Exhibit 99-(h)(5)(F)
FORM OF PARTICIPATION AGREEMENT
AMONG
THE GCG TRUST
AND
SECURITY LIFE OF DENVER
AND
DIRECTED SERVICES, INC.
THIS AGREEMENT, made and entered into as of this ___ day of ________,
2003, among Security Life of Denver (the "Company"), a life insurance company
organized under the laws of [ ], on its own behalf and on behalf of each
separate account of the Company set forth on Schedule A attached hereto, as such
Schedule may be amended from time to time (each such account hereinafter
referred to as the "Account"), THE GCG TRUST (to be renamed ING INVESTORS TRUST
effective May 1, 2003) ("Trust") an open-ended management investment company and
business trust organized under the laws of the Commonwealth of Massachusetts,
and DIRECTED SERVICES, INC. (the "Distributor"), a corporation organized under
the laws of the State of New York.
WHEREAS, Trust is an open-end diversified management investment company
and is available to act as the investment vehicle for (a) separate accounts
established for variable life insurance policies and variable annuity contracts
(collectively, the "Contracts") to be offered by affiliated and/or unaffiliated
insurance companies which have entered into Participation Agreements with Trust
and the Distributor (the "Participating Insurance Companies"), (b) qualified
pension and retirement plans held outside the separate account context which
meet the definition of retirement plans under Sections 401, 404 and 457 of the
Internal Revenue Code and custodial accounts under Sections 403(b)(7) and 408 of
the Internal Revenue Code (collectively referred to herein as "Qualified
Plan(s)") and (c) certain investment advisers; and
WHEREAS, the beneficial interest in Trust is divided into several
series of shares, each designated a "Fund" and representing the interest in a
particular managed portfolio of securities and other assets; and
WHEREAS, Trust may rely on an order ("Aetna Variable Fund, et al
Investment Company Act Rel. No. 23616 (December 21, 1998) from the Securities
and Exchange Commission ("SEC"), granting the variable annuity and variable life
insurance separate accounts participating in Trust exemptions from the
provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the Investment Company
Act of 1940, as amended (the "1940 Act"), and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of any
current or future series of the Trust to be sold to and held by variable annuity
and variable life insurance separate accounts of the Participating Insurance
Companies, certain investment advisers and qualified pension and retirement
plans (the "Mixed and Shared Funding Exemptive Order"); and
WHEREAS, Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain of the
Contracts (except those Contracts for which no such registration is required)
under the 1933 Act, the 1940 Act and applicable state securities and insurance
law; and
WHEREAS, the Company represents herein that each Account is a duly
organized, validly existing separate account, which was established by
resolution of the Board of Directors of the Company to set aside and invest
assets attributable to one or more of the Contracts; and
WHEREAS, the Company has registered or will register the Accounts
(except those Accounts for which no such registration is required) as unit
investment trusts under the 1940 Act; and
WHEREAS, the Distributor is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a
member in good standing of the National Association of Securities Dealers, Inc.
(the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in certain Funds as set
forth on Schedule B attached hereto, as it may be amended from time to time by
mutual written agreement ("Authorized Funds") on behalf of each Account to fund
certain of the Contracts and the Distributor is authorized to sell such shares
to each Account at net asset value;
NOW, THEREFORE, in consideration of the promises herein, the Company,
Trust and the Distributor agree as follows:
ARTICLE I
SALE OF THE GCG TRUST
1.1. The Distributor agrees, subject to Trust's rights under
Section 1.2 and otherwise under this Agreement, to sell to the Company those
Trust shares representing interests in Authorized Funds which each Account
orders, executing such orders on a daily basis at the net asset value next
computed after receipt by Trust or its designee of the order for the shares of
Trust. For purposes of this Section 1.1, the Company shall be the designee of
Trust for receipt of such orders from each Account and receipt by such designee
shall constitute receipt by Trust; provided that Trust receives notice of such
order by 10:00 a.m., Eastern time, on the next following Business Day. "Business
Day" shall mean any day on which the New York Stock Exchange ("NYSE") is open
for trading and on which Trust calculates its net asset value pursuant to the
rules of the SEC. The initial Authorized Funds are set forth in Schedule B, as
such schedule is amended from time to time.
1.2. Trust agrees to make its shares available indefinitely for
purchase at the applicable net asset value per share by the Company and its
Accounts on those days on which Trust calculates its net asset value pursuant to
the rules of the SEC and Trust shall use reasonable efforts to calculate such
net asset value on each day the NYSE is open for trading.
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Notwithstanding the foregoing, the Trustees of Trust (the "Trustees") may refuse
to sell shares of any Authorized Fund to the Company or any other person, or
suspend or terminate the offering of shares of any Authorized Fund if such
action is required by law or by regulatory authorities having jurisdiction over
Trust or if the Trustees determine, in the exercise of their fiduciary
responsibilities, that to do so would be in the best interests of shareholders.
1.3. Trust and the Distributor agree that shares of Trust will be
sold only to Participating Insurance Companies and their separate accounts,
certain investment advisers, qualified pension and retirement plans and other
persons who are permissible investors consistent with the Accounts meeting the
requirements of Treas. Reg. 1.817-5.
1.4. Trust shall redeem its shares in accordance with the terms of
its then-current prospectus. For purposes of this Section 1.4, the Company shall
be the designee of Trust for receipt of requests for redemption from each
Account and receipt by such designee shall constitute receipt by Trust; provided
that Trust receives notice of such request for redemption by 10:00 a.m., Eastern
time, on the next following Business Day.
1.5. The Company shall purchase and redeem the shares of Authorized
Funds offered by the then-current prospectus and statement of additional
information ("SAI") of Trust in accordance with the provisions of such
prospectus and SAI.
1.6. The Company shall pay for Trust shares on the next Business
Day after an order to purchase Trust shares is made in accordance with the
provisions of Article I hereof. Payment shall be in federal funds transmitted by
wire.
1.7. Issuance and transfer of Trust's shares will be by book entry
only. Share certificates will not be issued to the Company or to any Account.
Shares ordered from Trust will be recorded as instructed by the Company to the
Distributor in an appropriate title for each Account or the appropriate
sub-account of each Account.
1.8. The Distributor shall furnish prompt notice (by wire or
telephone, followed by written confirmation) to the Company of the declaration
of any income, dividends or capital gain distributions payable on Trust's
shares. The Company hereby elects to receive all such income dividends and
capital gain distributions as are payable on the Authorized Fund shares in
additional shares of that Authorized Fund. The Company reserves the right to
revoke this election and to receive all such income dividends and capital gain
distributions in cash. The Distributor shall notify the Company of the number of
shares so issued as payment of such dividends and distributions.
1.9. The Distributor shall make the net asset value per share for
each Authorized Fund available to the Company on a daily basis as soon as
reasonably practical after Trust calculates its net asset value per share, and
each of Trust and the Distributor shall use its reasonable best efforts to make
such net asset value per share available by 6:00 p.m., Eastern time, but in no
event later than 7:00 p.m., Eastern time, each Business Day.
1.10. Any error in the calculation of the net asset value, dividend
and capital gain information greater than or equal to $0.01 per share of Trust's
shares, shall be reported immediately upon discovery to the Company. Any error
of a lesser amount shall be corrected in
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the next Business Day's net asset value per share for Trust. Any such notice
will state for each day for which an error occurred the incorrect price, the
correct price and, to the extent communicated to Trust's shareholders, the
reason for the price change. The Company may send this notice or a derivation
thereof (so long as such derivation is approved in advance by the Distributor)
to contract owners or participants whose accounts are affected by the price
change. The parties will negotiate in good faith to develop a reasonable method
for effecting such adjustments. Trust shall provide the Company, on behalf of
the Account or the appropriate subaccount of each Account, with a prompt
adjustment to the number of shares purchased or redeemed to reflect the correct
share net asset value.
For purposes of this Section 1.10, Trust or the Distributor shall be liable to
the Company for any amount the Company is required to pay to Contract owners or
participants due to (i) an incorrect calculation of a Fund's daily net asset
value, dividend rate, or capital gain distribution rate, in accordance with
Trust's procedures or (ii) incorrect or late reporting of the daily net asset
value or capital gain distribution rate of an Authorized Fund, in accordance
with Trust's procedures, upon written notification by the Company, with
supporting data, to Trust, provided, however, that neither Trust nor the
Distributor shall be liable for any information provided to the Company pursuant
to this Agreement which information is based on inaccurate information supplied
by the Company to Trust or any of its affiliates, or for any incorrect or late
reporting because of acts of God or systems or mechanical failures over which
Trust, or the Distributor or the investment adviser to Trust have no reasonable
control; and provided further that the Distributor and Officers of Trust shall
in good faith discuss with the Company the bearing of any expenses described in
(i) and (ii) above for which Trust or Distributor are not liable under this
provision. In addition, Trust or the Distributor shall be liable to the Company
for systems and out of pocket costs incurred by the Company in making a Contract
owner's or a participant's account whole, if such costs or expenses are a result
of Trust's failure to provide timely or correct net asset values, dividend and
capital gains or financial information, and if such information is not corrected
by 4pm EST of the next business day after releasing such incorrect information.
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 or a participant's account whole shall be borne by the
party providing the incorrect information, regardless of when the error is
corrected.
1.11. The parties may agree to provide pricing information, execute
orders and wire payments for purchases and redemptions through National
Securities Clearing Corporation's Fund/SERV system in which case such activities
will be governed by the provisions set forth in an Exhibit to this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that
(a) at all times during the term of this Agreement, the
Contracts are or will be registered (except those Contracts which are not
registered because they are properly exempt from registration under the 1933 Act
or will be offered exclusively in transactions that are
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properly exempt from registration under the 0000 Xxx) under the 1933 Act and the
1940 Act; the Contracts will be issued and sold in compliance in all material
respects with all applicable laws and 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 separate
account under applicable law and has registered or, prior to any issuance or
sale of the Contracts, will register each Account (except those Accounts which
have not been registered in proper reliance upon an exclusion from registration
under the 0000 Xxx) as a unit investment trust in accordance with the provisions
of the 1940 Act to serve as a segregated investment account for the Contracts;
(b) the Contracts are currently treated as endowment,
annuity or life insurance contracts, under applicable provisions of the Internal
Revenue Code of 1986, as amended (the "Code"), and that it will make every
effort to maintain such treatment and that it will notify the Trust and the
Underwriter 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; and
(c) all notices to Trust of the purchase and/or
redemption of Trust shares by each Account shall be accurate.
2.2. Trust represents and warrants that
(a) at all times during the term of this Agreement, Trust
shares sold pursuant to this Agreement shall be registered under the 1933 Act,
duly authorized for issuance and sold by Trust to the Company in compliance with
all applicable laws, subject to the terms of Section 2.4 below, and Trust is and
shall remain registered under the 1940 Act. Trust shall amend the Registration
Statement for its shares under the 1933 Act and the 1940 Act from time to time
as required in order to effect the continuous offering of its shares. Trust
shall register and qualify the shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by Trust or the
Distributor in connection with their sale by Trust to the Company and only as
required by Section 2.4;
(b) each Authorized Fund is currently qualified as a
Regulated Investment Company under Subchapter M of the Code, and that Trust will
use its best efforts to maintain such qualification (under Subchapter M or any
successor provision) and that it will notify the Company immediately upon having
a reasonable basis for believing that an Authorized Fund has ceased to so
qualify or that it might not so qualify in the future; and
(c) Trust is lawfully organized and validly existing
under the laws of the Commonwealth of Massachusetts and that it does and will
comply in all material respects with the 1940 Act.
2.3. The Distributor represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC. The
Distributor further represents that it will sell and distribute Trust shares in
accordance with all applicable securities laws applicable to it, including
without limitation the 1933 Act, the 1934 Act, and the 1940 Act.
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2.4. Notwithstanding any other provision of this Agreement, Trust
shall be responsible for the registration and qualification of its shares and of
Trust itself under the laws of any jurisdiction only in connection with the sale
of shares directly to the Company through the Distributor. Trust shall not be
responsible, and the Company shall take full responsibility, for determining any
jurisdiction in which any qualification or registration of Trust shares or the
Trust by the Trust may be required in connection with the sale of the Contracts
or the indirect interest of any Contract in any shares of the Trust and advising
the Trust thereof at such time and in such manner as is necessary to permit the
Trust to comply.
2.5. Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states.
2.6 Trust and the Distributor represent and warrant that all of
their Trustees, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Trust
are and 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) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
ARTICLE III
PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Trust shall provide the Company with a sufficient quantity
of its prospectus, SAI and any supplements to any of these materials once each
year (or more frequently if these materials are amended), to be used in
connection with the offerings and transactions contemplated by this Agreement.
In addition, the Trust shall provide the Company with a sufficient quantity of
its proxy materials that are required to be sent to Contract owners or
participants. In lieu of the Trust providing the Company with printed copies of
its prospectus, SAI, supplements and proxy materials, the Company shall have the
right to request that the Trust transmit a copy of such materials in an
electronic format (camera-ready copy), 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.
3.2. The Trust's prospectus shall state that the SAI for the Trust
is available from the Trust, and the Trust shall provide the SAI free of charge
to any owner of a Contract or to any prospective Contract owner who requests the
SAI. Distributor and the Trust, as appropriate, agree to provide to Company with
as many copies of the SAI as reasonably requested by Company.
3.3. The Trust, at its expense, shall provide the Company with
copies of its reports to shareholders, proxy material and other communications
to shareholders in such quantity as the Company shall reasonably require for
distribution to the Contract owners or participants. The Company shall respond
to requests for documents regarding the Trust in a manner that is
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consistent with SEC rules, including, but not limited to, Item 1(b) of Form
N-1A, which requires requested documents to be sent within three (3) business
days from the date of request.
3.4. The Company shall vote all Trust shares as required by law and
the Mixed and Shared Funding Exemptive Order. The Company reserves the right to
vote Trust shares held in any separate account in each Company's own right, to
the extent permitted by law and the Mixed and Shared Funding Exemptive Order.
The Company shall be responsible for assuring that each of its separate accounts
participating in the Trust calculates voting privileges in a manner consistent
with all legal requirements and the Mixed and Shared Funding Exemptive Order.
3.5. The Trust will comply with all applicable provisions of the
1940 Act requiring voting by shareholders.
ARTICLE IV
SALES MATERIAL AND INFORMATION
4.1. Without limiting the scope or effect of Section 4.2 hereof,
the Company shall furnish, or shall cause to be furnished, to the Distributor
each piece of sales literature or other promotional material (as defined
hereafter) in which the Trust, its investment adviser or the Distributor is
named at least 15 days prior to its use. No such material shall be used if the
Distributor objects to such use within five (5) Business Days after receipt of
such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning Trust in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for Trust
shares, as such registration statement and prospectus may be amended or
supplemented from time to time, or in annual or semi-annual reports or proxy
statements for the Trust, or in sales literature or other promotional material
approved by the Trust or its designee or by the Distributor, except with the
written permission of the Trust or the Distributor or the designee of either or
as is required by law.
4.3. The Distributor or its designee shall furnish, or shall cause
to be furnished, to the Company or its designee, each piece of sales literature
or other promotional material prepared by the Distributor in which the Company
and/or the Company's Account is named at least 15 days prior to its use. No such
material shall be used if the Company or its designee object to such use within
five (5) Business Days after receipt of such material.
4.4. Neither the Trust nor the Distributor shall give any
information or make any representations on behalf of the Company or concerning
the Company, each Account, or the Contracts other than the information or
representations contained in a registration statement or prospectus for the
Contracts, as such registration statement and prospectus may be amended or
supplemented from time to time, or in published reports for each Account which
are in the public domain or approved by the Company for distribution to Contract
owners or participants, or in sales literature or other promotional material
approved by the Company or its designee, except with the written permission of
the Company or as is required by law.
4.5. For purposes of this Article IV, the phrase "sales literature
or other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed
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for use in, a newspaper, magazine, or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards, motion
pictures, or other public media), sales literature (i.e. any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other
communications distributed or made generally available to some or all registered
representatives.
4.6 The Trust will provide to the Company at least one complete
copy of all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, notices and exemptive orders related to applications for exemptive
relief from the requirements of the federal securities laws, and all amendments
to any of the above, that relate to the Trust or its shares, promptly after the
filing of such document with the SEC, the NASD or other regulatory authority.
4.7 The Company will provide to the Trust at least one complete
copy of all registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other promotional
materials, notices and exemptive orders related to applications for exemptive
relief from the requirements of the federal securities laws, and all amendments
to any of the above, that relate to the Trust or its shares, promptly after the
filing of such document with the SEC, the NASD, or other regulatory authority.
ARTICLE V
FEES AND EXPENSES
5.1. If the Trust or any Authorized Fund adopts and implements a
plan pursuant to Rule 12b-1 under the 1940 Act to finance distribution expenses,
subject to obtaining any required exemptive orders or other regulatory
approvals, Trust or Distributor may make payments to the Company or to the
underwriter for the Account if and in such amounts agreed to by the parties in
writing.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust to the extent permitted by law. The Trust
shall bear the expenses for the cost of registration and qualification of
Trust's shares, preparation and filing of the Trust's prospectus and
registration statement, proxy materials and reports, setting the prospectus and
shareholder reports in type, setting in type and printing the proxy materials,
and the preparation of all statements and notices required by any federal or
state law, in each case as may reasonably be necessary for the performance by it
of its obligations under this Agreement. All expenses incident to the
solicitation and tabulation of the Trust's proxy materials will be paid by the
Trust, including postage.
5.3. The Trust shall pay for the cost of typesetting and printing
periodic fund reports to shareholders, prospectuses, prospectus supplements,
statements of additional information and other materials that are required by
law to be sent to Contract owners or participants, as well as the cost of
distributing such materials. The Company shall pay for the cost of printing the
Trust's prospectuses and statements of additional information and for the
distribution thereof for
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prospective Contract owners or participants. Each party shall be provided with
such supporting data as may reasonably be requested for determining expenses
under this Article V.
ARTICLE VI
DIVERSIFICATION
6.1 The Trust will invest its assets to cause each Authorized Fund
to maintain a diversified pool of investments that would, if such Fund were a
segregated asset account, satisfy the diversification requirements of Treasury
Reg. Section 1.817-5(b)(1) or (2). In the event of a breach of this Article VI
by the Trust, it will take all reasonable steps: (a) to notify the Company of
such breach; and (b) to adequately diversify the Trust so as to achieve
compliance within the grace period afforded by Treasury Regulation 1.817-5.
ARTICLE VII
POTENTIAL CONFLICTS
7.1. The Trustees will monitor the Trust for the existence of any
material irreconcilable conflict between the interests of the Contract owners or
participants of all separate accounts investing in the Trust. A material
irreconcilable conflict may arise for a variety of reasons, including: (a) an
action by any state insurance regulatory authority; (b) a change in applicable
federal or state insurance, tax, or securities laws or regulations, or a public
ruling, private letter ruling, no-action or interpretative letter, or any
similar action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the manner
in which the investments of any Authorized Fund are being managed; (e) a
difference in voting instructions given by variable annuity contract and
variable life insurance contract owners or participants; or (f) a decision by an
insurer to disregard the voting instructions of Contract owners or participants.
The Trust shall promptly inform the Company if the Trustees determine that a
material irreconcilable conflict exists and the implications thereof.
7.2. The Company will 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 Mixed and Shared Funding Exemptive
Order, by providing the Trustees with all information reasonably necessary for
the Trustees to consider any issues raised. This responsibility includes, but is
not limited to, an obligation by the Company to inform the Trustees whenever
Contract owner voting instructions are disregarded.
7.3. If it is determined by a majority of the Trustees, or a
majority of the disinterested Trustees, that a material irreconcilable conflict
exists, the Company shall to the extent reasonably practicable (as determined by
a majority of the disinterested Trustees), take, at the Company's expense (but
only if the Trustees determine that the Company is responsible for causing or
creating said conflict, said conflict is caused by operation of law or said
conflict is the result of some other cause outside the control of the Trust or
any of the Participating Insurance Companies), whatever steps are necessary to
remedy or eliminate the material irreconcilable conflict, up to and including:
(1) withdrawing the assets allocable to some or all of the separate accounts
from the Trust or any Authorized Fund thereof and reinvesting such assets in a
different investment medium, including (but not limited to) another series of
the Trust, or submitting the
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question whether such segregation should be implemented to a vote of all
affected Contract owners or participants and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity contract owners or participants,
life insurance contract owners or participants, or variable contract owners or
participants of one or more Participating Insurance Companies) that votes in
favor of such segregation, or offering to the affected Contract owners or
participants the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account.
7.4. 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 the affected
Account's investment in one or more portfolios of the Trust and terminate this
Agreement with respect to such Account; provided, however, that such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested Trustees. No charge or penalty shall 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, and until the end of that six month period, the Distributor and the
Trust shall, to the extent permitted by law and any exemptive relief previously
granted to the Trust, continue to accept and implement orders of the Company for
the purchase (and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict arises because of a
particular state insurance regulator's decision applicable to the Company to
disregard Contract owner voting instructions and that decision represents a
minority position or would preclude a majority vote, then the Company may be
required, at the Trust's direction, to withdraw the affected Account's
investment in one or more Authorized Funds of the Trust; provided, however, that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Any such withdrawal and termination must take place
within six (6) months after the Trust gives written notice that this provision
is being implemented, unless a shorter period is required by law, and until the
end of the foregoing six month period (or such shorter period if required by
law), the Distributor and the Trust shall, to the extent permitted by law and
any exemptive relief previously granted to the Trust, continue to accept and
implement orders by that Company for the purchase (and redemption) of shares of
the Trust. No charge or penalty will be imposed as a result of such withdrawal.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any material irreconcilable conflict. Neither the
Trust nor the Distributor shall be required to establish a new funding medium
for the Contracts, nor shall the Company be required to do so, if an offer to do
so has been declined by vote of a majority of Contract owners or participants
materially adversely affected by the material irreconcilable conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any material irreconcilable conflict, then the Company will withdraw the
Account's investment in one or more Authorized Funds of the Trust and terminate
this Agreement within six (6) months (or such shorter period as may be required
by law or any exemptive relief previously granted to the Trust)
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after the Trustees inform the Company in writing of the foregoing determination;
provided, however, that such withdrawal and termination shall be limited to the
extent required by any such material irreconcilable conflict as determined by a
majority of the disinterested Trustees. No charge or penalty will be imposed as
a result of such withdrawal.
7.7. The responsibility to take remedial action in the event of the
Trustees' determination of a material irreconcilable conflict and the obligation
of the Company set forth in this Article VII shall be carried out with a view
only to the interests of Contract owners or participants.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on
terms and conditions materially different from those contained in the Mixed and
Shared Funding Exemptive Order, then (a) the 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; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3,
7.4 and 7.5 of this Agreement shall continue in effect only to the extent that
terms and conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
7.9. The Company has reviewed the Mixed and Shared Funding
Exemption Order and hereby assumes all obligations referred to therein which are
required, including, without limitation, the obligation to provide reports,
material or data as the Trustees may request, as conditions to such order, to be
assumed or undertaken by the Company.
ARTICLE VIII
INDEMNIFICATION
8.1. Indemnification by the Company
8.1. (a). The Company shall indemnify and hold harmless the
Trust, the Distributor in its capacity as distributor and investment adviser
("Adviser") to the Trust , and each of the Trustees, directors of the
Distributor or the Adviser, officers, employees or agents of the Trust, the
Distributor or the Adviser, and each person, if any, who controls the Trust,
Adviser or the Distributor within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Company which consent may not be
unreasonably withheld) or litigation expenses (including reasonable legal and
other expenses), to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Trust's shares or the Contracts or
the performance by the parties of their obligations hereunder and:
(i) arise out of or are based upon any untrue statements
or alleged untrue statements of any material fact contained in
a registration statement, prospectus or SAI for the Contracts
or contained in the Contracts or sales literature for the
11
Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished to the Company by or on behalf of the Trust for use
in the registration statement, prospectus or SAI for the
Contracts or in the Contracts or sales literature (or any
amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Trust shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations
contained in the Trust's registration statement or prospectus,
or in sales literature for Trust shares not supplied by the
Company, or persons under its control) or wrongful conduct of
the Company or its agents or employees or persons under its
control, with respect to the sale or distribution of the
Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or sales literature of Trust or any
amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein
not misleading if such a statement or omission was made in
reliance upon information furnished to the Trust or the
Distributor by or on behalf of the Company; or
(iv) arise out of or result from any breach of any
material representation and/or warranty made by the Company in
this Agreement or arise out of or result from any other
material breach of this Agreement by the Company, as limited
by and in accordance with the provisions of Sections 8.1(b)
and 8.1(c) hereof.
8.1. (b) The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified Party to
the extent such may arise from such Indemnified Party's willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement or to the Trust, whichever is applicable.
8.1. (c) The Company shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), on the basis of which the Indemnified
Party should reasonably know of the availability of indemnity hereunder in
respect of such claim but failure to notify the Company of any such claim shall
not relieve the Company from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
12
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Company shall be entitled to participate, at the
Company's expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the
Indemnified Party named in the action. After notice from the Company to such
Indemnified Party of the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company will not be liable to such 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.
8.1. (d) The Distributor shall promptly notify the Company of
the commencement of any litigation or proceedings against the Trust or the
Distributor in connection with the issuance or sale of Trust Shares or the
Contracts or the operation of the Trust.
8.1. (e) The provisions of this Section 8.1 shall survive any
termination of this Agreement.
8.2. Indemnification by the Distributor
8.2. (a) The Distributor shall indemnify and hold harmless the
Company and each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act and any director, officer, employee or agent of the
foregoing (collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Distributor which consent may
not be unreasonably withheld) or litigation expenses (including reasonable legal
and other expenses) to which the Indemnified Parties may become subject under
any statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Trust's shares or the Contracts or
the performance by the parties of their obligations hereunder and:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in
a registration statement, prospectus, or SAI for the Trust or
the sales literature for the Trust prepared by the Trust or
Distributor (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished to the Distributor or the Trust by or on behalf of
the Company for use in sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale
of the Contracts or Trust shares; or
(ii) arise out of or as a result of written statements or
representations (other than statements or representations
contained in the registration statement, prospectus, SAI or
sales literature for the Contracts not supplied by the
13
Distributor or persons under its control) of the Distributor
or persons under its control, with respect to the sale or
distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, SAI or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or
the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statement or statements therein not misleading, if such
statement or omission was made in reliance upon information
furnished to the Company by or on behalf of the Distributor;
or
(iv) arise out of or result from any breach of any
material representation and/or warranty made by the
Distributor or the Trust in this Agreement or arise out of or
result from any other material breach of this Agreement by the
Distributor or Trust; as limited by and in accordance with the
provisions of Sections 8.2(b) and 8.2(c) hereof.
8.2. (b) The Distributor shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company or the Account, whichever is applicable.
8.2. (c) The Distributor shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Distributor in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent) on the basis of which the Indemnified
Party should reasonably know of the availability of indemnity hereunder in
respect of such claim, but failure to notify the Distributor of any such claim
shall not relieve the Distributor from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought against
the Indemnified Parties, the Distributor will be entitled to participate, at its
own expense, in the defense thereof. The Distributor also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Indemnified Party
named in the action. After notice from the Distributor to such Indemnified Party
of the Distributor's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Distributor will not be liable to such 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.
8.2. (d) The Company shall promptly notify the Distributor,
the Adviser, and the Trust of the commencement of any litigation or proceedings
against it or any of its officers or directors, in connection with the issuance
or sale of the Contracts or the operation of each Account.
14
8.2. (e) The provisions of this Section 8.2 shall survive any
termination of this Agreement.
ARTICLE IX
APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of _____________.
9.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X
TERMINATION
10.1. This Agreement shall terminate:
(a) at the option of any party, with respect to some or
all of the Authorized Funds, upon sixty (60) days' advance written notice to the
other parties; or
(b) at the option of the Trust or the Distributor in the
event that formal administrative proceedings are instituted against the Company
by the NASD, the SEC, any State Insurance Commissioner or any other regulatory
body regarding the Company's duties under this Agreement or related to the sales
of the Contracts, with respect to the operation of any Account, or the purchase
of Trust shares, provided, however, that the Trust or the Distributor determines
in its sole judgment exercised in good faith, that any such administrative
proceedings will have a material adverse effect upon the ability of the Company
to perform its obligations under this Agreement; or
(c) at the option of the Company in the event that formal
administrative proceedings are instituted against The Trust or Distributor by
the NASD, the SEC, or any state securities or insurance department or any other
regulatory body in respect of the sale of shares of the Trust to the Company,
provided, however, that the Company determines in its sole judgment exercised in
good faith, that any such administrative proceedings will have a material
adverse effect upon the ability of the Trust or Distributor to perform its
obligations under this Agreement; or
(d) with respect to any Account, upon requisite vote of
the Contract owners or participants having an interest in such Account (or any
subaccount) to substitute the shares of another investment company for the
corresponding Authorized Fund shares of the Trust in accordance with the terms
of the Contracts for which those Authorized Fund shares had been selected to
serve as the underlying investment media. The Company will give 30 days' prior
written notice to the Trust of the date of any proposed vote to replace the
Trust's shares;
15
(e) with respect to any Authorized Fund, upon 30 days'
advance written notice from the Distributor to the Company, upon a decision by
the Distributor to cease offering shares of the Trust for sale; or
(f) at the option of any party to this Agreement, upon
written notice to the other parties, upon another party's material breach of any
provision of this Agreement which material breach is not cured within thirty
(30) days of said notice.
10.2. It is understood and agreed that the right of any party hereto
to terminate this Agreement pursuant to Section 10.1 (a) may be exercised for
any reason or for no reason.
10.3. No termination of this Agreement shall be effective unless and
until the party terminating this Agreement gives prior written notice to all
other parties to this Agreement of its intent to terminate, which notice shall
set forth the basis for such termination. Such prior written notice shall be
given in advance of the effective date of termination as required by this
Article X.
10.4. Notwithstanding any termination of this Agreement, subject to
Sections 1.2 and 10.5 of this Agreement, the Trust and the Distributor shall, at
the option of the Company, continue to make available additional shares of the
Trust pursuant to the terms and conditions of this Agreement, for all Contracts
in effect as of the effective date of termination of this Agreement (hereinafter
referred to as "Existing Contracts"). Specifically, subject to Sections 1.2 and
10.5 of this Agreement, the owners or participants of the Existing Contracts
shall be permitted to reallocate investments in the Trust, redeem investments in
the Trust and/or invest in the Trust upon the making of additional purchase
payments under the Existing Contracts. The parties agree that this Section 10.4
shall not apply to any termination under Article VII and the effect of such
Article VII termination shall be governed by Article VII of this Agreement.
10.5. If any party terminates this Agreement with respect to any
Authorized Fund pursuant to the provisions under Article X, the Agreement shall
nevertheless continue in effect as to any shares of the Trust that are
outstanding as of the date of such termination (the "Initial Termination Date").
This continuation shall extend to the earlier of (a) the date as of which an
Account no longer owns shares of the affected Authorized Fund or (b) the date
(the "Final Termination Date") as of 180 days following the Initial Termination
Date, or, at the Distributor's option, such later date as is necessary for the
Company to obtain a substitution order from the SEC, the application for which
the Company will diligently pursue.
10.6. The Company shall not redeem Trust shares attributable to the
Contracts (as opposed to Trust shares attributable to the Company's assets held
in either Account) except (i) as necessary to implement Contract owner or
participant initiated transactions, or (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"). Upon request, the
Company will promptly furnish to the Trust and the Distributor an opinion of
counsel for the Company, reasonably satisfactory to the Trust, to the effect
that any redemption pursuant to clause (ii) above is a Legally Required
Redemption. Furthermore, except in cases where permitted under the terms of the
Contracts, subject to Sections 1.2 and 10.5 of this Agreement, the Company shall
not prevent Contract owners or participants from allocating payments to an
Authorized Fund that
16
was otherwise available under the Contracts without first giving the Trust or
the Distributor 90 days' written notice of its intention to do so.
ARTICLE XI
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.
If to the Trust
The GCG Trust
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxxxxxx
If to the Distributor:
Directed Services Inc.
c/o ING Funds Services, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000-0000
Attn: Xxxxxxxx X. Xxxxxxxx
If to the Company:
[ ]
ARTICLE XII
MISCELLANEOUS
12.1. A copy of the Agreement and Declaration of Trust is on file
with the Secretary of State of the State of Massachusetts, and notice is hereby
given that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of or arising out of this
instrument, including without limitation Article VI, are not binding upon any of
the Trustees or shareholders individually but binding only upon the assets and
property of the Trust.
12.2. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.4. 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.
17
12.5. Each party hereto shall cooperate with each other party and
all appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the NASD and state insurance regulators) and
shall permit such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or the
transactions contemplated hereby.
12.6. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.7. Notwithstanding any other provision of this Agreement, the
obligations of the Trust and the Distributor are several and, without limiting
in any way the generality of the foregoing, neither such party shall have any
liability for any action or failure to act by the other party, or any person
acting on such other party's behalf.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date first
written above.
THE GCG TRUST
BY ITS AUTHORIZED OFFICER,
____________________________________________
NAME:
TITLE:
[ ]
BY ITS AUTHORIZED OFFICER,
____________________________________________
NAME:
TITLE:
DIRECTED SERVICES, INC.
BY ITS AUTHORIZED OFFICER,
____________________________________________
NAME:
TITLE:
18
SCHEDULE A
SEPARATE ACCOUNTS
[ ]
SCHEDULE B
THE GCG TRUST
AUTHORIZED PORTFOLIOS:
-------------------------------------------------------------------------------------------------------------------------
FORMER NAME NEW NAME - EFFECTIVE MAY 1, 2003 CLASS
-------------------------------------------------------------------------------------------------------------------------
All Cap Series ING Salomon Brothers All Cap Portfolio Class S, A & I
Asset Allocation Growth Series ING UBS U.S. Balanced Portfolio Class S, A & I
Capital Growth Series ING Alliance Mid Cap Growth Portfolio Class S, A & I
Capital Guardian Small Cap Series ING Capital Guardian Small Cap Portfolio Class S, A & I
Core Bond Series ING PIMCO Core Bond Portfolio Class S, A & I
Developing World Series ING Developing World Portfolio Class S, A & I
Diversified Mid-Cap Series ING FMR Diversified Mid Cap Portfolio Class S, A & I
Equity Growth Series ING Xxx Xxxxxx Equity Growth Portfolio Class S, A & I
Equity Income Series ING X. Xxxx Price Equity Income Portfolio Class S, A & I
Equity Opportunity Series ING Xxxxxxxx Equity Opportunities Portfolio Class S, A & I
Focus Value Series ING Mercury Focus Value Portfolio Class S, A & I
Fully Managed Series ING X. Xxxx Price Capital Appreciation Portfolio Class S, A & I
Fundamental Growth Focus Series ING Mercury Fundamental Growth Portfolio Class S, A & I
Global Franchise Series ING Xxx Xxxxxx Global Franchise Portfolio Class S, A & I
Growth Series ING Xxxxxxx Growth Portfolio Class S, A & I
Hard Assets Series ING Hard Assets Portfolio Class S, A & I
International Enhanced EAFE Series ING JPMorgan Xxxxxxx International Enhanced Class S, A & I
EAFE Portfolio
International Equity Series ING International Equity Portfolio Class S, A & I
Internet Tollkeeper(SM) Series ING Xxxxxxx Xxxxx Internet Tollkeeper(SM) Portfolio Class S, A & I
Investors Series ING Salomon Brothers Investors Portfolio Class S, A & I
X.X. Xxxxxx Xxxxxxx Xxxxx Small Cap ING JPMorgan Xxxxxxx Small Cap Equity Portfolio Class S, A & I
Equity Series
Janus Growth and Income Series ING Janus Growth and Income Portfolio Class S, A & I
Large Cap Value Series ING Capital Guardian Large Cap Value Portfolio Class S, A & I
Limited Maturity Bond Series ING Limited Maturity Bond Portfolio Class S, A & I
Liquid Asset Series ING Liquid Assets Portfolio Class S, A & I
Managed Global Series ING Capital Guardian Managed Global Portfolio Class S, A & I
Mid-Cap Growth Series ING MFS Mid Cap Growth Portfolio Class S, A & I
Real Estate Series ING Xxx Xxxxxx Real Estate Portfolio Class S, A & I
Research Series ING MFS Research Portfolio Class S, A & I
Special Situations Series ING Janus Special Equity Portfolio Class S, A & I
Strategic Equity Series ING AIM Capital Mid Cap Growth Portfolio Class S, A & I
Total Return Series ING MFS Total Return Portfolio Class S, A & I
Value Equity Series ING Eagle Asset Value Equity Portfolio Class S, A & I
Xxx Xxxxxx Growth and Income Series ING Xxx Xxxxxx Growth and Income Portfolio Class S, A & I
-------------------------------------------------------------------------------------------------------------------------
NSCC EXHIBIT
Procedures for Pricing and Order/Settlement Through National Securities
Clearing Corporation's Mutual Fund Profile System and Mutual Fund Settlement,
Entry and Registration Verification System.
1. As provided in Section 1.11 of the Participation Agreement,
the parties hereby agree to provide pricing information, execute orders and wire
payments for purchase and redemptions of Fund Shares through National Security
Clearing Corporation ("NSCC") and its subsidiary systems as follows:
(a) Distributor or the Funds will furnish to the Company
or its affiliate through NSCC's Mutual Fund Profile
System ("MFPS") (1) the most current net asset value
information for each Fund, (2) a schedule of
anticipated dividend and distribution payment dates
for each Fund, which is subject to change without
prior notice, ordinary income and capital gain
dividend rates on the Fund's ex-date, and (4) in the
case of fixed income funds that declare daily
dividends, the daily accrual or the interest rate
factor. All such information shall be furnished to
the Company or its affiliate by 6:30 p.m. Easter Time
on each business day that the Fund is open for
business (each a "Business Day") or at such other
time as that information becomes available. Changes
in pricing information will be communicated to both
NSCC and the Company or its affiliate.
(b) Upon receipt of Fund purchase, exchange and
redemption instructions for acceptance as of the time
at which a Fund's net asset value is calculated as
specified in such Fund's prospectus ("Close of
Trading") on each Business Day ("Instructions"), and
upon its determination that there are good funds with
respect to Instructions involving the purchase of
Shares, the Company or its affiliate will calculate
the net purchase or redemption order for each Fund.
Orders for net purchases or redemptions derived from
Instructions received by the Company or its affiliate
prior to the Close of Trading on any given Business
Day will be sent to the Defined Contribution
Interface of NSCC's Mutual Fund Settlement, Entry and
Registration Verification System ("Fund/SERV") by
5:00 a.m. Eastern Time on the next Business Day.
Subject to the Company's or its affiliate's
compliance with the foregoing, the Company or its
affiliate will be considered the agent of the
Distributor and the Funds, and the Business Day on
which Instructions are received by the Company or its
affiliate in proper form prior to the Close of
Trading will be the date as of which shares of the
Funds are deemed purchased, exchanged or redeemed
pursuant to such Instructions. Instructions received
in proper form by the Company or its affiliate after
the Close of Trading on any
2
given Business Day will be treated as if received on
the next following Business Day. Dividends and
capital gains distributions will be automatically
reinvested at net asset value in accordance with the
Fund's then current prospectuses.
(c) The Company or its affiliate will wire payment for
net purchase orders by the Fund's NSCC Firm Number,
in immediately available funds, to an NSCC settling
bank account designated by the Company or its
affiliate no later than 5:00 p.m. Eastern time on the
same Business Day such purchase orders are
communicated to NSCC. For purchases of shares of
daily dividend accrual funds, those shares will not
begin to accrue dividends until the day the payment
for those shares is received.
(d) NSCC will wire payment for net redemption orders by
Fund, in immediately available funds, to an NSCC
settling bank account designated by the Company or
its affiliate, by 5:00 p.m. Eastern Time on the
Business Day such redemption orders are communicated
to NSCC, except as provided in a Fund's prospectus
and statement of additional information.
(e) With respect to (c) or (d) above, if Distributor does
not send a confirmation of the Company's or its
affiliate's purchase or redemption order to NSCC by
the applicable deadline to be included in that
Business Day's payment cycle, payment for such
purchases or redemptions will be made the following
Business Day.
(f) If on any day the Company or its affiliate or
Distributor is unable to meet the NSCC deadline for
the transmission of purchase or redemption orders, it
may at its option transmit such orders and make such
payments for purchases and redemptions directly to
Distributor or to the Company or its affiliate, as
applicable, as is otherwise provided in the
Agreement.
(g) These procedures are subject to any additional terms
in each Fund's prospectus and the requirements of
applicable law. The Funds reserve the right, at their
discretion and without notice, to suspend the sale of
shares or withdraw the sale of shares of any Fund.
2. The Company or its affiliate, Distributor and clearing agents
(if applicable) are each required to have entered into membership agreements
with NSCC and met all requirements to participate in the MFPS and Fund/SERV
systems before these procedures may be utilized. Each party will be bound by the
terms of their membership agreement with NSCC and will perform any and all
duties, functions, procedures and responsibilities assigned to it and as
otherwise established by NSCC applicable to the MFPS and Fund/SERV system and
the Networking Matrix Level utilized.
3. Except as modified hereby, all other terms and conditions of
the Agreement shall remain in full force and effect. Unless otherwise indicated
herein, the terms defined in the Agreement shall have the same meaning as in
this Exhibit.
3
