Diversification and Qualification. 6.1. The Distributor represents and warrants that the Funds and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Distributor shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code. 6.2. The Distributor represents and warrants that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public. 6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund shares, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterly. 6.4. The Distributor will notify the Company immediately upon having a reasonable basis for believing that a Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future. 6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act). 6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund or the Distributor as a result of such a failure or alleged failure: (a) The Company shall promptly notify the Distributor of such assertion or potential claim; (b) The Company shall consult with the Distributor as to how to minimize any liability that may arise as a result of such failure or alleged failure; (c) The Company shall use its best efforts to minimize any liability of the Distributor resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent; (d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Distributor (together with any supporting information or analysis) contemporaneous with such submission; (e) The Company shall provide the Distributor with such cooperation as the Distributor shall reasonably request (including, without limitation, by permitting the Distributor to review the relevant books and records of the Company) in order to facilitate the review by the Distributor of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure; (f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund and the Distributor (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Distributor, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Distributor shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 5 contracts
Sources: Participation Agreement (Equitable America Variable Account No.70A), Participation Agreement (Equitable America Variable Account No.70A), Participation Agreement (Separate Account No. 70 of AXA Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Distributor represents Fund and warrants the Advisers represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Distributor Fund or an Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, certification as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Codediversification requirements.
6.2. The Distributor represents Fund and warrants the Advisers agree that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund shares, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterly.
6.4. The Distributor an Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.56.4. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor an Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, including but not limited to, to an order pursuant to Section 26(c) of the 1940 Act).
6.66.5. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund or the Distributor an Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Distributor Fund and the Advisers of such assertion or potential claim;
(b) The Company shall consult with the Distributor Fund and the Advisers as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Distributor Fund and the Advisers resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Distributor Fund and the Advisers (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;
(e) The Company shall provide the Distributor Fund and the Advisers with such cooperation as the Distributor Fund and the Advisers shall reasonably request (including, without limitation, by permitting the Distributor Fund and the Advisers to review the relevant books and records of the Company) in order to facilitate the review by the Distributor Fund and the Advisers of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a the Fund and the Distributor Advisers (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund and the Advisers, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund and the Advisers shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Distributor Fund and the Advisers shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 3 contracts
Sources: Fund Participation Agreement (Prudential Variable Appreciable Account), Fund Participation Agreement (Advanced Series Trust), Fund Participation Agreement (Priac Variable Contract Account A)
Diversification and Qualification. 6.1. The Distributor represents Fund and warrants the Advisers represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-1.817- 5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Distributor Fund or an Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, certification as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Codediversification requirements.
6.2. The Distributor represents Fund and warrants the Advisers agree that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund shares, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterly.
6.4. The Distributor an Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.56.4. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor an Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, including but not limited to, to an order pursuant to Section 26(c) of the 1940 Act).
6.66.5. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund or the Distributor an Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Distributor Fund and the Advisers of such assertion or potential claim;
(b) The Company shall consult with the Distributor Fund and the Advisers as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Distributor Fund and the Advisers resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Distributor Fund and the Advisers (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;
(e) The Company shall provide the Distributor Fund and the Advisers with such cooperation as the Distributor Fund and the Advisers shall reasonably request (including, without limitation, by permitting the Distributor Fund and the Advisers to review the relevant books and records of the Company) in order to facilitate the review by the Distributor Fund and the Advisers of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a the Fund and the Distributor Advisers (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund and the Advisers, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund and the Advisers shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Distributor Fund and the Advisers shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 3 contracts
Sources: Fund Participation Agreement (Prudential Variable Contract Account Gi-2), Fund Participation Agreement (Priac Variable Contract Account A), Fund Participation Agreement (Priac Variable Contract Account A)
Diversification and Qualification. 6.1. The Fund, Distributor represents and warrants Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund Distributor or Adviser shall provide timely to the Company a quarterly written diversification certificationreport, in the form attached hereto as Schedule DB, which shall show the results of the quarterly Section 817(h) diversification test and include a certification as to whether each Portfolio complies with the Section 8l 7(h) diversification requirements of Section 817(h) requirement. The diversification report shall be provided to the Company within 10 calendar days of the Codeend of a quarter.
6.2. The Fund, the Distributor represents and warrants that the Adviser agreement shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund sharesFund, the status Distributor and the Adviser represent and warrant that the Fund and each Portfolio is currently qualified as a Regulated Investment Company under Subchapter M of each purchaserthe Code, including any insurance company separate account or Qualified Plan, is verified and documented and that each Portfolio will maintain such documentation qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is verified quarterlyin effect.
6.4. The Fund, Distributor or Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to m the Company, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a Fund the fund or any Portfolio to comply with Sections 6.1 6.1, 6.2, or 6.2 6.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding fund ng medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, including but not limited to, to an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“"IRS”") asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s 's knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification Diversification requirements of Section 817(h8l7(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817l.817-5(a)(2)) shall be provided by the Company to the Fund the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;
(e) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund and the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s 's fees, incurred by the Company in complying with this clause (f).
Appears in 2 contracts
Sources: Participation Agreement (Pruco Life of New Jersey Variable Appreciable Account), Participation Agreement (Pruco Life of New Jersey Variable Appreciable Account)
Diversification and Qualification. 6.1. The Adviser and the Distributor represent and warrant that the Fund will at all times sell its shares and invest its assets in such a manner so that the Contracts can be treated as annuity contracts under the Code, and the regulations issued thereunder. Without limiting the scope of the foregoing, the Adviser represents and warrants that the Funds Fund and each Designated Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification -diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Distributor shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Distributor represents and warrants agrees that shares of the Portfolios will Designated Portfolio(s) may be sold only to Participating Insurance Companies and their separate accounts and to Qualified PlansPlans and to the Adviser and the Distributor and related parties.
6.2. No shares of any Designated Portfolio of the Fund will be sold directly to the general public.
6.3. The Distributor Adviser represents and warrants that prior to allowing the Fund and each Designated Portfolio is currently qualified as a purchase Regulated Investment Company under Subchapter M of Fund sharesthe Code, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that each Designated Portfolio will maintain such documentation qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is verified quarterlyin effect.
6.4. The Distributor Adviser will notify the Company GWL&A immediately upon having a reasonable basis for believing that a the Fund or any Designated Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to the CompanyGWL&A, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Designated Portfolio to comply with Sections 6.1 6.1, 6.2, or 6.2 6.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in creating, organizing, and registering a new investment company as a funding medium for the settlement) incurred by GWL&A with respect to itself or owners of its Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act)in connection with any such failure or anticipated or reasonably foreseeable failure.
6.6. The Company Adviser at the Adviser’s expense shall provide GWL&A or its designee with reports certifying compliance with the aforesaid Section 817(h) diversification and Subchapter M qualification requirements, at the times provided for and substantially in the form attached hereto as Schedule C and incorporated herein by reference; provided, however, that providing such reports does not relieve the Adviser of its responsibility for such compliance or of its liability for any noncompliance.
6.7. GWL&A agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (GWL&A or, to the CompanyGWL&A’s knowledge, of any Contract owner) Contractowner that any Designated Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company GWL&A otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company GWL&A shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company GWL&A shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company GWL&A shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any any written materials to be submitted by the Company GWL&A to the IRS, any Contractowner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2) shall be provided by GWL&A to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) within at least five (5) Business Days prior to submission;
(e) GWL&A shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of GWL&A) in order to facilitate review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) GWL&A shall not with respect to any claim of the IRS or any Contractowner that would give rise to a claim against the Fund, the Distributor and or the Adviser (i) compromise or settle any claim, (n) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Fund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that GWL&A shall not be required to appeal any adverse judicial decision unless the Fund and the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s fees, incurred by GWL&A in complying with this clause (t).
6.8. GWL&A represents that the Contracts are currently, and at the time of issuance shall be, treated as annuity contracts under applicable provisions of the Code, that it will at all times maintain such treatment and that it will notify the Fund and the Adviser as soon as practicable upon having a reasonable basis for believing the Contracts have ceased to be so treated or they might not be so treated in the future.
6.9. Without in any way limiting the effect of Section 8.1 hereof and without in any way limiting or restricting any other remedies available to the Fund, the Adviser or the Distributor, GWL&A will pay all costs associated with or arising out of any failure, or any anticipated or reasonable foreseeable failure, of GWL&A to comply with Section 6.8 hereof, including any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by any of the Fund, the Adviser or the Distributor in connection with any such failure or anticipated or reasonably foreseeable failure.
6.10. GWL&A agrees that if the IRS asserts in writing in connection with any governmental audit or review of GWL&A or, to GWL&A’s knowledge, or any Contractowner that any Contract owner has failed to comply with applicable provisions of the Code or GWL&A otherwise becomes aware of any facts that could give rise to any claim against the Fund, the Adviser or the Distributor as a result of such a failure or alleged failure:
(a) GWL&A shall promptly notify the Fund, the Adviser and the Distributor of such assertion or potential claim;
(b) GWL&A shall consult with the Fund, the Adviser or the Distributor as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) GWL&A shall use its best efforts to minimize any liability of the Fund, the Adviser and the Distributor resulting from such failure, including, without limitation, demonstrating to the Commissioner of the IRS that such failure was inadvertent;
(d) any written materials to be submitted by GWL&A to the IRS, any Contractowner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) , shall be provided by GWL&A to the Company to Fund, the Advisor and the Distributor (together with any supporting information or analysis) contemporaneous with such within at least five (5) Business Days prior to submission;
(e) The Company GWL&A shall provide the Fund, the Adviser and the Distributor with such cooperation as the Fund, the Adviser and the Distributor shall reasonably request (including, without limitation, by permitting the Fund, the Adviser and the Distributor to review the relevant books and records of the CompanyGWL&A) in order to facilitate the review by the Fund, the Adviser and the Distributor of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company GWL&A shall not with respect to any claim of the IRS or any Contract owner Contractowner that would give rise to a claim against a Fund the Fund, the Adviser and the Distributor (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Fund, the Adviser and the Distributor, which shall not be unreasonably withheld; provided that, the Company that GWL&A shall not be required to appeal any adverse judicial decision unless the Distributor Fund and the Adviser shall have provided an opinion of independent counsel Counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Adviser and the Distributor shall bear the costs and expenses, including reasonable attorney’s fees, fees incurred by the Company GWL&A, in complying with this clause (ft).
Appears in 2 contracts
Sources: Fund Participation Agreement (Futurefunds Series Account of Great West Life & Ann Ins Co), Fund Participation Agreement (Futurefunds Series Account of Great West Life & Ann Ins Co)
Diversification and Qualification. 6.1. The Fund, Distributor represents and warrants Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund Distributor or Adviser shall provide timely to the Company a quarterly written diversification certificationreport, in the form attached hereto as Schedule DB, which shall show the results of the quarterly Section 817(h) diversification test and include a certification as to whether each Portfolio complies with the Section 8l 7(h) diversification requirements of Section 817(h) requirement. The diversification report shall be provided to the Company within 10 calendar days of the Codeend of a quarter.
6.2. The Fund, the Distributor represents and warrants that the Adviser agreement shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund sharesFund, the status Distributor and the Adviser represent and warrant that the Fund and each Portfolio is currently qualified as a Regulated Investment Company under Subchapter M of each purchaserthe Code, including any insurance company separate account or Qualified Plan, is verified and documented and that each Portfolio will maintain such documentation qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is verified quarterlyin effect.
6.4. The Fund, Distributor or Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to m the Company, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a Fund the fund or any Portfolio to comply with Sections 6.1 6.1, 6.2, or 6.2 6.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding fund ng medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, including but not limited to, to an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“"IRS”") asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s 's knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification Diversification requirements of Section 817(h8l7(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(da) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817l.817-5(a)(2)) shall be provided by the Company to the Fund the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;
(eb) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(fc) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund and the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s 's fees, incurred by the Company in complying with this clause (f).
Appears in 2 contracts
Sources: Fund Participation Agreement (Pruco Life Variable Universal Account), Fund Participation Agreement (Pruco Life Variable Appreciable Account)
Diversification and Qualification. 6.1. The Fund, Distributor represents and warrants Adviser represent and warrant that the Funds Fund and each Designated Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, . as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund and the Distributor shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Distributor represents and warrants agree that shares of the Portfolios Designated Portfolio(s) will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans.
6.2. No shares of any Designated Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund sharesFund, the status Distributor and the Adviser represent and warrant that the Fund and each Designated Portfolio is currently qualified as a Regulated Investment Company under Subchapter M of each purchaserthe Code, including any insurance company separate account or Qualified Plan, is verified and documented and that each Designated Portfolio will maintain such documentation qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is verified quarterlyin effect.
6.4. The Fund, Distributor or Adviser will notify the Company GWL&A immediately upon having a reasonable basis for believing that a the Fund or any Designated Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to the CompanyGWL&A, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, failure of a the Fund or any Designated Portfolio to comply with Sections 6.1 6.1, 6.2, or 6.2 6.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, . the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, including but not limited to, to an order pursuant to Section 26(c26(b) of the 1940 Act); such costs are to include, but are not limited to, fees and expenses of legal counsel and other advisors to GWL&A and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by GWL&A with respect to itself or owners of its Contracts in connection with any such failure.
6.6. The Company Fund at the Fund’s expense shall provide GWL&A or its designee with reports certifying compliance with the aforesaid Section 817(h) diversification and Subchapter M qualification requirements, at the times provided for and substantially in the form attached hereto as Schedule C and incorporated herein by reference; provided, however, that providing such reports does not relieve the Fund of its responsibility for such compliance or of its liability for any non- compliance.
6.7. GWL&A agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (GWL&A or, to the CompanyGWL&A’s knowledge, of or any Contract owner) Contractowner that any Designated Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company GWL&A otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company GWL&A shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company GWL&A shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company GWL&A shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any any written materials to be submitted by the Company GWL&A to the IRS, any Contract owner Contractowner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company GWL&A to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;
(e) The Company GWL&A shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the CompanyGWL&A) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company GWL&A shall not with respect to any claim of the IRS or any Contract owner Contractowner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company GWL&A shall not be required to appeal any adverse judicial decision unless the Distributor Fund and the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company GWL&A in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Coli Vul 2 Series Account)
Diversification and Qualification. 6.1. The Fund and the Distributor represents represent and warrants warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund or the Distributor shall shall, upon request, provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Fund, the Distributor represents and warrants the Adviser represent and warrant that prior to allowing a an purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterlydocumented.
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately promptly upon having a reasonable basis for believing that at the end of a calendar quarter the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might and such non-compliance has not so comply been cured during the applicable grace period set forth in the futureTreasury Regulation 1.817-5.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, failure of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;; and
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Distributor resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Distributor (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Distributor with such cooperation as the Distributor shall reasonably request (including, without limitation, by permitting the Distributor to review the relevant books and records of the Company) in order to facilitate the review by the Distributor of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund and the Distributor (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Distributor, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Distributor shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Lazard Retirement Series Inc)
Diversification and Qualification. 6.1. The Fund, the Distributor represents and warrants the Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund, the Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Fund, the Distributor represents and warrants the Adviser represent and warrant that prior to allowing a purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterly.
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections Section 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claimclaim and promptly provide each of them with a copy of all correspondence and other materials received by the Company in connection therewith, to the extent that Company deems the provision of such material to be in its best interests;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner Owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund, the Distributor, or the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Participation Agreement (Separate Account No. 70 of AXA Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Distributor 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 Code and the regulations issued thereunder. Without limiting the scope of the foregoing or anything within Article VI of this Agreement, the Fund represents and warrants that the Funds Fund and each Portfolio thereof will use its best efforts to comply at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or RegulationsRegulations (including any revenue rulings, revenue procedures, notices, and other published announcements of the Internal Revenue Service interpreting these provisions). The Fund or the Distributor shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund and the Distributor represents represent and warrants warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Fund and the Distributor represents represent and warrants warrant that prior to allowing a purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterlydocumented.
6.4. The Fund or the Distributor will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the futurefuture and will take all reasonable steps to resume compliance with such diversification requirements within the grace period afforded by Treasury Regulations 1.817-5.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor Fund will pay or cause the responsible party to pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund or the Distributor as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund and the Distributor of such assertion or potential claim;
(b) The Company shall consult with the Fund and the Distributor as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund and the Distributor resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund and the Distributor (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Fund and the Distributor with such cooperation as the Fund and the Distributor shall reasonably request (including, without limitation, by permitting the Fund and the Distributor to review the relevant books and records of the Company) in order to facilitate the review by the Fund and the Distributor of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;; and
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a the Fund and the Distributor (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Fund and the Distributor, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Fund or the Distributor shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund and the Distributor shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Participation Agreement (Separate Account No. 70 of AXA Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Fund, the Distributor represents and warrants the Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times make every effort to comply with Section 817(h) of the Code and Treasury Regulation §1.8171. 817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund, the Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Fund, the Distributor represents and warrants the Adviser represent and warrant that prior to allowing a purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterlyperiodically.
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Adviser or Distributor will pay all reasonable costs associated with or arising out of directly resulting from any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund, the Distributor, or the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Participation Agreement (Equitable America Variable Account No.70A)
Diversification and Qualification. 6.1. The Trust and the Distributor represents represent and warrants warrant that the Funds Trust and each Portfolio Fund thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund, the Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Trust and the Distributor represents represent and warrants warrant that shares of the Portfolios Funds will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio Fund of the Fund Trust will be sold to the general public.
6.3. The Trust and the Distributor represents represent and warrants warrant that prior to allowing a purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterlyas necessary.
6.4. The Trust and the Distributor will notify the Company immediately upon having a reasonable basis for believing that a Fund the Trust or any Portfolio Fund has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Company or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a Fund the Trust or any Portfolio Fund to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio Fund (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio Fund has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Trust or the Distributor as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Trust and the Distributor of such assertion or potential claim;
(b) The Company shall consult with the Trust and the Distributor as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Trust and the Distributor resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Trust and the Distributor (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Trust and the Distributor with such cooperation as the Trust and the Distributor shall reasonably request (including, without limitation, by permitting the Trust and the Distributor to review the relevant books and records of the Company) in order to facilitate the review by the Trust and the Distributor of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Trust and the Distributor (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Trust and the Distributor, which shall not be unreasonably withheld; and provided that, the Company shall not be required to appeal any adverse judicial decision unless the Trust and the Distributor shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Trust and the Distributor shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Participation Agreement (Separate Account No. 70 of AXA Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Fund and the Distributor represents represent and warrants warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification diversification, requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund or the Distributor shall shall, upon request, provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Fund, the Distributor represents and warrants the Adviser represent and warrant that prior to allowing a an purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterlydocumented.
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately promptly upon having a reasonable basis for believing that at the end of a calendar quarter the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might and such non-compliance has not so comply been cured during the applicable grace period set forth in the futureTreasury Regulation 1.817-5.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, failure of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;; and
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Distributor resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Distributor (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Distributor with such cooperation as the Distributor shall reasonably request (including, without limitation, by permitting the Distributor to review the relevant books and records of the Company) in order to facilitate the review by the Distributor of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund and the Distributor (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Distributor, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Distributor shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Separate Account No. 70 of AXA Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Fund, the Distributor represents and warrants the Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times make every effort to comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund, the Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Fund, the Distributor represents and warrants the Adviser represent and warrant that prior to allowing a purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterlyperiodically.
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Adviser or Distributor will pay all reasonable costs associated with or arising out of directly resulting from any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund, the Distributor, or the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Participation Agreement (Separate Account No. 70 of AXA Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Fund and the Distributor represents represent and warrants warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817ss.1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund or the Distributor shall shall, upon request, provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Fund, the Distributor represents and warrants the Adviser represent and warrant that prior to allowing a an purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterlydocumented.
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately promptly upon having a reasonable basis for believing that at the end of a calendar quarter the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might and such non-compliance has not so comply been cured during the applicable grace period set forth in the futureTreasury Regulation 1.817-5.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, failure of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“"IRS”") asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s 's knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;; and
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Distributor resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Distributor (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Distributor with such cooperation as the Distributor shall reasonably request (including, without limitation, by permitting the Distributor to review the relevant books and records of the Company) in order to facilitate the review by the Distributor of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund and the Distributor (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the Distributor, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Distributor shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Separate Acct No 49 of Axa Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Distributor represents Fund and warrants the Advisers represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Distributor Fund or an Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, certification as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Codediversification requirements.
6.2. The Distributor represents Fund and warrants the Advisers agree that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund shares, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterly.
6.4. The Distributor an Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.56.4. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to the Company, the Distributor an 47811 v2 Adviser will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, including but not limited to, to an order pursuant to Section 26(c) of the 1940 Act).
6.66.5. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund or the Distributor an Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Distributor Fund and the Advisers of such assertion or potential claim;
(b) The Company shall consult with the Distributor Fund and the Advisers as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Distributor Fund and the Advisers resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Distributor Fund and the Advisers (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;; 47811 v2
(e) The Company shall provide the Distributor Fund and the Advisers with such cooperation as the Distributor Fund and the Advisers shall reasonably request (including, without limitation, by permitting the Distributor Fund and the Advisers to review the relevant books and records of the Company) in order to facilitate the review by the Distributor Fund and the Advisers of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a the Fund and the Distributor Advisers (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund and the Advisers, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund and the Advisers shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Distributor Fund and the Advisers shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Prudential Variable Contract Account Gi-2)
Diversification and Qualification. 6.1. The Fund, Distributor represents and warrants Adviser represent and warrant that the Funds Fund and each Designated Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund and the Distributor shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Distributor represents and warrants agree that shares of the Portfolios Designated Portfolio(s) will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans.
6.2. No shares of any Designated Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund sharesFund, the status Distributor and the Adviser represent and warrant that the Fund and each Designated Portfolio is currently qualified as a Regulated Investment Company under Subchapter M of each purchaserthe Code, including any insurance company separate account or Qualified Plan, is verified and documented and that each Designated Portfolio will maintain such documentation qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is verified quarterlyin effect.
6.4. The Fund, Distributor or Adviser will notify the Company GWL&A immediately upon having a reasonable basis for believing that a the Fund or any Designated Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to the CompanyGWL&A, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, failure of a the Fund or any Designated Portfolio to comply with Sections 6.1 6.1, 6.2, or 6.2 6.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, including but not limited to, to an order pursuant to Section 26(c26(b) of the 1940 Act); such costs are to include, but are not limited to, fees and expenses of legal counsel and other advisors to GWL&A and any federal income taxes or tax penalties and interest thereon (or “toll charges” or exactments or amounts paid in settlement) incurred by GWL&A with respect to itself or owners of its Contracts in connection with any such failure.
6.6. The Company Fund at the Fund’s expense shall provide GWL&A or its designee with reports certifying compliance with the aforesaid Section 817(h) diversification and Subchapter M qualification requirements, at the times provided for and substantially in the form attached hereto as Schedule C and incorporated herein by reference; provided, however, that providing such reports does not relieve the Fund of its responsibility for such compliance or of its liability for any non- compliance.
6.7. GWL&A agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (GWL&A or, to the CompanyGWL&A’s knowledge, of or any Contract owner) Contractowner that any Designated Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company GWL&A otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company GWL&A shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company GWL&A shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company GWL&A shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any any written materials to be submitted by the Company GWL&A to the IRS, any Contract owner Contractowner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company GWL&A to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;
(e) The Company GWL&A shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the CompanyGWL&A) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company GWL&A shall not with respect to any claim of the IRS or any Contract owner Contractowner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company GWL&A shall not be required to appeal any adverse judicial decision unless the Distributor Fund and the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company GWL&A in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Coli Vul 2 Series Account)
Diversification and Qualification. 6.1. The Distributor represents and warrants the Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817ss.1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund, the Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants the Adviser represent and warrant that prior to allowing a an purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterly.
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“"IRS”") asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s 's knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund, the Distributor, or the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s 's fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Separate Acct No 49 of Axa Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Fund, the Distributor represents and warrants the Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §Section 1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund, the Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certificationreport, in the form attached hereto as Schedule D, which shall show the results of the quarterly Section 817(h) diversification test and include a certification as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser agree that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund sharesFund, the status of each purchaser, including any insurance company separate account Distributor or Qualified Plan, is verified and documented and that such documentation is verified quarterly.
6.4. The Distributor the Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.56.4. Without in any way limiting the effect of Sections 8.2 8.2, 8.3 and 8.4 hereof and without in any way limiting or restricting any other remedies available to the Company, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.66.5. The Company agrees that if the Internal Revenue Service (“"IRS”") asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s 's knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;; 18
(e) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund, the Distributor, or the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s 's fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Ohio National Variable Account A)
Diversification and Qualification. 6.1. The Distributor represents and warrants the Adviser represent and warrant on behalf of the Fund that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817ss.1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Fund, the Distributor represents and warrants the Adviser represent and warrant that prior to allowing a an purchase of Fund sharesshares of the Fund, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that such documentation is verified quarterlyverified.
6.4. The Distributor or the Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act).
6.6. The Company agrees that if the Internal Revenue Service (“"IRS”") asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s 's knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Distributor and the Adviser with such cooperation as the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorDistributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor or the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s 's fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Separate Acct No 49 of Axa Equitable Life Insurance Co)
Diversification and Qualification. 6.1. The Fund, the Distributor represents and warrants the Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund, the Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund sharesFund, the status of each purchaserDistributor and the Adviser represent and warrant that currently, including any the Fund is available to insurance company separate account accounts only. The Fund will give the Company reasonable advance notice if shares will be made available for purchase by retirement plans or Qualified Plan, is verified other similar entities and documented representations and warranties that such documentation is verified quarterlyplans and/or entities are described under Treas. Reg. 1.817-5(f)(3).
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act). Nothwithstanding any other provision of this Agreement, including this Section 6.5, neither the Adviser nor the Distributor shall have any liability and Company shall be solely liable, for any costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the ▇▇▇▇ ▇▇▇) if such non-compliance was caused by the failure of the Accounts to qualify as Separate Accounts under applicable state or Federal law or the failure of Company to qualify as a Participating Insurance Company under state or Federal Law or any other failure by the Company or the Accounts that causes such non-compliance.
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund, the Distributor, or the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Participation Agreement (Equitable America Variable Account K)
Diversification and Qualification. 6.1. The Fund, Distributor represents and warrants Adviser represent and warrant that the Funds and they will make every effort to enable each Designated Portfolio thereof will to at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund and the Distributor shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Distributor represents and warrants agree that shares of the Portfolios Designated Portfolio(s) will be sold only to Participating Insurance Companies and their separate accounts and to certain Qualified Plans.
6.2. No shares of any Designated Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents Fund and warrants the Adviser represent and warrant that prior to allowing each Designated Portfolio is currently qualified as a purchase Regulated Investment Company under Subchapter M of Fund sharesthe Code, the status of each purchaser, including any insurance company separate account or Qualified Plan, is verified and documented and that each Designated Portfolio will maintain such documentation qualification (under Subchapter M or any successor or similar provisions) as long as this Agreement is verified quarterlyin effect.
6.4. The Fund, the Distributor or the Adviser will notify the Company FirstGWL&A immediately upon having a reasonable basis for believing that a Fund or any Designated Portfolio has ceased to comply with the aforesaid Section 817(h) diversification or Subchapter M qualification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 8.3, 8.4 and 8.5 hereof and without in any way limiting or restricting any other remedies available to FirstGWL&A or Schwab, the Company, Adviser or the Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, failure of a the Fund or any Designated Portfolio to comply with Sections 6.1 6.1, 6.2, or 6.2 6.3 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, including but not limited to, to an order pursuant to Section 26(c26(b) of the 1940 Act); such costs are to include, but are not limited to, fees and expenses of legal counsel and other advisors to FirstGWL&A and any federal income taxes or tax penalties and interest thereon (or "toll charges" or exactments or amounts paid in settlement) incurred by FirstGWL&A with respect to itself or owners of its Contracts in connection with any such failure.
6.6. The Company Fund at the Fund's expense shall provide FirstGWL&A or its designee with reports certifying compliance with the aforesaid Section 817(h) diversification and Subchapter M qualification requirements, at the times provided for and substantially in the form attached hereto as Schedule D and incorporated herein by reference; provided, however, that providing such reports does not relieve the Fund of its responsibility for such compliance or of its liability for any non-compliance.
6.7. FirstGWL&A agrees that if the Internal Revenue Service (“"IRS”") asserts in writing in connection with any governmental audit or review of the Company (FirstGWL&A or, to the Company’s FirstGWL&A's knowledge, of any Contract owner) Contractowner that any Designated Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company FirstGWL&A otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Adviser or the Distributor as a result of such a failure or alleged failure:
(a) The Company FirstGWL&A shall promptly notify the Fund, the Adviser and the Distributor of such assertion or potential claim;
(b) The Company FirstGWL&A shall consult with the Fund, the Adviser and the Distributor as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company FirstGWL&A shall use its best efforts to minimize any liability of the Fund, the Adviser and the Distributor resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any any written materials to be submitted by the Company FirstGWL&A to the IRS, any Contract owner Contractowner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company FirstGWL&A to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such within at least two (2) business days prior to submission;
(e) The Company FirstGWL&A shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the CompanyFirstGWL&A) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company FirstGWL&A shall not with respect to any claim of the IRS or any Contract owner Contractowner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company FirstGWL&A shall not be required to appeal any adverse judicial decision unless the Fund, the Distributor and the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s 's fees, incurred by the Company FirstGWL&A in complying with this clause (f).
Appears in 1 contract
Sources: Fund Participation Agreement (Variable Annuity I Ser Acc of Fir GRT West Li & Annu Ins Co)
Diversification and Qualification. 6.1. The Fund, the Distributor represents and warrants the Adviser represent and warrant that the Funds Fund and each Portfolio thereof will at all times comply with Section 817(h) of the Code and Treasury Regulation §1.817-5, as amended from time to time, and any Treasury interpretations thereof, relating to the diversification requirements for variable annuity, endowment, or life insurance contracts and any amendments or other modifications or successor provisions to such Section or Regulations. The Fund, the Distributor or the Adviser shall provide timely to the Company a quarterly written diversification certification, in the form attached hereto as Schedule D, as to whether each Portfolio complies with the diversification requirements of Section 817(h) of the Code.
6.2. The Fund, the Distributor represents and warrants the Adviser represent and warrant that shares of the Portfolios will be sold only to Participating Insurance Companies and their separate accounts and to Qualified Plans. No shares of any Portfolio of the Fund will be sold to the general public.
6.3. The Distributor represents and warrants that prior to allowing a purchase of Fund sharesFund, the status of each purchaserDistributor and the Adviser represent and warrant that currently, including any the Fund is available to insurance company separate account accounts only. The Fund will give the Company reasonable advance notice if shares will be made available for purchase by retirement plans or Qualified Plan, is verified other similar entities and documented representations and warranties that such documentation is verified quarterly.plans and/or entities are described under Treas. Reg. 1.817-5(f)(3)..
6.4. The Fund, the Distributor or the Adviser will notify the Company immediately upon having a reasonable basis for believing that a the Fund or any Portfolio has ceased to comply with the aforesaid Section 817(h) diversification requirements or might not so comply in the future.
6.5. Without in any way limiting the effect of Sections 8.2 hereof and without in any way limiting or restricting any other remedies available to the Company, the Adviser or Distributor will pay all costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of a the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the 1940 Act). Nothwithstanding any other provision of this Agreement, including this Section 6.5, neither the Adviser nor the Distributor shall have any liability and Company shall be solely liable, for any costs associated with or arising out of any failure, or any anticipated or reasonably foreseeable failure, of the Fund or any Portfolio to comply with Sections 6.1 or 6.2 hereof, including all costs associated with reasonable and appropriate corrections or responses to any such failure; such costs may include, but are not limited to, the costs involved in creating, organizing, and registering a new investment company as a funding medium for the Contracts and/or the costs of obtaining whatever regulatory authorizations are required to substitute shares of another investment company for those of the failed Portfolio (including, but not limited to, an order pursuant to Section 26(c) of the ▇▇▇▇ ▇▇▇) if such non-compliance was caused by the failure of the Accounts to qualify as Separate Accounts under applicable state or Federal law or the failure of Company to qualify as a Participating Insurance Company under state or Federal Law or any other failure by the Company or the Accounts that causes such non-compliance.
6.6. The Company agrees that if the Internal Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of the Company (or, to the Company’s knowledge, of any Contract owner) that any Portfolio has failed to comply with the diversification requirements of Section 817(h) of the Code or the Company otherwise becomes aware of any facts that could give rise to any claim against the Fund Fund, the Distributor or the Distributor Adviser as a result of such a failure or alleged failure:
(a) The Company shall promptly notify the Fund, the Distributor and the Adviser of such assertion or potential claim;
(b) The Company shall consult with the Fund, the Distributor and the Adviser as to how to minimize any liability that may arise as a result of such failure or alleged failure;
(c) The Company shall use its best efforts to minimize any liability of the Fund, the Distributor and the Adviser resulting from such failure, including, without limitation, demonstrating, pursuant to Treasury Regulations, Section 1.817-5(a)(2), to the commissioner of the IRS that such failure was inadvertent;
(d) Any written materials to be submitted by the Company to the IRS, any Contract owner or any other claimant in connection with any of the foregoing proceedings or contests (including, without limitation, any such materials to be submitted to the IRS pursuant to Treasury Regulations, Section 1.817-5(a)(2)) shall be provided by the Company to the Fund, the Distributor and the Adviser (together with any supporting information or analysis) contemporaneous with such submission;
(e) The Company shall provide the Fund, the Distributor and the Adviser with such cooperation as the Fund, the Distributor and the Adviser shall reasonably request (including, without limitation, by permitting the Fund, the Distributor and the Adviser to review the relevant books and records of the Company) in order to facilitate the review by the Fund, the Distributor and the Adviser of any written submissions provided to it or its assessment of the validity or amount of any claim against it arising from such failure or alleged failure;
(f) The Company shall not with respect to any claim of the IRS or any Contract owner that would give rise to a claim against a Fund the Fund, the Distributor and the Distributor Adviser (i) compromise or settle any claim, (ii) accept any adjustment on audit, or (iii) forego any allowable administrative or judicial appeals, without the express written consent of the DistributorFund, the Distributor and the Adviser, which shall not be unreasonably withheld; provided that, the Company shall not be required to appeal any adverse judicial decision unless the Distributor Fund, the Distributor, or the Adviser shall have provided an opinion of independent counsel to the effect that a reasonable basis exists for taking such appeal; and further provided that the Fund, the Distributor and the Adviser shall bear the costs and expenses, including reasonable attorney’s fees, incurred by the Company in complying with this clause (f).
Appears in 1 contract
Sources: Participation Agreement (Equitable America Variable Account No.70A)