FUND PARTICIPATION AGREEMENT Sun Life Assurance Company of Canada (U.S.) Sun Life Insurance and Annuity Company of New York Independence Life and Annuity Company Columbia Funds Variable Insurance Trust I Columbia Management Advisors, LLC and Columbia...
Sun
Life Assurance Company of Canada (U.S.)
Sun
Life Insurance and Annuity Company of New York
Independence
Life and Annuity Company
Columbia
Funds Variable Insurance Trust I
Columbia
Management Advisors, LLC
and
Columbia
Management Distributors, Inc.
Restated
April 1, 2007
O:\RPS
LEGAL\2007-SEC-US\variable life\LgCaseCOLI\May07\ExH22.doc
TABLE
OF CONTENTS
Article
I. Sale of Fund Shares
Article
II. Representations and Warranties
Article
III. Prospectuses and Proxy Statements; Voting
Article
IV. Sales Material and Information
Article
V. Fees and Expenses
Article
VI. Diversification and Qualification
Article
VII. Potential Conflicts and Compliance With Mixed and Shared Funding Exemptive
Order
Article
VIII. Indemnification
Article
IX. Applicable Law
Article
X. Termination
Article
XI. Notices
Article
XII. Miscellaneous
SCHEDULE
A
SCHEDULE
B
SCHEDULE
C
PARTICIPATION
AGREEMENT
Among
SUN
LIFE
ASSURANCE COMPANY OF CANADA (U.S.)
SUN
LIFE
INSURANCE AND ANNUITY COMPANY OF NEW YORK
INDEPENDENCE
LIFE AND ANNUITY COMPANY
COLUMBIA
FUNDS VARIABLE INSURANCE TRUST I
COLUMBIA
MANAGEMENT ADVISORS, LLC
and
COLUMBIA
MANAGEMENT DISTRIBUTORS, INC.
THIS
AGREEMENT, made and entered into as of this 1st day of April, 2007, by and
among
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.), a Delaware life insurance company,
SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK, a New York life insurance
company, INDEPENDENCE LIFE AND ANNUITY COMPANY, a Rhode Island life insurance
company (each, a åCompanyæ and collectively, the åCompaniesæ), on each Company’s
own behalf and on behalf of each Company’s separate accounts (the åAccountsæ);
COLUMBIA FUNDS VARIABLE INSURANCE TRUST I, an open-end management investment
company organized under the laws of Delaware (the åFundæ); COLUMBIA MANAGEMENT
ADVISORS, LLC (the åAdviseræ), a Massachusetts limited liability corporation;
and COLUMBIA MANAGEMENT DISTRIBUTORS, INC. (the åDistributoræ), a Massachusetts
corporation, outlines the duties and responsibilities of the parties and
supercedes all prior participation agreements between the parties and their
successors.
WHEREAS,
the Fund engages in business as an open-end management investment company and
is
available to act as the investment vehicle for separate accounts established
for
variable life insurance policies and/or variable annuity contracts
(collectively, the åVariable Insurance Productsæ) to be offered by insurance
companies, many of which have entered into participation agreements similar
to
this Agreement (hereinafter åParticipating Insurance Companiesæ);
and
WHEREAS,
the beneficial interest in the Fund is divided into several series of shares,
each designated a åportfolioæ and representing the interest in a particular
managed portfolio of securities and other assets; and
WHEREAS,
the Fund is able to rely on an order from the Securities and Exchange Commission
(hereinafter the åSECæ) granting Participating Insurance Companies and variable
annuity and variable life insurance separate accounts exemptions from the
provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company
Act of 1940, as amended, (hereinafter the å1940 Actæ) and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Fund
to be sold to and held by variable annuity and variable life insurance separate
accounts of life insurance companies that may or may not be affiliated with
one
another and qualified pension and retirement plans (åQualified Plansæ)
(hereinafter the åMixed and Shared Funding Exemptive Orderæ); and
WHEREAS,
the Fund is registered as an open-end management investment company under the
1940 Act and shares of the portfolios are registered under the Securities Act
of
1933, as amended (hereinafter the å1933 Actæ); and
WHEREAS,
the Adviser is duly registered as an investment adviser under the Investment
Advisers Act of 1940, as amended; and
WHEREAS,
the Distributor is duly registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended, (the å1934 Actæ) and is a member in good
standing of the National Association of Securities Dealers, Inc. (the åNASDæ);
and
WHEREAS,
each Company has issued and plans to continue to issue certain variable life
insurance policies and/or variable annuity contracts supported wholly or
partially by the Accounts (the åContractsæ), as such schedule may be amended
from time to time by mutual written agreement of the parties; and
WHEREAS,
each Account is a duly organized, validly existing segregated asset account,
established by resolution of the Board of Directors of the Company under the
insurance laws of the States of Delaware or New York, as applicable, to set
aside and invest assets attributable to the Contracts; and
WHEREAS,
each Company has registered each Account as a unit investment trust under the
1940 Act, unless such Account is exempt from registration thereunder;
WHEREAS,
to the extent permitted by applicable insurance laws and regulations, each
Company intends to purchase shares in the Portfolios listed on Schedule
B
attached
hereto and incorporated herein by reference, as such schedule may be amended
from time to time by mutual written agreement of the parties (the åPortfoliosæ),
on behalf of the Accounts to fund the Contracts, and the Distributor is
authorized to sell such shares to unit investment trusts such as the Accounts
at
net asset value; and
WHEREAS,
to the extent permitted by applicable insurance laws and regulations, each
Company also intends to continue to purchase shares in other open-end investment
companies or series thereof not affiliated with the Fund (the åUnaffiliated
Fundsæ) on behalf of the Accounts to fund the Contracts.
NOW,
THEREFORE, in consideration of their mutual promises, each Company, the Fund,
the Distributor and the Adviser agree as follows:
| ARTICLE I. |
Sale
of Fund Shares
|
1.1. The
Distributor agrees to sell to each Company those shares of the Portfolios which
the Account orders, executing such orders on each Business Day at the net asset
value next computed after receipt by the Fund or its designee of the order
for
the shares of the Portfolios, subject to the terms and conditions set forth
in
the Fund’s then-current prospectus. For purposes of this Section 1.1, each
Company shall be the designee of the Fund for receipt of such orders and receipt
by such designee shall constitute receipt by the Fund, provided that the Fund
receives notice of any such order by 10:00 a.m. Eastern time on the next
following Business Day. åBusiness Dayæ shall mean any day on which the New York
Stock Exchange is open for trading and on which a Portfolio calculates its
net
asset value pursuant to the rules of the SEC.
1.2. The
Fund
agrees to make shares of the Portfolios available for purchase at the applicable
net asset value per share by each Company and the Accounts on those days on
which the Fund calculates its Portfolios’ net asset value pursuant to rules of
the SEC, and the Fund shall calculate such net asset value on each day on which
the New York Stock Exchange is open for trading. Notwithstanding the foregoing,
the Fund may refuse to sell shares of any Portfolio to any person, or suspend
or
terminate the offering of shares of any Portfolio if such action is required
by
law or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Fund acting in good faith, necessary or appropriate in the
best interests of the shareholders of such Portfolio. All orders received by
each Company shall be subject to the terms of the then current prospectus of
the
Fund, including the Fund’s excessive trading policies. Each Company shall use
its best efforts, and shall reasonably cooperate with, the Fund to enforce
stated prospectus policies regarding transactions in Portfolio shares. Each
Company acknowledges that orders received by it in violation of the Fund’s
stated policies may be subsequently revoked or cancelled by the Fund and that
the Fund shall not be responsible for any losses incurred by the Company or
the
Contract owner as a result of such cancellation. In addition, each Company
acknowledges that the Fund has the right to refuse any purchase order for any
reason, particularly if the Fund determines that a Portfolio would be unable
to
invest the money effectively in accordance with its investment policies or
would
otherwise be adversely affected due to the size of the transaction, frequency
of
trading, or other factors.
1.3. The
Fund
will not sell shares of the Portfolios to any other Participating Insurance
Company separate account unless an agreement containing provisions the substance
of which are the same as Sections 2.1, 2.2 (except with respect to designation
of applicable law), 3.5, 3.6, 3.7, and Article VII of this Agreement is in
effect to govern such sales.
1.4. The
Fund
agrees to redeem for cash, on a Company’s request, any full or fractional shares
of the Portfolios held by the Company, executing such requests on each Business
Day at the net asset value next computed after receipt by the Fund or its
designee of the request for redemption. For purposes of this Section 1.4, each
Company shall be the designee of the Fund for receipt of requests for redemption
and receipt by such designee shall constitute receipt by the Fund, provided
that
the Fund receives notice of any such request for redemption by 10:00 a.m.
Eastern time on the next following Business Day.
1.5. The
parties hereto acknowledge that the arrangement contemplated by this Agreement
is not exclusive; the Fund’s shares may be sold to other Participating Insurance
Companies (subject to Section 1.3) and the cash value of the Contracts may
be
invested in other investment companies.
1.6. In
the
event of net purchases, each Company shall pay for Fund shares by 3:00 p.m.
Eastern time on the next Business Day after an order to purchase Fund shares
is
received in accordance with the provisions of Section 1.1 hereof. Payment shall
be in federal funds transmitted by wire and/or by a credit for any shares
redeemed the same day as the purchase.
1.7. The
Fund
shall pay and transmit the proceeds of redemptions of Fund shares by 11:00
a.m.
Eastern Time on the next Business Day after a redemption order is received
in
accordance with Section 1.4 hereof; provided, however, that the Fund may delay
payment in extraordinary circumstances to the extent permitted under Section
22(e) of the 1940 Act. Payment shall be in federal funds transmitted by wire
and/or a credit for any shares purchased the same day as the
redemption.
Each
party has the right to rely on information or confirmations provided by the
other party (or by an affiliate of the other party), and shall not be liable
in
the event that an error is a result of any misinformation supplied by the other
party.
1.8. Issuance
and transfer of the Fund’s shares will be by book entry only. Stock certificates
will not be issued to the Company or the Accounts. Shares purchased from the
Fund will be recorded in an appropriate title for the relevant Account or the
relevant sub-account of an Account.
1.9. The
Fund
shall furnish same day notice (by electronic communication or telephone,
followed by electronic confirmation) to the Company of any income, dividends
or
capital gain distributions payable on a Portfolio’s shares. Each Company hereby
elects to receive all such income dividends and capital gain distributions
as
are payable on a Portfolio’s shares in additional shares of that Portfolio. Each
Company reserves the right to revoke this election and to receive all such
income dividends and capital gain distributions in cash. The Fund shall notify
the Company by the end of the next following Business Day of the number of
shares so issued as payment of such dividends and distributions.
1.10. The
Fund
shall make the net asset value per share for each Portfolio available to each
Company on each Business Day as soon as reasonably practicable after the net
asset value per share is calculated and shall use its best efforts to make
such
net asset value per share available by 6:00 p.m. Eastern time. In the event
of
an error in the computation of a Portfolio’s net asset value per share (åNAVæ)
or any dividend or capital gain distribution (each, a åpricing erroræ), the
Adviser or the Fund shall notify each Company as soon as possible after
discovery of the error. Such notification may be oral, but shall be confirmed
promptly in writing. A pricing error shall be corrected as follows: (a) if
the
pricing error results in a difference between the erroneous NAV and the correct
NAV of less than $0.01 per share, then no corrective action need be taken;
and
(b) if the pricing error results in a difference between the erroneous NAV
and
the correct NAV equal to or greater than $0.01 per share, then the Adviser
shall
reimburse the Portfolio for any loss, after taking into consideration any
positive effect of such error and shall reimburse the Company for the costs
of
adjustments made to correct Contract owner accounts. Upon notification by the
Adviser of any overpayment due to a material error, each Company shall promptly
remit to the Adviser any overpayment that has not been paid to Contract owners.
In no event shall the Company be liable to Contract owners for any such
adjustments or underpayment amounts. Only a pricing error within category (b)
above shall be deemed to be åmaterially incorrectæ or constitute a åmaterial
erroræ for purposes of this Agreement. The standards set forth in this Section
1.10 are based on the parties’ understanding of the views expressed by the staff
of the SEC as of the date of this Agreement. In the event the views of the
SEC
staff are later modified or superseded by SEC or judicial interpretation, the
parties shall amend the foregoing provisions of this Agreement to comport with
the appropriate applicable standards, on terms mutually satisfactory to all
parties.
1.11. The
parties agree to mutually cooperate with respect to any state insurance law
restriction or requirement applicable to the Fund’s investments; provided,
however, that the Fund reserves the right not to implement restrictions or
take
other actions required by state insurance law if the Fund or the Adviser
determines that the implementation of the restriction or other action is not
in
the best interest of Fund shareholders.
| ARTICLE II. |
Representations
and Warranties
|
2.1. Each
Company represents and warrants that: (a) Contracts or interests in the Accounts
are or will be registered under the 1933 Act, or are not so registered in proper
reliance upon an exemption from such registration requirements (in the event
the
Company of the Account relies upon an exemption from such registration
requirements, the Company undertakes to promptly so notify the Fund); (b) the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws; and (c) the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements.
2.2. Each
Company represents and warrants that: (a) it is an insurance company duly
organized and in good standing under applicable law; (b) it has legally and
validly established each Account prior to any issuance or sale of units thereof
as a segregated asset account under Delaware and New York law, as applicable;
and (c) it has registered each Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a segregated investment account
for the Contracts and will maintain such registration for so long as any
Contracts are outstanding as required by applicable law or, alternatively,
the
Company has not registered one or more Accounts in proper reliance upon an
exclusion from such registration requirements.
2.3. The
Fund
represents and warrants that: (a) the Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act; (b) the Fund shares sold
pursuant to this Agreement shall be duly authorized for issuance and sold in
compliance with all applicable state and federal securities laws including
without limitation the 1933 Act, the 1934 Act, and the 1940 Act; (c) the Fund
is
and shall remain registered under the 1940 Act; and (d) the Fund shall amend
the
registration statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares.
2.4. The
Fund
currently does not intend to make any payments to finance distribution expenses
pursuant to Rule 12b-1 under the 1940 Act, although it may make such payments
in
the future subject to applicable law and after providing notice to the Company.
2.5. The
Fund
represents and warrants that it shall register and qualify the shares for sale
in accordance with the laws of the various states if and to the extent required
by applicable law.
2.6. The
Fund
represents and warrants that it is lawfully organized and validly existing
under
the laws of the State of Delaware and that it does and will comply in all
material respects with the 1940 Act.
2.7. The
Fund
makes no representation as to whether any aspect of its operations (including,
but not limited to, fees and expenses and investment policies) complies with
the
insurance laws or regulations of the various states.
2.8. The
Adviser represents and warrants that it is and shall remain duly registered
under all applicable federal and state securities laws and that it shall perform
its obligations for the Fund in compliance in all material respects with any
applicable state and federal securities laws.
2.9. The
Distributor represents and warrants that it is and shall remain duly registered
as a broker-dealer under all applicable federal and state securities laws and
is
a member in good standing with the NASD, and that it shall perform its
obligations for the Fund in compliance in all material respects with the laws
of
any applicable state and federal securities laws.
2.10. The
Fund
and the Adviser represent and warrant that all of their respective officers,
employees, investment advisers, and other individuals or entities dealing with
the money and/or securities of the Fund are, and shall continue to be at all
times, covered by one or more blanket fidelity bonds or similar coverage for
the
benefit of the Fund in an amount not less than the minimal coverage required
by
Rule 17g-1 under the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bonds shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11. The
Fund
and the Adviser represent and warrant that they will provide the Company with
as
much advance notice as is reasonably practicable of any material change
affecting the Portfolios (including, but not limited to, any material change
in
the registration statement or prospectus affecting the Portfolios) and any
proxy
solicitation affecting the Portfolios and consult with the Company in order
to
implement any such change in an orderly manner, recognizing the expenses of
changes and attempting to minimize such expense by implementing them in
conjunction with regular annual updates of the prospectus for the Contracts
where reasonably practicable.
2.12. Each
Company represents and warrants, for purposes other than diversification under
Section 817 of the Internal Revenue Code of 1986 as amended (the åCodeæ), that
the Contracts are currently and at the time of issuance will be treated as
annuity contracts or life insurance policies under applicable provisions of
the
Code, and that it will make every effort to maintain such treatment and that
it
will notify the Fund, the Distributor and the Adviser immediately upon having
a
reasonable basis for believing that the Contracts have ceased to be so treated
or that they might not be so treated in the future. In addition, each Company
represents and warrants that each Account is a åsegregated asset accountæ and
that interests in each Account are offered exclusively through the purchase
of
or transfer into a åvariable contractæ within the meaning of such terms under
Section 817 of the Code and the regulations thereunder. Each Company will use
every effort to continue to meet such definitional requirements, and it will
notify the Fund, the Distributor and the Adviser immediately upon having a
reasonable basis for believing that such requirements have ceased to be met
or
that they might not be met in the future. Each Company represents and warrants
that it will not purchase Fund shares with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in connection
with such plans.
2.13. Each
Company represents and warrants that it is currently in compliance, and will
remain in compliance, with all applicable anti-money laundering laws,
regulations, and requirements. In addition, each Company represents and warrants
that it has adopted and implemented policies and procedures reasonably designed
to achieve compliance with the applicable requirements administered by the
Office of Foreign Assets Control (åOFACæ) of the U.S. Department of the
Treasury.
2.14. Each
Company represents and warrants that it is currently in compliance, and will
remain in compliance, with all applicable laws, rules and regulations relating
to consumer privacy, including, but not limited to, Regulation S-P.
2.15. Each
Company represents and warrants that it has adopted, and will at all times
during the term of this Agreement maintain, reasonable and appropriate
procedures (åLate Trading Proceduresæ) reasonably designed to ensure that any
and all orders relating to the purchase, sale or exchange of Fund shares
communicated to the Fund to be treated in accordance with Article I of this
Agreement as having been received on a Business Day, have been received by
the
Valuation Time on such Business Day and were not modified after the Valuation
Time, and that all orders received from Contract owners but not rescinded by
the
Valuation Time were communicated to the Fund or its agent as received for that
Business Day. Each Company represents and warrants that it has adopted and
implemented controls reasonably designed to ensure that all orders received
by
the Company after the close of the New York Stock Exchange on a particular
Business Day will not be aggregated with orders received by the Company before
the close of the New York Stock Exchange on such Business Day. åValuation Timeæ
shall mean the time as of which the Fund calculates net asset value for the
shares of the Portfolios on the relevant Business Day.
2.16. Each
transmission of orders by a Company shall constitute a representation by the
Company that such orders are accurate and complete and relate to orders received
by the Company by the Valuation Time on the Business Day for which the order
is
to be priced and that such transmission includes all orders relating to Fund
shares received from Contract owners but not rescinded by the Valuation Time.
Each Company agrees to provide the Fund or its designee with a copy of the
Late
Trading Procedures and such certifications and representations regarding the
Late Trading Procedures as the Fund or its designee may reasonably request.
Each
Company will promptly notify the Fund in writing of any material change to
the
Late Trading Procedures.
2.17 Each
Company agrees to cooperate fully with any and all efforts by the Fund to assure
the Fund that the Company has implemented effective compliance policies and
procedures administered by qualified personnel as required by and in accordance
with any and all applicable laws, rules and regulations.
2.18 Each
party represents that the execution and delivery of this Agreement and the
consummation of the transactions contemplated herein have been duly authorized
by all necessary corporate or board action, as applicable, by such party and
when so executed and delivered this Agreement will be the valid and binding
obligation of such party enforceable in accordance with its terms.
| ARTICLE III. |
Prospectuses
and Proxy Statements; Voting
|
3.1. At
least
annually, the Adviser or Distributor shall provide each Company with as many
copies of the Fund’s current prospectus as the Company may reasonably request,
with expenses to be borne in accordance with Schedule
C
hereof.
If requested by a Company in lieu thereof, the Adviser, Distributor or Fund
shall provide such documentation (including an electronic version of the current
prospectus) and other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the prospectus for the Fund is
amended) to have the prospectus for the Contracts and the prospectus for the
Fund printed together in one document.
3.2. If
applicable state or federal laws or regulations require that the Statement
of
Additional Information (åSAIæ) for the Fund be distributed to all Contract
owners, then the Fund, Distributor and/or the Adviser shall provide the Company
with copies of the Fund’s SAI in such quantities, with expenses to be borne in
accordance with Schedule
C
hereof,
as the Company may reasonably require to permit timely distribution thereof
to
Contract owners. The Adviser, Distributor and/or the Fund shall also provide
an
SAI to any Contract owner or prospective owner who requests such SAI from the
Fund.
3.3. The
Fund,
Distributor and/or Adviser shall provide each Company with copies of the Fund’s
proxy materials, reports to shareholders and other communications to
shareholders in such quantity, with expenses to be borne in accordance with
Schedule
C
hereof,
as the Company may reasonably require to permit timely distribution thereof
to
Contract owners.
3.4. It
is
understood and agreed that, except with respect to information regarding a
Company provided in writing by that party, the Company shall not be responsible
for the content of the prospectus or SAI for the Fund. It is also understood
and
agreed that, except with respect to information regarding the Fund, the
Distributor, the Adviser or the Portfolios provided in writing by the Fund,
the
Distributor or the Adviser, neither the Fund, the Distributor nor Adviser are
responsible for the content of the prospectus or SAI for the
Contracts.
3.5. If
and to
the extent required by law each Company shall:
(a) solicit
voting instructions from Contract owners;
(b) vote
the
Portfolio shares held in the Accounts in accordance with instructions received
from Contract owners;
(c) vote
Portfolio shares held in the Accounts for which no instructions have been
received in the same proportion as Portfolio shares for which instructions
have
been received from Contract owners, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require pass-through voting privileges
for variable contract owners; and
(d) vote
Portfolio shares held in its general account or otherwise in the same proportion
as Portfolio shares for which instructions have been received from Contract
owners, so long as and to the extent that the SEC continues to interpret the
1940 Act to require such voting by the insurance company. The Company reserves
the right to vote Fund shares in its own right, to the extent permitted by
law.
3.6. Each
Company shall be responsible for assuring that each of its separate accounts
holding shares of a Portfolio calculates voting privileges as directed by the
Fund and agreed to by the Company and the Fund. The Fund agrees to promptly
notify the Company of any changes of interpretations or amendments of the Mixed
and Shared Funding Exemptive Order.
3.7. The
Fund
will comply with all provisions of the 1940 Act requiring voting by
shareholders. Further, the Fund will act in accordance with the SEC’s
interpretation of the requirements of Section 16(a) with respect to periodic
elections of directors or trustees and with whatever rules the SEC may
promulgate with respect thereto.
| ARTICLE IV. |
Sales
Material and Information
|
4.1. Each
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee, a copy of each piece of sales literature or other promotional material
that the Company develops or proposes to use and in which the Fund (or Portfolio
thereof), the Adviser or the Distributor is named in connection with the
Contracts, at least ten (10) business days prior to its use. No such material
shall be used if the Fund objects to such use within five (5) business days
after receipt of such material.
4.2. Neither
Company shall not give any information or make any representations or statements
on behalf of the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration statement,
including the prospectus or SAI for the Fund shares, as the same may be amended
or supplemented from time to time, or in sales literature or other promotional
material approved by the Fund, Distributor or Adviser, except with the
permission of the Fund, Distributor or Adviser.
4.3. The
Fund,
the Adviser or the Distributor shall furnish, or shall cause to be furnished,
to
each Company, a copy of each piece of sales literature or other promotional
material in which the Company and/or its Accounts are named at least ten (10)
business days prior to its use. No such material shall be used if the Company
objects to such use within five (5) business days after receipt of such
material.
4.4. The
Fund,
the Distributor and the Adviser shall not give any information or make any
representations on behalf of either Company or concerning a Company, the
Accounts, or the Contracts other than the information or representations
contained in a registration statement, including the prospectus or SAI for
the
Contracts, as the same may be amended or supplemented from time to time, or
in
sales literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5. For
purposes of Articles IV and VIII, the phrase åsales literature and other
promotional materialæ includes, but is not limited to, advertisements (such as
material published, or designed for use in, a newspaper, magazine, or other
periodical, radio, television, telephone or tape recording, videotape display,
signs or billboards, motion pictures, or other public media; e.g.,
on-line
networks such as the Internet or other electronic media), sales literature
(i.e.,
any
written communication distributed or made generally available to customers
or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training materials
or
other communications distributed or made generally available to some or all
agents or employees, and shareholder reports, and proxy materials (including
solicitations for voting instructions) and any other material constituting
sales
literature or advertising under the NASD rules, the 1933 Act or the ▇▇▇▇
▇▇▇.
4.6. At
the
request of any party to this Agreement, each other party will make available
to
the other party’s independent auditors and/or representatives of the appropriate
regulatory agencies, all records, data and access to operating procedures that
may be reasonably requested in connection with compliance and regulatory
requirements related to this Agreement or any party’s obligations under this
Agreement.
| ARTICLE V. |
Fees
and Expenses
|
5.1. The
Fund,
the Distributor and the Adviser shall pay no fee or other compensation to either
Company under this Agreement, and neither Company shall pay a fee or other
compensation to the Fund, the Distributor or Adviser under this Agreement;
provided, however, (a) the parties will bear their own expenses as reflected
in
Schedule
C
and
other provisions of this Agreement, and (b) the parties may enter into other
agreements relating to a Company’s investment in the Fund, including services
agreements.
Each
Party agrees to cooperate with the others, as applicable, in arranging to print,
mail and/or deliver, in a timely manner, combined or coordinated prospectuses
or
other materials of the Portfolio and the Accounts.
| ARTICLE VI. |
Diversification
and Qualification
|
6.1. The
Fund,
Distributor and Adviser represent and warrant that the 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, upon request, provide to the Company
a quarterly written diversification report, 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 817(h) diversification
requirement.
6.2. The
Fund,
the Distributor and 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. However, it is understood by each Company that the Fund may
sell
shares of any Portfolio to any person eligible to invest in that Portfolio
in
accordance with applicable provisions of Section 817(h) under the Code and
the regulations thereunder, and that if such provisions are not applicable,
then
the Fund may sell shares of any Portfolio to any person, including members
of
the general public.
6.3. The
Fund,
the 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 the Code, and that each Portfolio will maintain such
qualification (under Subchapter M or any successor or similar provisions) as
long as this Agreement is in effect.
6.4. Each
Company agrees that if the Internal Revenue Service (åIRSæ) asserts in writing
in connection with any governmental audit or review of a 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, Distributor or 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) 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 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 the Fund, the Distributor and the
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 Fund, 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 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 in complying with
this clause (f).
| ARTICLE VII. |
Potential
Conflicts and Compliance With Mixed and Shared Funding Exemptive
Order
|
7.1. The
Board
of Trustees of the Fund (the åBoardæ) will monitor the Fund for the existence of
any material irreconcilable conflict between the interests of the Contract
owners of all separate accounts investing in the Fund. An irreconcilable
material conflict may arise for a variety of reasons, including: (a) an action
by any state insurance regulatory authority; (b) a change in applicable federal
or state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar action
by insurance, tax, or securities regulatory authorities; (c) an administrative
or judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio is being managed; (e) a difference in voting
instructions given by variable annuity contract and variable life insurance
contract owners or by contract owners of different Participating Insurance
Companies; or (f) a decision by a Participating Insurance Company to disregard
the voting instructions of Contract owners. The Board shall promptly inform
a
Company if it determines that an irreconcilable material conflict exists and
the
implications thereof.
7.2. Each
Company will report any potential or existing conflicts of which it is aware
to
the Board. Each Company will assist the Board in carrying out its
responsibilities under the Mixed and Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board
to
consider any issues raised. This includes, but is not limited to, an obligation
by a Company to inform the Board whenever Contract owner voting instructions
are
to be disregarded. Such responsibilities shall be carried out by the Company
with a view only to the interests of its Contract owners.
7.3. If
it is
determined by a majority of the Board, or a majority of its directors who are
not interested persons of the Fund, the Distributor, the Adviser or any
subadviser to any of the Portfolios (the åIndependent Directorsæ), that a
material irreconcilable conflict exists, the Company and other Participating
Insurance Companies shall, at their expense and to the extent reasonably
practicable (as determined by a majority of the Independent Directors), take
whatever steps are necessary to remedy or eliminate the irreconcilable material
conflict, up to and including: (1) withdrawing the assets allocable to some
or
all of the separate accounts from the Fund or any Portfolio and reinvesting
such
assets in a different investment medium, including (but not limited to) another
Portfolio, or submitting the question whether such segregation should be
implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e.,
annuity
contract owners, life insurance contract owners, or variable contract owners
of
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected contract owners the option of making
such a change; and (2) establishing a new registered management investment
company or managed separate account.
7.4. If
a
material irreconcilable conflict arises because of a decision by either Company
to disregard Contract owner voting instructions and that decision represents
a
minority position or would preclude a majority vote, the Company may be
required, at the Fund’s election, to withdraw the Account’s investment in the
Fund and terminate this Agreement; provided, however, that such withdrawal
and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the Independent
Directors. Any such withdrawal and termination must take place within six (6)
months after the Fund gives written notice that this provision is being
implemented, and until the end of that six-month period the Adviser, the
Distributor and the Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund, subject to
the
terms of the Fund’s then-current prospectus.
7.5. If
a
material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to a Company conflicts with the majority of
other state regulators, then the Company will withdraw the Account’s investment
in the Fund and terminate this Agreement within six months after the Board
informs the Company in writing that it has determined that such decision has
created an irreconcilable material conflict; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
Independent Directors. Until the end of the foregoing six-month period, the
Fund
shall continue to accept and implement orders by the Company for the purchase
(and redemption) of shares of the Fund, subject to the terms of the Fund’s
then-current prospectus.
7.6. For
purposes of Sections 7.3 through 7.5 of this Agreement, a majority of the
Independent Directors shall determine whether any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the Fund
be
required to establish a new funding medium for the Contracts. Neither Company
shall be required by Section 7.3 to establish a new funding medium for the
Contracts if an offer to do so has been declined by vote of a majority of
Contract owners affected by the irreconcilable material conflict. In the event
that the Board determines that any proposed action does not adequately remedy
any irreconcilable material conflict, then the Company will withdraw the
Account’s investment in the Fund and terminate this Agreement within six (6)
months after the Board informs the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall
be
limited to the extent required by any such material irreconcilable conflict
as
determined by a majority of the Independent Directors.
7.7. If
and to
the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted,
to provide exemptive relief from any provision of the 1940 Act or the rules
promulgated thereunder with respect to mixed or shared funding (as defined
in
the Mixed and Shared Funding Exemptive Order) on terms and conditions materially
different from those contained in the Mixed and Shared Funding Exemptive Order,
then (a) the Fund and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable:
and (b) Sections 3.5, 3.6, 3.7, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement
shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
| ARTICLE VIII. |
Indemnification
|
8.1. Indemnification
by each Company
(a) Each
Company agrees to indemnify and hold harmless the Fund, the Distributor and
the
Adviser and each of their respective officers and directors or trustees and
each
person, if any, who controls the Fund, Distributor or Adviser within the meaning
of Section 15 of the 1933 Act (collectively, the åIndemnified Partiesæ for
purposes of this Section 8.1) against any and all losses, claims, expenses,
damages and liabilities (including amounts paid in settlement with the written
consent of the Company) or litigation (including reasonable legal and other
expenses) to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
expenses, damages or liabilities (or actions in respect thereof) or settlements
are related to the sale or acquisition of the Fund’s shares or the Contracts
and:
(i) arise
out
of or are based upon any untrue statements or alleged untrue statements of
any
material fact contained in the registration statement or prospectus or SAI
covering the Contracts or contained in the Contracts or sales literature or
other promotional material for the Contracts (or any amendment or supplement
to
any of the foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, provided
that
this Agreement to indemnify shall not apply as to any Indemnified Party if
such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Company
by
or on behalf of the Fund for use in the registration statement or prospectus
for
the Contracts or in the Contracts or sales literature or other promotional
material (or any amendment or supplement to any of the foregoing) or otherwise
for use in connection with the sale of the Contracts or Fund shares;
or
(ii) arise
out
of or as a result of statements or representations (other than statements or
representations contained in the registration statement, prospectus or sales
literature or other promotional material of the Fund not supplied by the Company
or persons under its control) or wrongful conduct of the Company or persons
under its control, with respect to the sale or distribution of the Contracts
or
Fund Shares; or
(iii) arise
out
of any untrue statement or alleged untrue statement of a material fact contained
in a registration statement, prospectus, SAI, or sales literature or other
promotional material of the Fund, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, if such a statement or omission was made in reliance upon
information furnished in writing to the Fund by or on behalf of the Company;
or
(iv) arise
as
a result of any failure by the Company to provide the services and furnish
the
materials under the terms of this Agreement; or
(v) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Company in this Agreement or arise out of or result from any other
material breach of this Agreement by the Company, including without limitation
Section 2.12 and Section 6.4 hereof,
as
limited by and in accordance with the provisions of Sections 8.1(b) and 8.1(c)
hereof.
(b) Neither
Company shall be liable under this indemnification provision with respect to
any
losses, claims, expenses, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party’s willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party’s duties or by reason of such Indemnified Party’s
reckless disregard of obligations or duties under this Agreement.
(c) Neither
Company shall be liable under this indemnification provision with respect to
any
claim made against an Indemnified Party unless such Indemnified Party shall
have
notified the Company in writing within a reasonable time after the summons
or
other first legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but failure
to notify the Company of any such claim shall not relieve the Company from
any
liability which it may have to the Indemnified Party against whom such action
is
brought otherwise than on account of this indemnification provision, except
to
the extent that the Company has been prejudiced by such failure to give notice.
In case any such action is brought against the Indemnified Parties, the Company
shall be entitled to participate, at its own expense, in the defense of such
action. The Company also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from the
Company to such party of the Company’s election to assume the defense thereof,
the Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs
of investigation.
(d) The
Indemnified Parties will promptly notify a Company of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or
other
similar order with respect to the Fund’s registration statement under the
1933 Act or prospectus, (ii) any request by the SEC for any amendment
to such registration statement or prospectus that may affect the offering of
shares of the Fund, (iii) the initiation of any litigation or proceedings
for that purpose or for any other purpose relating to the registration or
offering of the Fund’s shares, of (iv) any other action or circumstances
that may prevent the lawful offer or sale of shares of any Fund in any state
or
jurisdiction, including, without limitation, any circumstances in which
(a) such shares are not registered and, in all material respects, issued
and sold in accordance with applicable state and federal law, or (b) such
law precludes the use of such shares as an underlying investment medium of
the
Contracts issued or to be issued by the Company. The Fund and Adviser will
make
every reasonable effort to prevent the issuance, with respect to any Fund,
of
any such stop order, cease and desist order or similar order and, if any such
order is issued, to obtain the lifting thereof at the earliest possible time.
8.2. Indemnification
by the Adviser
(a) The
Adviser agrees to indemnify and hold harmless each Company and its directors
and
officers and each person, if any, who controls the Company within the meaning
of
Section 15 of the 1933 Act (collectively, the åIndemnified Partiesæ for purposes
of this Section 8.2) against any and all losses, claims, expenses, damages,
liabilities (including amounts paid in settlement with the written consent
of
the Adviser) or litigation (including reasonable legal and other expenses)
to
which the Indemnified Parties may become subject under any statute or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the Portfolios or the Contracts
and:
(i) arise
out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or prospectus or SAI
or
sales literature or other promotional material of the Fund prepared by the
Fund,
the Distributor or the Adviser (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided
that
this Agreement to indemnify shall not apply as to any Indemnified Party if
such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Adviser,
the
Distributor or the Fund by or on behalf of the Company for use in the
registration statement, prospectus or SAI for the Fund or in sales literature
or
other promotional material (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the Contracts
or
the Portfolios; or
(ii) arise
out
of or as a result of statements or representations (other than statements or
representations contained in the registration statement, prospectus, SAI or
sales literature or other promotional material for the Contracts not supplied
by
the Adviser or persons under its control) or wrongful conduct of the Fund,
the
Distributor or the Adviser or persons under their control, with respect to
the
sale or distribution of the Contracts or Portfolios; or
(iii) arise
out
of any untrue statement or alleged untrue statement of a material fact contained
in a registration statement, prospectus, SAI, or sales literature or other
promotional material covering the Contracts, or any amendment thereof or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or omission was made
in
reliance upon information furnished in writing to the Company by or on behalf
of
the Adviser, the Distributor or the Fund; or
(iv) arise
as
a result of any failure by the Fund, the Distributor or the Adviser to provide
the services and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or otherwise,
to
comply with the diversification and other qualification requirements specified
in Article VI of this Agreement); or
(v) arise
out
of or result from any material breach of any representation and/or warranty
made
by the Fund, the Distributor or the Adviser in this Agreement or arise out
of or
result from any other material breach of this Agreement by the Adviser, the
Distributor or the Fund; or
(vi) arise
out
of or result from the incorrect or untimely calculation or reporting by the
Fund, the Distributor or the Adviser of the daily net asset value per share
(subject to Section 1.10 of this Agreement) or dividend or capital gain
distribution rate;
as
limited by and in accordance with the provisions of Sections 8.2(b) and 8.2(c)
hereof. This indemnification is in addition to and apart from the
responsibilities and obligations of the Adviser specified in Article VI
hereof.
(b) The
Adviser shall not be liable under this indemnification provision with respect
to
any losses, claims, expenses, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such Indemnified
Party’s willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party’s duties or by reason of such Indemnified Party’s
reckless disregard of obligations or duties under this Agreement.
(c) The
Adviser shall not be liable under this indemnification provision with respect
to
any claim made against an Indemnified Party unless such Indemnified Party shall
have notified the Adviser in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the claim
shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but failure
to notify the Adviser of any such claim shall not relieve the Adviser from
any
liability which it may have to the Indemnified Party against whom such action
is
brought otherwise than on account of this indemnification provision, except
to
the extent that the Adviser has been prejudiced by such failure to give notice.
In case any such action is brought against the Indemnified Parties, the Adviser
will be entitled to participate, at its own expense, in the defense thereof.
The
Adviser also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Adviser
to
such party of the Adviser’s election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Adviser will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs
of investigation.
2
(d) Each
Company and its broker-dealer subsidiary agree promptly to notify the Fund,
the
Distributor or the Adviser (i) the issuance by any court or regulatory body
of any stop order, cease and desist order, or other similar order with respect
to each Account relating to the Contracts, (ii) any request by the SEC for
any amendment to the registration statement or Account prospectus that may
affect the offering of shares of the Fund, (iii) the initiation of any
litigation or proceedings against it or any of its officers or directors in
connection with the issuance or sale of the Contracts or the operation of the
Account for that purpose or for any other purpose relating to the registration
or offering of each Account’s interests pursuant to the Contracts, or
(iv) any other action or circumstances that may prevent the lawful offer or
sale of said interests in any state or jurisdiction, including, without
limitation, any circumstances in which said interests are not registered and,
in
all material respects, issued and sold in accordance with applicable state
and
federal law. The Company will make every reasonable effort to prevent the
issuance of any such stop order, cease and desist order or similar order and,
if
any such order is issued, to obtain the lifting thereof at the earliest possible
time.
| ARTICLE IX. |
Applicable
Law
|
9.1. This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of the Commonwealth of Massachusetts, without regard
to
conflict of laws provisions.
9.2. This
Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts,
and the rules and regulations and rulings thereunder, including such exemptions
from those statutes, rules and regulations as the SEC may grant (including,
but
not limited to, the Mixed and Shared Funding Exemptive Order) and the terms
hereof shall be interpreted and construed in accordance therewith.
| ARTICLE X. |
Termination
|
10.1. This
Agreement shall terminate:
(a) at
the
option of any party, with or without cause, with respect to some or all
Portfolios, upon sixty (60) days advance written notice delivered to the other
parties; or
(b) at
the
option of a Company by written notice to the other parties with respect to
any
Portfolio based upon the Company’s determination that shares of such Portfolio
are not reasonably available to meet the requirements of the Contracts;
or
(c) at
the
option of a Company by written notice to the other parties with respect to
any
Portfolio in the event any of the Portfolio’s shares are not registered, issued
or sold in accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment media of the
Contracts issued or to be issued by the Company; or
(d) at
the
option of the Fund, Distributor or Adviser in the event that formal
administrative proceedings are instituted against the Company by the NASD,
the
SEC, the Insurance Commissioner or like official of any state or any other
regulatory body regarding the Company’s duties under this Agreement or related
to the sale of the Contracts, the operation of any Account, or the purchase
of
the Fund shares, if, in each case, the Fund, Distributor or Adviser, as the
case
may be, reasonably determines in its sole judgment exercised in good faith,
that
any such administrative proceedings will have a material adverse effect upon
the
ability of the Company to perform its obligations under this Agreement;
or
(e) at
the
option of a Company in the event that formal administrative proceedings are
instituted against the Fund, the Distributor or the Adviser by the NASD, the
SEC, or any state securities or insurance department or any other regulatory
body, if the Company reasonably determines in its sole judgment exercised in
good faith, that any such administrative proceedings will have a material
adverse effect upon the ability of the Fund, the Distributor or the Adviser
to
perform their obligations under this Agreement; or
(f) At
the
option of a Company by written notice to the Fund, the Adviser and the
Distributor, in the event that any Portfolio (i) ceases to qualify, or the
Company reasonably believes such Portfolio may fail to so qualify, as a
Regulated Investment Company under Subchapter M or (ii) fails to comply with
the
Section 817(h) diversification requirements specified in Article VI hereof;
or
(g) at
the
option of any non-defaulting party hereto in the event of a material breach
of
this Agreement by any party hereto (the ådefaulting partyæ) other than as
described in Section 10.1(a)-(h); provided, that the non-defaulting party gives
written notice thereof to the defaulting party, with copies of such notice
to
all other non-defaulting parties, and if such breach shall not have been
remedied within thirty (30) days after such written notice is given, then the
non-defaulting party giving such written notice may terminate this Agreement
by
giving thirty (30) days written notice of termination to the defaulting party;
or
(h) at
any
time upon written agreement of all parties to this Agreement.
10.2. Notice
Requirement
No
termination of this Agreement shall be effective unless and until the party
terminating this Agreement gives prior written notice to all other parties
of
its intent to terminate, which notice shall set forth the basis for the
termination. Furthermore,
(a) in
the
event any termination is based upon the provisions of Article VII, or the
provisions of Section 10.1(a) of this Agreement, the prior written notice shall
be given in advance of the effective date of termination as required by those
provisions unless such notice period is shortened by mutual written agreement
of
the parties;
(b) in
the
event any termination is based upon the provisions of Section 10.1(d), 10.1(e)
or 10.1(g) of this Agreement, the prior written notice shall be given at least
sixty (60) days before the effective date of termination; and
(c) in
the
event any termination is based upon the provisions of Section 10.1(b), 10.1(c)
or 10.1(f), the prior written notice shall be given in advance of the effective
date of termination, which date shall be determined by the party sending the
notice.
10.3. Effect
of Termination
Notwithstanding
any termination of this Agreement, other than as a result of a failure by either
the Fund or the Company to meet Section 817(h) of the Code diversification
requirements, the Fund, the Distributor and the Adviser shall, at the option
of
the Company, continue to make available additional shares of the Fund pursuant
to the terms and conditions of this Agreement, for all Contracts in effect
on
the effective date of termination of this Agreement (hereinafter referred to
as
åExisting Contractsæ). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate investments in the Fund,
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 10.3 shall not apply to any terminations under Article VII
and
the effect of such Article VII terminations shall be governed by Article VII
of
this Agreement.
10.4. Surviving
Provisions
Notwithstanding
any termination of this Agreement, each party’s obligations under Article VIII
to indemnify other parties shall survive and not be affected by any termination
of this Agreement. In addition, with respect to Existing Contracts, all
provisions of this Agreement shall also survive and not be affected by any
termination of this Agreement.
| ARTICLE XI. |
Notices
|
Any
notice shall be sufficiently given when sent by registered or certified mail
to
the other party at the address of such party set forth below or at such other
address as such party may from time to time specify in writing to the other
parties.
If
to Sun
Life Assurance Company of Canada (U.S.):
One
Sun Life Executive ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
General Counsel
If
to Sun
Life Insurance and Annuity Company of New York:
One
Sun Life Executive Park
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Attention:
General Counsel
If
to
Independence Life and Annuity Company:
One
Sun Life Executive Park
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▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
General Counsel
If
to the
Fund:
Columbia
Funds Variable Trust I
Attention:
Secretary
If
to the
Adviser:
Columbia
Management Advisors, LLC
▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Secretary
If
to the
Distributor:
Columbia
Management Distributors, Inc.
▇▇▇
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▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
Secretary
| ARTICLE XII. |
Miscellaneous
|
12.1. Subject
to the requirements of legal process and regulatory authority, each party hereto
shall treat as confidential the names and addresses of the owners of the
Contracts and all information reasonably identified as confidential in writing
by any other party hereto and, except as permitted by this Agreement, shall
not
disclose, disseminate or utilize such names and addresses and other confidential
information without the express written consent of the affected party until
such
time as such information may come into the public domain. Without limiting
the
foregoing, no party hereto shall disclose any information that another party
has
designated as proprietary.
12.2. The
captions in this Agreement are included for convenience of reference only and
in
no way define or delineate any of the provisions hereof or otherwise affect
their construction or effect.
12.3. This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
12.4. If
any
provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be affected
thereby.
12.5. Each
party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the NASD and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
12.6. Any
controversy or claim arising out of or relating to this Agreement, or breach
thereof, shall be settled by arbitration in a forum jointly selected by the
relevant parties (but if applicable law requires some other forum, then such
other forum) in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
12.7. The
rights, remedies and obligations contained in this Agreement are cumulative
and
are in addition to any and all rights, remedies and obligations, at law or
in
equity, which the parties hereto are entitled to under state and federal
laws.
12.8. This
Agreement or any of the rights and obligations hereunder may not be assigned
by
any party without the prior written consent of all parties hereto, which shall
not be unreasonably withheld.
12.9. Each
Company agrees that the obligations assumed by the Fund, Distributor and the
Adviser pursuant to this Agreement shall be limited in any case to the Fund,
Distributor and Adviser and their respective assets and the Company shall not
seek satisfaction of any such obligation from the shareholders of the Fund,
Distributor or the Adviser, the Directors, officers, employees or agents of
the
Fund, Distributor or Adviser, or any of them.
12.10. The
Fund,
the Distributor and the Adviser agree that the obligations assumed by the
Company pursuant to this Agreement shall be limited in any case to the relevant
Company and its assets and neither the Fund, Distributor nor Adviser shall
seek
satisfaction of any such obligation from the shareholders of the Company, the
directors, officers, employees or agents of the Company, or any of
them.
12.11. No
provision of this Agreement may be deemed or construed to modify or supersede
any contractual rights, duties, or indemnifications, as between the Adviser
and
the Fund, and the Distributor and the Fund.
IN
WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative
and
its seal to be hereunder affixed hereto as of the date specified
below.
SUN
LIFE
ASSURANCE COMPANY OF CANADA (U.S.)
By
its
authorized officer,
By:
Name:
Title:
By
its
authorized officer,
By:
Name:
Title:
SUN
LIFE
INSURANCE AND ANNUITY COMPANY OF NEW YORK
By
its
authorized officer,
By:
Name:
Title:
By
its
authorized officer,
By:
Name:
Title:
INDEPENDENCE
LIFE AND ANNUITY COMPANY
By
its
authorized officer,
By:
Name:
Title:
By
its
authorized officer,
By:
Name:
Title:
COLUMBIA
FUNDS VARIABLE INSURANCE TRUST I
By
its
authorized officer,
By:
Name:
Title:
COLUMBIA
MANAGEMENT ADVISORS, LLC
By
its
authorized officer,
By:
Name:
Title:
COLUMBIA
MANAGEMENT DISTRIBUTORS, INC.
By
its
authorized officer,
By:____________________________
Name:
Title:
2
SCHEDULE
A
SEPARATE
ACCOUNTS
Sun
Life
of Canada Separate Account F
Sun
Life
of Canada Separate Account G
Sun
Life
(N.Y.) Separate Account C
Sun
Life
(N.Y.) Separate Account J
Independence
Variable Life Separate Account
SCHEDULE
B
DESIGNATED
PORTFOLIO(S)
Columbia
High Yield Fund
Columbia
▇▇▇▇▇▇▇ 21st
Century Portfolio
Columbia
▇▇▇▇▇▇▇ Growth Portfolio
Columbia
▇▇▇▇▇▇▇ International Opportunities Portfolio
SCHEDULE
C
EXPENSES
The
Fund
and/or the Distributor and/or Adviser, and each Company will coordinate the
functions and pay the costs of the completing these functions based upon an
allocation of costs in the tables below. Costs shall be allocated to reflect
the
Fund’s share of the total costs determined according to the number of pages of
the Fund’s respective portions of the documents.
|
Item
|
Function
|
Party
Responsible for Coordination
|
Party
Responsible for Expense
|
|
Mutual
Fund Prospectus
|
Electronic
copy of combined prospectuses made available
|
Company
|
Current
- Fund
Prospective
- Company
|
|
Distribution
(including postage) to Current
Clients
|
Company
|
Fund
|
|
|
Distribution
(including postage) to Prospective Clients
|
Company
|
Company
|
|
|
Product
Prospectus
|
Printing
and Distribution for Current and Prospective Clients
|
Company
|
Company
|
|
Mutual
Fund Prospectus Update & Distribution
|
Electronic
copy, if Required by Fund, Distributor or Adviser
|
Fund,
Distributor or Adviser
|
Fund,
Distributor or Adviser
|
|
If
Required by Company
|
Company
(Fund, Distributor or Adviser to provide Company with document in
PDF
format)
|
Company
|
|
|
Product
Prospectus Update & Distribution
|
If
Required by Fund, Distributor or Adviser
|
Company
|
Fund,
Distributor or Adviser
|
|
If
Required by Company
|
Company
|
Company
|
|
|
Mutual
Fund SAI
|
Printing
|
Fund,
Distributor or Adviser
|
Fund,
Distributor or Adviser
|
|
Distribution
(including postage)
|
Party
who receives the request
|
Party
who receives the request
|
|
|
Product
SAI
|
Printing
|
Company
|
Company
|
|
Distribution
|
Company
|
Company
|
|
|
Proxy
Material for Mutual Fund
|
Electronic
copy of proxy if required by Law
|
Fund,
Distributor or Adviser
|
Fund,
Distributor or Adviser
|
|
Distribution
(including labor) if proxy required by Law
|
Fund,
Distributor or Adviser
|
Fund,
Distributor or Adviser
|
|
|
Printing
& distribution if required by Company
|
Company
|
Company
|
|
|
Mutual
Fund Annual & Semi-Annual Report
|
Electronic
copy made available
|
Fund,
Distributor or Adviser
|
Fund,
Distributor or Adviser
|
|
Distribution
|
Fund,
Distributor or Adviser
|
Fund,
Distributor or Adviser
|
|
|
Operations
of the Accounts
|
Federal
registration of units of separate account (24f-2 fees)
|
Company
|
Company
|