EXHIBIT 26(h)(22)(iv)
PROJECT DOCUMENT ID: (4)
TERMINATION, NEW AGREEMENTS AND AMENDMENTS
RELATING TO INTERMEDIARY AGREEMENTS FOR PIMCO VARIABLE INSURANCE TRUST
THIS TERMINATION, AGREEMENT AND AMENDMENT made this 15th day of March, 2011
(the "Effective Date"), by and among Allianz Global Investors Distributors LLC
("AGID"), PIMCO Investments LLC ("PI") and Minnesota Life Insurance Company
(the "Intermediary").
WHEREAS, XXXX has served as the principal underwriter for PIMCO Variable
Insurance Trust (the "Fund") and its several series of shares (each a
"Portfolio") pursuant to a Distribution Contract with the Fund;
WHEREAS, AGID, the Fund and the Intermediary have entered into a
Participation Agreement, as amended (or amended and restated) through the date
hereof (the "Participation Agreement"), pursuant to which AGID has made
available for purchase by the Insurance Company, on behalf of segregated asset
accounts of the Insurance Company, shares of the Portfolios and performed
various other functions;
WHEREAS, AGID and the Intermediary have separately entered into one or more
Selling Agreements or similar agreements (each an "AGID Intermediary
Agreement") relating to the Participation Agreement, pursuant to which the
Intermediary has provided distribution, shareholder servicing, processing of
transactions, administrative, recordkeeping and/or other services for some or
all of the Portfolios and one or more of their classes of shares (each a
"Class");
WHEREAS, as of February 14, 2011, XX replaced XXXX as the principal
underwriter for the Fund by entering into a distribution agreement with the
Fund that took effect immediately following the termination of the existing
Distribution Contract between AGID and the Fund; and
WHEREAS, AGID, PI and the Intermediary wish to enter into this Termination,
Agreement and Amendment for the purposes of (i) terminating each AGID
Intermediary Agreement and simultaneously establishing and entering into new
agreements (each a "PI Intermediary Agreement") between PI and Intermediary,
each upon the same terms and conditions (except as provided herein) specified
in the corresponding AGID Intermediary Agreement, except that PI will be party
to each such Agreement in place of AGID, and (ii) making certain amendments to
the PI Intermediary Agreements to include additional provisions not included in
the current AGID Intermediary Agreements.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, AGID, PI and the Intermediary hereby
agree as follows:
I. TERMINATION OF AGID INTERMEDIARY AGREEMENTS
A. Each AGID Intermediary Agreement is hereby terminated with effect as of
the Effective Date. By their signatures below, AGID and Intermediary
hereby waive their respective rights to any advance notice, delivery or
other requirements for termination that are called for under each AGID
Intermediary Agreement (to the extent not accomplished by the execution
and delivery of this instrument).
B. Notwithstanding the termination described in Section I.A., AGID and
Intermediary shall continue to be responsible under each AGID
Intermediary Agreement for making or causing to be made any payments or
reimbursements of fees, charges and expenses (including, without
limitation, distribution and/or servicing fees and sub-transfer agency
and other sub-administration fees) to the other party or to a third-party
with respect to the Portfolios and Class(es) of shares covered by such
AGID Intermediary Agreement where such fees, charges or expenses accrued
and are payable with respect to periods ending prior to the Effective
Date, provided, however, that if the Effective Date is after the
Effective Date of Change of Fund Distributor, Intermediary agrees that
any such payments owed by XXXX may be made instead by PI in satisfaction
of AGID's obligations under an AGID Intermediary Agreement. It is
understood and agreed that any liability, indemnification or related
obligations of AGID or Intermediary for breach of contract or otherwise
arising under an AGID Intermediary Agreement with respect to alleged
actions or omissions that occurred prior to the Effective Date shall
survive the termination of the AGID Intermediary Agreement and continue
to be the responsibility of AGID or the Intermediary, as
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PROJECT DOCUMENT ID: (4)
applicable. It is further understood and agreed that any liability,
indemnification or related obligations of PI or Intermediary for breach
of contract or otherwise arising under a PI Intermediary Agreement with
respect to alleged actions or omissions that occur on or after the
Effective Date shall be the sole responsibility of PI or the
Intermediary, as applicable, and not AGID.
II. ENTRY INTO PI INTERMEDIARY AGREEMENTS
A. With respect to each AGID Intermediary Agreement (for these purposes,
each a "Corresponding AGID Agreement"), each of PI and Intermediary by
their signatures below hereby enter into a separate PI Intermediary
Agreement, the terms and conditions of which shall be the terms and
conditions of the Corresponding AGID Agreement to the extent specified
in and subject to the remainder of this Section II. and as otherwise
provided herein. For these purposes, with respect to each PI
Intermediary Agreement established hereunder, its Corresponding AGID
Agreement is hereby incorporated by reference into and made a part of
this Termination, Agreement and Amendment. Each such PI Intermediary
Agreement shall be effective as of the Effective Date.
B. With respect to each such PI Intermediary Agreement:
1. Except as specifically provided herein or the context clearly
indicates otherwise, each of PI and Intermediary hereby agrees to,
and agrees to be bound by, all terms and conditions specified in the
Corresponding AGID Agreement assuming PI is substituted for AGID as a
party thereto, as such terms and conditions are used and applied in
the PI Intermediary Agreement, such that PI shall under the PI
Intermediary Agreement, on and after the Effective Date, be and have
and/or be entitled to the responsibilities, duties, obligations,
rights and benefits of the "Distributor," "Underwriter," "we," "us"
or other defined term used to define and refer to AGID under the
Corresponding AGID Agreement; and Intermediary shall under the PI
Intermediary Agreement, on and after the Effective Date, have and/or
be entitled to the responsibilities, duties, obligations, rights and
benefits it has under the Corresponding AGID Agreement but with PI as
the counterparty (in place of AGID) under the PI Intermediary
Agreement.
2. Without limiting the generality of the foregoing, under the PI
Intermediary Agreement, each of PI and Intermediary hereby:
a. makes and agrees to all of the representations, warranties,
covenants and undertakings made or agreed to by AGID or
Intermediary, as applicable, under the Corresponding AGID
Agreement (assuming PI is a party thereto in place of AGID) and
represents and warrants that the same are or will be true and
binding as of the Effective Date and will continue in full force
and effect thereafter until further notice from one party to the
other, as applicable;
b. agrees to be responsible for and make or cause to be made, on and
after the Effective Date, all payments and reimbursements of fees,
charges and expenses (including, without limitation, distribution
and/or servicing fees and sub-transfer agency and other
sub-administration fees) with respect to the Portfolios and
Class(es) of shares covered by the PI Intermediary Agreement to
the other party or to a third-party where such fees, charges or
expenses accrue and become payable on and after the Effective
Date; and
c. agrees to observe and be bound in all respects by the standard of
care, liability, breach, indemnification, governing law, and
related provisions applicable to AGID or Intermediary, as
applicable, under the Corresponding AGID Agreement (assuming PI is
a party thereto in place of AGID) but not, by way of
clarification, with respect to alleged actions or omissions of
AGID or Intermediary that occurred under the Corresponding AGID
Agreement (which shall continue to be governed by the
Corresponding AGID Agreement and apply to AGID or the
Intermediary, as applicable).
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PROJECT DOCUMENT ID: (4)
C. Any notice to be provided to PI under the PI Intermediary Agreement
shall be provided to the address as shown below, and the applicable
notice provisions of the Corresponding AGID Agreement as incorporated
into the PI Intermediary Agreement are hereby revised accordingly:
PIMCO Investments LLC
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Legal Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
E-mail: XxxxxxxxxxxxXxxXxxxxxXxxx@xxxxx.xxx
X. XX and Intermediary understand and agree that each PI Intermediary
Agreement established hereby, although so established pursuant to this
single instrument, shall be treated for all purposes as a separate
agreement from all other PI Intermediary Agreements, and the rights
and responsibilities of each party under a PI Intermediary Agreement
shall be several and not combined with or dependent or conditioned
upon the rights and responsibilities of the parties under any other PI
Intermediary Agreement.
III. OTHER
A. This Termination, Agreement and Amendment may not be assigned or
amended by any party without the consent of the other parties. For the
avoidance of doubt, the particular assignment, amendment, termination
and related terms and conditions of each AGID Intermediary Agreement,
and each new PI Intermediary Agreement established pursuant to this
Termination, Agreement and Amendment, shall govern any future
assignment, amendment or termination of each such Agreement.
B. Any notice to be provided to Intermediary under a PI Intermediary
Agreement, an AGID Intermediary Agreement or any other agreement
entered into between Intermediary and AGID or its affiliates shall be
provided to the address identified on the signature page to this
Agreement, and the applicable notice provisions of these agreements
are hereby revised accordingly.
C. If and to the extent that this Termination, Agreement and Amendment is
deemed to constitute an assignment, novation or termination of an AGID
Intermediary Agreement, the parties by their signatures below hereby
consent, as applicable, to any such assignment, novation or
termination, waive their respective rights to any advance notice or
other requirements for the same that are called for under the AGID
Intermediary Agreement (to the extent not accomplished by the
execution and delivery of this Termination, Amendment and Agreement),
and agree that each PI Intermediary Agreement, upon its effectiveness
as specified herein, is a newly effective and binding agreement among
the parties thereto.
D. Without limiting the scope of any privacy-related or similar agreement
or term in an existing AGID Intermediary Agreement, each party to each
PI Intermediary Agreement established hereby agrees to comply with all
applicable laws and regulations related to the collection, storage,
handling, processing and transfer of non-public personal information
("Applicable Laws"), including without limitation the Massachusetts
Standards for the Protection of Personal Information, 201 CMR 17.00,
et. seq., and to implement and maintain appropriate security measures
to protect the confidentiality, security and integrity of non-public
personal information in the manner provided for under and to the
extent required by all such Applicable Laws (as applicable to PI on
and after the Effective Date).
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PROJECT DOCUMENT ID: (4)
IV. COUNTERPARTS
This Termination, Agreement and Amendment may be executed in any number of
counterparts, each of which shall be deemed to be an original.
IN WITNESS WHEREOF, the undersigned has caused this Termination, Agreement
and Amendment to be executed as of March 15, 2011.
ALLIANZ GLOBAL INVESTORS
DISTRIBUTORS LLC
/s/ Xxxxxx Xxxxxx
--------------------------------------
By: Xxxxxx Xxxxxx
Title: Managing Director
PIMCO INVESTMENTS LLC
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
By: Xxxxxxx X. Xxxxxx
Title: Head of Business Management
MINNESOTA LIFE
INSURANCE COMPANY
/s/ Xxxxx X. Xxxx
----------------------------------
By: Xxxxx X. Xxxx
Title: Executive Vice President
Address and Related Information for Notices to Intermediary:
[To be completed by Intermediary]
Address: 000 Xxxxxx Xxxxxx Xxxxx
Xx. Xxxx, XX 00000-2098
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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