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EXHIBIT 8a(ii)
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (the "Agreement") made by and between XXXXXXX,
XXXXXXX & XXXXX, INC., a Delaware corporation ("SS&C"), with a principal place
of business in Boston, Massachusetts and SAFECO LIFE INSURANCE COMPANIES, a
Washington corporation (the "Company"), with a principal place of business in
Seattle, Washington on behalf of the SAFECO SafeFlex Variable Account, a
separate account of the Company, and any other separate account of the Company
as designated by the Company from time to time, upon written notice to the Fund
in accordance with Section 9 herein (the "Account").
WHEREAS, SS&C has caused to be organized Xxxxxxx Variable Life
Investment Fund (the "Fund"), a Massachusetts business trust created under a
Declaration of Trust dated March 15, 1985, as amended, the beneficial interest
in which is divided into several series, each designated a "Portfolio" and
representing the interest in a particular managed portfolio of securities; and
WHEREAS, the purpose of the Fund is to act as the investment vehicle
for the separate accounts established for variable life insurance policies and
variable annuity contracts to be offered by insurance companies which have
entered into reimbursement agreements substantially identical to this Agreement
("Participating Insurance Companies"); and
WHEREAS, it is in the best interest of the parties hereto for
Participating Insurance Companies, including the Company, to assume a portion of
the organization and other expenses incurred
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by SS&C in connection with the Fund during the term of this agreement; and
WHEREAS, the parties desire to express their agreement as to certain
other matters;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Additional Definitions.
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For purposes of this Agreement, the following definitions shall apply:
(a) The "average annual net asset value of the Shares of
each Portfolio of the Fund" shall mean the sum of the aggregate
net asset values of the Shares of such Portfolio owned by the
Account (referred to herein as the "Participating Shareholder")
determined as of each determination of the net asset value per
Share of the Fund during the fiscal year, divided by the number
of such determinations during such year.
(b) "Shares" means shares of beneficial interest,
without par value, of any Portfolio, now or hereafter created,
of the Fund.
2. Initial Reimbursement Fee.
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Simultaneously with the execution of this Agreement, the Company on
behalf of the Account has paid to SS&C a fee ("Reimbursement Fee") in the amount
of $10,000 in order partially to defray expenses incurred by SS&C in connection
with the organization of the Fund.
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3. Access to Other Products.
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SS&C shall permit a Participating Shareholder to participate in any
registered investment company other than the Fund which is intended as the
funding vehicle for insurance products and for which SS&C or an affiliate of
SS&C acts as investment adviser, on the same basis as other insurance companies
are permitted to participate in such a registered investment company. This
provision shall not require SS&C to make available to the Company shares of any
investment company which is organized solely as the funding vehicle for
insurance products offered by a single insurance company or a group of
affiliated insurance companies.
4. Right to Review and Approve Sales Materials.
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The Company shall furnish, or shall cause to be furnished, to SS&C or
its designee, at least twenty days prior to its intended use, each piece of
promotional material in which SS&C or the Fund is named. No such material shall
be used unless SS&C or its designee shall have approved such use in writing, or
twenty days shall have elapsed without approval, rejection or objection since
receipt by SS&C or its designee of such material.
SS&C shall furnish, or shall cause to be furnished, to the Company or
its designee, at least twenty days prior to its intended use, each piece of
promotional material in which the Company or its separate account(s) is named.
No such material shall be used unless the Company or its designee shall have
approved such use in writing, or twenty days shall have elapsed without
approval, rejection or objection since receipt by the Company or its designee of
such material.
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5. Sales Organization Meetings.
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Representatives of SS&C or its designee shall meet with the sales
organizations of the Company at such reasonable times and places as may be
agreed upon by the Company and SS&C or its designee for the purpose of educating
sales personnel about the Fund.
6. Duration.
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This Agreement shall continue in effect for five (5) years from the
date of its execution, except that the obligation of each party hereto to
indemnify the other party hereto shall continue with respect to all losses,
claims, damages, liabilities or litigation based upon the acquisition of Shares
purchased as the funding vehicle for any variable life insurance policy or
variable annuity contract issued by the Company or any affiliated insurance
company.
7. Indemnification.
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The Company agrees to indemnify and hold harmless SS&C and each of its
Directors and officers and each person, if any, who controls SS&C within the
meaning of Section 15 of the Securities Act of 1933 (the "Act") or any person,
controlled by or under common control with SS&C ("affiliate") against any and
all losses, claims, damages, liabilities or litigation (including legal and
other expenses) to which SS&C or such Directors, officers or controlling person
may become subject under the Act, under any other statute, at common law or
otherwise, arising out of the acquisition of any Shares by any person which (i)
may be based upon any wrongful act by the Company, any of its employees
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or representatives, any affiliate of or any person acting on behalf of the
Company or a principal underwriter of its insurance products, or (ii) may be
based upon any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering Shares or any
amendment thereof or supplement thereto or the omission or alleged omission to
state therein a material fact required to stated therein or necessary to make
the statements therein not misleading if such a statement or omission was made
in reliance upon information furnished to SS&C or the Fund by the Company,
provided, however, that in no case (i) is the Company s indemnity in favor of a
Director or officer or any other person deemed to protect such Director or
officer or other person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties or by reason of his reckless
disregard of obligations and duties under this Agreement or (ii) is the Company
to be liable under its indemnity agreement contained in Paragraph 7 with respect
to any claim made against SS&C or any person indemnified unless SS&C or such
person, as the case may be, shall have notified the Company in writing pursuant
to Paragraph 9 within a reasonable time after the summons or other first legal
process giving information of the nature of the claims shall have been served
upon SS&C or upon such person (or after SS&C or such person 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
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liability which it has to SS&C or any person against whom such action is brought
otherwise than on account of the indemnity agreement contained in this Paragraph
7. The Company shall be entitled to participate, at its own expense, in the
defense, or, if it so elects, to assume the defense of any suit brought to
enforce any such liability, but, if it elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to SS&C, to
its officers and Directors, or to any controlling person or persons, defendant
or defendants in the suit. In the event that the Company elects to assume the
defense of any such suit and retain such counsel, SS&C, such officers and
Directors or controlling person or persons, defendant or defendants in the suit,
shall bear the fees and expenses of any additional counsel retained by them,
but, in case the Company does not elect to assume the defense of any such suit,
the Company will reimburse SS&C, such officers and Directors or controlling
person or persons, defendant or defendants in such suit, for the reasonable fees
and expenses of any counsel retained by them. The Company agrees promptly to
notify SS&C pursuant to Paragraph 9 of the commencement of any litigation or
proceedings against it in connection with the issue and sale of any Shares.
SS&C agrees to indemnify and hold harmless the Company and each of its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
it or
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such directors, officers or controlling persons may become subject under the
Act, under any other statute, at common law or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based upon any wrongful
act by SS&C, any of its employees or representatives or a principal underwriter
of the Fund, or (ii) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in a registration statement or prospectus
covering Shares 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
statement or omission was made in reliance upon information furnished to the
Company by SS&C; provided, however, that in no case (i) is SS&C s indemnity in
favor of a director or officer or any other person deemed to protect such
director or officer or other person against any liability to which any such
person would otherwise be subject by reason of willful misfeasance, bad faith,
or gross negligence in the performance of his duties or by reason of his
reckless disregard of obligations and duties under this Agreement or (ii) is
SS&C to be liable under its indemnity agreement contained in this Paragraph 7
with respect to any claims made against the Company or any such director,
officer or controlling person unless it or such director, officer or controlling
person, as the case may be, shall have notified SS&C in writing pursuant to
Paragraph 9 within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have
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been served upon it or upon such director, officer or controlling person (or
after the Company or such director, officer or controlling person shall have
received notice of such service on any designated agent), but failure to notify
SS&C of any claim shall not relieve it from any liability which it may have to
the person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this Paragraph 7. SS&C will be entitled to
participate at its own expense in the defense, or, if it so elects, to assume
the defense of any suit brought to enforce any such liability, but if SS&C
elects to assume the defense, such defense shall be conducted by counsel chosen
by it and satisfactory to the Company, its directors, officers or controlling
person or persons, defendant or defendants, in the suit. In the event SS&C
elects to assume the defense of any such suit and retain such counsel, the
Company, its directors, officers or controlling person or persons, defendant or
defendants in the suit, shall bear the fees and expenses of any additional
counsel retained by them, but, in case SS&C does not elect to assume the defense
of any such suit, it will reimburse the Company or such directors, officers or
controlling person or persons, defendant or defendants in the suit, for the
reasonable fees and expenses of any counsel retained by them. SS&C agrees
promptly to notify the Company pursuant to Paragraph 9 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 any Shares.
8. Massachusetts Law to Apply.
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This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
9. Notices.
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Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to SS&C:
Xxxxxxx, Xxxxxxx & Xxxxx, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn: Xxxxx X. Xxxxx
If to the Company:
SAFECO Life Insurance Companies
00000 X.X. 00xx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
10. Miscellaneous.
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The captions in the 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. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the 31st day of
December, 1992.
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SEAL XXXXXXX, XXXXXXX & XXXXX, INC.
By /S/ Xxxxx X. Xxxxx
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Managing Director
SEAL SAFECO LIFE INSURANCE COMPANIES
By /S/ Xxxx X. Xxxxxxxx
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Its Senior Vice President
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