EXHIBIT 8(f)
Form of Participation Agreement - PIMCO Variable Insurance Trust
PARTICIPATION AGREEMENT
Among
AMERITAS LIFE INSURANCE CORP,
PIMCO VARIABLE INSURANCE TRUST,
and
ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
THIS AGREEMENT, dated as of the 18th day of November, 2005, by and among
Ameritas Life Insurance Corp. (the "Company"), a Nebraska life insurance
company, on its own behalf and on behalf of each segregated asset account of the
Company set forth on Schedule A hereto as may be amended from time to time (each
account hereinafter referred to as the "Account"), PIMCO Variable Insurance
Trust (the "Fund"), a Delaware statutory trust, and Allianz Global Investors
Distributors LLC (the "Underwriter"), a Delaware limited liability company.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance and variable annuity contracts (the
"Variable Insurance Products") to be offered by insurance companies which have
entered into participation agreements with the Fund and Underwriter
("Participating Insurance Companies");
WHEREAS, the shares of beneficial interest of the Fund are divided into several
series of shares, each designated a "Portfolio" and representing the interest in
a particular managed portfolio of securities and other assets;
WHEREAS, the Fund has obtained an order (PIMCO Variable Insurance Trust, et al.,
Investment Company Act Rel. Nos. 22994 (Jan. 7, 1998) (Notice) and 23022 (Feb.
9, 1998)(Order)) from the Securities and Exchange Commission (the "SEC")
granting Participating Insurance Companies and variable annuity and variable
life insurance separate accounts exemptions from the provisions of sections
9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as amended,
(the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, if and to
the extent necessary to permit shares of the Fund to be sold to and held by
variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated life insurance companies (the "Mixed and Shared
Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and shares of the Portfolios are registered under the
Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, Pacific Investment Management Company LLC (the "Adviser"), which serves
as investment adviser to the Fund, is duly registered as an investment adviser
under the federal Investment Advisers Act of 1940, as amended;
WHEREAS, the Company has issued or will issue certain variable life insurance
and/or variable annuity contracts supported wholly or partially by the Account
(the "Contracts"), and said Contracts are listed in Schedule A hereto, as it may
be amended from time to time by mutual written agreement;
WHEREAS, the Account is duly established and maintained as a segregated asset
account, duly established by the Company, on the date shown for such Account on
Schedule A hereto, to set aside and invest assets attributable to the aforesaid
Contracts;
WHEREAS, the Underwriter, which serves as distributor to the Fund, is registered
as a broker dealer with the SEC under the Securities Exchange Act of 1934, as
amended (the "1934 Act"), and is a member in good standing of the National
Association of Securities Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase Administrative Class shares in the Portfolios
listed in Schedule A hereto, as it may be amended from time to time by mutual
written agreement (the "Designated Portfolios") on behalf of the Account to fund
the aforesaid Contracts, and the Underwriter is authorized to sell such shares
to 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
The Fund has granted to the Underwriter exclusive authority to
distribute the Fund's shares, and has agreed to instruct, and has so instructed,
the Underwriter to make available to the Company for purchase on behalf of the
Account Fund shares of those Designated Portfolios selected by the Underwriter.
Pursuant to such authority and instructions, and subject to Article X hereof,
the Underwriter agrees to make available to the Company for purchase on behalf
of the Account, shares of those Designated Portfolios listed on Schedule A to
this Agreement, such purchases to be effected at net asset value in accordance
with Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) Fund
series (other than those listed on Schedule A) in existence now or that may be
established in the future will be made available to the Company only as the
Underwriter may so provide, and (ii) the Board of Trustees of the Fund (the
"Board") may suspend or terminate the offering of Fund shares of any Designated
Portfolio or class thereof, or liquidate any Designated Portfolio or class
thereof, if such action is required by law or by regulatory authorities having
jurisdiction or if, in the sole discretion of the Board acting in good faith,
suspension, termination or liquidation is necessary in the best interests of the
shareholders of such Designated Portfolio.
The Fund shall redeem, at the Company's request, any full or
fractional Designated Portfolio shares held by the Company on behalf of the
Account, such redemptions to be effected at net asset value in accordance with
Section 1.3 of this Agreement. Notwithstanding the foregoing, (i) the Company
shall not redeem Fund shares attributable to Contract owners except in the
circumstances permitted in Section 10.3 of this Agreement, and (ii) the Fund may
delay redemption of Fund shares of any Designated Portfolio to the extent
permitted by the 1940 Act, and any rules, regulations or orders thereunder.
Purchase and Redemption Procedures
The Fund hereby appoints the Company as an agent of
the Fund for the limited purpose of receiving purchase and redemption requests
on behalf of the Account (but not with respect to any Fund shares that may be
held in the general account of the Company) for shares of those Designated
Portfolios made available hereunder, based on allocations of amounts to the
Account or subaccounts thereof under the Contracts and other transactions
relating to the Contracts or the Account. Receipt and acceptance of any such
request (or relevant transactional information therefor) on any day 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 (a "Business Day") by the Company
as such limited agent of the Fund prior to the time that the Fund ordinarily
calculates its net asset value as described from time to time in the Fund
Prospectus (which as of the date of execution of this Agreement is 4:00 p.m.
Eastern Time) shall constitute receipt and acceptance by the Fund on that same
Business Day, provided that the Fund or its designated agent receives notice of
such request by 9:00 a.m. Eastern Time on the next following Business Day. If
the parties to this Agreement intend to participate with each other through the
National Securities Clearing Corporation ("NSCC") networking system, each party
hereto certifies that it or an affiliate has executed and filed with the NSCC
the standard Networking Agreement. Each party agrees to participate with the
other under the terms of the standard Networking Agreement, except as otherwise
agreed in writing.
The Company shall pay for shares of each Designated
Portfolio on the same day that it notifies the Fund of a purchase request for
such shares. Payment for Designated Portfolio shares shall be made in federal
funds transmitted to the Fund by wire to be received by the Fund by 4:00 p.m.
Eastern Time on the Business Day the Fund is notified of the purchase request
for Designated Portfolio shares (which request may be net of redemptions of
shares). If federal funds are not received on time, such funds will be invested,
and Designated Portfolio shares purchased thereby will be issued, as soon as
practicable and the Company shall promptly, upon the Fund's request, reimburse
the Fund for any charges, costs, fees, interest or other expenses incurred by
the Fund in connection with any advances to, or borrowing or overdrafts by, the
Fund, or any similar expenses incurred by the Fund, as a result of portfolio
transactions effected by the Fund based upon such purchase request. Upon receipt
of federal funds so wired, such funds shall cease to be the responsibility of
the Company and shall become the responsibility of the Fund.
Payment for Designated Portfolio shares redeemed by
the Account or the Company shall be made in federal funds transmitted by wire to
the Company or any other designated person on the next Business Day after the
Fund is properly notified of the redemption order of such shares (which order
shall be net of any purchase orders) except that the Fund reserves the right to
redeem Designated Portfolio shares in assets other than cash and to delay
payment of redemption proceeds to the extent permitted under Section 22(e) of
the 1940 Act and any Rules thereunder, and in accordance with the procedures and
policies of the Fund as described in the then current prospectus and/or
statement of additional information ("SAI"). The Fund shall not bear any
responsibility whatsoever for the proper disbursement or crediting of redemption
proceeds by the Company; the Company alone shall be responsible for such action.
Any purchase or redemption request for Designated
Portfolio shares held or to be held in the Company's general account shall be
effected at the net asset value per share next determined after the Fund's
receipt of such request, provided that, in the case of a purchase request,
payment for Fund shares so requested is received by the Fund in federal funds
prior to close of business for determination of such value, as defined from time
to time in the Fund Prospectus.
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) except (i) as necessary to implement Contract owner
initiated or approved transactions, (ii) as required by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"), (iii) upon 45 days
prior written notice to the Fund and the Underwriter, as permitted by an order
of the SEC pursuant to Section 26(c) of the 1940 Act, but only if a substitution
of other securities for the shares of the Designated Portfolios is consistent
with the terms of the Contracts, or (iv) as permitted under the terms of the
Contracts. Upon request, the Company will promptly furnish to the Fund
reasonable assurance that any redemption pursuant to clause (ii) above is a
Legally Required Redemption. Furthermore, except in cases where permitted under
the terms of the Contracts, the Company shall not prevent Contract owners from
allocating payments to a Designated Portfolio that was otherwise available under
the Contracts without first giving the Fund 45 days notice of its intention to
do so.
The Fund shall use its best efforts to make the net asset
value per share for each Designated Portfolio available to the Company by 7:00
p.m. Eastern Time each Business Day, and in any event, as soon as reasonably
practicable after the net asset value per share for such Designated Portfolio is
calculated, and shall calculate such net asset value in accordance with the
Fund's Prospectus. Neither the Fund, any Designated 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 or any other Participating Insurance Company to the Fund
or the Underwriter.
The Fund shall furnish notice (by wire or telephone followed
by written confirmation) to the Company as soon as reasonably practicable of any
income dividends or capital gain distributions payable on any Designated
Portfolio shares. The Company, on its behalf and on behalf of the Account,
hereby elects to receive all such dividends and distributions as are payable on
any Designated Portfolio shares in the form of additional shares of that
Designated Portfolio. The Company reserves the right, on its behalf and on
behalf of the Account, to revoke this election and to receive all such dividends
and capital gain distributions in cash. The Fund shall notify the Company
promptly of the number of Designated Portfolio shares so issued as payment of
such dividends and distributions.
Issuance and transfer of Fund shares shall be by book entry
only. Share certificates will not be issued to the Company or the Account.
Purchase and redemption orders for Fund shares shall be recorded in an
appropriate ledger for the Account or the appropriate subaccount of the Account.
(a)The parties hereto acknowledge that the arrangement
contemplated by this Agreement is not exclusive; the Fund's shares may be sold
to other insurance companies (subject to Section 1.8 hereof) and the cash value
of the Contracts may be invested in other investment companies, provided,
however, that until this Agreement is terminated pursuant to Article X, the
Company shall promote the Designated Portfolios on the same basis as other
funding vehicles available under the Contracts. Funding vehicles other than
those listed on Schedule A to this Agreement may be available for the investment
of the cash value of the Contracts, provided, however, (i) any such vehicle or
series thereof, has investment objectives or policies that are substantially
different from the investment objectives and policies of the Designated
Portfolios available hereunder; (ii) the Company gives the Fund and the
Underwriter 45 days written notice of its intention to make such other
investment vehicle available as a funding vehicle for the Contracts; and (iii)
unless such other investment company was available as a Funding vehicle for the
Contracts prior to the date of this Agreement and the Company has so informed
the Fund and the Underwriter prior to their signing this Agreement, the Fund or
Underwriter consents in writing to the use of such other vehicle, such consent
not to be unreasonably withheld.
The Company shall not, without prior notice to the
Fund (unless otherwise required by applicable law), take any action to operate
the Account as a management investment company under the 1940 Act.
The Company shall not, without prior notice to the
Fund (unless otherwise required by applicable law),
induce Contract owners to change or modify the Fund or change the Fund's
distributor or investment adviser.
(d) The Company shall not, without prior notice to
the Fund, induce Contract owners to vote on any matter submitted for
consideration by the shareholders of the Fund in a manner other than as
recommended by the Board of Trustees of the Fund.
The Company acknowledges that, pursuant to Form 24F-2, the
Fund is not required to pay fees to the SEC for registration of its shares under
the 1933 Act with respect to its shares issued to an Account that is a unit
investment trust that offers interests that are registered under the 1933 Act
and on which a registration fee has been or will be paid to the SEC (a
"Registered Account"). The Company agrees to provide the Fund or its agent each
year within 60 days of the end of the Fund's fiscal year, or when reasonably
requested by the Fund, information as to the number of shares purchased by a
Registered Account and any other Account the interests of which are not
registered under the 0000 Xxx. The Company acknowledges that the Fund intends to
rely on the information so provided.
ARTICLE II. Representations and Warranties
The Fund represents and warrants that (i) the Fund is lawfully
organized and validly existing under the laws of the State of Delaware, (ii) the
Fund is and shall remain registered under the 1940 Act, (iii) the Fund does and
will comply in all material respects with the 1940 Act, (iv) Designated
Portfolio shares sold pursuant to this Agreement are registered under the 1933
Act (to the extent required by that Act) and are duly authorized for issuance,
(v) the Fund shall amend the registration statement for the shares of the
Designated Portfolios under the 1933 Act and the 1940 Act from time to time as
required in order to effect the continuous offering of such shares, and (vi) the
Board has elected for each Designated Portfolio to be taxed as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as
amended (the "Code"). The Fund makes no representations or warranties as to
whether any aspect of the Designated Portfolios' operations, including, but not
limited to, investment policies, fees and expenses, complies with the insurance
laws and other applicable laws of the various states.
The Underwriter represents and warrants that shares of the
Designated Portfolios (i) shall be offered and sold in compliance with
applicable state and federal securities laws, (ii) are offered and sold only to
Participating Insurance Companies and their separate accounts and to persons or
plans that communicate to the Fund that they qualify to purchase shares of the
Designated Portfolios under Section 817(h) of the Code and the regulations
thereunder without impairing the ability of the Account to consider the
portfolio investments of the Designated Portfolios as constituting investments
of the Account for the purpose of satisfying the diversification requirements of
Section 817(h) ("Qualified Persons"), and (iii) are registered and qualified for
sale in accordance with the laws of the various states to the extent required by
applicable law.
Subject to Company's representations and warranties in
Sections 2.5 and 2.6, the Fund represents and warrants that it will invest the
assets of each Designated Portfolio in such a manner as to ensure that the
Contracts will be treated as annuity or life insurance contracts, whichever is
appropriate, under the Code and the regulations issued thereunder (or any
successor provisions). Without limiting the scope of the foregoing, the Fund
represents and warrants that each Designated Portfolio has complied and will
continue to comply with Section 817(h) of the Code and Treasury Regulation
ss.1.817-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, and any amendments or other modifications or successor provisions to
such Section or Regulation. The Fund will make every reasonable effort (a) to
notify the Company immediately upon having a reasonable basis for believing that
a breach of this Section 2.3 has occurred, and (b) in the event of such a
breach, to adequately diversify the Designated Portfolio so as to achieve
compliance within the grace period afforded by Treasury Regulation ss.1.817-5.
The Fund represents and warrants that each Designated
Portfolio is or will be qualified as a Regulated Investment Company under
Subchapter M of the Code, that the Fund will make every reasonable effort to
maintain such qualification (under Subchapter M or any successor or similar
provisions) and that the Fund will notify the Company immediately upon having a
reasonable basis for believing that a Designated Portfolio has ceased to so
qualify or that it might not so qualify in the future.
The Company represents and warrants that the Contracts (a)
are, or prior to issuance will be, registered under the 1933 Act, or (b) are not
registered because they are properly exempt from registration under the 1933 Act
or will be offered exclusively in transactions that are properly exempt from
registration under the 1933 Act. The Company also represents and warrants that
it is an insurance company duly organized and in good standing under applicable
law, that it has legally and validly established the Account prior to any
issuance or sale thereof as a segregated asset account under Nebraska insurance
laws, and that it (a) has registered or, prior to any issuance or sale of the
Contracts, will register the Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a segregated investment account
for the Contracts, or alternatively (b) has not registered the Account in proper
reliance upon an exclusion from registration under the 1940 Act. The Company
further represents and warrants that (i) the Contracts will be issued and sold
in compliance in all material respects with all applicable federal securities
and state securities and insurance laws, (ii) the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements;
(iii) the information provided pursuant to Section 1.8 shall be accurate in all
material respects; and (iv) it and the Account are Qualified Persons. The
Company shall register and qualify the Contracts or interests therein as
securities in accordance with the laws of the various states only if and to the
extent required by applicable law.
The Company represents and warrants that the Contracts are
currently, and at the time of issuance shall be, treated as life insurance or
annuity contracts, under applicable provisions of the Code, and that it will
make every reasonable effort to maintain such treatment, and that it will notify
the Fund and the Underwriter immediately upon having a reasonable basis for
believing the Contracts have ceased to be so treated or that they might not be
so treated in the future. In addition, the Company represents and warrants that
each of its Accounts is a "segregated asset account" and that interests in the
Accounts are offered exclusively through the purchase of or transfer into a
"variable contract" within the meaning of such terms under Section 817 of the
Code and the regulations thereunder. Company will use every reasonable effort to
continue to meet such definitional requirements, and it will notify the Fund and
the Underwriter immediately upon having a reasonable basis for believing that
such requirements have ceased to be met or that they might not be met in the
future.
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 that it will sell and distribute the Fund shares
in accordance with any applicable state and federal securities laws.
The Fund and the Underwriter represent and warrant that all of
their trustees/directors, officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of the Fund are
and shall continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimum coverage as required currently by Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
The Company represents and warrants that all of its directors,
officers, employees, and other individuals/entities employed or controlled by
the Company dealing with the money and/or securities of the Account are covered
by a blanket fidelity bond or similar coverage for the benefit of the Account,
in an amount not less than $5 million. The aforesaid bond includes coverage for
larceny and embezzlement and is issued by a reputable bonding company. The
Company agrees to hold for the benefit of the Fund and to pay to the Fund any
amounts lost from larceny, embezzlement or other events covered by the aforesaid
bond to the extent such amounts properly belong to the Fund pursuant to the
terms of this Agreement. 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.
The Company represents and warrants that it shall comply with
any applicable privacy and notice provisions of 15 U.S.C. xx.xx. 6801-6827 and
any applicable regulations promulgated thereunder (including but not limited to
17 C.F.R. Part 248) as they may be amended.
The Company represents and warrants that it has in place an
anti-money laundering program ("AML program") that does now and will continue to
comply with applicable laws and regulations, including the relevant provisions
of the USA PATRIOT Act (Pub. L. No. 107-56 (2001)) and the regulations issued
thereunder.
The Company represents and warrants that (a) all purchase and
redemption orders with respect to shares of the Designated Portfolios submitted
with respect to a Business Day in accordance with Article I will be received in
good order by the Company prior to the time as of which the net asset value of
the Designated Portfolios' shares is calculated on that Business Day as
disclosed in the Designated Portfolios' prospectuses, as they may be amended
from time to time, and will be processed by the Company in compliance with Rule
22c-1 under the 1940 Act and regulatory interpretations thereof; (b) the Company
has, and will maintain, policies and procedures reasonably designed to monitor
and prevent market timing or excessive trading activity by its customers, (c)
the Company will use its reasonable best efforts to prevent market timing or
excessive trading activity that appears to be in contravention of the Fund's
policies and procedures on market timing or excessive trading as disclosed in
the
Fund's prospectuses, as they may be amended from time to time; (d) the Company
will provide the Fund or its agent with assurances regarding the compliance of
its handling of orders with respect to shares of the Designated Portfolios with
the requirements of Rule 22c-1, regulatory interpretations thereof, and the
Fund's market timing and excessive trading policies upon reasonable request; and
(e) the Company will use its best efforts to cooperate with the Fund or its
agent to implement policies and procedures to prevent market timing and/or
excessive trading in the Designated Portfolios and enforce the market timing and
excessive policies disclosed in the Fund's prospectuses, as they may be amended
from time to time. In compliance with Rule 22c-2 under the 1940 Act, the Company
hereby agrees to (i) provide, promptly upon request by the Fund, directly or
through its agent, the taxpayer identification number of all Contract owners
that purchased, redeemed, transferred, or exchanged shares held through an
Account, and the amount and dates of such shareholder purchases, redemptions,
transfers, and exchanges; and (ii) execute any instructions from the Fund,
directly or through its agent, to restrict or prohibit further purchases or
exchanges of shares of the Fund by a Contract owner who has been identified by
the Fund, directly or through its agent, as having engaged in transactions in
Designated Portfolio shares (directly or through an Account or an account with
another financial intermediary) that violate the policies adopted by the Fund to
prevent market timing or excessive trading activities or prevent other
activities that may dilute the value of the outstanding shares of a Designated
Portfolio. Furthermore, the Company further agrees to either assess any
applicable redemption fees that the Fund has adopted to curtail frequent
trading, or communicate to the Fund or its agent any information necessary for
the Fund or its agent to assess such redemption fees directly against payment of
redemption proceeds.
ARTICLE III. Prospectuses and Proxy Statements; Voting
The Underwriter shall provide the Company with as many copies
of the Fund's current prospectus as the Company may reasonably request. The
Company shall bear the expense of printing copies of the current prospectus for
the Contracts that will be distributed to existing Contract owners, and the
Company shall bear the expense of printing copies of the Fund's prospectus that
are used in connection with offering the Contracts issued by the Company. The
Fund shall bear the expense of printing the Fund's prospectus that will be
distributed to existing Contract owners. If requested by the Company in lieu
thereof, the Fund shall provide such documentation (including a final copy of
the new prospectus in electronic format at the Fund's expense) and other
assistance as is reasonably necessary in order for the Company once each year
(or more frequently if the prospectus for the Fund is amended) to have the
Fund's prospectus printed together in one document with prospectuses of other
funds offered through the Variable Insurance Products. The Fund is responsible
for its share of printing costs for the combined funds prospectus based on
pro-rata page count.
The Underwriter (or the Fund), at its expense, shall provide a
reasonable number of copies of the current SAI for the Fund free of charge to
the Company for itself and for any owner of a Contract who requests such SAI.
The Fund shall provide the Company with information regarding
the Fund's expenses, 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. The Company agrees that it will use such information in
the form provided. The Company shall provide prior written notice of any
proposed modification of such information, which notice will describe in detail
the manner in which the Company proposes to modify the information, and agrees
that it may not modify such information in any way without the prior consent of
the Fund.
The Fund, at its expense, or at the expense of its designee,
shall provide the Company with copies of its proxy material, reports to
shareholders, and other communications to shareholders in such quantity as the
Company shall reasonably require for distributing to Contract owners. In the
event the Company prints the Fund reports to shareholders together in one
document with the reports to shareholders of other funds, the Fund is
responsible for its share of printing costs for the combined funds report based
on pro-rata page count.
The Company shall:
solicit voting instructions from Contract owners;
vote the Fund shares in accordance with instructions
received from Contract owners; and
vote Fund shares for which no instructions have
been received in the same proportion as Fund shares of
such portfolio for which instructions have been received,
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 or to the
extent otherwise required by law. The Company will vote Fund shares held in any
segregated asset account in the same proportion as Fund shares of such portfolio
for which voting instructions have been received from Contract owners, to the
extent permitted by law.
Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in a Designated
Portfolio calculates voting privileges as required by the Shared Funding
Exemptive Order and consistent with any reasonable standards that the Fund may
adopt and provide in writing.
ARTICLE IV. Sales Material and Information
The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee, each piece of sales literature or other promotional
material that the Company develops and in which the Fund (or a Designated
Portfolio thereof) or the Adviser or the Underwriter is named. No such material
shall be used until approved by the Fund or its designee, and the Fund will use
its best efforts for it or its designee to review such sales literature or
promotional material within ten Business Days after receipt of such material.
The Fund or its designee reserves the right to reasonably object to the
continued use of any such sales
literature or other promotional material in which the Fund (or a Designated
Portfolio thereof) or the Adviser or the Underwriter is named, and no such
material shall be used if the Fund or its designee so object.
The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund or
the Adviser or the Underwriter 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 and prospectus or 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 its designee or by the
Underwriter, except with the permission of the Fund or the Underwriter or the
designee of either.
The Fund and the Underwriter, or their designee, shall
furnish, or cause to be furnished, to the Company, each piece of sales
literature or other promotional material that it develops and in which the
Company, and/or its Account, is named. No such material shall be used until
approved by the Company, and the Company will use its best efforts to review
such sales literature or promotional material within ten Business Days after
receipt of such material. The Company reserves the right to reasonably object to
the continued use of any such sales literature or other promotional material in
which the Company and/or its Account is named, and no such material shall be
used if the Company so objects.
The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company, the
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), or SAI for the Contracts, as
such registration statement, prospectus, or SAI may be amended or supplemented
from time to time, or in published reports for the Account which are in the
public domain or approved by the Company for distribution to Contract owners, or
in sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
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 Fund or its shares, promptly after the filing of such
document(s) with the SEC or other regulatory authorities.
The Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), SAIs, 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 or the Account, promptly after
the filing of such document(s) with the SEC or other regulatory authorities. The
Company shall provide to the Fund and the Underwriter any complaints received
from the Contract owners pertaining to the Fund or the Designated Portfolio.
For purposes of this Article IV, the phrase "sales literature
and other promotional materials" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: 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, 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, and registration statements, prospectuses,
SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Fund.
ARTICLE V. Fees and Expenses
Except as otherwise provided herein, no party to this
Agreement shall pay any fee or other compensation to any other party to this
Agreement. Except as otherwise provided herein, all expenses incident to
performance by a party under this Agreement shall be paid by such party.
All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Fund, in
accordance with applicable state laws prior to their sale. 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, proxy materials and reports, setting the prospectus in type, setting
in type and printing the proxy materials and reports to shareholders (including
the costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices required by any federal or state law,
and all taxes on the issuance or transfer of the Fund's shares.
The Company shall bear the expenses of distributing the Fund's
prospectus and reports to owners of Contracts issued by the Company. The Fund
shall bear the expenses of distributing proxy materials related to proxy votes
initiated by the Fund, and the Company shall bear the expenses of distributing
proxy materials related to proxy votes initiated by the Company.
ARTICLE VI. Potential Conflicts
The parties to this Agreement agree that the conditions or
undertakings required by the Mixed and Shared
Funding Exemptive Order that may be imposed on the Company, the Fund and/or the
Underwriter by virtue of such order by the SEC: (i) shall apply only upon the
sale of shares of the Designated Portfolios to variable life insurance separate
accounts (and then only to the extent required under the 1940 Act); (ii) will be
incorporated herein by reference; and (iii) such parties agree to comply with
such conditions and undertakings to the extent applicable to each such party
notwithstanding any provision of this Agreement to the contrary.
If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Mixed and Shared Funding Exemptive Order) on
terms and conditions materially different from those contained in the Mixed and
Shared Funding Exemptive Order, then (a) the parties to this Agreement 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 and 3.6 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 VII. Indemnification
Indemnification By the Company
7.1(a). The Company agrees to indemnify and hold
harmless the Fund and the Underwriter and each of its trustees/directors and
officers, and each person, if any, who controls the Fund or Underwriter within
the meaning of Section 15 of the 1933 Act or who is under common control with
the Underwriter (collectively, the "Indemnified Parties" for purposes of this
Section 7.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or
litigation (including legal and other expenses), to which the Indemnified
Parties may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities or expenses (or
actions in respect thereof) or settlements:
arise out of or are based upon any untrue statement or alleged untrue statements
of any material fact contained in the registration statement, prospectus (which
shall include a written description of a Contract that is not registered under
the 1933 Act), or SAI for the Contracts or contained in the Contracts or sales
literature for the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Company by or on behalf
of the Fund for use in the registration statement, prospectus or SAI for the
Contracts or in the Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the Contracts or
Fund shares; or
arise out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, SAI, or sales literature of the Fund not supplied by the Company or
persons under its control) or wrongful conduct of the Company or its agents or
persons under the Company's authorization or control, with respect to the sale
or distribution of the Contracts or Fund Shares;
or arise out of any untrue statement or alleged untrue statement of a material
fact contained in a registration statement, prospectus, SAI, or sales literature
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 if such a statement
or omission was made in reliance upon information furnished to the Fund by or on
behalf of the Company;
or arise as a result of any material failure by the Company to provide the
services and furnish the materials under the terms of this Agreement (including
a failure, whether unintentional or in good faith or otherwise, to comply with
the qualification requirements specified in Section 2.6 of this Agreement); or
arise out of or result from any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or result from
any other material breach of this Agreement by the Company; as limited by and in
accordance with the provisions of Sections 7.1(b) and 7.1(c) hereof.
7.1(b). The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of its obligations or
duties under this Agreement.
7.1(c). The Company shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against an Indemnified Party, the Company shall be entitled to participate, at
its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
7.1(d). The Indemnified Parties will promptly notify
the Company of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
Indemnification by the Underwriter
7.2(a). The Underwriter 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 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 7.2)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Underwriter) or litigation
(including legal and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law or otherwise, insofar as
such losses, claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements:
arise out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the registration statement or prospectus or
SAI or sales literature of the Fund (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Underwriter or Fund by
or on behalf of the Company for use in the registration statement, prospectus or
SAI for the Fund or in sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or Fund shares;
or arise out of or as a result of statements or representations (other than
statements or representations contained in the registration statement,
prospectus, SAI or sales literature for the Contracts not supplied by the
Underwriter or persons under its control) or wrongful conduct of the Fund or
Underwriter or persons under their control, with respect to the sale or
distribution of the Contracts or Fund shares; or arise out of any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement, prospectus, SAI or sales literature covering the
Contracts, or any amendment thereof or supplement thereto, or the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished to the
Company by or on behalf of the Fund or the Underwriter; or arise as a result of
any failure by the Fund or the Underwriter to provide the services and furnish
the materials under the terms of this Agreement (including a failure of the
Fund, whether unintentional or in good faith or otherwise, to comply with the
diversification and other qualification requirements specified in Sections 2.3
and 2.4 of this Agreement); or arise out of or result from any material breach
of any representation and/or warranty made by the Underwriter in this Agreement
or arise out of or result from any other material breach of this Agreement by
the Underwriter; as limited by and in accordance with the provisions of Sections
7.2(b) and 7.2(c) hereof.
7.2(b). The Underwriter shall not be liable under
this indemnification provision with respect to any
losses, claims, damages, liabilities or litigation to which an Indemnified Party
would otherwise be subject by reason of such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to the Company or
the Account, whichever is applicable.
7.2(c). The Underwriter shall not be liable under
this indemnification provision with respect to any claim
made against an Indemnified Party unless such Indemnified Party shall have
notified the Underwriter in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but failure
to notify the Underwriter of any such claim shall not relieve the Underwriter
from any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Party, the
Underwriter will be entitled to participate, at its own expense, in the defense
thereof. The Underwriter also shall be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action. After notice from
the Underwriter to such party of the Underwriter'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 Underwriter 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 thereof
other than reasonable costs of investigation.
The Company agrees promptly to notify the Underwriter
of the commencement of any litigation or proceedings
against it or any of its officers or directors in connection with the issuance
or sale of the Contracts or the operation of the Account.
Indemnification By the Fund
7.3(a). 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 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 7.3) against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund) or
litigation (including legal and other expenses) to which the Indemnified Parties
may be required to pay or may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, expenses, damages,
liabilities or expenses (or actions in respect thereof) or settlements, are
related to the operations of the Fund and:
arise as a result of any failure by the Fund to provide the services and furnish
the materials under the terms of this Agreement (including a failure, whether
unintentional or in good faith or otherwise, to comply with the diversification
and other qualification requirements specified in Section 2.3 and 2.4 of this
Agreement); or arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement or arise out
of or result from any other material breach of this Agreement by the Fund; as
limited by and in accordance with the provisions of Sections 7.3(b) and 7.3(c)
hereof. The parties acknowledge that the Fund's indemnification obligations
under this Section 7.3 are subject to applicable law.
7.3(b). The Fund shall not be liable under this
indemnification provision with respect to any losses,
claims, damages, liabilities or litigation to which an Indemnified Party would
otherwise be subject by reason of such Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement or to the Company, the Fund, the
Underwriter or the Account, whichever is applicable.
7.3(c). The Fund shall not be liable under this
indemnification provision with respect to any claim made
against an Indemnified Party unless such Indemnified Party shall have notified
the Fund in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure to notify
the Fund of any such claim shall not relieve the Fund from any liability which
it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Fund will be entitled to
participate, at its own expense, in the defense thereof. The Fund also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Fund to such party of the Fund'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 Fund 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
thereof other than reasonable costs of investigation.
7.3(d). The Company and the Underwriter agree
promptly to notify the Fund of the commencement of any
litigation or proceeding against it or any of its respective officers or
directors in connection with the Agreement, the issuance or sale of the
Contracts, the operation of the Account, or the sale or acquisition of shares of
the Fund.
ARTICLE IX. Applicable Law
This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of California.
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, any Mixed and Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith. If, in the future, the Mixed and Shared Funding Exemptive Order
should no longer be necessary under applicable law, then Article VI shall no
longer apply.
ARTICLE X. Termination
This Agreement shall continue in full force and effect until
the first to occur of:
(a) termination by any party, for any reason with respect to some or
all Designated Portfolios, by three (3) months advance written
notice delivered to the other parties; or
(b) termination by the Company by written notice to the Fund and the
Underwriter based upon the Company's determination that shares of
the Fund are not reasonably available to meet the requirements of
the Contracts; or
(c) termination by the Company by written notice to the Fund and the
Underwriter in the event any of the Designated Portfolio's shares
are not registered, issued or sold in accordance with applicable
state and/or federal law or such law precludes the use of such
shares as the underlying investment media of the Contracts issued
or to be issued by the Company; or
(d) termination by the Fund or Underwriter in the event that formal
administrative proceedings are instituted against the Company by
the NASD, the SEC, the Insurance Commissioner or like official 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 operation of any Account, or the purchase of the
Fund's shares; provided, however, that the Fund or Underwriter
determines in its sole judgment exercised in good faith, that any
such administrative proceedings will have a material adverse
effect upon the ability of the Company to perform its obligations
under this Agreement; or
(e) termination by the Company in the event that formal
administrative proceedings are instituted against the Fund or
Underwriter by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body; provided,
however, that the Company determines in its sole judgment
exercised in good faith, that any such administrative proceedings
will have a material adverse effect upon the ability of the Fund
or Underwriter to perform its obligations under this Agreement;
or
(f) termination by the Company by written notice to the Fund and the
Underwriter with respect to any Designated Portfolio in the event
that such Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M or fails to comply with the Section
817(h) diversification requirements specified in Section 2.4
hereof, or if the Company reasonably believes that such Portfolio
may fail to so qualify or comply; or
(g) termination by the Fund or Underwriter by written notice to the
Company in the event that the Contracts fail to meet the
qualifications specified in Section 2.6 hereof; or
(h) termination by either the Fund or the Underwriter by written
notice to the Company, if either one or both of the Fund or the
Underwriter respectively, shall determine, in their sole judgment
exercised in good faith, that the Company has suffered a material
adverse change in its business, operations, financial condition,
or prospects since the date of this Agreement or is the subject
of material adverse publicity; or
(i) termination by the Company by written notice to the Fund and the
Underwriter, if the Company shall determine, in its sole judgment
exercised in good faith, that the Fund, Adviser, or the
Underwriter has suffered a material adverse change in its
business, operations, financial condition or prospects since the
date of this Agreement or is the subject of material adverse
publicity; or
(j) termination by the Fund or the Underwriter by written notice to
the Company, if the Company gives the Fund and the Underwriter
the written notice specified in Section 1.7(a)(ii) hereof and at
the time such notice was given there was no notice of termination
outstanding under any other provision of this Agreement;
provided, however, any termination under this Section 9.1(j)
shall be effective forty-five days after the notice specified in
Section 1.7(a)(ii) was given; or
(k) termination by the Company upon any substitution of the shares of
another investment company or series thereof for shares of a
Designated Portfolio of the Fund in accordance with the terms of
the Contracts, provided that the Company has given at least 45
days prior written notice to the Fund and Underwriter of the date
of substitution; or
(l) termination by the Fund if the Board has decided to (i) refuse to
sell shares of any Designated Portfolio to the Company and/or any
of its Accounts; (ii) suspend or terminate the offering of shares
of any Designated Portfolio; or (iii) dissolve, reorganize,
liquidate, merge or sell all assets of the Fund or any Designated
Portfolio, subject to the provisions of Section 1.1; or
(m) termination by any party in the event that the Fund's Board of
Trustees determines that a material irreconcilable conflict
exists as provided in Article VI.
(a)Notwithstanding any termination of this Agreement, and
except as provided in Section 9.2(b), the Fund and the Underwriter shall, at the
option of the Company, continue, until the one year anniversary from the date of
termination, and from year to year thereafter if deemed appropriate by the Fund
and the Underwriter, to make available additional shares of the Designated
Portfolios pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, based on
instructions from the owners of the Existing Contracts, the Accounts shall be
permitted to reallocate investments in the Designated Portfolios of the Fund and
redeem investments in the Designated Portfolios, and shall be permitted to
invest in the Designated Portfolios in the event that owners of the Existing
Contracts make additional premium payments under the Existing Contracts.
The Company agrees, promptly after any
termination of this Agreement, to take all steps necessary to redeem the
investment of the Accounts in the Designated Portfolios within one year from the
date of termination of the Agreement as provided in Article IX. Such steps shall
include, but not be limited to, obtaining an order pursuant to Section 26(c) of
the 1940 Act to permit the substitution of other securities for the shares of
the Designated Portfolios. The Fund may, in its discretion, permit the Accounts
to continue to invest in the Designated Portfolios beyond such one year
anniversary for an additional year beginning on the first annual anniversary of
the date of termination, and from year to year thereafter; provided that the
Fund agrees in writing to permit the Accounts to continue to invest in the
Designated Portfolios at the beginning of any such year.
(b) In the event (i) the Agreement is t
terminated pursuant to Sections 10.1(g) or 10.1(m), at the option of the Fund or
the Underwriter; or (ii) the one year anniversary of the termination of the
Agreement is reached or, after waiver as provided in Section 9.2(a), such
subsequent anniversary is reached (each of (i) and (ii) referred to as a
"triggering event" and the date of termination as provided in (i) or the date of
such anniversary as provided in (ii) referred to as the "request date"), the
parties agree that such triggering event shall be considered as a request for
immediate redemption of shares of the Designated Portfolios held by the
Accounts, received by the Fund and its agents as of the request date, and the
Fund agrees to process such redemption request in accordance with the 1940 Act
and the regulations thereunder and the Fund's registration statement.
(c) The parties agree that this Section 9.2
shall not apply to any terminations under Article VI and the effect of such
Article VI terminations shall be governed by Article VI of this Agreement. The
parties further agree that, to the extent that all or a portion of the assets of
the Accounts continue to be invested in the Fund or any Designated Portfolio of
the Fund, Articles I, II, VI, VII and VIII will remain in effect after
termination.
Notwithstanding any termination of this Agreement, each
party's obligation under Article VII to indemnify the other parties shall
survive.
ARTICLE X. 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: PIMCO Variable Insurance Trust
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
If to the Company: Ameritas Life Insurance Corp.
0000 "X" Xxxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
If to Underwriter: Allianz Global Investors Distributors LLC
0000 Xxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
ARTICLE XI. Miscellaneous
All persons dealing with the Fund must look solely to the property of the Fund,
and in the case of a series company, the respective Designated Portfolios listed
on Schedule A hereto as though each such Designated Portfolio had separately
contracted with the Company and the Underwriter for the enforcement of any
claims against the Fund. The parties agree that neither the Board, officers,
agents or shareholders of the Fund assume any personal liability or
responsibility for obligations entered into by or on behalf of the Fund.Subject
to the requirements of legal process and regulatory authority, each party hereto
shall treat as confidential the names and addresses of the owners of the
Contracts and all information reasonably identified as confidential in writing
by any other party hereto and, except as permitted by this Agreement, shall not
disclose, disseminate or utilize such names and addresses and other confidential
information without the express written consent of the affected party until such
time as such information has come into the public domain.
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.
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.
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 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.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the Nebraska Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable annuity
operations of the Company are being conducted in a manner consistent with the
Nebraska variable annuity laws and regulations and any other applicable law or
regulations.
The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies,
and obligations, at law or in equity, which the parties hereto are entitled to
under state and federal laws.
This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the
prior written consent of all parties hereto.
The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee copies of the following reports:
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles) filed with any state or
federal regulatory body or otherwise made available to the
public, as soon as practicable and in any event within 90 days
after the end of each fiscal year; and
(b) any registration statement (without exhibits) and financial
reports of the Company filed with the Securities and Exchange
Commission or any state insurance regulatory, as soon as
practicable after the filing thereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified below.
COMPANY: AMERITAS LIFE INSURANCE CORP.
By its authorized officer
By: /S/ XxXxx X. Xxxxxx
--------------------------------------------
Name: XxXxx X. Xxxxxx
--------------------------------------------
Title: President & CEO
--------------------------------------------
Date: 11/18/05
--------------------------------------------
PIMCO VARIABLE INSURANCE TRUST
By its authorized officer
By: /S/ Xxxx Xxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxx
--------------------------------------------
Title: Senior Vice President
--------------------------------------------
Date: 11/21/05
--------------------------------------------
ALLIANZ GLOBAL INVESTORS
DISTRIBUTORS LLC
By its authorized officer
By: /S/ E. Xxxxx Xxxxx, Jr.
--------------------------------------------
Name: E. Xxxxx Xxxxx, Jr
--------------------------------------------
Title: Managing Director and CEO
--------------------------------------------
Date: 11/28/05
--------------------------------------------
Schedule A
PIMCO Variable Insurance Trust Portfolios:
CommodityRealReturn Strategy Portfolio - Administrative Class
Segregated Asset Accounts:
Ameritas Life Insurance Corp. Separate Account LLVA
Product: Ameritas No Load Variable Annuity (6150)
