SHARED FUNDING AGREEMENT FOR SEPARATE ACCOUNTS
1.0 SHARED FUNDING AGREEMENT
1.1 This Agreement, dated as of February 28, 2001, between Mutual of
America Life Insurance Company, a New York mutual life insurance
corporation with principal offices at 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000
("Mutual"), and Xxxxxxx Distributors, Inc., with principal offices at
0000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxx 00000 ("Xxxxxxx"), which
serves as principal underwriter to Xxxxxxx Variable Series, Inc., a
registered investment company (the "Fund").
1.2 Mutual has requested that the Shared Funding Agreement for Separate
Account No. 2, dated November 7, 1990, between Mutual and Xxxxxxx, as
subsequently amended to include Mutual's indirect, wholly owned
subsidiary, The American Life Insurance Company of New York ("American
Life") as a party, be amended and restated as of the date of sale of
American Life by Mutual.
1.3 In consideration of the promises, representations, warranties,
covenants, agreements and conditions contained herein, and in order to
set forth the terms and conditions of the transactions contemplated
hereby and the mode of carrying the same into effect, and intending to be
legally bound, Mutual and Xxxxxxx agree to the provisions set forth
below.
2.0 THE VARIABLE CONTRACTS AND THE SEPARATE ACCOUNTS
2.1 Mutual shall maintain variable annuity contracts and variable life
insurance policies (such contracts and policies, the "Contracts")
designed to provide, under current law, the benefits of a tax-deferred
accumulation of income for retirement and other purposes and/or life
insurance protection.
2.2 Purchase payments for Contracts may be allocated to Mutual's Separate
Accounts Xx. 0, Xx. 0 and No. 3, and to such additional Mutual separate
accounts specified by Mutual from time to time by written notice to
Xxxxxxx (the "Separate Accounts"), each a "separate account" established
under New York Insurance Law and each Separate Account registered with
the Securities and Exchange Commission (the "SEC") as a unit investment
trust under the Investment Company Act of 1940 ("1940 Act") when required
by federal securities laws, which Separate Accounts invest in shares of
open-end management investment companies.
2.3 One of the open-end management companies is the Fund, an open-end
management investment company with separate portfolios, registered under
the 1940 Act. Each portfolio is a separate investment portfolio with
distinct investment objectives.
2.4 Mutual will offer one of the portfolios of the Fund, specifically the
Xxxxxxx Social Balanced Portfolio (the "Portfolio"), through the Separate
Accounts to its policy and contract owners and, where applicable, their
participants (together, "Contract Owners").
2.5 Mutual will use the name "Xxxxxxx Social Balanced Fund" with respect
to the Separate Accounts, the name "Xxxxxxx Variable Series, Inc." with
respect to the Fund and the names "Xxxxxxx" or "Xxxxxxx Social Balanced
Portfolio" where appropriate in its marketing and sales literature when
referring to investments in the Portfolio.
2.5.1 Mutual will use its best efforts to market and promote its
Contracts.
2.5.2 In marketing its Contracts, Mutual will comply with all applicable
state and federal laws. Mutual and its agents shall make no
representations or warranties concerning the Fund or Portfolio
shares except those contained in the then current prospectuses of
the Fund and in the Fund's current printed sales literature.
Copies of all advertising and sales literature describing or
concerning the Fund which is prepared by Mutual or its agents for
use in marketing its Contracts will be sent to Xxxxxxx for
approval prior to use. Xxxxxxx will give its approval or comments
as soon as is reasonably practical, but in no event later than 7
business days after receipt. Mutual shall be responsible for
compliance with any state or federal filing or review requirements
concerning advertising and sales literature.
2.5.3 Mutual and its agents will not oppose voting recommendations from
Xxxxxxx or the Fund's Board of Directors or interfere with the
solicitation of proxies for the Fund shares held by Mutual for
Contract Owners, unless Mutual deems such recommendations
detrimental to it or to its Contract Owners. Xxxxxxx agrees to
prepare and print any proxy statements required for the Fund's
shareholder meetings, and to provide sufficient number of copies
of such proxy statements to Mutual. Mutual agrees to timely
distribute such proxy statements to its Contract Owners. Mutual
agrees to provide pass-through voting privileges to all Contract
Owners and to assure that its Separate Accounts participating in
the Fund calculate voting privileges in a manner consistent with
all other separate accounts of any insurance company investing in
the Fund, as required by the exemptive order referenced in Section
3.2.3 of this Agreement.
2.5.4 Mutual will be responsible for reporting to the Fund's Board of
Directors any potential or existing conflicts among the interests
of the Contract Owners of all its Separate Accounts investing in
the Fund, and to assist the Board by providing it with all
information reasonably necessary for the Board to consider any
issues raised. Mutual will be responsible for taking remedial
action as may be necessary with respect to its Separate Accounts
in the event of a Board determination of an irreconcilable
material conflict and to bear the cost of such remedial action.
Other relevant insurance companies will be responsible for taking
similar remedial action with respect to their respective separate
accounts and will bear the costs of such actions.
2.6 Mutual will bear the costs of, and have the primary responsibility
for:
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2.6.1 Registering the Contracts and the Separate Accounts with the
Commision when required;
2.6.2 Developing all policy forms, application forms, confirmations and
other administrative forms or documents and filing such of these
as are necessary to comply with the requirements of all insurance
laws and regulations in each state in which the Contracts are
offered;
2.6.3 Administration of the Contracts and the Separate Accounts,
including all Contract Owner service and communication activities;
2.6.4 Preparing and approving all marketing and sales literature
involving the sale of the Contracts under which allocations may be
made to Separate Account funds that invest in shares of the
Portfolio;
2.6.5 Printing (from camera ready copy provided to Mutual by Xxxxxxx)
and distributing to Contract Owners copies of the current
prospectuses, statements of additional information (as requested
by Contract Owners) and periodic reports for the Separate Accounts
and the Fund. Mutual is hereby authorized to reproduce in any
manner whatsoever, at a cost borne by Mutual, the Portfolio
prospectus, statement of additional information, and annual and
semi-annual reports;
2.6.6 Preparing and filing any reports or other filings as may be
required under state insurance laws or regulations with respect to
the Contracts or Separate Accounts;
2.6.7 Providing Xxxxxxx with any and all amendments to the registration
statement of the Separate Accounts as they are filed with the SEC,
and when such registration statement references the Portfolio, the
Fund or Xxxxxxx, providing Xxxxxxx an opportunity to comment on
same prior to the effective date.
3.0 THE PORTFOLIO
3.1 The Fund and Xxxxxxx shall make available shares of the Portfolio
as an underlying investment medium for the Contracts.
3.2 The Fund shall bear the costs of, and shall have, or shall cause
the Fund and the Portfolio to assume, the primary responsibility
for:
3.2.1 Registering the Fund with the SEC, including a separate
prospectus for the Portfolio that does not reference the
other portfolios of the Fund. The costs of printing and
distributing such prospectus to Contract Owners shall be
borne by Mutual as provided in Section 2.6.5 above;
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3.2.2 Preparing, producing and maintaining the effectiveness of
such registration statements for the Fund as are required
under federal and state securities law, and clearing such
registration statements through the SEC and pursuant to the
securities laws and regulations in each state in which the
contracts are offered;
3.2.3 Maintaining and complying with the terms of an order for
exemptive relief pursuant to which the SEC granted
appropriate exemptive relief from the relevant provisions
of the 1940 Act to permit Mutual and other insurance
companies to utilize the Fund as an underlying investment
medium for their variable annuity and variable life
insurance contracts;
3.2.4 Operating and maintaining the Fund in accordance with
applicable law, including the diversification standards of
the Internal Revenue Code of 1986 applicable to variable
annuity contracts;
3.2.5 Preparing and filing any reports or other filings as may be
required with respect to the Fund under federal or state
securities laws;
3.2.6 Using its best efforts to provide Mutual with the daily net
asset values of the Portfolio by 5:00 p.m. Eastern Time on
each day the New York Stock Exchange is open (or within one
hour after closing on each day the New York Stock Exchange
closes early);
3.2.7 Providing Mutual with camera-ready copy necessary for the
printing of the periodic shareholder reports and the
prospectus for the Portfolio;
3.2.8 Providing Mutual with monthly performance data by the 6th
business day after the close of a month and with such
information and data related to the portfolio
characteristics, holdings, and performance of the
Portfolio, as may reasonably be requested from time to
time;
3.2.9 Informing Mutual in writing whenever the Portfolio declares
an income dividend or a capital gain distribution,
specifying the amount per unit, the declaration date, the
ex-dividend date, and the payment date.
3.2.10 Providing Mutual with drafts of financial statements
(semi-annual and annual) no later than 4 weeks after the
close of June 30 and December 31, respectively; and
3.2.11 Providing Mutual with any and all amendments to the Fund's
registration statement and financial statements as they are
filed with the SEC, and where such registration statement
references Mutual, providing Mutual an opportunity to
comment on same prior to the effective date and providing
such material on a timely basis for inclusion in any
federal or state securities law filing of Mutual's Separate
Accounts.
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3.3 The Fund or Xxxxxxx shall maintain records in accordance with the
1940 Act and other statutes, rules and regulations applicable to the
Fund's operation in connection with the performance of its duties. Mutual
shall have the right to access such records, upon reasonable notice and
during business hours, in order to respond to regulatory requirements,
inquiries, complaints or judicial proceedings. Fund and Xxxxxxx records
of all transactions with respect to the Contracts shall be retained for a
period of not less than six (6) years from each transaction.
3.4 The parties or their duly authorized independent auditors have the
right under this Agreement to perform on-site audits of records
pertaining to the Contracts and the Fund, at such frequencies as each
shall determine, upon reasonable notice and during normal business hours.
At the request of the other, each will make available to the other's
auditors, and/or representatives of the appropriate regulatory agencies,
all requested records, data, and access to operating procedures.
4.0 COST AND EXPENSES
4.1 Except for costs and expenses for which indemnification is required
pursuant to Section 7.19 or Section 7.20 or as otherwise agreed in
writing by the parties in specific instances or, as set forth herein, the
parties shall each pay their respective costs and expenses incurred by
them in connection with this Agreement.
5.0 TERM OF AGREEMENT
5.1 The term of this Agreement shall be indefinite unless terminated
pursuant to Section 6 of this Agreement.
6.0 TERMINATION
6.1 This Agreement will terminate:
6.1.1 At the option of any party upon 90 day's prior written
notice to the other parties. If a party notifies the other
party that it intends to terminate, or is terminating, this
Agreement, the affected party shall immediately file with
the SEC such documents, if any, as are necessary to permit
the offering of shares of the Portfolio to Contract Owners
to be discontinued, subject to state insurance law
requirements applicable to Contracts outstanding as of the
date of termination; or
6.1.2 Upon assignment of this Agreement unless the assignment is
made with the written consent of the other party; or
6.1.3 In the event of termination of this Agreement pursuant to
this Section 6.0, the provisions of Sections 4.0 and 7.0
shall survive such termination.
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7.0 GENERAL PROVISIONS
7.1 This Agreement is the complete and exclusive statement of the
agreement between the parties as to the subject matter hereof, which
supersedes all proposals or agreements, oral or written, and all other
communications between the parties related to the subject matter of this
Agreement. In particular, this Agreement supersedes the Shared Funding
Agreement for Separate Account No. 2, dated November 7, 1990, as amended,
among the parties hereto and The American Life Insurance Company of New
York.
7.2 This Agreement can only be modified by a written agreement of the
parties hereto.
7.3 If any provision or provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be
affected or be impaired thereby.
7.4 This Agreement and the rights, duties and obligations of the parties
hereto shall not be assignable by either party hereto without the prior
written consent of the other.
7.5 No waiver by either party of any default by the other in the
performance of any promise, term or condition of this Agreement shall be
construed to be a waiver by such party of any other or subsequent default
in performance of the same or any other covenant, promise, term or
condition of this Agreement. No prior transactions or dealings between
the parties shall be deemed to establish any custom or usage waiving or
modifying any provision hereof.
7.6 No liability shall result to any party, nor shall any party be deemed
to be in default hereunder, as the result of delay in its performance or
from its non-performance hereunder caused by circumstances beyond its
control, including but limited to: act of God, act of war, riot,
epidemic; fire; flood or other disaster; or act of government.
Nevertheless, the party shall be required to be diligent in attempting to
remove such cause or causes.
7.7 Each of the parties will act as an independent contractor under the
terms of this Agreement and neither is now, or in the future, an agent or
a legal representative of the other for any purpose. Neither party has
any right or authority to supervise or control the activities of the
other party's employees in connection with the performance of this
Agreement or to assign or create any application of any kind, express or
implied, on behalf of the other party or to bind it in any way, to accept
any service of process upon it or to receive any notice of any nature
whatsoever on its behalf.
7.8 This Agreement shall be governed by and interpreted in accordance
with the laws of the State of New York.
7.9 Nothing herein shall prevent either party from participating in any
proceeding before any regulatory authority having jurisdiction over any
matter relating to this Agreement, the Contracts, the Separate Accounts,
the Portfolio or the Fund which may
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affect the parties to it. The parties shall each give the other prompt
notice of any such proceeding.
7.10 In all matters relating to the preparation, review, prior approval
and filing of documents, the parties shall cooperate in good faith.
Neither party shall unreasonably withhold its consent with respect to the
filing of any document with any federal or state regulatory authority
having jurisdiction over the Contracts, the Separate Accounts, the
Portfolio or the Fund.
7.11 Captions contained in this Agreement are for reference purposes only
and do not constitute part of this Agreement.
7.12 All notices which are required to be given or submitted pursuant to
this Agreement shall be in writing and shall be sent by overnight
delivery service, or by registered or certified mail, return receipt
requested, to the addresses set forth below:
If to Mutual: If to the Fund or Xxxxxxx:
Xxxxxxx X. Xxxxx Xxxxxxx X. Xxxxxxxxx
Senior Executive Vice President Senior Vice President
and General Counsel and General Counsel
Mutual of America Life Insurance Co. Xxxxxxx Distributors, Inc.
000 Xxxx Xxxxxx 0000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000 X
Xxx Xxxx, XX 00000 Xxxxxxxx, XX 00000
or to such other address as the parties may from time to time designate.
Any notice of one party to the other party shall be deemed given as of
the date of actual receipt.
7.13 Each party hereto shall promptly notify the other in writing of any
claims, demands or actions having any bearing on this Agreement.
7.14 Each party agrees to perform its obligations hereunder in accordance
with all applicable laws, rules and regulations now or hereafter in
effect.
7.15 If this Agreement is terminated for other than default, it is
specifically agreed that neither party shall be entitled to compensation
of any kind except as specifically set forth herein.
7.16 In any litigation or arbitration between the parties, the prevailing
party shall be entitled to reasonable outside attorneys' fees and all
costs of proceedings incurred in enforcing this Agreement.
7.17 This Agreement shall be binding upon and inure to the benefit of the
parties hereto, their successors and permitted assigns.
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7.18 Each party represents that it has full power and authority to enter
into and perform this Agreement, and the person signing this Agreement on
behalf of it has been properly authorized and empowered to enter into
this Agreement. Each party further acknowledges that it has read this
Agreement, understands it, and agrees to be bound by it.
7.19 Mutual shall indemnify and hold the Fund and Xxxxxxx and each of
their respective directors, officers, employees and agents harmless from
any liability or expense (including reasonable outside attorneys' fees)
arising from any failure of Mutual or the Separate Accounts to fulfill
their respective obligations under this Agreement.
7.20 Xxxxxxx shall indemnify and hold Mutual and its directors, officers,
employees and agents harmless from all liabilities or expenses (including
reasonable outside attorneys' fees) arising from any failure to the Fund
or Xxxxxxx to fulfill their respective obligations under this Agreement,
and Xxxxxxx shall indemnify and hold such parties harmless from a failure
of the Fund's investment adviser to manage the Fund in compliance with
the diversification requirements of the Internal Revenue Code of 1986, as
amended, or any regulations thereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
XXXXXXX DISTRIBUTORS, INC. MUTUAL OF AMERICA LIFE INSURANCE
COMPANY
By:________________________________ By:________________________________
Xxxxxxx X. Xxxxxxxxx Xxxxxxx Xxxxxxxx
Senior Vice President Senior Executive Vice President
and General Counsel and Chief Financial Officer
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