Exhibit 1(a)
EXECUTION VERSION
AMENDED AND RESTATED PRINCIPAL UNDERWRITING AGREEMENT
This Amended and Restated Principal Underwriting Agreement (hereinafter this
"Agreement"), effective as of April 1, 2014 (the "Effective Date"), is made and
entered into by and between Lincoln Benefit Life Company ("LBL"), a life
insurance company organized under the laws of the State of Nebraska, on its own
behalf and on behalf of the variable universal life separate account(s) set
forth on Schedule A (each such account herein referred to as an "Account"), and
Allstate Distributors, LLC ("ADLLC"), a limited liability company organized
under the laws of the state of Delaware. Collectively, LBL and ADLLC are
referenced herein as the "Parties" or singularly as the "Party" if so required
by the context. Capitalized terms used herein without definition shall have the
meanings given to them in the Stock Purchase Agreement (as defined below).
WHEREAS, ADLLC has acted as the principal underwriter for the Variable
Universal Life Policies set forth on Schedule B (together with any new Variable
Universal Life Policies sold in accordance with the terms hereof, the
"Policies");
WHEREAS, certain of the Policies were sold by registered representatives of
Allstate Financial Services, LLC and its predecessors ("AFS") (such Policies
being defined herein as the "Allstate-sold Policies"), and other Policies were
sold by registered representatives of Selling Broker-Dealers (as defined
below), which are unaffiliated with ADLLC and AFS (the "MBA-sold Policies",
which, together with the Allstate-sold Policies, comprise all of the Policies).
(For clarity, the Allstate-sold Policies comprise all of the Policies reinsured
by Allstate Life Insurance Company ("ALIC") under the Amended and Restated
Reinsurance Agreement by and between ALIC and LBL, dated as of April 1, 2014
(the "Reinsurance Agreement"), which is being entered into in connection with
the transactions contemplated by that certain Stock Purchase Agreement by and
among Allstate Life Insurance Company, Resolution Life Holdings, Inc. and,
solely for purposes of Section 5.25 and Article X thereto, Resolution Life
L.P., dated July 17, 2013, as amended (the "Stock Purchase Agreement"));
WHEREAS, the Parties intend to discontinue the sale of new Policies for
which ADLLC will act as principal underwriter effective as of the Effective
Date hereof, excepting (i) new Policies to be sold by registered
representatives of AFS and issued by LBL as provided under that certain
Administrative Services Agreement by and between LBL and ALIC, dated as of the
Effective Date (the "Administrative Services Agreement"), which is being
entered into in connection with the transactions contemplated by the Stock
Purchase Agreement and also governed under a Selling Agreement previously
entered into between LBL and AFS, and (ii) new Policies sold to holders of
MBA-sold Policies as required by Applicable Law or the terms of any policy or
contract issued by LBL (a "Covered Subsequent MBA-sold Policy", and any other
MBA-sold Policy issued by the Company after the Effective Date, a "Non-Covered
Subsequent MBA-sold Policy");
WHEREAS, the Parties desire to amend and restate any and all previous
Principal Underwriting Agreements or arrangements between the Parties with
respect to the Policies, including the Principal Underwriting Agreement dated
November 25, 1998, as amended (the "Principal Underwriting Agreement");
WHEREAS, LBL confirms its grant to ADLLC of the right to be and ADLLC agrees
to serve as Principal Underwriter for the Policies during the term of this
Agreement;
NOW THEREFORE, in consideration of the mutual promises and covenants
exchanged by the Parties in this Agreement, the Parties hereby amend and
restate the Principal Underwriting Agreement as follows:
ARTICLE I.
ADLLC DUTIES AND OBLIGATIONS
Section 1.01. ADLLC shall serve as principal underwriter and distributor for
the Policies, other than the Non-Covered Subsequent MBA-sold Policies. ADLLC
represents and warrants that it is a broker-dealer registered with the United
States Securities and Exchange Commission ("SEC") under the Securities Exchange
Act of 1934, as amended (the "1934 Act") and a member of the Financial Industry
Regulatory Authority ("FINRA").
Section 1.02. ADLLC shall be duly registered or licensed or otherwise
qualified under the insurance and securities laws of the states in which the
Policies are authorized for sale.
Section 1.03. ADLLC proposes to continue to act as principal underwriter on
an agency best efforts basis in the distribution of the Policies other than the
Non-Covered Subsequent MBA-sold Policies. ADLLC shall not, and shall cause AFS
to not permit its registered representatives to, sell new Policies effective as
of the Effective Date hereof, excepting new Policies (i) to be sold by
registered representatives of AFS and issued by LBL as provided under the
Administrative Services Agreement (such newly sold Policies shall be
Allstate-sold Policies hereunder) and (ii) Covered Subsequent MBA-sold
Policies. For clarity, without ADLLC's prior written consent, ADLLC shall not
be obligated to serve as principal underwriter of new Policies sold through the
Selling Broker-Dealers, other than for the Covered Subsequent MBA-sold
Policies. ADLLC shall not be obligated to promote the sale of new Policies by
the Selling Broker-Dealers or to seek to enroll additional broker-dealers to
become Selling Broker-Dealers. ADLLC will use commercially reasonable efforts
on a continuing basis to provide information and related servicing activity to
its registered representatives and to licensed insurance agents and registered
representatives of the Selling Broker-Dealers, as defined herein. For purposes
of this Agreement, "Selling Broker-Dealer" shall mean those broker-dealers,
other than AFS, that (i) as of the Effective Date have a selling agreement with
LBL with respect to any Policy, and (ii) any additional selling broker-dealer
unaffiliated with ADLLC that, after the Effective Date, enters into a selling
agreement with LBL with respect to the Policies in accordance with Section 1.06
of this Agreement, in each case while such selling agreement remains in effect.
Section 1.04. ADLLC shall be responsible for compliance with the
requirements of state broker-dealer regulations and the 1934 Act as each
applies to ADLLC in connection with its duties as underwriter and distributor
of the Policies. ADLLC shall, at all times during the term hereof, remain duly
registered as a broker-dealer under the 1934 Act and a member in good standing
of FINRA. Moreover, ADLLC shall conduct its affairs in accordance with FINRA's
Rules of Fair Practice.
- 2 -
Section 1.05. As a principal underwriter, ADLLC shall permit the sale of the
Policies only by and through persons who are appropriately licensed under the
securities laws and who are appointed in writing by LBL to be authorized
insurance agents (unless such persons are exempt from such licensing and
appointment requirements). As needed to fulfill ADLLC's functions under this
Agreement, ADLLC is hereby specifically authorized to obtain and maintain
licenses for its registered representatives and to, in its sole discretion,
terminate, or refuse to renew the appointment of, registered representatives on
behalf of LBL. ADLLC shall pay all state insurance appointment fees with
respect to its registered representatives. ADLLC shall not appoint a registered
representative unless such registered representative is duly licensed as an
insurance agent in the state(s) in which such person is proposed to engage in
services under this Agreement where such state insurance license is required.
ADLLC shall be responsible for its registered representatives' compliance with
state insurance agent licensing laws in applicable states.
Section 1.06. Subject to agreement with LBL, ADLLC may enter into new
selling agreements with Selling Broker-Dealers relating to the Policies. Any
such broker-dealer shall be a member in good standing of FINRA, registered with
the SEC under the 1934 Act and authorized by Applicable Law to sell variable
life insurance policies. Any such contractual arrangement is expressly made
subject to this Agreement. ADLLC will at all times be responsible to LBL for
supervision of compliance by ADLLC's personnel with federal securities laws
regarding distribution of the Policies. ADLLC shall ensure that each of its
officers, employees, agents or representatives who is required by law or
regulation to be registered with the SEC, FINRA or any applicable state
securities regulatory authority to provide services with respect to the
Policies on behalf of ADLLC will be so registered.
ARTICLE II.
LBL'S DUTIES AND OBLIGATIONS
Section 2.01. LBL validly exists as a stock life insurance company in good
standing under the laws of the State of Nebraska, and has been duly qualified
for the transaction of business and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or conducts any LBL
business.
Section 2.02. LBL represents and agrees that:
(a) All amendments to the registration statements for each of the
Policies identified in Schedule B will be forwarded to ADLLC at the time that
they are filed with the SEC; and
(b) Each Account is a duly organized, validly existing separate account.
Section 2.03. LBL agrees that each registration statement in respect of the
MBA-sold Policies and the Covered Subsequent MBA-sold Policies and any further
amendment or supplements thereto that becomes effective after the Effective
Date, when they become effective, will conform in all material respects to the
requirements of the 1933 Act and the rules and regulations thereunder and will
not contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; provided, however, that this covenant shall not apply to any
statement or omission made in reliance upon and in conformity with information
furnished in writing to LBL by
ADLLC or its Affiliates expressly for use therein.
Section 2.04. LBL shall be responsible for the licensing and appointing of
registered representatives of Selling Broker-Dealers as required by state
insurance laws. For clarity, ADLLC shall not be responsible for licensing and
appointment fees for personnel of the Selling Broker-Dealers.
Section 2.05. ADLLC acknowledges that (a) while the Administrative Services
Agreement is in effect, ALIC will be responsible for the performance on behalf
of LBL of LBL's obligations under this Agreement, to the extent required under
the Administrative Services Agreement, with respect to the Allstate-sold
Policies, and (b) while the Transition Services Agreement is in effect, ALIC
will be responsible for the performance on behalf of LBL of LBL's obligations
under this Agreement, to the extent required under the Transition Services
Agreement, with respect to the MBA-sold Policies and the Covered Subsequent
MBA-sold Policies.
ARTICLE III.
RECORDS
Section 3.01.
(a) ADLLC shall keep, in a manner and form approved by LBL and in accordance
with Rules 17a-3 and 17a-4 under the 1934 Act, accurate records and books of
account as required to be maintained by a registered broker-dealer, acting as
principal underwriter, of all transactions entered into on behalf of LBL with
respect to the Parties' activities under this Agreement ("Transaction
Records"). ADLLC shall make such records of account available for inspection by
the SEC, FINRA or, to the extent required by Applicable Law, any other
Governmental Entity with jurisdiction over the Policies, ADLLC or LBL, and LBL
shall have the right to inspect, make copies of or take possession of
Transactions Records at any time upon reasonable advance notice.
(b) LBL shall keep and maintain systems and records concerning transactions
entered into on behalf of LBL with respect to the Parties' activities
hereunder, and shall provide ADLLC with ongoing access to such systems and
records upon reasonable advance notice as reasonably necessary to enable ADLLC
to perform its obligations as principal underwriter and distributor of the
Policies under this Agreement and comply with its obligations to maintain
Transaction Records in compliance with Rules 17a-3 and 17a-4 under the 1934 Act
and Section 3.01(a) of this Agreement. The systems and records to be maintained
by LBL hereunder include, without limitation, records relating to the Policies
maintained on behalf of ADLLC prior to the effective date of this Agreement. In
addition, LBL shall furnish ADLLC with copies of the records maintained by LBL
hereunder within five (5) business days of ADLLC's request, to the extent
copies of such records are not also in the possession of ADLLC, as required in
order to enable ADLLC to make such records available for inspection by the SEC,
FINRA or, to the extent required by Applicable Law, any other Governmental
Entity with jurisdiction over the Policies, ADLLC or LBL, and ADLLC shall have
the right to inspect, make copies of such records at any time upon reasonable
advance notice.
Section 3.02. Subject to applicable SEC or FINRA restrictions, LBL will send
confirmations of Policy transactions to Policy owners. LBL will make such
confirmations and records of transactions available to ADLLC upon request. LBL
will also maintain Policy owner records on behalf of ADLLC to the extent
permitted by applicable securities law.
Section 3.03. ADLLC and LBL shall keep confidential the records, books of
account and
other information ("Records") concerning the Policy owners, annuitants,
insureds, beneficiaries or any persons who have rights arising out of the
Policy. ADLLC or LBL may disclose the Records and such information only if the
other has authorized disclosure or if the disclosure is required by Applicable
Law. In the event ADLLC or LBL is served with a subpoena, court order or demand
from a regulatory organization which mandates disclosure of the Records or such
information, such Party must notify the other and allow such other Party
sufficient time to authorize disclosure or to intervene in the judicial
proceeding or matter so as to protect the other Party's interests.
Section 3.04. For the purpose of determining the other Party's compliance
with this Agreement, each Party to this Agreement shall have reasonable access
during normal business hours to any Records which are maintained by the other
Party.
Section 3.05. Both LBL and ADLLC agree to keep all information required by
Applicable Laws, to maintain the books, accounts and records as to clearly and
accurately disclose the precise nature and details of the transaction and to
assist one another in the timely preparation of any reports required by
Applicable Law.
Section 3.06. ADLLC and LBL shall furnish to the other any reports and
information which the other may request for the purpose of meeting reporting
and recordkeeping requirements under the laws of Nebraska or any other state or
jurisdiction.
ARTICLE IV.
SALES MATERIALS
Section 4.01. ADLLC will utilize the currently effective prospectus relating
to the Policies in connection with ADLLC's underwriting, marketing and
distribution efforts. As to other types of sales material, ADLLC hereby agrees
and will require Selling Broker-Dealers to agree to use only sales materials,
if any, which have been authorized for use by LBL, which conform to the
requirements of federal and state laws and regulations, and which have been
filed where necessary with the appropriate regulatory authorities including
FINRA.
Section 4.02. ADLLC will not distribute any prospectus, sales literature, if
any, or any other printed matter or material in the underwriting and
distribution of any Policy if, to the knowledge of ADLLC, any of the foregoing
misstates the duties, obligation or liabilities of LBL or ADLLC.
ARTICLE V.
EXPENSE REIMBURSEMENT & COMPENSATION
Section 5.01. Expense Reimbursement. LBL agrees to reimburse ADLLC for
direct expenses incurred by ADLLC on behalf of LBL. Such direct expenses shall
include, but not be limited to, (a) commissions and trail commissions payable
under selling agreements in connection with the Policies among broker-dealers,
LBL and ADLLC, (b) the costs of goods and services purchased from outside
vendors, (c) travel expenses and (d) state and federal regulatory fees incurred
on behalf of LBL. ADLLC shall present a statement after the end of each quarter
with respect to expense reimbursement as provided in this Section 5.01 and the
apportionment of other services rendered and the direct expenses incurred in
connection therewith. Settlements are due and payable quarterly in arrears
within thirty (30) days. For clarity, the Parties acknowledge that: (a) ALIC
has reinsured the Allstate-sold Policies pursuant to the Reinsurance Agreement
and, while the Reinsurance Agreement is in effect, LBL's reimbursement
obligations under this
Section 5.01 with respect to the Allstate-sold Policies are General Account
Liabilities reinsured under the Reinsurance Agreement; and (b) ALIC, as
administrator of the Allstate-sold Policies under the Administrative Services
Agreement, has assumed the administration of such Policies and as such is
responsible for administration of such expense reimbursement payments while
such Agreement is in effect.
Section 5.02. Compensation. ADLLC shall receive compensation in the amount
of 25.0 basis points per premium dollar received by LBL in connection with
additional premium collected after the Effective Date of this Agreement under
MBA-sold Policies, which amount shall be paid by LBL quarterly in arrears
within thirty (30) days following presentment by ADLLC of a statement with
respect to such compensation amount.
ARTICLE VI.
ADDITIONAL TERMS
Section 6.01. ADLLC will ensure that the Policies sold and/or serviced
hereunder by ADLLC or the Selling-Broker-Dealers shall be sold and serviced, in
all material respects, on the terms described in the currently effective
prospectus describing such Policies, to the extent applicable.
Section 6.02. LBL will assure that the Policies are continuously registered
under the Securities Act of 1933 (the "1933 Act") (and under any applicable
state "blue sky" laws) and file for approval under state insurance laws when
required by Applicable Law.
ARTICLE VII.
LEGAL AND REGULATORY ACTIONS
Section 7.01. Each Party agrees to promptly advise the other Party upon
becoming aware of:
(a)the institution of any proceeding, investigation or hearing involving
the offer or sale of the Policies;
(b)any request by the SEC for amendment of the registration statements
or for additional information relating to the Policies;
(c)the issuance by the SEC of any stop order suspending the
effectiveness of the registration statements relating to the Policies
or the initiation of any proceedings for that purpose; and
(d)the happening of any known material event which makes untrue any
statement made in the registration statements relating to the
Policies or which requires the making of a change therein in order to
make any statement made therein not misleading.
Section 7.02. During any legal action or inquiry, each Party will furnish to
the other Party such information with respect to the Policies in such form and
signed by such of its officers as the other Party may reasonably request;
provided that none of the Parties shall be required to provide to the other
Party any information that is subject to privilege, confidentiality obligations
or as otherwise provided by Applicable Law.
Section 7.03. If changes in securities, insurance laws or regulations could
reasonably
be expected to affect the administration of Policies pursuant to this
Agreement, each Party shall notify the other within a reasonable time after it
receives notice of those changes. Such notice shall be in writing except, if
circumstances so require, the notice may be communicated by telephone or
facsimile and confirmed in writing.
Section 7.04. Each Party hereto shall, except to the extent their interests
are adverse, reasonably cooperate in all insurance or securities regulatory
investigations, proceedings and inquiries and in all judicial proceedings
concerning any other Party hereto or any of its parents or affiliates with
respect to the Policies. Each Party hereto shall reasonably cooperate in
investigating and responding to all customer complaints with respect to the
Policies received by another party.
ARTICLE VIII.
TERMINATION
Section 8.01.
(a) Either Party may terminate this Agreement, without penalty, only
with respect to the MBA-sold Policies and Covered Subsequent MBA-sold Policies,
upon 180 days' prior written notice to the other Party effective on or after
the five-year anniversary of the Effective Date.
(b) ADLLC may terminate this Agreement without penalty, with respect to
the MBA-sold Policies and Covered Subsequent MBA-sold Policies upon a change of
control of LBL.
(c) Subject to Section 8.04, this Agreement shall terminate, without
penalty, upon the earliest of the following:
(i) The mutual written consent of the parties;
(ii) Written notice of one Party to the other Party in the event of
bankruptcy or insolvency of the Party to which notice is given;
(iii) The suspension or revocation of any material license or permit
held by a Party by the appropriate governmental agency or authority;
however, such termination shall extend only to the jurisdiction(s) where the
Party is prohibited from doing business; or
(iv) The finding by any court or regulatory body in a formal
proceeding of material wrongdoing by a Party in connection with its duties
under this Agreement.
Section 8.02. This Agreement may also be terminated at any time by LBL with
respect to the MBA-sold Policies and the Covered Subsequent MBA-sold Policies.
Section 8.03. Subject to Section 8.05, if either Party breaches this
Agreement or is in default in the performance of any of its duties and
obligations hereunder (the "Defaulting Party"), the non-defaulting Party may
give written notice thereof to the Defaulting Party, and if such breach or
default is not remedied within sixty (60) days after such written notice is
given, then the non-defaulting Party may terminate this Agreement by giving
thirty (30) days' prior written notice of such termination to the Defaulting
Party.
Section 8.04. The Parties agree to cooperate and give reasonable assistance
to one another in effecting an orderly transition following termination.
Section 8.05. While the Reinsurance Agreement is in effect, (a) this
Agreement may not be terminated with respect to the Allstate-sold Policies
without ADLLC's prior written consent and (b) any termination pursuant to
Sections 8.01 and 8.03 shall be effective only with respect to the MBA-sold
Policies and the Covered Subsequent MBA-sold Policies. If the Reinsurance
Agreement is no longer is in effect, this Agreement may be terminated with
respect to the Allstate-sold Policies on 180 days' prior written notice by one
Party to the other Party, in addition to the termination circumstances set
forth in Section 8.01 and 8.03 hereof.
ARTICLE IX.
INDEMNIFICATION
Section 9.01. Indemnification by ADLLC. ADLLC shall indemnify and hold
harmless LBL, and each person who controls or is associated with it within the
meaning of such term under the federal securities laws, and any officer,
director, employee or agent of the foregoing (collectively, the "LBL
Indemnified Parties"), against any and all Indemnifiable Losses arising out of
or based upon (a) the failure of ADLLC to perform any of its obligations
hereunder, (b) any untrue statement or alleged untrue statement of a material
fact or omission or alleged omission to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading, contained in
any registration statement or prospectus or other product materials relating to
any Policy or any interest offered under any Policy or any amendment thereof,
to the extent such statement was prepared by ADLLC or is furnished in writing
by or on behalf of ADLLC after the date hereof and expressly designated for use
by LBL in the preparation of such registration statement, prospectus or
materials, (c) the inaccuracy of any warranty or representation of ADLLC herein
in any material respect, (d) any claim for compensation by any of its
registered representatives or any of its officers, employees, agents or
representatives, (e) any claim for compensation under any selling agreement
between LBL and AFS or any of its registered representatives or their
respective officers, employees, agents or representatives, (f) any negligence
or willful misconduct or violation of Applicable Law by ADLLC or any of its
associated persons in performing ADLLC's obligations hereunder with respect to
the Policies, and/or (g) any successful enforcement of this indemnity; provided
that, ADLLC shall have no obligation to indemnify any LBL Indemnified Party to
the extent such Indemnifiable Loss results from (i) any act or omission
resulting from the negligence or willful misconduct of LBL after the Effective
Date, or (ii) any violation by LBL of its obligations hereunder. This
indemnification will be in addition to any liability that ADLLC may otherwise
have hereunder at law or equity.
Section 9.02. Indemnification by LBL. LBL shall indemnify and hold harmless
ADLLC and each person who controls or is associated with it within the meaning
of such term under the federal securities laws, and any officer, director,
employee or agent of the foregoing (collectively, the "ADLLC Indemnified
Parties"), against any and all Indemnifiable Losses arising out of or based
upon (a) the failure of LBL to perform any of its obligations hereunder,
(b) the inaccuracy of any warranty or representation of LBL herein in any
material respect, (c)(i) any untrue statement or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading,
contained in any registration statement or prospectus relating to an
Allstate-sold Policy or any interest offered under an Allstate-Sold Policy or
any amendment thereof, based on information
provided in writing by LBL or an Affiliate after the Effective Date expressly
for use by ALIC, as Administrator under the Administrative Services Agreement,
in the preparation of such registration statement or prospectus, and (ii) any
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, contained in any
registration statement or prospectus or other product materials relating to an
MBA-sold Policy or any interest offered under an MBA-sold Policy or any
amendment thereof, except to the extent such statement or omission was made in
reliance upon and in conformity with information furnished in writing to LBL by
ADLLC or its Affiliates after the date hereof expressly for use therein;
(d) any negligence or willful misconduct or violation of Applicable Law by LBL
and/or any of its officers, employees, agents or representatives in performing
its obligations hereunder with respect to the Policies, and/or (e) any
successful enforcement of this indemnity; provided that, (x) LBL shall have no
obligation to indemnify any ADLLC Indemnified Party to the extent such
Indemnifiable Loss results from (i) any act or omission resulting from the
negligence or willful misconduct of ADLLC after the Effective Date, or (ii) any
violation by ADLLC of its obligations hereunder; and (y) LBL shall have no
obligation under this Section 9.02 to indemnify any ADLLC Indemnified Party for
any Indemnifiable Loss to the extent that such Indemnifiable Loss was caused by
ALIC in its performance of services on behalf of LBL under the Administrative
Services Agreement. This indemnification will be in addition to any liability
that LBL may otherwise have hereunder at law or equity.
Section 9.03. Definitions. As used in this Agreement:
"Indemnitee" means any Person entitled to indemnification under this
Agreement;
"Indemnitor" means any Person required to provide indemnification under
this Agreement;
"Indemnifiable Losses" means any and all damages, losses, Liabilities,
obligations, costs and expenses (including reasonable attorneys' fees and
expenses); provided, that any Indemnity Payment (x) shall in no event include
any amounts constituting punitive damages relating to the breach or alleged
breach of this Agreement (except to the extent actually paid to a third party
in connection with a Third Party Claim) and (y) and shall be net of any amounts
recovered by or recoverable by the Indemnitee for the Indemnifiable Losses for
which such Indemnity Payment is made under any insurance policy, reinsurance
agreement, warranty or indemnity or otherwise from any Person other than a
Party hereto, and the Indemnitee shall promptly reimburse the Indemnitor for
any such amount that is received by it from any such other Person with respect
to an Indemnifiable Loss after any indemnification with respect thereto has
actually been paid pursuant to this Agreement;
"Indemnity Payment" means any amount of Indemnifiable Losses required to
be paid pursuant to this Agreement; and
"Third Party Claim" means any claim, action, suit, or proceeding made or
brought by any Person that is not an Indemnitee.
Section 9.04. Applicability of Stock Purchase Agreement. The procedures set
forth in Section 7.5 of the Stock Purchase Agreement shall apply to Losses
indemnified under this Article IX.
Section 9.05. No Duplication. To the extent that an Indemnitee has received
payment in respect of an Indemnifiable Loss pursuant to the provisions of any
other Transaction Agreement, such Indemnitee shall not be entitled to
indemnification for such Indemnifiable Loss under this Agreement to the extent
of such payment.
ARTICLE X.
GENERAL PROVISIONS
Section 10.01. Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be delivered
personally or by overnight courier (providing proof of delivery) to the Parties
at the following addresses (or at such other address for a Party as shall be
specified by like notice):
(a)if to LBL:
Lincoln Benefit Life Company
Suite 300
Columbia Centre I
5600 North River Road
Rosemont, Illinois 60018
Attention: Simon Packer
Phone: (847) 527-6700
Email: simon.packer@resolutionlife.com
with copies (which shall not constitute notice) to:
Debevoise & Plimpton LLP
919 Third Avenue
New York, New York 10022
Attention: Nicholas F. Potter
David Grosgold
Email: nfpotter@debevoise.com
(b)if to ADLLC:
Allstate Distributors LLC
3100 Sanders Road
Northbrook, Illinois 60062-7154
Attention: Maribel Gerstner
Phone: (847) 402-3091
Email: Maribel.Gerstner@allstate.com
and:
Allstate Life Insurance Company
Attn: General Counsel
3100 Sanders Road, Suite J5B
Northbrook, Illinois 60062-7154
with copies (which shall not constitute notice) to:
Allstate Life Insurance Company
3100 Sanders Road
Northbrook, Illinois 60062
Attention: Angela Fontana
Phone: (847) 402-9365
Email: afontana@allstate.com
and:
Willkie Farr & Gallagher LLP
787 Seventh Avenue
New York, New York 10019
Attention: John M. Schwolsky
Alexander M. Dye
Email: jschwolsky@willkie.com
Notice given by personal delivery or overnight courier shall be effective upon
actual receipt.
Section 10.02. Interpretation. When a reference is made in this Agreement to
a Section, Exhibit or Schedule, such reference shall be to a Section of, or an
Exhibit or Schedule to, this Agreement unless otherwise indicated. All
references herein to any agreement, instrument, statute, rule or regulation are
to the agreement, instrument, statute, rule or regulation as amended, modified,
supplemented or replaced from time to time (and, in the case of statutes,
includes any rules and regulations promulgated under said statutes) and to any
section of any statute, rule or regulation including any successor to said
section. Whenever the words "include," "includes" or "including" are used in
this Agreement, they shall be deemed to be followed by the words "without
limitation." Whenever the singular is used herein, the same shall include the
plural, and whenever the plural is used herein, the same shall include the
singular, where appropriate. Whenever the word "Dollars" or the "$" sign appear
in this Agreement, they shall be construed to mean United States Dollars, and
all transactions under this Agreement shall be in United States Dollars. This
Agreement has been fully negotiated by the parties hereto and shall not be
construed by any Governmental Entity against either Party by virtue of the fact
that such Party was the drafting Party.
Section 10.03. Entire Agreement; Third Party Beneficiaries.
(a) This Agreement (including all exhibits and schedules hereto) and the
other Transaction Agreements constitute the entire agreement, and supersede all
prior agreements, understandings, representations and warranties, both written
and oral, among the Parties with respect to the subject matter of this
Agreement.
(b) Nothing herein shall be deemed to limit any obligations or liabilities
of ALIC or any of its Affiliates under the Reinsurance Agreement or the
Administrative Services Agreement or any other Transaction Agreements with
respect to the Allstate-sold Policies. Without limiting the foregoing, nothing
herein shall be deemed to limit ALIC's obligations under the
Administrative Services Agreement to perform obligations of LBL hereunder in
respect of the Allstate-sold Policies.
(c) Except as set forth in Article IX with respect to the ADLLC Indemnified
Parties and the LBL Indemnified Parties, this Agreement is not intended to
confer upon any Person other than the parties hereto and their successors and
permitted assigns any rights or remedies.
Section 10.04. Governing Law. This Agreement and any dispute arising
hereunder shall be governed by, and construed in accordance with, the laws of
the State of New York, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
Section 10.05. Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise (other than by operation of law in a
merger), by either Party without the prior written consent of the other party,
and any such assignment that is not consented to shall be null and void;
provided that, with LBL's prior written consent (not to be unreasonably
withheld, conditioned or delayed), ADLLC may assign this Agreement to an
Affiliate that (a) is a broker-dealer registered with the SEC under the 1934
Act, a member in good standing of FINRA, (b) possesses such other material
licenses and registrations as may be necessary to perform ADLLC's obligations
hereunder, and (iii) agrees to assume all of ADLLC's obligations under this
Agreement. Subject to the preceding sentence, this Agreement will be binding
upon, inure to the benefit of, and be enforceable by, the parties and their
respective successors and assigns.
Section 10.06. Jurisdiction. Each of the Parties hereto hereby irrevocably
and unconditionally submits to the exclusive jurisdiction of any court of the
United States or any state court, which in either case is located in the City
and County of New York (each, a "New York Court") for purposes of enforcing
this Agreement or determining any claim arising from or related to the
transactions contemplated by this Agreement. In any such action, suit or other
proceeding, each of the Parties hereto irrevocably and unconditionally waives
and agrees not to assert by way of motion, as a defense or otherwise any claim
that it is not subject to the jurisdiction of any such New York Court, that
such action, suit or other proceeding is not subject to the jurisdiction of any
such New York Court, that such action, suit or other proceeding is brought in
an inconvenient forum or that the venue of such action, suit or other
proceeding is improper; provided, that nothing set forth in this sentence shall
prohibit any of the Parties hereto from removing any matter from one New York
Court to another New York Court. Each of the Parties hereto also agrees that
any final and unappealable judgment against a Party hereto in connection with
any action, suit or other proceeding will be conclusive and binding on such
Party and that such award or judgment may be enforced in any court of competent
jurisdiction, either within or outside of the United States. A certified or
exemplified copy of such award or judgment will be conclusive evidence of the
fact and amount of such award or judgment. Any process or other paper to be
served in connection with any action or proceeding under this Agreement shall,
if delivered or sent in accordance with Section 10.01, constitute good, proper
and sufficient service thereof.
Section 10.07. Waiver of Jury Trial EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR
ATTORNEY OR ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE
FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
SUCH WAIVER, (III) IT MAKES SUCH WAIVER VOLUNTARILY AND (IV) IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 10.07.
Section 10.08. Severability; Amendment; Modification; Waiver.
(a) Whenever possible, each provision or portion of any provision of this
Agreement will be interpreted in such manner as to be effective and valid under
Applicable Law, but if any provision or portion of any provision of this
Agreement is held to be invalid, illegal or unenforceable in any respect under
any Applicable Law in any jurisdiction, such invalidity, illegality or
unenforceability will not affect any other provision or portion of any
provision in such jurisdiction, and this Agreement will be reformed, construed
and enforced in such jurisdiction as if such invalid, illegal or unenforceable
provision or portion of any provision had never been contained herein.
(b) This Agreement may be amended or a provision hereof waived only by a
written instrument signed by each of ADLLC and LBL.
(c) No delay on the part of any Party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof, nor shall any waiver on
the part of any Party of any right, power or privilege, nor any single or
partial exercise of any such right, power or privilege, preclude any further
exercise thereof or the exercise of any other such right, power or privilege.
Section 10.09. Counterparts. This Agreement may be executed in counterparts,
all of which shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each of the Parties and
delivered to the other Party. Each Party may deliver its signed counterpart of
this Agreement to the other parties by means of electronic mail or any other
electronic medium utilizing image scan technology, and such delivery will have
the same legal effect as hand delivery of an originally executed counterpart.
Section 10.10. Survival. Articles IX and X shall survive the termination of
this Agreement.
IN WITNESS WHEREOF, the undersigned Parties have caused this Agreement to be
duly executed by their respective duly authorized officers, as of the date
first written above.
Lincoln Benefit Life Company
By: -----------------------------
Title Date
Allstate Distributors, LLC
By: -----------------------------
Title Date
By: -----------------------------
Title Date
SCHEDULE A
Lincoln Benefit Life Variable Life Account (1940 Act File No. 811-9154)
SCHEDULE B
POLICIES
Variable Universal Life
Separate Account Contract(s) Form #(s)
---------------- ----------------------- ---------
Lincoln Benefit Life Variable Life Investor Select VUL
Account 40 Act File No. 811-9154 9390
Lincoln Benefit Life Variable Life Consultant VUL VUL
Account 40 Act File No. 811-9154 9800
Lincoln Benefit Life Variable Life Consultant SL VUL
Account 40 Act File No. 811-9154 9900
Lincoln Benefit Life Variable Life Consultant Accumulator VUL
Account 40 Act File No. 811-9154 0220
Lincoln Benefit Life Variable Life Consultant Protector VUL
Account 40 Act File No. 811-9154 0230
Lincoln Benefit Life Variable Life TotalAccumulator VUL
Account 40 Act File No. 811-9154 0750