Exhibit 8(a)
AMENDED AND RESTATED PARTICIPATION AGREEMENT
AMENDED AND RESTATED PARTICIPATION AGREEMENT (the "Agreement") made by and
between XXXXXXX VARIABLE LIFE INVESTMENT FUND (the "Fund"), a Massachusetts
business trust created under a Declaration of Trust dated March 15, 1985, as
amended, with a principal place of business in Boston, Massachusetts, and MUTUAL
OF AMERICA LIFE INSURANCE COMPANY, a New York corporation (the "Company"), with
a principal place of business in New York, New York on behalf of each of its
Separate Account No. 1, Separate Account No. 2, Separate Account No. 3 and any
other separate account of the Company as designated by the Company from time to
time, upon written notice to the Fund in accordance with Paragraph 8 herein
(together, the "Account").
WHEREAS, the Fund acts as the investment vehicle for the separate accounts
established for variable life insurance policies and variable annuity contracts
(collectively referred to herein as "Variable Insurance Products") to be offered
by insurance companies which have entered into participation agreements
substantially identical to this Agreement ("Participating Insurance Companies")
and their affiliated insurance companies; and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares of beneficial interest ("Shares"), and additional series of
Shares may be established, each designated a "Portfolio" and representing the
interest in a particular managed portfolio of securities; and
WHEREAS, the Company has requested that the Participation Agreement
("Prior Agreement"), dated December 30, 1993, among the Fund, the Company and
The American Life Insurance Company of New York ("American Life") be amended and
restated as of the date of sale of American Life by the Company, its indirect
parent corporation; and
WHEREAS, the Parties desire to evidence their agreement as to certain
other matters,
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
1. Duty of Fund to Sell.
The Fund shall make its Shares available for purchase at the applicable
net asset value per Share by the Company for the Account on those days on which
the Fund calculates its net asset value pursuant to rules of the Securities and
Exchange Commission; provided, however, that the Trustees of the Fund 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, in the sole discretion of the
Trustees, necessary in the best interest of the shareholders of any Portfolio.
For purposes of this Section 1, the Company shall be the designee of the Fund
for receipt of orders, and receipt by the Company of an order shall constitute
receipt by the Fund as long as the Fund receives notice of such order by 9:30
a.m. New York time on the next following Business Day.
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2. Requirement to Execute Participation Agreement; Requests.
Each Participating Insurance Company shall, prior to purchasing Shares in
the Fund, execute and deliver a participation agreement in a form substantially
identical to this Agreement.
The Fund shall make available, upon written request from the Participating
Insurance Company given in accordance with Paragraph 8, to each Participating
Insurance Company which has executed an Agreement and which Agreement has not
been terminated pursuant to Paragraph 6(i) a list of all other Participating
Insurance Companies, and (ii) a copy of the Agreement as executed by any other
Participating Insurance Company.
The Fund shall also make available upon request to each Participating
Insurance Company which has executed an Agreement and which Agreement has not
been terminated pursuant to Paragraph 6, the net asset value of any Portfolio of
the Fund as of any date upon which the Fund calculates the net asset value of
its Portfolios for the purpose of purchase and redemption of Shares.
3. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Fund and each of
its Trustees and officers and each person, if any, who controls the Fund within
the meaning of Section 15 of the Securities Act of 1933 (the "Act") against any
and all losses, claims, damages, liabilities or litigation (including legal and
other expenses), arising out of the acquisition of any Shares by any person, to
which the Fund or such Trustees, officers or controlling person may become
subject under the Act, under any other statute, at common law or otherwise,
which (i) may be based upon any wrongful act by the Company, any of its
employees or
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representatives, any affiliate of or any person acting on behalf of the Company
or a principal underwriter of its insurance products, or (ii) may be based upon
any untrue statement or alleged untrue statement of a material fact contained in
a registration statement or prospectus covering Shares or any amendment thereof
or supplement thereto 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 a statement or omission was made in reliance upon
information furnished to the Fund by the Company, or (iii) may be based on any
untrue statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering insurance products sold by the
Company or any insurance company which is an affiliate thereof, or any
amendments or supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statement or statements therein not misleading, unless such statement or
omission was made in reliance upon information furnished to the Company or such
affiliate by or on behalf of the Fund; provided, however, that in no case (i) is
the Company's indemnity in favor of a Trustee or officer or any other person
deemed to protect such Trustee or officer or other person against any liability
to which any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of his duties or
by reason of his reckless disregard of obligations and duties under this
Agreement or (ii) is the Company to be liable under its indemnity agreement
contained in this Paragraph 3 with respect to
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any claim made against the Fund or any person indemnified unless the Fund or
such person, as the case may be, shall have notified the Company in writing
pursuant to Paragraph 8 within a reasonable time after the summons or other
first legal process giving information of the nature of the claims shall have
been served upon the Fund or upon such person (or after the Fund or such person
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 has to the Fund or any person against whom such action is
brought otherwise than on account of its indemnity agreement contained in this
Paragraph 3. The Company shall be entitled to participate, at its own expense,
in the defense, or, if it so elects, to assume the defense of any suit brought
to enforce any such liability, but, if it elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the Fund,
to its officers and Trustees, or to any controlling person or persons, defendant
or defendants in the suit. In the event that the Company elects to assume the
defense of any such suit and retain such counsel, the Fund, such officers and
Trustees or controlling person or persons, defendant or defendants in the suit,
shall bear the fees and expenses of any additional counsel retained by them,
but, in case the Company does not elect to assume the defense of any such suit,
the Company will reimburse the Fund, such officers and Trustees or controlling
person or persons, defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by them. The Company agrees promptly to
notify the Fund pursuant
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to Paragraph 8 of the commencement of any litigation or proceedings against it
in connection with the issue and sale of any Shares.
(b) The Fund agrees to indemnify and hold harmless the Company and each of
its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
it or such directors, officers or controlling person may become subject under
the Act, under any other statute, at common law or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based upon any wrongful
act by the Fund, any of its employees or representatives or a principal
underwriter of the Fund, or (ii) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement or prospectus covering Shares or any amendment thereof or supplement
thereto 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 unless such statement or omission was made in reliance upon
information furnished to the Fund by the Company or (iii) may be based on any
untrue statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering insurance products sold by the
Company, or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished to the
Company by
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or on behalf of the Fund; provided, however, that in no case (i) is the Fund's
indemnity in favor of a director or officer or any other person deemed to
protect such director or officer or other person against any liability to which
any such person would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of his duties or by reason of his
reckless disregard of obligations and duties under this Agreement or (ii) is the
Fund to be liable under its indemnity agreement contained in this Paragraph 3
with respect to any claims made against the Company or any such director,
officer or controlling person unless it or such director, officer or controlling
person, as the case may be, shall have notified the Fund in writing pursuant to
Paragraph 8 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 it or upon such director, officer or controlling person (or after the
Company or such director, officer or controlling person shall have received
notice of such service on any designated agent), but failure to notify the Fund
of any claim shall not relieve it from any liability which it may have to the
person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this Paragraph. The Fund will be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any such liability, but if the Fund
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Company, its directors, officers or controlling
person or persons, defendant
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or defendants, in the suit. In the event the Fund elects to assume the defense
of any such suit and retain such counsel, the Company, its directors, officers
or controlling person or persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel retained by them, but, in
case the Fund does not elect to assume the defense of any such suit, it will
reimburse the Company or such directors, officers or controlling person or
persons, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Fund agrees promptly to notify the
Company pursuant to Paragraph 8 of the commencement of any litigation or
proceedings against it or any of its officers or Trustees in connection with the
issuance or sale of any Shares.
4. Procedure for Resolving Irreconcilable Conflicts.
(a) The Trustees of the Fund will monitor the operations of the Fund for
the existence of any material irreconcilable conflict among the interests of all
the contract holders and policy owners of Variable Insurance Products (the
"Participants") of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise, among other things, from: (a) an
action by any state insurance regulatory authority; (b) a change in applicable
insurance laws or regulations; (c) a tax ruling or provision of the Internal
Revenue Code or the regulations thereunder; (d) any other development relating
to the tax treatment of insurers, contract holders or policy owners or
beneficiaries of Variable Insurance Products; (e) the manner in which the
investments of any Portfolio are being managed; (f) a difference in
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voting instructions given by variable annuity contract holders, on the one hand,
and variable life insurance policy owners, on the other hand, or by the contract
holders or policy owners of different participating insurance companies; or (g)
a decision by an insurer to override the voting instructions of Participants.
(b) The Company will be responsible for reporting any potential or
existing conflicts to the Trustees of the Fund. The Company will be responsible
for assisting the Trustees in carrying out their responsibilities under this
Paragraph 4(b) and Paragraph 4(a), by providing the Trustees with all
information reasonably necessary for the Trustees to consider the issues raised.
The Fund will also request its investment adviser to report to the Trustees any
such conflict which comes to the attention of the adviser.
(c) If it is determined by a majority of the Trustees of the Fund, or a
majority of its disinterested Trustees, that a material irreconcilable conflict
exists involving the Company, the Company shall, at its expense, and to the
extent reasonably practicable (as determined by a majority of the disinterested
Trustees), take whatever steps are necessary to eliminate the irreconcilable
material conflict, including withdrawing the assets allocable to some or all of
the separate accounts from the Fund or any Portfolio and reinvesting such assets
in a different investment medium, including another Portfolio of the Fund,
offering to the affected Participants the option of making such a change or
establishing a new funding medium including a registered investment company.
For purposes of this Paragraph 4(c), the Trustees, or the disinterested
Trustees, shall determine whether or not any proposed
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action adequately remedies any irreconcilable material conflict. In the event of
a determination of the existence of an irreconcilable material conflict, the
Trustees shall cause the Fund to take such action, such as the establishment of
one or more additional Portfolios, as they in their sole discretion determine to
be in the interest of all shareholders and Participants in view of all
applicable factors, such as cost, feasibility, tax, regulatory and other
considerations. In no event will the Fund be required by this Paragraph 4(c) to
establish a new funding medium for any variable contract or policy.
The Company shall not be required by this Paragraph 4(c) to establish a
new funding medium for any variable contract or policy if an offer to do so has
been declined by a vote of a majority of the Participants materially adversely
affected by the material irreconcilable conflict. The Company will recommend to
its Participants that they decline an offer to establish a new funding medium
only if the Company believes it is in the best interest of the Participants.
(d) The Trustees' determination of the existence of an irreconcilable
material conflict and its implications promptly shall be communicated to all
Participating Insurance Companies by written notice thereof delivered or mailed,
first class postage prepaid.
5. Voting Privileges.
The Company shall be responsible for assuring that its separate account or
accounts participating in the Fund shall use a calculation method of voting
procedures substantially the same as the
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following: those Participants permitted to give instructions and the number of
Shares for which instructions may be given will be determined as of the record
date for the Fund shareholders' meeting, which shall not be more than 90 days
before the date of the meeting. Whether or not voting instructions are actually
given by a particular Participant, all Fund shares held in any separate account
or sub-account thereof and attributable to policies will be voted for, against,
or withheld from voting on any proposition in the same proportion as (i) the
aggregate record date cash value held in such sub-account for policies giving
instructions, respectively, to vote for, against, or withhold votes on such
proposition, bears to (ii) the aggregate record date cash value held in the
sub-account for all policies for which voting instructions are received.
Participants continued in effect under lapse options will not be permitted to
give voting instructions. Shares held in any other insurance company general or
separate account or sub-account thereof will be voted in the proportion
specified in the second preceding sentence for shares attributable to policies.
6. Duration and Termination.
This Agreement shall remain in force one year from the date of its
execution (such date and any anniversary of such date being hereinafter called a
"Renegotiation Date"), and from year to year thereafter provided that neither
the Company nor the Fund shall have given written notice to the other within
thirty (30) days prior to a Renegotiation Date that it desires to renegotiate
the amount of contribution to capital due hereunder ("Renegotiation
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Notice"). If a Renegotiation Notice is properly given as aforesaid and the Fund
and the Company shall fail, within sixty (60) days after the Renegotiation Date,
either to enter into an amendment to this Agreement or a written acknowledgment
that the Agreement shall continue in effect, this Agreement shall terminate as
of the one hundred twentieth day after such Renegotiation Date. If this
Agreement is so terminated, the Fund may, at any time thereafter, automatically
redeem the Shares of any Portfolio held by a Participating Shareholder. This
Agreement may be terminated at any time, at the option of either of the Company
or the Fund, when neither the Company, any insurance company nor the separate
account or accounts of such insurance company which is an affiliate thereof
which is not a Participating Insurance Company own any Shares of the Fund or may
be terminated by either party to the Agreement upon a determination by a
majority of the Trustees of the Fund, or a majority of its disinterested
Trustees, following certification thereof by a Participating Insurance Company
given in accordance with Paragraph 8 that an irreconcilable conflict exists
among the interests of (i) all contract holders and policy holders of Variable
Insurance Products of all separate accounts or (ii) the interests of the
Participating Insurance Companies investing in the Fund.
7. Compliance.
The Fund will comply with the provisions of Section 4240(a) of the New
York Insurance Law.
Each Portfolio of the Fund will comply with the provisions of Section
817(h) of the Internal Revenue Code of 1986, as amended
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(the "Code"), relating to diversification requirements for variable annuity,
endowment and life insurance contracts. Specifically, each Portfolio will comply
with either (i) the requirement of Section 817(h)(1) of the Code that its assets
be adequately diversified, or (ii) the "Safe Harbor for Diversification"
specified in Section 817(h)(2) of the Code, or (iii) the diversification
requirement of Section 817(h)(1) of the Code by having all or part of its assets
invested in U.S. Treasury securities which qualify for the "Special Rule for
Investments in United States Obligations" specified in Section 817(h)(3) of the
Code.
The provisions of Paragraphs 4 and 5 of this Agreement shall be
interpreted in a manner consistent with any Rule or order of the Securities and
Exchange Commission under the Investment Company Act of 1940, as amended,
applicable to the parties hereto.
No Shares of any Portfolio of the Fund may be sold to the general public.
8. 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 Fund:
Xxxxxxx Variable Life Investment Fund
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn.: Secretary
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If to the Company:
The American Life Insurance Company of New York
c/o Mutual of America Life Insurance Company,
as servicer
000 Xxxx Xxxxxx Xxx Xxxx,
Xxx Xxxx 00000
(000) 000-0000
Attn.: General Counsel
9. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
10. Miscellaneous.
The name "Xxxxxxx Variable Life Investment Fund" is the designation of
the Trustees for the time being under a Declaration of Trust dated March 15,
1985, as amended, and all persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Trustees, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund. No Portfolio shall
be liable for any obligations properly attributable to any other Portfolio.
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. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
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11. Entire Agreement.
This Agreement incorporates the entire understanding and agreement among
the parties hereto, and supersedes any and all prior understandings and
agreements between the parties hereto with respect to the subject matter hereof.
In particular, this Agreement supersedes and amends the Prior Agreement.
American Life concurrently herewith has entered into an agreement with the Fund
similar to this Agreement and, therefore, has agreed that the Prior Agreement is
superseded and amended.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and behalf by its duly authorized representative as
of the 28th day of February, 2001.
XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By: Xxxxx Xxxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: President
THE MUTUAL OF AMERICA LIFE
INSURANCE COMPANY
By: Xxxxxxx Xxxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Senior Executive Vice
President and CFO
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SHARED FUNDING AGREEMENT FOR SEPARATE ACCOUNTS
1.0 SHARED FUNDING AGREEMENT
1.1 This Agreement, dated as of February 28, 2001, between Mutual of
America Life Insurance Company, a New York mutual life insurance
corporation with principal offices at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
("Mutual"), and Xxxxxxx Distributors, Inc., with principal offices at 0000
Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 ("Xxxxxxx"), which serves as
principal underwriter to Xxxxxxx Variable Series, Inc., a registered
investment company (the "Fund").
1.2 Mutual has requested that the Shared Funding Agreement for Separate
Account No. 2, dated November 7, 1990, between Mutual and Xxxxxxx, as
subsequently amended to include Mutual's indirect, wholly owned
subsidiary, The American Life Insurance Company of New York ("American
Life") as a party, be amended and restated as of the date of sale of
American Life by Mutual.
1.3 In consideration of the promises, representations, warranties,
covenants, agreements and conditions contained herein, and in order to set
forth the terms and conditions of the transactions contemplated hereby and
the mode of carrying the same into effect, and intending to be legally
bound, Mutual and Xxxxxxx agree to the provisions set forth below.
2.0 THE VARIABLE CONTRACTS AND THE SEPARATE ACCOUNTS
2.1 Mutual shall maintain variable annuity contracts and variable life
insurance policies (such contracts and policies, the "Contracts") designed
to provide, under current law, the benefits of a tax-deferred accumulation
of income for retirement and other purposes and/or life insurance
protection.
2.2 Purchase payments for Contracts may be allocated to Mutual's Separate
Accounts Xx. 0, Xx. 0 and No. 3, and to such additional Mutual separate
accounts specified by Mutual from time to time by written notice to
Xxxxxxx (the "Separate Accounts"), each a "separate account" established
under New York Insurance Law and each Separate Account registered with the
Securities and Exchange Commission (the "SEC") as a unit investment trust
under the Investment Company Act of 1940 ("1940 Act") when required by
federal securities laws, which Separate Accounts invest in shares of
open-end management investment companies.
2.3 One of the open-end management companies is the Fund, an open-end
management investment company with separate portfolios, registered under
the 1940 Act. Each portfolio is a separate investment portfolio with
distinct investment objectives.
2.4 Mutual will offer one of the portfolios of the Fund, specifically the
Xxxxxxx Social Balanced Portfolio (the "Portfolio"), through the Separate
Accounts to its policy and contract owners and, where applicable, their
participants (together, "Contract Owners").
2.5 Mutual will use the name "Xxxxxxx Social Balanced Fund" with respect
to the Separate Accounts, the name "Xxxxxxx Variable Series, Inc." with
respect to the Fund and the names "Xxxxxxx" or "Xxxxxxx Social Balanced
Portfolio" where appropriate in its marketing and sales literature when
referring to investments in the Portfolio.
2.5.1 Mutual will use its best efforts to market and promote its
Contracts.
2.5.2 In marketing its Contracts, Mutual will comply with all applicable
state and federal laws. Mutual and its agents shall make no
representations or warranties concerning the Fund or Portfolio
shares except those contained in the then current prospectuses of
the Fund and in the Fund's current printed sales literature. Copies
of all advertising and sales literature describing or concerning the
Fund which is prepared by Mutual or its agents for use in marketing
its Contracts will be sent to Xxxxxxx for approval prior to use.
Xxxxxxx will give its approval or comments as soon as is reasonably
practical, but in no event later than 7 business days after receipt.
Mutual shall be responsible for compliance with any state or federal
filing or review requirements concerning advertising and sales
literature.
2.5.3 Mutual and its agents will not oppose voting recommendations from
Xxxxxxx or the Fund's Board of Directors or interfere with the
solicitation of proxies for the Fund shares held by Mutual for
Contract Owners, unless Mutual deems such recommendations
detrimental to it or to its Contract Owners. Xxxxxxx agrees to
prepare and print any proxy statements required for the Fund's
shareholder meetings, and to provide sufficient number of copies of
such proxy statements to Mutual. Mutual agrees to timely distribute
such proxy statements to its Contract Owners. Mutual agrees to
provide pass-through voting privileges to all Contract Owners and to
assure that its Separate Accounts participating in the Fund
calculate voting privileges in a manner consistent with all other
separate accounts of any insurance company investing in the Fund, as
required by the exemptive order referenced in Section 3.2.3 of this
Agreement.
2.5.4 Mutual will be responsible for reporting to the Fund's Board of
Directors any potential or existing conflicts among the interests of
the Contract Owners of all its Separate Accounts investing in the
Fund, and to assist the Board by providing it with all information
reasonably necessary for the Board to consider any issues raised.
Mutual will be responsible for taking remedial action as may be
necessary with respect to its Separate Accounts in the event of a
Board determination of an irreconcilable material conflict and to
bear the cost of such remedial action. Other relevant insurance
companies will be responsible for taking similar remedial action
with respect to their respective separate accounts and will bear the
costs of such actions.
2.6 Mutual will bear the costs of, and have the primary responsibility
for:
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2.6.1 Registering the Contracts and the Separate Accounts with the
Commission when required;
2.6.2 Developing all policy forms, application forms, confirmations and
other administrative forms or documents and filing such of these as
are necessary to comply with the requirements of all insurance laws
and regulations in each state in which the Contracts are offered;
2.6.3 Administration of the Contracts and the Separate Accounts, including
all Contract Owner service and communication activities;
2.6.4 Preparing and approving all marketing and sales literature involving
the sale of the Contracts under which allocations may be made to
Separate Account funds that invest in shares of the Portfolio;
2.6.5 Printing (from camera ready copy provided to Mutual by Xxxxxxx) and
distributing to Contract Owners copies of the current prospectuses,
statements of additional information (as requested by Contract
Owners) and periodic reports for the Separate Accounts and the Fund.
Mutual is hereby authorized to reproduce in any manner whatsoever,
at a cost borne by Mutual, the Portfolio prospectus, statement of
additional information, and annual and semi-annual reports;
2.6.6 Preparing and filing any reports or other filings as may be required
under state insurance laws or regulations with respect to the
Contracts or Separate Accounts;
2.6.7 Providing Xxxxxxx with any and all amendments to the registration
statement of the Separate Accounts as they are filed with the SEC,
and when such registration statement references the Portfolio, the
Fund or Xxxxxxx, providing Xxxxxxx an opportunity to comment on same
prior to the effective date.
3.0 THE PORTFOLIO
3.1 The Fund and Xxxxxxx shall make available shares of the Portfolio as
an underlying investment medium for the Contracts.
3.2 The Fund shall bear the costs of, and shall have, or shall cause the
Fund and the Portfolio to assume, the primary responsibility for:
3.2.1 Registering the Fund with the SEC, including a separate prospectus
for the Portfolio that does not reference the other portfolios of
the Fund. The costs of printing and distributing such prospectus to
Contract Owners shall be borne by Mutual as provided in Section
2.6.5 above;
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3.2.2 Preparing, producing and maintaining the effectiveness of such
registration statements for the Fund as are required under federal
and state securities law, and clearing such registration statements
through the SEC and pursuant to the securities laws and regulations
in each state in which the contracts are offered;
3.2.3 Maintaining and complying with the terms of an order for exemptive
relief pursuant to which the SEC granted appropriate exemptive
relief from the relevant provisions of the 1940 Act to permit Mutual
and other insurance companies to utilize the Fund as an underlying
investment medium for their variable annuity and variable life
insurance contracts;
3.2.4 Operating and maintaining the Fund in accordance with applicable
law, including the diversification standards of the Internal Revenue
Code of 1986 applicable to variable annuity contracts;
3.2.5 Preparing and filing any reports or other filings as may be required
with respect to the Fund under federal or state securities laws;
3.2.6 Using its best efforts to provide Mutual with the daily net asset
values of the Portfolio by 5:00 p.m. Eastern Time on each day the
New York Stock Exchange is open (or within one hour after closing on
each day the New York Stock Exchange closes early);
3.2.7 Providing Mutual with camera-ready copy necessary for the printing
of the periodic shareholder reports and the prospectus for the
Portfolio;
3.2.8 Providing Mutual with monthly performance data by the 6th business
day after the close of a month and with such information and data
related to the portfolio characteristics, holdings, and performance
of the Portfolio, as may reasonably be requested from time to time;
3.2.9 Informing Mutual in writing whenever the Portfolio declares an
income dividend or a capital gain distribution, specifying the
amount per unit, the declaration date, the ex-dividend date, and the
payment date.
3.2.10 Providing Mutual with drafts of financial statements (semi-annual
and annual) no later than 4 weeks after the close of June 30 and
December 31, respectively; and
3.2.11 Providing Mutual with any and all amendments to the Fund's
registration statement and financial statements as they are filed
with the SEC, and where such registration statement references
Mutual, providing Mutual an opportunity to comment on same prior to
the effective date and providing such material on a timely basis for
inclusion in any federal or state securities law filing of Mutual's
Separate Accounts.
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3.3 The Fund or Xxxxxxx shall maintain records in accordance with the 1940
Act and other statutes, rules and regulations applicable to the Fund's
operation in connection with the performance of its duties. Mutual shall
have the right to access such records, upon reasonable notice and during
business hours, in order to respond to regulatory requirements, inquiries,
complaints or judicial proceedings. Fund and Xxxxxxx records of all
transactions with respect to the Contracts shall be retained for a period
of not less than six (6) years from each transaction.
3.4 The parties or their duly authorized independent auditors have the
right under this Agreement to perform on-site audits of records pertaining
to the Contracts and the Fund, at such frequencies as each shall
determine, upon reasonable notice and during normal business hours. At the
request of the other, each will make available to the other's auditors,
and/or representatives of the appropriate regulatory agencies, all
requested records, data, and access to operating procedures.
4.0 COST AND EXPENSES
4.1 Except for costs and expenses for which indemnification is required
pursuant to Section 7.19 or Section 7.20 or as otherwise agreed in writing
by the parties in specific instances or, as set forth herein, the parties
shall each pay their respective costs and expenses incurred by them in
connection with this Agreement.
5.0 TERM OF AGREEMENT
5.1 The term of this Agreement shall be indefinite unless terminated
pursuant to Section 6 of this Agreement.
6.0 TERMINATION
6.1 This Agreement will terminate:
6.1.1 At the option of any party upon 90 day's prior written notice to the
other parties. If a party notifies the other party that it intends
to terminate, or is terminating, this Agreement, the affected party
shall immediately file with the SEC such documents, if any, as are
necessary to permit the offering of shares of the Portfolio to
Contract Owners to be discontinued, subject to state insurance law
requirements applicable to Contracts outstanding as of the date of
termination; or
6.1.2 Upon assignment of this Agreement unless the assignment is made with
the written consent of the other party; or
6.1.3 In the event of termination of this Agreement pursuant to this
Section 6.0, the provisions of Sections 4.0 and 7.0 shall survive
such termination.
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7.0 GENERAL PROVISIONS
7.1 This Agreement is the complete and exclusive statement of the
agreement between the parties as to the subject matter hereof, which
supersedes all proposals or agreements, oral or written, and all other
communications between the parties related to the subject matter of this
Agreement. In particular, this Agreement supersedes the Shared Funding
Agreement for Separate Account No. 2, dated November 7, 1990, as amended,
among the parties hereto and The American Life Insurance Company of New
York.
7.2 This Agreement can only be modified by a written agreement of the
parties hereto.
7.3 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or be impaired thereby.
7.4 This Agreement and the rights, duties and obligations of the parties
hereto shall not be assignable by either party hereto without the prior
written consent of the other.
7.5 No waiver by either party of any default by the other in the
performance of any promise, term or condition of this Agreement shall be
construed to be a waiver by such party of any other or subsequent default
in performance of the same or any other covenant, promise, term or
condition of this Agreement. No prior transactions or dealings between the
parties shall be deemed to establish any custom or usage waiving or
modifying any provision hereof.
7.6 No liability shall result to any party, nor shall any party be deemed
to be in default hereunder, as the result of delay in its performance or
from its non-performance hereunder caused by circumstances beyond its
control, including but limited to: act of God, act of war, riot, epidemic;
fire; flood or other disaster; or act of government. Nevertheless, the
party shall be required to be diligent in attempting to remove such cause
or causes.
7.7 Each of the parties will act as an independent contractor under the
terms of this Agreement and neither is now, or in the future, an agent or
a legal representative of the other for any purpose. Neither party has any
right or authority to supervise or control the activities of the other
party's employees in connection with the performance of this Agreement or
to assign or create any application of any kind, express or implied, on
behalf of the other party or to bind it in any way, to accept any service
of process upon it or to receive any notice of any nature whatsoever on
its behalf.
7.8 This Agreement shall be governed by and interpreted in accordance with
the laws of the State of New York.
7.9 Nothing herein shall prevent either party from participating in any
proceeding before any regulatory authority having jurisdiction over any
matter relating to this Agreement, the Contracts, the Separate Accounts,
the Portfolio or the Fund which may
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affect the parties to it. The parties shall each give the other prompt
notice of any such proceeding.
7.10 In all matters relating to the preparation, review, prior approval
and filing of documents, the parties shall cooperate in good faith.
Neither party shall unreasonably withhold its consent with respect to the
filing of any document with any federal or state regulatory authority
having jurisdiction over the Contracts, the Separate Accounts, the
Portfolio or the Fund.
7.11 Captions contained in this Agreement are for reference purposes only
and do not constitute part of this Agreement.
7.12 All notices which are required to be given or submitted pursuant to
this Agreement shall be in writing and shall be sent by overnight delivery
service, or by registered or certified mail, return receipt requested, to
the addresses set forth below:
If to Mutual: If to the Fund or Xxxxxxx:
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxxx
Senior Executive Vice President Senior Vice President
and General Counsel and General Counsel
Mutual of America Life Insurance Co. Xxxxxxx Distributors, Inc.
000 Xxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 X
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
or to such other address as the parties may from time to time designate.
Any notice of one party to the other party shall be deemed given as of the
date of actual receipt.
7.13 Each party hereto shall promptly notify the other in writing of any
claims, demands or actions having any bearing on this Agreement.
7.14 Each party agrees to perform its obligations hereunder in accordance
with all applicable laws, rules and regulations now or hereafter in
effect.
7.15 If this Agreement is terminated for other than default, it is
specifically agreed that neither party shall be entitled to compensation
of any kind except as specifically set forth herein.
7.16 In any litigation or arbitration between the parties, the prevailing
party shall be entitled to reasonable outside attorneys' fees and all
costs of proceedings incurred in enforcing this Agreement.
7.17 This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and permitted assigns.
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7.18 Each party represents that it has full power and authority to enter
into and perform this Agreement, and the person signing this Agreement on
behalf of it has been properly authorized and empowered to enter into this
Agreement. Each party further acknowledges that it has read this
Agreement, understands it, and agrees to be bound by it.
7.19 Mutual shall indemnify and hold the Fund and Xxxxxxx and each of
their respective directors, officers, employees and agents harmless from
any liability or expense (including reasonable outside attorneys' fees)
arising from any failure of Mutual or the Separate Accounts to fulfill
their respective obligations under this Agreement.
7.20 Xxxxxxx shall indemnify and hold Mutual and its directors, officers,
employees and agents harmless from all liabilities or expenses (including
reasonable outside attorneys' fees) arising from any failure to the Fund
or Xxxxxxx to fulfill their respective obligations under this Agreement,
and Xxxxxxx shall indemnify and hold such parties harmless from a failure
of the Fund's investment adviser to manage the Fund in compliance with the
diversification requirements of the Internal Revenue Code of 1986, as
amended, or any regulations thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
XXXXXXX DISTRIBUTORS, INC. MUTUAL OF AMERICA LIFE INSURANCE
COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxxxx
------------------------------- -------------------------------
Xxxxxxx X. Xxxxxxxxx Xxxxxxx Xxxxxxxx
Senior Vice President Senior Executive Vice President
and General Counsel and Chief Financial Officer
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