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EXHIBIT 8(m)
AMENDMENT TO TRUST PARTICIPATION AGREEMENT
THIS AMENDMENT to the Trust Participation Agreement ("Amendment") is
entered into as of the 9th day of July 1997 by and SAFECO Resource Series Trust,
an unincorporated business trust organized under the laws of the State of
Delaware ("Trust"), SAFECO Asset Management Company, a Washington corporation
("Adviser"), and IL Annuity and Insurance Company ("Life Company"), a life
insurance company organized under the laws of the State of Massachusetts.
RECITALS
A. The Trust, Advisor and Life Company have entered into that certain Trust
Participation Agreement as of July 9, 1997 ("Agreement").
B. The Trust, Advisor and Life Company desire to amend the Agreement in
accordance with the terms and conditions of this Amendment.
NOW THEREFORE, in consideration of their mutual promises, Life Company, Trust
and Adviser agree as follows:
1. Section 2.13 shall be added to Article II of the Agreement to read as
follows:
2.13 Life Company represents and warrants that no Separate Account listed
on Exhibit A is exempt from registration under the '40 Act in reliance on
Section 3(c)(1) or 3(c)(7) thereof.
2. Section 4.6 of the Agreement shall be amended to read as follows:
4.6 Trust and Adviser agree and acknowledge that Life Company has applied
for trademark protection of the marks "Visionary", "Visionary Variable
Annuity", and "Visionary Choice Variable Annuity" (collectively, the
"Visionary Marks") and that Life Company believes it will be granted
exclusive rights to the Visionary Marks in the field of insurance
underwriting. Trust and Adviser further agree and acknowledge that all
use of any designation comprised in whole or in part of the Visionary
Marks under this Agreement shall inure to the benefit of Life Company.
Except as provided in Section 4.2, neither Trust nor Adviser shall use
any Visionary Marks on behalf of itself or any affiliate in any
registration statement, advertisement, sales literature or other
materials without the prior written consent of Life Company. Except as
provided in Section 4.1, Life Company shall not use the "SAFECO" name on
behalf of itself or any affiliate in any registration statement,
advertisement, sales literature or other materials without the prior
written consent of Trust and Advisor. Upon termination of this Agreement
for any reason, Trust and Adviser shall cease all use of any Visionary
Marks and Life Company shall cease all use of the "SAFECO" name as soon
as reasonably practicable.
3. Section 6.2 of the Agreement shall be amended to read as follows:
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6.2 The Board will monitor Trust for the existence of any material
irreconcilable conflict between the interests of Variable Contract Owners
of all separate accounts investing in Trust. A material irreconcilable
conflict may arise for a variety of reasons, which may include: (a) an
action by any state insurance regulatory authority; (b) a change in
applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling or any similar
action by insurance, tax or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the
manner in which the investments of Trust are being managed; (e) a
difference in voting instructions given by Variable Contract Owners; and
(f) a decision by a Participating Insurance Company to disregard the
voting instructions of Variable Contract Owners.
4. Section 7.1 of the Agreement is amended to read as follows:
7.1 Life Company will provide pass-through voting privileges to all
Owners of Variable Contracts which are registered under the '33 Act
and/or the '40 Act so long as the SEC continues to interpret the '40 Act
as requiring passthrough voting privileges. The Variable Contract Owners
to whom Life Company will provide pass-through voting privileges pursuant
to this Agreement are hereinafter referred to as "Pass-through Voters."
Accordingly, Life Company, when applicable, will distribute to
Pass-through Voters all proxy material furnished by Adviser and will vote
shares of the Portfolios held in its Separate Accounts in a manner
consistent with voting instructions timely received from Pass-through
Voters. Life Company will be responsible for assuring that each of its
Separate Accounts that participates in Trust calculates voting privileges
in a manner consistent with other Participating Insurance Companies. Life
Company will vote shares for which it has not received timely voting
instructions, as well as shares it owns, in the same proportion as it
votes those shares for which it has received voting instructions. Life
Company reserves the right to disregard the voting instructions of
Pass-through Voters to the extent such action is permitted by Rules 6e-2
or 6e-3(T) under the '40 Act and is permitted under applicable state
insurance laws affecting Trust.
5. Section 7.2 of the Agreement is amended to read as follows:
7.2 Trust shall notify Life Company of Trust's intent to file proxy
solicitation materials with the SEC as soon as practicable prior to such
filing. Life Company and its agents shall not oppose or interfere with
the solicitation of proxies for Portfolio shares held for Pass-through
Voters, unless required to by applicable law. Trust shall notify Life
Company of any shareholder proposal upon its inclusion in the proxy
solicitation materials filed with the SEC.
6. Subsection (f) of Section 9.2 of the Agreement is amended to read as
follows:
(f) Upon the receipt of any necessary regulatory approvals, or
requisite vote of Pass-through Voters having an interest in the
Portfolios, to substitute for shares of the Portfolios the shares
of another investment company in accordance with the terms
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of the applicable Variable Contracts. Life Company shall give
sixty (60) days' written notice to Adviser of any proposed request
for regulatory approvals or vote to replace the Portfolios'
shares;
7. Section 9.4 of the Agreement is amended to read as follows:
9.4 Notwithstanding any termination of this Agreement pursuant to
subsections (a), (b), (c), (e), (f) (h), and/or (k) (hereinafter referred
to as the "Qualifying Subsections") of Section 9.2 hereof, and unless the
further sale of shares of the Portfolios is proscribed by applicable law
or the SEC or other regulatory body, Trust will continue to make
available additional Trust shares, as provided below, pursuant to the
terms and conditions of this Agreement, for all Variable Contracts in
effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, without
limitation, the Owners of the Existing Contracts shall be permitted to
reallocate investments in Trust, redeem investments in Trust and/or
invest in Trust upon the payment of additional premiums under the
Existing Contracts. In the event of a termination of this Agreement
pursuant to the Qualifying Subsections of Section 9.2 hereof, Trust and
Adviser, as promptly as is practicable under the circumstances, shall
notify Life Company whether Trust under applicable law may continue to
make Trust shares available after such termination. If Trust shares
continue to be made available after such termination, the provisions of
this Agreement shall remain in effect and thereafter either Trust or Life
Company may terminate the Agreement, as so continued pursuant to this
Section 9.4, upon sixty (60) days' prior written notice to the other
party. This Section 9.4 shall not apply in the event of termination of
this Agreement pursuant to subsections (d), (g), (i) and/or (j) of
Section 9.2 hereof.
IN WITNESS WHEREOF, the parties have entered into this Amendment as of the date
first written above.
SAFECO Resource Series Trust
By: /s/Xxxx X. Xxxxxx
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Name: Xxxx X. Xxxxxx
Title: Vice President and Controller
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SAFECO Asset Management Company
By: /s/Xxxxxx Eggerli
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Name: Xxxxxx Eggerli
Title: Vice President
IL Annuity and Insurance Company
By: /s/Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: President & CEO
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