Exhibit (h)(4)(i)
PARTICIPATION AGREEMENT
THIS AGREEMENT is made and entered into this 1st day of July, 2003, as
amended and restated May 1, 2004, April 20, 2005 and March 26, 2007 by and among
XXXX XXXXXXX LIFE INSURANCE COMPANY (U.S.A.) (formerly, The Manufacturers Life
Insurance Company (U.S.A.)), a stock life insurance company existing under the
laws of Michigan ("Manulife USA"), XXXX XXXXXXX LIFE INSURANCE COMPANY OF NEW
YORK (formerly, The Manufacturers Life Insurance Company of New York, a stock
life insurance company organized under the laws of New York ("Manulife New
York")), XXXX XXXXXXX LIFE INSURANCE COMPANY ("Xxxx Xxxxxxx") and XXXX XXXXXXX
VARIABLE LIFE INSURANCE COMPANY ("Xxxx Xxxxxxx Life") (Manulife USA Manulife New
Xxxx, Xxxx Xxxxxxx and Xxxx Xxxxxxx Life are each referred to herein as a
"Company" and collectively as the "Companies"), each on behalf of itself and its
variable annuity and variable life insurance separate accounts (each an
"Account;" collectively, the "Accounts"), XXXX XXXXXXX TRUST, formerly,
Manufacturers Investment Trust, a business trust organized under the laws of the
Commonwealth of Massachusetts (the "Trust") and XXXX XXXXXXX DISTRIBUTORS, LLC,
formerly, Manulife Financial Securities LLC, a limited liability company
organized under the laws of Delaware (the "Distributor").
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and its shares are registered under the Securities Act of 1933, as amended (the
"1933 Act");
WHEREAS, the Trust serves as an investment vehicle underlying variable life
insurance and variable annuity contracts issued by the Companies (the
"Contracts");
WHEREAS, the beneficial interest in the Trust is divided into separate
series of shares as identified in the Trust's registration statement under the
1933 Act (as amended from time to time) (the "Funds"), each representing the
interest in a particular portfolio of securities and other assets and each of
which may issue multiple classes of shares;
WHEREAS, the Trust has obtained from the Securities and Exchange Commission
("SEC") an order granting exemptions from certain provisions of and rules under
the 1940 Act to the extent necessary to permit shares of the Trust to be sold to
and held by, among others, variable annuity and variable life insurance separate
accounts ("separate accounts") of both affiliated and unaffiliated life
insurance companies ("Participating Insurance Companies") and certain qualified
pension and retirement plans ("Qualified Plans") (the "Exemptive Order");
WHEREAS, the Distributor serves as the principal underwriter with respect
to each class of shares of the Trust and is registered as a broker-dealer under
the Securities Exchange Act of 1934 (the "1934 Act") and is a member of the
National Association of Securities Dealers, Inc. ("NASD");
WHEREAS, each of the Companies has registered or will register its
Contracts under the 1933 Act, except to the extent a particular Contract is or
will be exempt from such registration;
WHEREAS, each of the Companies has registered or will register each of its
Accounts as a unit investment trust under the 1940 Act, except to the extent a
particular Account is or will be exempt from such registration; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Companies intend to purchase shares of the Funds on behalf of
their respective Accounts to fund the Contracts, and
the Trust is authorized to sell such shares to unit investment trusts such as
each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises set forth herein,
the Companies, the Trust and the Distributor agree as follows:
1. PURCHASE AND REDEMPTION OF FUND SHARES
1.1 Subject to the terms of the Distribution Agreement in effect from time to
time between the Trust and the Distributor, the Trust agrees to make shares of
the Funds available for purchase by the Accounts (including the subaccounts
thereof) at the applicable net asset value per share next computed, in
accordance with the provisions of the then current prospectus and statement of
additional information of the Trust, after receipt by the Trust or its designee
of an order for purchase. The Trust agrees to use reasonable efforts to
calculate such net asset value on each day on which the New York Stock Exchange
is open for trading. Notwithstanding the foregoing, the Board of Trustees of the
Trust (the "Board" or the "Trustees") may refuse to sell shares of any Fund to
any person, or suspend or terminate the offering of shares of any Fund, if such
action is required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of the Trustees acting in good faith and in light of
their fiduciary duties under federal and any applicable state laws, in the best
interests of such Fund and its shareholders (including variable contract
owners).
1.2 Each of the Companies shall submit payment for the purchase of shares of a
Fund on behalf of an Account on the next Business Day after an order to purchase
such shares is made in accordance with the provisions of Section 1.1 hereof.
"Business Day" shall mean any day on which the New York Stock Exchange is open
for trading and on which the Trust calculates the net asset value of shares of
the Funds. Payment shall be in federal funds transmitted by wire to the Trust's
custodian.
1.3 The Trust agrees to redeem for cash (except as otherwise provided in the
Trust's prospectus) any full or fractional shares of any Fund, when requested by
a Company on behalf of an Account, at the net asset value next computed, in
accordance with the provisions of the then current prospectus and statement of
additional information of the Trust, after receipt by the Trust or its designee
of a request for redemption. The Trust shall make payment for such shares in the
manner established from time to time by the Trust. Payment of redemption
proceeds will normally be paid to a Company on behalf of its Account in federal
funds transmitted by wire on the next Business Day after receipt by the Trust or
its designee of a request for redemption.
1.4 Each of the Companies agrees that all purchases and redemptions by its
Accounts of shares of the Funds will be in accordance with the provisions of
then current prospectus and statement of additional information of the Trust and
in accordance with any procedures that the Trust, the Distributor or the Trust's
transfer agent may establish from time to time governing purchases and
redemptions of shares of the Funds generally.
1.5 Payments by a Company for the purchase of shares of the Funds by its
Accounts under Section 1.2 and payments by the Trust of the proceeds of the
redemption of shares of the Funds by such Accounts under Section 1.3 may be
netted against one another on any Business Day for the purpose of determining
the amount of any wire transfer on that Business Day.
1.6 Issuance and transfer of the Trust's shares will be by book entry only.
Share certificates will not be issued. Shares ordered from the Trust will be
recorded on the transfer records of the Trust in an appropriate title for each
Account or the appropriate subaccount of each Account.
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1.7 The Trust will furnish same day notice by e-mail, fax or telephone (if by
telephone, it must be followed by written confirmation) to the Companies of any
income dividends or capital gain distributions payable on the shares of the
Funds. Each of the Companies hereby elects to receive all such income dividends
and capital gain distributions as are payable on shares of a Fund in additional
shares of that Fund. Each of the Companies reserves the right to revoke this
election and to receive all such income dividends and capital gain distributions
in cash. The Trust will notify the Companies or their designee(s) of the number
of shares so issued as payment of such dividends and distributions.
1.8 The Trust will make the net asset value per share for each Fund available to
the Companies on a daily basis as soon as reasonably practical after the net
asset value per share is calculated and shall use its best efforts to make such
net asset value per share available by 7:00 p.m. New York time.
1.9 For purposes of this Article 1, each of the Companies shall be the designee
of the Trust for receipt of purchase orders and requests for redemption relating
to the Funds from each of its Accounts, and receipt by a Company will constitute
receipt by the Trust, provided that the Trust receives notice of a purchase
order or request for redemption by 10:00 am New York time on the next following
Business Day.
1.10 The Trust agrees that shares of the Funds will be sold only to
Participating Insurance Companies and their separate accounts, Qualified Plans,
and other purchasers of the kind specified in Treas. Reg. Section 1.817-5(f)(3)
(or any successor regulation) ("Other Purchasers") as from time to time in
effect.
1.11 Each of the Companies has received a copy of the Exemptive Order and agrees
to perform the obligations of a Participating Insurance Company under such
Order.
2. PROSPECTUSES AND PROXY STATEMENTS; VOTING
2.1 The Trust will prepare and be responsible for filing with the SEC and any
state regulatory authorities requiring such filing all shareholder reports,
proxy materials and prospectuses and statements of additional information of the
Trust. The Trust will bear the costs of registration and qualification of the
shares of the Funds, preparation and filing of the documents listed in this
Section 2.1, and all taxes to which an issuer is subject on the issuance and
transfer of its shares.
2.2 At the option of each of the Companies, the Trust will either (a) provide
the Company with as many copies of the Trust's current prospectus, statement of
additional information, annual report, semi-annual report, proxy materials and
other shareholder communications, including any amendments or supplements to any
of the foregoing, as the Company may reasonably request; or (b) provide the
Company with camera ready copies of such documents in a form suitable for
printing. Subject to Section 4.1 hereof, expenses of furnishing such documents
for marketing purposes will be borne by the Companies, and expenses of
furnishing such documents to current Contract owners will be borne by the Trust.
The Companies assume sole responsibility for ensuring that the Trust's proxy
materials are delivered to Contract owners in accordance with applicable federal
and state securities laws.
2.3 The Trust will use its best efforts to provide the Companies, on a timely
basis, with such information about the Trust, the Funds and the investment
adviser and any subadvisers to any Fund, as the Companies may reasonably request
in connection with the preparation of registration statements, prospectuses and
other materials relating to the Contracts.
2.4 As long as and to the extent that the SEC interprets the 1940 Act to require
pass-through voting privileges for variable contract owners, each of the
Companies (i) will provide pass-through voting privileges to Contract owners
whose Contract values are invested, through Accounts registered with the
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SEC under the 1940 Act, in shares of the Funds, (ii) may, to the extent it deems
appropriate, provide pass-through voting privileges to Contract owners whose
contract values are invested, through Accounts which are not so registered with
the SEC, in shares of the Funds, (iv) when it provides pass-through voting
privileges to Contract owners whose Contract values are invested through an
Account in shares of a Fund, will vote shares held in that Account for which no
Contract owner instructions are timely received by the Company in the same
proportion as those shares of the Fund held in that Account for which Contract
owner instructions are timely received, and (iii) will vote shares of a Fund
which it is otherwise entitled to vote on any matter in the same proportion as
the voting instructions which it has timely received from Contract owners with
respect to that matter. Notwithstanding the foregoing, each of the Companies may
vote shares of a Fund in such other manner as may be required or permitted by
Rule 6e-2 or Rule 6e-3(T) under the 1940 Act or otherwise by the SEC or its
staff.
3. SALES MATERIAL AND INFORMATION
3.1 Each of the Companies will use its best efforts to ensure that sales
literature and other promotional material prepared by it or on its behalf in
which the Trust, a Fund, any investment adviser or subadviser to any Fund or the
Distributor (in its capacity as principal underwriter of the Trust shares) is
named, conforms to all requirements of all applicable federal and state laws and
rules and regulations, including all applicable rules and regulations of the
NASD.
3.2 Neither of the Companies will give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement, prospectus or statement
of additional information for the Trust shares, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in reports or proxy statements for the Trust,
or in sales literature or other promotional material approved by the Trust or
its designee, except with the written approval of the Trust or its designee.
3.3 The Trust will use its best efforts to ensure that sales literature and
other promotional material prepared by it or on its behalf in which a Company,
the Accounts or the Contracts are named, conforms to all requirements of all
applicable federal and state laws and rules and regulations, including all
applicable rules and regulations of the NASD.
3.4 The Trust will not give any information or make any representations or
statements on behalf of or concerning the Companies, the Accounts or the
Contracts in connection with the sale of Trust shares other than the information
or representations contained in the registration statements, prospectuses or
statements of additional information for the Contracts, as such registration
statements, prospectuses and statements of additional information may be amended
or supplemented from time to time, or in published reports for each Account
which are in the public domain or approved by a Company for distribution to
Contract owners, or in sales literature or promotional material approved by a
Company or its designee, except with the written permission of the Company or
its designee.
3.5 The Trust will provide to each of the Companies at least one complete copy
of all registration statements, prospectuses, statements of additional
information, shareholder annual, semi-annual and other reports, proxy
statements, applications for exemptions, requests for no-action letters and any
amendments to any of the foregoing, that relate to the Trust or any Fund
promptly after the filing of each such document with the SEC or any other
regulatory authority.
3.6 Each of the Companies will provide to the Trust at least one complete copy
of all registration statements, prospectuses, statements of additional
information, shareholder annual, semi-annual and other reports, solicitations
for voting instructions, applications for exemptions, requests for no-action
letters and
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any amendments to any of the foregoing, that relate to its Contracts or any of
its Accounts promptly after the filing of each such document with the SEC or any
other regulatory authority.
3.7. Each party hereto will provide to each other party, to the extent it is
relevant to the Contracts or the Trust, a copy of any comment letter received
from the staff of the SEC or the NASD, and such party's response thereto,
following any examination or inspection by the staff of the SEC or the NASD.
3.8 As used herein, the phrase "sales literature and 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, sign or billboard,
motion picture or other public medium), 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.
4. FEES AND EXPENSES
4.1 The Trust will pay no fee or other compensation to the Companies under this
Agreement. If the Trust or any Fund (or any class of shares thereof) adopts and
implements a plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution and other expenses, then the Distributor, or an affiliate thereof,
may make payments to the Companies to the extent consistent with applicable
laws, regulations and rules and such plan.
5. DIVERSIFICATION
5.1 The Trust and each of the Funds will at all times comply with Section 817(h)
of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury
Regulations thereunder, as the same may be amended or modified from time to
time, relating to the diversification requirements for variable annuity,
endowment or life insurance contracts. In addition, neither the Trust nor the
Funds will take any action, or fail to take any action, that results in the
inability of any Account investing in the Funds to treat a portion of each asset
of a Fund as an asset of the Account, in accordance with Treas. Reg. Section
1.817-5(f), for purposes of satisfying the diversification requirements of
Section 817(h) of the Code and the Treasury Regulations thereunder.
6. POTENTIAL CONFLICTS
6.1 To the extent required by the Exemptive Order or by applicable law, the
Board will monitor the Trust for the existence of any material irreconcilable
conflict between or among the interests of variable contract owners whose
contract values are invested through separate accounts, participants in
Qualified Plans and Other Purchasers investing in the Trust and will determine
what action, if any, should be taken in response to any such conflict. A
material irreconcilable conflict may arise for a variety of reasons, including:
(a) an action by any state insurance regulatory authority; (b) a change in
applicable federal or state insurance, tax, or securities laws or regulations,
or a public ruling, private letter ruling, no-action or interpretative letter,
or any similar action by insurance, tax, or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Fund are being managed; (e) a difference
in voting instructions given by variable annuity contract owners, variable life
insurance contract owners and, where applicable, participants in Qualified
Plans; (f) a decision by a Participating Insurance Company to disregard the
voting instructions of variable contract owners; or (g) a decision by a
Qualified Plan, where applicable, to disregard participant voting
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instructions. The Trust will promptly inform the Companies if it determines that
a material irreconcilable conflict exists and of the implications thereof.
6.2 Each of the Companies, on behalf of itself, its Accounts and any of its
affiliates investing in a Fund, will report to the Board any potential or
existing conflict as described in Section 6.1 of which it is or becomes aware.
Each Company will assist the Board in carrying out its responsibilities under
the Exemptive Order and under applicable law by providing the Board with all
information reasonably necessary for the Board to consider any issues raised
with respect to such conflict and by furnishing to the Board, at its reasonable
request annually or more frequently, such other materials or reports as the
Board may deem appropriate. Each of the Companies will inform the Board whenever
it determines to disregard Contract owner voting instructions, and each of the
Companies will carry out its responsibility under this Article 6 with a view
only to the interests of its Contract owners.
6.3 If it is determined by a majority of the Board, or a majority of the
disinterested Trustees, that a material irreconcilable conflict exists with
respect to any Fund, each of the Companies, as applicable, shall, at its own
expense, take whatever steps are necessary to remedy or eliminate the material
irreconcilable conflict, which steps could include: (1) withdrawing the assets
allocable to some or all of its Accounts from the Fund and reinvesting such
assets in a different investment medium, including (but not limited to) another
Fund, or submitting the question of whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., variable annuity contract
owners or variable life insurance contract owners) that votes in favor of such
segregation, or offering to the affected Contract owners the option of making
such a change; and (2) establishing a new registered management investment
company or managed separate account. In the event that the Board determines that
any proposed action by a Company does not adequately remedy any material
irreconcilable conflict, that Company will withdraw the affected Account's
investment in the Trust or a Fund within six months after the Board informs the
Company in writing of the foregoing determination, provided, however, that such
withdrawal will be limited to the extent required by any such material
irreconcilable conflict as determined by a majority of the disinterested
Trustees.
6.4 If a material irreconcilable conflict arises because of a decision by a
Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw the relevant Account's
investment in the Trust or a Fund, as applicable, provided, however, that any
such withdrawal will be limited to the extent required by such material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. Any such withdrawal will take place within six months after the Trust
gives written notice that this provision is being implemented. No charge or
penalty will be imposed as a result of any such withdrawal.
6.5 For purposes of Sections 6.3 through 6.4 of this Agreement, a majority of
the Trustees who are not "interested persons" (as defined in Section 2(a)(19) of
the 0000 Xxx) of the Trust will determine whether any proposed action adequately
remedies any material irreconcilable conflict, but in no event will the Trust be
required to establish a new funding medium for the Contracts. Nor shall a
Company be required by Section 6.3 to establish any new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the material irreconcilable
conflict.
6.6 If and to the extent that Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are
amended, or proposed Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the Act or the rules promulgated thereunder with respect to "mixed
or shared funding" (as understood for purposes of the Exemptive Order) on terms
and conditions materially different from those contained in the Exemptive Order,
then (a)
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the Trust and/or the Companies as well as the other 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 2.4, 6.1, 6.2, 6.3 and 6.4 of
this Agreement shall 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.
6.7 The Trust hereby notifies the Companies that it may be appropriate to
include in prospectuses for the Contracts disclosure regarding potential
conflicts as described in Section 6.1 hereof.
7. REPRESENTATIONS AND WARRANTIES
7.1 Representations and Warranties of the Companies.
(a) Each of the Companies represents and warrants that it is a life
insurance company duly organized or existing and in good standing under
applicable law and that each of its Accounts, prior to any issuance or sale of
any Contracts by such Account and during the term of this Agreement, will be
legally and validly established as a separate account pursuant to relevant state
insurance law and either: (i) will be registered as a unit investment trust in
accordance with the provisions of the 1940 Act; or (ii) will be exempt from such
registration.
(b) Each of the Companies represents and warrants that the Contracts issued
by it are or, prior to the purchase of shares of any Fund in connection with
funding such Contracts, will be registered under the 1933 Act, except to the
extent a particular Contract is exempt from such registration, and will be
issued and sold in compliance in all material respects with all applicable
federal and state laws, including all applicable customer suitability
requirements.
(c) Each of the Companies represents and warrants that its registration
statements for the Contracts and any amendments or supplement thereto will, when
they become effective, conform in all material respects to the requirements of
the 1933 Act and the 1940 Act and the rules and regulations of the SEC
thereunder and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, provided, however, that this representation
and warranty will not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the Company by or on
behalf of the Trust expressly for use therein.
(d) Each of the Companies represents and warrants that its Contracts are
currently and at the time of issuance will be treated as modified endowment,
annuity or life insurance contracts under applicable provisions of the Code and
agrees that it will make every effort to maintain such treatment and will notify
the Trust immediately upon having a reasonable basis for believing that its
Contracts or any of them have ceased to be so treated or might not be so treated
in the future.
(e) Each of the Companies represents and warrants that it will not, without
the prior written consent of the Trust, purchase shares of the Trust with
Account assets derived from the sale of Contracts to individuals or entities
which would cause the investment policies of any Fund to be subject to any
limitations not in the Trust's then current prospectus or statement of
additional information with respect to any Fund.
7.2 Representations and Warranties of the Trust
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(a) The Trust represents and warrants that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts and that it
does and will at all times during the term of this Agreement comply in all
material respects with the 1940 Act.
(b) The Trust represents and warrants that shares of the Funds offered and
sold pursuant to this Agreement will be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of the Commonwealth
of Massachusetts and all applicable federal and state securities laws and that
the Trust is and will remain during the term of this Agreement registered as an
open-end management investment company under the 1940 Act. The Trust agrees that
it 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 permit the continuous
offering of its shares in accordance with the 1933 Act. The Trust will register
and qualify the shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust or the
Distributor.
(c) The Trust represents and warrants that the registration statement for
shares of the Funds and any amendments or supplement thereto will, when they
become effective, conform in all material respects to the requirements of the
1933 Act and the 1940 Act and the rules and regulations of the SEC thereunder
and will not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided, however, that this representation and warranty
will not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Trust by or on behalf of
a Company expressly for use therein.
(d) The Trust represents and warrants that each Fund is currently qualified
as a "regulated investment company" under subchapter M of the Code and agrees
that the Trust will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) and will notify the
Companies promptly upon having a reasonable basis for believing that any Fund
has ceased to so qualify or might not so qualify in the future.
7.3 Representations and Warranties of the Distributor
(a) The Distributor represents and warrants that it is lawfully organized
and validly existing under the laws of Delaware and that it is a member in good
standing of the NASD and registered as a broker-dealer with the SEC.
(b) The Distributor represents and warrants that it will distribute Trust
shares in accordance with all applicable federal and state securities laws.
8. APPLICABLE LAW
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the Commonwealth of Massachusetts
without reference to the principles of conflicts or choice of law thereof.
8.2 This Agreement shall be subject to the provisions of the 1933, 1934 and 1940
Acts, and the rules and regulations thereunder, including such exemptions from
those statutes, rules and regulations as the SEC or its staff may grant
(including, but not limited to, the Exemptive Order) and the terms hereof shall
be interpreted and construed in accordance therewith.
9. TERMINATION
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9.1 This Agreement may be terminated:
(a) by the Trust or a Company, in its entirety or with respect to one or
more Funds, for any reason or for no reason, upon 60 days' advance written
notice to the other party;
(b) by a Company, immediately upon written notice to the Trust, if any Fund
ceases to qualify as a "regulated investment company" under Subchapter M of the
Code or under any successor or similar provision, or if the Company reasonably
believes that any Fund may fail to so qualify; or
(c) pursuant to the provisions of Article 6 ("Potential Conflicts") hereof.
9.2 Notwithstanding any termination of this Agreement, the Trust will, at the
option of a Company, continue to make available to the Company additional shares
of each Fund pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement (the
"Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate investments in the Trust,
redeem investments in the Trust and/or invest in the Trust upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 10.2 shall not apply to any terminations under Article 6 of
this Agreement and that terminations under Article 6 shall be governed by that
Article.
10. NOTICES
10.1 Any notice required under this Agreement shall be sufficiently given when
sent by registered or certified mail, by facsimile transmission (provided that a
copy is also sent by registered or certified mail) or by a nationally recognized
overnight delivery service, 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 Trust:
Xxxx Xxxxxxx Trust
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Fax No.: (000) 000-0000
If to the Distributor:
Xxxx Xxxxxxx Distributors, LLC
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxxx
Fax No.: (000) 000-0000
If to Manulife USA:
Xxxx Xxxxxxx Life Insurance Company (U.S.A.)
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Fax No.: (000) 000-0000
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If to Manulife New York:
Xxxx Xxxxxxx Life Insurance Company of New York
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Fax No.: (000) 000-0000
11. MISCELLANEOUS
11.1 A copy of the Agreement and Declaration of Trust establishing the Trust (as
amended from time to time) is on file with the Office of the Secretary of the
Commonwealth of Massachusetts, and notice is hereby given that this Agreement is
executed on behalf of the Trust by officers of the Trust as officers and not
individually and that the obligations of the Trust or of any Fund under or
arising out of this Agreement are not binding upon any of the Trustees, officers
or shareholders of the Trust individually but are binding only upon the assets
and property belonging to the Trust or to a particular Fund as the case may be.
11.2 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
11.3 This Agreement contains the entire understanding of the parties with
respect to the subject matter hereof, may be executed in two or more
counterparts which together will constitute one and the same instrument, may not
be assigned by a Company or the Trust without the written consent of the other,
and will inure to the benefit of and be binding upon the parties and their
respective successors and assigns.
11.4 If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement will not be
affected thereby.
11.5 Each party hereto will cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, NASD and state
insurance regulators) and will permit such authorities reasonable access to its
books and records in connection with any investigation or inquiry relating to
this Agreement or the transactions contemplated hereby.
11.6 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, to which the parties hereto are entitled or subject under
state and federal laws.
12. INDEMNIFICATION
12.1 Indemnification by the Companies. Each Company agrees to indemnify and hold
harmless the Trust and the Distributor and each member of their Boards and each
of their officers, employees and agents and each person, if any, who controls
the Trust or the Distributor within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 12.1)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Company) or expenses (including
the reasonable costs of investigating or defending any alleged loss, claim,
damage, liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Indemnified Parties
may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
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(a) arise out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in a registration statement prospectus
or profile (if any) for the Contracts or in the Contracts themselves or in sales
literature generated or approved by the Company on behalf of the Contracts or
Accounts (or any amendment or supplement to any of the foregoing) (collectively
"Company Documents" for the purposes of this Article 12), or arise out of or are
based upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to: (i) the Trust or
any of its Indemnified Parties if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately derived from
written information furnished to the Company by or on behalf of the Trust for
use in Company Documents or otherwise for use in connection with the sale of the
Contracts or Trust shares; or (ii) the Distributor or any of its Indemnified
Parties if such statement or omission or such alleged statement or omission was
made in reliance upon and was accurately derived from written information
furnished to the Company by or on behalf of the Distributor for use in Company
Documents or otherwise for use in connection with the sale of the Contracts or
Trust shares; or
(b) arise out of or result from statements or representations (other than
statements or representations contained in and accurately derived from Trust
Documents as defined in Section 12.2(a)) or wrongful conduct of the Company or
persons under its control, with respect to the sale or distribution of the
Contracts or Trust shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in the Trust Documents as defined in
Section 12.2(a) or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading if such a statement or omission was made in reliance upon and
accurately derived from written information furnished to the Trust or the
Distributor by or on behalf of the Company; or
(d) arise out of or result from any failure by the Company to perform its
obligations under this Agreement; or
(e) arise out of or result from any material breach of any representation
and/or warranty made by the Company or arise out of or result from any other
material breach of this Agreement.
12.2. Indemnification by the Distributor. The Distributor agrees to indemnify
and hold harmless each Company and each of its directors, trustees, officers,
employees and agents and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 12.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Distributor) or expenses (including the reasonable costs of
investigating or defending any alleged loss, claim, damage, liability or expense
and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Indemnified Parties may become subject
under any statute or regulation, or at common law or otherwise, insofar as such
Losses:
(a) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
prospectus for the Trust (or any amendment or supplement thereto) (collectively,
"Trust Documents" for purposes of this Article 12), or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to any Indemnified
Party if such statement or omission or such alleged statement or omission was
made in reliance upon and was accurately derived from written information
furnished to the
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Distributor or the Trust by or on behalf of the Company for use in the Trust
Documents or otherwise for use in connection with the sale of the Contracts or
Trust shares; or
(b) arise out of or result from of statements or representations (other
than statements or representations contained in and accurately derived from
Company Documents) or wrongful conduct of the Distributor or the Trust or
persons under their control, with respect to the sale or distribution of the
Contracts or Trust shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon and accurately derived from
written information furnished to the Company by or on behalf of the Distributor
or the Trust; or
(d) arise out of or result from any failure by the Distributor or the Trust
to provide the services or furnish the materials required under the terms of
this Agreement; or
(e) arise out of or result from any material breach of any representation
and/or warranty made by the Distributor or the Trust in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Distributor or the Trust (including a failure whether unintentional, or in good
faith, or otherwise, to comply with the diversification and other qualification
requirements specified in this Agreement).
12.3 None of the parties to this Agreement shall be liable under the
indemnification provisions of Sections 12.1 or 12.2, as applicable, with respect
to any Losses incurred or assessed against an Indemnified Party that arise from
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement.
12.4 None of the parties to this Agreement shall be liable under the
indemnification provisions of Section 12.1 or 12.2, as applicable, with respect
to any claim made against an Indemnified Party unless such Indemnified Party
shall have notified the other parties in writing within a reasonable time after
the summons or other first written notification giving information of the nature
of the claim shall have been served upon or otherwise received by such
Indemnified Party (or after such Indemnified Party shall have received notice of
service upon any designated agent), but failure to notify the party against whom
indemnification is sought of any such claim shall not relieve that party from
any liability which it may have to the Indemnified Party in the absence of
Sections 12.1 and 12.2.
12.5 In case any such action is brought against the Indemnified Parties, the
indemnifying party shall be entitled to participate, at its own expense, in the
defense of such action. The indemnifying party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the party named in
the action. After notice from the indemnifying party to the Indemnified Party of
an election to assume such defense, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the indemnifying
party will not be liable to Indemnified Party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
as of the date first written above.
XXXX XXXXXXX LIFE INSURANCE COMPANY
(U.S.A.)
(on behalf of itself and its Accounts)
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXX XXXXXXX LIFE INSURANCE COMPANY
OF NEW YORK
(on behalf of itself and its Accounts)
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXX XXXXXXX INSURANCE COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXX XXXXXXX VARIABLE LIFE INSURANCE
COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXX XXXXXXX TRUST
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
XXXX XXXXXXX DISTRIBUTORS, LLC
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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