FUND PARTICIPATION AGREEMENT
Exhibit 8(a)
THIS AGREEMENT is made as of March 21, 2007, between XTF Advisors Trust, an open-end
management investment company organized as a Delaware business trust (the “Trust”), and Pacific
Life & Annuity Company, a life insurance company organized under the laws of the State of Nebraska
(the “Company”), on its own behalf and on behalf of each segregated asset account of the Company
set forth on Schedule A, as the parties hereto may amend it from time to time (the “Accounts”)
(individually, a “Party”, and collectively, the “Parties”).
W I T N E S S E T H:
WHEREAS, the Trust has applied for registration with the Securities and Exchange Commission as
an open-end management investment company under the Investment Company Act of 1940, as amended (the
“1940 Act”), and has applied for registration of the offer and sale of its shares (“Shares”) under
the Securities Act of 1933, as amended (the “1933 Act”); and
WHEREAS, the Trust desires to act as an investment vehicle for separate accounts established
for variable life insurance policies and variable annuity contracts to be offered by insurance
companies that enter into participation agreements with the Trust (the “Participating Insurance
Companies”); and
WHEREAS, the beneficial interest in the Trust may be divided into several series of Shares,
each series representing an interest in a particular managed portfolio of securities and other
assets, and the Trust will make Shares in each of such series listed on Schedule B hereto as the
Parties hereto may amend from time to time (each a “Portfolio”; reference herein to the “Trust”
includes reference to each Portfolio, to the extent the context requires) available for purchase by
the Accounts; and
WHEREAS, the Trust, to the extent required, has applied for an order from the Securities and
Exchange Commission (“SEC”) granting Participating Insurance Companies and their separate accounts
exemptions 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 life
insurance companies and certain qualified pension and retirement plans (the “Exemptive Order”); and
WHEREAS, the Company will be the issuer of certain variable annuity contracts and variable
life insurance contracts (“Contracts”) as set forth on Schedule A hereto, as the Parties hereto may
amend from time to time, which Contracts (hereinafter collectively, the “Contracts”), will be
registered under the 1933 Act; and
WHEREAS, the Company will fund the Contracts through the Accounts, each of which may be
divided into two or more subaccounts (“Subaccounts”; reference herein to an “Account” includes
reference to each Subaccount thereof to the extent the context requires); and
WHEREAS, the Company will serve as the depositor of the Accounts, each of which is registered
as a unit investment trust investment company under the 1940 Act, and the security
interests deemed to be issued by the Accounts under the Contracts will be registered as
securities under the 1933 Act; and
WHEREAS, the Company intends to utilize Shares of one or more Portfolios as an investment
vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the Parties agree as follows:
ARTICLE I
Sale of Trust Shares
Sale of Trust Shares
1.1 The Trust shall make Shares of its Portfolios available to the Accounts at the net asset
value of the applicable Portfolio next computed after receipt of such purchase order by the Trust
(or its agent), as established in accordance with the provisions of the then current prospectus of
the Portfolio. Shares of a particular Portfolio of the Trust shall be ordered in such quantities
and at such times as determined by the Company to be necessary to meet the requirements of the
Contracts. Notwithstanding anything to the contrary herein, the Trustees of the Trust (the
“Trustees”) may refuse to sell Shares of any Portfolio to any person, or suspend or terminate the
offering of Shares of any Portfolio if such action is required by law or by regulatory authorities
having jurisdiction or is deemed in the sole discretion of the Trustees acting in good faith and in
light of their fiduciary duties under federal and any applicable state laws, in the best interests
of the shareholders of such Portfolio.
The Parties hereto may agree, from time to time, to add other Portfolios to provide additional
funding media for the Contracts, or to delete, combine, or modify existing Portfolios, by amending
Schedule A hereto. Upon such amendment to Schedule A, any applicable reference to a Portfolio, the
Trust, or its Shares herein shall include a reference to any such additional Portfolio. Schedule A,
as amended from time to time, is incorporated herein by reference and is a part hereof.
1.2 The Trust will redeem any full or fractional Shares of any Portfolio when requested by the
Company on behalf of an Account at the net asset value of the applicable Portfolio next computed
after receipt by the Trust (or its agent) of the request for redemption, as established in
accordance with the provisions of the then current prospectus of the applicable Portfolio. With
respect to payment of the purchase price by the Company and of redemption proceeds by the Trust,
the Company and the Trust shall net purchase and redemption orders with respect to each Portfolio
and shall transmit one net payment per Portfolio in accordance with this Section 1.2 and Section
1.4. The Trust shall make payment no later than 12:00 noon New York time on the same day as the
order is placed, to the extent practicable, but in no event shall payment be delayed for a greater
period than is permitted by the 0000 Xxx.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints the Company as its
agent for the limited purpose of receiving and accepting purchase and redemption orders resulting
from investment in and payments under the Contracts. Receipt by the Company shall
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constitute receipt by the Trust provided that i) such orders are received by the Company in
good order prior to the time the net asset value of each Portfolio is priced in accordance with its
prospectus and ii) the Trust receives notice of such orders by 12:00 noon. New York time on the
next following Business Day. “Business Day” shall mean any day on which the New York Stock Exchange
is open for regular trading, on which the Trust calculates the Portfolio’s net asset value pursuant
to the rules of the SEC and on which the Company is open for business.
1.4 The Company shall wire payment for net purchase orders that are transmitted to the Trust
in accordance with Section 1.3 to a custodial agent designated by the Trust no later than 12:00
noon New York time on the same Business Day that the Trust receives notice of the order. Payments
shall be made in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust’s Shares will be by book entry only. Certificates
evidencing the Shares will not be issued to the Company or the Account. Shares ordered from the
Trust will be recorded in the appropriate title for each Account or the appropriate subaccount of
each Account.
1.6 The Trust shall furnish same day notice (by email or telephone followed by written or
email confirmation) to the Company of any income dividends or capital gain distributions payable on
the Trust’s Shares. The Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio’s Shares in additional Shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such dividends and capital
gain distributions in cash. The Trust shall notify the Company of the number of Shares so issued as
payment of such dividends and distributions.
1.7 The Trust shall make the net asset value per share for each Portfolio available to the
Company on a daily basis as soon as reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset value per share available by 6
p.m. New York time.
1.8 The Company shall use the data provided by the Trust each Business Day pursuant to Section
1.7 above immediately to calculate Account unit values and to process transactions that receive
that same Business Day’s Account unit values. The Company shall perform such Account processing the
same Business Day, and shall place corresponding orders to purchase or redeem Shares with the Trust
by 11:00 a.m. New York time the following Business Day.
1.9 The Trust agrees that its Shares will be sold only to Participating Insurance Companies
and their separate accounts and to certain qualified pension and retirement plans (“Plans”) to the
extent permitted by the Exemptive Order. No Shares of any Portfolio will be sold directly to the
general public. The Company agrees that Trust Shares will be used only for the purposes of funding
the Contracts and Accounts listed in Schedule A, as amended from time to time.
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1.10 The Trust agrees that all Participating Insurance Companies shall have the obligations
and responsibilities regarding pass-through voting and conflicts of interest corresponding to those
contained in Section 2.8 and Article IV of this Agreement.
1.11 The Trust shall use its best efforts to provide closing net asset value, dividend and
capital gain information on a per-share basis to the Company on each Business Day. Any material
errors in the calculation of net asset value, dividend and/or capital gain information shall be
reported to the Company promptly upon discovery. Material errors will be corrected in the
applicable Business Day’s net asset value per share. The Company will adjust the number of shares
purchased or redeemed for the Accounts to reflect the correct net asset value per share.
ARTICLE II
Obligations of the Parties
Obligations of the Parties
2.1 The Trust shall prepare and be responsible for filing with the SEC and any state
regulators requiring such filing all shareholder reports, notices, proxy materials (or similar
materials such as voting instruction solicitation materials), prospectuses and statements of
additional information of the Trust. The Trust shall bear the costs of registration and
qualification of its Shares, preparation and filing of the documents listed in this Section 2.1 and
all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 The Trust shall provide the Company (at the Trust’s expense) with as many copies of the
Trust’s current prospectus, annual report, semi-annual report and other shareholder communications,
including any amendments or supplements to any of the foregoing, as the Company shall request for
existing Contract owners for whom Shares are held by an Account. The Trust shall provide the
Company (at the Company’s expense) with as many copies of the Trust’s current prospectus, including
any amendments or supplements thereto, as the Company shall request for prospective purchasers of
Contracts. If requested by the Company in lieu thereof, the Trust shall provide the Company with a
camera ready copy of such documents in a form suitable for printing (at the Company’s expense
except that the Trust will bear the commercially reasonable, prorated cost of printing the Trust’s
prospectus in this format for existing Contract owners up to an amount the Trust would pay on a per
copy basis for its own prospectus). The Trust shall provide the Company with a copy of its
statement of additional information in a form suitable for duplication by the Company. The Trust
(at its expense) shall provide the Company with copies of any Trust-sponsored proxy materials in
such quantity as the Company shall reasonably require for distribution to Contract owners. The
Trust shall provide the materials described in this Section 2.2 within a reasonable time prior to
required printing and distribution of such materials.
2.3 (a) The Company shall bear the proportionate costs of distributing the Trust’s prospectus,
statement of additional information, shareholder reports and other shareholder communications, such
as proxy material, to applicants for policies for which the Trust is serving or is to serve as an
investment vehicle. The Trust shall bear the costs of distributing proxy materials (or similar
materials such as voting solicitation instructions) to Contract owners. The
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Company assumes sole responsibility for ensuring that such materials are delivered to Contract
owners on a timely basis in accordance with applicable federal and state securities laws.
(b) If the Company elects to include any materials provided by the Trust, specifically
prospectuses, statements of additional information, shareholder reports and proxy materials, on its
web site or in any other computer or electronic format, the Company assumes sole responsibility for
maintaining such materials in the form provided by the Trust and for promptly replacing such
materials with all updates provided by the Trust.
2.4 The Company agrees and acknowledges that it has no rights to the names and marks “XTF
Portfolios” and “XTF Advisors Trust” and that all use of any designation comprised in whole or part
of XTF Portfolios or the names of the Portfolios or the Trust (each a “Fund Xxxx”) under this
Agreement shall inure to the benefit of the Trust. Except as provided in Section 2.5, the Company
shall not use any Fund Xxxx on its own behalf or on behalf of the Accounts or Contracts in any
registration statement, advertisement, sales literature or other materials relating to the Accounts
or Contracts without the prior written consent of the Trust. Upon termination of this Agreement for
any reason, the Company shall cease all use of any Fund Xxxx as soon as reasonably practicable.
2.5 (a) The Trust will provide the Company with at least one complete copy of all
prospectuses, statements of additional information, annual and semi-annual reports, proxy
statements, applications for exemptions, requests for no-action letters, and all amendments or
supplements to any of the above that relate to the Trust or its investment adviser promptly after
the filing of each such document with the SEC or other regulatory authority. The Company will
provide the Trust with at least one complete copy of all prospectuses, statements of additional
information, annual and semi-annual reports, proxy statements, applications for exemptions,
requests for no-action letters, and all amendments or supplements to any of the above promptly
after the filing of each such document with the SEC or other regulatory authority provided that the
document relates to an Account and Contract that include the Trust as one of the underlying funding
vehicles for such Contract.
(b) The Trust 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, the Accounts or
the Contracts are 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. 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 or its investment adviser(s) 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.
2.6 The Company and its affiliates shall not give any information or make any representations
or statements on behalf of the Trust or concerning the Trust or any of its affiliates or its
investment adviser(s) in connection with the sale of the Contracts other than information or
representations contained in and accurately derived from the registration statement, including the
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prospectus and statement of additional information, for the Trust Shares (as such registration
statement, prospectus and statement of additional information may be amended or supplemented from
time to time), reports of the Trust, Trust-sponsored proxy statements, or in sales literature or
other promotional material approved by the Trust or its designee, except as required by legal
process or regulatory authorities or with the written permission of the Trust or its designee.
2.7 The Trust and its affiliates shall not give any information or make any representations or
statements on behalf of the Company or concerning the Company or any of its affiliates, the
Contracts or the Accounts other than information or representations contained in and accurately
derived from the registration statement, including the prospectus and statement of additional
information, for the Contracts (as such registration statement, prospectus, and statement of
additional information may be amended or supplemented from time to time), or in materials approved
by the Company or its designee for distribution including sales literature or other promotional
materials, except as required by legal process or regulatory authorities or with the written
permission of the Company or its designee.
2.8 So long as, and to the extent that the Securities and Exchange Commission interprets the
1940 Act to require pass-through voting privileges for owners of variable life insurance policies
and/or variable annuity contracts, the Company will provide pass-through voting privileges to
Contract owners whose cash values are invested, through the Accounts, in Shares of the Trust, and
will vote the Shares held in such Accounts in a manner consistent with voting instructions timely
received from Contract owners. The Trust shall require all Participating Insurance Companies to
calculate voting privileges in the same manner and the Company shall be responsible for assuring
that the Accounts calculate voting privileges in the manner established by the Trust. With respect
to each Account, the Company will vote Shares of the Trust held by the Account and for which no
timely voting instructions from policyowners are received, as well as Shares it owns that are held
by that Account or directly, in the same proportion as those Shares for which timely voting
instructions are received. The Company and its affiliates and agents will in no way recommend or
oppose or interfere with the solicitation of proxies for Trust Shares held by Contract owners
without the prior written consent of the Trust, which consent may be withheld in the Trust’s sole
discretion.
2.9 The Company shall notify the Trust of any applicable state insurance laws that restrict
the Portfolios’ investments or otherwise affect the operation of the Trust and shall notify the
Trust in writing of any changes in such laws.
2.10 The Company shall adopt and implement procedures reasonably designed to ensure that
information concerning the Trust and its affiliates that is intended for use only by brokers or
agents selling the Contracts (i.e., information that is not intended for distribution to Contract
owners) (“broker only materials”) is so used, and neither the Trust nor any of its affiliates shall
be liable for any losses, damages or expenses relating to the improper use of such broker only
materials.
2.11 For purposes of Sections 2.6 and 2.7, the phrase “sales literature or other promotional
material” includes, but is not limited to, advertisements (such as material published,
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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, (e.g., on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made generally available
to some or all agents or employees, registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials and any other material constituting sales
literature or advertising under the NASD rules, the 1933 Act or the 0000 Xxx.
2.12 The Trust will immediately notify the Company of (i) the issuance by any court or
regulatory body of any stop order, cease and desist order, or other similar order with respect to
the Trust’s registration statement under the 1933 Act or the Trust prospectus, (ii) any request by
the SEC for any amendment to such registration statement or the Trust prospectus that may affect
the offering of Shares of the Trust, (iii) the initiation of any proceedings for that purpose or
for any other purpose relating to the registration or offering of the Trust’s Shares, or (iv) any
other action or circumstances that may prevent the lawful offer or sale of Shares of any Portfolio
in any state or jurisdiction, including, without limitation, any circumstances in which (a) such
Shares are not registered and, in all material respects, issued and sold in accordance with
applicable state and federal law, or (b) such law precludes the use of such Shares as an underlying
investment medium of the Contracts issued or to be issued by the Company. The Trust will make every
reasonable effort to prevent the issuance, with respect to any Portfolio, of any such stop order,
cease and desist order or similar order and, if any such order is issued, to obtain the lifting
thereof at the earliest possible time.
2.13 The Company will immediately notify the Trust of (i) the issuance by any court or
regulatory body of any stop order, cease and desist order, or other similar order with respect to
each Account’s registration statement under the 1933 Act relating to the Contracts or each Account
prospectus, (ii) any request by the SEC for any amendment to such registration statement or Account
prospectus that may affect the offering of Shares of the Trust, (iii) the initiation of any
proceedings for that purpose or for any other purpose relating to the registration or offering of
each Account’s interests pursuant to the Contracts, or (iv) any other action or circumstances that
may prevent the lawful offer or sale of said interests in any state or jurisdiction, including,
without limitation, any circumstances in which said interests are not registered and, in all
material respects, issued and sold in accordance with applicable state and federal law. The Company
will make every reasonable effort to prevent the issuance of any such stop order, cease and desist
order or similar order and, if any such order is issued, to obtain the lifting thereof at the
earliest possible time.
ARTICLE III
Representations and Warranties
Representations and Warranties
3.1 The Company represents and warrants (i) that it is an insurance company duly organized and
in good standing under the laws of the State of Nebraska and has full corporate
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power, authority and legal right to execute, deliver and perform its duties and comply with
its obligations under this Agreement, (ii) that it has legally and validly established and
maintained each Account as a segregated asset account under such law and the regulations
thereunder, and (iii) that the Contracts comply in all material respects with all other applicable
federal and state laws and regulations.
3.2 The Company represents and warrants that (i) each Account has been registered or, prior to
any issuance or sale of the Contracts, will be registered and each Account will remain registered
as a unit investment trust in accordance with the provisions of the 1940 Act, (ii) each Account
does and will comply in all material respects with the requirements of the 1940 Act and the rules
thereunder, (iii) each Account’s 1933 Act registration statement relating to the Contracts,
together with any amendments thereto, will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder, (iv) the Company will amend the registration
statement for its Contracts under the 1933 Act and for its Accounts under the 1940 Act from time to
time as required in order to effect the continuous offering of its Contracts or as may otherwise be
required by applicable law, and (v) each Account prospectus will at all times comply in all
material respects with the requirements of the 1933 Act and the rules thereunder.
3.3 The Company represents and warrants that the Contracts or interests in the Accounts are
or, prior to issuance, will be registered as securities under the 1933 Act. The Company further
represents and warrants that: (i) the Contracts will be issued and sold in compliance in all
material respects with all applicable federal and state laws, (ii) the sale of the Contracts, and
the allocation of purchase payments under the Contracts to any Portfolio of the Trust, shall comply
in all material respects with federal and state securities and insurance suitability requirements,
(iii) the Company has adopted policies and procedures reasonably designed to comply with the US
PATRIOT Act, and (iv) the Company does not encourage or facilitate active trading and has adopted
policies and procedures reasonably designed to prevent market timing within the Portfolios.
3.4 The Trust represents and warrants (i) that it is duly organized and validly existing under
the laws of the State of Delaware, (ii) that it does and will comply in all material respects with
the requirements of the 1940 Act and the rules thereunder, (iii) that its 1933 Act registration
statement, together with any amendments thereto, will at all times comply in all material respects
with the requirements of the 1933 Act and rules thereunder, and (iv) that its Prospectus will at
all times comply in all material respects with the requirements of the 1933 Act and the rules
thereunder.
3.5 The Trust represents and warrants that the Trust Shares offered and sold pursuant to this
Agreement shall be registered under the 1933 Act to the extent required by the 1933 Act and the
Trust shall be registered under the 1940 Act to the extent required by the 1940 Act prior to any
issuance or sale of such Shares. The Trust shall amend its registration statement for its shares
under the 1933 Act and itself under 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 its Shares for sale in
accordance with the laws of the various states only if and to the extent deemed advisable by the
Trust.
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3.6 The Trust represents and warrants that each Portfolio intends to comply with the
diversification requirements set forth in Section 817(h) of the Internal Revenue Code of 1986, as
amended, (the “Code”) and the regulations thereunder and that the Trust will notify the Company
promptly upon having a reasonable basis for believing that a Portfolio does not so comply. In the
event of any such non-compliance, the Trust will take all reasonable steps to adequately diversify
the Portfolio so as to achieve compliance within the grace period afforded by Section 1.817-5 of
the regulations under the Code.
Notwithstanding any other provision of this Agreement, the Company agrees that if the Internal
Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of
the Company or, to the Company’s knowledge, of any Contract owners or annuitants, insureds or
participants under the Contracts (as appropriate) (collectively, “Participants”), that any
Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code
or the Company otherwise becomes aware of any facts that could give rise to any claim against the
Trust or its affiliates as a result of such a failure or alleged failure:
| (a) | the Company shall promptly notify the Trust of such assertion or potential claim; | ||
| (b) | the Company shall consult with the Trust as to how to minimize any liability that may arise as a result of such failure or alleged failure. | ||
| (c) | the Company shall use its best efforts to minimize any liability of the Trust or its affiliates resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations Section 1.817-5(a)(2), to the Commissioner of the IRS that such failure was inadvertent; | ||
| (d) | the Company shall permit the Trust, its affiliates and their legal and accounting advisors to participate in any conferences, settlement discussions or other administrative or judicial proceeding or contests (including judicial appeals thereof) with the IRS, any Participant or any other claimant regarding any claims that could give rise to liability to the Trust or its affiliates as a result of such a failure or alleged failure; provided, however, that the Company will retain control of the conduct of such conferences discussions, proceedings, contests or appeals; | ||
| (e) | any written materials to be submitted by the Company to the IRS, any Participant or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations Section 1.817-5(a)(2)), (a) shall be provided by the Company to the Trust (together with any supporting information or analysis) at least ten (10) business days or such shorter period to which the Parties hereto agree prior to the day on which such proposed materials are to be submitted, and (b) |
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| shall not be submitted by the Company to any such person without the express written consent of the Trust which shall not be unreasonably withheld; | |||
| (f) | the Company shall provide the Trust or its affiliates and their accounting and legal advisors with such cooperation as the Trust shall reasonably request (including, without limitation, by permitting the Trust and its accounting and legal advisors to review the relevant books and records of the Company) in order to facilitate review by the Trust or its advisors of any written submissions provided to it pursuant to the preceding clause or its assessment of the validity or amount of any claim against its arising from such a failure or alleged failure; | ||
| (g) | the Company shall not with respect to any claim of the IRS or any Participant that would give rise to a claim against the Trust or its affiliates (a) compromise or settle any claim, (b) accept any adjustment on audit, or (c) forego any allowable administrative or judicial appeals, without the express written consent of the Trust or its affiliates, which shall not be unreasonably withheld; provided that the Company shall not be required, after exhausting all administrative remedies, to appeal any adverse judicial decision unless the Trust or its affiliates shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and provided further that the costs of any such appeal shall be borne equally by the Parties hereto; and | ||
| (h) | the Trust and its affiliates shall have no liability as a result of such failure or alleged failure if the Company fails to comply with any of the foregoing clauses (a) through (g). |
Should the Trust or any of its affiliates refuse to give its written consent to any compromise
or settlement of any claim or liability hereunder, the Company may, in its discretion, authorize
the Trust or its affiliates to act in the name of the Company in, and to control the conduct of,
such conferences, discussions, proceedings, contests or appeals and all administrative or judicial
appeals thereof, and if such arrangement is agreed to in writing by the Trust or its affiliates,
the Trust or its affiliates shall bear the fees and expenses associated with the conduct of the
proceedings that it is so authorized to control; provided, that in no event shall the Company have
any liability resulting from the Trust’s refusal to accept the proposed settlement or compromise
with respect to any failure caused by the Trust. As used in this Agreement, the term “affiliates”
shall have the same meaning as “affiliated person” as defined in Section 2(a)(3) of the 0000 Xxx.
3.7 The Trust represents that each Portfolio intends to qualify as a Regulated Investment
Company under Subchapter M of the Code and that it will make every effort to maintain such
qualification (under Subchapter M or any successor or similar provision) and that
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it will notify the Company promptly upon having a reasonable basis for believing that a
Portfolio has ceased to so qualify.
3.8 Certain classes of the Trust’s Shares intend to make payments to finance distribution
expenses pursuant to Rule 12b-1 under the 1940 Act (the “12b-1 Plan”). The Trust represents that
the 12b-1 Plan for each class of each applicable Portfolio has or will be approved by the Trust’s
board of trustees, including a majority of whom are not interested persons of the Trust, prior to
the date the class commences operations.
3.9 The Trust represents and warrants that all of its trustees, officers and employees 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.
3.10 The Company represents and warrants that the Contracts currently are and will be treated
as annuity contracts or life insurance contracts under applicable provisions of the Code and that
it will make every effort to maintain such treatment; the Company will notify the Trust immediately
upon having a reasonable basis for believing that any of the Contracts have ceased to be so treated
or that they might not be so treated in the future.
3.11 The Company represents and warrants that each Account is a “segregated asset account” and
that interests in each Account are offered exclusively through the purchase of or transfer into a
“variable contract,” within the meaning of such terms under Section 817 of the Code and the
regulations thereunder. The Company will make every effort to continue to meet such definitional
requirements, and it will notify the Trust immediately upon having a reasonable basis for believing
that such requirements have ceased to be met or that they might not be met in the future.
3.12 Each of the Parties represents and warrants that it shall perform its obligations
hereunder in compliance with any applicable state and federal laws.
ARTICLE IV
Potential Conflicts
Potential Conflicts
4.1 The Parties acknowledge that the Trust’s Shares may be made available for investment to
other Participating Insurance Companies. In such event, the Trustees will monitor the Trust for the
existence of any material irreconcilable conflict between the interests of the contract owners of
all Participating Insurance Companies. 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
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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
Portfolio are being managed; (e) a difference in voting instructions given by variable annuity
contract and variable life insurance policyowners; or (f) a decision by an insurer to disregard the
voting instructions of contract owners. The Trustees shall promptly inform the Company if they
determine that an irreconcilable material conflict exists and the implications thereof.
4.2 The Company agrees to promptly report any potential or existing conflicts of which it is
aware to the Trustees. The Company will assist the Trustees in carrying out their responsibilities
under the Exemptive Order by providing the Trustees with all information reasonably necessary for
the Trustees to consider any issues raised including, but not limited to, information as to a
decision by the Company to disregard Contract owner voting instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of its disinterested
Trustees, that a material irreconcilable conflict exists that affects the interests of Contract
owners, the Company shall, in cooperation with other Participating Insurance Companies whose
contract owners are also affected, 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, which steps could include: (a) withdrawing the
assets allocable to some or all of the Accounts from the Trust or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited to) another Portfolio of
the Trust, or submitting the question of whether or not 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 one or more Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a change; and (b) establishing a
new registered management investment company or managed separate account.
4.4 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 may be required, at the Trust’s election, to withdraw
each 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 to adequately remedy the foregoing material irreconcilable conflict as determined by a
majority of the disinterested Trustees. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place within six (6) months after the
Trust gives written notice that this provision is being implemented. Until the end of such six (6)
month period, the Trust shall continue to accept and implement orders by the Company for the
purchase and redemption of Shares of the applicable Portfolio.
4.5 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 (6) months after the Trustees
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inform 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 to adequately remedy the foregoing material irreconcilable conflict
as determined by a majority of the disinterested Trustees. Until the end of such six (6) month
period, the Trust shall continue to accept and implement orders by the Company for the purchase and
redemption of Shares of the applicable Portfolio.
4.6 The Company agrees that any remedial action taken by it in resolving any material
irreconcilable conflict will be carried out at its expense and with a view only to the interests of
Contract owners.
4.7 For purposes of Sections 4.3 through 4.6 of this Agreement, a majority of the
disinterested Trustees shall determine whether any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the Company be required 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 Trustees determine 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 Trustees inform the Company in writing of
the foregoing determination.
4.8 The Company shall at least annually submit to the Trustees such reports, materials or data
as the Trustees may reasonably request so that the Trustees may fully carry out the duties imposed
upon them by the Exemptive Order, and said reports, materials and data shall be submitted more
frequently if deemed appropriate by the Trustees.
4.9 As of the date of this Agreement, the Trust has not received the Exemptive Order. If and
when the Exemptive Order is granted, the Parties shall take all such steps as may be necessary to
amend this Agreement to conform with the provisions and conditions of the Exemptive Order, as
granted. In addition, the Parties shall take all such steps as may be necessary to amend this
Agreement to assure compliance with all federal and state laws to the extent any Trust Shares are
to be sold to any unregistered accounts or to any Plan.
4.10 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 Exemptive Order) on terms and
conditions materially different from those contained in the Exemptive Order, then the Trust and/or
the Participating Insurance Companies, 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.
ARTICLE V (Effective October 16, 2007)
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5.1 The Company agrees to provide Fund, upon written request (which may include electronic
writings and facsimile transmissions, a “Request”), the taxpayer identification number (the “TIN”),
the Individual/International Taxpayer Identification Number (“ITIN”) or other government-issued
identifier (“GII”), if known, of any or all Contractholder(s) who have purchased, redeemed,
transferred or exchanged Portfolio Shares held through a Separate Account during the period covered
by the Request and the amount, date, name or other identifier of any investment professional(s)
associated with the Contractholders or Separate Account (if known), and transaction type (purchase,
redemption, transfer, or exchange) of every purchase, redemption, transfer, or exchange of Shares.
| i. | Requests must set forth a specific period, not to exceed 90 days from the date of the Request for which transaction information is sought. Fund may request transaction information older than 90 days from the date of the Request as it deems necessary to investigate compliance with policies established by Fund for the purpose of eliminating or reducing any dilution of the value of Shares. | ||
| ii. | The Company agrees to transmit the requested information that is on the Separate Account’s books and records to Fund or its designee promptly, but in any event not later than 10 Business Days after receipt of a Request. To the extent practicable, the format for any transaction information provided to Fund should be consistent with the National Securities Clearing Corporation (the “NSCC”) Standardized Data Report Format, or any other format acceptable to Fund. | ||
| iii. | Fund agrees not to use the information received for marketing or any other similar purpose without the prior written consent of the Company. |
5.2 The Company agrees to execute a Request from Fund to restrict or prohibit further
purchases or exchanges of Shares by a Contractholder that has been identified by Fund as having
engaged in transactions in Shares that violate policies established by Fund for the purpose of
eliminating or reducing any dilution of the value of Portfolio Shares.
| i. | Such Request must include the TIN, ITIN or GII if known, and the specific restriction(s) to be executed. If the TIN, ITIN or GII is not known, the instructions must include an equivalent identifying number of the Contractholder(s) or other agreed upon information to which the instruction relates. | ||
| ii. | The Company agrees to execute the Request as soon as reasonably practicable, but not later than five Business Days after receipt of the instructions by Insurance Company. | ||
| iii. | The Company agrees to provide written confirmation to Fund as soon as reasonably practicable that the Request has been executed, but not later than 10 Business Days after the Request has been executed. |
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5.3 The Company will use best efforts to determine, promptly upon the Request of Fund, but
not later than five Business Days after receipt of the Request by the Company, whether any specific
person or entity about whom Fund has received information pursuant to Section 5.1 of this Agreement
is an “indirect intermediary” as defined in Rule 22c-2 under the 1940 Act (“Indirect Intermediary”)
and, upon further Request from Fund, promptly (but not later than five Business Days after receipt
of such Request) either:
| i. | provide (or arrange to have provided) the identification and transaction information set forth in Section 5.1 of this Agreement regarding a Contractholder who holds Shares through the Indirect Intermediary; or | ||
| ii. | restrict or prohibit the Indirect Intermediary from purchasing Shares on behalf of itself or other persons. |
The Company agrees to inform the Fund whether it plans to perform (i) or (ii ) above.
ARTICLE VI
Indemnification
Indemnification
6.1 Indemnification By the Company. The Company agrees to indemnify and hold harmless
the Trust, its affiliates and each of its Trustees, officers, employees and agents and each person,
if any, who controls the Trust or any of its affiliates within the meaning of Section 15 of the
1933 Act (collectively, the “Trust Indemnified Parties” for purposes of this Article VI) against
any and all losses, claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Company) or expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, liability or expense and reasonable legal counsel fees
incurred in connection therewith) (collectively, “Losses”), to which the Trust Indemnified Parties
may become subject under any statute or regulation, or at common law or otherwise, insofar as such
Losses:
(a) arise out of or are based upon any untrue statements or alleged untrue statements of any
material fact contained in a registration statement or prospectus for the Contracts or in the
Contracts themselves or in advertising or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing) (collectively, “Company Documents” for the purposes of this
Article VI), or arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, provided that this indemnity shall not apply as to any Trust Indemnified Party if
such statement or omission or such alleged statement or omission was made in reliance upon and was
accurately derived from written information furnished to the Company or its affiliates by or on
behalf of the Trust or its affiliates for use in Company Documents or otherwise for use in
connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations (other than statements or
representations contained in and accurately derived from Trust Documents or the
-15-
negligent or wrongful conduct of the Company, or persons under its control (including, without
limitation, its employees), in connection with the sale or distribution of the Contracts or Trust
Shares; or
(c) arise out of or result from any untrue statement or alleged untrue statement of a material
fact contained in Trust Documents 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 statement or omission was made in reliance upon and accurately derived from written
information furnished to the Trust or its affiliates by or on behalf of the Company or its
affiliates; or
(d) arise out of or result from any failure by the Company to perform the obligations, provide
the services or furnish the materials required under the terms of this Agreement; or
(e) arise out of or result from any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or result from any other
material breach of this Agreement by the Company.
6.2 Indemnification By the Trust. The Trust agrees to indemnify and hold harmless the
Company, its affiliates and each of its directors, officers, employees and agents and each person,
if any, who controls the Company or any of its affiliates within the meaning of Section 15 of the
1933 Act (collectively, the “Company Indemnified Parties” for purposes of this Article VI) against
any and all losses, claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Trust) or expenses (including the reasonable costs of investigating or
defending any alleged loss, claim, damage, liability or expense and reasonable legal counsel fees
incurred in connection therewith) (collectively, “Losses”), to which the Company Indemnified
Parties may become subject under any statute or regulation, or at common law or otherwise, insofar
as such Losses:
(a) arise out of or are based upon any untrue statements or alleged untrue statements of any
material fact contained in the registration statement or prospectus for the Trust or in advertising
or sales literature for the Trust (or any amendment or supplement to any of the foregoing),
(collectively, “Trust Documents” for the purposes of this Article VI), or arise out of or are based
upon the omission or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided that this indemnity
shall not apply as to any Company Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately derived from written information
furnished to the Trust or its affiliates by or on behalf of the Company or its affiliates for use
in Trust Documents or otherwise for use in connection with the sale of the Contracts or Trust
Shares; or
(b) arise out of or result from statements or representations (other than statements or
representations contained in and accurately derived from Company Documents) or the negligent or
wrongful conduct of the Trust or persons under its control (including, without
-16-
limitation, its employees), in connection with the sale or distribution of the Contracts or
Trust Shares; or
(c) arise out of or result from any untrue statement or alleged untrue statement of a material
fact contained in Company Documents or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and accurately derived from written
information furnished to the Company or its affiliates by or on behalf of the Trust or its
affiliates; or
(d) arise out of or result from any failure by the Trust to perform the obligations, provide
the services or furnish the materials required under the terms of this Agreement; or
(e) arise out of or result from any material breach of any representation and/or warranty made
by the Trust in this Agreement or arise out of or result from any other material breach of this
Agreement by the Trust.
6.3 No Party shall be liable under the indemnification provisions of Sections 6.1 or 6.2, as
applicable, with respect to any Losses incurred or assessed against a Trust Indemnified Party or a
Company Indemnified Party, as applicable (as to each, an “Indemnified Party”) to the extent the
Losses arise from such Indemnified Party’s willful misfeasance, bad faith or negligence in the
performance of such Indemnified Party’s duties or by reason of such Indemnified Party’s reckless
disregard of obligations or duties under this Agreement.
| (a) | No Party shall be liable under the indemnification provisions of Sections 6.1 or 6.2, as applicable, with respect to any claim made against an Indemnified Party unless such Indemnified Party shall have notified the Party against whom Indemnification is sought (the “Indemnifying Party”) in writing within a reasonable time after the summons, or other first written notification, giving information of the nature of the claim that shall have been served upon or otherwise received by such Indemnified Party (or after such Indemnified Party shall have received notice of service upon or other notification to any designated agent), but failure to notify the Indemnifying Party of any such claim shall not relieve such Indemnifying Party from any liability which it may have to the Indemnified Party in the absence of the sections referred to herein. | ||
| (a) | In case any such action is brought against the Indemnified Parties, the Indemnifying Party shall be entitled to participate, at its own expense, in the defense of such action. The Indemnifying Party also shall be entitled to assume the defense thereof, with counsel reasonably satisfactory to the Party named in the action. After notice from the Indemnifying Party to the Indemnified Party of an election to assume such defense, the Indemnified Party shall cooperate with the Indemnifying Party and bear the fees and |
-17-
| expenses of any additional counsel retained by it, and the Indemnifying Party will not be liable to the Indemnified Party under this Agreement for any legal or other expenses subsequently incurred by such Indemnified Party independently in connection with the defense thereof other than reasonable costs of investigation. |
6.4 Confidentiality. The Trust acknowledges that the identities of the customers of
Company or any of its affiliates (collectively, the “Company Protected Parties” for purposes of
this Article VI), information maintained regarding those customers, and all computer programs and
procedures or other information developed by the Company Protected Parties or any of their
employees or agents in connection with Company’s performance of its duties under this Agreement are
the valuable property of the Company Protected Parties. The Trust agrees that if it comes into
possession of any list or compilation of the identities of or other information about the Company
Protected Parties’ customers, or any other information or property of the Company Protected
Parties, other than such information as may be independently developed or compiled by the Trust
from information supplied to it by the Company Protected Parties’ customers who also maintain
accounts directly with the Trust, the Trust will hold such information or property in confidence
and refrain from using, disclosing or distributing any of such information or other property
except: (a) with Company’s prior written consent; or (b) as required by law or judicial process.
The Company acknowledges that the identities of the customers of the Trust or any of its affiliates
(collectively, the “the Trust Protected Parties” for purposes of this Article VI), information
maintained regarding those customers, and all computer programs and procedures or other information
developed by the Trust Protected Parties or any of their employees or agents in connection with the
Trust’s performance of its duties under this Agreement are the valuable property of the Trust
Protected Parties. The Company agrees that if it comes into possession of any list or compilation
of the identities of or other information about the Trust Protected Parties’ customers or any other
information or property of the Trust Protected Parties, other than such information as may be
independently developed or compiled by Company from information supplied to it by the Trust
Protected Parties’ customers who also maintain accounts directly with the Company, the Company will
hold such information or property in confidence and refrain from using, disclosing or distributing
any of such information or other property except: (a) with the Trust’s prior written consent; or
(b) as required by law or judicial process. Each Party acknowledges that any breach of the
agreements in this Article VI would result in immediate and irreparable harm to the other Party for
which there would be no adequate remedy at law and agree that in the event of such a breach, the
other Party will be entitled to equitable relief by way of temporary and permanent injunctions, as
well as such other relief as any court of competent jurisdiction deems appropriate.
ARTICLE VII
Termination
Termination
7.1 This Agreement may be terminated by either Party for any reason by ninety (90) days
advance written notice delivered to the other Party.
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| (a) | This Agreement may be terminated by the Company immediately upon written notice to the Trust with respect to any Portfolio: |
(i) based upon the Company’s determination that Shares of such
Portfolio are not reasonably available to meet the requirements of
the Contracts; or
(ii) in the event any of the Portfolio’s Shares are not registered,
and in all material respects 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
(iii) in the event that such Portfolio ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under
any successor or similar provision, or if the Company reasonably
believes that the Trust may fail to so qualify; or
(iv) in the event that such Portfolio fails to meet the
diversification requirements specified in this Agreement.
7.2 Notwithstanding any termination of this Agreement, the Trust shall, at the option of the
Company, continue to make available additional Shares of the Trust (or any Portfolio), pursuant to
the terms and conditions of this Agreement, for all Contracts in effect on the effective date of
termination of this Agreement, provided that the Company continues to meet all obligations of the
Company under this Agreement (treating it as being in full force and effect), and further provided
that Shares of the Trust (or any Portfolio) shall only be required to be made available with
respect to owners of the Contracts for whom Shares are held by an Account on the effective date of
the termination. Such Contract owners will be permitted to reallocate investments in the Portfolio
and/or invest in the Portfolio upon the making of additional purchase payments under the Contracts.
The provisions of this Section 7.2 shall not apply to any termination pursuant to Article VII or in
the event the Trust determines to liquidate the Portfolio and end the Portfolio’s existence.
7.3 The provisions of Articles V and VI shall survive the termination of this Agreement, and
the provisions of Articles II and IV shall survive the termination of this Agreement so long as
Shares of the Trust are held on behalf of Contract owners in accordance with Section 2.8.
7.4 This Agreement will terminate as to a Portfolio upon at least ninety (90) days advance
written notice:
(a) at the option of the Trust upon institution of formal proceedings
against the Company by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body if the Trust shall
-19-
determine, in its sole judgment exercised in good faith, that the Company
has suffered a material adverse change in its business, operations,
financial condition, or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(b) at the option of the Company upon institution of formal proceedings
against the Trust, its principal underwriter, or its investment adviser by
the NASD, the SEC, or any state securities or insurance department or any
other regulatory body if the Company shall determine, in its sole judgment
exercised in good faith, that the Trust, its principal underwriter, or its
investment adviser has suffered a material adverse change in its business,
operations, financial condition, or prospects since the date of this
Agreement or is the subject of material adverse publicity; or
7.5 This Agreement will terminate as to a Portfolio immediately upon prior written notice
which shall be given as soon as possible within twenty-four (24) hours after the terminating Party
learns of the event causing termination to be required:
(a) at the option of the Trust if the Contracts issued by the Company cease
to qualify as annuity contracts or life insurance contracts under the Code
(other than by reason of the Portfolio’s noncompliance with Section 817(h)
or Subchapter M of the Code) or if interests in an Account under the
Contracts are not registered, or, in all material respects, are not issued
or sold in accordance with any applicable federal or state law; or
(b) upon another Party’s material breach of any provision of this Agreement.
7.6 The Parties hereto agree to cooperate and give reasonable assistance to one another in
taking all necessary and appropriate steps for the purpose of ensuring that an Account owns no
Shares of a Portfolio after the effective date of this Agreement’s termination with respect to such
Shares or, if such ownership following termination cannot be avoided, that the duration thereof is
as brief as reasonably practicable. Such steps may include, for example, combining the affected
Account with another Account, substituting other Portfolio shares for those of the affected
Portfolio, or otherwise terminating participation by the Contracts in such Portfolio.
ARTICLE VIII
Notices
Notices
Any notice shall be sufficiently given when sent by registered or certified mail to the other
Party at the address of such Party set forth below or at such other address as such Party may from
time to time specify in writing to the other Party.
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If to the Trust:
|
General Counsel | |
| XTF Advisors Trust | ||
| 000 Xxxx Xxxxxx, 00xx Xxxxx | ||
| Xxx Xxxx, Xxx Xxxx 00000 | ||
with a copy to:
|
XxXxx X. Xxxxxxxx, Esq. | |
| Xxxxxxxx Xxxx LLP | ||
| 000 Xxxxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxxxxxx, Xxxx 00000 | ||
If to the Company:
|
General Counsel | |
| Pacific Life Insurance Company | ||
| 000 Xxxxxxx Xxxxxx Xxxxx | ||
| Xxxxxxx Xxxxx XX 00000 |
ARTICLE IX
Miscellaneous
Miscellaneous
| (a) | 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. | |
| (b) | This Agreement may be executed simultaneously in two or more counterparts, each of which taken together shall constitute one and the same instrument. | |
| (c) | 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. | |
| (d) | This Agreement shall be construed and the provisions hereof interpreted under and in accordance with the laws of State of New York without regard for that state’s principles of conflict of laws. | |
| (e) | The Parties acknowledge and agree that all liabilities of the Trust arising, directly or indirectly, under this Agreement, of any and every nature whatsoever, shall be satisfied solely out of the assets of the Trust and that no Trustee, officer, agent or holder of Shares of beneficial interest of the Trust shall be personally liable for any such liabilities. | |
| (f) | Each Party shall cooperate with each other Party and all appropriate governmental authorities (including without limitation the Securities and Exchange Commission, the National Association of Securities Dealers, Inc., and state insurance regulators) and shall permit such authorities reasonable access to its books and records in connection with any investigation or inquiry relating to this Agreement or the transactions contemplated hereby. |
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| (g) | 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. | |
| (h) | The Parties acknowledge and agree that this Agreement shall not be exclusive in any respect. | |
| (i) | Neither this Agreement nor any of its rights or obligations hereunder may be assigned by any Party without the prior written approval of the other Party. | |
| (j) | No provisions of this Agreement may be amended or modified in any manner except by a written agreement properly authorized and executed by all Parties hereto. |
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers to execute this
Agreement as of the date and year first above written.
| XTF ADVISORS TRUST | |||||
| By: /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx | |||||
| Title: Chairman | |||||
| XTF INVESTORS TRUST | |||||
| By: /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx | |||||
| Title: Chairman | |||||
| PACIFIC LIFE & ANNUITY COMPANY | |||||
| By: /s/ Xxxxx X. Xxxx | |||||
| Name: Xxxxx X. Xxxx | |||||
| Title: | Executive Vice President and | ||||
| Chief Financial Officer | |||||
| ATTEST: | /s/ Xxxxxx X. Milfs | ||||
| Xxxxxx Milfs, Corporate Secretary | |||||
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SCHEDULE A
Name of Separate Account and
|
Policies/Contracts Funded | |
Date Established by Board of Directors
|
By Separate Account |
Separate Accounts and Associated Variable Annuity Contracts
Separate Account A of PL&A
|
Pacific Innovations Select — NY | |
January 25, 1999
|
Pacific Value — NY | |
| Pacific Odyssey — NY | ||
| Pacific Portfolios — NY | ||
| Pacific Portfolios for Chase — NY | ||
| Pacific Voyages — NY |
Separate Accounts and Associated Variable Life Contracts
Separate Account I of PL&A
|
Magnastar | |
June 8, 2002
|
Magnastar Joint Survivorship | |
Pacific Select Exec Separate Account
|
Pacific Select Exec II — NY | |
May 12, 1988
|
Pacific Select Estate Preserver — NY | |
| Pacific Select Exec III — NY | ||
| Pacific Select Performer 500 — NY | ||
| Pacific Select Exec IV — NY | ||
Pacific COLI Separate Account II
|
Custom COLI — NY | |
October 17, 2003 |
SCHEDULE B
Participating Portfolios
XTF Moderate Conservative Portfolio
|
ETF 2025 | |
XTF Moderate Portfolio
|
ETF 2030 | |
XTF Moderate Aggressive Portfolio
|
ETF 2040+ | |
ETF 2010 |
||
ETF 2015 |
||
ETF 2020 |
