PARTICIPATION AGREEMENT
Among
MTB GROUP OF FUNDS,
EDGEWOOD SERVICES, INC.,
MTB INVESTMENT ADVISORS, INC.,
and
FIRST SUNAMERICA LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of the ___ day of __________,
2007, by and among FIRST SUNAMERICA LIFE INSURANCE COMPANY, an New York
corporation (the "COMPANY"), on its own behalf and on behalf of each separate
account established by the Company and set forth on Schedule A hereto as may be
amended from time to time by the Company (each such separate account hereinafter
referred to as an "ACCOUNT"); MTB GROUP OF FUNDS, a Delaware statutory trust
(the "TRUST"), on its behalf and on behalf of each of its series (each such
series hereinafter referred to as a "FUND") set forth in Schedule A; EDGEWOOD
SERVICES, INC., a New York corporation (the "DISTRIBUTOR"); and MTB INVESTMENT
ADVISORS, INC., a registered investment advisor (the "ADVISOR").
WHEREAS, the Trust engages in business as an open-end, management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and variable
annuity contracts (collectively, the "VARIABLE INSURANCE PRODUCTS") to be issued
by the Companies; and
WHEREAS, the beneficial interest in the Trust is divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets, any one or more of which may be made
available under this Agreement, as set forth on Schedule A hereto and as may be
amended from time to time by mutual agreement of the parties hereto; and
WHEREAS, the Trust is registered as an open-end, management investment
company under the Investment Company Act of 1940, as amended (the "1940 ACT")
and its shares are registered under the Securities Act of 1933, as amended (the
"1933 ACT"); and
WHEREAS, the Trust has engaged the Advisor, an investment adviser
registered under the federal Investment Advisers Act of 1940 (the "ADVISERS
ACT") and any applicable state securities law, to provide investment advisory
services, including managing the Funds pursuant to applicable diversification
requirements of the Internal Revenue Code of 1986 (the "CODE"); and
WHEREAS, the Company has registered or will register the variable life
insurance and variable annuity contracts listed on Schedule A, as it maybe
amended from time to time by the Company (the "CONTRACTS") under the 1933 Act or
will not register the contracts in proper reliance on an exemption from
registration under the 1933 Act and the 1940 Act; and
WHEREAS, each Account is a duly organized, validly existing separate
account, established by resolution of the Board of Directors of each Company, on
the date shown for such Account on Schedule A hereto, to set aside and invest
assets attributable to the aforesaid variable annuity contracts; and
WHEREAS, the Company has registered or will register each Account as a
unit investment trust under the 1940 Act; and
WHEREAS, the Distributor is registered as a broker dealer with the
Securities and Exchange Commission ("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, the Trust has obtained an order from the SEC granting relief
from certain provisions of the 1940 Act and the rules thereunder, to the extent
necessary to permit shares of the Trust to be sold to and held by variable
annuity and variable life insurance separate accounts of both affiliated and
nonaffiliated life insurance companies and certain qualified pension and
retirement plans (the "SHARED EXEMPTIVE ORDER"); 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 Contracts and the Distributor is authorized
to sell such shares to unit investment trusts such as each Account at net asset
value;
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises and covenants hereinafter set forth, the Company, the Trust, and the
Advisor and the Distributor agree as follows:
ARTICLE I. SALE OF TRUST SHARES
1.1. The Trust, Advisor and Distributor agree to make shares of the
Funds available to the Accounts of the Company for investment of purchase
payments of the Contracts allocated to the designated Accounts as provided in
the Funds' then current registration statement at the net asset value next
computed after receipt and acceptance by the Trust or its designee of the order
for the shares of the Funds. For purposes of this Section 1.1, the Company shall
be the designee of the Trust for receipt of such orders from the designated
Account and receipt by such designee shall constitute receipt by the applicable
Fund; provided that the Company receives the order by 4:00 p.m. Eastern time in
good order ("Good Order") as such term may be defined by the Company, and the
Fund or its designee receives notice from the Company by telephone, facsimile
(or by such other means as the Fund and the Company may mutually agree) of such
order by 9:30 Eastern time on the next following Business Day. "Business Day"
shall mean any day on which 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. Except as indicated in this Agreement, the Company shall have no authority
to act on behalf of the Trust or to incur any cost or liability on its behalf.
1.2. The Trust agrees to make its shares available for purchase at the
applicable net asset value per share by the Company and its Accounts on each
Business Day. As described in the Trust's registration statement,
notwithstanding the foregoing, the Board of Trustees of the Trust (the "BOARD")
may refuse to sell shares of any Fund to any person, or suspend or terminate the
offering of shares of any Fund 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. Upon any such decision by the Board to restrict the
availability of Fund shares for purchase by the Company as contemplated by this
Agreement, the Trust will provide the Company as much notice as reasonably
practicable under the circumstances before any such restrictions are imposed.
1.3. The Trust, the Distributor and the Advisor agree that shares of the
Funds will be sold only to the Company and its Accounts or to other life
insurance companies that offer variable annuity and/or variable life insurance
contracts to the public and which have entered into an agreement with the Trust,
and to other persons not inconsistent with each Fund being adequately
diversified pursuant to Section 817 of the Internal Revenue Code of 1986 and the
regulations thereunder (the "Code"). No shares of any Fund will be sold to the
general public to the extent inconsistent with such Fund being adequately
diversified pursuant to Section 817 of the Code.
1.4. Upon receipt of a request for redemption in proper form (in
accordance with the provisions of the then current registration statement of a
Fund or as otherwise instructed by a Fund) from the Company, the Trust agrees to
redeem directly any full or fractional shares of the Fund held by the Company on
behalf of the Accounts, executing such requests on each Business Day at the net
asset value next computed after receipt and acceptance by the Trust or its
designee of the request for redemption, except that the Trust reserves the right
to suspend the right of redemption consistent with Section 22(e)of the 1940 Act
and any rules thereunder; in such event, the Trust or Advisor shall notify the
Company in writing by 3:00 pm Eastern time the same Business Day that the
Company transmits the redemption order to the applicable Fund. Such redemption
shall be paid consistent with applicable rules of the SEC and procedures and
policies of the Trust as described in the Trust's then current registration
statement. If redemption proceeds are due the Company, the Fund, Distributor or
Advisor shall wire the redemption proceeds to the Company by 1:00 p.m. the next
Business Day. If federal funds are not received by 1:00 p.m. the next Business
Day, the Fund, Distributor or Advisor shall promptly, upon the Company's
request, reimburse the Company for any charges, costs, fees, interest or other
expenses incurred by the Company in connection with any advances to, or
borrowing or overdrafts by, the Company, or any similar expenses incurred by the
Company, as a result of payments made to Contract owners by the Company based
upon such redemption request. For purposes of this Section 1.4, the Company
shall be the designee of the Trust for the limited purpose of receiving and
accepting purchase and redemption orders from the designated Account and receipt
by such designee shall constitute receipt by the applicable Fund; provided that
the Company receives the order by 4:00 p.m. Eastern time in Good Order as
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such term may be defined by the Company, and the Fund or its designee receives
notice from the Company by telephone, facsimile (or by such other means as the
Fund and the Company may mutually agree of such order) by 9:30 Eastern time on
the next following Business Day.
1.5. The Company agrees that purchases and redemptions of Fund shares
offered by the then current prospectus of the Trust shall be made in accordance
with the provisions of such prospectus.
1.6. The Company will place separate orders to purchase or redeem shares
of different Funds. Each order shall describe the net amount of shares and
dollar amount of each Fund to be purchased or redeemed. The Company shall pay
for Trust shares on the next Business Day after an order to purchase Trust
shares is made in accordance with the provisions of this Agreement. Payment
shall be in federal funds transmitted by wire to the Fund or its designated
custodial account. For purpose of Section 2.10 and 2.11, upon receipt by the
Trust of the federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the Trust.
1.7. Issuance and transfer of Fund shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Shares
ordered from the Funds will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account. The Trust shall furnish to the
Company the CUSIP number assigned to each Fund identified in Schedule A
attached, as may be amended from time to time.
1.8. The Trust shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income, dividends or
capital gain distributions payable on a Fund's shares. The Company hereby elects
to receive all such income dividends and capital gain distributions as are
payable on the Fund shares in additional shares of that Fund. The Company
reserves the right to revoke this election in writing and to receive all such
income dividends and capital gain distributions in cash. The Trust or its agent
shall notify the Company of the number of shares so issued as payment of such
dividends and distributions.
1.9. The Trust shall make the net asset value per share for each Fund
available to the Company on each Business Day as soon as reasonably practical
after the net asset value per share is calculated and shall make such net asset
value per share available by 6:30 p.m. Eastern Time. At the end of each Business
Day, the Company shall use the net asset values provided by the Trust (or other
information related to any pricing error or similar issue affecting the Funds'
net asset values) to calculate Account unit values for the day. Using these unit
values, the Company shall process each Business Day's Account transactions based
on requests and premiums received by it by the close of trading on the NYSE
(currently 4:00 p.m. Easter time) to determine the net dollar amount of Fund
shares which shall be purchased or redeemed at the day's closing net asset value
per share.
1.10. The Parties hereto acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Trust's shares may be sold to other
insurance companies (subject to Section 1.3 and Article VI hereof) and the cash
value of the Contracts may be invested in other investment companies.
The Trust acknowledges that the Company may, subject to any applicable
law or regulation, make certain changes to the Contracts. The Company may, in
its sole discretion, offer new funds or stop offering existing funds, including
the Funds, through the Contracts. In addition, the Company may also liquidate
the shares of any Fund held by an Account, substitute shares of a Fund for
another and/or combine or reorganize Accounts that invest in the Funds.
Additionally, the parties acknowledge and agree that pursuant to the terms of
the Contracts, the Company has the right to substitute other securities for
shares of the Funds. The Advisor and/or Distributor agree to bear the Company's
expenses of a substitution of securities in which other securities are
substituted for shares of one or more of the Funds in the event such a
substitution is made as a result of termination by the Trust, Advisor or
Distributor under Sections 10.1(a), (e) or (n).
1.11. Company and the Trust each have policies and procedures in place
to detect and discourage short-term or disruptive trading practices, which may
include (but is not limited to) monitoring Contract owner trading activity.
Company and the Trust each reserve the right to refuse, to impose limitations
on, or to limit any transaction request if the request would tend to be
disruptive to Contract or Trust activity, as the case may be, or which is not in
the best interest of Contract holders of the Contracts or shareholders of the
Funds, respectively. The Company's short-term trading policies applicable to the
Contracts are disclosed in the applicable contract prospectus, which may be
amended from time to time by the Company. The Company and the Trust agree to
provide reasonable cooperation to each other to deter transfer activity in the
Funds where such activity occurs through the Contracts and has been identified
as abusive, following a "market timing" pattern or otherwise disruptive or
harmful. The Trust agrees to notify the Company of transfer activity that a Fund
deems to be short-term trading activity. After
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receiving such notice from the Trust, the Company agrees that it will reasonably
cooperate to limit short-term trading to the extent permissible under the terms
and conditions of the Contracts and/or other governing laws.
1.12. Each party shall, as soon as practicable after transmittal of an
instruction or confirmation pursuant to this Article I, verify the other party's
receipt of such instruction or confirmation, and in the absence of such
verification such a party to whom an instruction or confirmation is sent shall
not be liable for any failure to act in accordance with such instruction or
confirmation, and the sending party may not claim that such an instruction or
confirmation was received by the other. Each party shall notify the other of any
errors, omissions or interruptions in, or delay or unavailability as promptly as
possible.
ARTICLE IB. GENERAL DUTIES
1.13. The Company shall take all such actions as are necessary under
applicable federal and state law to permit the sale of the Contracts issued by
the Company, including registering each Account as an investment company to the
extent required under the 1940 Act, and registering the Contracts or interests
in the Accounts under the Contracts to the extent required under the 1933 Act,
and obtaining all necessary approvals to offer the Contracts from state
insurance commissioners.
1.14. The Company shall make every effort to maintain the treatment of
the Contracts issued by the Company as annuity contracts or life insurance
policies, whichever is appropriate, under the applicable provisions of the Code,
and shall notify the Trust and the Distributor immediately upon having a
reasonable basis for believing that such Contracts have ceased to be so treated
or that they might not be so treated in the future. In that regard, the Company
shall make every effort to remedy any Contract's failure to be treated as
annuity contracts or life insurance policies, as appropriate, under applicable
provisions of the Code, including Section 72 and regulations thereunder within
the required time frames.
1.15. The Company maintains agreements with various broker-dealers to
offer and sell the Contracts, and such agreements obligate such broker-dealers
to offer and sell the Contracts in accordance with applicable provisions of the
1933 Act, the 1934 Act, the 1940 Act, the NASD Rules of Fair Practice, and state
insurance law respecting the offering of variable annuity contracts.
1.16. The Distributor shall sell and distribute the shares of the Funds
in accordance with all applicable state and federal laws and regulations,
including without limitation applicable provisions of the 1933 Act, the 1934
Act, the 1940 Act, the NASD Rules of Fair Practice, and state law.
1.17. During such time as the Trust engages in activities that require a
Shared Exemptive Order, a majority of the Trust's Board shall consist of persons
who are not "INTERESTED PERSONS" of the Trust, as defined by Section 2(a)(19) of
the 1940 Act and the rules thereunder, and as modified by any applicable orders
of the SEC ("DISINTERESTED TRUSTEES"), except that if this provision is not met
by reason of the death, disqualification, or bona fide resignation of any
Trustee or Trustees, then the operation of this provision shall be suspended as
allowable under the 1940 Act or any rule order prescribed by the SEC thereunder.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts are or will
be registered under the 1933 Act, or that the Contracts are not registered in
proper reliance on an exemption from registration under the 1933 Act;. The
Company further represents and warrants that it is an insurance company duly
organized and in good standing under the laws of Arizona, that it is taxed as an
insurance company under the Code and that it has legally and validly established
each Account prior to any issuance or sale thereof as a separate account, and
has registered or, prior to any issuance or sale of the Contracts, will register
each Account as a unit investment trust in accordance with the provisions of the
1940 Act to serve as a segregated investment account for the Contracts, or that
the Company will not register the Account in proper reliance upon an exclusion
from registration under the1940 Act.
2.2. The Trust 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 federal and state securities
laws and that the Trust is and shall remain registered under and shall conform
with the 1940 Act, and shall have filed a registration statement filed with the
SEC in a form delivered to the Company. The Trust's registration
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statement (including any further amendments) will, when they become effective,
including all definitive prospectuses and statements of additional information
(as well as any further supplements thereto) shall conform in all material
respects to the requirements of the 1933 Act and the 1940 Act, and will not
contain any untrue statement of material fact or omit to state a material fact
required to be state therein or necessary to make the statement therein not
misleading. The Trust 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 Trust shall register for sale
under the 1933 Act (or applicable state securities laws) such additional shares
of the Funds as may reasonably be necessary for use as the funding vehicle for
the Contracts. However, the Trust shall register and qualify the Fund shares for
sale in accordance with the laws of the various states only if and to the extent
deemed advisable by the Trust or the Distributor.
2.3. The Trust and the Advisor represent that each Fund intends to
qualify as a Regulated Investment Company under Subchapter M of the Code and
that the Trust and the Advisor will maintain such qualification (under
Subchapter M or any successor or similar provision) and that the Trust and the
Advisor will notify the Company immediately in writing upon having a reasonable
basis for believing that a Fund has ceased to so qualify or that it might not so
qualify in the future.
2.4. The Company represents that the Contracts are currently treated as
endowment 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 Trust and the Distributor immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or that they
might not be so treated in the future. In that regard, the Company shall make
every effort to remedy any variable contract's failure to be treated as annuity
contracts or life insurance policies, as appropriate, under applicable
provisions of the Code, including Section 72 and regulations thereunder within
the required time frames.
2.5. The Trust represents and warrants that should it ever desire to
make any payments to finance distribution expenses pursuant to Rule 12b-1 under
the 1940 Act, the Trustees, including a majority who are Disinterested Trustees,
will formulate and approve any plan under Rule 12b-1 to finance distribution
expenses.
2.6. The Trust 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 Trust represents that the Trust's investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of the
State of Delaware and the Trust and the Distributor represent that their
respective operations are and shall at all times remain in material compliance
with the laws of the State of Delaware to the extent required to perform this
Agreement.
2.7. The Distributor 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
Distributor further represents that it will sell and distribute the Trust shares
in accordance with all applicable state and federal securities laws, including
without limitation the 1933 Act, the 1934 Act, and the 1940 Act, and the NASD
Rules of Fair Practice.
2.8. The Trust represents that it is lawfully organized and validly
existing under the laws of State of Delaware and that it does and will comply in
all material respects with the 1940 Act.
2.9. The Advisor represents and warrants that it is and shall remain
duly registered as an investment adviser in all material respects under all
applicable federal and state securities laws and that the Advisor shall perform
its obligations for the Trust in compliance in all material respects with any
applicable state and federal securities laws. The Advisor represents and
warrants that each Fund shall be managed in accordance with its investment
objective(s), investment strategies and/or investment restrictions, as each are
described in such Fund's registration statement, as it shall be amended and/or
supplemented.
2.10. The Trust represents and warrants that all of its trustees,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Trust are and shall continue to be at
all times covered by a blanket fidelity bond or similar coverage for the benefit
of the Trust 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. The aforesaid Bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company. The
Trust shall make all reasonable efforts to see that this bond or another bond
containing substantially similar provisions is always in effect, and each agrees
to notify the Company in the event such coverage no longer applies.
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2.11. Provided it is consistent with their fiduciaries duties, the
Company and its agents will not in any way recommend any proposal in opposition
to, or oppose or interfere with, any proposal submitted by the Fund at a meeting
of owners of Contracts or shareholders of the Fund, and will in no way recommend
any proposal in opposition to, or oppose or interfere with, the solicitation of
proxies by the Fund of shares held by Contract owners, without the prior written
consent of the Fund.
2.12. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities having jurisdiction (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.
2.13. The Company represents and warrants that it has, and will maintain
at all times during the term of this Agreement, appropriate internal controls
for the segregation of purchase and redemption orders ("ORDERS") received by it
or its designees from any Account prior to the close of trading on the New York
Stock Exchange on any business day, from Orders received by it or its designees
after the close of trading on the New York Stock Exchange on any business day,
as and to the extent required by applicable SEC no-action letters, and/or other
applicable authority.
2.14. Distributor and the Company each represent, warrant and certify
that, as required by applicable law, they have established, and covenant that at
all times during the existence of the Agreement they will maintain, a written
anti-money laundering and customer identification program ("PROGRAM") in
accordance with the USA PATRIOT ACT and the rules and regulations adopted
thereunder by the SEC and the U.S. Treasury Department ("APPLICABLE LAW"). The
Company further hereby covenants that it will perform all activities, including
the establishment and verification of customer identities as required by
Applicable Law or its Program, with respect to all Accounts. Distributor and the
Company hereby further agree that: (i) Accounts in the Funds in the name of, or
beneficially owned by, Accounts shall be accounts of the Company for purposes of
the Company's Program; and (ii) Accounts will be customers of the Company for
all purposes under the Program.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1. The Distributor shall provide at all times the Company with copies
of the Trust's current prospectus, statement of additional information or any
supplement thereto, or other shareholder communication applicable to a Fund,
including any amendments to the Trust's registration statement as well as annual
and semi-annual reports and proxy statements: (a) in the case of prospectuses,
statements of additional information and/or supplements, annual and semi-annual
reports and proxy statements, when they are effective, and (b) in the case of
amendments to its registration statement or other shareholder communications,
when such amendments are filed with the SEC (whether effective or not). In all
cases the Trust agrees to make a good faith effort to provide to the Company, at
no expense to the Company, these documents on a timely basis whereby Company is
able to meet applicable regulatory deadlines. The Trust will make reasonable
efforts to provide the Company with as much notice as is reasonably possible
when contemplating a change to its filed documents with the SEC.
The Distributor shall provide, free of charge, the Company with as many
printed copies of the Trust's current prospectus, Statement of Additional
Information (as well as any supplements thereto) and any other shareholder
communication (describing only the designated Funds listed on Schedule A)
and/or, to the extent existing, the Trust's profiles as the Company may
reasonably request. If requested by the Company in lieu thereof, the Trust shall
provide camera-ready film or an electronic file in a format acceptable to the
Company containing the Trust's prospectus and Statement of Additional
Information (as well as supplements thereto) and reports, and such other
assistance as is reasonably necessary in order for the Company once each year
(or more frequently if the prospectus and/or Statement of Additional Information
for the Trust is amended or supplemented during the year) for the prospectus and
Statement of Additional Information and twice a year for reports, to have the
prospectus for the Contracts and the Trust's prospectus printed together in one
document, to have the Statement of Additional Information for the Trust and the
Statement of Additional Information for the Contracts printed together in one
document, or reports of the Trust or any other investment option under the
Contract printed together in one document. Alternatively, the Company may print
the Trust's documents in combination with other fund companies' documents. In
such event, the Trust shall bear its pro rata share of printing and distribution
expenses based on the number of combined printed pages. All such documents shall
be provided to the Company within time reasonably required to allow for printing
and delivery to Contract owners, but no later than ten business days prior to
the date
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the documents are required under then-current regulations to be sent to Contract
owners. In the event the Trust's shareholder documents are not provided in a
timely manner, the Distributor shall pay any out-of-pocket expenses, such as
overtime printing or mailing surcharges, reasonably incurred by the Company in
timely filing or delivering such documents.
Except as provided in this Agreement, all expenses of printing and
distributing the Trust's shareholder documents to prospective shareholders shall
be the expense of the Company. For prospectuses, Statements of Additional
Information, supplements thereto and other shareholder communications, provided
by the Company to its existing owners of Contracts in order to update disclosure
annually as required by the 1933 Act and/or the 1940 Act (or on a more frequent
basis if the Trust makes a filing with respect to its registration statement),
the cost of printing, typesetting, mailing and other distribution-related costs
shall be borne by the Trust.
The Company agrees to provide the Trust or its designee with such
information as may be reasonably requested by the Trust to assure that the
Trust's expenses do not include the cost of printing any prospectuses or
Statements of Additional Information other than those actually distributed to
existing owners of the Contracts.
3.2. The Trust's prospectus shall state that the Statement of Additional
Information for the Trust is available, and the Trust or the Distributor, at
their own expense shall provide a reasonable number of copies of such Statement
of Additional Information free of charge to the Company for itself or for any
Contract owner that requests such SAI.
3.3. At its expense, the Trust shall provide the Company with copies of
the Trust's proxy statements, reports to shareholders, and other required
shareholder communications (except for prospectuses and Statements of Additional
Information, which are covered in Section 3.1) to shareholders in such quantity
as the Company shall reasonably require for distributing to Contract owners. The
Trust and/or the Distributor shall bear the costs of mailing, delivering and
other distribution-related costs these documents to Contract owners. Such
delivery may be accomplished through electronic means subject to the standards
prescribed by the SEC.
3.4. If and to the extent required by law the Company shall:
(i) vote the Trust shares in accordance with instructions
received from Contract owners; and
(ii) vote Trust shares for which no instructions have been
received in a particular separate account in the same proportion as
Trust shares of such Fund for which instructions have been received in
that separate account, 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. The Company reserves the right
to vote Trust shares held in any segregated asset account in its own
right, to the extent permitted by law.
3.5. The Company shall be responsible for assuring that each of its
separate accounts participating in the Trust calculates voting privileges as
required by the Shared Exemptive Order and consistent with any reasonable
standards the Trust may adopt.
3.6. The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Trust will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Trust
is not one of the trusts described in Section 16(c) of that Act) as well as with
Sections 16(a) and, if and when applicable, 16(b). Further, the Trust 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 rules the
Commission may promulgate with respect thereto.
3.7. If and during the time as the Trust engages in activities that
require a Shared Exemptive Order, the Trust shall disclose in its prospectus or
Statement of Additional Information that (1) the Funds are intended to be
funding vehicles for variable annuity and variable life insurance contracts
offered by various insurance companies, (2) material irreconcilable conflicts
possibly may arise, and (3) the Board will monitor events in order to identify
the existence of any material irreconcilable conflicts and to determine what
action, if any, should be taken in response to any such conflict. The Trust
hereby notifies the Company that prospectus or Statement of Additional
Information disclosure may be appropriate regarding potential risks of offering
shares of the Funds to separate accounts funding Contracts of unaffiliated life
insurance companies.
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ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Trust, Advisor or Distributor or their designee, each piece of sales literature
or other promotional material in which the Trust, the Advisor or the Distributor
is named and which the form of such material has not been previously reviewed by
the Trust, Advisor or Distributor, at least ten Business Days prior to its use.
No such material shall be used if the Trust, the Advisor, the Distributor or
their designee reasonably objects to such use. Such approval shall be presumed
given if notice to the contrary is not received by the Company within five
Business Days after receipt by the Trust, Distributor or Advisor of such
material.
4.2. Except with the permission of the Trust, Distributor or Advisor or
their designee, the Company, its affiliates and agents shall not give any
information or make any representations or statements on behalf of the Trust,
the Distributor or the Advisor or concerning the Trust, the Distributor or the
Advisor, other than the information or representations contained in the
registration statement or prospectus for the Trust shares, as such registration
statement and prospectus may be amended or supplemented from time to time, or in
reports or proxy statements for the Trust, or in sales literature or other
promotional material approved by the Trust or its designee or by the
Distributor. This shall not apply to independently created information based on
Trust, Distributor or Advisor information otherwise allowable under this
paragraph, but in no case shall the Company, its affiliates and agents give such
information or make such statements in a context that causes the information,
representations or statements to be false or misleading.
4.3. The Trust, Advisor or Distributor shall furnish, or shall cause to
be furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company, an Account or Contract is named
and which the form of such material has not been previously reviewed by the
Company, at least ten Business Days prior to its use. No such material shall be
used if the Company or its designee reasonably objects to such use. Such
approval shall be presumed given if notice to the contrary is not received by
the Trust, Advisor or Distributor within five Business Days after receipt by the
Company.
4.4. Except with the permission of the Company or its designee, the
Trust, the Advisor, and the Distributor, as well as their affiliates and agents,
shall not give any information or make any representations on behalf of the
Company or concerning the Company, each Account, or the Contracts other than the
information or representations contained in a registration statement or
prospectus for the Contracts, as such registration statement and prospectus 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 the Company for
distribution to Contract owners, or in sales literature or other promotional
material approved by the Company or its designee. This shall not apply to
independently created information based on Company, Account or Contract
information otherwise allowable under this paragraph, but in no case shall the
Trust, Distributor, Advisor, their affiliates and/or agents give such
information or make such statements in a context that causes the information,
representations or statements to be false or misleading.
4.5. The Trust will provide to the Company at least one complete copy of
all registration statements, prospectuses, Statements of Additional Information,
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 Trust or its shares, promptly after the
filing of such document with the SEC or other regulatory authorities.
4.6. The Company will provide to the Trust at least one complete copy of
all sales literature and other promotional materials promptly after the filing
of such document with the SEC or other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "SALES LITERATURE OR
OTHER PROMOTIONAL MATERIAL" includes, but is not limited to, any of the
following that refer to the Trust, a form of which has not been previously
reviewed by the Trust, Distributor, Advisor or their designee: 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), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, and registration statements,
prospectuses, Statements of Additional Information, shareholder reports, and
proxy materials.
8
ARTICLE V. FEES AND EXPENSES
5.1. The Distributor shall pay no fee or other compensation to the
Company under this agreement, other than payments pursuant to a Rule 12b-1 plan
or as otherwise contemplated in this Agreement, schedule thereto or separate
agreement.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. The Trust 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 Trust, in
accordance with applicable state laws prior to their sale. The Trust shall bear
the expenses for the cost of registration and qualification of the Trust's
shares, preparation and filing of the Trust's prospectus and registration
statement, 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 Trust's shares.
5.3. The Company shall bear the expenses of distributing the Trust's
prospectus, proxy materials and reports to prospective owners of Contracts
issued by the Company.
ARTICLE VI. DIVERSIFICATION
6.1. The Trust and the Advisor represent and warrant that the Funds
currently comply, and will continue to comply, with the diversification
provisions of Section 817(h) of the Code and Treasury Regulation 1.817-5,
relating to the diversification requirements for variable annuity, endowment, or
life insurance contracts and any amendments or other modifications to such
Section or Regulations. In the event of a breach of this Article VI by the
Advisor or the Trust, each will take all reasonable steps (a) to notify the
Company of such breach and (b) to adequately diversify the Trust so as to
achieve compliance within the grace period afforded by Regulation 1.817-5.
ARTICLE VII. POTENTIAL CONFLICTS
7.1. The parties agree to comply with all of the terms of the Shared
Exemptive Order. The Trust shall provide the Shared Exemptive Order to Company
in advance of the effective date of this Agreement.
ARTICLE VIII. INDEMNIFICATION
8.1. Indemnification By The Company
8.1(a). The Company agrees to indemnify and hold harmless the
Distributor, the Advisor and the Trust and each member of the Board and officer,
employees and agents and any "CONTROL PERSON" (as defined in Section 2 of the
0000 Xxx) of the Trust, Distributor or Advisor (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, which consent shall not be reasonably withheld) or
litigation expenses (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
litigation expenses (or actions in respect thereof) or settlements are related
to the sale or acquisition of the Trust'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 (which shall include the portions of an offering
memorandum that contain information regarding the Trust, Distributor or Advisor)
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 Indemnified Parties
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 Trust shares; or
9
(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 Trust not supplied by the
Company, or persons under its control) or wrongful conduct of the Company or
persons under its control (which shall not include any employee or associated
person of Advisor or Distributor or any affiliate thereof), with respect to the
sale or distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's registration statement,
prospectus, or sales literature 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 by
or on behalf of the Company; or
(iv) arise as a result of any material failure to abide by the
terms of this Agreement; by the Company; 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
expenses incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations or duties under this
Agreement or to the Trust or the Contracts, whichever is applicable.
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 the Indemnified Parties, the Company shall be entitled to participate,
at its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation. If the
Company assumes the defense or representation of an Indemnified Party, the
Company shall not consent or agree to any settlement without the prior approval
of the Indemnified Party.
8.1(d). An Indemnified Party will promptly notify the Company of the
commencement of any litigation or proceedings against it in connection with the
issuance or sale of the Trust shares or the Contracts or the operation of the
Trust.
8.2. Indemnification by the Distributor
8.2(a). The Distributor agrees to indemnify and hold harmless the
Company and each of its directors, trustees, officers, employees and agents and
any affiliated person (as defined in Section 2(a)(3) of the 0000 Xxx) of the
Company (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 Distributor, which consent
shall not be unreasonably withheld) or litigation expenses (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 Trust'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 sales literature of the Trust (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
10
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 Distributor by or on
behalf of the Indemnified Parties for use in the registration statement or
prospectus for the Trust or in sales literature (or any amendment or supplement)
or otherwise for use in connection with the sale of the Contracts or Trust
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 Trust or the Contracts not
supplied by the Distributor or persons under its control) or wrongful conduct of
the Distributor or persons under its control, with respect to the sale or
distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's registration statement,
prospectus, or sales literature, 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 by or on behalf of the Distributor; or
(iv) arise as a result of any material failure by the Distributor
to abide by 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 Distributor in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Distributor; as limited by and in accordance with the provisions of Sections
8.2(b) and 8.2(c) hereof.
8.2(b). The Distributor 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 obligations and duties under this Agreement, or to
the Company, the Trust or the Contracts, whichever is applicable.
8.2(c). The Distributor 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 Distributor 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 Distributor of
any such claim shall not relieve the Distributor 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 Distributor will be entitled to
participate, at its own expense, in the defense thereof. The Distributor also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from the Distributor to such party
of the Distributor's selection to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and the Distributor 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. If the Distributor assumes the defense or representation of any
Indemnified Party, the Distributor shall not consent or agree to any settlement
without the prior approval of the Indemnified Party.
8.2(d). An Indemnified Party agrees promptly to notify the Distributor
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.
8.3. Indemnification By the Trust
8.3(a). The Trust agrees to indemnify and hold harmless the Company and
each of its directors, officers, employees and agents and any affiliated person
(as defined in Section 2(a)(3) of the 0000 Xxx) of the Company (collectively,
the "INDEMNIFIED PARTIES" for purposes of this Section 8.3) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Trust, which consent shall not be unreasonably
withheld) or litigation expenses (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 Trust's shares or the Contracts and:
11
(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 of the Trust (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished in writing to the or Trust by
or on behalf of the Indemnified Parties for use in the registration statement or
prospectus for the Trust (or any amendment or supplement) or otherwise for use
in connection with the sale of the Contracts or Trust 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 Trust or the Contracts not
supplied by the Trust or persons under its control) or wrongful conduct of the
Trust or persons under its control, with respect to the sale or distribution of
the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's registration statement,
prospectus, or sales literature, 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 by or on behalf of the Trust; or
(iv) arise as a result of any material failure by the Trust to
abide by 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 Trust in this Agreement or arise out
of or result from any other material breach of this Agreement by the Trust; as
limited by and in accordance with the provisions of Sections 8.3(b) and 8.3(c)
hereof.
8.3(b). The Trust shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
expenses incurred or assessed against an Indemnified Party as such may arise
from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations and duties under this
Agreement or to the Company or the Contracts, whichever is applicable.
8.3(c). The Trust 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 Trust 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 Trust of any
such claim shall not relieve the Trust 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 Trust will be entitled to participate, at
its own expense, in the defense thereof. The Trust also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Trust to such party of the Trust'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 Trust 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. If the Trust assumes the
defense or representation of any Indemnified Party, the Trust shall not consent
or agree to any settlement without the prior approval of the Indemnified Party.
8.3(d). An Indemnified Party agrees promptly to notify the Trust of the
commencement of any litigation or proceedings against it or any of its
respective officers, trustees or directors in connection with this Agreement,
the issuance or sale of the Contracts, or the sale or acquisition of shares of
the Trust.
8.4 Indemnification By the Advisor
8.4(a). The Advisor agrees to indemnify and hold harmless the Company
and each of its trustees, directors, officers, employees, and agents, and any
affiliated person (as defined in Section 2(a)(3) of the 0000 Xxx) of the Company
(collectively, the "INDEMNIFIED PARTIES" for purposes of this Section 8.4)
against any and all losses, claims, damages, liabilities (including amounts paid
in settlement with the written consent of the Advisor, which consent shall not
be unreasonably withheld) or litigation expenses (including reasonable legal and
other expenses) to
12
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 litigation expenses are related to the sale or acquisition of the
Trust'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 provided by the Advisor and
contained in the registration statement or prospectus or sales literature (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
about the Advisor 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 Advisor by or on behalf of the Indemnified
Parties for use in the registration statement or prospectus for the Trust or in
sales literature or other promotional material (or any amendment or supplement)
or otherwise for use in connection with the sale of the Contracts or Trust
shares; or
(ii) arise out of or as a result of any statement or
representations (other than statements or representations contained in the
registration statement, prospectus or sales literature or other promotional
material for the Trust or the Contracts not supplied by the Advisor or any
employees or agents thereof) or wrongful conduct of the Advisor, or the
affiliates, employees, or agents of the Advisor with respect to the sale or
distribution of the Contracts or Trust shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's registration statement,
prospectus, or sales literature, 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 by or on behalf of the Advisor; or
(iv) arise as a result of any material failure by the Advisor to
provide the services under the terms of this Agreement (including a failure,
whether unintentional or in good faith or otherwise, to comply with the
diversification 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 Advisor in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Advisor; as limited by and in accordance with the provisions of Sections 8.4(b)
and 8.4(c) hereof.
8.4(b). The Advisor shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
expenses to which an Indemnified Party would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance of such
Indemnified Party's duties or by reason of the Indemnified Party's reckless
disregard of obligations or duties under this Agreement or to the Trust, the
Contracts or the Company, whichever is applicable.
8.4(c). The Advisor 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 Advisor 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 Advisor of any
such claim shall not relieve the Advisor 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 Advisor will be entitled to participate, at
is own expense, in the defense thereof. The Advisor also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party named in the
action. After notice from the Advisor to such party of the Advisor'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 Advisor will not be
liable to such party under this Agreement for any legal or other expense
subsequently incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation. If the Advisor assumes the
defense or representation of an Indemnified Party, the Advisor shall not consent
or agree to any settlement without the prior approval of the Indemnified Party.
8.4(d). An Indemnified Party agrees promptly to notify the Advisor of
the commencement of any litigation or proceedings against it or any of its
respective officers, trustees or directors in connection with this
13
Agreement, the issuance or sale of the Contracts, with respect to the operation
of either Account, or the sale or acquisition of shares of the Trust.
8.5. Indemnification Disputes. The parties shall use good faith efforts
to resolve any dispute concerning the indemnification obligations in this
Article VIII. Should those efforts fail to resolve the dispute, the ultimate
resolution shall be determined in a de novo proceeding, separate and apart from
the underlying matter complained of, before a court of competent jurisdiction.
Either party may initiate such proceedings with a court of competent
jurisdiction at any time following the termination of the efforts by such
parties to resolve the dispute (termination of such efforts shall be deemed to
have occurred thirty (30) days from the commencement of the same unless such
time period is extended by the written agreement of the parties). The prevailing
party in such a proceeding shall be entitled to recover reasonable attorneys'
fees, costs, and expenses.
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 orders thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including any Shared Exemptive Order) and the terms hereof shall be interpreted
and construed in accordance therewith.
ARTICLE X. TERMINATION
10.1. This Agreement shall be effective as of the date hereof, and shall
continue in full force and effect (as to any Fund) until the first to occur of:
(a) termination by any party for any reason by one hundred and
eighty (60) days advance written notice delivered to the other parties unless a
shorter time is agreed to by the parties; or
(b) termination by the Company by written notice to the Trust or
the Distributor with respect to any Fund 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 the Company, or if a
Fund's shares are not reasonably available to meet the requirements of the
Contracts as determined by the Company. Prompt notice of election to terminate
shall be furnished by the Company, said termination to be effective ten days
after receipt of notice unless the Fund makes available a sufficient number of
shares to reasonably meet the requirements of the Contract to the satisfaction
of Company within said ten-day period; or
(c) termination by the Company by written notice to the Trust or
the Distributor with respect to any Fund in the event that such Fund ceases to
qualify as a Regulated Investment Company under Subchapter M of the Code or
under any successor or similar provision, or if the Company reasonably believes
that the Trust may fail to so qualify. Prompt notice of election to terminate
shall be furnished by the Company with said termination to be effective upon
receipt of notice; or
(d) termination by the Company by written notice to the Trust or
the Distributor with respect to any Fund in the event that such Fund fails to
meet the diversification requirements specified in Article VI hereof. Prompt
notice of election to terminate shall be furnished by the Company with said
termination to be effective upon receipt of notice; or
(e) termination by either the Trust, the Advisor or the
Distributor by written notice to the Company, if (1) any of the Trust, the
Advisor or the Distributor, respectively, shall determine, in their sole
judgment reasonably exercised in good faith, that the Company has suffered a
material adverse change in its business or financial condition or is the subject
of material adverse publicity, (2) the Trust, the Advisor or the Distributor
shall notify the Company in writing of such determination and its intent to
terminate this Agreement, and (3) after considering the actions taken by the
Company and any other changes in circumstances since the giving of such notice,
such determination of the Trust, the Advisor or Distributor 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
14
(f) termination by the Company by written notice to the Trust,
the Advisor or the Distributor, if (1) the Company shall determine, in its sole
judgment reasonably exercised in good faith, that either the Trust, the Advisor
or the Distributor 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 Company, (2) the Company
shall notify the Trust, the Advisor or the Distributor, as the case may be, in
writing of such determination and its intent to terminate the Agreement, and (3)
after considering the actions taken by the Trust, the Distributor and/or the
Advisor and any other changes in circumstances since the giving of such notice,
such determination of the Company shall continue to apply on the tenth (10th)
day following the giving of such notice, which tenth day shall be the effective
date of termination; or
(g) termination by any party upon institution of formal
proceedings against the Company, the Trust, the Advisor or the Distributor by
the NASD, the SEC, or any state securities or insurance department or any other
regulatory body regarding a party's duties under this Agreement or related to
the sale of the Contracts issued by the Company, the operation of the Accounts,
or the purchase or sale of shares of the Funds, that would, in the terminating
party's opinion, impair the other party's ability to meet and perform its
obligations and duties hereunder. Prompt notice of election to terminate shall
be furnished by the terminating party, with said termination to be effective
upon receipt of notice; or
(h) termination by the Distributor, the Advisor or the Trust upon
written notice to the Company with respect to any Account in the event that such
Account ceases to be qualified as a segregated asset account under the Arizona
insurance laws. Prompt notice of election to terminate shall be furnished by the
Distributor, Advisor or Trust, said termination to be effective ten days after
receipt of notice unless the Company; or
(i) termination by the Distributor, the Advisor or the Trust upon
written notice with respect to any Account in the event that effective
registration as a unit investment trust under the 1940 Act for such Account is
not maintained. Prompt notice of election to terminate shall be furnished by the
Distributor, Advisor or Trust, said termination to be effective ten days after
receipt of notice unless the Company maintains an effective registration to the
satisfaction of the Distributor, Advisor or Trust within said ten-day period; or
(j) termination by the Distributor, the Advisor or the Trust in
the event that the Contracts cease to be treated as annuity contracts under the
applicable provisions of the Code. Prompt notice of election to terminate shall
be furnished by the Distributor, Advisor or Trust, said termination to be
effective ten days after receipt of notice; or
(k) termination by the Distributor, the Advisor or the Trust in
the event that effective registration or exemption from registration under the
1933 Act of the Contracts is not maintained. Prompt notice of election to
terminate shall be furnished by the Distributor, Advisor or Trust, said
termination to be effective ten days after receipt of notice unless the Company
maintains an effective registration to the satisfaction of the Distributor,
Advisor or Trust within said ten-day period; or
(l) termination by any party to the Agreement upon a
determination by a majority of the Board, or a majority of its Disinterested
Trustees, that a material irreconcilable conflict, as described in Article VII
hereof, exists; or
(m) termination by any party to the Agreement upon approval by
the SEC for the Company to substitute the shares of another investment company
for the corresponding shares of a Fund in accordance with the terms of the
Contracts for which those shares had been selected or serve as the underlying
investment media; or
(n) termination by either the Advisor or the Distributor in the
event of a termination of either of their contracts with the Trust, but each
shall use their best efforts to substitute themselves under this Agreement with
any successor investment adviser or distributor to the Trust.
(o) termination by any party from which consent was not obtained,
in the event this Agreement is assigned without prior written consent of all
parties hereto, termination shall be effective upon written notice;
Each party to this Agreement shall promptly notify the other
parties to the Agreement of the institution against such party of any such
formal proceedings as described in Article 10.1(h) hereof. The Company shall
give 30 days prior written notice to the Trust of the date of any proposed
substitution of a Fund's shares as described in Article 10.1(m) hereof.
15
10.2. Notwithstanding any termination of this Agreement, the Trust, the
Advisor and the Distributor shall at the option of the Company, continue to make
available additional shares of the Trust 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") for the sole
purpose of allowing the owners of the Existing Contracts to reallocate
investments in the Trust, redeem investments in the Trust and/or invest in the
Trust 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.
10.3. The Company shall not redeem Trust shares attributable to the
Contracts (as opposed to Trust shares attributable to the Company's assets held
in the Account) except (i) as necessary to implement Contract Owner initiated or
approved transactions, or (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") or (iii) as
permitted by an order of the SEC pursuant to Section 26(b) of the 1940 Act. Upon
request, the Company will promptly furnish to the Trust and the Distributor the
opinion of counsel for the Company (which counsel shall be reasonably
satisfactory to the Trust and the Distributor) to the effect that any redemption
pursuant to clause (ii) above is a legally required or permitted redemption.
Furthermore, except in cases where permitted under the terms of the Contracts,
the Company shall not prevent Contract Owners from allocating payments to a Fund
that was otherwise available under the Contracts without first giving the Trust
or the Distributor prompt written notice of its intention to do so.
ARTICLE XI. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail to another 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 party.
If to the Trust:
MTB GROUP OF FUNDS
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attention: Secretary
If to the Company:
FIRST SUNAMERICA LIFE INSURANCE COMPANY
1 SunAmerica Center
1999 Avenue of the Stars, 00xx Xxxxx
Xxx Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxx, Associate General Counsel
Fax: (310) 772-674
16
If to the Distributor
Edgewood Services, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attn: Secretary
If to the Advisor:
MTB Investment Advisors, Inc.
000 Xxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000) 000-0000
Phone: (000) 000-0000
Attn: Chief Investment Officer
ARTICLE XII. MISCELLANEOUS
12.1 All persons dealing with the Trust must look solely to the property
of the Trust for the enforcement of any claims against the Trust as neither the
trustees, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Trust.
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, excluding information that (a) is
independently developed by a party without violating the disclosing party's
proprietary rights, (b) is or becomes publicly known (other than through
unauthorized disclosure), (c) is intentionally disclosed by the owner of such
information to a third party free of any obligation of confidentiality, (d) is
already known by a party, as evidenced by the written records of that party,
free of an obligation of confidentiality other than pursuant to this Agreement,
or (c) is rightfully received by a party free of any obligation of
confidentiality. Each party further agrees to use and disclose Personal
Information, as defined herein, only to carry out the purposes for which it was
disclosed to them and will not use or disclose Personal Information if
prohibited by applicable law, including, without limitation, statutes and
regulations enacted pursuant to the Xxxxx-Xxxxx-Xxxxxx Act (Public Law 106-102),
applicable state law and other applicable federal law. For purposes of this
Agreement, "PERSONAL INFORMATION" means financial, medical and other information
that identifies an individual personally and is not available to the public,
including, but not limited to, credit history, income, financial benefits,
policy or claim information and medical records. The parties will take
reasonable steps to protect the confidential information, applying at least the
same security measures and level of care as they employ to protect their own
confidential information, including reasonable steps to protect information
received by third parties providing services to a party.
The parties acknowledge that the unauthorized disclosure of confidential
information is likely to cause irreparable injury to the other party and that,
in the vent of a violation or threatened violation of a party's obligations
hereunder, the disclosing party shall have no adequate remedy at law, and shall
therefore be entitled to enforce each such obligation by temporary or permanent
injunctive relief obtained in any court of competent jurisdiction without the
necessity of proving damages, and without prejudice to any other rights and
remedies which may be available at law or equity.
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.
17
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.
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; provided, however, that the Distributor may assign this Agreement or any
rights or obligations hereunder to any affiliate of with the Distributor, if
such assignee is duly licensed and registered to perform the obligations of the
Distributor under this Agreement. The Company shall promptly notify the Trust,
the Advisor, and the Distributor of any change in control of the Company.
12.9. The Company shall furnish, or shall cause to be furnished, to the
Trust, the Advisor or their designee copies of the following reports:
(a) 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 SEC 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.
12.10. Marks and Licenses
12.10(a) It is understood that the names "M&T," "Manufacturers & Traders
Trust Company" "MTB" or any derivative thereof or logo associated with those
names (the "M&T MARKS") are the valuable property of the Advisor (and its
affiliates), and that the Company has the right to use such names (or
derivatives or logos) only so long as this Agreement is in effect. Upon
termination of this Agreement the Company shall forthwith cease to use the M&T
Marks. Company agrees that it shall not use the M&T Marks in a manner that
disparages or degrades the business or reputation of the Advisor, the Trust, or
any of their affiliates, or that infringes, dilutes, or otherwise violates the
M&T Marks. Upon request, Company agrees to provide appropriate attribution of
the use of the M&T Marks (e.g., through the use of "TM" or (R) symbols, and
appropriate notice regarding reservation of rights).
12.10(b) It is understood that the name "AIG", "SunAmerica" or "Polaris"
or any derivative thereof or logo associated with that name (the "AIG MARKS") is
the valuable property of the Company and its affiliates, and that the Trust,
Distributor and Advisor have the right to use such name (or derivative or logo)
only so long as this Agreement is in effect. Upon termination of this Agreement
the Trust, Distributor and Advisor shall forthwith cease to use the AIG Marks.
Trust, Distributor and Advisor agree that it shall not use the AIG Marks in a
manner that disparages or degrades the business or reputation of the Company or
any of their affiliates, or that infringes, dilutes, or otherwise violates the
AIG Marks. Upon request, Trust, Distributor and Advisor agree to provide
appropriate attribution of the use of the AIG Marks (e.g., through the use of
"TM" or (R) symbols, and appropriate notice regarding reservation of rights).
18
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:
[SEAL] FIRST SUNAMERICA LIFE INSURANCE COMPANY,
On its behalf and on behalf of each
Separate Account named in Schedule A,
as may be amended from time to time.
By its authorized officer,
By:
----------------------------------------
Name: Xxxx Xxxxxx Xxxxx
Title: President
Date:
TRUST:
[SEAL] MTB GROUP OF FUNDS,
On its behalf and on behalf of each
Fund named in Schedule A, as may be
amended from time to time.
By its authorized officer,
By:
----------------------------------------
Name:
Title:
Date:
19
DISTRIBUTOR:
[SEAL] EDGEWOOD SERVICES, INC.
By its authorized officer,
By:
----------------------------------------
Name:
Title:
Date:
ADVISOR:
[SEAL] MTB INVESTMENT ADVISORS, INC.
By its authorized officer,
By:
----------------------------------------
Name:
Title:
Date:
20
SCHEDULE A
TO THE
PARTICIPATION AGREEMENT
among
MTB GROUP OF FUNDS,
EDGEWOOD SERVICES, INC.,
MTB INVESTMENT ADVISORS, INC.,
and
FIRST SUNAMERICA LIFE INSURANCE COMPANY
SEPARATE ACCOUNTS, ASSOCIATED CONTRACTS, AND FUNDS
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED NAME OF CONTRACT FUNDED BY SEPARATE ACCOUNT
BY THE BOARD OF TRUSTEES AND POLICY FORM NUMBERS OF CONTRACTS FUNDED
Variable Separate Account [Policy Form # to follow]
APPLICABLE FUND CUSIP EFFECTIVE DATE
MTB Large Cap Growth Fund II 55376T 73 4
MTB Large Cap Value Fund II 55376T 65 0
MTB Managed Allocation Fund: Moderate Growth II 55376T 57 5
MTB Managed Allocation Fund: Conservative Growth II 55376V 82 0
MTB Managed Allocation Fund: Aggressive Growth II 55376V 81 2
21
SCHEDULE B
PRICING ERRORS
If the Trust or its agent provides materially incorrect share net asset value
information through no fault of the Company, the Accounts shall be entitled to
an adjustment with respect to the Fund shares purchased, redeemed or held to
reflect the correct net asset value per share and to make such Account whole.
The determination of the materiality of any net asset value pricing error and
its correction shall be based on the SEC's recommended guidelines regarding
these errors.
In the event a Fund is required (under the then prevailing pricing error
guidelines of the Funds) to recalculate purchases and redemptions on any
business day of Shares held in an Account due to an error in calculating the net
asset value of such class of Shares (a "Pricing Error"):
(i) The Trust or its transfer agent shall promptly notify the Company in
writing of the Pricing Error, which written notice shall identify the
Fund shares, the business day(s) on which the Pricing Error(s) occurred
and the corrected net asset value of the Fund shares on each business
day.
(ii) Upon such notification, the Company shall promptly determine, for
all sub-accounts which purchased or redeemed Fund shares on each
business day on which a Pricing Error occurred, the correct number of
Fund shares purchased or redeemed using the corrected price and the
amount of transaction proceeds actually paid or received. Following such
determination, the Company shall adjust the number of Fund shares held
in each sub-account to the extent necessary to reflect the correct
number of Fund shares purchased or redeemed for the sub-account.
Following such determination, the Company shall notify the Trust or its
transfer agent of the net changes in transactions for the relevant
Account and the Trust or its transfer agent shall adjust the Account
accordingly.
(iii) The Company shall be entitled to reimbursement from the Fund, the
Distributor or the Advisor for any expenses incurred by the Company in
correcting an Account or Contract record or in adjusting proceeds paid
to Contract owners who have redeemed or reallocated interests under the
Contracts
(iv) In no event, however, shall the Company be liable to the Trust or
its transfer agent or any Fund for any Redemption Overage. Nothing in
this Pricing Errors section shall be deemed to limit the right of the
Trust, its Transfer Agent or any Fund, to recover any Redemption Overage
directly or to be indemnified by any party for losses arising from a
Pricing Error.
DOCUMENTS PROVIDED BY THE COMPANY
The Company agrees to provide Trust, upon written request, any reports
indicating the number of shareholders that hold interests in the Funds and such
other information (including books and records) that Trust may reasonably
request. The Company agrees to provide Trust, upon written request, such other
information (including books and records) as may be necessary or advisable to
enable it to comply with any law, regulation or order.
DOCUMENTS PROVIDED BY TRUST
Within five (5) Business Days after the end of each calendar month, Trust,
Distributor, or Advisor shall provide the Company, or its designee, a monthly
statement of account for each Account, which shall confirm all transactions made
during that particular month.
IN WITNESS WHEREOF, each of the parties has caused this Schedule B to be
executed in its name and on its behalf by its duly authorized representative as
of _____________.
22
FIRST SUNAMERICA LIFE INSURANCE COMPANY,
on its behalf and on behalf of each
Separate Account named in this Schedule A,
as may be amended from time to time
By:
----------------------------------
Name:
Its:
MTB GROUP OF FUNDS, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Fund named in this Schedule A,
as may be amended from time to time
By: By:
---------------------------------- ----------------------------------
Name: Name:
Its: Its:
MTB INVESTMENT ADVISORS, INC.
By:
----------------------------------
Name:
Its:
23
SCHEDULE C
MTB GROUP OF FUNDS,
EDGEWOOD SERVICES, INC.,
MTB INVESTMENT ADVISORS, INC.,
TRANSAMERICA LIFE INSURANCE COMPANY
and
FIRST SUNAMERICA LIFE INSURANCE COMPANY
SERVICES PROVIDED BY THE COMPANY
Pursuant to Article V of the Agreement, the Company shall perform all
administrative and shareholder services with respect to the Contracts and plans,
by itself or through relationships with other parties, including but not limited
to, the following:
1. Maintaining separate records for each Contract owner and each plan, which
shall reflect the Fund shares purchased and redeemed and Fund share balances
of such Contract owners and plans. The Company will maintain accounts with
each Fund on behalf of Contract owners and plans, and such account shall be
in the name of the Company (or its nominee) as the record owner of shares
owned by such Contract owners and plans.
2. Disbursing or crediting to contract owners and plans all proceeds of
redemptions of shares of the Funds and all dividends and other distributions
not reinvested in shares of the Funds.
3. Preparing and transmitting to Contract owners and plans, as required by law,
periodic statements showing the total number of shares owned as of the
statement closing date, purchases and redemptions of Fund shares during the
period covered by the statement and the dividends and other distributions
paid during the statement period (whether paid in cash or reinvested in Fund
shares), and such other information as may be required, from time to time,
by Contract owners and plans.
4. Providing communication support services including providing information
about the Funds and answering questions concerning the Funds (including
questions respecting Contract owners' interests in one or more Funds).
5. Maintaining and preserving all records required by law to be maintained and
preserved in connection with providing the services for Contract owners and
plans.
6. Generating written confirmations and quarterly statements to Contract owners
and plan participants.
7. Distributing to Contract owners and plans, to the extent required by
applicable law, Funds' prospectuses, proxy materials, periodic fund reports
to shareholders, notices and other materials that the Funds are required by
law or otherwise to provide to their shareholders or prospective
shareholders.
8. Transmitting purchase and redemption orders to the Trust on behalf of the
Contract owners and plans.
9. Providing teleservicing support in connection with the Trust.
10. Facilitating the tabulation of Contract owners' votes in the event of a
meeting of Fund shareholders; providing information relating to the Contacts
and share balances under such Contracts to the Trust as may be reasonably
requested.
11. Administering fund transfers, dollar cost averaging, asset allocation,
portfolio rebalancing, earnings sweep, and pre-authorized deposits and
withdrawals involving the Funds.
12. Providing other services as may be agreed upon from time to time.
24
In consideration for the Company providing these services, the Trust and/or the
Advisor agree to pay the Company in an amount equal to an annualized fee of
___%, based on the average daily net assets of each Fund held by the Accounts
underlying the Contracts, such amounts to be paid within 30 days of the end of
each month.
For purposes of computing the payment to the Company, the Company shall compute
the average daily net assets of Shares held in the Accounts over a monthly
period by totaling such Accounts' aggregate investment (Share net asset value
multiplied by total number of Shares held by such Accounts) on each Business Day
during the calendar month, and dividing by the total number of Business Days
during such month. The payment to the Company shall be calculated by the Company
and communicated to the Trust and Advisor at the end of each calendar month and
will be paid to the Company within 30 days thereafter.
In performing these administrative services, the Company shall at no time be
acting as an agent for the Trust, Distributor, Advisor or any Fund.
25
CONTRACT ANNUAL FEE
---------%
IN WITNESS WHEREOF, each of the parties has caused this Schedule C to be
executed in its name and on its behalf by its duly authorized representative as
of ___________, to become effective on _____________.
FIRST SUNAMERICA LIFE INSURANCE COMPANY,
on its behalf and on behalf of each
Separate Account named in this Schedule A,
as may be amended from time to time
By:
----------------------------------
Name:
Its:
MTB GROUP OF FUNDS, EDGEWOOD SERVICES, INC.
on its behalf and on behalf of each
Fund named in this Schedule A, as
may be amended from time to time
By: By:
---------------------------------- ----------------------------------
Name: Name:
Its: Its:
MTB INVESTMENT ADVISORS, INC.
By:
----------------------------------
Name:
Its:
26
