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PARTICIPATION AGREEMENT
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Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
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OPPENHEIMERFUNDS, INC.
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and
METLIFE INVESTORS USA INSURANCE COMPANY
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THIS AGREEMENT (the "Agreement"), made and entered into as of the 23rd day
of February, 2006 by and among MetLife Investors USA Insurance Company
(hereinafter the "Company"), on its own behalf and on behalf of each separate
account of the Company named in Schedule 1 to this Agreement, as may be amended
from time to time by mutual consent (hereinafter collectively the "Accounts"),
Xxxxxxxxxxx Variable Account Funds (hereinafter the "Fund") and
OppenheimerFunds, Inc. (hereinafter the "Adviser").
WHEREAS, the Fund is an open-end management investment company and is
available to act as the investment vehicle for separate accounts now in
existence or to be established at any date hereafter for variable life insurance
policies, variable annuity contracts and other tax-deferred products
(collectively, the "Variable Insurance Products") offered by life insurance
companies (hereinafter "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio", and each representing the
interests in a particular managed pool of securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "SEC"), dated July 16, 1986 (File No. 812-6324)
granting Participating Insurance Companies and variable annuity and variable
life insurance separate accounts
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exemptions from the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the
Investment Company Act of 1940, as amended, (hereinafter the "1940 Act") and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary to
permit shares of the Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies (hereinafter the "Mixed and Shared Funding Exemptive
Order");
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and each class of shares of the Portfolios of the
Fund is registered under the Securities Act of 1933, as amended (hereinafter the
"1933 Act");
WHEREAS, the Adviser is duly registered as an investment adviser under the
federal Investment Advisers Act of 1940;
WHEREAS, the Company has registered or will register certain variable
annuity and/or life insurance contracts under the 1933 Act (hereinafter
"Contracts") (unless an exemption from registration is available);
WHEREAS, the Accounts are or will be duly organized, validly existing
segregated asset accounts under applicable insurance law, established by
resolution of the Board of Directors of the Company, to set aside and invest
assets attributable to the aforesaid variable contracts (the Separate Account(s)
covered by the Agreement are specified in Schedule 1 attached hereto, as may be
modified by mutual consent from time to time);
WHEREAS, the Company has registered or will register the Accounts as unit
investment trusts under the 1940 Act (unless an exclusion from registration is
available);
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios (the
Portfolios covered by this
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Agreement are specified in Schedule 2 attached hereto as may be modified by
mutual consent from time to time), on behalf of the Accounts to fund the
Contracts, and the Fund is authorized to sell such shares to unit investment
trusts such as the Accounts at net asset value; and
NOW, THEREFORE, in consideration of their mutual promises, the Fund,
the Adviser and the Company agree as follows:
ARTICLE I. Purchase and Redemption of Fund Shares
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1.1 The Fund agrees to make available to the Company for purchase on behalf
of the Accounts those shares of a Portfolio of the Fund which the Company orders
on behalf of the Accounts, executing such orders on a daily basis at the net
asset value next computed after receipt by the Fund or its designee of the order
for such shares, as established in accordance with the provisions of the then
current prospectus of the Fund.
1.2 The Fund will not sell shares of any Portfolio to any other
Participating Insurance Company separate account unless an agreement containing
provisions similar in substance to Sections 2.1 and 2.2 of Article II, Sections
3.7 and 3.8 (other than the provision requiring the Fund to provide voting
standards) of Article III and Article V of this Agreement is in effect to govern
such sales, it being agreed and understood by Company and the Fund that this
provision is not intended to prevent the Fund from selling its shares to any
potential investor whose purchase of shares does not render the shares of the
Fund or any Portfolio ineligible for continued or additional investment by the
Company and its Account(s), and it being further understood and agreed by the
Company and the Fund that this provision shall apply prospectively to
participation agreements that the Fund enters into on or after the date hereof.
1.3 The Company shall be the designee of the Fund for receipt of purchase
orders and requests for redemptions or exchanges of shares of a Portfolio
("Instructions"). The Business Day on which such Instructions are received in
proper form by the Company and time stamped
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by the Company by the close of trading will be the date and time as of which
Portfolio shares shall be deemed purchased, exchanged or redeemed as a result of
such Instructions; provided that the Fund receives such Instructions by 9:30
a.m. Eastern Time on the next following business day. Instructions received in
proper form by the Company and time stamped after the close of trading on any
given Business Day or received by the Fund after 9:30 a.m. Eastern Time on the
next following business day shall be treated as if received on the next
following Business Day. The Company warrants that all orders transmitted to the
Fund by 9:30 a.m. Eastern Time on a Business Day were received by the Company in
proper form and time stamped prior to the close of trading on the prior Business
Day. "Business Day" shall mean any day on which the New York Stock Exchange is
open for trading and on which the Fund calculates its net asset value pursuant
to the rules of the SEC and its current prospectus. The Fund shall calculate the
net asset value per share of each Portfolio on each Business Day, and shall
communicate these net asset values to the Company or its designee on a daily
basis as soon as reasonably practicable after the calculation is completed
(normally by 6:30 p.m. Eastern time). If the Fund is unable to meet the 6:30
p.m. time stated herein, the Fund shall provide additional time equal to the
additional time it takes the Fund to make the net asset value available to the
Company for the Company to place orders for the purchase and redemption of
shares and make any applicable purchase payments. The Company shall submit
payment for the purchase of shares of a Portfolio in federal funds transmitted
by wire to the Fund or to its designated custodian, which must receive such
wires no later than the close of the Federal Reserve Bank of New York, which is
6:00 p.m. Eastern time, on the Business Day following the Business Day for which
such purchase orders have been placed. Issuance and transfer of the Portfolio
shares will be by book entry only. Stock certificates will not be issued to the
Company or the Accounts. Portfolio shares purchased from
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the Fund will be recorded in the name of the appropriate Account or the
appropriate subaccount of each Account. The Fund shall furnish, on or before the
ex-dividend date, notice to the Company of any income dividends or capital gain
distributions payable on the shares of any Portfolio. The Company hereby elects
to receive all such income dividends and capital gain distributions as are
payable on shares of a Portfolio in additional shares of that Portfolio, and the
Company reserves the right to change this election in the future. The Fund will
notify the Company of the number of shares so issued as payment of such
dividends and distributions. Each party to this Agreement agrees that, in the
event of a material error resulting from incorrect information or confirmations,
the parties will seek to comply in all material respects with the provisions of
applicable federal securities laws.
1.4 The Fund agrees to make Portfolio shares available for purchase by the
Company for their separate Accounts listed in Schedule 1 on those days on which
a Portfolio calculates its net asset value pursuant to rules of the SEC;
provided, however, that the Board of Trustees of the Fund (hereinafter 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, 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 any Portfolio (including without limitation purchase orders that
individually or together with other contemporaneous orders represent large
transactions in shares of any Portfolio held for a relatively brief period of
time). Such shares shall be purchased at the applicable net asset value per
share, increased by any initial sales charge, if the Fund's prospectus then in
effect imposes such a charge on such purchases. Without limiting the foregoing,
the Fund and the Fund's transfer agent may take such other
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action (including, without limitation, rejecting specific purchase orders) as
they deem necessary to reduce, discourage or eliminate market timing activity.
The Company agrees to follow and adhere to the Fund's market timing procedures
and to cooperate with the Fund and the Adviser to assist in the implementation
of the Fund's restrictions on purchase, redemption and exchange activity that
follows a market timing pattern, including but not limited to providing
information on Contract owner transactions, holdings and other information as
may reasonably be requested by the Fund, the Adviser or their duly authorized
representatives.
1.5 The Fund agrees to redeem or exchange, upon the Company's request, any
full or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after receipt by
the Fund or its designee of the request for redemption, reduced by any
redemption fee or deferred sales charge, if the Fund's prospectus in effect as
of the date of such redemption imposes such a fee or charge on such redemptions.
The Fund agrees to give the Company reasonable advance written notice of its
proposed imposition of any redemption fee or deferred sales charge. For purposes
of this Section 1.5, the Company shall be the designee of the Fund for receipt
of requests for redemption and receipt by such designee shall constitute receipt
by the Fund; provided that the Fund receives written (or facsimile) notice of
such request for redemption by 9:30 a.m. Eastern Time on the next following
Business Day; however the Company undertakes to use its best efforts to provide
such notice to the Fund by no later than 9:00 A.M. Eastern time on the next
following Business Day. Payment shall be made within the time period specified
in the Fund's prospectus or statement of additional information ("SAI"),
provided, however, that in no event shall payment be delayed for a greater
period than is permitted by the 1940 Act. In the event the Fund does not pay for
the Fund shares that are redeemed on the next Business Day after a request to
redeem shares is made, then the
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Fund shall apply any such delay in redemptions uniformly to all records holders
of shares of that Portfolio. Payment shall be in federal funds transmitted by
wire to the Company's bank accounts as designated by the Company in writing from
time to time. Upon request the Company further agrees to furnish, or cause to be
furnished, to the Fund, the Adviser and their duly appointed agents a copy of
the Company's SAS 70 reports, if any, prepared by the Company's independent
auditor within a reasonable time such report is completed and to submit to a
reasonable inspection by the Fund, the Adviser or their duly authorized agents,
at their expense, and during normal business hours, of its books and records
upon reasonable notice.
1.6 The Company agrees to purchase and redeem the shares of the Portfolios
named in Schedule 2 offered by the then current prospectus and SAI of the Fund
in accordance with the provisions of such prospectus and SAI. The Company shall
not permit any person other than a Contract owner or a Contract owner's agent or
representative to give instructions to the Company which would require the
Company to purchase, redeem or exchange shares of the Fund, except as otherwise
required by applicable law.
1.7 The Fund offers share classes which impose redemption fees in certain
circumstances ("Redemption Fee Funds"). In the event that the Company purchases
Redemption Fee Funds for the Accounts, the Company agrees to monitor holding
periods of Contract owners and to track such holding periods for purposes of the
Fund's assessment of redemption fees in conjunction with those transactions
specifically subject to such fees, subject to any reasonable exceptions as set
forth in the Redemption Fee Funds prospectuses. The Company shall maintain
records supporting its calculations of redemption fees payable to each Fund and
shall provide the Fund with access, to or copies of, such records upon the
reasonable request of the Fund.
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Company shall calculate the amount of redemption fees payable to each Fund on a
daily basis and such amount shall be netted against the redemption proceeds
payable by the Company.
1.8 Nothing in this Agreement shall be construed to require actions on the
part of Company that would, in the best judgment of the Company, constitute the
violation or breach of any duty the Company owes to Contract owners whose
Contracts were purchased prior to the creation of the Redemption Fee Fund
shares.
ARTICLE II. Representations and Warranties
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2.1 The Company represents and warrants that the securities deemed to be
issued by the Accounts under the Contracts are or, prior to any issuance or sale
will be, registered under the 1933 Act (unless an exemption from registration is
available) and, that the Contracts will be issued, offered and sold in
compliance in all material respects with all applicable federal and state laws
and regulations, including without limitation state insurance suitability
requirements and National Association of Securities Dealers, Inc. ("NASD")
conduct rules. The Company further represents and warrants that it is an
insurance company duly organized and in good standing under applicable state law
and that it has legally and validly established the Accounts prior to the
issuance or sale of units thereof as a segregated asset account under applicable
insurance law and has registered the Accounts as unit investment trusts in
accordance with the provisions of the 1940 Act (unless an exclusion from
registration is available) to serve as segregated investment accounts for the
Contracts, and that it will maintain such registration for so long as any
Contracts are outstanding or until registration is no longer required under
federal and state securities laws. The Company shall amend the registration
statement under the 1933 Act for the Contracts and the registration statement
under the 1940 Act for the Accounts from time to time as required in order to
effect the continuous offering of the Contracts or as may
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otherwise be required by applicable law. The Company shall register and qualify
the Contracts for sale in accordance with the securities laws of the various
states only if and to the extent deemed necessary by the Company.
2.2 The Company represents and warrants that the Contracts are currently
and at the time of issuance will be treated as life insurance or annuity
contracts under applicable provisions of the Internal Revenue Code of 1986, as
amended (the "Code") and the regulations issued thereunder, and that it will
make every effort to maintain such treatment and that it will notify the Fund
and the Adviser immediately upon having a reasonable basis for believing that
the Contracts have ceased to be so treated or that they might not be so treated
in the future. In addition, the Company represents and warrants that the
Accounts are a "segregated asset accounts" and that interests in the Accounts
are offered exclusively through the purchase of or transfer into a "variable
contract" within the meaning of such terms under Section 817 of the Code and the
regulations issued thereunder and any amendments or other modifications to such
section or such regulations (and any revenue rulings, revenue procedures,
notices and other published announcements of the Internal Revenue Service
interpreting these provisions). The Company shall continue to meet such
definitional requirements, and it will notify the Fund and the Adviser
immediately upon having a reasonable basis for believing that such requirements
have ceased to be met or that they might not be met in the future. The Company
represents and warrants that it will not purchase Fund shares with assets
derived from tax-qualified retirement plans except indirectly, through Contracts
purchased in connection with such plans.
2.3 The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act and duly authorized for
issuance and sold in accordance with applicable state and federal law and that
the Fund is and shall remain registered
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under the 1940 Act for as long as the Fund shares are sold. The Fund shall amend
the registration statement for its shares under the 1933 Act and the 1940 Act
from time to time as required in order to effect the continuous offering of its
shares. The Fund shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Fund.
2.4 The Fund will at all times invest money from the Contracts in such a
manner as to ensure that the Contracts will be treated as variable contracts
under the Code and the regulations issued thereunder. Without limiting the scope
of the foregoing, the Fund represents and warrants that each Portfolio of the
Fund will comply with Section 817(h) of the Code and Treasury Regulation
1.817-5, relating to the diversification requirements for variable annuity,
endowment, or life insurance contracts and any amendments or other modifications
to such Section or Regulations (and any revenue rulings, revenue procedures,
notices, and other published announcements of the Internal Revenue Service
interpreting these provisions). In the event the Fund should fail to so qualify,
it will take all necessary steps (a) to immediately notify the Company of such
breach and (b) to resume compliance with such diversification requirement within
the grace period afforded by Treasury Regulation 1.817.5. The Fund and Adviser
represent that each Portfolio 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 provision), and that it will notify the
Company immediately upon having a reasonable basis for believing that it has
ceased to so qualify or that it might not so qualify in the future.
2.5 If the Contracts purchase shares of a series and class of the Fund that
have adopted a plan under Rule 12b-l under the 1940 Act to finance distribution
expenses (a "12b-l
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Plan"), the Company agrees to provide the Trustees any information as may be
reasonably necessary for the Trustees to review the Fund's 12b-l Plan or Plans.
2.6 The Fund represents that it is lawfully organized and validly existing
under the laws of the Commonwealth of Massachusetts and that it does and will
comply with applicable provisions of the 0000 Xxx.
2.7 The Adviser represents and warrants that it is and will remain duly
registered under all applicable federal and state securities laws and that it
shall perform its obligations for the Fund in compliance with any applicable
state and federal securities laws.
2.8 The Fund and Adviser each represent and warrant that all of its
respective directors, trustees, officers, employees, investment advisers, and
transfer agent of the Fund are and shall continue to be at all times covered by
a blanket fidelity bond (which may, at the Fund's election, be in the form of a
joint insured bond) or similar coverage for the benefit of the Fund in an amount
not less than the minimal coverage as required currently by Section 17(g) and
Rule 17g-l 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 insurance company. The Adviser
agrees to make all reasonable efforts to see that this bond or another bond
containing these provisions is always in effect, and agrees to promptly notify
the Company in the event that such coverage no longer applies.
2.9 The Company represents and warrants that all of its directors,
officers, employees, agents, investment advisers, and other individuals and
entities dealing with the money and/or securities of the Fund are covered by a
blanket fidelity bond or similar coverage in an amount not less than the
equivalent of U.S. $10 million. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable insurance company.
The Company
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agrees that any amount received under such bond in connection with claims that
derive from arrangements described in this Agreement will be paid by the Company
for the benefit of the Fund. The Company agrees to make all reasonable efforts
to see that this bond or another bond containing these provisions is always in
effect, and agrees to promptly notify the Fund and the Adviser in the event that
such coverage no longer applies.
2.10 The Fund and the Adviser represent that they will make a good faith
effort to furnish information to the Company about the Fund 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.
2.11 The Fund and Company undertake and agree to comply, and to take full
responsibility in complying with any and all laws, regulations, protocols and
other requirements relating to money laundering, both United States and foreign,
including, without limitation, the International Money Laundering Abatement and
Anti-Terrorist Financing Act of 2001 (Title III of the USA Patriot Act),
hereinafter, collectively with the rules, regulations and orders promulgated
thereunder (the "Patriot Act") and any requirements and/or requests in
connection therewith, made by regulatory authorities, the Fund or their duly
appointed agents, either generally or in respect of a specific transaction,
and/or in the context of a "primary money laundering concern" as defined in the
Patriot Act. The Fund and Company agree as a condition precedent to any
transaction taking or continuing to be in effect under this Agreement, to comply
with any and all anti-money laundering laws, regulations, orders or
requirements, and without prejudice to the generality of the above, to provide
regulatory authorities, the Fund, the Company or their duly appointed agents,
with all necessary reports and information for the parties or their agents to
fulfill their obligations, if any, under the Patriot Act for the purposes of
complying with
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any and all anti-money laundering requirements imposed by the Patriot Act,
including, without limitation, enhanced due diligence obligations, the filing of
Currency Transaction Reports and/or of Suspicious Activity Reports obligations,
and/or the sharing of information requirements. In the event reports and
information deemed satisfactory by a party are not received within a reasonable
time period from the date of the request, the Fund reserve the right to reject
any transaction and/or cease to transact with the Company and/or the Accounts
and the Company reserves the right to cease purchases of the shares of the Fund
and to take other actions appropriate to terminate transactions with the Fund.
Further, the Fund and Company, respectively, represent that the it has not
received notice of, and to the its knowledge, there is no basis for, any claim,
action, suit, investigation or proceeding that might result in a finding that
the Fund or Company, respectively, is not or has not been in compliance with the
Patriot Act, and the rules and regulations promulgated thereunder.
2.12 The Company, the Fund and the Advisor each agree to notify the others
immediately upon having a reasonable basis for believing that any of these
representations and warranties are no longer true or accurate to a material
extent.
2.13 The Company shall maintain and enforce policies and procedures
reasonably designed to ensure that Portfolio share orders transmitted to the
Fund are segregated by time of receipt in order to prevent Share orders from
being executed at a price based on a previously determined net asset value.
2.14 The Company shall reasonably facilitate and cooperate with third-party
audits arranged by the Fund or the Adviser, at their expense, to evaluate the
effectiveness of its compliance controls.
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2.15 The Company shall provide the Fund's chief compliance officer with
periodic reports and shall promptly provide the Fund's chief compliance officer
with special reports in the event of any compliance problems that arise. The
Fund shall provide to the Company written notice of any material compliance
problem that has or may have a material impact on the Company or its Variable
Insurance Products.
ARTICLE III. Sales Material, Prospectuses and Other Reports
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3.1 The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material in
which the Fund or the Adviser is named, at least ten Business Days prior to its
use. No such material shall be used if the Fund or its designee reasonably
object to such use within ten Business Days after receipt of such material. The
Company shall not give any information or make any representations or statements
on behalf of the Fund or concerning the Fund in connection with the sale of the
Contracts other than the information or representations contained in the
registration statement or prospectus for the Fund shares, as such registration
statement and prospectus may be amended or supplemented from time to time, or in
reports or proxy statements for the Fund, or in sales literature or other
promotional material approved by the Fund or its designee, except with the
permission of the Fund.
3.2 The Fund 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 is named, at least ten Business Days prior to its use. No such
material shall be used if the Company or its designee reasonably object to such
use within ten Business Days after receipt of such material. The Fund shall not
give any information or make any representations or statements on behalf of the
Company or concerning the Company in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement
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or prospectus for the Company shares, as such registration statement and
prospectus may be amended or supplemented from time to time, or in reports or
proxy statements for the Company, or in sales literature or other promotional
material approved by the Company or its designee, except with the permission of
the Company.
3.3 For purposes of this Article III, the phrase "sales literature or other
promotional material" includes, but is not limited to, portions of the following
that use any logo or other trademark related to a party or its affiliates, and
any of the following that refer to the Fund or an affiliate of the Fund or the
Company: 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 billboard or electronic media), and sales
literature {i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, market
letters and form letters, seminar texts, reprints or excerpts from any
advertisement, sales literature or published article), educational training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
SAIs, shareholder reports, and any other communications distributed or made
generally available with regard to a a party.
3.4 The Fund shall provide to the Company a copy of its current prospectus
within a reasonable period of its filing date, and provide other assistance as
is reasonably necessary in order for the Company once each year (or more
frequently if the prospectus for the Fund is supplemented or amended) to have
the prospectus for the Contracts and the Fund's prospectus printed together in
one document. The Adviser shall be permitted to review and approve the typeset
form of the Fund's Prospectus prior to such printing.
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3.5 The Fund or the Adviser shall provide the Company with either: (i) a
copy of the Fund's proxy material, reports to shareholders, other information
relating to the Fund necessary to prepare financial reports, and other
communications to shareholders for printing and distribution to Contract owners,
or (ii) camera ready, electronic file and/or printed copies, if appropriate, of
such material for distribution to Contract owners at the Company' expense,
within a reasonable period of the filing date for definitive copies of such
material. The Adviser shall be permitted to review and approve the typeset form
of such proxy material, shareholder reports and communications prior to such
printing.
3.6 The Company assumes sole responsibility for ensuring that the Fund's
prospectus, shareholder reports and communications, and proxy materials are
delivered to Contract owners in accordance with applicable federal and state
securities laws.
3.7 The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote Fund shares in accordance with instructions received from
Contract owners; and
(iii) vote Fund shares for which no instructions have been received in
the same proportion as Fund shares of such Portfolio(s) for
which instructions have been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners or to the
extent otherwise required by law. The Company will vote Fund shares held in any
segregated asset account, as well as shares owned by the Company, in the same
proportion as Fund shares of such Portfolio for which voting instructions have
been received from Contract owners, to the extent permitted by law.
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3.8 Participating Insurance Companies shall be responsible for assuring
that each of their separate accounts participating in a Portfolio calculates
voting privileges as required by the Mixed and Shared Funding Exemptive Order
and consistent with any reasonable standards that the Fund may adopt and provide
in writing.
ARTICLE IV. Fees and Expenses
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4.1 The Fund and Adviser shall pay no fee or other compensation to the
Company under this agreement, and the Company shall pay no fee or other
compensation to the Fund or Adviser, except as provided herein.
4.2 All expenses incident to performance by each party of its respective
duties under this Agreement shall be paid by that party. 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 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, and the preparation of all statements
and notices required by any federal or state law.
4.3 The Fund will pay the expenses associated with the following: setting
the prospectus and profiles in type; printing copies of the prospectus and
profiles to be delivered to existing Contract owners investing in the
Portfolios; providing a reasonable number of copies of the SAI to the Company
for itself and for any current owner of a Contract who requests such SAI;
setting in type and printing the proxy materials and reports to shareholders
(including the costs of printing a prospectus that constitutes an annual
report); and the preparation of all statements and notices required by any
federal or state law. In the event that proxy materials or reports to
shareholders are printed by the Company, printing costs shall be allocated to
reflect the Fund's share of the total costs for printing the Fund's proxy
materials or shareholder reports to
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be delivered to existing Contract owners investing in the Portfolio(s),
determined according to the number of pages of the Fund's respective portions of
the documents; provided that the Fund receives invoices for such expense within
90 days after printing.
4.4 Unless otherwise agreed, the Company shall bear the expenses of
printing copies of the current prospectus and profiles for the Contracts;
printing copies of the Fund's prospectus and profiles that are used in
connection with offering the Contracts; distributing the Fund's prospectus to
owners of Contracts issued by the Company; and of distributing the Fund's proxy
materials and reports to such Contract owners. If the prospectus for the
Contracts and the Fund's prospectus are printed together in one or more
documents, printing costs shall be allocated to reflect the Fund's share,
pursuant to Section 4.3, of the total costs for printing the Fund's
prospectus(es) to be delivered to existing Contract owners investing in the
Portfolio(s), determined according to the number of pages of the Fund's
respective portions of the documents; provided that the Fund receives invoices
for such expense within one year after printing.
4.5 In the event the Fund adds one or more additional Portfolios and the
parties desire to make such Portfolios available to the respective Contract
owners as an underlying investment medium, a new Schedule 2 or an amendment to
this Agreement shall be executed by the parties authorizing the issuance of
shares of the new Portfolios to the particular Accounts. The amendment may also
provide for the sharing of expenses for the establishment of new Portfolios
among Participating Insurance Companies desiring to invest in such Portfolios
and the provision of funds as the initial investment in the new Portfolios.
ARTICLE V. Potential Conflicts
-------------------
5.1 The Trustees 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,
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including: (a) an action by any state insurance regulatory authority; (b) a
change in applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Portfolio
are being managed; (e) a difference in voting instructions given by
participating insurance companies or by variable annuity contract and variable
life insurance contract owners; or (f) a decision by an insurer to disregard the
voting instructions of Contract owners. The Trustees shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
5.2 The Company has reviewed a copy of the Mixed and Shared Funding
Exemptive Order, and in particular, has reviewed the conditions to the requested
relief set forth therein. The Company agrees to be bound by the responsibilities
of a participating insurance company as set forth in the Mixed and Shared
Funding Exemptive Order, including without limitation the requirement that the
Company 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 in monitoring such conflicts under the Mixed and Shared Funding
Exemptive Order, by providing the Trustees in a timely manner with all
information reasonably necessary for the Trustees to consider any issues raised.
This includes, but is not limited to, an obligation by the Company to inform the
Trustees whenever Contract owner voting instructions are disregarded and by
confirming in writing, at the Fund's request, that the Company are unaware of
any such potential or existing material irreconcilable conflicts.
5.3 If it is determined by a majority of the Trustees, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall, at its expense and to
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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, 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 accounts. The
Company's obligations under this Section 5.3 shall not depend on whether other
affected participating insurance companies fulfill a similar obligation.
5.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
could conflict with the majority of Contract owner instructions, the Company may
be required, at the Fund's election, to withdraw the Accounts' investment in the
Fund and terminate this Agreement; 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
Trustees. 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 the 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.
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5.5 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 Accounts'
investment in the Fund and terminate this Agreement within six 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 by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested Trustees. 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, subject to applicable regulatory
limitation.
5.6 For purposes of Sections 5.3 through 5.6 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 Fund be required to establish a new funding medium for the Contracts. The
Company shall not be required by Section 5.3 to establish a new funding medium
for 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 particular Accounts' investment in the Fund and terminate this
Agreement within six (6) months after the Trustees inform 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
Trustees.
ARTICLE VI. Applicable Law
--------------
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6.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of New York.
6.2 This Agreement shall be subject to the provisions of the 1933 Act, the
Securities Exchange Act of 1934 and the 1940 Act, and the rules and regulations
and rulings thereunder, including such exemption from those statutes, rules and
regulations as the Securities and Exchange Commission may grant (including, but
not limited to, the Mixed and Shared Funding Exemptive Order) and the terms
hereof shall be interpreted and construed in accordance therewith, provided
however that the term "Registration Statement or Prospectus for the Variable
Contracts" and terms of similar import shall include (i) any offering circular
or similar document and sales literature or other promotional materials used to
offer and/or sell the variable Contracts in compliance with the private offering
exemption in the 1933 Act and applicable federal and state laws and regulations,
and (ii) the term "Registration Statement" and "Prospectus" as defined in the
1933 Act.
ARTICLE VII. Termination
-----------
7.1 This Agreement shall terminate:
(a) at the option of any party upon six month's advance written notice to
the other parties;
(b) at the option of the Company to the extent that shares of Portfolios
are not reasonably available to meet the requirements of its Contracts or are
not appropriate funding vehicles for the Contracts, as determined by the Company
reasonably and in good faith. Prompt notice of the election to terminate for
such cause and an explanation of such cause shall be furnished by the Company;
(c) as provided in Article V;
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(d) at the option of the Fund or the Adviser upon institution of formal
proceedings against the Company (or its parent) by the NASD, the SEC, the
insurance commission of any state or any other regulatory body having
jurisdiction over that party, which would have a material adverse effect on the
Company's ability to perform its obligations under this Agreement;
(e) at the option of the Company upon institution of formal proceedings
against the Fund or the Adviser (or its parent) by the NASD, the SEC, or any
state securities or insurance department or any other regulatory body having
jurisdiction over that party, which would have a material adverse effect on the
Adviser's or the Fund's ability to perform its obligations under this Agreement;
(f) at the option of the Company or the Fund upon receipt of any necessary
regulatory approvals or the vote of the Contract owners having an interest in
the Account (or any subaccount) to substitute the shares of another investment
company for the corresponding Portfolio shares of the Fund in accordance with
the terms of the Contracts for which those Portfolio shares have been selected
to serve as the underlying investment media. The Company will give 45 days prior
written notice to the Fund of the date of any proposed vote or other action
taken to replace the Fund's shares;
(g) at the option of the Company or the Fund upon a determination by a
majority of the Trustees, or a majority of the disinterested Trustees, that an
irreconcilable material conflict exists among the interests of (i) all Contract
owners of variable insurance products of all separate accounts or (ii) the
interests of the Participating Insurance Companies investing in the Fund as
delineated in Article VII of this Agreement;
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(h) at the option of the Company if the Fund 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
Fund may fail to so qualify;
(i) at the option of the Company if the Fund fails to meet the
diversification requirements specified in Section 2.6 hereof or if the Company
reasonably believes that the Fund will fail to meet such requirements;
(j) at the option of any party to this Agreement, upon another party's
failure to cure a material breach of any provision of this Agreement within
thirty days after written notice thereof;
(k) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that either the Fund or the Adviser has
suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact upon the business
and operations of the Company;
(l) at the option of the Fund or the Adviser, if the Fund or Adviser
respectively, shall determine in its sole judgment exercised in good faith, that
the Company has suffered a material adverse change in its business, operations
or financial condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Fund or the Adviser;
(m) subject to the Fund's compliance with Section 2.6 hereof, at the option
of the Fund in the event any of the Contracts are not issued or sold in
accordance with applicable requirements of federal and/or state law; or
(n) at the option of the Fund if (i) the Company breaches any of the
representations and warranties made in this Agreement; or (ii) the Company
notifies the Fund that any of such
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representations and warranties may no longer be true or might not be true in the
future; or (iii) any of the Company's representations and warranties were not
true on the effective date of this Agreement, are at any time no longer true, or
have not been true during any time since the effective date of this Agreement.
7.2 It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 7.1 (a) may be exercised for cause
or for no cause.
ARTICLE VIII. Indemnification
---------------
8.1 Indemnification By The Company
------------------------------
(a) The Company agrees to indemnify and hold harmless the Fund and the
Adviser, each member of their Board of Trustees or Board of Directors, each of
their officers, employees and agents, and each person, if any, who controls the
Fund 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 expenses (including the
reasonable costs of investigating or defending any alleged loss, claim, damage,
fine, liability or expense and reasonable legal counsel fees incurred in
connection therewith (collectively, "Losses")), to which the Indemnified Parties
may become subject under any statute, regulation, at common law or otherwise,
insofar as such losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or acquisition of the
Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or SAI for the Contracts or
contained in sales literature or other promotional material for
the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading in light of the circumstances which they were made;
provided that this agreement
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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 or the
Adviser for use in the registration statement, prospectus or SAI
for 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 by
or on behalf of the Company (other than statements or
representations contained in the Fund registration statement,
Fund prospectus or sales literature or other promotional material
of the Fund not supplied by the Company or persons under its
control) or wrongful conduct of the Company or persons under its
control, with respect to the sale or disposition of the Contracts
or Fund shares, provided any such statement or representation or
such wrongful conduct was not made in reliance upon and in
conformity with information furnished in writing, via fax or via
electronic means, to the Company by or on behalf of the Advisor
or the Fund; or
(iii) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, Fund prospectus, SAI or sales literature
or other promotional material of the Fund or any amendment
thereof or supplement thereto or the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light
of the circumstances in which they were made, if such statement
or omission was made in reliance upon information furnished in
writing, via fax or via electronic means, to the Fund or the
Adviser by or on behalf of the Company or persons under its
control;
(iv) arise out of or result from any material breach of this Agreement
by the Company;
(v) arise out of or result from any failure by the Company to provide
the services or furnish the materials required under the terms of
this Agreement; or
(vi) arise out of or result from a Contract failing to be considered a
life insurance policy or an annuity Contract, whichever is
appropriate, under applicable provisions of the Code thereby
depriving the Fund of its compliance with Section 817(h) of the
Code, unless such failure is due to the failure of the Fund or
any of the other investment companies currently available as
funding vehicles for the Contracts to invest the assets of any
portfolio in such a manner
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as to ensure that the Contracts will be treated as annuity,
endowment, or life insurance contracts, whichever is appropriate,
under the Code and the regulations issued thereunder (or any
successor provisions).
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) 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 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.
8.2 Indemnification by Adviser and Fund
-----------------------------------
(a)(l) The Adviser agrees to indemnify and hold harmless the Company
and each of its directors and officers, employees and agents, 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 Adviser) or litigation expenses
(including any Losses) to which the Indemnified Parties may become subject under
any statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or the
Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus, 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 in light of the circumstances in which they were made;
provided that this
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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 in writing, via fax or via electronic
means, to the Adviser or the Fund by or on behalf of the Company
for use in the Fund registration statement, prospectus or SAI, or
sales literature or other promotional material for the Contracts
or of the Fund; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract registration statement, the Contract
prospectus, SAI, or sales literature or other promotional
material for the Contracts not supplied by the Adviser or the
Fund or persons under the control of the Adviser or the Fund
respectively) or wrongful conduct of the Adviser or persons under
its control, with respect to the sale or distribution of the
Contracts, provided any such statement or representation or such
wrongful conduct was not made in reliance upon and in conformity
with information furnished in writing, via fax or via electronic
means, to the Adviser or the Fund by or on behalf of the Company;
or
(iii) arise out of any untrue statement or allegedly 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 in light of the circumstances in which
they were made, if such statement or omission was made in
reliance upon information furnished in writing, via fax or via
electronic means, to the Company by or on behalf of the Fund or
persons under the control of the Adviser; or
(iv) arise out of or result from any material breach of this Agreement
by the Adviser.
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Adviser may
otherwise have.
(a)(2) The Fund agrees to indemnify and hold harmless the Indemnified
Parties against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Fund) or litigation
expenses (including Losses) to which the
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Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the
operations of the Fund or the sale or acquisition of the Fund's shares and:
(i) arise out of or are based upon (a) any untrue statement or
alleged untrue statement of any material fact or (b) the omission
or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements made
therein, in light of the circumstances in which they were made,
not misleading, if such fact, statement or omission is contained
in the registration statement for the Fund or the Contracts, or
in the prospectus or SAI for the Contracts or the Fund, or in any
amendment to any of the foregoing, or in sales literature or
other promotional material for the Contracts or of the Fund,
provided, however, that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement, fact or
omission or such alleged statement, fact or omission was made in
reliance upon and in conformity with information furnished in
writing, via fax or via electronic means, to the Adviser or the
Fund by or on behalf of the Indemnified Party; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the
Contracts or in the Contract registration statement, the Contract
prospectus, SAI, or sales literature or other promotional
material for the Contracts not supplied by the Adviser or the
Fund or persons under the control of the Adviser or the Fund
respectively) or wrongful conduct of the Fund or persons under
its control with respect to the sale or distribution of
Contracts, provided any such statement or representation or such
wrongful conduct was not made in reliance upon and in conformity
with information furnished in writing, via fax or via electronic
means, to the Adviser or the Fund by or on behalf of the Company;
or
(iii) arise out of or result from any material breach of this
Agreement by the Fund (including a failure to comply with the
diversification requirements specified in Section 2.6 of this
Agreement).
except to the extent provided in Section 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Fund may
otherwise have.
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(b) The Fund and Adviser 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.
8.3 Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article VIII
("indemnifying party" for the purpose of this Section 8.3) shall not be liable
under the indemnification provisions of this Article VIII with respect to any
claim made against a party entitled to indemnification under this Article VIII
("indemnified party" for the purpose of this Section 8.3) unless such
indemnified party shall have notified the indemnifying party in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
indemnified party (or after such party shall have received notice of such
service on any designated agent), but failure to notify the indemnifying party
of any such claim shall not relieve the indemnifying party from any liability
which it may have to the indemnified party against whom such action is brought
under the indemnification provisions of this Article VIII, except to the extent
that the failure to notify results in the failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
failure to give such notice. In case any such action is brought against the
indemnified party, the indemnifying party will be entitled to participate, at
its own expense, in the defense thereof. The indemnifying party also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the indemnifying party to the indemnified
party of the indemnifying party's election to assume the defense thereof, the
indemnified party
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shall bear the fees and expenses of any additional counsel retained by it, and
the indemnifying party will not be liable to such party under this Agreement for
any legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation, unless (i) the indemnifying party and the indemnified party shall
have mutually agreed to the retention of such counsel or (ii) the named parties
to any such proceeding (including any impleaded parties) include both the
indemnifying party and the indemnified party and representation of both parties
by the same counsel would be inappropriate due to actual or potential differing
interests between them. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and against
any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
ARTICLE IX. 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 to the
other party.
If to the Fund:
Xxxxxxxxxxx Variable Account Funds
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
---------------
Xxxxxxxxxxx Variable Account Funds
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Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Adviser:
OppenheimerFunds, Inc.
0000 Xxxxx Xxxxxx Xxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
With a copy to:
---------------
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Company:
-----------------
MetLife Investors USA Insurance Company
---------------------------------------
0 Xxxx Xxxxx, Xxxxx 0000
------------------------
Xxxxxx, XX 00000
----------------
Attn: President
---------------
ARTICLE X. Miscellaneous
-------------
10.1 The Company represents and warrants that any Contracts eligible to
purchase shares of the Fund and offered and/or sold in private placements will
comply in all material respects with the exemptions from the registration
requirements of the 1933 Act and applicable federal and state laws and
regulations.
10.2 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
(i) this Agreement and (ii) by Title V, Subtitle A of the Xxxxx-Xxxxx-Xxxxxx
Act and by regulations adopted thereunder by regulators having jurisdiction over
the parties hereto, shall not disclose, disseminate or utilize such names and
addresses and other
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confidential information without the express written consent of the affected
party until such time as it may come into the public domain.
10.3 Each party shall treat as confidential all information of the other
party which the parties agree in writing is confidential ("Confidential
Information"). Except as permitted by this Agreement or as required by
appropriate governmental authority (including, without limitation, the SEC, the
NASD, or state securities and insurance regulators) the receiving party shall
not disclose or use Confidential Information of the other party before it enters
the public domain, without the express written consent of the party providing
the Confidential Information.
10.4 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.
10.5 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.6 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.
10.7 The parties to this Agreement acknowledge and agree that all
liabilities of the Fund arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Fund and that no Trustee, director, officer, agent or holder of shares of
beneficial interest of the Fund shall be personally liable for any such
liabilities.
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10.8 The parties to this Agreement agree that the assets and liabilities of
each Portfolio of the Fund are separate and distinct from the assets and
liabilities of each other Portfolio. No Portfolio shall be liable or shall be
charged for any debt, obligation or liability of any other Portfolio.
10.9 Each party hereto shall cooperate with, and promptly notify each other
party and all appropriate governmental authorities (including without limitation
the Securities and Exchange Commission, 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.
10.10 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
10.11 It is understood by the parties that this Agreement is not an
exclusive arrangement in any respect.
10.12 The Company and the Adviser each understand and agree that the
obligations of the Fund under this Agreement are not binding upon any Trustee or
shareholder of the Fund personally, but bind only the Fund with respect to the
Portfolio and the Portfolio's property; the Company and the Adviser each
represent that it has notice of the provisions of the Declaration of Trust of
the Fund disclaiming Trustee and shareholder liability for acts or obligations
of the Fund.
10.13 This Agreement shall not be assigned by any party hereto without the
prior written consent of all the parties. Notwithstanding the foregoing or
anything to the contrary set forth in this Agreement, the Adviser may transfer
or assign its rights, duties and obligations
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hereunder or interest herein to any entity owned, directly or indirectly, by
Xxxxxxxxxxx Acquisition Corp. (the Adviser's parent corporation) or to a
successor in interest pursuant to a merger, reorganization, stock sale, asset
sale or other transaction, without the consent of the Company, as long as (i)
that assignee agrees to assume all the obligations imposed on the Adviser by
this Agreement, and (ii) the Fund consents to that assignment.
10.14 This Agreement sets forth the entire agreement between the parties
and supercedes all prior communications, agreements and understandings, oral or
written, between the parties regarding the subject matter hereof.
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IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized officers to execute this Agreement.
METLIFE INVESTORS
USA INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Title: Executive Vice President
Date: February 23, 2006
XXXXXXXXXXX VARIABLE ACCOUNT FUND
By:
--------------------------------
Title:
Date:
----------------------------
OPPENHEIMERFUNDS, INC.
By:
--------------------------------
Title:
Date:
----------------------------
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IN WITNESS WHEREOF, each of the parties hereto has caused its duly
authorized officers to execute this Agreement.
METLIFE INVESTORS
USA INSURANCE COMPANY
By:
-------------------------------
Title:
----------------------------
Date:
----------------------------
XXXXXXXXXXX VARIABLE ACCOUNT FUND
By: /s/ ILLEGIBLE
-------------------------------
Title: Treasurer
Date: 2-24-06
OPPENHEIMERFUNDS, INC.
By: /s/ ILLEGIBLE
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Title: Vice President
Date: 2-24-06
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EXECUTION COPY
SCHEDULE 1
Separate Accounts Products
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MetLife Investors USA Form 8010
Separate Account A
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EXECUTION COPY
SCHEDULE 2
Portfolios of Xxxxxxxxxxx Variable Account Funds
