Exhibit 2.8
NOVATION AGREEMENT
THIS NOVATION AGREEMENT is made as of December 31, 2002 (the
"Novation Date") among Annuity and Life Reassurance, Ltd ("ALRe"), XL Life Ltd
("XL"), and Phoenix Life and Annuity Company ("Ceding Company").
WHEREAS, ALRe and Ceding Company are parties to the reinsurance
agreements (the "Subject Agreements") set forth in Schedule A hereto; and
WHEREAS, as of December 31, 2002, the parties to this Novation
Agreement have agreed to novate the Subject Agreements by substituting XL for
ALRe as reinsurer thereunder, such that XL will assume all of ALRe's interests,
rights, duties, obligations, and liabilities under the Subject Agreements and
that ALRe shall be released and discharged from any further liability or
obligations whatsoever thereunder; and
WHEREAS, Ceding Company wishes to consent and agree to such
novation.
NOW, THEREFORE, in consideration of the foregoing and of the
following mutual terms, conditions, covenants, and agreements, the parties agree
that on the Novation Date, but effective as to each Subject Agreement on the
inception date thereof, XL is hereby substituted as the Reinsurer under each of
the Subject Agreements in place and instead of ALRe. XL and Ceding Company
hereby ratify and confirm that the Subject Agreements shall be treated as always
having been agreements solely between them. In implementation and not in
limitation of the foregoing, the parties further agree as follows:
1. From and after the Novation Date, but effective as to each Subject
Agreement on the inception date thereof, XL hereby assumes all of
ALRe's interests, rights, duties, obligations, and liabilities under
the Subject Agreements, and XL shall be bound by all terms and
conditions of the Subject Agreements.
2. Performance and/or breach prior to the Novation Date by ALRe shall
after the Novation Date be treated for all purposes as having been
performance or breach by XL.
3. Effective as of the Novation Date, Ceding Company hereby releases
and discharges ALRe from and against any and all duties,
obligations, and/or liabilities whatsoever, express or implied,
under or in connection with the Subject Agreements and shall look
solely to XL for performance thereof.
4. From and after the Novation Date, the Ceding Company shall have no
further duties, obligations, and/or liabilities whatsoever, express
or implied, to ALRe under or in connection with the Subject
Agreements, but any such duties, obligations, and/or liabilities
theretofore existing shall continue as duties, obligations, and/or
liabilities of the Ceding Company to XL.
5. Notwithstanding anything contained in this Novation Agreement or in
the Subject Agreements, the Ceding Company shall not have the right
to cede any new business, new issues, future issuances or further
new reinsurance policies under the Subject Agreements after the
Novation Date. This exclusion shall include, without limitation,
policies with an application date after the Novation Date,
non-mandatory renewals of policies in effect prior to the Novation
Date and non-mandatory changes to policies in effect prior to the
Novation Date that increase the insurance provided thereunder.
6. Each party agrees to do all things as may be necessary to give full
effect to this Novation Agreement.
7. This Novation Agreement shall inure to the benefit of and be binding
upon the parties hereto and their respective successors and assigns.
8. This Novation Agreement shall be subject to the arbitration
provisions of the Subject Agreements and shall be governed by and
construed in accordance with the laws applicable to the Subject
Agreements.
9. This Novation Agreement may be executed in counterparts.
10. This Novation Agreement will become effective when it has been
executed in Bermuda by XL after having been executed by ALRe and the
Ceding Company.
11. The Novation Date will not occur unless and until the Ceding Company
shall have received (including by facsimile transmission) a letter
of credit (the "Letter of Credit") in the amount of US $ 7,400,000
in substantially the form of Exhibit B hereto issued by the banks
listed in Exhibit B and XL shall have received in Bermuda (including
by facsimile transmission) a receipt for the Letter of Credit in the
form of Exhibit C hereto, provided that if these conditions to the
occurrence of the Novation Date are satisfied, the Novation Date
shall be December 31, 2002.
12. Simultaneous to item 11 above, the assets of the reserve trusts
provided for in Subject Agreements shall be transferred as set forth
in the letter agreement among ALRe, XLFA, the Ceding Company and
Mellon Bank, as trustee attached hereto as Exhibit A.
IN WITNESS WHEREOF the parties have executed this Novation Agreement
as of December 31, 2002.
ANNUITY AND LIFE REASSURANCE, LTD.
By: /s/ R Xxxxx By: /s/ Xxx Xxxxxx
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Title: SVP & CU Title: VP
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Date: 12/31/2002 Date: 12/31/2002
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PHOENIX LIFE AND ANNUITY COMPANY
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Title: Senior Vice President Title: Assistant Secretary
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Date: 12/31/2002 Date: 12/31/2002
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XL LIFE LTD
By: /s/ Xxxx Xxxxxxxx By: /s/ [Signature Illegible]
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Title: Secretary Title: Vice President
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Date: 31 Dec 2002 Date: 31 Dec 2002
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SCHEDULE A
SUBJECT AGREEMENTS
- Automatic Coinsurance Agreement No. 3027 effective March 3, 2000, between
Phoenix Life and Annuity Company and Annuity & Life Reassurance, Ltd.,
covering PES-10 polices.
- Amendment No. 4 effective March 3, 2000 to the Automatic Reinsurance
Agreement No. 3027 effective March 3, 2000, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
- Amendment No. 1 effective August 7, 2000 to the Automatic Reinsurance
Agreement No. 3027 effective March 3, 2000, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
- Amendment No. 3 effective December 1, 2001 to the Automatic Reinsurance
Agreement No. 3027 effective March 3, 2000, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
- Amendment No. 2 effective July 16, 2001 to the Automatic Reinsurance
Agreement No. 3027 effective March 3, 2000, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
- Automatic Coinsurance Agreement No. 3031 effective March 3, 2000, between
Phoenix Life and Annuity Company and Annuity & Life Reassurance, Ltd.,
covering PES-20 policies.
- Amendment No. 4 effective March 3, 2000 to the Automatic Coinsurance
Agreement No. 3031 effective March 3, 2000, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
- Amendment No. 1 effective August 7, 2000 to the Automatic Coinsurance
Agreement No. 3031 effective March 3, 2000, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
- Amendment No. 3 effective December 1, 2001 to the Automatic Reinsurance
Agreement No. 3031 effective March 3, 2000, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
- Amendment No. 2 effective July 16, 2001 to the Automatic Coinsurance
Agreement No. 3031 effective March 3, 2000, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
- Automatic Coinsurance Agreement No. 3073 effective February 25, 2002,
between Phoenix Life and Annuity Company and Annuity & Life Reassurance,
Ltd., covering PES-20 policies,
- Amendment No. 1 effective December 25, 2002 to the Automatic Coinsurance
Agreement No. 3073 effective February 25, 2002, between Phoenix Life and
Annuity Company and Annuity & Life Reassurance, Ltd.
