whether it is subject to and governed by the laws of the State
of Illinois or the ICC Uniform Customs and Practice for Documentary
Credits (ICC Publication No. 500, May 1993);
(k) if the letter of credit is made subject to ICC Uniform Customs and
Practice for Documentary Credits (ICC Publication No. 500, May 1993),
then it shall contain a provision for an extension of time, of no less
than thirty (30) days after resumption of business, to draw against
the letter of credit in the event that one or more of the occurrences
described in Article 17 of Publication 500 occurs;
(l) be presentable at an office in the United States of a qualified United
States financial institution, approved by the Company; and
(m) conform with any other requirements of Section 1104.80 of the Illinois
Administrative Code.
The letter of credit will be increased or decreased, from time to time, as
needed to cover any changes in the General Account Reserves.
Section 7.3. Purpose of Letter of Credit. The Company agrees that the letter
of credit may be drawn upon by the Company at any time, notwithstanding any
other provisions in this Agreement, and must be utilized and applied by the
Company or any successor by operation of law of the Company, including any
liquidator, rehabilitator, receiver or conservator of the Company, without
diminution because of insolvency on the part of the Company or the Reinsurer,
for the following purposes only:
(a) to reimburse the Company for the Reinsurer's share of premiums
returned to the owners of contracts reinsured under this Agreement on
account of cancellations of such contracts;
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(b) to reimburse the Company for the Reinsurer's share of surrenders and
benefits or losses paid by the Company under the terms and provisions
of the contracts reinsured under this Agreement;
(c) to fund an account with the Company in an amount at least equal to the
deduction, for reinsurance ceded, from the Company's liabilities for
the Reinsured Risks, such amount to include, but not be limited to,
amounts for policy reserves, reserves for claims and losses incurred
(including losses incurred but not reported), loss adjustment
expenses, and unearned premium reserves; and
(d) to pay any other amounts the Company claims are due under this
Agreement.
Section 7.4. Conformity with State Law. In the event that Illinois amends
the insurance law governing letter of credit requirements for credit for
reinsurance, this Agreement shall be construed to include such amendments.
ARTICLE VIII
DAC TAXES
Section 8.1. (a) Each of the Company and Reinsurer acknowledge that it is
subject to taxation under Subchapter L of the Code and hereby makes the
election contemplated in section 1.848-2(g)(8) of the Treasury regulations
under the Code with respect to this Agreement. Each of the Company and
Reinsurer (i) agrees that such election shall be effective for the taxable year
of each party that includes the Inception Date and for all subsequent years
during which this Agreement remains in effect and (ii) warrants that it will
take no action to revoke the election.
(b) Pursuant to section 1.848-2(g)(8) of the Treasury regulations, each
party hereby agrees (i) to attach a schedule to its federal income tax return
for its first taxable year ending on or after the Inception Date that
identifies this Agreement as a reinsurance agreement for which the joint
election under section 1.848-2(g)(8) has been made, (ii) that the party with
net positive consideration (as defined in the Treasury regulations) for this
Agreement for each taxable year will capitalize specified policy acquisition
expenses with respect to the Agreement without regard to the general deductions
limitation of section 848(c)(1) of the Code, and (iii) to exchange information
pertaining to the amount of net consideration (as defined in the Treasury
regulations) under this Agreement to ensure consistency.
(c) By April 1 of each year, the Reinsurer shall submit a schedule to the
Company of its calculation of the net consideration for the preceding calendar
year. If the Company agrees with the calculation, the Company shall use this
information in determining its net consideration for such prior year. If the
Company disagrees with the calculation, the parties shall act in good faith to
resolve any differences so that consistency is maintained for tax return
reporting purposes.
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(d) By May 1 of each calendar year, the Reinsurer shall reimburse (or be
reimbursed by, as the facts may provide) the Company for DAC taxes incurred for
the previous tax year with respect to the policies after the Inception Date.
The DAC tax reimbursement shall be computed by multiplying the DAC tax factor
by the sum of (i) 100% of premiums received during the previous tax year on the
Reinsured Contracts after the Inception Date subject to section 848 of the Code
and (ii) the Company's net consideration (as defined in the Treasury
regulations) for the previous tax year under this Agreement for periods
beginning on or after the Inception Date. The "DAC tax factor" shall be 0.215%.
The Company and the Reinsurer mutually agree to prospectively adjust the DAC
tax factor to reflect any changes in the federal income tax rate applicable to
the Company or the Reinsurer, as the case may be, or changes to section 848 of
the Code or the related Treasury regulations.
ARTICLE IX
ARBITRATION
Section. 9.1 Resolution of Damages. As a condition precedent to any right
arising under this Agreement, any dispute between the Company and the Reinsurer
arising out of the provisions of this Agreement, or concerning its
interpretation or validity, whether arising before or after termination of this
Agreement, shall be submitted to arbitration pursuant to the commercial
arbitration rules of XXXX Reinsurance and Insurance Arbitration Society
("XXXXX").
Section 9.2 Composition of Panel. Unless the parties agree upon a single
arbitrator within fifteen (15) days after the receipt of notice of intention to
arbitrate, all disputes shall be submitted to an arbitration panel composed of
two arbitrators and an umpire, chosen in accordance with Sections 9.3 and 9.4.
Section 9.3 Appointment of Arbitrators. The party requesting arbitration
(hereinafter referred to as the "claimant") shall appoint an arbitrator and
give written notice thereof, by registered mail or a recognized overnight
courier to the other party (hereinafter referred to as the "respondent")
together with its notice of intention to arbitrate. Unless a single arbitrator
is agreed upon within fifteen (15) days after the receipt of the notice of
intention to arbitrate, the respondent shall, within thirty (30) days after
receiving such notice, also appoint an arbitrator and notify the claimant
thereof in a like manner. Before instituting a hearing, the two arbitrators so
appointed shall choose an impartial umpire. If, within thirty (30) days after
they are both appointed, the arbitrators fail to agree upon the appointment of
an umpire, the umpire shall be selected pursuant to the rules of XXXXX. The
arbitrators shall be present or former executives or officers of life insurance
or reinsurance companies. The arbitrators and umpire shall be disinterested
individuals and not be under the control of either party, and shall have no
financial interest in the outcome of the arbitration.
Section 9.4 Failure of a Party to Appoint Arbitrator. If the respondent
fails to appoint an arbitrator within thirty (30) days after receiving a notice
of intention to arbitrate, such arbitrator shall be selected pursuant to the
rules of XXXXX, and shall then, together with the arbitrator appointed by the
claimant, choose an umpire as provided in Section 9.3.
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Section 9.5 Choice of Forum. Any arbitration instituted pursuant to this
Article XI shall be held in New York, New York or such other place as the
parties may mutually agree.
Section 9.6 Procedure Governing Arbitration. Each party participating in the
arbitration shall have the obligation to produce those documents and as
witnesses to the arbitration those of its employees as any other participating
party reasonably requests providing always that the same witnesses and
documents be obtainable and relevant to the issues before the arbitration and
not be unduly burdensome or excessive. The parties may mutually agree as to
pre-hearing discovery prior to the arbitration hearing and in the absence of
agreement, upon the request of any party, pre-hearing discovery may be
conducted as the panel shall determine in its sole discretion to be in the
interest of fairness, full disclosure, and a prompt hearing, decision and award
by the panel. The panel shall be the final judge of the procedures of the
panel, the conduct of the arbitration of the rules of evidence, the rules of
privilege and production and of excessiveness and relevancy of any witnesses
and documents upon the petition of any participating party. To the extent
permitted by Applicable Law, the panel shall have the authority to issue
subpoenas and other orders to enforce its decisions.
Section 9.7 Arbitration Award. The arbitration panel shall render its
decision within sixty (60) days after termination of the proceeding unless the
parties consent to an extension, which decision shall be in writing, stating
the reason therefor. The decision of the majority of the panel shall be final
and binding on the parties to the proceeding except to the extent otherwise
provided in the Federal Arbitration Act. Judgment upon the award may be entered
in any court having jurisdiction pursuant to the Federal Arbitration Act.
Section 9.8 Cost of Arbitration. Unless otherwise allocated by the panel,
each party shall bear the expense of its own arbitrator and its own witnesses
and shall equally bear with the other parties the expense of the umpire and the
arbitration.
Section 9.9 Limit of Authority. It is agreed that the arbitrators shall have
no authority to impose any punitive, exemplary or consequential damage awards
on either of the parties hereto.
Section 9.10 Survival. This Article IX shall survive the termination of this
Agreement.
ARTICLE X
GENERAL PROVISIONS
Section 10.1. Headings. The headings in this Agreement are for reference
only and shall not affect the interpretation of this Agreement.
Section 10.2. Schedules. The Schedule to this Agreement that is specifically
referred to herein is a part of this Agreement as if fully set forth herein.
All references herein to
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Articles, Sections, subsections, paragraphs, subparagraphs, clauses and
Schedules shall be deemed references to such parts of this Agreement, unless
the context shall otherwise require.
Section 10.3. 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, one business day after mailing; (c) if sent
by facsimile transmission, when transmitted; or (d) if otherwise actually
personally delivered, when delivered, and shall be delivered as follows:
If to the Company:
Allstate Life Insurance Company
0000 Xxxxxxx Xxxx, Xxxxx X0X
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Treasurer
with concurrent copies to:
Allstate Insurance Company
0000 Xxxxxxx Xxxx, Xxxxx X0
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxx
and to:
LeBoeuf, Lamb, Xxxxxx & XxxXxx LLP
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx
Xxxxxx X. Xxxxxxxxx, Xx.
If to the Reinsurer:
Prudential Financial, Inc.
000 Xxxxx Xx., 0xx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
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with concurrent copies to:
Prudential Financial, Inc.
000 Xxxxx Xx., 0xx Xxxxx
Xxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
and to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
Any party may, by notice given in accordance with this Section 10.3 to the
other parties, designate another address or person for receipt of notices
hereunder provided that notice of such a change shall be effective upon receipt.
Section 10.4. Binding Effect; Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors,
permitted assigns and legal representatives. Neither this Agreement, nor any of
the rights, interests or obligations hereunder, may be assigned, in whole or in
part, by operation of law or otherwise, by any party without the prior written
consent of the other party hereto and any such assignment that is not consented
to shall be null and void.
Section 10.5. Counterparts. This Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
Section 10.6. 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.
Section 10.7. Waivers and Amendments; Non-Contractual Remedies; Preservation
of Remedies. This Agreement may be amended, superseded, canceled, renewed or
extended, and the terms hereof may be waived, only by a written instrument
signed by each of the parties or, in the case of a waiver, by the party waiving
compliance. No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any party of any right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
Section 10.8. Governing Law. This Agreement shall be construed, performed
and enforced in accordance with the laws of the State of Illinois 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.
12
Section 10.9. Entire Agreement; Severability. 5. This Agreement, the Master
Agreement and the applicable Ancillary Agreements contain the entire agreement
between the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings, written or oral, with respect thereto.
(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.
Section 10.10. 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 Entities and furnishing
any additional assistance, information and documents as may be reasonably
requested by a party from time to time.
Section 10.11. No Third Party Beneficiaries. Nothing in this Agreement is
intended or shall be construed to give any Person, other than the parties
hereto, their successors and permitted assigns, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision
contained herein.
Section 10.12. Interpretation. For purposes of this Agreement, the words
"hereof", "herein", "hereby" and other words of similar import refer to this
Agreement as a whole unless otherwise indicated. Whenever the words "include",
"includes", or "including" are used in this Agreement, they shall be deemed to
be followed by the words "without limitation". Whenever the singular is used
herein, the same shall include the plural, and whenever the plural is used
herein, the same shall include the singular, where appropriate.
Section 10.13. Survival. Articles VIII, IX and X shall survive the
termination of this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
ALLSTATE LIFE INSURANCE COMPANY
By:
-----------------------------
Name:
Title:
THE PRUDENTIAL INSURANCE COMPANY OF
AMERICA
By:
-----------------------------
Name:
Title:
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SCHEDULE A
SEPARATE ACCOUNTS
Allstate Financial Advisors Separate Account I
S-A
SCHEDULE B
REINSURED CONTRACTS SEPARATE ACCOUNTS
CG Variable Annuity Separate Account
American Maturity Life Insurance Company Separate Account AMLVA
Lincoln Benefit Life Variable Annuity Account
S-B
