ADMINISTRATIVE SERVICES AGREEMENT
between
SECURITY LIFE OF DENVER INSURANCE COMPANY
SECURITY LIFE OF DENVER INTERNATIONAL LIMITED
(referred to collectively as the Companies)
and
SCOTTISH RE (U.S.), INC.
(referred to as the Administrator)
Dated as of December 31, 2004
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..........................................................2
1.01 Definitions..................................................2
ARTICLE II ADMINISTRATIVE SERVICES.............................................3
2.01 Appointment and Acceptance of Appointment....................3
2.02 Administrative Services......................................4
2.03 Legally Required Company Actions.............................6
2.04 Compensation.................................................7
2.05 Reserve Certification........................................7
2.06 Novations....................................................7
ARTICLE III BOOKS AND RECORDS; BANK ACCOUNTS...................................8
3.01 Transfer of Records..........................................8
3.02 Maintenance of Books and Records.............................8
3.03 Quarterly Accountings and Payments...........................8
3.04 Bank Accounts and Lockboxes..................................9
ARTICLE IV CAPACITY..........................................................10
4.01 Capacity....................................................10
ARTICLE V REGULATORY MATTERS..................................................10
5.01 Responsibilities of the Parties.............................10
ARTICLE VI DURATION...........................................................10
6.01 Duration....................................................10
6.02 Termination.................................................10
6.03 Survival....................................................12
ARTICLE VII INSURANCE.........................................................12
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7.01 Liability Insurance.........................................12
7.02 Fidelity Bond...............................................12
7.03 Qualifying Insurers.........................................12
ARTICLE VIII ARBITRATION......................................................12
8.01 Arbitration.................................................12
8.02 Arbitration Procedure.......................................13
ARTICLE IX INDEMNIFICATION....................................................14
9.01 Administrator's Obligation to Indemnify.....................14
9.02 Companies' Obligation to Indemnify..........................14
9.03 Certain Definitions and Procedures..........................14
ARTICLE X MISCELLANEOUS.......................................................15
10.01 Notices.....................................................15
10.02 Entire Agreement............................................16
10.03 Successors and Assigns......................................16
10.04 Captions....................................................16
10.05 Governing Law and Jurisdiction..............................16
10.06 No Third Party Beneficiaries................................17
10.07 Expenses....................................................17
10.08 Counterparts................................................17
10.09 Severability................................................17
10.10 Waiver of Jury Trial; Multiplied and Punitive Damages.......17
10.11 Equitable Rights............................................17
10.12 Confidentiality.............................................18
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ADMINISTRATIVE SERVICES AGREEMENT
THIS ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") is made and
entered into as of December 31, 2004 (the "Closing Date") by and between
Security Life of Denver Insurance Company, a Colorado-domiciled stock life
insurance company ("SLD"), Security Life of Denver International Limited, a
Bermuda-domiciled life insurance company ("SLDI" and, together with SLD, the
"Companies") and Scottish Re (U.S.), Inc., a Delaware-domiciled life insurance
company (the "Administrator").
WHEREAS, the Companies, Scottish Re Group Limited, the Administrator and
Scottish Re Life (Bermuda) Limited, a Bermuda insurance company ("Scottish
Bermuda"), have entered into an Asset Purchase Agreement, dated as of October
17, 2004 (the "Asset Purchase Agreement"), pursuant to which the Administrator
has agreed to reinsure and administer the individual life reinsurance business
of the Companies; and
WHEREAS, in accordance with the terms and conditions of the Asset Purchase
Agreement, SLD and the Administrator have entered into an SLD Coinsurance
Agreement and an SLD Coinsurance / Modified Coinsurance Agreement, and SLDI and
Scottish Bermuda have entered into an SLDI Coinsurance Agreement, an SLDI
Coinsurance / Modified Coinsurance Agreement, and an SLDI Coinsurance Funds
Withheld Agreement, all of even date herewith and referred to herein
collectively as the "Reinsurance Agreements," pursuant to which each Company, as
ceding company, has ceded and transferred the Reinsured Liabilities under the
Covered Insurance Contracts to the Administrator and Scottish Bermuda,
respectively, as reinsurer, and the Administrator and Scottish Bermuda have
reinsured and assumed such Reinsured Liabilities; and
WHEREAS, the parties hereto have agreed, on the terms and conditions set
forth herein, that the Administrator will perform certain administrative
functions on behalf of the Companies with respect to the Administered Business
(as defined below); and
WHEREAS, pursuant to terms of the Transition Services Agreement, the
Companies will provide various of such administrative functions to the
Administrator for the Administered Business for the periods specified therein;
and
NOW, THEREFORE, in consideration of the mutual promises and undertakings
contained herein and in the Asset Purchase Agreement and the Reinsurance
Agreements, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the Companies and the Administrator
agree as follows:
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ARTICLE I
DEFINITIONS
1.01 Definitions. Any capitalized term used but not defined herein shall
have the meaning set forth in the Asset Purchase Agreement. The following terms
shall have the respective meanings set forth below throughout this Agreement:
"Administered Business" means collectively the Business associated with the
Covered Insurance Contracts and the business retroceded from the Administrator
and Scottish Bermuda to SLD under the Industry Risks Retrocession Agreements.
"Administrative Services" has the meaning set forth in Section 2.01.
"Administrator" has the meaning set forth in the preamble.
"Agreement" has the meaning set forth in the preamble.
"Asset Purchase Agreement" has the meaning set forth in the preamble.
"Books and Records" shall have the same meaning as in the Asset Purchase
Agreement, but, under this Agreement, only as applicable to the Administered
Business.
"Closing Date" has the meaning set forth in the preamble.
"Commissions" means all commissions, expenses allowances, benefit credits and
other fees and compensation payable to Persons who marketed or produced the
Administered Business and to ceding companies.
"Confidential Information" shall have the meaning set forth in Section 10.12(a).
"Corporate Services" has the meaning set forth in Section 2.01.
"Covered Insurance Contracts" means all reinsurance agreements reinsured
pursuant to the Reinsurance Agreements.
"IIM" means collectively ING Investment Management LLC, a Delaware limited
liability company and an indirect wholly-owned subsidiary of ING.
"ING Treasury" means the ING Treasury Services, a department of ING North
America Insurance Corporation, a wholly-owned subsidiary of ING.
"Legally Required Company Actions" means any actions each Company is required by
Applicable Law or Governmental Authorities to take without the Administrator
acting on its
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behalf, but only to the extent such actions are exclusively related to the
Administered Business and relate to actions to be taken from and after the
Closing Date.
"Outbound Retrocession Contracts" means all reinsurance agreements under which
each Company has retroceded to reinsurers (whether Affiliates or non-Affiliates)
risks with respect to the Administered Business.
"Premiums" means premiums, considerations, deposits and similar receipts with
respect to the Administered Business.
"Quarterly Accounting" shall mean a quarterly accounting with respect to the
Administered Business prepared in accordance with SAP and delivered by the
Administrator to each Company in accordance with the provisions of Section 3.03
hereof.
"Reinsurance Agreements" has the meaning set forth in the preamble.
"Reinsured Liabilities" means liabilities reinsured pursuant to the Reinsurance
Agreements.
"Scottish Bermuda" has the meaning set forth in the preamble.
"SLD Asset Management Agreement" means the Asset Management Agreement dated as
of the date hereof between SLD and the Administrator.
"Termination Date" shall mean the date on which this Agreement is terminated in
accordance with the terms and conditions of Article VI hereof.
"Unauthorized Access" shall have the meaning set forth in Section 10.12(c).
ARTICLE II
ADMINISTRATIVE SERVICES
2.01 Appointment and Acceptance of Appointment.
(a) Except as expressly provided herein or unless specifically required by
Applicable Law, each Company hereby appoints the Administrator, for the period
specified in Article VI hereof, to provide all services required to administer
the Administered Business, including, without limitation, the administrative
services specified in Section 2.02 (collectively, the "Administrative
Services"), and the Administrator hereby accepts such appointment and agrees to
perform such Administrative Services. For the avoidance of doubt, other than (i)
those Administrative Services expressly provided for in this Agreement and (ii)
any other administrative services to the extent such administrative services are
required exclusively with respect to the Administered Business, Administrative
Services do not include any services
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related to maintaining the corporate identity or existence or regulatory
compliance of the Companies or any successor entities (the "Corporate Services")
(b) The parties shall cooperate fully in the transfer of responsibility for
the performance of the Administrative Services from the Companies to the
Administrator. All costs and expenses relating to such transfer shall be borne
by the Administrator; provided, however, that no internal costs are to be
allocated by either Company to the Administrator except pursuant to Section
2.03(b) of this Agreement and pursuant to the Transition Services Agreement. The
Administrator agrees to send to all counterparties to the Covered Insurance
Contracts a written notice, provided by the Administrator prior to the Closing
and reasonably acceptable to the Companies, advising that the Administrator has
been appointed by the Companies to provide the Administrative Services. The
Administrator shall send such notice, by first class U.S. mail, at its own
expense, promptly after receipt thereof but in no event more than thirty (30)
calendar days after the Closing Date.
(c) In order to assist and to more fully evidence the substitution of the
Administrator in the place and stead of the Companies, each Company shall
deliver to the Administrator a reasonable and appropriate power of attorney to
permit the Administrator to perform its obligations hereunder. The power of
attorney will include, without limitation, the power and authority to execute
the Unexecuted Assumed Reinsurance Contracts and the Unexecuted Retroceded
Reinsurance Contracts. Until such time as such powers of attorney are delivered
to the Administrator, it is acknowledged and agreed that the Administrator is
hereby granted full power and authority to execute the Unexecuted Assumed
Reinsurance Contracts and the Unexecuted Retroceded Reinsurance Contracts.
2.02 Administrative Services. The Administrator agrees to perform all
Administrative Services and is hereby authorized and licensed to do so on behalf
of the Companies where appropriate. The Administrator shall perform the
Administrative Services in a professional and timely manner and in conformance
with applicable industry standards, the terms and conditions of the Administered
Business and in substantial conformance with Applicable Law. The Administrator
acknowledges that the performance of the material Administrative Services
including, but not limited to, all reporting obligations to the Companies
required by this Agreement, in a professional and timely manner is of critical
importance to the Companies. Unless specifically provided for in this Agreement
or the Transition Services Agreement, and except for Legally Required Company
Actions, as between the parties, the Companies shall not be obligated to provide
any services relating to the Administered Business, and the Administrator shall
not be obligated to provide or be obligated for any costs of any Corporate
Services. The Administrator shall not be liable for any failure to provide any
Administrative Service due to the Companies' failure to deliver any Books and
Records to the Administrator within a reasonable period of time after the
Administrator's request for such Books and Records. The Administrative Services
include, without limitation, the following:
(a) collecting Premiums and other amounts due with respect to the
Administered Business;
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(b) (i) managing the investment assets supporting the Administered
Business in accordance with the investment guidelines contained in
Exhibit U attached to the Asset Purchase Agreement; (ii) monitoring
the activities of the investment subadvisor (if any) under the SLD
Asset Management Agreement, ensuring its compliance with the
investment guidelines attached to the SLD Asset Management Agreement
and replacing such investment subadvisor if necessary provided any
such replacement shall be subject to SLD's consent (which consent
shall not be unreasonably withheld); and (ii) providing IIM and ING
Treasury with the information described on Schedule A (as may be
amended from time to time) to permit IIM and ING Treasury to perform
the services identified on Schedule A;
(c) paying and administering claims under the Reinsurance Agreements
(including, without limitation, any disputes or litigation with
respect thereto or the payment of Commissions due thereunder),
provided, that the Companies shall cooperate with the Administrator by
making available any information necessary to respond to any such
dispute or litigation on a timely basis;
(d) providing to the Companies all information with respect to the
Administered Business required in order for the Companies to timely
make any required Tax filing;
(e) except with respect to reports and data identified in Schedule A as
being prepared by IIM, preparing all accounting and actuarial
information (including GAAP information) related to the Administered
Business that is necessary for the Companies to timely meet accounting
or Tax requirements, including but not limited to preparation of
quarterly and annual financial statement data necessary for inclusion
in the Companies' statutory and GAAP financial statements and delivery
of such data in a form usable by the Companies as more specifically
set forth on Schedule B;
(f) administering all Outbound Retrocession Contracts and Assigned
Contracts including, without limitation, paying all reinsurance
premiums and collecting all reinsurance recoverables due the ceding
company under the Outbound Retrocession Contracts;
(g) subject to the terms and conditions of Section 5.01 hereof, providing
information and reasonable access to personnel with respect to, and
reasonable cooperation with respect to the Companies' efforts to reply
to all regulatory compliance matters to the extent such matters relate
exclusively to the Administered Business (excluding any legal
services);
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(h) providing such subcertifications with respect to the Administered
Business as may be required to enable the Companies to meet their
requirements (or those of their parent companies) under the
Sarbanes-Oxley Act of 2002 or any Applicable Law requiring the making
of similar certifications (excluding any legal services or independent
audit services);
(i) consulting with the Companies and providing necessary cash flow
testing with respect to the Administered Business retroceded on a
modified coinsurance basis by SLD to SLDI and further retroceded to
Scottish Bermuda pursuant to the SLDI Coinsurance / Modified
Coinsurance Agreement;
(j) providing a schedule to the Companies by May 1 of each year of its
calculation of the net consideration under each Reinsurance Agreement
for the preceding taxable year, in order to satisfy such Company's
obligations under Section 6.01(d) of each Reinsurance Agreement;
(k) funding the SLD and SLDI reinsurance disbursement accounts on a daily
basis; and
(l) processing and allocating experience refunds between the Business and
any other business unit of the Companies.
2.03 Legally Required Company Actions.
(a) To the extent the Administrator is made aware of any Legally Required
Company Actions, the Administrator will give each Company notice of such Legally
Required Company Action, including, without limitation, filings with insurance
regulators, other Governmental Authorities and guaranty associations and filings
of Tax returns with taxing authorities, which, in each case, relate to the
Administered Business. Each Company agrees to act in good faith to utilize the
Administrator to the greatest extent practicable to limit the expenses of such
Company that the Administrator is required to reimburse under Section 2.03(b).
Notwithstanding the foregoing, nothing in this Agreement requires the
Administrator to provide legal advice to the Companies. In addition, no action
taken by the Administrator pursuant to this Agreement shall constitute legal
advice.
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(b) The Administrator will, promptly upon either Company's request
therefor, compensate such Company for the performance of any Legally Required
Company Actions; provided, however, that there will be no charge for de minimis
administrative functions such as the execution of documents and similar
ministerial activities; provided further, however, that, to the extent such
Legally Required Company Actions are performed by or on behalf of Affiliates
other than the Companies or relate to any business other than the Administered
Business, the Administrator shall only be required to compensate the Companies
pursuant to this Section 2.03(b) for the pro rata portion of such Legally
Required Company Actions relating to such performance by or on behalf of the
Companies or relating exclusively to the Administered Business. The compensation
and reimbursement referred to in this Section 2.03(b) shall be based on such
Company's fully-allocated costs, including a proportionate share of corporate
overhead, as detailed in invoices to the Administrator.
2.04 Compensation.
(a) The Administrator agrees to perform the Administrative Services with
respect to the Administered Business at its own expense and without any rights
of reimbursement from the Companies, in consideration of the Companies having
entered into the Asset Purchase Agreement, the Reinsurance Agreements and other
Related Agreements and for other good and valuable consideration, the receipt of
which is hereby acknowledged.
(b) In consideration of IIM's and ING Treasury's providing of services to
the Companies under Schedule A, the Administrator will reimburse IIM and ING
Treasury for any fees or costs charged by any custodian for the investment
assets to which such services relate.
2.05 Reserve Certification. (a) The Administrator shall provide SLD
annually no later than January 31st of each year a certification of its
appointed actuary certifying that the Reserves under the Reinsurance Agreements
relating to SLD (including without limitation the so-called "XXX reserves") are
calculated in accordance with SAP consistent with the applicable section 2.3 of
each of the SLD Coinsurance Agreement and SLD Coinsurance / Modified Coinsurance
Agreement.
(b) The Administrator shall also provide SLDI annually no later than
February 20th of each year an actuarial certification by its approved actuary
that the Reserves, the DAC Asset and the Loss Reserve Redundancy calculated
under Section 2.3 of each of the Reinsurance Agreements to which SLDI is a party
are calculated in compliance with the BMA requirements.
(c) The certifications required by this Section 2.05 shall be subject to
any knowledge or other qualifications that the appointed actuary for SLD or
SLDI, as the case may be, is permitted to take in the corresponding
certification such actuary is required to submit to the relevant insurance
regulatory authority.
2.06 Novations. To the extent the Administrator in its sole discretion
elects to novate any of the Covered Insurance Contracts, at the request of the
Administrator, each Company shall
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use commercially reasonable efforts to cooperate with the Administrator to
novate any of the Covered Insurance Contracts to the Administrator. Such
novation shall completely release and extinguish such Company's liabilities
under each such novated Covered Insurance Contract and each such novated Covered
Insurance Contract shall not be deemed a part of the Administered Business
following the effective date of the novation.
ARTICLE III
BOOKS AND RECORDS; BANK ACCOUNTS
3.01 Transfer of Records. Except as provided in the Bill of Sale and
General Assignment, the Transition Services Agreement or the Technology Transfer
and License Agreement, the Companies shall deliver the Books and Records to the
Administrator on the Closing Date. The Books and Records and the books and
records maintained by the Administrator in accordance with the terms of this
Agreement shall be made available to each Company and its representatives in
accordance with the Asset Purchase Agreement.
3.02 Maintenance of Books and Records. The Administrator shall maintain
(including, without limitation, backing up its computer files, and maintaining
facilities and procedures for safekeeping and retaining documents) books and
records of all transactions pertaining to the Administered Business (i) in
accordance with prudent standards of insurance record-keeping, the terms and
conditions of the Administered Business and in substantial compliance with
Applicable Law; and (ii) in a manner no less prudent than the manner in which
such books and records are maintained by the Administrator in its other
business. Upon any termination of this Agreement, the Books and Records and all
books and records maintained at such time in accordance herewith by the
Administrator pertaining to the Administered Business shall be delivered
promptly to the Companies or such other person or entity as the Companies shall
designate in writing; provided, however, that the Administrator may keep copies
of such Books and Records for archival and regulatory purposes.
3.03 Quarterly Accountings and Payments.
(a) Beginning with and after the first calendar quarter following the
calendar quarter during which the Closing Date falls, the Administrator shall
provide each Company with a Quarterly Accounting as of the end of each calendar
quarter, no later than thirty (30) calendar days after the end of such quarter;
provided, however, that the Administrator shall deliver the final Quarterly
Accounting no later than thirty (30) calendar days after the date on which this
Agreement terminates in accordance with Article VI hereof; provided, further,
that in the event that subsequent data or calculations require revision of the
final Quarterly Accounting, the required revision and any appropriate payments
shall be made in cash by the parties five (5) Business Days after they mutually
agree as to the appropriate revision. The Administrator shall provide such
Quarterly Accounting in a format that is mutually acceptable to the Companies
and the Administrator.
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(b) If a Quarterly Accounting reflects a balance due to either Company, the
amount(s) shown as due shall be paid by the Administrator, within five (5)
Business Days of the delivery of the Quarterly Accounting. If (i) a Quarterly
Accounting reflects a balance due to the Administrator from either Company and
(ii) such Company does not object to the Quarterly Accounting within five (5)
Business Days of its delivery, the amount(s) shown as due shall be paid by such
Company to the Administrator within seven (7) Business Days after the date on
which the Quarterly Accounting was delivered. Amounts due from either party
pursuant to this Agreement shall be paid net of amounts due from the other
party.
3.04 Bank Accounts and Lockboxes. (a) During the term of this Agreement,
the Administrator shall ensure that all amounts collected from ceding companies
and retrocessionaires with respect to the Administered Business are deposited in
bank accounts and lockboxes owned by the Companies and not in any accounts or
lockboxes owned by the Administrator.
(b) Provided that a Triggering Event shall not have occurred and be
continuing, SLD shall give the Administrator non-exclusive authority over the
bank accounts and lockboxes of SLD used in the operation of the Administered
Business. Upon the occurrence of any Triggering Event, SLD shall be entitled to
revoke such authority. The Administrator shall, on a daily basis, transfer (i)
amounts deposited in such bank accounts and lock boxes of SLD that are
attributable to the Administered Business to Administrator's bank accounts and
lockboxes, and (ii) amounts deposited in such bank accounts and lock boxes of
SLD that are not attributable to the Administered Business to other bank
accounts and lock boxes of SLD designated by SLD. For the avoidance of doubt,
the Administrator shall not be responsible for any funds withdrawn by SLD from
any bank account and lockbox owned by SLD. In the event SLD inappropriately
withdraws and fails to pay over any such funds withdrawn from any bank account
or lockbox owned by SLD, the Administrator shall be entitled to offset the
amount thereof against any amounts due SLD through the Quarterly Accounting.
(c) Provided that a Triggering Event shall not have occurred and be
continuing, SLDI shall pay over to the Administrator on a daily basis all funds
deposited in any SLDI bank account or lockbox that are attributable to the
Administered Business. If SLDI establishes any bank accounts or lockboxes to be
used exclusively for the Administered Business, SLDI shall give the Administer
non-exclusive authority over such bank accounts and lockboxes, and upon the
occurrence of any Triggering Event, SLDI shall be entitled to revoke such
authority. For the avoidance of doubt, the Administrator shall not be
responsible for any funds withdrawn by SLDI from any bank account and lockbox
owned by SLDI. In the event SLDI inappropriately withdraws and fails to pay over
any such funds withdrawn from any bank account or lockbox owned by SLDI, the
Administrator shall be entitled to offset the amount thereof against any amounts
due SLDI through the Quarterly Accounting.
(d) The Administrator shall be permitted to utilize the Companies' names on
check stock in making disbursements in accordance with this Agreement.
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3.05 Disaster Recovery Plan. The Administrator shall at all times maintain
security and disaster recovery procedures to protect data used by the
Administrator to perform the Administrative Services as well as the
Administrator's networks and systems utilized in connection with the services
provided hereunder, all in accordance with commercially reasonable practices.
ARTICLE IV
CAPACITY
4.01 Capacity. The Administrator shall at all times maintain all necessary
licenses, authorizations, permits and qualifications from Governmental
Authorities under Applicable Laws that the Administrator is required to maintain
in order to perform the Administrative Services in the manner required by this
Agreement.
ARTICLE V
REGULATORY MATTERS
5.01 Responsibilities of the Parties. If the Companies or the Administrator
receives notice of, or otherwise becomes aware of any inquiry, investigation,
examination, audit or proceeding by Governmental Authorities, relating to the
Administered Business, the Companies or the Administrator, as applicable, shall
promptly notify the other party thereof, whereupon the parties shall cooperate
in good faith to resolve such matter in a mutually satisfactory manner and shall
act reasonably in light of the parties' respective interests in the matter at
issue. Notwithstanding the immediately preceding sentence, neither the
Administrator nor the Companies shall be relieved or discharged from any
liability or obligation which it has incurred or assumed in connection with such
matter under the terms of this Agreement or any of the Asset Purchase Agreement,
the Reinsurance Agreements or other Related Agreements.
ARTICLE VI
DURATION
6.01 Duration. This Agreement shall commence on the date of its execution
and, shall continue until it is terminated under Section 6.02.
6.02 Termination.
(a) Subject to the provisions regarding survivability set forth in Section
6.03 hereof, this Agreement shall terminate:
(i) at any time upon the mutual written consent of the parties
hereto, which writing shall state the effective date of
termination, and consistent with
10
Section 6.02(b) hereof, shall set forth in reasonable detail
the procedures for transferring the Administrative Services to
the Companies or the Companies' designee;
(ii) automatically upon the termination of all of the Reinsurance
Agreements in accordance with the terms thereof; or
(iii) at the option of the Companies, upon written notice to the
Administrator, on the occurrence of any of the following events:
(A) Administrator becomes subject to dissolution, liquidation,
conservation, rehabilitation, bankruptcy, statutory
reorganization, receivership, compulsory composition, or
similar proceedings in any jurisdiction, or if creditors of
Administrator take over its management, or if Administrator
otherwise enters into any arrangement with creditors, or
makes an assignment for the benefit of creditors, or if any
significant part of Administrator's undertakings or property
is impounded or confiscated by action of any Governmental
Authority; or
(B) there is a material breach by the Administrator of any term
or condition of this Agreement that is not cured by the
Administrator within thirty (30) days of receipt of written
notice from the Companies of such breach or act.
(b) Following any termination of this Agreement (other than a termination
resulting from the termination of all liabilities of the Companies under all
Insurance Contracts in accordance with their respective terms), the
Administrator shall cooperate fully with the Companies in effecting the prompt
transfer of the Administrative Services and transfer of all books and records
maintained by the Administrator pursuant to Section 3.02 hereof or other
applicable provisions of the Asset Purchase Agreement or Related Agreements (or,
where appropriate, copies thereof) to the Companies or the Companies' designee,
so that the Companies or their designee will be able to perform the services
required under this Agreement without interruption following any such
termination. In addition following any such termination, the Administrator will
cooperate with the Companies in connection with any regulatory or tax audits
relating to any period during which the Administrator was providing services
hereunder.
(c) If this Agreement is terminated in connection with a recapture of the
Covered Insurance Contracts pursuant to the Reinsurance Agreements by the
Companies, the Administrator shall comply with Section 6(c) of the Technology
Transfer and License Agreement.
(d) Following any termination of this Agreement pursuant to Section
6.02(a)(iii), the Administrator shall reimburse the Companies for any
out-of-pocket cost arising as a result of
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such termination, including, without limitation, (i) the cost of transitioning
the Administrative Services to a substitute provider or the Companies, (ii) any
fees paid to any such substitute provider and (iii) any costs incurred by the
Companies with respect to the Administrative Services after termination of this
Agreement.
6.03 Survival. The provisions of Sections 3.02, 6.02(b), 6.02(c), 6.02(d),
Article IX, Sections 10.01, 10.05, 10.07, 10.09, 10.10, 10.11 and 10.12 shall
survive the termination of this Agreement.
ARTICLE VII
INSURANCE
7.01 Liability Insurance. The Administrator shall maintain errors and
omissions liability coverages with limits and retention amounts in commercially
prudent amounts consistent with industry standards, to cover any loss arising as
a result of any real or alleged negligence, errors or omissions on the part of
the Administrator's officers, agents or employees in any aspect of the
performance of services under this Agreement.
7.02 Fidelity Bond. The Administrator shall maintain fidelity bond coverage
in a bond amount and a retention amount that are commercially prudent and
consistent with industry standards to cover any loss due to the misdeeds of the
Administrator's officers, employees or agents in any respect of the performance
of services under this Agreement.
7.03 Qualifying Insurers. The Administrator shall obtain the coverages
specified in Sections 7.01 and 7.02 hereof from insurers having an A.M. Best
Company rating of at least A-, a Standard & Poor's Corporation insurer financial
strength rating of at least BBB+ and/or a Moody's Investors Services, Inc.
claims-paying ability rating of at least Baa1. In the event that the ratings of
an insurer which has issued one or more of the coverages specified in Sections
7.01 and 7.02 are downgraded so that such insurer would no longer qualify to
issue such coverage under the provisions of the preceding sentence, the
Administrator shall promptly obtain replacement coverage from another insurer
that so qualifies.
ARTICLE VIII
ARBITRATION
8.01 Arbitration. (a) After the Closing Date, any dispute between the
parties with respect to the calculation of amounts that are to be calculated,
reported, or that may be audited pursuant to this Agreement (other than disputes
relating to: (i) the SLD Closing Statement and the assets to be transferred to
the Administrator, the SLD Reserve Trust Account and the SLD Security Trust
Account pursuant to Article II of the Asset Purchase Agreement, which shall be
resolved in accordance with the Asset Purchase Agreement; (ii) calculations
relating to DAC
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tax, which shall be resolved in accordance with Article VI of each Reinsurance
Agreement, or (iii) matters relating to whether a Triggering Event has
occurred), shall be decided through negotiation and, if necessary, arbitration
as set forth in Section 8.02.
(b) The parties intend this Section 8.01 to be enforceable in accordance
with the Federal Arbitration Act (9 U.S.C., Section 1) including any amendments
to that Act which are subsequently adopted. In the event that either party
refuses to submit to arbitration as required by Section 8.01(a), the other party
may request the court specified in Section 10.05 to compel arbitration in
accordance with the Federal Arbitration Act.
8.02 Arbitration Procedure. The Companies and the Administrator intend that
any dispute between them arising under this Agreement (excluding those disputes
identified in Section 8.01(a)) be resolved without resort to any litigation.
Accordingly, the Companies and the Administrator agree that they will negotiate
diligently and in good faith to agree on a mutually satisfactory resolution of
any such dispute; provided, however, that if any such dispute cannot be so
resolved by them within sixty (60) calendar days (or such longer period as the
parties may agree) after commencing such negotiations, the Companies and the
Administrator agree that they will submit such dispute to arbitration in the
manner specified in, and such arbitration proceeding will be conducted in
accordance with, the Commercial Arbitration Rules of the American Arbitration
Association.
The arbitration hearing will be before a panel of three disinterested
arbitrators, each of whom must be a present or former officer of a life
insurance or life reinsurance company familiar with the life reinsurance
business, or other professionals with experience in life insurance or
reinsurance, provided that such professionals shall not have performed services
for either party within the previous five (5) years, and provided further that
no arbitrator shall be a former employee of either Company or any of its
Affiliates. The Companies and the Administrator will each appoint one arbitrator
by written notification to the other party within thirty (30) calendar days
after the date of the mailing of the notification initiating the arbitration.
These two arbitrators will then select the third arbitrator within sixty (60)
calendar days after the date of the mailing of the notification initiating
arbitration.
If either the Companies or the Administrator fails to appoint an
arbitrator, or should the two arbitrators be unable to agree upon the choice of
a third arbitrator, the president of the American Arbitration Association will
appoint the necessary arbitrators within thirty (30) calendar days after the
request to do so.
The arbitrators shall base their decision on the terms and conditions of
this Agreement. However, if the terms and conditions of this Agreement do not
explicitly dispose of an issue in dispute between the parties, the arbitrators
may base their decision on the customs and practices of the life insurance and
life reinsurance industry together with an interpretation of the law. The vote
or approval of a majority of the arbitrators will decide any question considered
by the arbitrators. The place of arbitration will be determined by the
arbitrators. Each decision (including without limitation each award) of the
arbitrators will be final and binding on all parties and will be nonappealable,
except that (at the request of either the Companies or the
13
Administrator) any award of the arbitrators may be confirmed (or, if
appropriate, vacated) by a judgment entered by the court specified in Section
10.05. In no event may the arbitrators award punitive or exemplary damages,
except for the liable party's fraud, theft, embezzlement or other intentional
acts or omissions of bad faith. Each party will be responsible for paying (a)
all fees and expenses charged by its respective counsel, accountants, actuaries,
and other representatives in conjunction with such arbitration and (b) one-half
of the fees and expenses charged by each arbitrator.
ARTICLE IX
INDEMNIFICATION
9.01 Administrator's Obligation to Indemnify. The Administrator hereby
agrees to indemnify, defend and hold harmless each Company and its Affiliates
and their respective directors, officers and employees (collectively, the
"Company Indemnified Parties") from and against all Losses asserted against,
imposed upon or incurred by any Company Indemnified Party arising from: (i) any
breach or nonfulfillment by the Administrator of, or any failure by the
Administrator to perform, any of the covenants, terms or conditions of, or any
of its duties or obligations under, this Agreement except to the extent that
such breach, nonfulfillment or failure is caused by the actions of any Company
Indemnified Party; (ii) any third-party claims arising out of the administration
of a Covered Insurance Contract, or (iii) any successful enforcement of this
indemnity. For the avoidance of doubt, the Administrator will not indemnify any
Company Indemnified Party for any Losses arising from any Corporate Services
except to the extent that any such Loss is caused by the actions of any
Administrator Indemnified Parties.
9.02 Companies' Obligation to Indemnify. Each Company hereby agrees to
severally and not jointly indemnify, defend and hold harmless the Administrator
and its Affiliates and their respective directors, officers and employees
(collectively, the "Administrator Indemnified Parties") from and against all
Losses asserted against, imposed upon or incurred by any Administrator
Indemnified Party arising from: (i) any breach or nonfulfillment by such Company
of, or any failure by such Company to perform, any of the covenants, terms or
conditions of, or any of its duties or obligations under, this Agreement except
to the extent that such breach, nonfulfillment or failure is caused by the
actions of any Administrator Indemnified Party; or (ii) any successful
enforcement of this indemnity.
9.03 Certain Definitions and Procedures. In the event either the
Administrator or the Companies shall have a claim for indemnity against the
other party under the terms of this Agreement with respect to a third-party
claim, the parties shall follow the procedures set forth in Section 10.3 of the
Asset Purchase Agreement. The parties hereto shall follow the procedures set
forth in Article VIII hereof with respect to any other claims for indemnity
hereunder.
14
ARTICLE X
MISCELLANEOUS
10.01 Notices. Any notice, request or other communication to be given by
any party hereunder shall be in writing and shall be delivered personally, sent
by registered or certified mail, postage prepaid, by overnight courier with
written confirmation of delivery. Any such notice shall be deemed given when so
delivered personally, or if mailed, on the date shown on the receipt therefor,
or if sent by overnight courier, on the date shown on the written confirmation
of delivery. Such notices shall be given to the following address:
To Companies: Security Life of Denver Insurance Company
Security Life of Denver International Limited
Attention: President
c/o ING North America Insurance Corporation
5780 Powers Ferry Road NW
Atlanta, GA 30327
With a concurrent
copy to: B. Scott Burton
Corporate General Counsel
ING North America Insurance Corporation
5780 Powers Ferry Road NW
Atlanta, GA 30327
and
David A. Massey, Esq.
Sutherland Asbill & Brennan LLP
1275 Pennsylvania Ave., NW
Washington, DC 20004-2415
15
To Administrator: Scottish Re (U.S.), Inc.
13840 Ballantyne Corporate Place, Suite 500
Charlotte, NC 28277
Attention: General Counsel
With a copy to: Stephen G. Rooney, Esq.
LeBoeuf, Lamb, Greene & MacRae, L.L.P
125 W. 55th Street
New York, NY 10019
10.02 Entire Agreement. This Agreement may not be amended or modified in
any respect whatsoever except by instrument in writing signed by the parties
hereto. This Agreement, the Asset Purchase Agreement, the other Related
Agreements and the Confidentiality Agreement, and other documents delivered
pursuant hereto, constitute the entire agreement among the parties hereto with
respect to the subject matter hereof and supersede all prior negotiations,
discussions, writings and agreements between them with respect thereto.
10.03 Successors and Assigns. The rights and obligations of the parties
under this Agreement shall not be subject to assignment. The terms of this
Agreement shall be binding upon and inure to the benefit of and be enforceable
by and against the successors of the parties hereto. The Administrator may not
subcontract the performance of the Administrator hereunder to any subcontractor
that is not an Affiliate of the Administrator without the Companies' prior
written approval, such approval not to be unreasonably withheld or delayed;
provided however, the Administrator (i) shall remain primarily responsible under
this Agreement for any and all obligations with respect to such subcontracted
administrative services as are undertaken by such subcontractor and (ii) shall
be responsible for compliance by any such subcontractor with the terms and
conditions of this Agreement and for any acts or omissions of such
subcontractor,
10.04 Captions. The captions of this Agreement are for convenience of
reference only and shall not define or limit any of the terms or provisions
hereof.
10.05 Governing Law and Jurisdiction. This Agreement shall be governed by
and construed in accordance with the laws of the State of Colorado applicable to
contracts entered into therein, without reference to principles of choice of law
or conflicts of laws. Each party hereto irrevocably and unconditionally submits
to the exclusive jurisdiction of any State or Federal Court sitting in Colorado,
over any suit, action or proceeding arising out of or relating to this
Agreement. Each party hereto agrees that service of any process, summons, notice
or document by U.S. registered mail addressed to such party in accordance with
Section 10.01 hereof shall be effective service of process for any action, suit
or proceeding brought against such party in such court. Each party hereto
irrevocably and unconditionally waives any
16
objection to the laying of venue of any such suit, action or proceeding brought
in any such court and any claim that any such action, suit or proceeding brought
in any such court has been brought in an inconvenient forum. Each party hereto
agrees that final judgment in any such action, suit or proceeding brought in any
such court shall be conclusive and binding upon such party and may be enforced
in any other courts to whose jurisdiction such party may be subject, by suit
upon such judgment.
10.06 No Third Party Beneficiaries. Except as otherwise expressly set forth
in any provision of this Agreement, nothing in this Agreement is intended or
shall be construed to give any Person, other than the parties hereto, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
10.07 Expenses. Except as otherwise provided herein, the parties hereto
shall each bear their respective expenses incurred in connection with the
negotiation, preparation, execution, and performance of this Agreement and the
Related Agreements and the transactions contemplated hereby and thereby,
including, without limitation, all fees and expenses of Representatives.
10.08 Counterparts. This Agreement may be executed by the parties hereto in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto. Each
counterpart may be delivered by facsimile transmission, which transmission shall
be deemed delivery of an originally executed document.
10.09 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction, so long as the economic
or legal substance of the transactions contemplated hereby is not affected in
any manner materially adverse to any party. If any provision of this Agreement
is so broad as to be unenforceable, that provision shall be interpreted to be
only so broad as is enforceable.
10.10 Waiver of Jury Trial; Multiplied and Punitive Damages. Each of the
parties hereto irrevocably waives, with respect to any first party action filed
by the other party (but not as to any action by one party against the other
seeking indemnification for a third party claim against the party initiating the
action, to the extent that such damages may be recoverable as part of the
indemnification by the indemnified party) (i) any and all right to trial by
jury, and (ii) any right to punitive, incidental, consequential or multiplied
damages, either pursuant to common law or statute, in any legal proceedings
arising out of or related to this Agreement or the transactions contemplated
hereby, except for the liable party's fraud, theft, embezzlement or other
intentional acts or omissions of bad faith.
10.11 Equitable Rights. The Administrator acknowledges and agrees that
money damages would not be a sufficient remedy for any failure of the
Administrator to provide the
17
services required hereunder in compliance with the terms of this Agreement and
that the Companies shall be entitled to seek equitable relief, including,
without limitation, injunction and specific performance, as a remedy for such
non-performance or such breach by the Administrator and that the Administrator
shall not oppose the granting of such equitable relief, unless such
non-performance or breach was caused primarily by the act or omission of the
Companies. Such remedy shall not be deemed to be the exclusive remedy for breach
of this Agreement, but shall be in addition to the other remedies available to a
party under this Agreement.
10.12 Confidentiality.
(a) Confidential Information. Each party hereto shall use at least the same
standard of care in the protection of Confidential Information of the other
party as it uses to protect its own confidential or proprietary information;
provided that such Confidential Information shall be protected in at least a
reasonable manner. For purposes of this Agreement, "Confidential Information"
includes all confidential or proprietary information and documentation of any
party hereto, including the terms of this Agreement, including with respect to
each party, all of its software (including source code and object code),
documentation, data, its customer data, software and confidential information of
third parties as to which such party owes a duty of confidentiality, financial
information, information relating to the other party's planned or existing
computer systems, systems architecture, computer hardware, methods of processing
and operational methods, sales, profits, organizational restructuring, new
business initiatives, proprietary and confidential information that describes
the other party's insurance and financial products (including actuarial
calculations, product designs, and how such products are administered and
managed), proprietary and confidential information that describes the other
party's product strategies or tax interpretations or tax positions or the
treatment of any item, all reports, exhibits, and other documentation prepared
by any of its Affiliates. Each party hereto shall use the Confidential
Information of the other party only in connection with the purposes of this
Agreement and shall make such Confidential Information available only to its
employees, permitted subcontractors or agents having a "need to know" with
respect to such purpose. Each party hereto shall advise its respective
employees, permitted subcontractors and agents with access to any Confidential
Information of such party's obligations under this Agreement. The obligations in
this Section 10.12 will not restrict disclosure by a party pursuant to
Applicable Law, or by order or request of any Government Authority, subject to
Section 10.12(b) hereof. Confidential Information of a party will not be
afforded the protection of this Section if such Confidential Information was (A)
developed by the other party independently as shown by its written business
records regularly kept, (B) rightfully obtained by the other party without
restriction from a third party, (C) publicly available other than through the
fault or negligence of the other party, or (D) rightfully in the possession of
the other party and not subject to any duty of confidentiality as of the date of
this Agreement.
(b) Compulsory Disclosure. If any party is requested or required to
disclose Confidential Information of the other pursuant to any judicial or
administrative process, then such receiving party shall promptly notify the
other party to this Agreement in writing of such request or requirement. The
party whose Confidential Information is requested or required to be
18
disclosed shall either (i) promptly seek protective relief from such disclosure
obligation or (ii) direct the receiving party to comply with such request or
requirement. The party in receipt of Confidential Information of the other party
shall cooperate with efforts of the other party to maintain the confidentiality
of such information or to resist compulsory disclosure thereof, but any costs
incurred by the receiving party shall be reimbursed by the other party, except
for costs of the receiving party's employees. If, after a reasonable opportunity
to seek protective relief, such relief is not obtained by the party whose
Confidential Information is subject to discovery or disclosure, or if such party
fails to obtain such relief, the receiving party may disclose such portion of
such Confidential Information that such party reasonably believes, on the basis
of advice of such party's counsel, such party is legally obligated to disclose.
(c) Unauthorized Acts. Each party hereto shall (i) notify the other party
promptly of any unauthorized possession, use, or knowledge of any Confidential
Information by any person which shall become known to it, any attempt by any
person to gain possession of Confidential Information without authorization or
any attempt to use or acquire knowledge of any Confidential Information without
authorization (collectively, "Unauthorized Access"), (ii) promptly furnish to
the other party full details of the Unauthorized Access and use reasonable
efforts to assist the other party in investigating or preventing the
reoccurrence of any Unauthorized Access, (iii) cooperate with the other party in
any litigation and investigation against third parties deemed necessary by such
party to protect its proprietary rights, and (iv) promptly take all steps
necessary to prevent a reoccurrence of any such Unauthorized Access.
(d) Injunction. Each party hereto agrees that the breach by the other party
of its obligations under this Section would cause significant and irreparable
harm to the aggrieved party, which may be difficult to measure with certainty or
to compensate through money damages. Each party hereto acknowledges that the
aggrieved party shall be entitled, without proof of irreparable harm and without
waiving any other right or remedy available to it, to such injunctive and
equitable relief as may be deemed proper by a court of competent jurisdiction.
19
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed effective December 31, 2004.
SECURITY LIFE OF DENVER
INSURANCE COMPANY
By: /s/ Mark Tullis
---------------------------------------------------------
Name: Mark Tullis
Title: President
SECURITY LIFE OF DENVER
INTERNATIONAL LIMITED
By: /s/ David Pendergrass
---------------------------------------------------------
Name: David Pendergrass
Title: Vice President
SCOTTISH RE (U.S.), INC.
By: /s/ Oscar Scofield
---------------------------------------------------------
Name: Oscar Scofield
Title: CEO/ President
20
Schedule A
Investment Accounting Services for Security Life
Funds Withheld/Modco General Account Assets
With respect to the Security Life of Denver Insurance Company ("Security
Life") general account assets (the "SLD Re Assets") that support Security Life's
funds withheld and modified coinsurance arrangements (the "SLD Portfolios") with
Security Life of Denver International Limited ("SLDI"), Security Life has
arranged for ING Investment Management LLC ("IIM") to provide investment
accounting services and coordinate certain treasury and cash management
functions through Treasury Services at ING North America Insurance Corporation
("ING Treasury"). The following lists the investment accounting services to be
provided by IIM and reports, processes and other administrative functions
required from Scottish Re (U.S.), Inc. ("Scottish Re") or its agents to enable
IIM to provide such services. Also listed are certain ING Treasury processes and
protocols, and Scottish Re's responsibilities related thereto.
I. The SLD Re Assets will be custodied at The Bank of New York ("BONY"). IIM
will download cash transactions directly from BONY electronic feeds and
post securities-related transactions to IIM's electronic tracking and
reporting systems (the "IIM Systems") on a daily basis. A daily cash
reconciliation will be performed to ensure that the cash reported by BONY
has properly posted on the IIM Systems. For instances where the income
projection per the IIM Systems varies from the amount received from BONY
by greater than $1.00, IIM will research the exception and resolve prior
to posting. Any unresolved exceptions will be forwarded to Scottish Re for
final resolution.
II. Trades entered into by Scottish Re, or its designated investment advisor
for the SLD Portfolios (the "Subadviser"), will be reported to IIM and
entered into the IIM Systems by IIM for purposes of financial reporting on
the SLD Re Assets.1 On each trade date for trades placed that day,
Scottish Re or the Subadviser will provide to IIM (a) electronic files
containing transaction data that will be uploaded into the IIM Systems,
(b) electronic files containing the Security Master data for securities
that have not been previously purchased for the SLD Portfolios, (c) for
all MBS/ABS securities transactions, electronic files (e.g., Bloomberg)
containing principal and interest cash flows with respect to each such
transaction to support the monthly effective yield computations required
under U.S. Statutory, U.S. GAAP and International Accounting Standards,
and (d) faxed copies of trade tickets. Verification of the accuracy and
veracity of the data included in the files and trade tickets delivered to
IIM will be the responsibility of Scottish Re and the Subadviser. The
Subadviser will be responsible for the settlement of trades with the
broker and custodian. Settlement will be against cash in the custody
account holding the SLD Re Assets. Movement of cash into or out of the
custody account, including for purposes of trade settlements, shall be at
the direction of ING Treasury and will be subject to the conditions
identified, in part, under Section XI. below.
- --------------------------------
1 Currently Security Life is on "first-in first-out" (by lot) basis for sales
under all bases of accounting, and all of Security Life's assets are
classified as "available for sale". Scottish Re will be notified if Security
Life elects to change this method.
21
III. Trade errors and breaches of the investment guidelines for the SLD
Portfolios (the "Investment Guidelines") will be the responsibility of
Scottish Re and the Subadviser. Scottish Re and the Subadviser will inform
IIM of all errors and Investment Guideline breaches within 24 hours of any
such discovery. This reporting shall be in addition to any other reporting
requirements mandated by Security Life in its investment advisory
agreement with Scottish Re.
IV. IIM will carry out month-end processing as of the last business day of
each month following the practices and protocols utilized for other
portfolios of Security Life. Such practices and protocols include, for
example, (a) month-end updates of accrued interest and amortization of
premium/discount, (b) recalculation of yields prior to each month-end
processing, and (c) on the third business day following each month end,
determination of final pricing of the SLD Re Assets, using the valuation
hierarchy IIM applies to all assets of Security Life, and the closure of
all ledgers for the SLD Portfolios.
V. IIM will post on a daily basis to the ING Americas accounting systems
general ledger for Security Life, the SLD Portfolios' general ledger
entries generated by the IIM Systems. The extract will be for statutory
basis, Dutch GAAP, and U.S. GAAP amounts (IAS will replace Dutch GAAP in
2005).
VI. Each month end, IIM will produce all parts of Schedule D, Schedule DA and
Schedule B on a statutory basis for the SLD Portfolios, to be included as
part of the Security Life legal entity schedules.
VII. IIM will upload NAIC prices and designations for the SLD Re Assets. IIM
will be responsible for filing necessary documentation with the NAIC SVO
for unrated securities.
VIII. Each month/quarter, IIM will provide Scottish Re a report comparing
current month/quarter book yield and income to the prior month/quarter
book yield and income for the SLD Portfolios within a time period mutually
agreed upon by IIM and Scottish Re in good faith following each month end.
By the 8th business day following each month end, IIM will also provide to
Scottish Re a detailed holding list of the SLD Portfolios with content and
format mutually agreed upon by IIM and Scottish Re in a commercially
reasonable manner.
IX. IIM will prepare monthly reconciliations of the due to/due from broker
accounts, custodian par amounts, and custodian cash accounts and provide
them to Scottish Re by the fifth business day following each month end.
X. All holdings in the SLD Portfolios will be subject to the quarterly
impairment review processes and procedures (under all bases of accounting)
utilized by IIM for other portfolios of Security Life. IIM shall consult
with Scottish Re regarding all impairment decisions.
XI. Treasury related processes and protocols
1. Deposits for the Security Life reinsurance business received at the
existing Security Life bank account, if any, will be identified by
ING Treasury and wired to Scottish Re's depository account.
2. Disbursement activity for contract related payments such as retro.
premium and commission
22
reimbursements, retrocession claim recoveries and assumed claim
payments will continue to be fed from the Sage System to the ING
disbursement system. ING Treasury and Scottish Re will
coordinate, and redirect as necessary, the disbursement
processes. It is the responsibility of Scottish Re to fund the
Security Life reinsurance disbursement account on a daily basis.
For the avoidance of doubt, Scottish Re shall pay for any
overdrafts for failure to fund such disbursement account and
shall be responsible for any custodian fees and the disbursement
account bank fees hereunder.
3. ING Treasury will be notified by Scottish Re, or the Subadviser, of
all SLD Re investment transactions settling at The Bank of New York.
Cash shortfalls (due to over purchases or failed trades) will be
funded by ING Treasury access to a Security Life line of credit or
cash held in Security Life's money market account. Scottish Re will
reimburse Security Life within one (1) business day of such use of
the Security Life lines of credit and will pay interest on any
amounts so used equal to the Federal Funds rate, in effect on the
date immediately preceding the overdraft, plus 1.0%. Cash shortfalls
in excess of available Security Life line of credit will be funded
by Scottish Re no later than 5:00pm ET on the day the shortfall
occurs. Excess cash will be retained in the custody account and
swept into a money market account selected by Scottish Re and
reasonably acceptable to ING Treasury.
4. Custody bank fees related to or arising from the SLD Portfolios will
continue to be direct debited to the Bank of New York account and
posted to the Security Life general ledger by IIM.
23