Common use of Diversification and Qualification Clause in Contracts

Diversification and Qualification. 6.1. The Fund and the Distributor each represents and warrants that the Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Without limiting the scope of the foregoing, each Designated Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. ln the event of a breach of this Article VI by the Fund, the Fund and Distributor will take all reasonable steps to: (a) notify the Company immediately of such breach, and (b) adequately diversify the Fund so as to achieve compliance within the grace period afforded by Regulation 1.817-5. 6.2. The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify as a "regulated investment company" under Subchapter M of the Code, and that each Designated Portfolio will maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future.

Diversification and Qualification. 6.1. 6.1 The Fund and will invest the Distributor assets of each represents and warrants that the Fund will at all times sell its shares and invest its assets Designated Portfolio in such a manner as to ensure that the Contracts will be treated as annuity contracts annuity, endowment, or life insurance contracts, whichever is appropriate, under the Internal Revenue Code of 1986, as amended (the “Code, ”) and the regulations issued thereunderthereunder (or any successor provisions). Without limiting the scope of the foregoing, each Designated Portfolio thereof of the Fund will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts contracts, and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this Article VI by the Fund, the Fund and Distributor it will take all reasonable steps to: (a) to notify the Company immediately of such breach, breach and (b) to adequately diversify the Fund so as to achieve compliance within the grace period afforded by Regulation 1.817-5817.5. 6.2. 6.2 The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify is or will be qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio it will make every effort to maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each that it will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio it has ceased to comply with the aforesaid Section 817(h) diversification so qualify or Subchapter M qualification requirements or that it might not so comply qualify in the future. 6.3 The Company represents that the Contracts are currently, and at the time of issuance shall be, treated as life insurance, endowment contracts, or annuity insurance contracts, under applicable provisions of the Code, and that it will make every effort to maintain such treatment, and that it will notify the Fund and the Underwriter immediately upon having a reasonable basis for believing the Contracts have ceased to be so treated or that they might not be so treated in the future.

Diversification and Qualification. 6.1. 6.1 The Fund and will invest the Distributor assets of each represents and warrants that the Fund will at all times sell its shares and invest its assets Designated Portfolio in such a manner as to ensure that the Contracts will be treated as annuity contracts annuity, endowment, or life insurance contracts, whichever is appropriate, under the Internal Revenue Code of 1986, as amended (the "Code, ") and the regulations issued thereunderthereunder (or any successor provisions). Without limiting the scope of the foregoing, each Designated Portfolio thereof of the Fund will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817(S)1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts contracts, and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this Article VI by the Fund, the Fund and Distributor it will take all reasonable steps to: (a) to notify the Company immediately of such breach, breach and (b) to adequately diversify the Fund so as to achieve compliance within the grace period afforded by Regulation 1.817(S)1.817-5. 6.2. 6.2 The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify is or will be qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio it will make every effort to maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each that it will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio it has ceased to comply with the aforesaid Section 817(h) diversification so qualify or Subchapter M qualification requirements or that it might not so comply qualify in the future. 6.3 The Company represents that the Contracts are currently, and at the time of issuance shall be, treated as life insurance, endowment contracts, or annuity insurance contracts, under applicable provisions of the Code, and that it will make every effort to maintain such treatment, and that it will notify the Fund and the Underwriter immediately upon having a reasonable basis for believing the Contracts have ceased to be so treated or that they might not be so treated in the future. The Company agrees that any prospectus offering a contract that is a "modified endowment contract" as that term is defined in Section 7702A of the Code (or any successor or similar provision), shall identify such contract as a modified endowment contract.

Diversification and Qualification. 6.1. The Subject to Company's representations and warranties in Section 2.1 and 6.3, the Fund and the Distributor each represents and warrants that the Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts or life insurance contracts, whichever is appropriate, under the Code, Code and the regulations issued thereunderthereunder (or any successor provisions). Without limiting the scope of the foregoing, each Designated Portfolio thereof has complied and will at all times continue to comply with Section 817(h) of the Code and Treasury Regulation §1.817ss.1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts contracts, and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this Article VI by the Fund, the Fund and Distributor it will take all reasonable steps to: (a) to notify the Company immediately of such breach, breach and (b) to adequately diversify the Fund so as to achieve compliance within the grace period afforded by Treasury Regulation 1.817ss.1.817-5. 6.2. The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) it is or will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio it will make every effort to maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each that it will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio it has ceased to comply with the aforesaid Section 817(h) diversification so qualify or Subchapter M qualification requirements or that it might not so comply qualify in the future. 6.3. The Company represents and warrants that the Contracts are currently, and at the time of issuance shall be, treated as life insurance or annuity contracts, under applicable provisions of the Code, and that it will make every effort to maintain such treatment, and that it will notify the Fund and the Adviser immediately upon having a reasonable basis for believing the Contracts have ceased to be so treated or that they might not be so treated in the future. The Company agrees that any prospectus offering a contract that is a "modified endowment contract" as that term is defined in Section 7702A of the Code (or any successor or similar provision), shall identify such contract as a modified endowment contract.

Diversification and Qualification. 6.1. The Fund 6.1 Subject to the Company's maintaining the treatment of the Contracts as life insurance, endowment, or annuity contracts under applicable provisions of the Code and the Distributor each represents and warrants that regulations issued thereunder (or any successor provisions), the Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts annuity, endowment, or life insurance contracts, whichever is appropriate, under the Code, Code and the regulations issued thereunderthereunder (or any successor provisions). Without limiting the scope of the foregoing, each Designated Portfolio thereof the Fund will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817(ss.)1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts contracts, and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this Article VI by the Fund, the Fund and Distributor it will take all reasonable steps to: (a) to notify the Company immediately of such breach, breach and (b) to adequately diversify the Fund so as to achieve compliance within the grace period afforded by Regulation 1.817-5817.5. 6.2. 6.2 The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) it is or will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio it will make every effort to maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each that it will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio it has ceased to comply with the aforesaid Section 817(h) diversification so qualify or Subchapter M qualification requirements or that it might not so comply qualify in the future. 6.3 Subject to the Fund's compliance with Section 817(h) of the Code and Treasury Regulation (ss.)1.817-5, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts, any amendments or other modifications or successor provisions to such Sections or Regulations, the Company represents that the Contracts are currently, and at the time of issuance shall be, treated as life insurance, endowment contracts, or annuity insurance contracts, under applicable provisions of the Code, and that it will make every effort to maintain such treatment, and that it will notify the Fund and the Underwriter immediately upon having a reasonable basis for believing the Contracts have ceased to be so treated or that they might not be so treated in the future. The Company agrees that any prospectus offering a contract that is a "modified endowment contract" as that term is defined in Section 7702A of the Code (or any successor or similar provision), shall identify such contract as a modified endowment contract.

Diversification and Qualification. 6.1. The Subject to Company's representations and warranties in Section 2.1 and 6.3, the Fund and the Distributor each represents and warrants that the Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts or life insurance contracts, whichever is appropriate, under the Code, Code and the regulations issued thereunderthereunder (or any successor provisions). Without limiting the scope of the foregoing, each Designated Portfolio thereof has complied and will at all times continue to comply with Section 817(h) of the Code and Treasury Regulation §1.817(S)1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts contracts, and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this Article VI by the Fund, the Fund and Distributor it will take all reasonable steps to: (a) to notify the Company immediately of such breach, breach and (b) to adequately diversify the Fund so as to achieve compliance within the grace period afforded by Treasury Regulation 1.817(S)1.817-5. 6.2. The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) it is or will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio it will make every effort to maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each that it will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio it has ceased to comply with the aforesaid Section 817(h) diversification so qualify or Subchapter M qualification requirements or that it might not so comply qualify in the future. 6.3. The Company represents and warrants that the Contracts are currently, and at the time of issuance shall be, treated as life insurance or annuity contracts, under applicable provisions of the Code, and that it will make every effort to maintain such treatment, and that it will notify the Fund and the Adviser immediately upon having a reasonable basis for believing the Contracts have ceased to be so treated or that they might not be so treated in the future. The Company agrees that any prospectus offering a contract that is a "modified endowment contract" as that term is defined in Section 7702A of the Code (or any successor or similar provision), shall identify such contract as a modified endowment contract.

Diversification and Qualification. 6.1. The Fund 6.1 Subject to the Company's maintaining the treatment of the Contracts as life insurance, endowment, or annuity contracts under applicable provisions of the Code and the Distributor each represents and warrants that regulations issued thereunder (or any successor provisions), the Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts annuity, endowment, or life insurance contracts, whichever is appropriate, under the Code, Code and the regulations issued thereunderthereunder (or any successor provisions). Without limiting the scope of the foregoing, each Designated Portfolio thereof the Fund will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts contracts, and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this Article VI by the Fund, the Fund and Distributor it will take all reasonable steps to: (a) to notify the Company immediately of such breach, breach and (b) to adequately diversify the Fund so as to achieve compliance within the grace period afforded by Regulation 1.817-5817.5. 6.2. 6.2 The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) it is or will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio it will make every effort to maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each that it will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio it has ceased to comply with the aforesaid Section 817(h) diversification so qualify or Subchapter M qualification requirements or that it might not so comply qualify in the future. 6.3 Subject to the Fund's compliance with Section 817(h) of the Code and Treasury Regulation §1.817-5, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts, any amendments or other modifications or successor provisions to such Sections or Regulations, the Company represents that the Contracts are currently, and at the time of issuance shall be, treated as life insurance, endowment contracts, or annuity insurance contracts, under applicable provisions of the Code, and that it will make every effort to maintain such treatment, and that it will notify the Fund and the Underwriter immediately upon having a reasonable basis for believing the Contracts have ceased to be so treated or that they might not be so treated in the future. The Company agrees that any prospectus offering a contract that is a "modified endowment contract" as that term is defined in Section 7702A of the Code (or any successor or similar provision), shall identify such contract as a modified endowment contract.

Diversification and Qualification. 6.1. The Fund and the Distributor each represents Adviser represent and warrants warrant that the Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts under the Code, and the regulations issued thereunder. Without limiting the scope of the foregoing, the Fund and Adviser represent and warrant that the Fund and each Designated Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. ln the event of a breach of this Article VI by the Fund, the Fund and Distributor will take all reasonable steps to: (a) notify the Company immediately of such breach, and (b) adequately diversify the Fund so as to achieve compliance within the grace period afforded by Regulation 1.817-5. 6.2. The Fund and the Distributor each represents and warrants Adviser agree that shares of the Designated Portfolio(s) will be sold only to Participating Insurance Company Companies and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. 6.2. No shares of any Designated Portfolio of the fund Fund will be sold to the general public. 6.3. The Fund and the Distributor each represents Adviser represent and warrants warrant that the Fund and each Designated Portfolio intends to qualify is currently qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio will maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each or the Adviser will notify the Company FirstGWL&A immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future. 6.5. Without in any way limiting the effect of Sections 8.3 and 8.4 hereof and with- out in any way limiting or restricting any other remedies available to FirstGWL&A or Schwab, the Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Fund or any Designated Portfolio to comply with Sections 6.1, 6.2, or 6.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including but not limited to an order pursuant to Section 26(b) of the 1940 Act); such costs are to include, but are not limited to, fees and expenses of legal counsel and other advisors to FirstGWL&A and any federal income taxes or tax penalties and interest thereon (or "toll charges" or exactments or amounts paid in settlement) incurred by FirstGWL&A with respect to itself or owners of its Contracts in connection with any such failure or anticipated or reasonably foreseeable failure. 6.6. The Fund at the Fund's expense shall provide FirstGWL&A or its designee with reports certifying compliance with the aforesaid Section 817(h) diversification and Subchapter M qualification requirements, at the times provided for and substantially in the form attached hereto as Schedule D and incorporated herein by reference; provided, however, that providing such reports does not relieve the Fund of its responsibility for such compliance or of its liability for any non-compliance. 6.7. FirstGWL&A agrees that if the Internal Revenue Service ("IRS") asserts in writing in connection with any governmental audit or review of FirstGWL&A or, to FirstGWL&A's knowledge, of any Contractowner that any Designated Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or FirstGWL&A otherwise becomes aware of any facts that could give rise to any claim against the Fund or the Adviser as a result of such a failure or alleged failure: (a) FirstGWL&A shall promptly notify the Fund and the Adviser of such assertion or potential claim; (b) FirstGWL&A shall consult with the Fund and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure; (c) FirstGWL&A shall use its best efforts to minimize any liability of the Fund and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent; (d) any written materials to be submitted by FirstGWL&A to the IRS, any Contractowner 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)) shall be provided by FirstGWL&A to the Fund and the Adviser (together with any supporting information or analysis) within at least two (2) business days prior to submission; (e) FirstGWL&A shall provide the Fund and the Adviser with such cooperation as the Fund and the Adviser shall reasonably request (including, without limitation, by permitting the Fund and the Adviser to review the relevant books and records of FirstGWL&A) in order to facilitate review by the Fund and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure; (f) FirstGWL&A shall not with respect to any claim of the IRS or any Contractowner that would give rise to a claim against the Fund and the Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Fund and the Adviser, which shall not be unreasonably withheld; provided that, FirstGWL&A shall not be required to appeal any adverse judicial decision unless the Fund and the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund and the Adviser shall bear the costs and expenses, including reasonable attorney's fees, incurred by FirstGWL&A in complying with this clause (f).

Diversification and Qualification. 6.1. 6.1 The Fund and will invest the Distributor assets of each represents and warrants that the Fund will at all times sell its shares and invest its assets Designated Portfolio in such a manner as to ensure that the Contracts will be treated as annuity contracts annuity, endowment, or life insurance contracts, whichever is appropriate, under the Internal Revenue Code of 1986, as amended (the "Code, ") and the regulations issued thereunderthereunder (or any successor provisions). Without limiting the scope of the foregoing, each Designated Portfolio thereof of the Fund will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817(S)1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts contracts, and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this -7- Article VI by the Fund, the Fund and Distributor it will take all reasonable steps to: (a) to notify the Company immediately of such breach, breach and (b) to adequately diversify the Fund so as to achieve compliance within the grace period afforded by Regulation 1.817(S)1.817-5. 6.2. 6.2 The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify is or will be qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio it will make every effort to maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each that it will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio it has ceased to comply with the aforesaid Section 817(h) diversification so qualify or Subchapter M qualification requirements or that it might not so comply qualify in the future. 6.3 The Company represents that the Contracts are currently, and at the time of issuance shall be, treated as life insurance, endowment contracts, or annuity insurance contracts, under applicable provisions of the Code, and that it will make every effort to maintain such treatment, and that it will notify the Fund and the Underwriter immediately upon having a reasonable basis for believing the Contracts have ceased to be so treated or that they might not be so treated in the future. The Company agrees that any prospectus offering a contract that is a "modified endowment contract" as that term is defined in Section 7702A of the Code (or any successor or similar provision), shall identify such contract as a modified endowment contract.

Diversification and Qualification. 6.1. The Subject to Company's representations and warranties in Section 2.1 and 6.3, the Fund and the Distributor each represents and warrants that the Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as annuity contracts or life insurance contracts, whichever is appropriate, under the Code, Code and the regulations issued thereunderthereunder (or any successor provisions). Without limiting the scope of the foregoing, each Designated Portfolio thereof has complied and will at all times continue to comply with Section 817(h) of the Code and Treasury Regulation §ss. 1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts contracts, and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this Article VI by the Fund, the Fund and Distributor it will take all reasonable steps to: (a) to notify the Company immediately of such breach, breach and (b) to adequately diversify the Fund so as to achieve compliance within the grace period afforded by Treasury Regulation 1.817ss.1.817-5. 6.2. The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) it is or will be sold only to Participating Insurance Company and their separate accounts and to Qualified Plans, all in accordance with the requirements of Section 817(b) of the Code. No shares of any Designated Portfolio of the fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify qualified as a "regulated investment company" Regulated Investment Company under Subchapter M of the Code, and that each Designated Portfolio it will make every effort to maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each that it will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio it has ceased to comply with the aforesaid Section 817(h) diversification so qualify or Subchapter M qualification requirements or that it might not so comply qualify in the future. 6.3. The Company represents and warrants that the Contracts are currently, and at the time of issuance shall be, treated as life insurance or annuity contracts, under applicable provisions of the Code, and that it will make every effort to maintain such treatment, and that it will notify the Fund and the Adviser immediately upon having a reasonable basis for believing the Contracts have ceased to be so treated or that they might not be so treated in the future. The Company agrees that any prospectus offering a contract that is a "modified endowment contract" as that term is defined in Section 7702A of the Code (or any successor or similar provision), shall identify such contract as a modified endowment contract.

Diversification and Qualification. 6.1. The Fund and the Distributor each represents and warrants that the Fund will at all times sell its shares and invest its assets in such a manner as to ensure that the Contracts will be treated as life insurance or annuity contracts under the Code, and the regulations issued thereunder. Without limiting the scope of the foregoing, each Designated Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. ln In the event of a breach of this Article VI by the Fund, the Fund and Distributor will take all reasonable steps to: (a) notify the Company immediately of such breach, and (b) adequately diversify the Fund so as to achieve compliance within the 30-day grace period afforded by Regulation 1.817-5. Upon written request from the Company, within 15 business days after the request is received by the Fund and Distributor, the Fund and Distributor shall provide to the Company evidence of its compliance with the aforementioned diversification requirements, in a format agreeable to each Party. 6.2. The Fund and the Distributor each represents and warrants that shares of the Designated Portfolio(s) will be sold only to Participating Insurance Company Companies and their separate accounts and to Qualified Plans, all and that no person has or will purchase shares in accordance with any Portfolio for any purpose or under any circumstances that would preclude the requirements Company from “looking through” to the investments of Section 817(b) of each Designated Portfolio in which it invests, pursuant to the Code“look through” rules found in Treasury Regulation 1.817-5. No shares of any Designated Portfolio of the fund Fund will be sold to the general public. 6.3. The Fund and the Distributor each represents and warrants that the Fund and each Designated Portfolio intends to qualify is currently qualified as a "“regulated investment company" ” under Subchapter M of the Code, and that each Designated Portfolio will maintain such qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is in effect. 6.4. The Fund and Distributor each will notify the Company immediately upon having a reasonable basis for believing that the Fund or any Designated Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future. 6.5. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company or, to the Company’s knowledge, or any Contract owner that any Designated Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund and Distributor as a result of such a failure or alleged failure: (a) the Company shall promptly notify the Fund and the Distributor of such assertion or potential claim; (b) the Company shall consult with the Fund and the Distributor as to how to minimize any liability that may arise as a result of such failure or alleged failure; (c) the Company shall use its best efforts to minimize any liability of the Fund and the Distributor resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent; (d) any written materials to be submitted by the Company to the IRS, any Contract 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)) shall be provided by the Company to the Fund and the Distributor (together with any supporting information or analysis) within at least two (2) Business Days prior to submission; (e) the Company shall provide the Fund and the Distributor with such cooperation as the Fund and the Distributor shall reasonably request (including, without limitation, by permitting the Fund and the Distributor to review the relevant books and records of the Company) in order to facilitate review by the Fund and the Distributor of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure; (f) the Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against the Fund and the Distributor(i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Fund and the Distributor, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Fund shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund and the Distributor shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).