PARTICIPATION AGREEMENT Among SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.), SUN LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK FIRST EAGLE SOGEN VARIABLE FUNDS, INC., and ARNHOLD AND S. BLEICHROEDER, INC.
Among
SUN
LIFE
ASSURANCE COMPANY OF CANADA (U.S.),
SUN
LIFE
INSURANCE AND ANNUITY COMPANY OF NEW YORK
FIRST
EAGLE SOGEN VARIABLE FUNDS, INC.,
and
▇▇▇▇▇▇▇
AND ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, INC.
THIS
AGREEMENT, dated as of the 30th day of September 2002 by and among Sun Life
Assurance Company of Canada (U.S.), a Delaware insurance company, Sun Life
Insurance and Annuity Company of New York, a New York insurance company (each
of
which is hereinafter referred to as the åCompanyæ), on its own behalf and on
behalf of each segregated asset account of the Company set forth on Schedule
A
hereto as may be amended from time to time (each account hereinafter referred
to
as the "Account"), First Eagle SoGen Variable Funds, Inc. (the "Fund"), a
corporation organized under the laws of Maryland, and ▇▇▇▇▇▇▇ and S.
Bleichroeder, Inc. (the "Underwriter"), a New York corporation.
WHEREAS,
the Fund engages in business as an open-end management investment company and
is
or will be available to act as the investment vehicle for separate accounts
established for variable life insurance and variable annuity contracts (the
"Variable Insurance Products") to be offered by insurance companies which have
entered into participation agreements with the Fund and Underwriter
("Participating Insurance Companies");
WHEREAS,
the shares of common stock of the Fund are divided into several series of
shares, each designated a "Portfolio" and representing the interest in a
particular managed portfolio of securities and other assets;
WHEREAS,
the Fund has obtained an order from the Securities and Exchange Commission
(the
"SEC") granting Participating Insurance Companies and variable annuity and
variable life insurance separate accounts exemptions from the provisions of
sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company Act of 1940,
as
amended, (the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder,
if and to the extent necessary to permit shares of the Fund to be sold to and
held by variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated life insurance companies (the "Mixed and Shared
Funding Exemptive Order");
WHEREAS,
the Fund is registered as an open-end management investment company under the
1940 Act and shares of the Portfolios are registered under the Securities Act
of
1933, as amended (the "1933 Act");
WHEREAS,
▇▇▇▇▇▇▇ and ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ Advisers, Inc. (the "Adviser"), which serves as
investment adviser to the Fund, is duly registered as an investment adviser
under the federal Investment Advisers Act of 1940, as amended, and any
applicable state securities laws;
WHEREAS,
the Company has issued or will issue certain variable life insurance and/or
variable annuity contracts supported wholly or partially by the Account (the
"Contracts"), and said Contracts are listed in Schedule A hereto, as it may
be
amended from time to time by mutual written agreement;
WHEREAS,
the Account is duly established and maintained as a segregated asset account,
duly established by the Company, on the date shown for such Account on Schedule
A hereto, to set aside and invest assets attributable to the aforesaid
Contracts;
WHEREAS,
the Underwriter, which serves as distributor to the Fund, 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. (the "NASD"); and
WHEREAS,
to the extent permitted by applicable insurance laws and regulations, the
Company intends to purchase shares in the portfolios of the Fund listed in
Schedule A hereto, as it may be amended from time to time by mutual written
agreement (the "Designated Portfolios") on behalf of the Account to fund the
aforesaid Contracts, and the Underwriter is authorized to sell such shares
to
the Account at net asset value;
NOW,
THEREFORE, in consideration of their mutual promises, the Company, the Fund
and
the Underwriter agree as follows:
ARTICLE
I. Sale of Fund Shares
1.1
The
Fund has granted to the Underwriter exclusive authority to distribute the Fund's
shares, and has agreed to instruct, and has so instructed, the Underwriter
to
make available to the Company, for purchase on behalf of the Account, Fund
shares of those Designated Portfolios selected by the Underwriter. Pursuant
to
such authority and instructions, the Underwriter agrees to make available to
the
Company for purchase on behalf of the Account, shares of those Designated
Portfolios listed on Schedule A to this Agreement, such purchases to be effected
at net asset value in accordance with Section 1.3 of this Agreement.
Notwithstanding the foregoing, (i) Fund series (other than those listed on
Schedule A) in existence now or that may be established in the future will
be
made available to the Company only as the Underwriter may so provide, and (ii)
the Board of Directors of the Fund (the "Board") may suspend or terminate the
offering of Fund shares of any Designated Portfolio or class thereof, if such
action is required by law or by regulatory authorities having jurisdiction
or
if, in the sole discretion of the Board acting in good faith and in light of
its
fiduciary duties under federal and any applicable state laws, suspension or
termination is necessary in the best interests of the shareholders of such
Designated Portfolio.
1.2
The
Fund shall redeem for cash, at the Company's request, any full or fractional
Designated Portfolio shares held by the Company on behalf of the Account, such
redemptions to be effected at net asset value in accordance with Section 1.3
of
this Agreement. Notwithstanding the foregoing, (i) the Company shall not redeem
Fund shares attributable to Contract owners except in the circumstances
permitted in Section 10.3 of this Agreement, and (ii) the Fund may delay
redemption of Fund shares of any Designated Portfolio to the extent permitted
by
the 1940 Act, any rules, regulations or orders thereunder.
1.3
Purchase and Redemption Procedures
(a)
The
Fund hereby appoints the Company as an agent of the Fund for the limited purpose
of receiving purchase and redemption requests on behalf of the Account for
shares of those Designated Portfolios made available hereunder, based on
allocations of amounts to the Account or subaccounts thereof under the Contracts
and other transactions relating to the Contracts or the Account. Receipt of
any
such request (or relevant transactional information therefor) on any day the
New
York Stock Exchange is open for trading and on which the Fund calculates its
net
asset value pursuant to the rules of the SEC (a "Business Day") by the Company
as such limited agent of the Fund prior to the time that the Fund calculates
its
net asset value as described from time to time in the Fund Prospectus (which
as
of the date of execution of this Agreement is 4:00 p.m. Eastern Time) shall
constitute receipt by the Fund on that same Business Day, provided that the
Fund
receives notice of such request by 9:30 a.m. Eastern Time on the next following
Business Day.
(b)
The
Company shall pay for shares of each Designated Portfolio on the same day that
it notifies the Fund of a purchase request for such shares. Payment for
Designated Portfolio shares shall be made in federal funds transmitted to the
Fund by wire to be received by the Fund by 4:00 p.m. Eastern Time on the day
the
Fund is notified of the purchase request for Designated Portfolio shares (unless
the Fund determines and so advises the Company that sufficient proceeds are
available from redemption of shares of other Designated Portfolios effected
pursuant to redemption requests tendered by the Company on behalf of the
Account). Upon receipt by the Fund of federal funds so wired, such funds shall
cease to be the responsibility of the Company and shall become the
responsibility of the Fund.
(c)
Payment for Designated Portfolio shares redeemed by the Account or the Company
shall be made in federal funds transmitted by wire to the Company or any other
designated person on the next Business Day following the trade date (T+1
settlement), except that the Fund reserves the right to delay payment of
redemption proceeds to the extent permitted under Section 22(e) of the 1940
Act
and any Rules thereunder, and in accordance with the procedures and policies
of
the Fund as described in the then current prospectus. The Fund shall not bear
any responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds by the Company. The Company alone shall be responsible
for
such action.
1.4
The
Fund shall use its best efforts to make the net asset value per share for each
Designated Portfolio available to the Company by 6:30 p.m. Eastern Time each
Business Day, and in any event, as soon as reasonably practicable after the
net
asset value per share for such Designated Portfolio is calculated, and shall
calculate such net asset value in accordance with the Fund's Prospectus. If
the
Fund provides the Company with materially incorrect share net asset value
information through no fault of the Company, the Company on behalf of the
Account shall be entitled, to the extent reasonably practicable, to an
adjustment to the number of shares purchased or redeemed to reflect the correct
net asset value, and the Underwriter shall promptly, on request of the Company,
reimburse the Company, for any reasonable out-of-pocket charges, costs, fees
or
other expenses incurred by the Company in implementing the steps determined
by
the Fund to be necessary to correct the pricing error. Neither the Fund, any
Designated Portfolio, the Underwriter, 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 or the Underwriter.
1.5
The
Fund shall furnish notice (by wire or telephone followed by written
confirmation) to the Company as soon as reasonably practicable of any income
dividends or capital gain distributions payable on any Designated Portfolio
shares. The Company, on its behalf and on behalf of the Account, hereby elects
to receive all such dividends and distributions as are payable on any Designated
Portfolio shares in the form of additional shares of that Designated Portfolio.
The Company reserves the right, on its behalf and on behalf of the Account,
to
revoke this election and to receive all such dividends and capital gain
distributions in cash. The Fund shall notify the Company promptly of the number
of Designated Portfolio shares so issued as payment of such dividends and
distributions.
1.6
Issuance and transfer of Fund shares shall be by book entry only. Stock
certificates will not be issued to the Company or the Account. Purchase and
redemption orders for Fund shares shall be recorded in an appropriate ledger
for
the Account or the appropriate subaccount of the Account.
1.7
The
parties hereto acknowledge that the arrangement contemplated by this Agreement
is not exclusive; the Fund's shares may be sold to other insurance companies
(subject to Section 1.8 hereof) and the cash value of the Contracts may be
invested in other investment companies.
1.8
The
Underwriter and the Fund shall sell Fund shares only to Participating Insurance
Companies and their separate accounts and to persons or plans ("Qualified
Persons") that qualify to purchase shares of the Fund under Section 817(h)
of
the Internal Revenue Code of 1986, as amended (the "Code") and the regulations
thereunder without impairing the ability of the Account to consider the
portfolio investments of the Fund as constituting investments of the Account
for
the purpose of satisfying the diversification requirements of Section 817(h).
The Underwriter and the Fund shall not sell Fund shares to any insurance company
or separate account unless an agreement complying with Article VI of this
Agreement is in effect to govern such sales. Subject to Sections 6.1 and 6.2
hereof, the Company hereby represents and warrants that it and the Account
are
Qualified Persons. The Fund reserves the right to cease offering shares of
any
Designated Portfolio in the discretion of the Fund.
ARTICLE
II. Representations and Warranties
2.1
The
Company represents and warrants that the Contracts (a) are or, prior to
issuance, will be registered under the 1933 Act or, alternatively (b) are not
registered because they are properly exempt from registration under the 1933
Act
or will be offered exclusively in transactions that are properly exempt from
registration under the 1933 Act. The Company further represents and warrants
that the Contracts will be issued and sold in compliance in all material
respects with all applicable federal securities and state securities and
insurance laws. The Company further represents and warrants that it is an
insurance company duly organized and in good standing under applicable law,
that
it has legally and validly established the Account prior to any issuance or
sale
thereof as a segregated asset account under Delaware insurance laws, and that
it
(a) has registered or, prior to any issuance or sale of the Contracts, will
register the Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for
the
Contracts, or alternatively (b) has not registered the Account in proper
reliance upon an exclusion from registration under the 1940 Act. The Company
shall register and qualify the Contracts or interests therein as securities
in
accordance with the laws of the various states only if and to the extent deemed
advisable by the Company.
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 state and federal securities laws 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 or the Underwriter.
2.3
The
Fund intends to make payments to finance distribution expenses pursuant to
Rule
12b-1 under the 1940 Act. In this regard, the Fund's board of directors, a
majority of whom are not interested persons of the Fund, have formulated and
approved the Fund's plan adopted pursuant to Rule 12b-1 under the 1940 Act
to
finance distribution expenses.
2.4
The
Fund makes no representations as to whether any aspect of its operations,
including, but not limited to, investment policies, fees and expenses, complies
with the insurance and other applicable laws of the various states. The Fund
agrees to comply with such state laws to the extent required to perform this
Agreement, provided, however, that the Company shall notify the Fund with
respect to the requirements of such state laws and any additional requirements
that are specifically directed to the Company by state insurance
departments.
2.5
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 in all material
respects with the 1940 Act.
2.6
The
Underwriter represents and warrants that it is a member in good standing of
the
NASD 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
any applicable state and federal securities laws.
2.7
The
Underwriter represents and warrants that the Adviser is and shall remain duly
registered under all applicable federal and state securities laws and that
the
Adviser shall perform its obligations for the Fund in compliance in all material
respects with applicable state and federal securities laws.
2.8
The
Fund and the Underwriter represent and warrant that all of their directors,
officers, employees, investment advisers, and other individuals or entities
dealing with the money and/or securities of the Fund are and shall continue
to
be at all times covered by a blanket fidelity bond or similar coverage for
the
benefit of the Fund in an amount not less than the minimum coverage as required
currently by Rule 17g-1 of the 1940 Act or related provisions as may be
promulgated from time to time. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding
company.
2.9
The
Company represents and warrants that all of its directors, officers, employees,
investment advisers, and other individuals/entities employed or controlled
by
the Company dealing with the money and/or securities of the Account are covered
by a blanket fidelity bond or similar coverage intended for the benefit of
the
Account , in an amount not less than $5 million. The aforesaid bond includes
coverage for larceny and embezzlement and is issued by a reputable bonding
company.
2.10
The
Company represents and warrants that it will comply with applicable laws,
regulations and other requirements relating to money laundering that apply
to
the Company. The Company undertakes that it shall (a) conduct its operations
in
accordance with applicable laws, regulations and other requirements relating
to
money laundering; (b) comply with requirements or requests in connection
therewith made by appropriate regulatory authorities, the Underwriter and,
if
appropriate, the Fund and relating to the Company’s anti-laundering compliance;
(c) upon request, provide a fair summary of its anti-money laundering program
to
the Underwriter or the Fund (d) upon reasonable request, certify, in writing
that the Company is in compliance with applicable anti-money laundering laws,
rules, regulations and other requirements with respect to the services provided
under this Agreement; and (e) provide periodic reports to the Underwriter and,
if appropriate, the Fund, concerning anti-money laundering activities and
compliance exceptions, as may be agreed upon from time to time among the
parties.
ARTICLE
III. Prospectuses and Proxy Statements; Voting
3.1
The
Underwriter shall provide the Company with as many copies of the Fund's current
prospectus (describing only the Designated Portfolios listed on Schedule A)
as
the Company may reasonably request. The Fund shall bear the expense of printing
copies of the Fund’s current prospectus that will be distributed to existing
Contract owners, and the Company shall bear the expense of printing copies
of
the Fund's prospectus that are used in connection with offering the Contracts
issued by the Company. If requested by the Company in lieu thereof, the Fund
shall provide such documentation (including a final copy of the new prospectus
on diskette at the Fund's expense) and other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus for the Fund is amended) to have the prospectus for the Contracts
and
the prospectus for the Designated Portfolios printed together in one document.
3.2
The
Fund's prospectus shall state that the current Statement of Additional
Information ("SAI") for the Fund is available, and the Underwriter (or the
Fund), at its expense, shall provide a reasonable number of copies of such
SAI
free of charge to the Company for itself and for any owner of a Contract who
requests such SAI.
3.3
The
Fund, at its expense, shall provide the Company with copies of its proxy
material, reports to shareholders, and other communications to shareholders
in
such quantity as the Company shall reasonably require for distributing to
Contract owners.
3.4
In
the event a meeting of shareholders of the Fund (or any Designated Portfolio)
is
called by the Fund’s trustees or the shareholders, the Company
shall:
(i)
solicit voting instructions from Contract owners;
(ii)
vote
the Fund shares in accordance with instructions received from Contract owners;
and
(iii)
vote Fund shares for which no instructions have been received in the same
proportion as Fund shares of such portfolio for which instructions have been
received from Contract owners, so long as and to the extent that the SEC
continues to interpret the 1940 Act to require pass-through voting privileges
for variable contract owners.
3.5
Participating Insurance Companies shall be responsible for assuring that each
of
their separate accounts participating in a Designated Portfolio calculates
voting privileges as required by the Shared Funding Exemptive Order and
consistent with any reasonable standards that the Fund may adopt and provide
in
writing. The Fund hereby confirms that the manner in which the Company currently
calculates voting privileges is consistent with the manner in which other
Participating Insurance Companies are required to calculate voting privileges.
The Fund and the Underwriter will notify the Company if either becomes aware
that another Participating Insurance Company has changed the manner in which
it
so calculates voting privileges.
3.6
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(c) of the 1940 Act (although the Fund is not one
of
the trusts described in Section 16(c) of that Act) as well as Sections 16(a)
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 trustees and with whatever rule the Commission may
promulgate with respect thereto .
ARTICLE
IV. Sales Material and Information
4.1
The
Company shall furnish, or shall cause to be furnished, to the Fund or its
designee, at least ten (10) business days prior to first use, each piece of
sales literature or other promotional material that the Company develops and
in
which the Fund (or a Designated Portfolio thereof) or the Adviser or the
Underwriter is named. No such material shall be used until approved by the
Fund
or its designee, and the Fund or its designee shall review such sales literature
or promotional material within ten (10) Business Days after receipt of such
material. The Fund or its designee reserves the right to reasonably object
to
the continued use of any such sales literature or other promotional material
in
which the Fund (or a Designated Portfolio thereof) or the Adviser or the
Underwriter is named, and no such material shall be used if the Fund or its
designee so object.
4.2
The
Company 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 or SAI for the Fund shares, as such
registration statement and prospectus or SAI 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 and the Underwriter, or their designee, shall furnish, or shall cause
to
be, furnished, to the Company, at least ten (10) business days prior to first
use, each piece of sales literature or other promotional material that it
develops and in which the Company, and/or its Account, or the Contracts, is
named. No such material shall be used until approved by the Company, and the
Company shall review such sales literature or promotional material within ten
(10) Business Days after receipt of such material. The Company reserves the
right to reasonably object to the continued use of any such sales literature
or
other promotional material in which the Company and/or its Account, or the
Contracts, is named, and no such material shall be used if the Company so
objects.
4.4
The
Fund and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, the Account,
or the Contracts other than the information or representations contained in
a
registration statement, prospectus (which shall include an offering memorandum,
if any, if the Contracts issued by the Company or interests therein are not
registered under the 1933 Act), or SAI for the Contracts, as such registration
statement, prospectus, or SAI may be amended or supplemented from time to time,
or in published reports for the Account which are in the public domain or
approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5
The
Fund will provide to the Company at least one complete copy of all registration
statements, prospectuses, SAIs, 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, contemporaneously with the filing of such document(s) with the SEC
or
other regulatory authorities. The Fund will provide to the Company any
complaints received that pertain to the Company, the Account, or the
Contracts.
4.6
The
Company will provide to the Fund at least one complete copy of all registration
statements, prospectuses (which shall include an offering memorandum, if any,
if
the Contracts issued by the Company or interests therein are not registered
under the 1933 Act), SAIs, reports, solicitations for voting instructions,
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 Contracts or the Account, contemporaneously with the filing of
such document(s) with the SEC or other regulatory authorities. The Company
shall
provide to the Fund and the Underwriter any complaints received from the
Contract owners pertaining to the Fund or the Designated Portfolio.
4.7
The
Fund will provide the Company with as much notice as is reasonably practicable
of any proxy solicitation for any Designated Portfolio, and of any material
change in the Fund's registration statement, particularly any change resulting
in a change to the registration statement or prospectus for any Account. The
Fund will work with the Company so as to enable the Company to solicit proxies
from Contract owners, or to make changes to its prospectus or registration
statement, in an orderly manner. The Fund will make reasonable efforts to
attempt to have changes affecting Contract prospectuses become effective
simultaneously with the annual updates for such prospectuses.
4.8
For
purposes of this Article IV, the phrase "sales literature and other promotional
materials" includes, but is not limited to, any of the following that refer
to
the Fund or any affiliate of the Fund: advertisements (such as material
published, or designed for use in, a newspaper, magazine, or other periodical,
radio, television, telephone or tape recording, videotape display, signs or
billboards, motion pictures, or other public media), and sales literature (i.e.,
any written or electronic communication distributed or made generally available
to customers or the public, including brochures, circulars, reports, market
letters, form letters, telemarketing scripts, seminar texts, reprints or
excerpts of any other advertisement, sales literature, or published article),
distributed or made generally available to customers or to the public,
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, and registration
statements, prospectuses, SAIs, shareholder reports, proxy materials, and any
other communications distributed or made generally available with regard to
the
Fund.
ARTICLE
V. Fees and Expenses
5.1
The
Fund and the Underwriter shall pay no fee or other compensation to the Company
under this Agreement, except that, the Underwriter may, to the extent permitted
under the Fund's distribution plan adopted pursuant to Rule 12b-1 under the
1940
Act, make payments to the Company or to the underwriter for the Contracts if
and
in amounts agreed to by the Underwriter in writing, and such payments will
be
made out of existing fees otherwise payable to the Underwriter, past profits
of
the Underwriter, or other resources available to the Underwriter. No such
payments shall be made directly by the Fund.
5.2
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 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 and registration statement, proxy materials and reports,
setting the prospectus in type, and printing prospectuses to be distributed
to
existing Contract owners, 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. The Fund shall also bear the expenses of distributing
proxy materials.
5.3
The
Company shall bear the expenses of distributing the Fund's prospectus and
reports to owners of Contracts issued by the Company. The Company shall also
bear the expenses of printing and distributing prospectuses and reports
distributed to prospective purchasers of the Contracts.
ARTICLE
VI. Diversification and Qualification
6.1
The
Fund will at all times invest its assets in such a manner as to ensure that
the
Contracts will be treated as annuity or life insurance contracts, whichever
is
appropriate, under the Code and the regulations issued thereunder (or any
successor provisions). Without limiting the scope of the foregoing, each
Designated Portfolio has complied and will continue to comply with Section
817(h) of the Code and Treasury Regulation §1.817-5, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts, and any amendments
or
other modifications or successor provisions to such Section or Regulations.
In
the event of a breach of this Article VI by the Fund, it will promptly (a)
notify the Company of such breach and (b) take all reasonable steps to
adequately diversify the Fund so as to achieve compliance within the grace
period afforded by Regulation 817.5.
6.2
The
Fund represents that it is or will be qualified as a Regulated Investment
Company under Subchapter M of the Code, and that it will make every effort
to
maintain such qualification (under Subchapter M or any successor or similar
provisions) and that it will notify the Company 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.
6.3
Subject to Sections 6.1 and 6.2 hereof, the Company represents that the
Contracts are currently, and at the time of issuance shall be, treated as life
insurance or annuity insurance 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 the Contracts have ceased to be so treated or that they
might not be so treated in the future.
ARTICLE
VII. Potential Conflicts
The
following provisions shall apply only upon issuance of the Mixed and Shared
Funding Order and the sale of shares of the Fund to variable life insurance
separate accounts.
7.1
The
Board will monitor the Fund for the existence of any material irreconcilable
conflict between the interests of the Contract owners of all separate accounts
investing in the Fund. An irreconcilable material conflict may arise for a
variety of reasons, including: (a) an action by any state insurance regulatory
authority; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance, tax,
or
securities regulatory authorities; (c) an administrative or judicial decision
in
any relevant proceeding; (d) the manner in which the investments of any
Portfolio are being managed; (e) a difference in voting instructions given
by
variable annuity contract and variable life insurance contract owners; or (f)
a
decision by an insurer to disregard the voting instructions of contract owners.
The Board shall promptly inform the Company if it determines that an
irreconcilable material conflict exists and the implications
thereof.
7.2
The
Company will report any potential or existing conflicts of which it is aware
to
the Board. The Company will assist the Board in carrying out its
responsibilities under the Mixed and Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board
to
consider any issues raised. This includes, but is not limited to, an obligation
by the Company to inform the Board whenever Contract owner voting instructions
are disregarded.
7.3
If it
is determined by a majority of the Board, or a majority of its disinterested
members, that a material irreconcilable conflict exists, the Company and other
Participating Insurance Companies shall, at their expense (to be allocated
as
near as practicable in proportion to such parties' respective responsibilities
for such conflict) and to the extent reasonably practicable (as determined
by a
majority of the disinterested Board members), take whatever steps are necessary
to remedy or eliminate the irreconcilable material conflict, up to and
including: (1) withdrawing the assets allocable to some or all of the separate
accounts from the Fund or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio
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., annuity contract owners,
life insurance contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation,
or
offering to the affected contract owners the option of making such a change;
and
(2) establishing a new registered management investment company or managed
separate account.
7.4
If a
material irreconcilable conflict arises because of a decision by the Company
to
disregard Contract owner voting instructions and that decision represents a
minority position or would preclude a majority vote, the Company may be
required, at the Fund's election, to withdraw the Account's investment in the
Fund and terminate this Agreement with respect to each Account; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by
a
majority of the disinterested members of the Board. Any such withdrawal and
termination must take place within six (6) months after the Fund gives written
notice that this provision is being implemented, and until the end of that
six
month period the Fund shall continue to accept and implement orders by the
Company for the purchase (and redemption) of shares of the Fund.
7.5
If a
material irreconcilable conflict arises because a particular state insurance
regulator's decision applicable to the Company conflicts with the majority
of
other state regulators, then the Company will withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such Account
within six months after the Board informs the Company in writing that it has
determined that such decision has created an irreconcilable material conflict;
provided, however, that such withdrawal and termination shall be limited to
the
extent required by the foregoing material irreconcilable conflict as determined
by a majority of the disinterested members of the Board. Until the end of the
foregoing six month period, the Fund shall continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the
Fund.
7.6
For
purposes of Section 7.3 through 7.6 of this Agreement, a majority of the
disinterested members of the Board shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Fund be required to establish a new funding medium for the Contracts. The
Company shall not be required by Section 7.3 to establish a new funding medium
for the Contract if an offer to do so has been declined by vote of a majority
of
Contract owners materially adversely affected by the irreconcilable material
conflict. In the event that the Board determines that any proposed action does
not adequately remedy any irreconcilable material conflict, then the Company
will withdraw the Account's investment in the Fund and terminate this Agreement
within six (6) months after the Board informs the Company in writing of the
foregoing determination; provided, however, that such withdrawal and termination
shall be limited to the extent required by any such material irreconcilable
conflict as determined by a majority of the disinterested members of the
Board.
7.7
If
and to the extent the Mixed and Shared Funding Exemptive Order or any amendment
thereto contains terms and conditions different from Sections 3.4, 3.5, 3.6,
7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement, then (a) the Fund will provide
written notice of such differences to the Company, including a description
of
all steps necessary to comply with the Mixed and Shared Funding Exemptive Order;
and (b) the Fund and/or the Company, as appropriate, shall take such steps
as
may be necessary to comply with the Mixed and Shared Funding Exemptive Order,
and Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4 and 7.5 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in the Mixed and Shared Funding
Exemptive Order or any amendment thereto. If and to the extent that Rule 6e-2
and Rule 6e-3(T) are amended, or Rule 6e-3 is adopted, to provide exemptive
relief from any provision of the 1940 Act or the rules promulgated thereunder
with respect to mixed or shared funding (as defined in the Mixed and Shared
Funding Exemptive Order) on terms and conditions materially different from
those
contained in the Mixed and Shared Funding Exemptive Order, then (a) the Fund
will provide written notice of such differences to the Company, including a
description of all steps necessary to comply with Rule 6e-2 and 6e-3(T), as
amended, or Rule 6e-3, as adopted; and (b) the Fund and/or the Company, as
appropriate, shall take such steps as may be necessary to comply with Rules
6e-2
and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules
are
applicable; and (c) Sections 3.4, 3.5, 7.1., 7.2, 7.3, 7.4, and 7.5 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
ARTICLE
VIII. Indemnification
8.1
Indemnification By the Company
8.1(a).
The Company agrees to indemnify and hold harmless the Fund, the Underwriter,
the
Adviser and each of its directors and officers, and each person, if any, who
controls the Fund or Underwriter within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this Section 8.1)
against any and all losses, claims, damages, liabilities (including amounts
paid
in settlement with the written consent of the Company) or litigation (including
legal and other expenses), to which the Indemnified Parties may become subject
under any statute or regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements:
(i)
arise
out of or are based upon any untrue statement or alleged untrue statements
of
any material fact contained in the registration statement, prospectus (which
shall include an offering memorandum, if any), or SAI 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 the Company by or on behalf of the Fund for use in the registration
statement, prospectus or SAI 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, SAI, or sales literature of the Fund not supplied by the Company
or
persons under its control) or wrongful conduct of the Company or its agents
or
persons under the Company's authorization or control, with respect to the sale
or distribution of the Contracts or Fund Shares; or
(iii)
arise out of any untrue statement or alleged untrue statement of a material
fact
contained in a registration statement, prospectus, SAI, or sales literature
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 the Company; or
(iv)
arise as a result of any material failure by the Company to provide the services
and furnish the materials under the terms of this Agreement (including a
failure, whether unintentional or in good faith or otherwise, to comply with
the
qualification requirements specified in Article VI of this Agreement);
or
(v)
arise
out of or result from any material breach of any representation and/or warranty
made by the Company in this Agreement or arise out of or result from any other
material breach of this Agreement by the Company,
as
limited by and in accordance with the provisions of Sections 8.1 (b) and 8.1
(c)
hereof.
8.1(b).
The Company 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 or by reason of such Indemnified Party's
reckless disregard of its obligations or duties under this
Agreement.
8.1(c).
The Company 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 Company in writing within a reasonable time after
the summons or other first legal process giving information of the nature of
the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify the Company of any such claim shall not relieve
the Company from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against an
Indemnified Party, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company also shall be entitled
to
assume the defense thereof, with counsel satisfactory to the party named in
the
action. After notice from the Company to such party of the Company's election
to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Company will not
be
liable to such party under this Agreement for any legal or other expenses
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
8.1(d).
The Indemnified Parties will promptly notify the Company 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.
8.2
Indemnification by the Underwriter
8.2(a).
The Underwriter agrees to indemnify and hold harmless the Company and each
of it
directors and officer and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) 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 or
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or
settlements:
(i)
arise
out of or are based upon any untrue statement or alleged untrue statement of
any
material fact contained in the registration statement or prospectus or SAI
or
sales literature 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 Underwriter or Fund
by
or on behalf of the Company for use in the registration statement, prospectus
or
SAI for the Fund or in sales literature (or 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, SAI or sales literature for the Contracts not supplied by the
Underwriter or persons under its control) or wrongful conduct of the Fund 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 a registration statement, prospectus, SAI 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 the Company by or on behalf of the Fund or the Underwriter;
or
(iv)
arise as a result of any failure by the Fund or the Underwriter to provide
the
services and furnish the materials under the terms of this Agreement (including
a failure of the Fund, whether unintentional or in good faith or otherwise,
to
comply with the diversification and other qualification requirements specified
in Article VI of this Agreement); or
(v)
arise
out of or result from any material breach of any representation and/or warranty
made by the Underwriter in this Agreement or arise out of or result from any
other material breach of this Agreement by the Underwriter;
as
limited by and in accordance with the provisions of Sections 8.2(b) and 8.2(c)
hereof.
8.2(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
or such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Company or the Account, whichever is applicable.
8.2(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 Party, 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.
8.2(d).
The Company 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 the
Account.
ARTICLE
IX. Applicable Law
9.1
This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of the State of New York.
9.2
This
Agreement shall be subject to the provisions of the 1933, 1934 and 1940 Acts,
and the rules and regulations and rulings thereunder, including such exemptions
from those statutes, rules and regulations as the SEC may grant (including,
but
not limited to, the Mixed and Shared Funding Exemptive Order) and the terms
hereof shall be interpreted and construed in accordance therewith. If, in the
future, the Mixed and Shared Funding Exemptive Order should no longer be
necessary under applicable law, then Article VII shall no longer
apply.
ARTICLE
X. Termination
10.1
This
Agreement shall continue in full force and effect until the first to occur
of:
(a)
termination by any party, for any reason with respect to some or all Designated
Portfolios, by ninety (90) days advance written notice delivered to the other
parties subject to applicable state law; or
(b)
termination by the Company by written notice to the Fund and the Underwriter
based upon the Company's determination that shares of the Fund are not
reasonably available to meet the requirements of the Contracts; or
(c)
termination by the Company by written notice to the Fund and the Underwriter
in
the event any of the Designated Portfolio's shares are not registered, issued
or
sold in accordance with applicable state and/or federal law or such law
precludes the use of such shares as the underlying investment media of the
Contracts issued or to be issued by the Company; or
(d)
termination by the Fund or Underwriter in the event that formal administrative
proceedings are instituted against the Company by the NASD, the SEC, the
Insurance Commissioner or like official of any state or any other regulatory
body regarding the Company's duties under this Agreement or related to the
sale
of the Contracts, the operation of any Account, or the purchase of the Fund's
shares; provided, however, that the Fund or Underwriter determines in its sole
judgment exercised in good faith, that any such administrative proceedings
will
have a material adverse effect upon the ability of the Company to perform its
obligations under this Agreement; or
(e)
termination by the Company in the event that formal administrative proceedings
are instituted against the Fund or Underwriter by the NASD, the SEC, or any
state securities or insurance department or any other regulatory body; provided,
however, that the Company 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 or Underwriter to perform its obligations
under this Agreement; or
(f)
termination by the Company by written notice to the Fund and the Underwriter
with respect to any Designated Portfolio in the event that such Portfolio ceases
to qualify as a Regulated Investment Company under Subchapter M or fails to
comply with the Section 817(h) diversification requirements specified in Article
VI hereof, or if the Company reasonably believes that such Portfolio may fail
to
so qualify or comply; or
(g)
termination by the Fund or Underwriter by written notice to the Company in
the
event that the Contracts fail to meet the qualifications specified in Article
VI
hereof, or
(h)
termination by either the Fund or the Underwriter by written notice to the
Company, if either one or both of the Fund or the Underwriter respectively,
shall determine, in their sole judgment exercised in good faith, that the
Company has suffered a material adverse change in its business, operations,
financial condition, or prospects since the date of this Agreement or is the
subject of material adverse publicity; or
(i)
termination by the Company by written notice to the Fund and the Underwriter,
if
the Company shall determine, in its sole judgment exercised in good faith,
that
the Fund, Adviser, or the Underwriter has suffered a material adverse change
in
its business, operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity; or
(j)
termination by the Company upon any substitution of the shares of another
investment company or series thereof for shares of a Designated Portfolio of
the
Fund in accordance with the terms of the Contracts, provided that the Company
has given at least thirty (30) days prior written notice to the Fund and
Underwriter of the date of substitution; or
(k)
termination by any party in the event that the Fund's Board of Directors
determines that a material irreconcilable conflict exists as provided in Article
VII.
10.2
Notwithstanding any termination of this Agreement, the Fund and the Underwriter
shall, at the option of the Company, continue to make available additional
shares of the Fund pursuant to the terms and conditions of this Agreement,
for
all Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, the owners
of
the Existing Contracts may be permitted to reallocate investments in the Fund,
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts. The parties agree
that this Section 10.2 shall not apply to any terminations under Article VII
and
the effect of such Article VII terminations shall be governed by Article VII
of
this Agreement. The parties further agree that this Section 10.2 shall not
apply
to any terminations under Section 10.1 (f) or (g) of this
Agreement.
10.3
The
Company shall not redeem Fund shares attributable to the Contracts (as opposed
to Fund shares attributable to the Company's assets held in the Account) except
(i) as necessary to implement Contract owner initiated or approved transactions,
(ii) as required by state and/or federal laws or regulations or judicial or
other legal precedent of general application (hereinafter referred to as a
"Legally Required Redemption"), (iii) as permitted by an order of the SEC
pursuant to Section 26(b) of the 1940 Act, or (iv) as permitted under the terms
of the Contracts. Upon request, the Company will promptly furnish to the Fund
and the Underwriter reasonable assurance that any redemption pursuant to clause
(ii) above is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terns of the Contracts, the Company shall not prevent
Contract owners from allocating payments to a Portfolio that was otherwise
available under the Contracts without first giving the Fund or the Underwriter
thirty (30) days notice of its intention to do so.
10.4
Notwithstanding any termination of this Agreement, each party's obligation
under
Article VIII to indemnify the other parties shall survive.
ARTICLE
XI. Notices
Any
notice shall be sufficiently given when sent by registered or certified mail,
postage prepaid, return receipt requested, or by nationally recognized overnight
courier, charges prepaid, with evidence of delivery, to the other party at
the
address of such party set forth below or at such other address as such party
may
from time to time specify in writing to the other parties, and such notice
shall
be effective upon delivery.
If
to the
Fund:
First
Eagle SoGen Variable Funds, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇
If
to the
Company:
Sun
Life
Assurance Company of Canada (U.S.)
One
Sun
Life Executive Park
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Sun
Life
Insurance and Annuity Company of New York
One
Sun
Life Executive Park
▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
If
to the
Underwriter:
▇▇▇▇▇▇▇
and S. Bleichroeder, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇
▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇
ARTICLE
XII. Miscellaneous
12.1
All
persons dealing with the Fund must look solely to the property of the Fund,
and
the respective Designated Portfolios listed on Schedule A hereto as though
each
such Designated Portfolio had separately contracted with the Company and the
Underwriter for the enforcement of any claims against the Fund. The parties
agree that neither the Board, officers, agents nor shareholders of the Fund
assume any personal liability or responsibility for obligations entered into
by
or on behalf of the Fund.
12.2
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,
shall not disclose, disseminate or utilize such names and addresses and other
confidential information without the express written consent of the affected
party until such time as such information has come into the public domain.
Notwithstanding anything to the contrary contained in this Agreement, and in
addition to and not in lieu of other provisions in this Agreement, each party
affirms that it has procedures in place designed to protect the privacy of
non-public personal consumer/customer financial information, as defined in
the
▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, and it will maintain such information that it may
acquire pursuant to this Agreement in confidence. Each party agrees not to
use,
or permit the use of, any such information for any purpose except to carry
out
the purposes set forth herein, in the ordinary course of business, or to
disclose any such information to any person, without the prior written consent
of the other party except as required by law. This provision shall survive
the
termination of this Agreement.
12.3
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.
12.4
This
Agreement may be executed simultaneously in two or more counterparts, each
of
which taken together shall constitute one and the same instrument.
12.5
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.
12.6
Each
party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the NASD, and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the Insurance Commissioner of the relevant state(s) with
any
information or reports in connection with services provided under this Agreement
which such Commissioner may request in order to ascertain whether the variable
annuity operations of the Company are being conducted in a manner consistent
with applicable state variable annuity laws and regulations and any other
applicable law or regulations.
12.7
The
rights, remedies and obligations contained in this Agreement are cumulative
and
are in addition to any and all rights, remedies, and obligations, at law or
in
equity, which the parties hereto are entitled to under state and federal
laws.
12.8
This
Agreement or any of the rights and obligations hereunder may not be assigned
by
any party without the prior written consent of all parties hereto.
12.9 The
parties may agree to amend or modify this Agreement at any time. Any such
amendment or modification must be in writing and signed by all parties
hereto.The creation of any series or class of shares of the Fund in the future
will not affect the terms of this Agreement with respect to any existing series
or class of shares, and will not constitute an amendment or modification to
this
Agreement.
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.
COMPANY: SUN
LIFE
ASSURANCE COMPANY OF CANADA (U.S.)
By
its
authorized officers
By:
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇▇
Title: Vice
President, Retirement Products & Services
Date:
By:
▇▇▇▇▇▇
▇.
▇▇▇▇
Title: Assistant
Vice President and Senior Counsel
Date:
SUN
LIFE
INSURANCE AND ANNUITY COMPANY OF NEW YORK
By
its
authorized officers
By:
▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇▇▇▇
Title: Vice
President, Retirement Products & Services
Date:
By:
▇▇▇▇▇▇
▇.
▇▇▇▇
Title: Assistant
Vice President and Senior Counsel
Date:
FUND: FIRST
EAGLE SOGEN VARIABLE FUNDS, INC.
By
its
authorized officer
By:
Title:
Date:
UNDERWRITER: ▇▇▇▇▇▇▇
AND ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, INC .
By
its
authorized officer
By:
Title:
Date:
SCHEDULE
A
Segregated
Asset Accounts of the Company
Sun
Life
of Canada (U.S.) Variable Account F
Sun
Life
(N.Y.) Variable Account C
Contracts
to be Issued by the Company
Futurity
Focus
Futurity
II
Futurity
Focus II
Futurity
Select Four
Futurity
Select Seven
Futurity
Select Incentive
Futurity
Select Freedom
Futurity
Accolade
Futurity
III
Futurity
Select Four Plus
Futurity
Accolade NY
Futurity
Select Incentive NY
Designated
Portfolio Shares to be Purchased
First
Eagle SoGen Overseas Variable Fund