FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made as of April 9, 2007, between XTF Advisors Trust, an
open-end management investment company organized as a Delaware business trust
(the "Trust"), XTF Advisors LLC, a registered investment adviser organized as a
limited liability company under the laws of Delaware and Genworth Life and
Annuity Insurance Company, a life insurance company organized under the laws of
the Commonwealth of Virginia (the "Company"), on its own behalf and on behalf
of each segregated asset account of the Company set forth on Schedule A, as the
parties hereto may amend it from time to time (the "Accounts") (individually, a
"Party", and collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, the Trust has applied for registration with the Securities and
Exchange Commission ("SEC") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"), and has
applied for registration of the offer and sale of its shares ("Shares") under
the Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts to be offered by insurance companies that enter into participation
agreements with the Trust (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust may be divided into several
series of Shares, each series representing an interest in a particular managed
portfolio of securities and other assets, and the Trust will make Shares in
each of such series listed on Schedule B hereto as the Parties hereto may amend
from time to time (each a "Portfolio"; reference herein to the "Trust" includes
reference to each Portfolio, to the extent the context requires) available for
purchase by the Accounts; and
WHEREAS, the Trust, to the extent required, has applied for an order from
the SEC granting Participating Insurance Companies and their separate accounts
exemptions from the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the
1940 Act, and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent
necessary to permit Shares of the Trust to be sold to and held by variable
annuity and variable life insurance separate accounts of life insurance
companies and certain qualified pension and retirement plans (the "Exemptive
Order"); and
WHEREAS, the Company will be the issuer of certain variable annuity
contracts and variable life insurance contracts ("Contracts") as set forth on
Schedule A hereto, as the Parties hereto may amend from time to time, which
Contracts (hereinafter collectively, the "Contracts"), will be registered under
the 1933 Act unless an exemption from registration is available; and
WHEREAS, the Company will fund the Contracts through the Accounts, each of
which may be divided into two or more subaccounts ("Subaccounts"; reference
herein to an "Account" includes reference to each Subaccount thereof to the
extent the context requires); and
WHEREAS, the Company will serve as the depositor of the Accounts, each of
which is registered as a unit investment trust investment company under the
1940 Act unless an exemption from registration is available, and the security
interests deemed to be issued by the Accounts under the Contracts will be
registered as securities under the 1933 Act unless an exemption from
registration is available; and
WHEREAS, the Company intends to utilize Shares of one or more Portfolios as
an investment vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the Parties agree
as follows:
ARTICLE I
Sale of Trust Shares
1.1 The Trust shall make Shares of its Portfolios available to the Accounts
at the net asset value of the applicable Portfolio next computed after receipt
of such purchase order by the Trust (or its agent), as established in
accordance with the provisions of the then current prospectus of the Portfolio.
Shares of a particular Portfolio of the Trust shall be ordered in such
quantities and at such times as determined by the Company to be necessary to
meet the requirements of the Contracts. Notwithstanding anything to the
contrary herein, the Trustees of the Trust (the "Trustees") may refuse to sell
Shares of any Portfolio to any person, or suspend or terminate the offering of
Shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is deemed in the sole discretion of the
Trustees acting in good faith and in light of their fiduciary duties under
federal and any applicable state laws, in the best interests of the
shareholders of such Portfolio.
The Parties hereto may agree, from time to time, to add other Portfolios
to provide additional funding media for the Contracts, or to delete, combine,
or modify existing Portfolios, by amending Schedule A hereto. Upon such
amendment to Schedule A, any applicable reference to a Portfolio, the Trust, or
its Shares herein shall include a reference to any such additional Portfolio.
Schedule A, as amended from time to time, is incorporated herein by reference
and is a part hereof.
1.2 The Trust will redeem any full or fractional Shares of any Portfolio
when requested by the Company on behalf of an Account at the net asset value of
the applicable Portfolio next computed after receipt by the Trust (or its
agent) of the request for redemption, as established in accordance with the
provisions of the then current prospectus of the applicable Portfolio. With
respect to payment of the purchase price by the Company and of redemption
proceeds by the Trust, the Company and the Trust shall net purchase and
redemption orders with respect to each Portfolio and shall transmit one net
payment per Portfolio in accordance with this Section 1.2 and Section 1.4. The
Trust shall make payment no later than 12:00 noon New York time on the same day
as the order is placed, to the extent practicable, but in no event shall
payment be delayed for a greater period than is permitted by the 1940 Act.
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1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints the
Company as its agent for the limited purpose of receiving and accepting
purchase and redemption orders resulting from investment in and payments under
the Contracts. Receipt by the Company shall constitute receipt by the Trust
provided that i) such orders are received by the Company in good order prior to
the time the net asset value of each Portfolio is priced in accordance with its
prospectus and ii) the Trust receives notice of such orders by 10:00 a.m. New
York time on the next following Business Day. "Business Day" shall mean any day
on which the New York Stock Exchange is open for regular trading, on which the
Trust calculates the Portfolio's net asset value pursuant to the rules of the
SEC and on which the Company is open for business.
1.4 The Company shall wire payment for net purchase orders that are
transmitted to the Trust in accordance with Section 1.3 to a custodial agent
designated by the Trust no later than 12:00 noon New York time on the same
Business Day that the Trust receives notice of the order. Payments shall be
made in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust's Shares will be by book entry only.
Certificates evidencing the Shares will not be issued to the Company or the
Account. Shares ordered from the Trust will be recorded in the appropriate
title for each Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish same day notice (by email or telephone followed
by written or email confirmation) to the Company of any income dividends or
capital gain distributions payable on the Trust's Shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on a Portfolio's Shares in additional Shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
dividends and capital gain distributions in cash. The Trust shall notify the
Company of the number of Shares so issued as payment of such dividends and
distributions.
1.7 The Trust shall make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 6:00 p.m. New York time.
1.8 The Company shall use the data provided by the Trust each Business Day
pursuant to Section 1.7 above immediately to calculate Account unit values and
to process transactions that receive that same Business Day's Account unit
values. The Company shall perform such Account processing the same Business
Day, and shall place corresponding orders to purchase or redeem Shares with the
Trust by 10:00 a.m. New York time the following Business Day.
1.9 The Trust agrees that its Shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain qualified
pension and retirement plans ("Plans") to the extent permitted by the Exemptive
Order. No Shares of any Portfolio will be sold directly to the general public.
The Company agrees that Trust Shares will be used only for
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the purposes of funding the Contracts and Accounts listed in Schedule A, as
amended from time to time.
1.10 The Trust agrees that all Participating Insurance Companies shall have
the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.8 and
Article IV of this Agreement.
1.11 The Trust shall use its best efforts to provide closing net asset
value, dividend and capital gain information on a per-share basis to the
Company on each Business Day. Any material errors in the calculation of net
asset value, dividend and/or capital gain information shall be reported to the
Company promptly upon discovery. Material errors will be corrected in the
applicable Business Day's net asset value per share. The Company will adjust
the number of shares purchased or redeemed for the Accounts to reflect the
correct net asset value per share.
ARTICLE II
Obligations of the Parties
2.1 The Trust shall prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of the Trust.
The Trust shall bear the costs of registration and qualification of its Shares,
preparation and filing of the documents listed in this Section 2.1 and all
taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 The Trust shall provide the Company (at the Trust's expense) with as
many copies of the Trust's current prospectus, annual report, semi-annual
report and other shareholder communications, including any amendments or
supplements to any of the foregoing, as the Company shall request for existing
Contract owners for whom Shares are held by an Account. The Trust shall provide
the Company (at the Company's expense) with as many copies of the Trust's
current prospectus, including any amendments or supplements thereto, as the
Company shall request for prospective purchasers of Contracts. If requested by
the Company in lieu thereof, the Trust shall provide the Company with a camera
ready copy of such documents in a form suitable for printing (at the Company's
expense, except that the Trust will bear the commercially reasonable, prorated
cost of printing the Trust's prospectus in this format for existing Contract
owners up to an amount the Trust would pay on a per copy basis for its own
prospectus). The Trust shall provide the Company with a copy of its statement
of additional information in a form suitable for duplication by the Company.
The Trust (at its expense) shall provide the Company with copies of any
Trust-sponsored proxy materials in such quantity as the Company shall
reasonably require for distribution to Contract owners. The Trust shall provide
the materials described in this Section 2.2 within a reasonable time prior to
required printing and distribution of such materials.
2.3 (a) The Company shall bear the costs of distributing the Trust's
prospectus, statement of additional information, shareholder reports and other
shareholder communications to Contract owners of and applicants for policies
for which the Trust is serving or is to serve as
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an investment vehicle. The Trust shall bear the costs of distributing proxy
materials (or similar materials such as voting solicitation instructions) to
Contract owners. The Company assumes sole responsibility for ensuring that such
materials are delivered to Contract owners on a timely basis in accordance with
applicable federal and state securities laws.
(b) If the Company elects to include any materials provided by the
Trust, specifically prospectuses, statements of additional information,
shareholder reports and proxy materials, on its web site or in any other
computer or electronic format, the Company assumes sole responsibility for
maintaining such materials in the form provided by the Trust and for promptly
replacing such materials with all updates provided by the Trust.
2.4 The Company agrees and acknowledges that it has no rights to the names
and marks "XTF Portfolios" and "XTF Advisors Trust" and that all use of any
designation comprised in whole or part of XTF Portfolios or the names of the
Portfolios or the Trust (each a "Fund Xxxx") under this Agreement shall inure
to the benefit of the Trust. Except as provided in Section 2.5, the Company
shall not use any Fund Xxxx on its own behalf or on behalf of the Accounts or
Contracts in any registration statement, advertisement, sales literature or
other materials relating to the Accounts or Contracts without the prior written
consent of the Trust. Upon termination of this Agreement for any reason, the
Company shall cease all use of any Fund Xxxx as soon as reasonably practicable.
2.5 (a) The Trust will provide the Company with at least one complete copy
of all prospectuses, statements of additional information, annual and
semi-annual reports, proxy statements, applications for exemptions, requests
for no-action letters, and all amendments or supplements to any of the above
that relate to the Trust or its investment adviser promptly after the filing of
each such document with the SEC or other regulatory authority. The Company will
provide the Trust with at least one complete copy of all prospectuses,
statements of additional information, annual and semi-annual reports, proxy
statements, applications for exemptions, requests for no-action letters, and
all amendments or supplements to any of the above promptly after the filing of
each such document with the SEC or other regulatory authority provided that the
document relates to an Account and Contract that include the Trust as one of
the underlying funding vehicles for such Contract.
(b) The Trust shall furnish, or shall cause to be furnished, to the
Company or its designee, each piece of sales literature or other promotional
material in which the Company, the Accounts or the Contracts are named, at
least fifteen Business Days prior to its use. No such material shall be used if
the Company or its designee reasonably objects to such use within fifteen
Business Days after receipt of such material. The Company shall furnish, or
shall cause to be furnished, to the Trust or its designee, each piece of sales
literature or other promotional material in which the Trust or its investment
adviser(s) is named, at least fifteen Business Days prior to its use. No such
material shall be used if the Trust or its designee reasonably objects to such
use within fifteen Business Days after receipt of such material.
2.6 The Company and its affiliates shall not give any information or make
any representations or statements on behalf of the Trust or concerning the
Trust or any of its affiliates
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or its investment adviser(s) in connection with the sale of the Contracts other
than information or representations contained in and accurately derived from
the registration statement, including the prospectus and statement of
additional information, for the Trust Shares (as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time), reports of the Trust, Trust-sponsored proxy
statements, or in sales literature or other promotional material approved by
the Trust or its designee, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
2.7 The Trust and its affiliates shall not give any information or make any
representations or statements on behalf of the Company or concerning the
Company or any of its affiliates, the Contracts or the Accounts other than
information or representations contained in and accurately derived from the
registration statement, including the prospectus and statement of additional
information, for the Contracts (as such registration statement, prospectus, and
statement of additional information may be amended or supplemented from time to
time), or in materials approved by the Company or its designee for distribution
including sales literature or other promotional materials, except as required
by legal process or regulatory authorities or with the written permission of
the Company or its designee.
2.8 So long as, and to the extent that the SEC interprets the 1940 Act to
require pass-through voting privileges for owners of variable life insurance
policies and/or variable annuity contracts, the Company will provide
pass-through voting privileges to Contract owners whose cash values are
invested, through the Accounts, in Shares of the Trust, and will vote the
Shares held in such Accounts in a manner consistent with voting instructions
timely received from Contract owners. The Trust shall require all Participating
Insurance Companies to calculate voting privileges in the same manner and the
Company shall be responsible for assuring that the Accounts calculate voting
privileges in the manner established by the Trust. With respect to each
Account, the Company will vote Shares of the Trust held by the Account and for
which no timely voting instructions from policyowners are received, as well as
Shares it owns that are held by that Account or directly, in the same
proportion as those Shares for which timely voting instructions are received.
The Company and its affiliates and agents will in no way recommend or oppose or
interfere with the solicitation of proxies for Trust Shares held by Contract
owners without the prior written consent of the Trust, which consent may be
withheld in the Trust's sole discretion.
2.9 The Company shall notify the Trust of any applicable state insurance
laws that restrict the Portfolios' investments or otherwise affect the
operation of the Trust and shall notify the Trust in writing of any changes in
such laws.
2.10 The Company shall adopt and implement procedures reasonably designed to
ensure that information concerning the Trust and its affiliates that is
intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners) ("broker
only materials") is so used, and neither the Trust nor any of its affiliates
shall be liable for any losses, damages or expenses relating to the improper
use of such broker only materials.
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2.11 For purposes of Sections 2.6 and 2.7, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the 0000 Xxx.
2.12 The Trust will immediately notify the Company of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to the Trust's registration statement under
the 1933 Act or the Trust prospectus, (ii) any request by the SEC for any
amendment to such registration statement or the Trust prospectus that may
affect the offering of Shares of the Trust, (iii) the initiation of any
proceedings for that purpose or for any other purpose relating to the
registration or offering of the Trust's Shares, or (iv) any other action or
circumstances that may prevent the lawful offer or sale of Shares of any
Portfolio in any state or jurisdiction, including, without limitation, any
circumstances in which (a) such Shares are not registered and, in all material
respects, issued and sold in accordance with applicable state and federal law,
or (b) such law precludes the use of such Shares as an underlying investment
medium of the Contracts issued or to be issued by the Company. The Trust will
make every reasonable effort to prevent the issuance, with respect to any
Portfolio, of any such stop order, cease and desist order or similar order and,
if any such order is issued, to obtain the lifting thereof at the earliest
possible time.
2.13 The Company will immediately notify the Trust of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to each Account's registration statement under
the 1933 Act relating to the Contracts or each Account prospectus, (ii) any
request by the SEC for any amendment to such registration statement or Account
prospectus that may affect the offering of Shares of the Trust, (iii) the
initiation of any proceedings for that purpose or for any other purpose
relating to the registration or offering of each Account's interests pursuant
to the Contracts, or (iv) any other action or circumstances that may prevent
the lawful offer or sale of said interests in any state or jurisdiction,
including, without limitation, any circumstances in which said interests are
not registered and, in all material respects, issued and sold in accordance
with applicable state and federal law. The Company will make every reasonable
effort to prevent the issuance of any such stop order, cease and desist order
or similar order and, if any such order is issued, to obtain the lifting
thereof at the earliest possible time.
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ARTICLE III
Representations and Warranties
3.1 The Company represents and warrants (i) that it is an insurance company
duly organized and in good standing under the laws of the Commonwealth of
Virginia and has full corporate power, authority and legal right to execute,
deliver and perform its duties and comply with its obligations under this
Agreement, (ii) that it has legally and validly established and maintained each
Account as a segregated asset account under such law and the regulations
thereunder, and (iii) that the Contracts comply in all material respects with
all other applicable federal and state laws and regulations.
3.2 The Company represents and warrants that (i) each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered and each Account will remain registered as a unit investment trust
in accordance with the provisions of the 1940 Act unless an exemption from
registration is available, (ii) each registered Account does and will comply in
all material respects with the requirements of the 1940 Act and the rules
thereunder, (iii) each registered Account's 1933 Act registration statement
relating to the Contracts, together with any amendments thereto, will at all
times comply in all material respects with the requirements of the 1933 Act and
the rules thereunder, (iv) the Company will amend the registration statement
for its Contracts under the 1933 Act and for its registered Accounts under the
1940 Act from time to time as required in order to effect the continuous
offering of its Contracts or as may otherwise be required by applicable law,
and (v) each registered Account prospectus will at all times comply in all
material respects with the requirements of the 1933 Act and the rules
thereunder.
3.3 The Company represents and warrants that the Contracts or interests in
the Accounts are or, prior to issuance, will be registered as securities under
the 1933 Act unless an exemption from registration is available. The Company
further represents and warrants that: (i) the Contracts will be issued and sold
in compliance in all material respects with all applicable federal and state
laws, (ii) the Company has adopted policies and procedures reasonably designed
to comply with the US PATRIOT Act, and (iii) the Company does not encourage or
facilitate active trading and has adopted policies and procedures reasonably
designed to prevent market timing within the Portfolios.
3.4 The Trust represents and warrants (i) that it is duly organized and
validly existing under the laws of the State of Delaware, (ii) that it does and
will comply in all material respects with the requirements of the 1940 Act and
the rules thereunder, (iii) that its 1933 Act registration statement, together
with any amendments thereto, will at all times comply in all material respects
with the requirements of the 1933 Act and rules thereunder, and (iv) that its
Prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
3.5 The Trust represents and warrants that the Trust Shares offered and sold
pursuant to this Agreement shall be registered under the 1933 Act to the extent
required by the 1933 Act and the Trust shall be registered under the 1940 Act
to the extent required by the 1940 Act prior to any issuance or sale of such
Shares. The Trust shall amend its registration statement for its
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shares under the 1933 Act and itself under the 1940 Act from time to time as
required in order to effect the continuous offering of its Shares. The Trust
shall register and qualify its Shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Trust.
3.6 The Trust represents and warrants that each Portfolio intends to comply
with the diversification requirements set forth in Section 817(h) of the
Internal Revenue Code of 1986, as amended, (the "Code") and the regulations
thereunder and that the Trust will notify the Company promptly upon having a
reasonable basis for believing that a Portfolio does not so comply. In the
event of any such non-compliance, the Trust will take all reasonable steps to
adequately diversify the Portfolio so as to achieve compliance within the grace
period afforded by Section 1.817-5 of the regulations under the Code.
Notwithstanding any other provision of this Agreement, the Company
agrees that if the Internal Revenue Service ("IRS") asserts in writing in
connection with any governmental audit or review of the Company or, to the
Company's knowledge, of any Contract owners or annuitants, insureds or
participants under the Contracts (as appropriate) (collectively,
"Participants"), that any Portfolio has failed to comply with the
diversification requirements of Section 817(h) of the Code or the Company
otherwise becomes aware of any facts that could give rise to any claim against
the Trust or its affiliates as a result of such a failure or alleged failure:
(a) the Company shall promptly notify the Trust of such assertion or
potential claim;
(b) the Company shall consult with the Trust as to how to minimize any
liability that may arise as a result of such failure or alleged failure.
(c) the Company shall use its best efforts to minimize any liability of
the Trust or its affiliates resulting from such failure, including, without
limitation, demonstrating, pursuant to Treasury Regulations
Section 1.817-5(a)(2), to the Commissioner of the IRS that such failure was
inadvertent;
(d) the Company shall permit the Trust, its affiliates and their legal
and accounting advisors to participate in any conferences, settlement
discussions or other administrative or judicial proceeding or contests
(including judicial appeals thereof) with the IRS, any Participant or any other
claimant regarding any claims that could give rise to liability to the Trust or
its affiliates as a result of such a failure or alleged failure; provided,
however, that the Company will retain control of the conduct of such
conferences discussions, proceedings, contests or appeals;
(e) any written materials to be submitted by the Company to the IRS, any
Participant or any other claimant in connection with any of the foregoing
proceedings or contests (including, without limitation, any such materials to
be submitted to the IRS pursuant to Treasury Regulations
Section 1.817-5(a)(2)), shall be provided by the Company to the Trust (together
with
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any supporting information or analysis) at least ten (10) business days or such
shorter period to which the Parties hereto agree prior to the day on which such
proposed materials are to be submitted;
(f) the Company shall provide the Trust or its affiliates and their
accounting and legal advisors with such cooperation as the Trust shall
reasonably request (including, without limitation, by permitting the Trust and
its accounting and legal advisors to review the relevant books and records of
the Company) in order to facilitate review by the Trust or its advisors of any
written submissions provided to it pursuant to the preceding clause or its
assessment of the validity or amount of any claim against its arising from such
a failure or alleged failure; and
(g) the Company shall not with respect to any claim of the IRS or any
Participant that would give rise to a claim against the Trust or its affiliates
(a) compromise or settle any claim, (b) accept any adjustment on audit, or
(c) forego any allowable administrative or judicial appeals, without first
notifying the Trust or its affiliates; provided that the Company reserves the
right, after exhausting all administrative remedies, not to appeal any adverse
judicial decision; provided, further, that if the Trust or its affiliates shall
have provided an opinion of independent counsel to the effect that a reasonable
basis exists for taking such appeal and the Company agrees thereto, that the
costs of any such appeal shall be borne by the Trust.
The Company may, in its discretion, authorize the Trust or its
affiliates to act in the name of the Company in, and to control the conduct of,
such conferences, discussions, proceedings, contests or appeals and all
administrative or judicial appeals thereof, and if such arrangement is agreed
to in writing by the Trust or its affiliates, the Trust or its affiliates shall
bear the fees and expenses associated with the conduct of the proceedings that
it is so authorized to control; provided, that in no event shall the Company
have any liability resulting from the Trust's refusal to accept the proposed
settlement or compromise with respect to any failure caused by the Trust. As
used in this Agreement, the term "affiliates" shall have the same meaning as
"affiliated person" as defined in Section 2(a)(3) of the 0000 Xxx.
3.7 The Trust represents that each Portfolio intends to qualify as a
Regulated Investment Company under Subchapter M of the Code and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the Company promptly
upon having a reasonable basis for believing that a Portfolio has ceased to so
qualify.
3.8 Certain classes of the Trust's Shares intend to make payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act (the "12b-1
Plan"). The Trust represents that the 12b-1 Plan for each class of each
applicable Portfolio has or will be approved by the Trust's board of trustees,
including a majority of whom are not interested persons of the Trust, prior to
the date the class commences operations.
3.9 The Trust represents and warrants that all of its trustees, officers and
employees are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Trust in an amount not
less than the minimal coverage as required currently by
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Rule 17g-(1) under the 1940 Act or related provisions as may be promulgated
from time to time. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
3.10 The Company represents and warrants that the Contracts currently are
and will be treated as annuity contracts or life insurance contracts under
applicable provisions of the Code and that it will make every effort to
maintain such treatment; the Company will notify the Trust immediately upon
having a reasonable basis for believing that any of the Contracts have ceased
to be so treated or that they might not be so treated in the future.
3.11 The Company represents and warrants that each Account is a "segregated
asset account" and that interests in each Account are offered exclusively
through the purchase of or transfer into a "variable contract," within the
meaning of such terms under Section 817 of the Code and the regulations
thereunder. The Company will make every effort to continue to meet such
definitional requirements, and it will notify the Trust immediately upon having
a reasonable basis for believing that such requirements have ceased to be met
or that they might not be met in the future.
3.12 Each of the Parties represents and warrants that it shall perform its
obligations hereunder in compliance with any applicable state and federal laws.
ARTICLE III-A
Contract Holder Information
3A.1 Agreement to Provide Contract Holder Information Pursuant to Rule 22c-2
(a) To the extent required by Rule 22c-2 under the 1940 Act, the Company
agrees to provide the Trust, upon written request, the taxpayer identification
number ("TIN"), if known, of any or all Contract holders and the amount, date,
name or other identifier of any investment professional(s) associated with the
Contract holder(s) or account(s) (if known), and transaction type (purchase,
redemption, transfer or exchange) of every purchase, redemption, transfer or
exchange of shares of the Portfolio(s) held through one or more account(s)
maintained by the Company during the period covered by the request
("transaction information").
(b) Requests must set forth a specific period, not to exceed ninety
(90) business days from the date of the request, for which transaction
information is sought. The Trust may request transaction information older than
ninety (90) business days from the date of the request as it deems necessary to
investigate compliance with policies established by the Trust for the purpose
of eliminating or reducing any dilution of the value of the outstanding shares
of the Portfolio(s) issued by the Trust.
(c) The Company agrees to transmit the requested transaction information
that is on its books and records to the Trust or its designee promptly, but in
any event not later than
-11-
five (5) business days after receipt of a request. If the requested transaction
information is not on the Company's books and records, the Company agrees to:
(i) provide or arrange to provide to the Trust the requested transaction
information from Contract holders who hold an account with an indirect
intermediary; or (ii) if directed by the Trust, block further purchases of
shares of the Portfolio(s) from such indirect intermediary. In such instance,
the Company agrees to inform the Trust whether it plans to perform (i) or (ii).
Responses required by this paragraph must be communicated in writing and in a
format mutually agreed upon by the parties. To the extent practicable, the
format for any transaction information provided to the Trust should be
consistent with the NSCC Standardized Data Reporting Format. For purposes of
this provision, an "indirect intermediary" has the same meaning as in Rule
22c-2 under the 1940Act.
3A.2 Agreement to Restrict Trading; Instructions; Confirmations
(a) To the extent required by Rule 22c-2 the Company agrees to execute
written instructions from the Trust to restrict or prohibit further purchases
or exchanges of shares of the Portfolio(s) by a Contract holder that has been
identified by the Trust as having engaged in transactions of Portfolio shares
(directly or indirectly through the Company's account) that violate market
timing or frequent trading policies established by the Trust for the purpose of
eliminating or reducing any dilution of the value of the outstanding Portfolio
shares issued by the Trust.
(b) Instructions must include the TIN, if known, and the specific
restrictions(s) to be executed. If the TIN is not known, the instructions must
include an equivalent identifying number of the Contract holder(s) or
account(s) or other agreed upon information to which the instruction relates.
(c) The Company agrees to execute instructions as soon as reasonably
practicable, but not later than five (5) business days after receipt of the
instructions by the Company.
(d) The Company must provide written confirmation to the Trust that
instructions have been executed. The Company agrees to provide confirmation as
soon as reasonably practicable, but not later than ten (10) business days after
the instructions have been executed.
3A.3 Limitations on Use of Information
The Trust agrees not to use any transaction information received from the
Company solely pursuant to this Agreement for marketing or any other similar
purpose without the prior written consent of the Company, except where it is
required to do so under law, rule, or regulation.
-12-
ARTICLE IV
Potential Conflicts
4.1 The Parties acknowledge that the Trust's Shares may be made available
for investment to other Participating Insurance Companies. In such event, the
Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Portfolio are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable life insurance policyowners; or (f) a
decision by an insurer to disregard the voting instructions of contract owners.
The Trustees shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. The Company will assist the
Trustees in carrying out their responsibilities under the Exemptive Order by
providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting
instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of Contract owners, the Company shall, in cooperation
with other Participating Insurance Companies whose contract owners are also
affected, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees) take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, which
steps could include: (a) withdrawing the assets allocable to some or all of the
Accounts from the Trust or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio
of the Trust, or submitting the question of whether or not such segregation
should be implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
contract owners, life insurance contract owners, or variable contract owners of
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of making
such a change; and (b) establishing a new registered management investment
company or managed separate account.
4.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw each affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be
limited to the extent required to adequately remedy the foregoing material
irreconcilable conflict
-13-
as determined by a majority of the disinterested Trustees. No charge or penalty
will be imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after the Trust gives written
notice that this provision is being implemented. Until the end of such six
(6) month period, the Trust shall continue to accept and implement orders by
the Company for the purchase and redemption of Shares of the applicable
Portfolio.
4.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the affected
Account's investment in the Trust and terminate this Agreement with respect to
such Account within six (6) months after the Trustees inform the Company in
writing that it has determined that such decision has created an irreconcilable
material conflict; provided, however, that such withdrawal and termination
shall be limited to the extent required to adequately remedy the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Until the end of such six (6) month period, the Trust
shall continue to accept and implement orders by the Company for the purchase
and redemption of Shares of the applicable Portfolio.
4.6 The Company agrees that any remedial action taken by it in resolving any
material irreconcilable conflict will be carried out at its expense and with a
view only to the interests of Contract owners.
4.7 For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Company be required to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six
(6) months after the Trustees inform the Company in writing of the foregoing
determination.
4.8 The Company shall at least annually submit to the Trustees such reports,
materials or data as the Trustees may reasonably request so that the Trustees
may fully carry out the duties imposed upon them by the Exemptive Order, and
said reports, materials and data shall be submitted more frequently if deemed
appropriate by the Trustees.
4.9 The provisions of this Article IV are intended to be consistent with the
terms, conditions and requirements of the Exemptive Order. As of the date of
this Agreement, the Trust has not received the Exemptive Order. If and when the
Exemptive Order is granted, the Parties shall take all such steps as may be
necessary to amend this Agreement to conform with the provisions and conditions
of the Exemptive Order, as granted. In addition, the Parties shall take all
such steps as may be necessary to amend this Agreement to assure compliance
with all federal and state laws to the extent any Trust Shares are to be sold
to any unregistered accounts or to any Plan.
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4.10 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Exemptive Order) on terms and conditions materially
different from those contained in the Exemptive Order, then the Trust and/or
the Participating Insurance Companies, as appropriate, shall take such steps as
may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule
6e-3, as adopted, to the extent such rules are applicable.
ARTICLE V
Indemnification
5.1 Indemnification By the Company. The Company agrees to indemnify and hold
harmless the Trust, its affiliates and each of its Trustees, officers,
employees and agents and each person, if any, who controls the Trust or any of
its affiliates within the meaning of Section 15 of the 1933 Act (collectively,
the "Trust Indemnified Parties" for purposes of this Article V) against any and
all losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Company) or expenses (including the reasonable
costs of investigating or defending any alleged loss, claim, damage, liability
or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Trust Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise, insofar
as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration statement or
prospectus for the Contracts or in the Contracts themselves or in advertising
or sales literature for the Contracts (or any amendment or supplement to any of
the foregoing) (collectively, "Company Documents" for the purposes of this
Article V), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
indemnity shall not apply as to any Trust Indemnified Party if such statement
or omission or such alleged statement or omission was made in reliance upon and
was accurately derived from written information furnished to the Company or its
affiliates by or on behalf of the Trust or its affiliates for use in Company
Documents or otherwise for use in connection with the sale of the Contracts or
Trust Shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Trust Documents as defined in Section 5.2(a)) or the negligent or wrongful
conduct of the Company, or persons under its control (including, without
limitation, its employees), in connection with the sale or distribution of the
Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Trust Documents as defined in
Section 5.2(a) or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading if such statement or omission was made in reliance upon
-15-
and accurately derived from written information furnished to the Trust or its
affiliates by or on behalf of the Company or its affiliates; or
(d) arise out of or result from any failure by the Company to perform
the obligations, provide the services or furnish the materials required under
the terms of this Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company.
5.2 Indemnification By the Trust. The Trust agrees to indemnify and hold
harmless the Company, its affiliates and each of its directors, officers,
employees and agents and each person, if any, who controls the Company or any
of its affiliates within the meaning of Section 15 of the 1933 Act
(collectively, the "Company Indemnified Parties" for purposes of this Article
V) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Trust) or expenses
(including the reasonable costs of investigating or defending any alleged loss,
claim, damage, liability or expense and reasonable legal counsel fees incurred
in connection therewith) (collectively, "Losses"), to which the Company
Indemnified Parties may become subject under any statute or regulation, or at
common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration statement
or prospectus for the Trust or in advertising or sales literature for the Trust
(or any amendment or supplement to any of the foregoing), (collectively, "Trust
Documents" for the purposes of this Article V), or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to any Company
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and was accurately derived from written
information furnished to the Trust or its affiliates by or on behalf of the
Company or its affiliates for use in Trust Documents or otherwise for use in
connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Company Documents) or the negligent or wrongful conduct of the Trust or persons
under its control (including, without limitation, its employees), in connection
with the sale or distribution of the Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading if such statement or
omission was made in reliance upon and accurately derived
-16-
from written information furnished to the Company or its affiliates by or on
behalf of the Trust or its affiliates; or
(d) arise out of or result from any failure by the Trust to perform the
obligations, provide the services or furnish the materials required under the
terms of this Agreement;
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or arise out
of or result from any other material breach of this Agreement by the Trust; or
(f) arise out of the failure of the Trust or any Portfolio to comply
with the diversification requirements set forth in Section 817(h) of the Code
or to qualify as a "regulated investment company" under Subchapter M of the
Code.
5.3 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any Losses incurred or
assessed against a Trust Indemnified Party or a Company Indemnified Party, as
applicable (as to each, an "Indemnified Party") to the extent the Losses arise
from such Indemnified Party's willful misfeasance, bad faith or negligence in
the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
5.4 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the Party
against whom Indemnification is sought (the "Indemnifying Party") in writing
within a reasonable time after the summons, or other first written
notification, giving information of the nature of the claim that shall have
been served upon or otherwise received by such Indemnified Party (or after such
Indemnified Party shall have received notice of service upon or other
notification to any designated agent), but failure to notify the Indemnifying
Party of any such claim shall not relieve such Indemnifying Party from any
liability which it may have to the Indemnified Party in the absence of Sections
5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties, the
Indemnifying Party shall be entitled to participate, at its own expense, in the
defense of such action. The Indemnifying Party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the Party named in
the action. After notice from the Indemnifying Party to the Indemnified Party
of an election to assume such defense, the Indemnified Party shall cooperate
with the Indemnifying Party and bear the fees and expenses of any additional
counsel retained by it, and the Indemnifying Party will not be liable to the
Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection
with the defense thereof other than reasonable costs of investigation.
-17-
ARTICLE VI
Confidentiality
6.1 The Trust acknowledges that the identities of the customers of Company
or any of its affiliates (collectively, the "Company Protected Parties" for
purposes of this Article VI), information maintained regarding those customers,
and all computer programs and procedures or other information developed by the
Company Protected Parties or any of their employees or agents in connection
with Company's performance of its duties under this Agreement are the valuable
property of the Company Protected Parties. The Trust agrees that if it comes
into possession of any list or compilation of the identities of or other
information about the Company Protected Parties' customers, or any other
information or property of the Company Protected Parties, other than such
information as may be independently developed or compiled by the Trust from
information supplied to it by the Company Protected Parties' customers who also
maintain accounts directly with the Trust, the Trust will hold such information
or property in confidence and refrain from using, disclosing or distributing
any of such information or other property except: (a) with Company's prior
written consent; or (b) as required by law or judicial process. The Company
acknowledges that the identities of the customers of the Trust or any of its
affiliates (collectively, the "the Trust Protected Parties" for purposes of
this Article VI), information maintained regarding those customers, and all
computer programs and procedures or other information developed by the Trust
Protected Parties or any of their employees or agents in connection with the
Trust's performance of its duties under this Agreement are the valuable
property of the Trust Protected Parties. The Company agrees that if it comes
into possession of any list or compilation of the identities of or other
information about the Trust Protected Parties' customers or any other
information or property of the Trust Protected Parties, other than such
information as may be independently developed or compiled by Company from
information supplied to it by the Trust Protected Parties' customers who also
maintain accounts directly with the Company, the Company will hold such
information or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with the
Trust's prior written consent; or (b) as required by law or judicial process.
Each Party acknowledges that any breach of the agreements in this Article VI
would result in immediate and irreparable harm to the other Party for which
there would be no adequate remedy at law and agree that in the event of such a
breach, the other Party will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as any court
of competent jurisdiction deems appropriate.
ARTICLE VII
Termination
7.1 (a) This Agreement may be terminated by either Party for any reason by
ninety (90) days advance written notice delivered to the other Party.
-18-
(b) This Agreement may be terminated by the Company immediately upon
written notice to the Trust with respect to any Portfolio:
(i) based upon the Company's determination that Shares of such
Portfolio are not reasonably available to meet the requirements of the
Contracts; or
(ii) in the event any of the Portfolio's Shares are not registered,
and in all material respects issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such Shares as the
underlying investment media of the Contracts issued or to be issued by the
Company; or
(iii) upon the Trust's breach of any material provision of this
Agreement, which breach has not been cured to the satisfaction of the Company
within ten days after written notice of such breach is delivered to the Trust;
(iv) in the event that such Portfolio ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably believes that the
Trust may fail to so qualify; or
(v) in the event that such Portfolio fails to meet the
diversification requirements specified in this Agreement.
(c) This Agreement may be terminated immediately by the Trust upon the
Company's breach of any material provision of this Agreement, which breach has
not been cured to the satisfaction of the Trust within ten days after written
notice of such breach is delivered to the Company.
(d) This Agreement will terminate as to a Portfolio upon at least ninety
(90) days advance written notice:
(i) at the option of the Trust upon institution of formal proceedings
against the Company by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body if the Trust shall determine, in its
sole judgment exercised in good faith, that the Company has suffered a material
adverse change in its business, operations, financial condition, or prospects
since the date of this Agreement or is the subject of material adverse
publicity; or
(ii) at the option of the Company upon institution of formal
proceedings against the Trust, its principal underwriter, or its investment
adviser by the NASD, the SEC, or any state securities or insurance department
or any other regulatory body if the Company shall determine, in its sole
judgment exercised in good faith, that the Trust, its principal underwriter, or
its investment adviser has suffered a material adverse change in its business,
operations, financial condition, or prospects since the date of this Agreement
or is the subject of material adverse publicity.
-19-
7.2 Notwithstanding any termination of this Agreement under Section 7.1, the
Trust shall, at the option of the Company, continue to make available
additional Shares of the Trust (or any Portfolio) for at least 180 days,
pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement, provided that
the Company continues to pay the costs set forth in Section 2.3 and meet all
obligations of the Company under this Agreement (treating it as being in full
force and effect), and further provided that Shares of the Trust (or any
Portfolio) shall only be required to be made available with respect to owners
of the Contracts for whom Shares are held by an Account on the effective date
of the termination. Such Contract owners will be permitted to reallocate
investments in the Portfolio and/or invest in the Portfolio upon the making of
additional purchase payments under the Contracts. The provisions of this
Section 7.2 shall not apply to any termination pursuant to Article IV or in the
event the Trust determines to liquidate the Portfolio and end the Portfolio's
existence.
7.3 The provisions of Articles V and VI shall survive the termination of
this Agreement, and the provisions of Articles II and IV shall survive the
termination of this Agreement so long as Shares of the Trust are held on behalf
of Contract owners in accordance with Section 7.2.
7.4 This Agreement will terminate as to a Portfolio immediately at the
option of the Trust if the Contracts issued by the Company cease to qualify as
annuity contracts or life insurance contracts under the Code (other than by
reason of the Portfolio's noncompliance with Section 817(h) or Subchapter M of
the Code) or if interests in an Account under the Contracts are not registered,
or, in all material respects, are not issued or sold in accordance with any
applicable federal or state law, upon prior written notice which shall be given
as soon as possible within twenty-four (24) hours after the Trust learns of the
event.
7.5 The Parties hereto agree to cooperate and give reasonable assistance to
one another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Portfolio after the effective date
of this Agreement's termination with respect to such Shares or, if such
ownership following termination cannot be avoided, that the duration thereof is
as brief as reasonably practicable. Such steps may include, for example,
combining the affected Account with another Account, substituting other
Portfolio shares for those of the affected Portfolio, or otherwise terminating
participation by the Contracts in such Portfolio.
ARTICLE VIII
Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other Party at the address of such Party set forth below or at such
other address as such Party may from time to time specify in writing to the
other Party.
-20-
If to the Trust: XTF Advisors Trust
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
with a copy to: XxXxx X. Xxxxxxxx, Esq.
Xxxxxxxx Xxxx LLP
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxx, Xxxx 00000
If to the Company: Genworth Life and Annuity Insurance Company
0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx 0
Xxxxxxxx, Xxxxxxxx 00000
Attention: General Counsel, Securities
ARTICLE IX
Miscellaneous
9.1 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
9.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
9.3 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
9.4 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of State of New York without regard for
that state's principles of conflict of laws.
9.5 The Parties acknowledge and agree that all liabilities of the Trust
arising, directly or indirectly, under this Agreement, of any and every nature
whatsoever, shall be satisfied solely out of the assets of the Trust and that
no Trustee, officer, agent or holder of Shares of beneficial interest of the
Trust shall be personally liable for any such liabilities.
9.6 Each Party shall cooperate with each other Party and all appropriate
governmental authorities (including without limitation the SEC, the NASD, and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
9.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the Parties hereto are entitled to under state and
federal laws.
-21-
9.8 The Parties acknowledge and agree that this Agreement shall not be
exclusive in any respect.
9.9 Neither this Agreement nor any of its rights or obligations hereunder
may be assigned by any Party without the prior written approval of the other
Party.
9.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
Parties hereto.
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers
to execute this Agreement as of the date and year first above written.
XTF ADVISORS TRUST
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chairman
XTF ADVISORS LLC
By:
---------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
Genworth Life and Annuity Insurance Company
By:
---------------------------------
Name: Xxxxxxxx X. Stiff
Title: Senior Vice President
-22-
SCHEDULE A
Separate Accounts and Associated Contracts
Name of Separate Account and Policies/Contracts Funded
Date Established by Board of Directors By Separate Account
-------------------------------------- ---------------------------------------
Genworth Life & Annuity VA Separate
Account 1 RetireReady Choice Variable Annuity
(August 19, 1987) RetireReady Extra Variable Annuity
RetireReady Freedom Variable Annuity
RetireReady Selections Variable Annuity
Genworth Life & Annuity VA Separate
Account 2 Personal Income Design Variable Annuity
(June 5, 2002) RetireReady Bonus Variable Annuity
SCHEDULE B
Participating Portfolios
ETF 60 Portfolio - Class II Shares
