TERMINATION, NEW AGREEMENTS AND AMENDMENTS
RELATING TO SELLING AGREEMENTS FOR PIMCO VARIABLE INSURANCE TRUST
THIS TERMINATION, AGREEMENT AND AMENDMENT made this 16th day of November,
2010, and effective as of the Effective Date (as defined below), by and among
Allianz Global Investors Distributors LLC ("AGID"), PIMCO Investments LLC
("PI"), CUNA Brokerage Services, Inc. (the "Intermediary"), and CUNA Mutual
Insurance Society (the "Insurance Company").
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 Insurance Company 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 Insurance Company have separately entered into one or
more Selling Agreements or similar agreements (each an "AGID Selling Agreement")
relating to the Participation Agreement, pursuant to which the Insurance Company
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 the date of this Termination, Agreement and Amendment first
written above, PI either will in the future replace or has already replaced AGID
as the principal underwriter for the Fund by entering into a distribution
agreement with the Fund that will take effect (or previously took effect)
immediately following the termination of the existing Distribution Contract
between AGID and the Fund (the "Effective Date of Change of Fund Distributor" as
used herein shall mean the date as of which such distribution agreement between
PI and the Fund takes or took effect, and "Effective Date" as used herein shall
mean the date that is the later of (i) the date of this Termination, Agreement
and Amendment first written above and (ii) the Effective Date of Change of Fund
Distributor);
WHEREAS, as of the Effective Date, the Intermediary (in place of the
Insurance Company) will provide 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;
WHEREAS, AGID, PI, the Insurance Company and the Intermediary wish to enter
into this Termination, Agreement and Amendment for the purposes of (i)
terminating each AGID Selling Agreement and simultaneously establishing and
entering into new agreements (each a "PI Selling Agreement") between PI and
Intermediary, each upon the same terms and conditions (except as provided
herein) specified in the corresponding AGID Selling Agreement, except that PI
will be party to each such Agreement in place of AGID and the Intermediary will
be party to each such Agreement in place of the Insurance Company, and (ii)
making certain amendments to the PI Selling Agreements to include additional
provisions not included in the current AGID Selling Agreements.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, AGID, PI, the Insurance Company and
the Intermediary hereby agree as follows:
I. TERMINATION OF AGID SELLING AGREEMENTS
A. Each AGID Selling Agreement is hereby terminated with effect as of the
Effective Date. By their signatures below, AGID and the Insurance
Company hereby waive their respective rights to any advance notice,
delivery or other requirements for termination that are called for
under each AGID Selling 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
the Insurance Company shall continue to be responsible under each AGID
Selling Agreement for making or causing to be made any
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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 Selling 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, the Insurance Company agrees that any such payments owed
by XXXX may be made instead by PI in satisfaction of AGID's
obligations under an AGID Selling Agreement. It is understood and
agreed that any liability, indemnification or related obligations of
AGID or the Insurance Company for breach of contract or otherwise
arising under an AGID Selling Agreement with respect to alleged
actions or omissions that occurred prior to the Effective Date shall
survive the termination of the AGID Selling Agreement and continue to
be the responsibility of AGID or the Insurance Company, as applicable.
It is further understood and agreed that any liability,
indemnification or related obligations of PI or the Intermediary for
breach of contract or otherwise arising under a PI Selling 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 or the Insurance Company, as
applicable.
II. ENTRY INTO PI SELLING AGREEMENTS
A. With respect to each AGID Selling Agreement (for these purposes, each
a "Corresponding AGID Agreement"), each of PI and Intermediary by
their signatures below hereby enter into a separate PI Selling
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 Selling
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 Selling Agreement
shall be effective as of the Effective Date.
B. With respect to each such PI Selling 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 and the Intermediary is substituted for the Insurance Company
as a party thereto, as such terms and conditions are used and
applied in the PI Selling Agreement, such that PI shall under the
PI Selling 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 but with the Intermediary as the
counterparty (in place of the Insurance Company) under the PI
Selling Agreement; and Intermediary shall under the PI Selling
Agreement, on and after the Effective Date, have and/or be
entitled to the responsibilities, duties, obligations, rights and
benefits the Insurance Company has under the Corresponding AGID
Agreement but with PI as the counterparty (in place of AGID) under
the PI Selling Agreement.
2. Without limiting the generality of the foregoing, under the PI
Selling 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 the
Insurance Company, as applicable, under the Corresponding
AGID Agreement (assuming PI is a party thereto in place of
AGID and the Intermediary is a party thereto in place of the
insurance Company) 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;
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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 Selling
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
the Insurance Company, as applicable, under the Corresponding
AGID Agreement (assuming PI is a party thereto in place of
AGID and the Intermediary is a party thereto in place of the
Insurance Company) but not, by way of clarification, with
respect to alleged actions or omissions of AGID or the
Insurance Company that occurred under the Corresponding AGID
Agreement (which shall continue to be governed by the
Corresponding AGID Agreement and apply to AGID or the
Insurance Company, as applicable).
C. Any notice to be provided to PI under the PI Selling 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 Selling 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 Selling
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 Selling Agreements, and the rights and
responsibilities of each party under a PI Selling Agreement shall be
several and not combined with or dependent or conditioned upon the
rights and responsibilities of the parties under any other PI Selling
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 Selling Agreement, and
each new PI Selling 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 the PI Selling
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
Selling 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
Selling Agreement (to the extent not accomplished by the execution and
delivery of this Amendment and
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Agreement), and agree that each PI Selling 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 Selling Agreement, each party to each PI
Selling 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 and
the Intermediary on and after the Effective Date).
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 November 16, 2010.
ALLIANZ GLOBAL INVESTORS PIMCO INVESTMENTS LLC
DISTRIBUTORS LLC
/s/ Xxxxxx Xxxxxx /s/ Xxxxxxx X. Xxxxxx
----------------------------- ---------------------------------
By: Xxxxxx Xxxxxx By: Xxxxxxx X. Xxxxxx
Title: Managing Director Title: Head of Business Management
CUNA MUTUAL CUNA BROKERAGE
INSURANCE SOCIETY SERVICES, INC.
/s/ Xxxxx X. Xxxx /s/ Xxxxx X. Xxxx
----------------------------- ---------------------------------
By: Xxxxx X. Xxxx By: Xxxxx X. Xxxx
Title: Senior Vice President Title: President
Address and Related Information for Notices to CUNA Brokerage Services, Inc.:
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Address: 0000 Xxxxxxx Xxxxx Xxxx, Xxxxxxx, XX 00000
Attention: Legal Department
Telephone: 000.000.0000
Facsimile: 608.236.7533
E-mail: xxxxx.xxxxxx@xxxxxxxxxx.xxx
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