SERIAL #: 58
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EXECUTION VERSION
ASSIGNMENT AND NOVATION AGREEMENT
FOR
REINSURANCE AGREEMENT (TREATY ID NUMBER NEC10003154.T01.25890)
THIS ASSIGNMENT AND NOVATION AGREEMENT (this "Agreement") is made on
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January 30, 2017, effective as of 12:00:01 a.m. (New York time) on January 1,
2017 (the "Effective Time"), by and among New England Life Insurance Company, a
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Massachusetts-domiciled insurance company ("NELICO"), Metropolitan Life
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Insurance Company, a New York-domiciled insurance company ("MLIC") and MetLife
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Insurance Company USA, a Delaware-domiciled life insurance company ("MLUS").
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RECITALS
A. NELICO and MLIC are parties to that certain Reinsurance Agreement
(Treaty ID Number NEC10003154.T01.25890), effective as of November 1, 2014 (the
"Reinsurance Agreement"), under which NELICO cedes to MLIC on a combination
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coinsurance/modified coinsurance basis a 100% quota share of NELICO's interests
and liabilities (net of existing ceded reinsurance) with respect to the
variable annuity contracts covered thereunder.
B. the Parties have agreed that: (i) MLIC shall assign, transfer and
convey, by novation, all of its rights, obligations, duties and liabilities
with respect to the Reinsurance Agreement to MLUS, (ii) MLUS shall accept such
assignment, transfer, conveyance and novation and shall succeed to all such
rights, obligations, duties and liabilities of MLIC, as reinsurer, under the
Reinsurance Agreement, (iii) NELICO shall consent to such assignment, transfer,
conveyance and novation, and, (iv) MLIC shall be released and discharged from
all rights, obligations, duties and liabilities of the reinsurer, in each case
effective as of the Effective Time;
D. As between themselves NELICO and MLIC each desires a full and
final settlement, discharge and release of any and all of its respective
rights, liabilities, duties and obligations under the Reinsurance Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and the
mutual covenants and undertakings herein contained, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
I. Effective as of the Effective Time, MLIC hereby irrevocably and
definitively assigns, transfers and conveys to MLUS, and MLUS hereby accepts
and assumes from MLIC, all of MLIC's rights, obligations, duties and
liabilities under the Reinsurance Agreement.
II. Each of the parties hereto acknowledges and agrees that the assignment,
transfer and conveyance of the reinsurer's interests under the Reinsurance
Agreement, as set forth in Section I above, from MLIC to MLUS constitutes a
novation, subject to the terms and conditions set forth herein and effective as
of the Effective Time, of MLIC's interests as reinsurer under the
Reinsurance Agreement, to the extent set forth therein, with the effect that
MLUS shall replace MLIC as of the Effective Time as reinsurer under the
Reinsurance Agreement.
III. Effective as of the Effective Time, NELICO (i) hereby consents to the
assignment, transfer, assumption and novation of the Reinsurance Agreement
contemplated herein and waives any rights that it may have under the
Reinsurance Agreement that arise or are triggered solely as a result of such
assignment, transfer, assumption and novation, and (ii) acknowledges and agrees
that (a) as of the Effective Time, MLIC shall have no further rights, duties,
obligations or liabilities under the Reinsurance Agreement and (b) as of the
Effective Time, MLUS is assuming all such rights, obligations, duties and
liabilities.
IV. Effective as of the Effective Time, in consideration of MLIC's releases
under Section V below, NELICO releases and forever discharges MLIC and its
affiliates, former affiliates, shareholders, officers, directors, employees and
agents from any and all liability (whether known or unknown, liquidated or
unliquidated, contingent or non-contingent, accrued or unaccrued, and whether
arising before, at or after the Effective Time) under, arising out of,
resulting from or related to the Reinsurance Agreement, from performing its
duties with respect to the Reinsurance Agreement and any of its terms and
conditions, from all of MLIC's duties, obligations and liabilities under,
arising out of, resulting from or related to the Reinsurance Agreement, and
from all claims, demands, actions and causes of actions which NELICO ever had,
now has or may hereafter have against MLIC in any way arising out of, resulting
from or related to the Reinsurance Agreement.
V. Effective as of the Effective Time, in consideration of NELICO's
releases under Section IV above, MLIC releases and forever discharges NELICO
and its affiliates, former affiliates, shareholders, officers, directors,
employees and agents from any and all liability (whether known or unknown,
liquidated or unliquidated, contingent or non-contingent, accrued or unaccrued,
and whether arising before or after the Effective Time) under, arising out of,
resulting from or related to the Reinsurance Agreement, from performing its
duties with respect to the Reinsurance Agreement and any of its terms and
conditions, from all of NELICO's duties, obligations and liabilities under,
arising out of, resulting from or related to the Reinsurance Agreement, and
from all claims, demands, actions and causes of actions which MLIC ever had,
now has or may hereafter have against NELICO in any way arising out of,
resulting from or related to the Reinsurance Agreement.
VI. MLUS hereby acknowledges and agrees to the mutual releases under
Sections IV and V above.
VII. As consideration for the novation under Section I above, the parties
shall pay the following amounts in accordance with this Section VII:
(i) MLUS shall pay MLIC a ceding commission equal to [redacted] (the
"Ceding Commission"); and
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(ii) MLIC shall pay to MLUS an amount equal to the statutory reserves
of MLIC as of the Effective Time with respect to the Reinsurance
Agreement (the "Statutory Reserves").
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On a date within 30 days following the execution date of this Agreement
and to be agreed by MLIC and MLUS (the "Settlement Date"), MLIC shall pay to
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MLUS cash equal to (i) MLIC's estimate of the Statutory Reserves, less (ii) an
estimated Ceding Commission (the "Estimated Net Novation Consideration"). No
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later than 90 days following the Settlement Date, MLIC shall deliver to MLUS a
statement (the "Adjusted Novation Consideration Statement") setting forth
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MLIC's calculation of the actual amounts of the Statutory Reserves and the
Ceding Commission, along with a calculation of any payments required to be made
by the parties to reflect any differences between the amounts of the actual
Statutory Reserves and Ceding Commission and the estimated Statutory Reserves
and Ceding Commission. The net amount of any such adjustment payments shall be
made by the owing party to the receiving party in cash no later than 15 days
following MLUS's receipt of the Adjusted Novation Consideration Statement.
VIII. The obligations arising under this Agreement shall be binding upon and
inure to the benefit of all parties to this Agreement and to their respective
successors and assigns, including, without limitation, any statutory successor
or receiver.
IX. 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, their successors and permitted assigns, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision contained herein.
X. Any term or provision of this Agreement that is determined by a court of
competent jurisdiction to be inoperative or unenforceable for any reason shall,
as to that jurisdiction, be ineffective solely 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 hereto. If any provision of this Agreement is determined by a court of
competent jurisdiction to be so broad as to be unenforceable, that provision
shall be interpreted to be only so broad as is enforceable.
XI. This Agreement is subject to and is to be interpreted in accordance with
the laws of the State of New York without regard to the New York choice of law
rules.
XII. In consideration of the mutual covenants and agreements contained
herein, each party agrees that this Agreement, and each and every provision
hereof, is and shall be enforceable by and between them according to its terms,
and each party does hereby agree that it shall not contest the validity or
enforceability hereof.
XIII. This Agreement may be executed in any number of counterparts, and all of
which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF NELICO, MLIC and MLUS have executed and delivered
this Agreement as of the date first written above.
NEW ENGLAND LIFE INSURANCE COMPANY METROPOLITAN LIFE INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President and Appointed Title: Vice President and Actuary
Actuary
METLIFE INSURANCE COMPANY USA
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President and
Appointed Actuary