PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT (the "Agreement") made by and between XXXXXXX
VARIABLE LIFE INVESTMENT FUND (the "Fund"), a Massachusetts business trust
created under a Declaration of Trust dated March 15, 1985, as amended, with
a principal place of business in Boston, Massachusetts and INTRAMERICA LIFE
INSURANCE COMPANY, a New York corporation (the "Company"), with a principal
place of business in Pearl River, New York on behalf of Intramerica
Variable Annuity Account, a separate account of the Company, and any other
separate account of the Company as designated by the Company from time to
time, upon written notice to the Fund in accordance with Section 10 herein
(each, an "Account").
WHEREAS, the Fund acts as the investment vehicle for the separate accounts
established for variable life insurance policies and variable annuity
contracts (collectively referred to herein as "Variable Insurance
Products") to be offered by insurance companies which have entered into
participation agreements substantially identical to this Agreement
("Participating Insurance Companies") and their affiliated insurance
companies; and
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares of beneficial interest ("Shares"), and additional series of
Shares may be established, each designated a "Portfolio and representing
the interest in a particular managed portfolio of securities; and
WHEREAS, it is in the best interest of Participating Insurance Companies to
make capital contributions if required so that the annual expenses of each
Portfolio of the Fund in which a
Participating Insurance Company is a shareholder will not exceed a fixed
percentage of the Portfolio's average annual net assets; and
WHEREAS, the Parties desire to evidence their agreement as to certain other
matters,
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
1. Additional Definitions.
For the purposes of this Agreement, the followinq definitions shall apply:
(a) The "expenses of a Portfolio" for any fiscal year shall mean the
expenses for such fiscal year as shown in the Statement of Operations (or
similar report) certified by the Fund's independent public accountants;
(b) A "Portfolio's average daily net assets" for each fiscal year shall
mean the sum of the net asset values determined throughout the year for the
purpose of determining net asset value per Share, divided by the number of
such determinations during such year;
(c) The Company's "Required Contributions on behalf of the Account in
respect of a Portfolio for any fiscal year shall mean an amount equal to
the expenses of that Portfolio for such year minus the- below-indicated
percentage of that Portfolio's average daily net assets for the year:
International Portfolio..................1.50%
Each other Portfolio.....................0.75%
multiplied by a fraction the denominator or which is the average daily net
assets of that Portfolio and the numerator of which is
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the average daily net asset value of the Shares of that Portfolio owned by
the Account (referred to herein as a "Participating Shareholder"). The
Company's Required Contribution in respect of a Portfolio shall be pro-
rated based on the number of business days on which this Agreement is in
effect for periods of less than a fiscal year.
(d) The "average daily net asset value of the Shares of the Portfolio"
owned by the Account for any fiscal year of the Fund shall mean the greater
of (i) $500,00O or (ii) the sum of the aggregate net asset values of the
Shares so owned determined during the fiscal year, as of each determination
of the net asset value per Share, divided by the total number of
determinations of net asset value during such year.
(e) "Shares" means shares of beneficial interest, without par value, of any
Portfolio, now or hereafter created, of the Fund.
2. Capital Contribution.
The Company on behalf of the Account shall, within sixty days after the end
of each fiscal year of the Fund, make a capital contribution to the Fund in
respect of each Portfolio equal to the Required Contribution for that
Portfolio for such year; provided, however, that in the event that both
clauses (i) and (ii) of paragraph (d) of Section 1 of this Agreement or
similar agreements are applicable to different Participating Insurance
Companies during the same fiscal year, there shall be a proportionate
reduction of the Required Contribution of each Participating Insurance
Company to which said clause (ii) is applicable so that the total of all
required capital contributions to the Fund on
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behalf of any Portfolio is not greater than the excess of the expenses of
that Portfolio for that fiscal year less the percentage of that Portfolio's
total expenses set forth in paragraph (c) of Section 1 of this Agreement
for such fiscal year.
3. Duty of Fund to Sell.
The Fund shall make its Shares available for purchase at the applicable net
asset value per Share by Participating Insurance Companies and their
affiliates and separate accounts on those days on which the Fund calculates
its net asset value pursuant to rules of the Securities and Exchange
Commission; provided, however, that the Trustees of the Fund may refuse to
sell Shares of any Portfolio to any person, or suspend or terminate the
offering of Shares of any Portfolio, if such action is required by law or
by regulatory authorities having jurisdiction or is, in the sole discretion
of the Trustees, necessary in the best interest of the shareholders of any
Portfolio.
4. Requirement to Execute Participation Agreement; Requests.
Each Participating Insurance Company shall, prior to purchasing Shares in
the Fund, execute and deliver a participation agreement in a form
substantially identical to this Agreement.
The Fund shall make available, upon written request from the Participating
Insurance Company given in accordance with Paragraph 10, to each
Participating Insurance Company which has executed an Agreement and which
Agreement has not been terminated pursuant to Paragraph 8 (i) a list of all
other Participating Insurance Companies, and (ii) a copy of the Agreement
as executed by any other Participating Insurance Company.
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The Fund shall also make available upon request to each Participating
Insurance Company which has executed an Agreement and which Agreement has
not been terminated pursuant to Paragraph 8, the net asset value of any
Portfolio of the Fund as of any date upon which the Fund calculates the net
asset value of its Portfolios for the purpose of purchase and redemption of
Shares.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Fund and each of
its Trustees and officers and each person, if any, who controls the Fund
within the meaning of Section 15 of the Securities Act of 1933 (the "Act")
against any and all losses, claims, damages, liabilities or litigation
(including legal and other expenses), arising out of the acquisition of any
Shares by any person, to which the Fund or such Trustees, officers or
controlling person may become subject under the Act, under any other
statute, at common law or otherwise, which (i) may be based upon any
wrongful act by the Company, any of its employees or representatives, any
affiliate of or any person acting on behalf of the Company or a principal
underwriter of its insurance products, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering Shares 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 Fund by the Company, or
(iii)- may be based on any untrue statement or alleged untrue statement of
a material fact contained in a
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registration statement or prospectus covering insurance products sold by
the Company or any insurance company which is an affiliate thereof, or any
amendments 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, unless such
statement or omission was made in reliance upon information furnished to
the Company or such affiliate by or on behalf of the Fund; provided,
however, that in no case (i) is the Company's indemnity in favor of a
Trustee or officer or any other person deemed to protect such Trustee or
officer or other person against any liability to which any such person
would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance of his duties or by reason of his
reckless disregard of obligations and duties under this Agreement or (ii)
is the Company to be liable under its indemnity agreement contained in this
Paragraph 5 with respect to any claim made against the Fund or any person
indemnified unless the Fund or such person, as the case may-be, shall have
notified the Company in writing pursuant to Paragraph 10 within a
reasonable time after the summons or other first legal process giving
information of the nature of the claims shall have been served upon the
Fund or upon such person (or after the Fund or such person shall have
received notice of such service on any designated agent), but failure to
notify the Company of any such claim shall not relieve the Company from any
liability which it has to the Fund or any person against whom such action
is brought otherwise than on account of its indemnity agreement contained
in this Paragraph 5. The Company shall be entitled to participate, at its
own expense,
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in the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but, if it elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Fund, to its officers and Trustees, or to any
controlling person or persons, defendant or defendants in the suit. In the
event that the Company elects to assume the defense of any such suit and
retain such counsel, the Fund, such officers and Trustees or controlling
person or persons, defendant or defendants in the suit, shall bear the fees
and expenses of any additional counsel retained by them, but, in case the
Company does not elect to assume the defense of any such suit, the Company
will reimburse the Fund, such officers and Trustees or controlling person
or persons, defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by them. The Company agrees promptly
to notify the Fund pursuant to Paragraph 10 of the commencement of any
litigation or proceedings against it in connection with the issue and sale
of any Shares.
(b) The Fund agrees to indemnify and hold harmless the Company and each of
its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the Act against any and all
losses, claims, damages, liabilities or litigation (including legal and
other expenses) to which it or such directors, officers or controlling
person may become subject under the Act, under any other statute, at common
law or otherwise, arising out of the acquisition of any Shares by any
person which (i) may be based upon any wrongful act by the Fund, any of its
employees or representatives or a principal underwriter of the
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Fund, or (ii) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in a registration statement or
prospectus covering Shares 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 unless such statement or omission was made in reliance upon
information furnished to the Fund by the Company or (iii) may be based on
any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering insurance
products sold by the Company, or any amendment 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 Fund;
provided, however, that in no case (i) is the Fund's indemnity in favor of
a director or officer or any other person deemed to protect such director
or officer or other person against any liability to which any such person
would otherwise be subject by reason of willful misfeasance, bad faith, or
gross negligence in the performance of his duties or by reason of his
reckless disregard of obligations and duties under this Agreement or (ii)
is the Fund to be liable under its indemnity agreement contained in this
Paragraph 5 with respect to any claims made against the Company or any such
director, officer or controlling person unless it or such director, officer
or controlling person, as the case may be, shall have notified the Fund in
writing pursuant to Paragraph 10 within a reasonable time after the summons
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or other first legal process giving information of the nature of the claim
shall have been served upon it or upon such director, officer or
controlling person (or after the Company or such director, officer or
controlling person shall have received notice of such service on any
designated agent), but failure to notify the Fund of any claim shall not
relieve it from any liability which it may have to the person against whom
such action is brought otherwise than on account of its indemnity agreement
contained in this Paragraph. The Fund will be entitled to participate at
its own expense in the defense, or, if it so elects, to assume the defense
of any suit brought to enforce any such liability, but if the Fund elects
to assume the defense, such defense shall be conducted by counsel chosen by
it and satisfactory to the Company, its directors, officers or controlling
person or persons, defendant or defendants, in the suit. In the event the
Fund elects to assume the defense of any such suit and retain such counsel,
the Company, its directors, officers or controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of
any additional counsel retained by them, but, in case the Fund does not
elect to assume the defense of any such suit, it will reimburse the Company
or such directors, officers or controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Fund agrees promptly to notify the Company pursuant
to Paragraph 10 of the commencement of any litigation or proceedings
against it or any of its officers or Trustees in connection with the
issuance or sale of any Shares.
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6. Procedure for Resolving Irreconcilable Conflicts.
(a) The Trustees of the Fund will monitor the operations of the Fund for
the existence of any material irreconcilable conflict among the interests
of all the contract holders and policy owners of Variable Insurance
Products (the "Participants") of all separate accounts investing in the
Fund. An irreconcilable material conflict may arise, among other things,
from: (a) an action by any state insurance regulatory authority; (b) a
change in applicable insurance laws or regulations; (c) a tax ruling or
provision of the Internal Revenue Code or the regulations thereunder; (d)
any other development relating to the tax treatment of insurers, contract
holders or policy owners or beneficiaries of Variable Insurance Products;
(e) the manner in which the investments of any Portfolio are being managed;
(f) a difference in voting instructions given by variable annuity contract
holders, on the one hand, and variable life insurance policy owners, on the
other hand, or by the contract holders or policy owners of different
participating insurance companies; or (g) a decision by an insurer to
override the voting instructions of Participants.
(b) The Company will be responsible for reporting any potential or existing
conflicts to the Trustees of the Fund. The Company will be responsible for
assisting the Trustees in carrying out their responsibilities under this
Paragraph 6(b) and Paragraph 6(a), by providing the Trustees with all
information reasonably necessary for the Trustees to consider the issues
raised. The Fund will also request its investment adviser to report to the
Trustees any such conflict which comes to the attention of the adviser.
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(c) If it is determined by a majority of the Trustees of the Fund, or a
majority of its disinterested Trustees, that a material irreconcilable
conflict exists involving the Company, the Company shall, at its expense,
and to the extent reasonably practicable (as determined by a majority of
the disinterested Trustees), take whatever steps are necessary to eliminate
the irreconcilable material conflict, including withdrawing the assets
allocable to some or all of the separate accounts from the Fund or any
Portfolio and reinvesting such assets in a different investment medium,
including another Portfolio of the Fund, offering to the affected
Participants the option of making such a change or establishing a new
funding medium including a registered investment company.
For purposes of this Paragraph 6(c), the Trustees, or the disinterested
Trustees, shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict. In the event of a
determination of the existence of an irreconcilable material conflict, the
Trustees shall cause the Fund to take such action, such as the
establishment of one or more additional Portfolios, as they in their sole
discretion determine to be in the interest of all shareholders and
Participants in view of all applicable factors, such as cost, feasibility,
tax, regulatory and other considerations. In no event will the Fund be
required by this Paragraph 6(c) to establish a new funding medium for any
variable contract or policy.
The Company shall not be required by this Paragraph 6(c) to establish a new
funding medium for any variable contract or policy if an offer to do so has
been declined by a vote of a majority of the Participants materially
adversely affected by the material
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irreconcilable conflict. The Company will recommend to its Participants
that they decline an offer to establish a new funding medium only if the
Company believes it is in the best interest of the Participants.
(d) The Trustees' determination of the existence of an irreconcilable
material conflict and its implications promptly shall be communicated to
all Participating Insurance Companies by written notice thereof delivered
or mailed, first class postage prepaid.
7. Voting Privileges.
The Company shall be responsible for assuring that its separate account or
accounts participating in the Fund shall use a calculation method of voting
procedures substantially the same as the following: those Participants
permitted to give instructions and the number of Shares for which
instructions may be given will be determined as of the record date for the
Fund shareholders' meeting, which shall not be more than 60 days before the
date of the meeting. Whether or not voting instructions are actually given
by a particular Participant, all Fund shares held in any separate account
or sub-account thereof and attributable to policies will be voted for,
against, or withheld from voting on any proposition in the same proportion
as (i) the aggregate record date cash value held in such sub-account for
policies giving instructions, respectively, to vote for, against, or
withhold votes on such proposition, bears to (ii) the aggregate record date
cash value held in the sub-account for all policies for which voting
instructions are received. Participants continued in effect under lapse
options will not be permitted to give voting instructions.
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Shares held in any other insurance company general or separate account or
sub-account thereof will be voted in the proportion specified in the second
preceding sentence for shares attributable to policies.
8. Duration and Termination.
This Agreement shall remain in force one year from the date of its
execution (such date and any anniversary of such date being hereinafter
called a "Renegotiation Date"), and from year to year thereafter provided
that neither the Company nor the Fund shall have given written notice to
the other within thirty (30) days prior to a Renegotiation Date that it
desires to renegotiate the amount of contribution to capital due hereunder
("Renegotiation Notice"). In the event any other Participating Insurance
Company (which thereafter remains a Participating Insurance Company) shall
cease to be subject to the obligation to make capital contributions under
the terms of their respective Participation Agreement, this agreement will
remain in effect; however, the Company shall discontinue payment of capital
contributions as defined in paragraph (c) of Section 1 of this Agreement.
If a Renegotiation Notice is properly given as aforesaid and the Fund and
the Company shall fail, within sixty (60) days after the Renegotiation
Date, either to enter into an amendment to this Agreement or a written
acknowledgment that the Agreement shall continue in effect, this Agreement
shall terminate as of the one hundred twentieth day after such
Renegotiation Date. If this Agreement is so terminated, the Fund may, at
any time thereafter, automatically redeem the Shares of any Portfolio held
by a Participating Shareholder. This Agreement may be terminated at any
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time, at the option of either of the Company or the Fund, when neither the
Company, any insurance company nor the separate account or accounts of such
insurance company which is an affiliate thereof which is not a
Participating Insurance Company own any Shares of the Fund or may be
terminated by either party to the Agreement upon a determination by a
majority of the Trustees of the Fund, or a majority of its disinterested
Trustees, following certification thereof by a Participating Insurance
Company given in accordance with Paragraph 10 that an irreconcilable
conflict exists among the interests of (i) all contract holders and policy
holders of Variable Insurance Products of all separate accounts or (ii) the
interests of the Participating Insurance Companies investing in the Fund.
Notwithstanding anything to the contrary in this Agreement or its
termination as provided herein, the Company's obligation to make a capital
contribution to the Fund in accordance with this Agreement at the time in
effect shall continue (i) following a properly given Renegotiation Notice,
in the absence of agreement otherwise, until termination of this Agreement,
and (ii) (except termination due to the existence of an irreconcilable
conflict), following termination of this Agreement, until the later of the
fifth anniversary of the date of this Agreement or the date on which the
Company, its separate account(s) or the separate account(s) of any
affiliated insurance company owns no Shares.
9. Compliance.
The Fund will comply with the provisions of Section 4240(a) of the New York
Insurance Law.
Each Portfolio of the Fund will comply with the provisions of Section
817(h) of the Internal Revenue Code of 1986, as amended
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(the "Code"), relating to diversification requirements for variable
annuity, endowment and life insurance contracts. Specifically, each
Portfolio will comply with either (i) the requirement of Section 817(h)(1)
of the Code that its assets be adequately diversified, or (ii) the "Safe
Harbor for Diversification" specified in Section 817(h)(2) of the Code, or
(iii) the diversification requirement of Section 817(h)(1) of the Code by
having all or part of its assets invested in U.S. Treasury securities which
qualify for the "Special Rule for Investments in United States Obligations"
specified in Section 817(h)(3) of the Code .
The provisions of Paragraphs 6 and 7 of this Agreement shall be interpreted
in a manner consistent with any Rule or order of the Securities and
Exchange Commission under the Investment Company Act of 1940, as amended,
applicable to the parties hereto.
No Shares of any Portfolio of the Fund may be sold to the general public.
10. 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 Fund:
Xxxxxxx Variable Life Investment Fund
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn: Xxxxx X. Xxxxx
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If to the Company:
Intramerica Life Insurance Company
Xxx Xxxx Xxxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx, Senior Vice President
cc: Colonial Penn Life Insurance Company
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
11. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
12. Miscellaneous.
The name "Xxxxxxx Variable Life Investment Fund" is the designation of the
Trustees for the time being under a Declaration of Trust dated March 15,
1985, as amended, and all persons dealing with the Fund must look solely to
the property of the Fund for the enforcement of any claims against the Fund
as neither the Trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Fund. No
Portfolio shall be liable for any obligations properly attributable to any
other Portfolio.
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. This Agreement may be
executed simultaneously in two or more counterparts, each of which taken
together shall constitute one and the same instrument.
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13. Entire Agreement.
This Agreement incorporates the entire understanding and agreement among
the parties hereto, and supersedes any and all prior understandings and
agreements between the parties hereto with respect to the subject matter
hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and behalf by its duly authorized representative
and its seal to be hereunder affixed
hereto as of the 11th day of May, 1994.
SEAL XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By: ________________________________
/S/ Xxxxx X. Xxxxx
President
SEAL INTRAMERICA LIFE INSURANCE
COMPANY
By: ________________________________
Name /S/ Xxxxxxx X. Xxxxxx
Title President
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REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (the "Agreement") made by and between XXXXXXX,
XXXXXXX & XXXXX, INC., a Delaware corporation ("SS&C"), with a principal
place of business in Boston, Massachusetts and INTRAMERICA LIFE INSURANCE
COMPANY, a New York corporation (the "Company"), with a principal place of
business in Pearl River, New York on behalf of the Intramerica Variable
Annuity Account, a separate account of the Company, and any other separate
account of the Company as designated by the Company from time to time, upon
written notice to the Fund in accordance with Section 8 herein (the
"Account").
WHEREAS, SS&C has caused to be organized Xxxxxxx Variable Life Investment
Fund (the "Fund"), a Massachusetts business trust created under a
Declaration of Trust dated March 15, 1985, as amended, the beneficial
interest in which is divided into several series, each designated a
"Portfolio" and representing the interest in a particular managed portfolio
of securities; and
WHEREAS, the purpose of the Fund is to act as the investment vehicle for
the separate accounts established for variable life insurance policies and
variable annuity contracts to be offered by insurance companies which have
entered into reimbursement agreements substantially identical to this
Agreement ("Participating Insurance Companies"); and
WHEREAS, the parties desire to express their agreement as to certain other
matters;
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements hereinafter contained, the parties hereto agree as follows:
1. Additional Definitions.
For purposes of this Agreement, the following definitions shall apply:
(a) The "average annual net asset value of the Shares of each Portfolio of
the Fund" shall mean the sum of the aggregate net asset values of the
Shares of such Portfolio owned by the Account (referred to herein as the
"Participating Shareholder") determined as of each determination of the net
asset value per Share of the Fund during the fiscal year, divided by the
number of such determinations during such year.
(b) "Shares" means shares of beneficial interest, without par value, of any
Portfolio, now or hereafter created, of the Fund.
2. Access to Other Products.
SS&C shall permit a Participating Shareholder to participate in any
registered investment company other than the Fund which is intended as the
funding vehicle for insurance products and for which SS&C or an affiliate
of SS&C acts as investment adviser, on the same basis as other insurance
companies are permitted to participate in such a registered investment
company. This provision shall not require SS&C to make available to the
Company shares of any investment company which is organized solely as the
funding vehicle for insurance products offered by a single insurance
company or a group of affiliated insurance companies.
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3. Right to Review and Approve Sales Materials.
The Company shall furnish, or shall cause to be furnished, to SS&C or its
designee, at least twenty days prior to its intended use, each piece of
promotional material in which SS&C or the Fund is named. No such material
shall be used unless SS&C or its designee shall have approved such use in
writing, or twenty days shall have elapsed without approval, rejection or
objection since receipt by SS&C or its designee of such material.
SS&C shall furnish, or shall cause to be furnished, to the Company or its
designee, at least twenty days prior to its intended use, each piece of
promotional material in which the Company or its separate account(s) is
named. No such material shall be used unless the Company or its designee
shall have approved such use in writing, or twenty days shall have elapsed
without approval, rejection or objection since receipt by the Company or
its designee of such material.
4. Sales Organization Meetings.
Representatives of SS&C or its designee shall meet with the sales
organizations of the Company at such reasonable times and places as may be
agreed upon by the Company and SS&C or its designee for the purpose of
educating sales personnel about the Fund.
5. Duration.
This Agreement shall remain in force one year from the date of its
execution (such date and any anniversary of such date being hereinafter
called an "Anniversary Date"), and from year to year thereafter provided
that neither the Company nor the Fund shall have given written notice to
the other within thirty (30) days
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prior to an Anniversary Date that it desires to terminate the Agreement,
except that the obligation of each party hereto to indemnify the other
party hereto shall continue with respect to all losses, claims, damages,
liabilities or litigation based upon the acquisition of Shares purchased as
the funding vehicle for any variable life insurance policy or variable
annuity contract issued by the Company or any affiliated insurance company.
6. Indemnification.
(a) The Company agrees to indemnify and hold harmless SS&C and each of its
Directors and officers and each person, if any, who controls SS&C within
the meaning of Section 15 of the Securities Act of 1933 (the Act") or any
person, controlled by or under common control with SS&C ("affiliate")
against any and all losses, claims, damages, liabilities or litigation
(including legal and other expenses) to which SS&C or such Directors,
officers or controlling person may become subject under the Act, under any
other statute, at common law or otherwise, arising out of the acquisition
of any Shares by any person which (i) may be based upon any wrongful act by
the Company, any of its employees or representatives, any affiliate of or
any person acting on behalf of the Company or a principal underwriter of
its insurance products, or (ii) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement or prospectus covering Shares 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 SS&C
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or the Fund by the Company, provided, however, that in no case (i) is
the Company's indemnity in favor of a Director or officer or any other
person deemed to protect such Director or officer or other person against
any liability to which any such person would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance
of his duties or by reason of his reckless disregard of obligations and
duties under this Agreement or (ii) is the Company to be liable under its
indemnity agreement contained in this Paragraph 6 with respect to any claim
made against SS&C or any person indemnified unless SS&C or such person, as
the case may be, shall have notified the Company in writing pursuant to
Paragraph 8 within a reasonable time after the summons or other first legal
process giving information of the nature of the claims shall have been
served upon SS&C or upon such person (or after SS&C or such person shall
have received notice of such service on any designated agent), but failure
to notify the Company of any such claim shall not relieve the Company from
any liability which it has to SS&C or any person against whom such action
is brought otherwise than on account of the indemnity agreement contained
in this Paragraph 6. The Company shall be entitled to participate, at its
own expense, in the defense, or, if it so elects, to assume the defense of
any suit brought to enforce any such liability, but, if it elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to SS&C, to its officers and Directors, or to any controlling
person or persons, defendant or defendants in the suit. In the event that
the Company elects to assume the defense of any such suit and retain such
counsel, SS&C, such officers and Directors or
5
controlling person or persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel retained by them, but,
in case the Company does not elect to assume the defense of any such suit,
the Company will reimburse SS&C, such officers and Directors or controlling
person or persons, defendant or defendants in such suit, for the reasonable
fees and expenses of any counsel retained by them. The Company agrees
promptly to notify SS&C pursuant to Paragraph 8 of the commencement of any
litigation or proceedings against it in connection with the issue and sale
of any Shares.
(b) SS&C agrees to indemnify and hold harmless the Company and each of its
directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all losses,
claims, damages, liabilities or litigation (including legal and other
expenses) to which it or such directors, officers or controlling persons
may become subject under the Act, under any other statute, at common law or
otherwise, arising out of the acquisition of any Shares by any person which
(i) may be based upon any wrongful act by SS&C, any of its employees or
representatives or a principal underwriter of the Fund, or (ii) may be
based upon any untrue statement or alleged untrue statement of a material
fact contained in a registration statement or prospectus covering Shares 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 statement
or omission was made in reliance upon information furnished to the Company
by SS&C; provided, however, that in no case (i) is SS&C's
6
indemnity in favor of a director or officer or any other person deemed to
protect such director or officer or other person against any liability to
which any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of his
duties or by reason of his reckless disregard of obligations and duties
under this Agreement or (ii) is SS&C to be liable under its indemnity
agreement contained in this Paragraph 6 with respect to any claims made
against the Company or any such director, officer or controlling person
unless it or such director, officer or controlling person, as the case may
be, shall have notified SS&C in writing pursuant to Paragraph 8 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 it or
upon such director, officer or controlling person (or after the Company or
such director, officer or controlling person shall have received notice of
such service on any designated agent), but failure to notify SS&C of any
claim shall not relieve it from any liability which it may have to the
person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this Paragraph 6. SS&C will be entitled to
participate at its own expense in the defense, or, if it so elects, to
assume the defense of any suit brought to enforce any such liability, but
if SS&C elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Company, its directors,
officers or controlling person or persons, defendant or defendants, in the
suit. In the event SS&C elects to assume the defense of any such suit and
retain such counsel, the Company, its directors, officers or controlling
person or persons,
7
defendant or defendants in the suit, shall bear the fees and expenses of
any additional counsel retained by them, but, in case SS&C does not elect
to assume the defense of any such suit, it will reimburse the Company or
such directors, officers or controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. SS&C agrees promptly to notify the Company pursuant to
Paragraph 9 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 any Shares.
7. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
8. 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 SS&C:
Xxxxxxx, Xxxxxxx & Xxxxx, Inc.
00X Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn: Xxxxx x. xxxxx
8
If to the Company:
Intramerica Life Insurance Company
Xxx Xxxx Xxxxx Xxxxx
Xxxxx Xxxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx, Senior Vice President
cc: Colonial Penn Life Insurance Company
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxx
9. Miscellaneous.
The captions in the 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. This Agreement may be
executed simultaneously in two or more counterparts, each of which taken
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the 11th day of May,
1994.
SEAL
SEAL XXXXXXX, XXXXXXX & XXXXX, INC.
By: /S/ Xxxxx X. Xxx
Xxxxx X. Xxx
Authorized Officer
SEAL INTRAMERICA LIFE INSURANCE COMPANY
By: /S/ X. Xxxxxx
Name Xxxxxxx X. Xxxxxx
Title: President
9
Exhibit 8 (c)
GENERAL SERVICES AND EXPENSE REIMBURSEMENT AGREEMENT
Between
FIRST CHARTER LIFE INSURANCE COMPANY
and
CHARTER NATIONAL LIFE INSURANCE COMPANY
This General Services and Expense Reimbursement Agreement (the "Agreement")
dated September 1, 1989, is entered into by and between First Charter Life
Insurance Company, a life insurance company incorporated under the laws of
the State of New York (the "Company"), and Charter National Life Insurance
Company, an affiliated life insurance company incorporated under the laws
of the State of Missouri ("Charter").
WHEREAS, the Company is duly licensed as an insurance company in the State
of New York and is engaged in the annuity business; and
WHEREAS, Charter has special knowledge and performs certain services in
connection with the annuities; and
WHEREAS, Charter has offered to perform certain of these services for the
Company, and the parties desire to enter into an agreement in connection
therewith; and
WHEREAS, Charter may incur certain expenses associated with the
development, administration, promotion, and sale of the annuity products
issued by First Charter:
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto agree as follows:
A. SERVICES TO BE PERFORMED BY CHARTER
The Company hereby agrees to pay for and Charter agrees to provide and
perform, so long as this Agreement is in force, the following services in
accordance with the Company's commission rates, rules, and procedures now
in force or as may be amended or supplemented from time to time.
1. Administration. Charter shall administer the commissions, contract
accounting, record keeping, claims (excluding activities involving contact
with the owners and beneficiaries), and other functions necessary or
appropriate to fully handle the annuity business covered under this
Agreement. The Company at its home office shall perform all owner services
involving personal contact or communication with an owner or beneficiary,
including, but not limited to, surrender requests (including computations
and payments of benefits); determination and payment of contract benefits;
contract conversions; beneficiary changes; contract changes; requests for
general information; premium payments; and consumer complaints.
2. Reports to the Company. Charter shall provide the Company with a
statement quarterly or more frequently, as the Company may request, in form
satisfactory to the Company, with accounting and financial data concerning
the annuity business covered by this Agreement sufficient to enable the
Company to service its contract owners. Charter shall, within thirty (30)
days after written demand therefor, prepare on behalf of the Company
reports concerning the business covered by this Agreement sufficient to
enable the Company to comply with the reporting requirements of the State
of New York and other states in which the Company is doing business,
including, but not limited to, reports such as interim requests for
information and questionnaires. It is agreed that the intent of this
paragraph is that Charter shall provide the Company with all data necessary
for the Company to serve its contract owners and comply with the
requirements of law and regulatory authorities, in the form required
thereby; it is not the intent of the parties to impose upon Charter any
duties beyond such requirements.
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3. Records and Access to Records. Charter shall prepare and maintain
up-to-date and correct records, which shall be considered the property of
the Company and which shall be available for examination by or surrender to
the Company, at the Company's expense, at such times as the Company may
reasonably request during Charter's business hours. The owner accounting
and statistical information contained in such records shall, upon request,
be transmitted to the Company in sufficient detail to enable it to meet its
contract owner service obligations. Sufficient records shall be maintained
in the office of the Company to enable it to process any inquiry made or
application submitted by an contract owner or beneficiary with no
significant delay. If it is necessary to transfer records in connection
with the performance of specific services, copies of such records shall be
transferred and the originals maintained at the home office of the Company.
Persons providing services shall forward to the home office of the Company
the originals or copies of all work papers, related records, and documents
prepared and utilized in connection with such services. While records
which are maintained solely on EDP tapes, disks, etc., need not be
forwarded to the Company, Charter, when requested, shall provide print-outs
of such tapes, disks, etc., which shall be available for inspection by the
Superintendent of the New York Insurance Department at the Company's home
office.
4. Faithful Representation and Performance. In consideration of the
authority granted herein, Charter shall: faithfully represent the Company
in all matters pertaining to and within the jurisdiction and scope of this
Agreement; serve the Company as herein provided; and exercise due diligence
in carrying out all instructions and requests of the Company.
5. Right of Charter to Represent Other Companies Charter may
represent one or more insurance companies writing the same or different
types of coverage as the Company without affecting Charter's rights
hereunder.
B. OBLIGATIONS OF COMPANY AND FORM OF CONTRACTS
1. The Company agrees to cooperate fully with Charter and to render
all assistance reasonably required in order to enable Charter to carry out
its obligations and undertakings hereunder.
2. The parties shall agree on forms, plans, types, and character of
the annuity contracts which may be offered, as described in Exhibit A, as
attached hereto, and which may be amended by written consent of both
parties.
3. The Company reserves the right, without any liability whatsoever
to Charter, to withdraw from use, upon sixty (60) days' written notice to
Charter, any contract, form, or practice used. If such withdrawal is by
regulatory actions, the withdrawal notice would be deemed to coincide with
any notice given by any regulatory body.
C. REIMBURSEMENT OF EXPENSES
The Company hereby agrees to pay all costs incurred by Charter for the
administrative services provided to the Company pursuant to this Agreement.
Subject to its prior consent, the Company also agrees to reimburse Charter
for such other expenses that Charter may incur on behalf of the Company.
2
D. INDEMNIFICATION
1. Charter shall, and by this Agreement does hereby agree to, hold
harmless and indemnify the Company from any and all claims, actions, suits,
judgments, damages, fines, and other proceedings, together with all costs,
expenses, and other amounts (including attorneys' fees) arising from any
act, error, or omission under this Agreement or any reinsurance agreement
(except for intentional, fraudulent, or negligent acts, errors, or
omissions of the company, including without limitation: (a) any act, duty,
or obligation to be performed by Charter under this Agreement or any
reinsurance agreement; (b) any act, error, or omission performed or failed
to be performed by an employee of Charter, an Agent appointed by Charter,
or any other individual or entity acting for, through, or on behalf of
Charter and/or the Company pursuant to this Agreement or any reinsurance
agreement; or (c) with respect to any business produced, processed, or
issued pursuant to this Agreement or reinsured pursuant to any reinsurance
agreement.
2. In the event that the Company is named a party to any
administrative or other proceeding or litigation concerning any matter set
forth in the paragraph above, Charter (a) shall initiate and institute any
and all appropriate actions, at the Company's expense, to defend the
Company; (b) shall promptly forward to the Company copies of all
communications, correspondence, and pleadings as the same are filed or
received; and (c) shall, and by this Agreement does, hold harmless and
indemnify the Company from the items set forth in the paragraph above,
imposed or incurred by the Company as a result of such proceeding or
litigation. Charter shall, and by this Agreement does, hold harmless and
indemnify the Company in the event of a final judgment or an award for
punitive, compensatory, or other special damages in excess of contractual
amounts.
In the event any such proceeding or litigation seeks punitive or other
special damages, the Company, as a condition to Charter's agreement to hold
harmless and indemnify the Company: (a) shall, if notice of such action is
first received by the Company, notify Charter of such fact in writing
within fifteen (15) days after receipt by the Company, at the Company's
home office, of the summons or other appropriate notice of commencement of
proceeding or suit; and (b) shall solicit Charter's advice with respect to
all matters pertaining to participation in or direction of such proceeding
or litigation. In such latter event, Charter may, without limitation of
other legal, equitable, or other remedies or alternatives then or
thereafter available, defend such proceeding or litigation either in the
name of the Company or in the name of Charter; provided, however, nothing
contained herein shall diminish or mitigate Charter's liability for the
contractual amount of any such claim.
3. Failure of the Company to exercise any right or privilege
contained under this Agreement shall not be deemed a waiver or abrogation
of any of the Company's rights or remedies under this Article or this
Agreement.
4. The terms and conditions of this Article shall survive any
termination of this Agreement.
E. TERRITORY
The territorial limits to which this Agreement shall apply and the
authority of Charter shall exist for business written in the Commonwealths,
Territories, and all the States in which the Company is licensed or may
become licensed. It is the intent of the Company that it refer all
inquiries from Agents appointed by Charter with respect to annuities to
Charter, and advise Charter of any inquiries from other agents with respect
3
to annuities, but it will not be deemed to have breached this
Agreement for failure to do so unless it shall have intentionally and with
bad faith violated this covenant. This Agreement shall not be deemed to
create any exclusive territorial or other right or rights in favor of
Charter with respect to the acceptance of annuities by the Company.
F. OFFICE OF ADMINISTRATOR
Charter shall maintain its office and perform its obligations hereunder at
0000 Xxxxxxxx Xxxxxx, Xx. Xxxxx, Xxxxxxxx 00000.
G. REPORTS, RETURNS, AND TAXES
Charter shall make and file all reports and returns required of it by any
municipal, state, or federal government by virtue of Charter's doing
business as an independent contractor. The reports, returns, and taxes
which are required of Charter shall not include state premium taxes or any
other taxes levied against the Company, or any reports or returns which
must be made by the Company.
H. AUTHORITY OF ADMINISTRATOR
Charter is not authorized to obligate the Company, except as specifically
set forth in this Agreement, or to alter, modify, waive, or change any of
the terms, rates, or conditions of the contracts described in Exhibit A
unless such changes are first approved by the Company and the states in
which it is to be used.
I. MISCELLANEOUS
1. Amending the Agreement. This Agreement replaces the prior agreement
between the parties and now therefore, constitutes the entire agreement
between the parties and may be amended in writing by authorized officers of
the Company and Charter.
2. Notices. All notices required to be given under the terms of this
Agreement or which either of the parties hereto may desire to give
hereunder, shall be in writing and shall be sent by United States Certified
Mail, postage prepaid, return receipt requested, addressed to the party to
be notified at its principal place of business. Any change in address shall
be given in writing. Until such change of address is received by the other
party, any notice addressed to the previously designated place of business
shall be deemed sufficient.
3. Independent Contractors. Charter and the Company shall operate as
independent contractors. The parties are not and shall not be considered
Joint adventurers, partners, employer-employee, or agent of the other, and
neither shall have power to bind or obligate the other except as set forth
in this Agreement.
4. Term of Agreement - Termination Without Cause. This Agreement
shall be unlimited as to its duration but may be terminated by either party
without cause upon sixty (60) days written notice to the other party at any
given time.
In the event of termination under this Article, Charter agrees to transfer
information in its possession pertaining to the Company, to the Company or
its designee.
5. Assignment of Interest by Administrator. Neither this Agreement
nor the rights and interest of Charter hereunder shall be pledged,
assigned, sold, or otherwise alienated without the prior written consent of
the Company. Any assignment without
4
the written consent of the Company shall render this Agreement null and
void at the option of the Company.
6. Arbitration. Any claims made by one party against the other or
disputes between the parties shall be settled by submitting the same to
arbitration in accordance with the rules of the American Arbitration
Association then in effect.
7. Benefit. This Agreement shall inure to the benefit of the
successors and assigns of the Company.
8. Agreement Execution. This Agreement shall be executed
simultaneously in two counterparts, each of which shall be deemed an
original, which together shall constitute one and the same Agreement.
IN. WITNESS WHEREOF, the parties hereto have hereunto set their hands the
day and year first above written.
Attest: FIRST CHARTER LIFE INSURANCE COMPANY
____________________ By ___________________________
/S/
Secretary President
Attest CHARTER NATIONAL LIFE
INSURANCE COMPANY
____________________ By ___________________________
/S/
Secretary Senior vice President
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EXHIBIT "A"
Name of Contract; Application; Certificate Form Numbers
Single Premium Variable Deferred Annuity P 1600
Application for Single Premium Variable A 1601
Deferred Annuity
Financial Questionnaire to Application B 1601
Flexible Premium Variable Deferred Annuity S 1800
Application for Flexible Premium Variable A 1801
Deferred Annuity
Flexible Premium Deferred Annuity N 2000
Application for Flexible Premium Deferred Annuity A 2001
Attest: FIRST CHARTER LIFE INSURANCE COMPANY
____________________ By ___________________________
/S/
Secretary President
Attest CHARTER NATIONAL LIFE
INSURANCE COMPANY
____________________ By ___________________________
/S/
Secretary Senior vice President
6
