PARTICIPATION AGREEMENT
By and Among
PREMIER VIT
And
ALLIANZ LIFE INSURANCE COMPANY OF NEW YORK
And
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
THIS AGREEMENT, made and entered into this 1st day of May,
2006 by and among, ALLIANZ LIFE INSURANCE COMPANY OF NEW YORK, a New York
corporation (hereinafter the "Company"), on its own behalf and on behalf of each
separate account of the Company named in Schedule 1 to this Agreement, as may be
amended from time to time (each account referred to as the "Account"), PREMIER
VIT, an open-end diversified management investment company organized under the
laws of the State of Massachusetts (hereinafter the "Fund"), and ALLIANZ GLOBAL
INVESTORS DISTRIBUTORS LLC, a Delaware limited liability company (hereinafter
the "Underwriter").
WHEREAS, the Fund engages in business as an open-end
diversified, management investment company and was established for the purpose
of serving as the investment vehicle for separate accounts established for
variable life insurance contracts and variable annuity contracts to be offered
by insurance companies which have entered into participation agreements
substantially identical to this Agreement (the Company and such other insurance
companies being hereinafter "Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Fund are divided into
several series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (the "Portfolios"); and
WHEREAS, the Fund has obtained an order from the Securities
and Exchange Commission (alternatively referred to as the "SEC" or the
"Commission"), dated February 22, 1995 (File No. 812-9290), granting
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief from the provisions of Sections
9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended,
(hereinafter the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity separate accounts and variable life insurance
separate accounts of both affiliated and unaffiliated Participating Insurance
Companies and qualified pension and retirement plans ("Plans") (hereinafter the
"Mixed and Shared Funding Exemptive Order");and
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and its shares are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Company has registered or will register interests
in the Account funding certain variable annuity and/or life contracts, as the
case may be (the "Contracts") under the 1933 Act; and
WHEREAS, the Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors of
the Company under the insurance laws of the State of New York to set aside and
invest assets attributable to, among others, the Contracts; and
WHEREAS, the Company has registered the Account as a unit
investment trust under the 1940 Act;
and
WHEREAS, the Underwriter is registered as a broker-dealer with
the SEC under the Securities Exchange Act of 1934, as amended (hereinafter the
"1934 Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, the Company intends to purchase shares in the Portfolios named
in Schedule 2 on behalf of the Account to fund the Contracts and the Underwriter
is authorized to sell such shares to unit investment trusts such as the Account
at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund and the
Underwriter agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Fund and the Underwriter agree to sell to the Company
those shares of the Fund which the Company orders on behalf of the Account,
executing such orders on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its agent of the order for the
shares of the Fund. For purposes of this Section 1.1, the Company shall be the
designee of the Fund for receipt of such orders from the Account and receipt by
such designee shall constitute receipt by the Fund; provided that the Fund
receives notice of such order by 10:00 a.m. Eastern Time on the next following
Business Day. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the Fund calculates its net asset
value pursuant to the rules of the SEC.
1.2. The Company shall pay for Fund shares on the next
Business Day after it places an order to purchase Fund shares in accordance with
Section 1.1 hereof. Payment shall be in federal funds transmitted by wire by 1
p.m. Eastern time (unless the Fund determines and so advises the Company that
sufficient proceeds are available from redemption of shares of other Portfolios,
effected pursuant to redemption requests tendered by the Company on behalf of
the Account). Upon receipt by the Fund or its designee of federal funds so wired
such funds shall cease to be the responsibility of the Company and shall become
the responsibility of the Fund.
1.3. The Fund agrees to make its shares available indefinitely
for purchase at the applicable net asset value per share by Participating
Insurance Companies and their separate accounts on those days on which the Fund
calculates its net asset value pursuant to rules of the SEC; provided, however,
that 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 (a)
is required by law or by regulatory authorities having jurisdiction, (b) is, in
the sole discretion of the Board of Trustees of the Fund (hereinafter the "Fund
Board"), acting in good faith and in light of their fiduciary duties under
federal and any applicable state laws, necessary in the best interests of the
shareholders of any Portfolio, or (c) is required by any policies that the Fund
Board has adopted or approved and that are applicable to all Participating
Insurance Companies. If the Fund Board refuses to sell shares to the Company,
the Company shall have the right to terminate this Agreement in accordance with
section 10.1(b) of this Agreement.
1.4. The Fund and the Underwriter agree that shares of the
Fund will be sold only to (i) Participating Insurance Companies and their
separate accounts; and (ii) Plans and persons participating in such Plans
("participants"), or (iii) such other persons as are permitted under applicable
provisions of the Internal Revenue Code of 1986, as amended, (the "Internal
Revenue Code"), and regulations promulgated thereunder, the sale to which will
not impair the tax treatment currently afforded the Contracts. No shares of any
Portfolio will be sold to the general public.
1.5. The Fund and the Underwriter will not sell Fund shares to
any insurance company or separate account unless the parties enter into an
agreement containing provisions substantially the same as this Agreement to
govern such sales. The Fund shall make available upon written request from the
Company, at the Company's expense, (i) a list of all other Participating
Insurance Companies and (ii) a copy of the Participation Agreement executed by
any other Participating Insurance Company.
1.6. The Fund agrees to redeem for cash, upon the Company's
request, any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its agent of the request for
redemption. For purposes of this Section 1.6, the Company shall be the designee
of the Fund for receipt of requests for redemption from each Account and receipt
by such designee shall constitute receipt by the Fund; provided the Fund
receives notice of request for redemption by 10:00 a.m. Eastern Time on the next
following Business Day. Payment shall be in federal funds transmitted by wire to
the Company's account as designated by the Company in writing from time to time,
on the same Business Day the Fund receives notice of the redemption order from
the Company, except that the Fund reserves the right to delay payment of
redemption proceeds, but in no event may such payment be delayed longer than the
period permitted under Section 22(e) of the 1940 Act. The Fund agrees to notify
the Company if it intends to delay payment of redemption proceeds in accordance
with its rights under Section 22(e). After redemption proceeds are received by
the Company, neither the Fund nor the Underwriter shall bear any responsibility
whatsoever for the proper disbursement or crediting of redemption proceeds; the
Company alone shall be responsible for such action. If notification of
redemption is received after 10:00 a.m. Eastern Time, payment for redeemed
shares will be made on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of
the Portfolios of the Fund named in Schedule 2 offered by the then current
prospectus of the Fund in accordance with the provisions of such prospectus,
provided that such provisions are also consistent with the terms of this
Agreement. Without limiting the scope or effect of the foregoing, on any given
Business Day, the Company shall submit orders to purchase or redeem shares of
any Portfolio in a manner consistent with the pricing requirements of Rule 22c-1
under the 1940 Act. The Company shall submit one net order for the Portfolio to
the Fund or its designee. However, the Fund reserves the right to obtain the
breakdown of any net order per contractowner. With respect to payment of the
purchase price by the Company and of redemption proceeds by the Fund, the
Company and the Fund, as appropriate, shall net purchase and redemption orders
with respect to each Portfolio and shall transmit one net payment for all of the
Portfolios.
1.8. Issuance and transfer of the Fund's shares will be by
book entry only. Stock certificates will not be issued to the Company or the
Account. Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for the Account or the appropriate subaccount of the Account.
1.9. The Fund shall furnish notice to the Company as soon as
reasonably practicable, but no later than two business days prior to any
described action, of any income, dividends or capital gain distributions payable
on the Fund's shares. The Company hereby elects to receive all such dividends
and distributions as are payable on the Portfolio shares in the form of
additional shares of that Portfolio. The Company reserves the right to revoke
this election and to receive all such dividends and distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
dividends and distributions on the same business day that such dividend or
distribution is made.
1.10. The Fund shall make the net asset value per share for
each Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 5:50 p.m.,
Eastern Time, each business day. In the event that the Fund is unable to meet
the 5:50 time stated herein, it shall provide additional time for the Company to
place orders for the purchase and redemption of shares. Such additional time
shall be equal to the additional time which the Fund takes to make the net asset
value available to the Company. However, in the event the Fund makes the net
asset value available the following business day, the Company will have until
10:00 a.m. or two hours after such notice (whichever is later) to place orders
for the purchase and redemption of shares. In the event of an error in a
Portfolio's net asset value per share which, in accordance with procedures
adopted by the Fund's Board consistent with views expressed by the staff of the
SEC regarding appropriate error correction standards, as shall be in effect or
amended from time to time, requires adjustment to transactions previously
effected on behalf of the Account (a "Pricing Error"), the Fund shall notify the
Company as soon as possible after discovery of the Pricing Error. Such
notification may be oral, but shall be confirmed in writing within 24 hours. In
such event, the Fund shall recompute all Account share transactions that were
based on the Pricing Error and credit or debit the Account's account so that the
Account has the correct number of Portfolio's shares had all those transactions
had been correctly priced. Notwithstanding anything else in this Section 1.10,
neither the Fund, any Portfolio, the Underwriter, nor any of their affiliates
shall be liable for any information provided to the Company pursuant to this
Agreement which information is based on incorrect information supplied by the
Company to the Fund or the Underwriter.
1.11 Without limiting the scope or effect of Section 1.7
hereof, the Company agrees to cooperate with the Fund and the Underwriter to
prevent any person exercising, or purporting to exercise, rights or privileges
under one or more Contracts from engaging in any trading practices in any
Portfolio that the Fund Board determines, in good faith and in its sole
discretion, to be detrimental or potentially detrimental to the other
shareholders of the Portfolio, or to be in contravention of any law or
regulation including, without limitation, Section 22 of the 1940 Act and the
rules thereunder. Such cooperation may include, but shall not be limited to,
identifying the person or persons engaging in such trading practices,
facilitating the imposition of any applicable redemption fee on such person or
persons, limiting the telephonic or electronic trading privileges of such person
or persons, and taking such other remedial steps, all to the extent permitted or
required by applicable law.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that interests in the
Account funding the Contracts are or will be registered under the 1933 Act and
that the Contracts will be issued and sold in compliance with all applicable
federal and state laws. The Company further represents and warrants that it is
an insurance company duly organized and in good standing under applicable law
and that it has legally and validly established the Account as a segregated
asset account under applicable state law and has registered the Account as a
unit investment trust in accordance with the provisions of the 1940 Act to serve
as segregated investment accounts for the Contracts, and that it will maintain
such registration for so long as any Contracts are outstanding. The Company
shall amend the registration statement under the 1933 Act for the interests in
the Account and the registration statement under the 1940 Act for the Account
from time to time as required in order to affect the continuous offering of the
Contracts or as may otherwise be required by applicable law. The Company shall
register and qualify the Contracts for sale in accordance with the securities
laws of the various states only if and to the extent deemed necessary by the
Company.
2.2. Subject to Section 2.4 and Article VI, the Company
represents and warrants that the Contracts are currently and at the time of
issuance will be treated as variable annuity or life insurance contracts, as the
case may be, under applicable provisions of the Internal Revenue Code and that
it will make every effort to maintain such treatment and that it will notify the
Fund and the Underwriter immediately upon having a reasonable basis for
believing that the Contracts have ceased to be so treated or that they might not
be so treated in the future.
2.3. The Fund and the Underwriter each represents and warrants
that Fund shares sold pursuant to this Agreement shall be registered under the
1933 Act and duly authorized for issuance in accordance with applicable law and
that the Fund is and shall remain registered under the 1940 Act for as long as
the Fund shares are sold. The Fund shall amend the registration statement for
its shares under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of its shares. The Fund shall register
and qualify the shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Fund or the
Underwriter.
2.4 The Fund and the Underwriter each represents and warrants
that each Portfolio is currently qualified as a Regulated Investment Company
under Subchapter M of the Internal Revenue Code, and that it will maintain such
qualification (under Subchapter M or any successor or similar provision) and
that it will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify in
the future. In the event that a Portfolio fails to so qualify, the Company shall
have the right to terminate this arrangement in accordance with Section 10.1
(b), which right shall be in addition to any other rights that the Company has.
2.5. The Fund and the Underwriter each represents and warrants
that each Portfolio's investment objectives, policies and restrictions comply
and will continue to comply with applicable state and federal investment laws as
they may apply to the Fund. The Fund makes no representation as to whether any
aspect of its operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws and regulations of any
state. The Company alone shall be responsible for informing the Fund of any
insurance restrictions imposed by state insurance laws which are applicable to
the Portfolio. The Fund and the Underwriter will use reasonable efforts to
comply with the state insurance laws that apply to them as a result of the
availability of the Portfolio to contract owners pursuant to this Agreement,
provided that the Company shall inform them in writing of any such state
insurance laws. To the extent feasible and consistent with market conditions,
the Portfolio will adjust investments practices to comply with the
aforementioned state insurance laws upon written notice from the Company of such
requirements and proposed adjustments, it being agreed and understood that in
any such case the Fund shall be allowed a reasonable period of time under the
circumstances after receipt of such notice to make any such adjustment.
2.6. The Fund represents and warrants that it currently does
not intend to make any payments to finance distribution expenses pursuant to
Rule 12b-1 under the 1940 Act or otherwise, although it may make such payments
in the future. To the extent that it decides to finance distribution expenses
pursuant to Rule 12b-1, the Fund undertakes to have its Board of Trustees, a
majority of whom are not interested persons of the Fund, formulate and approve
any plan under Rule 12b-1 to finance distribution expenses.
2.7. The Underwriter represents and warrants that it is a
member in good standing of the NASD and is registered as a broker-dealer with
the SEC. The Underwriter further represents and warrants that it will sell and
distribute the Fund shares in accordance with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the 0000 Xxx.
2.8. The Fund represents and warrants that the Fund is
lawfully organized and is and will continue to be validly existing under the
laws of Massachusetts and that it does and will comply with all applicable
provisions of the 1940 Act.
2.9. The Fund and Underwriter each represent and warrant that
all of their directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Fund
are and will continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid Bond
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company. The Fund and Underwriter each agree to notify the Company
promptly in the event that such coverage is no longer in force.
2.10. The Company represents and warrants that all of its
directors, officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the Fund are
covered by a blanket fidelity bond or similar coverage. The Company further
represents and warrants that said fidelity bond includes coverage for larceny
and embezzlement and is issued by a reputable bonding company in an amount not
less than $5 million. The Company agrees to make all reasonable efforts to see
that this bond or another bond containing these provisions is always in effect,
and agrees to notify the Fund and the Underwriter in the event that such
coverage no longer applies.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1 The Underwriter shall provide the Company, at the
Company's expense, with as many copies of the Fund's current prospectus (which
term as used in this Agreement shall also include any supplements thereto) as
the Company may reasonably request for use with prospective contract owners and
applicants. The Underwriter shall print and distribute, at the Fund's or
Underwriter's expense, as many copies of said prospectus as necessary for
distribution to existing contract owners or participants and provide same to
Company on a timely basis such that Company can satisfy its obligation to
provide the prospectus to existing contract owners or participants, as required
by law. If requested by the Company in lieu thereof, the Fund shall provide such
documentation including a final copy of a current prospectus set in type or at
the request of the Company, as a PDF or diskette in the form sent to the
financial printer, at the Fund's expense and other assistance as is reasonably
necessary in order for the Company at least annually (or more frequently if the
Fund prospectus is amended more frequently) to have the new prospectus for the
Contracts and the Fund's new prospectus printed together in one document. In
such case the Fund shall bear its proportionate share of expenses as described
above.
3.2 The Fund's prospectus shall state that the Statement of
Additional Information ("SAI", which term, as used in this Agreement shall
include any supplement thereto) for the Fund is available from the Underwriter
(or, in the Fund's discretion, the prospectus shall state that such SAI is
available from the Fund), and the Underwriter (or the Fund) shall provide such
SAI, at its expense, to the Company and to any owner of or participant under a
Contract who requests such SAI or, at the Company's expense, to any prospective
contractowner or applicant who requests such SAI.
3.3 The Fund shall provide the Company with information
regarding the Fund's expenses, (including information that is legally required
to be included in the prospectus for the Account) which information may include
a table of fees and related narrative disclosure for use in any prospectus or
other descriptive document relating to a Contract.
3.4. The Fund shall provide the Company with copies of its
voting instructions, proxy material, if any, reports to shareholders and certain
other communications to shareholders in such quantity as the Company shall
reasonably require. If requested by the Company in lieu thereof, the Fund shall
provide such documentation (including a final copy of all proxy materials or
reports to shareholders) set in type or, at the request of the Company, as a PDF
or diskette in the form sent to the financial printer. The Fund shall bear the
costs of printing and distributing such documentation to existing contract
owners or participants, and for tabulating and reporting associated with Fund
proxies (except for costs relating to activities attributable to the Company).
3.5. If and to the extent required by law the Company shall:
(i) solicit voting instructions from contract owners or
participants;
(ii)vote the Fund shares held in the Account in
accordance with instructions received from
contract owners or participants; and
(iii)vote Fund shares held in the Account for
which no timely instructions have been
received, in the same proportion as Fund
shares of such Portfolio for which
instructions have been received from the
Company's contract owners or participants;
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require "pass-through" voting privileges for variable contract owners. The
Company reserves the right to vote Fund shares held in any segregated asset
account in its own right, to the extent permitted by law. Participating
Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in the Fund calculates voting privileges in a
manner consistent with other Participating Insurance Companies as those
procedures are provided to the Company by the adviser.
3.6. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular as required, the Fund will
either provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of that
Act) as well as with Sections 16(a) and, if and when applicable, 16(b). Further,
the Fund will act in accordance with the SEC interpretation of the requirements
of Section 16(a) with respect to periodic elections of directors and with
whatever rules the Commission may promulgate with respect thereto.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be
furnished, to the Fund or the Underwriter, each piece of sales literature or
other promotional material in which the Fund or the Fund's adviser or the
Underwriter is named, at least fifteen days prior to its use. No such material
shall be used if the Fund or the Underwriter reasonably objects in writing to
such use within fifteen days after receipt of such material.
4.2 The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus or SAI for
the Fund shares, as such registration statement, prospectus and SAI may be
amended or supplemented from time to time, or in reports or proxy statements for
the Fund, or in sales literature or other promotional material approved by the
Fund or by the Underwriter, except with the permission of the Fund or the
Underwriter. The Fund and the Underwriter agree to respond to any request for
approval within fifteen days of receipt of the request.
4.3. The Fund and the Underwriter shall furnish, or shall
cause to be furnished, to the Company or its designee, each piece of sales
literature or other promotional material in which the Company or its the Account
is named, at least fifteen days prior to its use. No such material shall be used
if the Company reasonably objects in writing to such use within fifteen days
after receipt of such material. 4.4 The Fund and the Underwriter shall not give
any information or make any representations on behalf of the Company or
concerning the Company, each Account, or the Contracts other than the
information or representations contained in a registration statement, prospectus
or SAI for the Contracts, as such registration statement, prospectus and SAI may
be amended or supplemented from time to time, or in published reports for each
Account which are in the public domain or approved by the Company for
distribution to contract owners or participants, or in sales literature or other
promotional material approved by the Company, except with the permission of the
Company. The Company agrees to respond to any request for approval within
fifteen days of receipt of the request. 4.5. The Fund will provide to the
Company at least one complete copy of all registration statements, prospectuses,
SAIs, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Portfolio or its shares,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities. 4.6. The Company will provide to the Fund at least one
complete copy of all registration statements, prospectuses, statements of
additional information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Contracts, contemporaneously with the filing of such document with
the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales
literature or other promotional material" includes, but is not limited to,
advertisements (such as material published, or designed for use in, a newspaper,
magazine, or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures, or other public media),
sales literature (I.E., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under NASD rules, the 1940 Act or the 1933 Act.
ARTICLE V. FEES AND EXPENSES
5.1. The Fund shall pay no fee or other compensation to the
Company under this Agreement, except that if the Fund or any Portfolio adopts
and implements a plan pursuant to Rule 12b-1 to finance distribution expenses,
then, subject to obtaining any required exemptive orders or other regulatory
approvals, the Underwriter may make payments to the Company or to the
underwriter for the Contracts if and in amounts agreed to by the Underwriter in
writing. Currently, no such payments are contemplated.
5.2. Unless otherwise specified, each party shall bear the expenses incident to
its performance hereunder. The Fund shall bear the expenses for the cost of
registration and qualification of the Fund's shares, preparation and filing of
the Fund's prospectus and registration statement, Fund voting instructions,
proxy materials and reports, setting in type, printing and distributing the
prospectuses, the voting instructions, proxy materials and reports to existing
shareholders and contract owners, the preparation of all statements and notices
required by any federal or state law, all taxes on the issuance or transfer of
the Fund's shares, and any expenses permitted to be paid or assumed by the Fund
pursuant to a plan, if any, under Rule 12b-1 under the 1940 Act. ARTICLE VI.
DIVERSIFICATION 6.1. The Fund represents and warrants that the Portfolio will at
all times invest its assets in such a manner as to ensure that the Contracts
will be treated as variable contracts under the Internal Revenue Code and the
regulations issued thereunder. Without limiting the scope of the foregoing, the
Fund represents and warrants that the Portfolio will comply with Section 817(h)
of the Internal Revenue Code and Treasury Regulation 1.817-5(b) and (f),
relating to the diversification requirements for variable annuity, endowment, or
life insurance contracts and any amendments or other modifications to such
Section or Regulations (and any revenue rulings, revenue procedures, notices and
other published announcements of the Internal Revenue Service interpreting these
sections) as if those requirements applied separately to the Portfolio. In the
event of a breach of this Article VI by the Fund, and in addition to other
remedies and actions set forth in this Agreement, the Fund will take all
reasonable steps (a) to notify the Company of such breach and (b) to adequately
diversify the Fund so as to achieve compliance within the grace period afforded
by Treasury Regulation 1.817-5. 6.2. Without limiting their obligations under
Section 6.1 above, the Fund represents and warrants that the Portfolio will
elect to be qualified as a Regulated Investment Company under Subchapter M of
the Code, that it or its adviser will operate each such Regulated Investment
Company in such a way as to avoid the imposition of any federal taxes, and that
they will maintain such qualification (under Subchapter M or any successor or
similar provision).
6.3. Subject to Sections 6.1 and 6.2, the Company represents that the Contracts
are currently, and at the time of issuance shall be, treated as life insurance
or annuity insurance contracts, under applicable provisions for the Code, and
that it will maintain such treatment, and that it will notify the Fund and the
Underwriter immediately upon having a reasonable basis of believing the
Contracts have ceased to be so treated or that they might not be so treated in
the future. The Company will bear all costs, expenses (including but not limited
to reasonable legal fees) in connection with any issue arising under this
Section 6.3.
ARTICLE VII. POTENTIAL CONFLICTS
7.1. The Fund Board will monitor the Fund for the existence of
any material irreconcilable conflict among the interests of the contract owners
of all separate accounts investing in the Fund. An irreconcilable material
conflict may arise for a variety of reasons, including: (a) an action by any
state insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar action
by insurance, tax, or securities regulatory authorities; (c) an administrative
or judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by Participating Insurance Companies or by variable annuity
contract owners and variable life insurance contract owners; or (f) a decision
by a Participating Insurance Company to disregard the voting instructions of
contract owners. The Fund Board shall promptly inform the Company if it
determines that an irreconcilable material conflict exists and the implications
thereof. A majority of the Fund Board shall consist of persons who are not
"interested" persons of the Fund.
7.2. The Company has reviewed a copy of the Mixed and Shared
Funding Exemptive Order, and in particular, has reviewed the conditions to the
requested relief set forth therein. As set forth in the Mixed and Shared Funding
Exemptive Order, the Company will report any potential or existing conflicts of
which it is aware to the Fund Board. The Company agrees to assist the Fund Board
in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, by providing the Fund Board with all information reasonably
necessary for the Fund Board to consider any issues raised. This includes, but
is not limited to, an obligation by the Company to inform the Fund Board
whenever contractowner voting instructions are disregarded. The Fund Board shall
record in its minutes or other appropriate records, all reports received by it
and all action with regard to a potential or existing conflict. The Company
agrees to carry out the responsibilities described above with a view only to the
interests of contract owners (per condition of SEC order).
7.3. If it is determined by a majority of the Fund Board, or a
majority of its disinterested Directors, that an irreconcilable material
conflict exists, the Company and other Participating Insurance Companies shall,
at their expense and to the extent reasonably practicable (as determined by a
majority of the disinterested Directors), take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, up to and including:
(1) 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 (but not limited to) another Portfolio of the Fund,
or submitting the question 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, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected variable contract owners the option of making such a
change; and (2) establishing a new registered management investment company or
managed separate account.
7.4. If the Company's disregard of voting instructions could
lead to a material irreconcilable conflict with the majority of contractowner
voting instructions, and the Company's judgment represents a minority position
or would preclude a majority vote, the Company may be required, at the Fund's
election, to withdraw the Account's investment in the Fund and terminate this
Agreement with respect to such Account. Any such withdrawal and termination must
take place within 60 days after the Fund gives written notice to the Company
that this provision is being implemented and no charge or penalty will be
imposed as a result of such withdrawal. Until the end of such 60 day period the
Underwriter and Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund.
7.5. If a particular state insurance regulator's decision
applicable to the Company conflicts with the majority of other state insurance
regulators, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement with respect to such Account. Any such withdrawal
and termination must take place within 60 days after the Fund gives written
notice to the Company that this provision is being implemented. Until the end of
such 60 day period the Underwriter and Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this
Agreement, a majority of the disinterested members of the Fund Board shall
determine whether any proposed action adequately remedies any irreconcilable
material conflict, but in no event will the Fund or the Adviser be required to
establish a new funding medium for the Contracts. The Company shall not be
required by Section 7.3 to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of contract owners
materially adversely affected by the irreconcilable material conflict.
7.7. The Company shall at least annually submit to the Fund
Board such reports, materials or data as the Fund Board may reasonably request
so that the Fund Board may fully carry out the duties imposed upon it as
delineated in the Mixed and Shared Funding Exemptive Order, and said reports,
materials and data shall be submitted more frequently if deemed appropriate by
the Fund Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3 (T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on
terms and conditions materially different from those contained in the Mixed and
Shared Funding Exemptive Order, (a) the Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3 (T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.5, 3.6, 7.1, 7.2, 7.3, 7.4,
and 7.5 of this Agreement shall continue in effect only to the extent that terms
and conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
ARTICLE VIII. INDEMNIFICATION
8.1. INDEMNIFICATION BY THE COMPANY
(a) The Company agrees to indemnify and hold harmless the
Fund and the Underwriter, and each of their directors, officers, employees or
agents and each person, if any, who controls, is controlled by, or is under
common control with, the Fund or the Underwriter within the meaning of such
terms under the federal securities laws (collectively, the "indemnified parties"
for purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) or litigation (including reasonable legal and other expenses), to
which the indemnified parties may become subject under any statute, regulation,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements that are related to
the sale, holding, acquisition or distribution of the Shares or the Contracts
and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the Account
registration statement, Account prospectus or Account SAI or
contained in the Account's or Contract's sales literature or
other promotional material (or any amendment or supplement to any
of the foregoing), or arise out of or are based upon the omission
or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances in which they were
made; provided that this agreement to indemnify and hold harmless
shall not apply as to any indemnified party if such statement or
omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished to the
Company by or on behalf of any indemnified party, or approved for
use by or on behalf of any indemnified party for use in the
Account registration statement, Account prospectus or Account SAI
or in the Contract's or Account's sales literature or other
promotional material (or any amendment or supplement to any of
the foregoing) or otherwise for use in connection with the sale,
holding, acquisition or distribution of the Contracts or Fund
shares; or
(ii) arise out of or as a result of statements or representations or
wrongful conduct of the Company or persons under its control,
with respect to the sale, holding, acquisition or distribution of
the Contracts or Fund shares, provided that this agreement to
indemnify and hold harmless shall not apply as to any indemnified
party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of any
indemnified party, or approved for use by or on behalf of any
indemnified party for use in the Account registration statement,
Account prospectus or Account SAI or in the Contract's or
Account's sales literature or other promotional material (or any
amendment or supplement to any of the foregoing) or otherwise for
use in connection with the sale, holding, acquisition or
distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the Fund registration statement,
Fund prospectus, Fund SAI, or sales literature or other
promotional material of the Fund 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 in light
of the circumstances in which they were made, if such statement
or omission was made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the Company
or persons under its control reasonably believed by the Fund, the
Adviser or the Underwriter to be authorized to act on its behalf
under this Agreement; or
(iv) arise as a result of any failure by the Company to provide the
services and furnish the materials or to make any payments under
the terms of this Agreement; or
(v) arise out of any material breach of any covenant, representation
and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach by the Company of
this Agreement;
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) No indemnified party shall be entitled to indemnification
if such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification or due to the breach of any representation,
warranty, and/or covenant made by the indemnified party.
(c) The indemnified parties will promptly notify the Company
of the commencement of any litigation or proceedings against them in connection
with the issuance, sale, holding, acquisition or distribution of the Fund
shares, the Account or the Contracts or the operation of the Fund for which
indemnification may be sought under this section 8.1.
8.2 INDEMNIFICATION BY THE UNDERWRITER
(a) The Underwriter, on its own behalf and on behalf of the
Fund, agrees to indemnify and hold harmless the Company and each of its
directors, officers, employees or agents and each person, if any, who controls,
is controlled by, or is under common control with, the Company within the
meaning of such terms under the federal securities laws (collectively, the
"indemnified parties" for purposes of this Section 8.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter) or litigation (including reasonable
legal and other expenses) to which the indemnified parties may become subject
under any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements that are related to the sale, holding, acquisition or
distribution or the Shares or the Contracts and :
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the Fund
registration statement, Fund prospectus or Fund SAI or sales
literature or other promotional material of the Fund, or the
Underwriter (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made;
provided that this agreement to indemnify and hold harmless shall
not apply as to any indemnified party if such statement or
omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished to the
Underwriter, Adviser or Fund by or on behalf of the Company for
use in the Fund registration statement, Fund prospectus or Fund
SAI or in sales literature or other promotional material of the
Fund or the Underwriter (or any amendment or supplement thereto)
or otherwise for use in connection with the sale, acquisition,
holding or distribution of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations or
wrongful conduct of the Underwriter or the Fund, with respect to
the sale, acquisition, holding or distribution of the Contracts
or Fund shares, provided that this agreement to indemnify and
hold harmless shall not apply as to any indemnified party if such
statement or omission or such alleged statement or omission was
made in reliance upon and in conformity with information
furnished to the Underwriter by or in the Underwriter's sales
literature or other promotional material (or any amendment or
supplement to same) or on behalf of any indemnified party for use
in connection with the sale, holding, acquisition or distribution
of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement of
a material fact contained in an Account registration statement,
Account prospectus, Account, SAI or Contract or Account sales
literature or other promotional material (or any amendment
thereof or supplement thereto), or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statement or statements therein
not misleading in light of the circumstances in which they were
made, if such statement or omission was made in reliance upon and
in conformity with information furnished to the Company by or on
behalf of the Underwriter or the Fund or persons under their
control and reasonably believed by the Company to be authorized
to act on their behalf under this Agreement
(iv) arise as a result of any failure by the Fund or the Underwriter
to provide the services and furnish the materials or to make
payments under the terms of this Agreement or
(v) arise out of or result from any material breach of any covenant,
representation and/or warranty made by the Underwriter or the
Fund in this Agreement or arise out of or result from any other
material breach of this Agreement by the Underwriter or the Fund;
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Underwriter may
otherwise have.
(b) No indemnified party shall be entitled to indemnification
if such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence or reckless disregard of duty by the
party seeking indemnification.
(c) The indemnified parties will promptly notify the
Underwriter of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Contracts or the operation of the
Account for which indemnification may be sought under this section.
(d) In no event shall Underwriter be liable under the
indemnification provisions contained in this Agreement to any indemnified party
with respect to any losses, claims, damages, liabilities or expenses that arise
out of or result from (i) a breach of any representation, warranty, and/or
covenant made by the Company hereunder or by any Participating Insurance Company
under an agreement containing substantially similar representations, warranties
and covenants; (ii) the failure by the Company or any Participating Insurance
Company to maintain its segregated asset account (which invests in any
Portfolio) as a legally and validly established segregated asset account under
applicable state law and as a duly registered unit investment trust under the
provisions of the 1940 Act (unless exempt therefrom); or (iii) the failure by
the Company or any Participating Insurance Company to maintain its variable
annuity or life insurance contracts (with respect to which any Portfolio serves
as an underlying funding vehicle) as annuity contracts or life insurance
contracts under applicable provisions of the Internal Revenue Code.
8.3. INDEMNIFICATION PROCEDURE
Any person obligated to provide indemnification under this
Article VIII ("indemnifying party" for the purpose of this Section 8.3) shall
not be liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification under this
Article VIII ("indemnified party" for the purpose of this Section 8.3) unless
such indemnified party shall have notified the indemnifying party in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
indemnified party (or after such party shall have received notice of such
service on any designated agent), but failure to notify the indemnifying party
of any such claim shall not relieve the indemnifying party from any liability
which it may have to the indemnified party against whom such action is brought
under the indemnification provision of this Article VIII, except to the extent
that the failure to notify results in the failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
failure to give such notice. In case any such action is brought against the
indemnified party, the indemnifying party will be entitled to participate, at
its own expense, in the defense thereof. The indemnifying party also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action (which approval shall not be unreasonably withheld). After
notice from the indemnifying party to the indemnified party of the indemnifying
party's election to assume the defense thereof, the indemnified party shall bear
the fees and expenses of any additional counsel retained by it, and the
indemnifying party will not be liable to such party under this Agreement for any
legal or other expenses subsequently incurred by such party independently in
connection with the defense, unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written
consent, but if settled with such consent or if there be a final judgment for
the plaintiff, the indemnifying party agrees to indemnify the indemnified party
from and against any loss or liability by reason of such settlement or judgment.
A successor by law of a party to this Agreement shall be
entitled to the benefits of the indemnification contained in this Article VIII.
The indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
ARTICLE IX. APPLICABLE LAW
9.1. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of New
York.
9.2. This Agreement shall be subject to the provisions of the
1933, 1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to the Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. TERMINATION
10.1. This Agreement shall terminate as to any Portfolio:
(a) at the option of any party upon 90 days' advance
written notice to the other parties unless otherwise agreed in a separate
written agreement among the parties; or
(b) at the option of the Company or Contract
Distributor if shares of the Portfolio are
not reasonably available to meet the requirements of the Contracts as determined
by the Company; or
(c) at the option of the Fund upon institution of
formal proceedings against the Company by the NASD, the SEC, the insurance
commission of any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the Contracts, the
administration of the Contracts, the operation of the Account, or the purchase
of the Fund shares, which would have a material adverse effect on the Company's
ability to perform its obligations under this Agreement; or
(d) at the option of the Company upon institution of
formal proceedings against the
Fund or the Underwriter by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body, which would have a material
adverse effect on the Fund's or the Underwriter's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company or the Fund, upon
receipt of any necessary regulatory
approvals and/or the vote of the contract owners having an interest in the
Account (or any subaccount) to substitute the shares of another investment
company for the corresponding Portfolio shares of the Fund in accordance with
the terms of the Contracts for which those Portfolio shares had been selected to
serve as the underlying investment media. The Company will give at least 90 days
prior written notice to the Fund of the date of any proposed vote or other
action taken to replace a Portfolio's shares. The Fund will give at least 90
days prior written notice to the Company of the date of any proposed vote or
other action taken to replace a Portfolio's shares; or
(f) at the option of the Company or the Fund upon a
determination by a majority of the
Fund Board, or a majority of the disinterested Fund Board members, that an
irreconcilable material conflict exists among the interests of (i) all contract
owners of variable insurance products of all separate accounts or (ii) the
interests of the Participating Insurance Companies investing in the Fund as
delineated in Article VII of this Agreement; or
(g) at the option of the Company if a Portfolio
ceases to qualify as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, or under any
successor or similar provision, or if the Company reasonably believes that the
Portfolio may fail to so qualify; or
(h) at the option of the Company if the Portfolio
fails to meet the requirements
specified in Article VI hereof; or
(i) at the option of any party to this Agreement,
upon another party's material
breach of any provision of this Agreement; or
(j) at the option of the Company, if it determines
in its sole judgment exercised in
good faith, that either the Fund or the Underwriter has suffered a material
adverse change in its business, operations or financial condition since the date
of this Agreement or is the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations of the
Company as it relates to the selling, administration or maintenance of the
Contracts; or
(k) at the option of the Fund or Underwriter, if the
Fund or Underwriter respectively,
shall determine in its sole judgment exercised in good faith, that the Company
has suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact upon the business
and operations of the Fund or Underwriter; or
(l) at the option of the Fund in the event any of the
Contracts are not issued or sold
in accordance with applicable federal and/or state law in all material respects,
or any Contract no longer qualifies for treatment as an annuity or life
insurance contract, as the case may be, under the Internal Revenue Code.
Termination under this sub-paragraph shall be effective immediately without
advance notice of termination of this Agreement.
10.2. NOTICE REQUIREMENT
(a) In the event that any termination of this
Agreement is based upon the provisions
of Article VII, such prior written notice shall be given in advance of the
effective date of termination as required by such provisions.
(b) In the event that any termination of this
Agreement is based upon the provisions
of Sections 10.1(b) - (d) or 10.1(g) - (i), prompt written notice of the
election to terminate for cause shall be furnished by the terminating party the
Agreement to the non-terminating parties, with said termination to be effective
upon receipt of such notice by the non-terminating parties.
(c) In the event that any termination of this
Agreement is based upon the provisions
of Sections 10.1(j) or 10.1(k), prior written notice of the election to
terminate this Agreement for cause shall be furnished by the terminating party
to the non-terminating parties. Such prior written notice shall be given by the
terminating party this Agreement to the non-terminating parties at least 30 days
before the effective date of termination, provided that such termination will
not be effective if the circumstances giving rise to the notice are cured prior
to the termination date. It shall be in the discretion of the party otherwise
entitled to terminate this Agreement to determine whether any such circumstance
has been sufficiently cured.
10.3. It is understood and agreed that the right to terminate
this Agreement pursuant to Section 10.1(a) may be exercised for any reason or
for no reason.
10.4. EFFECT OF TERMINATION
(a) Notwithstanding any termination of this Agreement
by the Company pursuant to
Section 10.1 of this Agreement, and subject to Section 1.3 of this Agreement,
the Company may require the Fund and the Underwriter to, continue to make
available additional shares of the Fund for so long after the termination of
this Agreement as the Company desires pursuant to the terms and conditions of
this Agreement as provided in paragraph (b) below, for all Contracts in effect
on the effective date of termination of this Agreement (hereinafter referred to
as "Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate investments in the
Portfolio, redeem investments in the Portfolio and/or invest in the Portfolio
upon the making of additional purchase payments under the Existing Contracts.
The parties agree that this Section 10.4 shall not apply to any terminations
under Article VII and the effect of such Article VII terminations shall be
governed by Article VII of this Agreement.
(b) If shares of a Portfolio continue to be made
available after termination of this
Agreement pursuant to this Section 10.4, the provisions of this Agreement shall
remain in effect and thereafter the Fund, the Underwriter, or the Company or
Contract Distributor may terminate the Agreement, as so continued pursuant to
this Section 10.4, upon written notice to the other parties in accordance with
Section 10.2 hereof.
10.5. Except as necessary to implement contractowner initiated
or approved transactions, or as required by state insurance laws or regulations,
the Company shall not redeem Fund shares attributable to the Contracts (as
opposed to Fund shares attributable to the Company's assets held in the
Account), and the Company shall not prevent contract owners from allocating
payments to a Portfolio that was otherwise available under the Contracts, until
90 days after the Company shall have notified the Fund or Underwriter of its
intention to do so. Nothing in this paragraph 10.5 is intended to restrict the
Company's ability to deduct fees and charges associated with the Contracts.
10.6 In the event of any termination of this Agreement with
respect to any Portfolio, the parties agree to cooperate and give reasonable
assistance to one another in taking all necessary and appropriate steps for the
purpose of ensuring that the Account owns no Shares of the Portfolio six months
after such termination, or as soon thereafter as practicable. Such steps may
include combining the affected Account with another Account, substituting other
mutual fund shares for those of the affected Portfolio, or otherwise terminating
participation by the Contracts in the Portfolio.
ARTICLE XI. NOTICES
Any notice shall be deemed duly given only if sent by hand,
evidenced by written receipt, by certified mail, return receipt requested, or by
express mail service, evidenced by written receipt, 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 in accordance with this
Article XI.
If to the Fund:
Premier VIT
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Secretary
If to the Company:
Allianz Life Insurance Company of New York
0000 Xxxxxx Xxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxx, Senior Vice President
If to the Underwriter:
Allianz Global Investors Distributors LLC
0000 Xxxxxxxx Xxxxxx
Legal Department
Attn: Xxxxxxx Xxxx
Email: Xxxxxxx.Xxxx@xxxxxxxxx-xx.xxx
Fax: 000.000.0000
ARTICLE XII. MISCELLANEOUS
12.1. 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 Fund Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
12.2. Subject to law and regulatory authority, each party
hereto shall treat as confidential all information reasonably identified as such
in writing by any other party hereto (including without limitation the names and
addresses of the owners of the Contracts) and, except as contemplated by this
Agreement, shall not disclose, disseminate or utilize such confidential
information until such time as it may come into the public domain without the
express prior written consent of the affected party.
12.3. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate any of the
provisions hereof or otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together shall constitute one and the
same instrument.
12.5. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6. This Agreement shall not be assigned by any party hereto
without the prior written consent of all the parties.
12.7. Each party hereto shall cooperate with each other party
and all appropriate governmental authorities (including without limitation the
SEC, the NASD and state insurance regulators) and shall permit each other and
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. Each party hereto shall immediately notify the other
parties of (i) the issuance by any court or regulatory body of any stop order,
cease and desist order, or other similar order that may affect the business
contemplated by this Agreement, (ii) any request by any regulatory body,
including without limitation the SEC, NASD, or state regulator, for information
relating to such other parties, (iii) the initiation of any investigation or
inquiry (other than routine examination) of the party by any regulatory body,
including without limitation the SEC, NASD, or state regulator relating to this
Agreement or the transactions contemplated hereby, or (iv) any other action or
circumstances that could adversely affect the ability of the party to fulfill
the terms of this Agreement.
12.8. Each party represents that the execution and delivery of
this Agreement and the consummation of the transactions contemplated herein have
been duly authorized by all necessary corporate or trust action, as applicable,
by such party and when so executed and delivered this Agreement will be the
valid and binding obligation of such party enforceable in accordance with its
terms.
12.9. The parties to this Agreement, upon mutual written
agreement, may amend the schedules to this Agreement from time to time to
reflect changes in or relating to the Contracts, the Accounts or the Portfolios
of the Fund, or changes in the laws and regulations affecting the business
contemplated by this Agreement.
12.10 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, that the parties are entitled to under
federal and state laws.
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 as of the date and year first written above.
COMPANY:
Allianz Life Insurance Company of New York
By: /s/ Xxxx Xxxxxx
Xxxx Xxxxxx - Senior Vice President
FUND:
Premier VIT
By: /s/ Xxxxx X. Xxxxxxxx
UNDERWRITER:
Allianz Global Investors Distributors LLC
By: /s/ Xxxxx X. Xxxxx Xx.
SCHEDULE 1
Participation Agreement
By and Among
Premier VIT, Allianz Global Investors Distributors LLC and
Allianz Life Insurance Company of New York
The following separate accounts of Allianz Life Insurance Company of
New York are permitted in accordance with the provisions of this Agreement to
invest in Portfolios of the Fund shown in Schedule 2 with respect to the
Contracts listed below:
NAME OF SEPARATE ACCOUNT(S):
Allianz Life of NY Separate Account C
Date: May 1, 2006
SCHEDULE 2
Participation Agreement
Among
Premier VIT, Allianz Global Investors Distributors LLC and
Allianz Life Insurance Company of New York
The Separate Account(s) shown on Schedule 1 may invest in the following
Portfolios of the Premier VIT:
NAME OF PORTFOLIO(S):
OpCap Mid Cap Portfolio
Date: May 1, 2006
