Xxxxx Fargo Fund Management, LLC
000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
May 1,2002
Principal Life Insurance Company
Ladies and Gentlemen:
This letter relates to the Participation Agreement, dated as of May 1,
2002, among Xxxxx Fargo Variable Trust, Principal Life Insurance Company and
Xxxxxxxx Inc. Capitalized terms, unless otherwise defined herein, have the
meanings assigned to such terms in the Participation Agreement. In the event
that the Trust provides to the Company a daily net asset value per share or
dividend or capital gain distribution rate that subsequently is required to be
restated pursuant to the policies of the Trust or applicable law (an "Error) and
such Error requires the Company to restate Contract unit values or provide
corrected information reports to Contract owners, the Adviser will reimburse the
Company for:
(1) any amount that, as a result of the Error, the Company has paid from
its own resources to make Contract owners whole; and
(2) reasonable administrative costs necessary to correct the Error;
provided, however, that the Adviser shall be under no obligation to
reimburse the Company for costs described in this clause (2) in the
event that the Trust provides notice of the Error to the Company
within five business days from the actual date of the Error.
If this agreement is consistent with your understanding, kindly sign below
and return a signed copy to us.
XXXXX FARGO FUNDS MANAGEMENT, LLC
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Senior Vice President
Agreed to and accepted by:
PRINCIPAL LIFE INSURANCE COMPANY
By: /s/ Xxxxx Xxxxx
Xxxxx Xxxxx
Assistant Director
AMENDMENT
TO
PARTICIPATION AGREEMENT
This amendment (the "Amendment") is made and entered into as of September 3,
2002 by and among Principal Life Insurance Company, an Iowa corporation
("Company"), Xxxxx Fargo Variable Trust, an open-end diversified management
investment company organized under the laws of the State of Delaware (the
"Trust"), and Xxxxxxxx Inc., an Arkansas corporation (the "Underwriter"),
(Trust, Underwriter, Company collectively, the "Parties") in order to modify
that certain Participation Agreement entered into by the Parties as of May 1,
2002 (the "Agreement").
The Parties agree to amend the Agreement as follows:
1. Appendix A of this Agreement is also hereby amended to include the new
Benefit Variable Universal Life (BVUL) product.
3. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect.
Acknowledged and agreed by:
XXXXX FARGO
VARIABLE TRUST
By:/s/ X. Xxxxx Xxxxxxx
Name: X. Xxxxx Xxxxxxx
Title: Secretary
XXXXXXXX INC.
By: /s/ Xxxxxxx X. Xxxxx, Xx.
Name: Xxxxxxx X. Xxxxx, Xx.
Title: Senior Vice President
PRINCIPAL LIFE
INSURANCE COMPANY
By: /s/ Xxxx Xxxxxx
Name: Xxxx Xxxxxx
Title: Assistant Director
Product Management
PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST
And
PRINCIPAL LiFE INSURANCE COMPANY
And
XXXXXXXX INC.
THIS AGREEMENT, made and entered into this 1St day of May, 2002, by and
among Principal Life Insurance Company, an Iowa corporation (the "Company") on
behalf of each separate account of the Company named in Exhibit A to this
Agreement, as may be amended from time to time (each separate account, a
"Separate Account"), and Xxxxx Fargo Variable Trust, an open-end diversified
management investment company organized under the laws of the State of Delaware
(the "Trust"), and Xxxxxxxx Inc., an Arkansas corporation (the "Underwriter").
WHEREAS, the Trust 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 similar
to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several series
of shares, each representing the interest in a particular managed portfolio of
securities and other assets (each, a "Fund"); and
WHEREAS, an order from the U.S. Securities and Exchange Commission (the
"SEC" or "Commission"), dated September 28, 1998 (File No. 812-11158), grants
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
(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 Trust 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 ("Mixed and Shared Funding Order"), and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts under the 1933 Act and named in
Exhibit A to this Agreement, as it may be amended from time to time (the
"Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established by resolution of the Board of Directors
of the Company under the insurance laws of the State of Iowa, to set aside and
invest assets attributable to the Contracts; and
WHEREAS, the Company has registered the Separate Accounts as unit
investment trusts 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");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate Accounts to fund the Contracts, and the
Underwriter is authorized to sell such shares to unit investment trusts such as
the Separate Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, and the Underwriter agree as follows:
ARTICLE I Sale of Trust Shares
1.1. The Underwriter agrees to sell to the Company those shares of the Trust
which the Company orders on behalf of the Separate Accounts, executing such
orders on a daily basis at the net asset value next computed after receipt
and acceptance by the Trust or its designee of the order for the shares of
the Trust. For purposes of this Section 1.1, the Company shall be the
designee of the Trust for receipt of such orders from each Separate Account
and receipt by such designee shall constitute receipt by the Trust;
provided that the Trust receives notice of such order by 8:30 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
relevant Fund calculates its net asset value.
1.2. The Trust 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 Trust
calculates its net asset value pursuant to rules
of the SEC; provided, however, that the Board of Trustees of the Trust
(hereinafter the "Trustees") may refuse to sell shares of any Fund to any
person, or suspend or terminate the offering of shares of any Fund, if such
action is required by law or by regulatory authorities having jurisdiction,
or is, in the sole discretion of the Trustees, acting in good faith and in
light of their fiduciary duties under federal and any applicable state
laws, necessary in the best interests of the shareholders of any Fund.
1.3. The Trust and the Underwriter agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts, and
to qualified pension and retirement plans. No shares of the Trust will be
sold to the general public.
1.4. The Trust and the Underwriter will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, VII, and Section 2.8 of
Article II of this Agreement are in effect to govern such sales.
1.5. The Trust will not accept a purchase order from qualified pension or
retirement plan if such purchase would make the plan shareholder an owner
of 10 percent or more of the assets of a Fund unless such plan executes an
agreement with the Trust governing participation in such Fund that includes
the conditions set forth herein to the extent applicable. A qualified
pension or retirement plan will execute an application containing an
acknowledgment of this condition at the time of its initial purchase of
shares of any Fund.
1.6. The Trust agrees to redeem for cash, upon the Company's request, any full
or fractional shares of the Trust held by the Company, executing such
requests on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the request for
redemption. For purposes of this Section 1.6, the Company shall be the
designee of the Trust for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by
the Trust; provided the Trust receives notice of request for redemption by
9:30 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.
1.7. Each purchase, redemption, and exchange order placed by the Company shall
be placed separately for each Fund and shall not be netted with respect to
any Fund. However, with respect to payment of the purchase price by the
Company and of redemption proceeds by the Trust, the Trust will send one
wire for all redemptions and the Company will transmit one payment for all
purchases in accordance with Section 1.8.
1.8. The Company agrees that purchases and redemptions of Fund shares offered by
the then current prospectus of the Fund shall be made in accordance with
the provisions of such prospectus. The Company agrees that net amounts
available under the Contracts with the numbers listed on Schedule A
attached hereto and incorporated herein by this reference as such Schedule
A may be amended from time to time hereafter by mutual written agreement of
all the parties may be invested in the Funds.
1.9. In the event of purchases, the Company shall pay for shares by 2:00 p.m.
Eastern Time on the next Business Day after an order to purchase the Shares
is deemed to be received in accordance with the provisions of Section 1.1
hereof. In the event of redemptions, the Trust shall pay the redemption
proceeds in accordance with the terms of the then-current prospectus for
the Trust. All such payments shall be in federal funds transmitted by wire.
For purposes of Section 2.4 and Section 2.11, upon receipt by the Trust of
the federal funds so wired, such funds shall cease to be the responsibility
of the Company and shall become the responsibility of the Fund.
1.10.Issuance and transfer of the Trust's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Separate
Account. Purchase and redemption orders for Trust shares will be recorded
in an appropriate title for each Separate Account or the appropriate
subaccount of each Separate Account.
1.11.The Trust shall furnish notice as soon as reasonably practicable to the
Company of any income, dividends, or capital gain distributions payable on
the Trust's shares. The Company hereby elects to receive all such dividends
and distributions as are payable on the Fund shares in the form of
additional shares of that Fund. The Company reserves the right to revoke
this election and to receive all such dividends and distributions in cash.
The Trust shall notify the Company of the number of shares so issued as
payment of such dividends and distributions.
1.12.The Trust shall make the net asset value per share for each Fund 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 7:00 p.m. Eastern Time,
each business day.
ARTICLE II Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act, unless exempt therefrom, 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: (i) it is
an insurance company duly organized and in good standing under applicable
law; (ii) it has legally and validly established each Separate Account as a
segregated asset account under applicable state law and has registered each
Separate Account as a unit investment trust in accordance with the
provisions of the 1940 Act, unless exempt therefrom, to serve as segregated
investment accounts for the Contracts; and (iii) it will maintain such
registration, if required, for so long as any Contracts are outstanding.
The Company shall amend any registration statement under the 1933 Act for
the Contracts and any registration statement under the 1940 Act for the
Separate Accounts from time to time as required in order to effect 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 Article VI hereof, the Company represents that the Contracts are
currently and at the time of issuance will be treated as life insurance,
endowment, or annuity contracts under applicable provisions of the Internal
Revenue Code and that it will maintain such treatment and that it will
notify the Trust and the Underwriter immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or that
they might not be so treated in the future.
2.3. The Company represents that any prospectus offering a Contract that is a
life insurance contract where it is reasonably probable that such Contract
would be a "modified endowment contract," as that term is defined in
Section 7702A of the Internal Revenue Code will identify such Contract as a
modified endowment contract (or policy).
2.4. The Trust represents and warrants that Trust 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 Trust is and shall
remain registered under the 1940 Act for as long as the Trust shares are
sold. The Trust shall amend the registration statement for its shares under
the 1933 and the 1940 Acts from time to time as required in order to effect
the continuous offering of its shares. The Trust shall register and qualify
the shares for sale in accordance with the laws of the various states only
if, and to the extent, deemed advisable by the Trust or the Underwriter.
2.5. The Trust represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, and
that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision). The Trust will notify
the Company immediately upon having a reasonable basis for believing that
it has ceased to so qualify as a Regulated Investment Company or that it
might not so qualify as a Regulated Investment Company in the future.
2.6. The Trust will use its best efforts to comply with any applicable state
insurance laws or regulations, to the extent requested in writing by the
Company, including the furnishing of information not otherwise available to
the Company which is required by state insurance laws to enable the Company
to obtain the authority needed to issue the Contracts in any state
provided, however, that the Trust shall not be required to perform under
this subparagraph if such performance would have a greater than de minimis
negative effect on the Trust and/or other Participating Insurance Company.
2.7. The Trust represents that it is and shall at all times remain in compliance
with the laws of the state of Delaware to the extent required to perform
this Agreement.
2.8. The Trust represents and warrants that to the extent that it decides to
finance distribution expenses pursuant to Rule 1 2b- 1 under the 1940 Act,
the Trust undertakes to have its Board of Trustees, a majority of whom are
not interested persons of the Trust, formulate and approve any plan under
Rule 12b-l ("Rule 12b-l Plan") to finance distribution expenses. The Trust
shall notify the Company immediately upon determining to finance
distribution expenses pursuant to Rule 12b-l.
2.9. The Trust represents that it is lawfully organized and validly existing and
in good standing under the laws of Delaware and that it does and will
comply with applicable provisions of the 1940 Act.
2.10.The Trust represents and warrants that it and all of its trustees,
officers, employees and other individuals/entities having access to the
funds and/or securities of the Trust are and continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit of
the Trust in an amount not less than the minimal coverage as required
currently by Rule 17g-l 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.
2.11.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 Trust's
shares in accordance with all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 1940 Act.
2.12.The Underwriter represents and warrants that the Trust's investment
manager. Xxxxx Fargo Bank, is exempt from registration as an investment
adviser under all applicable federal and state securities laws and that the
investment manager will perform its obligations to the Trust in accordance
with any applicable state and federal securities laws.
ARTICLE III Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company at least one (1) complete copy of
all SEC registration statements, the Trust's current prospectus, reports,
any preliminary and final proxy material, and all amendments to any of the
foregoing that relate to the Trust contemporaneously with the filing of
such documentation with the SEC or other regulatory authority. The Trust
shall provide such documentation including a final copy of a current
prospectus in a camera ready copy at the Trust's expense, and other
assistance as is reasonably necessary in order for the Company at least
annually (or more frequently if the Trust's prospectus is amended more
frequently) to have the new prospectus for the Contracts and the Trust's
new prospectus printed together in one document. The trust shall provide
such copies to the Company in a timely manner so as to enable the Company
to print and distribute such materials within the time required by law. The
Underwriter will provide the Company with a complete copy of an application
to the SEC for exemptive or approval orders or any requests to the SEC
staff for "no-action" positions (or similar filings with other regulatory
agencies) that relate in any way to this Agreement prior to their being
filed. Where appropriate, the Underwriter will provide the Company the
opportunity to comment on the proposed filing.
3.2. The Trust's prospectus shall state that the statement of additional
information for the Trust is available from the Underwriter (or, in the
Trust's discretion, the Prospectus shall state that such statement is
available from the Trust).
3.3. The Trust, at its expense, shall provide the Company with copies of its
proxy material, if any, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably require and
the Company shall bear the costs of distributing them to existing Contract
owners or participants.
3.4. The Trust hereby notifies the Company that it is appropriate to include in
the prospectuses pursuant to which the Contracts are offered disclosure
regarding the potential risks of mixed and shared funding.
3.5. To the extent required by law the Company shall:
(1) solicit voting instructions from Contract owners or participants;
(2) vote the Trust shares held in each Separate Account in accordance
with instructions received from Contract owners or participants;
and
(3) vote Trust shares held in each Separate Account for which no
timely instructions have been received, in the same proportion as
Trust shares of such Fund for which instructions have been
received from the Company's Contract owners or participants;
for so long as and to the extent that the 1940 Act requires pass-through
voting privileges for variable contract owners. The Company reserves the
right to vote Trust 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 Trust calculates voting privileges in a manner
consistent with other Participating Insurance Companies and as required by
the Mixed and Shared Funding Order. The Trust will notify the Company of
any changes of interpretation or amendment to the Mixed and Shared Funding
Order.
3.6. The Trust will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Trust will either provide for
annual meetings (except to the extent that the Commission may interpret
Section 16 of the 1940 Act not to require such meetings) or comply with
Section 16(c) of the 1940 Act (although the Trust 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) of the 1940 Act. Further, the Trust will act
in accordance with the Commission~ s interpretation of the requirements of
Section 16(a) with respect to periodic elections of Trustees 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 Trust or
the Underwriter, each piece of sales literature or other promotional
material in which the Trust or the Trust's investment manager, sub-advisers
or Underwriter is named, at least five business days prior to its use. No
such material shall be used if the Trust or the Underwriter reasonably
objects in writing to such use within five business days after receipt of
such material.
4.2. The Company represents and agrees that sales literature for the Contracts
prepared by the Company or its affiliates will be consistent with every
law, rule, and regulation of any regulatory agency or self-regulatory
agency that applies to the Contracts or to the sale of the Contracts,
including, but not limited to, NASD Conduct Rule 2210 and IM-22 10-2
thereunder.
4.3. The Company shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust in connection
with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for
the Trust shares as such registration statement and prospectus may be
amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional
material approved by the Trust or by the Underwriter, except with the
permission of the Trust or the Underwriter. The Trust and the Underwriter
agree to respond to any request for approval on a prompt and timely basis.
The Company shall adopt and implement procedures reasonably designed to
ensure that information concerning the Trust, the Underwriter, or any of
their affiliates which is intended for use by brokers or agents selling the
Contracts (i.e., information that is not intended for distribution to
Contract owners or prospective Contract owners) is so used, and neither the
Trust, the Underwriter, nor any of their affiliates shall be liable for any
losses, damages, or expenses relating to the improper use of such broker
only materials by agents of the Company or its affiliates who are
unaffiliated with the Trust or the Underwriter. The parties hereto agree
that this Section 4.3 is not intended to designate nor otherwise imply that
the Company is an underwriter or distributor of the Trust's shares.
4.4. The Trust or 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, its Separate Account, or the
Contracts are named, at least five business days prior to its use. No such
material shall be used if the Company reasonably objects in writing to such
use within five business days after receipt of such material.
4.5. The Trust represents and agrees that sales literature for the Trust
prepared by the Trust or its affiliates in connection with the sale of the
Contracts will be consistent with every law, rule, and Regulation of any
regulatory agency or self regulatory agency that applies to the Trust or to
the sale of Trust shares, including, but not limited to, NASD Conduct Rule
2210 and IM-2210-2 thereunder.
4.6. The Trust and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate Account, or the Contracts other than the information or
representations contained in a registration statement or prospectus for the
Contracts, as such registration statement and prospectus may be amended or
supplemented from time to time, or in published reports for each Separate
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 on a prompt and timely basis. The Trust and the Underwriter shall
mark information produced by or on behalf of the Trust "FOR BROKER USE
ONLY" which is intended for use by brokers or agents selling the Contracts
(i.e., information that is not intended for distribution to Contract owners
or prospective Contract owners) is so used, and neither the Company nor any
of its affiliates shall be liable for any losses, damages, or expenses
arising on account of the use by brokers of such information with third
parties in the event that is not so marked.
4.7. The Trust will provide to the Company and the Company shall provide to the
Trust, at least one complete copy of all registration statements,
prospectuses, statements of additional information, reports, proxy
statements, sales literature and other promotional materials, applications
for exemptions, requests for no-action letters, and all amendments to any
of the above, that relate to the Trust or its shares, or the Company's
Contracts, respectively, contemporaneously with the filing of such document
with the SEC or other regulatory authorities.
4.8. The Company and the Trust shall promptly inform the other of the results of
any examination by the SEC (or other regulatory authorities) that relates
to the Contracts, the Trust or its shares, and the party that was the
subject of the exam shall provide the other party with a copy of relevant
portions of, or a written summary of relevant issues raised by, any
"deficiency letter" or other correspondence or written report regarding any
such examination.
4.9. 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
Conduct Rules, the 1940 Act or the 1933 Act.
0.00.Xx party shall use another party's names, logos, trademarks or service
marks, whether registered or unregistered, without the prior written
consent of such other party, provided that separate consent is not required
hereunder to the extent that such consent to use has previously been given
by a party under section 11.11 of this Agreement.
ARTICLE V Fees and Expenses
5.1. The Trust and Underwriter shall pay no fee or other compensation to the
Company under this Agreement, except subject to Rule 12b-1 Plan to finance
distribution expenses, in which case, 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. Each party, however,
shall, in accordance with the allocation of expenses specified in this
Agreement, reimburse other parties for expenses initially paid by one party
but allocated to another party. In addition, nothing herein shall prevent
the parties hereto from otherwise agreeing to perform, and arranging for
appropriate compensation for, other services relating to the Trust and/or
to the Separate Accounts.
5.2. All expenses incident to performance by the Trust of this Agreement shall
be paid by the Trust to the extent permitted by law. All Trust shares will
be duly authorized for issuance and registered in accordance with
applicable federal law and applicable state law, prior to sale. The Trust
shall bear the expenses for the cost of registration and qualification of
the Trust's shares, preparation and filing of the Trust's prospectus and
registration statement, Trust proxy materials and reports, printing proxy
materials and annual reports for existing Contract owners, setting in type
the Trust's prospectuses, the preparation of all statements and notices
required by any federal or state law, all taxes on the issuance or transfer
of the Trust's shares, and any expenses permitted to be paid or assumed by
the Trust pursuant to any Rule 12b-1 Plan under the 1940 Act duly adopted
by the Trust.
5.3. The Company shall bear the expenses of printing and distributing the Trust
prospectuses in connection with new sales of Contracts and of distributing
the Trust's shareholder reports to Contract owners. The Company shall bear
all expenses associated with the registration, qualification, and filing of
the Contracts under applicable federal securities and state insurance laws;
the cost of preparing, printing, and distributing the Contracts'
prospectuses and statements of additional information; and the cost of
printing and distributing annual individual account statements for Contract
owners as required by state insurance laws.
ARTICLE VI Diversification
6.1. The Trust will at all times invest money from the Contracts 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 Trust will
comply with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1. 817-5, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any amendments
or other modifications to such Section or Regulations or successors
thereto.
ARTICLE VII Potential Conflicts
7.1. If and to the extent that the Trust engages in mixed and shared funding as
contemplated by exemptive relief provided by the SEC and applicable to the
Trust, this Article VII shall apply.
7.2. The Board of Trustees of the Trust (the "Trust Board") will monitor the
Trust for the existence of any material irreconcilable conflict among the
interests of the Contract owners of all separate accounts investing in the
Trust. A material irreconcilable conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Fund are being managed; (e) a difference in voting
instructions given by variable annuity contract owners, variable life
insurance contract owners, and trustees of qualified pension or retirement
plans; (f) a decision by a Participating Insurance Company to disregard the
voting instructions of Contract owners; or (g) if applicable, a decision by
a qualified pension or retirement plan to disregard the voting instructions
of plan participants. The Trust Board shall promptly inform the Company if
it determines that a material irreconcilable conflict exists and the
implications thereof. A majority of the Trust Board shall consist of
Trustees who are not "interested persons" of the Trust.
7.3. The Company has reviewed a copy of the Mixed and Shared Funding Order, and
in particular, has reviewed the conditions to the requested relief set
forth therein. The Company agrees to assist the Trust Board in carrying out
its responsibilities under the Mixed and Shared Funding Order, by providing
the Trust Board with all information reasonably necessary for the Trust
Board to consider any issues raised. This includes, but is not limited to,
an obligation by the Company to inform the Trust Board whenever Contract
owner voting instructions are disregarded. The Trust Board shall record in
its minutes or other appropriate records, all reports received by it and
all action with regard to a conflict.
7.4. If it is determined by a majority of the Trust Board, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees), take whatever
steps are necessary to remedy or eliminate the material irreconcilable
conflict, up to and including: (a) withdrawing the assets allocable to some
or all of the Separate Accounts from the relevant Fund and reinvesting such
assets in a different investment medium, including another Fund, or in the
case of insurance company participants submitting the question as to
whether such segregation should be implemented by a vote of all affected
Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity Contract owners or life insurance Contract
owners of one or more Participating Insurance Companies) that votes in
favor of such segregation, or offering to the affected Contract owners the
option of making such a change; and (b) establishing a new registered
management investment company or managed separate account.
7.5. If the Company's disregard of voting instructions could conflict with the
majority of Contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Trust's election, to withdraw the Separate
Account's investment in the Trust and terminate this Agreement with respect
to such Separate Account, and no charge or penalty will be imposed as a
result of such withdrawal. Any such withdrawal and termination shall take
place within sixty (60) days after written notice is given that this
provision is being implemented, subject to applicable law but in any event
consistent with the terms of the Mixed and Shared Funding Order. Until such
withdrawal and termination is implemented, the Underwriter and the Trust
shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of
disinterested Trustees.
7.6. 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 Separate Account's investment in the
Trust and terminate this Agreement with respect to such Separate Account
within sixty (60) days after the Trust informs the Company of a material
irreconcilable conflict, subject to applicable law but in any event
consistent with the terms of the Mixed and Shared Funding Order. Until such
withdrawal and termination is implemented, the Underwriter and the Trust
shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of
disinterested Trustees.
7.7. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Trust Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict,
but in no event will the Trust or the Underwriter 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 material irreconcilable conflict.
7.8. The Trust Board's determination of the existence of a material
irreconcilable conflict and its implication will be made known in writing
to the Company.
7.9. The Company shall at least annually submit to the Trust Board such reports,
materials, or data as the Trust Board may reasonably request so that the
Trustees may fully carry out the duties imposed upon the Trust Board by the
Mixed and Shared Funding Order, and said reports, materials and data shall
be submitted more frequently if deemed appropriate by the Trust Board.
7.10.If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3(T) 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 Order) on terms
and conditions materially different from those contained in the Mixed and
Shared Funding Order, the Trust and/or the Company, 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.
ARTICLE VIII Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Trust,
the Underwriter, and each of the Trust's or the Underwriter's
directors, officers, employees, or agents and each person, if
any, who controls the Trust 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 are related to the
sale or acquisition of the Trust's shares or the Contracts and:
(1) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the registration statements, prospectuses or statements of
additional information for the Contracts or contained in the
Contracts, or sales literature or other promotional material
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 in light of the
circumstances in which they were made; provided that this
agreement to indemnify shall not apply as to any indemnified
party if such statement or omission or such alleged
statement or omission was made in reliance upon and in
conformity with information furnished to the Company by or
on behalf of the Trust or Underwriter for use in the
registration statement, prospectus or statement of
additional information for the Contracts, or in the
Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale
of the Contracts or Trust shares; or
(2) out of or as a result of statements or representations by or
on behalf of the Company (other than statements or
representations contained in the Trust registration
statement, Trust prospectus or sales literature or other
promotional material of the Trust not supplied by the
Company or persons under its control) or negligent, illegal
or fraudulent conduct of the Company or persons under its
control, with respect to the sale or distribution of the
Contracts or Trust shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's
registration statement, prospectus, statement of additional
information, or sales literature or other promotional
material of the Trust or any amendment thereof, or
supplement thereto or the omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading
in light of the circumstances in which they were made, if
such a statement or omission was made in reliance upon and
in conformity with information furnished to the Trust by or
on behalf of the Company or persons under its control; or
(4) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of
this Agreement; or
(5) arise out of 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 by the
Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) No party shall be entitled to indemnification by the Company 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 Company of the
commencement of any litigation or proceedings against them in
connection with the issuance or sale of the Trust shares or the
Contracts or the operation of the Trust.
8.2. Indemnification By the Underwriter
(a) The Underwriter agrees to indemnify and hold harmless the Company
and each of its directors, officers, employees, or agents and each
person, if any, who controls 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 are related to the sale or acquisition of the
Trust's shares or the Contracts and:
(1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the registration statement, prospectus, or statement of
additional information for the Trust, or sales literature
or other promotional material of the Trust (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 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 the Trust by or on behalf of the
Company for use in the registration statement, prospectus,
or statement of additional information for the Trust or in
sales literature of the Trust (or any amendment or
supplement thereto) or otherwise for use in connection with
the sale of the Contracts or Trust shares; or
(2) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract or Trust registration statement,
the Contract or Trust prospectus, statement of additional
information, or sales literature or other promotional material
for the Contracts or of the Trust not supplied by the
Underwriter or persons under the control of the Underwriter) or
negligent, illegal or fraudulent conduct of the Underwriter or
persons under the control of the Underwriter, with respect to
the sale or distribution of the Contracts or Trust shares; or
(3) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, statement of additional information, or sales
literature or other promotional material 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 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 persons under the control of the Underwriter; or
(4) arise as a result of any failure by the Underwriter 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
requirements and procedures related thereto specified in
Article VI of this Agreement); or
(5) 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;
except to the extent provided in Sections 8.2(b) and 8.4 hereof This
indemnification shall be in addition to any liability which the Underwriter
may otherwise have.
(b) No party shall be entitled to indemnification by the Underwriter
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 each Separate Account.
8.3. Indemnification By the Trust
(a) The Trust agrees to indemnify and hold harmless the Company and
each of its directors, officers, employees, or agents and each person,
if any, who controls the Company within the meaning of such terms
under the federal securities laws (collectively, the "indemnified
parties" for purposes of this Section 8.3) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Trust), 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 are related to
the operations of the Trust and sale or acquisition of the Trust's
shares and:
(1) arise out of or are based upon any untrue statement or
alleged untrue statement by the Trust or persons under the
control of the Trust of any material fact contained in the
registration statement, prospectus, or statement of
additional information for the Trust, (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; or
(2) arise as a result of any failure by the Trust 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
requirements and procedures related thereto specified in
Article VI of this Agreement); or
(3) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Trust;
except to the extent provided in Sections 8.3(b) and 8.4 hereof This
indemnification shall be in addition to any liability which the Trust may
otherwise have.
(b) No party shall be entitled to indemnification by the Trust 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 Trust of the
commencement of any litigation or proceedings against it in connection
with the issuance or sale of the Contracts or the operation of each
Separate Account.
8.4. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.4) 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 8.4)
unless such indemnified party shall have notified the indemnifying party in
writing promptly 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 approved by 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
cooperate fully with the Company and 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 thereof other than reasonable costs of investigation,
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 is 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 the parties 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 Delaware without
giving effect to conflicts of laws provisions thereof.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934, and
1940 Acts, and the rules, 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 Order)
and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X Termination
10.1.This Agreement shall terminate automatically in the event of its
assignment, unless made with written consent of each party; or:
(a) at the option of any party upon six months advance written notice
to the other parties; or
(b) at the option of the Company if shares of the Funds delineated in
Exhibit B are not reasonably available to meet the requirements of the
Contracts as determined by the Company; or
(c) at the option of the Trust upon institution of formal proceedings
against the Company by the NASD, the SEC. the insurance commission of
any state or any other regulatory body, 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 Trust, or its investment adviser, 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 any of the Trust or Underwriter's or the Trust's
investment adviser's ability to perform its obligations under this
Agreement; or
(e) at the option of the Company or the Trust upon a determination by
a majority of the Trust Board, or a majority of the disinterested
Trustees, that a material irreconcilable 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 Trust as delineated in Article
VII of this Agreement; or
(f) at the option of the Company if the Trust 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 Trust may fail to so qualify; or
(g) at the option of the Company if the Trust fails to meet the
diversification requirements specified in Article VI hereof or if the
Company reasonably believes that the Trust will fail to meet such
requirements; or
(h) at the option of any party to this Agreement, upon another party's
material breach of any provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that either the Trust 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 or the Contracts (including the sale thereof); or
(j) at the option of the Trust or Underwriter, if the Trust 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 Trust or Underwriter; or
(k) subject to the Trust's compliance with Article VI hereof, at the
option of the Trust in the event any of the Contracts are not issued
or sold in accordance with applicable requirements of federal and/or
state law. Termination shall be effective immediately upon such
occurrence without notice.
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 this Agreement for cause
shall be furnished by the party terminating 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 party terminating this Agreement to the
non-terminating parties. Such prior written notice shall be given by
the party terminating this Agreement to the non-terminating parties at
least 30 days before the effective date of termination.
00.0.Xx 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 pursuant to
Section 10.1 of this Agreement and subject to Section 1.3 of this
Agreement, the Company may require the Trust and the Underwriter to
continue to make available additional shares of the Trust 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
Trust, redeem investments in the Trust and/or invest in the Trust upon
the making of additional purchase payments under the Existing
Contracts. The parties agree that this Section 10.4 shall not apply to
any 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 the Trust 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 except for Section
10.1(a) and thereafter the Trust, the Underwriter, or the Company may
terminate the Agreement, as so continued pursuant to this Section
10.4, upon written notice to the other party, such notice to be for a
period that is reasonable under the circumstances but need not be for
more than 90 days.
10.5 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, or (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"). Upon request,
the Company will promptly furnish to the Trust and the Underwriter the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Trust and the Underwriter) to the effect that any
redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the
Contracts, the Company shall not prevent Contract Owners from allocating
payments to a Fund that was otherwise available under the Contracts without
first giving the Trust or the Underwriter 90 days notice of its intention
to do so.
ARTICLE XI Notices
Any notice shall be deemed duly given only if sent by hand, evidenced by
written receipt or by certified mail, return receipt requested, 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. All notices shall be deemed given three business days after the date
received or rejected by the addressee.
If to the Trust: Xxxxx Fargo Variable Trust
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Secretary
Copy: X. Xxxxx Xxxxxxx, Esq.
Vice President & Senior Counsel
Xxxxx Fargo Bank
Legal Department
000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
If to the Company: Principal Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxx, Counsel
If to the Underwriter: Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
ARTICLE XII Miscellaneous
11.1.All persons dealing with the Trust must look solely to the property of the
Trust for the enforcement of any claims against the Trust as neither the
Trustees, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Trust.
11.2.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.
11.3.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.
11.4.This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
11.5.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.
11.6.This Agreement shall not be assigned by any party hereto without the prior
written consent of all the parties.
11.7.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.
11.8.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.
11.9.The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts, the
Separate Accounts or the Funds of the Trust.
11.10. The Trust has filed a Certificate of Trust with the Secretary of State of
The State of Delaware. The Company acknowledges that the obligations of or
arising out of the Trust's Declaration of Trust are not binding upon any of
the Trust's Trustees, officers, employees, agents or shareholders
individually, but are binding solely upon the assets and property of the
Trust in accordance with its proportionate interest hereunder. The Company
further acknowledges that the assets and liabilities of each Fund are
separate and distinct and that the obligations of or arising out of this
instrument are binding solely upon the assets or property of the Fund on
whose behalf the Trust has executed this instrument. The Company also
agrees that the obligations of each Fund hereunder shall be several and not
joint, in accordance with its proportionate interest hereunder, and the
Company agrees not to proceed against any Fund for the obligations of
another Fund.
11.11. Except as otherwise expressly provided in this Agreement, neither the
Trust nor the underwriter nor any affiliate thereof shall use any
trademark, trade name, service mark or logo of the Company or any of its
affiliates, or any variation of any such trademark, trade name, service
mark or logo, without the Company's prior consent, the granting of which
shall be at the Company's sole option. Except as otherwise expressly
provided in this Agreement, neither the Company nor any affiliate thereof
shall use any trademark, trade name, service mark or logo of the Trust or
of the Underwriter, or any variation of any such trademark, trade name,
service mark or logo, without the prior consent of either the Trust or of
the Underwriter, as appropriate, the granting of which shall be at the sole
option of the Trust or of the Underwriter, as applicable.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Xxxxx Fargo Variable Trust
By: /s/ X. Xxxxx Xxxxxxx
Name: X. Xxxxx Xxxxxxx
Title: Secretary
Principal Life Insurance Company
By: /s/ Xxxxx X. House
Name: Xxxxx X. House
Title: Assistant Director
Xxxxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Title: Sr. Vice President
EXHIBIT A
Separate Accounts and Contracts
Subject to the Participation Agreement
Principal Life Insurance Company
Separate Account B
(1) The Principal(R) Variable Annuity
(2) Principal Freedom Variable Annuity
Principal Life Insurance Company
Variable Life Separate Account
(1) PrinFlex Life(R) Variable
Life Insurance
(2) Survivorship Variable
Universal Life Insurance
(3) Flexible Variable Life
Insurance
(4) Principal Variable Universal Life
Accumulator (VUL)
(5) Executive Variable Universal
Life Accumulator (EVUL)
EXHIBIT B.
Funds Subject to the Participation Agreement
Xxxxx Fargo Asset Allocation Fund
Xxxxx Fargo Equity Income Fund
Xxxxx Fargo Large Company Growth Fund