AMENDED and RESTATED FUND PARTICIPATION AGREEMENT
THIS AMENDED and RESTATED FUND PARTICIPATION AGREEMENT is made as of
May 1, 2004, between Access Variable Insurance Trust, an open-end management
investment company organized as an Ohio business trust (the "Trust"), and
Transamerica Financial Life Insurance Company, a life insurance company
organized under the laws of the State of New York (the "Company"), on its own
behalf and on behalf of each segregated asset account of the Company set forth
on Schedule A, as the parties hereto may amend it from time to time (the
"Accounts") (individually, a "Party", and collectively, the "Parties").
W I T N E S S E T H:
WHEREAS, the Trust has registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under the
Investment Company Act of 1940, as amended (the "1940 Act"), and has registered
the offer and sale of its shares ("Shares") under the Securities Act of 1933, as
amended (the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts to be offered by insurance companies that enter into participation
agreements with the Trust (the "Participating Insurance Companies"), qualified
pension and retirement plans outside the separate account context ("Plans"),
unregistered separate accounts, and other persons permitted to hold shares of
the Trust pursuant to Treasury Regulation 1.817-5 ("General Accounts"); and
WHEREAS, the beneficial interest in the Trust may be divided into
several series of Shares, each series representing an interest in a particular
managed portfolio of securities and other assets, and the Trust will make Shares
listed on Schedule A hereto as the Parties hereto may amend from time to time
(each a "Portfolio"; reference herein to the "Trust" includes reference to each
Portfolio, to the extent the context requires) available for purchase by the
Accounts; and
WHEREAS, the Trust has received an order from the SEC granting
Participating Insurance Companies and their separate accounts exemptions from
the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of 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 and
variable life insurance separate accounts of Participating Insurance Companies,
Plans, unregistered separate accounts and General Accounts; (the "Exemptive
Order"); and
WHEREAS, the Company will be the issuer of certain variable annuity
contracts and variable life insurance contracts ("Contracts") as set forth on
Schedule A hereto, as the Parties hereto may amend from time to time, which
Contracts (hereinafter collectively, the "Contracts"), will be registered under
the 1933 Act; and
WHEREAS, the Company will fund the Contracts through the Accounts, each
of which may be divided into two or more subaccounts ("Subaccounts"; reference
herein to an "Account" includes reference to each Subaccount thereof to the
extent the context requires); and
WHEREAS, the Company will serve as the depositor of the Accounts, each
of which is registered as a unit investment trust investment company under the
1940 Act, and the security interests deemed to be issued by the Accounts under
the Contracts will be registered as securities under the 1933 Act; and
WHEREAS, the Company intends to utilize Shares of one or more
Portfolios as an investment vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE I
Sale of Trust Shares
1.1 The Trust shall make Shares of its Portfolios available to the Accounts
at the net asset value of the applicable Portfolio next computed after receipt
of such purchase order by the Trust (or its agent), as established in accordance
with the provisions of the then current prospectus of the Trust. Shares of a
particular Portfolio of the Trust shall be ordered in such quantities and at
such times as determined by the Company to be necessary to meet the requirements
of the Contracts. Notwithstanding anything to the contrary herein, the Trustees
of the Trust (the "Trustees") may refuse to sell Shares of any Portfolio to any
person, or suspend or terminate the offering of Shares of any Portfolio if such
action is required by law or by regulatory authorities having jurisdiction or is
deemed 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, in the
best interests of the shareholders of such Portfolio.
The Parties hereto may agree, from time to time, to add other Portfolios to
provide additional funding media for the Contracts, or to delete, combine, or
modify existing Portfolios, by amending Schedule A hereto. Upon such amendment
to Schedule A, any applicable reference to a Portfolio, the Trust, or its Shares
herein shall include a reference to any such additional Portfolio. Schedule A,
as amended from time to time, is incorporated herein by reference and is a part
hereof.
1.2 The Trust will redeem any full or fractional Shares of any Portfolio
when requested by the Company on behalf of an Account at the net asset value of
the applicable Portfolio next computed after receipt by the Trust (or its agent)
of the request for redemption, as established in accordance with the provisions
of the then current prospectus of the Trust. With respect to payment of the
purchase price by the Company and of redemption proceeds by the Trust, the
Company and the Trust shall net purchase and redemption orders with respect to
each Portfolio and shall transmit one net payment per Portfolio in accordance
with this Section 1.2 and Section 1.4. The Trust shall make payment no later
than 12:00 noon New York time on the same day as the order is placed, to the
extent practicable, but in no event shall payment be delayed for a greater
period than is permitted by the 0000 Xxx.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints the
Company as its agent for the limited purpose of receiving and accepting purchase
and redemption orders resulting from investment in and payments under the
Contracts. Receipt by the Company shall constitute receipt by the Trust provided
that i) such orders are received by the Company in good order prior to the time
the net asset value of each Portfolio is priced in accordance with its
prospectus and ii) the Trust receives notice of such orders by 9:00 a.m. New
York time on the next following Business Day. "Business Day" shall mean any day
on which the New York Stock Exchange is open for regular trading, on which the
Trust calculates the Portfolio's net asset value pursuant to the rules of the
SEC and on which the Company is open for business. Orders received by the Trust
after 9:00 a.m. Eastern time on the next following Business Day will receive the
price next determined after receipt by the Trust.
1.4 The Company shall wire payment for net purchase orders that are
transmitted to the Trust in accordance with Section 1.3 to a custodial agent
designated by the Trust no later than 12:00 noon New York time on the same
Business Day that the Trust receives notice of the order. Payments shall be made
in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust's Shares will be by book entry only.
Stock certificates will not be issued to the Company or the Account. Shares
ordered from the Trust will be recorded in the appropriate title for each
Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish same day notice (by wire or telephone followed
by written confirmation) 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 income dividends and capital gain distributions as are payable
on a Portfolio's Shares in additional Shares of that Portfolio. The Company
reserves the right to revoke this election and to receive all such dividends and
capital gain distributions in cash. The Trust shall notify the Company of the
number of Shares so issued as payment of such dividends and distributions.
1.7 The Trust shall make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 6 p.m. New York time.
1.8 The Company shall use the data provided by the Trust each Business Day
pursuant to Section 1.7 above immediately to calculate Account unit values and
to process transactions that receive that same Business Day's Account unit
values. The Company shall perform such Account processing the same Business Day,
and shall place corresponding orders to purchase or redeem Shares with the Trust
by 9:00 a.m. New York time the following Business Day.
1.9 The Trust agrees that its Shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain Plans,
unregistered separate accounts and General Accounts to the extent permitted by
the Exemptive Order. No Shares of any Portfolio will be sold directly to the
general public. The Company agrees that Trust Shares will be used only for the
purposes of funding the Contracts and Accounts listed in Schedule A, as amended
from time to time.
1.10 The Trust agrees that all Participating Insurance Companies shall have
the obligations and responsibilities regarding pass-through voting and conflicts
of interest corresponding to those contained in Section 2.8 and Article IV of
this Agreement.
1.11 The Trust shall use its best efforts to provide closing net asset
value, dividend and capital gain information on a per-share basis to the Company
on each Business Day. Any material errors in the calculation of net asset value,
dividend and/or capital gain information shall be reported to the Company
immediately upon discovery. Material errors will be corrected in the applicable
Business Day's net asset value per share. The Company will adjust the number of
shares purchased or redeemed for the Accounts to reflect the correct net asset
value per share. The Trust or its service providers will be responsible for the
costs related to any correction except to the extent the Company has caused the
error.
ARTICLE II
Obligations of the Parties
2.1 The Trust shall prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of additional information of the Trust.
The Trust shall bear the costs of registration and qualification of its Shares,
preparation and filing of the documents listed in this Section 2.1 and all taxes
to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At the option of the Company, the Trust (at its expense) shall either
(a) provide the Company with as many copies of the Trust's current prospectus,
annual report, semi-annual report and other shareholder communications,
including any amendments or supplements to any of the foregoing, as the Company
shall reasonably request for Contract owners for whom Shares are held by an
Account; or (b) provide the Company with a camera ready copy of such documents
in a form suitable for printing. The Trust shall provide the Company with a copy
of its statement of additional information in a form suitable for duplication by
the Company. The Trust (at its expense) shall provide the Company with copies of
any Trust-sponsored proxy materials in such quantity as the Company shall
reasonably require for distribution to Contract owners. The Trust shall provide
the materials described in this Section 2.2 within a reasonable time prior to
required printing and distribution of such materials.
2.3 (a) The Trust shall bear the costs of distributing the Trust's
prospectus, statement of additional information, shareholder reports and other
shareholder communications to Contract owners of and applicants for policies for
which the Trust is serving or is to serve as an investment vehicle. The Trust
shall bear the costs of distributing proxy materials (or similar materials such
as voting solicitation instructions) to Contract owners. The Company assumes
sole responsibility for ensuring that such materials are delivered to Contract
owners on a timely basis in accordance with applicable federal and state
securities laws.
(b) If the Company elects to include any materials provided by the Trust,
specifically prospectuses, statements of additional information, shareholder
reports and proxy materials, on its web site or in any other computer or
electronic format, the Company assumes sole responsibility for maintaining such
materials in the form provided by the Trust and for promptly replacing such
materials with all updates provided by the Trust.
2.4 The Company agrees and acknowledges that it has no rights to the name
and xxxx "Access" and that all use of any designation comprised in whole or part
of Access (an "Access Xxxx") under this Agreement shall inure to the benefit of
the Trust. Except as provided in Section 2.5, the Company shall not use any
Access Xxxx on its own behalf or on behalf of the Accounts or Contracts in any
registration statement, advertisement, sales literature or other materials
relating to the Accounts or Contracts without the prior written consent of the
Trust. Upon termination of this Agreement for any reason, the Company shall
cease all use of any Access Xxxx as soon as reasonably practicable.
2.5 (a) The Company shall furnish, or cause to be furnished, to the Trust
or its designee, a copy of each Contract prospectus or statement of additional
information in which the Trust or its investment adviser is named prior to the
filing of such document with the SEC. The Company shall furnish, or shall cause
to be furnished, to the Trust or its designee, each piece of sales literature or
other promotional material, reports, any preliminary and final voting
instruction solicitation materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above in which the Trust or
its investment adviser is named, or which relates to the Accounts or Contracts,
at least fifteen Business Days prior to its use. No such material shall be used
if the Trust or its designee reasonably objects to such use within fifteen
Business Days after receipt of such material.
(b) The Trust 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, the Accounts or the Contracts are named, at least fifteen
Business Days prior to its use. No such material shall be used if the Company or
its designee reasonably objects to such use within fifteen Business Days after
receipt of such material.
2.6 The Company and its affiliates shall not give any information or make
any representations or statements on behalf of the Trust or concerning the Trust
or any of its affiliates or its investment adviser(s) in connection with the
sale of the Contracts other than information or representations contained in and
accurately derived from the registration statement, including the prospectus and
statement of additional information, for the Trust Shares (as such registration
statement, prospectus and statement of additional information may be amended or
supplemented from time to time), reports of the Trust, Trust-sponsored proxy
statements, or in sales literature or other promotional material approved by the
Trust or its designee, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
2.7 The Trust and its affiliates shall not give any information or make any
representations or statements on behalf of the Company or concerning the Company
or any of its affiliates, the Contracts or the Accounts other than information
or representations contained in and accurately derived from the registration
statement, including the prospectus and statement of additional information, for
the Contracts (as such registration statement, prospectus, and statement of
additional information may be amended or supplemented from time to time), or in
materials approved by the Company or its designee for distribution including
sales literature or other promotional materials, except as required by legal
process or regulatory authorities or with the written permission of the Company
or its designee.
2.8 So long as, and to the extent that the Securities and Exchange
Commission interprets the 1940 Act to require pass-through voting privileges for
owners of variable life insurance policies and/or variable annuity contracts,
the Company will provide pass-through voting privileges to Contract owners whose
cash values are invested, through the Accounts, in Shares of the Trust. The
Trust shall require all Participating Insurance Companies to calculate voting
privileges in the same manner and the Company shall be responsible for assuring
that the Accounts calculate voting privileges in the manner established by the
Trust. With respect to each Account, the Company will vote Shares of the Trust
held by the Account and for which no timely voting instructions from
policyowners are received, as well as Shares it owns that are held by that
Account or directly, in the same proportion as those Shares for which timely
voting instructions are received. The Company and its affiliates and agents will
in no way recommend or oppose or interfere with the solicitation of proxies for
Trust Shares held by Contract owners without the prior written consent of the
Trust, which consent may be withheld in the Trust's sole discretion.
2.9 The Company shall notify the Trust of any applicable state insurance
laws that restrict the Portfolios' investments or otherwise affect the operation
of the Trust and shall notify the Trust of any changes in such laws.
2.10 The Company shall adopt and implement procedures reasonably designed
to ensure that information concerning the Trust and its affiliates that is
intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners) ("broker
only materials") is so used, and neither the Trust nor any of its affiliates
shall be liable for any losses, damages or expenses relating to the improper use
of such broker only materials.
2.11 For purposes of Sections 2.6 and 2.7, 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, (e.g.,
on-line networks such as the Internet or other electronic messages), 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 the NASD rules, the 1933 Act or the 0000 Xxx.
2.12 The Trust will immediately notify the Company of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or other
similar order with respect to the Trust's registration statement under the 1933
Act or the Trust prospectus, (ii) any request by the SEC for any amendment to
such registration statement or the Trust prospectus that may affect the offering
of Shares of the Trust, (iii) the initiation of any proceedings for that purpose
or for any other purpose relating to the registration or offering of the Trust's
Shares, or (iv) any other action or circumstances that may prevent the lawful
offer or sale of Shares of any Portfolio in any state or jurisdiction,
including, without limitation, any circumstances in which (a) such Shares are
not registered and, in all material respects, issued and sold in accordance with
applicable state and federal law, or (b) such law precludes the use of such
Shares as an underlying investment medium of the Contracts issued or to be
issued by the Company. The Trust will make every reasonable effort to prevent
the issuance, with respect to any Portfolio, of any such stop order, cease and
desist order or similar order and, if any such order is issued, to obtain the
lifting thereof at the earliest possible time.
2.13 The Company will immediately notify the Trust of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or other
similar order with respect to each Account's registration statement under the
1933 Act relating to the Contracts or each Account prospectus, (ii) any request
by the SEC for any amendment to such registration statement or Account
prospectus that may affect the offering of Shares of the Trust, (iii) the
initiation of any proceedings for that purpose or for any other purpose relating
to the registration or offering of each Account's interests pursuant to the
Contracts, or (iv) any other action or circumstances that may prevent the lawful
offer or sale of said interests in any state or jurisdiction, including, without
limitation, any circumstances in which said interests are not registered and, in
all material respects, issued and sold in accordance with applicable state and
federal law. The Company will make every reasonable effort to prevent the
issuance of any such stop order, cease and desist order or similar order and, if
any such order is issued, to obtain the lifting thereof at the earliest possible
time.
ARTICLE III
Representations and Warranties
3.1 The Company represents and warrants (i) that it is an insurance company
duly organized and in good standing under the laws of the State of New York and
has full corporate power, authority and legal right to execute, deliver and
perform its duties and comply with its obligations under this Agreement, (ii)
that it has legally and validly established and maintained each Account as a
segregated asset account under such law and the regulations thereunder, and
(iii) that the Contracts comply in all material respects with all other
applicable federal and state laws and regulations.
3.2 The Company represents and warrants that (i) each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered and each Account will remain registered as a unit investment trust in
accordance with the provisions of the 1940 Act, (ii) each Account does and will
comply in all material respects with the requirements of the 1940 Act and the
rules thereunder, (iii) each Account's 1933 Act registration statement relating
to the Contracts, together with any amendments thereto, will at all times comply
in all material respects with the requirements of the 1933 Act and the rules
thereunder, (iv) the Company will amend the registration statement for its
Contracts under the 1933 Act and for its Accounts under the 1940 Act from time
to time as required in order to effect the continuous offering of its Contracts
or as may otherwise be required by applicable law, and (v) each Account
prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
3.3 The Company represents and warrants that the Contracts or interests in
the Accounts are or, prior to issuance, will be registered as securities under
the 1933 Act. The Company further represents and warrants that: (i) the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws, and (ii) the sale of the Contracts, and
the allocation of purchase payments under the Contracts to any Portfolio of the
Trust, shall comply in all material respects with federal and state securities
and insurance suitability requirements.
3.4 The Trust represents and warrants (i) that it is duly organized and
validly existing under the laws of the State of Ohio, (ii) that it does and will
comply in all material respects with the requirements of the 1940 Act and the
rules thereunder, (iii) that its 1933 Act registration statement, together with
any amendments thereto, will at all times comply in all material respects with
the requirements of the 1933 Act and rules thereunder, and (iv) that its
Prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
3.5 The Trust represents and warrants that the Trust Shares offered and
sold pursuant to this Agreement shall be registered under the 1933 Act to the
extent required by the 1933 Act and the Trust shall be registered under the 1940
Act to the extent required by the 1940 Act prior to any issuance or sale of such
Shares. The Trust shall amend its registration statement for its shares under
the 1933 Act and itself under the 1940 Act from time to time as required in
order to effect the continuous offering of its Shares. The Trust shall register
and qualify its Shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust.
3.6 The Trust represents and warrants that each Portfolio intends to comply
with the diversification requirements set forth in Section 817(h) of the
Internal Revenue Code of 1986, as amended, (the "Code") and the regulations
thereunder and that the Trust will notify the Company immediately upon having a
reasonable basis for believing that a Portfolio does not so comply or that a
Portfolio might not so comply in the future. In the event of any such
non-compliance, the Trust will take all reasonable steps to adequately diversify
the Portfolio so as to achieve compliance within the grace period afforded by
Section 1.817-5 of the regulations under the Code.
Notwithstanding any other provision of this Agreement, the Company agrees
that if the Internal Revenue Service ("IRS") asserts in writing in connection
with any governmental audit or review of the Company or, to the Company's
knowledge, of any Contract owners or annuitants, insureds or participants under
the Contracts (as appropriate) (collectively, "Participants"), that any
Portfolio has failed to comply with the diversification requirements of Section
817(h) of the Code or the Company otherwise becomes aware of any facts that
could give rise to any claim against the Trust or its affiliates as a result of
such a failure or alleged failure:
(a) the Company shall promptly notify the Trust of such
assertion or potential claim;
(b) the Company shall consult with the Trust as to how to
minimize any liability that may arise as a result of such failure or alleged
failure.
(c) the Company shall use its best efforts to minimize any
liability of the Trust or its affiliates resulting from such failure, including,
without limitation, demonstrating, pursuant to Treasury Regulations Section
1.817-5(a)(2), to the Commissioner of the IRS that such failure was inadvertent;
(d) the Company shall permit the Trust, its affiliates and
their legal and accounting advisors to participate in any conferences,
settlement discussions or other administrative or judicial proceeding or
contests (including judicial appeals thereof) with the IRS, any Participant or
any other claimant regarding any claims that could give rise to liability to the
Trust or its affiliates as a result of such a failure or alleged failure;
provided, however, that the Company will retain control of the conduct of such
conferences discussions, proceedings, contests or appeals;
(e) any written materials to be submitted by the Company to
the IRS, any Participant or any other claimant in connection with any of the
foregoing proceedings or contests (including, without limitation, any such
materials to be submitted to the IRS pursuant to Treasury Regulations Section
1.817-5(a)(2)), (a) shall be provided by the Company to the Trust (together with
any supporting information or analysis) at least ten (10) business days or such
shorter period to which the Parties hereto agree prior to the day on which such
proposed materials are to be submitted, and (b) shall not be submitted by the
Company to any such person without the express written consent of the Trust
which shall not be unreasonably withheld;
(f) the Company shall provide the Trust or its affiliates and
their accounting and legal advisors with such cooperation as the Trust shall
reasonably request (including, without limitation, by permitting the Trust and
its accounting and legal advisors to review the relevant books and records of
the Company) in order to facilitate review by the Trust or its advisors of any
written submissions provided to it pursuant to the preceding clause or its
assessment of the validity or amount of any claim against its arising from such
a failure or alleged failure;
(g) the Company shall not with respect to any claim of the IRS
or any Participant that would give rise to a claim against the Trust or its
affiliates (a) compromise or settle any claim, (b) accept any adjustment on
audit, or (c) forego any allowable administrative or judicial appeals, without
the express written consent of the Trust or its affiliates, which shall not be
unreasonably withheld; provided that the Company shall not be required, after
exhausting all administrative remedies, to appeal any adverse judicial decision
unless the Trust or its affiliates shall have provided an opinion of independent
counsel to the effect that a reasonable basis exists for taking such appeal; and
provided further that the costs of any such appeal shall be borne equally by the
Parties hereto; and
(h) the Trust and its affiliates shall have no liability as a
result of such failure or alleged failure if the Company fails to comply with
any of the foregoing clauses (a) through (g), and such failure could be shown to
have materially contributed to the liability.
Should the Trust or any of its affiliates refuse to give its
written consent to any compromise or settlement of any claim or liability
hereunder, the Company may, in its discretion, authorize the Trust or its
affiliates to act in the name of the Company in, and to control the conduct of,
such conferences, discussions, proceedings, contests or appeals and all
administrative or judicial appeals thereof, and in that event the Trust or its
affiliates shall bear the fees and expenses associated with the conduct of the
proceedings that it is so authorized to control; provided, that in no event
shall the Company have any liability resulting from the Trust's refusal to
accept the proposed settlement or compromise with respect to any failure caused
by the Trust. As used in this Agreement, the term "affiliates" shall have the
same meaning as "affiliated person" as defined in Section 2(a)(3) of the 0000
Xxx.
3.7 The Trust represents that each Portfolio intends to qualify as a
Regulated Investment Company under Subchapter M of the Code and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the Company immediately
upon having a reasonable basis for believing that a Portfolio has ceased to so
qualify or that it might not so qualify in the future.
3.8 The Trust's Shares currently do not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although they may make such payments in the future. To the extent
that the Trust decides to finance distribution expenses for the Shares pursuant
to Rule 12b-1, the Trust undertakes to have a board of trustees, a majority of
whom are not interested persons of the Trust, formulate and approve any plan
under Rule 12b-1 to finance distribution expenses.
3.9 The Trust represents and warrants that all of its trustees, officers,
employees, investment advisers, and other individuals/entities dealing with the
money and/or securities of the Trust are and shall 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-(1) under 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.
3.10 The Company represents and warrants that the Contracts currently are
and will be treated as annuity contracts or life insurance contracts under
applicable provisions of the Code and that it will make every effort to maintain
such treatment; the Company will notify the Trust immediately upon having a
reasonable basis for believing that any of the Contracts have ceased to be so
treated or that they might not be so treated in the future.
3.11 The Company represents and warrants that each Account is a "segregated
asset account" and that interests in each Account are offered exclusively
through the purchase of or transfer into a "variable contract," within the
meaning of such terms under Section 817 of the Code and the regulations
thereunder. The Company will make every effort to continue to meet such
definitional requirements, and it will notify the Trust immediately upon having
a reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
3.12 Each of the Parties represents and warrants that it shall perform its
obligations hereunder in compliance with any applicable state and federal laws.
ARTICLE IV
Potential Conflicts
4.1 The parties acknowledge that the Trust's Shares may be made available
for investment to other Participating Insurance Companies, Plans, unregistered
separate accounts and General Accounts. In such event, the Trustees will monitor
the Trust for the existence of any material irreconcilable conflict between the
interests of the contract owners of all Participating Insurance Companies and
all Plans. 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 owners, variable life insurance policyowners and Trustees of
the Qualified Plans; (f) a decision by an insurer to disregard the voting
instructions of contract owners; or (vii) if applicable, a decision by a Plan to
disregard the voting instructions of Plan participants. The Trustees shall
promptly inform the Company if they determine that an irreconcilable material
conflict exists and the implications thereof.
4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. The Company will assist the
Trustees in carrying out their responsibilities under the Exemptive Order by
providing the Trustees with all information reasonably necessary for the
Trustees to consider any issues raised including, but not limited to,
information as to a decision by the Company to disregard Contract owner voting
instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of Contract owners, the Company shall, in cooperation with
other Participating Insurance Companies whose contract owners are also affected,
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 irreconcilable material conflict, which steps could
include: (a) withdrawing the assets allocable to some or all of the Accounts
from the Trust or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Trust, or submitting the question of whether or not 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
(b) establishing a new registered management investment company or managed
separate account.
4.4 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 Trust's election, to withdraw each affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited
to the extent required to adequately remedy the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. Any such withdrawal and termination must take place within six (6)
months after the Trust gives written notice that this provision is being
implemented. Until the end of such six (6) month period, the Trust shall
continue to accept and implement orders by the Company for the purchase and
redemption of Shares of the applicable Portfolio.
4.5 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 Trust and terminate this Agreement with respect to
such Account within six (6) months after the Trustees inform 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 to adequately remedy the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. Until the end of such six (6) month period, the Trust shall continue
to accept and implement orders by the Company for the purchase and redemption of
Shares of the applicable Portfolio.
4.6 The Company agrees that any remedial action taken by it in resolving
any material irreconcilable conflict will be carried out at its expense and with
a view only to the interests of Contract owners.
4.7 For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Company be required to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six (6)
months after the Trustees inform the Company in writing of the foregoing
determination.
4.8 The Company shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonably request so that the
Trustees may fully carry out the duties imposed upon them by the Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Trustees.
4.9 As of the date of this Agreement, the Trust has received the Exemptive
Order. If and when the Exemptive Order is amended, the parties shall take all
such steps as may be necessary to amend this Agreement to conform with the
provisions and conditions of the Exemptive Order, as amended. In addition, the
parties shall take all such steps as may be necessary to amend this Agreement to
assure compliance with all federal and state laws to the extent any Trust Shares
are to be sold to any Participating Insurance Company, Plan, unregistered
separate account or General Account.
4.10 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 Exemptive Order) on terms and conditions materially different
from those contained in the Exemptive Order, then the Trust 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.
ARTICLE V
Indemnification
5.1 Indemnification By the Company. The Company agrees to indemnify and
hold harmless the Trust, its affiliates and each of its Trustees, officers,
employees and agents and each person, if any, who controls the Trust or any of
its affiliates within the meaning of Section 15 of the 1933 Act (collectively,
the "Trust Indemnified Parties" for purposes of this Article V) against any and
all losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Company) or expenses (including the reasonable
costs of investigating or defending any alleged loss, claim, damage, liability
or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Trust Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise, insofar
as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in a registration
statement or prospectus for the Contracts or in the Contracts themselves or in
advertising or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing) (collectively, "Company Documents" for the
purposes of this Article V), 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 indemnity shall not apply as to any Trust Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and was accurately derived from written information furnished to the
Company or its affiliates by or on behalf of the Trust or its affiliates for use
in Company Documents or otherwise for use in connection with the sale of the
Contracts or Trust Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Trust Documents as defined in Section 5.2(a)) or the negligent or wrongful
conduct of the Company, or persons under its control (including, without
limitation, its employees), in connection with the sale or distribution of the
Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Trust Documents as
defined in Section 5.2(a) or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in reliance upon
and accurately derived from written information furnished to the Trust or its
affiliates by or on behalf of the Company or its affiliates; or
(d) arise out of or result from any failure by the Company to
perform the obligations, provide the services or furnish the materials required
under the terms of this Agreement; or
(e) 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.
5.2 Indemnification By the Trust. The Trust agrees to indemnify and hold
harmless the Company its affiliates and each of its directors, officers,
employees and agents and each person, if any, who controls the Company or any of
its affiliates within the meaning of Section 15 of the 1933 Act (collectively,
the "Company Indemnified Parties" for purposes of this Article V) against any
and all losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Trust) or expenses (including the
reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection
therewith) (collectively, "Losses"), to which the Company Indemnified Parties
may become subject under any statute or regulation, or at common law or
otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the registration
statement or prospectus for the Trust or in advertising or sales literature for
the Trust (or any amendment or supplement to any of the foregoing),
(collectively, "Trust Documents" for the purposes of this Article V), 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 indemnity shall not apply as to any
Company Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately derived from
written information furnished to the Trust or its affiliates by or on behalf of
the Company or its affiliates for use in Trust Documents or otherwise for use in
connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Company Documents) or the negligent or wrongful conduct of the Trust or
persons under its control (including, without limitation, its employees), in
connection with the sale or distribution of the Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Company Documents or
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and accurately derived from
written information furnished to the Company or its affiliates by or on behalf
of the Trust or its affiliates; or
(d) arise out of or result from any failure by the Trust to
perform the obligations, provide the services or furnish the materials required
under the terms of this Agreement; or
(e) 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.
5.3 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any Losses incurred or
assessed against a Trust Indemnified Party or a Company Indemnified Party, as
applicable (as to each, an "Indemnified Party") to the extent the Losses arise
from such Indemnified Party's willful misfeasance, bad faith or negligence in
the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
5.4 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the party or
parties against whom Indemnification is sought (the "Indemnifying Party") in
writing within a reasonable time after the summons, or other first written
notification, giving information of the nature of the claim shall have been
served upon or otherwise received by such Indemnified Party (or after such
Indemnified Party shall have received notice of service upon or other
notification to any designated agent), but failure to notify the Indemnifying
Party of any such claim shall not relieve such Indemnifying Party from any
liability which it may have to the Indemnified Party in the absence of Sections
5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties, the
Indemnifying Party shall be entitled to participate, at its own expense, in the
defense of such action. The Indemnifying Party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the party named in
the action. After notice from the Indemnifying Party to the Indemnified Party of
an election to assume such defense, the Indemnified Party shall cooperate with
the Indemnifying Party and bear the fees and expenses of any additional counsel
retained by it, and the Indemnifying Party will not be liable to the Indemnified
Party under this Agreement for any legal or other expenses subsequently incurred
by such Indemnified Party independently in connection with the defense thereof
other than reasonable costs of investigation.
ARTICLE VI
Confidentiality
6.1 The Trust acknowledges that the identities of the customers of Company
or any of its affiliates (collectively, the "Company Protected Parties" for
purposes of this Article VI), information maintained regarding those customers,
and all computer programs and procedures or other information developed by the
Company Protected Parties or any of their employees or agents in connection with
Company's performance of its duties under this Agreement are the valuable
property of the Company Protected Parties. The Trust agrees that if it comes
into possession of any list or compilation of the identities of or other
information about the Company Protected Parties' customers, or any other
information or property of the Company Protected Parties, other than such
information as may be independently developed or compiled by the Trust from
information supplied to it by the Company Protected Parties' customers who also
maintain accounts directly with the Trust, the Trust will hold such information
or property in confidence and refrain from using, disclosing or distributing any
of such information or other property except: (a) with Company's prior written
consent; or (b) as required by law or judicial process. The Company acknowledges
that the identities of the customers of the Trust or any of its affiliates
(collectively, the "the Trust Protected Parties" for purposes of this Article
VI), information maintained regarding those customers, and all computer programs
and procedures or other information developed by the Trust Protected Parties or
any of their employees or agents in connection with the Trust's performance of
its duties under this Agreement are the valuable property of the Trust Protected
Parties. The Company agrees that if it comes into possession of any list or
compilation of the identities of or other information about the Trust Protected
Parties' customers or any other information or property of the Trust Protected
Parties, other than such information as may be independently developed or
compiled by Company from information supplied to it by the Trust Protected
Parties' customers who also maintain accounts directly with the Company, the
Company will hold such information or property in confidence and refrain from
using, disclosing or distributing any of such information or other property
except: (a) with the Trust's prior written consent; or (b) as required by law or
judicial process. Each party acknowledges that any breach of the agreements in
this Article VI would result in immediate and irreparable harm to the other
parties for which there would be no adequate remedy at law and agree that in the
event of such a breach, the other parties will be entitled to equitable relief
by way of temporary and permanent injunctions, as well as such other relief as
any court of competent jurisdiction deems appropriate.
ARTICLE VII
Termination
7.1 (a) This Agreement may be terminated by either party for any reason by
ninety (90) days advance written notice delivered to the other party.
(b) This Agreement may be terminated by the Company
immediately upon written notice to the Trust with respect to any Portfolio:
(i) based upon the Company's determination that
Shares of such Portfolio are not reasonably available to meet the requirements
of the Contracts; or
(ii) in the event any of the Portfolio's Shares are
not registered, and in all material respects 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
(iii) in the event that such Portfolio ceases to
qualify as a Regulated Investment Company under Subchapter M of the Code or
under any successor or similar provision, or if the Company reasonably believes
that the Trust may fail to so qualify; or
(iv) in the event that such Portfolio fails to meet
the diversification requirements specified in this Agreement.
7.2 Notwithstanding any termination of this Agreement, the Trust shall, at
the option of the Company, continue to make available additional Shares of the
Trust (or any Portfolio) pursuant to the terms and conditions of this Agreement
for all Contracts in effect on the effective date of termination of this
Agreement, provided that the Company continues to pay the costs set forth in
Section 2.3 and meet all obligations of the Company under this Agreement
(treating it as being in full force and effect), and further provided that
Shares of the Trust (or any Portfolio) shall only be required to be made
available with respect to owners of the Contracts for whom Shares are held by an
Account on the effective date of the termination. Such Contract owners will be
permitted to reallocate investments in the Portfolio and/or invest in the
Portfolio upon the making of additional purchase payments under the Contracts.
The provisions of this Section 7.2 shall not apply to any termination pursuant
to Article IV or in the event the Trust determines to liquidate the Portfolio
and end the Portfolio's existence.
7.3 The provisions of Articles V and VI shall survive the termination of
this Agreement, and the provisions of Articles II and IV shall survive the
termination of this Agreement as long as Shares of the Trust are held on behalf
of Contract owners in accordance with Section 7.2.
7.4 This Agreement will terminate as to a Portfolio upon at least ninety
(90) days advance written notice:
(a) at the option of the Trust upon institution of formal
proceedings against the Company by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body if the Trust shall determine,
in its sole judgment exercised in good faith, that the Company has suffered a
material adverse change in its business, operations, financial condition, or
prospects since the date of this Agreement or is the subject of material adverse
publicity; or
(b) at the option of the Company upon institution of formal
proceedings against the Trust, its principal underwriter, or its investment
adviser by the NASD, the SEC, or any state securities or insurance department or
any other regulatory body if the Company shall determine, in its sole judgment
exercised in good faith, that the Trust, its principal underwriter, or its
investment adviser 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
7.5 This Agreement will terminate as to a Portfolio immediately upon prior
written notice which shall be given as soon as possible within twenty-four (24)
hours after the terminating Party learns of the event causing termination to be
required:
(a) at the option of the Trust if the Contracts issued by the
Company cease to qualify as annuity contracts or life insurance contracts under
the Code (other than by reason of the Portfolio's noncompliance with Section
817(h) or Subchapter M of the Code) or if interests in an Account under the
Contracts are not registered, or, in all material respects, are not issued or
sold in accordance with any applicable federal or state law; or
(b) upon another Party's material breach of any provision of
this Agreement.
7.6 The Parties hereto agree to cooperate and give reasonable assistance to
one another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Portfolio after the effective date
of this Agreement's termination with respect to such Shares or, if such
ownership following termination cannot be avoided, that the duration thereof is
as brief as reasonably practicable. Such steps may include, for example,
combining the affected Account with another Account, substituting other
portfolio shares for those of the affected Portfolio, or otherwise terminating
participation by the Contracts in such Portfolio.
ARTICLE VIII
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 Trust: Xxxxxxx X. Xxxxxxxx
Access Variable Insurance Trust
00000 X.X. Xxx. 00X
Xxxxxxxxxx, Xxxxxxx 00000
with a copy to: Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxxxxx Xxxx LLP
000 Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
If to the Company: Xxxx X. Xxxxxx, Esq.
Vice President, Senior Counsel
and Assistant Secretary
Transamerica Financial Life
Insurance Company
000 Xxxxxxxx Xxxxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
ARTICLE IX
Miscellaneous
9.1 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.
9.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
9.3 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.
9.4 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of State of Ohio without regard for that
state's principles of conflict of laws.
9.5 The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Trust and that no Trustee, officer, agent or holder of Shares of
beneficial interest of the Trust shall be personally liable for any such
liabilities.
9.6 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the Securities and
Exchange Commission, the National Association of Securities Dealers, Inc., 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 reasonable
access to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
9.7 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.
9.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
9.9 Neither this Agreement nor any of its rights or obligations hereunder
may be assigned by any party without the prior written approval of the other
parties.
9.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
Parties hereto.
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers
to execute this Agreement as of the date and year first above written.
ACCESS VARIABLE INSURANCE TRUST
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
TRANSAMERICA FINANCIAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Assistant Vice President and Assistant Secretary
Schedule A
Separate Accounts and Associated Contracts
(as of May 1, 2004)
AVIT Portfolios:
Xxxxx S&P REIT Index Portfolio
Potomac Dow 30 Plus Portfolio
Potomac OTC Plus Portfolio
Potomac Mid Cap Plus Portfolio
Potomac Small Cap Plus Portfolio
Potomac U.S./Short Portfolio
PMFM Managed Portfolio
Access U.S. Government Money Market Portfolio
Name of Separate Account and Contracts Funded
Date Established by Board of Directors By Separate Account
TFLIC Series Life Account (est. October 24, 1994)
TFLIC Freedom Wealth Protector JL25NY
TFLIC Freedom Elite Builder VL95NY
TFLIC Freedom Elite Builder II VL08NY
TFLIC Series Annuity Account (est. March 20, 2001)
TFLIC Freedom Premier XX00XX
XXXXXXXXXXXXXX-0-0000
