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EXHIBIT 8(j)
AGREEMENT
Between
X. XXXX PRICE INVESTMENT SERVICES, INC.
and
[COMPANY]
THIS AGREEMENT, made and entered into as of this _____ day of
________________, 199_ by and between _________________________ (hereinafter,
the "Company"), a ________________________ insurance company, on its own behalf
and on behalf of each segregated asset account of the Company set forth on
Schedule A hereto as may be amended from time to time (each account hereinafter
referred to as the "Account"), and X. Xxxx Price Investment Services, Inc.
(hereinafter the "Underwriter"), a Maryland corporation.
WHEREAS, the X. Xxxx Price Funds listed in Schedule A, are corporations
organized under the laws of Maryland (the "Fund") and engage in business as
open-end management investment companies; and
WHEREAS, the Company has issued or will issue certain group annuity
contracts (the "Contracts"); and
WHEREAS, the Account(s) set forth on Schedule A are duly established and
maintained as a segregated asset account, established by resolution of the Board
of Directors of the Company, to set aside and invest assets attributable to the
aforesaid Contracts; and
WHEREAS, the Underwriter is registered as a broker dealer with the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act of
1934, as amended (hereinafter the "1934 Act"), and is a member in good standing
of the National Association of Securities Dealers, Inc. (hereinafter "NASD");
and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds designated on
Schedule A, as it may be amended from time to time by mutual written agreement
on behalf of the Account to fund the aforesaid Contracts, and the Underwriter is
authorized to sell such shares to the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company and
the Underwriter agree as follows:
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ARTICLE I. Sale of Fund Shares
1.1 The Underwriter agrees to sell to the Company those shares of the Funds
which the Company orders on behalf of the Account, executing such orders on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of the order for the shares of the Designated Funds.
1.2 The Fund agrees to make shares available for purchase at the applicable
net asset value per share by the Company and the Account on those days on which
the Fund calculates its net asset value pursuant to rules of the SEC, and the
Fund shall use reasonable efforts to calculate such net asset value on each day
which the New York Stock Exchange ("NYSE") is open for trading. Notwithstanding
the foregoing, the Board of Directors of the Fund (hereinafter the "Board") may
refuse to sell shares of any Funds to any person, or suspend or terminate the
offering of shares of any Funds if such action is required by law or by
regulatory authorities having jurisdiction, or is, in the sole discretion of the
Board acting in good faith and in light of their fiduciary duties under federal
and any applicable state laws, necessary in the best interests of the
shareholders of such Funds.
1.3 The Fund agrees to redeem, on the Company's request, any full or
fractional shares of the Designated Funds held by the Company, ordinarily
executing such requests on a daily basis at the net asset value next computed
after receipt by the Fund or its designee of the request for redemption, except
that the Fund reserves the right to suspend the right of redemption or postpone
the date of payment or satisfaction upon redemption consistent with Section
22(e) of the Investment Company Act of 1940 (" 1940 Act") and any rules
thereunder, and in accordance with the procedures and policies of the Fund as
described in the then current prospectus.
1.4 For purposes of Sections 1.1 and 1.3, the Company shall be the agent of
the Fund for receipt of purchase and redemption orders from the Account and
receipt by such designee shall constitute receipt by the Fund; provided that the
Company receives the order on any Business Day by 4:00 p.m. EST or such other
time that the NYSE is open until (Trade Date) and the Fund or its agent receives
notice of such order by 8:30 a.m. EST on the next following Business Day (Trade
Date + 1). "Business Day" shall mean any day on which the NYSE is open for
trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC.
1.5 The Company agrees to purchase and redeem the shares of each Fund
offered by the then current prospectus of the Fund and in accordance with the
provisions of such prospectus.
1.6 The Company shall pay for Fund shares on the next Business Day after an
order to purchase Fund shares is received (Trade Date + 1). Payment shall be in
federal funds transmitted by wire by 11:00 a.m. E.S.T. time. If payment in
federal funds for any purchase is not received or is received by the Fund after
3,00 p.m. E.S.T. on such Business Day, the Company shall promptly, upon the
Fund's request, reimburse the Fund for any charges, costs, fees, interest or
other expenses incurred by the Fund in connection with any advances to, or
borrowings or overdrafts by, the Fund, or any similar expenses incurred by the
Fund, as a result of portfolio transactions effected by the Fund based upon such
purchase request. If the Fund does not receive the funds by the designated time
the Underwriter reserves the right to cancel the
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purchase and the Company will be responsible for any losses incurred.
Underwriter or its agent will transmit proceeds for redemption requests by 1:00
p.m. on Trade Date + 1.
1.7 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account.
1.8 The Fund shall furnish notice to the Company of any income, dividends
or capital gain distributions payable on the Fund's shares. The Company hereby
elects to receive all such income, dividends, and capital gain distributions as
are payable on Designated Fund shares in additional shares of such Funds. The
Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Fund shall notify
the Company of the number of shares so issued as payment of such dividends and
distributions.
1.9 The Fund shall make the net asset value per share for each Fund
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated (normally by 6:30 p.m. E.S.T. ) and
shall use its best efforts to make such net asset value per share available by 7
p.m. E.S.T.
1.10 The Parties hereto acknowledge that the arrangement contemplated by
this Agreement is not exclusive; the Fund's shares may be sold to other
investors and the cash value of the Contracts may be invested in other
investment companies.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts and any
certificates thereunder are not registered because they are properly exempt from
registration under the Securities Act of 1933 ("1933 Act") or will be offered
exclusively in transactions that are properly exempt from registration under the
1933 Act. The Company further represents and warrants that the Contracts and any
certificates thereunder will be issued and sold in compliance in all material
respects with all applicable federal and state laws. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law, that it has legally and validly established
the Account prior to any issuance or sale thereof as a segregated asset account
under [_____________________] insurance laws, and that it has not registered the
Account in proper reliance upon an exclusion from registration under the 0000
Xxx.
2.2 The Underwriter makes no representations as to whether any aspect of
the Fund's operations, including but not limited to, investment policies, fees,
and expenses, complies with the insurance and other applicable laws of the
various states.
2.3 The Underwriter represents that the Fund is lawfully organized and
validly existing under the laws of the State of Maryland and it does and will
comply in all material respects with the 1940 Act. The Underwriter further
represents that the Fund is or will be
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qualified 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 provisions) and that it will notify the Company
immediately upon having a reasonable basis for believing that it has ceased to
so qualify or that it might not so qualify in the future.
2.4 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in accordance with the laws of the State of Maryland and any applicable state
and federal securities laws.
2.5 The Underwriter represents and warrants that all of its directors,
officers, employees, and other individuals or entities dealing with the money
and/or securities of the Fund are and shall continue to be at all times covered
by a blanket fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than the minimum coverage as required currently by Rule l7g-1 of
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.
2.6 The Company represents and warrants that all of its directors,
officers, employees, and investment advisers dealing with the money and/or
securities of the Fund are covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund, in an amount not less than $5 million. The
aforesaid bond includes coverage for larceny and embezzlement and is issued by a
reputable bonding company. The Company agrees to make all reasonable efforts to
see that this bond or another bond containing these provisions is always in
effect, and agrees to notify the Fund and the Underwriter in the event that such
coverage no longer applies.
ARTICLE III. Voting
3.1 The Company reserves the right to vote Fund shares held in the Account
in its own right, to the extent permitted by law.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the
Underwriter or its designee, each piece,of sales literature or other promotional
material that the Company develops or uses and in which the Fund or the Adviser
or the Underwriter is named, at least fifteen calendar days prior to its use. No
such material shall be used if the Underwriter or its designee reasonably object
to such use within fifteen calendar days after receipt of such material. The
Underwriter or its designee reserves the right to reasonably object to the
continued use of such material, and no such material shall be used if the Fund
or its designee so object.
4.2 The Company shall not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus or SAI for the Fund
shares, as such registration statement and prospectus or SAI may
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be amended or supplemented from time to time, or in reports or proxy statements
for the Fund, or in sales literature or other promotional material approved by
the Fund or its designee or by the Underwriter, except with the permission of
the Fund or the Underwriter or the designee of either.
4.3 The Underwriter or its designee shall furnish, or shall cause to be
furnished, to the Company, each piece of sales literature or other promotional
material that it develops or uses and in which the Company, and/or its Account,
is named at least fifteen calendar days prior to its use. No such material shall
be used if the Company reasonably objects to such use within fifteen calendar
days after receipt of such material. The Company reserves the right to
reasonably object to the continued use of such material and no such material
shall be used if the Company so objects.
4.4. The Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, the Account,
the Contracts, or any certificates thereunder other than the information or
representations contained in the Contracts or any certificates thereunder, as
such may be amended or supplemented from time to time, or in published reports
for the Account which are in the public domain or approved by the Company for
distribution to Contract owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission of
the Company.
4.5 The Underwriter will provide to the Company at least one complete copy
of all of the Fund's prospectuses, SAI's, reports, proxy statements, and all
amendments to any of the above, that relate to the Fund or its shares.
4.6 The Company will provide to the Underwriter at least one complete copy
of all reports, solicitations for voting instructions, sales literature and
other promotional materials, applications for exemptions, if any, and all
amendments to any of the above, that relate to the Contracts or the Account.
4.7 For purposes of this Article IV, the phrase "sales literature and other
promotional materials" includes, but is not limited to, any of the following
that refer to the Fund or any affiliate of the Fund: 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), sales literature
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, 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, and registration statements, prospectuses,
SAI's, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Funds.
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ARTICLE V. Fees and Expenses
5.1 The Underwriter shall pay no fee or other compensation to the Company
under this Agreement. All expenses incident to performance by the Underwriter
under this Agreement shall be paid by the Underwriter.
5.2 All expenses incident to performance by the Company under this
Agreement shall be paid by the Company.
ARTICLE VI. Indemnification
6.1 Indemnification By the Company
6.1 (a). The Company agrees to indemnify and hold harmless the Fund
and the Underwriter and its affiliates, which may perform some of the duties
under this Agreement and each of their officers and directors and each person,
if any, who controls the Fund or the Underwriter within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8, 1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or litigation (including legal and other expenses), to which the Indemnified
Parties may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements arise out of or relate to the
representations and warranties contained herein, or the negligent act or
omission in the performance of the duties and obligations of the Company
hereunder, or which arise out of bad faith or willful misconduct as limited by
and in accordance with the provisions of Sections 6. 1 (b) and 6. 1 (c) hereof
6.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of 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 its obligations or duties under this Agreement.
6.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against an Indemnified Party, the Company shall be entitled to participate, at
its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action and to settle the claim at its own expense; provided,
however, that no such settlement shall, without the Indemnified Parties' written
consent, include any factual stipulation referring to the Indemnified Parties or
their conduct. After notice from the Company to such party of the Company's
election to assume
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the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Company will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
6.2 Indemnification by the Underwriter
6.2(a), The Underwriter agrees to indemnify and hold harmless the
Company and each of it directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 7.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Underwriter) or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements arise out of or relate to the representations and
warranties contained herein, or the negligent act or omission in the performance
of the duties and obligations of the Underwriter hereunder, or which arise out
of bad faith or willful misconduct as limited by and in accordance with the
provisions of Sections 6.2(b) and 6.2(c) hereof.
6.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
to which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance or such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
the Company or the Account, whichever is applicable.
6.2(c). The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriter of
any such claim shall not relieve the Underwriter from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Party, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. The Underwriter also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action and to settle the claim at its own expense;
provided, however, that no such settlement shall, without the Indemnified
Parties' written consent, include any factual stipulation referring to the
Indemnified Parties or their conduct. After notice from the Underwriter to such
party of the Underwriter's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Underwriter will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation.
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6.2(d). The Company agrees promptly to notify the Underwriter of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of the Account.
ARTICLE VII. Applicable Law
7.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Maryland.
7.2 This Agreement shall be subject to the provisions of the 1933, 1934 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE VIII. Termination
8.1 This Agreement shall continue in full force and effect until the first
to occur of:
(a) termination by any party, for any reason with respect to some or
all Funds, by three (3) months' advance written notice delivered
to the other party; or
(b) termination by the Company by written notice to the Underwriter
with respect to the Fund based upon the Company's determination
that shares of the Fund are not reasonably available to meet the
requirements of the Contracts; provided that such termination
shall apply only to the Fund not reasonably available; or
(c) termination by the Company by written notice to the Underwriter
in the event any of the Fund's shares are not registered, 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
(d) termination by the Underwriter in the event that formal
administrative proceedings are instituted against the Company by
the NASD, the SEC, the Insurance Commissioner or like official of
any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the
Contracts or certificates, the operation of any Account, or the
purchase of the Fund shares; provided, however, that the
Underwriter determines in its sole judgment exercised in good
faith, that any such administrative proceedings will have a
material adverse effect upon the ability of the Company to
perform its obligations under this Agreement; or
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(e) termination by the Company in the event that formal
administrative proceedings are instituted against the Fund or
Underwriter by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body, provided,
however, that the Company determines in its sole judgment
exercised in good faith, that any such administrative proceedings
will have a material adverse effect upon the ability of the
Underwriter to perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the Underwriter
with respect to any Fund in the event that such Fund ceases to
qualify as a Regulated Investment Company under Subchapter M or
if the Company reasonably believes that such Designated Fund may
fail to so qualify; or
(g) termination by the Underwriter by written notice to the Company
in the event that the Contract fails to meet the qualifications
specified in Article II hereof, or if the Underwriter reasonably
believes that the Contract may fail to so qualify; or
(h) termination by the Underwriter by written notice to the Company,
if the Underwriter 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
(i) termination by the Company by written notice to the Underwriter,
if the Company shall determine, in its sole judgment exercised in
good faith, that the Underwriter 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.
8.2 Notwithstanding any termination of this Agreement, the Underwriter
shall, at the option of the Company, continue to make available additional
shares of the Fund pursuant to the terms and conditions of this Agreement, for
all Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, the owners of
the Existing Contracts may be permitted to reallocate investments in the Fund,
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 8.2 shall not apply to any termination under Section 8.1(g) of
this Agreement.
8.3 Notwithstanding any termination of this Agreement, each party's
obligation under Article VI to indemnify the other parties shall survive.
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ARTICLE IX. 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.
If to the Company:
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Attention:
--------------------------------
If to Underwriter:
X. Xxxx Price Investment Services
00000 Xxx Xxx Xxxxxxxxx
Xxxxxx Xxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Copy to: Xxxxx X. Xxxxxxx, Esq
ARTICLE X. Miscellaneous
10.1 Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party until such time as such information may come into the
public domain.
10.2 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.
10.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.4 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.
10.5 Each party hereto 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.
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10.6 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,
10.7 This Agreement or any of the rights and obligations hereunder may not
be assigned by any xxxxx without the prior written consent of all parties
hereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
as of the date specified below.
COMPANY: [COMPANY]
By its authorized officer
By:
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Title:
---------------------------------
Date:
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UNDERWRITER: X. XXXX PRICE INVESTMENT SERVICES, INC.
By its authorized officer
By:
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Title:
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Date:
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SCHEDULE A
Name of Separate Account Designated Funds
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