Participation Agreement (PIMCO)
Among
ML LIFE INSURANCE COMPANY OF NEW YORK
PIMCO VARIABLE INSURANCE TRUST,
and
PIMCO FUNDS DISTRIBUTORS LLC
THIS AGREEMENT, dated as of the 3rd day of April, 2000 by and among ML Life Insurance Company
of New York, (the “Company”), a New York 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 business trust, and PIMCO Funds 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 dated February 9, 1998, (File No. 812-10822) 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”);
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 (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 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
1.1 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, 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 and in light of its fiduciary duties under federal and any applicable state
laws, suspension or termination is necessary in the best interests of the shareholders of such
Designated Portfolio.
1.2 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.
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1.3 Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as designee 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 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 designee 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 by
the Fund on that same Business Day, provided that the Fund receives notice of such request by
9:30 a.m. Eastern Time on the next following Business Day.
(b) The Company shall pay for shares of each Designated Portfolio on the same Business
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 (unless the Fund determines and so advises the
Company that sufficient proceeds are available from redemption of shares of other Designated
Portfolios effected pursuant to redemption requests tendered by the Company on behalf of the
Account). 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.
(c) 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 to
be received by the Company by 4:00 p.m. Eastern Time on the same day the Fund is properly
notified of the redemption order of such shares (unless redemption proceeds are to be applied
to the purchase of shares of other Designated Portfolios in accordance with Section 1.3(b) of
this Agreement), except that the Fund reserves the right 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. 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.
1.4 The Fund shall use its best efforts to make the closing 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. In the event the Fund is unable to make the deadline stated herein, it shall
provide additional time for the Company to place orders for the purchase and redemption of shares.
Such additional time shall be equal to the additional time which the Fund takes to make the closing
net asset value available to the Company. Neither the Fund, any Designated Portfolio, the
Underwriter, nor any of their affiliates shall be liable for
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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.
1.5 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.
1.6 Issuance and transfer of Fund shares shall be by book entry only. Stock 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.
1.7 (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. 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, 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.
(b) The Company shall not, without prior notice to
the Underwriter (unless otherwise required by applicable law), take any action to operate the
Account as a management investment company under the 1940 Act.
(c) The Company shall not, without prior notice to the Underwriter (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 (unless otherwise required by
applicable law), 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.
1.8 The Underwriter and the Fund shall sell Fund shares only to Participating Insurance
Companies and their separate accounts and to persons or plans (“Qualified Persons”) that
communicate to the Underwriter and the Fund that they qualify to purchase shares of the Fund under
Section 817(h) of the Internal Revenue Code of 1986, as amended (the “Code”) and the regulations
thereunder without impairing the ability of the Account to consider the portfolio investments of
the Fund as constituting investments of the Account for the purpose of satisfying the
diversification requirements of Section 817(h). The Underwriter and the Fund shall not sell Fund
shares to any insurance company or separate account unless an agreement complying with Article VI
of this Agreement is in effect to govern such sales, to the extent required. The Company hereby
represents and warrants that it and the Account are Qualified Persons. The Fund reserves the right
to cease offering shares of any Designated Portfolio in the discretion of the Fund.
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1.9 The Fund will provide notice of any material error in calculation of net asset value per
share, dividend or capital gain information of a Designated Portfolio as soon as reasonably
practical after discovery thereof. Any such notice will state for each day for which an error
occurred, the incorrect price, the correct price, and the reason for the price change. The Fund
will make the Company and the Account whole for any payments or adjustments to the number of shares
in the Account that are reasonably demonstrated to be required as a result of pricing errors.
ARTICLE II. Representations and Warranties
2.1 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 further represents and warrants that the
Contracts will be issued and sold in compliance in all material respects with all applicable
federal securities and state securities and insurance laws and that the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements. The Company further
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 New York 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 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 deemed advisable by the Company.
2.2 The Fund represents and warrants that Fund shares sold pursuant to this Agreement shall be
registered under the 1933 Act, duly authorized for issuance and sold in compliance with applicable
state and federal securities laws and that the Fund is and shall remain registered under the 0000
Xxx. The Fund shall amend the registration statement for its shares under the 1933 Act and the 1940
Act from time to time as required in order to effect the continuous offering of its shares. The
Fund shall register and qualify the shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Fund or the Underwriter.
2.3
The Fund may make payments to finance distribution expenses pursuant to Rule 12b-1 under
the 1940 Act. Prior to financing distribution expenses pursuant to
Rule 12b-1, the Fund will have
the Board, a majority of whom are not interested persons of the Fund, formulate and approve a plan
pursuant to Rule 12b-1 under the 1940 Act to finance distribution expenses.
2.4 The Fund and Underwriter represent that the Fund’s investment policies, fees, and expenses
are and shall at all times remain in compliance with applicable state securities laws, if any, and
the Fund and Underwriter represent that their respective operations are and shall at all times
remain in material compliance with applicable state securities laws to the extent required to
perform this Agreement. The Fund and Underwriter also represent that the Fund will comply with any
additional state insurance law restrictions, as provided in writing by the Company to the Fund,
including the furnishing of information not otherwise available to the Company which is required by
state insurance law to enable the Company to obtain the authority needed to issue the Contracts in
any applicable state.
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2.5 The Fund represents that it is lawfully organized and validly existing under the laws of
the State of Delaware and that it does and will comply in all material respects with the 1940 Act.
2.6 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.
2.7 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.
2.8 The Company represents and warrants that it will maintain a blanket fidelity bond or
similar coverage issued by a reputable insurance company in an amount appropriate to the Company’s
obligations under this Agreement.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1 The Underwriter shall provide the
Company with as many copies of the Fund’s current prospectus (describing only the Designated
Portfolios listed on Schedule A) or, to the extent permitted, the Fund’s profiles as the Company
may reasonably request. The Fund shall bear the expense of printing copies of the current
prospectus and profiles 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 and profiles that
are used in connection with offering the Contracts issued by the Company. If requested by the
Company in lieu thereof, the Fund shall provide such documentation (including a final copy of the
new prospectus on diskette 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 prospectus for the Contracts and the Fund’s prospectus or profile printed
together in one document (the payment of such printing costs to be governed by the provisions of
Section 5.3 of this Agreement).
3.2 The Fund’s prospectus shall state that the current Statement of Additional Information
(“SAI”) for the Fund is available, and the Underwriter (or the Fund), at its expense, shall provide
a reasonable number of copies of such SAI free of charge to the Company for itself and for any
owner of a Contract who requests such SAI.
3.3 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 shall provide prior written
notice of any proposed modification of such information, which notice will describe the manner in
which the Company proposes to modify the information, and agrees that it may not modify the
substance of such information without the prior consent of the Fund.
3.4 The Fund, at its expense, 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.
3.5 The Company shall:
(i) solicit voting instructions from Contract owners;
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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.
4.5 The Fund and the Underwriter shall adopt and implement procedures reasonably designed to
ensure that information concerning the Company, any of its affiliates, or the Contracts which is
intended only for use by brokers or agents selling the shares (i.e., information that is not
intended for distribution to shareowners or prospective shareowners) is so used, and neither the
Company nor any of its affiliates shall be liable for any losses, damages, or expenses relating to
the improper use of such broker only materials.
4.6 The Company shall adopt and implement procedures reasonably designed to ensure that
information concerning the Fund which is intended only 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 Fund nor the Underwriter shall be liable
for any losses, damages, or expenses relating to the improper use of such broker only materials.
The parties hereto agree that this section is not intended to designate or otherwise imply that the
Company is an underwriter or distributor of the Fund’s shares.
4.7 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.
4.8 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.
4.9 The Fund will provide the Company with as much notice as is reasonably practicable of any
proxy solicitation for any Designated Portfolio, and of any material change in the Fund’s
registration statement, particularly any change resulting in a change to the registration statement
or prospectus for any Account. The Fund will work with the Company so as to enable the Company to
solicit proxies from Contract owners, or to make changes to its prospectus or registration
statement, in an orderly manner. The Fund will make reasonable efforts to attempt to have changes
affecting Contract prospectuses become effective simultaneously with the annual updates for such
prospectuses.
4.10 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
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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
5.1 The Fund and the Underwriter shall pay no fee or other compensation to the Company under
this Agreement, except that if the Fund or any Portfolio adopts and implements a plan pursuant to
Rule 12b-1 to finance distribution expenses, then the Fund or 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, and such payments will be made out of existing fees otherwise payable to the Underwriter,
past profits of the Underwriter, or other resources available to the Underwriter. Currently, no
such payments are contemplated.
5.2 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.
5.3 With respect to any prospectuses of the Designated Portfolios that are printed in
combination with any one or more Contract prospectus (the “Prospectus Booklet”), the costs of
printing Prospectus Booklets for distribution to existing Contract owners shall be prorated to the
Fund based on (a) the ratio of the number of pages of the prospectuses for the Designated
Portfolios included in the Prospectus Booklet to the number of pages in the Prospectus Booklet as a
whole; and (b) the ratio of the number of Contract owners with Contract value allocated to the
Designated Portfolios to the total number of Contract owners; provided, however, that the
Company shall bear all printing expenses of such combined documents where used for distribution to
prospective purchasers or to owners of existing Contracts not funded by the Fund. The Company shall
bear the expenses of distributing the Fund’s proxy materials and periodic reports to Contract
owners.
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ARTICLE VI. Diversification and Qualification
6.1 The Fund will invest its assets 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 there under (or any successor provisions). Without limiting the scope of the
foregoing, each Designated Portfolio has complied and will continue to comply with Section 817(h)
of the Code and Treasury Regulation §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 Regulations. In
the event of a breach of this Article VI by the Fund, it will take all reasonable steps (a) to
notify the Company of such breach and (b) to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Regulation 1.817-5.
6.2 The Fund represents that it is qualified as a Regulated Investment Company under
Subchapter M of the Code, and that it will maintain such qualification (under Subchapter M or any
successor or similar provisions) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it might not so qualify in
the future. The Fund acknowledges that compliance with Subchapter M is a essential element of
compliance with Section 817(h).
6.3 The Fund shall provide the Company or its designee with reports certifying compliance with
the aforesaid Section 817(h) diversification and Subchapter M qualification requirements upon
request.
6.4 Subject to Section 6.1 and Section 6.2, the Company represents that the Contracts are
currently, and at the time of issuance shall be, treated as life insurance or annuity insurance
contracts, under applicable provisions of the Code, and that it will make every effort to maintain
such treatment, and that it will notify the Fund and the Underwriter immediately upon having a
reasonable basis for believing the Contracts have ceased to be so treated or that they might not be
so treated in the future. The Company agrees that any prospectus offering a contract that is a
“modified endowment contract” as that term is defined in Section 7702A of the Code (or any
successor or similar provision), shall identify such contract as a modified endowment contract.
ARTICLE VII. Potential Conflicts
The following provisions shall apply only upon issuance of the Mixed and Shared Funding Order
and the sale of shares of the Fund to variable life insurance separate accounts, and then only to
the extent required under the 0000 Xxx.
7.1 The Board will monitor the Fund for the existence of any material irreconcilable conflict
between the interests of the Contract owners of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise for a variety of reasons, including: (a) an action by
any state insurance regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities regulatory
authorities; (c) an administrative or judicial decision in any relevant proceeding; (d) the manner
in which the investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance contract owners; or (f)
a decision by an insurer to disregard the voting instructions of contract owners. The Board shall
promptly inform the Company if it determines that an irreconcilable material conflict exists and
the implications thereof.
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7.2 The Company will report any potential or existing conflicts of which it is aware to the
Board. The Company will assist the Board in carrying out its responsibilities under the Mixed and
Shared Funding Exemptive Order, by providing the Board with all information reasonably necessary
for the Board to consider any issues raised. This includes, but is not limited to, an obligation by
the Company to inform the Board whenever Contract owner voting instructions are disregarded.
7.3 If it is determined by a majority of the Board, or a majority of its disinterested
members, that a material irreconcilable conflict exists, the Company and other Participating
Insurance Companies shall, at their expense and to the extent reasonably practicable (as determined
by a majority of the disinterested Board members), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including: (1) withdrawing the assets
allocable to some or all of the separate accounts from the Fund or any Portfolio and reinvesting
such assets in a different investment medium, including (but not limited to) another Portfolio of
the Fund, or submitting the question whether such segregation should be implemented to a vote of
all affected contract owners and, as appropriate, segregating the assets of any appropriate group
(i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one
or more Participating Insurance Companies) that votes in favor of such segregation, or offering to
the affected contract owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account.
7.4 If a material irreconcilable conflict arises because of a decision by the Company to
disregard Contract owner voting instructions and that decision represents a minority position or
would preclude a majority vote, the Company may be required, at the Fund’s election, to withdraw
the Account’s investment in the Fund and terminate this Agreement with respect to each Account;
provided, however, that such withdrawal and termination shall be limited to the extent required by
the foregoing material irreconcilable conflict as determined by a majority of the disinterested
members of the Board. Any such withdrawal and termination must take place within six (6) months
after the Fund gives written notice that this provision is being implemented, and until the end of
that six month period the Fund shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.5 If a material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to the Company conflicts with the majority of other state
regulators, then the Company will withdraw the affected Account’s investment in the Fund and
terminate this Agreement with respect to such Account within six months after the Board informs the
Company in writing that it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six month period, the Fund shall
continue to accept and implement orders by the Company for the purchase (and redemption) of shares
of the Fund.
7.6 For purposes of Section 7.3 through 7.6 of this Agreement, a majority of the disinterested
members of the Board shall determine whether any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the Fund 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 Contract if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable material conflict. In the event
that the Board determines that any proposed action does not adequately remedy any irreconcilable
material conflict, then the Company will withdraw the Account’s investment in the Fund and
terminate this Agreement within six (6) months after the Board informs the Company in writing of
the foregoing determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
- 11 -
7.7 If and to the extent the Mixed and Shared Funding Exemption Order or any amendment thereto
contains terms and conditions different from Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of
this Agreement, then the Fund and/or the Participating Insurance Companies, as appropriate, shall
take such steps as may be necessary to comply with the Mixed and Shared Funding Exemptive Order,
and Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall continue in effect
only to the extent that terms and conditions substantially identical to such Sections are contained
in the Mixed and Shared Funding Exemptive Order or any amendment thereto. 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 Fund and/or the Participating Insurance Companies, as appropriate, shall take such steps as may
be necessary to comply with Rules 6e-2 and 6e-3(T), as amended,
and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.5, 3.6, 7.1., 7.2, 7.3, 7.4, and 7.5 of this
Agreement shall continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1 Indemnification By the Company
8.1 (a). The Company agrees to indemnify and hold harmless the Fund and the Underwriter and
each of their 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 (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 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:
(i) 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
(ii) 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
- 12 -
under the Company’s authorization or control, with respect to the sale or
distribution of the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue statement of a
material fact contained in 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 and in conformity with
information furnished to the Fund by or on behalf of the Company; or
(iv) 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 Article VI of this Agreement); or
(v) 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 8.1(b) and 8.1(c) hereof.
8.1(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.
8.1(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.
- 13 -
8.1(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.
8.2 Indemnification by the Underwriter
8.2(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 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 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:
(i) 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
(ii) 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
(iii) 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
and in conformity with information furnished to the Company by or on behalf of
the Fund or the Underwriter; or
(iv) 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 Article VI of this Agreement); or
- 14 -
(v) 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 8.2(b) and 8.2(c)
hereof.
8.2(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 or 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.
8.2(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.
8.3 Indemnification By the Fund
8.3(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
8.3) 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:
(i) 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 Article VI of
this Agreement); or
- 15 -
(ii) 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; or
(iii) arise out of or result from the materially incorrect or untimely
calculation or reporting of the daily net asset value per share or dividend or
capital gain distribution rate; as limited by and in accordance with the
provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(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.
8.3(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.
8.3(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
9.1 This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of Delaware.
9.2 This Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts, and the
rules and regulations and rulings thereunder, including such exemptions from those statutes, rules
and regulations as the SEC may grant (including, but not limited to, 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 VII shall no longer apply.
- 16 -
ARTICLE X. Termination
| 10.1 | 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 six (6) 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 Article VI 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 Article VI 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, |
- 17 -
| 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 10.1(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 any party in the event that the Fund’s Board of Trustees determines that a material irreconcilable conflict exists as provided in Article VII. | ||
| (m) | at the option of any party upon another party’s failure to cure a material breach of any provision of this Agreement within 30 days after written notice thereof. |
10.2 Notwithstanding any termination of this Agreement, the Fund and the Underwriter shall, at
the option of the Company, continue to make available additional shares of the Fund 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”), unless the
Underwriter requests that the Company seek an order pursuant to Section 26(b) of the 1940 Act to
permit the substitution of other securities for the shares of the Designated Portfolios. The
Underwriter agrees to split the cost of seeking such an order, and the Company agrees that it shall
reasonably cooperate with the Underwriter and seek such an order upon request. Specifically, the
owners of the Existing Contracts may be permitted to reallocate investments in the Fund, redeem
investments in the Fund and/or invest in the Fund upon the making of additional purchase payments
under the Existing Contracts (subject to any such election by the Underwriter). The parties agree
that this Section 10.2 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. The parties further
agree that this Section 10.2 shall not apply to any terminations under Section 10.1(g) of this
Agreement.
10.3 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 Underwriter, as permitted by an order of the SEC pursuant to Section 26(b)
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
- 18 -
(iv) as permitted under the terms of the Contract. Upon request, the Company will promptly furnish
to the Fund and the Underwriter 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 Contacts, the Company shall not prevent Contract owners from allocating payments to a
Portfolio that was otherwise available under the Contracts without first giving the Fund or the
Underwriter 45 days notice of its intention to do so.
10.4 Notwithstanding any termination of this Agreement, each party’s obligation under Article
VIII to indemnify the other parties shall survive.
ARTICLE XI. 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, Xxxxx 000 | ||
| Xxxxxxx Xxxxx, XX 00000 | ||
If to the Company:
|
Xxxxxxx Xxxxx Life Insurance Company of New York | |
| 000 Xxxxxxxx Xxxx Xxxx XXX0X | ||
| Xxxxxxxxxx, XX 00000 | ||
If to Underwriter:
|
PIMCO Funds Distributors LLC | |
| 0000 Xxxxxxxx Xxxxxx | ||
| Xxxxxxxx, XX 00000 |
ARTICLE XII. Miscellaneous
12.1 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.
12.2 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.
12.3 The captions in this Agreement are included for convenience of reference only and in no
way define or delineate any of the provisions hereof or otherwise affect their construction or
effect.
- 19 -
12.4 This Agreement may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
12.5 If any provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be affected thereby.
12.6 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
New York 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 New
York variable annuity laws and regulations and any other applicable law or regulations.
12.7 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.
12.8 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.
12.9 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) containing the Designated Portfolios, 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 containing the Designated Portfolios (without exhibits) and financial reports of the Company containing the Designated Portfolios, filed with the Securities and Exchange Commission or any state insurance regulatory, as soon as practicable after the filing thereof. |
12.10 Except as otherwise expressly provided in this Agreement, neither the Fund nor the
Underwriter, nor any affiliate thereof shall use any trademark, trade name, service xxxx or logo of
the Company or its affiliates, or any variation of any such trademark, trade name, service xxxx or
logo, without the Company’s prior written consent, the granting of which shall be at the Company’s
sole option.
Except as otherwise provided in this Agreement, neither the Company nor any of its affiliates
shall use any trademark, trade name, service xxxx or logo of the Fund or the Underwriter, or any
affiliates thereof, or any variation of any such trademark, trade name, service xxxx or logo,
without the Fund’s or Underwriter’s prior written consent, the granting of which shall be at the
Fund’s or the Underwriter’s sole option.
- 20 -
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.
ML LIFE INSURANCE COMPANY OF NEW YORK:
| By its authorized officer | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | Xxxxx X. Xxxxxxxx | |||||
| Title: | Senior Vice President | |||||
| Date: | ||||||
PIMCO VARIABLE INSURANCE TRUST |
||||||
| By its authorized officer | ||||||
| By: | /s/ Xxxxx X. Xxxxxx | |||||
| Name: | Xxxxx X. Xxxxxx | |||||
| Title: | Chairman | |||||
| Date: | ||||||
PIMCO FUNDS DISTRIBUTORS LLC |
||||||
| By its authorized officer | ||||||
| By: | /s/ Xxxxxx X. Xxxxxx, Xx. | |||||
| Name: | Xxxxxx X. Xxxxxx, Xx. | |||||
| Title: | Executive Vice President | |||||
| Date: | 5/3/00 | |||||
- 21 -
Schedule A
PIMCO Variable Insurance Trust Portfolios:
Total Return Bond Portfolio
Total Return Bond Portfolio
Contracts:
Xxxxxxx Xxxxx Retirement Power
Xxxxxxx Xxxxx Retirement Power
Segregated Asset Accounts:
ML of New York Variable Annuity Separate Account A (established August 14, 1991).
ML of New York Variable Annuity Separate Account A (established August 14, 1991).
