PARTICIPATION AGREEMENT FOR INSURANCE
MUTUAL FUNDS
Among
Delaware Group Premium Fund, Inc.
Delaware Distributors, L.P.
Delaware Management Company
and
THE TRAVELERS INSURANCE COMPANY AND THE
TRAVELERS LIFE AND ANNUITY COMPANY
THIS AGREEMENT effective May 1, 1998, made and entered into by and among
THE TRAVELERS INSURANCE COMPANY and THE TRAVELERS LIFE AND ANNUITY COMPANY
("Travelers" or "Company"), Connecticut corporations, on their own behalf and on
behalf of each segregated asset account of Travelers set forth on Schedule A as
may be amended from time to time (each such account hereinafter referred to as
the "Account"), and those series (the "Series"), set forth on Schedule B as may
be amended from time to time, of the Delaware Group Premium Fund (the "Fund"), a
Maryland Corporation, and Delaware Distributors, L.P. (the" Underwriter").
WHEREAS, the Fund is registered as an open-end management investment
company under the Investment Company Act of 1940 (the "1940 Act") and its shares
are registered under the Securities Act of 1933, as amended (the "1933 Act");
and
WHEREAS, the Fund was established for the purpose of serving as the
investment vehicle for separate accounts established for variable life contracts
and variable annuity contracts to be offered by insurance companies which have
entered into participation
agreements with the Fund ("Participating Insurance Companies"); and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by appropriate corporate resolution of the Travelers'
Board of Directors to set aside and invest assets attributable to one or more
annuity contracts; and
WHEREAS, Delaware Management Company (the "Adviser") is registered as an
investment adviser with the Securities and Exchange Commission ("SEC") under
the Investment Advisers Act of 1940.
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended, (the "1934 Act"), and is
a member in good standing of the National Association of Securities Dealers,
Inc. ("NASD"); and
WHEREAS, the Company has registered or will register certain variable life
insurance and variable annuity contracts under the 1933 Act (the "Contracts");
and
WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds on behalf of
each Account to fund certain of the aforesaid variable life and variable annuity
contracts and the Underwriter is authorized to sell such shares to unit
investment trusts such as each Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Fund and the Underwriter agree as follows:
1.1. The Underwriter on behalf of the Fund agrees to sell to Travelers
those Fund shares which each Account orders, executing such orders on a daily
basis at the net asset value next computed after receipt by the Fund or its
designee of the order for the shares of the Fund. For purposes of this Section
1.1, Travelers shall be the designee of the Fund for receipt of such orders from
each Account and receipt by such designee shall constitute receipt by the Fund;
provided that (i) Travelers has received such orders prior to the close of
regular trading on the New York Stock Exchange, Inc. (the "NYSE") (currently
4:00 p.m., Eastern time) on that Business Day, and (ii) the Fund receives notice
of such order by 11:00 a.m. Eastern Standard Time on the next Business Day.
Business Day shall have the meaning as defined in the Fund prospectus. Orders
that Travelers has received after the close of regular trading on the NYSE will
be treated as though received on the next Business Day. Each communication of
orders by Travelers will constitute a representation that such orders were
received by it prior to the close of regular trading on the NYSE on the Business
Day on which the purchase or redemption order is priced in accordance with Rule
22c-l under the 1940 Act. Other procedures relating to the handling of orders
will be in accordance with the prospectus and statement of additional
information of the relevant series of shares of the Fund or with oral or written
instructions that the Underwriter or the Fund will forward to Travelers from
time to time.
1.2. The Fund agrees to make its shares available indefinitely for purchase
at the applicable net asset value per share by Travelers and its Accounts on
each Business Day and the Fund shall use reasonable efforts to calculate such
net asset value on each Business Day. However, the Board of Directors of the
Fund (the "Board") may refuse to sell Fund shares to
any person, or suspend or terminate the offering of Fund shares if such action
is required by law or by regulatory authorities having jurisdiction or is, in
the sole discretion of the Board acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws, necessary in the
best interests of the shareholders of such Fund.
1.3. The Fund and the Underwriter agree that shares of the Fund will be
sold only to Participating Insurance Companies and their separate accounts, and
other eligible accounts. No shares of any Fund will be sold to the general
public.
1.4. The Fund and the Underwriter will not sell Fund shares to any
insurance company or separate account unless an agreement containing provisions
substantially the same as Article XI of this Agreement is in effect to govern
such sales.
1.5. The Fund agrees to redeem for cash, on Travelers' request, any full or
fractional shares of the Fund held by Travelers or the Accounts, executing such
requests on a daily basis at the net asset value next computed after the Fund or
its designee receives the redemption request. For purposes of this Section 1.5,
Travelers shall be the designee of the Fund for receipt of redemption requests
from each Account and receipt by such designee shall constitute receipt by the
Fund; provided that the Fund receives notice of such redemption request by 11:00
a.m. on the next Business Day.
1.6. Travelers shall pay for Fund shares on the next Business Day after an
order to purchase Fund shares is made in accordance with the provisions of
Section 1.1. Payment shall be in federal funds transmitted by wire. For purpose
of Section 2.9, upon receipt by the Fund of the federal funds so wired, such
funds shall cease to be the responsibility of Travelers and shall become the
responsibility of the Fund.
1.7. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to Travelers or any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account.
1.8. The Fund shall furnish same-day notice by facsimile or telephone, (if
by telephone, it must be followed by written confirmation) to Travelers of any
income, dividends or capital gain distributions payable on the Fund's shares.
Travelers hereby elects to receive all such income dividends and capital gain
distributions in additional shares of that Fund. Travelers reserves the right to
revoke this election and to receive all such income dividends and capital gain
distributions in cash. The Fund shall notify Travelers of the number of shares
so issued as payment of such dividends and distributions.
1.9. The Fund shall use its best efforts to make the net asset value per
share for each Fund available to Travelers on each Business Day as soon as
reasonably practical 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 Standard Time. Neither the Fund, any Series, the
Distributor, the Adviser nor any of their affiliates shall be liable for any
information provided to the Company pursuant to this Agreement which information
is based on incorrect information supplied by the Company to the Fund, the
Distributor or the Adviser.
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act; that the Contracts will be issued and sold in
compliance in all material respects with all applicable Federal and State laws
and that the sale of the Contracts shall comply in all material respects with
state insurance suitability requirements. Travelers further represents and
warrants that it is an insurance company duly organized and in good standing
under the laws of the state of Connecticut and that it has legally and validly
established each Account prior to any issuance or sale thereof as a segregated
asset account under Section 38a433 of the Connecticut General Statutes.
2.2. The Fund represents and warrants that Fund shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with applicable law and that the Fund is and
shall remain registered under the ▇▇▇▇ ▇▇▇. 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. The Fund shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Fund, Adviser or Underwriter.
2.3. The Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue 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 Travelers
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.
2.4. Travelers represents and warrants that the Contracts are currently and
at the time of issuance will be treated as life insurance, endowment 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 and the
Underwriter 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.
2.5. 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
except that the Fund represents that the Fund's investment policies, fees and
expenses, and the Fund and the Underwriter represent that their respective
operations are, and shall at all times remain, in material compliance with the
laws of the states of Maryland and Delaware, respectively, to the extent
required to perform this Agreement.
2.6. The Underwriter represents and warrants that it is a NASD member in
good standing and is registered as a broker-dealer with the SEC. The Underwriter
further represents that it will sell and distribute the Fund shares in
accordance with all applicable state and federal securities laws and
regulations, including the 1933 Act, the 1934 Act, and the 1940 Act and the
Rules promulgated thereunder.
2.7. The Fund represents that it is lawfully organized and validly existing
under the laws of the state of Maryland and that it does and will comply with
the 1940 Act and the Rules promulgated thereunder.
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 with any applicable
state and federal securities laws.
2.9. The Fund, Adviser and Underwriter each represent and warrant that all
of their respective directors, officers, employees, and other
individuals/entities dealing 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 than the
minimal coverage as required currently by Rule 17g-1 under the 1940 Act or
related provisions as may be promulgated from time to time. Such bond shall
include coverage for larceny and embezzlement and shall be issued by a reputable
bonding company, as determined solely in the discretion of the Fund, Adviser or
Underwriter, respectively.
2.10. Travelers represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
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 than the minimal coverage as required currently
by entities subject to the requirements of Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time. Such bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable bonding
company.
2.11. Travelers represents and warrants that (i) neither it nor any of its
"affiliates" (as such term is defined in 29C.F.R. 251O.3-21(e) is a "fiduciary"
of any employee benefit plan as such term is defined in section 3(21) of the
Employee Retirement Income Security Act of 1974, as amended ("ERISA"), and
section 4975 of the Internal Revenue Code of 1986, as amended (the "Code"), and
(ii) the receipt of fees hereunder will not constitute a non-exempt "prohibited
transaction" as such term is defined in section 406 of ERISA and section 4975 of
the Code.
2.12. Each party to this Agreement will maintain all records required by
law, including records detailing the services it provides. Such records will be
preserved, maintained and made available to the extent required by law and in
accordance with the 1940 Act and the rules thereunder. Upon request by the Fund
or the Underwriter, Travelers agrees
promptly to make copies or, if required, originals of all records pertaining to
the performance of services under this Agreement available to the Fund, the
Adviser or the Underwriter, as the case may be. The Fund agrees that Travelers
will have the right to inspect, audit and copy all records pertaining to the
performance of services under this Agreement pursuant to the requirements of any
state insurance department. Each party also agrees promptly to notify the other
parties if it experiences any difficulty in maintaining the records in an
accurate and complete manner. This provision shall survive termination of the
Agreement.
3.1. The Underwriter shall provide Travelers, at Travelers' expense, with
as many copies of the Fund's current prospectus (and any supplements thereto) as
Travelers may reasonably request. If requested by Travelers in lieu thereof, the
Fund shall provide cameraready film or computer diskettes containing the Fund's
prospectus and Statement of Additional Information and other assistance as is
reasonably necessary in order for Travelers once each year (or more frequently
if the prospectus for the Fund is amended) to have the Prospectuses for the
Contracts and the Fund printed simultaneously. For prospectuses and Statements
of Additional Information provided by the Company to its existing owners of
Contracts which are invested in the Fund, in order to update disclosure as
required by the 1933 Act and/or the 1940 Act, the cost of printing shall be
borne by the Fund. If Travelers chooses to receive camera-ready film or computer
diskettes in lieu of receiving printed copies of the Fund's prospectus, the Fund
will reimburse Travelers in an amount equal to the product of A and B, where A
is the number of such prospectuses distributed to owners of the Contracts which
are invested in the Fund, and B is the Fund's per unit cost of typesetting and
printing the Fund's prospectus. The same procedures shall be followed with
respect to the Fund's Statement of Additional Information.
3.2. The Fund's prospectus shall state that the Statement of Additional
Information ("SAI") for the Fund is available from the Underwriter (or in the
Fund's discretion, the Prospectus shall state that such SAI is available from
the Fund), and the Underwriter (or the Fund), at its expense, shall print and
provide such SAI to Travelers and to any owner/participant of a Contract or
prospective owner/participant who requests such SAI.
3.3. The Fund, at its expense, shall provide Travelers with copies of its
proxy material, reports to stockholders and other communications to stockholders
in such quantity as Travelers shall reasonably require for distributing to
Contract owners/participants.
3.4. If and to the extent required by law Travelers shall:
(i) solicit voting instructions from owners of or participants in the
Contract;
(ii) vote the Fund shares in accordance with instructions received
from owners of or participants in the Contract; and
(iii) vote Fund shares for which no instructions have been received in
the same proportion as Fund shares of such Fund for which instructions
have been received (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).
Travelers reserves the right to vote Fund shares held in any
segregated asset account in its own right, to the extent permitted by
law; provided, however, that if Travelers votes Fund shares in any
segregated asset account in its own right, it shall not vote against
management of the Fund unless it is required to do so to fulfill its
fiduciary duty to owners of Contracts.
3.5. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings or comply with Section 16(a) of the 1940 Act and, if and when
applicable, 16(b). 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 and with whatever rules the SEC may promulgate with
respect thereto.
4.1. Travelers will provide to the Fund at least one complete copy of all
registration statements, prospectuses, SAI's, reports, proxies, sales literature
and other promotional materials, applications for exemptive relief, requests for
no action letters, and all amendments, if any, on an annual basis.
4.2. Travelers 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 for the Fund shares, as
such registration statement and prospectus 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 or its designee or
by the Underwriter, except with the permission of the Fund or the Underwriter or
the designee of either.
4.3. The Fund, Underwriter, or their respective designee(s) shall furnish,
or shall cause to be furnished, to Travelers or its designee, each piece of
sales literature or other promotional material in which Travelers and/or its
separate account(s), is named. No such material will be used until any required
governmental or self-regulatory authority (Le., NASD) has approved the material,
if necessary.
4.4. The Fund and the Underwriter shall not give any information or make
any representations on behalf of Travelers or concerning Travelers, the
Accounts, or the Contracts other than the information or representations
contained in the disclosure memoranda for the Contracts, as such document may be
amended or supplemented from time to time, or in published reports for each
Account which are in the public domain or approved by Travelers
for distribution to Contract owners, or in sales literature or other promotional
material approved by Travelers or its designee, except with the permission of
Travelers.
4.5. The Fund will provide to Travelers at least one complete copy of all
registration statements, prospectuses, SAI, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above, that
relate to the Fund or its shares, on an annual basis.
4.6. For purposes of this Article IV, the phrase" sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
material published or designed for use in a newspaper, magazine or other
periodical, radio, television, Internet, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public 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.
5.1. The Fund and/or Adviser shall pay to Travelers certain administrative
fees for administrative expenses and costs with respect to the Contracts.
Travelers will provide certain administrative services to owners of the
Contracts, as set forth on Schedule C. The administrative fees are set forth on
Schedule D.
5.2. To the extent permitted under applicable law, all expenses incident to
performance by the Fund under this Agreement shall be paid by the Fund. The
Fund shall see to it that all of its shares are registered and authorized for
issuance in accordance with applicable federal law and, if and to the extent
deemed advisable by the Fund, in accordance with applicable state laws prior to
their sale. The Fund shall bear the expenses for the cost of registration and
qualification of the Fund's shares, preparation and filing of the Fund's
prospectus, registration statements and amendments thereto, proxy materials and
reports, setting the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders (including the costs of printing a
prospectus that constitutes an annual report), the preparation of all statements
and notices required by any federal or state law, and all taxes on the issuance
or transfer of the Fund's shares. At its own expense, Travelers will
distribute such materials to the owners of the Contracts to the extent required
by applicable law, rules or regulations.
6.1(a). Travelers agrees to indemnify and hold harmless the Underwriter,
the Adviser, the Fund and each director of the Board and officers and each
person, if any, who controls the Fund within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of this Section
6.1) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of Travelers) or litigation
(including legal and other expenses), to which the Indemnified Parties may
become subject under any statute, 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
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 for the Contracts or contained in the
Contracts or sales literature 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 to Travelers by or
on behalf of the Fund, the Underwriter or the Adviser for use in the
Registration Statement or prospectus for the Contracts or in the
Contracts or sales literature (or any amendment or supplement) 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 of the Fund not
supplied by Travelers or persons under its control) or wrongful
conduct of Travelers 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, or
sales literature 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 to the Fund by or on
behalf of Travelers or persons under its control; or
(iv) arise as a result of any failure by Travelers 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 Travelers in this Agreement or
arise out of or result from any other material breach of this
Agreement by Travelers, as limited by and in accordance with the
provisions of Sections 6.1(b) and 6.1(c) hereof.
6.1(b). Travelers shall not be liable under this indemnification provision
with respect to any losses, claims, 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 under this Agreement or to the Fund,
whichever is applicable, or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement or to the Fund,
whichever is applicable.
6.1(c). Travelers 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 Travelers 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 Travelers of any such claim shall not
relieve Travelers 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. In case any such action is brought against the
Indemnified Parties, Travelers shall be entitled to participate, at its own
expense, in the defense of such action. Travelers also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from Travelers to such party of Travelers' election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and Travelers 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.
6.1(d). The Indemnified Parties will promptly notify Travelers of the
commencement) of any litigation or proceedings against them in connection with
the issuance or sale of the Fund shares or the Contracts or the operation of the
Fund.
6.2(a). The Underwriter agrees to indemnify and hold harmless Travelers and
each of its directors and officers and each person, if any, who controls
Travelers within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 6.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any statute
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 Fund's shares 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 sales literature of the Fund (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 to the
Adviser, the Underwriter or Fund by or on behalf of Travelers for use
in the Registration Statement or prospectus for the Fund or in sales
literature (or any amendment or supplement) 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 for the
Contracts not supplied by the Adviser, the Underwriter, the Fund or
persons under their control) or wrongful conduct of the Fund, Adviser
or Underwriter or persons under their 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 the disclosure memoranda, or sales
literature 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
to Travelers by or on behalf of the Fund; or
(iv) arise as a result of any failure by the Adviser, Underwriter or
the Fund 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 Adviser or Underwriter in
this Agreement or arise out of or result from any other material
breach of this Agreement by the Adviser or Underwriter; as limited by
and in accordance with the provisions of Sections 6.2(b) and 6.2(c)
hereof; or
(vi) arise as a result of the Company's providing the Fund inaccurate
information, which causes the Fund to calculate its NA V incorrectly.
6.2(b). The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, 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 under this Agreement, or to
Travelers or the Account, as applicable, or by reason of such Indemnified
Party's reckless disregard of obligations and duties under this Agreement or to
Travelers or the Account, whichever is applicable.
6.2(c). The Underwriter 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 Underwriter 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 Underwriter of
any such claim shall not relieve the Underwriter 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. In case any such action is brought
against the Indemnified Parties, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. The Underwriter also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Underwriter to such party
of the Underwriter'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 Underwriter 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.
6.2(d). Travelers agrees promptly to notify the Underwriter of the
commencement 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 each Account.
6.3 Exclusion of Consequential Damages. Notwithstanding anything in this
Agreement to the contrary, in no event shall any party to this Agreement, its
affiliates or any of its or their respective directors, officers, employees,
agents or subcontractors be liable under any theory of tort, contract, strict
liability or other legal equitable theory for lost profits, exemplary,
punitive, special, indirect or consequential damages, each of which is hereby
excluded by Agreement of the parties regardless of whether such damages were
foreseeable or whether any party or any entity has been advised of the
possibility of such damages.
7.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the state of New York.
7.2. 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
and the terms hereof shall be interpreted and construed in accordance therewith.
(a) at the option of any party upon 180 days' advance written notice
to the other parties; or
(b) at the option of Travelers to the extent that shares of Funds are
not reasonably available to meet the requirements of the Contracts as
determined by Travelers in its sole reasonable discretion; or
(c) at the option of the Fund in the event that formal administrative
proceedings are instituted against Travelers by the NASD, the SEC, an
Insurance Commissioner or any other regulatory body regarding
Travelers duties under this Agreement or related to the sale of the
Contracts, with respect to the operation of any Account, or the
purchase of the Fund shares, provided, however, that the Fund or the
Adviser determines in its sole judgment exercised in good faith, that
any such administrative proceedings will have a material adverse
effect upon the ability of Travelers to perform its obligations under
this Agreement; or
(d) at the option of Travelers in the event that formal administrative
proceedings are instituted against the Fund, the Underwriter or the
Adviser by the NASD, the SEC, or any state securities or insurance
department or any other regulatory body, provided, however, that
Travelers 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 Underwriter or the Adviser to
perform its obligations under this Agreement; or
(e) with respect to any Account, upon requisite approval of the State
Insurance Department and Contract owners, if necessary; or
(f) at the option of Travelers, in the event any of the Fund'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
Travelers; or
(g) at the option of Travelers, if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under
any successor or similar provision, or if Travelers reasonably
believes that the Fund may fail to so qualify; or
(h) at the option of the Fund, the Adviser or the Underwriter, if (1)
the Fund, the Adviser or the Underwriter, respectively, shall
determine in good faith that Travelers 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 operations of the Fund, the Adviser or the
Underwriter, (2) the Fund, the Adviser or the Underwriter shall notify
Travelers in writing of such determination and its intent to terminate
this Agreement, and (3) after considering the actions taken by
Travelers and any other changes in circumstances since the giving of
such notice, such determination of the Fund, the Adviser or the
Underwriter 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; or
(i) at the option of Travelers, if (1) Travelers shall determine in
good faith that either the Fund, the Adviser or the Underwriter 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 operations of Travelers,
(2) Travelers shall notify the Fund, the Adviser and the Underwriter
in writing of such determination and its intent to terminate the
Agreement, and (3) after considering the actions taken by the Fund,
the Adviser and/or the Underwriter and any other changes in
circumstances since the giving of such notice, such determination
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; or
(j) at the option of the Fund, the Adviser or the Underwriter, if
Travelers gives the Fund, the Adviser and the Underwriter the written
notice specified in Section 8.1(a) hereof and at the time such
notice was given there was no notice of termination outstanding under
any other provision of this Agreement; PROVIDED, however any
termination under this Section 8.10) shall be effective forty five
(45) days after the notice specified in Section 8.1(a) was given; or
(k) at the option of Travelers or the Fund upon the determination by a
majority of the Board, or a majority of the disinterested directors of
the Board, that an irreconcilable material conflict exists among the
interests of: (1) the contract owners of variable insurance products
of all some or all of the relevant separate
accounts; or (2) the interests of the insurance companies or other
eligible accounts investing in the Fund as set forth in Article XI of
this Agreement; or
(1) at the option of the Fund in the event that any of the Contracts
are not issued or sold in accordance with applicable federal and/or
state law. Such termination will be effective immediately upon notice
by the Fund.
8.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 8. 1 (a) may be exercised for any
reason or for no reason.
8.3. 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 to this Agreement of its intent to terminate
which notice shall set forth the basis for such termination. Furthermore,
(a) In the event that any termination is based upon the provisions of
Section 8.l(a), 8.l(h), 8.l(i) or 8.10) of this Agreement, such prior
written notice shall be given in advance of the effective date of
termination as required by such provisions; and
(b) in the event that any termination is based upon the provisions of
Section 8. 1 (c) or 8.l(d) of this Agreement, such prior written
notice shall be given at least ninety (90) days before the effective
date of termination.
8.4. Effect of Termination. Notwithstanding any termination of this
Agreement, the Fund and the Underwriter shall, at Travelers' option, continue to
make available additional Fund shares pursuant to the terms and conditions of
this Agreement, for all Contracts in effect on the effective date of termination
of this Agreement (the "Existing Contracts").
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. However, the availability of additional
shares hereunder will be subject to the restrictions and limitations set forth
in Article XI, as applicable.
Travelers agrees (i) to terminate the availability of shares of the Fund to
Contracts other than Existing Contracts and (ii) to request approval from the
SEC to replace shares of the Fund with other investments for existing Contracts
and, if and when granted such approval, thereafter to so replace the shares of
the Fund, in each case as soon as reasonable practicable.
8.5. Surviving Provisions. Notwithstanding any termination of this
Agreement, each party's obligations under Article VI to indemnify other parties
will survive and not be affected by any termination of this Agreement. In
addition, each party's obligations under Section 2.12 will survive and not be
affected by any termination of this Agreement. Finally, with respect to
Existing Contracts, all provisions of this Agreement also will survive and not
be affected by any termination of this Agreement.
Any notice shall be sufficiently given when sent by registered or certified
mail to the applicable party at the address set forth below or at such other
address as may be specified in writing to the other parties.
Delaware Group Premium Fund, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Travelers Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Delaware Distributors, L.P. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇, P A
19103 Attention: ▇▇▇▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇
10.1 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
Board, officers, agents or shareholders of the Fund assume any personal
liability for obligations entered into on behalf of the Fund. To the extent such
claims relate to a specific Series of the Fund, such persons must look solely to
the property attributable to that Series.
10.2 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, without the express written consent of the affected party, shall
not disclose, disseminate or utilize such names and addresses and other
confidential information until such time as it may come into the public domain.
10.3 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.
10.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.5 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.
10.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including 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. Each party hereto
further agrees to furnish any state insurance department with any information or
reports in connection with services provided under this Agreement if such state
so requests.
10.7. 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.
10.8. No part of this Agreement may be assigned without the prior written
consent of the other parties. Such consent will not be unreasonably withheld.
11.1. The Board will monitor the Fund for the existence of any
irreconcilable material conflict among 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 are being managed; (e) a difference in voting
instructions given by insurance companies participating in the Fund
("Participating Insurance Companies") or by variable annuity and variable life
insurance contract owners; or (f) a decision by an insurer to disregard the
voting instructions of contract owners. The Board will promptly inform Travelers
if it determines that an irreconcilable material conflict exists and the
implications thereof.
11.2. Travelers will report any potential or existing conflicts of which it
is aware to the Fund Board. Travelers agrees to assist the Board in carrying out
its responsibilities, as delineated in the mixed and shared funding exemptive
order received by the Fund (the "Exemptive Order") by providing the Board with
all information necessary for the Board to consider any issues raised. This
includes, but is not limited to, an obligation by Travelers to inform the Board
whenever contract owner voting instructions are to be disregarded. Traveler's
responsibilities hereunder will be carried out with a view only to the interest
of contract owners.
11.3. If it is determined by a majority of the Board, or a majority of its
disinterested directors, that an irreconcilable material conflict exists,
Travelers will, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested directors), take whatever steps
are necessary to remedy or eliminate the irreconcilable material conflict, up to
and including: (a) withdrawing the assets allocable to some or all of the
Accounts from the Fund or any designated portfolio and reinvesting such assets
in a different investment medium, including (but not limited to) another
portfolio of the Fund, 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., variable
annuity contract owners or variable life insurance 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 (b) establishing a new registered management investment company or managed
separate account.
11.4. If a material irreconcilable conflict arises because of a decision by
Travelers to disregard contract owner voting instructions, and Traveler's
judgment represents a minority position or would preclude a majority vote,
Travelers may be required, at the Fund's election, to withdraw the affected
subaccount of the Account's investment in the Fund and terminate this Agreement
with respect to such subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined a majority of the disinterested
trustees of the Board. No charge or penalty will be imposed as a result to such
withdrawal.
11.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to Travelers conflicts with the
majority of other state insurance regulators, then Travelers will withdraw the
affected subaccount of the Account's investment in the Fund and terminate this
Agreement with respect to such subaccount, provided, however, that such
withdrawal and termination will be limited to the extent required by the
foregoing irreconcilable material conflict as determined by a majority of the
disinterested directors of the Board. No charge or penalty will be imposed as a
result of such withdrawal.
11.6. For purposes of Sections 11.3 through 11.6 of this Agreement, a
majority of the disinterested members of the Board will determine whether any
proposed action adequately remedies any irreconcilable material conflict, but in
no event will the Fund or the Adviser (or any other investment adviser to the
Fund) be required to establish a new funding medium for the Contracts. Travelers
will not be required by Section 11.3 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 materially affected by the irreconcilable material conflict.
11.7. Travelers will at least annually submit to the Board such reports,
materials or data as the Board may reasonably request so that the Board may
fully carry out the duties imposed upon it as delineated in the Exemptive Order,
and said reports, materials and data will be submitted more frequently if deemed
appropriate by the Board.
11.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) as 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 Exemptive Order) on terms and conditions materially different
from those contained in the Exemptive Order, then: (a) the Fund and/or the
Participating Insurance Companies, as appropriate, will 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 3.4,3.5,
11.1, 11.2, 11.3, 11.4, and 11.5 of this Agreement will 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.
11.9. The Company shall furnish, or shall cause to be furnished, to the
Fund or its designee copies of the following reports:
the Company's annual statement (prepared under statutory
accounting principles) and annual report (prepared under
generally accepted accounting principles (" GAAP"), if any), as
soon as practical and in any event within 90 days after the end
of each fiscal year;
(b) the Company's quarterly statements (statutory) (and GAAP, if
any), as soon as practical and in any event within 45 days after
the end of each quarterly period;
(c) any financial statement, proxy statement, notice or report of the
Company sent to stockholders and/or policyholders, as soon as
practical after the delivery thereof to stockholders;
(d) any registration statement (without exhibits) and financial
reports of the Company filed with the Securities and Exchange
Commission or any state insurance regulator, as soon as practical
after the filing thereof;
(e) any other report submitted to the Company by independent
accountants in connection with any annual, interim or special
audit made by them of the books of the Company, as soon as
practical after the receipt thereof.
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.
THE TRAVELERS INSURANCE COMPANY
By its authorized officer,
BY: /s/ ILLEGIBLE
------------------------------------
Title: Vice President
Date:
-----------------
THE TRAVELERS LIFE AND ANNUITY COMPANY
By its authorized officer,
By: /s/ ILLEGIBLE
------------------------------------
Title: Mr Vice President
Date:
By:
------------------------------------
Title:
---------------------------------
Date:
By:
------------------------------------
Title:
---------------------------------
Date:
By:
------------------------------------
Title:
---------------------------------
Date:
By its authorized officer,
By: /s/ ILLEGIBLE
------------------------------------
Title:
By its authorized officer,
By: /s/ ILLEGIBLE
------------------------------------
Title:
Chairman, President, Chief Executive
Officer, Chief Investment Officer
DELAWARE DISTRIBUTORS, INC., General Partner, by
DELAWARE DISTRIBUTORS, L.P. (Distributor)
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Executive Vice President/Chief Operating
Officer/Chief Financial Officer
Travelers Separate Account QP for Variable Annuities
Travelers Separate Account ABD for Variable Annuities
Travelers Separate Account ABD II for Variable Annuities
Travelers Separate Account TM for Variable Annuities
Travelers Separate Account ▇▇ ▇▇ for Variable Annuities
Travelers Separate Account Five for Variable Annuities
Travelers Separate Account Six for Variable Annuities
Delaware Group Premier Fund, Inc.
Series: REIT Series
Small Cap Value Series
SCHEDULE C ADMINISTRATIVE
SERVICES FOR THE FUND
- Maintaining a record of share purchases to assist transfer agent in
recording issuances of shares.
- Performing miscellaneous account services to assist transfer agent in
recording transfers of shares (via net purchase orders).
- Reconciliation and balancing of the separate account at the Fund level in
the general ledger and reconciliation of cash accounts at general account.
- Periodic information reporting to the Fund as mutually agreed to in writing
by the Insurer and the Fund.
- Telephonic support for Contract owners and Policy Holders with respect to
inquiries about the Fund (not including information about performance or
related to sales).
- Providing other adminstrative support to the Fund as mutually agreed to in
writing by the Insurer and the Fund.
- Relieving the Fund of other usual or incidental administrative services
provided to individual shareholders as mutually agreed to in writing by the
Insurer and the Fund.
- Preparation of reports to certain third-party reporting services as
mutually agreed to in writing by the Insurer and the Fund.
The applicable annual fee shall be forty basis points (.40%) of the aggregate
investments in the portfolios of the Fund by all separate accounts of the
Insurer related to Contracts as a percentage of the average daily net asset
value of such investments.
AMENDMENT NO.2 DATED APRIL 28, 2008
TO THE PARTICIPATION AGREEMENT DATED MAY 1, 1998, AS
PREVIOUSLY AMENDED
Amendment to the Participation Agreement (the "Agreement") by and among
MetLife Insurance Company of Connecticut, previously known as The Travelers Life
Insurance Company, on behalf of itself and certain of its segregated asset
accounts listed in Schedule A hereto, Delaware VIP Trust, Delaware Management
Company and Delaware Distributors, L.P.
WHEREAS, on May 1, 2006, The Travelers Insurance Company was renamed
MetLife Insurance Company of Connecticut ("MICC") and The Travelers Life and
Annuity Company was renamed MetLife Life and Annuity Company of Connecticut
("MLACC");
WHEREAS, the parties desire to amend the Agreement to cover unregistered
separate accounts, update the notice provision, update the names and expand the
list of MICC separate accounts listed in Schedule A, and update the name of the
trust listed in Schedule B.
NOW THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions set forth herein and for other good and valuable
consideration, each of the parties amends the Agreement as follow:
1. Paragraphs 7 and 8 are hereby deleted it their entirety and replaced
with the following:
"WHEREAS, the Company has registered interests under the Contracts
that are supported wholly or partially by the Separate Accounts under
the 1933 Act to the extent required; and
"WHEREAS, the Company has registered each Separate Account as a unit
investment trust under the 1940 Act and has registered (or will
register prior to sale) the securities deemed to be issued by each
Separate Account under the 1933 Act to the extent required; and"
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇., Vice President
Metropolitan Life Insurance Company
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Law Department
Office of General Counsel
Delaware Investments One
Commerce Square ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
3. Schedule A of the Agreement is hereby deleted in its entirety and
replaced with Schedule A attached hereto.
4. Schedule B of the Agreement is hereby deleted in its entirety and
replaced with Schedule B attached hereto.
Except as set forth above, expressly supplemented, amended or consented to
hereby, all of the representations and conditions of the Agreement will remain
unamended and will continue to be in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment No.2
to be executed in their names and on their behalf by and through their duly
authorized officers signing below.
METLIFE INSURANCE COMPANY OF
CONNECTICUT (on behalf of the Accounts
and itself)
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ By: /s/ Caul ▇. ▇▇ ▇▇▇▇▇
--------------------------------- ------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Its VICE PRESIDENT & Actuary
Its: President
DELAWARE M COMPANY
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /s/ ILLEGIBLE
--------------------------------- ------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Name: ILLEGIBLE
Its: Senior Vice President Its: Senior Vice President
MetLife of CT Separate Account ABD for Variable Annuities
MetLife of CT Separate Account ABD II for Variable Annuities
MetLife of CT Separate Account QP for Variable Annuities
MetLife of CT Separate Account TM for Variable Annuities
MetLife of CT Separate Account ▇▇ ▇▇ for Variable Annuities
MetLife of CT Separate Account Five for Variable Annuities
MetLife of CT Separate Account Six for Variable Annuities
MetLife of CT Fund UL III for Variable Life Insurance
MetLife of CT Separate Account CPPVULI (unregistered)
Delaware VIP Trust:
Small Cap Value Series
AMENDMENT TO PARTICIPATION AGREEMENT
THIS AMENDMENT is effective as of the 1st day of January, 2006 by and among
MetLife Insurance Company of Connecticut (formerly The Travelers Insurance
Company) and MetLife Life and Annuity Company of Connecticut (formerly The
Travelers Life and Annuity Company) ("MetLife of CT" or "Company"), Connecticut
corporations on their own behalf and on behalf of each segregated asset account
of MetLife of CT set forth on Schedule A of the Participation Agreement for
Insurance Mutual Funds dated May 1, 1998 (each an "Account"); Delaware VIP Trust
(formerly designated Delaware Group Premium Fund, Inc.), an open-end management
investment company organized as a statutory trust under the laws of the State of
Delaware (the "Fund"); Delaware Management Company, a series of Delaware
Management Business Trust, a statutory trust organized under the laws of the
State of Delaware and investment adviser to the Trust (the "Adviser"); and
Delaware Distributors, L.P., a limited partnership organized under the laws of
the State of Delaware and principal underwriter/distributor of the Trust (the
"Underwriter").
WHEREAS, MetLife of CT, the Fund, the Adviser and the Underwriter entered
into a Participation Agreement for Insurance Mutual Funds on May 1, 1998 (the
"Agreement") pursuant to which MetLife of CT purchases shares of series of the
Fund on behalf of each Account to fund certain variable life and variable
annuity contracts; and
WHEREAS, MetLife of CT, the Fund, the Adviser and the Underwriter now
desire to amend the Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements
contained herein, the parties hereto agree as follows:
1. References to Delaware Group Premium Fund Inc. are hereby replaced with
references to Delaware VIP Trust.
2.13 If the Fund requests information or other assistance from the
Company in connection with its efforts to prevent abusive trading
practices, including market timing, excessive trading and short-term
trading, pursuant to the Fund's policies and procedures as described in the
Fund's current prospectuses, the Company will provide reasonable
cooperation with such efforts.
3. Schedule D to the Agreement is hereby deleted and replaced in its
entirety with the attached amended Schedule D, and all references in the
Agreement to Schedule D shall be deemed to refer to the attached Schedule D.
4. Except as provided herein, the Agreement shall remain in full force and
effect. In the event of any conflict between the terms of this Amendment and the
Agreement, the terms of this Amendment shall control. All terms not otherwise
defined in this Amendment shall have the meanings given to them in the
Agreement.
IN WITNESS WHEREOF, the parties have executed this Amendment to be executed
as of the date first written above.
METLIFE INSURANCE COMPANY OF CONNECTICUT
By: /s/ ILLEGIBLE
------------------------------------
Name:
Title:
METLIFE LIFE AND ANNUITY COMPANY OF
CONNECTICUT
By: /s/ ILLEGIBLE
------------------------------------
Name:
Title:
/s/ ILLEGIBLE
----------------------------------------
Title:
DELAWARE MANAGEMENT COMPANY
By: /s/ ILLEGIBLE
------------------------------------
Name:
Title:
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: President & CEO
SCHEDULE D
Fees
The applicable annual fee shall be 20 basis points (0.20%) of the aggregate
investments in the series of the Fund by all separate accounts of Met Life of CT
related to Contracts as a percentage of the average daily net asset value of
such investments.
AMENDMENT DATED MAY 3, 2004 TO
THE
PARTICIPATION AGREEMENT DATED MAY 1, 1998
Amendment to the Participation Agreement (the "Agreement") by and among Delaware
VIP Trust (the "Fund"), Delaware Management Company ("Adviser"), The Travelers
Insurance Company and The Travelers Life and Annuity Company (collectively, the
"Company"); each on behalf of itself and each of its segregated asset accounts
("Accounts") listed in Schedule A hereto, and Delaware Distributors, L.P.
WHEREAS, each of the parties desires to expand the Accounts of the Company which
invest in shares of the Fund, each of the parties hereby agrees to amend
Schedule A.
NOW THEREFORE, in consideration of the promises and the mutual agreements herein
contained, the parties hereto agree to amend the Agreement by replacing the
existing Schedule A with the attached Schedule A dated May 3, 2004.
Except as expressly supplemented, amended or consented to hereby, all of the
representations and conditions of the Agreement will remain unamended and will
continue to be in full force and effect.
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to the
Agreement to be executed on their names and one their behalf by and through
their duly authorized officers signing below.
By:
------------------------------------
Title:
---------------------------------
Date:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
Date:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
Date:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
By:
------------------------------------
Title:
---------------------------------
The Travelers Fund ABD for Variable Annuities
The Travelers Fund BD III for Variable Annuities
The Travelers Fund U for Variable Annuities
The Travelers Fund UL for Variable Life Insurance
The Travelers Fund UL III for Variable Life Insurance
The Travelers Separate Account Five for Variable Annuities
The Travelers Separate Account Nine for Variable Annuities
The Travelers Separate Account PP for Variable Annuities
The Travelers Separate Account QP for Variable Annuities
The Travelers Separate Account QPN for Variable Annuities
The Travelers Separate Account TM for Variable Annuities
TIC Separate Account Eleven for Variable Annuities
TIC Separate Account Thirteen for Variable Annuities
TIC Variable Annuity Separate Account 2002
The Travelers Fund ABD II for Variable Annuities
The Travelers Fund ▇▇ ▇▇ for Variable Annuities
The Travelers Fund UL II for Variable Life Insurance
The Travelers Separate Account Six for Variable Annuities
The Travelers Separate Account Ten for Variable Annuities
The Travelers Separate Account ▇▇ ▇▇ for Variable Annuities
TLAC Separate Account Twelve for Variable Annuities
TLAC Separate Account Fourteen for Variable Annuities
TLAC Variable Annuity Separate Account 2002
Amendment dated May 1, 2003 to
the
Participation Agreement dated May 1,1998
Amendment to the Participation Agreement by and among Delaware VIP Trust (the
"Fund"), Delaware Management Company ("Adviser"), The Travelers Insurance
Company, and The Travelers Life and Annuity Company, (collectively, the
"Company"); each on behalf of itself and each of its segregated asset accounts
("Accounts") listed in Schedule A hereto, and Delaware Distributors, L.P.
WHEREAS, each of the parties desires to expand the Accounts of the Company which
invest in shares of the Fund, each of the parties hereby agrees to amend
Schedule A of the Agreement by replacing the existing Schedule A with the
attached Schedule A dated May 1,2003:- .. - --
IN WITNESS WHEREOF, each of the parties hereto have caused this Amendment to the
Agreement to be executed in their names and on their behalf by and through their
duly authorized officers signing below.
THE TRAVELERS INSURANCE COMPANY
By: /s/ ILLEGIBLE
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Title: ILLEGIBLE
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Date: ILLEGIBLE
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THE TRAVELERS LIFE AND ANNUITY COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
VP and Secretary
Date: April 25, 2003
DELAWARE VIP TRUST
/s/ ILLEGIBLE
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Illegible
May 1, 2003
/s/ ILLEGIBLE
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President
May 1, 2003
/s/ ILLEGIBLE
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Title: President
Date: May 1, 2003
Schedule A (May 1,2003)
Separate Account ABD
Separate Account BD III
Separate Account Five
Separate Account Fund U
Separate Account Nine
Separate Account QP
Separate Account QPN
Separate Account TM
Separate Account PP
Separate Account UL III
Separate Account Eleven
Separate Account Thirteen
Separate Account 2002
Separate Account ABD II
Separate Account ▇▇ ▇▇
Separate Account Six
Separate Account Ten
Separate Account ▇▇ ▇▇
Separate Account Twelve
Separate Account Fourteen
Separate Account 2002