Common use of FUND COMPLIANCE Clause in Contracts

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject Administrator shall provide the following compliance services in conjunction with the Adviser’s obligations pursuant to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, Investment Advisory Agreement with the Trust and Adviser all applicable laws. A. At the direction of the Trust’s Chief Compliance Officer (“CCO”), create, review, maintain and update as required from time to time (including to reflect any amendments to Rule 38a-1) written policies, procedures, reports, Board presentations, annual reviews and other records comprising the Trust’s Compliance Program. B. At the direction of the Trust’s CCO, conduct, as needed in response to significant compliance events, changes in business arrangements and regulatory developments and, in no event less than annually, a review of the Trust’s Compliance Program which will include a review of the adequacy of the policies and procedures and the effectiveness of their implementation. C. Monitor and periodically test, including on required quarterly testing dates, each represents and warrants that Portfolio’s compliance with the Trust and each Designated Fund thereof will at all times comply with requirements of Section 817(h) of the Code and applicable Treasury Regulation §1.817Regulations. D. At the direction of the Trust’s CCO, assist in the preparation of an annual written report to the Board that, at a minimum, addresses: (i) The CCO’s assessment of the operation of the policies and procedures of the Trust and each investment adviser (including any sub-5advisers), principal underwriter, administrator and transfer agent of the Trust; (ii) Each Material Compliance Matter (as amended from time defined in Rule 38a-1) that occurred since the date of the last report; (iii) The CCO’s assessment of the adequacy of the policies and procedures and the effectiveness of their implementation; and (iv) Any follow-up items, analyses or reports requested by the Board. E. Monitor and periodically test each Fund’s compliance with investment restrictions (e.g., issuer or industry diversification, etc.) listed in the current Prospectus or that otherwise apply to timethe Trust and its Funds. F. Monitor and periodically test, including on required quarterly testing dates, each Fund’s compliance with the requirements of Section 851 of the Code and applicable Treasury Regulations for qualification as a RIC. G. Monitor each investment sub-adviser’s compliance with Board directives and Fund policies and procedures such as “Approved Issuers Listings for Repurchase Agreements”, Rule 17a-7, Rule 17e-1 and Rule 12d-3 procedures. H. Assist with the administration of the Trust’s Code of Ethics and prepare and distribute quarterly requests for “Securities Transaction Reports” to the Trust’s Trustees and Officers and “access persons” under the terms of the Trust’s Code of Ethics and SEC regulations, and any Treasury interpretations thereofreview responses thereto. I. Prepare, relating distribute, and utilize in compliance training sessions, comprehensive compliance materials, including compliance manuals and checklists, subject to the diversification requirements for variable annuity, endowment, or life insurance contracts review and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III comment by the Trust, ’s legal counsel and develop or assist in developing guidelines and procedures to improve overall compliance by the Trust and its various agents. J. Provide compliance support for intermediary agreements that pertain to the Trust, Distributorsuch as shareholder service or similar agreements. K. Subject to the approval of the Board, make available a qualified person to act as the Trust’s Anti-Money Laundering Compliance Officer who is competent and knowledgeable regarding the anti-money laundering rules and regulations applicable to the Funds, and Adviser will take all steps necessary to: (a) notify assist with the Company administration of such breachthe Trust’s Anti-Money Laundering Program. L. Assist the Trust’s CCO in the preparation and evaluation of the results of annual reviews of the compliance policies and procedures of the service providers to the Trust, and (b) adequately diversify otherwise provide support services to the Trust or Designated Fund so as to achieve compliance within CCO in the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust creation, implementation and the Distributor each represents and warrants that shares ongoing monitoring of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general publicTrust’s Compliance Program. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the TrustFund, the Distributor and the Adviser each represents and warrants that the Trust Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust Fund and Adviser each represents and warrants that the Trust Fund and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the TrustFund, the TrustFund, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust Fund or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust Fund and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust Fund represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust Fund will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust Fund will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust Fund or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust Fund agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust Fund with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of or that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company upon request with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any a Designated Fund has ceased to so qualify of that it might not so qualify or that it such Designated Fund might not so qualify in the future. 3.4 Without 3.2 The Trust represents that it will at all times invest money from the Contracts in any way limiting such a manner as to ensure that the effect of Sections 8.2 Contracts will be treated as variable contracts under the Code and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failureregulations issued thereunder; such costs may includeincluding, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed that each Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust will at all times comply with Section 817(h) of the Code and Treasury Regulation 1.817-5, as amended from time to time, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts, and with Section 817(d) of the Code, such certificate or statement to be sent relating to the definition of a variable contract, and any amendments or other modifications to such Section or Regulation. The Trust will notify the Company no later than thirty (30) days following immediately upon having a reasonable basis for believing that the end Trust or a Designated Fund thereunder has ceased to comply with the diversification requirements or that the Trust or a Designated Fund might not comply with the diversification requirements in the future. In the event of each calendar quartera breach of this representation by the Trust, it will take all reasonable steps to adequately diversify the affected Designated Fund so as to achieve compliance within the grace period afforded by Treasury Regulation 1.817-5.

FUND COMPLIANCE. 3.1 Subject to the Company’s 's representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §Section 1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “"variable contract” " and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “"looking through” " to the investments of each Designated Fund in which it invests, pursuant to the “"look through” " rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “"toll charges” " or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor The Trust and the Adviser each represents and warrants acknowledge that any failure (whether intentional or in good faith or otherwise) of any Designated Fund to comply with the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification requirements of Subchapter M of the foregoing, Code or the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with diversification requirements of Section 817(h) of the Code may result in the Contracts not being treated as variable contracts for federal income tax purposes, which would have adverse tax consequences for Contract owners and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to could also adversely affect the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirementsCompany's corporate tax liability. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents Adviser further acknowledge that any such failure of a Designated Fund may result in costs and warrants that expenses being incurred by the Company in obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Designated Funds will be sold only Fund or as well as fees and expenses of legal counsel and other advisers to Participating Insurance Companies, their separate accounts, Qualified Plans, the Company and any other persons eligible to purchase federal income taxes, interest or tax penalties incurred by the Company in connection with any such failure of a Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 3.2 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust it will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available 3.3 Subject to the Company's representations and warranties in Sections 2.1 and 2.2, the Distributor and/or Adviser Trust represents that it will pay at all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of times invest money from the Trust or any Designated Fund Contracts in such a manner as to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable ensure that the Contracts will be treated as variable contracts under the Code and appropriate corrections or responses to any such failurethe regulations issued thereunder; such costs may includeincluding, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed that each Designated Fund (including but not limited to an order pursuant to will at all times comply with Section 26(b817(h) of the 1940 Act); such costs are Code and Treasury Regulation 1.817-5, as amended from time to includetime, but are not limited to, reasonable fees and expenses of legal counsel and other advisers relating to the Company diversification requirements for variable annuity, endowment, or life insurance contracts, and with Section 817(d) of the Code, relating to the definition of a variable contract, and any federal income taxes amendments or tax penalties and interest thereon (other modifications to such Section or “toll charges” Regulation. The Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to comply with the diversification requirements or exactments or amounts paid that any Designated Fund might not comply with the diversification requirements in settlement) incurred the future. In the event of a breach of this representation by the Company with respect Trust, the Trust will take all reasonable steps to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failureadequately diversify the affected Designated Fund so as to achieve compliance within the grace period afforded by Treasury Regulation 1.817-5. 3.5 3.4 The Trust Adviser agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the The Trust, the Distributor Adviser and the Adviser each represents and warrants Distributor acknowledge that any failure (whether intentional or in good faith or otherwise) of any Designated Fund to comply with the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification requirements of Subchapter M of the foregoing, Code or the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with diversification requirements of Section 817(h) of the Code may result in the Contracts not being treated as variable contracts for federal income tax purposes, which would have adverse tax consequences for Contract owners and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to could also adversely affect the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirementsCompany’s corporate tax liability. In the event of a breach of this Article III by the The Trust, the Trust, Distributor, Adviser and Adviser will take all steps necessary to: (a) notify the Distributor further acknowledge that any failure of any Designated Fund may result in costs and expenses being incurred by the Company in obtaining whatever regulatory authorizations are required to substitute shares of such breach, and (b) adequately diversify another investment company for those of the Trust or failed Designated Fund so or as well as fees and expenses of legal counsel and other advisors to achieve compliance within the 30-day grace period afforded Company and any federal income taxes, interest or tax penalties incurred by Regulation 1.817-5the Company in connection with any such failure of any Designated Fund. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants intends that each Designated Fund is currently qualified qualify as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any a Designated Fund has ceased to so qualify of that it might not so qualify or that it such Designated Fund might not so qualify in the future. 3.4 Without 3.3 The Trust represents that it will at all times invest money from the Contracts in any way limiting the effect of Sections 8.2 and 8.3 hereofsuch a manner, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any that each Designated Fund to will at all times comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code and Treasury Regulation 1.817-5, as amended from time to time, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts, and with Section 817(d) of the Code, such certificate or statement to be sent relating to the definition of a variable contract, and any amendments or other modifications to such Section or Regulation. The Trust will notify the Company no later than thirty (30) days following immediately upon having a reasonable basis for believing that the end Trust or a Designated Fund thereunder has ceased to comply with the diversification requirements or that the Trust or a Designated Fund thereunder might not comply with the diversification requirements in the future. In the event any Designated Fund should fail to meet the diversification requirements of each calendar quarterSection 817(h), the Trust will take all reasonable steps to adequately diversify the affected Designated Fund so as to achieve compliance within the grace period afforded by Treasury Regulation 1.817-5.

FUND COMPLIANCE. 3.1 Subject Adviser and Distributor acknowledge that any failure (whether intentional or in good faith or otherwise) to comply with the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification requirements of Subchapter M of the foregoing, Code or the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with diversification requirements of Section 817(h8l7(h) of the Code may result in the Contracts not being treated as variable contracts for federal income tax purposes, which would have adverse tax consequences for Contract owners and Treasury Regulation §1.817-5, could also adversely affect the Company's corporate tax liability. Distributor further acknowledges that any such failure may result in costs and expenses being incurred by the Company in obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Fund as amended from time well as fees and expenses of legal counsel and other advisors to time, the Company and any Treasury interpretations thereoffederal income taxes, relating to the diversification requirements for variable annuity, endowment, interest or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III tax penalties incurred by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of in connection with any such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5failure. 3.2 The Trust Adviser and the Distributor each represents represent and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants warrant that each Designated Fund Portfolio is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust they will maintain such qualification (under Subchapter M or any successor or similar provision) and that no other Participating Insurance Company will purchase shares in any Designated Portfolio for any purpose or under any circumstances that would preclude the Trust Company from "looking through" to the investments of each Designated Portfolio in which it invests, pursuant to the "look through" rules found in Treasury Regulation 1.817-5. Distributor will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund Portfolio has ceased to so qualify of that it might not so qualify or that it any might not so qualify in the future. 3.4 Without in 3.3 Sections or regulations (and any way limiting the effect of Sections 8.2 and 8.3 hereofrevenue rulings, revenue procedures, notices, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, published announcements of the Trust Internal Revenue Service interpreting those Sections or any Designated regulations), as if those requirements applied directly to each such Portfolio. Distributor will notify the Company immediately upon having a reasonable basis for believing that the Fund or a Portfolio thereunder has ceased to comply with Section 3.1, 3.2 the diversification requirements or 3.3 hereof, including that the Fund or Portfolio might not comply with the diversification requirements in the future. In the event of a breach of this representation and warranty the Fund will take all costs associated with reasonable and appropriate corrections or responses necessary steps to any such failure; such costs may include, but are not limited to, adequately diversify the costs involved in creating, organizing and registering a new investment company Fund so as a funding medium for to achieve compliance within the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred grace period afforded by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failureTreasury Regulation 1.817-5. 3.5 The Trust 3.4 Distributor agrees to provide the Company with a certificate or statement indicating compliance by each Fund Portfolio of the Trust Fund with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarterCompany's reasonable written request. 3.5 Adviser and Distributor represent and warrant that the Fund is in and shall maintain compliance with Rule 38a-1 under the 1940 Act, and Adviser represents and warrants that the Adviser is and shall remain in compliance with Rule 206(4)-7 under the Advisers Act.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of or that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or of another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s 's representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust and each Designated Fund will at all times qualify as a "look-through" entity within the meaning of Treasury Reg. 1.817-5(e) and will sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817(S)1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “"variable contract” " and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5, and take any other steps that may be required in order to correct any failure under this Article III. The Trust, Distributor and Adviser will notify the Company upon having a reasonable basis to believe that a failure has occurred regarding any representation or warranty under this Article III. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “"looking through” " to the investments of each Designated Fund in which it invests, pursuant to the “"look through” " rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that the Trust and each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “"toll charges” " or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, Code relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, provided that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding finding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations The Trust and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and acknowledge that any failure (whether intentional or in good faith or otherwise) of any Designated Fund to comply with the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification requirements of Subchapter M of the foregoing, Code or the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with diversification requirements of Section 817(h) of the Code may result in the Contracts not being treated as variable contracts for federal income tax purposes, which would have adverse tax consequences for Contract owners and Treasury Regulation §1.817-5, could also adversely affect the Company’s corporate tax liability. The Trust and the Distributor further acknowledge that any failure of any Designated Fund may result in costs and expenses being incurred by the Company in obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Designated Fund or as amended from time well as fees and expenses of legal counsel and other advisors to time, the Company and any Treasury interpretations thereoffederal income taxes, relating to the diversification requirements for variable annuity, endowment, interest or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III tax penalties incurred by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company in connection with any such failure of such breach, and (b) adequately diversify the Trust or any Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5Fund. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants intends that each Designated Fund is currently qualified qualify as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any a Designated Fund has ceased to so qualify of that it might not so qualify or that it such Designated Fund might not so qualify in the future. 3.4 Without 3.3 The Trust represents that it will at all times invest money from the Contracts in any way limiting the effect of Sections 8.2 and 8.3 hereofsuch a manner, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any that each Designated Fund to will at all times comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code and Treasury Regulation 1.817-5, as amended from time to time, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts, and with Section 817(d) of the Code, such certificate or statement to be sent relating to the definition of a variable contract, and any amendments or other modifications to such Section or Regulation. The Trust will notify the Company no later than thirty (30) days following immediately upon having a reasonable basis for believing that the end Trust or a Designated Fund thereunder has ceased to comply with the diversification requirements or that the Trust or a Designated Fund thereunder might not comply with the diversification requirements in the future. In the event any Designated Fund should fail to meet the diversification requirements of each calendar quarterSection 817(h), the Trust will take all reasonable steps to adequately diversify the affected Designated Fund so as to achieve compliance within the grace period afforded by Treasury Regulation 1.817-5.

FUND COMPLIANCE. 3.1 Subject to the Company’s 's representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as life insurance or annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “"variable contract” " and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary toimmediately: (a) notify the Company of such breach, and (b) take all steps necessary to adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “"looking through” " to the investments of each Designated Fund in which it invests, pursuant to the “"look through” " rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or such as any exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary toto promptly: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of or that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s 's representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as life insurance or annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “"variable contract” " and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary toimmediately: (a) notify the Company of such breach, and (b) take all steps necessary to adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “"looking through” " to the investments of each Designated Fund in which it invests, pursuant to the “"look through” " rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “"toll charges” " [Please explain "toll charges"] or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts or life insurance policies, as the case may be, under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s 's representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts, endowment, or life insurance contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817[section sign]1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “"variable contract” " and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “"looking through” " to the investments of each Designated Fund in which it invests, pursuant to the “"look through” " rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “"toll charges” " or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts, endowment, or life insurance contracts under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the Trust, the Distributor and the Adviser each represents and warrants that the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts or life insurance policies, as the case may be, under the Code, and the regulations issued thereunder. Specifically for further clarification of the foregoing, the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirements. In the event of a breach of this Article III by the Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of Delaware 613762-2 such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares of any Designated Fund will be sold to the general public. 3.3 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any Designated Fund has ceased to so qualify of that it might not so qualify or that it might not so qualify in the future. 3.4 Without in any way limiting the effect of Sections 8.2 and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust with Section 817(h) of the Code, such certificate or statement to be sent to the Company no later than thirty (30) days following the end of each calendar quarter.

FUND COMPLIANCE. 3.1 Subject to the Company’s representations and warranties in Sections 2.1 and 2.2 hereof, the The Trust, the Distributor Adviser and the Adviser each represents and warrants Distributor acknowledge that any failure (whether intentional or in good faith or otherwise) of any Designated Fund to comply with the Trust will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Specifically for further clarification requirements of Subchapter M of the foregoing, Code or the Trust and Adviser each represents and warrants that the Trust and each Designated Fund thereof will at all times comply with diversification requirements of Section 817(h) of the Code may result in the Contracts not being treated as variable contracts for federal income tax purposes, which would have adverse tax consequences for Contract owners and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to could also adversely affect the diversification requirements for variable annuity, endowment, or life insurance contracts and with Section 817(d) of the Code, relating to the definition of a “variable contract” and any amendments or other modifications or successor provisions to such Sections or Regulations or any other applicable Code requirementsCompany's corporate tax liability. In the event of a breach of this Article III by the The Trust, the Trust, Distributor, and Adviser will take all steps necessary to: (a) notify the Company of such breach, and (b) adequately diversify the Trust or Designated Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. 3.2 The Trust and the Distributor each represents and warrants further acknowledge that shares of the Designated Funds will be sold only to Participating Insurance Companies, their separate accounts, Qualified Plans, and any other persons eligible to purchase the Designated Fund; provided, that the purchase of shares by such persons would not preclude the Company from “looking through” to the investments of each Designated Fund in which it invests, pursuant to the “look through” rules set forth in Treasury Regulation 1.817-5. No shares failure of any Designated Fund will be sold may result in costs and expenses being incurred by the Company in obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Designated Fund or as well as fees and expenses of legal counsel and other advisors to the general publicCompany and any federal income taxes, interest or tax penalties incurred by the Company in connection with any such failure of any Designated Fund. 3.3 3.2 The Trust represents and warrants that each Designated Fund is currently qualified as a Regulated Investment Company under Subchapter M of the Code, and that the Trust will maintain such qualification (under Subchapter M or any successor or similar provision) and that the Trust will notify the Company immediately upon having a reasonable basis for believing that any a Designated Fund has ceased to so qualify of that it might not so qualify or that it such Designated Fund might not so qualify in the future. 3.4 Without 3.3 The Trust represents that it will at all times invest money from the Contracts in any way limiting such a manner as to ensure that the effect of Sections 8.2 Contracts will be treated as variable contracts under the Code and 8.3 hereof, and without in any way limiting or restricting any other remedies available to the Company, the Distributor and/or Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Trust or any Designated Fund to comply with Section 3.1, 3.2 or 3.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failureregulations issued thereunder; such costs may includeincluding, but are not limited to, the costs involved in creating, organizing and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares or another investment company for those of the failed that each Designated Fund (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, reasonable fees and expenses of legal counsel and other advisers to the Company and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by the Company with respect to itself or its Contract owners in connection with any such failure or anticipated or reasonably foreseeable failure. 3.5 The Trust agrees to provide the Company with a certificate or statement indicating compliance by each Fund of the Trust will at all times comply with Section 817(h) of the Code and Treasury Regulation 1.817-5, as amended from time to time, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts, and with Section 817(d) of the Code, such certificate or statement to be sent relating to the definition of a variable contract, and any amendments or other modifications to such Section or Regulation. The Trust will notify the Company no later than thirty (30) days following immediately upon having a reasonable basis for believing that the end Trust or a Designated Fund thereunder has ceased to comply with the diversification requirements or that the Trust or a Designated Fund thereunder might not comply with the diversification requirements in the future. In the event of each calendar quartera breach of this representation by the Trust, it will take all reasonable steps to adequately diversify the affected Designated Fund so as to achieve compliance within the grace period afforded by Treasury Regulation 1.817-5.