LIFE SURPLUS SHARE REINSURANCE CONTRACT issued to
LIFE SURPLUS SHARE REINSURANCE CONTRACT
issued to
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Newark, New Jersey
including any and/or all companies that are or may hereafter become affiliated therewith
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TABLE OF CONTENTS
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Article
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Page
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Preamble
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4
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1
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Business Covered
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4
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2
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Retention and Limit
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4
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3
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Special Conditions
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5
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4
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Commencement and Termination
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6
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5
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Special Termination
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6
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6
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Territory
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7
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7
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Exclusions
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7
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8
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Special Acceptance
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8
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9
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Premium
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9
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10
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Profit Commission
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10
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11
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Definitions
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11
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12
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Extra Contractual Obligations
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12
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13
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Claims Notice
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13
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14
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Claims Payment
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13
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15
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Original Conditions
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13
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16
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Net Retained Lines
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14
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17
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Currency
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14
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18
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Compliance
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14
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19
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Taxes
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15
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20
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DAC Tax
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15
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21
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Access to Records
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16
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22
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Confidentiality
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17
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23
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Errors and Omissions
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18
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24
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Insolvency
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18
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25
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Arbitration
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19
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26
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Service of Suit
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20
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27
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Governing Law
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21
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28
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Entire Agreement
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21
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29
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Severability
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22
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30
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Trade and Economic Sanctions
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22
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31
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Intermediary
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22
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32
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Mode of Execution
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22
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23
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Exhibits
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Exhibit I - Monthly Reinsurance Rates
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24
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Exhibit II - Automatic Reinsurance Binding Limits
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25
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LIFE SURPLUS SHARE REINSURANCE CONTRACT
TABLE OF CONTENTS
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Exhibits (Cont’d)
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Page
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Exhibit III - Premium Reconciliation Worksheet
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(the “Contract”)
issued to
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Newark, New Jersey
including any and/or all companies that are or may hereafter become affiliated therewith
(collectively, the “Company”)
by
THE SUBSCRIBING REINSURER(S) IDENTIFIED
IN THE INTERESTS AND LIABILITIES AGREEMENT(S)
ATTACHED TO AND FORMING PART OF THIS CONTRACT
(the “Reinsurer”)
BUSINESS COVERED
This Contract is to indemnify the Company in respect of the liability that may accrue to the Company as a result of loss or losses under Policies classified by the Company as Group Life Insurance, including, but not limited to Group Term Life, Group Variable Universal Life, Group Universal Life Policies, Survivor Income benefits, and Executive Carve Out, including Waiver of Premium benefits, in force at the inception of this Contract, or written or renewed during the term of this Contract by or on behalf of the Company, subject to the terms and conditions herein contained.
RETENTION AND LIMIT
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A.
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The Company shall retain not less than $1,500,000 of its gross liability on each Person during the term of this Contract. The Company shall cede and the Reinsurer shall accept the Company’s First Surplus liability, not to exceed the lesser of 14/3rds times the Company’s retention or $7,000,000 each risk.
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B.
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The total reinsurance coverage to be provided by the Reinsurer as respects any one Location will be strictly limited to a per Event or Occurrence maximum. The loss on any single “Event” or “Occurrence” is the sum of all individual losses arising out of one or more associated events or occurrences. Events or occurrences will be deemed associated to the extent that they have a common cause or are a chain of events or occurrences forming a part of a schematic whole, even if the events or occurrences themselves are separate in time
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and place. For these purposes, a series or sequence of events or occurrences reasonably likely to have been caused by one or more persons acting in concert or in accordance with a plan or design will be deemed to have a common cause.
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For purposes of this Article, “Location” means any one or more buildings or structures within a one-mile radius that serve as the place of employment for the reinsured lives. Total reinsurance coverage will be strictly limited to:
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1.
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$125,000,000 as to any one Location. Additional capacity up to a total of $150,000,000 may be considered on a facultative basis; and
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2.
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$187,500,000 as to any Campus. “Campus” means any one or more buildings or structures, serving as the place of employment for the lives covered under a group Policy, that do not share a common ventilation system and are at least 1,000 feet from the nearest building or structure not making up part of the Campus.
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C.
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The Reinsurer shall pay to the Company the Reinsurer’s surplus share proportion of indemnity loss under the Policies, Loss Adjustment Expense and Extra Contractual Obligations covered under this Contract.
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SPECIAL CONDITIONS
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A.
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Waiver of Premium claimants shall be covered, regardless of their date of disability, provided that the date of death occurs during the term of this Contract. Reinsurance premium will be based on the sum of 100% of the face amount of coverage, plus other life insurance coverages, in excess of the $1,500,000 attachment level for current and future disabled lives covered by this Contract.
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B.
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Survivor Income Benefits will be covered under this Contract on a lump sum basis. Reinsurance premium will be based on the sum of the amount by which the Present Value Benefit of the Survivor Income Benefit plus other life insurance coverage exceeds the $1,500,000 attachment level. In the event of a claim, the Reinsurer will pay the Company a lump sum payment equal to its share of the present value of the Survivor Income Benefit plus other life insurance benefits. The present value for claims will be that used to determine reinsurance premium. The Company will endeavor to remit reinsurance premiums so that the present value for claims will be equal to that used for reserves (based on Generally Accepted Accounting Principles) as determined by the Company.
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C.
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Policies with total reinsurance volume in excess of $50,000,000 will be covered if they meet all other underwriting requirements and notification to the Lead Reinsurer will satisfy notice with respect to the $125,000,000 limit per Event.
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COMMENCEMENT AND TERMINATION
This Contract shall take effect at 12:01 a.m., Local Standard Time, January 1, 2013, for losses occurring during the term of this Contract, and shall remain in force for an indefinite period but may be terminated at 12:01 a.m., Local Standard Time, January 1, 2015, or any subsequent January 1st, by either party giving to the other 90 days’ prior written notice.
SPECIAL TERMINATION
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A.
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The Company may terminate a Subscribing Reinsurer’s percentage share in this Contract at any time by giving written notice to the Subscribing Reinsurer in the event of any of the following circumstances:
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1.
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The Subscribing Reinsurer ceases underwriting operations.
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2.
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A state insurance department or other legal authority orders the Subscribing Reinsurer to cease writing business, or the Subscribing Reinsurer is placed under regulatory supervision.
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3.
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The Subscribing Reinsurer has become insolvent or has been placed into liquidation or receivership (whether voluntary or involuntary), or there have been instituted against it proceedings for the appointment of a receiver, liquidator, rehabilitator, conservator, trustee in bankruptcy, or other agent known by whatever name, to take possession of its assets or control of its operations.
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4.
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The Subscribing Reinsurer’s policyholders’ surplus (or the equivalent under the Subscribing Reinsurer’s accounting system) as reported in such financial statements of the Subscribing Reinsurer as designated by the Company, has been reduced by 20% of the amount thereof at any date during the prior 12-month period (including the period prior to the inception of this Contract).
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5.
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The Subscribing Reinsurer has merged with or has become acquired or controlled by any company, corporation, or individual(s) not controlling the Subscribing Reinsurer’s operations at the inception of this Contract.
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6.
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The Subscribing Reinsurer has retroceded its entire liability under this Contract without the Company’s prior written consent.
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7.
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The Subscribing Reinsurer has been assigned an S&P rating of less than “BBB+” or a ▇▇▇▇▇’▇ rating of less than Baa1 or the Company’s total exposure to the Subscribing
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TReinsurer or to its parent company and its affiliates exceeds the Company’s Enterprise guidelines.
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B.
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Termination shall be effected on a run-off or cut-off basis, at the sole discretion of the Company. The reinsurance premium due the Subscribing Reinsurer hereunder (including any minimum or maximum reinsurance premium) shall be pro rated based on the period of the Subscribing Reinsurer’s participation hereon, and the Subscribing Reinsurer shall immediately return any excess reinsurance premium received.
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TERRITORY
The territorial limits of this Contract shall be identical with those of the Company’s Policies written in the United States of America, its territories and possessions and Puerto Rico, wherever occurring.
EXCLUSIONS
This Contract shall not apply to and specifically excludes:
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1.
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Liability of the Company arising by contract, operation of law, or otherwise, from its participation or membership, whether voluntary or involuntary, in any Insolvency Fund. “Insolvency Fund” includes any guaranty fund, insolvency fund, plan, pool, association, fund or other arrangement, howsoever denominated, established or governed, that provides for any assessment of or payment or assumption by the Company of part or all of any claim, debt, charge, fee, or other obligation of an insurer, or its successors or assigns, that has been declared by any competent authority to be insolvent, or that is otherwise deemed unable to meet any claim, debt, charge, fee or other obligation in whole or in part.
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2.
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Claims under insurance policies issued to professional sports teams which are caused by occupational accidents sustained by insured employees while engaged in travel in connection with their employment.
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3.
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Long Term Disability and/or salary continuance business.
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4.
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Military personnel written on a group basis. Employees on leave of absence due to military service will be covered under this Contract as required by USERRA.
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5.
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Federal Employees Group Life Insurance (FEGLI), Servicemember’s Group Life Insurance (SGLI).
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6.
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Airport ticket or coupon business.
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7.
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Assumed Reinsurance, except business that is retroceded back to the Company.
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8.
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Any form of reimbursement of liability settlements.
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9.
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Sickness benefits of any nature whatsoever.
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10.
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Credit card business, travel card, charge card business, when written as such.
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11.
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Workers Compensation and Occupational Accident business (all forms).
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12.
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The AICPA Account (#14273), the US Airways Account (#41577), and business produced by Group Insurance’s Non-Qualified Benefit (PBF) unit.
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SPECIAL ACCEPTANCE
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A.
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The Company will submit any New Accounts which fall into any of the following categories to the Reinsurer for prior approval:
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1.
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Any Policy which exceeds the automatic reinsurance binding limits shown on the attached Exhibit II.
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2.
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Any of the following industries:
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a.
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Mining, except white collar personnel (SIC 1011-1099, 1200-1241);
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b.
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Sports Teams, except front office personnel (SIC 794-7941, 7997);
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c.
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Airlines, except ground personnel (SIC 45-4581);
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d.
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Oil & Gas exploration, production or refining, except white collar personnel (SIC 13-1389, 29-2999), Gas production (SIC 46-4619, 4932, 4939);
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e.
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Chemical Processing, except white collar personnel (SIC 28, 281-2824, 284-2899, except for 283-2836, Drug Manufacturing).
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3.
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Any Policy where the benefit formula contains no age reduction and there are reinsured lives in excess of age 74.
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4.
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Any Policy where retired lives would be insured for life insurance amounts in excess of $2,000,000.
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5.
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Any Policy without an actively-at-work provision and New Accounts which cover in-force disabled lives, where any current disabled lives would be insured for life insurance amounts in excess of $2,000,000.
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No submission is needed for substantial exceptions to the underwriting rules, up to a 25% deviation in underwriting rules, provided that the maximum automatic binding limits are not exceeded.
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B.
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The Company will submit underwriting information to the Lead Reinsurer for any special acceptance as outlined above. The Lead Reinsurer shall be deemed to have accepted a New Account if it has not responded within two business days after the Lead Reinsurer has received the underwriting information for the New Account. All other Subscribing Reinsurers shall follow the underwriting decisions of the Lead Reinsurer. Any renewal of a special acceptance agreed to for a predecessor contract to this Contract shall automatically be covered hereunder.
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C.
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In the event the Lead Reinsurer declines a Special Acceptance Policy, the Company may insure the Policy, although the Policy would not be subject to the terms of this Contract. In the event that a Special Acceptance Policy is rejected by the Lead Reinsurer and underwritten by the Company, the Company may resubmit the previously declined Policy for reconsideration at the Policy’s next anniversary. If accepted by the Lead Reinsurer, the newly-accepted Special Acceptance Policy shall be subject to the terms and conditions of this Contract.
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PREMIUM
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A.
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The reinsurance premium for each Contract Year shall be calculated by applying the rates shown in the attached Exhibit I to the coverage amounts in excess of $1,500,000 (based on the Company’s National Account Organization census as of the end of the Contract Year), times the number of months in the Contract Year. For Policies where reinsurance exposure exists but actual amounts are not obtainable by the end of the Contract Year, reinsurance premium will be the gross premium for such Policies multiplied by a factor. Said factor will be the ratio of the reinsurance premium on all subject Policies with census whose plan design has benefit levels in excess of $1,500,000 divided by the gross premiums on those same Policies. The final premium calculation will be based on the formula demonstrated on the attached Exhibit III.
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B.
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As premium for the reinsurance provided hereunder during each Contract Year, the Company shall pay the Reinsurer a deposit premium of $8,000,000, to be paid in the amount of $2,000,000 on January 1, April 1, July 1 and October 1 of each Contract Year.
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C.
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Within 60 days following the end of each Contract Year, the Company shall furnish to the Reinsurer a statement of the reinsurance premium for the Contract Year, calculated in
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C.
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accordance with paragraph A above. Should the premium so calculated exceed the deposit premium paid in accordance with paragraph B above, the Company shall promptly pay the Reinsurer the difference. Should the premium so calculated be less than the deposit premium paid in accordance with paragraph B above, the Reinsurer shall promptly pay the Company the difference.
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D.
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The Company shall furnish the Reinsurer with such information as may be required by the Reinsurer for completion of its financial statements.
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PROFIT COMMISSION
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A.
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Within 90 days after 12 months following the end of the Accounting Period, and quarterly thereafter until all claims are settled, the Company shall prepare a profit commission calculation for the Accounting Period, and the Reinsurer shall pay to the Company a profit commission, if any, equal to a percentage of the Paid and Earned Reinsurance Premium for the Accounting Period, within five business days after receipt of the report, in accordance with the following:
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1.
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“Accounting Period” means, for the purposes of this Article, the 2013 Contract Year and the 2014 Contract Year combined.
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2.
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“Paid and Earned Reinsurance Premium” means the final annual reinsurance premiums paid and earned after the Company provides the Reinsurer its annual premium reconciliation calculation per Exhibit III of this Contract.
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3.
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“Incurred Claims” means the sum of:
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a.
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Losses and Loss Adjustment Expense paid by the Reinsurer on losses occurring during the Accounting Period, plus
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b.
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The outstanding case reserves of the Reinsurer on losses occurring during the Accounting Period.
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4.
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“Loss Ratio” means the ratio of Incurred Claims (as of the date of calculation) to Paid and Earned Reinsurance Premium for the Accounting Period.
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B.
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If the Loss Ratio is less than 75% for the Accounting Period, the Company shall be due a profit commission calculated as follows:
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1.
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if the Loss Ratio is less than 75% but not less than 67%, the profit commission for the Accounting Period shall be the Paid and Earned Reinsurance Premium times 50% of the difference in percentage points between 75% and the actual Loss Ratio;
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2.
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if the Loss Ratio is less than 67%, the profit commission for the Accounting Period shall be 4% times the Paid and Earned Reinsurance Premium plus the Paid and Earned Reinsurance Premium times 100% of the difference in percentage points between 67% and the actual Loss Ratio.
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DEFINITIONS
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A.
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“First Surplus Liability” means that portion of the Company’s gross liability on any one person, remaining after application of the Company’s net retention.
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B.
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“Contract Year” means the period from 12:01 a.m., Standard Time, January 1, 2013, to 12:01 a.m., Standard Time, January 1, 2014, and each respective 12-month period thereafter that this Contract continues in force. In the event this Contract is terminated, the final Contract Year shall be the period from the beginning of the then current Contract Year through the effective time and date of termination.
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C.
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“Loss Adjustment Expense” means costs and expenses incurred by the Company in connection with the investigation, appraisal, adjustment, settlement, litigation, defense or appeal of a specific claim or loss, or alleged loss, including but not limited to:
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1.
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court costs;
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2.
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costs of supersedeas and appeal bonds;
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3.
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monitoring counsel expenses;
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4.
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legal expenses and costs incurred in connection with coverage questions and legal actions connected thereto, including but not limited to declaratory judgment actions;
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5.
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post-judgment interest; and
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6.
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pre-judgment interest, unless included as part of an award or judgment.
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“Loss Adjustment Expense” does not include salaries and expenses of the Company’s employees and office and other overhead expenses.
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D.
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For purposes of the Special Acceptance Article, “New Account” means a new client to the Company or an existing client who has modified its plan design.
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E.
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“Policy” means any binder, policy, or contract of insurance or reinsurance issued, accepted or held covered provisionally or otherwise, by or on behalf of the Company.
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EXTRA CONTRACTUAL OBLIGATIONS
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A.
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“Extra Contractual Obligations” are obligations outside of the contractual obligations of the Policy and include but are not limited to punitive damages, bad faith damages, compensatory damages, and other damages or statutory penalties which may arise from willful and/or negligent acts or omissions by the Company.
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B.
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The Company will promptly notify the Reinsurer of its intention to contest, compromise or litigate a claim involving a subject Policy. At the Reinsurer’s request, the Company will provide the Reinsurer an opportunity to review the claim file, including any other relevant information. 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 Policy. If the Reinsurer elects not to participate, it shall pay the Company, within 10 business days of such election, the reinsured amount of the claim. The Reinsurer’s payment of the reinsured amount in accordance with this Article will discharge its obligations in full with respect to the affected claim.
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C.
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The Reinsurer is not liable for Extra Contractual Obligations unless it has concurred in writing with the actions of the Company which ultimately led to the imposition of the Extra Contractual Obligations. In these situations, the Company and the Reinsurer will share in Extra Contractual Obligations, in equitable proportions, but, all factors being equal, the Reinsurer’s assessments would be in proportion to the risk accepted for the reinsured Policy involved. If the Reinsurer has not responded in writing to the Company’s notification of a potential Extra Contractual Obligation claim within 10 business days of receipt of such notification, the Reinsurer shall be deemed to have concurred with the Company’s actions regarding such claim. The Reinsurer will pay its share of any Extra Contractual Obligations arising from claims actions with which it has concurred or has been deemed to have concurred.
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D.
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Any notice or response required under this Article shall be in writing and sent certified or registered mail, return receipt requested, or by overnight courier service.
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E.
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Loss Adjustment Expense in respect of Extra Contractual Obligations shall be covered hereunder in the same manner as other Loss Adjustment Expense.
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F.
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Notwithstanding anything stated herein, this Contract will not apply to any Extra Contractual Obligations incurred by the Company as a result of any negligence, fraud or wrong doing by any employee or officer of the Company or an agent representing the Company.
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G.
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In no event shall coverage be provided to the extent not permitted under law.
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CLAIMS NOTICE
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A.
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The Company will notify the Reinsurer as soon as reasonably possible after the Company receives any type of claim on a subject Policy. Copies of all relevant claims papers will be sent promptly by the Company to the Reinsurer. The settlement made by the Company will be unconditionally binding on the Reinsurer.
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B.
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The Company will provide the Reinsurer with further reports and papers reasonably required by the Reinsurer for its consideration of the claim.
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CLAIMS PAYMENT
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A.
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The Reinsurer will be liable to the Company for the benefits reinsured and, except as provided in the Retention and Limit Article, the reinsurance provided hereunder will not exceed the Company’s contractual liability under the terms of its Policies less the amount retained. The payment of death claims by the Reinsurer will be in one lump sum regardless of the mode of settlement under the Policy. Such a lump sum will be the Reinsurer’s share of the face amount of the 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. Such interest is not considered a claim expense.
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B.
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For claims on Accelerated Benefits riders reinsured under this Contract, the benefit amount payable by the Reinsurer will be calculated by multiplying the total accelerated death benefit rider payout by the ratio of the reinsured amount to the face amount. The Company’s retention and the amount of the reinsurance shall be reduced proportionately as a result of an Accelerated Benefit claims payment.
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C.
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Should any claim be settled 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.
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D.
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The Reinsurer may pay its share of the death benefit if it does not deem it advisable to contest the claim.
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ORIGINAL CONDITIONS
All reinsurance under this Contract shall be subject to the same rates, terms, conditions, waivers and interpretations, and to the same modifications and alterations as the respective Policies of the
Company. However, in no event shall this be construed in any way to provide coverage outside the terms and conditions set forth in this Contract.
NET RETAINED LINES
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A.
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This Contract applies only to that portion of any loss that the Company retains net for its own account (prior to deduction of any reinsurance that inures solely to the benefit of the Company).
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B.
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The amount of the Reinsurer’s liability hereunder in respect of any loss or losses shall not be increased by reason of the inability of the Company to collect from any other reinsurer(s), whether specific or general, any amounts that may have become due from such reinsurer(s), whether such inability arises from the insolvency of such other reinsurer(s) or otherwise.
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C.
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This Contract is solely between the Company and the Reinsurer, and in no instance shall any insured, claimant or other third party have any rights under this Contract except as may be expressly provided otherwise herein.
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CURRENCY
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A.
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Where the word “Dollars” and/or the sign “$” appear in this Contract, they shall mean United States Dollars.
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B.
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For purposes of this Contract, where the Company receives premiums or pays losses in currencies other than United States Dollars, such premiums or losses shall be converted into United States Dollars at the actual rates of exchange at which these premiums or losses are entered in the Company’s books.
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COMPLIANCE
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A.
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The Company represents that to the best of its knowledge and belief it is, and shall use its best efforts to continue to be, in substantial compliance in all material respects with all laws, regulations, and judicial and administrative orders applicable to the business reinsured under this Contract (collectively, the “Law”). This includes the maintenance of an effective anti-money laundering policy, to the extent the Company is required to have such a policy in place. Neither the Company nor the Reinsurer shall be required to take any action under this Contract that would result in it being in violation of the Law, which for
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purposes of the Reinsurer shall include requirements enforced by the U.S. Treasury Department Office of Foreign Asset Control. The Company and the Reinsurer acknowledge and agree that a claim under this Contract is not payable if payment would cause the Reinsurer to be in violation of the Law. Should either party discover a reinsurance payment has been made in violation of the Law, it shall notify the other party and the parties shall cooperate in order to take all necessary corrective actions. The Company will return the reinsurance payment to the Reinsurer, to the extent, and at such time, as permitted by Law.
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B.
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The Company represents that, to the best of its knowledge and belief, it has secured all necessary federal and state licenses and approvals, and it is operating in compliance with federal and state insurance laws and regulations.
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C.
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The parties intend that the Company will receive full statutory reserve credit for the subject Policies with all regulatory authorities having jurisdiction over the Company’s reserves. In the event the Reinsurer is not licensed or accredited by any such regulatory authority, then the Reinsurer agrees to ensure that this is accomplished.
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TAXES
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A.
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In consideration of the terms under which this Contract is issued, the Company undertakes not to claim any deduction of the premium hereon when making Canadian tax returns or when making tax returns, other than Income or Profits Tax returns, to any state or territory of the United States of America or to the District of Columbia.
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B.
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1.
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Each Subscribing Reinsurer has agreed to allow, for the purpose of paying the Federal Excise Tax, 1% of the premium payable hereon to the extent such premium is subject to Federal Excise Tax.
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2.
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In the event of any return of premium becoming due hereunder, the Subscribing Reinsurer shall deduct 1% from the amount of the return, and the Company or its agent, in their sole discretion, should take reasonable steps to recover the Tax from the U.S. Government.
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DAC TAX
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A.
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In General.
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1.
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The Company and the Reinsurer agree to the DAC Tax Election pursuant to Section 1.848-2(g)(8) of the Income Tax Regulations effective December 29, 1992, under Section 848 of the Internal Revenue code of 1986, as amended.
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2.
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The terms used in the DAC Tax Election shall follow the definitions provided in Regulation Section 1.848-2, effective December 29, 1992.
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3.
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Both parties agree to make the election contemplated by the DAC Tax Election by timely attaching to is U.S. tax returns the schedule completed by Regulation Section 1.848-2(g)(8)(ii). This election shall be effective for all taxable years for which this Contract remains in effect.
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B.
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Net Positive Consideration. The party with the net positive consideration for this Contract for each taxable year will capitalize specified policy acquisition expenses with respect to the Contract without regard to the general deductions limitation of Regulation Section 848(c)(1).
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C.
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Information Exchange. The Company and the Reinsurer agree to exchange information pertaining to the amount of net consideration under this Contract each year to ensure consistency, or as otherwise required by the Internal Revenue Service.
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D.
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Calculations. The Company will submit a schedule to the Reinsurer by May 1 of each year with its calculation of the net consideration for the preceding calendar year. This schedule of calculations will be accompanied by a statement signed by an officer of the Company stating that the Company will report such net consideration in its tax return for the preceding calendar year. The Reinsurer may contest such calculation by providing an alternative calculation to the Company in writing within 30 days of the Reinsurer’s receipt of the Company’s calculation. If the Reinsurer does not so notify the Company within the required timeframe, the Reinsurer shall be treated as having agreed with the Company’s calculation.
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E.
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Contest. If the Reinsurer contests the Company’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 Company and the Reinsurer reach an agreement on an amount of net consideration, each party will report the agreed upon amount in its tax return for the previous calendar year.
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F.
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The Company and the Reinsurer represent and warrant that they are subject to U.S. taxation under either the provisions of subchapter L of Chapter 1 or the provisions of subpart F of Part III of Subchapter N of Chapter 1 of the Internal Revenue Code of 1986, as amended.
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ACCESS TO RECORDS
The Reinsurer or its duly authorized representatives shall have the right to visit the offices of the Company to inspect, examine, audit, and verify any of the Policy, accounting or claim files (“Records”) relating to business reinsured under this Contract during regular business hours after giving five working days’ prior notice. This right shall be exercisable during the term of this
Contract and up to one hundred eighty (180) days after the expiration of this Contract. Notwithstanding the above, the Reinsurer shall not have any right of access to the Records of the Company if it is not current in all undisputed payments due the Company.
CONFIDENTIALITY
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A.
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Both the Company and the Reinsurer will hold confidential and not disclose or make competitive use of any shared Proprietary Information, as defined below, unless:
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1.
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The information becomes publicly available other than through unauthorized disclosure by the party seeking to disclose or use such information;
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2.
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The information is independently developed by the recipient;
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3.
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The disclosure is required by the Reinsurer for retrocession purposes;
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4.
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The disclosure is required by external auditors; or
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5.
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The disclosure is mandated by law.
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“Proprietary Information” includes, but is not limited to, underwriting manuals and guidelines, applications, contract forms, and premium rates and allowances of the Reinsurer and the Company.
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B.
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In addition, the Reinsurer and its representatives and service providers will protect the confidentiality of Non-Public Personal Information, as defined below, by:
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1.
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Holding all Non-Public Personal Information transmitted to them by or on behalf of the Company in strict confidence;
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2.
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Maintaining appropriate measures that are designed to protect the security, integrity and confidentiality of Non-Public Personal Information;
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3.
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Using Non-Public Personal Information only in the ordinary course of business to carry out Reinsurer’s obligations under this Contract; and
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4.
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Disclosing Non-Public Personal Information to third parties only as necessary to perform services under the Contract, for purposes of retrocession, or as may be required or permitted by law.
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“Non-Public Personal Information” is personally identifiable medical, financial and other personal information about proposed, current and former applicants, policy owners, contract holders, insureds, annuitants, claimants and beneficiaries of subject Policies, and
their representatives, that is not publicly available. “Non-Public Personal Information” does not include de-identified personal data.
The Company will use its best efforts to obtain, if required by any law, appropriate consent to the collection, use and disclosure of Non-Public Personal Information, from each insured to enable the parties to fully exercise their rights and perform their obligations under this Contract.
ERRORS AND OMISSIONS
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A.
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Any unintentional or accidental failure to comply with the terms of this Contract 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 Contract. 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.
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B.
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This provision will apply only to oversights, misunderstandings or clerical errors relating to the administration of reinsurance covered by this Contract and not to the administration of the insurance provided by the Company to its insureds.
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C.
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Notwithstanding the above, the Reinsurer will not provide reinsurance for Policies that do not satisfy the terms of this Contract.
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INSOLVENCY
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A.
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If more than one reinsured company is referenced within the definition of “Company” in the Preamble to this Contract, this Article will apply severally to each such company. Further, this Article and the laws of the domiciliary state will apply in the event of the insolvency of any company intended to be covered hereunder. In the event of a conflict between any provision of this Article and the laws of the domiciliary state of any company intended to be covered hereunder, that domiciliary state’s laws will prevail.
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B.
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In the event of the insolvency of the Company, this reinsurance (or the portion of any risk or obligation assumed by the Reinsurer, if required by applicable law) shall be payable directly to the Company, or to its liquidator, receiver, conservator or statutory successor, either: (1) on the basis of the liability of the Company, or (2) on the basis of claims filed and allowed in the liquidation proceeding, whichever may be required by applicable statute, without diminution because of the insolvency of the Company or because the liquidator, receiver, conservator
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or statutory successor of the Company has failed to pay all or a portion of any claim. It is agreed, however, that the liquidator, receiver, conservator or statutory successor of the Company shall give written notice to the Reinsurer of the pendency of a claim against the Company indicating the Policy or bond reinsured, which claim would involve a possible liability on the part of the Reinsurer within a reasonable time after such claim is filed in the conservation or liquidation proceeding or in the receivership, and that during the pendency of such claim, the Reinsurer may investigate such claim and interpose, at its own expense, in the proceeding where such claim is to be adjudicated any defense or defenses that it may deem available to the Company or its liquidator, receiver, conservator or statutory successor. The expense thus incurred by the Reinsurer shall be chargeable, subject to the approval of the court, against the Company as part of the expense of conservation or liquidation to the extent of a pro rata share of the benefit that may accrue to the Company solely as a result of the defense undertaken by the Reinsurer.
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C.
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Where two or more reinsurers are involved in the same claim and a majority in interest elect to interpose defense to such claim, the expense shall be apportioned in accordance with the terms of this reinsurance Contract as though such expense had been incurred by the Company.
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D.
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As to all reinsurance made, ceded, renewed or otherwise becoming effective under this Contract, the reinsurance shall be payable as set forth above by the Reinsurer to the Company or to its liquidator, receiver, conservator or statutory successor, (except as provided by Section 4118(a)(1)(A) of the New York Insurance Law, provided the conditions of 1114(c) of such law have been met, if New York law applies).
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ARBITRATION
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A.
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Any dispute arising out of the interpretation, performance or breach of this Contract, including the formation or validity thereof, shall be submitted for decision to a panel of three arbitrators. Notice requesting arbitration shall be in writing and sent certified or registered mail, return receipt requested, or by overnight courier service.
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B.
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One arbitrator shall be chosen by each party and the two arbitrators shall then choose an impartial third arbitrator who shall preside at the hearing. If either party fails to appoint its arbitrator within 30 days after being requested to do so by the other party, the latter, after 10 days’ prior notice by certified or registered mail, or by overnight courier service, of its intention to do so, may appoint the second arbitrator.
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C.
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If the two arbitrators do not agree on a third arbitrator within 60 days of their appointment, the third arbitrator shall be chosen in accordance with the procedures for selecting the third arbitrator in force on the date the arbitration is demanded, established by the ▇▇▇▇ Reinsurance and Insurance Arbitration Society – U.S. (▇▇▇▇▇). The arbitrators shall be persons knowledgeable about insurance and reinsurance who have no personal or financial interest in the result of the arbitration. If a member of the panel dies, becomes disabled or
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is otherwise unwilling or unable to serve, a substitute shall be selected in the same manner as the departing member was chosen and the arbitration shall continue.
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D.
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Within 30 days after all arbitrators have been appointed, the panel shall meet and determine timely periods for briefs, discovery procedures and schedules of hearings.
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E.
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The panel shall be relieved of all judicial formality and shall not be bound by the strict rules of procedure and evidence. The arbitration shall take place in Newark, New Jersey, or at such other place as the parties shall agree. The decision of any two arbitrators shall be in writing and shall be final and binding. The panel is empowered to grant interim relief as it may deem appropriate.
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F.
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The panel shall interpret this Contract as an honorable engagement rather than as merely a legal obligation and shall make its decision considering the custom and practice of the applicable insurance and reinsurance business as promptly as possible after the hearings. Notwithstanding anything to the contrary in this Contract, the arbitrators may, at their discretion, request and consider underwriting and placement information provided by the Company to the Reinsurer, as well as any correspondence exchanged by the parties that is related to this Contract. Judgment upon an award may be entered in any court having jurisdiction thereof.
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G.
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Each party shall bear the expense of its own arbitrator and shall jointly and equally bear with the other party the cost of the third arbitrator. The remaining costs of the arbitration shall be allocated by the panel. The panel may, at its discretion, award such further costs and expenses as it considers appropriate, including but not limited to attorneys’ fees, to the extent permitted by law.
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SERVICE OF SUIT
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A.
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This Article applies only to those Subscribing Reinsurers not domiciled in the United States of America, and/or not authorized in any state, territory and/or district of the United States of America where authorization is required by insurance regulatory authorities.
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B.
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This Article shall not be read to conflict with or override the obligations of the parties to arbitrate their disputes as provided for in the Arbitration Article. This Article is intended as an aid to compelling arbitration or enforcing such arbitration or arbitral award, not as an alternative to the Arbitration Article for resolving disputes arising out of this Contract.
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C.
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In the event of the failure of the Reinsurer to perform its obligations hereunder, the Reinsurer, at the request of the Company, shall submit to the jurisdiction of a court of competent jurisdiction within the United States. Nothing in this Article constitutes or should be understood to constitute a waiver of the Reinsurer’s rights to commence an action in any court of competent jurisdiction in the United States, to remove an action to a
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United States District Court, or to seek a transfer of a case to another court as permitted by the laws of the United States or of any state in the United States. The Reinsurer, once the appropriate court is selected, whether such court is the one originally chosen by the Company and accepted by the Reinsurer or is determined by removal, transfer, or otherwise, as provided for above, shall comply with all requirements necessary to give said court jurisdiction and, in any suit instituted against the Reinsurer upon this Contract, shall abide by the final decision of such court or of any appellate court in the event of an appeal.
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D.
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Service of process in such suit may be made upon Messrs. Mendes and Mount, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, or another party specifically designated in the applicable Interest and Liabilities Agreement attached hereto. The above-named are authorized and directed to accept service of process on behalf of the Reinsurer in any such suit.
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E.
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Further, pursuant to any statute of any state, territory or district of the United States that makes provision therefor, the Reinsurer hereby designates the Superintendent, Commissioner or Director of Insurance, or other officer specified for that purpose in the statute, or his successor or successors in office, as its true and lawful attorney upon whom may be served any lawful process in any action, suit or proceeding instituted by or on behalf of the Company or any beneficiary hereunder arising out of this Contract, and hereby designates the above-named as the person to whom the said officer is authorized to mail such process or a true copy thereof.
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GOVERNING LAW
This Agreement shall be governed as to performance, administration and interpretation by the laws of the State of New Jersey, exclusive of the rules with respect to conflicts of law, and except as to rules with respect to credit for reinsurance in which case the applicable rules of all states shall apply.
ENTIRE AGREEMENT
This Contract, including any schedules, attachments and/or exhibits hereto, contains the entire agreement between the parties with respect to its subject matter. No representations, promises, understandings or agreements, oral or otherwise, between the parties not contained in this Contract or attached to it shall be of any force or effect. Any additions or amendments to this Contract shall be of no force or effect unless in writing and signed by the parties.
SEVERABILITY
If any provision of this Contract shall be rendered illegal or unenforceable by the laws, regulations or public policy of any state, such provision shall be considered void in such state, but this shall not affect the validity or enforceability of any other provision of this Contract or the enforceability of such provision in any other jurisdiction.
TRADE AND ECONOMIC SANCTIONS
Wherever potential coverage provided by this Contract would be in violation of any applicable economic or trade sanctions, any such coverage will conform to applicable law.
INTERMEDIARY
▇▇▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC, is hereby recognized as the Intermediary negotiating this Contract for all business hereunder. All communications (including notices, statements, premiums, return premiums, commissions, taxes, losses, Loss Adjustment Expense, salvages, and loss settlements) relating thereto shall be transmitted to the Company or the Reinsurer through ▇▇▇ ▇▇▇▇▇▇▇▇▇ & Company, LLC, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Payments by the Company to the Intermediary shall be deemed payment to the Reinsurer. Payments by the Reinsurer to the Intermediary shall be deemed payment to the Company only to the extent that such payments are actually received by the Company.
MODE OF EXECUTION
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A.
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This Contract may be executed by:
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1.
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an original written ink signature of paper documents;
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2.
|
an exchange of facsimile copies showing the original written ink signature of paper documents;
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3.
|
electronic signature technology employing computer software and a digital signature or digitizer pen pad to capture a person’s handwritten signature in such a manner that the signature is unique to the person signing, is under the sole control of the person
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signing, is capable of verification to authenticate the signature and is linked to the document signed in such a manner that if the data is changed, such signature is invalidated.
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B.
|
The use of any one or a combination of these methods of execution shall constitute a legally binding and valid signing of this Contract. This Contract may be executed in one or more counterparts, each of which, when duly executed, shall be deemed an original.
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IN WITNESS WHEREOF, the Company has caused this Contract to be executed by its duly authorized representative(s) this 22nd day of _January_, in the year of _2013_______.
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
including any and/or all companies that are or may hereafter become affiliated therewith
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ VP & Actuary
LIFE SURPLUS SHARE REINSURANCE CONTRACT
[REDACTED]
[REDACTED]
Combined table applies when in force plan is written on a combined basis
[REDACTED]
*For the purposes of grandfathering existing employees, the Company will include existing employees if their grandfathered amounts are at or below the combined maximum Term Life limits shown above.
[REDACTED]
INTERESTS AND LIABILITIES AGREEMENT
(the "Agreement")
of
RGA REINSURANCE COM PANY
(the "Subscribing Reinsurer")
as respects the
LIFE SURPLUS SHARE REINSURANCE CONTRACT
Effective: January 1, 2013
(the "Contract")
issued to and executed by
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
Newark, New Jersey
including any and/or all companies that are or may hereafter become affiliated therewith
(collectively, the "Company")
[REDACTED]
The share of the Subscribing Reinsurer in the interests and liabilities of the Reinsurer in respect of the Contract shall be separate and apart from the shares of other subscribing reinsurers, if any, on the Contract. The interests and liabilities of the Subscribing Reinsurer shall not be joint with those of such other subscribing reinsurers and in no event shall the Subscribing Reinsurer participate in the interests and liabilities of such other subscribing reinsurers.
This Agreement shall become effective at 12:01 a.m., Local Standard Time, January 1, 2013 and shall be subject to the provisions of the Commencement and Termination Article and the Special Termination Article and all other terms and conditions of the Contract.
Premium and loss payments made to ▇▇▇ ▇▇▇▇▇▇▇▇▇ shall be deposited in a Premium and Loss Account in accordance with Section 32.3(a)(1) of Regulation 98 of the New York Insurance Department. The Subscribing Reinsurer consents to withdrawals from said account in accordance with Section 32.3(a)(3) of the Regulation, including interest and Federal Excise Tax.
[REDACTED]
IN WITNESS HEREOF, the Subscribing Reinsurer has caused this Agreement to be executed by its duly authorized representative as follows:
and on this 22 day of January , in the year of 2013 .
RGA RENSURANCE COMPANY
/s/
Market Reference Number:
THE PRUDENTIAL INSURANCE COMPANY OF AMERICA
LIFE SURPLUS SHARE REINSURANCE CONTRACT