EXHIBIT 8(a)
Fund Participation Agreement
----------------------------
This Agreement is entered into as of the 6th day of September, 1989, between
UNUM Life insurance company ("UNUM"), a life insurance company organized under
the laws of the State of Maine, and Dreyfus Life and Annuity Index Fund, Inc.
("Fund"), a corporation organized under the laws of the State of Maryland.
ARTICLE I
DEFINITIONS
1.1 "act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Directors of the Fund having the
responsibility for management and control of the Fund.
1.3 "Business Day": A day on which Unum and the New York Stock Exchange are
customarily open for business.
1.4 "Commission" Shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity contract or a variable life
insurance contract that uses the Fund as an underlying investment medium.
Individuals who participate under a Contract are Participants.
1.6 "Contractholder" shall mean any entity that is a party to a Contract with a
Participating Company.
1.7 "Disinterested Board Members" shall mean those members of the Board that
are not deemed to be "interested persons" of the Fund, as defined by the
Act.
1.8 "Dreyfus" shall mean the Dreyfus Corporation and its affiliates.
1.9 "Effective Date" shall mean the date the Fund's Registration Statement on
Form N-1A is declared effective by the Commission.
1.10 "Participating Companies" shall mean any insurance company (including
UNUM), which offers variable annuity and/or variable life insurance
contracts to the public and which has entered into an agreement with the
Fund similar hereto for the purpose of making Fund shares available to
serve as the underlying investment medium for the aforesaid Contracts.
1.11 "Separate Account" shall mean TSAVA Separate Account, a separate account
established by UNUM in accordance with the laws of the State of Maine.
1.12 "Software Program" shall mean the software program used by the fund for
providing Fund and account balance information including net asset value
per share. Such Program may include the Lion System. In situations where
the Lion System or any other Software Program used by the Fund is not
available, such information may be provided by telephone. The Lion System
shall be provided to UNUM at no charge.
1.13 "UNUM'S General Account(s)" shall mean the general account(s) of UNUM and
its affiliates which invest in the Fund.
ARTICLE II
REPRESENTATIONS
2.1 UNUM 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 the Separate Account pursuant to the Maine Insurance
Code for the purpose of offering the public certain group variable annuity
contracts; and (c) it has registered the Separate Account as a unit
investment trust under the Act to serve as the segregated investment
account for the Contracts.
2.2 UNUM represents an warrants that (a) the Contracts will be described in a
registration statement filed under the Securities Act of 1933 ("1993 Act");
(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 respects with state insurance law
requirements.
2.3 UNUM represents that the income, gains and losses, whether or not realized,
from assets allocated to the Separate Account are, in accordance with the
applicable Contracts, to be credited to or charged against such Separate
Account without regard to other income, gains or losses of UNUM.
2.4 Fund represents that the Fund is registered with the Commission under the
Act as an open-end, non-diversified management investment company and
possesses, and shall maintain, all legal and regulatory licenses,
approvals, consents and/or exemption required for Fund, to operate and
offer its shares as an underlying investment medium for Participating
Companies.
2.5 Fund represents that it is currently qualified as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code of 1986, as amended
(the "Code") and that it will make every effort to maintain such
qualification (under Subchapter M or any successor or similar provision)
and that it will notify UNUM immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify
in the future.
2.6 UNUM represents that the Contracts are currently treated as life insurance
policies or annuity contracts, under applicable provisions of the Code and
that it will make every effort to maintain such treatment and that it will
notify the Fund immediately upon having a reasonable basis for believing
that the Contracts have ceased to be so treated in that they might not be
so treated in the future.
2.7 Fund agrees that the Fund's assets shall be managed and invested in a
manner that complies with the requirements of Section 817 (h) of the Code.
2.8 Fund agrees to establish up to six accounts in the name of UNUM and its
affiliates and to make its shares available to such accounts. one account
shall represent investments by the Separate Account in the Fund. The other
accounts shall represent investments by UNUM'S General Accounts. The shares
shall be offered to the Separate Account and to UNUM'S General Account at
the net asset value of such shares.
2.9 UNUM and Fund agree that UNUM shall be permitted (subject to the other
terms of this Agreement) to utilize and employ other management investment
companies as underlying investment media for the Separate Account.
2.10 Fund represents and warrants that any of its directors, officers,
employees, investment advisers, and other individuals/entities who deal
with the money and/or securities of the Fund are and shall continue to be
at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Fund in an amount not less that that required by Rule 17g-1
under the Act. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.11 UNUM represents and warrants that all of its employees and agents who deal
with the money and/or securities of the Fund are and shall continue to be
at all times covered by a blanket fidelity bond or similar coverage in an
amount not less than the coverage required to be maintained by the Fund.
The aforesaid Bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.12 UNUM agrees that Dreyfus shall be deemed a third party beneficiary under
this Agreement and may enforce any and all rights conferred by virtue of
the agreement.
2.13 If UNUM issue variable life insurance policies through the Separate Account
or the Fund enter into a participation agreement with a Participating
Company (including UNUM) offering variable life insurance policies through
a separate account investing in the Fund, UNUM and the Fund will promptly
amend this Agreement to add any provisions, conditions or undertakings
required by an exemptive order under the Act on which the Fund is then
relying.
ARTICLE III
FUND SHARES
3.1 The Contracts funded through the Separate Account will provide for the
investment of certain amounts in the shares of the Fund.
3.2 Fund agrees to make its shares available for purchase at the applicable net
asset value per share by UNUM and the Separate Account on those days on
which the Fund calculates its net asset value pursuant to rules of the
Commission and the fund shall use all reasonable efforts to calculate such
net value on each Business Day. Notwithstanding the foregoing, the Fund may
refuse to sell its shares to any person, or suspend or terminate the
offering of the Fund's shares if such action is required by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board,
acting in good faith and in light of its fiduciary duties under federal law
and any applicable state laws, necessary and in the best interests of the
Fund's shareholders.
3.3 Fund agrees that shares will be sold only to Participating Companies and
their separate accounts and to the general accounts of those Participating
Companies and their affiliates. No Fund shares will be sold to the general
public.
3.4 Fund shall use its best efforts to provide closing net asset value,
dividend and capital gain information on a per-share and fund basis to UNUM
by 6:00 p.m. Eastern Time on each Business Day. Any material errors in the
calculation of net asset value, dividend and capital gain information shall
be reported immediately upon discovery to UNUM. Non-material error will be
corrected in the next Business Day's net asset value per share.
3.5 At the end of each Business Day, UNUM will use the information described in
Sections 3.2 and 3.4 to calculate the Separate Account unit values for the
day. Using this unit value, UNUM will process the day's Separate Account
transactions received by it by 4:00 p.m. Eastern time to determine the net
dollar amount of Fund shares which will be purchased or redeemed at the
day's closing net asset value per share. The net purchase or redemption
orders will be transmitted to the Fund by UNUM by 11:00 a.m. Eastern Time
on the Business Day next following UNUM'S receipt of that information.
Subject to SECTION 3.6, all purchase and redemption orders for UNUM'S
General
Accounts shall be effected at the net asset value per share next calculated
after receipt of the order by the Fund or its Transfer Agent.
3.6 Fund appoints UNUM as its agent for the limited purpose of accepting orders
for the purchase and redemption of Fund shares for the Separate Account.
Fund will execute orders at the net asset value per share determined as of
the close of trading on the day of receipt of such orders by UNUM acting as
agent ("effective trade date"), provided that the Fund receives notice of
such orders by 11;00 a.m. Eastern Time on the next following Business Day.
3.7 UNUM will make its best efforts to notify Fund in advance of any unusually
large purchase or redemption orders.
3.8 If UNUM'S order requests the purchase of Fund shares, Unum will pay for
such purchases by wiring federal Funds to fund or its designated custodial
account on the day the order is transmitted. If UNUM'S order requests the
redemption of Fund shares valued at less than $1 million dollars, the fund
will wire such amount to UNUM on the next business day following the day
the order is transmitted. If UNUM'S order requests the redemption of Fund
shares valued at or greater than $1 million dollars, the Fund will wire
such amount to UNUM within seven days of the order.
3.9 Fund has the obligation to ensure that Fund shares are registered with
applicable federal agencies at all times.
3.10 Fund will confirm each purchase or redemption order made by UNUM. Transfer
of Fund shares will be by book entry only. No stock certificates will be
issued to UNUM. UNUM will record shares ordered from Fund in an appropriate
title for the corresponding account.
3.11 Fund shall credit UNUM with the appropriate number of shares.
3.12 On each ex-dividend date of the Fund or, if not a Business Day, on the
First Business Day thereafter, Fund shall communicate to UNUM the amount if
dividend and capital gain, if any per share. All dividend and capital gains
shall be automatically reinvested in additional shares of the Fund at the
net asset value per share of the Fund on the ex-dividend date. Fund shall,
on the day after the ex-dividend date or, if not a Business Day, on the
first Business day thereafter, notify UNUM of the number of shares so
issued.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 Fund shall provide monthly statements of accounts as of the end of each
month for all of UNUM'S accounts by the fifteenth (15th) Business Day of
the following month.
4.2 Fund shall distribute to UNUM copies of the FUND'S prospectuses, proxy
materials, notices, periodic reports and other printed materials (which the
Fund customarily provides to its shareholders) in quantities as UNUM may
reasonably request for distribution to each Contractholder and Participant.
4.3 Fund will provide to UNUM at least one complete copy of all registration
statements, prospectuses, statements of additional information, reports,
proxy statements, sales literature, and other promotional materials,
applicant for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with the Commission or
other regulatory authorities.
4.4 UNUM will provide to the FUND at least one copy of all registration
statements, prospectuses, statements of additional information, reports,
proxy statements, sales literature and other promotional materials,
applicants for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Separate Account,
contemporaneously with the filing of such document with the Commission.
ARTICLE V
INITIAL CAPITALIZATION AND EXPENSES
5.1 UNUM'S General Accounts will initially invest the sum of $50 million
("initial investment") in the Fund. The initial investment shall be made
within five (5) days of the Effective Date or at the latest by October 2,
1989.
5.2 The charge to the Fund for all expenses and costs of the Fund including but
not limited to, management fees, administrative expenses and legal and
regulatory costs, will be made in the determination of the Fund's daily net
asset value per share so as to accumulate to an annual charge of not more
than .40 of 1% of the Fund's average daily net assets. Excluded from the
expense limitation described herein shall be brokerage commissions and
transaction fees and extraordinary expenses.
5.3 As long as the number of shares owned by UNUM'S General Accounts ("General
Account shares") is at least equal to the number of share purchased by the
$50 million ("initial shares"), there will be no expense assessment
pursuant to Sections 5.4, 5.5, 5.6, and 5.7
5.4 If in the first three fiscal years beginning with the date UNUM purchases
the initial shares, UNUM redeems General Account shares such that the
number of remaining General Account shares is less than the number of
initial shares, and subject to Section 5.9,
a. there will be no expense assessments as long as there is at least $100
million in the Fund, (including amounts not owned by UNUM),
immediately after the redemption of such General Account shares,
B. UNUM will pay Dreyfus an expense assessment if there is less than $100
million in the Fund immediately after the redemption. Such assessment
will be calculated as of the end of the day prior to the next
anniversary of the date of the initial investment, equal to the lesser
of
i. the amount determined by multiplying the 40 basis point charge by
the product of (A) the Fund's weighted average net asset value
per share measured from the date the redemption reduced the total
number of UNUM's General Account shares below the number of
initial shares and ending on such anniversary date (such a period
being the "Measurement Period") and (B) the weighted average
number of General Account shares redeemed during the Measurement
Period, provided that if the UNUM General Account has purchased
General Account shares in addition to the initial shares, then
for purposes of the following calculation, the number of General
Account shares redeemed during the Measurement Period shall not
include such additional shares, and multiplying further by the
anniversary, and
ii. $400,000 times the fraction of a year remaining until the
anniversary minus the amount that the 40 basis point expense
charge generated on all shares of the Fund during the remainder
of the Fiscal year.
5.5 If a redemption as described in Section 5.4b occurs, the following expense
assessment formulas will apply for fiscal years subsequent to the year of
the redemption.
a. when there is at least $100 million in the Fund on the beginning of
such subsequent fiscal year ($50 million on the beginning of the
fourth and later fiscal years), there will be no further expense
assessments unless fewer than the number of initial shares had been
sold and additional General Account shares are subsequently sold, in
which case Section, 5.4 is reapplied.
B. if there is less than $100 million in the Fund on the beginning of
each subsequent fiscal year ($50 million on the beginning of the
fourth and
later fiscal years), UNUM will pay Dreyfus an expense assessment,
calculated as of the end of the day prior to the next anniversary of
the initial purchase date, equal to the lesser of
i. the amount determined by multiplying the 40 basis point charge by
the product of (A) the Fund's weighted average net asset value
per share during such fiscal year and (B) the weighted average
number of General Account shares redeemed, provided that if the
UNUM General Account shares in addition to the initial shares,
then for purposes of the foregoing calculation, the number of
General Account shares redeemed shall not include such additional
shares, and
ii. $400,000 ($200,000 for the fourth and later fiscal years) minus
the amount that the 40 basis point expense charge generated on
all shares of the Fund during the fiscal year.
5.6 If a redemption as described in Section 5.4 occurs after the end of the
third fiscal year, the expense assessment formulas in Sections 5.4 and 5.5
apply, using $50 million in place of $100 million and $200,000 in place of
$400,000.
5.7 When UNUM has redeemed all of its General Account shares and all of its
Separate Account shares after the end of the third fiscal year in order to
transfer the assets to another fund (such redemption of Separate Account
shares is not permitted before the end if the third fiscal year), no
further expense assessments will accrue. If, however, in the fiscal year of
such redemption either of the formulas in Section 5.5 or 5.6 already was
operable because of a previous redemption of the General Account shares and
UNUM'S failure to pass the $50 million test, a final assessment will be
determined as the less of:
a. the amount that the 40 basis point charge would have generated up to
this final redemption date on the number of shares on which the
formulas were operable, and
B. $200,000 times the fraction of a year up to this final redemption date
that the formulas were operable minus the amount that the 40 basis
point expense charge generated on all shares of the Fund during the
fraction of the year.
5.8 UNUM may redeem some or all of its shares without an expense assessment if
at the end of any fiscal year, the Fund's investment results including the
reinvestment of dividends and after deduction of the charges for expenses
and commissions, are not equal to or better than the charge in the Standard
and Poor's 500 index including the reinvestment of dividends, minus one
hundred fifty basis points.
5.9 Except as provided in this Article V and, in particular in the next
sentence, UNUM shall not be required to pay directly any expense of the
Fund or expenses relating to the distribution of its shares. UNUM shall pay
the following expenses or costs:
a. Such amount of the production expenses of any Fund materials or
marketing for prospective UNUM Contractholders and Participants as
Dreyfus and UNUM shall agree from time to time.
B. Distribution expenses of any Fund materials or marketing material for
prospective UNUM Contractholders and Participants.
C. Distribution expenses of Fund materials or marketing materials for
UNUM Contractholders and Participants.
Except as provided herein, all other Fund expenses shall not be borne by
UNUM.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 UNUM has reviewed a copy of an application for exemptive relief, as
amended, filed by the Fund on February 24, 1989 with the Securities and
Exchange Commission and, in particular, has reviewed the conditions to the
requested relief set forth therein. As set forth in such application, UNUM
agrees to report any potential or existing conflicts promptly to the Board,
and in particular whenever contract voting instructions are disregarded,
and recognizes that it will be responsible for assisting the Board in
carrying out its responsibilities under such application. UNUM agrees to
carry out such responsibilities with a view to the interests of existing
Contractholders.
6.2 If a majority of the Board, or a majority of Disinterested Board Members,
determines that a material irreconcilable conflict exists with regard to
Contractholder investments in the Fund, the Board shall give prompt notice
to all Participating Companies. If the Board determines that UNUM is
responsible for causing or creating said conflict, UNUM shall at its sole
cost and expense, and to the extent reasonably practicable (as determined
by a majority of the Disinterested Board Members), take such action as is
necessary to remedy or eliminate the irreconcilable material conflict. Such
necessary action may include, but shall not be limited to:
a. Withdrawing the assets allocable to the Separate Account from the Fund
and reinvesting such assets in a different investment medium, or
submitting the question of whether such segregation should
be implemented to a vote or all affected Contractholders;
and/or:
b. Establishing A New Registered Management Investment Company.
6.3 If a material irreconcilable conflict arises as a result of a decision by
UNUM to disregard Contractholder voting instructions and said decision
represents a minority position or would preclude a majority vote by all
Contractholders having interest in the Fund, UNUM may be required, at the
Board's election to withdraw the Separate Account's investment in the Fund.
6.4 For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, nut in no event will the
Fund be required to bear the expense of establishing a new funding medium
for any Contract. UNUM shall not be required by this Article to establish a
new funding medium for any Contract if an offer to do so has been declined
by vote of a majority of the Contractholders materially adversely affected
by the irreconcilable material conflict.
6.5 No action by UNUM taken or omitted, and no action by the Separate Account
or the Fund taken or omitted as a result of any act or failure to act by
UNUM, pursuant to this Article VI shall relieve UNUM of its obligations
under, or otherwise affect the operation of, Article V. However, no expense
assessment will be made pursuant to Article V if UNUM redeems all of its
shares as a result of the failure by the Board to take action, where the
board is required to take action, to remedy a material irreconcilable
conflict cause by a Participating Company other than UNUM.
ARTICLE VII
VOTING OF FUND SHARES
7.1 Fund shall provide UNUM with copies of the Fund's proxy material, reports
to stockholders and other communications to stockholders in such quantity
as UNUM shall reasonably require for distributing to Contractholders or
Participants.
UNUM shall:
(a) solicit voting instructions from Contractholders or Participants on a
timely basis and in accordance with applicable law;
(b) vote the Fund shares in accordance with instruction received from
Contractholders or Participants; and
(c) vote Fund shares for which no instructions have been received in the
same proportion as Fund shares for which instructions have been
received.
UNUM agrees at all times to vote its General Account shares in the same
proportion as Fund shares for which instructions have been received from
Contractholders or Participants.
ARTICLE VIII
MARKETING AND REPRESENTATIONS
8.1 The Fund or its Underwriter shall periodically furnish UNUM with the
following documents, in quantities as UNUM may reasonably request:
a. Current Fund Prospectus and any supplements thereto;
b. Current Statement of Additional Information and any supplements
thereto; and
c. other marketing materials
Expenses for the production of such documents may be borne by UNUM in
accordance with Section 5.9 of this Agreement.
8.2 UNUM shall designate certain persons or entities which shall have the
requisite licenses to solicit applications for the sale of Contracts. No
representations is made as to the number or amount of Contracts that are to
be sold by UNUM. UNUM shall make reasonable efforts to market the Contracts
and shall comply will all applicable federal and state laws in connection
therewith.
8.3 UNUM shall furnish, or shall cause to be furnished, to the Fund, each piece
of sales literature or other promotional material in which the Fund, its
investment adviser or the administrator is named, at least fifteen Business
Days prior to use. No such material shall be used unless the Fund approves
such material. Such approval (if given) must be in writing and shall be
presumed not given if not received within ten Business Days after receipt
of such material. The fund shall use all reasonable efforts to respond
within ten days of receipt.
8.4 UNUM shall not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the information or representations
contained in the registration statement or prospectus of the Fund, as may
be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional
material approved by the Fund.
8.5 Fund shall furnish, or shall cause to be furnished, to UNUM, each piece of
the Fund's sales literature or other promotional material in which UNUM or
the Separate Account is named, at least fifteen Business Days prior to its
use. No such material shall be used unless UNUM approves such material.
Such approval (if given) must be in writing and shall be presumed not given
if not received within ten Business Days after receipt of such material.
UNUM shall use all reasonable efforts to respond within ten days of
receipt.
8.6 Fund shall not, in connection with the sale of Fund shares, give any
information or make any representations on behalf of UNUM or concerning
UNUM, the Separate Account, or the Contracts other than the information or
representations contained in a registration statement or prospectus for the
Contracts, as may be amended or supplemented from time to time, or in
published reports for the Separate Account which are in the public domain
or approved by UNUM for distribution to Contractholders or Participants, or
in sales literature or other promotional material approved by UNUM.
ARTICLE IX
INDEMNIFICATION
9.1 UNUM agrees to indemnify and hold harmless the Fund, Dreyfus, the Fund's
investment advisor, and their affiliates, and each of their directors,
officers, employees, agents and each person, if any, who controls any of
the foregoing entities or persons within the meaning of the 1933 act
(collectively the "Indemnified Parties" for purposes of Section 9.1),
against any losses, claims, damages, or liabilities for which the
Indemnified Party may become subject, under the 1933 Act otherwise, insofar
as such losses, claims, damages or liabilities (or actions in respect to
thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in information furnished by
UNUM for use in the registration statement or prospectus or sales
literature or advertisements of the Fund, 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, or arise out of or as a result of conduct, statements, or
representations (other than statements or representations contained in the
prospectus and sales literature or advertisements of the Fund) of UNUM or
its agents, with respect to the sale and distribution of Contracts for
which Fund
shares are an underlying investment; and UNUM will reimburse any
Indemnified Party in connection with investigation or defending any such
loss, claim, damage, liability or action. This indemnity agreement will be
in addition to any liability which UNUM may otherwise have.
9.2 The Fund agrees to indemnify and hold harmless UNUM and each of its
directors, officers, employees, agents and each person, if any, who
controls UNUM within the meaning if the 1933 Act against any losses,
claims, damages, or liabilities to which UNUM or any such director,
officer, employee, agent or controlling person may become subject, under
the 1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (1) 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 sales literature
or advertisements of the Fund; (2) arise out of or are based upon the
omission to state in the registration statement or prospectus or sales
literature or advertisements of the Fund of any material fact required to
be stated therein or necessary to make the statements therein not
misleading; or (3) 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 sales literature or advertisements with respect
to the separate account or the contracts and such statements were based on
information provided to UNUM by the Fund; and the Fund will reimburse any
legal or other expenses reasonably incurred by UNUM or any such director,
officer, employee, agent or controlling person in connection investigation
or defending any such loss, claim, damage, liability or action; provided,
however, that the fund will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or omission or alleged omission made in such
Registration Statement, prospects, sales literature or advertisements in
conformity with written information furnished to the fund by UNUM
specifically for use therein. This indemnity agreement will be in addition
to any liability which the Fund may otherwise have.
9.3 The Fund shall indemnify and hold UNUM harmless against any and all
liability, loss, damages, costs or expenses, which UNUM may incur, suffer
or be required to pay due to the Fund's (1) incorrect calculation of the
daily net asset value, dividend rate or capital gain distribution rate; (2)
incorrect reporting of the daily net asset value, dividend rate or capital
gain distribution rate; and/or (3) untimely reporting of the net asset
value, dividend rate or capital gain distribution rate.
9.4 UNUM shall indemnify and hold the Fund harmless against any and all
liability, loss, damages, costs or expenses which the Fund may incur,
suffer or be required to pay due to UNUM's incorrect calculation and/or
untimely reporting of net purchase or redemption orders.
9.5 Promptly after receipt by an indemnified party under this Article of
notices of the commencement of action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Article, notify the indemnifying party of the commencement thereof;
but the omission to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under this Article. In case any such action is brought against any
indemnified party, and it notified the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, assume the defense
thereof, with counsel satisfactory to such indemnified party, after notice
from the indemnifying party to such indemnified party under this Article
for any legal or other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation.
9.6 UNUM shall indemnify and hold the Fund, Dreyfus and the Fund's investment
advisor harmless against any tax liability incurred by the Fund under
Section 851 of the Code arising from purchases or redemptions by UNUM's
General Accounts or the account of its affiliates.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the Effective Date and shall
continue in force until terminated in accordance with the provisions
herein.
10.2 This Agreement shall terminate without penalty:
a. At the option of UNUM or the Fund at any time after three years from
the Effective Date of this Agreement upon 180 days' notice, unless a
shorter time is agreed to by the parties;
b. At the option of UNUM, if any of the Fund's shares are not reasonably
available to meet the requirements of the Contracts as determined by
UNUM. Prompt notice of election to terminate shall be furnished by
UNUM, said termination to be effective ten days after receipt of
notice unless the Fund makes available a sufficient number of shares
to meet the requirements of the Contracts within said ten-day period;
C. At the option of UNUM, upon the institution of formal proceedings
against the Fund by the Commission, National Association of Securities
Dealers or any other regulatory body, the expected or anticipated
ruling, judgment or outcome of which would in UNUM's reasonable
judgment,
materially impair the Fund's ability to meet and perform the
Fund's obligation and duties hereunder. Prompt notice of election to
terminate shall be furnished by UNUM with said termination to be
effective upon receipt of notice;
d. At the option of the Fund, upon the institution of formal proceedings
against UNUM by the Commission, National Association of Securities
Dealers or any other regulatory body, the expected or anticipated
ruling, judgment or outcome of which would, in the Fund's reasonable
judgment, materially impair UNUM's ability to meet and perform UNUM's
obligations and duties hereunder. Prompt notice of election to
terminate shall be furnished by the Fund with said termination to be
effective upon receipt of notice;
e. At the option of the Fund, if the Fund shall determine, if its sole
judgment reasonably exercised in good faith, that UNUM has suffered a
material adverse change in its business or financial condition or is
the subject of material adverse publicity and such material adverse
change or material adverse publicity will have a material adverse
impact upon the business and operation of the Fund, the Fund shall
notify UNUM in writing of such determination and its intent to
terminate this Agreement, and after considering the actions taken by
UNUM and any other changes in circumstances since the giving of such
notice, such determination of the Fund shall continue to apply on the
sixtieth (60th) day following the giving of such notice, which
sixtieth day shall be the effective date of termination;
f. Upon termination of the Management Agreement between the Fund and
▇▇▇▇▇ Fargo Investment Advisors or its successors unless UNUM
specifically approves the selection of a new Fund manager. the Fund
shall promptly furnish notice of such termination to UNUM;
g. In the event the Fund's shares are not registered, issued or sold in
accordance with applicable federal law, or such law precludes the use
of such shares as the underlying investment medium of Contracts issued
or to be issued by UNUM. Termination shall be effective immediately
upon such occurrence without notice; or
h. Upon assignment of the Agreement, unless made with the written consent
of the non-assigning party.
Any such termination pursuant to Section 10.2a, 10.2d, 10.2e, 10.2f, 10.2h
herein shall not affect the operation of Article V of this Agreement.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement shall be made by agreement
in writing between UNUM and the fund.
ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be give by certified mail,
return receipt requested, to the appropriate parties at the following
addresses:
UNUM: UNUM Life Insurance Company
Attn.: Legal Department-Pensions
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Fund: Dreyfus Life And Annuity Index Fund, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Secretary
with copies to:
Stroock & Stroock & ▇▇▇▇▇
▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Notice shall be deemed to be give on the date of the receipt by the address
as evidence by the return receipt.
ARTICLE XIII
MISCELLANEOUS
13.1 All persons dealing with the Fund must look solely to the property of the
Fund for the enforcement of any claims, against the Fund as neither the
Directors, officers, agents or shareholders assume any personal liability
for obligations entered into on behalf of the Fund.
-18-
14.1 This Agreement shall be construed in accordance with the internal laws of
the State of New York without giving effect to principles of conflict of
laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
duly executed and attested as of the date first above written.
UNUM LIFE INSURANCE COMPANY
By: /s/ ▇. ▇. ▇▇▇▇▇▇
-----------------------------
Its: Vice President
-----------------------------
Attest: /s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇
-------------------
DREYFUS LIFE AND ANNUITY
INDEX FUND, INC.
By: /s/
-----------------------------
Its: Vice President
----------------------------
Attest: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------
AMENDMENT #1 TO
FUND PARTICIPATION AGREEMENT BETWEEN
UNUM LIFE INSURANCE COMPANY OF AMERICA AND
DREYFUS LIFE AND ANNUITY INDEX FUND, INC.
This Amendment to be effective as of January 1, 1992, by and among UNUM and the
Fund which entities are more fully described in the Fund Participation Agreement
dated September 6, 1989.
Whereas, on December 31, 1991, at 11:59 p.m. UNUM Life Insurance Company merged
with UNUM Life Insurance Company of America and the resulting company was named
UNUM Life Insurance Company of America, and
Whereas, all the rights and obligations of UNUM Life Insurance Company became
rights and obligations of UNUM Life Insurance Company of America on such date,
Now therefore, in consideration of their mutual promises, UNUM and the Fund
agree that all references in the aforementioned participation agreement to UNUM
shall be deemed to refer to UNUM Life Insurance Company of America. No other
terms in the agreement shall be altered in any way by this Amendment #1. All
parties shall continue to have the same rights and obligations that were agreed
to in the Fun Participation Agreement.
In witness whereof, each of the parties hereto has caused this amendment to be
executed in its name and on its behalf by its duly authorized representative as
of the date specified below.
UNUM LIFE INSURANCE COMPANY
OF AMERICA
Date: 2-7-92 By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
-----------------------
Its Authorized Officer
Witness: /s/ ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Vice President
---------------------- ---------------------------
Title
DREYFUS LIFE AND ANNUITY
INDEX FUND, INC.
Date: 1-29-92 By: /s/
-----------------------
Its Authorized Officer
Witness: /s/ Senior Vice President
----------------------- ---------------------
Title