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EXHIBIT 8.2
FORM OF FUND PARTICIPATION AGREEMENT
Zurich Life Insurance Company of America (the "Company") and Lexington
Emerging Markets Fund ("Lexington Fund" or the "Fund") and its investment
adviser, Lexington Management Corporation ("LMC") hereby agree to an
arrangement whereby shares of the Fund shall be made available to serve as
underlying investment media for Variable Annuity Contracts ("Contracts") to be
issued by the Company, subject to the following provisions:
1. Establishment of Accounts: Availability of Funds.
(a) The Company represents that it has established variable
annuity accounts and variable life accounts (the "Accounts"),
each of which is a separate account under Illinois Insurance
law, and has registered each of the Accounts as a unit
investment trust under the Investment Company Act of 1940 (the
"1940") to serve as an investment vehicle for the Contracts.
Each Contract provides for the allocation of net amounts
received by the Company to an Account for investment in the
shares of one or more specified open-end companies available
through that account as underlying investment media.
Selection of a particular fund and changes therein from time
to time are made by the Contract owner, as applicable under a
particular Contract.
(b) Lexington Fund and LMC represent and warrant that the
investments of the Fund will at all times be adequately
diversified within the meaning of Section 817(h) of the
Internal Revenue Service Code of 1986, as amended (the
"Code"), and the Regulations thereunder, and that at all times
while the Accounts are invested in the Fund all beneficial
interests will be owned by one or more insurance companies or
by any other party permitted under Section 1.817-5(f)(3) of
the Regulations promulgated under the Code.
2. Marketing and Promotion.
The Fund agrees to provide the Company with monthly and/or quarterly
performance information and such other information as the parties deem
appropriate for the promotion of the Fund within five (5) days of the
end of each month for monthly information and within (10) days of the
end of each calendar quarter for quarterly information.
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3. Pricing Information; Orders; Settlement
(a) Lexington Fund will make shares available to be purchased by
the Company, and will accept redemption orders from the
Company, on behalf of each Account at the net asset value
applicable to each order. Fund shares shall be purchased and
redeemed in such quantity and at such time determined by the
Company to be necessary to meet the requirements of those
Contracts for which the Fund serves as underlying investment
media.
(b) Lexington Fund will provide to the Company closing net asset
value, dividend and capital gain information at the close of
trading each day that the New York Stock Exchange (the
"Exchange") is open (each such day, a "business day"). The
Company will send via facsimile transmission to Lexington Fund
or its specified agent orders to purchase and/or redeem Fund
shares by 10:00 a.m., Eastern Time the following business day.
Payment for net purchases of the Fund and any other funds for
which LMC is the investment adviser, will be wired by the
Company to a custodial account designated by Lexington Fund to
coincide with the order for shares of the Fund not later
than 12 noon, Eastern Time on the day of the transaction.
(c) Orders from Contract owners or Participants received by
the Company and sent by the Company prior to the close of
the Exchange on any given business day via facsimile
transmission to Lexington Fund or its specified agent by
10:00 a.m., Eastern Time, the following business day will
be executed by Lexington Fund at the net asset value
determined as of the close of the Exchange on such prior
business day. Any orders received by the Company after the
close of the Exchange on such prior business day (or
not meeting the foregoing sentence's requirements) will be
executed by Lexington Fund at the net asset value
determined as of the close of the Exchange on the next
business day following the day of receipt of such order.
(d) Payments for net redemptions of shares of the Fund will
be wired by Lexington Fund from the Lexington Fund
custodial account to an account designated by the Company
not later than 12 noon, Eastern Time on the day of the
transaction.
(e) Each party has the right to rely on information or
confirmations provided by the other party (or by any
affiliate of the other party), and shall not be liable in
the event that an error is a result of any misinformation
supplied by the other party. If a mistake is caused in
supplying such information or confirmations, which results
in a reconciliation with incorrect information,
the amount required to make a Contract owner's account whole
shall be borne by the party providing the incorrect
information.
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(f) LMC shall provide the Company within fifteen (15)
business days after the end of each calendar quarter a letter
from a Fund officer or compliance officer certifying to
the continued accuracy of the representations contained
in Item 1 (b) above and attaching a detailed listing
of the individual securities and other assets, if any, held by
the Fund as of the end of such calendar quarter.
(g) LMC agrees to provide the Company within ten (10)
business days after the end of each month a monthly
statement of account confirming all transactions made
during the month.
4. Expenses.
(a) Except as otherwise provided in this Agreement, all
expenses incident to the performance by Lexington Fund
under this Agreement shall be paid by Lexington Fund
including the cost of registration of Lexington Fund shares
with the Securities and Exchange Commission (the
"SEC") and in states where required.
(b) Lexington Fund shall distribute to the Company its proxy
material, periodic fund reports to shareholders and other
material that are required by law to be sent to Contract
owners. In addition, Lexington Fund shall provide the
Company with a sufficient quantity of its prospectuses to
be used in connection with the offerings and transaction
contemplated by this Agreement. Subject to subsection
(c) below, the cost of preparing and printing such
materials shall be paid by Lexington Fund, and the cost
of distributing such materials shall be paid by the
Company. However, if Lexington Fund makes changes to its
prospectus for its own benefit or the benefit of someone
other than the Company resulting in the need to print and
distribute one or more supplements to contract holders, all
costs associated with printing and distributing any
such supplement shall be borne by Lexington Fund. In
addition, Lexington Fund and LMC agree that to the extent
the Fund decides in the future to finance distribution
expenses pursuant to Rule 12b-1 of the 1940 Act, the Fund
will undertake to have the board of directors, a majority
of whom are not interested persons of the Fund, formulate
and approve any plan under Rule 12b-1 to finance distribution
expenses.
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(c) In lieu of Lexington Fund's providing printed copies of
prospectuses and periodic fund reports to shareholder, the
Company shall have the right to request that
Lexington Fund provide a copy of such materials in an
electronic format, which the Company may use to have such
materials printed together with similar materials of other
Account funding media that the Company or any
distributor will distribute to existing or prospective
Contract owners or participants. In that event Lexington
Fund shall reimburse the Company for the same proportion of
the total printing expense for such materials as the
number of pages in each such printed document provided by
Lexington Fund bears to the total number of pages in such
printed document.
5. Representations.
(a) The Company agrees that it and its agents shall not,
without the written consent of Lexington Fund, make
representations concerning Lexington Fund or its shares
except those contained in the then current prospectuses and
in current printed sales literature of Lexington
Fund.
(b) The Company represents and warrants that interests in
Contracts are or will be registered under the Securities
Act of 1933 ("1933 Act") or are exempt from registration
thereunder; that the Contracts will be issued and sold in
compliance in all material respects with all applicable
federal and state laws 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
and that it has legally and validly established each
Account prior to any issuance or sale thereof as a
segregated asset account and that each Account is or will
be registered as a unit investment trust in accordance with
the provisions of the 1940 Act to serve as a
segregated investment account for the Contracts or is
exempt from registration thereunder.
(c) The Company represents that the Contracts are currently
treated as annuity contracts under applicable provisions of
the Code and that it will make every effort to
maintain such treatment and that it will notify Lexington
Fund and LMC 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.
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(d) The Company represents and warrants that all of its
directors, officers and employees, if any, dealing with the
money and/or securities of the Fund are and shall
continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Fund in
an amount not less than $2 million. The aforesaid bond
shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
(e) LMC and Lexington Fund make no representation as to
whether any aspect of the Fund's operations (including, but
not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of
the various states.
(f) The Lexington Fund represents that it will sell and
distribute Fund's shares in accordance with any
applicable federal and state securities laws, including
without limitation, the 1933 Act, the Securities Exchange
Act of 1934, and the 1940 Act.
(g) Lexington Fund represents it is currently qualified as a
regulated investment company under Subchapter M of the Code
and that it will maintain such qualification
(under Subchapter M or any successor or similar
provision) and that it will notify the Company
immediately upon having a reasonable basis for believing
that it ceased to so qualify or might not so
qualify in the future. Lexington Fund and LMC acknowledge
that any failure to qualify as a regulated
investment company under Subchapter M of the Code would
constitute a breach of its representation and warranty
under item 1 (b) of this Agreement.
(h) LMC and Lexington Fund represent and warrant that the
Funds' shares sold pursuant to this Agreement shall be
registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the State
of Illinois and all applicable federal and state
securities laws and that the Fund are and shall remain
registered under the 0000 Xxx. The Fund shall amend the
registration statement for its shares under the 1933 Act
and 1940 Act from time to time as required in order to
effect the continuous offering of its shares. The Fund
shall also 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 Fund or LMC.
(i) Lexington Fund represents that it is lawfully organized
and validly existing under the laws of its state of
domicile and that it is and will comply in all material
respects with the 1940 Act.
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(j) LMC and Lexington Fund represent and warrant that LMC is
duly organized under its state of domicile, and is and
shall remain duly registered in all material respects
under any applicable federal and state securities laws, and
further that LMC shall perform its obligations for
the Fund in compliance in all material respects with
applicable federal and state securities laws.
(k) LMC and Lexington Fund represent and warrant that all of
their respective directors, officers, and employees dealing
with the money and/or securities of the Fund are
and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit
of the Fund in an amount not less than the minimal coverage
as required currently by Rule 17g-(1) of the
1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bond shall include coverage
for larceny and embezzlement and shall be issued by a
reputable bonding company.
6. Administration of Accounts.
(a) Administrative services to Contract owners shall be the
responsibility of the Company and shall not be the
responsibility of Lexington Fund or LMC. LMC recognizes
the Company as the sole shareholder of fund shares issued
under this Agreement. From time to time, LMC may pay
amounts from its past profits to the Company for
providing certain administrative services for the Fund or
for providing other services that relate to the Fund. In
consideration of the savings resulting from such
arrangement, and to compensate the Company for its costs, LMC
agrees to pay to the Company an amount equal to 25
basis points (0.25%) per annum of the average aggregate
amount invested by the Company in the Fund under this
Agreement. Payment of such amounts by LMC will not
increase the fees paid by the Fund or its
shareholders.
(b) The parties agree that LMC's payments to the Company are
for administrative services only and do not constitute
payment in any manner for investment advisory services or
for costs of distribution.
(c) For the purposes of computing the administrative fee
reimbursement contemplated by this Section 6, the average
aggregate amount invested by the Company over a one month
period shall be computed by totaling the Company's aggregate
investment (share net asset value multiplied by
total number of shares held by the Company) on each business
day during the month and dividing by the total
number of business days during each month.
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(d) LMC will calculate the reimbursement of administrative
expenses at the end of each calendar quarter and will make
such reimbursement to the Company within 30 days
thereafter. The reimbursement check will be accompanied by
a statement showing the calculation of the monthly
amounts payable by LMC and such other supporting data as may
be reasonably requested by the Company.
7. Termination.
This agreement shall terminate as to the sale and issuance of new
Contracts:
(a) at the option of either the Company or Lexington Fund,
upon three months advance written notice to the other;
(b) at the option of the Company, upon one week advance
written notice to Lexington Fund, if Lexington Fund shares
are not available for any reason to meet the
requirement of Contracts as determined by the Company.
(c) at the option of either the Company or Lexington Fund,
immediately upon institution of formal proceedings against
the broker-dealer or broker-dealers marketing the
Contracts, the Account, the Company, Lexington Fund, or LMC
by the National Association of Securities Dealers,
Inc. (the "NASD"), Securities and Exchange Commission (the
"SEC") or any other regulatory body;
(d) upon the requisite vote of Contract owners having an
interest in the Fund, to substitute for the Fund's shares
the shares of another investment company in accordance
with the terms of the applicable Contracts. The Company
will give 60 days written notice to Lexington Fund of any
proposed vote to replace the Fund's shares;
(e) upon assignment of the Agreement, unless made with the
written consent of all other parties hereto:
(f) if the Fund's shares are not registered, issued or sold
in conformance with Federal law or such law precludes the
use of Fund's shares as an underlying investment medium
for Contracts issued or to be issued by the Company.
Prompt notice shall be given by either party should such
situation occur.
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(g) If the need for substitution of the shares of another
investment company, pursuant to Section 20(b) of the 1940
Act, arises out of the Fund's failure to be registered,
issued or sold in conformance with federal law or such law
precludes the use of the Fund as an underlying
investment medium of contracts issued or to be issued by the
Company, the expenses of obtaining such order shall
be reimbursed by the Lexington Fund or LMC. Lexington Fund
and LMC shall cooperate with the company in
connection with such application.
8. Continuation of Agreement.
Termination as the result of any cause listed in Section 7 shall
not affect Lexington Fund's obligation to furnish its shares to Contracts then
in force for which its shares serve or may serve as the underlying medium
unless such further sale of Fund's shares is proscribed by law or the
SEC or other regulatory body.
9. Advertising Materials; Filed Documents
(a) Advertising and sales literature with respect to the Fund
prepared by the Company or its agents for use in marketing its
Contracts will be submitted to Lexington Fund or LMC for
review before such material is submitted to any regulatory
body for review.
(b) Lexington Fund will provide to the Company at least one
complete copy of all registration statements, prospectuses,
statements of additional information, annual and semiannual
reports, proxy statements and all amendments or supplements to
any of the above that relate to the Fund promptly after the
filing of such document with the SEC or other regulatory
authorities. The Company will provide to Lexington Fund at
least one complete copy of all registration statements,
prospectuses, statements of additional information, annual and
semi-annual reports, proxy statements, and all amendments or
supplements to any of the above that relate to each Account
promptly after the filing of such document with the SEC or
other regulatory authority.
10. Proxy Voting.
(a) The Company shall provide pass-through voting privileges
on Fund's shares to all Contract owners to the extent the
SEC continues to interpret the 1940 Act as requiring such
privileges. If shares are held in any other separate
account not required to be registered under the 1940 Act,
those shares will be voted in the Company's sole discretion.
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(b) The Company will distribute to Contract owners and
participants, as appropriate, all proxy material
furnished by Lexington Fund and will vote Fund's shares
in accordance with instructions received from Contract
owners. The Company, with respect to each Contract and
in each Account, shall vote Fund shares for which no
instructions have been received in the same proportion as
shares for which such instructions have been received. The
Company and its agents shall not oppose or interfere
with the solicitation of proxies for Fund shares held for
such Contract owners.
11. Indemnification.
(a) The Company agrees to indemnify and hold harmless
Lexington Fund, LMC, and each of its directors, trustees,
officers, employees, agents and each person, if any, who
controls the Fund or its investment adviser within the meaning
of the Securities Act of 1933 (the "1933 Act") against any
losses, claims, damages or liabilities to which the Fund or
any such director, officer, employee, agent, or controlling
person may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages, or liabilities (or
actions in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material
fact contained in the Registration Statement, prospectus or
sales literature of the Company, 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 or representations (other than statements
or representations contained in the prospectuses or sales
literature of the Fund) of the Company or its agents, with
respect to the sale and distribution of Contracts for which
Fund shares are the underlying investment. The Company will
reimburse any legal or other expenses reasonably incurred
by the Fund or any such director, officer, employee, agent,
investment adviser, or controlling person in connection with
investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will
not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based
upon an untrue statement or omission or alleged omission made
in such Registration Statement or prospectus in conformity
with written materials furnished to the Company by the Fund
specifically for use therein. This indemnity agreement will
be in addition to any liability which the Company may
otherwise have.
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(b) The Company shall not be liable under this Section 11. to
Lexington Fund, LMC or other parties covered under Section 11.
(a) with respect to any losses, claims, damages or liabilities
(or actions in respect thereof) incurred or assessed against
any such party (including Lexington Fund and LMC) as such may
arise from such party's willful misfeasance, bad faith, or
negligence in the performance of such party's duties or by
reason of such party's reckless disregard of obligations or
duties under this Agreement.
(c) Lexington Fund and LMC agree to indemnify and hold harmless
the Company and its directors, officers, employees, agents and
each person, if any, who controls the Company within the
meaning of the 1933 Act against any losses, claims, damages or
liabilities to which the Company or any such director,
officer, employee, agent or controlling person may become
subject, under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in
the Registration Statement, prospectuses or sales literature
of the Fund, 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. Lexington Fund will reimburse any
legal or other expenses reasonably incurred by the Company or
any such director, officer, employee, agent, or controlling
person in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however,
that LMC and Lexington Fund will not be liable in any such
case to the extent that any such loss, claim, damage or
liability rises out of or is based upon a Registration
Statement or prospectuses which are in conformity with written
materials furnished to Lexington Fund by the Company
specifically for use therein. This indemnity agreement will
be in addition to any liability which Lexington Fund of LMC
may otherwise have.
(d) Lexington Fund and LMC agree to indemnify and hold harmless
the Company and its directors, officers, employees, agents and
each person, if any, who controls the Company within the
meaning of the 1933 Act against any losses, claims, damages or
liabilities to which the Company or any such director,
officer, employee, agent or controlling person may become
subject under the 1933 Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon the breach of any
representation or warranty in this Agreement by Lexington Fund
or LMC including but not limited to a failure of the Fund to
qualify under Subchapter M or a finding or claim that the
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Funds are not adequately diversified within the meaning of
Section 817(h) of the Code and/or that while this agreement is
in effect, all beneficial interests will be owned by one or
more insurance companies or by any other party permitted under
Section 1.817-5 (f)(3) of the Regulations promulgated under
the Code.
(e) Lexington Fund and LMC shall not be liable under this
Section 11. to the Company or other parties covered under
Section 11.(c) with respect to any losses, claims,
damages or liabilities (or actions in respect thereof)
incurred or assessed against any such party (including
the Company) as such may arise from such party's willful
misfeasance, bad faith, or negligence in the performance
of such party's duties or by reason of such party's
reckless disregard of obligations or duties under this
Agreement.
(f) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of action, such indemnified party
will, if a claim in respect thereof is to be made against the
indemnifying party hereunder, notify the indemnifying party of
the commencement thereof; but the omission so to notify the
indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than
under this Section 11. In case any such action is brought
against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein
and, to the extent that it may wish to, assume the defense
thereof, with counsel satisfactory to such indemnified party
of its election to assume the defense thereof, the
indemnifying party will not be liable to such indemnified
party under this Section 11 for any legal or other expenses
subsequently incurred by such indemnified party in connection
with the defense thereof other than reasonable costs of
investigation.
12. Potential Conflicts.
(a) The Company has received a copy of an application for
exemptive relief, as amended, filed by Lexington Fund on
March 21, 1994, with the SEC and the order issued by the
SEC in response thereto (the "Shared Funding Exemptive
Order"). The Company has reviewed the conditions to the
requested relief set forth in such application for exemptive
relief. As set forth in such application, the
Board of Directors of Fund (the "Board") will monitor the
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Fund for the existence of any material irreconcilable conflict
between the interests of the contract holders of all separate
accounts ("Participating Companies") investing in the Fund.
An irreconcilable material conflict may arise for a variety of
reasons, including: (i) an action by any state insurance
regulatory authority; (ii) 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 actions by insurance,
tax or securities regulatory authorities; (iii) an
administrative or judicial decision in any relevant
proceeding; (iv) the manner in which the investments of any
portfolio are being managed; (v) a difference in voting
instructions given by variable annuity contract holders and
variable life insurance contract holders; or (vi) a decision
by an insurer to disregard the voting instruction of contract
holders. The Board shall promptly inform the Company if it
determines that an irreconcilable material conflict exists and
the implications thereof.
(b) 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 Funding 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 holder voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested
Board members, determines that a material irreconcilable
conflict exists with regard to contract holder investments in
the Fund, the Board shall give prompt notice to all
Participating Companies. If the Lexington Fund or LMC is
responsible for causing or creating said conflict, the Company
shall at its sole cost and expense, and to the extent
reasonably practicable (as determined by a majority of the
disinterested Board members), take such action as is necessary
to remedy or eliminate the irreconcilable material conflict.
If the Board determines that the Company is responsible for
causing or creating said conflict, the Company shall at its
sole cost and expense, and to the extent reasonably
practicable (as determined by a majority of the disinterested
Board members), take such action as is necessary to remedy or
eliminate the irreconcilable material conflict. Such
necessary action may include but shall not be limited to:
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(i) withdrawing the assets allocable to the Account from
the Fund and reinvesting such assets in a different
investment medium or submitting the question of
whether such segregation should be implemented to
a vote of all affected contract holders 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 Companies)
that votes in favor of such segregation, or offering
to the affected contract holders the option of making
such a change; and/or
(ii) establishing a new registered management investment
company or managed separate account.
(d) If a material irreconcilable conflict arises as a result
of a decision by the Company to disregard its contract
holder voting instructions and said decision represents
a minority position or would preclude a majority vote by
all of its contract holders having an interest in the
Fund, the Company at its sole cost, may be required, at the
Board's election, to withdraw an Account's investment
in the Fund and terminate this Agreement; 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 members of the Board.
(e) For the purpose of this Section 12, a majority of the
disinterested Board members shall determine whether or not
any proposed action adequately remedies any
irreconcilable material conflict, but in no event will
Lexington Fund be required to establish a new funding
medium for any Contract. The Company shall not be required
by this Section 12 to establish a new funding
medium for any Contract if an offer to do so has been
declined by vote of a majority of the Contract owners or
participants materially adversely affected by the
irreconcilable material conflict.
13. Miscellaneous.
(a) Amendment and Waiver. Neither this Agreement, nor any
provision hereof, may be amended, waived, discharged or
terminated orally, but only by an instrument in writing
signed by all parties hereto.
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(b) Notices. All notices and other communications hereunder
shall be given or made in writing and shall be delivered
personally, or sent by telex, telecopier or registered or
certified mail, postage prepaid, return receipt requested, to
the party or parties to whom they are directed at the
following addresses, or at such other addresses as may be
designated by notice from such party to all other parties.
To the Company:
Zurich Life Insurance Company of America
0 Xxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Attention: General Counsel
To Lexington Management Corporation:
Lexington Management Corporation
Park 00 Xxxx Xxxxx Xxx
Xxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxx Xxxxxx
Senior Vice President & Secretary
Any notice, demand or other communication given in a manner prescribed
in this subsection (b) shall be deemed to have been delivered on
receipt.
(c) Successors and Assigns. This agreement shall be binding
upon and inure to the benefit of the parties hereto and
their respective permitted successors and assigns.
(d) Counterparts. This Agreement may be executed in any
number of counterparts, all of which taken together shall
constitute one agreement, and any party hereto may
execute this Agreement by signing any such counterpart.
(e) Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein
shall not in any way be affected or impaired
thereby.
(f) Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties hereto and
supersedes all prior agreement and understandings
relating to the subject matter hereof.
(g) Governing Law. This Agreement shall be governed and
interpreted in accordance with the laws of the State of New
Jersey.
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14. Limitation on Liability of Trustees/Directors, etc.
This Agreement has been executed on behalf of the Fund by the undersigned
officer of the Fund in his/her capacity as an Officer of the Fund. The
obligations of this Agreement that pertain to the Fund shall only be binding
upon the assets and property of the Fund and shall not be binding upon any
individual trustee, director, officer or shareholder of the Fund. This
provision shall not affect the obligations or liabilities of LMC under this
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by
their duly authorized officers as of this day of ,1995.
ZURICH LIFE INSURANCE LEXINGTON MANAGEMENT CORPORATION
COMPANY OF AMERICA
BY: /s/ BY: /s/
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Name: Name:
Title: Title:
LEXINGTON EMERGING MARKETS FUND
BY: /s/
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Name:
Title:
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