AMENDMENT No. 1
The Participation Agreement, dated July 2, 2007, among Ameritas Life
Insurance Corp. ("Ameritas"), and The Union Central Life Insurance Company
("Union Central"), collectively, both Ameritas and Union Central shall be
referred to herein as the "Company"), on behalf of itself and each separate
account of the Company named in Schedule A to this Agreement, Third Avenue
Variable Series Trust, Third Avenue Management LLC ("Adviser"); and X.X.
Xxxxxxx, Inc. ("Distributor") is amended as follows:
Schedule A is deleted and replaced with Schedule A on the following
page. The effective date of this Amendment is November 5, 2007. All other
provisions of the Agreement shall remain the same.
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.
AMERITAS LIFE INSURANCE CORP.
By: /s/ Xxxxxx X. Xxxxx
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Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx de Xxxxx
-------------------------------------
Name: Xxxxxx de Xxxxx
Title: Second Vice President
THIRD AVENUE VARIABLE SERIES TRUST
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CFO
THIRD AENUE MANAGEMENT LLC
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CFO
X.X. XXXXXXX, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: CFO
PARTICIPATION AGREEMENT
SCHEDULE A
SEPARATE ACCOUNTS AND ASSOCIATED CONTRACTS
The following Separate Accounts and Associated Contracts of Ameritas Life
Insurance Corp. are permitted in accordance with the provisions of this
Agreement to invest in the Portfolio(s) of the Fund shown in Schedule B:
Name of Separate Account and Name of Contracts Funded by
Date Established by Board of Directors Separate Account and Form Number
Ameritas Life Insurance Corp. Low Load Variable Universal
Separate Account LLVL, August 24, 1994 Life Insurance Policy Form 4055 Low Load
Survivorship Variable Universal Life
Insurance Policy form 6065
Ameritas Life Insurance Corp. No Load Variable Annuity Form 4080
Separate Account LLVA, October 26, 1995 No Load Variable Annuity Form 6150
Carillon Account, February 6, 1984 VA I Policy Form UC 8134
VA II Policy Form UC 8135-1
VA II SA Policy Form UC 8137
VA III Policy Form UC 8138
Carillon Life, July 10, 1995 Excel Accumulator Policy Form UC 8707
Excel Choice Policy Form UC 8703
Executive Edge Policy Form UC 8703
AMENDED AND RESTATED FUND PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into the 9th day of July, 2007 (the
"Agreement"), by and among Ameritas Life Insurance Corp. ("Ameritas"),
organized. under the la is of the State of Nebraska, and The Union Central Life
Insurance Company ("Union Central;" collectively, both Ameritas and Union
Central shall be referred to herein as the "Company"), on behalf of itself and
each separate account of the Company named in Schedule A to this Agreement, as
may be amended from time to time (each account referred to as an "Account" and
collectively as the "Accounts"); Third Avenue Variable Series Trust, an open-end
management investment company organized under the laws of the State of Delaware
(the "Fund"); Third Avenue Management LLC, a Delaware limited liability company
and investment adviser to the Fund (the "Adviser"); and X.X. Xxxxxxx LLC, a
Delaware limited liability company and principal underwriter/distributor of the
Fund (the "Distributor"), amends and restates in its entirety the Fund
Participation Agreement entered into August 8, 2002, as amended by Amendment No.
1 to Fund Participation Agreement, effective March 1, 2005, by and among the
Company, the Fund, and the Fund's predecessor adviser and
underwriter/distributor, and as amended by Amendment No. 2 to Fund Participation
Agreement, effective May 1, 2007.
WHEREAS, the Fund is registered with the Securities and Exchange Commission (the
"Commission") as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and was established for the
purpose of serving as an investment vehicle for separate accounts established
under state law to hold assets in support of variable contracts, as defined in
section 817(d) of the Internal Revenue Code of 1986, as amended (the "Code"), to
be offered by companies taxed as domestic insurance companies under the Code
that have entered into participation agreements substantially similar to this
Agreement (the "Participating Insurance Companies"), and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets (the "Portfolios"); and
WHEREAS, the Company is taxed as a domestic insurance company under Subchapter L
of the Code and is an issuer of variable life insurance contracts, variable
annuity contracts, and funding agreements, which contracts are set forth on
Schedule A (the "Contracts"), and, as depositor, has established the Accounts
set forth on Schedule 13, which Accounts may be divided into two or more
subaccounts (the "Subaccounts;" reference herein to "Account" includes reference
to each Subaccount thereof to the extent the context requires); and
WHEREAS, the Accounts are duly organized, validly existing separate accounts,
established by resolutions of the Board of Directors of the Company under the
insurance laws of the State of Nebraska to set aside and invest assets
attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule B, as
such schedule may be amended from time to time (the "Designated Portfolios") on
behalf of the Accounts to fund the Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund, the Adviser and the Distributor agree as follows:
ARTICLE I: SALE. OF FUND SHARES
1.1 The Fund agrees to sell to the Company those shares of the Designated
Portfolios that each Account orders, executing such orders on a daily basis
at the net asset value (and with no sales charges) next computed after
receipt and acceptance by the Fund or its designee of the order for the
shares of the Fund. For purposes of this Section 1.1, the Company will be
the designee of the Fund for receipt of such orders from each Account and
receipt by such designee will constitute receipt by the Fund;
provided that the Fund receives notice of such order by 11:00 a.m. Eastern
Time on the next following business day. "Business Day" will mean any day
on which the New York Stock Exchange is open for trading and on which the
Fund calculates its net asset value pursuant to the rules of the Securities
and Exchange Commission (the "Commission"). The Fund may net the notice of
redemptions it receives from the Company under Section 1.3 of this
Agreement against the notice of purchases it receives from the Company
under this Section 1.1.
1.2 The Company will pay for Fund shares on the next Business Day after an
order to purchase Fund shares is made in accordance with Section 1.1.
Payment will be made in federal funds transmitted by wire. Upon receipt by
the Fund of the payment, such funds shall cease to be the responsibility of
the Company and shall become the responsibility of the Fund.
1.3 The Fund agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Fund held by the Company, executing such requests
on a daily basis at the net asset value next computed after receipt and
acceptance by the Fund or its agent of the request for redemption. For
purposes of this Section 1.3, the Company will be the designee of the Fund
for receipt of requests for redemption from each Account and receipt by
such designee will constitute receipt by the Fund; provided the Fund
receives notice of such requests for redemption by 11:00 a.m. Eastern Time
on the next following Business Day. Payment will be made in federal funds
transmitted by wire to the Company's account as designated by the Company
in writing from time to time, on the same Business Day the Fund receives
notice of the redemption order from the Company. After consulting with the
Company, the Fund reserves the right to delay payment of redemption
proceeds, but in no event may such payment be delayed longer than the
period permitted under Section 22(c) of the 0000 Xxx. The Fund will not
bear any responsibility whatsoever for the proper disbursement or crediting
of redemption proceeds; the Company alone will be responsible for such
action. If notification of redemption is received after 11:00 Eastern Time,
payment for redeemed shares will be made on the next following Business
Day. The Fund may net the notice of purchases it receives from the Company
under Section 1.1 of this Agreement against the notice of redemptions it
receives from the Company under this Section 1.3.
1.4 The Fund agrees to make shares of the Designated Portfolios available
continuously for purchase at the applicable net asset value per share by
Participating Insurance Companies and their separate accounts on those days
on which the Fund calculates its Designated Portfolio net asset value
pursuant to rules of the Commission; provided, however, that the Board of
Directors of the Fund (the "Fund Board") 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 Fund
Board, acting in good faith and in light of its fiduciary duties under
federal and any applicable state laws, necessary in the best interests of
the shareholders of such Portfolio.
1.5 The Fund agrees that shares of the Fund will be sold only to Participating
Insurance Companies and their separate accounts, qualified pension and
retirement plans, or such other persons as are permitted investors under
section 817(h) of the Code, as interpreted by Treasury regulations and
rulings published by the Internal Revenue Service, the sale to which will
not impair the tax treatment currently afforded the Contracts. No shares of
any Portfolio will be sold directly to the general public.
1.6 The Fund will not sell Fund shares to any insurance company or separate
account unless an agreement containing provisions substantially the same as
Articles I, III, V, and VI of this Agreement are in effect to govern such
sales.
1.7 The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund in accordance
with the provisions of such prospectus. The
Company agrees that Fund shares are not transferable by the Company other
than to the Fund upon redemption or from one Account to another Account.
1.8 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or to any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the designated Subaccount.
1.9 The Fund will furnish same day notice (by facsimile) to the Company of the
declaration of any income, dividends or capital gain distributions payable
on each Designated Portfolios shares. The Company hereby elects to receive
all such dividends and distributions as are payable on the Portfolio shares
in the form of additional shares of that Portfolio at the net asset values
per share on the ex-dividend dates. The Company reserves the right to
revoke this election and to receive all such dividends and distributions in
cash. The Fund will notify the Company of the number of shares so issued as
payment of such dividends and distributions.
1.10 The Fund will make the net asset value per share for each Designated
Portfolio available to the Company via electronic means on a daily basis as
soon as reasonably practical after the net asset value per share is
calculated and will use its best efforts to make such net asset value per
share available by 7:00 p.m., Eastern Time, each business day. If the Fund
provides the Company materially incorrect net asset value per share
information (as determined under SEC guidelines), the Company shall be
entitled to an adjustment to the number of shares purchased or redeemed to
reflect the correct net asset value per share, and reimbursement for any
additional expenses incurred to correct the net asset value. Any material
error in the calculation or reporting of net asset value per share,
dividend or capital gain information shall be reported to the Company upon
discovery by the Fund.
ARTICLE II: REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants that the Contracts are or will be
registered under the Securities Act of 1933 (the "1933 Act"), or are exempt
from registration thereunder, and that the Contracts will be issued and
sold in compliance 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 each Account as a separate account under Section
44402.01 of the General Statutes of Nebraska; that each Account is or will
be registered as a unit investment trust in accordance with the provisions
of the 1940 Act to serve as a segregated investment account for the
Contracts, or is exempt from registration thereunder; and that it will
maintain such registration for so long as any Contracts are outstanding, as
applicable. The Company will amend the registration statement under the
1933 Act for the Contracts and the registration statement under the 1940
Act for the Accounts from time to time as required in order to effect the
continuous offering of the Contracts or as may otherwise be required by
applicable law. The Company will register and qualify the Contracts for
sale in accordance with the securities laws of the various states only if
and to the extent deemed necessary by the Company.
2.2 The Company represents that the Contracts are currently and at the time of
issuance will be treated as variable contracts under section 817(d) of the
Code and that it will make every effort to maintain such treatment,
including availing itself of any correction or closing agreement procedures
permitted under the Code or the regulations thereunder, and that it will
notify the Fund and the Adviser immediately upon having a reasonable basis
for believing that the Contracts have ceased to be so treated or that they
might not be so treated in the future.
2.3 The Company represents and warrants that it is taxed as a domestic
insurance company under Subchapter L of the Code, that it will be the owner
of the Fund shares under all applicable laws (subject to the Fund's
acknowledgement that the Contract owners are deemed to be the beneficial
owners of the Fund shares); that Fund shares will constitute the only
assets of any Subaccount or Account treated as a "segregated asset account"
(as defined in the regulations under section 817(h) of the Code) holding
Fund shares, and that interests in each Account holding Fund shares are
available exclusively through the purchase of a variable contract within
the meaning of section 817(d) of the Code.
2.4 The Company represents and warrants that it will not purchase shares of the
Designated Portfolio(s) with assets derived from tax-qualified retirement
plans except, indirectly, through Contracts purchased in connection with
such plans.
2.5 The Fund represents and warrants that shares of the Designated Portfolio(s)
sold pursuant to this Agreement will be registered under the 1933 Act and
duly authorized for issuance in accordance with applicable law and that the
Fund is and will remain registered as an open-end management investment
company under the 1940 Act for as long as such shares of the Designated
Portfolio(s) are sold. The Fund will amend the registration statement for
its shares under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of its shares. The Fund
will register and qualify the shares of the Designated Portfolio(s) for
sale in accordance with the laws of the various states only if and to the
extent deemed advisable by the Fund.
2.6 The Fund represents that it will use its best efforts to comply with any
applicable state insurance laws or regulations as they may apply to the
investment objectives, policies and restrictions of the Portfolios, as they
may apply to the Fund, to the extent specifically requested in writing by
the Company. If the Fund cannot comply with such state insurance laws or
regulations (or in its discretion elects not to), it will so notify the
Company in writing. Neither the Fund nor the Adviser make any other
representation as to whether any aspect of their respective operations
(including, but not limited to, fees and expenses, and investment policies)
complies with the insurance laws or regulations of any state. The Company
represents that it will use its best efforts to notify the Fund and the
Adviser of any restrictions imposed by state insurance laws that may become
applicable to the Fund as a result of the Accounts' investments therein.
The Fund and the Adviser agree that they will furnish the information
required by state insurance laws to assist the Company in obtaining the
authority needed to issue the Contracts in various states.
2.7 The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it reserves the right to make such payments in the
future. To the extent that it decides to finance distribution expenses
pursuant to Rule 12b-1, the Fund undertakes to have the directors of its
Fund Board, a majority of whom are not "interested" persons of the Fund,
formulate and approve any plan under Rule 12b- 1 to finance distribution
expenses.
2.8 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Delaware and that it does and will comply in
all material respects with applicable provisions of the 1940 Act and any
applicable regulations thereunder.
2.9 The Fund represents and warrants that all of its directors, officers,
employees, investment advisers, and other individuals/entities having
access to the Fund and/or securities of the Fund are and 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 minimal coverage as
required currently by Rule 17g-(1) of the 1940 Act or related provisions as
may be promulgated from time to time. The aforesaid bond includes coverage
for larceny and embezzlement and is issued by a reputable bonding company.
2.10 The Adviser represents and warrants that it is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as amended,
and will remain duly registered under all applicable
federal and state securities laws and that it will perform its obligations
for the Fund in accordance in all material respects with the laws of the
State of Delaware and any applicable state and federal securities laws.
2.11 The Distributor represents and warrants that it is registered as a
broker-dealer under the Securities and Exchange Act of 1934, as amended
(the "1934 Act") and will remain duly registered under all applicable
federal and state securities laws, and is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD"), and serves
as principal underwriter/distributor of the Funds and that it will perform
its obligations for the Fund in accordance in all material respects with
the laws of the State of Delaware and any applicable state and federal
securities laws.
2.12 The Fund and the Adviser represent and warrant that each Designated
Portfolio currently qualifies as a Regulated Investment Company ("RIC")
under Subchapter M of the Code and they will make every effort to maintain
qualification of each Designated Portfolio as a RIC. The Fund will notify
the Company immediately upon having a reasonable basis for believing that
any Designated Portfolio has ceased to so qualify or that it might not so
qualify in the future.
2.13 The Fund and Adviser represent and warrant that each Designated Portfolio
will be "adequately diversified" within the meaning of section 817(h) of
the Code, provided that the shares of each such Designated Portfolio
comprise the only assets of any Subaccount or Account treated as a
segregated asset account (as defined by the regulations promulgated under
section 817(h) of the Code) holding shares of such Designated Portfolio.
ARTICLE III: FUND COMPLIANCE
3.1 The Fund and the Adviser acknowledge that any failure (whether intentional
or in good faith or otherwise) to comply with the requirements of
Subchapter M of the Code or the diversification requirements of section
817(h) of the Code may result in the Contracts not being treated as
variable contracts for federal income tax purposes, which could have
adverse tax consequences for Contract owners and could also adversely
affect the Company's corporate tax liability. The Fund and the Adviser
further acknowledge that any such failure may result in costs and expenses
being incurred by the Company in obtaining whatever regulatory
authorizations are required to substitute shares of another investment
company for those of the failed Fund or as well as fees and expenses of
legal counsel and other advisors to the Company and any federal income
taxes, interest or tax penalties incurred by the Company in connection with
any such failure.
3.2 The Fund will notify the Company immediately upon having a reasonable basis
for believing that the Fund or a Portfolio thereunder has ceased to comply
with the diversification requirements of section 817(h) of the Code or that
the Fund or Portfolio might not comply with the diversification
requirements in the future. In the event of a breach of this representation
by the Fund, it will take all reasonable steps to adequately diversify the
relevant Designated Portfolio so as to achieve compliance with Treasury
regulation section 1.817-5.
3.3 The Adviser agrees to provide the Company with a certificate or statement
indicating compliance by each Portfolio of the Fund with Section 817(h) of
the Code, such certificate or statement to be sent to the Company no later
than forty-five (45) days following the end of each calendar quarter.
ARTICLE IV: PROSPECTUS AND PROXY STATEMENTS/VOTING
4.1 At least annually (or, in the case of a prospectus supplement, when that
supplement is issued) and at the Distributor's expense, the Fund will
timely provide the Company with as many copies of the
current Fund prospectus (describing only the Designated Portfolio(s)) and
any supplements thereto as the Company may reasonably request for
distribution to Contract owners at the time of Contract fulfillment and
confirmation. The Fund will provide, at the Distributor's expense, as many
copies of said prospectus as necessary for distribution to existing
Contract owners. The Fund will provide the copies of said prospectus to the
Company or to its mailing agent. The Company will distribute the prospectus
to existing Contract owners at its own expense. If requested by the
Company, in lieu thereof, the Fund will provide such documentation,
including a final copy of a current prospectus set in type at the Fund's
expense, and other assistance as is reasonably necessary in order for the
Company at least annually (or more frequently if the Fund prospectus is
amended more frequently) to have the new prospectus for the Contracts and
the Fund's new prospectus printed together, in which case the Fund agrees
to pay its proportionate share of reasonable expenses directly related to
the required disclosure of information concerning the Fund. The Fund will,
upon request, provide the Company with a copy of the Fund's prospectus
through electronic means to facilitate the Company's efforts to provide
Fund prospectuses via electronic delivery.
4.2 The Fund's prospectus will state that the Statement of Additional
Information (the "SAI") for the Fund is available upon request from the
Fund. The Fund will provide the Company, at the Company's expense, with as
many copies of the SAI and any supplements thereto as the Company may
reasonably request for distribution, at the Company's expense, to
prospective Contract owners and applicants. To the extent that the
Designated Portfolio(s) are one or more of several Portfolios of the Fund,
the Distributor shall bear the cost of providing the Company only with
disclosure related to the Designated Portfolio(s). The Fund will provide,
at the Distributor's expense, as many copies of said SAI as necessary for
distribution, at the Company's expense, to any existing Contract owner who
requests such statement or whenever state or federal law requires that such
statement be provided. The Fund will provide the copies of said SAI to the
Company or to its mailing agent. The Company will distribute the SAI as
requested or required.
4.3 The Fund, at its expense, will provide the Company or its mailing agent
with copies of its proxy material, if any, reports to shareholders/Contract
owners and other permissible communications to shareholders/Contract owners
in such quantity as the Company will reasonably require. The Company will
distribute the reports and other communications to existing Contract
owners. The Company will distribute proxy materials relating to the Fund to
existing Contract owners and will xxxx the Fund for the reasonable cost of
such distribution.
4.4 If and to the extent required by law, the Company will:
(a) solicit voting instructions from Contract owners;
(b) vote the shares of the Designated Portfolios held in the Account in
accordance with instructions received from Contract owners; and
(c) vote shares of the Designated Portfolios held in the Account for which
no timely instructions have been received in the same proportion as
shares of such Designated. Portfolio for which instructions have been
received from the Company's Contract owners,
for so long as and to the extent that the Commission continues to interpret
the 1940 Act to require pass-though voting privileges for variable Contract
owners. The Company reserves the right to vote Fund shares held in any
segregated asset account in its own right, to the extent permitted by law.
The Company will be responsible for assuring that the Accounts
participating in the Fund calculate voting privileges in a manner
consistent with all legal requirements, including the Proxy Voting
Procedures set forth in Schedule C and the Mixed. and Shared Funding
Exemptive Order, as described in Section 7.1.
4.5 The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Fund either will provide for annual
meetings (except insofar as the Commission may interpret Section 16 of the
1940 Act not to require such meetings) or, as the Fund currently intends,
to comply with Section 16(c) of the 1940 Act (although the Fund is not one
of the trusts described in Section 16(c) of the 0000 Xxx) as well as with
Sections 16(a) and, if and, when applicable, 16(b). Further, the Fund will
act in accordance with the Commission's interpretation of the requirements
of Section 16(a) with respect to periodic elections of directors and with
whatever rules the Commission may promulgate with respect thereto.
ARTICLE V: SALES MATERIAL AM) INFORMATION
5.1 The Company will furnish, or will cause to be famished, to the Fund or the
Adviser, each piece of sales literature or other promotional material in
which the Fund or the Adviser is named, at least ten (10) Business Days
prior to its use. No such material will be used if the Fund or the Adviser
reasonably objects to such use within five (5) Business Days after receipt
of such material.
5.2 The Company will 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, prospectus, or SAI for Fund
shares, as such registration statement, prospectus, and SAI may be amended
or supplemented from time to time, or in reports or proxy statements for
the Fund, or in published reports for the Fund approved by the Fund or the
Adviser for distribution, or in sales literature or other material provided
by the Fund or by the Adviser, except with advance written permission of
the Fund or the Adviser. The Fund and the Adviser agree to respond to any
request for approval on a prompt and timely basis.
5.3 The Fund or the Adviser will furnish, or will cause to be furnished, to the
Company or its designee, each piece of sales literature or other
promotional material in which the Company or its Accounts are named, at
least ten (10) Business Days prior to its use. No such material will be
used if the Company reasonably objects to such use within five (5) Business
Days after receipt of such material.
5.4 The Fund and the Adviser will not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, each Account, or the Contracts other than the information or
representations contained in a registration statement, prospectus or SAI
for the Contracts, as such registration statement, prospectus, and SAI may
be amended or supplemented from time to time, or in reports for each
Account or the Contracts that are approved by the Company for distribution
to Contract owners, or in sales literature or other material provided by
the Company, except with advance written permission of the Company. The
Company agrees to respond to any request for approval on a prompt and
timely basis.
5.5 The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, SAIs, reports, proxy statements,
sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of
the above, that relate to the Fund or its shares, within a reasonable time
after filing of each such document with the Commission or the NASD.
5.6 The Company will provide to the Fund at least one complete copy of all
definitive prospectuses, definitive SAI, reports, solicitations for voting
instructions, sales literature and other promotional materials,
applications for exemptions, requests for no action letters, and all
amendments to any of the above, that relate to the Contracts or each
Account contemporaneously with the filing of each such document with the
Commission or the NASD (except that with respect to post-effective
amendments to such prospectuses and SATs and. sales literature and
promotional material, only those prospectuses and SAls and sales literature
and promotional material that relate to or refer to the Fund will be
provided). In addition, the Company will provide to the Fund at least one
complete copy of (i) a registration statement that relates to the Contracts
or each Account, containing representative and relevant disclosure
concerning the Fund; and (ii) any post-effective amendments to any
registration statements relating to the Contracts or such Account that
refer to or relate to the Fund.
5.7 For purposes of this Article V, 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,
i.e., 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, SATs,
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.
5.8 The Fund, the Adviser and the Distributor hereby consent to the Insurance
Company's use of the names of the Third Avenue Variable Series Trust, Third
Avenue Management LLC, and the Third Avenue Value Portfolio, as well as the
names of the Designated Funds set forth in Schedule B of this Agreement, in
connection with marketing the Contracts, subject to the terms of Sections
5.1 of this Agreement. The Company acknowledges and agrees that Adviser and
Distributor and/or their affiliates own all right, title and interest in
and to the names Third Avenue Variable Series Trust, Third Avenue
Management LW, and the Third Avenue Value Portfolio, and covenants not, at
any time, to challenge the rights of the Fund, Adviser and Distributor
and/or their affiliates to such name or design, or the validity or
distinctiveness thereof. The Fund, the Adviser and the Distributor hereby
consent to the use of any trademark, trade name, service xxxx or logo used
by the Fund, the Adviser and the Distributor, subject to the Fund's, the
Adviser's and/or the Distributor's approval of such use and in accordance
with reasonable requirements of the Fund, the Adviser or the Distributor.
Such consent will terminate with the termination of this Agreement. The
Fund, Adviser, or Distributor may withdraw this consent as to any
particular use of any such name or identifying marks at any time (i) upon
the Fund's, the Adviser's or the Distributor's reasonable determination
that such use would have a material adverse effect on the reputation or
marketing efforts of the Fund, the Adviser, or the Distributor or (ii) if
no investment company, or series or class of shares of any investment
company advised by Adviser or distributed by Distributor continues to be
offered through variable contracts (as described in section 817(d) of the
Code) issued by the Company; provided however, that the Adviser or
Distributor may, in either's individual discretion, continue to use
materials prepared or printed prior to the withdrawal of such
authorization. The Company agrees and acknowledges that all use of any
designation comprised in whole or in part of the name, trademark trade
name, service xxxx and logo under this Agreement shall inure to the benefit
of the Fund, the Adviser and/or the Distributor.
5.9 The Fund, the Adviser, the Distributor and the Company agree to adopt and
implement procedures reasonably designed to ensure that information
concerning the Company, the Fund, the Adviser or the Distributor,
respectively, and their respective affiliated companies, that is intended
for use only by brokers or agents selling the Contracts is properly marked
as "Not For Use With The Public" and that such information is only so used.
ARTICLE VI: FEES, COSTS AND EXPENSES
6.1 The Fund will pay no fee or other compensation to the Company under this
Agreement, except as provided below: (a) if the Fund or any Designated
Portfolio adopts and implements a plan pursuant to Rule 12b-1 under the
1940 Act to finance distribution expenses, then, subject to obtaining any
required
exemptive orders or other regulatory approvals, the Fund or the Distributor
may make payments to the Company or to the underwriter for the Contracts if
and in such amounts agreed to by the Fund or the Distributor in writing,
(b) the Fund or the Distributor may pay fees to the Company for
administrative services provided to Contract owners that are not primarily
intended to result in the sale of shares of the Designated Portfolio or of
underlying Contracts, as may be separately agreed to in writing.
6.2 All expenses incident to performance by the Fund of this Agreement will be
paid by the Fund to the extent permitted by law. All shares of the
Designated Portfolios will be duly authorized for issuance and registered
in accordance with applicable federal law and, to the extent deemed
advisable by the Fund, in accordance with applicable state law, prior to
sale. The Fund will bear the expenses for the cost of registration and
qualification of the Fund's shares, including without limitation, the
preparation of and filing with the SEC of Forms N-CSR and N-SAR and Rule
24f-2 Notices and payment of all applicable registration or filing fees
with respect to shares of the Fund; preparation and filing of the Fund's
prospectus, SAI and registration statement, proxy materials and reports;
typesetting and (to the extent provided by and as determined in accordance
with Article IV, above) printing the Fund's prospectus; typesetting and
printing proxy materials and reports to Contract owners (including the
costs of printing a Fund prospectus that constitutes an annual report); the
preparation of all statements and notices required by any federal or state
law; all taxes on the issuance or transfer of the Fund's shares; any
expenses permitted to be paid or assumed by the Fund pursuant to a plan, if
any, under Rule 12b-1 under the 1940 Act; and other costs associated with
preparation of prospectuses and SAIs for the Designated Portfolios in
electronic or typeset format, as well as any expenses as set forth in
Article IV of this Agreement.
ARTICLE VII: MIXED & SHARED FUNDING RELIEF
7.1 The Fund represents and warrants that it has received an order from the
Commission granting Participating Insurance Companies and variable contract
separate accounts relief from certain provisions of the 1940 Act, and
certain rules thereunder, to the extent necessary to permit shares of the
Fund to be sold to and held by variable contract separate accounts of both
affiliated and unaffiliated Participating Insurance Companies and qualified
pension and retirement plans outside of the separate account context (the
"Mixed and Shared Funding Exemptive Order"). The parties to this Agreement
agree that the conditions or undertakings specified in the Mixed and Shared
Funding Exemptive Order that may be imposed on the Company, the Fund and/or
the Adviser by virtue of the receipt of such order by the Commission, will
be incorporated herein by reference, and such parties agree to comply with
such conditions and undertakings to the extent applicable to each such
party.
7.2 The Fund agrees that the Fund Board shall at all times consist of trustees,
a majority of whom (the "Disinterested Trustees") are not interested
persons of the Fund with the meaning of Section 2(a)(19) of the 1940 Act
and the rules thereunder and as modified by any applicable order of the
Commission, except that if this condition is not met by reason of the
death, disqualification, or bona fide resignation of any director, then the
operation of this condition shall be suspended (a) for a period of
forty-five (45) days if the vacancy or vacancies may be filled by the
Board; (b) for a period of sixty (60) days if a vote of shareholders is
required to fill the vacancy or vacancies; or (c) for such longer period as
the Commission may prescribe by order upon application.
7.3 The Company will report any potential or existing conflicts of interest of
which it is aware to the Fund Board. The Company agrees to assist the Fund
Board in carrying out its responsibilities, as delineated in the Mixed and
Shared Funding Exemptive Order, by providing the Fund Board with all
information reasonably necessary for the Fund Board to consider any issues
raised. This includes, but is not limited to, an obligation by the Company
to inform the Fund Board whenever Contract owner voting instructions are to
be disregarded. The Fund Board will record in its minutes, or other
appropriate records, all reports received by it and all action with regard
to a conflict
7.4 If it is determined by a majority of the Fund Board, or a majority of its
Disinterested Trustees, that an irreconcilable material conflict exists,
the Company and other Participating Insurance Companies will, at their
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, up to and
including: (a) withdrawing the assets allocable to some or all of the
Accounts from the Fund or any Portfolio and. reinvesting such assets in a
different investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such segregation
should be submitted to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group of Contract
owners 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.
7.5 If a material irreconcilable conflict arises because of a decision by the
Company to disregard Contract owner voting instructions, and such disregard
of voting instructions could conflict with the majority of Contract owner
voting instructions, and the Company's judgment represents a minority
position or would preclude a majority vote, the Company may be required, at
the Fund's election, to withdraw each affected Subaccount's investment in
the Fund and terminate this Agreement with respect to such Subaccount;
provided, however, that. such withdrawal and termination will be limited to
the extent required by the foregoing irreconcilable material conflict as
determined by a majority of the Disinterested Trustees of the Fund Board.
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 Fund gives written notice to the Company that this provision is being
implemented. Until the end of such six-month period, the Adviser and Fund
will, to the extent permitted by law and any exemptive relief previously
granted to the Fund, continue to accept and implement orders by the Company
for the purchase (and redemption) of shares of the Fund.
7.6 If an irreconcilable conflict arises because a particular state insurance
regulator's decision or rule applicable to the Company conflicts with the
decisions or rules of a majority of other state insurance regulators, then
the Company will withdraw the affected Subaccount's investment in the Fund
and terminate this Agreement with respect to such Subaccount; provided,
however, that such withdrawal and termination will be limited to the extent
required by the foregoing irreconcilable material conflict as determined by
a majority of the Disinterested Trustees of the Fund Board. 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 Fund gives
written notice to the Company that this provision is being implemented.
Until the end of such six-month period, the Advisor and Fund will, to the
extent permitted by law and any exemptive relief previously granted to the
Fund, continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.7 For purposes of Sections 7.4 through 7.7 of this Agreement, a majority of
the Disinterested Trustees of the Fund Board will determine whether any
proposed action adequately remedies any irreconcilable material conflict,
but in no event, other than as specified in Section 7.4, will the Fund be
required to establish a new funding medium for the Contracts. The Company
will not be required by Section 7.4 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 affected by the irreconcilable material conflict.
7.8 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 Mixed and Shared Funding Exemptive Order) on
terms and conditions materially different from those contained in the Mixed
and Shared Funding Exemptive Order, then: (a) the Fund and/or the
Participating Insurance Companies, as appropriate, will 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; and (b)
Sections 4.4, 4.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of
this Agreement will continue in effect only to the extent that terms and
conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
ARTICLE VIII: INDEMNIFICATION 8.1
Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Adviser, the Distributor, and each person, if any, who controls or is
associated with the Fund, the Adviser, or the Distributor within the
meaning of such terms under the federal securities laws and any
director, trustee, officer, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this Section
8.1) against any and all losses, claims, expenses, damages,
liabilities (including amounts paid in settlement with the written
consent of the Company; such consent not to be unreasonably withheld
or delayed), or actions in respect thereof (including reasonable legal
and other expenses) to which the Indemnified Parties may become
subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements:
(1) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statement, prospectus or SAI for the Contracts or
contained in the Contracts or sales literature or other
promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated or necessary to make such
statements not misleading in light of the circumstances in which
they *ere made; provided that this agreement to indemnify will
not apply as to any Indemnified Party if such statement or
omission of such alleged statement or omission was made in
reliance upon and in conformity with information furnished to the
Company by or on behalf of the Fund, the Adviser, or the
Distributor for use in the registration statement, prospectus or
SAI for the Contracts or in the Contracts or sales literature (or
any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations by
or on behalf of the Company (other than statements or
representations contained in the Fund registration statement,
prospectus, SAI or sales literature or other promotional material
of the Fund, or any amendment or supplement to the foregoing, not
supplied by the Company or persons under its control) or wrongful
conduct of the Company or persons under its control, with respect
to the sale or distribution of the Contracts or Fund shares; or
(3) arise out of untrue statement or alleged untrue statement of a
material fact contained in the Fund registration statement,
prospectus, SAI or sales literature or other promotional material
of the Fund (or amendment or supplement) or the omission or
alleged omission to state therein a material fact required to be
stated therein or necessary to make such statements not
misleading in light of the circumstances in which they were made,
if such a statement or omission was made in reliance upon and in
conformity with information furnished to the Fund by or on behalf
of the Company or persons under its control; or
(4) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this
Agreement; or
arise out of 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 by the Company of this
Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification will be in addition to any liability that the Company
otherwise may have.
(b) No party will be entitled to indemnification under Section 8.1(a) if
such loss, claim, damage, liability or action is due to the willful
misfeasance, bad faith, or gross negligence in the performance of such
party's duties under this Agreement, or by reason of such party's
reckless disregard of its obligations or duties under this Agreement.
(c) The Indemnified Parties promptly will notify the Company of the
commencement. of any litigation, proceedings, complaints or actions by
regulatory authorities against them in connection with the issuance or
sale of the Fund shares or the Contracts or the operation of the Fund.
8.2 Indemnification by the Adviser, the Distributor, and the Fund
(a) The Adviser, the Distributor, and the Fund agree to indemnify and hold
harmless the Company and each person, if any, who controls for is
associated with' the Company within the meaning of such terms under
the federal securities laws and any director, officer, employee or
agent of the foregoing (collectively, the "Indemnified Parties" for
purposes of this Section 8.2) against any and all losses, claims,
expenses, damages, liabilities (including amounts paid in settlement
with the written consent of the Adviser, the Distributor, or the Fund,
as the case may be; such consent not to be unreasonably withheld or
delayed) or actions in respect thereof (including reasonable legal and
other expenses) to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale, acquisition,
or holding of Fund shares and:
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or SAI for the Fund or sales
literature or other promotional material of the Fund (or any
amendment or supplement to any of the foregoing), or arise out of
or are based upon the omission or the alleged omission to state
therein a material fact required to be stated or necessary to
make such statements not misleading in light of the circumstances
in which they were made; provided that this agreement to
indemnify will not apply as to any Indemnified Party if such
statement or omission of such alleged statement or omission was
made in reliance upon and in conformity with information
furnished to the Adviser, the Distributor, or the Fund by or on
behalf of the Company for use in the registration statement,
prospectus or SAI for the Fund or in sales literature of the Fund
(or any amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract or Fund registration statements,
prospectuses or statements of additional information or sales
literature or other promotional material for the Contracts or of
the Fund, or any amendment or supplement to the foregoing, not
supplied by the Adviser, the Distributor, or the Fund or persons
under the control of the Adviser, the Distributor, or the Fund
respectively) or wrongful conduct of the Adviser, the
Distributor, or the Fund or persons under the
control of the Adviser, the Distributor, or the Fund,
respectively, with respect to the sale or distribution of the
Contracts or Fund shares; or
(3) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement,
prospectus, SAI or sales literature or other promotional material
covering the Contracts (or any amendment or supplement thereto),
or the omission or alleged omission to state therein a material
fact required to be stated or necessary to make such statement or
statements not misleading in light of the circumstances in which
they were made, if such statement or omission was made in
reliance upon and in conformity with information famished to the
Company by or on behalf of the Adviser, the Distributor, or the
Fund or persons under the control of the Adviser, the
Distributor, or the Fund; or
(4) arise as a result of any failure by the Fund, the Distributor, or
the Adviser to provide the services and furnish the materials
under the terms of this Agreement, or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser, the
Distributor, or the Fund in this Agreement, or arise out of or
result from any other material breach of this Agreement by the
Adviser, the Distributor, or the Fund;
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification will be in addition to any liability that the Adviser
or Distributor otherwise may have.
(b) No party will be entitled to indemnification under Section 8.2(a) if
such loss, claim, damage, liability or action is due to the willful
misfeasance, bad faith, or gross negligence in the performance of such
party's duties under this Agreement, or by reason of such party's
reckless disregard or its obligations or duties under this Agreement.
(c) The Indemnified Parties will promptly notify the Adviser and the Fund
of the commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with the
issuance or sale of the Contracts or the operation of the Account.
8.3 Indemnification Procedure
Any Person obligated to provide indemnification under this Article VIII
("Indemnifying Party") for the purpose of this Section 8.3) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification under
this Article VIII ("Indemnified Party") for the purpose of this Section
8.3) unless such Indemnified Party has notified the Indemnifying Party in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim has been served upon
such Indemnified Party (or after such party has received notice of such
service on any designated agent), but failure to notify the Indemnifying
Party of any such claim will not relieve the Indemnifying Party from any
liability that it may have to the Indemnified Party against whom such
action is brought otherwise than on account of the indemnification
provision of this Article VIII, except to the extent that the failure to
notify results in the failure of actual notice to the Indemnifying Party
and such Indemnifying Party is damaged solely as a result of the failure to
give or delay in giving such notice. In case any such action is brought
against the Indemnified Party; the Indemnifying Party will be entitled to
participate, at its own expense, in the defense thereof. The Indemnifying
Party also will be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Indemnifying Party to the Indemnified Party of the Indemnifying Party's
election to assume the defense thereof, the Indemnified Party will bear the
fees and expenses of any additional counsel retained by it, and the
Indemnifying Party 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, unless: (a) the Indemnifying Party and the
Indemnified Party will have mutually agreed to the retention of such
counsel; or (b) the named parties to any such proceeding (including any
impleaded parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
The Indemnifying Party will not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there is a final judgment for the plaintiff, the Indemnifying
Party agrees to indemnify the Indemnified Party from and against any loss
or liability by reason of such settlement or judgment. A successor by law
of the parties to this Agreement will be entitled to the benefits of the
indemnification contained in this Article VIII. The indemnification
provisions contained in this Article VIII will survive any termination of
this Agreement.
8.4 Indemnification for Failure to Comply with Diversification Requirements
The Fund and the Adviser acknowledge that any failure (whether intentional
or in good faith or otherwise) to comply with the diversification
requirements specified in Section 2.13 of this Agreement may result in the
Contracts not being treated as variable contracts for federal income tax
purposes, which could have adverse tax consequences for Contract owners and
could also adversely affect the Company's corporate tax liability.
Accordingly, without in any way limiting the effect of Section 8.2(a)
hereof and without in any way limiting or restricting any other remedies
available to the Company, the Fund, the Adviser and the Distributor will
pay on a joint and several basis all costs associated with or arising out
of any failure, or any anticipated or reasonably foreseeable failure, of
the Fund or any Designated Portfolio to comply with Section 2.13 of this
Agreement, including all costs associated with correcting or responding to
any such failure; such costs may include, but are not limited to, the costs
involved in creating, organizing, and registering a new investment company
as a funding medium for the Contracts and/or the costs of obtaining
whatever regulatory authorizations are required to substitute shares of
another investment company for those of the failed Fund or Designated
Portfolio (including but not limited to an order pursuant to Section 26(c)
of the 1940 Act); fees and expenses of legal counsel and other advisors to
the Company and any federal income taxes or tax penalties (or "toll
charges" or exactments or amounts paid in settlement) incurred by the
Company in connection with any such failure or anticipated or reasonably
foreseeable failure. Such indemnification and reimbursement obligation
shall be in addition to any other indemnification and reimbursement
obligations of the Fund, the Adviser and/or the Distributor under this
Agreement.
ARTICLE IX: PRIVACY
9.1 All Nonpublic Personal Information obtained by any party on behalf of or
from another party in the performance of its duties and obligations under
this Agreement shall be held in the strictest confidence by the party and
its associates and will not be used for any other purpose except to perform
its duties under the Agreement. Such information shall not be disclosed to
any third party without the express written consent of the originating
party or as may be required by law. Each party will establish procedures to
protect the security and confidentiality of such information. Nonpublic
Personal Information shall mean any financial or health information
furnished to a party or its associates in the performance of duties or
obligations under this Agreement.
ARTICLE X: ANTI-MONEY LAUNDERING
10.1 All parties to this Agreement hereby agree to comply with all applicable
laws and regulations aimed at preventing, detecting, and reporting money
laundering and suspicious transactions and will take all
necessary and appropriate steps, consistent with applicable regulations and
generally accepted industry practices, to (1) obtain, verify, and retain
information with regard to investor and/or account owner identification and
source of fluids, and (2) to maintain records of all account transactions.
10.2 Each party to this contract also agrees (to the extent consistent with
applicable law) to take all steps necessary and appropriate to provide
requested information about investors and/or accounts to any other party to
this contract that shall request such information due to an inquiry or
investigation by any law enforcement regulatory or administrative
authority. To the extent permitted by applicable law and/or regulation,
each party to this contract shall notify all other parties to this contract
of any concerns that shall arise in connection with any investor or account
holder in the context of relevant anti-money laundering
legislation/regulations. Each party to this contract shall hold harmless
all other parties to this contract for any actions that may arise for good
faith attempts to comply with all applicable laws, rules and/or regulations
of governmental agencies, law enforcement organizations and/or Self
Regulatory Organizations.
ARTICLE XI: APPLICABLE LAW
11.1 This Agreement will be construed and the provisions hereof interpreted
under and in accordance, with the laws of the State of Nebraska.
11.2 This Agreement will be subject to the provisions of the 1933 Act, the 1934
Act and the 1940 Act, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
Commission may grant (including, but not limited to, the Mixed and Shared
Funding Exemptive Order) and the terms hereof will be interpreted and
construed in accordance therewith.
ARTICLE XII: TERMINATION
12.1 This Agreement will terminate:
(a) at the option of any party, with or without cause, with respect to
one, some or all of the Designated Portfolios, upon six (6) month's
advance written notice to the other parties or, if later, upon receipt
of any required exemptive relief or orders from the SEC, unless
otherwise agreed in a separate written agreement among the parties; or
(b) at the option of the Company, upon written notice to the other
parties, with respect to any Portfolio if shares of the Designated
Portfolio are not reasonably available to meet the requirements of the
Contracts as determined in good faith by the Company, or
(c) at the option of the Company, upon written notice to the other
parties,. with respect to any Portfolio in the event any of the
Portfolio'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 Company; or
(d) at the option of the Fund, upon written notice to the other parties,
upon institution of formal proceedings against the Company by the
NASD, the Commission, the Insurance Commission of any state or any
other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the administration
of the Contracts, the operation of the Account, or the purchase of the
Fund shares, provided that the Fund determines in its sole judgment,
exercised in good faith, that any such proceeding would have
24
a material adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company, upon written notice to the other
parties, upon institution of formal proceedings against the Fund, the
Distributor, or the Adviser by the NASD, the Commission or any state
securities or insurance department or any other regulatory body,
provided that the Company determines in its sole judgment, exercised
in good faith, that any such proceeding would have a material adverse
effect on the Funds or the Adviser's ability to perform its
obligations under this Agreement; or
(f) at the option of the Company, upon written notice to the other
parties, with respect to any Designated Portfolio if the Designated
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 and in good faith believes that the
Designated Portfolio may fail to so qualify; or
(g) at the option of the Company, upon written notice to the other
parties, with respect to any Designated Portfolio if the Designated
Portfolio fails to meet the diversification requirements specified in
Section 2.13 hereof or if the Company reasonably and in good faith
believes the Designated Portfolio may fail to meet such requirements;
or
(h) at the option of any party to this Agreement, upon written notice to
the other parties, upon another party's material breach of any
provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith that either the Fund, the Adviser, or
the Distributor has suffered a material adverse change in its
business, operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity that is
likely to have a material adverse impact upon the business and
operations of the Company, such termination to be effective sixty (60)
days' after receipt by the other parties of written notice of the
election to terminate; or
(j) at the option of the Fund or the Adviser, if the Fund or Adviser
respectively each determines in its sole judgment, exercised in good
faith, that the Company has suffered a material adverse change in its
business, operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity that is
likely to have a material adverse impact upon the business and
operations of the Fund or the Adviser, such termination to be
effective sixty (60) days' after receipt by the other parties of
written notice of the election to terminate; or
(k) at the option of the Company or the Fund upon receipt of any necessary
regulatory approvals and/or the vote of the Contract owners having an
interest in the Account (or any Subaccount) to substitute the shares
of another investment company for the corresponding Portfolio's shares
of the Fund in accordance with the terms of the Contracts for which
those Portfolio shares had been selected to serve as the underlying
portfolio. The Company will give sixty (60) days' prior written notice
to the Fund of the date of any proposed vote or other action taken to
replace the Fund's shares or of the filing of any required regulatory
approval(s); or
(l) at the option of the Company or the Fund upon a determination by a
majority of the Fund Board, or a majority of the Disinterested
Trustees, that an irreconcilable material conflict exists among the
interests of: (1) all Contract owners of variable insurance products
of all separate accounts; or (2) the interests of the Participating
Insurance Companies investing in the Fund as set forth in Article VII
of this Agreement;
at the option of the Fund in the event any of the Contracts are not
issued or sold in accordance with applicable federal and/or state law.
Termination will be effective immediately upon such occurrence without
notice; or
(n) at the option of the Fund in the event that either or both of Rule
6e-2 and Rule 6e 3(T) are amended, or Rule 6e-3(T) is adopted, and the
Fund determines that the terms of the Rules as amended or adopted are
burdensome on the Fund in accordance with Section 7.8, above.
Termination under this Section 12.1(n) shall be effective upon six (6)
months advance written notice to the Company, or if shorter, upon
advance written notice to the Company equal to the period between the
date the amended Rules are adopted and the compliance date for the
amended rules; provided that the right of termination provided by this
Section 12.1(n) shall in no way limit any party's right to terminate
under (and on the schedule permitted by) Section 12.1(a) above.
12.2 Notice Requirement
(a) No termination of this Agreement, except a termination under Section
12.1(m) of this Agreement, will be effective unless and until the
party terminating this Agreement gives prior written notice to all
other parties of its intent to terminate, which notice will set forth
the basis for the termination.
(b) In the event that any termination of this Agreement is based upon the
provisions of Article VII, such prior written notice will be given in
advance of the effective date of termination as required by such
provisions.
12.3 Effect of Termination
Notwithstanding any termination of this Agreement, the Fund, the Adviser
and the Distributor will, 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, without limitation, the owners of the Existing
Contracts will be permitted to reallocate investments in the Designated
Portfolios (as in effect on such date), redeem investments in the
Designated Portfolios and/or invest in the Designated Portfolios upon the
making of additional purchase payments under the Existing Contracts. The
parties agree that this Section 12.3 will not apply to any terminations
under Article VII and the effect of such Article VII terminations will be
governed by Article VII of this Agreement.
12.4 Surviving Provisions
Notwithstanding any termination of this Agreement, each party's obligations
under Article VIII to indemnify other parties will survive and not be
affected by any termination of this Agreement. In addition, with respect to
Existing Contracts, all provisions of this Agreement also will survive and
not be affected by any termination of this Agreement.
ARTICLE XIII: NOTICES
Any notice will be deemed duly 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
parties.
If to the Company:
Ameritas Life Insurance Corp.
Attn: General Counsel
0000 0 Xxxxxx
Xxxxxxx, XX 00000
If to the Fund:
Third Avenue Variable Series Trust
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel: W. Xxxxx Xxxx
If to the Adviser:
Third Avenue Management LLC
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel: W. Xxxxx Xxxx
If to the Distributor:
X.X. Xxxxxxx LLC
000 0xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel: W. Xxxxx Xxxx
ARTICLE XIV: MISCELLANEOUS
14.1 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
directors, officers, agents or shareholders assume (nor shall any have) any
personal liability for obligations entered into on behalf of the Fund.
14.2 The Fund and the Adviser acknowledge that the identities of the customers
of the Company or any of its affiliates (collectively the "Protected
Parties" for purposes of this Section 14.2), information maintained
regarding those customers, and all computer programs and procedures
developed by the Protected Parties or any of their employees or agents in
connection with the Company's performance of its duties under this
Agreement are the valuable property of the Protected Parties. The Fund and
the Adviser agree that if they come into possession of any list or
compilation of the identities of or other information about the Protected
Parties' customers, or any other property of the Protected Parties, other
than such information as may be independently developed or compiled by the
Fund or the Adviser from information supplied to them by the Protected
Parties' customers who also maintain accounts directly with the Fund or the
Adviser, the Fund and the Adviser 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 Company's prior written
consent; (b) as required by law or judicial process; or (c) for the
purposes contemplated by this Agreement. The Fund and the Adviser
acknowledge that any breach of the agreements in this Section 14.2 could
result in immediate and irreparable harm to the Protected Parties for which
there might be no adequate remedy at law and agree that in the event of
such a breach, the Protected Parties 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.
14.3 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.
14.4 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together will constitute one and the same instrument.
14.5 If any provision of this Agreement will be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement will
not be affected thereby.
14.6 This Agreement will not be assigned by any party hereto without the prior
written consent of all the parties.
14.7 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, that the parties hereto are entitled to
under state and federal law.
14.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
14.9 Each party to this Agreement will cooperate with each other party and all
appropriate governmental authorities (including, without limitation, the
Commission, the NASD and state insurance regulators) and will permit each
other and 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.
14.10 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate or board action, as applicable, by
such party and when so executed and delivered this Agreement will be the
valid and binding obligation of such party enforceable in accordance with
its terms.
14.11 The schedules to this Agreement (each, a "Schedule;" collectively, the
"Schedules") form an integral part hereof and are incorporated herein by
reference. The parties to this Agreement may agree in writing to amend the
schedules to this Agreement from time to time to reflect changes in or
relating to the Contracts, the Accounts or the Portfolios of the Fund or
other applicable terms of this Agreement. References herein to any Schedule
are to the Schedule then in effect, taking into account any amendments
thereto.
14.12 The parties have entered into or shall enter into a Shareholder
Information Agreement as required by Rule 22c-2 under the 1940 Act in
connection with the Contracts. This Agreement shall control with regard to
the terms of the business relationship described in this Agreement. To the
extent that the terms of the Shareholder Information Agreement conflict
with the terms of this Agreement, the terms of the Shareholder Information
Agreement shall control to the extent required by Rule 22c-2.
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 and its
seal to be hereunder affixed hereto as of the date specified above.
AMERITAS LIFE INSURANCE CORP.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxx
--------------------------------------
Title: Sr. Vice President
-------------------------------------
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxx de Xxxxx
----------------------------------------
Name: Xxxxxx de Xxxxx
--------------------------------------
Title: Second Vice President
-------------------------------------
THIRD AVENUE VARIABLE SERIES TRUST
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------------
Title: President
-------------------------------------
THIRD AVENUE MANAGEMENT LLC
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------------
Title: President
-------------------------------------
X.X.WhHITMAN LLC
By: /s/ Xxxxx X. Xxxxx
----------------------------------------
Name: Xxxxx X. Xxxxx
--------------------------------------
Title: President
-------------------------------------
PARTICIPATION AGREEMENT
SCHEDULE B
SEPARATE ACCOUNTS AND ASSOCIATED CONTRAACTS
The following Separate Accounts and Associated Contracts of Ameritas Life
Insurance Corp. and The Union Central Life Insurance Company are permitted in
accordance with the provisions of this Agreement to invest in Portfolios of the
Fund shown in Schedule B:
Name of Separate Account and Name of Contracts Funded by
Date Established by Board of'Directors Separate Account and Form Number
Ameritas Life Insurance Corp. Low Load Variable Universal
Separate Account LLVL, August 24, 1994 Life Insurance Policy Form 4055
Low Load Survivorship Variable
Universal Life Insurance Policy
form 6065
Ameritas Life Insurance Corp. No Load Variable Annuity Form 4080
Separate Account LLVA, October 26, 1995 No-Load Variable Annuity Form 6150
Carillon Account, February 6, 1984 VA I Policy Form UC 8134
VA II Policy Form UC 8135-1
VA II SA Policy Form UC 8137
VA III Policy Form UC 8138
Carillon Life, July 10, 1995 Excel Accumulator Policy Form UC 8707
PARTICIPATION AGREEMENT
SCHEDULE B
The Separate Account(s) shown on Schedule A may invest in the following
Portfolio(s) of the Fund.
Third Avenue Value Portfolio
PARTICIPATION AGREEMENT
SCHEDULE C
PROXY VOTING PROCEDURES
The following is a list of procedures and corresponding responsibilities for the
handling of proxies and voting instructions relating to the Fund. The defined
terms herein shall have the meanings assigned in the Participation Agreement
except that the term "Company" shall also include the department or third party
assigned by the Company to perform the steps delineated below.
1. The proxy proposals are given to the Company by the Fund as early as
possible before the date set by the Fund for the shareholder meeting to
enable the Company to consider and prepare for the solicitation of voting
instructions from owners of the Contracts and to facilitate the
establishment of tabulation procedures. At this time the Fund will inform
the Company of the Record, Mailing and Meeting dates. This will be done
verbally approximately two months before meeting.
2. Promptly after the Record Date, the Company will perform a "tape run" or
other activity, which will generate the names, addresses and number of
units that are attributed to each contract owner/policyholder (the
"Customer") as of the Record Date. Allowance should be made for account
adjustments made after this date that could affect the status of the
Customers' accounts as of the Record Date.
Note: The number of proxy statements is determined by the activities
described in this Step #2. The Company will use its best efforts to call in
the number of Customers to the Fund as soon as possible, but no later than
two weeks after the Record Date.
3. The Fund's Annual Report must be sent to each Customer by the Company
either before or together with the Customers' receipt of voting instruction
solicitation material. The Fund will provide the last Annual Report to the
Company pursuant to the terms of Section 6.2 of the Agreement to which this
Schedule relates.
4. The text and format for the Voting Instruction Cards ("Cards" or "Card") is
provided to the Company by the Fund. The Company, at its expense, shall
produce and personalize the Voting Instruction Cards. The Fund or its
affiliate must approve the Card before it is printed. Allow approximately
2-4 business days for printing information on the Cards. Information
commonly found on the Cards includes:
- name (legal name as found on account registration)
- address
- Fund or account number
- coding to state number of units
- individual Card number for use in tracking and verification of
votes (already on Cards as printed by the Fund).
(This and related steps may occur later in the chronological process due to
possible uncertainties relating to the proposals.)
5. During this time, the Fund will develop, produce and pay for the Notice of
Proxy and the Proxy Statement (one document). Printed and folded notices
and statements will be sent to Company for insertion into envelopes
(envelopes and return envelopes are provided and paid for by the Company).
Contents of envelope sent to Customers by the Company will include:
- Voting Instruction Card(s)
- one proxy notice. and statement (one document)
- return envelope (postage pre-paid by Company) addressed to the
Company or its tabulation agent
- urge buckslip" - optional, but recommended. (This is a small,
single sheet of paper that requests Customers to vote as quickly
as possible and that their vote is important. One copy will be
supplied by the Fund.)
- cover letter - optional, supplied by Company and reviewed and
approved in advance by the Fund
6. The above contents should be received by the Company approximately 3-5
business days before mail date. Individual in charge at Company reviews and
approves the contents of the mailing package to ensure correctness and
completeness. Copy of this approval sent to the Fund.
7. Package mailed by the Company.
* The Fund must allow at least a 15-day solicitation time to the Company as
the shareowner. (A 5-week period is recommended.) Solicitation time is
calculated as calendar days from (but NOT including) the meeting, counting
backwards.
8. Collection and tabulation of Cards begins. Tabulation usually takes place
in another department or another vendor depending on process used. An often
used procedure is to sort Cards on arrival by proposal into vote categories
of all yes, no, or mixed replies, and to begin data entry. Note: Postmarks
are not generally needed. A need for postmark information would be due to
an insurance company's internal procedure and has not been required by the
Fund in the past.
9. Signatures on Card checked against legal name on account registration that
was printed on the Card. Note: For example, if the account registration is
under "Xxxx X. Xxxxx, Trustee," then that is the exact legal name to be
printed on the Card and that is the signature needed on the Card.
10. If Cards are mutilated, or for any reason are illegible or are not signed
properly, they are sent back to Customer with an explanatory letter and a
new Card and return envelope. The mutilated or illegible Card is
disregarded and considered to be NOT RECEIVED for purposes of vote
tabulation. Any Cards that have been "kicked out" (e.g. mutilated,.
illegible) of the procedure are "hand verified," i.e., examined to
ascertain why they did not complete the system. Any questions on those
Cards are usually remedied individually.
11. There are various control procedures used to ensure proper tabulation of
votes and accuracy of that tabulation. The most prevalent is to sort the
Cards as they first arrive into categories sorted by vote; an estimate of
how the vote is progressing may then be calculated. If the initial
estimates and the actual vote do not coincide, then an internal audit of
that vote should occur. This may entail a recount.
12. The actual tabulation of votes is done in units that are then converted to
shares. (It is very important that the Fund receives the tabulations stated
in terms of a percentage and the number of SHARES.) The Fund must review
and approve tabulation format.
13. The Fund may request an earlier deadline if reasonable and if required to
calculate the vote in time for the meeting.
14. A Certification of Mailing and Authorization to Vote Shares will be
required from the Company as well as an original copy of the final vote.
The Fund will provide a standard form for each Certification.
15. The Company will be required to box and archive the Cards received from the
Customers. In the event that any vote is challenged or if otherwise
necessary for legal, regulatory, or accounting purposes, the Fund will be
permitted reasonable access to such Cards.
16. All approvals and "signing-off" may be done orally, but must always be
followed up in writing.
