Exhibit 8 (x)
PARTICIPATION AGREEMENT
Among
▇▇▇ ▇▇▇ WORLDWIDE INSURANCE TRUST,
▇▇▇ ▇▇▇ SECURITIES CORPORATION.
▇▇▇ ▇▇▇ ASSOCIATES CORPORATION
LEVCO SERIES TRUST
LEVCO SECURITIES INC.
▇▇▇▇ ▇. ▇▇▇▇▇ & CO., INC.
And
CANADA LIFE INSURANCE COMPANY OF AMERICA
THIS AGREEMENT, made and entered into to be effective on February 15, 2002, by
and among CANADA LIFE INSURANCE COMPANY OF AMERICA (hereinafter the "Company"),
a Michigan insurance corporation, on its own behalf and on behalf of each
segregated asset account of the Company set forth on Schedule A hereto and
incorporated herein by this reference, as such Schedule A may from time to time
be amended by mutual written agreement of the parties hereto (each such account
hereinafter referred to as the "Account"), and LEVCO SERIES TRUST, an
unincorporated business trust organized under the laws of the State of Delaware
and WORLDWIDE INSURANCE TRUST, an unincorporated business trust organized under
the laws of the Commonwealth of Massachusetts (hereinafter the "Funds"), LEVCO
SECURITIES INC., and ▇▇▇ ▇▇▇ SECURITIES CORPORATION (hereinafter the
"Underwriters"), both Delaware corporations and ▇▇▇ ▇▇▇ ASSOCIATES CORPORATION
and ▇▇▇▇ ▇. ▇▇▇▇▇ & CO., INC.,(hereinafter the "Advisers"), both Delaware
corporations.
WHEREAS, the Funds engage in business as open-end management investment
companies and are available to act as the investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts (hereafter referred to collectively as the "Variable Insurance
Products") to be offered by insurance companies which have entered into
participation agreements with the Funds and the Underwriters (hereinafter the
"Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Funds is divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (each such series hereinafter referred
to as a "Portfolio"); and
WHEREAS, both of the Funds have obtained an order from the Securities
and Exchange Commission (hereinafter the "SEC"), granting Participating
Insurance Companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of Sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940, as amended, (hereinafter the "1940
Act") and Rules 6e-2(b) (15) and 6e-3(T) (b) (15) thereunder, to the extent
necessary to permit shares of the Funds to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies (hereinafter the "Shared Funding Order");
and
WHEREAS, the Funds are registered as open-end management investment
companies under the 1940 Act and their shares are registered under the
Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
life insurance and variable annuity contracts under the 1933 Act, unless such
contracts are exempt from registration thereunder; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to the aforesaid variable life insurance and
variable annuity contracts; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act, unless such Account is exempt from
registration thereunder; and
WHEREAS, the Underwriters are registered as broker-dealers with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and are members in good standing of the National Association of
Securities Dealers, Inc. (hereinafter the "NASD"); and
WHEREAS, the Advisers are duly registered as investment advisers under
the Investment Advisers Act of 1940 and any applicable state securities law; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on behalf
of each Account to fund certain of the aforesaid variable life and variable
annuity contracts and the Underwriters are authorized to sell such shares to
unit investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Funds, the Underwriters and the Advisers agree as follows:
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ARTICLE I
Sale of Fund Shares
-------------------
1.1. The Underwriters agree to sell to the Company those shares of
the Portfolios (which are listed on Schedule B attached hereto and incorporated
herein by this reference, as such Schedule B may from time to time be amended by
mutual written agreement of the parties hereto) which each Account orders,
executing such orders on a daily basis at the net asset value per share next
computed after receipt by the Funds or their designee of the order for the
shares of the Portfolios subject to the terms and conditions of this Agreement.
For purposes of this Section 1.1, the Company shall be the designee of the Funds
for receipt of such orders from each Account and receipt by such designee shall
constitute receipt by the Funds; provided that the Funds receive notice of such
order by 9:00 a.m. Eastern time on the next following Business Day. "Business
Day" shall mean any day on which the New York Stock Exchange is open for
business and on which the Funds calculates the Portfolios' net asset values
pursuant to the rules of the SEC.
1.2. The Funds agree to make Portfolio shares available for purchase
at the applicable net asset value per share by the Company and their Accounts on
those days on which the Funds calculate their net asset values pursuant to the
rules of the SEC and the Funds shall use reasonable efforts to calculate such
net asset values on each day on which the New York Stock Exchange is open for
trading. Notwithstanding the foregoing, the Boards of Trustees of the Funds
(hereinafter the "Board") 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 it is, in the sole discretion of the Board, desirable or advisable, and in
the best interests of the shareholders of such Portfolio.
1.3. The Funds and the Underwriter agree that shares of the Funds
will be sold only to Participating Insurance Companies and their separate
accounts or other accounts (e.g., qualified retirement plans) as may be
permitted so that the Variable Insurance Products continue to qualify as a "life
insurance, annuity or variable contract" under Section 817(h) of the Internal
Revenue Code of 1986, as amended (hereinafter the "Code"). No shares of any
Portfolio will be sold to the general public.
1.4. The Funds and the Underwriters will not sell Fund shares to any
insurance company, separate account or other account unless an agreement
containing provisions substantially the same as Article I, Section 2.5 of
Article II, Sections 3.4 and 3.5 of Article III, Article V and Article VII of
this Agreement is in effect to govern such sales.
1.5. Subject to their rights under Section 18(f) of the 1940 Act,
the Funds agree to redeem for cash, on the Company's request, any full or
fractional shares of a Portfolio held by the Company, executing such requests on
a daily basis at the net asset value per share next computed after receipt by
the Funds or their designee of the request for redemption. For purposes of this
Section 1.5, the Company shall be the designee of the Funds for receipt of
requests for redemption from each Account and receipt by such designee shall
constitute receipt by the
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Funds; provided that the Funds receive notice of such request for redemption by
9:00 a.m., Eastern Time, on the next following Business Day. Payment of
redemption proceeds for any whole or fractional shares shall be made within
seven days of actual receipt of the redemption request by the Funds, or within
such greater or lesser period as may be permitted by law or rule, regulation,
interpretive position or order of the SEC.
1.6. The Company agrees that purchases and redemptions of Portfolio
shares offered by the then-current prospectus of the Funds shall be made in
accordance with the provisions of such prospectus. The Company agrees that all
net amounts available in the Accounts which are listed in Schedule A attached
hereto and incorporated herein by this reference, as such Schedule A may from
time to time be amended by mutual written agreement of the parties hereto (the
"Contracts"), shall be invested in the Portfolios and in such other Funds
advised by the Adviser as are listed in Schedule B, or in the Company's general
account; provided that such amounts may also be invested in an investment
company other than the Funds.
1.7. The Company shall pay for Portfolio shares on the next Business
Day after an order to purchase such shares is made in accordance with the
provisions of this Article I. Payment shall be in federal Funds transmitted by
wire. For purposes of Sections 2.10 and 2.11, upon receipt by the Funds of the
federal funds so wired, such funds shall cease to be the responsibility of the
Company and shall become the responsibility of the Funds.
1.8. Issuance and transfer of the Funds' shares will be by book
entry only. Stock certificates will not be issued to the Company or any Account.
Shares ordered from the Funds will be recorded in an appropriate title for each
Account or the appropriate sub account of each Account.
1.9. The Funds shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income dividends or
capital gain distributions payable on the Portfolios' shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on the Portfolio shares in additional shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Funds shall notify
the Company of the number of shares so issued as payment of such dividends and
distributions.
1.10. The Funds shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated (normally by 6:30
p.m., Eastern Time) and shall use their best efforts to make such net asset
value per share available by 7:00 p.m., Eastern Time.
ARTICLE II
Representations and Warranties
------------------------------
2.1. The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act or exempt therefrom; that the Contracts
will be issued and sold in compliance in all material respects with all
applicable federal and state laws and that the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements.
The Company
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further represents and warrants that it is an insurance company duly organized
and in good standing under applicable law and that it has legally and validly
established each Account prior to any issuance or sale thereof as a segregated
asset account under the Insurance Code and Regulations of the State of Michigan,
(the "Code") and has registered or, prior to any issuance or sale of the
Contracts, will, unless exempt from registration, register each Account as a
unit investment trust in accordance with the provisions of the 1940 Act to serve
as a segregated investment account for the Contracts.
2.2. The Company represents that the Contracts will be eligible for
treatment 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 Funds and the Underwriter promptly upon having determined
that the Contracts may have ceased to be so treated or that they might not be so
treated in the future.
2.3. The Company represents and warrants that all of its
directors/trustees, employees, investment advisers and other
individuals/entities dealing with money and/or securities of the Funds are and
shall continue to be at all times covered by a blanket fidelity bond or similar
coverage for the benefit of the Funds, in an amount not less than $5 million.
The aforesaid bond shall include coverage for larceny and embezzlement and shall
be issued by a reputable bonding company. The Company shall notify the Funds,
the Underwriter and the Adviser in the event that such coverage no longer
applies.
2.4. The Funds represent and warrant that Fund shares sold pursuant
to this Agreement are registered under the 1933 Act, duly authorized for
issuance and sale in compliance in all material respects with the terms of this
Agreement and all applicable federal and state securities laws, and that, while
shares of the Portfolios are being offered for sale, the Funds are and shall
remain registered under the 1940 Act. The Funds shall amend their Registration
Statement under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of Portfolio shares. The Funds shall
register or otherwise qualify the shares for sale in accordance with the laws of
the various states only if and to the extent deemed advisable by the Funds or
the Underwriter.
2.5. The Funds represent that each Portfolio is qualified as a
Regulated Investment Company under Subchapter M of the Code and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the Company promptly
upon having determined that any Portfolio may have ceased to so qualify or that
it might not so qualify in the future.
2.6. The Funds currently do not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it may make such payments in the future. To the extent that
it decides to finance distribution expenses pursuant to Rule 12b-1, the Funds
undertake to have a board of trustees, a majority of whom are not interested
persons of the Funds, formulate and approve any plan under Rule 12b-1 to finance
distribution expenses.
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2.7. The Funds make no representation as to whether any aspect of
their operations (including, but not limited to, fees, expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Funds represents that the Funds have disclosed or made
available, in writing, all information requested by Company and represents and
warrants that such written information is true and accurate in all material
respects as of the effective date of this Agreement. Without prior written
notice to the Company, the Funds will not make any changes in fundamental
investment policies or advisory fees, and shall at all times remain in
compliance with federal securities law as it applies to insurance products. The
Company will use its best efforts to provide the Funds with copies of amendments
to provisions of state insurance laws and regulations related to separate
accounts and variable products, which may affect the Funds' operations.
2.8. The Worldwide Insurance Trust represents that it is lawfully
organized and validly existing under the laws of the Commonwealth of
Massachusetts and Levco Series Trust represents that it is lawfully organized
and validly existing under the laws of the State if Delaware and that they both
do and will comply in all material respects with the 1940 Act.
2.9. The Underwriters represent and warrant that they are members in
good standing of the NASD and are registered as broker-dealers with the SEC. The
Underwriters further represents that they will sell and distribute Portfolio
shares to the Company in accordance with all applicable state and federal
securities laws, including, without limitation, the 1933 Act, the 1934 Act and
the ▇▇▇▇ ▇▇▇.
2.10. The Advisers represent and warrant that they are and shall
remain duly registered in all material respects under all applicable federal and
state securities laws and that they shall perform its obligations for the Funds
in compliance in all material respects with any applicable state and federal
securities laws.
2.11. The Funds, the Underwriters and the Advisers represent and
warrant that all of their directors/trustees, officers, employees, investment
advisers and other individuals/entities dealing with money and/or securities of
the Funds are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Funds, in an amount not
less than the minimum coverage as required by Rule 17g-1 of the 1940 Act or
related provisions as may from time to time be promulgated. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company. The Funds shall notify the Company in the event such
coverage no longer applies.
ARTICLE III
Prospectuses and Proxy Statements; Voting
-----------------------------------------
3.1. The Underwriters shall provide the Company (at the
Underwriter's expense) with as many copies of the Funds' current prospectus as
the Company may reasonably request. If requested by the Company in lieu thereof,
the Funds shall provide such documentation (including a final copy of the new
prospectus as set in type at the Funds' expense) and other assistance as is
reasonably necessary in order for the Company once each year (or more frequently
if the
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prospectus for the Funds is amended) to have the prospectus (or private offering
memorandum, if a Contract and its associated Account are exempt from
registration) for the Contracts and the Funds' prospectus printed together in
one document (such printing to be at the Company's expense).
3.2. The Funds' prospectuses shall state that the Statement of
Additional Information for the Funds is available from the Underwriters (or in
the Funds' discretion, from the Funds), and the Underwriters (or the Funds), at
their expense, shall provide such Statement of Additional Information free of
charge to the Company and to any owner of a Contract or prospective owner who
requests such Statement.
3.3. The Fund, at their expense, shall provide the Company with
copies of their proxy statements, reports to shareholders, and other
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
3.4. If and to the extent required by law, the Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote Portfolio shares in accordance with instructions
received from Contract owners; and
(iii) vote Portfolio shares for which no instructions have
been received in the same proportion as shares of such
Portfolio for which instructions have been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners. The Company
reserves the right to vote Fund shares held in any segregated asset account in
its own right, to the extent permitted by law. The Company shall be responsible
for assuring that each of its separate accounts participating in the Funds
calculates voting privileges in a manner consistent with the standards set forth
in the Shared Funding Order and rules and regulations of the SEC, which
standards will also be provided to other Participating Insurance Companies.
3.5. The Funds will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Funds will either
provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although or the Funds are not one of the trusts described in Section 16(c) of
that Act) as well as with Sections 16(a) and, if and when applicable, 16(b).
Further, the Funds will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of trustees and
with whatever rules the SEC may promulgate with respect thereto.
ARTICLE IV
Sales Material and Information
------------------------------
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4.1. The Company shall furnish, or shall cause to be furnished, to
the Funds or its designee, each piece of sales literature or other promotional
material in which the Funds, the Underwriter or the Adviser is named, at least
fifteen Business Days prior to its use. No such material shall be used unless
approved in writing by the all of the Funds or the Underwriters. The Funds and
the Underwriters will use reasonable best efforts to provide the Company with
written response within ten Business Days of receipt of such materials. Any
piece which merely names the Funds, the Underwriters or the Advisers as
participating in the Variable Insurance Products may be used after ten Business
Days of receipt by the Funds and the Underwriters if the Company has not
received a written response from the Funds or the Underwriters.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Funds or concerning the Funds in
connection with the sale of the Contracts other than the information or
representations contained in the registration statements or prospectuses for the
Funds, as such registration statements and prospectuses may from time to time be
amended or supplemented, or in reports or proxy statements for the Funds, or in
sales literature or other promotional material provided to the Company by the
Funds or their designee or by the Underwriters, except with the written
permission of the Funds or such Underwriter, pursuant to Section 4.1 hereof.
4.3. The Funds, the Underwriters or their designee shall furnish, or
shall cause to be furnished, to the Company or its designee, each piece of sales
literature or other promotional material in which the Company and/or its
separate account(s), is named at least fifteen Business Days prior to its use.
No such material shall be used unless approved in writing by the Company or its
designee. The Company will use reasonable best efforts to provide the Funds with
written response within ten Business Days of receipt of such materials. Any
piece which merely states that the Funds, the Underwriters or the Advisers are
participating in the Variable Insurance Products may be used after ten Business
Days after receipt by the Company if the Funds or the Underwriters have not
received a written response from the Company.
4.4. The Funds and the Underwriters shall not give any information
or make any representations on behalf of the Company or concerning the Company,
each Account, or the Contracts other than the information or representations
contained in a registration statement or prospectus for the Contracts, as such
registration statement and prospectus may from time to time be amended or
supplemented, or in published reports which are in the public domain or approved
by the Company for distribution to Contract owners, or in sales literature or
other promotional material approved by the Company or its designee, except with
the permission of the Company.
4.5. The Funds will provide to the Company at least one complete
copy of all registration statements, prospectuses, Statements of Additional
Information, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to any of the Portfolios or their
shares, promptly following the filing of such document with the SEC or other
regulatory authorities.
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4.6. The Company will provide to the Funds at least one complete
copy of all registration statements, prospectuses, Statements of Additional
Information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for
no-action letters, and all amendments to any of the above, that relate to the
Contracts or each Account, promptly following the filing of such document with
the SEC or other regulatory authorities; and, if a Contract and its associated
Account are exempt from registration, the equivalents to the above.
4.7. For purposes of this Agreement, the phrase "sales literature
or other promotional material" includes, but is not limited to, any of the
following that refer to the Funds or any affiliate of the Funds: advertisements
(such as material published or designed for use in a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape or
electronic display, signs or billboards, motion pictures, or other public
media), sales literature (i.e., any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
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.
ARTICLE V
Fees and Expenses
-----------------
5.1. The Funds and the Underwriters shall pay no fee or other
compensation to the Company under this Agreement, except that if the Funds or
any Portfolio adopts and implements a plan pursuant to Rule 12b-1 to finance
distribution expenses, then the Underwriter may make payments to the Company or
to the underwriter for the Contracts if and in amounts agreed to by the
Underwriter in writing and such payments will be made out of existing fees
otherwise payable to the Underwriter, past profits of the Underwriter or other
resources available to the Underwriter. No such payments shall be made directly
by the Funds. Currently, no such payments are contemplated.
5.2. Except as otherwise expressly provided in the Agreement, all
expenses incident to performance by the Funds under this Agreement shall be paid
by the Funds. The Funds shall see to it that all Portfolio shares are registered
and authorized for issuance in accordance with applicable federal law and, if
and to the extent deemed advisable by the Funds, in accordance with applicable
state laws prior to their sale. The Funds shall bear the expenses for the cost
of registration and qualification of the Portfolios' shares, preparation and
filing of the Funds' prospectus and registration statement, proxy materials and
reports, setting the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders (including the costs of printing a
prospectus that constitutes an annual report), the preparation of all statements
and notices required by any federal or state law and all taxes on the issuance
or transfer of the Portfolios' shares.
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5.3. The Company shall bear the expenses of printing and
distributing the Funds' prospectus to owners of Contracts issued by the Company
and of distributing the Funds' proxy materials and reports to such Contract
owners.
ARTICLE VI
Diversification
---------------
6.1. The Funds will at all times invest money from the Contracts in
such a manner as to ensure that the Contracts will be treated as variable
contracts under the Code and the regulations issued thereunder. Without limiting
the scope of the foregoing, the Funds will at all times comply with Section
817(h) of the Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment or life insurance
contracts and any amendments or other modifications to such Section or
Regulation. In the event of a breach of this Article VI by the Funds, it will
take all reasonable steps (a) to notify Company of such breach and (b) to
adequately diversify the Funds so as to achieve compliance with the grace period
afforded by Regulation 1.817-5.
ARTICLE VII
Potential Conflicts
-------------------
7.1. The Boards will monitor the Funds for the existence of any
material irreconcilable conflict between the interests of the contract owners of
all separate accounts investing in the Funds. A material irreconcilable conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretive letter or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of a Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by a Participating Insurance Company to
disregard the voting instructions of contract owners. The Boards shall promptly
inform the Company if they determine that a material irreconcilable conflict
exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts to
the Boards. The Company will assist the Boards in carrying out its
responsibilities under the Shared Funding Order, by providing the Boards with
all information reasonably necessary for the Boards to consider any issues
raised. This includes, but is not limited to, an obligation by the Company to
inform the Boards whenever any of the events in Section 7.1, as they pertain to
the Company, occur (e.g., a decision to disregard contract owner voting
instructions).
7.3. If it is determined by a majority of a Board, or a majority of
its disinterested trustees, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
disinterested trustees), take whatever steps are necessary to
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remedy or eliminate the material irreconcilable conflict, up to and including:
(1) withdrawing the assets allocable to some or all of the separate accounts
from the Funds or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Funds, or submitting the question whether such segregation should be implemented
to a vote of all affected Contract owners and, as appropriate, segregating the
assets of any appropriate group (i.e., annuity contract owners, life insurance
contract owners or variable contract owners of one or more Participating
Insurance Companies) that votes in favor of such segregation, or offering to the
affected contract owners the option of making such a change, and (2)
establishing a new registered management investment company or managed separate
account.
7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and that
decision represents a minority position or would preclude a majority vote, the
Company may be required, at the Funds election, to withdraw the affected
Account's investment in the Funds and terminate this Agreement with respect to
such Account; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested trustees of the Board. Any such
withdrawal and termination must take place within six months after the Funds
give written notice that this provision is being implemented, and until the end
of that six month period the Funds and the Underwriters shall continue to accept
and implement orders by the Company for the purchase (and redemption) of shares
of the Funds.
7.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with that of other state regulators, then the Company will withdraw
the affected Account's investment in the Funds and terminate this Agreement with
respect to such Account within six months after the Board informs the Company in
writing that it has determined that such decision has created a material
irreconcilable conflict; provided, however, that such withdrawal and termination
shall be limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested trustees of the Board.
Until the end of that six-month period, the Funds and the Underwriter shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of shares of the Funds.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement,
a majority of the disinterested trustees of each Board shall determine whether
any proposed action adequately remedies a material irreconcilable conflict, but
in no event will the Funds be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 7.3 to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the material
irreconcilable conflict. In the event that the Board determines that any
proposed action does not adequately remedy a material irreconcilable conflict,
then the Company will withdraw the Account's investment in the Funds and
terminate this Agreement within six months after the Board informs the Company
in writing of the foregoing determination; provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested trustees of the Boards.
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7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to mixed or
shared funding (as defined in the Shared Funding Order) on terms and conditions
materially different from those contained in the Shared Funding Order, then (a)
the Funds and/or the Participating Insurance Companies, as appropriate, shall
take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as
amended, and Rule 6e-3 as adopted, to the extent such rules are applicable; and
(b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or
adopted.
ARTICLE VIII
Indemnification
---------------
8.1. Indemnification By The Company
------------------------------
8.1(a). The Company agrees to indemnify and hold harmless the Funds,
the Underwriters and the Advisers and each trustee/director and officer thereof
and each person, if any, who controls the Funds, the Underwriters, or the
Advisers within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company), expenses or litigation (including legal and
other expenses) (hereinafter referred to collectively as a "Loss"), to which the
Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as a Loss is related to the sale or acquisition
of the Funds' shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement, prospectus or private
offering memorandum for the Contracts or contained in
the Contracts or sales literature or other promotional
materials 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 statement therein not
misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reliance upon and in conformity
with written information furnished to the Company by or
on behalf of the Indemnified Party for use in the
registration statement or prospectus for the Contracts
or in the Contracts or in sales literature or any other
promotional materials (or any amendment or supplement
to any of the foregoing); or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statements, prospectuses or sales literature or other
promotional materials of the Funds
Page 12
not supplied by the Company, or persons under its
control) or wrongful conduct of the Company or persons
under its control, with respect to the sale or
distribution of the Contracts or Funds shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus or sales literature
or other promotional materials of the Funds (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 if such statement or
omission was made in reliance upon or in conformity
with written information furnished to the Funds, the
Underwriters or the Advisers by or on behalf of the
Company; or
(iv) arise as a result of any failure by the Company to
provide the services and furnish the materials under
the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in
this Agreement or arise out of or result from any other
material breach of this Agreement by the Company, as
limited by and in accordance with the provisions of
Sections 8.1 (b) and 8.1(c) hereof.
8.1(b). The Company shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations or
duties under this Agreement or to the Funds, the Underwriters or the Advisers,
whichever is applicable.
8.1(c). The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Company shall be entitled to participate,
at its own expense, in the defense thereof. The Company also shall be entitled
to assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Company to such Party of the Company's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Company will
not be liable to such Party under this Agreement for any legal or other expenses
subsequently incurred by such
Page 13
Party independently in connection with the defense thereof other than reasonable
costs of investigation.
8.1(d). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
this Agreement, the issuance or sale of Portfolio shares or the Contracts or the
operation of the Funds.
8.2. Indemnification By The Funds
----------------------------
8.2(a). The Funds severally agree to indemnify and hold harmless the
Company, and each of its directors/trustees and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.2)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as a Loss is related
to the operations of the Funds and:
(i) arise as a result of any failure by the Funds to
provide the services and furnish the materials under
the terms of this Agreement (including a failure to
comply with the diversification requirements specified
in Article VI of this Agreement);or
(ii) arise out of or result from any material breach of any
representation and/or warranty made by the Funds in
this Agreement or arise out of or result from any other
material breach of this Agreement by the Funds, as
limited by and in accordance with the provisions of
Sections 8.2(b) and 8.2(c) hereof.
8.2(b). The Funds shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Company, an Account, the Funds, the
Underwriters or the Advisers, whichever is applicable.
8.2(c). The Funds shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Funds in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Funds of any
such claim shall not relieve the Funds from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Funds shall be entitled to participate, at
their own expense, in the defense thereof. The Funds also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Funds to such party of the Funds' election to
assume the defense thereof, the Indemnified Party shall bear the fees and
Page 14
expenses of any additional counsel retained by it, and the Funds will not be
liable to such Party under this Agreement for any legal or other expenses
subsequently incurred by such Party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.2(d). The Company will promptly notify the Funds of the commencement
of any litigation or proceedings against the Indemnified Parties in connection
with this Agreement, the issuance or sale of Portfolio shares or the Contracts,
the operation of each Account or the acquisition of shares of the Funds.
8.3. Indemnification By The Underwriters
-----------------------------------
8.3(a) The Underwriters severally agree to indemnify and hold harmless
the Company and each of its directors/trustees and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.3)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as a Loss is related
to the sale or acquisition of the Funds' shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in the registration statement or prospectus or sales
literature or other promotional materials of the Funds
(or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated therein or
necessary to make the statements therein not
misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reliance upon and in conformity
with written information furnished to the Funds, the
Underwriters or the Advisers by or on behalf of the
Indemnified Party for use in the registration statement
or prospectus of the Funds or in sales literature or
other promotional materials (or any amendment or
supplement to any of the foregoing); or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statements, prospectuses or sales literature or other
promotional materials for the Contracts not supplied by
the Underwriters or persons under their control) or
wrongful conduct of the Funds or Underwriters or
persons under their control, with respect to the sale
or distribution of the Contracts or Funds shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus or private offering
memorandum for the Contracts or contained in the
Contracts or sales literature or other promotional
materials for the Contracts (or any
Page 15
amendment or supplement to any of the foregoing) or
arise out of or are based upon the omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statement or
statements therein not misleading, if such statement or
omission was made in reliance upon or in conformity
with written information furnished to the Company by or
on behalf of the Funds or the Underwriters; or
(iv) arise as a result of any failure by the Underwriters to
provide the services and furnish the materials under
the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to
comply with the diversification requirements specified
in Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriters
in this Agreement or arise out of or result from any
other material breach of this Agreement by the
Underwriters, as limited by and in accordance with the
provisions of Sections 8.3(b) and 8.3(c) hereof.
8.3(b). The Underwriters shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Company or an Account, whichever is
applicable.
8.3(c). The Underwriters shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Underwriters in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriters of
any such claim shall not relieve the Underwriters from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision. In case any such action is
brought against the Indemnified Parties, the Underwriters shall be entitled to
participate, at its own expense, in the defense thereof. The Underwriters also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the Party named in the action. After notice from an Underwriter to such Party of
the Underwriter's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Underwriter will not be liable to such Party under this Agreement for any
legal or other expenses subsequently incurred by such Party independently in
connection with the defense thereof other than reasonable costs of
investigation.
Page 16
8.3(d). The Company will promptly notify the Underwriters of the
commencement of any litigation or proceedings against the Indemnified Parties in
connection with this Agreement, the issuance or sale of Portfolio shares or the
Contracts or the operation of each Account.
8.4. Indemnification By The Advisers
-------------------------------
8.4(a) The Advisers severally agree to indemnify and hold harmless the
Company and each of its directors/trustees and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 8.4)
against any Loss to which the Indemnified Parties may become subject under any
statute or regulation, at common law or otherwise, insofar as a Loss is related
to the sale or acquisition of the Funds' shares or the Contracts and:
(i) arise out of or as a result of statements or
representations (other than statements or
representations contained in the registration
statements, prospectuses or sales literature or other
promotional materials for the Contracts not supplied by
the Advisers, or persons under its control) or wrongful
conduct of the Advisers or persons under its control,
with respect to the sale or distribution of the
Contracts or Funds shares; or
(ii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus or private offering
memorandum for the Contracts or contained in the
Contracts or sales literature or other promotional
materials for 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
statement or statements therein not misleading, if such
statement or omission was made in reliance upon or in
conformity with written information furnished to the
Company by or on behalf of the Advisers; or
(iii) arise as a result of any failure by the Advisers to
provide the services and furnish the materials under
the terms of this Agreement (including a) a failure by
the Funds, whether unintentional or in good faith or
otherwise, to comply with the diversification
requirements specified in Article VI of this Agreement
or b) a material error in the calculation of any net
asset value); provided, however, such indemnity under
this subsection (iii) shall be limited to the cost of
reprocessing all transactions affected by such error or
at the Advisers' discretion the cost of reimbursing the
underlying portfolio or
(iv) arise out of or result from any material breach of any
representation and/or warranty made by an Adviser in
this Agreement or arise out of or result from any other
material breach of this Agreement by an Adviser, as
limited
Page 17
by and in accordance with the provisions of Sections
8.4(b) and 8.4(c) hereof.
8.4(b). An Adviser shall not be liable under this indemnification
provision with respect to any Loss incurred or assessed against an Indemnified
Party as such may arise from such Indemnified Party's willful misfeasance, bad
faith or gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of obligations and
duties under this Agreement or to the Company or an Account, whichever is
applicable.
8.4(c). An Adviser shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Advisers in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Advisers of any
such claim shall not relieve the Adviser from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Adviser shall be entitled to participate,
at its own expense, in the defense thereof. The Adviser also shall be entitled
to assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from the Adviser to such party of the Adviser's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Adviser will
not be liable to such Party under this Agreement for any legal or other expenses
subsequently incurred by such Party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.4(d). The Company will promptly notify the Adviser of the
commencement of any litigation or proceedings against the Indemnified Parties in
connection with this Agreement, the issuance or sale of Portfolio shares or the
Contracts or the operation of each Account.
8.5. Except as otherwise expressly provided in the Agreement, no
party shall be liable to any other party for special, consequential, punitive or
exemplary damages, or damages of a like kind or nature; and, without limiting
the foregoing, with respect to Section 1.10 of Article I and Sections 8.2, 8.3
and 8.4 of Article VIII as such Sections relate to errors in calculation or
untimely reporting of net asset value per share or dividend or capital gain
rate, the liability of a party to any other party shall be limited to the amount
required to correct the value of the Account as if there had been no incorrect
calculation or reporting or untimely reporting of the net asset value per share
or dividend or capital gain rate.
ARTICLE IX
Applicable Law
--------------
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
Page 18
9.2. This Agreement shall be subject to the provisions of the 1933
Act, the 1934 Act and the 1940 Act and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and regulations
as the SEC may grant (including, but not limited to, the Shared Funding Order)
and the terms of this Agreement shall be interpreted and construed in accordance
therewith.
ARTICLE X
Termination
-----------
10.1. This Agreement shall continue in full force and effect until
the first to occur of:
(a) termination by any party for any reason by sixty (60)
days' advance written notice delivered to the other
parties; or
(b) termination by the Company by written notice to a Fund
and its Underwriter with respect to any Portfolio based
upon the Company's determination that shares of such
Portfolio are not reasonably available to meet the
requirements of the Contracts; or
(c) termination by the Company by written notice to a Fund
and its Underwriter with respect to any Portfolio in
the event any of the Portfolio's shares are not
registered, issued or sold in accordance with
applicable state and/or federal law or such law
precludes the use of such shares as the underlying
investment media of the Contracts issued or to be
issued by the Company; or
(d) termination by the Company by written notice to a Funds
its Underwriter and its Adviser with respect to any
Portfolio in the event that such Portfolio ceases to
qualify as a "regulated investment company" under
Subchapter M of the Code or under any successor or
similar provision, or if the Company reasonably
believes that the Fund will fail to so qualify; or
(e) termination by the Company by written notice to a Fund,
its Underwriter and its Adviser with respect to any
Portfolio in the event that such Portfolio fails to
meet the diversification requirements specified in
Article VI hereof; or
(f) termination by either the Funds or the Underwriters by
written notice to the Company, if either one or both of
the Funds or one or both of the Underwriters shall
determine, in their sole judgment exercised in good
faith, that the Company and/or its affiliated companies
has suffered a material adverse change in its business,
operations, financial condition or
Page 19
prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(g) termination by the Company by written notice to the
Funds and the Underwriters, if the Company shall
determine, in its sole judgment exercised in good
faith, that either a Fund or a Underwriter has suffered
a material adverse change in its business, operations,
financial condition or prospects since the date of this
Agreement or is the subject of material adverse
publicity; or
10.2. Effect of Termination. Notwithstanding termination of this
---------------------
Agreement, the Funds and the Underwriters shall, if the Company and the
Underwriter mutually agree, continue to make available additional shares of the
Funds 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 shall be permitted to retain investments in the
Funds, reinvest dividends and redeem investments in the Funds. The parties agree
that this Section 10.2 shall not apply to any terminations under Section 1.2 of
Article I or under Article VII, and the effect of such Article VII terminations
shall be governed by Article VII of this Agreement.
10.3 The Company shall not redeem Funds shares attributable to the
Contracts (as opposed to Funds shares attributable to the Company's assets held
in the Account) except (i) as necessary to implement Contract Owner initiated or
approved transactions; or (ii) as required or permitted by state and/or federal
laws or regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"); or (iii) as a
result of action by the Funds' Boards, acting in good faith, upon sixty (60)
days' advance written notice to the Company and Contract Owners. Furthermore,
except in cases where permitted under the terms of the Contracts, the Company
shall not prevent Contract Owners from allocating payments to a Portfolio that
was otherwise available under the Contracts without first giving the Funds or
the Underwriter 90 days' advance written notice of its intention to do so.
Page 20
ARTICLE XI
Notices
-------
Any notice shall be sufficiently given when sent by registered or
certified mail or next-day delivery to the other parties at the address of such
parties set forth below or at such other address as any party may from time to
time specify in writing to the other parties.
If to the Company:
Canada Life Insurance Company of
America__________________________________________________
_________________________________________________
Attention:_______________________________________
If to the Worldwide Insurance Funds:
c/o ▇▇▇ ▇▇▇ Global
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President, with a copy to the General Counsel
If to Levco Series Trust
_________________________________________________
_________________________________________________
Attention:_______________________________________
If to the ▇▇▇ ▇▇▇ Securities Corporation:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President, with a copy to the General Counsel
If to Levco Securities Inc.
_________________________________________________
_________________________________________________
Attention:_______________________________________
If to ▇▇▇ ▇▇▇ Associates Corporation:
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: President, with a copy to the General Counsel
If to ▇▇▇▇ ▇. ▇▇▇▇▇ & Co. Inc.
_________________________________________________
_________________________________________________
Page 21
Attention:_______________________________________
ARTICLE XII
Miscellaneous
-------------
12.1. All persons dealing with the Funds must look solely to the
property of the Funds for the enforcement of any claims against the Funds as
neither the Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Funds.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express written consent
of the affected party, until such time as it may come into the public domain.
12.3. The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including, without limitation, the SEC,
the NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, which the parties hereto are entitled to under
state and federal laws.
12.8. This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereunder; provided, however, that the Underwriter may assign this
Agreement or any rights or obligations hereunder to any affiliate of or company
under common control with the Underwriter, if such assignee is duly licensed and
registered to perform the obligations of the Underwriter under this Agreement.
12.9. The Company shall furnish, or shall cause to be furnished, to
the Funds or its designee, copies of the following reports:
Page 22
(a) the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles ("GAAP"), if any), as
soon as practical and in any event within 120 days after the
end of each fiscal year;
(b) the Company's semi-annual statements (statutory) (and GAAP, if
any), as soon as practical and in any event within 60 days
after the end of each period:
(c) any financial statement, proxy statement, notice or report of
the Company sent to stockholders and/or policyholders, as soon
as practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the SEC or any state
insurance regulator, as soon as practical after the filing
thereof;
(e) any other report submitted to the Company by independent
accountants in connection with any annual, interim or special
audit made by them of the books of the Company, as soon as
practical after the receipt thereof.
Page 23
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
CANADA LIFE INSURANCE COMPANY OF AMERICA Attest:
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
▇▇▇ ▇▇▇ WORLDWIDE INSURANCE TRUST Attest:
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
▇▇▇ ▇▇▇ SECURITIES CORPORATION Attest:
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
▇▇▇ ▇▇▇ ASSOCIATES CORPORATION Attest:
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
Page 24
LEVCO SERIES TRUST Attest
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
LEVCO SECURITIES INC.
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
▇▇▇▇ ▇. ▇▇▇▇▇ & CO., INC.
By: __________________________ By: __________________________
Name: ________________________ Name: ________________________
Title: _______________________ Title: _______________________
Page 25
SCHEDULE A
ACCOUNTS
Date Established by the Company's
Name of Account Board of Directors
--------------- ---------------------------------
Canada Life of America Variable Annuity Account 1 was established as a separate
investment account on July 22, 1988, under Michigan law
Canada Life of America Variable Life Account 1 was established as a separate
investment account on July 22, 1988, under Michigan law
Page 26
SCHEDULE B
PORTFOLIOS AND OTHER FUNDS
ADVISED BY ADVISERS
I. Portfolios
----------
▇▇▇ ▇▇▇ Worldwide Insurance Trust
▇▇▇ ▇▇▇ Worldwide Emerging Markets Fund
▇▇▇ ▇▇▇ Worldwide Real Estate Fund
Levco Series Trust
Levco Equity Value Fund
Page 27
II. Other Funds Currently Included in the Canada Life Insurance Company of
----------------------------------------------------------------------
America Insurance Products
--------------------------
The ▇▇▇▇▇ American Fund................................................
▇▇▇▇▇ American Growth Portfolio..................................
▇▇▇▇▇ American Leveraged AllCap Portfolio........................
▇▇▇▇▇ American MidCap Growth Portfolio...........................
▇▇▇▇▇ American Small Capitalization Portfolio....................
▇▇▇▇▇▇ Institutional Products Trust....................................
▇▇▇▇▇▇/BIAM IPT-International Fund...............................
▇▇▇▇▇▇ IPT-Small Company Growth Fund.............................
The Dreyfus Socially Responsible Growth Fund, Inc......................
Dreyfus Variable Investment Fund.......................................
Dreyfus VIF-Appreciation Portfolio...............................
Dreyfus VIF-Growth and Income Portfolio..........................
Fidelity Variable Insurance Products Fund..............................
Fidelity VIP Growth Portfolio....................................
Fidelity VIP High Income Portfolio...............................
Fidelity VIP Money Market Portfolio..............................
Fidelity VIP Overseas Portfolio..................................
Fidelity Variable Insurance Products Fund II...........................
Fidelity VIP II Asset Manager Portfolio..........................
Fidelity VIP II Contrafund Portfolio.............................
Fidelity VIP II Index 500 Portfolio..............................
Fidelity VIP II Investment Grade Bond Portfolio..................
Fidelity Variable Insurance Products Fund III..........................
Fidelity VIP III Growth Opportunities Portfolio..................
▇▇▇▇▇▇▇ ▇▇▇▇▇ Variable Insurance Trust.................................
▇▇▇▇▇▇▇ Sachs VIT Capital Growth.................................
▇▇▇▇▇▇▇ ▇▇▇▇▇ VIT CORE(SM) U.S.Equity............................
▇▇▇▇▇▇▇ ▇▇▇▇▇ VIT Growth and Income..............................
The ▇▇▇▇▇▇▇▇▇▇ Funds III...............................................
▇▇▇▇▇▇▇▇▇▇ Variable Series: Emerging Markets Fund................
▇▇▇▇▇▇▇▇▇▇ Variable Series: Growth Fund..........................
ProFunds VP............................................................
ProFund VP Money Market..........................................
ProFund VP Bull Plus.............................................
ProFund VP UltraOTC..............................................
ProFund VP UltraSmall-Cap........................................
ProFund VP Bear........................................................
▇▇▇▇▇▇▇▇ Portfolios, Inc...............................................
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▇▇▇▇▇▇▇▇ Communications and Information Portfolio................
▇▇▇▇▇▇▇▇ Frontier Portfolio......................................
▇▇▇▇▇▇▇▇ Global Technology.......................................
▇▇▇▇▇▇▇▇ Small-Cap Value.........................................
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