Automatic Coinsurance Agreement
Between
American Skandia Life Assurance Corporation
of Shelton, Connecticut U.S.A.
(Reinsured referred to as you, your or Reinsured)
and
Pruco Reinsurance Ltd.
of Xxxxxxxx XX00, Xxxxxxx
(referred to as the Reinsurer)
Exhibit B Form of Proposed Treaty
TABLE OF CONTENTS
ARTICLE I.......................................................................4
AUTOMATIC REINSURANCE........................................................4
ARTICLE II......................................................................4
LIABILITY....................................................................4
ARTICLE III.....................................................................5
PLAN AND AMOUNT OF INSURANCE.................................................5
ARTICLE IV......................................................................5
REINSURANCE PREMIUMS.........................................................5
ARTICLE V.......................................................................5
PAYMENTS BY REINSURER........................................................5
ARTICLE VI......................................................................5
REPORTING AND CASH SETTLEMENT................................................5
ARTICLE VII.....................................................................6
DEPOSITS ON THE RESERVES.....................................................6
ARTICLE VIII....................................................................7
CREDIT FOR REINSURANCE.......................................................7
ARTICLE IX.....................................................................12
GENERAL PROVISIONS..........................................................12
ARTICLE X......................................................................14
DAC TAX AGREEMENT...........................................................14
ARTICLE XI.....................................................................15
RECAPTURE...................................................................15
ARTICLE XII....................................................................15
ARBITRATION.................................................................15
ARTICLE XIII...................................................................16
DURATION OF AGREEMENT.......................................................16
ARTICLE XIV....................................................................16
ENTIRE AGREEMENT............................................................16
ARTICLE XV.....................................................................16
EXECUTION...................................................................16
SCHEDULE A.....................................................................18
BUSINESS REINSURED..........................................................18
SCHEDULE B.....................................................................20
MONTHLY SETTLEMENT REPORT...................................................20
SCHEDULE C.....................................................................21
MONTHLY BUSINESS MANAGEMENT REPORT..........................................21
SCHEDULE D.....................................................................22
ANNUAL REPORT...............................................................22
SCHEDULE E.....................................................................23
PROTOTYPE GRO BENEFIT RIDER FORMS..............................................23
The Reinsured and the Reinsurer mutually agree to reinsure on the terms and
conditions set out below.
ARTICLE I
Automatic Reinsurance
1 Insurance. The Reinsured will cede and the Reinsurer will accept as
reinsurance the underlying benefit provided by the Guaranteed Return
Option (GRO) benefit riders written by the Reinsured as shown in
Schedule A or any amendments to thereto. Prototypes of the GRO benefit
riders available as of the effective date of this Agreement are
contained in Schedule E.
2. Coverages. The underlying GRO benefit riders may be attached to any
deferred annuity contract written by the Reinsured and were first
issued on the dates specified in Schedule A. Reinsurance under this
Agreement will be provided for the GRO benefit riders while such riders
are in effect on the associated annuity contracts.
ARTICLE II
Liability
1. Liability. The liability of the Reinsurer on any reinsurance under this
Agreement begins upon the effective date of this Agreement as set forth
in Article XV, Execution, and ends after all underlying insurance
contracts associated with the reinsured GRO benefit riders have
terminated or the business reinsured is otherwise recaptured or
terminated. The liability of the Reinsurer to the Reinsured under this
Agreement will be the GRO benefit obligation to any covered contract
holder on the maturity date of the guarantee to the extent the
guarantee exceeds the contract's account value.
2. The liability of the Reinsurer will be settled and paid to the
Reinsured monthly on the basis of the monthly reports prepared by the
Reinsured in the form of Schedule B. Payment of any amount due to be
paid by the Reinsurer or the Reinsured will be determined on a net
basis and will be paid within 5 business days after receipt of the
monthly report.
3. This is a contract solely between the Reinsured and the Reinsurer. The
obligations under this contract of the Reinsurer are solely to the
Reinsured and those of the Reinsured solely to the Reinsurer.
Page 3 of 22
ARTICLE III
Plan and Amount of Insurance
1. Plan. Reinsurance under this Agreement will be on the coinsurance basis
in accordance with the underlying GRO benefit riders issued by the
Reinsured and listed on Schedule A while such riders are in effect on
the associated insurance contracts.
2. Reduction and Terminations. If any GRO benefit rider is terminated or
any of the underlying insurance contracts associated with the GRO
benefit rider reinsured under this Agreement are terminated by payment
of a death benefit, surrender or annuitization, the reinsurance with
respect to that contract will be terminated subject to any party's
right to payment under this Agreement with respect to such terminated
rider.
ARTICLE IV
Reinsurance Premiums
The premium Due Reinsurer by the Reinsured with respect to each insurance
contract reinsured is specified in Schedule B or any amendments thereto. The
Reinsurer reserves the right to amend Schedule B to increase the annualized
premium basis as of the annual anniversary of the effective date of this
Agreement upon 60 days prior notice to the Reinsured.
ARTICLE V
Payments by Reinsurer
Benefits. The Reinsurer will pay the Reinsured the obligation under the GRO
benefit rider on the maturity date of the guarantee, to the extent that the
guarantee exceeds the contract's account value.
ARTICLE VI
Reporting and Cash Settlement
1. The Reinsured will provide the Reinsurer with information necessary to
properly account for the business reinsured.
2. Not later than ten (10) business days after the end of each month, the
Reinsured will submit to the Reinsurer a report substantially in
accordance with Schedule B. The Reinsured agrees to provide or make
available to the Reinsurer such documentation as may be necessary to
support the items reported.
Page 4 of 22
3. Not later than ten (10) business days after the end of each month, the
Reinsured will submit to the Reinsurer a report substantially in
accordance with Schedule C.
4. Not later than ten (10) business days after the end of each calendar
year, the Reinsured will submit to the Reinsurer a report substantially
in accordance with Schedule D.
5. The Reinsurer and the Reinsured shall consider any balance due and
unpaid, whether on account of premiums, allowances, losses or claims
expenses, to be mutual debits or credits under this Agreement and will
offset, if permitted under the applicable law. Only the balance will be
considered in determining the liability of the Reinsurer.
6. Cash settlement of balances due between Reinsured and Reinsurer will be
made within five (5) business days of receipt of Schedule B each month.
7. The Reinsurer may contest any calculation contained a report from the
Reinsured by providing an alternative calculation to the Reinsured in
writing within 30 days of the Reinsurer's receipt of the Reinsured's
calculation. If the Reinsurer does not so notify the Reinsured, the
Reinsured may consider the reports final.
If the Reinsurer contests the Reinsured's calculation, the parties will
act in good faith to reach an agreement as to the correct amount within
30 days of the date the Reinsurer submits its alternative calculation.
If the Reinsured and the Reinsurer do not reach agreement on the
calculation within such 30-day period, then the calculation shall be
determined by an independent accounting firm or other independent third
party acceptable to both the Reinsured and the Reinsurer within 20 days
after the expiration of such 30-day period.
8. Cash settlement of the balance due for the period since first issuance
of the GRO benefit riders through the effective date of this Agreement
will be made within five (5) business days of the effective date based
on an estimated calculation of the statutory reserves that would have
been held by the Reinsured as of the effective date of this Agreement.
ARTICLE VII
Deposits on the Reserves
The Reinsurer will hold reserves that are at least as great as those required by
Bermuda laws and regulations.
Page 5 of 22
ARTICLE VIII
Credit for Reinsurance
1. Security for Payment of Reinsurer's Obligations. In order to enable the
Reinsured to take the maximum credit for the risks ceded under this
Agreement on its statutory financial statements (the "Credit Amount") the
Reinsurer will satisfy one of the following requirements:
a. Apply for, provide to the Reinsured, and maintain during the entire
term of this Agreement, one or more Letters of Credit that satisfy
each of the requirements for Letters of Credit set forth below.
b. Enter into a Trust Agreement to establish a trust account securing the
Credit Amount that satisfies each of the requirements for Trust
Agreements set forth below.
c. Use a combination of Letters of Credit and Trust Agreement with
respect to the Credit Amount.
The Reinsured agrees to allow the Reinsurer to substitute Trust funds for
Letter of Credit obligations or Letter of Credit obligations for Trust
funds under this Agreement, provided the Reinsured has given written
approval in advance to such substitution. The Reinsurer will seek approval
for the substitution of funds with at least 30 days prior notice. The
Reinsured shall negotiate any requested transfers in good faith and shall
not unreasonably or arbitrarily withhold such approval. Notwithstanding the
foregoing, the Reinsured may withhold approval, rescind any prior approval
or request the Reinsurer to substitute funds if the Reinsured is unable to
obtain credit for reinsurance with respect to the Trust funds or with
respect to any Letter of Credit obligations.
The Reinsurer agrees to:
a. Submit to the jurisdiction of an alternative dispute resolution panel
or court of competent jurisdiction with the United States;
b. Comply with all the requirements necessary to give such court or panel
jurisdiction;
c. Designate an agent upon whom service of process may be effected; and
d. Abide by the final decision of such court or panel.
2. Letters of Credit. Each Letter of Credit must individually satisfy
subsections a, b, c and d below and all of the Letters of Credit
collectively must satisfy the requirements of subsections e and f. In
addition, each Letter of Credit individually and all of the Letters of
Credit collectively must satisfy any other applicable legal or regulatory
requirements of Connecticut that must be complied with in order to ensure
that the Reinsured is entitled to take the maximum credit for the risks
ceded under this Agreement on its statutory financial statements, given
that the Reinsurer is neither a licensed nor an accredited reinsurer under
the applicable laws and regulations of Connecticut.
Page 6 of 22
a. Each Letter of Credit must: (I) be an original and signed by an
authorized official of the issuing bank or an authorized official of
the confirming bank (in the case of a confirmation meeting the
requirements of this Section); (II) contain an issuance date and
contain an expiry date that is no earlier than one calendar year from
the issuance date; (III) be issued or confirmed by a "Qualified Bank"
(as defined in subsection b below that is acceptable to the
Reinsured); (IV) be issued on behalf of the Reinsurer as the
"Applicant" and include such indication in a boxed area that states it
is "For Internal Identification Purposes Only" (or similar words to
that effect) and that does not affect the terms of the Letter of
Credit or the bank's obligations thereunder; (V) be issued to the
Reinsurer as "Beneficiary" and expressly indicate in the body of the
Letter of Credit that the definition of the "Beneficiary" under the
Letter of Credit includes any successor by operation of law of the
Reinsurer, including, without limitation, any liquidator,
rehabilitator, receiver, or conservator for the Reinsurer; (VI) be
issued, presentable and payable at an office of the issuing or
confirming bank within the United States; (VII) be "clean and
unconditional" (meaning that the Letter of Credit makes no reference
to any other agreement, document or entity and provides that the
Beneficiary need only draw a sight draft under the Letter of Credit or
confirmation and present it to promptly obtain funds and that no other
document need be presented); (VIII) contain a statement that it is not
subject to any agreement, condition or qualification outside the
Letter of Credit itself; (IX) contain a statement to the effect that
the obligation of the issuing bank under the Letter of Credit is an
individual obligation of such bank and is in no way contingent upon
reimbursement with respect thereto; (X) be irrevocable and contain an
"evergreen clause" (meaning that the letter of credit or confirmation
cannot be revoked prior to its expiry date and that it will
automatically renew prior to the occurrence of the expiry date unless
written notice sent by U.S. registered mail has been delivered to the
Reinsured as Beneficiary at the notice address stipulated in
subsection c not less than 30 days prior to the expiry date); (XI)
state that it is subject to and governed by the laws of the State of
Connecticut and the 1993 Revision of the Uniform Customs and Practice
for Documentary Credits of the International Chamber of Commerce
(Publication 500) and that, in the event of any conflict, the laws of
the State of Connecticut will control; and (XII) contain a provision
for an extension of time, of not less than 30 days after resumption of
business, to draw against the Letter of Credit in the event that one
or more of the occurrences described in article 17 of Publication 500
occurs.
b. The term "Qualified Bank" as used herein shall mean a bank or trust
company that: (I) is organized and existing, or in the case of a
branch or agency office of a foreign banking organization is licensed,
under the laws of the United States or any state thereof; (II) is
regulated, supervised and examined by United States Federal or state
authorities having regulatory authority over banks and trust
companies; (III) is determined by the Securities Valuation Office of
the National Association of Insurance Commissioners to meet such
standards of financial condition and standing as are considered
necessary and appropriate to regulate the quality of banks and trust
companies whose letters of credit will be acceptable to insurance
regulatory authorities; (IV) is not a foreign branch office of a bank
or trust company organized and existing in the United States; and (V)
is not a parent, subsidiary or affiliate of the Reinsured or the
Reinsurer.
Page 7 of 22
c. Each Letter of Credit must indicate that notices of non-renewal will
be sent to the following address, or such other address as may be
indicated in a notice sent by the Reinsured to the issuing or
confirming bank:
Chief Actuary
American Skandia Life Assurance Corporation
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
d. All of the Letters of Credit must, in the aggregate, provide for a
maximum amount that can be drawn thereunder of a sum that is at least
as great as the Reinsured has indicated will be required under this
Agreement and all other related reinsurance agreements between the
Reinsurer and the Reinsured or any affiliate of the Reinsurer.
Approximately one month before the end of each calendar quarter, the
Reinsured will determine and communicate to the Reinsurer the
aggregate Credit Amount needed under all of the Letters of Credit as
well as any other information necessary for the Reinsurer to provide
the Reinsured the required Letters of Credit prior to end of each
calendar quarter. The cost for all Letters of Credit furnished and
maintained under this Agreement will be borne solely by the Reinsurer.
e. The Reinsurer and the Reinsured agree that any or all of the Letters
of Credit provided by the Reinsurer pursuant to the provisions of this
Agreement may be drawn upon in full or in part at any time,
notwithstanding any other provisions in this Agreement, and may be
utilized by the Reinsured or any successor by operation of law of the
Reinsured including, without limitation, any liquidator,
rehabilitator, receiver or conservator of the Reinsured for any of the
following purposes:
i. to reimburse the Reinsured for the Reinsurer's share of premiums
returned to the owners of contracts associated with the GRO benefit
riders reinsured under this Agreement on account of cancellations of
such contracts;
ii. to reimburse the Reinsured for the Reinsurer's share of benefits
or losses paid by the Reinsured under the terms and provisions of
the GRO benefit riders reinsured under this Agreement;
iii. to fund an account with the Reinsured in an amount at least equal
to the deduction, for reinsurance ceded, from the Reinsured's
liabilities for the GRO benefit riders ceded under this
Agreement. Such amount shall include, but not be limited to,
amounts for policy reserves, reserves for claims and losses
incurred (including losses incurred but not reported), loss
adjustment expenses, and unearned premiums; and
iv. to pay any other amounts the Reinsured claims are due under this
Agreement.
All of the foregoing will be applied without diminution because
of insolvency on the part of the Reinsured or the Reinsurer.
Page 8 of 22
f. The Reinsurer further acknowledges and agrees that the Reinsured or
any successor by operation of law of the Reinsured including, without
limitation, any liquidator, rehabilitator, receiver or conservator of
the Reinsured may draw upon any or all of the Letters of Credit in
full or in part in the event that: (I) a notice of cancellation or
non-renewal has been issued by the issuing or confirming bank under
any of the Letters of Credit and the Reinsurer has not obtained one or
more replacement letters of credit that satisfy all of the applicable
requirements by that date which is ten days prior to the earliest
expiry date of the Letter of Credit or Letters of Credit as to which
notice of cancellation or non-renewal has been sent; or (II) the
maximum amount that may be drawn under -- any of the Letters of Credit
has been reduced other than in accordance with the Reinsured's
direction or the Reinsured has determined and communicated to the
Reinsurer in accordance with the provisions of subsection d. above a
need to increase the aggregate amount available under all of the
Letters of Credit and the Reinsurer has not obtained one or more
replacement Letters of Credit or one or more additional Letters of
Credit so that all issued and outstanding Letters of Credit that will
remain in effect provide for coverage in an amount sufficient to meet
the requirements d above.
3. Trust Agreement. Any Trust Agreement to establish a trust account securing
the Credit Amount must satisfy the requirements below.
a. Fifteen days prior to the end of each calendar quarter or at any other
time, the Reinsured will determine and communicate the Credit Amount
to the Reinsurer. The Credit Amount shall be an amount at least equal
to the deduction for reinsurance ceded from the Reinsured's
liabilities for GRO benefit riders ceded under this Agreement. Such
amount shall include, but not be limited to, amounts for policy
reserves, reserves for claims and losses incurred (including losses
incurred but not reported), loss adjustment expenses, and unearned
premiums. The Reinsured will determine and communicate this amount to
the Reinsurer in order to enable the Reinsurer to ensure that the
Trust is maintained with a sufficient balance. All costs and expenses
of maintaining the trust will be borne by the Reinsurer and will not
be paid by any of the Assets held in the Trust.
b. The Reinsurer will deposit into the trust on or before a date agreed
to by the parties Assets that cause the market value of the trust to
meet or exceed 102% of the most recently communicated Credit Amount
immediately prior to the date for the deposit of Assets into the
Trust.
c. The assets deposited in the trust account shall be valued according to
their current fair market value, and shall consist of only those
instruments detailed within the Trust Agreement, provided that such
investments are issued by an institution that is not a parent,
subsidiary, or an affiliate of either the Reinsured or the Reinsurer.
Within 3 days of a request from the Reinsured, the Reinsurer shall
provide a report setting forth the current fair market value of the
trust assets.
d. The Reinsurer shall, prior to depositing assets with the Trustee,
execute assignments, endorsements in blank, or transfer legal title to
the Trustee of all
Page 9 of 22
shares, obligations or any other assets requiring assignments, in
order that the Reinsured, may, whenever necessary, negotiate any such
assets without consent or signature from the Reinsurer or any other
entity.
e. The Reinsurer and the Reinsured agree that the assets in the trust
account may be drawn upon at any time, notwithstanding any other
provisions in this Agreement, and be utilized and applied by the
Reinsured or any successor by operation of law of the Reinsured
including, without limitation, any liquidator, rehabilitator, receiver
or conservator of the Reinsured, for the following purposes:
i. To reimburse the Reinsured for the Reinsurer's share of premiums
returned to the owners of contracts associated with the GRO
benefit riders reinsured under this Agreement on account of
cancellation of such contracts;
ii. To reimburse the Reinsured for the Reinsurer's share of benefits
or losses paid by the Reinsured under the terms and provisions of
the GRO benefit riders reinsured under this Agreement;
iii. To fund an account with the Reinsured in an amount at least equal
to the deduction for reinsurance ceded from the Reinsured's
liabilities for the GRO benefit riders ceded under this
Agreement. Such amount shall include, but not be limited to,
amounts for policy reserves, reserves for claims and losses
incurred (including losses incurred but not reported), loss
adjustment expenses, and unearned premiums;
iv. To pay any other amounts the Reinsured claims are due under this
Agreement.
All of the foregoing will be applied without diminution because of
insolvency on the part of the Reinsured or the Reinsurer or the inability
of the Reinsured to pay all or any part of a claim.
The Reinsured agrees to return to the Reinsurer any amounts withdrawn which
are in excess of the actual amounts required for i, ii and iii above, or in
the case of iv, such amounts that are in excess of the amounts ultimately
determined to be due under this Agreement. In addition, the Reinsured shall
make interest payments to the Reinsurer on amounts withdrawn pursuant to
item (iii) above, to the extent such interest is not needed to be retained
to maintain the account at the Credit Amount. The rate of interest charged
will be equal to XXXXX'x 30-Day AAA Rate, but no greater than the Prime
Rate of interest as published in Federal Reserve Bulletin. The XXXXX'x
30-Day AAA Rate and the Prime Rate shall be determined on the first
business day of each month in which interest is payable.
Following the receipt of a new Credit Amount, but prior to the start of the
new calendar quarter, the Reinsurer shall have the right to seek approval
from the Reinsured to withdraw from the trust account a portion of the
assets contained therein and to transfer such assets to the Reinsurer,
provided that after such withdrawal and transfer, the market value of the
trust account is no less than one hundred and two
Page 10 of 22
percent (102%) of the Credit Amount most recently determined and
communicated by the Reinsured to the Reinsurer.
f. The Trust shall remain in effect until the later of the termination of
this Reinsurance Agreement or the full satisfaction and discharge of
any and all liabilities and obligations owed by the Reinsurer to the
Reinsured, unless the Reinsurer and the Reinsured mutually agree in
writing to terminate the Trust at an earlier date. Notwithstanding any
provision contained in the Trust Agreement, the Reinsurer shall not
seek to terminate the trust unless it has written permission from the
Reinsured. The Reinsured shall not arbitrarily or unreasonably
withhold such permission if another form of collateral acceptable to
the Reinsured is provided by the Reinsurer for the Credit Amount.
g. Prior to the Reinsurer's establishing or funding the Trust, the
Reinsured shall submit a copy of the Trust Agreement to applicable
state regulatory authorities for approval, if such approval is
required by state insurance law or regulations. The Reinsured shall
promptly inform the Reinsurer of such approval or of any changes to
such documents required by regulatory authorities.
ARTICLE IX
General Provisions
1. Reinsurance Conditions. The reinsurance is subject to the same limitations
and conditions as the GRO benefit riders written by the Reinsured on which
the reinsurance is based.
2. Expenses. In no event will the Reinsurer have any liability for any
extra-contractual damages which are rendered against the Reinsured as a
result of administrative errors, acts, omissions or course of conduct
committed by the Reinsured in connection with the annuity contracts
associated with the GRO benefit riders reinsured under this Agreement. In
no event will the Reinsured have any liability for extra-contractual
damages against the Reinsurer as a result of acts, omissions, or course of
conduct committed by the Reinsurer in connection with the reinsurance of
the GRO benefit riders under this Agreement.
3. Oversights. If failure to pay any premium due or to perform any other act
required by this Agreement is unintentional and is caused by
misunderstanding or oversight, the Reinsured and the Reinsurer will adjust
the situation to what it would have been had the misunderstanding or
oversight not occurred.
4. Inspection. At any reasonable time, the Reinsurer and the Reinsured may
inspect the original papers and any other books or documents at the Home
Office of the other relating to or affecting reinsurance under this
Agreement.
It is mutually agreed by the Reinsured and the Reinsurer that any
information that is made available for inspection under this section of the
Agreement will be kept
Page 11 of 22
confidential and under no circumstances may this information be disclosed
to, or made available for inspection by, any third party without the prior
written consent of the other contracting party.
5. Assignment or transfer. In no event will either the Reinsured or the
Reinsurer assign any of its rights, duties and or obligations under this
Agreement without the prior written approval of the other party. Such
approval will not unreasonably be withheld.
In no event will either the Reinsured or the Reinsurer transfer either the
GRO benefit riders reinsured under this Agreement or the reinsurance
without the prior written approval of the other party. Such approval will
not unreasonably be withheld.
6. If any provision of this Agreement will be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will
not be affected thereby. This Agreement will be construed in accordance
with the applicable federal law and the laws of the State of Connecticut.
7. Premium Taxes. The Reinsurer will not be liable for premium taxes.
8. Insolvency. In the event of the declared insolvency of the Reinsured, and
the appointment of a domiciliary liquidator, receiver, conservator or
statutory successor for the Reinsured, this reinsurance will be payable
immediately upon demand, with reasonable provision for verification,
directly to the Reinsured or its domiciliary liquidator, receiver, or
conservator or statutory successor, on the basis of the liability of the
Reinsured without diminution because of the insolvency of the Reinsured or
because the liquidator, receiver, conservator or statutory successor of the
Reinsured has failed to pay all or a portion of any claim.
Every liquidator, receiver, conservator or statutory successor of the
Reinsured or guaranty fund or association will give written notice to the
Reinsurer of the pendency of a claim involving the Reinsured indicating
which of the underlying insurance contracts would involve possible
liability on the part of the Reinsurer to the Reinsured or its domiciliary
liquidator, receiver, conservator or statutory successor, within a
reasonable amount of time after the claim is filed in the conservation,
liquidation, receivership or other proceeding.
During the pendency of any claim, the Reinsurer may investigate the same
and interpose, at its own expense, in the proceeding where that claim is to
be adjudicated, any defense or defenses that it may deem available to the
Reinsured, to its contract owner, or to any liquidator, receiver or
statutory successor of the Reinsured or guaranty fund or association. The
expenses thus incurred by the Reinsurer will be chargeable, subject to
approval of the applicable court, against the Reinsured as part of the
expense of conservation or liquidation to the extent of a pro rata share of
the benefit which may accrue to the Reinsured as a result of the defense
undertaken by the Reinsurer.
This reinsurance will be payable directly to the Reinsurer to the Reinsured
or to its domiciliary liquidator, receiver, conservator or statutory
successor, except as expressly required otherwise by applicable insurance
law.
Page 12 of 22
9. Insolvency of the Reinsurer. In the event of the insolvency, bankruptcy,
receivership, rehabilitation or dissolution of the Reinsurer, the Reinsured
may retain all or any portion of any amount then due or which may become
due to the Reinsurer under this Agreement and use such amounts for the
purposes of paying any and all liabilities of the Reinsurer incurred under
this Agreement. When all such liability hereunder has been discharged, the
Reinsured will pay the Reinsurer, its successor or statutory receiver, the
balance of such amounts withheld as may remain.
ARTICLE X
DAC Tax Agreement
1. The Reinsured and the Reinsurer, herein collectively called the "Parties",
or singularly the "Party", hereby enter into an election under Treasury
Regulations Section 1.848-2(g) (8) as promulgated under the Internal
Revenue Code, as found in Title 26 of the United States Code, hereinafter
referred to as the Regulations and the IRC. Both parties agree to make the
election contemplated by this Section 14 by timely attaching to their U.S.
tax returns the schedule contemplated by Section 1.848-2(g)(8)(ii) of the
Regulations. Furthermore, the parties agree to the following:
a. For each taxable year under this Agreement, the party with the net
positive consideration, as defined in the Regulations, will capitalize
specified policy acquisition expenses with respect to this Agreement
without regard to the general deductions limitation of Section 848 (c)
(1);
b. The Reinsured and the Reinsurer agree to exchange information
pertaining to the net consideration under this Agreement each year to
insure consistency or as otherwise required by the U.S. Internal
Revenue Service;
c. The Reinsured will submit to the Reinsurer by May 1 of each year its
calculation of the net consideration for the preceding calendar year.
d. The Reinsurer may contest such calculation by providing an alternative
calculation to the Reinsured in writing within 30 days of the
Reinsurer's receipt of the Reinsured's calculation. If the Reinsurer
does not so notify the Reinsured, the Reinsurer will report the net
consideration as determined by the Reinsured in the Reinsurer's tax
return for the previous calendar year;
e. If the Reinsurer contests the Reinsured's calculation of the net
consideration, the parties will act in good faith to reach an
agreement as to the correct amount within 30 days of the date the
Reinsurer submits its alternative calculation. If the Reinsured and
the Reinsurer do not reach agreement on the net amount of
consideration within such 30-day period, then the net amount of
consideration for such year shall be determined by an independent
accounting firm acceptable to both the Reinsured and the Reinsurer
within 20 days after the expiration of such 30-day period.
Page 13 of 22
f. The Reinsured and the Reinsurer agree that this election shall first
be effective for the 2004 calendar tax year and will be effective for
all subsequent taxable years for which this Agreement remains in
effect.
The Reinsured represents and warrants that they are subject to U.S.
taxation under either Subchapter L of Chapter 1, or Subpart F of Subchapter
N of Chapter 1 of the IRC of 1986, as amended. The Reinsurer represents and
warrants that it has duly elected to be subject to U.S. taxation under
Section 953(d) of the IRC of 1986, as amended.
ARTICLE XI
Recapture
The business reinsured under this Agreement will not be eligible for recapture,
except through mutual agreement of both parties unless the Reinsurer seeks to
amend Schedule B to institute an increase of the annualized premium basis in
which case the Reinsured may unilaterally recapture the business reinsured
within 60 days of notice of such increase by the Reinsurer.
ARTICLE XII
Arbitration
1. Any controversy or claim arising out of or relating to this Agreement will
be settled by arbitration.
2. There must be three arbitrators who will be active, prior or retired
officers of life insurance companies other than the contracting companies
or their subsidiaries or affiliates. Each of the contracting companies will
appoint one of the arbitrators and these two arbitrators will select the
third.
In the event either contracting company fails to choose an arbitrator
within thirty (30) days after the other contracting company has given
written notice of its arbitrator appointment, the contracting company which
has given written notice may choose two arbitrators who will in turn choose
a third arbitrator before entering arbitration. If the two arbitrators are
unable to agree upon the selection of a third arbitrator within thirty (30)
days following their appointment, each arbitrator will nominate three
candidates within ten (10) days thereafter, and the final selection will be
made by a court of competent jurisdiction from among the submitted names
(three each) or any other persons the court finds to be a qualified and
impartial arbitrator.
3. With regard to (2) above, arbitration must be conducted in accordance with
the Commercial Arbitration Rules of the American Arbitration Association
that will be in effect on the date of delivery of demand for arbitration.
4. Each contracting company will pay its arbitrator and its arbitration
expenses and the two companies will share equally the third arbitrator's
expenses.
Page 14 of 22
5. The award agreed to by the arbitrators will be final and binding upon the
parties, and judgment may be entered upon it in any court having
jurisdiction.
ARTICLE XIII
Duration of Agreement
1. This Agreement may be terminated with respect to new GRO benefit riders at
any time by either party giving ninety (90) days' written notice of
termination. The day the notice is deposited in the mail addressed to the
Home Office or to an Officer of either company will be the first day of the
ninety (90) day period.
2. During the ninety (90) day period, this Agreement will continue to remain
in force.
3. After termination, the Reinsurer and the Reinsured will remain liable for
all reinsurance that became effective prior to the termination of the
Agreement.
ARTICLE XIV
Entire Agreement
This Agreement including any Schedules and Amendments will constitute the entire
agreement between the parties with respect to the business being reinsured
hereunder. There are no understandings between the parties other than as
expressed in this Agreement. Any change or modification to this Agreement will
be null and void unless made by amendment to this Agreement and signed by both
parties.
ARTICLE XV
Execution
In witness of the above, this Agreement is signed in duplicate at the dates and
places indicated and will be effective as of the of December 2004.
AMERICAN SKANDIA LIFE ASSURANCE CORPORATION
At Shelton, Connecticut
On:
------------------------------------
Signature:
------------------------------------
By:
-------------------------------
Page 15 of 22
Title:
-------------------------------
PRUCO REINSURANCE LTD.
At
On:
--------------------------------------
Signature:
--------------------------------------
By:
---------------------------------
Title:
-----------------------------
Page 16 of 22
SCHEDULE A
Business Reinsured
1. Form Name and Type First Issue Dates Form Number
---------------------------------------------------------------------------
GRO I Rider June 11, 2001 RID-DSN(03/01)-01
RID-DSN(03/01)GP-01
RID-DSN(03/01)IND-01
RID-DSN(03/01)-01 MA
RID-DSN(03/01)IND-01 OR
Schedule Supplements:
SCH-DSN(03/01)
SCH-DSN(03/01) OR
SCH-DSN(03/01)MN
SCH-DSN(03/01)TX
XXX XX Rider November 18, 2002 RID-DSN2(04/02)
RID-DSN2(04/02) XX-00
XXX-XXX0(00/00)XXX-00
RID-DSN2(04/02)GP-01 OR
RID-DSN2(04/02)IND-01 OR
RID-DSN2(04/02)FL
RID-DSN2(04/02)MA
RID-DSN2(10/02)NY
Schedule Supplements:
SCH-DSN2(04/02)
SCH-DSN2(04/02)OR
SCH-DSN2(10/02)NY
SCH-DSN2(04/02)TX
GRO PLUS Rider October 13, 2003 RID-C/GRO(1/03) IND
RID-C/GRO(1/03)
2RID-C/GRO(4/03)
2RID-C/GRO(4/03)NY
2RID-C/GRO(4/03)TX
2RID-C/GRO(4/03)IND
Schedule Supplements:
SCH-C/GRO(1/03)IND
SCH-C/GRO(1/03)
2SCH-C/GRO(4/03)
2SCH-C/GRO(4/03)MN
2SCH-C/GRO(4/03)NY
2SCH-C/GRO(4/03)IND
The Reinsured may seek to amend this Schedule A to add GRO benefit rider forms
that become available after the effective date of the Agreement in accordance
with the terms of the Agreement.
Page 17 of 22
2. Claims arising under the GRO benefit rider are equal to the remaining GRO
protected value under a contract on the guaranteed maturity dates to the
extent that the protected value exceeds the account value paid as due under
the GRO benefit rider to the extent that the GRO benefit is greater than
the benefit under the base contract or other riders attached to the
contract. Claims will not include any amounts that are paid by the
Reinsured as a result of administrative errors.
Page 18 of 22
SCHEDULE B
Monthly Settlement Report
A. Due Reinsurer
1. _______ After the end of each month the monthly equivalent of this fee
will be applied to the sum of 1/2 of the Variable Account balances for
all contracts covered under this Agreement as of the last business day
of the preceding month and 1/2 of the Variable Account balances for
all contracts covered under this Agreement as of the last business day
of the month prior to the preceding month.
The Reinsurer reserves the right to increase the annualized premium
basis as of the annual anniversary of the effective date of the
Agreement upon 60 days prior notice to the Reinsured and seek to amend
this Schedule B in accordance with the terms of the Agreement.
B. Due Reinsured
1. Any claim associated with the GRO benefit rider on the maturity date
of the guarantee to the extent the guarantee exceeds the contract's
account value.
C. Balance During the Period = A(1) - B(1)
o If positive, the balance is due to be paid by the Reinsured.
o If negative, the balance is due to be paid by the Reinsurer
The above information will be provided by the Reinsured on an aggregate
basis. The individual insurance contract data will be available to the
Reinsurer on a computer tape or diskette upon request.
Page 19 of 22
SCHEDULE C
Monthly Business Management Report
A. Informational Reports
1. Reserve Report showing the statutory reserves, Account Values and
Surrender Value.
2. Production report with premiums (split by initial and additional
premiums) and contract counts, including the number of insurance
contracts in force at the beginning and at the end of the month.
Page 20 of 22
SCHEDULE D
Annual Report
The annual report will provide the following information:
"Exhibit of Number of Policies, Contracts and Certificates for Annuities":
from the NAIC-prescribed annual statement
Page 21 of 22
SCHEDULE E
Prototype GRO Benefit Riders
Page 22 of 22
