Exhibit 23(h)(vi) under Form N-1A
Exhibit 10 under Item 601/Reg. S-K
PARTICIPATION AGREEMENT
Among
HUNTINGTON VA FUNDS,
EDGEWOOD SERVICES, INC.,
HUNTINGTON ASSET ADVISORS, INC.,
and
TRANSAMERICA LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of the 1st day of December,
2003, by and among TRANSAMERICA LIFE INSURANCE COMPANY, an Iowa corporation
(the "Company"), on its own behalf and on behalf of each segregated asset
account of the Company set forth on Schedule A hereto as may be amended from
time to time (each such account hereinafter referred to as an "Account");
HUNTINGTON VA FUNDS, a Massachusetts business trust (the "Trust"), on its
behalf and on behalf of each of its series set forth in Schedule A; EDGEWOOD
SERVICES, INC., a New York corporation (the "Distributor"); and HUNTINGTON
ASSET ADVISORS, INC., a registered investment advisor (the "Advisor").
WHEREAS, the Trust engages in business as an open-end, management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and
variable annuity contracts (collectively, the "Variable Insurance Products")
to be issued by the Company; and
WHEREAS, the beneficial interest in the Trust is divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets, any one or more of which may be
made available under this Agreement, as set forth on Schedule A hereto and as
may be amended from time to time by mutual agreement of the parties hereto
(each such series hereinafter referred to as a "Fund"); and
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"); and
WHEREAS, the Trust has engaged the Advisor, an investment adviser
registered under the federal Investment Advisers Act of 1940 (the "Advisers
Act") and any applicable state securities law, to provide investment advisory
services, including managing the Funds pursuant to applicable diversification
requirements of the Internal Revenue Code of 1986 (the "Code"); and
WHEREAS, the Company has registered or will register the variable life
insurance and variable annuity contracts listed on Schedule A, as it maybe
amended from time to time (the "Contracts") under the 1933 Act or will not
register the contracts in proper reliance on an exemption from registration
under the 1933 Act and the 1940 Act; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set
aside and invest assets attributable to the aforesaid variable annuity
contracts; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act; and
WHEREAS, the Distributor is registered as a broker dealer with the
Securities and Exchange Commission ("SEC") under the Securities Exchange Act
of 1934, as amended, (the "1934 Act"), and is a member in good standing of
the National Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, the Trust has obtained an order from the SEC granting
participating insurance companies and their separate accounts exemptions
under Section 6(c) of the 1940 Act from the provisions of Sections 9(a),
13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Trust to be sold to and held by variable annuity and variable life insurance
separate accounts of both affiliated and nonaffiliated life insurance
companies and certain qualified pension and retirement plans (the "Shared
Exemptive Order"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds on behalf of
each Account to fund certain of the aforesaid variable life and variable
annuity contracts and the Distributor is authorized to sell such shares to
unit investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants hereinafter set forth, the Company, the Trust, and the
Advisor and the Distributor agree as follows:
ARTICLE I. Sale of Trust Shares
1.1. The Distributor agrees to sell to the Company those shares of the
Funds which each Account orders, and agrees to execute such orders on each
day on which the New York Stock Exchange is open for trading and the Funds
calculate their net asset value pursuant to rules of the SEC, all as
described in the Funds' registration statement (a "Business Day") at the net
asset value next computed after receipt and acceptance by the Trust or its
designee of the order for the shares of the Funds. For purposes of this
Section 1.1, the Company shall be the designee of the Trust for receipt of
such orders from each Account and receipt by such designee shall constitute
receipt by the Trust; provided that the Trust receives notice of such order
in accordance with the requirements set forth in Schedule B.
1.2. The Trust agrees to make its shares available for purchase at the
applicable net asset value per share by the Company and its Accounts on each
Business Day. Notwithstanding the foregoing, the Board of Trustees of the
Trust (the "Board") 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 Board acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, necessary in
the best interests of the shareholders of such Fund.
1.3. The Trust and the Distributor agree that shares of the Funds will
be sold only to the Company and its Accounts or to other life insurance
companies that offer variable annuity and/or variable life insurance
contracts to the public and which have entered into an agreement with the
Trust, and to other persons not inconsistent with each Fund being adequately
diversified pursuant to Section 817(h) of the Code, and the regulations
thereunder. No shares of any Fund will be sold to the general public to the
extent inconsistent with such Fund being adequately diversified pursuant to
Section 817(b) of the Code, and the regulations thereunder.
1.4. Upon receipt of a request for redemption in proper form from the
Company, the Trust agrees to redeem directly any full or fractional shares of
the Fund held by the Company, ordinarily executing such requests on each
Business Day at the net asset value next computed after receipt and
acceptance by the Trust or its designee of the request for redemption except
that the Trust reserves the right to suspend the right of redemption,
consistent with Section 22(e) of the 1940 Act and any rules thereunder. Such
redemption shall be paid consistent with applicable rules of the SEC and
procedures and policies of the Trust as described in the current registration
statement. For purposes of this Section 1.4, the Company shall be the
designee of the Trust for the limited purpose of receiving and accepting
purchase and redemption orders from each Account and receipt by such designee
shall constitute receipt by the Trust; provided that the Trust receives
notice of such request for redemption in accordance with the requirements set
forth in Schedule B. The Company agrees to submit such orders electronically
through secured trading systems as described on Schedule B to this Agreement
or, if it is unable to submit orders electronically, the Company shall submit
such orders through manual transmissions using the procedures described in
Schedule B to this Agreement.
1.5. The Company agrees that purchases and redemptions of Fund shares
offered by the then current prospectus of the Trust shall be made in
accordance with the provisions of such prospectus.
1.6. Unless otherwise specified in Schedule B, the Company shall pay
for Trust shares on the next Business Day after an order to purchase Trust
shares is made in accordance with the provisions of Section 1.1 hereof.
Payment shall be in federal funds transmitted by wire. For purpose of
Section 2.10 and 2.11, upon receipt by the Trust of the federal funds so
wired, such funds shall cease to be the responsibility of the Company and
shall become the responsibility of the Trust.
1.7. Issuance and transfer of Fund shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Shares
ordered from the Funds will be recorded in an appropriate title for each
Account or the appropriate subaccount of each Account. The Trust shall
furnish to the Company the CUSIP number assigned to each Fund identified in
Schedule A attached, as may be amended from time to time.
1.8. Unless otherwise specified in Schedule B, the Trust shall furnish
same day notice (by wire or telephone, followed by written confirmation) to
the Company of any income, dividends or capital gain distributions payable on
the Fund's shares. The Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on the Fund shares in
additional shares of that Fund. The Company reserves the right to revoke
this election in writing and to receive all such income dividends and capital
gain distributions in cash. The Trust or its agent shall notify the Company
of the number of shares so issued as payment of such dividends and
distributions.
1.9. Unless otherwise specified in Schedule B, the Trust shall make
the net asset value per share for each Fund available to the Company on each
Business Day as soon as reasonably practical after the net asset value per
share is calculated and shall use its best efforts to make such net asset
value per share available by 6:00 p.m. Central Time.
A. If the Trust or its agent provides materially incorrect share net
asset value information through no fault of the Company, the Accounts shall
be entitled to an adjustment with respect to the Fund shares purchased or
redeemed to reflect the correct net asset value per share.
B. The determination of the materiality of any net asset value
pricing error and its correction shall be based on the SEC's recommended
guidelines regarding these errors. Any material error in the calculation or
reporting of net asset value per share, dividend or capital gain information
shall be reported promptly to the Company upon discovery. The Trust and/or
its agents shall indemnify and hold harmless the Company against any amount
the Company is legally required to pay qualified plans ("Plans") or Contract
owners, and which amount is due to the Trust's or its agents' material
miscalculation and/or incorrect reporting of the daily net asset value,
dividend rate or capital gains distribution rate. The Company shall submit
an invoice to the Trust or its agents for such losses incurred as a result of
the above which shall be payable within sixty (60) days of receipt. Should a
material miscalculation by the Trust or its agents result in a gain to the
Company, the Company shall immediately reimburse the Trust or its agents for
any amount lost by the Trust or its agents as a result of the incorrect
calculation. Should a material miscalculation by the Trust or its agents
result in a gain to the Plans or Contract owners, the Company will consult
with the Trust or its designee as to what reasonable efforts shall be made to
recover the money and repay the Trust or its agents. The Company shall then
make such reasonable effort, at the expense of the Trust or its agents, to
recover the money and repay the Trust or its agents; but the Company shall
not be obligated to take legal action against the Plans or Contract owners.
With respect to the material errors or omissions relating to net asset
value pricing, this section shall control over other indemnification
provisions in this Agreement.
1.10. The Parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Trust's shares may be sold to other
insurance companies (subject to Section 1.3 and Article VI hereof) and the
cash value of the Contracts may be invested in other investment companies.
ARTICLE IB. General Duties
1.11. The Company shall take all such actions as are necessary under
applicable federal and state law to permit the sale of the Contracts issued
by the Company, including registering each Account as an investment company
to the extent required under the 1940 Act, and registering the Contracts or
interests in the Accounts under the Contracts to the extent required under
the 1933 Act, and obtaining all necessary approvals to offer the Contracts
from state insurance commissioners.
1.12. The Company shall make every effort to maintain the treatment of
the Contracts issued by the Company as annuity contracts or life insurance
policies, whichever is appropriate, under the applicable provisions of the
Code, and shall notify the Trust and the Distributor immediately upon having
a reasonable basis for believing that such Contracts have ceased to be so
treated or that they might not be so treated in the future. In that regard,
the Company shall make every effort to remedy any Contract's failure to be
treated as annuity contracts or life insurance policies, as appropriate,
under applicable provisions of the Code, including Section 72 and regulations
thereunder within the required time frames.
1.13. The Company or its agents shall offer and sell the Contracts in
accordance with applicable provisions of the 1933 Act, the 1934 Act, the 1940
Act, the NASD Rules of Fair Practice, and state insurance law respecting the
offering of variable life insurance policies and variable annuity contracts.
1.14. The Distributor shall sell and distribute the shares of the
Funds in accordance with the applicable provisions of the 1933 Act, the 1934
Act, the 1940 Act, the NASD Rules of Fair Practice, and state law.
1.15. During such time as the Trust engages in activities that require
a Shared Exemptive Order, a majority of the Trust's Board shall consist of
persons who are not "interested persons" of the Trust, as defined by Section
2(a)(19) of the 1940 Act and the rules thereunder, and as modified by any
applicable orders of the SEC ("Disinterested Trustees"), except that if this
provision is not met by reason of the death, disqualification, or bona fide
resignation of any Trustee or Trustees, then the operation of this provision
shall be suspended (a) for a period of 45 days if the vacancy or vacancies
may be filled by the Trust's Board; (b) for a period of 60 days if a vote of
shareholders is required to fill the vacancy or vacancies; or (c) for such
longer period as the SEC may prescribe by rule or order upon application.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act; or that the Contracts are not
registered in proper reliance on an exemption from registration under the
1933 Act; that the Contracts will be issued and sold in compliance in all
material respects with applicable provisions of the 1933 Act, the 1934 Act,
the 1940 Act, the NASD Rules of Fair Practice, and state insurance law
respecting the offering of variable life insurance policies and variable
annuity contracts and that the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements. The Company
further represents and warrants that it is an insurance company duly
organized and in good standing under applicable law, that it is taxed as an
insurance company under Subchapter L of the Code and that it has legally and
validly established each Account prior to any issuance or sale thereof as a
segregated asset account under Section 508A.1 of the Iowa Insurance Code and
has registered or, prior to any issuance or sale of the Contracts, will
register each Account 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 that the Company will not register the Account in proper
reliance upon an exclusion from registration under the1940 Act.
2.2. The Trust represents and warrants that Fund shares sold pursuant
to this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with applicable federal and state securities
laws and that the Trust is and shall remain registered under the 1940 Act.
The Trust shall 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 Trust shall register and qualify
the Fund 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.
2.3. The Trust and the Advisor represent that each Fund intends to
qualify as a Regulated Investment Company under Subchapter M of the Code and
that the Trust and the Advisor will make every effort to maintain such
qualification (under Subchapter M or any successor or similar provision) and
that the Trust and the Advisor will notify the Company immediately upon
having a reasonable basis for believing that a Fund has ceased to so qualify
or that it might not so qualify in the future.
2.4. The Company represents that the Contracts are currently treated
as endowment or annuity insurance contracts, under applicable provisions of
the Code and that it will make every effort to maintain such treatment and
that it will notify the Trust and the Distributor 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. In that regard,
the Company shall make every effort to remedy any variable contract's failure
to be treated as annuity contracts or life insurance policies, as
appropriate, under applicable provisions of the Code, including Section 72
and regulations thereunder within the required time frames.
2.5. The Trust represents and warrants that should it ever desire to
make any payments to finance distribution expenses pursuant to Rule 12b-1
under the 1940 Act, the Trustees, including a majority who are Disinterested
Trustees, will formulate and approve any plan under Rule 12b-1 to finance
distribution expenses. To the extent that any Class of the Fund may finance
its distribution expenses pursuant to a Plan adopted under Rule 12b-1, the
Fund undertakes to comply with any then current SEC and SEC staff
interpretations concerning Rule 12b-1 or any successor provisions.
2.6. The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various
states except that the Trust represents that the Trust's investment policies,
fees and expenses are and shall at all times remain in compliance with the
laws of the Commonwealth of Massachusetts and the Trust and the Distributor
represent that their respective operations are and shall at all times remain
in material compliance with the laws of the Commonwealth of Massachusetts to
the extent required to perform this Agreement.
2.7. The Distributor represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC.
The Distributor further represents that it will sell and distribute the Trust
shares in accordance with all applicable state and federal securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 1940 Act,
and the NASD Rules of Fair Practice.
2.8. The Trust represents that it is lawfully organized and validly
existing under the laws of Commonwealth of Massachusetts and that it does and
will comply in all material respects with the 1940 Act.
2.9. The Advisor represents and warrants that it is and shall remain
duly registered as an investment adviser in all material respects under all
applicable federal and state securities laws and that the Advisor shall
perform its obligations for the Trust in compliance in all material respects
with any applicable state and federal securities laws.
2.10. The Trust represents and warrants that all of its trustees,
officers, employees, investment advisers, and other individuals/entities
dealing with the money and/or securities of the Trust are and shall continue
to be at all times covered by a blanket fidelity bond or similar coverage for
the benefit of the Trust in an amount not less than the minimal coverage as
required currently by Rule 17g-(1) under the 1940 Act or related provisions
as may be promulgated from time to time. The aforesaid Bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
2.11. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities
dealing with the money and/or securities of the Trust are covered by a
blanket fidelity bond or similar coverage for the benefit of the Trust, and
that said bond is issued by a reputable bonding company, includes coverage
for larceny and embezzlement, and is in an amount not less than $5 million.
The Company agrees to make all reasonable efforts to see that this bond or
another bond containing these provisions is always in effect, and agrees to
notify the Trust and the Distributor in the event that such coverage no
longer applies.
2.12. Provided it is consistent with their fiduciaries duties, the
Company and its agents will not in any way recommend any proposal in
opposition to, or oppose or interfere with, any proposal submitted by the
Fund at a meeting of owners of Contracts or shareholders of the Fund, and
will in no way recommend any proposal in opposition to, or oppose or
interfere with, the solicitation of proxies by the Fund of shares held by
Contract owners, without the prior written consent of the Fund.
2.13. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities having jurisdiction (including, without
limitation, the SEC, the NASD, and state insurance regulators) and shall
permit such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Distributor shall provide the Company with as many printed
copies of the Trust's current prospectus and Statement of Additional
Information (describing only the designated Funds listed on Schedule A) or,
to the extent existing, the Trust's profiles as the Company may reasonably
request. If requested by the Company in lieu thereof, the Trust shall
provide camera-ready film or an electronic file in a format acceptable to the
Company containing the Trust's prospectus and Statement of Additional
Information, and such other assistance as is reasonably necessary in order
for the Company once each year (or more frequently if the prospectus and/or
Statement of Additional Information for the Trust is amended during the year)
to have the prospectus for the Contracts and the Trust's prospectus printed
together in one document, and to have the Statement of Additional Information
for the Trust and the Statement of Additional Information for the Contracts
printed together in one document. Alternatively, the Company may print the
Trust's prospectus and/or its Statement of Additional Information in
combination with other fund companies' prospectuses and statements of
additional information. In such event, the Trust shall bear its pro rata
share of printing expenses based on the number of combined printed pages.
All such documents shall be provided to the Company within time reasonably
required to allow for printing and delivery to Contract owners, but no later
than five business days prior to the date the documents are required under
then-current regulations to be sent to Contract owners. Except as provided
in the following three sentences, all expenses of printing and distributing
Trust prospectuses and Statements of Additional Information shall be the
expense of the Company. For prospectuses and Statements of Additional
Information provided by the Company to its existing owners of Contracts in
order to update disclosure annually as required by the 1933 Act and/or the
1940 Act, the cost of printing shall be borne by the Trust. If the Company
chooses to receive camera-ready film or an electronic file in lieu of
receiving printed copies of the Trust's prospectus, the Trust will reimburse
the Company in an amount equal to the product of A and B where A is the
number of such prospectuses distributed to owners of the Contracts, and B is
the Trust's per unit cost of typesetting and printing the Trust's
prospectus. The same procedures shall be followed with respect to the
Trust's Statement of Additional Information.
The Company agrees to provide the Trust or its designee with such
information as may be reasonably requested by the Trust to assure that the
Trust's expenses do not include the cost of printing any prospectuses or
Statements of Additional Information other than those actually distributed to
existing owners of the Contracts.
3.2. The Trust's prospectus shall state that the Statement of
Additional Information for the Trust is available from the Distributor or the
Company (or in the Trust's discretion, the Prospectus shall state that such
Statement is available from the Trust).
3.3. At its expense, the Trust shall provide the Company with copies
of the Trust's proxy statements, reports to shareholders, and other required
shareholder communications (except for prospectuses and Statements of
Additional Information, which are covered in Section 3.1) to shareholders in
such quantity as the Company shall reasonably require for distributing to
Contract owners.
3.4. If and to the extent required by law the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Trust shares in accordance with instructions received
from Contract owners; and
(iii) vote Trust shares for which no instructions have been received in a
particular separate account in the same proportion as Trust
shares of such Fund for which instructions have been received in
that separate account, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require pass-through
voting privileges for variable contract owners. The Company
reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law.
3.5. The Company shall be responsible for assuring that each of its
separate accounts participating in the Trust calculates voting privileges as
required by the Shared Exemptive Order and consistent with any reasonable
standards the Trust may adopt.
3.6. The Trust will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Trust will either
provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Trust is not one of the trusts described in Section 16(c) of
that Act) as well as with Sections 16(a) and, if and when applicable, 16(b).
Further, the Trust will act in accordance with the SEC's interpretation of
the requirements of Section 16(a) with respect to periodic elections of
trustees and with whatever rules the Commission may promulgate with respect
thereto.
3.7. If and during the time as the Trust engages in activities that
require a Shared Exemptive Order, the Trust shall disclose in its prospectus
or Statement of Additional Information that (1) the Funds are intended to be
funding vehicles for variable annuity and variable life insurance contracts
offered by various insurance companies, (2) material irreconcilable conflicts
possibly may arise, and (3) the Board will monitor events in order to
identify the existence of any material irreconcilable conflicts and to
determine what action, if any, should be taken in response to any such
conflict. The Trust hereby notifies the Company that prospectus or Statement
of Additional Information disclosure may be appropriate regarding potential
risks of offering shares of the Funds to separate accounts funding Contracts
of unaffiliated life insurance companies.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the
Trust or its designee, each piece of sales literature or other promotional
material in which the Trust, the Advisor or the Distributor is named, at
least fifteen Business Days prior to its use. No such material shall be used
if the Trust or its designee reasonably objects to such use within fifteen
Business Days after receipt of such material.
4.2. The Company shall not 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 or prospectus for the
Trust shares, as such registration statement and prospectus 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 or by the Distributor, except with the permission of
the Trust or the Distributor or the designee of either.
4.3. The Trust, the Advisor, the Distributor, or its designee shall
furnish, or shall cause to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material in which the Company
and/or its separate account(s), is named at least fifteen Business Days prior
to its use. No such material shall be used if the Company or its designee
reasonably objects to such use within fifteen Business Days after receipt of
such material.
4.4. The Trust, the Advisor, and the Distributor shall not give any
information or make any representations 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 or
prospectus for the Contracts, as such registration statement and prospectus
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 the Company for
distribution to Contract owners, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission
of the Company.
4.5. The Trust will provide to the Company at least one complete copy
of all registration statements, prospectuses, Statements of Additional
Information, 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 Trust or
its shares, promptly after the filing of such document with the SEC or other
regulatory authorities.
4.6. The Company will provide to the Trust at least one complete copy
of all registration statements, prospectuses, Statements of Additional
Information, 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, promptly after the filing of such document with
the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, any of the
following that refer to the Trust or any affiliate of the Trust:
advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone or
tape recording, videotape display, signs or billboards, motion pictures, or
other public media), sales literature (i.e., any written communication
distributed or made generally available to customers or the public, including
brochures, circulars, 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,
and registration statements, prospectuses, Statements of Additional
Information, shareholder reports, and proxy materials.
ARTICLE V. Fees and Expenses
5.1. The Distributor shall pay no fee or other compensation to the
Company under this agreement, except that if the Trust or any Fund adopts and
implements a plan pursuant to Rule 12b-1 to finance distribution expenses,
then the Trust or Distributor may make payments to the Company or to the
underwriter for the Contracts if and in amounts agreed to by the Distributor
in writing and such payments will be made out of existing fees otherwise
payable to the Distributor, past profits of the Distributor or other
resources available to the Distributor. However, the parties reserve the
right to agree to compensate the Company in return for services it provides
by executing a Schedule to this Agreement or a separate agreement for
services.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. The Trust shall see to it that all its
shares are registered and authorized for issuance in accordance with
applicable federal law and, if and to the extent deemed advisable by the
Trust, in accordance with applicable state laws prior to their sale. The
Trust shall bear the expenses for the cost of registration and qualification
of the Trust's shares, preparation and filing of the Trust's prospectus and
registration statement, proxy materials and reports, setting the prospectus
in type, setting in type and printing the proxy materials and reports to
shareholders (including the costs of printing a prospectus that constitutes
an annual report), the preparation of all statements and notices required by
any federal or state law, and all taxes on the issuance or transfer of the
Trust's shares.
5.3. The Company shall bear the expenses of distributing the Trust's
prospectus, proxy materials and reports to owners of Contracts issued by the
Company.
ARTICLE VI. Diversification
6.1. The Trust and the Advisor represent and warrant that the Funds
currently comply, and will continue to comply, with the diversification
provisions of Section 817(h) of the Code and Treasury Regulation 1.817-5,
relating to the diversification requirements for variable annuity, endowment,
or life insurance contracts and any amendments or other modifications to such
Section or Regulations. In the event of a breach of this Article VI by the
Advisor or the Trust, each will take all reasonable steps (a) to notify the
Company of such breach and (b) to adequately diversify the Trust so as to
achieve compliance within the grace period afforded by Regulation 1.817-5.
ARTICLE VII. Potential Conflicts
7.1. If the Trust determines to offer Fund shares to any other
insurance company, separate account or to a qualified plan, then the Trust
shall furnish the Company with a copy of its application for an order of the
SEC under Section 6(c) of the 1940 Act for mixed and shared funding relief,
and the notice of such application and order when issued by the SEC. The
Company agrees to comply with the conditions on which such order is issued,
including reporting any potential or existing conflicts promptly to the Board
of Trustees of the Trust ("Board"), and in particular whenever contract owner
voting instructions are disregarded, to the extent such conditions are not
materially different from the conditions of the mixed and shared funding
relief that the Company has agreed to be bound by in similar participation
agreements with other fund providers, and recognizes that it shall be
responsible for assisting the Board in carrying out is responsibilities in
connection with such order. The Company agrees to carry out such
responsibilities with a view to the interests of existing contract owners.
If and during the time that the Trust engages in activities that require a
Shared Exemptive Order, the parties shall comply with this Article VII.
7.2 The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Trust. An irreconcilable material
conflict may arise for a variety of reasons, including: (a) an action by any
state insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Fund are being managed; (e) a
difference in voting instructions given by variable annuity contract and
variable life insurance contract owners or trustees of qualified pension or
retirement plans; or (f) a decision by an insurer to disregard the voting
instructions of contract owners or if applicable, a decision by a qualified
pension or retirement plan to disregard the voting instructions of its
participants. The Board shall promptly inform the Company if it determines
that an irreconcilable material conflict exists and the implications thereof.
7.3. The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in
carrying out its responsibilities under the Shared Exemptive Order by
providing the Board with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever contract owner voting
instructions are disregarded. The Company shall carry out its
responsibilities under this Section 7.3 with a view only to the interests of
the contract owners.
7.4. If it is determined by a majority of the Board, or a majority of
its Disinterested Trustees, that a material irreconcilable conflict exists,
the Company shall, at its expense and to the extent reasonably practicable
(as determined by a majority of the Disinterested Trustees), take whatever
steps are necessary to remedy or eliminate the irreconcilable material
conflict, up to and including: (1) withdrawing the assets allocable to some
or all of the separate accounts from the Trust or any Fund and reinvesting
such assets in a different investment medium, including (but not limited to)
another Fund of the Trust, or submitting the question 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.,
annuity contract owners, life insurance contract owners, or variable contract
owners of the Company) 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.
7.5. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and
that decision represents a minority position or would preclude a majority
vote, the Company shall be required, at the Trust's election, to withdraw the
affected Account's investment in the Trust and terminate this Agreement with
respect to such Account; provided, however that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the Disinterested
Trustees of the Board. Any such withdrawal and termination must take place
within six (6) months after the Trust gives written notice that this
provision is being implemented, and until the end of that six month period
the Distributor and Trust shall continue to accept and implement orders by
the Company for the purchase (and redemption) of shares of the Trust.
7.6. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Account's investment in the Trust and terminate this Agreement with
respect to such Account within six months after the Board informs the Company
in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the Disinterested
Trustees of the Board. Until the end of the foregoing six month period, the
Distributor and Trust shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Trust.
7.7. For purposes of Sections 7.4 through 7.7 of this Agreement, a
majority of the Disinterested Trustees of the Board shall determine whether
any proposed action adequately remedies any irreconcilable material conflict,
but in no event will the Trust be required to establish a new funding medium
for the Contracts. The Company shall 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 materially adversely
affected by the irreconcilable material conflict. In the event that the Board
determines that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six (6)
months after the Board informs the Company in writing of the foregoing
determination, provided, however, that such withdrawal and termination shall
be limited to the extent required by any such material irreconcilable
conflict as determined by a majority of the Disinterested Trustees of the
Board.
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 Shared Exemptive Order) on terms and
conditions materially different from those contained in the Shared Exemptive
Order, then the Trust and/or the Company, as appropriate, shall take such
steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended,
and Rule 6e-3, as adopted, to the extent such rules are applicable.
7.9. The Company, at least annually, shall submit to the Board such
reports, materials, or data as the Board reasonably may request so that the
Trustees may fully carry out the obligations imposed upon the Board by the
conditions contained in the application for the Shared Exemptive Order and
said reports, materials, and data shall be submitted more frequently if
deemed appropriate by the Board.
7.10 All reports of potential or existing conflicts received by the
Board and all Board action with regard to determining the existence of a
conflict, notifying participating insurance companies of a conflict, and
determining whether any proposed action adequately remedies a conflict, shall
be properly recorded in the minutes of the Board or other appropriate
records, and such minutes or other records shall be made available to the SEC
upon request.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
8.1(a). The Company agrees to indemnify and hold harmless the
Distributor, the Advisor and the Trust and each trustee of the Board and
officer, employees and agents and any "affiliated person" (as defined in
Section 2(a)(3) of the 0000 Xxx) of the Trust, Distributor or Advisor
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Company) or litigation
(including legal and other expenses), to which the Indemnified Parties may
become subject under any statute, 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 or acquisition of
the Trust's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the registration
statement or prospectus (which shall include the portions of an offering
memorandum that contain information regarding the Trust, Distributor or
Advisor) for the Contracts or contained in the Contracts or sales literature
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 therein or necessary to
make the statements therein not misleading, provided that this agreement to
indemnify 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
in conformity with information furnished to the Company by or on behalf of
the Indemnified Parties for use in the Registration Statement or prospectus
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 Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
Registration Statement, prospectus or sales literature of the Trust 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 Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's registration statement,
prospectus, or sales literature or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance upon
information furnished by or on behalf of the Company; or
(iv) arise as a result of any material failure of this Agreement
by the Company; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company;
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful misfeasance, bad faith, or gross
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 or to the Trust or the Contracts, whichever is applicable.
8.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Company
of any such claim shall not relieve the Company from any liability which it
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any
such action is brought against the Indemnified Parties, the Company shall be
entitled to participate, at its own expense, in the defense of such action.
The Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Company to such party of the Company's election to assume the defense
thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Company will not be liable to such
party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation. If the Company assumes the
defense or representation of an Indemnified Party, the Company shall not
consent or agree to any settlement without the prior approval of the
Indemnified Party.
8.1(d). An Indemnified Party will promptly notify the Company of the
commencement of any litigation or proceedings against it in connection with
the issuance or sale of the Trust shares or the Contracts or the operation of
the Trust.
8.2. Indemnification by the Distributor
8.2(a). The Distributor agrees to indemnify and hold harmless the
Trust, the Advisor and the Company and each of their directors, trustees,
officers, employees and agents and any affiliated person (as defined in
Section 2(a)(3) of the 0000 Xxx) of the Trust, the Advisor or the Company
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Distributor) or litigation
(including legal and other expenses) to which the Indemnified Parties may
become subject under any statute, 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 or acquisition of the Trust's
shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement or sales literature of the Trust (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
therein or necessary to make the statements therein not misleading, provided
that this agreement to indemnify 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 in conformity with information furnished to the
Distributor by or on behalf of the Indemnified Parties for use in the
registration statement or prospectus for the Trust or in sales literature (or
any amendment or supplement) or otherwise for use in connection with the sale
of the Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus or sales literature for the Trust or the
Contracts not supplied by the Distributor or persons under its control) or
wrongful conduct of the Distributor or persons under its control, with
respect to the sale or distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's registration statement,
prospectus, or sales literature, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission was made in
reliance upon information furnished by or on behalf of the Distributor; or
(iv) arise as a result of any material failure by the
Distributor to provide the services and furnish the materials under the terms
of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Distributor in this Agreement or
arise out of or result from any other material breach of this Agreement by
the Distributor;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2(b). The Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason
of such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement, or to the Company, the Trust or the Contracts,
whichever is applicable.
8.2(c). The Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Distributor in writing within
a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the
Distributor of any such claim shall not relieve the Distributor from any
liability which it may have to the Indemnified Party against whom such action
is brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Parties, the
Distributor will be entitled to participate, at its own expense, in the
defense thereof. The Distributor also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Distributor to such party of the Distributor's
selection to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the
Distributor 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. If the Distributor assumes the defense or representation of
any Indemnified Party, the Distributor shall not consent or agree to any
settlement without the prior approval of the Indemnified Party.
8.2(d). An Indemnified Party agrees promptly to notify the Distributor
of the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the
Contracts or the operation of each Account.
8.3. Indemnification By the Trust
8.3(a). The Trust agrees to indemnify and hold harmless the Company,
the Distributor and the Advisor and each of their directors, officers,
employees and agents and any affiliated person (as defined in Section 2(a)(3)
of the 0000 Xxx) of the Company, the Distributor or the Advisor
(collectively, the "Indemnified Parties" for purposes of this Section 8.3)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Trust) or litigation
(including legal and other expenses) to which the Indemnified Parties may
become subject under any statute, 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 or acquisition of the Trust's
shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement or sales literature of the Trust (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
therein or necessary to make the statements therein not misleading, provided
that this agreement to indemnify 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 in conformity with information furnished to the
Distributor or Trust by or on behalf of the Indemnified Parties for use in
the registration statement or prospectus for the Trust or in sales literature
(or any amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Trust shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus or sales literature for the Trust or the
Contracts not supplied by the Distributor or persons under its control) or
wrongful conduct of the Trust or persons under its control, with respect to
the sale or distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in Trust's registration statement,
prospectus, or sales literature, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission was made in
reliance upon information furnished by or on behalf of the Distributor; or
(iv) arise as a result of any material failure by the Trust to
provide the services and furnish the materials under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Trust;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation incurred or assessed against an Indemnified Party as such may
arise from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason
of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company or the Contracts, whichever is
applicable.
8.3(c). The Trust shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Trust of
any such claim shall not relieve the Trust from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action
is brought against the Indemnified Parties, the Trust will be entitled to
participate, at its own expense, in the defense thereof. The Trust also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Trust to such party of
the Trust's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it,
and the Trust 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. If the Trust assumes the defense or representation of any
Indemnified Party, the Trust shall not consent or agree to any settlement
without the prior approval of the Indemnified Party.
8.3(d). An Indemnified Party agrees promptly to notify the Trust of
the commencement of any litigation or proceedings against it or any of its
respective officers, trustees or directors in connection with this Agreement,
the issuance or sale of the Contracts, with respect to the operation of
either Account, or the sale or acquisition of shares of the Trust.
8.4 Indemnification By the Advisor
8.4(a). The Advisor agrees to indemnify and hold harmless the Trust,
the Distributor and the Company and each of their trustees, directors,
officers, employees, and agents, and any affiliated person (as defined in
Section 2(a)(3) of the 0000 Xxx) of the Trust, the Distributor or the Company
(collectively, the "Indemnified Parties" for purposes of this Section 8.4)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Advisor) or litigation
expenses (including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, liabilities
or litigation expenses are related to the sale or acquisition of the Trust's
shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact provided by the Advisor and
contained in the registration statement or prospectus or sales literature or
other promotional material of the Trust (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 about the Advisor required
to be stated therein or necessary to make the statements therein not
misleading, provided that this agreement to indemnify 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 in conformity with information
furnished to the Advisor by or on behalf of the Indemnified Parties for use
in the registration statement or prospectus for the Trust or in sales
literature or other promotional material (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or Trust
shares; or
(ii) arise out of or as a result of any statement or
representations (other than statements or representations contained in the
registration statement, prospectus or sales literature or other promotional
material for the Trust or the Contracts not supplied by the Advisor or any
employees or agents thereof) or wrongful conduct of the Advisor, or the
affiliates, employees, or agents of the Advisor with respect to the sale or
distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's registration statement,
prospectus, or sales literature, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or omission was made in
reliance upon information furnished by or on behalf of the Advisor; or
(iv) arise as a result of any material failure by the Advisor to
provide the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification requirements specified in
Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Advisor in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Advisor;
as limited by and in accordance with the provisions of Sections 8.4(b) and
8.4(c) hereof.
8.4(b). The Advisor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation expenses to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of the
Indemnified Party's reckless disregard of obligations or duties under this
Agreement or to the Trust, the Contracts or the Company, whichever is
applicable.
8.4(c). The Advisor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Advisor in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Advisor
of any such claim shall not relieve the Advisor from any liability which it
may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any
such action is brought against the Indemnified Parties, the Advisor will be
entitled to participate, at is own expense, in the defense thereof. The
Advisor also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Advisor
to such party of the Advisor's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Advisor will not be liable to such party under this
Agreement for any legal or other expense subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs of investigation. If the Advisor assumes the defense or representation
of an Indemnified Party, the Advisor shall not consent or agree to any
settlement without the prior approval of the Indemnified Party.
8.4(d). An Indemnified Party agrees promptly to notify the Advisor of
the commencement of any litigation or proceedings against it or any of its
respective officers, trustees or directors in connection with this Agreement,
the issuance or sale of the Contracts, with respect to the operation of
either Account, or the sale or acquisition of shares of the Trust.
8.5(d). Indemnification Disputes. The parties shall use good faith
efforts to resolve any dispute concerning the indemnification obligations in
this Article VIII. Should those efforts fail to resolve the dispute, the
ultimate resolution shall be determined in a de novo proceeding, separate and
apart from the underlying matter complained of, before a court of competent
jurisdiction. Either party may initiate such proceedings with a court of
competent jurisdiction at any time following the termination of the efforts
by such parties to resolve the dispute (termination of such efforts shall be
deemed to have occurred thirty (30) days from the commencement of the same
unless such time period is extended by the written agreement of the
parties). The prevailing party in such a proceeding shall be entitled to
recover reasonable attorneys' fees, costs, and expenses.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
SEC may grant (including any Shared Exemptive Order) and the terms hereof
shall be interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by one hundred and
eighty (180) days advance written notice delivered to the other parties; or
(b) termination by the Company by prompt written notice to the
other parties with respect to any Fund based upon the Company's determination
that shares of such Fund are not reasonably available to meet the
requirements of the Contracts; or
(c) termination by the Company by written notice to the Trust
and the Distributor with respect to any Fund in the event any of the Fund's
shares are not registered, issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of such shares as the
underlying investment media of the Contracts issued or to be issued by the
Company; or
(d) termination by the Company by written notice to the Trust
and the Distributor with respect to any Fund in the event that such 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 the Trust may fail to so qualify; or
(e) termination by the Company by written notice to the Trust
and the Distributor with respect to any Fund in the event that such Fund
fails to meet the diversification requirements specified in Article VI
hereof; or
(f) termination by either the Trust, the Advisor or the
Distributor by written notice to the Company, if (1) any of the Trust, the
Advisor or the Distributor, respectively, shall determine, in their sole
judgment reasonably exercised in good faith, that the Company has suffered a
material adverse change in its business or financial condition or is the
subject of material adverse publicity and such material adverse change or
material adverse publicity will have a material adverse impact upon the
business and operations of either the Trust, the Advisor or the Distributor,
(2) the Trust, the Advisor or the Distributor shall notify the Company in
writing of such determination and its intent to terminate this Agreement, and
(3) after considering the actions taken by the Company and any other changes
in circumstances since the giving of such notice, such determination of the
Trust, the Advisor or Distributor shall continue to apply on the sixtieth
(60th) day following the giving of such notice, which sixtieth day shall be
the effective date of termination; or
(g) termination by the Company by written notice to the Trust,
the Advisor and the Distributor, if (1) the Company shall determine, in its
sole judgment reasonably exercised in good faith, that either the Trust, the
Advisor or the Distributor has suffered a material adverse change in its
business or financial condition or is the subject of material adverse
publicity and such material adverse change or material adverse publicity
will have a material adverse impact upon the business and operations of the
Company, (2) the Company shall notify the Trust, the Advisor and the
Distributor in writing of such determination and its intent to terminate the
Agreement, and (3) after considering the actions taken by the Trust, the
Distributor and/or the Advisor and any other changes in circumstances since
the giving of such notice, such determination of the Company shall continue
to apply on the sixtieth (60th) day following the giving of such notice,
which sixtieth day shall be the effective date of termination; or
(h) By any party upon institution of formal proceedings against
the Company, the Trust, the Advisor or the Distributor by the NASD, the SEC,
or any state securities or insurance department or any other regulatory body
regarding a party's duties under this Agreement or related to the sale of the
Contracts issued by the Company, the operation of the Accounts, or the
purchase of shares of the Funds;; or
(i) By the Distributor, the Advisor or the Trust upon written
notice to the Company with respect to any Account in the event that such
Account ceases to be qualified as a segregated asset account under the Iowa
insurance laws; or
(j) By the Distributor, the Advisor or the Trust upon written
notice with respect to any Account in the event that effective registration
as a unit investment trust under the 1940 Act for such Separate is not
maintained; or
(k) By the Distributor, the Advisor or the Trust in the event
that the Contracts cease to be treated as annuity contracts under the
applicable provisions of the Code; or
(l) By the Distributor, the Advisor or the Trust in the event
that effective registration or exemption from registration under the 1933 Act
of the Contracts is not maintained; or
(m) By any party to the Agreement upon a determination by a
majority of the Board, or a majority of its Disinterested Trustees, that a
material irreconcilable conflict, as described in Article VII hereof, exists;
or
(n) By any party to the Agreement upon requisite vote of the
Contract owners having an interest in the Separate Accounts (or any
subaccounts thereof) to substitute the shares of another investment company
for the corresponding shares of a Fund in accordance with the terms of the
Contracts for which those shares had been selected or serve as the underlying
investment media; or
(o) By either the Advisor or the Distributor in the event of a
termination of either of their contracts with the Trust, but each shall use
their best efforts to substitute themselves under this Agreement with any
successor investment adviser or distributor to the Trust.
Each party to this Agreement shall promptly notify the other parties to
the Agreement of the institution against such party of any such formal
proceedings as described in Article 10.1(h) hereof. The Company shall give
60 days prior written notice to the Trust of the date of any proposed vote of
Contract owners to replace the Fund's shares as described in Article 10.1(n)
hereof.
10.2. Effect of Termination. Notwithstanding any termination of this
Agreement, the Trust, the Advisor and the Distributor shall at the option of
the Company, continue to make available additional shares of the Trust
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 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 VII and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement.
10.3. The Company shall not redeem Trust shares attributable to the
Contracts (as opposed to Trust shares attributable to the Company's assets
held in the Account) except (i) as necessary to implement Contract Owner
initiated or approved transactions, or (ii) as required by state and/or
federal laws or regulations or judicial or other legal precedent of general
application (hereinafter referred to as a "Legally Required Redemption") or
(iii) as permitted by an order of the SEC pursuant to Section 26(b) of the
1940 Act. Upon request, the Company will promptly furnish to the Trust and
the Distributor the opinion of counsel for the Company (which counsel shall
be reasonably satisfactory to the Trust and the Distributor) to the effect
that any redemption pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the terms of
the Contracts, the Company shall not prevent Contract Owners from allocating
payments to a Fund that was otherwise available under the Contracts without
first giving the Trust or the Distributor 90 days notice of its intention to
do so.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to another 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: With a copy to:
Huntington VA Funds Xxxxxx Xxxxxxxxxx, Esq.
c/o The Huntington National Ropes & Xxxx
Bank One Metro Center
00 Xxxxx Xxxx Xxxxxx 000 00xx Xx., XX, Xxxxx 000
Xxxxxxxx, Xxxx 00000 Xxxxxxxxxx, XX 00000
Attention: President (000) 000-0000 PHONE
(000) 000-0000 FAX
If to the Company
Transamerica Life Insurance
Company
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
If to the Distributor
Edgewood Services, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Secretary
If to the Advisor: With a copy to:
Huntington Asset Advisors, Xxxxxx Xxxxxxxxxx, Esq.
Inc. Ropes & Xxxx
00 Xxxxx Xxxx Xxxxxx Xxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxx 00000 000 00xx Xx., XX, Xxxxx 000
Xxxx: Chief Investment Xxxxxxxxxx, XX 00000
Officer (000) 000-0000 PHONE
(000) 000-0000 FAX
ARTICLE XII. Miscellaneous
12.1 All persons dealing with the Trust must look solely to the
property of the Trust for the enforcement of any claims against the Trust as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust.
12.2 Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except
as permitted by this Agreement, shall not disclose, disseminate or utilize
such names and addresses and other confidential information until such time
as it may come into the public domain without the express written consent of
the affected party. Each party further agrees to use and disclose Personal
Information, as defined herein, only to carry out the purposes for which it
was disclosed to them and will not use or disclose Personal Information if
prohibited by applicable law, including, without limitation, statutes and
regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public Law
106-102). For purposes of this Agreement, "Personal Information" means
financial and medical information that identifies an individual personally
and is not available to the public, including, but not limited to, credit
history, income, financial benefits, policy or claim information and medical
records. If either party outsource services to a third-party, such third
party will agree in writing to maintain the security and confidentiality of
any information shared with them.
12.3 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.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5 If any provision of this Agreement shall be held or made invalid
by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
the NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. Notwithstanding the generality of the foregoing, each
party hereto further agrees to furnish the Iowa Insurance Commissioner with
any information or reports in connection with services provided under this
Agreement which such Commissioner may request in order to ascertain whether
the insurance operations of the Company are being conducted in a manner
consistent with the Iowa Insurance Regulations and any other applicable law
or regulations.
12.7 The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto; provided, however, that the Distributor may assign this
Agreement or any rights or obligations hereunder to any affiliate of or
company under common control with the Distributor, if such assignee is duly
licensed and registered to perform the obligations of the Distributor under
this Agreement. The Company shall promptly notify the Trust, the Advisor,
and the Distributor of any change in control of the Company.
12.9. The Company shall furnish, or shall cause to be furnished, to
the Trust, the Advisor or their designee copies of the following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under generally accepted
accounting principles ("GAAP"), if any), as soon as practical and in any
event within 90 days after the end of each fiscal year;
(b) the Company's quarterly statements (statutory) (and GAAP, if
any), as soon as practical and in any event within 45 days after the end of
each quarterly period:
(c) any financial statement, proxy statement, notice or report
of the Company sent to stockholders and/or policyholders, as soon as
practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the SEC or any state insurance regulator,
as soon as practical after the filing thereof;
(e) any other report submitted to the Company by independent
accountants in connection with any annual, interim or special audit made by
them of the books of the Company, as soon as practical after the receipt
thereof.
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 and its seal to be hereunder affixed hereto as of the date
specified below.
Company:
[SEAL] TRANSAMERICA LIFE INSURANCE COMPANY,
On its behalf and on behalf of each
Separate Account named in Schedule A, as
may be amended from time to time.
By its authorized officer,
By:
Xxxx X. Xxxxxx
Title: Assistant Secretary
Date:
Trust:
[SEAL] HUNTINGTON VA FUNDS,
On its behalf and on behalf of each Fund
named in Schedule A, as may be amended
from time to time.
By its authorized officer,
By:
__________________
Title: __________________
Date:
Distributor:
[SEAL] EDGEWOOD SERVICES, INC.
By its authorized officer,
By:
____________________
Title: ____________________
Date:
Advisor:
[SEAL] HUNTINGTON ASSET ADVISORS, INC.
By its authorized officer,
By:
____________________
Title: ____________________
Date:
SCHEDULE A
SEPARATE ACCOUNTS, ASSOCIATED CONTRACTS, AND FUNDS
Name of Separate Account and Date Name of Contract Funded by Separate
Established by the Board of Trustees Account and Policy Form Numbers of
Contracts Funded
Separate Account VA S Flexible Premium Variable Annuity - D
November 26, 2001 Transamerica Life Insurance Company
Form No. AV865 101 167 103
Separate Account VA Q Flexible Premium Variable Annuity - B
November 26, 2001 Transamerica Life Insurance Company
Form No. AV864 101 165 103
Applicable Fund CUSIP
Huntington VA Income Equity Fund 446771107
Huntington VA Growth Fund 446771206
Huntington VA Dividend Capture Fund 446771305
Huntington VA Mid Corp America 446771503
Huntington VA New Economy Fund 446771602
Huntington VA Rotating Markets Fund 446771701
IN WITNESS WHEREOF, each of the parties has caused this Schedule A to
be executed in its name and on its behalf by its duly authorized
representative as of December 1, 2003.
TRANSAMERICA LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Separate Account named in this Schedule
A, as may be amended from time to time
By:________________________
By:________________________
Its:________________________
Its:________________________
HUNTINGTON VA FUNDS, HUNTINGTON ASSET ADVISORS, INC.
on its behalf and on behalf of each
Fund named in this Schedule A, as may
be amended from time to time
By:________________________ By:________________________
Its:________________________ Its:________________________
SCHEDULE B
Subject to the terms and conditions of this Agreement, the Company shall be
appointed to, and agrees to act, as a limited agent of the Trust for the sole
purpose of receiving instructions from authorized parties as defined by the
Contracts for the purchase and redemption of Fund shares prior to the "Close
of Trading," which is defined as the close of regular trading on the New York
Stock Exchange ("NYSE") each Business Day. A "Business Day" is defined in
Article 1.1 of the Agreement. Except as particularly stated in this
paragraph, the Company shall have no authority to act on behalf of the Trust
or to incur any cost or liability on its behalf.
Trust will use its best efforts to provide to the Company or its designated
agent closing net asset value, change in net asset value, dividend or daily
accrual rate information and capital gain information by 6:00 p.m. Central
Time each Business Day. The Company or its agent shall use this data to
calculate unit values. Unit values shall be used to process the same
Business Day's contract transactions. When the Company is able to utilize
the National Securities Clearing Corporation ("NSCC") Defined Contribution
Clearing and Settlement ("DCC&S") Fund/SERV system, orders to purchase and
redeem shares of the Funds received by the Company prior to the close of
trading on the New York Stock Exchange (the "NYSE") (typically, 4:00 p.m.
Eastern Time) on any day that the NYSE is open for business ("Day 1") will be
transmitted via the NSCC's Fund/SERV system for receipt by the Funds or the
Unified Fund Services, Inc. (the "Transfer Agent" for the Funds) by no later
than 6:30 a.m. Eastern Time (cycle 8) on the next day that the Funds are open
for business ("Day 2") (such purchases and redemptions are referred to as
"Day 1 Trades"). Until the Company achieves Fund/SERV utility, or if for any
other reason any Day 1 Trades are not received by the Transfer Agent via the
NSCC's Fund/SERV system prior to 7:00 a.m. Eastern Time on Day 2, such Day 1
Trades shall be received by the Transfer Agent via fax no later than 9:00
a.m. Eastern Time on Day 2. Such purchase and redemption orders shall be
transmitted without modification (except for netting or aggregating such
orders). Trust will not accept any order made on a conditional basis or
subject to any delay or contingency.
When operating outside of the DCC&S Fund/SERV system, each party shall, as
soon as practicable after transmittal of an instruction or confirmation,
verify the other party's receipt of such instruction or confirmation, and in
the absence of such verification such a party to whom an instruction or
confirmation is sent shall not be liable for any failure to act in accordance
with such instruction or confirmation, and the sending party may not claim
that such an instruction or confirmation was received by the other. Each
party shall notify the other of any errors, omissions or interruptions in, or
delay or unavailability as promptly as possible.
a) For those purchase orders not transmitted via the DCC&S Fund/SERV
system, the Company shall complete payment to the Trust or its
designated agent in federal funds no later than 2:00 p.m. Central Time
on the Business Day following the day on which the instructions are
treated as having been received by the Trust pursuant to this Agreement.
b) For those redemption orders not transmitted via the DCC&S Fund/SERV
system, the Trust or its designated agent shall initiate payment in
federal funds no later than 2:00 p.m. Central Time on the Business Day
following the day on which the instructions are treated as having been
received by the Trust pursuant to this Agreement.
c) With respect to purchase and redemption orders received by the Trust
through the DCC&S Fund/SERV system on any Business Day for any Fund,
within the time limits set forth in this Agreement, settlement shall
occur consistent with the requirements of DCC&S Fund/SERV system.
At such time as the Trust and the Company are able to transmit information
via the DCC&S Fund/SERV system: the Trust or its designated agent shall send
to the Company, via the DCC&S Fund/SERV system, verification of net purchase
or redemption orders or notification of the rejection of such orders
("Confirmations ") on each Business Day for which the Company has transmitted
such orders. Such confirmations shall include the total number of shares of
each Fund held by the Company following such net purchase or redemption. The
Trust, or its designated agent, shall submit in a timely manner, such
confirmations to the DCC&S Fund/SERV system in order for the Company to
receive such confirmations no later than 10:00 a.m. Central Time the next
Business Day. The Trust or its designated agent will transmit to the Company
via DCC&S NETWORKING system those Networking activity files reflecting
account activity. In addition, within five (5) Business Days after the end
of each month, the Trust or its affiliate will send the Company a statement
of account which shall confirm all transactions made during that particular
month in the account.
Documents Provided by the Company
The Company agrees to provide Trust, upon written request, any reports
indicating the number of shareholders that hold interests in the Funds and
such other information (including books and records) that Trust may
reasonably request. The Company agrees to provide Trust, upon written
request, such other information (including books and records) as may be
necessary or advisable to enable it to comply with any law, regulation or
order.
Documents Provided by Trust
Within five (5) Business Days after the end of each calendar month, Trust,
Distributor, or Advisor shall provide the Company, or its designee, a monthly
statement of account, which shall confirm all transactions made during that
particular month.
IN WITNESS WHEREOF, each of the parties has caused this Schedule B to
be executed in its name and on its behalf by its duly authorized
representative as of December 1, 2003.
TRANSAMERICA LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Separate Account named in Schedule A,
as may be amended from time to time
By:________________________ By:________________________
Its:________________________ Its:________________________
HUNTINGTON VA FUNDS, HUNTINGTON ASSET ADVISORS, INC.
on its behalf and on behalf of each
Fund named in Schedule A, as may be
amended from time to time
By:________________________
By:________________________
Its:________________________
Its:________________________
SCHEDULE C
Services Provided by the Company
Pursuant to Article V of the Agreement, the Company shall perform all
administrative and shareholder services with respect to the Contracts and
plans, including but not limited to, the following:
1. Maintaining separate records for each Contract owner and each plan,
which shall reflect the Fund shares purchased and redeemed and Fund share
balances of such Contract owners and plans. The Company will maintain
accounts with each Fund on behalf of Contract owners and plans, and such
account shall be in the name of the Company (or its nominee) as the record
owner of shares owned by such Contract owners and plans.
2. Disbursing or crediting to contract owners and plans all proceeds of
redemptions of shares of the Funds and all dividends and other
distributions not reinvested in shares of the Funds.
3. Preparing and transmitting to Contract owners and plans, as required by
law, periodic statements showing the total number of shares owned as of
the statement closing date, purchases and redemptions of Fund shares
during the period covered by the statement and the dividends and other
distributions paid during the statement period (whether paid in cash or
reinvested in Fund shares), and such other information as may be required,
from time to time, by Contract owners and plans.
4. Providing communication support services including providing
information about the Funds and answering questions concerning the Funds
(including questions respecting Contract owners' interests in one or more
Funds).
5. Maintaining and preserving all records required by law to be maintained
and preserved in connection with providing the services for Contract
owners and plans.
6. Generating written confirmations and quarterly statements to Contract
owners and plan participants.
7. Distributing to Contract owners and plans, to the extent required by
applicable law, Funds' prospectuses, proxy materials, periodic fund
reports to shareholders, notices and other materials that the Funds are
required by law or otherwise to provide to their shareholders or
prospective shareholders.
8. Transmitting purchase and redemption orders to the Trust on behalf of
the Contract owners and plans.
9. Providing teleservicing support in connection with the Trust.
10. Facilitating the tabulation of Contract owners' votes in the event of a
meeting of Fund shareholders; providing information relating to the
Contacts and share balances under such Contracts to the Trust as may be
reasonably requested.
11. Administering fund transfers, dollar cost averaging, asset allocation,
portfolio rebalancing, earnings sweep, and pre-authorized deposits and
withdrawals involving the Funds.
12. Providing other services as may be agreed upon from time to time.
In consideration for the Company providing these services, the Trust
and/or the Advisor agree to pay the Company in an amount equal to the
following annual fee, based on the average daily net assets of the Funds held
by the Accounts underlying the Contracts listed below, such amounts to be
paid within 30 days of the end of each month.
For purposes of computing the payment to the Company, the Company shall
compute the average daily net assets of Shares held in the Accounts over a
monthly period by totaling such Accounts' aggregate investment (Share net
asset value multiplied by total number of Shares held by such Accounts) on
each Business Day during the calendar month, and dividing by the total number
of Business Days during such month. The payment to the Company shall be
calculated by the Company and communicated to the Trust and Advisor at the
end of each calendar month and will be paid to the Company within 30 days
thereafter.
------------------------------------------------------------------------------
Contract Annual Fee
------------------------------------------------------------------------------
Flexible Premium Variable Annuity - D 0.25%
Transamerica Life Insurance Company
Form No. AV865 101 167 103
Flexible Premium Variable Annuity - B 0.25%
Transamerica Life Insurance Company
Form No. AV864 101 165 103
IN WITNESS WHEREOF, each of the parties has caused this Schedule C to
be executed in its name and on its behalf by its duly authorized
representative as of December 1, 2003.
TRANSAMERICA LIFE INSURANCE COMPANY, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Separate Account named in Schedule A,
as may be amended from time to time
By:________________________ By:________________________
Its:________________________ Its:________________________
HUNTINGTON VA FUNDS, HUNTINGTON ASSET ADVISORS, INC.
on its behalf and on behalf of each
Fund named in Schedule A, as may be
amended from time to time
By:________________________
By:________________________
Its:________________________
Its:________________________
