PARTICIPATION AGREEMENT By and Among OCC ACCUMULATION TRUST And PROVIDENTMUTUAL LIFE AND ANNUITY COMPANY OF AMERICA And PROVIDENT MUTUAL LIFE INSURANCE COMPANY And OCC DISTRIBUTORS
By and
Among
OCC ACCUMULATION
TRUST
And
PROVIDENTMUTUAL LIFE AND
ANNUITY COMPANY OF AMERICA
And
PROVIDENT MUTUAL LIFE
INSURANCE COMPANY
And
OCC
DISTRIBUTORS
THIS AGREEMENT, effective the 16th day
of September, 1994, by and amount PROVIDENTMUTUAL LIFE AND ANNUITY COMPANY OF
AMERICA (“PLACA”), a Delaware Corporation, on its own behalf and on behalf of
each separate account of PLACA named in Schedule I to this Agreement, as may be
amended from time to time, PROVIDENT MUTUAL LIFE INSURANCE COMPANY (“Provident
Mutual”; PLACA and Provident Mutual hereinafter collectively referred to as the
“Company”), a Pennsylvania Corporation, on its own behalf and on behalf of each
separate account of Provident Mutual named in Schedule I to this Agreement
(PLACA and Provident Mutual separate accounts named in Schedule I hereinafter
individually referred to as the “PLACA Account” and the “Provident Mutual
Account” and collectible referred to as the “Account”), OCC ACCUMULATION TRUST
(formerly known as Quest for Value Accumulation Trust), an open-end diversified
management investment company organized under the laws of the State of
Massachusetts (hereinafter the
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“Fund”)
and OCC DISTRIBUTORS (formerly known as Quest for Value Distributors), a
Delaware general partnership (hereinafter the “Underwriter”).
WHEREAS, the Fund engages in business
as an open-end diversified, management investment company and was established
for the purpose of serving as the investment vehicle for separate accounts
established for variable life insurance contracts and variable annuity contracts
to be offered by insurance companies which have entered into participation
agreement substantially identical to this Agreement (hereinafter “Participating
Insurance Companies”); and
WHEREAS, beneficial interests in the
Fund are divided into several series of shares, each representing the interest
in a particular managed portfolio of securities and other assets (the
“Portfolios”); and
WHEREAS, the Fund has obtained an order
from the Securities & Exchange Commission (alternately referred to as the
“SEC” or the “Commission”), dated February 22, 1995 (File No. 812-9290),
granting Participating Insurance Companies and variable annuity separate
accounts and variable life insurance separate accounts relief 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
62-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund
to be sold to and held by variable annuity separate accounts and variable life
insurance separate accounts of both affiliated and unaffiliated Participating
Insurance Companies and qualified pension and retirement plans (hereinafter the
“Mixed and Shared Funding Exemptive Order”); and
WHEREAS, the Fund is registered as an
open-end management investment company under the 1940 Act and its shares are
registered under the Securities Act of 1933, as amended (hereinafter the “1933
Act”); and
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WHEREAS, the Company has registered or
will registered certain variable annuity contracts (the “Contracts”) under the
1933 Act; and
WHEREAS, the PLACA Account and
Provident Mutual Account are a duly organized, validly existing segregated asset
accounts, established by resolution of the Board of Directors of PLACA and
Provident Mutual, respectively, under the insurance laws of the State of
Delaware and Pennsylvania, respectively, to set aside and invest assets
attributable to the Contracts; and
WHEREAS, the Company has registered the
Account as a unit investment trust under the 1940 Act; and
WHEREAS, the Underwriter is registered
as a broker-dealer with the SEC under the Securities Exchange Act of 1934, as
amended (hereinafter the “1934 Act”), and is a member in good standing of the
National Association of Securities Dealers, Inc. (hereinafter “NASD”);
and
WHEREAS, to the extent permitted by
applicable insurance laws and regulations, the Company intends to purchase
shares in the Portfolios named in Schedule 2 on behalf of the Account to fund
the Contracts and the Underwriter is authorized to sell such shares to unit
investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of
their mutual promises, the Company, the Fund and the Underwriter agree as
follows:
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ARTICLE
I. Sale of Fund
Shares
1.1. The
Underwriter agrees to sell to the Company those shares of the Fund which the
Company orders on behalf of the Account, executing such orders on a daily basis
at the net asset value next computed after receipt and acceptance by the Fund or
its agent of the order for the shares of the Fund. For purposes of
this Section 1.1, the Company shall be the designee of the Fund for receipt of
such orders from each Account and receipt by such designee shall constitute
receipt by the Fund; provided that the Fund receives notice of such order by
10:00 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 trading
and on which the Fund calculates its net asset value pursuant to the rules of
the SEC.
1.2. The
Company shall pay for Fund shares on the next Business Day after it places an
order to purchase Fund shares in accordance with Section 1.1
hereof. Payment shall be in federal funds transmitted by
wire.
1.3. The
Fund agrees to make its shares available indefinitely for purchase at the
applicable net asset value per share by Participating Insurance Companies and
their separate accounts on those days on which the Fund calculates its net asset
value pursuant to rules of the SEC; provided, however, that the Board of
Trustees of the Fund (hereinafter the “Directors”) 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 other regulatory
authorities having jurisdiction or is, in the sole discretion of the Directors,
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of any Portfolio.
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1.4. The
Fund and the Underwriter agree that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts, qualified pension
and retirement plans or such other persons as are permitted under applicable
provisions of the Internal Revenue Code of 1986, as amended, (the “Internal
Revenue Code”), and regulations promulgated thereunder, the sale to which will
not impair the tax treatment currently afforded the contracts. No
shares of any Portfolio will be sold to the general public.
1.5. The
Fund and the Underwriter will not sell Fund shares to any insurance company or
separate account unless an agreement containing provisions substantially the
same as Articles I, III, V and VII of this Agreement are in effect to govern
such sales. The Fund shall make available upon written request from
the Company (i) a list of all other Participating Insurance Companies and (ii) a
copy of the Participation Agreement executed by any other Participating
Insurance Company.
1.6. The
Fund agrees to redeem for cash, upon the Company’s request, any full or
fractional shares of the Fund held by the Company, executing such requests on a
daily basis at the net asset value next computed after receipt and acceptance by
the Fund or its agent of the request for redemption. For purposes of
this Section 1.6, the Company shall be the designee of the Fund for receipt of
requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided the Fund receives notice of request for
redemption by 10:00 a.m. Eastern Time on the next following Business
Day. Payment shall be in federal funds transmitted by wire to the
Company’s account as designated by the Company in writing from time to time, on
the same Business Day the Fund receives notice of the redemption order from the
Company except that the Fund reserves the right to delay payment of redemption
proceeds, but in no event may such payment be delayed longer than the period
permitted under
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Section
22(e) of the 1940 Act. Neither the Fund nor the Underwriter shall
bear any responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds; the Company alone shall be responsible for such
action. If notification of redemption is received after 10:00 a.m.
Eastern Time, payment for redeemed shares will be made on the next following
Business Day.
1.7. The
Company agrees to purchase and redeem the shares of the Portfolios named in
Schedule 2 offered by the then current prospectus of the Fund in accordance with
the provisions of such prospectus. The Company agrees that all net
amounts available under the Contracts shall be invested in the Fund, or in the
Company’s general account; provided that such amounts may also be invested in an
investment company other than the Fund if (a) such other investment company, or
series thereof, has investment objectives or policies that are substantially
different from the investment objectives and policies of the Portfolios of the
Fund named in Schedule 2; or (b) the Company gives the Fund and the Underwriter
45 days written notice of its intention to make such other investment company
available as a funding vehicle for the Contracts; or (c) such other investment
company was available as a funding vehicle for the Contracts prior to the date
of this Agreement and the Company so informs the Fund and Underwriter prior to
their signing this Agreement; or (d) the Fund or Underwriter consents in writing
to the use of such other investment company.
1.8. Issuance
and transfer of the Fund’s shares will be by book entry only. Stock
certificates will not be issued to the Company or any
Account. Purchase and redemption orders for Fund shares will be
recorded in an appropriate title for each Account or the appropriate subaccount
of each Account.
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1.9. The
Fund shall furnish notice as soon as reasonably practicable to the Company of
any income, dividends or capital gain distributions payable on the Fund’s
shares. The Company hereby elects to receive all such dividends and
Distributions as are payable on the Portfolio shares in the form of additional
shares of that Portfolio. The Company reserves the right to revoke
this election and to receive all such dividends and distributions in
cash. The Fund shall notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.10. The
Fund shall make the net asset value per share for each Portfolio available to
the Company on a daily basis as soon as reasonably practical after the net asset
value per share is calculated and shall use its best efforts to make sure net
asset value per share available by 5:30 p.m., Eastern Time, each business
day.
ARTICLE
II. Representations and
Warranties
2.1. The
Company represents and warrants that the Contracts are or will be registered
under the 1933 Act and that the Contracts will be issued and sold in compliance
with all applicable federal and state laws. The Company 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 as a segregated asset account under applicable state
law and has registered each Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as segregated investment accounts
for the Contracts, and that it will maintain such registration for so long as
any Contracts are outstanding. The Company shall amend the
registration statement under the 1933 Act for the Contracts and the registration
statement under the 1940 Act for the Account from time to time as required in
order to effect the
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continuous
offering of the Contracts or as may otherwise be required by applicable
law. The Company shall register and qualify the Contracts for sale in
accordance with the securities laws of the various states only if and to the
extent deemed necessary by the Company.
2.2. The
Company represents that it believes that the Contracts are currently and at the
time of issuance will be treated as annuity contracts under applicable
provisions of the Internal Revenue 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 that the Contracts have
ceased to be so treated or that they might not be so treated in the
future.
2.3. The
Fund represents and warrants that Fund shares sold pursuant to this Agreement
shall be registered under the 1933 Act and duly authorized for issuance in
accordance with applicable law and that the Fund is and shall remain registered
under the 1940 Act for as long as the Fund shares are sold. The Fund
shall amend the registration statement for its shares under the 1933 Act and the
1940 Act from time to time as required in order to effect the continuous
offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and to
the extent deemed advisable by the Fund or the Underwriter.
2.4. The
Fund represents that it is currently qualified as a Regulated Investment Company
under Subchapter M of the Internal Revenue Code, and that it will make every
effort to maintain such qualification (under Subchapter M or any successor
similar provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it might
not so qualify in the future.
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2.5. The
Fund represents that its investment objectives, policies and restrictions comply
with applicable state investment laws as they may apply to the
Fund. The Fund makes no representation as to whether any aspect of
its operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws and regulations of any
state. The Company alone shall be responsible for informing the Fund
of any insurance restrictions imposed by state insurance laws which are
applicable to the Fund. To the extent feasible and consistent with
market conditions, the Fund will adjust its investments to comply with the
aforementioned state insurance laws upon written notice from the Company of such
requirements and proposed adjustments, it being agreed and understood that in
any such case the Fund shall be allowed a reasonable period of time under the
circumstances after receipt of such notice to make any such
adjustment.
2.6. The
Fund currently does 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 Fund undertakes to
have its Board of Trustees, a majority of whom are not interested persons of the
Fund, formulate and approve any plan under Rule 12b-1 to finance distribution
expenses.
2.7. The
Underwriter represents and warrants that it is a member in good standing of the
National Association of Securities Dealers, Inc., (“NASD”) and is registered as
a broker-dealer with the SEC. The Underwriter further represents that
it will sell and distribute the Fund shares in accordance with all applicable
federal and state securities laws, including without limitation the 1933 Act,
the 1934 Act, and the 1940 Act.
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2.8. The
Fund represents that it is lawfully organized and validly existing under the
laws of Massachusetts and that it does and will comply with applicable
provisions of the 0000 Xxx.
2.9. The
Underwriter represents and warrants that the Fund’s Adviser, OpCap Advisers
(formerly known as Quest for Value Advisors), is and shall remain duly
registered under all applicable federal and state securities laws and that the
Advisor will perform its obligations to the Fund in accordance with the laws of
Massachusetts and any applicable state and federal securities laws.
2.10. The
Fund and Underwriter represent and warrant that all of their directors,
officers, employees, investment advisors, and other individuals/entities having
access to the funds and/or securities of the Fund are and continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Fund in an amount not less than the minimal coverage as required currently
by Rule 17g-(1) of the 1940 Act or related provisions as may be promulgated form
time to time. The aforesaid Bond includes coverage for larceny and
embezzlement and is issued by a reputable bonding company.
2.11. The
Company represents and warrants that all of its directors, officers, employees,
investment advisors, and other individuals/entities dealing with the money
and/or securities of the Fund are covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund, in an amount not less than $5
million. The aforesaid includes coverage for larceny and embezzlement
and is issued by a reputable bonding company. The Company agrees to
make all reasonable efforts to see that this bond or another bond containing
these provisions is always in effect, and agrees to notify the Fund and the
Underwriter in the event that such coverage no longer applies.
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ARTICLE
III. Prospectuses and Proxy
Statements: Voting
3.1. The
Underwriter shall provide the Company, at the Company’s expense, with as many
copies of the Fund’s current prospectus as the Company may reasonably request
for use with prospective contractowners and applicants. The
Underwriter shall print and distribute, at the Fund’s or Underwriter’s expense,
as many copies of said prospectus as necessary for distribution to existing
contractowners or participants. If requested by the Company in lieu
thereof, the Fund shall provide such documentation including a final copy of a
current prospectus set in type at the Fund’s expense and other assistance as is
reasonably necessary in order for the Company at least annually (or more
frequently if the Fund prospectus is amended more frequently) to have the new
prospectus for the Contracts and the Fund’s new prospectus printed together in
one document. In such case the Fund shall bear its share of expenses
as described above.
In the event the Fund’s prospectus is
amended or a supplement to the Fund’s current prospectus in the form of a
sticker is prepared to reflect a material change in Fund disclosure due to the
actions, activities or affairs of the Underwriter or Fund investment manager,
the cost of reflecting such changes in the Fund’s current prospectus will be
borne by the Underwriter.
3.2. The
Fund’s prospectus shall state that the Statement of Additional Information for
the Fund is available from the Underwriter or alternatively from the Company
(or, in the Fund’s discretion, the Prospectus shall state that such Statement is
available from the Fund), and the Underwriter (or the Fund) shall provide such
Statement, at its expense, to the Company and to any owner of or participant
under a Contract who requests such Statement or, at
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the
Company’s expense, to any prospective contractowner and applicant who requests
such statement.
3.3. The
Fund, at its expense, shall provide the Company with copies of its proxy
material, if any, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably require and shall
bear the costs of distributing them to existing contractowners or
participants.
3.4. If
and to the extent required by law the Company shall:
(i) solicit
voting instructions from contractowners or participants;
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(ii)
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vote
the Fund shares held in the Account in accordance with instructions
received from contractowners or participants;
and
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(iii)
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vote
Fund shares held in the Account for which no timely instructions have been
received, in the same proportion as Fund shares of such Portfolio for
which instructions have been received from the Company’s contractowners or
participants;
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so long
as and to the extent that the SEC continues to interpret the 1940 Act to require
pass through voting privileges for variable contractowners. 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. Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in the Fund
calculates voting privileges in a manner consistent with other Participating
Insurance Companies.
3.5. The
Fund will comply with all provisions of the 1940 Act requiring voting by
shareholders, and in particular as required, the Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Fund
is not one of the trusts described in Section 16(c) of the Act) as well as with
Sections 16(a) and, if and when applicable, 16(b). Further, the Fund
will act in accordance with the SEC interpretation of the requirements
of
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Section
16(a) with respect to periodic elections of directors and with whatever rules
the Commission may promulgate with respect thereto.
ARTICLE
IV. Sales Material and
Information
4.1. The
Company shall furnish, or shall cause to be furnished, to the Fund or the
Underwriter, each piece of sales literature or other promotional material in
which the Fund or the Fund’s adviser or the Underwriter is named, at least
fifteen business days prior to its use. No such material shall be
used if the Fund or the Underwriter reasonably objects in writing to such use
within fifteen business days after receipt of such material.
4.2. The
Company shall not give any information or make any representations or statements
on behalf of the Fund or concerning the Fund in connection with the sale of the
Contracts other than the information or representations contained in the
registration statement or prospectus for the Fund shares, as such registration
statement and prospectus may be amended or supplemented from time to time, or in
reports or proxy statements for the Fund, or in sales literature or other
promotional material approved by the Fund or by the Underwriter, except with the
permission of the Fund or the Underwriter. The Fund and the
Underwriter agree to respond to any request for approval in a prompt and timely
basis.
4.3. The
Fund or the Underwriter 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 or its separate account is named, at least fifteen
business days prior to its use. No such material shall be used if the
Company reasonably objects in writing to such use within fifteen business days
after receipt of such material.
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4.4. The
Fund and the Underwriter 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 be amended or supplemented from time
to time, or in published reports for each Account which are in the public domain
or approved by the Company for distribution to contractowners or participants,
or in sales literature or other promotional material approved by the Company,
except with the permission of the Company. The Company agrees to
respond to any request for approval in a prompt and timely basis.
4.5. The
Fund 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 the Fund or its shares, contemporaneously with the filing
of such document with the SEC or other regulatory authorities.
4.6. The
Company will provide to the Fund 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,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
4.7. For
purposes of this Article IV, the phrase “sales literature or other promotional
material” includes, but is not limited to, advertisements (such as material
published,
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or
designed for use in a newspaper, magazine or other periodical, radio,
television, telephone or tape recording, videotape display, signs or billboards,
motion pictures, or other public media), sales literature (i.e., any written
communication distributed or made generally available to customers or the
public, including brochures, circulars, research reports, market letters, form
letters, seminar texts, reprints or excerpts of any other advertisement, sales
literature, or published article), educational or training materials or other
communications distributed or made generally available to some or all agents or
employees, registration statements, prospectuses, statements of additional
information, shareholder reports, and proxy materials and any other material
constituting sales literature or advertising under NASD rules, the 1940 Act or
the 1933 Act.
ARTICLE
V. Fees and
Expenses
5.1. The
Fund and Underwriter shall pay no fee or other compensation to the Company under
this Agreement, except that if the Fund or any Portfolio adopts and implements a
plan pursuant to Rule 12b-1 to finance distribution expenses, then, subject to
obtaining any required exemptive orders or other regulatory approvals, 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. Currently, no such payments are contemplated.
5.2. All
expenses incident to performance by the Fund of this Agreement shall be paid by
the Fund to the extent permitted by law. All Fund shares will be duly
authorized for issuance and registered in accordance with applicable federal law
and to the extent deemed advisable by the Fund, in accordance with applicable
state law, prior to sale. The Fund shall bear the expenses for the
cost of registration and qualification of the Fund’s shares, preparation
and
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filing of
the Fund’s prospectus and registration statement, Fund proxy materials and
reports, setting in type, printing and distributing the prospectuses, the proxy
materials and reports to existing shareholders and contractowners, the
preparation of all statements and notices required by any federal or state law,
all taxes on the issuance or transfer of the Fund’s shares, and any expenses
permitted to be paid or assumed by the Fund pursuant to a plan, if any, under
Rule 12b-1 under the 1940 Act.
ARTICLE
VI. Diversification
6.1. The
Fund will at all times invest money from the Contracts in such a manner as to
ensure that the Contracts will be treated as variable contracts under the
Internal Revenue Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund will comply with Section 817(h) of
the Internal Revenue Code and Treasury Regulation 1.817-5, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such Section or
Regulations in accordance with guidelines provided by the Company prior to the
execution of this Agreement and as necessary thereafter. In the event
of a breach of this Article VI by the Fund, it will take all reasonable steps
(a) to notify the Company of such breach and (b) to adequately diversify the
Fund so as to achieve compliance with the grace period afforded by Treasury
Regulation 1.817-5.
ARTICLE
VII. Potential
Conflicts
7.1. The
Board of Trustees of the Fund (the “Fund Board”) will monitor the Fund for the
existence of any material irreconcilable conflict among the interests of
the
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contractowners
of all separate accounts investing in the Fund. An irreconcilable
material conflict may arise for a variety of reasons, including: (a)
an action by any state insurance regulatory authority; (b) a change in
applicable federal or state insurance, tax, or securities laws or regulations,
or a public ruling, private letter ruling, no-action or interpretative letter,
or any similar action by insurance, tax, or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of any Portfolio are being managed; (e) a
difference in voting instructions given by Participating Insurance Companies or
by variable annuity contract and variable life insurance contractowners; or (f)
a decision by an insurer to disregard the voting instructions of
contractowners. The Board shall promptly inform the Company if it
determines that an irreconcilable material conflict exists and the implications
thereof. A majority of the Fund Board shall consist of persons who
are not “interested” persons of the Fund.
7.2. The
Company has reviewed a copy of the Mixed and Shared Funding Exemptive Order, and
in particular, has reviewed the conditions to the requested relief set forth
therein. As set forth in the Mixed and Shared Funding Exemptive
Order, the Company will report any potential or existing conflicts of which it
is aware to the Fund Board. The Company agrees to assist the Fund
Board in carrying out its responsibilities under the Mixed and Shared Funding
Exemptive Order, by providing the Fund Board with all information reasonably
necessary for the Fund Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform the Fund
Board whenever contractowner voting instructions are disregarded. The
Fund Board shall record in its minutes or other appropriate records, all reports
received by it and all action with regard to a conflict.
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7.3. If
it is determined by a majority of the Fund Board, or a majority of its
disinterested Directors, that an irreconcilable material conflict exits, 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 Directors), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and
including: (1) withdrawing the assets allocable to some or all of the
separate accounts from the Fund or any Portfolio and reinvesting such assets in
a different investment medium, including (but not limited to) another Portfolio
of the Fund, or submitting the question whether such segregation should be
implemented to a vote of all affected contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e. variable annuity
contractowners or variable life insurance contractowners, of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected contractowners the option of making such a change; and
(2) establishing a new registered management investment company or managed
separate account.
7.4. If
the Company’s disregard of voting instructions could conflict with the majority
of contractowner voting instructions, and the Company’s judgment represents a
minority position or would preclude a majority vote, the Company may be
required, at the Fund’s election, to withdraw the Account’s investment in the
Fund and terminate this Agreement with respect to such Account. Any
such withdrawal and termination must take place within 60 days after the Fund
gives written notice to the Company that this provision is being
implemented. Until the end of such 60 days period the Underwriter and
Fund shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
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7.5. If
a particular state insurance regulator’s decision applicable to the Company
conflicts with the majority of other state insurance regulators, then the
Company will withdraw the Account’s investment in the Fund and terminate this
Agreement with respect to such Account. Any such withdrawal and
termination must take place within 60 days after the Fund gives written notice
to the Company that this provision is being implemented. Until the
end of such 60 day period the Underwriter and Fund shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Fund.
In the event the Fund gives such notice
to the Company, the Company may within 10 days thereof notify the Fund that it
has taken action to appeal or challenge such regulator’s decision and that in
the opinion of counsel to the Company there is a reasonable likelihood that the
Company will get the relief sought. Such Company action will toll the
60 day period until the Company notifies the Fund of the final disposition of
its appeal or challenge.
7.6. For
purposes of Sections 7.3 through 7.6 of this Agreement, a majority of the
disinterested members of the Fund Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Fund or OpCap Advisors 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 contractowners materially adversely
affected by the irreconcilable material conflict.
7.7. The
Company shall at least annually submit to the Fund Board such reports, materials
or data as the Fund Board may reasonably request so that the Fund Board may
fully carry out the duties imposed upon it as delineated in the Mixed and Shared
Funding
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Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Fund Board.
7.8. 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 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as defined in
the Mixed and Shared Funding Exemptive Order) on terms and conditions materially
different from those contained in the Mixed and Shared Funding Exemptive Order,
(a) the Fund 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
(a) The
Company agrees to indemnify and hold harmless the Fund, the Underwriter, and
each of the Fund’s or the Underwriter’s directors, officers, employees or agents
and each person, if any, who controls or is associated with the Fund or the
Underwriter within the meaning of such terms under the federal securities laws
(collectively, the “indemnified parties” for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Company) or litigation (including
reasonable legal and other expenses), to which the indemnified parties may
become
20
subject
under any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements:
|
(i)
|
arise
out of or are based upon any untrue statements or alleged untrue
statements of any material fact contained in the registration statement,
prospectus or statement of additional information for the Contracts or
contained in the Contracts or sales literature or other promotional
material for the Contracts (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they were made; 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 information furnished to the Company by or on
behalf of the Fund for use in the registration statement, prospectus or
statement of additional information for the Contracts or in the Contracts
or sales literature or other promotional material for the Contracts (or
any amendment or supplement) or otherwise for use in connection with the
sale of the Contracts or Fund shares;
or
|
|
(ii)
|
arise
out of or as a result of statements or representations by or on behalf to
the Company (other than statements or representations contained in the
Fund registration statement, Fund prospectus, Fund statement of additional
information or sales literature or other promotional material of the Fund
not supplied by the Company or persons under its control) or wrongful
conduct of the Company or persons under its control, with respect to the
sale or distribution of the Contracts or Fund shares;
or
|
|
(iii)
|
arise
out of any untrue statement or alleged untrue statement of a material fact
contained in the Fund registration statement, Fund prospectus, statement
of additional information or sales literature or other promotional
material of the Fund or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made, if such
a statement or omission was made in reliance upon and in conformity with
information furnished to the Fund by or on behalf of the Company or
persons under its control; or
|
21
|
(iv)
|
arise
as a result of any failure by the Company to provide the services and
furnish the materials or to make any payments under the terms of this
Agreement; or
|
|
(v)
|
arise
out of 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 by the Company of this
Agreement;
|
except to
the extent provided in Sections 8.1(b) and 8.5 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
(b) No
party shall be entitled to indemnification if such loss, claim, damage,
liability or litigation is due to the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the party seeking
indemnification.
(c) The
indemnified parties will promptly notify the Company of the commencement of any
litigation or proceedings against them in connection with the issuance or sale
of the Fund shares or the Contracts or the operation of the Fund.
8.2. Indemnification By the
Underwriter
(a) The
Underwriter agrees to indemnify and hold harmless the Company and each of its
directors, officers, employees or agents and each person, if any, who controls
or is associated with the Company within the meaning of such terms under the
federal securities laws (collectively, the “indemnified parties” for purposes of
this Section 8.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Underwriter) or litigation (including reasonable legal and other expenses) to
which the indemnified parties may become subject under any statute, regulation,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements:
22
|
(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 statement of additional information for the Fund or sales literature or
other promotional material of the Fund (or any amendment or supplement to
any of the foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading
in light of the circumstances in which they were made; provided that this
agreement to indemnify shall not apply as to any indemnified party if such
statement or omission or such alleged statement or omission was made in
reliance upon and in conformity with information furnished to the
Underwriter or Fund by or on behalf of the Company for use in the
registration statement, prospectus or statement of additional information
for the Fund or in sales literature or other promotional material of the
Fund (or any amendment or supplement thereto) or otherwise for use in
connection with the sale of the Contracts or Fund shares;
or
|
|
(ii)
|
arise
out of or as a result of statements or representations (other than
statements or representations contained in the Contracts or in the
Contract or Fund registration statement, the Contract or Fund prospectus,
statement of additional information, or sales literature or other
promotional material for the Contracts or of the Fund not supplied by the
Underwriter or person under the control of the Underwriter) or wrongful
conduct of the Underwriter or persons under the control of the
Underwriter, with respect to the sale or distribution of the Contracts of
Fund shares; or
|
|
(iii)
|
arise
out of any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, statement of additional
information or sales literature or other promotional material covering the
Contracts (or any amendment thereof or supplement thereto), or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or statements therein
not misleading in light of the circumstances in which they were made, if
such statement or omission was made in reliance upon and in conformity
with information furnished to the Company by or on behalf of the
Underwriter or persons under the control of the Underwriter;
or
|
|
(iv)
|
arise
as a result of any failure by the Underwriter to provide the services and
furnish the materials under the terms of this Agreement;
or
|
23
|
(v)
|
arise
out of or result from any material breach of any representation and/or
warranty made by the Underwriter in this Agreement or arise out of or
result from any other material breach of this Agreement by the
Underwriter;
|
except to
the extent provided in Sections 8.2(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Underwriter may
otherwise have.
(b) No
party shall be entitled to indemnification if such loss, claim, damage,
liability or litigation is due to the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the party seeking
indemnification.
(c) The
indemnified parties will promptly notify the Underwriter of the commencement of
any litigation or proceedings against them in connection with the issuance or
sale of the Contracts or the operation of the Account.
8.3. Indemnification By the
Fund
(a) The
Fund agrees to indemnify and hold harmless the Company and each of its
directors, officers, employees or agents and each person, if any, who controls
or is associated with the Company within the meaning of such terms under the
federal securities laws (collectively, the “indemnified parties” for purposes of
this Section 8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund) or
litigation (including reasonable legal and other expenses) to which the
indemnified parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements:
|
(i)
|
arise
out of or are based upon any untrue statement or alleged untrue statement
or any material fact contained in the registration statement, prospectus
or statement of additional information for the Fund or sales literature or
other promotional material of the
Fund
|
24
(or any
amendment or supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading in light of the circumstances in which they were made; provided that
this agreement to indemnify shall not apply as to any indemnified party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Fund by or on behalf of
the Company for use in the registration statement, prospectus or statement of
additional information for the Fund or in sales literature or other promotional
material of the Fund (or any amendment or supplement thereto) or otherwise for
use in connection with the sale of the Contracts or Fund shares; or
|
(ii)
|
arise
out of or as a result of statements or representations (other than
statements or representations contained in the Contracts or in the
Contract or Fund registration statement, the Contract or Fund prospectus,
statement of additional information, or sales literature or other
promotional material for the Contracts or of the Fund not supplied by the
Fund or persons under the control of the Fund) or wrongful conduct of the
Fund or persons under the control of the Fund, with respect to the sale or
distribution of the Contracts or Fund shares;
or
|
|
(iii)
|
arise
out of any untrue statement or alleged untrue statement of a material fact
contained in a registration statement, prospectus, statement of additional
information or sales literature or other promotional material covering the
Contracts (or any amendment thereof or supplement thereto), or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or statements therein
not misleading in light of the circumstances in which they were made, if
such statement or omission was made in reliance upon and in conformity
with information furnished to the Company by or on behalf of the Fund or
persons under the control of the Fund;
or
|
|
(iv)
|
arise
as a result of any failure by the Fund 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 and procedures related thereto specified in
Article VI of this Agreement except if such failure is a result of the
Company’s failure to comply with the notification procedures specified in
Article VI); or
|
25
|
(v)
|
arise
out of or result from any material breach of any representation and/or
warranty made by the Fund in this Agreement or arise out of or result from
any other material breach of this Agreement by the
Fund;
|
except to
the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability which the Fund may
otherwise have.
(b) No
party shall be entitled to indemnification if such loss, claim, damage,
liability or litigation is due to the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the party seeking
indemnification.
(c) The
indemnified parties will promptly notify the Fund of the commencement of any
litigation or proceedings against them in connection with the issuance or sale
of the Contracts or the operation of the Account.
8.4. Indemnification
Procedure
Any person obligated to provide
indemnification under this Article VIII (“indemnifying party” for the purpose of
this Section 8.4) shall not be liable under the indemnification provisions of
this Article VIII with respect to any claim made against a party entitled to
indemnification under this Article VIII (“indemnified party” for the purpose of
this Section 8.4) unless such indemnified party shall have notified the
indemnifying party in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim shall
have been served upon such indemnified party (or after such party shall have
received notice of such service on any designated agent), but failure to notify
the indemnifying party of any such claim shall not relieve the indemnifying
party from any liability which it may have to the indemnified party against whom
such action is brought under the indemnification provision of this Article VIII,
except to the extent that the failure to notify
26
results
in the failure of actual notice to the indemnifying party and such indemnifying
party is damaged solely as a result of failure to give such
notice. In case any such action is brought against the indemnified
party, the indemnifying party will be entitled to participate, at its own
expense, in the defense thereof. The indemnifying party also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the indemnifying party to the
indemnified party of the indemnifying party’s election to assume the defense
thereof, the indemnified party shall bear the fees and expenses of any
additional counsel retained by it, and the indemnifying party will not be liable
to such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation, unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and misrepresentation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The
indemnifying party shall not be liable for any settlement of any proceeding
affected without its written consent but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment.
A successor by law of the parties to
this Agreement shall be entitled to the benefits of the indemnification
contained in this Article VIII. The indemnification provisions
contained in this Article VIII shall survive any termination of this
Agreement.
27
8.5. Contribution
In order to provide for just and
equitable contribution in circumstances in which the indemnification provided
for in this Article VIII is due in accordance with its terms but for any reason
is held to be enforceable with respect to a party entitled to indemnification
(“indemnified party” for purposes of this Article VIII, Section 8.5) pursuant to
the terms of this Article VIII, then each party obligated to indemnify pursuant
to the terms of this Article VIII shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages,
liabilities and litigations in such proportion as is appropriate to reflect the
relative benefits received by the parties to this Agreement in connection with
the offering of Fund shares to the Account and the acquisition, holding or sale
of Fund shares by the Account, or if such allocation is not permitted by
applicable law, in such proportions as is appropriate to reflect the relative
net benefits referred to above but also the relative fault of the parties to
this Agreement in connection with any actions that lead to such losses, claims,
damages, liabilities or litigations, as well as any other relevant equitable
considerations.
Any person obligated in contribution
under this Article VIII (“contributing party” for purpose of this Section 8.5)
will not be liable under the contribution provisions of this Article VIII with
respect to any claim made against a party entitled to such contribution is
sought, and that party will have the same rights, obligations and protection as
if that party was an indemnifying party under Section 8.4, hereof.
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.
28
9.2. This
Agreement shall be subject to the provisions of the 1933, 1934, and 1940 Acts,
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 Mixed and Shared Funding Exemptive Order) and the terms
hereof shall be interpreted and construed in accordance therewith.
ARTICLE
X. Termination
10.1. This
Agreement shall terminate:
(a) at
the option of any party upon one-year advance written notice to the other
parties unless otherwise agreed in a separate written agreement among the
parties; or
(b) at
the option of the Company if shares of the Portfolios delineated in Schedule 2
are not reasonably available to meet the requirements of the Contracts as
determined by the Company; or
(c) at
the option of the Fund upon institution of formal proceedings against the
Company by the NASD, the SEC, the insurance commission of any state or any other
regulatory body regarding the Company’s duties under this Agreement or related
to the sale of the Contracts, the administration of the Contracts, the operation
of the Account, or the purchase of the Fund shares, which would have a material
adverse effect on the Company’s ability to perform its obligations under this
Agreement; or
(d) at
the option of the Company upon institution of formal proceedings against the
Fund or the Underwriter by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body, which would have a material
adverse effect on the Fund’s or the Underwriter’s ability to perform its
obligations under this Agreement; or
29
(e) at
the option of the Company or the Fund upon receipt of any necessary regulatory
approvals and/or the vote of the contractowners having an interest in the
Account (or any subaccount) to substitute the shares of another investment
company for the corresponding Portfolio shares of the Fund in accordance with
the terms of the Contracts for which those Portfolio shares had been selected to
serve as the underlying investment media. The Company will give 30
days prior written notice to the Fund of the date of any proposed vote or other
action taken to replace the Fund’s shares; or
(f) at
the option of the Company or the Fund upon a determination by a majority of the
Fund Board, or a majority of the disinterested Fund Board members, that an
irreconcilable material conflict exists among the interests of (i) all
contractowners of variable insurance products of all separate accounts or (ii)
the interests of the Participating Insurance Companies investing in the Fund as
delineated in Article VII of this Agreement; or
(g) at
the option of the Company if the Fund ceases to qualify as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, or under any
successor similar provision, or if the Company reasonably believes that the Fund
may fail to so qualify; or
(h) at
the option of the Company if the Fund is unable to adjust its investments to
comply with the state insurance laws or regulations which are applicable to the
Fund.
(i) at
the option of the Company if the Fund fails to meet the diversification
requirements specified in Article VI hereof; or
(j) at
the option of any party to this Agreement, upon another party’s material breach
of any provision of this Agreement; or
30
(k) at the
option of the Company, if the Company determines in its sole judgment exercised
in good faith, that either the Fund or the Underwriter has suffered a material
adverse change in its business, operations or financial condition since the date
of this Agreement or is the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations of the
Company; or
(l) at
the option of the Fund or the Underwriter, if the Fund or Underwriter
respectively, shall determine in its sole judgment exercised in good faith, that
the Company has suffered a material adverse change in its business, operations
or financial condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Fund or Underwriter; or
(m) at
the option of the Fund in the event any of the Contracts are not issued or sold
in accordance with applicable federal and/or state law. Termination
shall be effective immediately upon such occurrence without notice.
10.2. Notice
Requirement
(a) In
the event that any termination of this Agreement is based upon the provisions of
Article VII, such prior written notice shall be given in advance of the
effective date of termination as required by such provisions.
(b) In
the event that any termination of this Agreement is based upon the provisions of
Sections 10.1(b) – (d) or 10.1(g) – (j), prompt written notice of the election
to terminate this Agreement for cause shall be furnished by the party
terminating the Agreement to the non-terminating parties, with said termination
to be effective upon receipt of such notice by the non-terminating
parties.
31
(c) In
the event that any termination of this Agreement is based upon the provisions of
Sections 10.1(k) or 10.1(l), prior written notice of the election to terminate
this Agreement for cause shall be furnished by the party terminating this
Agreement to the non-terminating parties. Such prior written notice
shall be given by the party terminating this Agreement to the non-terminating
parties at least 30 days before the effective date of termination.
10.3. It
is understood and agreed that the right to terminate this Agreement pursuant to
Section 10.1(a) may be exercised for any reason or for no reason.
10.4. Effect of
Termination
(a) Notwithstanding
any termination of this Agreement pursuant to Section 10.1 of this Agreement,
and subject to Section 1.3 of this Agreement, the Company may require the Fund
and the Underwriter to continue to make available additional shares of the Fund
for so long after the termination of this Agreement as the Company desires
pursuant to the terms and conditions of this Agreement as provided in paragraph
(b) below 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 reallocate investments in the Fund,
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts. The
parties agree that this Section 10.4 shall not apply to any terminations under
Article VII and the effect of such Article VII terminations shall be governed by
Article VII of this Agreement.
(b) If
shares of the Fund continue to be made available after termination of this
Agreement pursuant to this Section 10.4, the provisions of this Agreement shall
remain in effect except for Section 10.1(a) and thereafter the Fund, the
Underwriter, or the Company may
32
terminate
the Agreement, as so continued pursuant to this Section 10.4, upon written
notice to the other party, such notice to be for a period that is reasonable
under the circumstances but, if given by the Fund or Underwriter, need not be
for more than 90 days.
10.5. Except
as necessary to implement contractowner initiated or approved transactions, or
as required by state insurance laws or regulations, the Company shall not redeem
Fund shares attributable to the Contracts (as opposed to Fund shares
attributable to the Company’s assets held in the Account), and the Company shall
not prevent contractowners from allocating payments to a Portfolio that was
otherwise available under the Contracts, until 90 days after the Company shall
have notified the Fund or Underwriter of its intention to do so.
ARTICLE
XI. Notices
Any notice shall be deemed duly given
only if sent by hand, evidenced by written receipt or by certified mail, return
receipt requested, to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify in
writing to the other party. All notices shall be deemed given three
business days after the date received or rejected by the addressee.
If to the Fund:
Xx.
Xxxxxxx X. Xxxxx
President
OpCap
Advisors
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
If to the
Company:
Xx. Xxxx
Xxxxxxxxxx
Counsel
Provident
Mutual Life Insurance Company
0000
Xxxxxx Xxxxxx
00
Xxxxxxxxxxxx,
XX 00000
If to the
Underwriter:
Xx.
Xxxxxx X. Xxxxxx
Secretary
OCC
Distributors
000
Xxxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
ARTICLE
XII. Miscellaneous
12.1. All
persons dealing with the Fund must look solely to the property of the Fund for
the enforcement of any claims against the Fund as neither the Directors,
officers, agents or shareholders assume any personal liability for obligations
entered into on behalf of the Fund.
12.2. Subject
to law and regulatory authority, each party hereto shall treat as confidential
all information reasonably identified as such in writing by any other party
hereto (including without limitation the names and addresses of the owners of
the Contracts) and, except as contemplated by this Agreement, shall not
disclose, disseminate or utilize such confidential information until such time
as it may come into the public domain with the express prior written consent of
the affected party.
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.
34
12.6. This
Agreement shall not be assigned by any party hereto without the prior written
consent of all the parties.
12.7. 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 each other and 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.
12.8. Each
party represents that the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate or trust action, as applicable, by such party and
when so executed and delivered this Agreement will be the valid and binding
obligation of such party enforceable in accordance with its terms.
12.9. The
parties to this Agreement may amend the schedules to this Agreement from time to
time to reflect changes in or relating to the Contracts, the Accounts or the
Portfolios of the Fund.
35
IN WITNESS WHEREOF, each of the parties
hereto has caused this Agreement to be executed in its name and behalf by its
duly authorized representative as of the date and year first written
above.
Company:
PROVIDENTMUTUAL
LIFE AND ANNUITY
COMPANY
OF AMERICA
SEAL By:
PROVIDENT MUTUAL LIFE
INSURANCE
COMPANY
SEAL By:
Fund:
OCC
ACCUMULATION TRUST
SEAL By:
Underwriter:
OCC
DISTRIBUTORS
SEAL By:
36
Schedule
1
Among
OCC
Accumulation Trust,
Providentmutual
Life and Annuity Company of America,
Provident
Mutual Life Insurance Company
and
OCC
Distributors
The following separate accounts of
Providentmutual Life and Annuity Company of America and Provident Mutual Life
Insurance Company, respectively, are permitted in accordance with the provisions
of this Agreement to invest in Portfolios of the Fund shown in Schedule
2:
|
(i)
|
Providentmutual
Life And Annuity Company of
America:
|
- Providentmutual Variable Annuity
Separate Account
(ii) Provident
Mutual Life Insurance Company:
- Provident Mutual Variable Annuity
Separate Account
September
16, 1994
37
Schedule
2
Among
OCC
Accumulation Trust,
Providentmutual
Life and Annuity Company of America,
Provident
Mutual Life Insurance Company
and
OCC
Distributors
The Separate Account(s) shown on
Schedule 1 may invest in the following Portfolios of OCC Accumulation
Trust:
Equity Portfolio
Managed Portfolio
Small Cap Portfolio
September
16, 1994
EL/tc2p/0131/Not
Given
38