AMENDED AND RESTATED COINSURANCE AGREEMENT between ATHENE LIFE INSURANCE COMPANY OF NEW YORK and FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY Dated as of July 31, 2015

Exhibit 10.9

EXECUTION VERSION

(Non-Financed NLG)

AMENDED AND RESTATED COINSURANCE AGREEMENT

between

ATHENE LIFE INSURANCE COMPANY OF NEW YORK

and

FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY

Dated as of July 31, 2015

TABLE OF CONTENTS


ARTICLE		Page

ARTICLE I DEFINITIONS AND CONSTRUCTION			2

Section 1.1	Definitions		2
Section 1.2	Construction		11

ARTICLE II COINSURANCE			12

Section 2.1	Scope and Basis of Reinsurance		12
Section 2.2	Reinsuring Clause		12
Section 2.3	Allocation of Assets and Ceding Commission		12
Section 2.4	Net Retained Liabilities		15
Section 2.5	Guaranty Fund Assessments and Premium Taxes		16
Section 2.6	Other Reinsurance		17
Section 2.7	Policy Changes and Non-Guaranteed Elements		17
Section 2.8	Premiums		18
Section 2.9	Assignment; Security Interest		18
Section 2.10	Hedging		19
Section 2.11	Existing Interest Maintenance Reserve		21
Section 2.12	New Amendment Interest Maintenance Reserve		21
Section 2.13	Retention		21
Section 2.14	Cash Flow Testing Reserves		21
Section 2.15	Funds Withheld Asset Transfer		21

ARTICLE III REINSURANCE LIABILITY			22

Section 3.1	Reinsurance Liability		22
Section 3.2	Other Reinsurance		22
Section 3.3	Disclaimer		23

ARTICLE IV CERTAIN FINANCIAL PROVISIONS			23

Section 4.1	Credit for Reinsurance		23
Section 4.2	RBC Reports		23
Section 4.3	Establishment of the Funds Withheld Account		24
Section 4.4	Provision of Security by the Reinsurer		25

ARTICLE V PLAN OF REINSURANCE			28

Section 5.1	Plan		28
Section 5.2	Follow the Fortunes		28
Section 5.3	Reductions and Terminations		28
Section 5.4	Reinstatements		28
Section 5.5	Contractual Conversions; Internal Replacement; Annuitizations		28
Section 5.6	Policy List Errors		29
Section 5.7	Renewal Commissions		30


ARTICLE VI ADMINISTRATION		30

Section 6.1	Administrative Services	30
Section 6.2	Net Settlements	30

ARTICLE VII DAC TAX		32

Section 7.1	DAC Tax Election	32

ARTICLE VIII INSOLVENCY		33

Section 8.1	Insolvency	33
Section 8.2	Expenses	33

ARTICLE IX TERMINATION		33

Section 9.1	Duration of Coinsurance	33
Section 9.2	Termination	33
Section 9.3	Termination by the Company	34
Section 9.4	Termination by the Reinsurer	34
Section 9.5	Settlement Upon Termination	34

ARTICLE X RESOLUTION OF CERTAIN DISPUTES		35

Section 10.1	Disputes over Actual Initial Coinsurance Premium Calculations and SPA Adjusted Coinsurance Premium	35
Section 10.2	Disputes over Calculations	38

ARTICLE XI INDEMNIFICATION		38

Section 11.1	Indemnification of the Reinsurer by the Company	38
Section 11.2	Indemnification of the Company by the Reinsurer	39

ARTICLE XII CONFIDENTIALITY		39

Section 12.1	Confidentiality	39

ARTICLE XIII REPRESENTATIONS AND WARRANTIES		40

Section 13.1	Representations and Warranties of Reinsurer	40
Section 13.2	Representations and Warranties of the Company	41

ARTICLE XIV GENERAL PROVISIONS		42

Section 14.1	Errors and Omissions	42
Section 14.2	Offset and Recoupment	42
Section 14.3	Expenses	42
Section 14.4	Parties to this Agreement	42
Section 14.5	Authority	43
Section 14.6	No Assignment	43
Section 14.7	Notices	43
Section 14.8	Severability	44
Section 14.9	Announcements	44


Section 14.10	Schedules, Annexes and Exhibits	45
Section 14.11	Entire Agreement	45
Section 14.12	Binding Effect	45
Section 14.13	Waiver and Amendment	45
Section 14.14	Headings	45
Section 14.15	Counterparts	45
Section 14.16	No Prejudice	45
Section 14.17	Governing Law; Jurisdiction; Enforcement	45
Section 14.18	Further Assurances	46

INDEX OF SCHEDULES


Schedule 1.1(i)		Assumed Reinsurance Agreements
Schedule 1.1(ii)		Other Reinsurance
Schedule 2.11		Existing Interest Maintenance Reserve
Schedule 2.12		New Amendment Interest Maintenance Reserve
Schedule 2.15		Amendment Date Funds Withheld Assets

INDEX OF ANNEXES


Annex A		List of Initial Reinsurance Assets
Annex B		Pre-Amendment Date Net Settlements
Annex C		List of XX Xxxxxx
Annex D		Life Reference Balance Sheet
Annex E		Policy List
Annex F		Post-Amendment Date Net Settlements

INDEX OF EXHIBITS


Exhibit I		Form of Trust Agreement

iii

AMENDED AND RESTATED FUNDS WITHHELD COINSURANCE AGREEMENT

This Amended and Restated Coinsurance Agreement (this “Agreement”), dated as of July 31, 2015, is made by and between Athene Life Insurance Company of New York, formerly known as Aviva Life and Annuity Company of New York, an insurance company organized under the laws of the State of New York (the “Company”), and First Allmerica Financial Life Insurance Company, an insurance company organized under the laws of the Commonwealth of Massachusetts (the “Reinsurer”; each of the Company and the Reinsurer, a “Party” and together, the “Parties”).

RECITALS

WHEREAS, the Company and the Reinsurer are currently party to that certain Funds Withheld Coinsurance Agreement, effective as of the Effective Date (the “Existing Funds Withheld Coinsurance Agreement”);

WHEREAS, the Company and the Reinsurer now desire that this Agreement amend and restate in its entirety the provisions of the Existing Funds Withheld Coinsurance Agreement effective as of July 31, 2015 (the “Amendment Date”);

WHEREAS, the Company desires to cede or retrocede to the Reinsurer, on the terms and conditions stated herein, all of its liabilities under certain life insurance policies issued and reinsured by it;

WHEREAS, the Reinsurer desires to reinsure such policies from the Company on the terms and conditions stated herein;

WHEREAS, the Company and the Reinsurer intend that the basis of the reinsurance shall be 100% coinsurance, on a coinsurance funds withheld basis until the Amendment Date, and on a coinsurance basis thereafter, by the Reinsurer;

WHEREAS, subject to a transition services agreement entered into on the Effective Date between Aviva USA Corporation and the Reinsurer (the “Transition Services Agreement”), the Company and the Reinsurer intend that the Reinsurer will provide certain administrative services for policies reinsured hereunder, and the Company and the Reinsurer have entered into an Administrative Services Agreement, dated as of the Effective Date (the “Administrative Services Agreement”), pursuant to which the Reinsurer shall provide such administrative services on the terms and conditions stated therein.

NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other good and valuable consideration the receipt and adequacy of which is hereby acknowledged, and intending to be legally bound hereby, the Company and the Reinsurer hereby agree as follows:

ARTICLE I

DEFINITIONS AND CONSTRUCTION

Section 1.1 Definitions. Unless the context requires otherwise, for all purposes of this Agreement, the capitalized terms set forth below shall have the following meanings:

“Action” has the meaning ascribed thereto in the Purchase Agreement.

“Actual Initial Coinsurance Premium” has the meaning ascribed thereto in Section 2.3(a)(iv).

“Additional Reserve Requirement” has the meaning ascribed thereto in Section 2.13(a).

“Administrative Services Agreement” has the meaning ascribed thereto in the Recitals.

“Administrator” means the Reinsurer in its capacity as administrator under the Administrative Services Agreement.

“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such other Person at the time at which the determination of affiliation is made. The term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as applied to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or other ownership interests, by contract or otherwise.

“Agreement” has the meaning ascribed thereto in the Recitals.

“Amendment Date” has the meaning ascribed thereto in the Recitals.

“Annuitization” has the meaning ascribed thereto in Section 5.5(c).

“Annuitization Payment” has the meaning ascribed thereto in Section 5.5(c).

“Applicable Law” means any law, statute, regulation, rule, ordinance, order, injunction, judgment, decree, principle of common law, constitution or treaty enacted, promulgated, issued, enforced or entered by any Governmental Entity applicable to a party hereto, or any of its respective businesses, properties or assets, as may be amended from time to time.

“Applicable Rate” means, with respect to any date of determination, an interest rate equal to one-month LIBOR for dollars that appears on page LIBOR 01 (or a successor page) of the Reuters Telerate Screen as of 11:00 a.m., London time, on such date.

“Assigned EI Hedge Costs Amount” shall mean, with respect to each EI Hedge, an amount equal to the gross actual direct acquisition costs paid by the Company for such EI Hedge. For the avoidance of doubt, the Assigned EI Hedge Costs Amount shall be determined without regard to any netting of amounts between the Company and the relevant Hedge Counterparty.

“Assigned EI Hedge Proceeds Amount” shall mean, with respect to each EI Hedge and for each applicable Monthly Accounting Period, an amount equal to any amounts actually received (or deemed received) by the Company from the relevant Hedge Counterparty during such Monthly Accounting Period in accordance with the provisions of such EI Hedge, including upon an early exercise of an EI Hedge by the Company. For the avoidance of doubt, the Assigned EI Hedge Proceeds Amount shall be determined without regard to any netting of amounts between the Company and the relevant Hedge Counterparty.

“Assumed Reinsurance Agreement” means any reinsurance agreement in effect as of the Effective Time under which the Company assumes liabilities or obligations with respect to any Policy, including the assumed reinsurance agreements listed on Schedule 1.1(i) hereto.

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banking institutions in Boston, Massachusetts, New York, New York or Des Moines, Iowa are required or authorized by Applicable Law to be closed.

“Code” means the Internal Revenue Code of 1986, as amended.

“Collateral” has the meaning ascribed thereto in Section 2.9(b).

“Company” has the meaning ascribed thereto in the Recitals.

“Company Indemnified Parties” has the meaning ascribed thereto in Section 11.2.

“Company Termination Payment” has the meaning ascribed thereto in Section 9.5.

“Confidential Information” means (a) with respect to the Company, any information with respect to the Company (other than information relating to the Policies) that is not generally available to the public, and includes, without limitation, policyholder lists, any medical, financial and other personal information about proposed, current, and former policyowners, insureds, applicants and beneficiaries of the Company (other than proposed, current, and former policyowners, insureds, applicants and beneficiaries of the Policies) and information or knowledge about the Company’s processes, services, finances and pricing and reserving methodology and (b) with respect to the Reinsurer, any information with respect to the Policies or the Reinsurer that is not generally available to the public, and includes, without limitation, policyholder lists, any medical, financial and other personal information about proposed, current, and former policyowners, insureds, applicants, and beneficiaries of Policies and information or knowledge about the Reinsurer’s processes, services, finances and pricing and reserving methodology.

“Consultation Period” has the meaning ascribed thereto in Section 10.1(b).

“CPA Firm” has the meaning ascribed thereto in Section 10.1(b).

“Effective Date” means October 1, 2013.

“Effective Time” means 12:00:01 a.m. Eastern time on the Effective Date.

“EI Hedge” and “XX Xxxxxx” have the meanings ascribed thereto in Section 2.10(a).

“Equity Indexed Reinsured Policies” means all indexed universal life insurance Policies included in the Reinsured Policies.

“Estimated Initial Coinsurance Premium” has the meaning ascribed thereto in Section 2.3(a)(ii).

“Excess FWA Draw Amount” has the meaning ascribed thereto in Section 4.3(d).

“Excess FWA Draw Interest Amount” has the meaning ascribed thereto in Section 4.3(d).

“Excluded Reinsured Liability” means a Loss that a Buyer Indemnified Person under the Purchase Agreement suffers that, if such Loss were suffered by a “Buyer Indemnified Person” under the SPA, would be indemnified by Aviva plc under the SPA.

“Existing Funds Withheld Coinsurance Agreement” has the meaning ascribed thereto in the Recitals.

“Existing Interest Maintenance Reserve” means the unamortized amount as determined from time to time in accordance with the amortization schedule set forth on Schedule 2.11 as revised as of the Effective Date.

“Extra Contractual Obligations” means all obligations or Losses (whether known or unknown, contingent or otherwise) incurred or arising at any time under or relating to any Policy that are not provided by the contractual benefits arising under the express terms and conditions of such Policy or are in excess of the applicable Policy benefits, including any liability for taxes, toll charges, fines, penalties, forfeitures, excess or penalty interest, punitive, special, exemplary or other form of extra-contractual damages or attorneys’ fees and costs awarded, which obligations or Losses arise from any act, error or omission, whether or not intentional, negligent, in bad faith or otherwise, including obligations or Losses arising out of or relating to: (a) the form, marketing, distribution, sale, underwriting, issuance, cancellation or administration of the Policies; (b) the investigation, defense, trial, settlement or handling of claims, benefits or payments under the Policies; (c) the failure to pay, the delay in payment of, or errors in calculating or administering the payment of, benefits, claims or any other amounts due or alleged to be due under or in connection with the Policies; (d) Premium Taxes other than those settled under Section 2.5 in connection with premiums received under the Policies; (e) the failure of any Policy to provide the purchaser, policyholder, account holder or other holder or intended beneficiaries thereof with tax treatment under the Code that is the same as or more favorable than the tax treatment under the Code (i) that was purported to apply in materials provided at the time of issuance, assumption, exchange, modification or sale of the Policy by the Company or any of its predecessors or (ii) for which policies or contracts of that type were reasonably expected to qualify under the Code; (f) the treatment of any Policy as a “modified endowment contract” within the meaning of Section 7702A of the Code, except where the holder of the Policy shall have consented to its status as a “modified endowment contract” under Section 7702A; (g) the failure of the Company to comply with any applicable tax information reporting, withholding or disclosure requirements with respect to distributions or payments made pursuant to the Policies; (h) any taxes applicable to the Reinsurance Assets (but excluding the Company’s share of any

taxes under Section 14.3); and (i) the failure to pay, the delay in payment, or errors in calculating or administering the payment of, unclaimed property, escheat or other similar liabilities related to the Policies; provided that “Extra Contractual Obligations” will not under any circumstances include (x) any such liabilities, obligations or Losses incurred or arising solely as a result of actions or omissions of the Company, but only to the extent such actions or omissions of the Company constitute gross negligence or bad faith and were not taken or omitted at the direction of the Reinsurer or consented to by the Reinsurer in writing or (y) U.S. federal or state income or capital stock or similar taxes (or any interest or penalties imposed with respect to the payment or reporting thereof) imposed upon the Company or any of its Affiliates.

“Fair Market Value” means, with respect to any asset, the fair market value thereof calculated in accordance with the accounting and actuarial practices of the Company, consistently applied.

“Funds Withheld Account” has the meaning ascribed thereto in Section 4.3(a).

“Funds Withheld Account Amount” means, as of any date of determination prior to or on the Amendment Date, an amount equal to (i) (A) the Reinsurer’s Share of the Statutory Reserves, plus (B) the Reinsurer’s Share of the Existing Interest Maintenance Reserve attributable to the Reinsured Liabilities, and, as of any date of determination after the Amendment Date but prior to or on the Hedge Termination Date, the amount of the Statutory Book Value of the XX Xxxxxx, in each case, as of such date of determination and determined in accordance with SAP, consistently applied.

“Funds Withheld Account Balance” means, as of a given date prior to or on the Amendment Date, the value of the Reinsurance Assets as reflected in the statutory books and records of the Company as of such date, and, as of a given date after the Amendment Date but prior to or on the Hedge Termination Date, the amount of the Statutory Book Value of the XX Xxxxxx, in each case, determined in accordance with SAP.

“Governmental Entity” means any foreign, federal, state, local or other governmental, legislative, judicial, administrative or regulatory authority, agency, commission, board, body, court or entity or any instrumentality thereof or any self-regulatory body or arbitral body or arbitrator.

“Governmental Order” means any order, writ, judgment, injunction, declaration, decree, stipulation, determination, award, agreement or permitted practice entered by or with any Governmental Entity.

“Hedge Counterparty” means, with respect to each EI Hedge, the counterparty of the Company with respect to such EI Hedge.

“Hedge Termination Date” means the date upon which the last EI Hedge held by the Company pursuant to Section 2.10(a)(i) matures, is terminated or is novated to the Reinsurer or a designated Affiliate of the Reinsurer pursuant to Section 2.10(a)(vi).

“Initial Cash Flow Testing Reserves” shall mean additional actuarial reserves posted by the Company in connection with the Reinsured Polices as a result of the Company’s most recent triennial exam, which the parties agree shall equal zero dollars ($0).

“Initial Coinsurance Premium” has the meaning ascribed thereto in Section 2.3(a)(i).

“Initial Coinsurance Premium Adjustment” has the meaning ascribed thereto in Section 2.3(a)(iv).

“Initial Coinsurance Premium Reconciliation Statement” has the meaning ascribed thereto in Section 2.3(a)(iv).

“Initial Reinsurance Assets” has the meaning ascribed thereto in Section 2.3(a)(i).

“Investment Income” means, with respect to any Monthly Accounting Period, (a) the book value net investment earnings of the assets held in the Funds Withheld Account calculated in accordance with SAP plus (in the case of gains) or minus (in the case of losses) all realized capital gains and losses (including other than temporary impairments) and unrealized gains and losses (but only for assets carried at the lower of cost or market in accordance with SAP whose changes in value are recorded through surplus) associated with the assets held in the Funds Withheld Account, including policy loan interest income, reflected in the Company’s statutory financial statements prepared in accordance with SAP, plus, (b) with respect to the Equity Indexed Reinsured Policies, an amount equal to (i) all realized and unrealized capital gains minus all realized and unrealized capital losses (in accordance with SAP) associated with the XX Xxxxxx minus (ii) the Assigned EI Hedge Proceeds Amounts, minus the Assigned EI Hedge Cost Amounts.

“Life Reference Balance Sheet” means the balance sheet for the Life Business (as defined in the Purchase Agreement) attached as Annex D hereto.

“Losses” means any damages, claims, losses, liabilities, charges, actions, suits, proceedings, deficiencies, taxes, fees, assessments, interest, penalties and reasonable costs and expenses (including reasonable attorneys’ fees and expenses).

“Monthly Accounting Period” means, with respect to any calendar month, the period beginning on the first day of such calendar month and ending on the last day of such calendar month.

“Net Retained Liabilities” means, with respect to any time of determination, all liabilities or obligations in respect of any Policy that, under the terms of any Other Reinsurance Agreement covering such Policy, (a) the Company is required to retain unreinsured and for its own account or (b) in the opinion of the Company and the Reinsurer, requires consent from any party to such Other Reinsurance Agreement in order to effect reinsurance under this Agreement, and as to which a waiver of such requirement or other consent has not been obtained prior to such time of determination.

“Net Retained Liabilities Adjustment Period” has the meaning ascribed thereto in Section 2.4(b)(iii).

“Net Retained Liability Reserve Transfer Amount” means, with respect to any Net Retained Liability for which subsequent to the Effective Date a waiver or consent is obtained to reinsure such Net Retained Liability under the terms of this Agreement or the Parties otherwise agree that any such waivers or consents shall not be required as a condition to coverage hereunder, the sum of (a) the gross statutory reserves (including deficiency reserves) and any additional policy-related liabilities that are required to be held by the Company with respect to such Net Retained Liability as of the Effective Date, less (b) the Reinsurer’s Share of (x) policy loan balances on such Net Retained Liability as of the Effective Date, and (y) net due and deferred Premiums on such Net Retained Liability as of the Effective Date, reduced by credit for reinsurance taken by the Company in respect of such Net Retained Liability for Other Reinsurance as of the Effective Date.

“Net Settlement” has the meaning ascribed thereto in Section 6.2(a).

“New Amendment Interest Maintenance Reserve” means the interest maintenance reserve created as of the Amendment Date as a direct result of the Funds Withheld Assets transfer pursuant to Section 2.15 equal to any net pre-tax realized capital gains on the Funds Withheld Assets multiplied by 65% and as set forth on Schedule 2.12.

“Non-Guaranteed Elements” has the meaning ascribed thereto in Section 2.7(b).

“Notice of Agreement” has the meaning ascribed thereto in Section 10.1(a).

“Other Reinsurance” means reinsurance ceded with respect to Reinsured Policies under the terms of the ceded reinsurance agreements that the Company has entered into with third parties prior to the Effective Time covering the Reinsured Policies, including the ceded reinsurance agreements listed on Schedule 1.1(ii), and any ceded reinsurance agreement entered into by the Company with the Reinsurer’s prior written consent pursuant to Section 2.6, as all such reinsurance ceded may be in force from time to time.

“Other Reinsurance Agreements” means the reinsurance treaties and agreements documenting the Other Reinsurance (including all amendments and modifications thereto entered into prior to the Effective Date or pursuant to Section 3.2).

“Other Reinsurance Benefits” means, for any period, the aggregate amount of benefits, fees, allowances and other amounts actually received by the Company for reinsurance ceded pursuant to Other Reinsurance Agreements with respect to the Reinsured Policies during such period.

“Other Reinsurance Premiums” means, for any period, the aggregate amount of premiums paid by the Company pursuant to Other Reinsurance Agreements with respect to the Reinsured Policies during such period.

“Other Transaction Agreements” means, collectively, all of the Transaction Documents other than this Agreement.

“Party” has the meaning ascribed thereto in the Recitals.

“Parties” has the meaning ascribed thereto in the Recitals.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity.

“Policies” means, collectively, the Term Policies and the UL Policies.

“Policy List” means the list of policies set forth on Annex E, together with any written update to such file provided by the Company to the Reinsurer and, with respect to policies included on any such written update, which were issued or assumed by the Company prior to January 1, 2013 only if such policies are approved in writing by the Reinsurer at least three Business Days prior to the Effective Date.

“Portfolio Yield” means a rate equal to the Yield-to-Maturity of the Barclays Long U.S. Corporate Index as of the last day of the immediately preceding Monthly Accounting Period; provided, however, if the Barclays Long U.S. Corporate Index ceases to be available, the Parties shall endeavor in good faith to agree on a mutually acceptable replacement index and, upon the mutual agreement of the Parties on a replacement index, the “Barclays Long U.S. Corporate Index” shall, for purposes of this definition, be replaced with such replacement index; provided, further, that if the Barclays Long U.S. Corporate Index ceases to be available and the Parties are unable to agree on a mutually acceptable replacement index in respect of any Monthly Accounting Period, then the “Portfolio Yield” for such Monthly Accounting Period shall be equal to 5.00% per annum.

“Premiums” means premiums and considerations due or to become due, premiums deferred and uncollected, premium adjustments and any and all amounts or payments, including any and all policy fees, charges, reimbursements and similar amounts, which are or were held, received or collected by the Company, or which are now due or will become due from any source under or in connection with the Reinsured Policies, but not including Other Reinsurance Premiums.

“Premium Taxes” has the meaning ascribed thereto in Section 2.5(b).

“Purchase Agreement” means that certain Purchase and Sale Agreement, dated as of April 30, 2013, between Athene Holding Ltd. and Commonwealth Annuity and Life Insurance Company.

“RBC Ratio” means the ratio, as of the date of determination, of the Reinsurer’s “total adjusted capital” over its “company action level risk-based capital”, as such terms are defined and prescribed by requirements promulgated by the National Association of Insurance Commissioners and regulations adopted by the insurance regulatory authorities in the Reinsurer’s state of domicile, which are in effect as of such date, calculated as of the end of each calendar quarter, and using reserving methodologies and asset classifications that are in accordance with generally accepted statutory accounting principles and practices required or permitted by the National Association of Insurance Commissioners and the insurance regulatory authority in the Reinsurer’s state of domicile, consistently applied throughout the specified period and in the immediately prior comparable period; provided, that in the event there is a

material change in the factors and formulae prescribed by the insurance regulatory authority in the Reinsurer’s state of domicile with respect to the components of and methodologies contained in such calculation, the Parties shall amend this Agreement to incorporate an alternate calculation that is reasonably equivalent to the components of and methodologies contained in the calculation of the Reinsurer’s RBC Ratio in effect as of the Effective Date within thirty (30) calendar days after the implementation of such change, and if the Parties cannot agree on any such alternative, the Reinsurer shall continue to calculate its RBC Ratio as if such material change had not occurred.

“Reinsurance Assets” has the meaning ascribed thereto in Section 4.3(a).

“Reinsured Liabilities” means all gross liabilities and obligations, net of Other Reinsurance Benefits, to the extent such liabilities and obligations arise out of or relate to the Reinsured Policies, including payments of any such liabilities or obligations to any Governmental Entity, whether for tax withholding, escheat, unclaimed property or otherwise, and Extra Contractual Obligations, but excluding (i) any liabilities or obligations arising out of or relating to the Reinsured Policies that have been incurred but not reported prior to the Effective Time, (ii) Net Retained Liabilities and (iii) those liabilities that are indemnified by Athene Holding Ltd. under Section 7.2(a)(ii) of the Purchase Agreement.

“Reinsured Policies” has the meaning ascribed thereto in Section 2.1.

“Reinsurer” has the meaning ascribed thereto in the Recitals.

“Reinsurer Indemnified Parties” has the meaning ascribed thereto in Section 11.1.

“Reinsurer’s Objection” has the meaning ascribed thereto in Section 10.1(a).

“Reinsurer’s Share” has the meaning ascribed thereto in Section 2.2.

“Reinsurer Termination Event” means any failure by the Company (or any successor by operation of law of the Company, including any receiver, liquidator, rehabilitator, conservator or similar Person of the Company) to pay any material amount of Premiums or other amounts due to the Reinsurer under this Agreement payable by the Company if such failure has not been cured within ninety (90) calendar days after receipt of written notice thereof from the Reinsurer.

“Reinsurer Termination Payment” has the meaning ascribed thereto in Section 9.5.

“Representatives” has the meaning ascribed thereto in Section 12.1.

“Required Balance” has the meaning ascribed thereto in Section 4.4(b).

“Review Period” has the meaning ascribed thereto in Section 10.1(a).

“SAP” means the statutory accounting principles and practices prescribed by the insurance regulatory authorities in the Company’s state of domicile.

“SPA” means the Stock Purchase Agreement (as amended, modified or supplemented in accordance with its terms), dated as of December 21, 2012, between Aviva plc and Athene Holding Ltd.

“SPA Adjusted Coinsurance Premium” shall have the meaning ascribed thereto in Section 2.3(a)(v).

“SPA Coinsurance Premium Reconciliation Statement” shall have the meaning ascribed thereto in Section 2.3(a)(v).

“Statutory Book Value” means the carrying value of the subject asset or liability on the books of the Reinsurer for statutory statement purposes determined in accordance with the statutory accounting principles and practices prescribed by the Reinsurer’s state of domicile, consistently applied.

“Statutory Reserves” means, as of any date of determination, the gross statutory reserves (including deficiency reserves) and any additional policy-related liabilities, including additional actuarial reserves (as used in connection with SAP) that are required to be held by the Company with respect to the Reinsured Policies as of such date of determination, in each case, as determined in accordance with SAP, consistently applied, and reduced by credit for reinsurance taken by the Company in respect of the Reinsured Policies for Other Reinsurance as of such date of determination. The parties agree that the additional actuarial reserves for purposes of calculating the “Initial Coinsurance Premium” shall be the Initial Cash Flow Testing Reserves.

“Supplementary Contracts” shall mean all supplementary contracts, whether with or without life contingencies, issued by the Company upon the Annuitization of a Reinsured Policy.

“Systems Conversion” has the meaning ascribed thereto in Section 5.5(c).

“Taxes” has the meaning ascribed thereto in the Purchase Agreement.

“Tax Returns” has the meaning ascribed thereto in the Purchase Agreement.

“Term Policies” means all single life 10-, 20- and 30-year level premium term life policies and contracts (including supplementary contracts), together with all related binders, slips and certificates and including applications therefor and all supplements, endorsements, riders and agreements in connection therewith that are subject to the model regulation entitled “Valuation of Life Insurance Policies Model Regulation,” commonly referred to as Regulation XXX, which were: (i) issued by the Ceding Company during the period January 1, 2010 through December 31, 2012, both days inclusive, and listed on the Policy List, (ii) reinsured by the Company under the terms of any Assumed Reinsurance Agreement as of the Effective Time or (iii) reinstated by the Company in accordance with Section 5.4 hereof.

“Terminal Accounting and Settlement Report” has the meaning ascribed thereto in Section 9.5.

“Transaction Documents” has the meaning ascribed thereto in the Purchase Agreement.

“Transferred Assets” has the meaning ascribed thereto in Section 2.15 hereof.

“Transition Services Agreement” has the meaning ascribed thereto in the Recitals.

“Trust Account” has the meaning ascribed thereto in Section 4.4(a).

“Trust Agreement” means the Trust Agreement between the Reinsurer, as grantor, the Company, as beneficiary, and the Trustee, as trustee, substantially in the form attached as Exhibit I hereto.

“Trust OC Amount” means 2.75% multiplied by the sum of (i) the Reinsurer’s Share of the Statutory Reserves that would be required to be held by the Company with respect to the Reinsured Policies if this Agreement were not in effect, plus (ii) the Reinsurer’s Share of the Existing Interest Maintenance Reserve attributable to the Reinsured Liabilities, plus (iii) the amount of any New Amendment Interest Maintenance Reserve, in each case, as of such date of determination and determined in accordance with SAP, consistently applied.

“Trustee” has the meaning ascribed thereto in Section 4.4(a).

“UCC” means the Uniform Commercial Code, as said code has been enacted in the State of New York or any other applicable jurisdiction.

“UL Policies” means all single and joint-life universal life with no-lapse guarantee policies and contracts (including supplementary contracts), together with all related binders, slips and certificates and including applications therefor and all supplements, endorsements, riders and agreements in connection therewith that are subject to the model regulation entitled “Valuation of Life Insurance Policies Model Regulation,” as clarified by Actuarial Guideline 38, commonly referred to as Regulation AXXX which were (i) issued by the Ceding Company during the period January 1, 2010 through December 31, 2012, both days inclusive and, in the case of each of (a) and (b), listed on the Policy List, (ii) reinsured by the Company under the terms of any Assumed Reinsurance Agreement as of the Effective Time or (iii) reinstated by the Company in accordance with Section 5.4 hereof.

“Unresolved Items” has the meaning ascribed thereto in Section 10.1(b).

Section 1.2 Construction.

(a) 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.

(b) 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.

(d) Whenever used in this Agreement, the masculine gender shall include the feminine and neutral genders.

(e) All references herein to Articles, Sections, Subsections, Paragraphs, Exhibits, Annexes and Schedules shall be deemed references to Articles, Sections, Subsections and Paragraphs of, and Exhibits, Annexes and Schedules to, this Agreement, unless the context shall otherwise require.

(f) Any reference herein to any statute, agreement or document, or any section thereof, shall, unless otherwise expressly provided, be a reference to such statute, agreement, document or section as amended, modified, restated, supplemented or otherwise changed (including any successor section) and in effect from time to time.

(g) All terms defined in this Agreement shall have the defined meaning when used in any Schedule, Annex, Exhibit, certificate or other documents attached hereto or made or delivered pursuant hereto unless otherwise defined therein.

ARTICLE II

COINSURANCE

Section 2.1 Scope and Basis of Reinsurance. The reinsurance provided under this Agreement applies to all Policies (collectively, the “Reinsured Policies”); provided, that “Reinsured Policies” shall not include any Supplementary Contracts or any Policies that have been subject to an Annuitization in accordance with Section 5.5(c).

Section 2.2 Reinsuring Clause. Subject to the terms and conditions of this Agreement, the Company hereby cedes and the Reinsurer hereby reinsures on a coinsurance funds withheld basis as of the Effective Time, and on a coinsurance basis as of the Amendment Date, 100% (the “Reinsurer’s Share”) of all Reinsured Liabilities.

Section 2.3 Allocation of Assets and Ceding Commission.

(a) Coinsurance Premium.

(i) On the Effective Date, the Company will allocate to the Funds Withheld Account an initial coinsurance premium that relates to the Reinsured Policies consisting of assets that are listed and that have the Statutory Book Values set forth on Annex A (the “Initial Reinsurance Assets”) and cash, equal to the Reinsurer’s Share of the following amount: (A) the Statutory Reserves held by the Company with respect to the Reinsured Policies, plus (B) the Existing Interest Maintenance Reserve attributable to the Reinsured Liabilities, minus (C) the amount of outstanding policy loans on the Reinsured Policies (to the extent such policy loans constitute admitted assets under SAP, net of any unearned policy loan interest on such loans but including amounts of interest due and accrued with respect thereto), minus (D) the net due and deferred Premiums on the Reinsured Policies, minus (E) the aggregate Statutory Book Value of the XX Xxxxxx as of the Effective Date, in the case of each of clauses (A) through (C), determined in accordance with SAP, consistently applied, as of the Effective Time (such amount, the “Initial Coinsurance Premium”). For the avoidance of doubt, notwithstanding anything to the contrary in this Agreement, for purposes of calculating the Initial Coinsurance Premium, the term “Reinsured Policies” shall not include the portion of the policies from which Net Retained Liabilities, if any, arise.

(ii) The amount of the Initial Coinsurance Premium paid on the Effective Date shall be determined on an estimated basis (the “Estimated Initial Coinsurance Premium”) as follows: (x) with respect to each of the items set forth in clauses (A), (B) and (C) of the definition of “Initial Coinsurance Premium” the portion of the Estimated Initial Coinsurance Premium attributable to such items shall be equal to the respective amounts set forth on the Life Reference Balance Sheet; and (y) with respect to the items set forth in clauses (D) and (E) of the definition of the “Initial Coinsurance Premium,” the portion of the Estimated Initial Coinsurance Premium attributable to such items shall be determined by the Company in good faith and in a manner consistent with the principles governing the preparation of the Life Reference Balance Sheet on an estimated basis as of the date that is three (3) Business Days prior to the Effective Date.

(iii) On the Effective Date, the Company shall deliver to the Reinsurer a statement setting forth (A) the amount of the Estimated Initial Coinsurance Premium, determined as of the date that is three (3) Business Days prior to the Effective Date, and (B) the final list of Initial Reinsurance Assets, which will be based on Annex A, and will include the Statutory Book Value of the Initial Reinsurance Assets, determined as of the date that is three (3) Business Days prior to the Effective Date.

(iv) No later than fifty (50) Business Days after the Effective Date, the Company shall deliver to the Reinsurer a statement (the “Initial Coinsurance Premium Reconciliation Statement”) prepared in good faith by the Company, in the same form as, and using the same principles that govern, the Life Reference Balance Sheet, setting forth, as of the Effective Date, (1) the calculation of each of the items set forth in clauses (A) through (E) of the definition of the “Initial Coinsurance Premium” (such amount, the “Actual Initial Coinsurance Premium”) and (2) the Statutory Book Value of the Initial Reinsurance Assets as of the Effective Date. The “Initial Coinsurance Premium Adjustment” shall be equal to the following amount (whether positive or negative): (A) the difference (whether positive or negative) between the Actual Initial Coinsurance Premium minus the Estimated Initial Coinsurance Premium, minus (B) the difference (whether positive or negative) between the Statutory Book Value of the Initial Reinsurance Assets on the Effective Date minus the Statutory Book Value of the Initial Reinsurance Assets determined in connection with the calculation of the Estimated Initial Coinsurance Premium pursuant to Section 2.3(a)(ii). If the Initial Coinsurance Premium Adjustment is positive, then the Company shall increase the Funds Withheld Account Balance by such amount and shall allocate to the Funds Withheld Account additional assets having, in the aggregate, a Statutory Book Value equal to the Initial Coinsurance Premium Adjustment within five (5) Business Days after the Initial Coinsurance Premium Adjustment is finalized pursuant to Section 10.1, together with an amount of interest on the Initial Coinsurance Premium Adjustment at the Applicable Rate, calculated on the basis of a 360-day year for the actual number of days elapsed, accrued from the Effective Date until, but not including, the date of payment. If the Initial Coinsurance Premium Adjustment is negative, then the Company shall be entitled to

decrease the Funds Withheld Account Balance by withdrawing Reinsurance Assets having, in the aggregate, a Statutory Book Value equal to the absolute value of the Initial Coinsurance Premium Adjustment within five (5) Business Days after the Initial Coinsurance Premium Adjustment is finalized pursuant to Section 10.1, together with an amount of interest on the Initial Coinsurance Premium Adjustment at the Applicable Rate, calculated on the basis of a 360-day year for the actual number of days elapsed, accrued from the Effective Date until, but not including, the date of payment.

(v) No later than thirty (30) Business Days following any final adjustments to the Purchase Price (as defined in the SPA) in accordance with Annex C of the SPA, the Company shall deliver to the Reinsurer a statement (the “SPA Coinsurance Premium Reconciliation Statement”) prepared in good faith by the Company, in the same form as, and using the same principles that govern, the Life Reference Balance Sheet, setting forth, as of the Effective Date, (1) the calculation of each of the items set forth in clauses (A) through (E) of the definition in the “Initial Coinsurance Premium” (such amount, the “SPA Adjusted Coinsurance Premium”) and (2) the Statutory Book Value of the Initial Reinsurance Assets as of the Effective Date. The “SPA Coinsurance Premium Adjustment” shall be equal to the following amount (whether positive or negative): (A) the difference (whether positive or negative) between the SPA Adjusted Coinsurance Premium minus the Actual Initial Coinsurance Premium, minus (B) the difference (whether positive or negative) between the Statutory Book Value of the Initial Reinsurance Assets determined in connection with the calculation of the SPA Adjusted Coinsurance Premium minus the Statutory Book Value of the Initial Reinsurance Assets determined in connection with the calculation of the Actual Initial Coinsurance Premium. If the SPA Coinsurance Premium Adjustment is positive, then the Company shall increase the Funds Withheld Account Balance by such amount and shall allocate to the Funds Withheld Account additional assets having, in the aggregate, a Statutory Book Value equal to the SPA Coinsurance Premium Adjustment within five (5) Business Days after the SPA Coinsurance Premium Adjustment is finalized pursuant to Section 10.1, together with an amount of interest on the SPA Coinsurance Premium Adjustment at the Applicable Rate, calculated on the basis of a 360-day year for the actual number of days elapsed, accrued from the Effective Date until, but not including, the date of payment. If the SPA Coinsurance Premium Adjustment is negative then the Company shall be entitled to decrease the Funds Withheld Account Balance by withdrawing from the Reinsurance Assets having, in the aggregate, a Statutory Book Value equal to the absolute value of the SPA Coinsurance Premium Adjustment within five (5) Business Days after the SPA Coinsurance Premium Adjustment is finalized pursuant to Section 10.1, together with an amount of interest on the SPA Coinsurance Premium Adjustment at the Applicable Rate, calculated on the basis of a 360-day year for the actual number of days elapsed, accrued from the Effective Date until, but not including, the date of payment.

(b) Ceding Commission. Neither the Reinsurer nor the Company shall be required to pay a ceding commission hereunder.

Section 2.4 Net Retained Liabilities.

(a) The Company shall be solely responsible for, and the Reinsurer will cooperate reasonably to obtain all waivers and consents necessary in order to reinsure 100% of the Net Retained Liabilities under this Agreement. The Company and the Reinsurer, at the Company’s reasonable instruction, shall each use their reasonable best efforts in the context of current market conditions to obtain any such waivers and consents (it being understood that the Company’s and the Reinsurer’s executive officers shall, to the extent reasonably appropriate, be personally engaged in that process) and promptly advise the other Party of any communications with respect to any such waivers and consents. All correspondence from the Reinsurer to any Person from whom such a waiver or consent is sought shall be in a form approved by the Company. The Company shall effect any such action with respect to such waivers and consents, including sending correspondence requesting such waivers and consents. To the extent that after the Effective Time, any written waivers or consents are obtained to reinsure a Net Retained Liability in respect of a Policy under the terms of this Agreement or the Parties otherwise agree in writing that any such waivers or consents shall not be required as a condition to coverage of such Policy hereunder, then the liability and obligation pertaining to such Policy shall no longer be deemed a Net Retained Liability for purposes of this Agreement and the liability and obligation pertaining to such Policy shall be reinsured hereunder effective as of the date of such written consent, waiver or agreement by the Parties, as applicable.

(b) With respect to any such written waiver or consent that is obtained or any such other agreement between the Parties that any such waivers or consents shall not be required as a condition to coverage hereunder, in each case, after the Effective Date:

(i) the Company shall pay the Reinsurer an amount of cash equal to the Net Retained Liability Reserve Transfer Amount with respect to such Net Retained Liability for which waiver or consent was obtained or with respect to which the Parties agreed did not require a consent or waiver as a condition to coverage hereunder;

(ii) the Company shall deliver to the Reinsurer a statement setting forth the Company’s good faith calculation of the difference (whether positive or negative) between (x) the aggregate amount of the premiums and considerations, premium adjustments and any and all amounts or payments, including any and all policy fees, charges, reimbursements, reinsurance recoverables and similar amounts, received or collected by the Company in respect of the portion of the Policies from which the relevant Net Retained Liabilities arise during the period following the Effective Date and prior to the date on which such waiver or consent was obtained or with respect to which the Parties agreed such waiver or consent was not required as a condition to coverage hereunder (the “Net Retained Liabilities Adjustment Period”); and (y) the aggregate amount equal to the obligations, including any and all death claims, cash surrender benefits, policyholder dividends, reinsurance premiums, commissions and similar amounts, arising out of or relating to the portion of the Policies from which the relevant Net Retained Liabilities arise (including Extra Contractual Obligations) incurred by the Company during the Net Retained Liabilities Adjustment Period. If such amount is positive, then such amount shall be due to be paid the Company by the Reinsurer, and if

such amount is negative, then such amount shall be due to be paid to the Reinsurer by the Company, in each case, together with an amount of interest on such payment at the Applicable Rate, calculated on the basis of a 360-day year for the actual number of days elapsed, accrued from the Effective Date until, but not including, the date of payment; and

(iii) The payment of the amounts in clauses (i) and (ii) shall be reflected in the Net Settlement for the month in which such consent or waiver was obtained and paid in accordance with Section 6.2.

(c) For the avoidance of doubt, prior to obtaining any such required written consents or waivers, or the making of any such written agreement, the portion of each Policy from which Net Retained Liabilities arise shall not be deemed to constitute a Reinsured Policy for purposes of this Agreement; provided that the Reinsurer shall provide administrative services with respect to any Net Retained Liabilities (and the associated Policies) pursuant to the Administrative Services Agreement. Except as otherwise contemplated by this Section 2.4, the Company shall bear the cost of obtaining any waivers or consents to reinsure a Net Retained Liability.

Section 2.5 Guaranty Fund Assessments and Premium Taxes.

(a) Guaranty Funds Assessments. In the event the Company is required to pay an assessment on or after the Effective Date in respect of the Reinsured Policies to any insurance guaranty, insolvency or other similar fund maintained by any jurisdiction, the portion, if any, of such assessment related to such Reinsured Policies shall be reimbursed by the Reinsurer as part of the applicable monthly settlement pursuant to Section 6.2. To the extent there is any recovery of any such assessment paid by the Reinsurer, the Company shall promptly pay the Reinsurer’s Share of such recovery to the Reinsurer.

(b) Premium Taxes.

(i) The Reinsurer shall pay to the Company a provision for premium taxes and other charges, fees, taxes and assessments, including retaliatory taxes (collectively, “Premium Taxes”), incurred or imposed on or after the Effective Date in connection with premiums written or received under the Reinsured Policies. The provision for Premium Taxes shall be estimated at 1.8% of premiums received under the Reinsured Policies, as calculated on a monthly basis, and shall be paid by the Reinsurer to the Company as part of the monthly settlement pursuant to Section 6.2 and adjusted annually to an actual rate for each year as part of the monthly settlement pursuant to Section 6.2 for the second calendar month of the following year, with such monthly settlement to reflect the difference between actual Premium Taxes in respect of the Reinsured Policies (after giving effect to any offsets for guaranty fund assessments reimbursed by the Reinsurer pursuant to Section 2.5(a)) and estimated Premium Taxes.

(ii) Each Party shall promptly notify the other in writing upon receipt by it or any of its Affiliates of notice of any pending or threatened Action related to any Premium Taxes or any Tax Returns filed in connection with such Premium Taxes.

(iii) The Company shall have the right to control the conduct of any Action related to any Premium Taxes or any Tax Returns filed in connection with such Premium Taxes, and to employ counsel of the Company’s choice; provided, that the Reinsurer shall be permitted, at the Reinsurer’s expense, to be present at, and to participate in, any Action related to Premium Taxes. Notwithstanding such control, the Company shall not settle, either administratively or after the commencement of litigation, any claim for Premium Taxes without providing reasonable advance written notice to, and an opportunity for prior consultation with, the Reinsurer. The Parties shall furnish or cause to be furnished to each other, upon request, as promptly as practicable, such information and assistance relating to the preparation for any Premium Tax audit or other Action related to Premium Taxes, and the prosecution or defense of any Action related to any Premium Taxes or any Premium Tax Returns filed in connection with such Premium Taxes. The Parties shall reasonably cooperate with each other in the conduct of any Action related to any Premium Taxes. Any information obtained under this Section 2.5(b)(iii) shall be kept confidential, except as otherwise reasonably may be required in connection with the filing of Premium Tax Returns or claims for Premium Tax refunds or in conducting any Action related to Premium Taxes.

Section 2.6 Other Reinsurance. This Agreement is written on a “gross” basis and thus the costs and benefits of Other Reinsurance inuring on the Reinsured Policies are intended to be borne by the Reinsurer; provided, that to the extent the Other Reinsurance became unrecoverable (in accordance with the Company’s ordinary-course evaluation and statutory accounting treatment) prior to the Effective Time, the recoverability of such amounts shall be borne by the Company. Other Reinsurance with respect to the Reinsured Policies shall be accounted for herein such that the Reinsurer participates in the Reinsurer’s Share of any premiums, benefits, recoveries, ceding or expense allowances, other allowances and other adjustments as such amounts and such risks are paid, received or otherwise collected by the Company with respect to such Other Reinsurance, it being understood that the Reinsurer shall bear all risk of collecting third party reinsurance (except as otherwise provided in Section 3.2(c)). Risks under the terms of any agreement of Other Reinsurance as shall be terminated or recaptured with the Reinsurer’s prior written consent shall be ceded automatically hereunder to the Reinsurer without any further action required, subject to the receipt by the Reinsurer of the Reinsurer’s Share of any reserve transfer or similar transfer or settlement amount received by the Company from the applicable third party reinsurer. In connection with any such termination or recapture with the Reinsurer’s prior written consent, the Reinsurer shall pay the Reinsurer’s Share of any resulting special transfer or recapture fee incurred by the Company. The Company covenants that absent the prior written consent of the Reinsurer, the Company shall not enter into any new or change any existing reinsurance cession with respect to any of the Reinsured Policies. Notwithstanding this Section 2.6 or Section 3.2, the Company shall retain all rights and primary responsibility with respect to payments under Other Reinsurance Agreements.

Section 2.7 Policy Changes and Non-Guaranteed Elements.

(a) Policy Changes. The Company agrees that it shall not make any changes in the provisions and conditions of a Reinsured Policy or an Assumed Reinsurance Agreement except with the Reinsurer’s prior written consent or to the extent that any change to the terms of any Reinsured Policy is required by Applicable Law. To the extent a change is required by

Applicable Law, the Company shall, within a reasonable period of time prior to effecting such change, provide reasonably detailed written notice to the Reinsurer describing the nature of such change and the reasons for making such change. The Company shall also afford the Reinsurer, at the Reinsurer’s expense, the opportunity, to the extent reasonably practicable, to object to such change under applicable administrative procedures to the same extent the Company could make such objection under Applicable Law; provided, that the Reinsurer may only object to such change in the same manner and to the same extent as it objects to any similar change required by any Applicable Law to life insurance policies and contracts of the Reinsurer that are substantially similar to the Reinsured Policies.

(b) Non-Guaranteed Elements. The Company will be responsible for determining the cost of insurance charges, loads and expense charges, credited interest rates, mortality and expense charges, administrative expense risk charges and policyholder dividends, as applicable, under the Reinsured Policies (“Non-Guaranteed Elements”); provided, that the Reinsurer may provide written recommendations regarding the Non-Guaranteed Elements to the Company and, provided that such recommendations are the same as the Non-Guaranteed Elements established by the Reinsurer for life insurance policies and contracts of the Reinsurer that are substantially similar to the Reinsured Policies and comply with the written terms of the Policies, Applicable Law and Actuarial Standards of Practice promulgated by the Actuarial Standards Board governing redetermination of non-guaranteed charges. The Company should consider any such recommendations and act reasonably and in good faith in determining whether to accept any such recommendations and shall not unreasonably delay implementation of any accepted recommendations for more than ten (10) Business Days after such recommendations are provided to the Company in writing. Notwithstanding the foregoing, the Company shall retain the responsibility for determining the Non-Guaranteed Elements.

Section 2.8 Premiums. Payment of Premiums to the Reinsurer, as Administrator pursuant to the Administrative Services Agreement, by or on behalf of a policyholder shall be deemed received by the Company. All monies, checks, drafts, money orders, postal notes and other instruments that may be received after the Effective Date by the Company for premiums, fees or other payments on or in respect of the Reinsured Policies shall be held in trust by the Company for the benefit of the Reinsurer and shall be immediately transferred and delivered to the Reinsurer, and any such instruments when so delivered shall bear all endorsements required to effect the transfer of same to the Reinsurer. The Reinsurer is hereby authorized to endorse for payment to the Reinsurer any such checks, drafts, money orders and other instruments pertaining to the Reinsured Policies that are payable to, or to the order of, the Company and received by the Reinsurer under this Agreement.

Section 2.9 Assignment; Security Interest.

(a) The Company hereby assigns, transfers and conveys to the Reinsurer, effective as of the Effective Time, all of the Company’s right, title and interest (legal, equitable or otherwise), if any, to payments (i) under the Reinsured Policies of principal and interest paid on policy loans and (ii) of the Premiums, fees and other payments due or made on or after the Effective Date under the Reinsured Policies. The Reinsurer and the Company hereby agree that, in connection with any termination of this Agreement, all of the Reinsurer’s right, title and interest (legal, equitable or otherwise) in and to the items set forth in (i) and (ii) above shall be

immediately assigned, transferred and conveyed to the Company without any further action by the Parties. Each Party, as reasonably requested by the other from time to time, shall take all reasonably appropriate actions and execute any reasonably necessary and appropriate additional documents, instruments or conveyances of any kind which may be reasonably necessary to carry out the provisions of this Section 2.9(a).

(b) The Parties intend that at all times prior to the termination of this Agreement that the Company’s assignment pursuant to Section 2.9(a) be a present assignment of all of the Company’s rights, title and interest and not an assignment as collateral. However, to the extent that such assignment is not recognized as a present assignment, is not valid or is recharacterized as a pledge rather than a lawful conveyance to the Reinsurer, the Company does hereby bargain, sell, convey, assign and otherwise pledge to the Reinsurer, and grant a first priority security interest to the Reinsurer in, all of the Company’s right, title and interest (legal, equitable or otherwise), if any, to payments (i) under the Reinsured Policies of principal and interest paid on policy loans and (ii) of all Premiums, fees and other payments due or made on or after the Effective Date under the Reinsured Policies (collectively, the “Collateral”) to secure all of the Company’s obligations under this Agreement.

(c) This Section 2.9 is being included in this Agreement to ensure that, if an insolvency or other court determines that, notwithstanding the provisions of this Agreement, including Sections 2.1, 2.2, 2.3, 2.8, 6.2 and 12.1, and the intent of this Agreement, the Company retained ownership of or any rights in the Collateral, the Reinsurer’s rights to the Collateral are protected with a first priority, perfected security interest, and it is the intent of the Parties that this Section 2.9 be interpreted as such.

(d) At or prior to the Effective Time, the Company shall file, and the Reinsurer is authorized to file, any and all financing statements reasonably requested by the Reinsurer in order to perfect the Reinsurer’s right, title and interest under Article 9 of the UCC in and to the Collateral, and the Company shall do such further acts and things as the Reinsurer may reasonably request in order that the security interest granted hereunder may be maintained as a first priority perfected security interest; provided, that the Reinsurer shall be required to bear all out-of-pocket costs and expenses (including reasonable attorney’s fees) incurred by the Company in connection with any such action or other thing requested by the Reinsurer.

Section 2.10 Hedging.

Prior to the Hedge Termination Date:

(i) The Company shall purchase derivatives to hedge the index risk associated with the Equity Indexed Reinsured Policies (each, an “EI Hedge” and collectively, the “XX Xxxxxx”). The Company hereby conveys, transfers and assigns to the Reinsurer, effective as of the Effective Date, a 100% interest in the gross realized and unrealized capital gains and losses in respect of the XX Xxxxxx purchased by the Company prior to or following the Effective Date, intended to hedge the index risk associated with the Reinsurer’s Share of the Equity Indexed Reinsured Policies, each such EI Hedge purchased prior to the Amendment Date is set forth on Annex C hereto. Such assignment shall occur automatically, without further action on the part of either

Party, upon the purchase by the Company of any EI Hedge or, in the case of any XX Xxxxxx entered into prior to the Effective Date, as of the Effective Date. Following the Amendment Date, the Company shall no longer purchase, and, following the Hedge Termination Date, the Company shall no longer maintain any XX Xxxxxx. XX Xxxxxx assigned under this Section 2.10(a) will be accounted for as funds withheld assets payable by the Company to the Reinsurer.

(ii) The Company shall pay to the Reinsurer an amount equal to any realized and unrealized capital gains (in accordance with SAP) associated with the XX Xxxxxx in accordance with Section 6.2.

(iii) The Reinsurer shall pay to the Company an amount equal to any realized and unrealized capital losses (in accordance with SAP) associated with the XX Xxxxxx in accordance with Section 6.2.

(iv) The Company shall use reasonable care in its hedging activities with respect to the Reinsured Policies, and such activities shall be consistent with the applicable standards set forth in the Transition Services Agreement. In addition, the Company shall not treat the XX Xxxxxx in any respect in a manner that is different than the manner in which it treats the xxxxxx it enters into with respect to equity indexed policies issued by the Company that are not Equity Indexed Reinsured Policies.

(v) The Company agrees that other than as provided expressly in this Agreement, it shall take any actions reasonably requested by the Reinsurer to maintain in full force and effect each of the XX Xxxxxx and to perform fully each of its obligations thereunder. The Company may not modify, amend or terminate any EI Hedge or waive any of its rights under any such EI Hedge without the Reinsurer’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed) and shall fully enforce, at the expense of the Reinsurer, all of its rights thereunder, including, at the Reinsurer’s request and if applicable, requiring the collateralization by the Hedge Counterparty of exposure and other amounts required to be paid or delivered thereunder. With the Reinsurer’s prior written consent, the Company may exercise any right it may have to terminate any such EI Hedge and shall, at the Reinsurer’s instruction and expense, effect any discretionary action with respect to the management or administration of the XX Xxxxxx as the Reinsurer shall reasonably request, including termination, as may be available pursuant to the terms and conditions of any EI Hedge; provided, however, that the Reinsurer shall indemnify and hold harmless the Company for Losses arising out of any such discretionary action so requested by the Reinsurer and the Company shall indemnify and hold harmless the Reinsurer for Losses to the extent arising out of any failure by the Company to take any such discretionary action as reasonably requested by the Reinsurer. The Company agrees that it shall, at the direction and at the cost and expense of the Reinsurer, pursue commercially reasonable management and collection efforts with respect to the XX Xxxxxx and, in general, will reasonably cooperate with the Reinsurer in the management and administration of the XX Xxxxxx.

(vi) Following the Effective Date, at the Reinsurer’s request and expense, the Company shall cooperate with the Reinsurer and use its reasonable best efforts in the context of current market conditions to novate any XX Xxxxxx from the Company to the Reinsurer or a designated Affiliate of the Reinsurer. The Company shall promptly advise the Reinsurer of any communications with respect to any such proposed novation. All material, written correspondence from either the Company or the Reinsurer to any Hedge Counterparty in connection with any such proposed novation shall be in a form approved by the other Party; provided that any such approval shall not be unreasonably withheld, conditioned or delayed. At the Reinsurer’s instruction and at the Reinsurer’s cost and expense, the Company shall take any such action with respect to any such proposed novation as the Reinsurer shall reasonably request, including sending correspondence requesting that an EI Hedge be novated to the Reinsurer or a designated Affiliate of the Reinsurer in a form approved by the Reinsurer; provided, however, that the Reinsurer shall indemnify and hold harmless the Company for Losses arising out of any such action so requested by the Reinsurer and the Company shall indemnify and hold harmless the Reinsurer for Losses to the extent arising out of any failure by the Company to take any such action as reasonably requested by the Reinsurer.

Section 2.11 Existing Interest Maintenance Reserve. Set forth on Schedule 2.11 is the Reinsurer’s Share of the Existing Interest Maintenance Reserve attributable to the Reinsured Liabilities. The entirety of such Existing Interest Maintenance Reserve shall be calculated by the Company and ceded to the Reinsurer and transferred into the Funds Withheld Account, and shall be amortized as set forth on Schedule 2.11. The Company shall have no obligation to establish any such Existing Interest Maintenance Reserve.

Section 2.12 New Amendment Interest Maintenance Reserve. Set forth on Schedule 2.12 is the amount of the New Amendment Interest Maintenance Reserve. The entirety of such New Amendment Interest Maintenance Reserve shall be calculated by the Company and ceded to and held by the Reinsurer, and shall be amortized as set forth on Schedule 2.12. The Company shall have no obligation to establish any such New Amendment Interest Maintenance Reserve.

Section 2.13 Retention. Unless the New York Department of Financial Services provides its prior written consent, the Reinsurer shall not retrocede any Reinsured Liabilities in connection with any transaction or series of transactions in which such liabilities will be ceded to a special purpose financial captive insurer.

Section 2.14 Cash Flow Testing Reserves. The Reinsurer will pay to the Company the Portfolio Yield on the Initial Cash Flow Testing Reserves as part of the Net Settlement pursuant to Section 6.2.

Section 2.15 Funds Withheld Asset Transfer. On the Amendment Date, the Company will transfer to the Reinsurer, by depositing into the Trust Account, all of the assets held in the Funds Withheld Account on the Amendment Date (the “Transferred Assets”). A complete list of the Transferred Assets is set forth on Schedule 2.15.

ARTICLE III

REINSURANCE LIABILITY

Section 3.1 Reinsurance Liability. The reinsurance by the Reinsurer of the Reinsured Policies is subject to the same rates, conditions, limitations and restrictions as the insurance under the Reinsured Policies written by the Company on which the reinsurance is based. The liability of the Reinsurer hereunder on the terms described herein begins as of the Effective Time and, subject to Article IX hereof, the liability of the Reinsurer on any Reinsured Policy will terminate as and when all liability of the Company with respect to such Reinsured Policy terminates.

Section 3.2 Other Reinsurance.

(a) The Company agrees that other than as provided expressly in this Agreement, it shall take any actions reasonably requested by the Reinsurer to maintain in full force and effect each of the Other Reinsurance Agreements and to perform fully each of its obligations thereunder. The Company may not modify, amend, terminate or recapture any Other Reinsurance Agreement or waive any of its rights under any such agreement without the Reinsurer’s prior written consent and shall fully enforce, at the expense of the Reinsurer, all of its rights thereunder, including, at the Reinsurer’s request, requiring the collateralization by the third party reinsurer of reserve balances and other amounts thereunder. With the Reinsurer’s prior written consent, the Company may exercise any right it may have to recapture risks ceded under any of the Other Reinsurance Agreements or to otherwise terminate any such agreement and shall, at the Reinsurer’s instruction and expense, effect any such action with respect to the management or administration of the Other Reinsurance as the Reinsurer shall reasonably request, including termination or recapture, as may be available under or with respect to the terms of any Other Reinsurance Agreement; provided, however, that the Reinsurer shall indemnify and hold harmless the Company for Losses arising out of any such action so requested by the Reinsurer. Subject to the terms and conditions of the Administrative Services Agreement, the Company agrees that it shall, at the direction and at the cost and expense of the Reinsurer (including any reasonable out-of-pocket expenses incurred by the Company), pursue commercially reasonable management and collection efforts with respect to the Other Reinsurance and, in general, will reasonably cooperate with the Reinsurer in the management of the Other Reinsurance.

(b) Following the Effective Date, at the Reinsurer’s expense and reasonable request, the Company shall cooperate with the Reinsurer and shall use its reasonable best efforts in the context of current market conditions to novate any Other Reinsurance from the Company to the Reinsurer or a designated Affiliate of the Reinsurer. The Parties shall promptly advise each other of any communications with respect to any such proposed novation. All correspondence from either the Company or the Reinsurer to any reinsurer under Other Reinsurance in connection with any such proposed novation shall be in a form approved by the other Party; provided that any such approval shall not be unreasonably withheld, conditioned or delayed. At the Reinsurer’s instruction and at the Reinsurer’s cost and expense (including any reasonable out-of-pocket expenses incurred by the Company), the Company shall effect any such action with respect to any such proposed novation as the Reinsurer shall reasonably request, including sending correspondence requesting that an Other Reinsurance Agreement be novated

to the Reinsurer or a designated Affiliate of the Reinsurer in a form approved by the Reinsurer; provided, however, that the Reinsurer shall indemnify and hold harmless the Company for Losses arising out of any such action so requested by the Reinsurer.

(c) The Company agrees that whenever an Other Reinsurance Agreement provides the Company with a right of set-off, the Company shall exercise such right of set-off in the event that amounts are due and unpaid from the Reinsurer. The Company shall have no obligation to pursue any claims it may have for indemnification to which it may be entitled in connection with the Other Reinsurance unless requested to do so by the Reinsurer and at the cost and expense of the Reinsurer (including reasonable out-of-pocket expenses incurred by the Company). In no event shall any such right to indemnification reduce the Reinsurer’s responsibility for the risk of all Other Reinsurance.

Section 3.3 Disclaimer. The Company has no duties, whether express or implied, including the duty of utmost good faith and other similar duties, which the Company expressly disclaims, and makes no representations or warranties to the Reinsurer, other than those expressly contained in this Agreement. The Reinsurer has no duties, whether express or implied, including the duty of utmost good faith and other similar duties, which the Reinsurer expressly disclaims, and makes no representations or warranties to the Company, other than those expressly contained in this Agreement.

ARTICLE IV

CERTAIN FINANCIAL PROVISIONS

Section 4.1 Credit for Reinsurance. If at any time during the term of this Agreement, the Reinsurer fails to hold and maintain all licenses, permits and authorities required under Applicable Law to enable the Company to receive statutory reserve credit for the reinsurance ceded to the Reinsurer hereunder in the Company’s state of domicile, the Reinsurer shall, at its sole expense, establish and maintain security in the form of letters of credit, assets held in a reinsurance trust, funds withheld arrangement or a combination thereof in a manner that meets all Applicable Laws regarding credit for reinsurance, so as to permit the Company to receive full statutory reserve credit for the reinsurance ceded to the Reinsurer hereunder in the Company’s state of domicile. The form of such letter of credit, trust agreement for such reinsurance trust or any funds withheld arrangement shall be approved by the New York Department of Financial Services prior to use.

Section 4.2 RBC Reports.

(a) Within forty-five (45) days following the end of the first three calendar quarters of each year during the term of this Agreement, the Reinsurer shall provide to the Company a report of its RBC Ratio as of the end of such calendar quarter, as estimated in good faith by the Reinsurer.

(b) Within five (5) Business Days of the submission by the Reinsurer to the insurance department of its domiciliary state of a report of its risk-based capital levels as of the end of the previous calendar year, but in no event later than sixty (60) days following the end of each calendar year, the Reinsurer shall provide to the Company written certification of its RBC Ratio as of the end of such calendar year.

Section 4.3 Establishment of the Funds Withheld Account.

(a) On or prior to the Effective Date, the Company shall establish on its books and records a funds withheld account (the “Funds Withheld Account”) and allocate thereto the Initial Reinsurance Assets with a Statutory Book Value equal to the Initial Coinsurance Premium and, until the Amendment Date, shall maintain the Funds Withheld Account with assets having a Statutory Book Value equal to the Funds Withheld Account Amount determined from time to time in accordance with this Agreement (the Initial Reinsurance Assets and any other assets allocated to the Funds Withheld Account pursuant to this Agreement, the “Reinsurance Assets”). The Funds Withheld Account shall be a segregated account established by the Company. Until the Amendment Date, the Company will retain, control and own all Reinsurance Assets. Until the Hedge Termination Date, the Company shall record the Funds Withheld Account Balance on its statutory financial statements as a payable to the Reinsurer. Following the Hedge Termination Date, the Company shall no longer maintain the Funds Withheld Account.

(b) Prior to the Amendment Date, the Reinsurance Assets (other than policy loans), and, following the Amendment Date but prior to the Hedge Termination Date, the EI Hedge assets held in the Funds Withheld Account (other than the policy loans) shall be invested by the Reinsurer or by Xxxxxxx Xxxxx Asset Management or such other investment manager appointed by the Reinsurer with the prior written consent of the Company pursuant to an investment management agreement. The Reinsurer, Xxxxxxx Sachs Asset Management or such other investment manager appointed by the Reinsurer with the prior written consent of the Company shall have the authority to purchase XX Xxxxxx on the account of the Company commencing (1) year following the Effective Date. For greater certainty, prior to the Amendment Date, (i) each policy loan repaid and interest payment on a policy loan shall be accounted for as a cash transfer to the Funds Withheld Account from the policyholder in an amount equal to such policy loan repayment or interest payment (and shall result in an allocation by the Company to the Funds Withheld Account of cash, assets or a combination of cash and assets, with an aggregate Statutory Book Value equal to such policy loan repayment or interest payment), and (ii) each policy loan taken by a policyholder shall be accounted for as a cash transfer from the Funds Withheld Account to such policyholder (and shall result in cash, assets or a combination of cash and assets, with an aggregate Statutory Book Value equal to the proceeds of such policy loan no longer being allocated by the Company to the Funds Withheld Account) and the Company shall establish a Reinsurance Asset in an amount equal to the outstanding balance of such policy loan and any accrued but unpaid interest thereon and shall allocate such Reinsurance Asset to the Funds Withheld Account.

(c) Assets in the Funds Withheld Account may be withdrawn and applied by the Company or any successor of the Company without diminution because of insolvency on the part of the Company or the Reinsurer only for the following purposes:

(i) to pay to the Company any amount due to be paid out of the Funds Withheld Account as part of the Reinsurer Termination Payment to the extent such amount is not being disputed by the Reinsurer in good faith;

(ii) to pay any portion of the Net Settlement due to be paid to the Company in accordance with Sections 6.2(b) and 6.2(c) to the extent such portion is not being disputed by the Reinsurer in good faith, and any portion thereof that is due to be paid to the Reinsurer to the extent such portion is not being disputed by the Company in good faith;

(iii) to pay to the Reinsurer amounts remaining in the Funds Withheld Account, if any, after the payment of any amounts due to be paid out of the Funds Withheld Account as part of the Reinsurer Termination Payment to the extent such amount is not being disputed by the Company in good faith; or

(iv) to pay or reimburse the Company for any other amounts due but not yet recovered from the Reinsurer under this Agreement in order to satisfy liabilities under the Reinsured Policies to the extent such amounts are not being disputed by the Reinsurer in good faith.

For the avoidance of doubt, (i) any amounts referred to above that are not the subject of a good faith dispute may be withdrawn and applied for the purposes provided above and (ii) payments to policyholders shall not be delayed due to any good faith disputes by the Company or the Reinsurer under this Section 4.3(c).

(d) If assets are withdrawn from the Funds Withheld Account and are not immediately applied for the purposes set forth in Section 4.3(c) above, the assets improperly withdrawn from the Funds Withheld Account by the Company shall be immediately returned to the Funds Withheld Account. Until such assets are returned to the Funds Withheld Account, such assets shall be held in trust by the Company separate and apart from any other assets of the Company. The Company shall pay to the Funds Withheld Account interest on the amount of any such improperly withdrawn assets at the Applicable Rate from the date of withdrawal to the date such assets are returned to the Funds Withheld Account or paid to the Reinsurer, as applicable (the “Excess FWA Draw Interest Amount”). Such interest shall accrue monthly and shall be paid on the Business Day following the last day of each Monthly Accounting Period. The balance of the amount held or required to be so held separate and apart as of any date of determination shall be an amount (the “Excess FWA Draw Amount”) equal to (i) the Statutory Book Value of assets withdrawn from the Funds Withheld Account in excess of amounts required for the purposes described in Section 4.3(c) above minus any amounts applied by the Company therefrom for such permissible purposes plus (ii) the Excess FWA Draw Interest Amount (whether or not payable as of such date of determination).

Section 4.4 Provision of Security by the Reinsurer.

(a) On the Amendment Date, the Reinsurer shall establish and fund with an amount of cash and assets having a Statutory Book Value equal to the Required Balance, calculated in good faith by the Reinsurer as of the Amendment Date, a trust account (the “Trust Account”) with a Qualified United States Financial Institution unaffiliated with the Reinsurer and the Company and which is reasonably acceptable to the Reinsurer and the Company (the “Trustee”) at the sole cost and expense of the Reinsurer naming the Company as sole beneficiary and shall enter into the Trust Agreement to provide security for the payment of amounts due the

Company under this Agreement. The Reinsurer shall transfer or pay into the Trust Account, and shall thereafter maintain in the Trust Account, cash and assets managed by the Reinsurer or its designee in accordance with the requirements set forth in the Trust Agreement, having a Statutory Book Value, determined in good faith by the Reinsurer on a quarterly basis, to be not less than the Required Balance.

(b) For purposes of this Agreement, the term “Required Balance”, as of any date of determination, means an amount equal to (i) (A) the Reinsurer’s Share of the Statutory Reserves that would be required to be held by the Company with respect to the Reinsured Policies if this Agreement were not in effect, plus (B) the Reinsurer’s Share of the Existing Interest Maintenance Reserve attributable to the Reinsured Liabilities, plus (C) the amount of any New Amendment Interest Maintenance Reserve, less (D) the amount of outstanding policy loans on the Reinsured Policies (to the extent such policy loans constitute admitted assets under SAP, net of any unearned policy loan interest on such loans but including amounts of interest due and accrued with respect thereto), less (E) the net due and deferred Premiums on the Reinsured Policies, less (F) following the Amendment Date and prior to the Hedge Termination Date, the aggregate Statutory Book Value of the XX Xxxxxx, in each case, as of such date of determination and determined in accordance with SAP (to the extent SAP is applicable), consistently applied, plus (ii) the Trust OC Amount. The Required Balance and the Statutory Book Value of any assets held in the Trust Account shall be calculated by the Reinsurer as of the last day of each calendar quarter, and the Reinsurer shall provide a certification with respect to such valuation, including the Statutory Book Value and Fair Market Value of the assets (both on an asset-by-asset basis and a cumulative basis), to the Company and the Trustee within thirty (30) days after the end of such quarter. If the amount of cash plus the Statutory Book Value of assets held in the Trust Account as of any quarter end is less than the Required Balance as of such quarter end, the Reinsurer shall within five (5) Business Days after such determination is made make such further deposits to the Trust Account as are required in order to restore the Required Balance as of such quarter end. If the amount of cash plus the Statutory Book Value of assets held in the Trust Account as of any quarter end is greater than the Required Balance as of such quarter end, the Reinsurer may provide notice to the Company of its desire to withdraw assets from the Trust Account, specifying the amount and type of assets to be withdrawn. Within five (5) Business Days following its delivery of such notice to the Company, the Reinsurer may withdraw such assets from the Trust Account in excess of the amount necessary to maintain such Required Balance as of the applicable quarter end in accordance with the requirements set forth in the Trust Agreement. Any disputes by the Company of the amount of the Required Balance or the valuation of any asset deposited in the Trust Account pursuant to this Section 4.4 shall be resolved in accordance with Section 11.2. Upon resolution of any such dispute in accordance with Section 11.2, either (A) the Reinsurer shall cause to be deposited additional assets that comply with Section 4.4(a) within two (2) Business Days following such resolution, such that following any such deposit, the amount of cash plus the Statutory Book Value of the assets held in the Trust Account is sufficient to maintain the Required Balance as of the applicable quarter end; or (B) the Reinsurer may withdraw assets from the Trust Account in accordance with this Section 4.4(b), such that following any such withdrawal, the amount of cash plus the Statutory Book Value of the assets held in the Trust Account is sufficient to maintain the Required Balance as of the applicable quarter end. Unless otherwise agreed upon in writing by the Company, the Reinsurer shall maintain the Trust Account until all obligations of the Reinsurer under this Agreement have been fully satisfied, as determined by the Company in its sole discretion.

(c) The Company and the Reinsurer agree that the assets maintained in the Trust Account may be withdrawn by the Company only after a default by the Reinsurer in the performance of its monetary obligations hereunder that is not being disputed by the Reinsurer in good faith, which undisputed payment default has not been cured by the Reinsurer within five (5) Business Days following its receipt of a written notice thereof delivered by the Company. The amount of any such withdrawal in excess of amounts then due to Company hereunder shall be deemed maintained in trust for the benefit of the Reinsurer and promptly returned to the Trust Account. Upon prior written notice to the Company, the Reinsurer shall have the right to substitute or exchange assets maintained in the Trust Account in accordance with the requirements set forth in the Trust Agreement.

(d) With respect to the transfer of any Transferred Assets to the Trust Account, the Reinsurer will hold valid title to all such Transferred Assets free and clear of all liens or other encumbrances, other than interests of nominees, custodians or similar intermediaries. As of the date of the transfer of any assets to the Trust Account after the Amendment Date, the Reinsurer will have good and marketable title to all such assets transferred by it to the Trust Account, all assets transferred by the Reinsurer after the Amendment Date to the Trust Account shall be transferred free and clear of any liens other than interests of nominees, custodians or similar intermediaries, and the Reinsurer will not create, incur, assume or permit any lien or other encumbrance on any of the assets held in the Trust Account, or on any interest therein or on any of the proceeds thereof, other than interests of nominees, custodians or similar intermediaries.

(e) The Reinsurer shall notify the Company in writing of any payment default occurring as to any asset in the Trust Account promptly after the Reinsurer receives notice of such default. In the event the Reinsurer determines that a delinquency of a timely payment in regard to any of the assets in the Trust Account has occurred, the Reinsurer shall inform the Company of such delinquency promptly upon such determination.

(f) Assets in the Trust Account may be withdrawn and applied by the Company or any successor of the Company without diminution because of insolvency on the part of the Company or the Reinsurer only for the following purposes:

(i) to pay to the Company any amount due to be paid out of the Trust Account as part of the Reinsurer Termination Payment to the extent such amount is not being disputed by the Reinsurer in good faith;

(ii) to pay any portion of the Net Settlement due to be paid to the Company from the Trust Account in accordance with Section 6.2(b) to the extent such portion is not being disputed by the Reinsurer in good faith; or

(iii) to pay or reimburse the Company for any other amounts due but not yet recovered from the Reinsurer under this Agreement in order to satisfy liabilities under the Reinsured Policies to the extent such amounts are not being disputed by the Reinsurer in good faith.

For the avoidance of doubt, any amounts referred to above that are not the subject of a good faith dispute may be withdrawn and applied for the purposes provided above.

ARTICLE V

PLAN OF REINSURANCE

Section 5.1 Plan. Reinsurance under this Agreement is on a 100% coinsurance basis and is subject to the terms and conditions of the original policy forms for the Reinsured Policies and any amendments thereto in effect as of the Effective Date.

Section 5.2 Follow the Fortunes. The Reinsurer’s liability under this Agreement shall commence on the Effective Date, and all reinsurance with respect to which the Reinsurer shall be liable by virtue of this Agreement shall be subject in all respects to the same risks, terms, rates, conditions, interpretations, assessments, waivers, proportion of premiums paid to, and reinsurance recoveries benefiting, the Company with respect to the Reinsured Liabilities and the Reinsured Policies, the true intent of this Agreement being that the Reinsurer shall follow the fortunes of the Company with respect to the Reinsured Liabilities and Reinsured Policies.

Section 5.3 Reductions and Terminations. Reinsurance amounts are calculated in terms of coverages on a “per policy” basis. If the coverage of any Reinsured Policy on an insured is reduced or terminated, reinsurance under this Agreement on such Reinsured Policy will be equally reduced or terminated.

Section 5.4 Reinstatements. Reinsured Policies ceded under this Agreement shall include any Policy that is reduced, terminated, lapsed or surrendered, and later reinstated pursuant to and in accordance with its policy provisions and will be reinsured by the Reinsurer in accordance with the terms of this Agreement. The Reinsurer will retain any Premiums and interest that the Company has received for reinstatement in respect of periods on or after the Effective Date. A terminated Policy that would have been a Reinsured Policy had it been in force at the Effective Time, that later reinstates pursuant to and in accordance with its policy provisions, will be reinsured by the Reinsurer and become a Reinsured Policy. The Reinsurer will be entitled to retain any Premiums and interest for coverage on or after the Effective Date that is received for such reinstatement, and the Company will transfer to the Reinsurer the amount of reserves for such reinstated Reinsured Policy as of the Effective Date, calculated in a manner that is consistent with the reserve calculations used for the other Reinsured Policies. The date of reinsurance for such reinstated Reinsured Policies shall be the Effective Date. For the avoidance of doubt, the reinstated Policies reinsured under this Section 5.4 shall include any Policy treated as lapsed or otherwise terminated prior to the Effective Time under which the Company subsequently becomes liable as a result of a determination that the policyowner, insured or beneficiary has died prior to the lapse or termination.

Section 5.5 Contractual Conversions; Internal Replacement; Annuitizations.

(a) Any conversion, exchange or replacement policy or contract arising from the Reinsured Policies that is converted, exchanged or replaced pursuant to and in accordance with its policy terms shall be deemed to constitute a Reinsured Policy for purposes of this Agreement and, in the event of a conversion, exchange or replacement of any Reinsured Policy,

the Reinsurer shall reinsure the risk resulting from such conversion on the basis set forth hereby with respect to the Reinsured Policies; provided, however, that the Reinsurer shall not be required to pay any ceding commission with respect to any such converted, exchanged or replacement policy or contract. The Reinsurer will reimburse the Company for any expenses incurred in issuing a converted, exchanged or replacement policy or contract, but only to the extent such expenses are not covered by payments made by the Reinsurer under the Transition Services Agreement.

(b) Absent the Reinsurer’s prior written consent (which may be withheld in its sole discretion), the Company will not solicit owners, beneficiaries or policyholders in connection with, or sponsor or assist, directly or indirectly, in the conduct of, (and will cause each of its Affiliates to refrain from soliciting in connection with, and sponsoring or assisting, directly or indirectly, in the conduct of) any program of internal replacement under which the owners, beneficiaries or policyholders of Reinsured Policies are or would be encouraged to exchange, or assisted in the exchange of, Reinsured Policies for other insurance policies or contracts that are not reinsured under this Agreement. Should the Company or its Affiliates or any of their respective successors or assigns initiate such a program of internal replacement that would include any of the risks reinsured hereunder in violation of the preceding sentence, the Company will immediately notify the Reinsurer. For each risk reinsured hereunder that has been replaced under a program of internal replacement, the Reinsurer shall have the option, at its sole discretion, of either treating the risks reinsured as recaptured on terms reasonably acceptable to the Reinsurer or continuing reinsurance on the new policy under the terms of this Agreement without any ceding commission therefor.

(c) Until the earlier of (i) such time as the Reinsurer is able to administer the Reinsured Policies on its information technology systems or (ii) the expiration of the Transition Services Agreement (the “Systems Conversion”), in the event that a Reinsured Policy is annuitized in full under the contract provisions of such policy (each an “Annuitization”), the Company shall convert such Reinsured Policy to one or more Supplementary Contracts. At the time of such conversion, the Reinsurer shall pay to the Company an amount equal to the policy surrender value of such Reinsured Policy as of the time of the conversion (an “Annuitization Payment”) as part of the Net Settlement. Upon the Annuitization of a Reinsured Policy, the Policy and any associated Supplementary Contracts, comprising such Reinsured Policy shall cease to be a Reinsured Policy under this Agreement, and, with the exception of the Annuitization Payment described in this Section 5.5(c) the Reinsurer will have no further liability with respect to such Policy or any associated Supplementary Contracts. For the avoidance of doubt, any Reinsured Policies that undergo an Annuitization following the Systems Conversion will remain Reinsured Policies and the Reinsurer will reinsure any Supplementary Contracts issued with respect to such Reinsured Policies.

Section 5.6 Policy List Errors.

(a) The Company or the Reinsurer, as applicable, shall notify the other Party if any life insurance policies or contracts issued or reinsured by the Company and in force as of the Effective Date were inadvertently not included on the Policy List and are determined to be a Policy, which shall in no event include any insurance policies and contracts falling within the following lines of business: health, annuities, funding agreements, corporate-owned life insurance and bank-owned life insurance when sold on a group basis, synthetic guaranteed investment contracts and variable life or other variable business.

(b) If any policies or contracts (or components thereof) are determined to be Policies in accordance with this Section 5.6, then the Company shall transfer cash or assets, reasonably satisfactory to the Reinsurer, to the Reinsurer in an amount equal to the Statutory Reserves required to be held with respect to such Policies.

Section 5.7 Renewal Commissions. Any renewal commissions due following the Effective Date will the responsibility of the Reinsurer and shall be paid by the Reinsurer to the Company as part of the Net Settlement pursuant to Section 6.2.

ARTICLE VI

ADMINISTRATION

Section 6.1 Administrative Services.

(a) The Parties hereby agree that the Policies, Other Reinsurance Agreements and, subject to Section 2.10, the XX Xxxxxx shall be administered in accordance with or as otherwise provided in the Administrative Services Agreement and the Transition Services Agreement. The administration of the Policies, Other Reinsurance Agreements and XX Xxxxxx shall be at the sole cost and expense of the Reinsurer.

(b) In the event that the Reinsurer is unable to administer the Policies, Other Reinsurance Agreements and XX Xxxxxx as provided in Section 6.1(a), the Reinsurer shall remain obligated for the costs and expenses of any replacement party providing such administration and the Reinsurer shall reimburse the Company for any such costs and expenses as part of the Net Settlement pursuant to Section 6.2.

Section 6.2 Net Settlements.

(a) For each Monthly Accounting Period, the Parties will effect a settlement on a net basis (the “Net Settlement”) as contemplated in, prior to the Amendment Date, Annex B, and on or after the Amendment Date, Annex F, hereto.

(b) A report reflecting in detail the Net Settlement determinations contemplated in, prior to the Amendment Date, Annex B, and on or after the Amendment Date, Annex F, shall be prepared not later than thirty (30) calendar days after the end of each Monthly Accounting Period. For as long as required under the Transition Services Agreement, the Company shall prepare and deliver such report to the Reinsurer. After such time, the Reinsurer shall prepare and deliver such report to the Company. If a Net Settlement report reflects a balance due to the Company, the amount(s) shown as due shall be paid within ten (10) Business Days of the delivery of the report. If a Net Settlement report reflects a balance due to the Reinsurer, the amount(s) shown as due shall be paid within ten (10) Business Days after the date on which the report was delivered. If there is a delayed settlement of any payment due hereunder, interest will accrue on such payment at the Applicable Rate. For purposes of this section, a payment will be considered overdue on the date which is ten (10) Business Days after the date such payment is due hereunder; provided that such interest will begin to accrue from the original due date with respect to such payment. All settlements of account between the Company and the Reinsurer shall be made in cash or its equivalent.

(c) To the extent that the Reinsurer makes any direct payments to or on behalf of the Company in respect of Reinsured Liabilities or other amounts payable to the Company pursuant to the Net Settlement in respect of a Monthly Accounting Period prior to the Net Settlement process, whether in its capacity as the Administrator or otherwise, the amount of any such payments shall be taken into account for purposes of determining the Net Settlement. In addition, to the extent the Reinsurer receives any Premiums or other amounts payable to the Reinsurer pursuant to the Net Settlement in respect of a Monthly Accounting Period prior to the Net Settlement process, whether in its capacity as the Administrator or otherwise, the amount of any such Premiums received shall be taken into account for purposes of determining the Net Settlement.

(d) Prior to the Amendment Date, the Net Settlement report delivered in respect of each Monthly Accounting Period shall include an adjustment to the Funds Withheld Account Balance (each, a “Funds Withheld Account Adjustment”). The Funds Withheld Account Adjustment shall be calculated as an amount equal to (i) minus (ii) minus (iii), where:

(i) equals the Funds Withheld Account Amount as of the last day of the Monthly Accounting Period to which the then current Net Settlement report relates; and

(ii) equals the Funds Withheld Account Amount at the end of the immediately preceding Monthly Accounting Period, and

(iii) equals the Investment Income earned during the period from but excluding the last day of the immediately preceding Monthly Accounting Period to and including the last day of the Monthly Accounting Period to which the then current Net Settlement report relates.

(e) If the Funds Withheld Account Adjustment for any Monthly Accounting Period is positive, then the Reinsurer shall remit to the Company an amount equal to the Funds Withheld Account Adjustment in accordance with Section 6.2(b). If the Funds Withheld Account Adjustment for any Monthly Accounting Period is negative, then the Company shall remit to the Reinsurer an amount equal to the absolute value of the Funds Withheld Account Adjustment in accordance with Section 6.2(b). For purposes of calculating the Funds Withheld Account Adjustment for the first Monthly Accounting Period after the Effective Time, clause (iii) of Section 6.2(d) shall include only Investment Income earned since the Effective Time.

(f) In connection with any settlement under this Agreement, the Reinsurer shall not be obligated to pay any Excluded Reinsured Liability.

(g) Prior to the Hedge Termination Date, the Net Settlement report delivered in respect of each Accounting Period shall include an adjustment equal to the Assigned EI Hedge Proceeds Amounts, minus the Assigned EI Hedge Cost Amounts. If the adjustment for any Accounting Period is positive, then the Company shall remit to the Reinsurer an amount equal to the adjustment in accordance with this Section 6.2(b). If the adjustment for any Accounting Period is negative, then the Reinsurer shall remit to the Company an amount equal to the absolute value of the adjustment in accordance with this Section 6.2(b).

ARTICLE VII

DAC TAX

Section 7.1 DAC Tax Election. The Company and the Reinsurer hereby elect and agree under Treasury Regulations Section 1.848-2(g)(8) as follows:

(a) The Company and the Reinsurer will each attach a schedule to its federal income tax return for the first taxable year ending after the Effective Date that identifies this Agreement as a reinsurance agreement for which a joint election under Treasury Regulation Section 1.848-2(g)(8) has been made, and will otherwise file its respective federal income tax returns in a manner consistent with the provisions of Treasury Regulation Section 1.848-2 as in effect on the date this Agreement is executed;

(b) For each taxable year under this Agreement, the Party with the net positive consideration, as defined in the regulations promulgated under Section 848 of the Code, will capitalize specified policy acquisition expenses with respect to this Agreement without regard to the general deductions limitation of Section 848(c)(1) of the Code;

(c) The Company and the Reinsurer agree to exchange information pertaining to the amount of net consideration under this Agreement each year to ensure consistency or as otherwise required by the Code and applicable Treasury Regulations;

(d) The first tax year for which this election is effective is 2013;

(e) The Reinsurer will submit to the Company by May 15 each year its calculation of the amount of the net consideration for the preceding calendar year. This schedule of calculations will be accompanied by a statement that the Reinsurer will report such amount of net consideration in its tax return for the preceding calendar year;

(f) The Company may contest such calculation by providing an alternative calculation to the Reinsurer in writing within thirty (30) days of the Company’s receipt of the Reinsurer’s calculation. If the Company does not so notify the Reinsurer, the Company will report the amount of net consideration as determined by the Reinsurer in the Company’s tax return for the previous calendar year;

(g) If the Company contests the Reinsurer’s calculation of the amount of net consideration, the dispute shall be resolved in accordance with Section 10.2.

Both the Company and the Reinsurer are subject to U.S. taxation under Subchapter L of Chapter 1 of the Code.

ARTICLE VIII

INSOLVENCY

Section 8.1 Insolvency. The reinsurance ceded hereunder shall be payable by the Reinsurer on the basis of liability of the Company under the Reinsured Policies without diminution because of the insolvency of the Company, directly to the Company or its liquidator, receiver or statutory successor, except where the Reinsurer, with the consent of the direct insured, has assumed the policy obligations of the Company as direct obligations of the Reinsurer to the payees under a Reinsured Policy and in substitution for the obligations of the Company to the payees. It is agreed and understood, however, that (i) in the event of the insolvency of the Company, the liquidator, receiver or statutory successor of the Company shall give the Reinsurer written notice of the pendency of a claim against the insolvent Company on a Reinsured Policy 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 deems available to the Company, its liquidator, receiver or statutory successor

Section 8.2 Expenses. It is further understood that any expense incurred by the Reinsurer pursuant to Section 8.1 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 IX

TERMINATION

Section 9.1 Duration of Coinsurance. This Agreement will be effective as of the Effective Time. Subject to the provisions of this Article IX, this Agreement will remain in effect, and the reinsurance provided hereunder will remain in force, until termination of the policy or policies on which the reinsurance is based in accordance with the terms of this Agreement. Except as provided in Sections 9.3, the Reinsured Policies are not eligible for recapture by the Company.

Section 9.2 Termination. This Agreement shall terminate:

(a) at any time upon the mutual written consent of the Parties hereto, which writing shall state the effective date of termination; or

(b) automatically at such time as no liability remains under this Agreement.

Section 9.3 Termination by the Company. The Company, in its sole discretion, shall have the option to terminate this Agreement upon the occurrence of any one of the following events:

(a) the Reinsurer is placed in receivership, conservatorship, rehabilitation or liquidation by any insurance regulatory authority;

(b) the Reinsurer breaches Section 4.1, and the Reinsurer fails to cure such breach within the earlier of (i) thirty (30) days following receipt of written notice of such breach from the Company and (ii) the last day of the calendar quarter in which such breach occurs; provided that the Company shall have no right to terminate if the Reinsurer cannot take any action reasonably required for the Company to receive statutory reserve credit without the reasonable cooperation of the Company and the Company shall not have reasonably cooperated with the Reinsurer; provided, further, that it shall be deemed unreasonable to require the Company to cooperate in the event such cooperation would impose on the Company any cost and the Reinsurer has not agreed to be responsible for such cost;

(c) the Reinsurer fails to pay any material amount due to the Company under this Agreement and (i) such amount is not subject to a good faith dispute and (ii) such failure is not cured within ten (10) Business Days following the Reinsurer’s receipt of written notice of such failure from the Company; or

(d) in the event that (i) the Reinsurer’s RBC Ratio is less than 175% or (ii) the Reinsurer fails to provide its RBC Ratio in accordance with Section 4.2 and, upon delivery of written notice from the Company to the Reinsurer, the Reinsurer shall fail to provide its RBC Ratio within ten (10) Business Days following such notice.

Section 9.4 Termination by the Reinsurer. Upon the occurrence of a Reinsurer Termination Event, the Reinsurer shall have the right (but not the obligation) to terminate this Agreement by providing written notice to the Company of its intent to terminate. Termination of this Agreement shall be effective on the date specified in such notice, provided that such date shall not be prior to the date on which the Termination Event occurred. Upon termination of this Agreement pursuant to this Section 9.4, the Company shall be deemed to have recaptured and reassumed all Reinsured Liabilities. Recapture of the Reinsured Policies shall be effective on the date specified in the notice of termination.

Section 9.5 Settlement Upon Termination. Upon the termination of this Agreement by the Company pursuant to Section 9.3 or by the Reinsurer pursuant to Section 9.4, subject to payment by the Reinsurer of any amounts due to the Company pursuant to this Section 9.5 and the payment by the Company of any amounts due to the Reinsurer pursuant to this Section 9.5, the Company shall recapture all liabilities previously ceded to the Reinsurer and the Reinsurer’s liability under this Agreement will terminate (provided, that such termination shall not relieve any Party of any pre-termination breach of this Agreement). The Company shall prepare a Net Settlement report for the period commencing on the first day of the then-current Monthly Accounting Period and ending on the date this Agreement is terminated pursuant to Sections 9.3 or 9.4. On the tenth Business Day following the delivery of such Net Settlement report (a) the applicable Party shall pay any amounts due and owing by such Party on such Net Settlement report; (b) the Reinsurer shall transfer to the Company cash and assets with an aggregate Fair Market Value equal to 100% of an amount equal to: (i) the Reinsurer’s Share of the Statutory Reserves held by the Company with respect to the Reinsured Policies, plus (ii) the Reinsurer’s Share of the Existing Interest Maintenance Reserve attributable to the Reinsured Liabilities, plus

(iii) the amount of any new interest maintenance reserve created at the time of recapture as a result of such recapture divided by 65%, plus (iv) the amount of any New Amendment Interest Maintenance Reserve that remains unamortized as of the date of termination divided by 65%, minus (v) the Reinsurer’s Share of the amount of outstanding policy loans on the Reinsured Policies (to the extent such policy loans constitute admitted assets under SAP, net of any unearned policy loan interest on such loans but including amounts of interest due and accrued with respect thereto), minus (vi) the Reinsurer’s Share of net due and deferred Premiums on the Reinsured Policies reduced by advances thereon, in each case, determined by the Company in accordance with SAP, consistently applied, as of the date of termination (such amount, the “Reinsurer Termination Payment”); and (c) the Company shall pay to the Reinsurer cash equal to the amount of any cash and assets withdrawn by the Company or any successor by operation of law, including any liquidator, rehabilitator, receiver or conservator of the Company, from the Trust Account prior to the date of termination, and not used to satisfy claims of policyholders under the Reinsured Policies prior to the date of termination or to otherwise pay amounts due to the Company pursuant to this Agreement (the “Company Termination Payment”); provided, that, for the avoidance of doubt, the Reinsurer Termination Payment and the Company Termination Payment shall be determined on a net basis and only the balance shall be due and payable by the Reinsurer or the Company, as the case may be. In the event that a balance is due and payable by the Company, the Company shall pay such balance to the Reinsurer in cash by wire transfer of immediately available funds. In the event that a balance is due and payable by the Reinsurer, the Reinsurer shall pay such balance to the Company in cash by wire transfer of immediately available funds. Any dispute by either Party of the Company Termination Payment or the Reinsurer Termination Payment shall be resolved in accordance with Section 10.2.

ARTICLE X

RESOLUTION OF CERTAIN DISPUTES

Section 10.1 Disputes over Actual Initial Coinsurance Premium Calculations and SPA Adjusted Coinsurance Premium.

(a) Within thirty (30) days following its receipt from the Company of the Initial Coinsurance Premium Reconciliation Statement or the SPA Coinsurance Premium Reconciliation Statement, as applicable, (such period, a “Review Period”), the Reinsurer shall either (i) notify the Company in writing of its agreement with the calculation of the Actual Initial Coinsurance Premium or SPA Adjusted Coinsurance Premium, as applicable, set forth therein (“Notice of Agreement”); or (ii) if the Company determines that the Initial Coinsurance Premium Reconciliation Statement or SPA Coinsurance Premium Reconciliation Statement, as applicable, or the calculations reflected therein either (x) have not been prepared on the basis set forth in Section 2.3 or in Section 5.8 of the Purchase Agreement or (y) contain or reflect mathematical errors, inform the Company in writing of its objection (the “Reinsurer’s Objection”), which notice shall set forth in reasonable detail a description of the basis of the Reinsurer’s Objection and the adjustments to such Initial Coinsurance Premium Reconciliation Statement or the SPA Coinsurance Premium Reconciliation Statement, as applicable or the calculations reflected therein that the Reinsurer requests be made. The Company, as applicable, shall, following the Effective Date through the date that the Initial Coinsurance Premium Reconciliation Statement or SPA Coinsurance Premium Reconciliation Statement, as applicable, becomes final in accordance with the last sentence of Section 10.1(c), take all actions necessary or desirable to maintain and

preserve all accounting books, records, policies and procedures on which such Initial Coinsurance Premium Reconciliation Statement or SPA Premium Reconciliation Statement, as applicable, are based or on which the finalized Initial Coinsurance Premium Adjustment or SPA Coinsurance Premium Adjustment, as applicable, are to be based so as not to impede or delay the determination of the finalized Actual Initial Coinsurance Premium, the finalized SPA Adjusted Coinsurance Premium, the finalized Statutory Book Value of the Initial Reinsurance Assets as of the Effective Date or the preparation of the Reinsurer’s Objection in the manner and utilizing the methods permitted by this Agreement. Upon receipt by the Company of a Notice of Agreement from the Reinsurer or if no Reinsurer’s Objection is received by the Company prior to the expiration of the Review Period, the Actual Initial Coinsurance Premium, the SPA Adjusted Coinsurance Premium and the Reinsurer’s calculation of the Initial Coinsurance Premium Adjustment (as set forth in the Initial Coinsurance Premium Reconciliation Statement) and the SPA Coinsurance Premium Adjustment (as set forth in the SPA Coinsurance Premium Reconciliation Statement) shall be deemed to have been accepted by the Reinsurer and will become final and binding upon the Parties in accordance with the last sentence of Section 10.1(c).

(b) If the Reinsurer timely delivers a Reinsurer’s Objection to the Company, the Company shall have thirty (30) days from the date of such delivery to review and respond to such Reinsurer’s Objection (the “Consultation Period”). The Parties shall use reasonable, good faith efforts to resolve any disagreements that they may have with respect to the matters set forth in the Reinsurer’s Objection. If the Parties are unable to resolve all of their disagreements with respect to the matters set forth in the Reinsurer’s Objection within ten (10) Business Days following the expiration of the Consultation Period, then the Parties shall submit all matters that remain in dispute with respect to the Reinsurer’s Objection (along with a copy of the Initial Coinsurance Premium Reconciliation Statement, SPA Coinsurance Premium Reconciliation Statement and the Company’s calculation of the amounts set forth therein, marked to indicate those line items that are still in dispute) to an independent internationally recognized accounting firm of independent certified public accountants with appropriate actuarial expertise mutually agreed by the Parties (the “CPA Firm”), which shall, acting as an expert and not as an arbitrator, make a final determination, on the basis of the standards set forth in Section 2.3 hereof, and only with respect to any remaining differences submitted to the CPA Firm, in accordance with this Section 10.1(b), of the appropriate amount of each line item in the Initial Coinsurance Premium Reconciliation Statement, SPA Coinsurance Premium Reconciliation Statement and the Company’s calculation of the amounts set forth therein as to which the Parties disagree (such items that remain in dispute, the “Unresolved Items”).

(c) The Parties shall instruct the CPA Firm to deliver its written determination to the Reinsurer and the Company no later than fifteen Business Days after the Unresolved Items are referred to the CPA Firm. The CPA Firm’s determination shall include a certification that it reached such determination in accordance with this Section 10.1(c) and shall be conclusive and binding upon the Parties, absent fraud or clear and manifest error. With respect to each Unresolved Item, the CPA Firm’s determination, if not in accordance with the position of either the Company or the Reinsurer, shall not be more favorable to the Reinsurer than the amounts advocated by the Reinsurer in the Reinsurer’s Objection or more favorable to the Company than the amounts advocated by the Company in the Initial Coinsurance Premium Reconciliation Statement, the SPA Coinsurance Premium Reconciliation Statement or the Company’s

calculations of the amounts set forth therein with respect to such disputed line item and/or calculation. For the avoidance of doubt, (i) the CPA Firm’s review of the Initial Coinsurance Premium Reconciliation Statement, the SPA Coinsurance Premium Reconciliation Statement and the Company’s calculation of the amounts set forth therein shall be limited to a determination of whether such documents and calculations were prepared in accordance with Section 2.3, and (ii) the CPA Firm shall not review any line items or make any determination with respect to any matters other than the Unresolved Items that were referred to the CPA Firm for resolution pursuant to this Section 10.1(c). The determination of the amounts set forth in the Initial Coinsurance Premium Reconciliation Statement or the SPA Coinsurance Premium Reconciliation Statement, as applicable, that are final and binding on the Parties, as determined either through (1) the Reinsurer’s delivery of a Notice of Agreement pursuant to Section 10.1(a), (2) the Reinsurer’s failure to deliver Reinsurer’s Objection prior to expiration of the Review Period pursuant to Section 10.1(a), (3) agreement by the Parties during the Consultation Period or (4) the determination of the CPA Firm pursuant to this Section 10.1(c) are referred to herein as the “finalized Actual Initial Coinsurance Premium,” the “finalized Initial Coinsurance Premium Adjustment,” the “finalized Statutory Book Value of the Initial Reinsurance Assets as of the Effective Date,” the “finalized SPA Adjusted Coinsurance Premium,” and the “finalized SPA Coinsurance Premium Adjustment,” as the case may be.

(d) The Parties agree that judgment may be entered upon the CPA Firm’s determination in any court having jurisdiction over the Reinsurer or the Company or their respective assets, as the case may be. The fees and disbursements of the CPA Firm shall be paid by the Parties in proportion to those matters submitted to the CPA Firm that are resolved against that Party, as such fees and disbursements are allocated by the CPA Firm in accordance with this Section 10.1 at the time of the CPA Firm’s determination. At any time following delivery of the Initial Coinsurance Premium Reconciliation Statement or the SPA Coinsurance Premium Reconciliation Statement, as applicable, the Reinsurer shall provide to the Company and its Representatives full access to books and records and other information with respect to the Reinsured Policies and the Net Retained Liabilities, including work papers of its accountants (subject to execution by the Company and/or its Representatives, as applicable, of a customary hold-harmless agreement in form and substance reasonably acceptable to such accountants), and to any employees during regular business hours and on reasonable advance notice, to the extent necessary for the Company to prepare the Initial Coinsurance Premium Reconciliation Statement or the SPA Coinsurance Premium Reconciliation Statement or to prepare materials for presentation to the CPA Firm. The Parties shall make readily available to the CPA Firm, during regular business hours and on reasonable advance notice, interviews with such employees, and all relevant information, books and records and any work papers of their respective accountants (in each case, subject to execution by the CPA Firm of a customary hold-harmless agreement in form and substance reasonably acceptable to such accountants) relating to the Initial Coinsurance Premium Reconciliation Statement, the SPA Coinsurance Premium Reconciliation Statement and any Unresolved Items and all other items reasonably required by the CPA Firm to fulfill its obligations under Section 10.1(c). In acting under this Section 10.2, the CPA Firm will be entitled to the privileges and immunities of an arbitrator.

(e) For the avoidance of doubt, this Section 10.1 shall not apply to any dispute between the Parties with respect to the interpretation of any provision, term or condition of this Agreement.

Section 10.2 Disputes over Calculations. After the Effective Date, any dispute between the Parties with respect to the calculation of amounts that are to be calculated or reported pursuant to this Agreement (other than disputes with respect to the Actual Initial Coinsurance Premium and the SPA Adjusted Initial Coinsurance Premium, which shall be resolved in accordance with Section 10.1 hereof), including disputes with respect to any Net Settlement, calculations relating to DAC tax or the amount of the Reinsurer Termination Payment or the Company Termination Payment, that cannot be resolved by the Parties within sixty (60) calendar days, shall be referred to an independent accounting firm of national recognized standing (which shall not have any material relationship with the Reinsurer or the Company) mutually agreed to by the Parties; provided, however, that where the dispute involves an actuarial issue, the dispute shall instead be referred to an independent actuarial firm of national recognized standing (which shall not have any material relationship with the Reinsurer or the Company) mutually agreed to by the Parties. Within twenty (20) Business Days following the selection of the accounting firm or actuarial firm, as applicable, the Parties shall submit their positions and supporting documentation to such accounting firm or actuarial firm. Within forty (40) Business Days of such submission, the accounting firm or actuarial firm, as applicable, shall, in light of the evidence provided by both Parties, determine the calculations in dispute within the range of difference between the Reinsurer’s position thereto and the Company’s position thereto. There shall be no appeal from the decision made by such firm, which shall be final and binding (absent fraud or clear and manifest error), except that, either Party may petition a court having jurisdiction over the other Party or its assets to reduce the arbitrator’s decision to judgment. The fees charged by the accounting firm or actuarial firm, as applicable, to resolve the dispute shall be allocated between the Company and the Reinsurer by such firm in accordance with its judgment as to the relative merits of the Parties’ positions in respect of the dispute. For the avoidance of doubt, this Section 10.2 shall not apply to any dispute between the Parties with respect to the interpretation of any provision, term or condition of this Agreement.

ARTICLE XI

INDEMNIFICATION

Section 11.1 Indemnification of the Reinsurer by the Company. From and after the Effective Date, the Company shall indemnify, defend and hold harmless the Reinsurer and its officers, directors and authorized Representatives (the “Reinsurer Indemnified Parties”) from and against, and pay and reimburse the Reinsurer Indemnified Parties for, all Losses imposed on, sustained, incurred or suffered by, or asserted against, the Reinsurer Indemnified Parties (a) solely as a result of actions or omissions of the Company, but only to the extent such actions or omissions of the Company constitute gross negligence or bad faith and were not taken or omitted at the direction of the Reinsurer or consented to by the Reinsurer or (b) arising out of any breach or nonfulfillment by the Company of, or any failure by the Company to perform, any of the covenants, terms or conditions of or any of its duties or obligations under this Agreement unless such breach, nonfulfillment or failure arises out of or results from the action or omission of the Reinsurer pursuant to the Administrative Services Agreement; provided, however, that the Company shall have no obligation to indemnify, defend and hold harmless the Reinsurer Indemnified Parties for any Reinsured Liabilities.

Section 11.2 Indemnification of the Company by the Reinsurer. From and after the Effective Date, the Reinsurer shall indemnify, defend and hold harmless the Company, and its officers, directors and authorized Representatives (the “Company Indemnified Parties”) from and against, and pay and reimburse the Company Indemnified Parties for, all Losses imposed on, sustained or incurred or suffered by, or asserted against, the Company Indemnified Parties to the extent such Losses (a) constitute Reinsured Liabilities, (b) arise out of any breach or nonfulfillment by the Reinsurer of, or any failure by the Reinsurer to perform, any of the covenants, terms or conditions of or any of its duties or obligations under this Agreement unless such breach, nonfulfillment or failure arises out of or results from the action or omission of the Company or its Affiliates pursuant to the Transition Services Agreement, (c) arise out of written instructions of the Reinsurer given pursuant to Section 3.2 hereof, or (d) arise out of the Company following a written recommendation of the Reinsurer given in accordance with Section 2.7(b).

ARTICLE XII

CONFIDENTIALITY

Section 12.1 Confidentiality. Except as provided in the Other Transaction Agreements, each of the Reinsurer and the Company agrees to hold any Confidential Information with respect to the other Party in strictest confidence and to take all reasonable steps to ensure that such Confidential Information is not disclosed in any form by any means by it or by its Affiliates, employees, advisors, agents or administrators (collectively, “Representatives”) to third parties of any kind or used by it or its Representatives for any purpose other than the performance of its obligations under this Agreement; provided that the foregoing obligation shall not prohibit disclosure of any such information (a) if required by Applicable Law or stock exchange rules, or if required or requested by any Governmental Entity (provided in the case of this clause (a) that the disclosing party shall allow (to the extent permitted by Applicable Law and reasonably practicable) the other Party a reasonable opportunity to comment on such disclosure in advance of such disclosure); (b) to the disclosing Party’s Representatives, auditors or ratings agencies, provided, that such Representatives, auditors or ratings agencies are made aware of the provisions of this Article XII; (c) to the extent that the information has been made public by or on behalf of, or with the prior consent of, the non-disclosing Party; (d) if required in connection with any report required to be filed or submitted with any Governmental Entity; (e) to a retrocessionaire of the Reinsurer; (f) to the extent reasonably necessary in connection with any dispute with respect to this Agreement; and (g) as necessary for the Reinsurer to perform its obligations as Administrator under the Administrative Services Agreement. The Reinsurer agrees to hold medical, financial and other personal information about proposed, current, and former policyowners, insureds, applicants and beneficiaries of Policies in confidence to the extent required to be held in confidence under Applicable Law and the Reinsurer’s privacy policy or policies and shall establish and maintain safeguards against the unauthorized access, destruction, loss or alteration of such information which are no less rigorous than those maintained by Reinsurer for its own information of a similar nature. Notwithstanding anything to the contrary, for purposes of this Section 12.1, the Reinsurer, in its capacity as Administrator on behalf of the Company, shall not be considered an advisor, agent or administrator of the Company.

ARTICLE XIII

REPRESENTATIONS AND WARRANTIES

Section 13.1 Representations and Warranties of Reinsurer. The Reinsurer hereby represents and warrants to the Company as of the Effective Time:

(a) Organization, Standing and Authority. The Reinsurer is a corporation duly organized and validly existing under the laws of the State of Massachusetts and has all requisite power and authority to own, lease and operate its assets, properties and business and to carry on the operations of its business as they are now being conducted, except where the failure to have such authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect. The Reinsurer is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Reinsurer’s ability to perform its obligations under this Agreement.

(b) Authorization. The Reinsurer has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly executed and delivered by the Reinsurer, and, subject to the due execution and delivery by the Company, this Agreement is valid and the binding obligation of the Reinsurer, enforceable against the Reinsurer in accordance with its terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other similar laws now or hereafter in effect relating to or affecting the rights of creditors of insurance companies or creditor’s rights generally and (ii) general principles of equity (regardless of whether considered in a proceeding at law or in equity).

(c) Actions and Proceedings. There are no outstanding orders, decrees or judgments by or with any Governmental Entity applicable to the Reinsurer or its properties or assets that, individually or in the aggregate, have a material adverse effect on the Reinsurer’s ability to perform its obligations under this Agreement. There are no actions, suits, arbitrations or legal, administrative or other proceedings pending or, to the knowledge of the Reinsurer, threatened against, at law or in equity, or before or by any Governmental Entity or before any arbitrator of any kind which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Reinsurer’s ability to perform its obligations under this Agreement.

(d) No Conflict or Violation. The execution, delivery and performance by the Reinsurer of this Agreement and the consummation of the transactions contemplated hereby in accordance with the terms and conditions hereof will not: (i) violate any provision of the charter, bylaws or other organizational document of the Reinsurer, (ii) violate, conflict with or result in the breach of any of the terms of, result in any modification of the effect of, otherwise give any other contracting party the right to terminate or constitute (or with notice or lapse of time or both, constitute) a default under, any contract to which the Reinsurer is a party or by or to which its properties may be bound or subject, (iii) violate any order, judgment, injunction, award or decree of any arbitrator or Governmental Entity, or any agreement with, or condition imposed by, any arbitrator or Governmental Entity, binding upon, the Reinsurer, (iv) violate any Applicable Law

or (v) result in a breach or violation of any of the terms or conditions of, constitute a default under, or otherwise cause an impairment of, any license or authorization related to the Reinsurer’s business or necessary to enable the Reinsurer to perform its obligations under this Agreement, except for any such violations, conflicts or breaches which would not individually or in the aggregate reasonably be expected to have a material adverse effect on the Reinsurer’s ability to perform its obligations under this Agreement.

(e) Brokers and Financial Advisers. No broker, finder or financial adviser has acted directly or indirectly as such for, or is entitled to any compensation from, the Reinsurer in connection with this Agreement or the transactions contemplated hereby.

Section 13.2 Representations and Warranties of the Company. The Company hereby represents and warrants to the Reinsurer as of the Effective Time:

(a) Organization, Standing and Authority. The Company is a corporation duly organized and validly existing under the laws of the State of New York and has all requisite power and authority to own, lease and operate its assets, properties and business and to carry on the operations of its business as they are now being conducted, except where the failure to have such authority would not, individually or in the aggregate, reasonably be expected to have a material adverse effect. The Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction where such qualification is necessary, except for those jurisdictions where the failure to be so qualified would not, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company’s ability to perform its obligations under this Agreement.

(b) Authorization. The Company has all requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement. This Agreement has been duly executed and delivered by the Company, and, subject to the due execution and delivery by the Reinsurer, this Agreement is valid and the binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to (i) bankruptcy, insolvency, reorganization, fraudulent transfer, moratorium and other similar laws now or hereafter in effect relating to or affecting the rights of creditors of insurance companies or creditor’s rights generally and (ii) general principles of equity (regardless of whether considered in a proceeding at law or in equity).

(c) Actions and Proceedings. There are no outstanding orders, decrees or judgments by or with any Governmental Entity applicable to the Company or its properties or assets that, individually or in the aggregate, have a material adverse effect on the Company’s ability to perform its obligations under this Agreement. There are no actions, suits, arbitrations or legal, administrative or other proceedings pending or, to the knowledge of the Company, threatened against, at law or in equity, or before or by any Governmental Entity or before any arbitrator of any kind which would, individually or in the aggregate, reasonably be expected to have a material adverse effect on the Company’s ability to perform its obligations under this Agreement.

(d) No Conflict or Violation. The execution, delivery and performance by the Company of this Agreement and the consummation of the transactions contemplated hereby in accordance with the terms and conditions hereof will not: (i) violate any provision of the charter, bylaws or other organizational document of the Company, (ii) violate, conflict with or result in the breach of any of the terms of, result in any modification of the effect of, otherwise give any other contracting party the right to terminate or constitute (or with notice or lapse of time or both, constitute) a default under, any contract to which the Company is a party or by or to which its properties may be bound or subject, (iii) violate any order, judgment, injunction, award or decree of any arbitrator or Governmental Entity, or any agreement with, or condition imposed by, any arbitrator or Governmental Entity, binding upon, the Company, (iv) violate any Applicable Law or (v) result in a breach or violation of any of the terms or conditions of, constitute a default under, or otherwise cause an impairment of, any license or authorization related to the Company’s business or necessary to enable the Company to perform its obligations under this Agreement, except for any such violations, conflicts or breaches which would not individually or in the aggregate reasonably be expected to have a material adverse effect on the Company’s ability to perform its obligations under this Agreement.

(e) Brokers and Financial Advisers. No broker, finder or financial adviser has acted directly or indirectly as such for, or is entitled to any compensation from, the Company in connection with this Agreement or the transactions contemplated hereby.

ARTICLE XIV

GENERAL PROVISIONS

Section 14.1 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 caused by mistake, misunderstanding or oversight, the Parties will equitably adjust the situation to what it would have been had the mistake, misunderstanding or oversight not occurred, and the reinsurance provided hereunder will not be invalidated. Should it not be possible to adjust the situation, it will be resolved in accordance with dispute resolution procedures mutually selected by the Parties.

Section 14.2 Offset and Recoupment. The Company or the Reinsurer may offset or recoup any undisputed balance or amount due from one Party to the other Party under this Agreement; provided, that in the event of the insolvency of the Company, offsets shall only be allowed in accordance with New York Insurance Law Section 7427. The right of setoff shall not be affected or diminished because of the insolvency of either Party.

Section 14.3 Expenses. Except as otherwise provided in this Agreement each Party shall bear its own costs and expenses incurred in connection with the transactions contemplated by this Agreement. All transfer, sales, use, value added, excise, stock transfer, documentary, stamp, recording, registration and any similar taxes that become payable as a result of the allocation of the Initial Reinsurance Assets to the Funds Withheld Account (including any real property transfer tax and any similar tax) shall be borne fifty percent (50%) by the Company and fifty percent (50%) by the Reinsurer.

Section 14.4 Parties to this Agreement. This is an agreement for indemnity reinsurance solely between the Company and the Reinsurer. The performance of the obligations of each Party under this Agreement shall be rendered solely to the other Party. The acceptance of risks under this Agreement shall create no right or legal relationship between the Reinsurer and the insured, owner or beneficiary of any insurance policy or other contract of the Company.

Section 14.5 Authority. Neither the Company nor the Reinsurer shall have any power or authority to act for or on behalf of the other except as expressly granted herein or in the Administrative Services Agreement or Transition Services Agreement, and no other or greater power or authority shall be implied by the grant or denial of power or authority specifically mentioned herein. No employee or agent of either Party shall be considered an employee or agent of the other.

Section 14.6 No Assignment. This Agreement may not be assigned by either of the Parties hereto without the prior written approval of the other Party. Notwithstanding the foregoing, the Reinsurer shall not be prohibited from further transfer of risks accepted hereunder on a retrocession or other basis without the prior approval of the Company; provided that any transfer shall not relieve the Reinsurer of its obligations under this Agreement.

Section 14.7 Notices. Any notice, approval, request, consent, instruction, or other document to be given hereunder by any Party hereto to the other Party hereto will be delivered by personal delivery, overnight express or facsimile (followed by telephone confirmation with the intended recipient), as follows:

If to the Company, to:

Athene Life Insurance Company of New York

0000 Xxxxx Xxxxx Xxxxxxx

Xxxx Xxx Xxxxxx, Xxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attention: Xxxx X. Xxxxxxxx

Email: xxxxxxxxx@xxxxxx.xxx

with a copy (which shall not constitute notice) to:

Athene USA Corporation

0000 Xxxxx Xxxxx Xxxxxxx

Xxxx Xxx Xxxxxx, XX 00000

Attention: Xxxx Xxxxxxxx

Email: xxxxx@xxxxxx.xxx

and

Sidley Austin LLP

0 Xxxxx Xxxxxxxx

Xxxxxxx, Xxxxxxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attn: Xxxxx X. Xxxxxxxxx, Esq.

and

Sidley Austin LLP

000 Xxxxxxx Xxxxxx

Xxx Xxxx, Xxx Xxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attn: Xxxxxxxx X. Xxxxx, Esq.

If to the Reinsurer, to:

First Allmerica Financial Life Insurance Company

c/o Commonwealth Annuity and Life Insurance Company

000 Xxxxxxxx Xxxx Xxxxx 000

Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attn: Xxxxx Xxxxxxxxx, Esq.

with a copy (which shall not constitute notice) to:

Debevoise & Xxxxxxxx LLP

000 Xxxxx Xxxxxx

Xxx Xxxx, Xxx Xxxx 00000

Telephone: (000) 000 0000

Facsimile: (000) 000 0000

Attn: Xxxx X. Xxxxxx, Esq.

Xxxxxx X. Xxxxx, Esq.

or at such other address for a Party as will be specified by like notice. Each notice or other communication required or permitted under this Agreement that is addressed as provided in this Section 14.7 will be deemed given upon delivery.

Section 14.8 Severability. If any provision of this Agreement is held to be illegal, invalid, or unenforceable under any present or future law, and if the rights or obligations of the Company or the Reinsurer under this Agreement will not be materially and adversely affected thereby, (a) such provision will be fully severable, (b) this Agreement will be construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part hereof, (c) the remaining provisions of this Agreement will remain in full force and effect and will not be affected by the illegal, invalid or unenforceable provision or by its severance from this Agreement, and (d) in lieu of such illegal, invalid or unenforceable provision, there will be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible.

Section 14.9 Announcements. Except as required by Applicable Law or in connection with public disclosure to investors or analysts, the content and timing of public announcements by either Party concerning the transactions contemplated by this Agreement must be approved in advance by both Parties, but such approval shall not be unreasonably withheld, conditioned or delayed.

Section 14.10 Schedules, Annexes and Exhibits. All Schedules, Annexes and Exhibits to this Agreement are attached hereto and are incorporated herein by reference. The provisions of this Agreement (without reference to any attached Schedules, Annexes and Exhibits) shall be deemed to control in the event of any inconsistency or conflict between the provisions of this Agreement (without reference to any attached Schedules, Annexes and Exhibits) and the Schedules, Annexes and Exhibits attached hereto.

Section 14.11 Entire Agreement. This Agreement (including all Exhibits, Annexes and Schedules hereto), and the Other Transaction Agreements constitute the entire agreement, and supersede all prior agreements, understandings, representations and warranties, both written and oral, between the Parties with respect to the subject matter of this Agreement and such other agreements. Except as set forth in Sections 11.1 and 11.2 with respect to the Reinsurer Indemnified Parties and the Company Indemnified Parties, this Agreement is not intended to and shall not confer upon any Person other than the Parties hereto and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns any rights or remedies.

Section 14.12 Binding Effect. This Agreement is binding upon, and will inure to the benefit of, the Parties and their respective permitted assignees and successors (including any liquidator, rehabilitator, receiver or conservator of a Party).

Section 14.13 Waiver and Amendment. This Agreement may be modified or amended only by a writing duly executed by the Company and the Reinsurer. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof. A waiver must be in writing and must be executed by such Party. A waiver on any occasion shall not be deemed to be a waiver of the same or any term or condition on a future occasion.

Section 14.14 Headings. The headings in this Agreement are for reference purposes only and shall not affect the interpretation of this Agreement.

Section 14.15 Counterparts. This Agreement may be executed simultaneously in any number of counterparts, each of which will be deemed an original, but all of which will constitute one and the same instrument.

Section 14.16 No Prejudice. The Parties agree that this Agreement has been jointly negotiated and drafted by the Parties hereto and that the terms hereof shall not be construed in favor of or against any Party on account of its participation in such negotiations and drafting.

Section 14.17 Governing Law; Jurisdiction; Enforcement.

(a) This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to the principles of conflicts of law rules thereof.

(b) Subject to Section 10.1 and Section 10.2, each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in New York County, for purposes of all legal proceedings arising out of or relating to this Agreement, or the transactions contemplated by this Agreement, or for recognition and enforcement of any judgment in respect thereof. In any such action, suit or other proceeding, each party hereby irrevocably waives, to the fullest extent permitted by Applicable Law, any objection that it may now or hereafter have to the laying of the venue of any such proceedings brought in such court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Each party also agrees that any final and unappealable judgment against a party in connection with any action, suit or other proceeding shall be conclusive and binding on such party and that such award or judgment may be enforced in any court of competent jurisdiction, either within or outside of the United States. A certified or exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of such award or judgment. Each party agrees that any process or other paper to be served in connection with any action or proceeding under this Agreement shall, if delivered, sent or mailed in accordance with Section 14.7, constitute good, proper and sufficient service thereof.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION, ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 14.17.

Section 14.18 Further Assurances. Each Party shall take, or cause to be taken, any and all reasonable actions, including the execution, acknowledgment, filing and delivery of any and all documents and instruments that the other Party may reasonably request in order to effect the intent and purpose of this Agreement and the transactions contemplated hereby.

[Remainder of page intentionally left blank]

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their respective duly authorized officers, effective as of the date first written above.


ATHENE LIFE INSURANCE COMPANY OF NEW YORK

By:
Name:
Title:

FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY

By:
Name:
Title:

[Signature Page to Coinsurance Agreement]

Schedule 1.1(i)

Assumed Reinsurance Agreements

None.

Schedule 1.1(ii)

Other Reinsurance

1.	Automatic/Facultative YRT Reinsurance Agreement, by and between ALACNY and RGA, dated as of August 18, 2008.

2.	Automatic Yearly Renewable Term Reinsurance Agreement, by and between ALACNY and Canada Life, dated as of August 18, 2008.

3.	Automatic Yearly Renewable Term Reinsurance Agreement, by and between ALACNY and General Re, dated as of April 1, 2009.

4.	Automatic Yearly Renewable Term Reinsurance Agreement, by and between ALACNY and Hannover, dated as of August 16, 2010.

5.	Automatic/Facultative YRT Reinsurance Agreement, by and between ALACNY and RGA, dated as of November 8, 2008.

6.	Automatic Yearly Renewable Term Reinsurance Agreement, by and between ALACNY and Canada Life, dated as of November 8, 2008.

7.	Automatic Yearly Renewable Term Reinsurance Agreement, by and between ALACNY and Canada Life, dated August 18, 2008.

8.	Automatic YRT Reinsurance Agreement, by and between ALACNY and Scor, dated as of August 16, 2010.

9.	Automatic Self Administered YRT Reinsurance Agreement, by and between ALACNY and Swiss Re, dated as of January 25, 2010.

10.	Auto Self Administered YRT Reinsurance Agreement, by and between ALACNY and Swiss Re, dated as of August 16, 2010.

Schedule 2.11

Existing Interest Maintenance Reserve

[See attached.]

Section 2.11

Existing Interest Maintenance Reserve (Non-Financed NLG)

The Parties will work together to develop the IMR amortization schedule based upon the actual disposal information, producing an amortization schedule to be added to this agreement. At the time of this agreement’s execution, the best estimates of IMR are

IMR (based on 8/31 experience): $1,480,203

Schedule 2.12

New Amendment Interest Maintenance Reserve

[See attached.]

Schedule 2.15

Amendment Date Funds Withheld Assets

[See attached.]

Annex A

List of Initial Reinsurance Assets

[See attached.]


Annex A (List of Initial Reinsurance Assets)		ALACNY - FAFLIC Non-Financed AXXX/XXX


Available?	Unique ID	Maturity Date	Sec ID	Description	Original Face		9/26/13 Par Value		9/26/13 Stat. Book Value		9/26/13 Market Value		Accrued Interest
Available	000000XX0-1-526	01-Apr-19	000000XX0	BHP BILLITON FINANCE (USA) LTD		3,000,000.00		3,000,000.00		2,993,946.54		3,595,821.00		95,333.33
Available	00000XXX0-1-526	10-Jul-46	00000XXX0	BANC OF AMERICA COMMERCIAL MOR		6,000,000.00		6,000,000.00		5,992,346.11		6,582,402.00		24,414.00
Available	00000XXX0-1-526	11-Mar-39	00000XXX0	BEAR XXXXXXX COMMERCIAL MORTGA		6,000,000.00		6,000,000.00		5,986,530.12		6,506,490.00		24,310.00
Available	00000XXX0-1-513	01-Aug-19	00000XXX0	CAREFUSION CORP		1,000,000.00		1,000,000.00		989,072.92		1,144,714.00		9,916.67
Available	00000X0X0-4-513	01-Oct-18	00000X0X0	CATERPILLAR FINANCIAL SERVICES		2,000,000.00		2,000,000.00		2,003,899.37		2,457,850.00		69,325.00
Available	00000X0X0-1-525	01-Oct-18	00000X0X0	CATERPILLAR FINANCIAL SERVICES		2,000,000.00		2,000,000.00		2,003,899.37		2,457,850.00		69,325.00
Available	00000X0X0-1-526	01-Oct-18	00000X0X0	CATERPILLAR FINANCIAL SERVICES		2,000,000.00		2,000,000.00		2,003,899.37		2,457,850.00		69,325.00
Available	00000X0X0-1-527	01-Oct-18	00000X0X0	CATERPILLAR FINANCIAL SERVICES		2,000,000.00		2,000,000.00		2,003,899.37		2,457,850.00		69,325.00
Available	000000XX0-1-529	00-Xxx-00	000000XX0	XXXXXXX FOODS INC		1,000,000.00		1,000,000.00		1,294,798.85		1,272,049.00		2,750.00
Available	00000XXX0-1-527	13-Apr-17	00000XXX0	XXXX DEERE CAPITAL CORP		3,000,000.00		3,000,000.00		2,992,862.02		3,383,691.00		75,166.67
Available	000000XX0-4-513	00-Xxx-00	000000XX0	XXXXX ENERGY CORPORATION		2,300,000.00		2,300,000.00		2,668,908.61		3,000,333.90		82,282.50
Available	00000XXX0-1-529	01-Dec-41	00000XXX0	XXXX DISNEY COMPANY (THE)		3,000,000.00		3,000,000.00		2,965,833.60		2,788,764.00		39,875.00
Available	00000XXX0-1-526	15-Aug-19	00000XXX0	DUKE REALTY LP		1,000,000.00		1,000,000.00		999,717.05		1,244,023.00		9,625.00
Available	00000XXX0-1-527	15-Jul-20	00000XXX0	ERP OPERATING LIMITED PARTNERS		3,000,000.00		3,000,000.00		2,983,018.01		3,239,349.00		40,375.00
Available	000000XX0-1-526	08-Dec-41	000000XX0	ECOLAB INC		5,000,000.00		5,000,000.00		4,949,374.36		5,405,770.00		83,263.89
Available	000000XX0-1-526	01-Mar-38	000000XX0	FIFTH THIRD BANCORP		2,000,000.00		2,000,000.00		1,592,563.43		2,575,302.00		11,916.67
Available	00000X0X0-1-526	14-Jan-38	00000X0X0	GENERAL ELECTRIC CAPITAL CORP		3,000,000.00		3,000,000.00		2,993,153.84		3,311,754.00		35,739.58
Available	00000X0X0-1-526	10-Jan-39	00000X0X0	GENERAL ELECTRIC CAPITAL CORP		2,000,000.00		2,000,000.00		1,970,974.10		2,473,974.00		29,409.72
Available	00000XXX0-1-526	15-Dec-16	00000XXX0	GENWORTH FINANCIAL INC		2,000,000.00		2,000,000.00		1,997,512.93		2,371,132.00		48,875.00
Available	00000XXX0-2-513	01-Oct-37	00000XXX0	XXXXXXX XXXXX GROUP INC/THE		2,675,000.00		2,675,000.00		2,779,975.99		2,825,787.08		88,275.00
Available	000000XX0-1-513	15-Dec-40	000000XX0	XXXXXX CORPORATION		5,000,000.00		5,000,000.00		5,191,349.26		5,402,070.00		87,125.00
Available	000000XX0-1-526	15-Feb-21	000000XX0	HERSHEY COMPANY THE		1,000,000.00		1,000,000.00		1,038,175.60		1,304,331.00		10,266.67
Available	000000XX0-1-526	15-Aug-21	000000XX0	XXXXXXXXX-XXXX CO.		1,000,000.00		1,000,000.00		1,028,137.83		1,273,876.00		10,500.00
Available	000000XX0-1-525	01-Sep-16	000000XX0	INTERNATIONAL BANK FOR RECONST		1,000,000.00		1,000,000.00		974,589.92		1,208,435.00		5,958.33
Available	000000XX0-2-528	01-Dec-96	000000XX0	INTERNATIONAL BUSINESS MACHINE		2,000,000.00		2,000,000.00		2,285,321.39		2,713,696.00		45,916.67
Available	000000XX0-1-529	01-Dec-96	000000XX0	INTERNATIONAL BUSINESS MACHINE		2,000,000.00		2,000,000.00		2,284,225.01		2,713,696.00		45,916.67
Available	00000XXX0-1-526	12-Xxx-00	00000XXX0	XX XXXXXX CHASE COMMERCIAL MOR		9,500,000.00		9,500,000.00		9,405,278.91		10,009,798.50		33,585.14
Available	00000XXX0-1-513	12-Xxx-00	00000XXX0	XX XXXXXX XXXXX COMMERCIAL MOR		4,000,000.00		3,937,184.57		3,721,958.04		4,319,182.03		15,787.24
Available	00000XXX0-1-526	15-Sep-39	00000XXX0	LB-UBS COMMERCIAL MORTGAGE TRU		5,000,000.00		5,000,000.00		4,695,147.74		5,501,105.00		11,937.78
Available	000000XX0-1-513	01-Dec-23	000000XX0	LOUISIANA LAND AND EXPLORATION		2,000,000.00		2,000,000.00		1,939,672.87		2,582,862.00		49,300.00
Available	000000XX0-1-526	15-Mar-32	000000XX0	MARATHON OIL CORP		2,900,000.00		2,900,000.00		2,956,608.39		3,437,892.00		6,573.33
Available	00000XXX0-2-513	01-Mar-38	00000XXX0	MCDONALDS CORPORATION		2,235,000.00		2,235,000.00		2,646,321.86		2,780,514.33		10,169.25
Available	00000XXX0-1-526	11-Jun-42	00000XXX0	XXXXXX XXXXXXX CAPITAL I MSC_0		4,000,000.00		4,000,000.00		4,059,247.88		4,522,364.00		16,800.25
Available	00000XXX0-2-526	11-Jan-43	00000XXX0	XXXXXX XXXXXXX CAPITAL I MSC_0		11,496,000.00		11,496,000.00		11,557,432.99		13,376,860.56		53,629.83
Available	000000XX0-1-526	15-Mar-28	650000XX0	XXXXXXXXX XNC		2,000,000.00		2,000,000.00		2,018,110.88		2,465,212.00		4,633.33
Available	000000XX0-1-513	01-Mar-34	000000XX0	PACIFIC GAS & ELECTRIC CO		2,500,000.00		2,500,000.00		2,403,628.67		2,784,850.00		10,923.61
Available	00000XXX0-1-524	01-Jun-20	00000XXX0	PARTNERRE FINANCE B LLC		1,000,000.00		1,000,000.00		999,027.84		1,093,406.00		17,722.22
Available	000000XX0-1-527	15-Jul-18	000000XX0	CONOCOPHILLIPS		3,000,000.00		3,000,000.00		3,001,306.71		3,618,510.00		39,900.00
Available	00000XXX0-6-526	30-Oct-19	00000XXX0	PROLOGIS LP		2,000,000.00		2,000,000.00		1,996,030.17		2,450,422.00		60,229.17
Available	00000XXX0-1-526	15-Jun-19	00000XXX0	PRUDENTIAL FINANCIAL INC		2,000,000.00		2,000,000.00		2,029,931.20		2,472,012.00		41,791.67
Available	000000XX0-1-513	15-May-41	760000XX0	XXXXXXXX XERVICES INC		3,000,000.00		3,000,000.00		2,983,226.03		3,217,602.00		62,700.00
Available	000000XX0-1-526	15-May-41	760000XX0	XXXXXXXX XERVICES INC		3,000,000.00		3,000,000.00		2,983,226.03		3,217,602.00		62,700.00
Available	000000XX0-1-513	01-Oct-30	000000XX0	KONINKLIJKE KPN NV		1,000,000.00		1,000,000.00		1,257,101.13		1,279,597.00		40,944.44
Available	000000XX0-1-526	01-Dec-33	000000XX0	MERCK & CO INC		3,000,000.00		3,000,000.00		3,352,476.98		3,816,744.00		62,833.33
Available	000000XX0-1-513	15-Dec-38	000000XX0	SHELL INTERNATIONAL FINANCE BV		2,000,000.00		2,000,000.00		2,258,608.08		2,497,876.00		36,125.00
Available	000000XX0-1-526	15-Jan-37	000000XX0	SOUTHERN CALIFORNIA EDISON COM		3,800,000.00		3,800,000.00		3,781,472.05		4,253,005.60		42,180.00
Available	000000XX0-1-513	15-Feb-26	000000XX0	SUNTRUST BANKS INC		3,000,000.00		3,000,000.00		2,882,040.01		3,190,659.00		21,000.00
Available	00000XXX0-1-524	01-Dec-19	00000XXX0	TD AMERITRADE HOLDING CORPORAT		1,000,000.00		1,000,000.00		1,009,363.19		1,163,615.00		18,044.44
Available	88000XXX0-0-000	00-Xxx-00	00000XXX0	XXXX XHARMACEUTICAL FINANCE LL		2,850,000.00		2,850,000.00		2,871,483.21		3,291,191.40		27,265.00
Available	0000000X0-1-526	15-Jan-39	0000000X0	TRANSCANADA PIPELINES LIMITED		3,957,000.00		3,957,000.00		4,560,512.96		5,290,006.46		60,344.25
Available	910000XX0-0-000	00-Xxx-00	000000XX0	XXXXXX XXXXXX XERVICE OF AMERI		2,000,000.00		2,000,000.00		2,026,373.60		2,604,080.00		81,888.89

Page 1 of 2


Annex A (List of Initial Reinsurance Assets)		ALACNY - FAFLIC Non-Financed AXXX/XXX


Available?	Unique ID	Maturity Date	Sec ID	Description	Original Face		9/26/13 Par Value		9/26/13 Stat. Book Value		9/26/13 Market Value		Accrued Interest
Available	00000XXX0-1-525	15-Nov-16	00000XXX0	US BANCORP		17,000,000.00		17,000,000.00		16,972,175.82		17,501,942.00		137,133.33
Available	00000XXX0-1-513	15-Xxx-00	00000XXX0	XXXXXX XNERGY CORPORATION		2,500,000.00		2,500,000.00		2,715,756.15		2,924,780.00		84,375.00
Available	00000XXX0-1-526	15-Feb-30	92000XXX0	XXXXXXXX XROUP PLC		3,000,000.00		3,000,000.00		2,965,941.49		3,791,769.00		27,562.50
Available	000000XX0-1-513	15-Feb-30	000000XX0	WAL-MART STORES INC		2,000,000.00		2,000,000.00		2,427,088.77		2,686,728.00		17,616.67
Available	00000XXX0-1-513	01-Jul-40	93000XXX0	XXXXXXXXXX XX XONV CENTER PUBL		4,250,000.00		4,250,000.00		4,250,000.00		4,714,440.00		68,937.36
Available	00000XXX0-1-513	15-Jan-43	94000XXX0	XXXXXXXXX XNC		3,424,000.00		3,424,000.00		3,262,721.65		3,155,760.42		31,843.20
Available	000000XX0-1-526	15-Jul-23	000000XX0	WEYERHAEUSER COMPANY		1,700,000.00		1,700,000.00		1,749,708.90		1,985,023.70		24,225.00
Available	00000XXX0-1-513	01-Jul-36	00000XXX0	XCEL ENERGY INC		2,500,000.00		2,500,000.00		2,483,244.05		3,016,802.50		38,819.44

Page 2 of 2

Annex B

Pre-Amendment Date Net Settlements

[See attached.]

Monthly Accounting Report

For the Monthly Accounting Period ending on

Section 1: Policy cash flows to/(from) Ceding Company (gross)

First Year Premium (net of returns and refunds of premiums)

$—

Renewal Premium (net of returns and refunds of premiums, including dividends)

—

TOTAL Premium

—

Full / Partial Surrenders, net of surrender charges

—

Death Claims

—

Matured Endowments

—

Waiver of Premium and other benefit riders

—

TOTAL Claims

—

Premiums received on third-party reinsurance

—

Claims paid on third-party reinsurance

—

Commissions / expense allowances on third-party reinsurance

—

Other Benefits paid/received on third-party reinsurance

—

Net third-party reinsurance

—

Renewal commissions

—

Total commissions

—

Section 2: Policy cash flows due to / (owed from) Reinsurer

Net Policy Cash Flows (A - B +/- C - D)

—

x Quota Share

100%

Reinsurer Share of Net Policy Cash Flows

—

Net Settlement Amounts paid to/(by) Reinsurer during Period

MM/DD/YYYY

—

Policy Cash Flows due to/(owed from) Reinsurer (F - G)

—

Section 3 Quarterly Net Settlement Amount owed to / (from) Reinsurer

Policy Cash Flows

—

Premiums Received

—

x 1.8%

1.80%

Premium Tax Allowance:

—

- Premium Tax Allowance Prior Year True-up

—

Guarantee Assessments Paid by the Company

—

Total Premium Taxes / Guarantee Assessments

—

Miscellaneous

Producer Payments and Commissions

—

Quarterly Net Settlement Amount owed to / (from) Reinsurer

—

Section 4.1: Funds Withheld Account

Statutory Carrying Value of Assets at Beginning Month

$—

Investment Income

—

GSAM Investment Management Fees

—

Realized Gains / (Losses)

—

Changes in Unrealized Gains for NAIC 6

—

Statutory Impairments / Default Losses Realized

—

MM/DD/YYYY

—

MM/DD/YYYY

—

MM/DD/YYYY

—

MM/DD/YYYY

—

Cash or other assets transferred (to) / from Reinsurer

—

MM/DD/YYYY

—

MM/DD/YYYY

—

MM/DD/YYYY

—

MM/DD/YYYY

—

Cash or other assets transferred (to) / from Reinsurer_Retrocessionaire

—

Statutory Carrying Value of Assets at End of Month

(M + N - O +/- P +/- Q +/- R +/- S +/- T )

—

Assigned Hedge Costs

—

Assigned Hedge Proceeds

—

Net hedge (costs) / proceeds due to/(from) Reinsurer

—

Policy Loan Interest Received

—

Policy Loan Principal Repayments

—

Less: Policy Loans Issued / Adjusted

—

TOTAL Policy Loans

—

Section 5: Calculation of Funds Withheld Adjustment

Total Funds Withheld Account

(U +/- V +/- W)

—

Amounts still owed from prior settlement

—

Ending Statutory Reserves

—

Funds Withheld Adjustment due from / (to) the Reinsurer

(Z - X +/- Y)

—

Net Amount to Transfer (AA - L)

—

Annex C

XX Xxxxxx

[See attached.]

Annex D

Life Reference Balance Sheet

[See attached.]

ALACNY Financed - US Bank Reference Balance Sheet

Assets and liabilities for ALACNY to transfer to FAFLIC

Illustrative, based on 8/31/2013 ALACNY balances

Debit (Credit)


	US Bank
	Funds Withheld Treaty
Cash		1,112,503
Deferred premium		646,476
Funds withheld receivable		187,114,613

Total assets		188,873,592
Life reserves - Statutory Reserve		(187,114,613	)
Claim liability		(278,776	)
Existing interest maintenance reserve		(1,480,203	)

Total liabilities		(188,873,592	)

Liabilities transferred in excess of assets transferred		—

Annex E

Policy List

[See attached.]

ALACNY Policy Listings — 2010-12 Block AXXX

BL28902580

BL28904510

BL06260110

BL06265060

BL06267990

BL06270860

BL06273880

BL06276810

BL28902590

BL28904530

BL06260150

BL06265130

BL06268000

BL06270880

BL06273950

BL06276820

BL28902630

BL28904650

BL06260200

BL06265140

BL06268050

BL06271000

BL06274180

BL06276860

BL28902680

BL28904660

BL06260340

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ALACNY Policy Listings — 2010-12 Block AXXX

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ALACNY Policy Listings — 2010-12 Block AXXX

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ALACNY Policy Listings — 2010-12 Block AXXX


BL06286630	BL06292700	BL06222290	BL06230670
BL06286770	BL06292860	BL06223100	BL06230770
BL06286930	BL06293040	BL06223110	BL06230820
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BL06289230	BL06205830	BL06224950	BL06236940
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BL06289470	BL06214730	BL06225210	BL06239610
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BL06291100	BL06219310	BL06227970	BL06220880
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BL06291470	BL06220440	BL06228410	BL06224870
BL06291610	BL06220870	BL06228700	BL06227410
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BL06292160	BL06221450	BL06229500
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BL06292620	BL06222020	BL06230240
BL06292630	BL06222220	BL06230340
BL06292650	BL06222260	BL06230570

ALACNY Policy Listings — 2010-12 Block XXX

BL06183350

BL06221710

BL06231990

BL06243250

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ALACNY Policy Listings — 2010-12 Block XXX


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Annex F

Post-Amendment Date Net Settlements

[See attached.]

NY Non-Financed NLG

Monthly Accounting Report

For the Monthly Accounting Period ending on: MM/DD/YYYY


Section 1: Policy cash flows to/(from) Ceding Company (gross)
	First Year Premium (net of returns and refunds of premiums)		—
	Renewal Premium (net of returns and refunds of premiums, including dividends)		—
	Premium on Supplemental Contracts w/ life (net of returns and refunds of premiums)		—
	Premium on Supplemental Contracts w/o life (net of returns and refunds of premiums)		—

A	TOTAL Premium			—
	Full / Partial Surrenders, net of surrender charges		—
	Death Claims		—
	Benefit Payments—Supplemental Contracts w/ life (after 2 year exclusion period)		—
	Benefit Payments—Supplemental Contracts w/o life (after 2 year exclusion period)		—
	Matured Endowments		—
	Waiver of Premium and other benefit riders		—

B	TOTAL Claims			—
	Premiums paid/(received) on third-party reinsurance		—
	Less: Claims received/(paid) on third-party reinsurance		—
	Less: Commissions / expense allowances on third-party reinsurance		—
	Other Benefits paid/received on third-party reinsurance		—

C	Net third-party reinsurance			—
D	Policy Loans
	Policy Loans Change in Asset		—
	Policy Loans Interest Income		—
	Policy Loans (Issued)/Principal Repayments		—

Section 2: Policy cash flows due to / (from) Reinsurer
E	Net Policy Cash Flows (A + B + C + D)			—
	x Quota Share			100%

F	Reinsurer Share of Net Policy Cash Flows			—
G	Net Settlement Amounts paid to/(by) Reinsurer during Period
		MM/DD/YYYY	—

				—

H	Policy Cash Flows due to/(owed from) Reinsurer (F - G)			—

Section 3: Policy Cashflows, net of Guaranty Fund Assessments / Prem Tax Allownces / GSAM Mgmt Fees
I	Policy Cash Flows (H)			—
	Premiums Received		—
	x 1.8%		1.80%

	Premium Tax Allowance:		—
	- Premium Tax Allowance Prior Year True-up		—
	Guarantee Assessments Paid by the Company		—
	GSAM Management Fees		—
J	Total Premium Taxes / Guarantee Assessments / GSAM Fees		—

K	Net Policy Cashflows due to/(from) Reinsurer (I + J)		—

NY Non-Financed NLG


Section 4: Net Settlement Amount due to/(from) Reinsurer
L	Net Policy Cashflows due to/(from) Reinsurer (K)			—
M	Hedge proceeds less hedge costs¹			—
N	Direct Payments made by/(received by) Reinsurer			—
		XX/XX/XXXX	—

O	Change in EI hedge balance (ending – beginning)			—

P	Net Settlement Amount due to/(from) Reinsurer (L + M + N + O)			—

¹	Hedge settlements in “M” and “O” are no longer applicable following the Hedge Termination Date (as defined in the Amended and Restated Coinsurance Agreement).

Exhibit I

Form of Trust Agreement

[See attached.]

EXECUTION VERSION

TRUST AGREEMENT

by and among

ATHENE LIFE INSURANCE COMPANY OF NEW YORK

(hereinafter referred to as the “Beneficiary”),

FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY

(hereinafter referred to as the “Grantor”),

and

U.S. BANK NATIONAL ASSOCIATION

(hereinafter referred to as the “Trustee”)

Dated as of July 31, 2015

Table of Contents


		Page
ARTICLE I
DEFINED TERMS

Section 1.1	Definitions		1
Section 1.2	Interpretation		3

ARTICLE II
CREATION OF TRUST ACCOUNT

Section 2.1	Obligations of the Beneficiary and the Grantor		4
Section 2.2	Purpose of the Trust		4
Section 2.3	Grantor Trust for U.S. Federal Income Tax Purposes		5
Section 2.4	Designation of Agents		5
Section 2.5	Title Costs		5

ARTICLE III
MAINTENANCE OF THE TRUST

Section 3.1	Substitution of Trust Assets		5
Section 3.2	Books and Records		6
Section 3.3	Quarterly Reports		6
Section 3.4	Trustee Reports		7

ARTICLE IV
RELEASE AND ADJUSTMENT OF TRUST ASSETS

Section 4.1	Adjustment of Trust Assets		7
Section 4.2	Release of Trust Assets to the Beneficiary		8
Section 4.3	Limitation on Release of Trust Assets		8

ARTICLE V
DUTIES OF THE TRUSTEE

Section 5.1	Acceptance of Assets by the Trustee		9
Section 5.2	Collection of Income; Voting Rights; Servicing		9
Section 5.3	Obligations of the Trustee; Maturation; Redemption		10
Section 5.4	Responsibilities of Trustee		10
Section 5.5	Resignation or Removal of the Trustee; Appointment of Successor Trustee		11
Section 5.6	Release of Information		12
Section 5.7	Indemnification of the Trustee		12
Section 5.8	Charges of the Trustee		12
Section 5.9	Limitations of Trustee		13
Section 5.10	Additional Trustee Rights and Duties		13



ARTICLE VI
TERMINATION

Section 6.1	Termination with the Beneficiary’s Written Consent	14
Section 6.2	Disposition of Trust Assets Upon Termination	14

ARTICLE VII
SECURITY INTEREST IN THE TRUST ASSETS

ARTICLE VIII
TRANSFER TAXES

Section 8.1	Transfer Taxes	16

ARTICLE IX
GENERAL PROVISIONS

Section 9.1	Failure to Act	16
Section 9.2	Amendments	16
Section 9.3	Assignment	17
Section 9.4	Counterparts	17
Section 9.5	Notices	17
Section 9.6	Severability	19
Section 9.7	Further Assurances	19
Section 9.8	Entire Agreement	19
Section 9.9	Governing Law; Jurisdiction; Enforcement	19
Section 9.10	Specific Performance	20
Section 9.11	Construction and Effect	20
Section 9.12	USA Patriot Act	20



SCHEDULE A		LIST OF INITIAL ELIGIBLE ASSETS (EXCLUDING CML ASSETS) TO BE DEPOSITED INTO TRUST ACCOUNT

EXHIBIT A		FORM OF GRANTOR SUBSTITUTION NOTICE
EXHIBIT B		FORM OF BENEFICIARY WITHDRAWAL NOTICE

PREAMBLE

This TRUST AGREEMENT (this “Trust Agreement”), dated as of July 31, 2015, is made and entered by and among Athene Life Insurance Company of New York, formerly known as Aviva Life and Annuity Company of New York, an insurance company domiciled in the State of New York (together with its successors and permitted assigns, the “Beneficiary”), First Allmerica Financial Life Insurance Company, an insurance company domiciled in the Commonwealth of Massachusetts (together with its successors and permitted assigns, the “Grantor”), and U.S. Bank, National Association, a national banking association organized under the laws of the United States of America (hereinafter referred to as the “Trustee”).

WHEREAS, the Grantor and the Beneficiary have entered into that certain Amended and Restated Coinsurance Agreement, dated as of July 31, 2015 (the “Coinsurance Agreement”); and

WHEREAS, the Grantor desires to transfer to the Trustee for deposit into a trust account certain assets for the benefit of the Beneficiary, which the Trustee will hold in trust for the benefit of the Beneficiary.

NOW THEREFORE, in consideration of the mutual and several promises and undertakings herein contained, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Grantor, the Beneficiary, and the Trustee agree as follows:

ARTICLE I

DEFINED TERMS

Section 1.1 Definitions. The following terms, when used in this Trust Agreement, shall have the meanings set forth in this Section 1.1. The terms defined below shall be deemed to refer to the singular or plural, as the context requires.

“Administrative Services Agreement” means the Administrative Services Agreement between the Grantor and the Beneficiary, dated October 1, 2013.

“Affiliate” means, as applied to any Person, any other Person directly or indirectly controlling, controlled by, or under common control with, such other Person at the time at which the determination of affiliation is made. The term “control” (including, with correlative meanings, the terms “controlled by” and “under common control with”), as applied to any Person, means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of that Person, whether through the ownership of voting securities or other ownership interests, by contract or otherwise. Control shall be presumed to exist if any Person directly or indirectly owns, controls or holds with the power to vote ten percent or more of the voting securities of any other Person.

“Applicable Law” means any law, statute, regulation, rule, ordinance, order, injunction, judgment, decree, principle of common law, constitution or treaty enacted, promulgated, issued, enforced or entered by any Governmental Entity applicable to a party hereto, or any of its respective businesses, properties or assets, as may be amended from time to time.

“Beneficiary” shall have the meaning ascribed to such term in the preamble.

“Business Day” means any day other than a Saturday, a Sunday or any other day on which banking institutions in New York, New York or Boston, Massachusetts are required or authorized by Applicable Law to be closed.

“Coinsurance Agreement” shall have the meaning ascribed to such term in the recitals of this Trust Agreement.

“Collateral” shall have the meaning ascribed to such term in Section 7.1.

“Eligible Assets” means cash (United States legal tender) and those investments of the type permitted under the insurance laws of the Commonwealth of Massachusetts and the State of New York for such investments to qualify as admitted assets for a life insurance company domiciled in such states of domicile, applying all applicable qualitative and quantitative limitations as though the Trust Account was a stand-alone life insurance company domiciled in such states of domicile.

“Fair Market Value” means, with respect to any asset, the fair market value thereof calculated in accordance with the accounting and actuarial practices of the Beneficiary, consistently applied.

“Governmental Entity” means any foreign, federal, state, local or other governmental, legislative, judicial, administrative or regulatory authority, agency, commission, board, body, court or entity or any instrumentality thereof or any self-regulatory body or arbitral body or arbitrator.

“Grantor” shall have the meaning ascribed to such term in the preamble.

“Income” shall have the meaning ascribed to such term in Section 5.2(a).

“Income Account” shall have the meaning ascribed to such term in Section 5.2(b).

“Investment Manager” shall have the meaning ascribed to such term in Section 5.4(b).

“Investment Order” shall have the meaning ascribed to such term in Section 5.4(b).

“NAIC” means the National Association of Insurance Commissioners.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, association, trust, unincorporated organization or other entity.

“Replacement Assets” shall have the meaning ascribed to such term in Section 3.1.

“Required Balance” shall have the meaning ascribed to such term in the Coinsurance Agreement; provided that the Trustee shall have no duty to reference the Coinsurance Agreement with respect to the use of “Required Balance” in this Trust Agreement in order for the Trustee to ascertain and perform its duties hereunder.

“Reserve Certificate” shall have the meaning ascribed to such term in Section 3.3(a).

“Statutory Book Value” means the carrying value of the subject asset or liability on the books of the Grantor for statutory statement purposes determined in accordance with the statutory accounting principles and practices prescribed by the Grantor’s state of domicile, consistently applied.

“Transfer Taxes” shall have the meaning ascribed to such term in Section 8.1.

“Trust” means the trust formed hereunder.

“Trust Account” shall have the meaning ascribed to such term in Section 2.1(a).

“Trust Agreement” shall have the meaning ascribed to such term in the preamble.

“Trust Assets” shall mean assets in the Trust Account.

“Trustee” shall have the meaning ascribed to such term in the preamble.

“UCC” shall mean the Uniform Commercial Code as in effect from time to time in the State of New York.

Section 1.2 Interpretation. When a reference is made in this Trust Agreement to an Article, Section, Exhibit or Schedule, such reference shall be to an Article or Section of, or an Exhibit or Schedule to, this Trust Agreement unless otherwise indicated. The Article and Section headings contained in this Trust Agreement are solely for the purpose of reference, are not part of the agreement of the parties and shall not affect in any way the meaning or interpretation of this Trust Agreement. Whenever the words “include,” “includes” or “including” are used in this Trust Agreement, they shall be deemed to be followed by the words “without limitation.” The words “hereof,” “herein” and “herewith” and words of similar import shall, unless otherwise stated, be construed to refer to this Trust Agreement as a whole and not to any particular provision of this Trust Agreement. The meaning assigned to each term used in this Trust Agreement shall be equally applicable to both the singular and the plural forms of such term and to both the masculine as well as the feminine and neuter genders of such term. Any agreement, instrument or statute defined or referred to herein or in any agreement or instrument

that is referred to herein means such agreement, instrument or statute as from time to time amended, restated, modified, supplemented, or otherwise changed, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning. References to a Person are also to its successors and permitted assigns.

ARTICLE II

CREATION OF TRUST ACCOUNT

Section 2.1 Obligations of the Beneficiary and the Grantor.

(a) Simultaneously with the execution of this Trust Agreement, the Grantor shall hereby establish with the Trustee, in the name of the Trustee, to be held for the benefit of the Beneficiary pursuant to the provisions of this Trust Agreement, a segregated trust account maintained by the Trustee, in its capacity as Trustee (which in its totality (including all subaccounts thereto) shall be hereinafter referred to as the “Trust Account”) and the Beneficiary hereby transfers and assigns to such Trust Account the Eligible Assets listed in Schedule A attached hereto.

(b) The Trustee shall not accept any Eligible Assets (other than cash) for deposit into the Trust Account unless the Trustee determines that it, in its capacity as Trustee hereunder, is or will be the registered owner of and holder of legal title to such assets or that such assets are in such form that the Trustee may, if applicable to such asset class, negotiate any such assets, without consent or signature from the Grantor or any other Person. Any Eligible Assets received by the Trustee for deposit into the Trust Account that, if applicable to such asset class, are not in such proper negotiable form or for which title has not been transferred to the Trustee, shall not be accepted by the Trustee and shall be returned to the Grantor as unacceptable. Grantor and Beneficiary acknowledge that registering and titling an asset which was received in negotiable form may require administrative and processing time. Until such asset is titled to the Trustee, even when such asset may appear on the statement of the Trust Account, such asset shall not be subject to the terms and conditions of this Agreement (except for the protections, representations, warranties, covenants, limitations of liability, and indemnities in favor of the Trustee contained in this Agreement).

(c) The Trust Assets shall consist only of Eligible Assets. Pursuant to Section 5.9, the Trustee has no responsibility whatsoever for determining or monitoring whether or not any Trust Asset is an Eligible Asset.

Section 2.2 Purpose of the Trust.

(a) The Trust Assets shall be held by the Trustee for the benefit of the Beneficiary.

(b) The Trustee has all trust powers necessary and reasonable in the performance of its duties hereunder except as otherwise expressly provided herein.

Section 2.3 Grantor Trust for U.S. Federal Income Tax Purposes. The Trust Account shall be treated as a grantor trust (pursuant to sections 671 through 677 of the Internal Revenue Code of 1986) for U.S. federal income tax purposes. The Grantor shall constitute the grantor and, thus, any and all income derived from the Trust Assets shall constitute income or gain of the Grantor. The Grantor shall notify the Trustee of the tax identification number of the Trust.

Section 2.4 Designation of Agents. Except as otherwise expressly provided in this Trust Agreement, any statement, certificate, notice, request, consent, approval, or other instrument to be delivered or furnished by the Grantor or the Beneficiary shall be sufficiently executed if executed in the name of the Grantor or the Beneficiary, as applicable, by (a) such officer or officers of the Grantor or the Beneficiary, or an agent or agents of the Grantor or the Beneficiary (including any Investment Manager), in each case, as may be designated in incumbency certificates furnished to the Trustee from time to time by such Person, respectively, or (b) attorneys-in-fact acting under written authority furnished to the Trustee by the Grantor or the Beneficiary, including instructions given by letter, facsimile transmission or electronic media, if the Trustee believes such instructions to be genuine and to have been signed, sent or presented by the proper party or parties. The Trustee shall be protected in acting upon any written statement or other instrument made by any such Person with respect to the authority conferred on it and shall not incur any liability to anyone resulting from actions taken by the Trustee in reliance in good faith on any such instructions. The Trustee shall not incur any liability in executing instructions (i) from any attorney-in-fact prior to receipt by it of notice of the revocation of the written authority of the attorney-in-fact or (ii) from any officer of the Grantor, any Investment Manager, or the Beneficiary named in an incumbency certificate delivered hereunder prior to receipt by it of a more current certificate, in each case, to the extent such Person is then entitled to provide such instructions under the terms hereof. Written notice of the designation of any agent by the Grantor or the Beneficiary shall be filed with the Trustee.

Section 2.5 Title Costs. All out-of-pocket costs associated with the transfers of title between the Grantor and the Trustee shall be split between the Grantor and the Beneficiary in accordance with Section 8.1 of this Trust Agreement.

ARTICLE III

MAINTENANCE OF THE TRUST

Section 3.1 Substitution of Trust Assets. The Grantor may at any time, by written request to the Trustee in substantially the form of Exhibit A attached hereto and the prior written consent of the Beneficiary (which consent shall not be unreasonably withheld, conditioned or delayed (it being understood that it shall be unreasonable for the Beneficiary to withhold, condition or delay such consent to the extent that the conditions set forth in this Section 3.1 are satisfied) and shall be deemed to be provided if the Beneficiary does not provide written notice to the Grantor of the withholding of such consent within two (2) Business Days following the Beneficiary’s receipt of written notice of the applicable substitution or exchange of Trust Assets from the Grantor), substitute or exchange Trust Assets with other Eligible Assets, (such substituted or exchanged Eligible Assets are referred to herein as “Replacement Assets”). The Grantor represents and warrants that to the best of its knowledge (i) the Trust Assets

(including any such Replacement Assets) shall remain Eligible Assets following such substitution or exchange, the Trust Assets comply with all qualitative and quantitative limitations under Applicable Law as though the Trust Account was a stand-alone life insurance company domiciled in the state of domicile of the Grantor, (ii) the aggregate Statutory Book Value of such Replacement Assets that are deposited in or credited to the Trust Account shall be at least equal to the aggregate Statutory Book Value of the Trust Assets being removed from the Trust Account, (iii) the ratio of the aggregate Fair Market Value of the non-cash Replacement Assets to the aggregate Statutory Book Value of the non-cash Replacement Assets shall be the same as or greater than the ratio of the aggregate Fair Market Value of the non-cash Trust Assets being removed from the Trust Account to the aggregate Statutory Book Value of the non-cash Trust Assets being removed from the Trust Account immediately prior to such substitution, (iv) the Replacement Assets shall be deposited in the Trust Account prior to or simultaneously with the removal of Trust Assets from the Trust Account in connection with any such substitution or exchange and (v) the Grantor shall not make any substitutions under this Section 3.1 if it is in default under any other provision of this Trust Agreement. Any written request provided by the Grantor pursuant to this Section 3.1 shall include the Grantor’s representation and warranty that such substitution or exchange meets the requirements of this Section 3.1. In releasing Trust Assets in connection with any substitution request by the Grantor pursuant to this Section 3.1, the Trustee shall have no responsibility whatsoever to determine or monitor whether any or all of the conditions set forth in (i) through (v) above or as otherwise set forth in this Section 3.1 have been met, and the Trustee shall be entitled to rely conclusively upon any certification provided by the Grantor that the Beneficiary’s consent is deemed to have been provided under this Section 3.1.

Section 3.2 Books and Records. The Trustee shall keep full and complete records of the administration of the Trust Account. Upon request to the Trustee, the Grantor and the Beneficiary may examine such records during the Trustee’s normal business hours through any Person or Persons duly authorized in writing by the Grantor and/or the Beneficiary as appropriate.

Section 3.3 Quarterly Reports.

(a) Within thirty (30) calendar days following the end of each calendar quarter, the Grantor shall provide the Beneficiary a written certification stating the Required Balance as of such calendar quarter end and the Statutory Book Value and Fair Market Value of the Trust Assets as of such calendar quarter end (both on an asset-by-asset basis and a cumulative basis) (each such certification, a “Reserve Certificate”). As soon as is practicable, but in no event more than five (5) Business Days following its receipt of a Reserve Certificate, the Beneficiary shall either (i) countersign such Reserve Certificate and return it to the Grantor or (ii) notify the Grantor that it objects to the Grantor’s calculation of the Required Balance or the Statutory Book Value or Fair Market Value of one or more Trust Assets. If the Beneficiary does not countersign a Reserve Certificate or notify the Grantor of such objection before the expiration of such five (5) Business Day period, then such Reserve Certificate shall be deemed accepted by the Beneficiary.

(b) Any disputes with the Grantor by the Beneficiary with regard to the calculation of the Required Balance or the Statutory Book Value or the Fair Market Value of the Trust Assets shall be resolved in accordance with Section 11.2 of the Coinsurance Agreement. Upon resolution of all disputes identified in the Beneficiary’s notice of objection, the Grantor and the Beneficiary shall correct, and the Beneficiary shall countersign, the Reserve Certificate setting forth the Required Balance and the aggregate Statutory Book Value and Fair Market Value of the Trust Assets as resolved pursuant to the previous sentence. The Grantor shall permit the Beneficiary, at the Beneficiary’s expense, to audit its records during normal business hours in accordance with the Administrative Services Agreement in order to determine its compliance with this Section 3.3(b). The Trustee shall have no responsibility whatsoever to determine or monitor whether the Grantor or the Beneficiary has complied with the foregoing provisions of Sections 3.3(a) and (b).

(c) For the avoidance of doubt, no dispute pursuant to Section 3.3(b) shall affect the obligation of the Grantor to continue to provide Reserve Certificates, as applicable, in accordance with this Section 3.3.

Section 3.4 Trustee Reports. Within ten (10) calendar days following the end of each calendar month, the Trustee shall provide copies of activity reports to the Beneficiary and the Grantor, which reports shall show all deposits, withdrawals, substitutions and exchanges affecting the Trust Account during such calendar month, and a listing of Trust Assets held and cash and cash equivalent balances in the Trust Account as of the end of such calendar month. The Trustee agrees to provide written notification to the Grantor and the Beneficiary within ten (10) days of any deposits to or withdrawals from the Trust Account.

ARTICLE IV

RELEASE AND ADJUSTMENT OF TRUST ASSETS

Section 4.1 Adjustment of Trust Assets.

(a) Upon the Grantor’s written request, the Trustee shall, within five (5) Business Days of the date of such request, withdraw from the Trust Account and transfer to the Grantor, Trust Assets as specified by the Grantor in writing, provided, that the Grantor presents the Trustee with a fully countersigned Reserve Certificate reflecting that such amount is less than or equal to the excess of the aggregate Statutory Book Value of the Trust Assets as of the end of any calendar quarter over the Required Balance as of such calendar quarter or a Reserve Certificate reflecting such excess, accompanied with a certification by the Grantor to Trustee stating that such Reserve Certificate was deemed accepted without signature pursuant to Section 3.3(a). The Grantor represents and warrants that to the best of its knowledge (i) the ratio of the aggregate Fair Market Value of the non-cash Trust Assets withdrawn from the Trust Account to the aggregate Statutory Book Value of the non-cash Trust Assets withdrawn from the Trust Account shall be the same as or less than the ratio of the aggregate Fair Market Value of the non-cash Trust Assets immediately prior to such withdrawal to the aggregate Statutory Book Value of the non-cash Trust Assets immediately prior to such withdrawal; (ii) following such withdrawal (x) the Trust Assets shall comply with all qualitative and quantitative limitations under Applicable Law as though the Trust Account was a stand-alone life insurance company domiciled in the state of domicile of the Grantor, and (y) the aggregate Statutory Book Value of

the Trust Assets shall be equal to or in excess of the Required Balance. The Trustee shall be entitled to rely conclusively and exclusively upon the written direction of the Grantor provided under this Section 4.1(a) in withdrawing and transferring the Trust Assets specified therein, and shall have no responsibility to determine the excess amount or whether the conditions set forth in this Section 4.1(a) have been met.

(b) If the aggregate Statutory Book Value of the Trust Assets as of the end of any calendar quarter, as reflected in the applicable Reserve Certificate, is less than the Required Balance as of such calendar quarter end, then within five (5) Business Days of the Grantor’s delivery to the Beneficiary of the related Reserve Certificate, the Grantor shall cause to be deposited into the Trust Account such additional Eligible Assets as are necessary to ensure that the aggregate Statutory Book Value of the Trust Assets is no less than the Required Balance; provided, that following such deposit the Trust Assets shall comply with all qualitative and quantitative limitations under Applicable Law as though the Trust Account was a stand-alone life insurance company domiciled in the state of domicile of the Grantor.

Section 4.2 Release of Trust Assets to the Beneficiary.

(a) By transmittal of prior written notice to the Trustee and the Grantor in substantially the form of Exhibit B attached hereto, the Beneficiary may withdraw Trust Assets from the Trust Account, but only to the extent of a default by the Grantor in the performance of its monetary obligations under the Coinsurance Agreement that is not being disputed by the Grantor in good faith, which undisputed payment default has not been cured by the Grantor within five (5) Business Days following its receipt of a written notice thereof delivered by the Beneficiary. In such a case, no more than the amount needed to cure the Grantor’s undisputed payment default may be withdrawn.

(b) Any written notice provided by the Beneficiary pursuant to this Section 4.2 shall include a certification that the withdrawal meets the requirements of this Section 4.2. Other than such notice, no other statement or document need be presented by the Beneficiary to withdraw such Trust Assets except that the Beneficiary shall acknowledge to the Trustee receipt of such withdrawn Trust Assets. Upon such written notice of demand of the Beneficiary, the Trustee shall immediately take any and all steps necessary to transfer absolutely and unequivocally all right, title and interest in such Trust Assets to the Beneficiary and, to the extent applicable, deliver physical custody of such Trust Assets to the Beneficiary as specified in such withdrawal notice. The Trustee shall not be subject to any liability for any release made by it pursuant to any written demand received pursuant to this Section 4.2. If, notwithstanding the foregoing, a withdrawal is made in excess of the amount permitted by this Section 4.2, such excess amount shall be deemed maintained in trust for the benefit of the Grantor and the Beneficiary shall promptly return such excess amount to the Trust Account.

Section 4.3 Limitation on Release of Trust Assets. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE TRUSTEE SHALL NOT BE INSTRUCTED TO RELEASE TRUST ASSETS FROM THE TRUST ACCOUNT WHICH WOULD CAUSE THE AGGREGATE STATUTORY BOOK VALUE OF THE TRUST ASSETS TO BE DECREASED BELOW THE REQUIRED BALANCE AS OF THE DATE OF WITHDRAWAL. IN RELEASING TRUST ASSETS AS INSTRUCTED BY THE

BENEFICIARY OR THE GRANTOR, THE TRUSTEE SHALL HAVE NO RESPONSIBILITY TO DETERMINE OR MONITOR WHETHER THE CONDITION IN THE FOREGOING SENTENCE HAS BEEN CAUSED BY THE RELEASE SO INSTRUCTED.

ARTICLE V

DUTIES OF THE TRUSTEE

Section 5.1 Acceptance of Assets by the Trustee.

(a) The Beneficiary (on behalf of the Grantor) shall transfer to the Trustee, for deposit to the Trust Account, the Eligible Assets listed on Schedule A attached hereto, and the Grantor may transfer to the Trustee, for deposit to the Trust Account, such other Eligible Assets as it may from time to time desire. The Trustee shall accept for deposit into the Trust Account any Eligible Asset, provided only that before accepting any Eligible Asset for deposit to the Trust Account, the Trustee shall determine that such Eligible Asset is in such form that the Beneficiary whenever necessary may, or the Trustee upon direction by the Beneficiary will, in each case subject to the terms and conditions of this Trust Agreement, negotiate such Eligible Asset without consent or signature from the Grantor or any Person other than the Trustee in accordance with the terms of this Trust Agreement, or such Eligible Asset is otherwise capable of acceptance pursuant to Section 2.1(b). Pursuant to Section 5.9, the Trustee has no responsibility whatsoever for determining or monitoring whether or not any Trust Asset is an Eligible Asset.

(b) The Trustee and its lawfully appointed successors is and are authorized and shall have the power and authority to receive such securities and other property as the Grantor (or the Beneficiary on behalf of the Grantor) from time to time may transfer or remit to the Trust Account and to hold and dispose of the same for the uses and purposes and in the manner and according to the provisions herein set forth. All such Trust Assets at all times shall be maintained in the Trust Account, separate and distinct from all other assets on the books and records of the Trustee, and shall be continuously kept in a safe place within the United States.

Section 5.2 Collection of Income; Voting Rights.

(a) The Trustee is hereby authorized to and shall, without prior notice to the Grantor or the Beneficiary, collect all interest, dividends or any other income, on the Trust Assets (hereinafter referred to as “Income”), if any.

(b) All payments of Income on the Trust Assets shall be the property of the Grantor and shall be maintained by the Trustee as separate items of income within the Trust Account (the “Income Accounts”). The Grantor, upon written notice to the Trustee, may withdraw amounts from the Income Accounts at any time and from time to time.

(c) Subject to the other provisions of this Trust Agreement and the requirement that title to Trust Assets be recorded in the name of the Trustee, the Grantor shall have the full and unqualified right to direct the Trustee to vote, and to execute consents, bond powers, stock powers, mortgage and title instruments and other instruments of transfer, pledge and release with respect to any Trust Assets. Whenever there are voluntary rights that may be

exercised or alternate courses of action that may be taken by reason of the ownership of Trust Assets, the Grantor shall be responsible for making any decision relating thereto and for directing the Trustee to act. The Trustee shall notify the Grantor of rights or discretionary actions with respect to Trust Assets as promptly as practicable under the circumstances, provided that the Trustee has actually received notice of such right or discretionary corporate action from the relevant depository, etc. Absent actual receipt of such notice, the Trustee shall have no liability for failing to so notify the Grantor. Absent the Trustee’s timely receipt of instructions from the Grantor, the Trustee shall not be liable for failure to take any such action relating to or to exercise any rights conferred by such Trust Assets.

Section 5.3 Obligations of the Trustee.

(a) The Trustee agrees to hold and disburse the Trust Assets in accordance with the provisions expressed herein.

(b) The Trustee may, without the consent of the Beneficiary or the Grantor, upon call or maturity of any security or other asset in the Trust Account, withdraw such security or other asset upon the condition that the proceeds are to be paid or deposited into the Trust Account.

Section 5.4 Responsibilities of Trustee.

(a) The Trustee, in the administration of the Trust Account, is to be bound solely by the express provisions of this Trust Agreement, and such further written and signed directions as the appropriate party or parties may, under the conditions herein provided, deliver to the Trustee. The Trustee shall be under no obligation to enforce the Grantor’s obligations under this Trust Agreement, except as otherwise expressly provided or directed pursuant hereto. The Trustee shall be restricted to holding title to, operating and collecting the Trust Assets and the payment and distribution thereof for the purposes set forth in this Trust Agreement and to the conservation and protection of such Trust Assets and the administration thereof in accordance with the provisions of this Trust Agreement, and the Trustee shall be liable only for its own negligence, willful misconduct or lack of good faith. The Trustee further agrees to promptly forward upon request to the Beneficiary, the Grantor or their designated recipient a certified list of all Trust Assets.

(b) Subject to the other provisions of this Trust Agreement, including the requirements that only Eligible Assets may be held in or by the Trust Account and that title to Trust Assets shall be recorded in the name of the Trust or the Trustee, as appropriate, and provisions relating to the substitution of Trust Assets, (i) the Grantor shall have the irrevocable authority and sole power to direct, in writing, the Trustee, in the Grantor’s sole discretion, with respect to all aspects of the management or investment of the Trust Assets contained in the Trust Account, and the Grantor may delegate such authority and power to any other Person, including any Affiliate of the Grantor (“Investment Manager”), pursuant to one or more investment management, advisory or other agreements of form and substance specified by the Grantor, provided that the Grantor shall provide written notice of any such delegation to each other party hereto and (ii) each of the Trustee and the Beneficiary acknowledges that it has no authority with respect to such management or investment activities. The Trustee agrees it will not exercise any

discretion or take any action with respect to the matters in clause (i) above and the Trustee will take any actions related thereto as directed by the Grantor in accordance therewith. Any instruction or order concerning such investments or substitutions of securities shall be referred to herein as an “Investment Order”. The Trustee shall execute Investment Orders and settle securities transactions by itself or by means of an agent or broker. The Trustee shall not be responsible for any act or omission, or for the solvency, of any such agent or broker selected by the Trustee without negligence, bad faith or willful misconduct. When the Trustee is directed to deliver Trust Assets against payment, delivery will be made in accordance with generally accepted market practice. Any loss incurred from any investment pursuant to the terms of this Section 5.4(b) shall be borne exclusively by the Trust Account. Pursuant to Section 5.9, the Trustee has no responsibility whatsoever for determining or monitoring whether or not any Trust Asset is an Eligible Asset.

(c) In no event shall the Trustee be liable under or in connection with the Agreement for indirect, special, incidental, punitive or consequential losses or damages of any kind whatsoever, including but not limited to lost profits, whether or not foreseeable, even if the Trustee has been advised of the possibility thereof and regardless or the form of action in which such damages are sought, unless such loss or damage has been caused by the Trustee’s negligence, lack of good faith, or wilful misconduct.

Section 5.5 Resignation or Removal of the Trustee; Appointment of Successor Trustee.

(a) The Trustee may at any time resign as Trustee and terminate its capacity hereunder and by delivery of written notice of resignation, effective not less than 90 days after receipt by both the Beneficiary and the Grantor. The Trustee may be removed by the Grantor by (i) delivery to the Trustee and the Beneficiary of a written notice of removal, effective not less than 90 days after receipt by the Trustee and the Beneficiary of the notice and (ii) receipt of the Beneficiary’s consent to such action, which consent shall not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, no such resignation by the Trustee or removal by the Grantor shall be effective until a successor to the Trustee shall have been duly appointed by the Grantor and approved by the Beneficiary and all Trust Assets have been duly transferred to such successor. If no such successor has been appointed within 90 days of such resignation by the Trustee or removal by the Grantor, then the Trustee may seek a court-appointed successor to the Trustee. The Grantor, upon receipt of such notice of resignation, or upon its delivery of a notice of removal, shall diligently undertake to obtain the agreement of a qualified, successor to the Trustee, reasonably agreeable to the Beneficiary, to act as the successor to the Trustee in accordance with all agreements of the Trustee herein and upon duly qualifying to act as such pursuant to Section 5.5(b). The Beneficiary agrees not to unreasonably withhold approval of such successor. Upon the Trustee’s delivery of the Trust Assets to the qualified successor along with a closing statement showing all activities from the last monthly report, the Trustee shall be discharged of further responsibilities hereunder.

(b) Any successor trustee appointed hereunder shall execute an instrument accepting such appointment hereunder and shall deliver the same to the Grantor, the Beneficiary and to the Trustee. Thereupon such successor trustee shall, without any further act,

become vested with all the estates, properties, rights, powers, trusts and duties of its predecessor in the Trust with like effect as if originally named herein; but the predecessor Trustee shall nevertheless, when requested in writing by the successor trustee, execute an instrument or instruments as provided to it in appropriate form conveying and transferring to the successor trustee all the estates, properties, rights, powers and trusts of such predecessor Trustee, and shall duly assign, transfer and deliver to the successor trustee all property and money held by such predecessor hereunder. The predecessor Trustee shall be entitled to reimbursement in accordance with Section 5.8 for all expenses it incurs in connection with the settlement of its accounts and the transfer and delivery of the Trust Assets to its successor. The predecessor Trustee shall continue to be indemnified by reason of such entity being or having been a trustee in accordance with Section 5.7.

Section 5.6 Release of Information. The Trustee shall promptly respond to any and all reasonable requests for information concerning the Trust Account or the Trust Assets by either of the other parties to this Trust Agreement. Furthermore, the Trustee shall fully and completely respond to any direct inquiries of the insurance regulatory authority in the state of domicile of the Grantor or the Beneficiary, or any of their respective representatives, concerning the Trust Account or the Trust Assets, including detailed inventories of securities or funds, and the Trustee shall permit the insurance regulatory authority in the state of domicile of the Grantor or the Beneficiary, or their respective representatives, to examine and audit all securities or funds held hereunder. To the extent not prohibited by Applicable Law, the Trustee shall promptly provide notice to the Beneficiary and the Grantor concerning all such inquiries, and shall to the extent reasonably practicable provide seven (7) days prior notice to the Beneficiary and the Grantor of all such examinations and audits.

Section 5.7 Indemnification of the Trustee. Subject to Section 5.4, the Grantor hereby indemnifies the Trustee for, and holds it harmless against, all losses, damages, costs and expenses, including reasonable attorney’s fees, incurred or made arising out of or in connection with the performance of its duties in accordance with this Trust Agreement, including all losses, damages, costs and expenses arising out of or in connection with the status of the Trustee and its nominee as the holder of record of the Trust Assets; provided, however, that such losses, damages, costs or expenses (i) have not been caused by the Trustee’s negligence, willful misconduct, or lack of good faith and (ii) have not been caused by any act or omission of the Beneficiary. Subject to Section 5.4, the Beneficiary hereby indemnifies the Trustee for, and holds it harmless against, all losses, damages, costs and expenses, including reasonable attorney’s fees, incurred or made arising out of or in connection with the performance of its duties in accordance with this Trust Agreement, including all losses, damages, costs and expenses arising out of or in connection with the status of the Trustee and its nominee as the holder of record of the Trust Assets to the extent that such losses, damages, costs or expenses are caused by the Beneficiary’s acts or omissions and not by the Trustee’s negligence, willful misconduct, or lack of good faith.

Section 5.8 Charges of the Trustee. The Grantor shall pay the Trustee, as compensation for its services under this Trust Agreement, a fee computed at rates as agreed between the Grantor and the Trustee. The Grantor shall pay or reimburse the Trustee for all of the Trustee’s reasonable expenses and disbursements in connection with its duties under this

Trust Agreement (including reasonable fees and expenses of any outside counsel incurred by the Trustee for legal services deemed reasonably necessary by the Trustee as a result of the Trustee’s so acting) except any such expense or disbursement as may arise from the Trustee’s negligence, willful misconduct, or lack of good faith; provided, however, that no such costs, fees or expenses shall be paid out of the Trust Assets.

Section 5.9 Limitations of Trustee. The Trustee shall in no way be responsible for determining the amount of Trust Assets required to be deposited or permitted to be withdrawn, or monitoring whether or not the Trust Assets are Eligible Assets. The Trustee shall be under no liability for any release of Trust Assets made by it to the Grantor or the Beneficiary in accordance with Article IV or Article VI.

Section 5.10 Additional Trustee Rights and Duties.

(a) The Trustee may maintain any Trust Assets in book entry form with, and utilize the services of, the Federal Reserve Bank or other depositories such as the Depository Trust Company. The Trustee shall have no liability whatsoever for the action or inaction of any depository or for any losses resulting from the maintenance of Trust Assets a depository. Assets may be held in the name of a nominee maintained by the Trustee or by any such depository.

(b) The Trustee shall accept and open all mail directed to the Grantor or the Beneficiary in care of the Trustee.

(c) No provision of this Trust Agreement shall require the Trustee to take any action which, in the Trustee’s reasonable judgment, would result in any violation of this Trust Agreement or any provision of Applicable Law. The Trustee may obtain the advice of counsel and shall be fully protected with respect to anything done or omitted by it in good faith in conformity with such advice.

(d) The Trustee shall not be responsible for the existence, genuineness or value of any of the Trust Assets; for the validity, perfection, priority or enforceability of the liens or any security interest in any of the Trust Assets, whether impaired by operation of law or by reason of any action or omission to act on its part hereunder, except to the extent such action or omission constitutes negligence, bad faith or willful misconduct on the part of the Trustee; for the validity of title to the Trust Assets; for insuring the Trust Assets; or for the payment of taxes, charges, assessments or liens upon the Trust Assets.

(e) The Trustee shall not incur any liability for not performing any act or fulfilling any duty, obligation or responsibility hereunder by reason of any occurrence beyond the reasonable control of the Trustee, including, but not limited to, any act or provision of any present or future law or regulation or Governmental Entity, any act of God or war or terrorism, loss or malfunction of utilities or computer software or hardware, or the unavailability of the Federal Reserve Bank wire or other wire or communication facility.

(f) The Trustee shall not be required to risk or expend its own funds in performing its obligations under this Trust Agreement. The foregoing sentence shall not apply to the ordinary out-of-pocket expenses referred to in the second sentence of Section 5.8 which are incurred by the Trustee in the normal administration of this Trust Agreement and which are to be reimbursed as provided in Section 5.8, or to ordinary internal overhead expenses which are incurred by the Trustee in the normal administration of this Trust Agreement.

ARTICLE VI

TERMINATION

Section 6.1 Termination with the Beneficiary’s Written Consent. The parties intend for the term of this Trust Agreement to be perpetual, unless terminated in accordance with this Article VI. Upon receipt of the Beneficiary’s written consent, the Grantor may terminate this Trust Agreement by:

(a) giving thirty five (35) days’ advance written notice to the Trustee and the Trustee giving thirty (30) days’ advance written notice of such termination via certified mail to the Beneficiary; and

(b) providing the Beneficiary with alternative security acceptable to the Beneficiary, as determined by the Beneficiary in its sole discretion, prior to the effective date of such termination.

Section 6.2 Disposition of Trust Assets Upon Termination. Upon a termination pursuant to this Article VI, and without any further consent of the Beneficiary, the Trustee shall distribute all Trust Assets to the Grantor or the Grantor’s designee and shall take any and all steps necessary (including the execution and delivery of instruments in appropriate form provided to the Trustee therefor) to transfer absolutely and unequivocally all right, title and interest in such Trust Assets and to deliver physical custody, if applicable, in such Trust Assets to the Grantor or as otherwise directed by the Grantor, at which time all liability of the Trustee with respect to such Trust Assets shall cease; provided, however, that the Trustee shall sign documents and otherwise reasonably cooperate with Grantor and the Beneficiary, at no material expense to the Trustee, for a period of forty five (45) days after termination as necessary to transfer the Trust Assets and all books, records, documents and accounts relating thereto.

ARTICLE VII

SECURITY INTEREST IN THE TRUST ASSETS

Section 7.1 Security Interest.

(a) The parties hereto intend that the Trustee, in its capacity as trustee, is and at all times shall be the owner of and entitlement holder with respect to the securities account constituting part of the Trust Account and the assets credited thereto for the benefit of the Beneficiary in accordance with this Trust Agreement and that the Trustee otherwise be the owner or, if applicable, the holder of legal title to all other assets held from time to time in the Trust Account. Additionally, in order to secure the Grantor’s obligations to the Beneficiary under the Coinsurance Agreement, the Grantor hereby grants to the Trustee for the benefit of the Beneficiary a first priority perfected security interest in all of the Grantor’s right, title and interest in, to and under the following property, whether now owned or existing or hereafter

acquired or arising and wheresoever located (collectively, the “Collateral”): (i) the Trust Account and the Trust Assets, including investment property, securities, investments, instruments, cash, mortgage notes and all participation interests in mortgage notes, funds, general intangibles, accounts, receivables, chattel paper, letter-of-credit rights, documents and all other assets (x) held in or credited to the Trust Account or (y) otherwise conveyed to the Trustee by the Grantor; (ii) all cash and other financial assets credited to the Trust Account and all security entitlements (within the meaning of Section 8-102(a) of the UCC) related to or arising therefrom; and (iii) all proceeds of, all supporting obligations relating to, and all security interests, mortgages or other liens securing, any of the foregoing, and agrees that this Trust Agreement shall constitute a security agreement under Applicable Law. In furtherance of the preceding sentence, the Trustee acknowledges that all Collateral conveyed to the Trustee is held for the benefit of the Beneficiary. Any amounts withdrawn from the Trust Account in accordance with this Trust Agreement shall be automatically released from, and withdrawn free and clear of, any security interest created herein.

(b) The Grantor hereby authorizes the Beneficiary (on behalf of the Trustee, as secured party for the benefit of the Beneficiary) to file any and all UCC—1 Financing Statements with respect to the Collateral, and any and all amendments, assignments and continuation statements with respect thereto, that are deemed necessary or desirable by the Beneficiary in order to perfect such security interest in the Collateral. The Trustee shall have no duties or liability whatsoever relating to the creation, perfection, validity, or enforcement of any security interest under this Article VII, or any filing related thereto. All terms used in this Section 7.1 and defined in the UCC shall have the meanings given to such terms in the UCC.

Section 7.2 Uniform Commercial Code Provisions.

(a) The parties hereto, including the Trustee in its capacity as securities intermediary, hereby acknowledge and agree that each asset credited to the Trust Account, including cash credited thereto, shall be treated as a “financial asset” within the meaning of Section 8-102(a) of the UCC. The Grantor covenants not to hold any property in the Trust Account that cannot be deemed a financial asset pursuant to Section 8-103 of the UCC. The Trustee acknowledges and agrees that it is a “securities intermediary” within the meaning of Section 8-102(a) of the UCC and is acting as such with respect to the Trust Account and all such financial assets held therein. New York shall be deemed to be the “bank’s jurisdiction” for purposes of Section 9-304 of the UCC. The parties agree that New York shall be deemed to be the “securities intermediary’s jurisdiction” for purposes of Section 8-110 of the UCC.

(b) The Trustee hereby confirms and agrees to the following: The Trustee shall not change the name or account number of the Trust Account without the prior written consent of the Beneficiary (except for any changes due to internal systems changes).

Section 7.3 [Reserved].

Section 7.4 Conflict with Other Agreements. In the event of any conflict between this Trust Agreement (or any portion thereof) and any other agreement regarding the subject matter hereof, the terms of this Trust Agreement shall prevail.

Section 7.5 Notice of Adverse Claims. Except for the claims and interest of the Beneficiary and of the Grantor in the Trust Account, the Trustee does not have any knowledge of any claim to, or interest in, the Trust Account or in any asset credited thereto, or the Trust Account or in any asset deposited therein. If any Person asserts any lien, encumbrance or adverse claim (including any writ, garnishment, judgment, warrant of attachment, execution or similar process) against the Trust Account or in any asset credited thereto, the Trustee shall promptly notify the Beneficiary and the Grantor thereof.

Section 7.6 Trustee Disclaimer. The Trustee makes no representation or warranty as to whether the granting of security interests and liens in Trust Assets by the Grantor under this Article VII (a) invalidates rights or protections conferred upon trusts or the separateness of their legal existence, or (b) reduces, eliminates, or restricts the Beneficiary’s rights and interests in the Trust Assets as a beneficiary of the Trust Account.

ARTICLE VIII

TRANSFER TAXES

Section 8.1 Transfer Taxes. All (i) sales, use, transfer, realty transfer, recording, ad valorem, privilege, documentary, gross receipts, registration, conveyance, excise, license, stamp, duties or similar taxes and fees (collectively, the “Transfer Taxes”) arising out of, in connection with or attributable to the transactions effected pursuant to this Trust Agreement and (ii) costs, in each case, incurred in connection with effecting the investment, substitution, deposit or withdrawal of the Trust Assets, shall be shared 50% by the Grantor and 50% by the Beneficiary. The party, as between the Grantor and the Beneficiary, which has primary legal responsibility for the payment of any particular Transfer Tax shall prepare and timely file all relevant tax returns required to be filed in respect of such Transfer Tax. Each of the Grantor and the Beneficiary shall reimburse the Trustee for its 50% share of any such Transfer Taxes or costs incurred by the Trustee.

ARTICLE IX

GENERAL PROVISIONS

Section 9.1 Failure to Act. 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 either party of any right, power, remedy or privilege, nor any single or partial exercise of any such right, power, remedy or privilege, preclude any further exercise thereof or the exercise of any other such right, power, remedy or privilege.

Section 9.2 Amendments. This Trust Agreement and the Trust created hereunder shall be irrevocable, subject solely to the termination provisions set forth herein. The Grantor shall have no right or power in any capacity to revoke, terminate or alter or amend any terms of this Trust Agreement, in whole or in part, without the prior written consent of the Beneficiary and the Trustee. Notwithstanding the foregoing, this Trust Agreement may be

amended, superseded, canceled, renewed or extended, and the terms hereof may be waived, only by a written instrument signed by the parties hereto or, in the case of a waiver, by the party waiving compliance. To the extent a prior notice of an amendment is required to be filed with an insurance regulatory authority under Applicable Law, no such amendment shall be effective unless such amendment is filed by the Grantor or the Beneficiary with such insurance regulatory authority in compliance with any applicable time period and approved by such insurance regulatory authority or not disapproved by such insurance regulatory authority within any applicable time period.

Section 9.3 Assignment. This Trust Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors, permitted assigns and legal representatives, whether by merger, consolidation or otherwise. This Trust Agreement may not be assigned by any party without the prior written consent of the other parties hereto, which consent shall not be unreasonably withheld, conditioned or delayed.

Section 9.4 Counterparts. This Trust Agreement may be executed in any number of counterparts (including by means of facsimile or PDF), all of which shall constitute one and the same original.

Section 9.5 Notices. Unless otherwise specifically provided herein, all notices and other communications under this Trust Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made when personally delivered or sent by overnight courier service, facsimile or electronic media, or upon receipt when sent by registered or certified mail) by (i) delivery in person, (ii) overnight courier service, (iii) facsimile or electronic media or registered or certified mail (postage prepaid, return receipt requested), to the respective parties at the following address (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9.5):

If to the Beneficiary:

Athene Life Insurance Company of New York

0000 Xxxxx Xxxxx Xxxxxxx

Xxxx Xxx Xxxxxx, Xxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attention: Xxxx X. Xxxxxxxx

Email: xxxxxxxxx@xxxxxx.xxx

with copies (which shall not constitute notice) to:

Athene USA Corporation

0000 Xxxxx Xxxxx Xxxxxxx

Xxxx Xxx Xxxxxx, XX 00000

Attention: Xxxx Xxxxxxxx

Email: xxxxx@xxxxxx.xxx

and

Sidley Austin LLP

0 Xxxxx Xxxxxxxx

Xxxxxxx, Xxxxxxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attn: Xxxxx X. Xxxxxxxxx, Esq.

and

Sidley Austin LLP

000 Xxxxxxx Xxxxxx

Xxx Xxxx, Xxx Xxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attn: Xxxxxxxx X. Xxxxx, Esq.

If to the Grantor:

First Allmerica Financial Company

c/o Commonwealth Annuity and Life Insurance Company

000 Xxxxxxxx Xxxx Xxxxx 000

Xxxxxxxxxxxx, Xxxxxxxxxxxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attn: Xxxxx Xxxxxxxxx, Esq.

with a copy (which shall not constitute notice) to:

Debevoise & Xxxxxxxx LLP

000 Xxxxx Xxxxxx

Xxx Xxxx, Xxx Xxxx 00000

Telephone: (000) 000-0000

Facsimile: (000) 000-0000

Attn: Xxxx X. Xxxxxx, Esq.

Xxxxxx X. Xxxxx, Esq.

If to the Trustee:

U.S. Bank National Association

c/o Xxxxxx Xxxx, Vice President & Relationship Manager

U.S. Bank Institutional Trust & Custody

000 Xxxxx Xxxxxx, Xxxxx 000

Xxxxxxxxxxxx, XX 00000

Telephone: 000-000-0000

Facsimile: 000-000-0000

Section 9.6 Severability. Whenever possible, each provision or portion of any provision of this Trust Agreement shall be interpreted in such a manner as to be effective and valid under Applicable Law, but if any term or provision of this Trust Agreement is held by a court of competent jurisdiction or other authority to be invalid, illegal or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof, and this Trust Agreement shall be reformed, construed and enforced as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.

Section 9.7 Further Assurances. The Grantor and the Beneficiary shall execute such documents and perform such further acts as may be reasonably required to carry out the provisions of this Trust Agreement.

Section 9.8 Entire Agreement. This Trust Agreement contains the entire agreement among the Beneficiary and the Grantor with respect to the Trust created herein and supersedes all prior agreements, written or oral, with respect thereto.

Section 9.9 Governing Law; Jurisdiction; Enforcement.

(a) This Trust Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to the principles of conflicts of law rules thereof. The establishment and maintenance of the Trust Account, and all interests, duties and obligations with respect thereto, shall be governed by the laws of the State of New York.

(b) Each party hereby irrevocably and unconditionally submits to the exclusive jurisdiction of the United States District Court for the Southern District of New York and of any New York state court sitting in New York County, for purposes of all legal proceedings arising out of or relating to this Trust Agreement, or the transactions contemplated by this Trust Agreement, or for recognition and enforcement of any judgment in respect thereof. In any such action, suit or other proceeding, each party hereby irrevocably waives, to the fullest extent permitted by Applicable Law, any objection that it may now or hereafter have to the laying of the venue of any such proceedings brought in such court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum. Each party also agrees that any final and unappealable judgment against a party in connection with any action, suit or other proceeding shall be conclusive and binding on such party and that such award or judgment may be enforced in any court of competent jurisdiction, either within or outside of the United States. A certified or exemplified copy of such award or judgment shall be conclusive evidence of the fact and amount of such award or judgment. Each party agrees that any process or other paper to be served in connection with any action or proceeding under this Trust Agreement shall, if delivered, sent or mailed in accordance with Section 9.5, constitute good, proper and sufficient service thereof.

(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS TRUST AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION, ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED IN CONTRACT, TORT OR OTHERWISE) DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS TRUST AGREEMENT CONTEMPLATED HEREBY. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS TRUST AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.9.

Section 9.10 Specific Performance. The Grantor and the Beneficiary recognize and agree that, as between themselves, if for any reason any of the provisions of this Trust Agreement required to be performed by the Grantor or the Beneficiary for the benefit of the other, are not performed in accordance with their specific terms or are otherwise breached, immediate and irreparable harm or injury would be caused for which money damages would not be an adequate remedy. Accordingly, the Grantor and the Beneficiary agree that, in addition to any other available remedies, the Grantor and the Beneficiary shall be entitled to an injunction restraining any violation or threatened violation of any of the provisions of this Trust Agreement by the other without the necessity of posting a bond or other form of security. In the event that any action should be brought in equity to enforce any of the provisions of this Trust Agreement by either the Grantor or the Beneficiary, neither the Grantor nor the Beneficiary will allege, and the Grantor and the Beneficiary each hereby waives the defense, that there is an adequate remedy at law.

Section 9.11 Construction and Effect. This Trust Agreement and the enforceability hereof shall not be subject to the satisfaction of any conditions or qualifications not expressly included herein.

Section 9.12 USA Patriot Act. The Grantor and the Beneficiary each hereby acknowledges that the Trustee is subject to federal laws, including the Customer Identification Program (“CIP”) requirements under the USA PATRIOT Act and its implementing regulations, pursuant to which the Trustee must obtain, verify and record information that allows the Trustee to identify the Grantor and the Beneficiary. Accordingly, prior to opening the Trust Account hereunder, the Trustee will ask the Grantor and the Beneficiary to provide certain information including, but not limited to, the Grantor’s and the Beneficiary’s name, physical address, tax identification number and other information that will help the Trustee to identify and verify the Grantor’s and the Beneficiary’s identity such as organizational documents, certificate of good standing, license to do business, or other pertinent identifying information. Each of the Grantor and the Beneficiary agrees that the Trustee cannot open the Trust Account hereunder unless and until the Trustee verifies the Grantor’s and the Beneficiary’s identity in accordance with the Trustee’s CIP.

IN WITNESS WHEREOF, the parties hereto have executed this Trust Agreement as of the date first above written.


ATHENE LIFE INSURANCE
COMPANY OF NEW YORK, as
Beneficiary

By:
Name:
Title:

[Signature Page to Trust Agreement]


FIRST ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY, as Grantor

By:
Name:
Title:

[Signature Page to Trust Agreement]


U.S. BANK NATIONAL ASSOCIATION, as
Trustee

By:
Name:
Title:

[Signature Page to Trust Agreement]

EXHIBIT A

FORM OF GRANTOR SUBSTITUTION NOTICE

[DATE]

[TRUSTEE]

[TRUSTEE ADDRESS]

Attention: [•]

Facsimile: [•]

Ladies and Gentlemen:

Reference is hereby made to the Trust Agreement, dated as of July 31, 2015 (as amended, supplemented or otherwise modified from time to time, the “Trust Agreement”), by and among Athene Life Insurance Company of New York (the “Beneficiary”), First Allmerica Financial Life Insurance Company, (the “Grantor”), and U.S. Bank National Association (the “Trustee”). Capitalized terms used but not defined herein shall have the meaning set forth in the Trust Agreement.

Pursuant to Section 3.1 of the Trust Agreement, the Grantor hereby requests and authorizes the Trustee to substitute the Trust Assets described below held in Trust Account No. [•] for the Replacement Assets described below. The Trustee is hereby authorized and directed to transfer such Trust Assets in accordance with the directions set forth below concurrent with receipt of the Replacement Assets set forth below:

Trust Assets to be Withdrawn and Transferred:

[Description of each Trust Asset, and the Statutory Book Value thereof, to be withdrawn from the Trust Account.]

Replacement Assets to be deposited into the Trust Account:

[Description of each Replacement Asset, and the Statutory Book Value thereof, to be deposited in the Trust Account.]

A-1

Transfer Directions:

Transferee: __________________________

Location of Account: __________________

Account No.: __________________

Transfer Date: ________________

The Grantor hereby certifies that the substitution of assets provided for herein meets the requirements set forth in Section 3.1 of the Trust Agreement.

[The Grantor hereby further certifies that the Beneficiary was provided written notice of the substitution of assets provided for herein and did not provide written notice to the Grantor of the withholding of its consent to such substitution of assets within two Business Days following their receipt of written notice of such substitution of assets, and, therefore, the Beneficiary’s consent to the substitution of assets provided for herein is deemed to be provided in accordance with Section 3.1 of the Trust Agreement.]


FIRST ALLMERICA FINANCIAL LIFE
INSURANCE COMPANY

By:
Name:
Title:


The Beneficiary hereby consents
to the substitution of assets provided
for herein.

By:
Name:
Title:

A-2

EXHIBIT B

FORM OF BENEFICIARY WITHDRAWAL NOTICE

[DATE]

[TRUSTEE]

[TRUSTEE ADDRESS]

Attention: [•]

Facsimile: [•]

[insert Grantor notice information]

Ladies and Gentlemen:

Pursuant to Section 4.2 of the Trust Agreement, the undersigned Beneficiary hereby requests and authorizes the Trustee to withdraw the Trust Assets described below from Trust Account No. [•], and to transfer such Trust Assets in accordance with the directions set forth below:

Trust Assets to be Withdrawn and Transferred:

[Description of each Trust Asset to be withdrawn from the Trust Account.]

Transfer Directions:

Transferee: __________________________

Location of Account: __________________

Account No.: __________________

Transfer Date: ________________

B-1

The undersigned Beneficiary hereby certifies that the withdrawal of assets provided for herein meets the requirements set forth in Section 4.2 of the Trust Agreement.


ATHENE LIFE INSURANCE COMPANY OF
NEW YORK

By:
Name:

B-2

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AMENDED AND RESTATED COINSURANCE AGREEMENT between ATHENE LIFE INSURANCE COMPANY OF NEW YORK and FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY Dated as of July 31, 2015

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