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