EXHIBIT 8(a)
Participation Agreement
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
BY AND AMONG
THE XXXXXXX FUNDS
(as defined herein),
XXXXXXX DISTRIBUTORS, INC.,
AND
AMERITAS LIFE INSURANCE CORP.,
FIRST AMERITAS LIFE INSURANCE CORP. OF NEW YORK,
AND
THE UNION CENTRAL LIFE INSURANCE COMPANY,
EACH ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS,
TABLE OF CONTENTS
Description Page
Section 1 Available Portfolios 2
1.1 Availability 2
1.2 Addition, Deletion or Modification of Portfolios 2
1.3 Restrictions on Sales to the General Public 2
Section 2. Processing Transactions 3
2.1 Timely Pricing and Orders 3
2.2 Timely Payments 4
2.3 Applicable Price 4
2.4 Dividends and Distributions 5
2.5 Book Entry 5
2.6 NSCC - Obligations of the FUNDS or their Agent(s) 5
2.7 NSCC - Obligations of the LIFE COMPANIES or their Correspondents 6
Section 3. Costs and Expenses 7
3.1 General 7
3.2 Parties To Cooperate 7
3.3 Portfolio Expenses 7
Section 4. Legal Compliance 7
4.1 Tax Laws 7
4.2 Insurance and Certain Other Laws 10
4.3 Securities Laws 10
4.4. Anti-Money Laundering 12
4.5 Privacy 12
4.6 Notice of Certain Proceedings and Other Circumstances 12
4.7 LIFE COMPANIES To Provide Documents; Information About FUNDS 13
4.8 FUNDS To Provide Documents; Information About LIFE COMPANIES 14
Section 5. Mixed and Shared Funding 16
5.1 General 16
5.2 Disinterested Directors 16
5.3 Monitoring for Material Irreconcilable Conflicts 16
5.4 Conflict Remedies 17
5.5 Notice to Life Companies 18
5.6 Information Requested by Board of Directors 19
5.7 Compliance with XXX Xx0xx 00
5.8 Other Requirements 19
Section 6. Termination 20
6.1 Events of Termination 20
6.2 Notice Requirement for Termination 21
6.3 Funds To Remain Available 22
6.4 Survival of Warranties and Indemnifications 22
6.5 Continuance of Agreement for Certain Purposes 22
Description Page
Section 7. Parties To Cooperate Respecting Termination 22
Section 8. Assignment 22
Section 9. Notices 23
Section 10. Voting Procedures 24
Section 11. Foreign Tax Credits 25
Section 12. Indemnification 25
12.1 Of the Funds and CDI by LIFE COMPANIES 25
12.2 Of LIFE COMPANIES by CDI 28
12.3 Effect of Notice 30
12.4 Successors 30
Section 13. Applicable Law 31
Section 14. Execution in Counterparts 31
Section 15. Severability 31
Section 16. Rights Cumulative 31
Section 17. Headings 31
Section 18. Confidentiality. 31
18.1 Continuing Obligation 31
18.2 Confidential Information 32
18.3 Unauthorized Disclosure Notification and Liability 32
18.4 Data Disposition 32
18.5 Duty Not to Trade 33
Section 19. Trademarks and Portfolio Names 33
Section 20. Parties to Cooperate 34
Section 21. Excessive Trading 34
Section 22. Force Majeure 36
Section 23. Miscellaneous 36
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of February 28, 2011
("Agreement"), by and among Ameritas Life Insurance Corp., a Nebraska
corporation ("Ameritas Life"), First Ameritas Life Insurance Corp. of New York,
a New York corporation ("First Ameritas Life"), and The Union Central Life
Insurance Company, a Nebraska corporation ("Union Central Life") (each a "LIFE
COMPANY" and together the "LIFE COMPANIES"), each on behalf of itself and each
of its segregated asset accounts listed in Schedule A hereto, as the parties
hereto may amend from time to time (each, an "Account," and collectively, the
"Accounts"); each of the registered investment companies listed in Schedule B
hereto, as the parties hereto may amend from time to time (each a "FUND" and
together the "FUNDS"); and Xxxxxxx Distributors, Inc., a Delaware Corporation
("CDI"), an affiliate of LIFE COMPANIES and the principal underwriter of the
FUNDS (collectively, the "Parties"), amends and restates all prior participation
agreements by and among the Parties including those set forth on Exhibit A
hereto. On or about April 30, 2011, Xxxxxxx Distributors, Inc. will change its
name to Xxxxxxx Investment Distributors, Inc. ("CID"), and upon the
effectiveness of such name change all references in this Agreement to Xxxxxxx
Distributors, Inc. or CDI shall automatically become references to CID.
WITNESSETH THAT:
WHEREAS, the FUNDS are registered with the Securities and Exchange
Commission ("SEC") as open-end management investment companies under the
Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the FUNDS currently consist of separate Portfolios registered
under the Securities Act of 1933, as amended ("Portfolios"), the shares of which
("Shares") are currently sold to one or more separate accounts of life insurance
companies to fund benefits under individual variable annuity contracts, group
variable annuity policies, and/or individual variable life insurance policies;
and
WHEREAS, the FUNDS will make Shares of each Portfolio available for
purchase by the Accounts; and
WHEREAS, LIFE COMPANIES are or will be the issuers of certain individual
variable annuity contracts and individual variable life insurance contracts and
group variable annuity contracts offered through employer-sponsored retirement
plans (hereinafter such contracts and policies are collectively referred to as
the "Contracts"), which Contracts, if required by applicable law, will be
registered under the Securities Act of 1933 (the "1933 Act"); and
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WHEREAS, LIFE COMPANIES will fund the Contracts through the Accounts, each
of which may be divided into two or more sub accounts ("Subaccounts;" references
herein to an "Account" includes reference to each Subaccount thereof to the
extent the context requires); and
WHEREAS, LIFE COMPANIES will serve as the depositor of the Accounts, each
of which is registered as a unit investment trust investment company under the
1940 Act (or exempt therefrom), and the security interests deemed to be issued
by the Accounts under the Contracts will be registered as securities under the
1933 Act (or exempt therefrom); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, LIFE COMPANIES intend to make Shares in one or more of the
Portfolios available to individual Contract owners ("Owners") and to purchase
Shares in one or more of the Portfolios on behalf of qualified employee benefit
plan participants; and
WHEREAS, CDI is a broker-dealer registered with the SEC under the
Securities Exchange Act of 1934 ("1934 Act") and a member in good standing of
the Financial Industry Regulatory Authority ("FINRA");
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein, the Parties hereto agree as follows:
Section 1. Available Portfolios
-----------------------------------
1.1 Availability.
-------------
The FUNDS will make Shares of each Portfolio available to LIFE COMPANIES
for purchase and redemption at net asset value and with no sales charges,
subject to the terms and conditions of this Agreement. The Boards of
Directors/Trustees of the FUNDS 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 if, in the sole discretion of the Directors/Trustees acting in good faith and
in light of their fiduciary duties under federal and any applicable state laws,
such action is deemed in the best interests of the shareholders of such
Portfolio.
1.2 Addition, Deletion or Modification of Portfolios.
-------------------------------------------------
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 available under this Agreement.
1.3 Restrictions on Sales to the General Public.
--------------------------------------------
The FUNDS may sell shares of any Portfolio to any person eligible to invest
in that Portfolio in accordance with applicable provisions of Section 817(h) of
the Internal Revenue Code of 1986, as amended (the "Code") and the regulations
thereunder. If such provisions are applicable to a Portfolio, the FUNDS
represent and warrant that no Shares of the Portfolio have
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been or will be sold directly to the general public. If the provisions of
Section 817(h) and the regulations thereunder are not applicable to a FUND, then
that FUND may sell Shares of any Portfolio to any person, including members of
the general public.
Section 2 Processing Transactions
-------------------------------------
2.1 Timely Pricing and Orders.
--------------------------
(a) Each Party agrees (i) to perform any and all duties, functions,
procedures and responsibilities assigned to it under the rules of the National
Securities Clearing Corporation ("NSCC") and the procedures or other
requirements relating to NSCC's Fund/SERV system ("Fund/SERV") and Networking
system ("Networking"), as applicable, in a competent manner; (ii) to maintain
facilities, equipment and skilled personnel sufficient to perform the foregoing
activities; (iii) that any information provided to another party through
Fund/SERV or Networking will be accurate, complete, and in the format prescribed
by the NSCC; and (iv) to adopt, implement and maintain procedures reasonably
designed to ensure the accuracy of all transmissions through Fund/SERV or
Networking and to limit the access to, and the inputting of data into, Fund/SERV
or Networking to persons specifically authorized by the Party.
(b) Each FUND or its designated agent will use its best efforts to provide
LIFE COMPANIES with the net asset value per Share for each Portfolio by 7:00
p.m. Eastern Standard Time on each Business Day. As used herein, "Business Day"
shall mean any day on which (i) the New York Stock Exchange is open for regular
trading (ii) a FUND calculates the Portfolio's net asset value, and (iii) a LIFE
COMPANY is open for business.
(c) Each LIFE COMPANY will use the data provided by the FUNDS each
Business Day pursuant to Section 2.1(b) to (i) calculate Account unit values,
(ii) process each Account's transactions that receive that same Business Day's
Account unit values (as determined in accordance with Section 2.3) and (iii)
determine the net dollar amount of Shares that will be purchased or redeemed at
that day's closing net asset value per Share for each Portfolio (each such
purchase or redemption, a "Portfolio Transaction"). Portfolio Transactions will
normally settle through the facilities of Fund/SERV. If any Portfolio
Transaction initiated through Fund/SERV fails to be processed through Fund/SERV
then that Portfolio Transaction will be transmitted to the applicable FUND by
the LIFE COMPANY by 8:30 a.m. Eastern Standard Time on the Business Day next
following LIFE COMPANY'S receipt of the information specified in Section 2.1(b);
provided, however, that a FUND shall provide additional time to LIFE COMPANY in
the event that the FUND is unable to meet the 7:00 p.m. time stated in Section
2.1(b) and the duration of such additional time shall be equal to the additional
time that the FUND takes to make the net asset values per Share available to
LIFE COMPANY.
(d) With respect to payment of the purchase price by each LIFE COMPANY and
of redemption proceeds by each FUND, each LIFE COMPANY and each FUND,
respectively, shall net purchase and redemption orders with respect to each
Portfolio and shall transmit one net payment per Portfolio in accordance with
Section 2.2, below.
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(e) If a FUND provides materially incorrect Share net asset value
information (as determined under SEC guidelines), the affected LIFE COMPANIES
shall be entitled to an adjustment to the number of Shares purchased or redeemed
to reflect the correct net asset value per Share, and any reasonable
out-of-pocket expenses incurred by the LIFE COMPANIES in adjusting the Share net
asset value. Any material error in the calculation or reporting of net asset
value per Share, dividend or capital gain information shall be reported promptly
upon discovery to the affected LIFE COMPANIES. Non-material errors will be
corrected in the next Business Day's net asset value per Share for the Portfolio
in question.
2.2 Timely Payments.
----------------
(a) Portfolio Transactions will normally settle through the facilities
of Fund/SERV. If a Portfolio Transaction initiated through Fund/SERV fails to
be processed through Fund/SERV and a LIFE COMPANY'S order requests the purchase
of Shares, such LIFE COMPANY will pay for such purchases by wiring Federal Funds
to a FUND or its designated custodial account by the close of the Federal
Reserve's Fedwire Funds Service ("Fedwire") on the Business Day the Portfolio
Transaction is transmitted to the FUND pursuant to Section 2.1(c)(iii) or, if
such transmission occurs after Fedwire has closed for that Business Day, by 8:30
a.m. Eastern Standard Time on the next following Business Day (the "Payment
Deadline"). A FUND will execute such Portfolio Transactions at the applicable
net asset value per Share determined in accordance with Section 2.3 if the FUND
receives payment in Federal Funds by the Payment Deadline. If payment in
Federal Funds for any purchase is not received by the Payment Deadline, LIFE
COMPANY shall promptly upon the FUND'S request, reimburse the FUND for any
charges, costs, fees, interest or other expenses incurred by the FUND in
connection with any advances to, or borrowings or overdrafts by, the FUND, or
any similar expenses incurred by the FUND, as a result of portfolio transactions
effected by the FUND based upon such Portfolio Transaction.
(b) Portfolio Transactions will normally settle through the facilities
of Fund/SERV. If a Portfolio Transaction initiated through Fund/SERV fails to
be processed through Fund/SERV and a LIFE COMPANY'S order requests the
redemption of Shares, the affected FUND will pay the redemption amount by wiring
Federal Funds to such LIFE COMPANY or its designated custodial account on the
same Business Day the FUND receives notice of the redemption order from the LIFE
COMPANY; however, after consulting with LIFE COMPANY, payment may be delayed,
but in no event may such payment be delayed longer than the period permitted
under Section 22(e) of the 1940 Act. The FUNDS will execute such Portfolio
Transactions at the applicable net asset value per Share determined in
accordance with Section 2.3.
2.3 Applicable Price.
-----------------
Subject to the satisfaction of the requirements set forth in Section 2.2,
Share purchase and redemption orders that result from purchase payments, premium
payments, surrenders and other transactions under Contracts (collectively,
"Contract Transactions") received by a LIFE COMPANY prior to the close of
regular trading on the New York Stock Exchange on a Business Day and encompassed
within a Portfolio Transaction transmitted to a FUND in accordance with
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Section 2.1(c) will be executed at the net asset value of the applicable
Portfolio next computed after receipt of the applicable Contract Transaction by
such LIFE COMPANY. A Contract Transaction that does not satisfy the conditions
specified in the preceding sentence will be effected at the net asset value per
Share computed for the applicable Portfolio on the Business Day as of which such
conditions have been satisfied. For purposes of this Section 2.3, a LIFE COMPANY
shall be the designated agent of a FUND for the limited purpose of accepting
orders for the purchase and sale of Shares relating to Contract Transactions on
each Business Day and, if a FUND receives a Portfolio Transaction in accordance
with Section 2.1(c) that encompasses such Contract Transaction, receipt of such
Contract Transaction by such designated agent shall constitute receipt by the
FUND. Each LIFE COMPANY agrees that it shall bear all liability for, and the
FUNDS, CDI and their affiliates shall not bear any liability for, a LIFE
COMPANY'S failure to (i) timely transmit any Contract Transaction to a FUND as
part of a Portfolio Transaction in accordance with Section 2.1(c) or (ii) pay
for the purchase of Shares in accordance with Section 2.2.
2.4 Dividends and Distributions.
----------------------------
On each ex-dividend date of a Portfolio or, if not a Business Day, on the
first Business Day thereafter, the FUNDS shall communicate to LIFE COMPANIES the
amount of dividend and capital gain, if any, per share of each Portfolio. All
distributions of dividends and capital gains for any Portfolio will normally
settle through Fund/SERV. If any dividend or capital gains transaction
initiated through Fund/SERV fails to be processed through Fund/SERV then (i) a
FUND shall automatically reinvest such amounts in additional shares of the
relevant Portfolio at the applicable net asset value per share of such Portfolio
on the payable date and (ii) a FUND shall, on the day after the payable date or,
if not a Business Day, on the first Business Day thereafter, notify LIFE COMPANY
of the number of Shares so issued. For each NETWORKING Account maintained under
a Matrix Level in which cash dividends are received by a LIFE COMPANY from the
Portfolios or FUNDS for payment to Shareholders, LIFE COMPANY shall be solely
responsible for ensuring that all cash dividends received by LIFE COMPANY are
paid to Shareholders in a timely manner. As among the Portfolios, FUNDS and
LIFE COMPANIES, LIFE COMPANIES shall be solely responsible for any liabilities
arising from such cash dividend payment reported by Shareholders as lost,
stolen, materially altered, or forged.
2.5 Book Entry.
-----------
Issuance and transfer of Shares will be by book entry only. Stock
certificates will not be issued to LIFE COMPANIES. Shares ordered from the
FUNDS will be recorded in an appropriate title for the relevant LIFE COMPANY, on
behalf of its respective Account(s).
2.6 NSCC - Obligations of the FUNDS or their Agent(s)
-------------------------------------------------
(a) Tax Statements
The FUNDS shall provide to LIFE COMPANIES in a timely manner the information
regarding the Portfolios to be included in Shareholder tax statements for the
period during which
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each NETWORKING Account was maintained under Matrix Level 3 at any time during a
taxable year.
(b) Notice of Prospectus and Statement of Additional Information Revisions
The FUNDS shall provide LIFE COMPANIES with reasonable notice of any revisions
to the Portfolios' prospectuses and statements of additional information that
the FUNDS reasonably believe would affect a LIFE COMPANY'S performance of it
duties and obligations pursuant to NETWORKING or this Agreement.
2.7 NSCC - Obligations of the LIFE COMPANIES or their Correspondents
----------------------------------------------------------------
(a) Information Relating to NETWORKING Accounts
For each NETWORKING Account, LIFE COMPANIES, or any third parties
authorized to act on behalf of a LIFE COMPANY ("LIFE COMPANIES'
Correspondents"), shall provide the Portfolios and the FUNDS with all
information necessary or appropriate to establish and maintain each NETWORKING
Account (and any subsequent changes to such information) which LIFE COMPANIES
hereby certify, to the best of the knowledge of LIFE COMPANIES, or LIFE
COMPANIES' Correspondents, is and shall remain true and correct. LIFE
COMPANIES, or LIFE COMPANIES' Correspondents, shall comply in all respects with
any and all applicable obligations relating to withholding pursuant to the
Internal Revenue Code of 1986, as amended (the "Code") and shall promptly advise
the Portfolios or FUNDS of any matter that may affect the responsibilities of
the Portfolios or FUNDS to Shareholders pursuant to the Code. LIFE COMPANIES,
or LIFE COMPANIES' Correspondents, shall maintain adequate documentation to
verify the relevant information regarding each NETWORKING Account.
(b) Shareholder Instructions Regarding NETWORKING Accounts
Unless otherwise prohibited by law, upon receipt of appropriate instructions
from a Shareholder (including instructions from LIFE COMPANIES' Correspondents,
the Portfolios or the FUNDS that were received from the Shareholder), a LIFE
COMPANY shall promptly execute the Shareholder's instructions to terminate the
maintenance of the Shareholder's account through NETWORKING or to effect changes
regarding the Matrix Levels utilized by the Shareholder in accordance with the
Shareholder's instructions; provided, however, that LIFE COMPANY shall be
required to terminate the maintenance of a Shareholder's account through
NETWORKING only if the Shareholder has paid for all Shares of the Portfolios in
its NETWORKING Account and the Shareholder does not have any obligation, arising
out of a margin account or otherwise, to LIFE COMPANY with respect to the
Shares.
(c) LIFE COMPANIES' Financial Condition
Each Firm that is not a member of FINRA shall deliver to the FUNDS such
financial statements as the FUNDS reasonably request concerning a LIFE COMPANY's
financial condition; such statements shall fairly represent such LIFE COMPANY's
financial condition as of the date thereof. The transmission by any such Firm
of any instruction, communication or action through NETWORKING shall constitute
a representation that there has been no material adverse change in a LIFE
COMPANY's financial condition that would affect such LIFE COMPANY's ability to
perform its duties and obligations pursuant to NETWORKING or the
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Agreement. Any such material adverse change in a LIFE COMPANY's financial
condition shall be promptly disclosed in writing to the FUNDS.
(d) Tax Statements
All information that is timely received by LIFE COMPANIES from the Portfolios or
FUNDS for inclusion in Shareholder tax statements relating to the period during
which a NETWORKING Account was maintained under Matrix Level 3 in a taxable year
shall be reported to Shareholders accurately, completely and in a timely manner.
Section 3. Costs and Expenses
-----------------------------
3.1 General.
--------
Except as otherwise specifically provided in Schedule C, attached hereto
and made a part hereof, each Party will bear, or arrange for another to bear,
all expenses incident to its performance under this Agreement.
3.2 Parties To Cooperate.
---------------------
Each Party agrees to cooperate with the others, as applicable, in arranging
to print, mail and/or deliver, in a timely manner, combined or coordinated
prospectuses or other materials of the FUNDS and the Accounts.
3.3 Portfolio Expenses.
-------------------
The charge to each Portfolio for all of its expenses and costs, including
but not limited to management fees, administrative expenses and legal and
regulatory costs, will be made in the determination of the applicable
Portfolio's daily net asset value per Share so as to accumulate to an annual
charge at the rate set forth in the applicable FUND's prospectus.
Section 4. Legal Compliance
---------------------------
4.1 Tax Laws.
(a) The FUNDS represent and warrant that each Portfolio is currently
qualified as a regulated investment company ("RIC") under Subchapter M of the
Code, and represent that each will use its best efforts to maintain such
qualification (under Subchapter M or any successor or similar provision). The
FUNDS will notify LIFE COMPANIES 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.
(b) The FUNDS represent that each complies and will use its best
efforts to maintain each Portfolio's compliance with the diversification
requirements set forth in Section 817(h) of the Code and Section 1.817-5(b) of
the regulations under the Code. The FUNDS will notify LIFE COMPANIES
immediately upon having a reasonable basis for believing that a Portfolio has
ceased to so comply or that a Portfolio might not so comply in the future. In
the event of a
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breach of this Section 4.1 (b) by a FUND, it will use its best efforts to
adequately diversify the affected Portfolio so as to achieve compliance within
the grace period afforded by Section 1.817-5 of the regulations under the Code.
The representations and warranties of this Section 4.1 (b) shall not apply with
respect to any Portfolio whose beneficial interests are held solely by
participants of "pension plan contracts" within the meaning of Section 818(a) of
the Code and other persons whose federal income tax treatment is not dependent
on the Portfolio's compliance with the requirements of Section 817(h) of the
Code.
(c) Notwithstanding any other provision herein to the contrary, LIFE
COMPANIES agree that if the Internal Revenue Service ("IRS") asserts in writing
in connection with any governmental audit or review of a LIFE COMPANY or, to a
LIFE COMPANY'S knowledge, that any Portfolio has failed to comply with the
diversification requirements of Section 817(h) of the Code or a LIFE COMPANY
otherwise becomes aware of any facts that could give rise to any claim against
the FUNDS or their affiliates as a result of such a failure or alleged failure:
(i) LIFE COMPANY shall promptly notify the affected FUND of such
assertion or potential claim (subject to the confidentiality
provisions of Section 18);
(ii) LIFE COMPANY shall consult with the affected FUND as to how to
minimize any liability that may arise as a result of such failure or
alleged failure;
(iii) LIFE COMPANY shall use its best efforts to minimize any liability of
the affected FUND 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;
(iv) LIFE COMPANY shall permit the affected FUND, 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
Owner or any other claimant regarding any claims that could give rise
to liability to the FUND or its affiliates as a result of such a
failure or alleged failure; provided, however, that LIFE COMPANY will
retain control of the conduct of such conferences discussions,
proceedings, contests or appeals;
(v) any written materials to be submitted by a LIFE COMPANY to the IRS,
any Owner 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 LIFE
COMPANY to the affected FUND (together with any supporting information
or analysis), subject to the confidentiality provisions of Section 18,
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 LIFE COMPANY to
any such person without the express written consent of the FUND which
shall not be unreasonably withheld;
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(vi) LIFE COMPANY shall provide the affected FUND or its affiliates and
their accounting and legal advisors with such cooperation as the FUND
shall reasonably request (including, without limitation, by permitting
the FUND and its accounting and legal advisors to review the relevant
books and records of LIFE COMPANY) in order to facilitate review by
the FUND 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 it arising from such a failure or alleged
failure;
(vii) LIFE COMPANY shall not with respect to any claim of the IRS or any
Owner that would give rise to a claim against the affected FUND 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 FUND or
its affiliates, which shall not be unreasonably withheld, provided
that LIFE COMPANY shall not be required, after exhausting all
administrative processes, to appeal any adverse judicial decision
unless the FUND 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
(viii) the affected FUND and its affiliates shall have no liability as a
result of such failure or alleged failure if LIFE COMPANY fails to
comply with any of the foregoing clauses (i) through (vii), and such
failure could be shown to have materially contributed to the
liability.
Should the affected FUND or any of its affiliates refuse to give its
written consent to any compromise or settlement of any claim or liability
hereunder, LIFE COMPANY may, in its discretion, authorize the FUND or its
affiliates to act in the name of LIFE 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 FUND 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 LIFE COMPANY have any liability resulting from the FUND'S refusal to
accept the proposed settlement or compromise with respect to any failure caused
by the FUND. 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 1940
Act.
(d) LIFE COMPANIES represent and warrant that the individual life
insurance or individual variable annuity Contracts currently are and will be
treated as annuity contracts or life insurance contracts under applicable
provisions of the Code and that each will use its best efforts to maintain such
treatment. LIFE COMPANIES will notify the FUNDS immediately upon having a
reasonable basis for believing that any of the individual Contracts have ceased
to be so treated or that they might not be so treated in the future.
(e) LIFE COMPANIES represent and warrant that each individual life
insurance or individual variable annuity Account is a "segregated asset account"
and that interests in each
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such 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. Each LIFE COMPANY will use its best efforts
to continue to meet such definitional requirements, and will notify the FUNDS
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.
4.2 Insurance and Certain Other Laws.
---------------------------------
(a) Each FUND will use its best efforts to comply with any applicable
state insurance laws or regulations, including, the furnishing of information
not otherwise available to LIFE COMPANIES which is required by state insurance
law to enable LIFE COMPANIES to obtain the authority needed to issue the
Contracts in any applicable state.
(b) LIFE COMPANIES represent and warrant that (i) each is an insurance
company duly organized, validly existing and in good standing under the laws of
its state of incorporation and domicile 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) each has legally and validly established
and maintains each Account as a segregated asset account under all applicable
insurance laws and regulations; (iii) the Contracts comply in all material
respects with all other applicable federal and state laws and regulations; and
(iv) each will use its best efforts to comply with all applicable state
insurance laws and regulations in the sales and administration of its Contracts.
LIFE COMPANIES agree to notify the FUNDS immediately in writing of any
investment restrictions imposed by any state insurance law that is applicable to
the FUNDS or any Portfolio.
(c) LIFE COMPANIES represent and warrant that the income, gains and
losses, whether or not realized, from assets allocated to each Account are, in
accordance with the applicable Contracts, to be credited to or charged against
such Account without regard to other income, gains or losses from assets
allocated to any other accounts of LIFE COMPANIES. LIFE COMPANIES represent and
warrant that the assets of the Accounts are and will be kept separate from LIFE
COMPANIES' general accounts and any other separate accounts a LIFE COMPANY may
have, and will not be charged with liabilities from any business that a LIFE
COMPANY may conduct or the liabilities of any companies affiliated with LIFE
COMPANIES.
(d) The FUNDS represent and warrant that: each of Xxxxxxx Variable
Series, Inc., Xxxxxxx Variable Products, Inc., Xxxxxxx Social Index Series,
Inc., Xxxxxxx Impact Fund, Inc., and Xxxxxxx World Values Fund, Inc. is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Maryland; each of Calvert Cash Reserves, The Xxxxxxx Fund,
and Xxxxxxx Social Investment Fund is a business trust duly organized, validly
existing, and in good standing under the laws of the State of Massachusetts; and
that Xxxxxxx XXXX Fund is a business trust duly organized, validly existing, and
in good standing under the laws of the State of Maryland, and that each FUND has
full power, authority, and legal right to execute, deliver, and perform its
duties and comply with its obligations under this Agreement.
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4.3 Securities Laws.
----------------
(a) LIFE COMPANIES represent and warrant that (i) interests in each
Account pursuant to the Contracts will be registered under the 1933 Act, to the
extent required by the 1933 Act, (ii) the Contracts, to the extent required by
the 1933 Act, will be described in a registration statement filed under the 1933
Act and will be duly authorized for issuance and sold and distributed in
compliance with all applicable federal and state laws, (iii) each Account is and
will remain registered under the 1940 Act, to the extent required by the 1940
Act, (iv) each Account is eligible to invest in Shares of the Portfolios without
such investment disqualifying any such Portfolio as an investment medium for
insurance company separate accounts supporting variable annuity, variable life
insurance, and pension plan contracts, (v) each Account does and will, for so
long as any Contract is outstanding, comply in all material respects with all
applicable legal requirements, (vi) each Account's 1933 Act registration
statement relating to the individual variable life insurance and individual
variable annuity 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, (vii) LIFE COMPANIES will amend the registration
statements for Contracts offered under the 1933 Act and for Accounts under the
1940 Act from time to time as required in order to effect the continuous
offering of the Contracts or as may otherwise be required by applicable law, and
(viii) each prospectus, statement of additional information, and other documents
pursuant to which Contracts are offered, and any amendments or supplements
thereto (collectively, the "Contract Prospectus"), will at all times comply in
all material respects with all applicable requirements of the 1933 Act and the
rules thereunder to the extent required.
(b) The FUNDS represent and warrant that (i) Shares sold pursuant to
this Agreement will be registered under the 1933 Act, to the extent required by
the 1933 Act, and duly authorized for issuance and sold in compliance with all
applicable federal and state laws, (ii) The FUNDS are and will remain registered
under the 1940 Act, to the extent required by the 1940 Act, (iii) each FUND will
amend the registration statements 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, (iv) the FUNDS do and will comply in all
material respects with the requirements of the 1940 Act and the rules
thereunder, (v) the FUNDS' 1933 Act registration statements, 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 (vi) the FUNDS'
prospectuses, statements of additional information and any amendments or
supplements thereto (collectively, the "FUND Prospectuses" will at all times
comply in all material respects with all applicable requirements of the 1933 Act
and the rules thereunder.
(c) Each FUND will at its expense register and qualify its Shares for
sale in accordance with the laws of any state or other jurisdiction if and to
the extent reasonably deemed advisable by the FUND.
(d) To the extent that a FUND finances distribution expenses of any of
the Shares pursuant to Rule 12b-1 of the 1940 Act, the FUND undertakes to have
its Board of Directors/Trustees, a majority of whom are not "interested" persons
of the FUND, formulate and approve any plan under Rule 12b-1 to finance
distribution expenses.
11
(e) Each FUND represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities having
access to the Portfolios and/or securities of any Portfolio are and will
continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the FUND in an amount not less than the minimal
coverage as required currently by Rule 17g-(l) of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
4.4 Anti-Money Laundering Procedures.
---------------------------------
Each party represents and warrants that it will comply with all applicable
anti-money laundering laws, regulations, rules and government guidance,
including the reporting, recordkeeping and compliance requirement of the Bank
Secrecy Act and the USA PATRIOT Act. All parties agree, when permitted by
applicable law, to promptly notify each other whenever (i) questionable
activities, (ii) potential indication of suspicious activities or (iii) Office
of Foreign Asset Control matches are detected. Each party agrees to investigate
any potentially suspicious activity and to take appropriate actions.
4.5 Privacy.
--------
Each Party warrants and represents that its conduct under this Agreement
shall comply with the Xxxxx-Xxxxx-Xxxxxx Act, Regulation S-P (17 C.F.R. 248),
and all other applicable federal and state laws and regulations concerning
customer confidentiality, and that no party will share customers' non-public
personal information with third parties, except as allowed by applicable law and
regulation.
4.6 Notice of Certain Proceedings and Other Circumstances.
------------------------------------------------------
(a) The FUNDS will immediately notify LIFE COMPANIES 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 a FUND'S registration statement
under the 1933 Act or FUND Prospectus, (ii) any request by the SEC for any
amendment to such registration statement or FUND Prospectus that may affect the
offering of Shares of the Portfolios, (iii) the initiation of any proceedings
for that purpose or for any other purpose relating to the registration or
offering of 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 LIFE COMPANIES. The FUNDS 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.
(b) LIFE COMPANIES will immediately notify the FUNDS 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, if any, under the 1933 Act relating to the Contracts or each Contract
Prospectus, (ii) any request by the SEC for any amendment to such
12
registration statement or Contract Prospectus that may affect the offering of
Shares of the Portfolios, (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 (if registration is required) and, in all
material respects, issued and sold in accordance with applicable state and
federal law. LIFE COMPANIES 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.
4.7 LIFE COMPANIES To Provide Documents: Information About the FUNDS.
-----------------------------------------------------------------
(a) LIFE COMPANIES will provide to the FUNDS or their designated
agent(s) at least one (1) complete copy of all then-current Account registration
statements, Contract Prospectuses, disclosure documents, reports, any
preliminary and final voting instruction solicitation material, applications for
exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to each Account or the Contracts, contemporaneously with the
filing of such document with the SEC, if required to be filed, or other
regulatory authorities. The FUNDS agree that LIFE COMPANIES shall be deemed to
have fully satisfied their obligations under this Section 4.7 by making the
required documents available on either the SEC's XXXXX information retrieval
system or on the applicable LIFE COMPANY'S website.
(b) LIFE COMPANIES will provide to the FUNDS or their designated
agent(s) at least one (1) complete copy of each piece of sales literature or
other promotional material in which a FUND or any of its affiliates is named, at
least five (5) Business Days prior to its use or such shorter period as the
Parties hereto may, from time to time, agree upon. No such material shall be
used if the FUND, any of its affiliates or its designated agent(s) objects to
such use within five (5) Business Days after receipt of such material or such
shorter period as the Parties hereto may, from time to time, agree upon. The
FUNDS hereby designate CDI as the entity to receive such sales literature, until
such time as the FUNDS appoint another designated agent by giving notice to LIFE
COMPANIES in the manner required by Section 9 of this Agreement.
(c) Neither LIFE COMPANIES nor any of their affiliates, will give any
information or make any representations or statements on behalf of or concerning
a FUND or CDI or their affiliates in connection with the sale of the Contracts
without first obtaining the express written permission of that FUND or CDI,
provided that such permission shall not be required when the information or
representations is contained in (i) a registration statement, including a FUND
Prospectus contained therein, relating to Shares, as such registration statement
and FUND Prospectus may be amended from time to time; or (ii) reports or proxy
materials for the FUND; or (iii) published reports for the FUND that are in the
public domain and approved by the FUND for distribution; or (iv) sales
literature or other promotional material approved by the FUND.
(d) LIFE COMPANIES shall adopt and implement procedures reasonably
designed to ensure that information concerning the FUNDS, CDI and their
affiliates that is intended for use only by brokers or agents selling the
Contracts (i.e., information that is not intended for
13
distribution to the public) ("broker only materials") is so used, and neither
the FUNDS, CDI nor any of their affiliates shall be liable for any losses,
damages or expenses relating to the improper use of such broker only materials.
(e) For the purposes of this Section 4.7, 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 applicable FINRA (or NASD) rules, the 1933 Act or the 0000
Xxx.
4.8 FUNDS To Provide Documents: Information About LIFE COMPANIES.
-------------------------------------------------------------
(a) The FUNDS will provide to LIFE COMPANIES at least one (1) complete
copy of all then-current FUND registration statements, FUND statutory
prospectuses, reports, any preliminary and final proxy material, applications
for exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to the FUNDS or the Shares of a Portfolio, contemporaneously
with the filing of such document with the SEC or other regulatory authorities.
LIFE COMPANIES agree that the FUNDS shall be deemed to have fully satisfied
their obligations under this Section 4.8 by providing written notice to the LIFE
COMPANIES of the nature and location of such documents and making the required
documents available on either the SEC's XXXXX information retrieval system or on
the FUNDS' website.
(b) The FUNDS will provide to LIFE COMPANIES a camera ready copy of
each Portfolio statutory prospectus and printed copies, in an amount specified
by LIFE COMPANY, of Portfolio statements of additional information, proxy
materials, periodic reports to Shareholders and other materials as may be
required by law to be sent to Owners who have allocated any Contract value to a
Portfolio. The FUNDS will provide such copies to LIFE COMPANIES in a timely
manner so as to enable LIFE COMPANIES, as the case may be, to print and
distribute such materials within the time as may be required by law to be
furnished to Owners. The form of such statutory prospectus and statement of
additional information provided by the FUNDS to LIFE COMPANIES shall be the
final form of statutory prospectus and statement of additional information as
filed with the SEC.
(c) In lieu of providing each Portfolio statutory prospectus pursuant to
Section 4.8(b), the FUNDS may elect to provide to LIFE COMPANIES a camera ready
copy of, and electronic access to, the summary prospectus for each Portfolio
that serves as an underlying investment option for the Accounts. If the FUNDS
so elect, the FUNDS will provide such copies and access to LIFE COMPANIES in a
timely manner so as to enable LIFE COMPANIES, as the case may be, to print (or
copy on compact disks or other medium) and distribute such materials within the
14
time required by law to be furnished to Owners and will comply with all other
prospectus delivery requirements of Rule 498 under the 1933 Act.
(d) The FUNDS will provide to LIFE COMPANIES or their designated
agent(s) at least one (1) complete copy of each piece of sales literature or
other promotional material in which a LIFE COMPANY, or any of its respective
affiliates is named, or that refers to the Contracts, at least five (5) Business
Days prior to its use or such shorter period as the Parties hereto may, from
time to time, agree upon. No such material shall be used if the LIFE COMPANY or
its designated agent objects to such use within five (5) Business Days after
receipt of such material or such shorter period as the Parties hereto may, from
time to time, agree upon. LIFE COMPANIES shall receive all such sales
literature until such time as a designated agent is appointed by giving notice
to the FUNDS in the manner required by Section 9 hereof.
(e) Neither the FUNDS nor CDI nor any of their affiliates will give any
information or make any representations or statements on behalf of or concerning
a LIFE COMPANY, each Account, or the Contracts without first obtaining the
express written permission of that LIFE COMPANY, provided that such permission
shall not be required when the information or representation is contained in (i)
the registration statement, including each Contract Prospectus contained therein
and disclosure documents, relating to the Contracts, as such registration
statement and Contract Prospectus may be amended from time to time; (ii) proxy
materials for any Account or Contract; (iii) published reports for the Account
or the Contracts that are in the public domain and approved by the LIFE COMPANY
for distribution; or (iv) sales literature or other promotional material
approved by the LIFE COMPANY or its affiliates.
(f) CDI shall adopt and implement procedures reasonably designed to
ensure that information concerning LIFE COMPANIES, and their respective
affiliates that is intended for use only by brokers or agents selling the
Contracts (i. e., information that is not intended for distribution to Owners)
("broker only materials") is so used, and neither LIFE COMPANIES, nor any of
their respective affiliates shall be liable for any losses, damages or expenses
relating to the improper use of such broker only materials.
(g) For purposes of this Section 4.8, 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 applicable FINRA (NASD) rules, the 1933 Act or the 1940 Act.
15
Section 5. Mixed and Shared Funding.
------------------------------------
5.1 General.
--------
Each of Xxxxxxx Variable Series, Inc, and Xxxxxxx Variable Products, Inc.
(the "Variable Funds") received an order from the SEC exempting it from certain
provisions of the 1940 Act and rules thereunder (the "Exemptive Orders") so that
each Variable Fund Portfolio may be available for investment by certain other
entities, including, without limitation, separate accounts funding variable
annuity contracts or variable life insurance contracts, separate accounts of
insurance companies unaffiliated with LIFE COMPANIES, and trustees of qualified
pension and retirement plans (collectively, "Mixed and Shared Funding"). LIFE
COMPANIES and CDI recognize that the SEC has imposed terms and conditions for
such orders that are substantially identical to many of the provisions of
Sections 5.2 through 5.8 of this Agreement. The Variable Funds hereby notify
LIFE COMPANIES that it may be appropriate to include in each Contract
Prospectus, and any other prospectus pursuant to which a Contract is offered,
disclosure regarding the potential risks of Mixed and Shared Funding.
5.2 Disinterested Directors.
------------------------
Each Variable Fund agrees that its Board of Directors shall at all times
consist of directors a majority of whom (the "Disinterested Directors") are not
interested persons of the Variable Fund within the meaning of Section 2(a)(19)
of the 1940 Act and the rules thereunder and as modified by any applicable
orders of the SEC, except that if this condition is not met by reason of the
death, disqualification, or bona fide resignation of any director, then the
operation of this condition shall be suspended (a) for a period of forty-five
(45) days if the vacancy or vacancies may be filled by the Board; (b) for a
period of sixty (60) days if a vote of shareholders is required to fill the
vacancy or vacancies; or (c) for such longer period as the SEC may prescribe by
order upon application.
5.3 Monitoring for Material Irreconcilable Conflicts.
-------------------------------------------------
Each Variable Fund agrees that its Board of Directors will monitor for the
existence of any material irreconcilable conflict between the interests of the
Owners in all separate accounts of life insurance companies utilizing the
Variable Fund ("Participating Insurance Companies"), including each Account, and
participants in all qualified retirement and pension plans investing in the
Variable Fund ("Participating Plans"). LIFE COMPANIES agree to inform the
Boards of Directors of the Variable Fund of the existence of or any potential
for any such material irreconcilable conflict of which it is aware. The concept
of a "material irreconcilable conflict" is not defined by the 1940 Act or the
rules thereunder, but the Parties recognize that such a conflict may arise for a
variety of reasons, including, without limitation:
(a) an action by any state insurance or other 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;
16
(c) an administrative or judicial decision in any relevant proceeding;
(d) the manner in which the investments of any Variable Fund Portfolio
are being managed;
(e) a difference in voting instructions given by variable annuity
contract and variable life insurance contract Owners or by Participants of
different Participating Insurance Companies;
(f) a decision by a Participating Insurance Company to disregard the
voting instructions of Owners; or
(g) a decision by a Participating Plan to disregard the voting
instructions of Plan participants.
Consistent with the SEC's requirements in connection with exemptive orders
of the type referred to in Section 5.1 hereof, LIFE COMPANIES will assist the
Boards of Directors in carrying out their responsibilities by providing the
Boards of Directors with all information reasonably necessary for the Boards of
Directors to consider any issue raised, including information as to a decision
by a LIFE COMPANY to disregard voting instructions of Owners. LIFE COMPANIES'
responsibilities in connection with the foregoing shall be carried out with a
view only to the interests of Owners.
5.4 Conflict Remedies.
------------------
(a) It is agreed that if it is determined by a majority of the members
of the Board of Directors or a majority of the Disinterested Directors that a
material irreconcilable conflict exists with regard to Owner investments in a
Variable Fund Portfolio, a LIFE COMPANY will, if it is a Participating Insurance
Company for which a material irreconcilable conflict is relevant, at its own
expense and to the extent reasonably practicable (as determined by a majority of
the Disinterested Directors), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, which steps may include, but are
not limited to:
(i) withdrawing the assets allocable to some or all of the Accounts
from the Variable Fund or the applicable Variable Fund Portfolio
and reinvesting such assets in a different investment medium,
including another Variable Fund Portfolio, or submitting the
question whether such segregation should be implemented to a vote
of all affected Owners and, as appropriate, segregating the
assets of any particular group (e.g., annuity Owners, life
insurance Owners or all Owners) that votes in favor of such
segregation, or offering to the affected Owners the option of
making such a change; and
(ii) establishing a new registered investment company of the type
defined as a "management company" in Section 4(3) of the 1940 Act
or a new separate account that is operated as a management
company unless a majority of
17
the Owners materially adversely affected by the conflict have
elected to decline the offer to establish a new registered
investment company or new separate account.
(b) If the material irreconcilable conflict arises because of a LIFE
COMPANY's decision to disregard Owner voting instructions and that decision
represents a minority position or would preclude a majority vote, such LIFE
COMPANY may be required, at the affected Variable Fund's election, to withdraw
each Account's investment in the Variable Fund or any Variable Fund Portfolio;
provided, however, that any such withdrawal shall be limited to the extent
required to remedy such material irreconcilable conflict as determined by a
majority of the Disinterested Directors. No charge or penalty will be imposed
as a result of such withdrawal. Any such withdrawal must take place within six
(6) months after the Variable Fund gives notice to LIFE COMPANY that this
provision is being implemented, and until such withdrawal the Variable Fund
shall continue to accept and implement orders by LIFE COMPANY for the purchase
and redemption of Shares of the Variable Fund.
(c) If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to a LIFE COMPANY conflicts with
the majority of other state regulators, then LIFE COMPANY will withdraw each
Account's investment in the Variable Fund within six (6) months after the
Variable Fund's Board of Directors informs LIFE COMPANY that it has determined
that such decision has created a material irreconcilable conflict, and until
such withdrawal the Variable Fund shall continue to accept and implement orders
by LIFE COMPANY for the purchase and redemption of Shares of the Variable Fund.
No charge or penalty will be imposed as a result of such withdrawal.
(d) Each LIFE 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 Owners.
(e) For purposes hereof, a majority of the Disinterested Directors will
determine whether or not any proposed action adequately remedies any material
irreconcilable conflict. In no event, however, will a Variable Fund or CDI or
any of its affiliates be required to establish a new funding medium for any
Contracts. LIFE COMPANIES will not be required by the terms hereof to establish
a new funding medium for any Contracts if an offer to do so has been declined by
vote of a majority of Owners materially adversely affected by the material
irreconcilable conflict.
5.5 Notice to LIFE COMPANIES.
-------------------------
The Variable Funds will promptly make known in writing to LIFE COMPANIES,
any determination by a Variable Fund's Board of Directors that a material
irreconcilable conflict exists, a description of the facts that give rise to
such conflict and the implications of such conflict.
18
5.6 Information Requested by Board of Directors.
--------------------------------------------
LIFE COMPANIES and the Variable Funds (or their investment adviser) will at
least annually submit to the Boards of Directors of the Variable Funds such
reports, materials or data as the Boards of Directors may reasonably request so
that the Boards of Directors may fully carry out the obligations imposed upon it
by the provisions hereof or the Exemptive Orders permitting Mixed and Shared
Funding, and said reports, materials and data will be submitted at any
reasonable time deemed appropriate by the Boards of Directors. All reports
received by the Boards of Directors of potential or existing conflicts, and all
Boards of Directors actions with regard to determining the existence of a
conflict, notifying Participating Insurance Companies and Participating Plans of
a conflict, and determining whether any proposed action adequately remedies a
conflict, will be properly recorded in the minutes of the affected Board of
Directors or other appropriate records, and such minutes or other records will
be made available to the SEC upon request.
5.7 Compliance with SEC Rules.
--------------------------
If, at any time during which a Variable Fund Portfolio is serving as an
investment medium for variable life insurance Contracts, 1940 Act Rules 6e-3(T)
or, if applicable, 6e-2 are amended or Rule 6e-3 is adopted to provide exemptive
relief with respect to Mixed and Shared Funding on terms materially different
from those contained in the Exemptive Order, the Parties agree that they will
comply with the terms and conditions thereof and that the terms of this Section
5 shall be deemed modified to the extent required in order also to comply with
the terms and conditions of such exemptive relief that is afforded by such
amended or adopted rules.
5.8 Other Requirements.
-------------------
(a) The Variable Fund will require that each Participating Insurance
Company and Participating Plan enter into an agreement with the Variable Fund
that contain substantially similar provisions as those set forth in Sections
4.1(b), 4.1(d), 4.3(a), 4.3(b), 4.5, 5, and 10 of this Agreement.
(b) No action by a LIFE COMPANY taken or omitted, and no action by any
Variable Fund taken or omitted as a result of any act or failure to act by a
LIFE COMPANY pursuant to this Section 5 shall relieve such LIFE COMPANY of its
obligations under, or otherwise affect the operation of, Section 3 or this
Section 5.
(c) No action by a Variable Fund taken or omitted, and no action by any
LIFE COMPANY taken or omitted as a result of any act or failure to act by a
Variable Fund pursuant to this Section 5 shall relieve such Variable Fund of its
obligations under, or otherwise affect the operation of, Section 3 or this
Section 5.
19
Section 6. Termination.
-----------------------
6.1 Events of Termination.
----------------------
Subject to Section 6.4 below, this Agreement will terminate as to one or
more Portfolios:
(a) at the option of any Party, with or without cause with respect to
one or more Portfolios upon six (6) months advance written notice to the other
parties, or, if later, upon receipt of any required exemptive relief from the
SEC, unless otherwise agreed to in writing by the parties; or
(b) at the option of the FUNDS upon institution of formal proceedings
against a LIFE COMPANY or its affiliates by the FINRA, the SEC, any state
insurance regulator or any other regulatory body regarding LIFE COMPANY's
obligations under this Agreement or related to the sale of the Contracts, the
operation of each Account, or the purchase or sale of Shares, if, in each case,
the affected FUND reasonably determines that such proceedings, or the facts on
which such proceedings would be based, have a material likelihood of imposing
material adverse consequences on the FUND or any Portfolio with respect to which
the Agreement is to be terminated; or
(c) at the option of a LIFE COMPANY upon institution of formal
proceedings against a FUND, its principal underwriter, or its investment adviser
by FINRA, the SEC, or any state insurance regulator or any other regulatory body
regarding the FUND'S obligations under this Agreement or related to the
operation or management of the FUND or the purchase or sale of Shares, if, in
each case, LIFE COMPANY reasonably determines that such proceedings, or the
facts on which such proceedings would be based, have a material likelihood of
imposing material adverse consequences on LIFE COMPANY, or the Subaccount
corresponding to the Portfolio with respect to which the Agreement is to be
terminated; or
(d) at the option of any Party in the event that (i) a Portfolio's
Shares are not registered, where required, and, in all material respects, issued
and sold in accordance with any applicable federal or state law, or (ii) such
law precludes the use of such Shares as an underlying investment medium of the
Contracts issued or to be issued by a LIFE COMPANY; or
(e) upon termination of the corresponding Subaccount's investment in a
Portfolio pursuant to Section 5 of this Agreement; or
(f) at the option of a LIFE COMPANY if a FUND ceases to qualify as a
RIC under Subchapter M of the Code or under successor or similar provisions, or
if LIFE COMPANY reasonably believes that the FUND may fail to so qualify; or
(g) at the option of a LIFE COMPANY if a Portfolio fails to comply with
Section 817(h) of the Code or with successor or similar provisions, as
applicable, or if LIFE COMPANY reasonably believes that the Portfolio may fail
to so comply; or
20
(h) at the option of a FUND if the Contracts issued by a LIFE COMPANY
cease to qualify as annuity contracts or life insurance contracts under the Code
(other than by reason of the FUND'S noncompliance with Section 817(h) or
Subchapter M of the Code) or if interests in an Account under the Contracts are
not registered, where required, and, in all material respects, are not issued or
sold in accordance with any applicable federal or state law;
(i) at the option of a FUND, if the FUND'S Board determines, in its
sole judgment reasonable exercised in good faith, that (1) a LIFE COMPANY has
suffered a material adverse change in its business or financial condition or is
the subject of material adverse publicity and such material adverse change or
material adverse publicity is likely to have a material adverse impact upon the
business and operation of the FUND its principal underwriter, or its investment
adviser, or (2) it is no longer advisable and in the best interests of
Shareholders for the FUND or any Portfolio to operate pursuant to this
Agreement; or
(j) at the option of any LIFE COMPANY, if the LIFE COMPANY'S Board
determines, in its sole judgment reasonable exercised in good faith, that (1) a
FUND or CDI has suffered a material adverse change in its business or financial
condition or is the subject of material adverse publicity and such material
adverse change or material adverse publicity is likely to have a material
adverse impact upon the business and operation of the LIFE COMPANY or its
Accounts, or (2) it is no longer advisable and in the best interests of
Shareholders for the LIFE COMPANY to operate pursuant to this Agreement; or
(k) upon another Party's material breach of any provision of this
Agreement.
6.2 Notice Requirement for Termination.
-----------------------------------
No termination of this Agreement will be effective unless and until the
Party terminating this Agreement gives prior written notice to each other Party
to this Agreement of its intent to terminate, and such notice shall set forth
(i) the basis for such termination and (ii) specify the Portfolio or Portfolios,
Contracts and, if applicable, Accounts as to which the Agreement is to be
terminated. Furthermore:
(a) in the event that any termination is based upon the provisions of
Sections 6.1(a) or 6.1(e) hereof, such prior written notice shall be given at
least six (6) months in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto;
(b) in the event that any termination is based upon the provisions of
Sections 6.1(b) 6.1(c), 6.1(i) or 6.1(j) hereof, such prior written notice shall
be given at least ninety (90) days in advance of the effective date of
termination unless a shorter time is agreed to by the Parties hereto; and
(c) in the event that any termination is based upon the provisions of
Sections 6.1(d), 6.l(f), 6.1(g), 6.1(h) or 6.1(k) hereof, such prior written
notice shall be given as soon as possible within twenty-four (24) hours after
the terminating Party learns of the event giving rise to the right to terminate.
21
6.3 Funds To Remain Available.
--------------------------
Notwithstanding any termination of this Agreement, the FUNDS will, at the
option of LIFE COMPANIES, continue to make available additional shares of the
Portfolios pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, without
limitation, the owners of the Existing Contracts will be permitted to reallocate
investments in any Portfolio (as in effect on such date), redeem investments in
any such Portfolio and/or invest in any such Portfolio upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 6.3 will not apply to any terminations under Section 5 and the
effect of such terminations will be governed by Section 5 of this Agreement.
6.4 Survival of Warranties, Indemnifications and Confidentiality.
-------------------------------------------------------------
All warranties and indemnifications will survive the termination of this
Agreement.
6.5 Continuance of Agreement for Certain Purposes.
----------------------------------------------
If any Party terminates this Agreement with respect to any Portfolio
pursuant to Sections 6.1(b), 6.l(c), 6.1(d), 6.1(f), 6.1(g), 6.1(h), 6.1(i),
6.1(j) or 6.1(k) hereof, this Agreement shall nevertheless continue in effect as
to any Shares of that Portfolio that are outstanding as of the date of such
termination (the "Initial Termination Date"). This continuation shall extend to
the earlier of the date as of which an Account owns no Shares of the affected
Portfolio or a date (the "Final Termination Date") six (6) months following the
Initial Termination Date, except that a LIFE COMPANY may, by written notice
shorten said six (6) month period in the case of a termination pursuant to
Sections 6.1(d), 6.1(f), 6.1(g), 6.1(h) or 6.1(k).
Section 7. Parties To Cooperate Respecting Termination.
--------------------------------------------
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 Final
Termination Date with respect thereto, or, in the case of a termination pursuant
to Section 6.1(a), the termination date specified in the notice of termination.
Such steps may include combining the affected Account with another Account,
substituting other mutual fund shares for those of the affected Portfolio, or
otherwise terminating participation by the Contracts in such Portfolio.
Section 8. Assignment.
-----------
This Agreement may not be assigned by any Party, except with the written
consent of each other Party.
22
Section 9. Notices.
--------
Notices and communications required or permitted by this Agreement will be
given by means mutually acceptable to the Parties concerned. Each other notice
or communication required or permitted by this Agreement will be given to the
following persons at the following addresses and facsimile numbers, or such
other persons, addresses or facsimile numbers as the Party receiving such
notices or communications may subsequently direct in writing:
If to a FUND:
[NAME OF FUND]
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000X
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
If to CDI:
Xxxxxxx Investment Distributors, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000X
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxx
Tel: 000-000-0000
Fax: 000-000-0000
In the case of any notice to a FUND or CDI, a duplicate copy shall be sent to:
Xxxxxxx Investments, Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000X
Xxxxxxxx, XX 00000
Attn: Office of the General Counsel
Tel: 000-000-0000
Fax: 000-000-0000
If to the LIFE COMPANIES:
Ameritas Life Insurance Corp.
Attention: General Counsel
0000 "X" Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
23
First Ameritas Life Insurance Corp. of New York
c/o Ameritas Life Insurance Corp.
Attention: General Counsel
0000 "X" Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
The Union Central Life Insurance Company
c/o Ameritas Life Insurance Corp.
Attention: General Counsel
0000 "X" Xxxxxx
Xxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
The Union Central Life Insurance Company, Administrative Offices
Attention: Investment Products Group
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
Section 10. Voting Procedures.
------------------
(a) Subject to the cost allocation procedures set forth in Section 3
hereof, LIFE COMPANIES, or LIFE COMPANIES' Correspondents, will distribute all
proxy material furnished by the FUNDS to Owners to whom pass-through voting
privileges are required to be extended and will solicit voting instructions from
Owners. LIFE COMPANIES will vote Shares in accordance with timely instructions
received from Owners. LIFE COMPANIES will vote Shares that are (a) not
attributable to Owners to whom pass-through voting privileges are extended, or
(b) attributable to Owners, but for which no timely instructions have been
received, in the same proportion as Shares for which said instructions have been
received from Owners, so long as and to the extent that the SEC continues to
interpret the 1940 Act to require pass through voting privileges for Owners.
Neither LIFE COMPANIES nor any of their affiliates will in any way recommend
action in connection with or oppose or interfere with the solicitation of
proxies for the Shares held in any Account for such Owners. LIFE COMPANIES
reserve the right to vote shares held in any Account in its own right, to the
extent permitted by law. LIFE COMPANIES shall be responsible for assuring that
voting Shares for each Account is conducted in a manner consistent with the
Exemptive Orders permitting Mixed and Shared Funding. The FUNDS will notify
LIFE COMPANIES of any changes of interpretations or amendments to the Exemptive
Orders permitting Mixed and Shared Funding.
24
(b) Each LIFE COMPANY agrees that it shall not, without the prior written
consent of the FUNDS, their principal underwriter and investment adviser,
solicit induce or encourage Owners to (i) change or supplement any Portfolio's
current investment advisor or subadvisor or (ii) change, modify, substitute, add
to or delete the content, in part or in whole, of a FUND'S Prospectus.
Section 11. Foreign Tax Credits.
------------------------------------
The FUNDS agree to consult in advance with LIFE COMPANIES concerning any
decision to elect or not to elect pursuant to Section 853 of the Code to pass
through the benefit of any foreign tax credits to its Shareholders.
Section 12. Indemnification.
--------------------------------
12.1 Of the FUNDS and CDI by LIFE COMPANIES.
---------------------------------------
(a) Except to the extent provided in Sections 12.1(b), 12.1(c) and
12.1(d), below, LIFE COMPANIES agree to indemnify and hold harmless the FUNDS,
CDI, their respective affiliates, and each person, if any, who controls the
FUNDS, CDI, or their respective affiliates within the meaning of Section 15 of
the 1933 Act and each of their respective directors and officers, (collectively,
the "Xxxxxxx Indemnified Parties" for purposes of this Section 12.1) against any
and all losses, claims, damages, liabilities (including any investigative, legal
and other expenses reasonably incurred in connection with, and any amounts paid
in settlement of, any action, suit or proceeding or any claim asserted)
(collectively "Losses"), to which the Xxxxxxx Indemnified Parties may become
subject under any statute, regulation, at common law or otherwise, insofar as
such Losses:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Account's
1933 Act registration statement, any Contract Prospectus, the
Contracts, disclosure documents, sales literature or advertising
for the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, that this agreement to indemnify shall not
apply as to any Xxxxxxx 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
LIFE COMPANIES by or on behalf of the FUNDS or CDI for use in any
Account's 1933 Act, registration statement, any Contract
Prospectus, the Contracts, disclosure documents, sales literature
or advertising or otherwise for use in connection with the sale
of Contracts or Shares (or any amendment or supplement to any of
the foregoing); or
(ii) arise out of or as a result of any other statements or
representations supplied by LIFE COMPANIES and on which any
Xxxxxxx Indemnified
25
Party has reasonably relied, or the negligent, illegal or
fraudulent conduct of LIFE COMPANIES or their respective
affiliates or persons under their control (including, without
limitation, their employees and "associated persons," as that
term may be defined, from time to time, by FINRA), in connection
with the sale or distribution of the Contracts or Shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a FUND'S 1933
Act registration statement, Prospectus, sales literature or
advertising, or any amendment or supplement to any of the
foregoing, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading if such a statement or
omission was made in reliance upon and in conformity with
information furnished to the FUNDS, CDI or their affiliates by or
on behalf of LIFE COMPANIES or their respective affiliates for
use in a FUND'S 1933 Act registration statement, Prospectus,
sales literature or advertising, or any amendment or supplement
to any of the foregoing; or
(iv) arise as a result of any failure by LIFE COMPANIES to perform
the obligations, provide the services and furnish the materials
required of them under the terms of this Agreement, or any
material breach of any representation and/or warranty made by
LIFE COMPANIES in this Agreement or arise out of or result from
any other material breach of this Agreement by LIFE COMPANIES; or
(v) arise as a result of the failure of any Contract issued by LIFE
COMPANIES to qualify as an annuity contract or life insurance
contract under the Code, otherwise than by reason of any
Portfolio's failure to comply with Subchapter M or Section 817(h)
of the Code; or
(vi) arise as a result of a LIFE COMPANY'S incorrect calculation
and/or untimely transmission of net purchase or redemption orders
of Shares (subject to Section 2.1(c) of this Agreement) or a LIFE
COMPANY'S failure to pay for the purchase of Shares in accordance
with Section 2.2 of this Agreement.
(b) The indemnity obligations of LIFE COMPANIES are in addition to any
other liability that they may otherwise have under this Agreement. LIFE
COMPANIES shall not be liable to any Xxxxxxx Indemnified Party under this
Section 12.1 with respect to any Losses by reason of that Xxxxxxx Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of or reckless disregard of, its obligations or duties (i) under this Agreement,
or (ii) to LIFE COMPANIES, each Account or Owners. Notwithstanding any other
provision of this Agreement, LIFE COMPANIES shall not be liable for any special,
consequential or incidental damages.
26
(c) LIFE COMPANIES shall not be liable to any Xxxxxxx Indemnified Party
under this Section 12.1 with respect to any Losses unless the FUNDS or CDI shall
have notified the affected LIFE COMPANY in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the related action shall have been served upon such Xxxxxxx Indemnified Party
(or after such Xxxxxxx Indemnified Party shall have received notice of such
service on any designated agent), but failure to notify that LIFE COMPANY of any
such action shall not relieve LIFE COMPANY from any liability which it may have
to the Xxxxxxx Indemnified Party otherwise than on account of this Section 12.1
and then only to the extent that LIFE COMPANY did not otherwise learn of such
action and the failure to provide such notice results in the forfeiture by LIFE
COMPANY of material rights and defenses. Except as otherwise provided herein, in
any such action brought against a Xxxxxxx Indemnified Party, LIFE COMPANIES
shall be entitled to participate, at their own expense, in the defense of such
action and also shall be entitled to assume the defense thereof, with counsel
approved by the Xxxxxxx Indemnified Party named in the action, which approval
shall not be unreasonably withheld. After notice from a LIFE COMPANY to such
Xxxxxxx Indemnified party of that LIFE COMPANY'S election to assume the defense
thereof, the Xxxxxxx Indemnified Party will cooperate fully with LIFE COMPANY
and shall bear the fees and expenses of any additional counsel retained by it,
and LIFE COMPANY will not be liable to such Xxxxxxx Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such Xxxxxxx
Indemnified Party independently in connection with the defense thereof, other
than reasonable costs of investigation, participation and cooperation with the
defense to the extent requested by LIFE COMPANY; provided however, that if such
Xxxxxxx Indemnified Party reasonably determines that counsel selected by LIFE
COMPANY has a conflict of interest that affects counsel's representation of such
Xxxxxxx Indemnified Party, LIFE COMPANY shall pay the reasonable fees and
disbursements of one additional counsel (in addition to local counsel) separate
from its own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances.
(d) LIFE COMPANIES shall not be liable for any settlement of any proceeding
effected without its written consent. LIFE COMPANY, in the defense of any claim
or litigation pursuant to this Section 12.1, shall not, without the prior
written consent of each Xxxxxxx Indemnified Party, consent to the entry of any
judgment or enter into any settlement that does not include as an unconditional
term the giving by the claimant or plaintiff to each Xxxxxxx Indemnified Party
of a release from any and all liability in respect to such claim or litigation.
LIFE COMPANIES shall not settle any claim in any manner that would impose any
expense, penalty, obligation or limitation on any Xxxxxxx Indemnified Party, or
would contain language other than a recitation of any amounts to be paid in
settlement, the fact of the settlement or the underlying claim relating to the
settlement, that could be viewed, in the sole discretion of each Xxxxxxx
Indemnified Party, as an acknowledgment of wrongdoing on the part of such
Xxxxxxx Indemnified Party or as detrimental to the reputation of such Xxxxxxx
Indemnified Party, without such Xxxxxxx Indemnified Party's prior written
consent.
27
12.2 Of LIFE COMPANIES by CDI.
-------------------------
(a) Except to the extent provided in Sections 12.2(c), 12.2(d) and 12.2(e),
below, CDI agrees to indemnify and hold harmless LIFE COMPANIES, their
respective affiliates, and each person, if any, who controls LIFE COMPANIES or
their respective affiliates within the meaning of Section 15 of the 1933 Act and
each of their respective directors and officers, (collectively, the "Life
Company Indemnified Parties") against any and all Losses to which the Life
Company Indemnified Parties may become subject under any statute, regulation, at
common law, or otherwise, insofar as such Losses:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in a FUND'S 1933
Act registration statement, Prospectus, sales literature or
advertising (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading; provided, that this agreement to indemnify shall not
apply as to any Life Company 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
FUNDS or CDI or its affiliates by or on behalf of LIFE COMPANIES
or their respective affiliates for use in a FUND'S 1933 Act
registration statement, Prospectus, sales literature or
advertising or otherwise for use in connection with the sale of
Contracts or Shares (or any amendment or supplement to any of the
foregoing); or
(ii) arise out of or as a result of any other statements or
representations supplied by the FUNDS or CDI and on which any
Life Company Indemnified Party has reasonably relied, or the
negligent, illegal or fraudulent conduct of the FUNDS, CDI or its
affiliates or persons under their control (including, without
limitation, their employees and "associated persons" as that term
may be defined, from time to time, by FINRA), in connection with
the sale or distribution of Shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Account's
1933 Act registration statement, any Contract Prospectus,
disclosure documents, sales literature or advertising covering
the Contracts, or any amendment or supplement to any of the
foregoing, 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 in conformity with
information furnished to LIFE COMPANIES or their respective
affiliates by or on behalf of the FUNDS or CDI for use in any
Account's 1933 Act registration statement, any Contract
Prospectus, sales literature or advertising covering the
Contracts, or any amendment or supplement to any of the
foregoing; or
28
(iv) arise as a result of any failure by the FUNDS or CDI to perform
the obligations, provide the services and furnish the materials
required of it under the terms of this Agreement, or any material
breach of any representation and/or warranty made by the FUNDS or
CDI in this Agreement or arise out of or result from any other
material breach of this Agreement by the FUNDS or CDI; or
(v) arise out of or as a result of the incorrect or untimely
calculation or reporting by the FUNDS or CDI of the closing net
asset value per Share for any Portfolio (subject to Section 2.1
of this Agreement) or any dividend or capital gain distribution
rate applicable to any Portfolio.
(b) Except to the extent provided in Sections 12.2(c), 12.2(d) and
12.2(e) hereof, CDI agrees to indemnify and hold harmless the Life Company
Indemnified Parties from and against any and all Losses to which the Life
Company Indemnified Parties may become subject directly or indirectly under any
statute, at common law or otherwise, insofar as such Losses directly or
indirectly result from or arise out of the failure of any Portfolio to operate
as a regulated investment company in compliance with (i) Subchapter M of the
Code and regulations thereunder, or (ii) Section 817(h) of the Code and
regulations thereunder, including, without limitation, any income taxes and
related penalties, rescission charges, liability under state law to Owners
asserting liability against LIFE COMPANIES pursuant to the Contracts, the costs
of any ruling and closing agreement or other settlement with the IRS, and the
cost of any substitution by LIFE COMPANIES of shares of another investment
company or Share of another Portfolio for those of any adversely affected
Portfolio as a funding medium for each Account that LIFE COMPANIES reasonably
deem necessary or appropriate as a result of the noncompliance.
(c) The indemnity obligations of CDI are in addition to any other liability
that it may otherwise have under this Agreement. CDI shall not be liable to any
Life Company Indemnified Party under this Section 12.2 with respect to any
Losses by reason of that Life Company Indemnified Party's willful misfeasance,
bad faith, or gross negligence in the performance of, or reckless disregard of,
its obligations or duties (i) under this Agreement, or (ii) to the FUNDS, CDI or
the Portfolios. Notwithstanding any other provision of this Agreement, CDI shall
not be liable for any special, consequential or incidental damages.
(d) CDI shall not be liable to any Life Company indemnified Party under
this Section 12.2 with respect to any Losses unless the Life Company Indemnified
Party shall have notified CDI in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
related action shall have been served upon such Life Company Indemnified Party
(or after such Life Company Indemnified Party shall have received notice of such
service on any designated agent), but failure to notify CDI of any such action
shall not relieve CDI from any liability which it may have to such Life Company
Indemnified Party otherwise than on account of this Section 12.2 and then only
to the extent that CDI did not otherwise learn of such action and the failure to
provide such notice results in the forfeiture by CDI of material rights and
defenses. Except otherwise provided herein, in any such action brought against
any Life Company Indemnified Party, CDI will be entitled to participate, at its
29
own expense, in the defense of such action and also shall be entitled to assume
the defense thereof (which shall include, without limitation, the conduct of any
ruling request and closing agreement or other settlement proceeding with the
IRS), with counsel approved by the Life Company Indemnified Party named in the
action, which approval shall not be unreasonably withheld. After notice from CDI
to such Life Company Indemnified Party of CDI's election to assume the defense
thereof, the Life Company Indemnified Party will cooperate fully with CDI and
shall bear the fees and expenses of any additional counsel retained by it, and
CDI will not be liable to such Life Company Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such Life
Company Indemnified Party independently in connection with the defense thereof,
other than reasonable costs of investigation, participation and cooperation with
the defense to the extent requested by CDI; provided however, that if such Life
Company Indemnified Party reasonably determines that counsel selected by CDI has
a conflict of interest that affects counsel's representation of such Life
Company Indemnified Party, CDI shall pay the reasonable fees and disbursements
of one additional counsel (in addition to local counsel) separate from its own
counsel for all indemnified parties in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances.
(e) CDI shall not be liable for any settlement of any proceeding
effected without its written consent. CDI, in the defense of any claim or
litigation pursuant to this Section 12.2, shall not, without the prior written
consent of each Life Company Indemnified Party, consent to the entry of any
judgment or enter into any settlement that does not include as an unconditional
term the giving by the claimant or plaintiff to each Life Company Indemnified
Party of a release from any and all liability in respect to such claim or
litigation. CDI shall not settle any claim in any manner that would impose any
expense, penalty, obligation or limitation on any Life Company Indemnified
Party, or would contain language other than a recitation of any amounts to be
paid in settlement, the fact of the settlement or the underlying claim relating
to the settlement, that could be viewed, in the sole discretion of each Life
Company Indemnified Party, as an acknowledgment of wrongdoing on the part of
such Life Company Indemnified Party or as detrimental to the reputation of such
Life Company Indemnified Party, without such Life Company Indemnified Party's
prior written consent.
12.3 Effect of Notice.
-----------------
Any notice given by the indemnifying Party to an Indemnified Party referred
to in Sections 12.1(c) or 12.2(d) above of participation in or control of any
action by the indemnifying Party will in no event be deemed to be an admission
by the indemnifying Party of liability, culpability or responsibility, and the
indemnifying Party will remain free to contest liability with respect to the
claim among the Parties or otherwise.
12.4 Successors.
-----------
A successor by law of any Party shall be entitled to the benefits of the
indemnification contained in this Section 12.
30
Section 13. Applicable Law.
-------------------------------
This Agreement will be construed and the provisions hereof interpreted
under and in accordance with Maryland law, without regard for that state's
principles of conflict of laws.
Section 14. Execution in Counterparts.
------------------------------------------
This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together will constitute one and the same instrument.
Section 15. Severability.
-----------------------------
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will not
be affected thereby, but shall have the same force and effect as if the invalid
or unenforceable portion had not been inserted.
Section 16. Rights Cumulative.
----------------------------------
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, that the Parties are entitled to under federal and state
laws.
Section 17. Headings.
-------------------------
The Table of Contents and headings used in this Agreement are for purposes
of reference only and shall not limit or define the meaning of the provisions of
this Agreement.
Section 18. Confidentiality.
--------------------------------
18.1 Confidentiality Obligation.
---------------------------
Each Party shall hold the Confidential Information of the other Party in
strict confidence. Each Party warrants to the other that it shall not (i)
disclose to any person any Confidential Information of the other Party which it
may acquire in the performance of its obligations under this Agreement or (ii)
use Confidential Information of the other Party for any purpose, except, in each
case, for the purpose of fulfilling its contractual obligations under this
Agreement, and then any disclosure or use of any such Confidential Information
shall be limited to its or its affiliate's employees, attorneys, accountants or
other advisors who have a business need to know such Confidential Information
and who have agreed to be bound by the confidentiality obligations set forth
herein. Each Party shall maintain the other Party's Confidential Information
with reasonable care, which shall not be less than the degree of care it would
use to safeguard its own Confidential Information, for the purpose of preventing
the unauthorized, negligent or inadvertent disclosure or use thereof.
31
18.2 Confidential Information.
-------------------------
(a) "Confidential Information" means, with respect to a Party, (i) any
data or information that is or relates to proprietary information of that party,
including, without limitation, nonpublic portfolio holding information of any
mutual fund for which CDI acts in the capacity of principal underwriter,
financial information, business or marketing strategies or plans, and product
development strategies or plans, (ii) information that the party has labeled
Confidential, (iii) the identity of that Party's customers and any "non-public
personally identifiable information" of those customers, as that term is defined
in the Xxxxx-Xxxxx-Xxxxxx Act and the rules and regulations promulgated
thereunder, and (iv) information relating to that Party that a reasonable
business person would understand to be confidential.
(b) Confidential Information does not include information that (a) was
in the public domain prior to the date of this Agreement or subsequently came
into the public domain through no fault of the receiving Party or by no
violation of this Agreement; (b) was lawfully received by the receiving Party
from a third party free of any obligation of confidence of such third party; (c)
was already in the possession of the receiving Party prior to receipt thereof
directly or indirectly from the disclosing Party; (d) is subsequently and
independently developed by employees, consultants or agents of the receiving
Party without reference to or use of the Confidential Information disclosed
under this Agreement; (e) is required to be disclosed pursuant to applicable
laws, regulatory or legal process, subpoena or court order; provided, that the
receiving Party (i) shall, unless restrained by court order, promptly notify the
disclosing Party of any such demand or request in order to enable the disclosing
Party to obtain an appropriate protective order to prevent such disclosure, (ii)
shall, at the disclosing Party's cost and expense, fully cooperate with the
disclosing Party to obtain an appropriate protective order, and (iii) may, in
the absence of an appropriate protective order, disclose only that information
that its legal counsel advises in writing must be disclosed; or (f) relates to
any fees payable to LIFE COMPANIES for performing certain administrative
services.
18.3 Unauthorized Disclosure Notification and Liability.
---------------------------------------------------
The receiving Party shall promptly notify the disclosing Party of, and
provide the details regarding, any unauthorized disclosure, possession or use of
the disclosing Party's Confidential Information. Each Party understands and
agrees that the receiving Party shall be liable for damages arising out of any
breach of the confidentiality obligations set forth in this Agreement.
18.4 Data Disposition.
-----------------
Upon the disclosing Party's written request, the receiving Party shall
promptly return all documents and other media containing Confidential
Information. Any information that cannot feasibly be returned shall be purged,
deleted or destroyed and the receiving Party shall deliver to the disclosing
Party written certification thereof; provided, however, that the receiving Party
may retain a single copy of the Confidential Information solely for the purpose
of complying with applicable law or regulation or the order of any court,
arbitration panel, regulator or similar governmental authority having
jurisdiction over the receiving Party. The receiving Party shall
32
have an ongoing obligation to safeguard all information of the disclosing Party
that is not returned, purged, deleted or destroyed.
18.5 Duty Not to Trade.
------------------
The receiving Party agrees not to trade on any Confidential Information
disclosed to it or otherwise obtained by it from the disclosing Party or any of
the disclosing Party's affiliates, agents or representatives.
Section 19. Trademarks and Portfolio Names.
-----------------------------------------------
(a) The FUNDS, CDI or one or more of its affiliates owns all right,
title and interest in and to the trade names, trademarks and service marks set
forth on Schedule D, as amended from time to time by written notice from the
FUNDS or CDI to LIFE COMPANIES (the "Xxxxxxx Licensed Marks") and is authorized
to use and to license other persons to use such marks. LIFE COMPANIES and their
affiliates are hereby granted a non-exclusive license to use the Xxxxxxx
Licensed Marks in connection with LIFE COMPANIES' performance of the services
contemplated under this Agreement, subject to the terms and conditions set forth
in this Section 19.
(b) The grant of license to LIFE COMPANIES and their affiliates
(collectively, the "Licensee") shall terminate automatically upon (i) the
termination of this Agreement, (ii) Licensee's receipt of written notification
that its use of any Xxxxxxx Licensed Xxxx, in the reasonable opinion of the
FUNDS or CDI, reflects unfavorably upon the professional, business or personal
reputation of the FUNDS or CDI or any of its affiliates or any of their
directors, officers, employees or agents, or (iii) Licensee's receipt of written
notification that the quality, appearance and/or style of any Xxxxxxx Licensed
Xxxx is unacceptable in the reasonable opinion of the FUNDS or CDI (each of
clauses (ii) and (ii) being a "License Violation"). Upon the termination of the
license, LIFE COMPANIES and their affiliates shall immediately cease to issue
any new annuity or life insurance contract bearing any Xxxxxxx Licensed Xxxx and
shall likewise cease any activity which suggests that it has any right under any
of the Xxxxxxx Licensed Marks or that it has any association with the FUNDS or
CDI, except that LIFE COMPANIES shall have the right to continue to service
outstanding Contracts by utilizing any of the Xxxxxxx Licensed Marks until the
earlier of (A) the Final Termination Date and (B) Licensee's receipt of written
notification regarding the occurrence of a second License Violation, following
which the license shall terminate and Licensee will cease all further use of any
Xxxxxxx Licensed Xxxx.
(c) The Licensee shall submit any materials bearing any Xxxxxxx
Licensed Xxxx, other than those materials that simply list the FUNDS and/or
Portfolios as investment options under the Contracts, to the FUNDS or CDI for
approval prior to the public release by Licensee, which approval shall not be
unreasonably withheld. If such materials are not "disapproved" by the FUNDS or
CDI within ten (10) days of being submitted, they shall be deemed to have been
approved.
(d) During the term of this grant of license, the FUNDS or CDI may
request that Licensee submit samples of any materials bearing any of the Xxxxxxx
Licensed Marks which were
33
previously approved by the FUNDS or CDI but, due to changed circumstances, in
the sole judgment of the FUNDS or CDI, require reconsideration. If, on
reconsideration, or on initial review, respectively, any sample fails to meet
with the written approval of the FUNDS or CDI, then the Licensee shall
immediately cease distributing such disapproved materials. The FUNDS or CDI
shall not unreasonably withhold approval upon any reconsideration, and shall,
when engaged in any reconsideration, give due weight to the expenses associated
with withdrawing and replacing the materials. The Licensee shall obtain the
prior written approval of the FUNDS or CDI for the use of any new materials
developed to replace the disapproved materials, in the manner set forth above.
(e) The Licensee hereunder: (i) acknowledges and stipulates that, to
the best knowledge of the Licensee, the Xxxxxxx Licensed Marks are valid and
enforceable trademarks and/or service marks and that such Licensee does not own
the Xxxxxxx Licensed Marks and claims no rights therein other than as a Licensee
under this Agreement; (ii) agrees never to contend otherwise in legal
proceedings or in other circumstances; and (iii) acknowledges and agrees that
the use of the Xxxxxxx Licensed Marks pursuant to this grant of license shall
inure to the benefit of the FUNDS, CDI and/or its affiliates.
(f) LIFE COMPANIES understand that the S&P 500 Index, S & P MidCap 400
Index, Nasdaq 100 Index, Xxxxxxx 2000 Index, MSCI EAFE International Index, and
Barclays Capital Aggregate Bond Index are not Xxxxxxx Licensed Marks but may
constitute registered trademarks/service marks of third parties; (ii) these
trademarks or service marks have been licensed, where required, for use by the
FUNDS and CDI and its affiliates; and (iii) the Portfolios are not sponsored,
endorsed, sold or promoted by any of the licensing organizations, and they make
no representation or warranty regarding the Portfolios, and bear no liability
with respect to the Portfolios. LIFE COMPANIES agree to comply with any
requirements of the licensing organizations regarding the use of their
trademarks in any prospectuses, sales literature or other promotional material.
Section 20. Parties to Cooperate.
-------------------------------------
Each Party to this Agreement will cooperate with each other Party and all
appropriate governmental authorities (including, without limitation, the SEC,
FINRA and state insurance regulators) and will permit each other and such
authorities reasonable access to its books and records (including copies
thereof) in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
Section 21. Excessive Trading.
----------------------------------
(a) The Parties acknowledge and agree that excessive trading can
disrupt management of a Portfolio and raise its expenses. In particular, a
Portfolio may have difficulty implementing its long-term investment strategies
if it is forced to maintain a higher level of its assets in cash to accommodate
significant short-term trading activity resulting from excessive trading. A
Portfolio may bear increased administrative costs due to asset level and
investment volatility that accompanies patterns of short-term trading activity.
The FUNDS have adopted policies to discourage excessive trading of the
Portfolios' shares. The FUNDS define "excessive trading" in the FUND
Prospectuses.
34
(b) LIFE COMPANIES represent and warrant that the Contracts to be
funded by investments of the Accounts in one or more of the Portfolios contain
provisions in the Contract Prospectuses (where such prospectuses are required by
law) permitting LIFE COMPANIES to restrict excessive or potentially abusive
transfers in at least one of the following ways:
o Limitations on the ability to have exchanges effected other than by
mail in the event of excessive or abusive transfers;
o Limitations on transfers into any investment option within 30 days
(60 days for Participating Plans) of having transferred out of it
(other than in connection with an automatic transfer program);
o Limitations on any transfers among sub-accounts within 30 days (60
days for Participating Plans) of prior transfer (other than in
connection with an automatic transfer program); or
o Limitations on any transfers on a day when net transfers into or out
of a sub-account would have the effect of increasing or reducing the
assets of the affected Portfolio by more than 1% without the express
permission of the adviser to that Portfolio.
(c) LIFE COMPANIES also represent and warrant that the Contract
Prospectuses (where such prospectuses are required by law) contain language
describing its policies regarding excessive trading.
(d) CDI will monitor daily trading activities of each Portfolio for
excessive trading or potentially abusive exchanges. LIFE COMPANIES agree that
they will use reasonable efforts to implement the excessive trading policies set
forth in each Contract Prospectus and/or in each FUND'S Prospectus.
Notwithstanding the foregoing, the FUNDS and CDI acknowledge and agree that LIFE
COMPANIES may not be able to detect every instance of excessive trading and may
not be able to eliminate excessive trading in the Portfolios, but Life COMPANIES
agree to notify the FUNDS and CDI of each instance that it does detect such
excessive trading.
(e) The FUNDS or CDI will notify LIFE COMPANIES if such trading is
detected in LIFE COMPANIES' Accounts. Upon notification from the FUNDS or CDI,
an affected LIFE COMPANY will use its best efforts to exercise its rights under
the Contracts to impose limitations in a way that stops excessive or potentially
abusive trading by one or a group of investors consistent with the Contracts'
excessive trading policies and procedures as reflected in the Contract
Prospectuses (where such prospectuses are required by law).
(f) LIFE COMPANIES and CDI hereby acknowledge that CDI has executed a
Rule 22c-2 Agreement with each LIFE COMPANY (each a "Rule 22c-2 Agreement"),
each of which is incorporated herein by reference and made part of this
Agreement to the same extent as if set forth herein. To the extent of any
conflict between this Agreement and a Rule 22c-2 Agreement, the Rule 22c-2
Agreement shall control.
35
Section 22. Force Majeure.
------------------------------
Each Party is excused from performance and shall not be liable for any
delay in performance or non-performance, in whole or in part, caused by the
occurrence of any event or contingency beyond the control of the Parties
including, but not limited to, work stoppages, fires, civil disobedience, riots,
rebellions, natural disasters, acts of God, acts of war or terrorism, actions or
decrees of governmental bodies, and similar occurrences. The Party who has been
so affected shall, if physically possible, promptly give written notice to the
other Parties and shall use its best efforts to resume performance. Upon receipt
of such notice, all obligations under this Agreement shall be immediately
suspended for the duration of such event or contingency.
Section 23. Miscellaneous.
------------------------------
(a) This Agreement has been executed on behalf of each Party by the
undersigned officer of that Party in his/her capacity as an officer thereof. The
obligations of this Agreement shall bind only the Parties and shall not bind any
director, officer or shareholder of any Party individually.
(b) This Agreement shall be binding upon, enforceable against and shall
inure to the benefit of the Parties hereto and their respective successors and
permitted assigns.
(c) Waiver by a Party of a breach of any provision of this Agreement
does not constitute waiver of any subsequent breach of that or any other
provision.
(d) The schedules and exhibits attached hereto, as modified from time
to time, are incorporated herein by reference and are a part of this Agreement
to the same extent as if they were set forth herein.
(e) Unless otherwise agreed to in writing by the Parties hereto, each
party acknowledges that the others may enter into agreements, similar to this
one, with other parties, for the performance of the same or similar services to
those to be provided under this Agreement.
(f) LIFE COMPANIES agree that CDI may enforce any and all of the rights
conferred upon the FUNDS in this Agreement.
(g) Notwithstanding any other provision of this Agreement, no Party
shall be liable under this Agreement for any special, consequential or
incidental damages.
(h) Except as otherwise expressly provided in this Agreement, neither
this Agreement (including the schedules and exhibits hereto) nor any term hereof
or thereof may be changed, amended, modified, waived, discharged, or terminated
except to the extent the same is evidenced in writing and duly executed by the
Party against whom enforcement of that change, waiver, discharge, amendment,
termination or modification is sought.
36
(i) This Agreement contains the full and complete understanding of the
Parties and supersedes all prior representatives, promises, statements,
arrangements, agreements, warranties and understandings between the parties with
respect to the subject matter hereof, whether oral or written, express or
implied.
(Signature Page to follow)
37
The Parties have caused this Agreement to be executed in their names and on
their behalf by and through their duly authorized officers signing below.
XXXXXXX DISTRIBUTORS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Senior Vice President
THE FUNDS
Xxxxxxx Variable Series, Inc.
Xxxxxxx Variable Products, Inc.
Xxxxxxx Social Index Series, Inc.
Xxxxxxx Impact Fund, Inc.
Xxxxxxx World Values Fund, Inc.
Calvert Cash Reserves
The Xxxxxxx Fund
Xxxxxxx Social Investment Fund
Xxxxxxx XXXX Fund
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President
AMERITAS LIFE INSURANCE CORP.,
on behalf of itself and its separate accounts
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President, & Chief Financial Officer
FIRST AMERITAS LIFE INSURANCE CORP. OF NEW YORK,
on behalf of itself and its separate accounts
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President & Chief Financial Officer
THE UNION CENTRAL LIFE INSURANCE COMPANY,
on behalf of itself and its separate accounts
By: /s/ Xxxxxx X. Xxxxx
------------------------
Name: Xxxxxx X. Xxxxx
Title: Senior Vice President and Chief Financial Officer
38
EXHIBIT A
to
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
Fund Participation Agreement among The Union Central Life Insurance Company and
Xxxxxxx Distributors, Inc. dated February 9, 2006, as amended;
Fund Participation Agreement by and between Ameritas Life Insurance Corp. on
behalf of itself and its separate accounts, Xxxxxxx Distributors, Inc., and the
Xxxxxxx Mutual Funds dated November 1, 1999, as amended;
Participation Agreement among Xxxxxxx Variable Series, Inc., Ameritas Investment
Corp., and Ameritas Variable Life Insurance Company dated October 29, 1999, as
amended and including the novation effective April 30, 2007;
Participation Agreement among Xxxxxxx Variable Series, Inc., Xxxxxxx
Distributors, Inc., and Ameritas Variable Life Insurance Company. dated May 1,
2000, as amended and including the novation effective April 30, 2007;
Participation Agreement among Xxxxxxx Variable Series, Inc., Xxxxxxx
Distributors, Inc., and First Ameritas Life Insurance Corp. of New York dated
December 1, 2000, as amended;
Participation Agreement among Xxxxxxx Variable Series, Inc, Ameritas Investment
Corp., and First Ameritas Life Insurance Corp. of New York dated December 1,
2000, as amended;
Participation Agreement among Xxxxxxx Variable Series, Inc., Ameritas Investment
Corp., and Ameritas Life Insurance Corp. dated May 1, 2000, as amended;
Participation Agreement among Xxxxxxx Variable Series, Inc., Xxxxxxx
Distributors, Inc., and Ameritas Life Insurance Corp. dated May 1, 2000
Participation Agreement by and among Summit Mutual Funds, Inc., Summit
Investment Partners, Inc., The Union Central Life Insurance Company on behalf of
itself and its separate accounts, and Ameritas Investment Corp. dated July 1,
2006, as amended as assigned;
Participation Agreement by and among Summit Mutual Funds, Inc., Carillon
Investments, Inc., Ameritas Variable Life Insurance Company on behalf of itself
and its separate accounts, and Ameritas Investment Corp. dated January 1, 2000,
as amended and assigned; and
Participation Agreement by and among Summit Mutual Funds, Inc., Carillon
Investments, Inc., First Ameritas Life Insurance Corp. of New York on behalf of
itself and its separate accounts, and Ameritas Investment Corp. dated May 1,
2002, as amended and assigned.
A-1
SCHEDULE A
to
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
SEPARATE ACCOUNTS USING THE FUNDS
---------------------------------
DEPOSITORS:
-----------
REGISTERED SEPARATE ACCOUNTS ("REGISTRANTS")
--------------------------------------------
Ameritas Life Insurance Corp.:
------------------------------
o Ameritas Variable Separate Account VA-2
o Ameritas Variable Separate Account V
o Ameritas Life Insurance Corp. Separate Account LLVA
o Ameritas Life Insurance Corp. Separate Account LLVL
o Ameritas Variable Separate Account VA
o Ameritas Variable Separate Account VL
First Ameritas Life Insurance Corp. of New York:
------------------------------------------------
o First Ameritas Variable Annuity Separate Account
o First Ameritas Variable Life Separate Account
The Union Central Life Insurance Company:
-----------------------------------------
o Carillon Account
o Carillon Life Account
CONTRACTS FUNDED BY THE REGISTERED SEPARATE ACCOUNTS
----------------------------------------------------
Individual variable annuity contracts and individual variable life insurance
policies issued by the Depositors listed above and registered with the
Securities and Exchange Commission under the Securities Act of 1933.
UNREGISTERED SEPARATE ACCOUNTS USING THE FUNDS
----------------------------------------------
o Ameritas Life Insurance Corp. Separate Account D
o Ameritas Life Insurance Corp. Separate Account G
o First Ameritas Life Insurance Corp. Separate Account G
o Union Central Life Insurance Company Separate Account G
SCHEDULE B
to
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
FUNDS AVAILABLE UNDER THE CONTRACTS
-----------------------------------
Xxxxxxx Variable Products, Inc.
Xxxxxxx Variable Series, Inc.
FUNDS AVAILABLE ONLY UNDER EXEMPT CONTRACTS
-------------------------------------------
Xxxxxxx Social Index Series, Inc.
Xxxxxxx Impact Fund, Inc.
Xxxxxxx World Values Fund, Inc.
Calvert Cash Reserves
The Xxxxxxx Fund
Xxxxxxx Social Investment Fund
Xxxxxxx XXXX Fund
SCHEDULE C
to
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
EXPENSE ALLOCATIONS
-------------------------------------------------------------------------------------------------
PARTY
ITEM FUNCTION RESPONSIBLE
FOR EXPENSE
-------------------------------------------------------------------------------------------------
FUND PROSPECTUS
-------------------------------------------------------------------------------------------------
Update Typesetting Fund
-------------------------------------------------------------------------------------------------
New Sales: Printing Company
Distribution Company
-------------------------------------------------------------------------------------------------
Existing Owners: Printing Fund
Distribution Fund
-------------------------------------------------------------------------------------------------
FUND STATEMENTS Same as Prospectus
OF ADDITIONAL
INFORMATION
-------------------------------------------------------------------------------------------------
PROXY MATERIALS Typesetting Fund
OF THE FUND Printing Fund
Distribution Fund
-------------------------------------------------------------------------------------------------
ANNUAL REPORTS AND
OTHER COMMUNICATIONS
WITH SHAREHOLDERS OF
THE FUND
-------------------------------------------------------------------------------------------------
All Typesetting Fund
-------------------------------------------------------------------------------------------------
Marketing (1) Printing Company
Distribution Company
-------------------------------------------------------------------------------------------------
Existing Owners: Printing Fund
Distribution Fund
-------------------------------------------------------------------------------------------------
OPERATIONS OF FUND All operations and related expenses, Fund
including 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, the
preparation of all statements and
notices required by any federal or
state law and all taxes on the issuance
of the Fund's shares, and all costs of
management of the business affairs of
the Fund.
-------------------------------------------------------------------------------------------------
(1) Solely as it relates to the contracts listed on Schedule A, as it is
attached to the same Agreement as this Schedule C.
SCHEDULE D
to
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
Xxxxxxx Xxxxx
The Xxxxxxx logo:
[Xxxxxxx INVESTMENTS Logo]
The names of all FUNDS listed in Schedule B and the Portfolios registered
thereunder
