Exhibit 7(d)
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)
Final Execution Copy
TABLE OF CONTENTS
ARTICLE I 3
Automatic Reinsurance 3
ARTICLE II 3
Liability 3
ARTICLE III 4
Plan and Amount of Insurance 4
ARTICLE IV 4
Reinsurance Premiums 4
ARTICLE V 4
Payments by Reinsurer 4
ARTICLE VI 4
Reporting and Cash Settlement 4
ARTICLE VII 5
Deposits on the Reserves 5
ARTICLE VIII 6
Credit for Reinsurance 6
ARTICLE IX 11
General Provisions 11
ARTICLE X 14
DAC Tax Agreement 14
ARTICLE XI 15
Recapture 15
ARTICLE XII 16
Arbitration 16
ARTICLE XIII 16
Duration of Agreement 16
ARTICLE XIV 17
Entire Agreement 17
ARTICLE XV 17
Execution 17
SCHEDULE A 18
Business Reinsured 18
SCHEDULE B 19
Monthly Settlement Report 19
SCHEDULE C 20
Monthly Business Management Report 20
SCHEDULE D 21
Annual Report 21
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 Life Time 5 Withdrawal
Benefit (LT5WB) riders written by the Reinsured as shown in Schedule A or
any amendments thereto. Note that the business reinsured excludes any LT5WB
riders attached to deferred annuity contracts issued between March 15, 2005
and May 5, 2005.
2. Coverages. The underlying LT5WB riders may be attached to any deferred
annuity contract written by the Reinsured. Reinsurance under this Agreement
will be provided for the LT5WB riders specified in Schedule A 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 contracts associated
with the reinsured LT5WB 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 remaining LT5WB obligation to any
covered contract holder after the associated contract's account value has
been reduced to zero.
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.
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ARTICLE III
Plan and Amount of Insurance
1. Plan. Reinsurance under this Agreement will be on the coinsurance basis in
accordance with the underlying LT5WB 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 LT5WB rider is terminated or any of the
underlying contracts associated with the LT5WB riders 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
1. The initial premium, equal to the statutory reserves that are held by the
Reinsured as of June 30, 2005 with respect to the LT5WB riders reinsured
under this Agreement, will be paid within ten (10) business days of the
latest execution date of this Agreement.
2. After the effective date of this Agreement, the Monthly Premium due the
Reinsurer by the Reinsured with respect to each insurance contract reinsured
is specified in Schedule B or any amendments thereto.
ARTICLE V
Payments by Reinsurer
Benefits. The Reinsurer will pay the Reinsured the remaining obligation under
the LT5WB rider after permitted withdrawals have reduced the associated
contract's account value to zero.
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.
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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 in 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 initial premium due the Reinsurer by the Reinsured
described in Article IV (1) of this Agreement will be made within ten
(10) business days of the effective date 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.
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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 enable
the Reinsured 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.
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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 Reinsured 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 Reinsured, including, without
limitation, any liquidator, rehabilitator, receiver, or conservator for
the Reinsured; (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.
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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 LT5WB
riders reinsured under this Agreement on account of cancellations
of such contracts;
xx.xx reimburse the Reinsured for the Reinsurer's share of benefits
or losses paid by the Reinsured under the terms and provisions of
the LT5WB riders reinsured under this Agreement;
xxx.xx 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 LT5WB 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
xx.xx 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.
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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
LT5WB 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
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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 LT5WB
riders reinsured under this Agreement on account of cancellation
of such contracts;
xx.Xx reimburse the Reinsured for the Reinsurer's share of benefits
or losses paid by the Reinsured under the terms and provisions of
the LT5WB riders reinsured under this Agreement;
xxx.Xx 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 LT5WB 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;
xx.Xx 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 percent (102%) of the
Credit Amount most recently determined and communicated by the Reinsured to
the Reinsurer.
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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 LT5WB 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 LT5WB 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 LT5WB 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 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.
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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
LT5WB 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 reimburse the Reinsured for any applicable
premium taxes incurred that are directly attributable to the reinsured LT5WB
riders..
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 Reinsured or to its
domiciliary liquidator, receiver, conservator or statutory successor, except
as expressly required otherwise by applicable insurance law.
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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.
10.Confidentiality. The Reinsurer agrees to regard and preserve as confidential
all information and material which is related to the Reinsured's business
and/or customers that may be obtained by the Reinsurer from any source as a
result of this Agreement. The Reinsurer will not, without first obtaining
the Reinsured's prior written consent disclose to any person, firm or
enterprise, or use for its own benefit or for the benefit of any third party
any information designated by the Reinsurer as Confidential Information or
Customer Information except as necessary for retrocession purposes, external
auditors, as required by court order, or as required by law or regulation.
"Confidential Information" includes, but is not limited to any and all
financial data, statistics, programs, research, developments, information
relating to the Reinsured's insurance and financial products, planned or
existing computer systems architecture and software, data, and information
of the Reinsured as well as third party confidential information to which
the Reinsured has access. "Customer Information" includes all information
provided by or at the direction of the Reinsured about a customer of the
Reinsured or any affiliates of the Reinsured, including but not limited to
name, address, telephone number, email address, account or policy
information, and any list or grouping of customers.
Notwithstanding the foregoing, this provision shall not apply with respect
to disclosing of Confidential Information which is or becomes publicly known
through no wrongful act of the Reinsurer; or is received from a third party
without similar restriction and without breach of this Amendment; or is
independently developed by the Reinsurer; or is approved for release by
written authorization of the Reinsured; or is placed in or becomes party of
the public domain pursuant to or by reason of operation of law. The
foregoing exceptions do not apply to the disclosure of Customer Information,
which may not be disclosed without the Reinsured's prior written consent.
These provisions regarding Confidential Information shall survive the
termination of the parties' obligations under this Agreement for a period of
two years, and the provisions regarding Customer Information shall survive
the termination of the parties' obligations under this Agreement
indefinitely.
The Reinsurer certifies that it has implemented and will maintain an
effective information security program to protect the Reinsured's Customer
Information, which program includes administrative, technical, and physical
safeguards:
(a)to ensure the security and confidentiality of Customer Information;
(b)to protect against any anticipated threats or hazards to the security
or integrity of such Customer Information; and
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(c)to protect against unauthorized access to or use of Customer
Information which could result in substantial harm or inconvenience
to the Reinsured or its affiliates, or to customers of any of them.
In the event that the Reinsurer is in material breach of any provisions
of these provisions, it shall immediately advise the Reinsured and take
steps to remedy such breach, including but not limited to protecting
customers, the Reinsured, and the Reinsured's affiliates against the
consequences of any disclosure or use of Customer Information in
violation of these provisions.
11.Notices. Notices regarding this Agreement shall be in writing and deemed
delivered if personally delivered, sent via facsimile or other agreed upon
electronic means, or dispatched by certified or registered mail, return
receipt requested, postage prepaid, addressed to the parties as follows:
Chief Actuary
American Skandia Life Assurance Corporation
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx 00000
Copy to:
Prudential Annuities - Actuarial
Fax No: 000-000-0000
Pruco Reinsurance Ltd.
c/x Xxxxx Management Services (Bermuda) Ltd.
Xxxxxxxx Xxxx
00 Xxxxxxxx Xxxxxx
Xxxxxxxx XX00, Xxxxxxx
Copy to:
Pruco Reinsurance Ltd - Xxxxxxx Xxxxxx
Fax No: 000-000-0000
Notice shall be deemed given on the date it is deposited in the mail or sent
via facsimile or other electronic means in accordance with the foregoing.
Any party may change the address to which to send notices by notifying the
other party of such change of address in writing in accordance with the
foregoing.
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
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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.
f. The Reinsured and the Reinsurer agree that this election shall first be
effective for the 2005 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.
Page 15 of 21
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.
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 LT5WB 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.
Page 16 of 21
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 on the execution
date(s) and at the places indicated and will be effective as of the 1/st/ day
of July 2005.
AMERICAN SKANDIA LIFE ASSURANCE CORPORATION
At Newark, New Jersey
Executed On:
-------------------------
Signature:
-------------------------
By:
-------------------------
Title:
-------------------------
PRUCO REINSURANCE LTD.
At Hamilton, Bermuda
Executed On:
-------------------------
Signature:
-------------------------
By:
-------------------------
Title:
-------------------------
Page 17 of 21
SCHEDULE A
Business Reinsured
Form Name and Type Issue Dates Form Number
1. --------------------------- ----------------- --------------
LT5WB Riders 5/06/05 - present RID-WB (11/04)
Issued on new business SCH-WB (11/04)
LT5WB Riders 3/15/05 - present RID-WB (11/04)
Issued on business in force SCH-WB (11/04)
before March 15, 2005
2. Claims arising under the LT5WB rider are equal to the remaining LT5WB rider
benefits under the contract after permitted withdrawals have reduced the
contract's account value to zero, paid as due to the extent that the LT5WB
benefit is greater than the benefit under the base contract or other riders
attached to the contract.
3. A prototype of the LT5WB Rider Form is attached.
Page 18 of 21
SCHEDULE B
Monthly Settlement Report
A. Due Reinsurer
Beginning with the July 2005 monthly settlement report, after the end of
each month the monthly equivalent of the annualized contractual rider fee
(currently 60 basis points annualized) 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 such month reported and 1/2 of the Variable
Account balances for all contracts covered under this Agreement as of the
last business day of the preceding month.
B. Due Reinsured
Any claim associated with the LT5WB benefit as defined in the rider.
C. Balance During the Period = A - B
. If positive, the balance is due to be paid by the Reinsured.
. If negative, the absolute value of 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 21
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 21
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 21
