Exhibit 99.B(7)(b)
THIS AUTOMATIC SELF ADMINISTERED YRT REINSURANCE AGREEMENT
Effective: -------------
is made between
LIBERTY LIFE ASSURANCE COMPANY OF BOSTON
of Dover, New Hampshire
(hereinafter referred to as "the Company")
and
Swiss Re Life & Health America Inc.
of New York, New York
Executive Offices: 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
(hereinafter referred to as "the Reinsurer")
The following Articles, qualified by the Exhibits of the Agreement, will form
the basis of the Agreement.
This Agreement will be referred to as AGREEMENT NO. -----------------
1
TABLE OF CONTENTS
ARTICLE 1
1.1 Scope of Coverage
1.2 Forms, Manuals, Issue Rules
ARTICLE 2
2.1 Automatic Coverage
2.2 Facultative Submissions
ARTICLE 3
3.1 Automatic Submissions
3.2 Facultative Submissions
ARTICLE 4
4.1 Premium Accounting
4.2 Non-Payment of Premiums
ARTICLE 5
5.1 Right of Offset
ARTICLE 6
6.1 Conversions
6.2 Policy changes
6.3 Reductions
6.4 Lapses
6.5 Reinstatements
6.6 Minimum Reinsurance Limit
ARTICLE 7
7.1 Retention Limit Changes
7.2 Recapture
ARTICLE 8
8.1 Liability
8.2 Commencement of Automatic Reinsurance
8.3 Commencement of Facultative Reinsurance Liability
8.4 Conditional or Interim Receipt Liability
2
ARTICLE 9
9.1 Claims Notice
9.2 Claims Payment
9.3 Contested Claims
9.4 Claims Expenses
9.5 Extra Contractual Obligations
9.6 Misstatement of Age or Sex
ARTICLE 10
10.1 Oversights
10.2 Arbitration
ARTICLE 11
11.1 Insolvency
ARTICLE 12
12.1 DAC Tax
12.2 Taxes and Expenses
ARTICLE 13
13.1 Entire Agreement
13.2 Parties to Agreement
13.4 Inspection of Records
13.5 Good Faith
13.6 Confidentiality
ARTICLE 14
14.1 Duration of Agreement
14.2 Severability
14.3 Construction
EXHIBITS [NOT AVAILABLE IN FORM OF VERSION]
A-1 Business Covered
A-2 Required Forms, Manuals & Issue Rules - Conditional Receipt Amount
B Application for Reinsurance
C General Terms - Reinsurance Rates and Allowances
D The Company's Retention Limits
E The Automatic Acceptance Limits
F Reinsurance Reports
G DAC Tax Election
3
ARTICLE 1
1.1 SCOPE OF COVERAGE
This Agreement applies to all insurance policies and supplementary
benefits and riders attached thereto (hereinafter referred to as
"policies"), as listed in Exhibit A-1, which have been issued directly by
the Company in accordance with its underwriting rules, premium rates and
policy forms as provided to the Reinsurer.
The Company will cede, and the Reinsurer will accept risk on the above
referenced policies in accordance with the terms and conditions of this
Agreement. The policies accepted by the Reinsurer will be hereinafter
referred to as "Reinsured Policies."
The Company may not reinsure the amount it has retained on the business
covered hereunder on any basis whatsoever without the Reinsurer's written
consent.
This Agreement does not cover the following on an automatic basis unless
specified elsewhere in this Agreement:
1.1.1 Noncontractual conversions, rollovers, or exchanges; or
1.1.2 Any business issued under a program where full current evidence
of insurability consistent with the amount of insurance is not
obtained, or where conventional selection criteria are not
applied in underwriting the risk; or
1.1.3 Any conversion of a previously issued policy that had been
reinsured with another reinsurer.
Each policy covered under this Agreement must provide for the maximum
normal periods of suicide and contestability protection permitted in the
state in which the policy is executed.
1.2 FORMS, MANUALS, ISSUE RULES
The Company affirms that its retention schedule, underwriting rules,
issue rules, premium rates and policy forms applicable to the Reinsured
Policies and in use as of the effective date of this Agreement have been
supplied to the Reinsurer as listed in Exhibit A-2; that it has fully
disclosed all material facts regarding the business reinsured hereunder.
The Company will notify the Reinsurer of any proposed material changes in
its retention schedule and/or underwriting and issue rules and/or premium
rates and /or policy forms. This Agreement will not extend to policies
issued pursuant to such changes unless the Reinsurer has consented in
writing to accept policies subject to such changes.
4
It is the Company's responsibility to ensure that the applicable forms
are in compliance with the current Medical Information Bureau (M.I.B.)
regulations.
5
ARTICLE 2
2.1 AUTOMATIC COVERAGE
For automatic reinsurance coverage of any policy covered under this
Agreement, the Company will retain the amount stipulated in Exhibit D
according to the age and Mortality rating at the time of underwriting.
The Company will automatically cede the amount of reinsurance to the
Reinsurer according to the Automatic Acceptance Limits specified in
Exhibit E.
2.2 FACULTATIVE COVERAGE
The reinsurance will be on a facultative basis if the Company receives an
application for a policy covered under this Agreement for which:
2.2.1 The total of the new reinsurance required and the amount already
reinsured on that life under this Agreement and all other life
agreements between the Reinsurer and the Company, exceeds the
Automatic Acceptance Limits set out in Exhibit E; or
2.2.2 The Company intends to retain less than the Retention Limit set
out in Exhibit D taking into account the applicant's age and
mortality rating or
2.2.3 The amount of insurance in force, including any coverage to be
replaced, plus the amount currently applied for on that life in
all companies exceeds the Jumbo Limit stated in Exhibit E; or
2.2.4 The application is on a life for which an application had been
submitted by Company on a facultative basis to the Reinsurer or
any other reinsurer within the last --- years, unless the reason
for submitting facultatively no longer applies.
The reinsurance will also be on a facultative basis if the Company submits an
application to the Reinsurer for its consideration on a plan or rider which
qualifies for automatic reinsurance under this Agreement.
The relevant terms and condition of the Agreement will apply to those
facultative offers made by the Reinsurer which are accepted by the Company.
6
ARTICLE 3
3.1 AUTOMATIC SUBMISSIONS
The Company will submit automatic policies to the Reinsurer according to
the reporting terms set out in Exhibit F.
Upon the request of the Reinsurer, the Company will send to the Reinsurer
copies of the application, underwriting papers and other papers on a life
reinsured automatically under this Agreement.
3.2 FACULTATIVE SUBMISSIONS
The Company will apply for reinsurance on a facultative basis by sending
to the Reinsurer an Application for Reinsurance, a sample of which is
included as Exhibit B. Accompanying this Application for Reinsurance will
be copies of all underwriting evidence that is available for risk
assessment. Any subsequent information received by the Company that is
pertinent to the risk assessment will be transmitted to the Reinsurer
immediately.
After consideration of the Application for Reinsurance and related
papers, the Reinsurers will promptly inform the Company of its
underwriting decision.
If the underwriting decision is acceptable to the Company and the
Company's policy is subsequently placed in force in accordance with issue
rules provided to the Reinsurer, the Company will duly notify the
Reinsurer according to the terms outlines in Exhibit F.
The Company will advise the Reinsurer in writing if the Application for
Reinsurance is not to be placed with the Reinsurer.
7
ARTICLE 4
4.1 PREMIUM ACCOUNTING
The Company will pay the Reinsurer premiums in accordance with the terms
specified in Exhibit C.
The method and requirements for reporting and remitting premiums are
outlined in Exhibit F.
The Reinsurer reserves the right to charge interest on overdue premiums.
The interest will be calculated according to the terms and conditions
specified in Exhibit C.
4.2 NON-PAYMENT OF PREMIUMS
The Reinsurer may terminate its liability for any Reinsured Policy for
which the premiums have not been paid within XX days after the Due Date
stated in Exhibit F, by giving the Company XX days written notice of such
termination.
Notwithstanding such termination, the Company is still obligated to pay
the overdue premiums, plus interest to the date of payment.
The Company will not force termination under the provisions of this
Article solely to avoid the recapture requirements or to transfer the
Reinsured Policies to another reinsurer.
8
ARTICLE 5
5.1 RIGHT OF OFFSET
The Company and the Reinsurer will have the right to offset any balance
or balances whether on account of premiums, allowances or claims due from
one party to the other, under this Agreement or under any other
reinsurance agreement between the Company and the Reinsurer.
The right of offset will not be affected or diminished because of the
insolvency of either party.
9
ARTICLE 6
6.1 CONVERSIONS
In the event of the conversion of a Reinsured Policy the policy arising
from the conversion will be reinsured with the Reinsurer. The amount to
be reinsured will be determined on the same basis as used for the
original policy (e.g. excess of retention, quota share) but will not
exceed the amount reinsured as of the date of conversion unless mutually
agreed otherwise.
If the policy arising from a conversion is on a plan that is:
6.1.1 Reinsured on a coinsurance basis with Reinsurer, the appropriate
premium at the attained age will be used and the policy year for
the purpose of commission rates will be based on the duration of
the original policy; or
6.1.2 Reinsured on a YRT basis with the Reinsurer, the appropriate YRT
rate at the attained age and duration of the original policy will
be used and any allowance will be based on the duration of the
original policy; or
6.1.3 Not covered by any
reinsurance agreement with the Reinsurer,
reinsurance will be on a YRT basis using the YRT rates specified
in Exhibit C, at the attained age and duration of the original
policy; or
The above terms will apply unless specified otherwise in Exhibit C.
Unless mutually agreed otherwise, policies that had been reinsured with
another reinsurer and which convert to a plan covered under this
Agreement will not be reinsured with the Reinsurer.
6.2 POLICY CHANGES
If the plan, the amount of reinsurance or the premiums of a Reinsured
Policy are changed, the company will promptly inform the Reinsurer.
Whenever a Reinsured Policy is changed and the COMPANY'S UNDERWRITING
RULES DO NOT REQUIRE that full evidence be obtained, the reinsurance will
remain in effect with the Reinsurer. The suicide, contestability and
recapture period applicable to the original Reinsured Policy will apply
to the reissued Reinsured Policy and the duration will be measured from
the effective date of the original Reinsured Policy.
Whenever any Reinsured Policy is changed and the COMPANY'S UNDERWRITING
RULES REQUIRE that full evidence be obtained, the change will be subject
to the Reinsurer's approval, if:
10
6.2.1 The new amount of the Reinsured Policy would be in excess of the
Automatic Acceptance Limit, in effect at the time of the change,
as set out in Exhibit E; or
6.2.2 The new amount of the policy and the amount already in force on
the same life exceeds the Jumbo Limit stated in Exhibit E; or
6.2.3 The Reinsured Policy is on a facultative basis.
The amount of any non-contractual increase will be subject to the terms
stated in Exhibit C.
The Company will report the details of all changes according to the terms
outlined in Exhibit F, Reinsurance Reports.
For changes not covered under this Agreement, which affect the terms of
any Reinsured Policy, the Company must obtain the Reinsurer's approval
before such changes become effective.
6.3 REDUCTIONS
Unless specified otherwise in this Agreement, if the amount of insurance
of a policy issued by the Company is reduced, then the amount of
reinsurance on that life will be reduced effective the same date by the
full amount of the reduction under the original policy. If the amount of
insurance terminated equals or exceeds the amount of reinsurance, the
full amount reinsurance is terminated. If the reinsurance is a quote
share of the policy issued by the Company, the reduction would be
proportional.
The reduction will first apply to any reinsurance on the policy being
reduced and then in a chronological order according to policy date
("first in, first out") to any reinsurance on the other policies in force
on the life. However, the company will not be required to assume a risk
for an amount in excess of its regular retention for the age at issue and
the mortality rating of the policy under which reinsurance is being
terminated.
If the reinsurance for a policy has been placed with more than one
reinsurer, the reduction will be applied to all reinsurers pro rata to
the amounts originally reinsured with each reinsurer.
6.4 LAPSES
When a policy lapses, the corresponding Reinsured Policy will be
terminated effective the same date. The Reinsurer's liability with
respect to unearned premiums on the terminated Reinsured Policy is set
out in Exhibit F.
11
Unless specified otherwise in this Agreement, if a policy fully retained
by the Company lapses, the Reinsured Policy or Policies on that same life
will be reduced or terminated effective the same date in order for the
Company to maintain its full retention. The terms under the preceding
Reductions clause would apply.
If the Company allows extended or reduced paid-up insurance following a
lapse, the reinsurance will be appropriately amended. If the Company
allows the policy to remain in force under its automatic premium loan
regulations, the reinsurance will continue unchanged and in force as long
as such regulations remain in effect, except as provided for otherwise in
this Agreement.
6.5 REINSTATEMENTS
If a policy reinsured on an automatic basis is reinstated in accordance
with its terms or the rules of the Company, as provided to the Reinsurer,
the Reinsured Policy will be reinstated automatically by the Reinsurer.
The Reinsurer's approval is required only for the reinstatement of a
facultative policy when the Company's regular reinstatement rules
indicate that more evidence than a Statement of Good Health is required.
The Company's liability with respect to the premiums in arrears is set
out in Exhibit F.
6.6 MINIMUM REINSURANCE LIMIT
The Company may not submit a policy to the Reinsurer unless the amount of
the policy to be reinsured exceeds the Minimum Initial Reinsurance Limit
specified in Exhibit C. The Reinsured Policy will be canceled whenever
its net amount at risk becomes less than the Minimum Final Reinsurance
Limit set out in Exhibit C.
12
ARTICLE 7
7.1 RETENTION LIMIT CHANGES
If the Company changes its retention limits, it will provide the
Reinsurer with written notice of the new retention limits and the
effective date.
A change to the Company's Retention Limits in Exhibit D will not affect
the Reinsured Policies in force at the time of such a change except as
specifically for elsewhere in this Agreement.
7.2 RECAPTURE
The Company may apply its increased retention limits to reduce the
benefit amount of in force Reinsured Policies provided:
7.2.1 The Company gives the Reinsurer written notice of its intention
to recapture with XX days of the effective date of the retention
increase; and
7.2.2 Such recaptures are made on the next anniversary of each
Reinsured Policy a affected and with no recapture being made
until the Reinsured Policy has been in force for the period
stated in Exhibit C. For a conversion policy or re-entry, the
recapture terms of the original policy will apply and the
duration for the recapture period will be measured from the
effective date of the original policy; and
7.2.3 The Company has maintained from the time the policy was issued,
its full retention as set out in Exhibit D for the plan and the
insured's classification. Reinsured policies on a first dollar
quota share basis will not be eligible for Recapture; and
7.2.4 The company has applied its increased Retention Limits in a
consistent manner to all categories of its Retention Limits set
out Exhibit D unless otherwise agreed to by the Reinsurer.
In applying its increased Retention Limits to Reinsured Policies, the age and
mortality rating at the time of issue will be used to determine the amount of
the Company's increased retention.
Recapture as provided herein is optional with the Company, but if any Reinsured
Policy is recaptured, all Reinsured Policies eligible for recapture under the
provision of this Article must be recaptured. If there is reinsurance to be
applied prorate to the total outstanding reinsurance.
13
The amount of reinsurance eligible for recapture is based on the reinsurance net
amount at risk as of the date of recapture.
The Company may not recapture reinsurance if the Company his either obtained or
increased stop loss reinsurance coverage as justification for the increase in
retention.
If there is a Waiver of Premium (W.P.) claim in effect when recapture takes
place, the W.P. claim will stay in effect until W.P. claim terminates. The
Reinsurer will not be liable for any other benefits, including the basic life
risk, that are eligible for recapture. All such eligible benefits will be
recaptured as if there was no W.P. claim.
The Reinsurer will not be liable, after the effective date of recapture, for any
Reinsured Policies or portions of such Reinsured Policies eligible for
recapture, that the Company has overlooked. The Reinsurer will be liable only
for a credit of the premiums, received after the recapture date, less any
allowance.
The terms and conditions for the Company to recapture in force Reinsured
Policies due to the insolvency of the Reinsurer are set out in the Insolvency
clause in Article 11.
If the Company transfers business which is reinsured under this Agreement to
successor company, then the successor company has the option to recapture the
reinsurance, in accordance with the recapture criteria outlined in this Article,
only if the successor company has a higher retention limit than the Company.
14
ARTICLE 8
8.1 LIABILITY
Unless specified elsewhere in the Agreement, the Reinsurer's liability
for the Reinsured Policies is restricted to its share of the Company's
liability as limited by the terms and conditions of the particular policy
under which the Company is liable.
The Reinsurer may terminate its liability for any policies for which
reinsurance premium payments are in arrears, according to the terms set
out in Article 4 of this Agreement.
8.2 COMMENCEMENT OF AUTOMATIC REINSURANCE LIABILITY
The Reinsurer's liability Policy accepted automatically will begin
simultaneously with the Company's contractual liability for that policy.
8.3 COMMENCEMENT OF FACULTATIVE REINSURANCE LIABILITY
If a facultative application is submitted by the Company to Reinsurer
only, then the Reinsurer's liability will begin simultaneously with the
Company's contractual liability for this facultative policy. The amount
of the Reinsurer's liability will be the lesser of the Reinsurer's offer,
the Conditional Receipt Amount set out in Exhibit A-2 or the Automatic
Acceptance Limits set out in Exhibit e. The Reinsurer's liability ceases
if the Reinsurer declines the risk and duly notifies the Company. The
Reinsurer's liability would also cease if the Company declines the
Reinsurer's offer.
If, however, a facultative application is submitted by the Company to any
other reinsurer, in addition to the Reinsurer, the liability of the
Reinsurer will commence when the Reinsurer has been accepted. The Company
will have --- days from the date of the Reinsurer's final offer in which
to place the policy with the insurer/owner, after which time the
Reinsurer's offer will expire unless the Reinsurer explicitly states in
writing that the offer is extended for some further period.
8.4 CONDITIONAL OR INTERIM RECEIPT LIABILITY
The extent of the Reinsurer's liability on a per life basis, for claims
accepted by the Reinsurer that have arisen under the conditional receipt
or interim receipt coverage, is set out in Exhibit A-2.
15
ARTICLE 9
9.1 CLAIMS NOTICE
The Company will notify the Reinsurer as soon as reasonably possible
after the Company receives the claim. Copies of all claims papers will be
sent promptly by the Company to the Reinsurer. The settlement made by the
Company will be binding on the Reinsurer. However, for claims made during
the contestable period or in any case where total amount of reinsurance
ceded to the Reinsurer is greater than the amount retained by the
company, or if the company retained less than, or none of, its usual
retention on the policy, then all papers in connection with the claim
will be submitted to the Reinsurer and the company will wait for up to
ten days from the date of submission for the Reinsurer's recommendation
before conceding liability or making settlement to the claimant.
The Company will provide the Reinsurer with all further reports and
papers required by the Reinsurer for its consideration of the claim.
For Joint Life Last Survivor business, the Company will notify the
Reinsurer of the first death.
9.2 CLAIMS PAYMENT
Provided there is no existing breach of this Agreement by the Company,
the Reinsurer will be liable to the Company for the benefits reinsured
and the reinsurance will not exceed the Company's contractual liability
under the terms of its policies. The payment of death claims by the
Reinsurer will be in one lump sum regardless of the mode of settlement
under the original policy. The Reinsurer's share of interest, which is
based on the death proceeds paid by the company, will be payable in
addition to the death claim settlement. The Reinsurer will pay to the
Company premium claim, provided always that the waiver of premium benefit
applicable to such benefits been reinsured under this Agreement.
9.3 CONTESTED CLAIMS
The Company will notify the Reinsurer of its intention to contest,
compromise or litigate a claim involving a Reinsured Policy. The company
will also provide the Reinsurer prompt notice of any legal proceedings
initiated against the Company in response to its denial of a claim on a
reinsured policy. Should any claim be settle on a reduced compromise
basis, or should a contested claim be settled for a reduced sum, the
Company and the Reinsurer will participate in such reductions in
proportion to their respective liabilities under the policy or policies
reinsured.
The Reinsurer may pay its share of the death benefit if it does not deem
it advisable to contest the claim.
16
9.4 CLAIMS EXPENSES
The Reinsurer will pay its share of reasonable investigation and legal
expenses incurred in adjudicating or litigating the claim. The Reinsurer
will not be liable for any portion of any routine investigative or
administrative expenses incidental to the settlement of claims (such as
compensation of salaried employees) which are incurred by the Company;
not for any expenses incurred in connection with a dispute or contest
arising out of conflicting claims of entitlement to policy proceeds or
benefits that the Company admits are payable.
9.5 EXTRA CONTRACTUAL OBLIGATIONS
Extra Contractual Obligations are obligations outside of the contractual
obligations and include but are not limited to punitive damages, bad
faith damages, compensatory damages, and other damages or statutory
penalties which may arise from the willful and/or negligent acts or
omissions by the Company.
The Reinsurer is not liable for Extra contractual Obligations unless it
concurred in writing and in advance with the actions of the Company which
ultimately led to the imposition of the Extra Contractual Obligations.
In such situations, the Company and the Reinsurer will share in Extra
Contractual Obligations, in equitable proportions, but all factors being
equal, the division of any such assessments would be in proportion to the
total risk accepted by each party for the plan of insurance involved.
Notwithstanding anything stated herein, this Agreement not apply to any
Extra Contractual Obligations incurred by the Company as a result of any
fraudulent and/or criminal act by any employee or officer of the Company
or an agent representing Company, acting individually, collectively or in
collusion in the presentation, defense, or settlement of any claim.
9.6 MISSTATEMENT OF AGE OR SEX
In the event of an increase or reduction in the amount payable under a
policy due to a misstatement in age or sex, the proportionate liabilities
under this Agreement will be the basis for determining each party's share
of any increase or reduction. The Reinsured Policy will be rewritten from
commencement on the basis of the adjusted amounts using premiums and
amounts at risk for the correct ages and sex, and the proper adjustment
for the difference in reinsurance premiums, without interest, will be
made.
17
ARTICLE 10
10.1 OVERSIGHTS
Any unintentional or accidental failure to comply with the terms of this
Agreement which can be shown to be the result of an oversight,
misunderstanding or clerical error, by either the Company or the
Reinsurer, will not be deemed to be a breach of this Agreement. Upon
discovery, the error will be corrected so that both parties are restored
to the position they would have occupied had the oversight,
misunderstanding or clerical error not occurred. Should it not be
possible to restore both parties to such a position, the party
responsible for the oversight, misunderstanding or clerical error will be
responsible for any resulting liabilities and expenses.
This provision will apply only to oversights, misunderstandings or
clerical errors relating to the administration of reinsurance covered by
this Agreement and not to the administration of the insurance provided by
the Company to its insured.
If the Company or the Reinsurer discovers that Company did not cede
reinsurance on a policy it should have reinsured under this Agreement,
the company may be required to audit its records, at the request of the
Reinsurer, to determine if reinsurance was unreported on any other
policies. The company is expected to take the necessary actions to ensure
that similar oversights do not recur. If the Reinsurer receives no
evidence that the company has taken action to remedy such a situation,
the Reinsurer reserves the right to limit its liability to correctly
reported policies only.
Any negligent or deliberate acts or omissions by the Company regarding
the insurance or reinsurance provided are the responsibility of the
Company and its liability insurer, if any, but not that of the Reinsurer.
10.2 ARBITRATION
Any controversy arising hereafter between the Company and the Reinsurer
relating to the policies covered under this Agreement or the breach
thereof will be referred to three arbitrators. These arbitrators must be
officers of Life Insurance Companies or Life Reinsurance Companies
excluding officers of the parties to this Agreement, their affiliates or
subsidiaries or past employees of any of these entities. The arbitrators
who will regard this Agreement from the standpoint of practical business
as well as the law, are empowered to determine the interpretation of the
treaty obligation.
Each party will appoint one arbitrator and these two arbitrators will
select a third arbitrator within two weeks of the appointment of the
second. If either party refuses or neglects to appoint an arbitrator
within -- days after receipt of the written request for arbitration, the
other party may appoint a second arbitrator. Should the two arbitrators
not agree on the choice of the third, then each party will name four
candidates to serve as the arbitrator. Beginning with the party who did
not initiate
18
arbitration, each party will eliminate one candidate from the eight
listed until one candidate remains. If this candidate declines to serve
as the arbitrator, the candidate last eliminated will be approached to
serve. This process will be repeated until a candidate has agreed to
serve as the third arbitrator.
The place of the meeting the arbitrators will be decided by the majority
vote of the arbitrators. The written decision of a majority of the
arbitrators will be final and binding on both parties and their
respective successors and assigns.
The arbitrators will render a decision within four months of the
appointment of the third arbitrator, unless both parties after otherwise.
In the event no decisions rendered within four months, new arbitrators
will be selected as above.
Alternatively, if both parties consent, any controversy may be settled by
arbitration in accordance with the rules of the American Arbitration
Association.
Unless the Arbitrators decide otherwise, each party will bear the expense
of its own arbitration, including its arbitrator and outside attorney
fees and will jointly and equally bear with the other party the expense
of the third arbitrator.
Judgment upon the award rendered by the arbitrator(s) may be entered in
any court having jurisdiction thereof.
It is specifically the intent of both parties that these arbitration
provisions will replace and be in lieu of any statutory arbitration
provision, if the law so permits.
19
ARTICLE 11
11.1 INSOLVENCY
A party to this Agreement will be deemed "insolvent" when it:
11.1.1 Applies for or consents to the appointment of a receiver,
rehabilitator, conservator, liquidator or statutory successor
(hereinafter referred to as the Authorized Representative) of its
properties or assets; or
11.1.2 Is adjudicated as bankrupt or insolvent; or
11.1.3 Files or consents to the filing of petition in bankruptcy, seeks
reorganization or an arrangement with creditors or takes
advantage of any bankruptcy, dissolution, liquidation, or similar
law or statute; or
11.1.4 Becomes the subject of an order to rehabilitate or an order to
liquidate as defined by the insurance code of the jurisdiction of
the party's domicile.
In the event of the insolvency of the Company, all reinsurance made,
ceded, renewed or otherwise becoming effective under this Agreement will
be payable by the Reinsurer directly to the Company or to its Authorized
Representative, on the basis of the liability of the Company under the
Reinsured Policies without diminution because of the insolvency of the
Company.
The Authorized Representative will give written notice to the Reinsurer
of all pending claims against the Company on any policies reinsured
within a reasonable time after such claims are filed in the insolvency
proceeding. While a claim is pending the Reinsurer may investigate such
claim and interpose, at its own expense, at its own expense, in the
proceedings where the claim is to be adjudicated, any defense or defenses
which it may deem available to the Company or the Authorized
Representative.
The expense this incurred by the Reinsurer will be chargeable, subject to
court approval, against the Company as part of the expense of
conservation or liquidation to the extent of a proportional 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 reinsurers are involved I
the same claim and a majority in interest elect to interpose a defense to
such claim, the expense will be apportioned in accordance with the terms
of the Agreement as though such expense had been incurred by the Company.
In the event of insolvency of the Company, the Right of Offset afforded
under Article 5 will remain I full force and effect to the extent
permitted by applicable law.
In the event of the insolvency of the Reinsurer, the Company may cancel
this Agreement for new business by promptly providing the Reinsurer, its
receiver,
20
rehabilitator, conservator, liquidator or statutory successor with
written notice of the cancellation effective the date on which the
Reinsurer's insolvency is established by the authority responsible for
such determination. Any requirement for a notification period prior to
the cancellation of the Agreement would not apply under such
circumstances.
In addition, the Company may provide the Reinsurer, its receiver,
rehabilitator, conservator, liquidator or statutory successor with
written notice of its intent to recapture all reinsurance in force under
this Agreement regardless of the duration the reinsurance has been in
force or the amount retained by the Company on the policies reinsured
hereunder. The effective date of a recapture due to insolvency would be
at the election of the Company and would not be earlier than the date on
which the Reinsurer's insolvency is established by the authority
responsible for such determination. Any Recapture Fee applicable will be
mutually agreed upon by the Company and the Reinsurer, its rehabilitor,
conservator, liquidator or statutory successor.
21
ARTICLE 12
12.1 DAC
The company and the Reinsurer agree to the DAC Tax Election pursuant to
Section 1.848-2(g) (8) of Income Tax Regulation under Section 848 of the
Internal Revenue of 1986, as amended, whereby:
12.1.1 The party with the net positive consideration for this Agreement
for each taxable year will capitalize specified policy
acquisition expenses with respect to this Agreement without
regard to the general deductions limitation of Section 848(c)(1);
and
12.1.2 Both parties agree to exchange information pertaining to the
amount of net consideration under this Agreement each year to
ensure consistency.
The term "net consideration" will refer to the net consideration as
defined in Regulation Section 1.848-2(f).
The method and timing of the exchange of this information is set out in
Exhibit G.
This DAC Tax Election will be effective for all years for which this
Agreement remains in effect.
The Company and the Reinsurer represent and warrant that they are subject
to U.S. taxation under either the provision of subchapter L of chapter 1
or the provisions of subpart F of subchapter N of Chapter 1 of the
Internal Revenue Code of 1986, as amended.
12.2 TAXES AND EXPENSES
Apart from any taxes, allowances, refunds, and expenses specifically
referred to elsewhere in this Agreement, no taxes, allowances, or
proportion of any expense will be paid by the Reinsurer to the company in
respect of any Reinsured Policy.
22
ARTICLE 13
13.1 ENTIRE AGREEMENT
This Agreement will constitute the entire agreement between the parties
with respect to the business being reinsured hereunder. There are no
understandings between the Company and the Reinsurer other than as
expressed in this Agreement.
Any alteration to this Agreement will be null and void unless made by
written amendment, attached to the Agreement and signed by both parties.
13.2 PARTIES TO AGREEMENT
This is an Agreement solely between the Company and the Reinsurer. The
acceptance of the reinsurance hereunder will not create any right or
legal relation between the Reinsurer and the insured, beneficiary, or any
other party to any policy of the Company which may be reinsured
hereunder.
This Agreement will be binding upon the parties hereto and their
respective successors and assigns.
13.3 INSPECTION OF RECORDS
The Reinsurer, or its duly appointed representatives, will have access to
the records of the Company concerning the business reinsured hereunder
for the purpose of inspecting, auditing and photocopying those records.
Such access will be provided at the office of the Company and will be
during reasonable business hours.
Provided there is business in force under this Agreement, the Reinsurer's
right of access as specified above will survive the term of the
Agreement.
13.4 GOOD FAITH
All matters with respect to this Agreement require the utmost good faith
of both parties.
Each party represents and warrants to the other party that it is solvent
on a statutory basis in all states in which it does business or is
licensed. Each party will promptly notify the other if it is subsequently
financially impaired.
The Reinsurer has entered into this Agreement in reliance upon the
company's representations and warranties. The Company affirms that it has
and will continue
23
to disclose all matters material to this Agreement. Examples of such
matters are a change in underwriting or issue practices or philosophy, a
change in underwriting or claims management personnel, or a change in the
Company's ownership or control.
The Company affirms that the underwriting, administration and claims
practices it employs are consistent with the customary and usual
practices of the insurance industry as a whole. Should the company engage
in exceptional or uncustomary practices, it will inform the Reinsurer of
such action and obtain its written consent before assigning any liability
to the Reinsurer with respect to any policies covered under this
Agreement.
13.5 CONFIDENTIALITY
Both the Company and the Reinsurer will hold confidential and not
disclose or make competitive use of any shared proprietary information
unless otherwise agreed to in writing, or unless the information
otherwise becomes publicly available or the disclosure of which is
required for retrocession purposes or has been mandated by law or is duly
required by external auditors.
24
ARTICLE 14
14.1 DURATION OF AGREEMENT
This Agreement is unlimited as to its duration. The Reinsurer or the
company may terminate this Agreement by
14.1.1 Giving at least XX days written notice to that effect to other
party; or
14.1.2 As provided elsewhere in this Agreement
During the XX day notification period, the Reinsurer will continue to
accept policies covered under the terms of this Agreement.
Further, the Reinsurer remains liable for all Reinsured Policies in force
at the date of the termination, set forth in the notice, until their
natural expiration, unless the parties mutually decide otherwise or as
specified otherwise in this Agreement.
14.2 SEVERABILITY
If any provision of this Agreement is determined to be invalid or
unenforceable, such determination will not affect or impair the validity
or the enforceability of the remaining provisions of this Agreement.
14.3 CONSTRUCTION
The rights and obligations under this Agreement will be construed and
administered in accordance with the laws of the company's state of
domicile stated in Exhibit A-1.
25
Made in duplicate and executed by both parties.
Signed for and behalf of LIBERTY LIFE ASSURANCE COMPANY OF BOSTON
By: By:
------------------------------ -----------------------------
Title: Title:
------------------------------ -----------------------------
Date: Place:
------------------------------ -----------------------------
Signed for and on behalf of Swiss Re Life & Health America Inc.
By: By:
------------------------------ -----------------------------
Title: Title:
------------------------------ -----------------------------
Date: Place:
------------------------------ -----------------------------
26
