AMENDMENT NO. 1
PARTICIPATION AGREEMENT
The Amended and Restated Participation Agreement (the "Agreement"), dated August
1, 2000, by and among First Allmerica Financial Life Insurance Company, a
Massachusetts life insurance company ("Insurer") (on behalf of itself and its
"Separate Account," defined below); Allmerica Investments, Inc., a Massachusetts
corporation ("Contracts Distributor"), the principal underwriter with respect to
the Contracts referred to below; Alliance Capital Management L.P., a Delaware
limited partnership ("Adviser"), the investment adviser of the Fund referred to
below; and Alliance Fund Distributors, Inc., a Delaware corporation
("Distributor"), the Fund's principal underwriter (collectively, the "Parties"),
is hereby amended as follows:
Schedule A of the Agreement is hereby deleted in its entirety and replaced
with the following:
SCHEDULE A
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1933 XXX 0000 ACT
PRODUCT NAME NUMBER NUMBER PORTFOLIOS
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Allmerica Value Generation 33-87105 811-8114 Alliance Growth Portfolio
("Annuity Scout")
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Xxxxxxxx Xxxxxxxxx (X, XX, XXX) 00-00000 811-8114 Alliance Growth Portfolio
Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
Alliance Technology Portfolio
-----------------------------------------------------------------------------------------------------------------
ExecAnnuity Plus 33-71052 811-8114 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Allmerica Advantage 33-71052 811-8114 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
DirectedAdvisorySolutions 333-90545 811-8114 Alliance Growth Portfolio
("Fund Quest")
-----------------------------------------------------------------------------------------------------------------
Pioneer Vision (I, II) 33-86664 811-8872 Alliance Premier Growth Portfolio
Alliance Technology Portfolio
-----------------------------------------------------------------------------------------------------------------
Pioneer C-Vision 333-64833 811-8872 Alliance Premier Growth Portfolio
Alliance Technology Portfolio
-----------------------------------------------------------------------------------------------------------------
Pioneer No-Load 333-90537 811-8872 Alliance Premier Growth Portfolio
Alliance Technology Portfolio
-----------------------------------------------------------------------------------------------------------------
Variable Inheiritage 33-74184 811-8304 Alliance Premier Growth Portfolio
-----------------------------------------------------------------------------------------------------------------
Select Inheiritage 33-74184 811-8304 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Select SPL 333-45914 811-10133 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
VEL III 333-45914 811-10133 Alliance Premier Growth Portfolio
(Agency Estate Optimizer)
-----------------------------------------------------------------------------------------------------------------
VEL II (93) 33-71056 811-8130 Alliance Premier Growth Portfolio
-----------------------------------------------------------------------------------------------------------------
Allmerica VUL 2001 Pending Pending Alliance Premier Growth Portfolio
-----------------------------------------------------------------------------------------------------------------
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1933 XXX 0000 ACT
PRODUCT NAME NUMBER NUMBER PORTFOLIOS
-----------------------------------------------------------------------------------------------------------------
Allmerica Select Life Plus Pending Pending Alliance Premier Growth Portfolio
-----------------------------------------------------------------------------------------------------------------
Select Life II 333-62369 811-8987 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Select Charter 333-63087 811-8116 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Select Resource 33-71058 811-8116 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Allmerica Immediate Advantage 333-81859 811-8114 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Select Reward 333-54070 811-8116 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Pioneer XtraVision 333-54040 811-8872 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Delaware Golden Medallion 333-54218 811-8114 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
-----------------------------------------------------------------------------------------------------------------
Allmerica Ultimate Advantage 333-38276 811-8114 Alliance Premier Growth Portfolio
Alliance Growth and Income Portfolio
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All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective Date: May 1, 2001
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
By:
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: President
ALLMERICA INVESTMENTS, INC.
By:
----------------------------------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: President
ALLIANCE CAPITAL MANAGEMENT LP
By: Alliance Capital Management Corporation,
its General Partner
By:
----------------------------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President and Assistant General Counsel
ALLIANCE FUND DISTRIBUTORS, INC.
By:
----------------------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
MERGER AND CONSOLIDATION AGREEMENT
THIS MERGER AND CONSOLIDATION AGREEMENT, made and entered into as of
the first day of August, 2000 ("Merger Agreement"), by and among First Allmerica
Financial Life Insurance Company, a Delaware life insurance company ("Insurer");
Allmerica Investments, Inc., a Massachusetts corporation ("Contracts
Distributor"), the principal underwriter with respects to the Contracts referred
to in the Participation Agreements; Alliance Capital Management L.P., a Delaware
limited partnership ("Advisor"), the investment adviser of the Fund referred to
in the Participation Agreements; and Alliance Fund Distributors, Inc., a
Delaware Corporation ("Distributor"), the Fund's principal underwriter
(collectively, the "Parties"),
WITNESSETH THAT:
WHEREAS, the Parties entered into a series of Fund Participation
Agreements, individually listed below in Section 1, applicable to Class B Shares
of the Fund's Portfolios on the first day of May 2000 ("Participation
Agreements"); and
WHERAS, a separate Participation Agreement exists for each variable
annuity contract or variable life insurance policy; and
WHEREAS, for ease of reference and convenience the Parties desire to
merge and consolidate each of the Participation Agreements into one
Participation Agreement,
NOW, THEREFORE, the Parties agree that each Participation Agreement
entered into by the Parties on the first day of May, 2000 will be merged and
consolidated into one Participation Agreement, and such Participation Agreement
will be amended and restated as of this day, the first day of August, 2000, so
that it will contain the provisions applicable to such a merged and consolidated
agreement. The Amended and Restated Participation Agreement is attached hereto.
SECTION 1: PARTICIPATION AGREEMENTS INCLUDED
The following Participation Agreements, identified by the name of the
variable annuity contract or variable life insurance policy, will be merged and
consolidated into a single Participation Agreement pursuant to the terms of this
Merger Agreement:
A. The Participation Agreement for the Delaware Medallion Contract (33-71054;
811-8114);
B. The Participation Agreement for the Allmerica Accumulator Contract
333-87105; 811-8114);
C. The Participation Agreement for the Pioneer Vision Contract
(33-86664;811-8872); and
D. The Participation Agreement for the Pioneer C-Vision Contract (333-64833;
811-8872).
SECTION 2: EFFECTIVE DATE
The effective date of this Merger Agreement shall be the first day of
August, 2000. Notwithstanding the foregoing, the provisions of this Merger
Agreement do not extinguish the rights and obligations of the Parties pursuant
to the Participation Agreements between the first day of May, 2000 and the
effective date of this Merger Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
executed in their names on their behalf by and through their duly authorized
officers signing below.
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ALLMERICA INVESTMENTS, INC.
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ALLIANCE CAPITAL MANAGEMENT L.P.
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
ALLIANCE FUND DISTRIBUTORS, INC.
By:
------------------------------------------
Name:
------------------------------------------
Title:
------------------------------------------
AMENDED AND RESTATED
PARTICIPATION AGREEMENT
AMONG
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY,
ALLMERICA INVESTMENTS, INC.
ALLIANCE CAPITAL MANAGEMENT L.P.
AND
ALLIANCE FUND DISTRIBUTORS, INC.
DATED AS OF
AUGUST 1, 2000
PARTICIPATION AGREEMENT
THIS AGREEMENT, initially made and entered into as of the first day of
May, 2000 ("Agreement"), and Merged and Consolidated pursuant to a Merger and
Consolidation Agreement dated this first day of August, 2000, is amended and
restated this first day of August, 2000, by and among First Allmerica Financial
Life Insurance Company, a Massachusetts life insurance company ("Insurer") (on
behalf of itself and its "Separate Account," defined below); Allmerica
Investments, Inc., a Massachusetts corporation ("Contracts Distributor"), the
principal underwriter with respect to the Contracts referred to below; Alliance
Capital Management L.P., a Delaware limited partnership ("Adviser"), the
investment adviser of the Fund referred to below; and Alliance Fund
Distributors, Inc., a Delaware corporation ("Distributor"), the Fund's principal
underwriter (collectively, the "Parties"),
WITNESSETH THAT:
WHEREAS Insurer, the Distributor, and Alliance Variable Products Series
Fund, Inc. (the "Fund") desire that Class B shares of the Fund's Portfolios
indicated on Schedule A (the "Portfolios"; reference herein to the "Fund"
includes reference to each Portfolio to the extent the context requires) be made
available by Distributor, to the Insurer on behalf of its Separate Accounts
supporting variable annuity contracts and variable life insurance policies (the
"Contracts"), also indicated on Schedule A, to serve as underlying investment
media for such Contracts , to be offered through Contracts Distributor and other
registered broker-dealer firms as agreed to by Insurer and Contracts
Distributor; and
1
WHEREAS the Contracts provide for the allocation of net amounts
received by Insurer to separate series (the "Divisions"; reference herein to the
"Separate Account" includes reference to each Division to the extent the context
requires) of the Separate Account for investment in Class B shares of
corresponding Portfolios of the Fund that are made available through the
Separate Account to act as underlying investment media,
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein, the Fund and Distributor will make Class B shares of the
Portfolios available to Insurer for this purpose at net asset value and with no
sales charges, all subject to the following provisions:
SECTION 1. ADDITIONAL CONTRACTS, SEPARATE ACCOUNTS AND PORTFOLIOS
The Parties to this Agreement may amend Schedule A of this Agreement
from time to time by written agreement signed by each of the Parties to reflect,
as appropriate, additions or changes relating to the Contracts or to the
Separate Accounts, or to add additional Portfolios, such Portfolios will become
subject to this Agreement, if, upon written consent of each of the Parties
hereto, they are made available as investment media for the Contracts. Each such
additional Contract, Separate Account or Portfolio, is subject to the provisions
of this Agreement, effective as of the date of the amendment of Schedule A,
unless the Parties agree to otherwise by written consent.
SECTION 2. PROCESSING TRANSACTIONS
2.1 TIMELY PRICING AND ORDERS.
The Adviser or its designated agent will provide closing net asset
value, dividend and capital gain information for each Portfolio to Insurer at
the close of trading on each day (a "Business Day")
2
on which (a) the New York Stock Exchange is open for regular trading, (b) the
Fund calculates the Portfolio's net asset value and (c) Insurer is open for
business. The Fund or its designated agent will use its best efforts to provide
this information by 6:00 p.m., Eastern time. Insurer will use these data to
calculate unit values, which in turn will be used to process transactions that
receive that same Business Day's Separate Account Division's unit values. Such
Separate Account processing will be done the same evening, and corresponding
orders with respect to Fund shares will be placed the morning of the following
Business Day. Insurer will use its best efforts to place such orders with the
Fund by 10:00 a.m., Eastern time.
2.2 TIMELY PAYMENTS.
Insurer will transmit orders for purchases and redemptions of Fund
shares to Distributor, and will wire payment for net purchases to a custodial
account designated by the Fund on the day the order for Fund shares is placed,
to the extent practicable. Payment for net redemptions will be wired by the Fund
to an account designated by Insurer on the same day as the order is placed, to
the extent practicable, and in any event be made within six calendar days after
the date the order is placed in order to enable Insurer to pay redemption
proceeds within the time specified in Section 22(e) of the Investment Company
Act of 1940, as amended (the "1940 Act").
2.3 REDEMPTION IN KIND.
The Fund reserves the right to pay any portion of a redemption in kind
of portfolio securities, if the Fund's board of directors (the "Board of
Directors") determines that it would be detrimental to the best interests of
shareholders to make a redemption wholly in cash.
3
2.4 APPLICABLE PRICE.
The Parties agree that Portfolio share purchase and redemption orders
resulting from Contract owner purchase payments, surrenders, partial
withdrawals, routine withdrawals of charges, or other transactions under
Contracts will be executed at the net asset values as determined as of the close
of regular trading on the New York Stock Exchange on the Business Day that
Insurer receives such orders and processes such transactions, which, Insurer
agrees shall occur not earlier than the Business Day prior to Distributor's
receipt of the corresponding orders for purchases and redemptions of Portfolio
shares. For the purposes of this section, Insurer shall be deemed to be the
agent of the Fund for receipt of such orders from holders or applicants of
contracts, and receipt by Insurer shall constitute receipt by the Fund. All
other purchases and redemptions of Portfolio shares by Insurer, will be effected
at the net asset values next computed after receipt by Distributor of the order
therefor, and such orders will be irrevocable. Insurer hereby elects to reinvest
all dividends and capital gains distributions in additional shares of the
corresponding Portfolio at the record-date net asset values until Insurer
otherwise notifies the Fund in writing, it being agreed by the Parties that the
record date and the payment date with respect to any dividend or distribution
will be the same Business Day.
SECTION 3. COSTS AND EXPENSES
3.1 GENERAL.
Except as otherwise specifically provided herein, each Party will bear
all expenses incident to its performance under this Agreement.
4
3.2 REGISTRATION.
The Fund will bear the cost of its registering as a management
investment company under the 1940 Act and registering its shares under the
Securities Act of 1933, as amended (the "1933 Act"), and keeping such
registrations current and effective; including, without limitation, the
preparation of and filing with the SEC of Forms N-SAR and Rule 24f-2 Notices
respecting the Fund and its shares and payment of all applicable registration or
filing fees with respect to any of the foregoing. Insurer will bear the cost of
registering the Separate Account as a unit investment trust under the 1940 Act
and registering units of interest under the Contracts under the 1933 Act and
keeping such registrations current and effective; including, without limitation,
the preparation and filing with the SEC of Forms N-SAR and Rule 24f-2 Notices
respecting the Separate Account and its units of interest and payment of all
applicable registration or filing fees with respect to any of the foregoing.
3.3 OTHER (NON-SALES-RELATED) EXPENSES.
The Fund will bear the costs of preparing, filing with the SEC and
setting for printing the Fund's prospectus, statement of additional information
and any amendments or supplements thereto (collectively, the "Fund Prospectus"),
periodic reports to shareholders, Fund proxy material and other shareholder
communications and any related requests for voting instructions from
Participants (as defined below). Insurer will bear the costs of preparing,
filing with the SEC and setting for printing, the Separate Account's prospectus,
statement of additional information and any amendments or supplements thereto
(collectively, the "Separate Account Prospectus"), any periodic reports to
owners, annuitants or participants under the Contracts (collectively,
"Participants"), and other Participant communications. The Fund and Insurer each
will bear the costs of printing in quantity and delivering to existing
Participants the documents as to which it bears the cost of preparation as set
forth above in this Section 3.3, it being understood that reasonable cost
allocations will be made in cases where any such Fund and Insurer
5
documents are printed or mailed on a combined or coordinated basis. If REQUESTED
by Insurer, the Fund will provide annual Prospectus text to Insurer on diskette
for printing and binding with the Separate Account Prospectus.
3.4 OTHER SALES-RELATED EXPENSES.
Expenses of distributing the Portfolio's shares and the Contracts will
be paid by Contracts Distributor and other parties, as they shall determine by
separate agreement.
3.5 PARTIES TO COOPERATE.
The Adviser, Insurer, Contracts Distributor, and Distributor each
agrees to cooperate with the others, as applicable, in arranging to print, mail
and/or deliver combined or coordinated prospectuses or other materials of the
Fund and Separate Account.
SECTION 4. LEGAL COMPLIANCE
4.1 TAX LAWS.
(a) The Adviser will use its best efforts to qualify and to
maintain qualification of each Portfolio as a regulated investment company
("RIC") under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code"), and the Adviser or Distributor will notify Insurer immediately upon
having a reasonable basis for believing that a Portfolio has ceased to so
qualify or that it might not so qualify in the future.
(b) Insurer represents that it believes, in good faith, that the
Contracts will be treated as [annuity] contracts or life insurance policies, as
applicable, under applicable provisions of the Code and that it will make every
effort to maintain such treatment. Insurer will notify the Fund and Distributor
6
immediately upon having a reasonable basis for believing that any of the
Contracts have ceased to be so treated or that they might not be so treated in
the future.
(c) The Fund will use its best efforts to comply and to maintain
each Portfolio's compliance with the diversification requirements set forth in
Section 817(h) of the Code and Section 1.817-5(b) of the regulations under the
Code, and the Fund, Adviser or Distributor will notify Insurer immediately upon
having a reasonable basis for believing that a Portfolio has ceased to so comply
or that a Portfolio might not so comply in the future.
(d) Insurer represents that it believes, in good faith, that the
Separate Account is a "segregated asset account" and that interests in the
Separate Account are offered exclusively through the purchase of or transfer
into a "variable contract," within the meaning of such terms under Section
817(h) of the Code and the regulations thereunder. Insurer will make every
effort to continue to meet such definitional requirements, and it will notify
the Fund and Distributor immediately upon having a reasonable basis for
believing that such requirements have ceased to be met or that they might not be
met in the future.
(e) The Adviser will manage the Fund as a RIC in compliance with
Subchapter M of the Code and will use its best efforts to comply with Section
817(h) of the Code and regulations thereunder. The Fund has adopted and will
maintain procedures for ensuring that the Fund is managed in compliance with
Subchapter M and Section 817(h) and regulations thereunder.
(f) Should the Distributor or Adviser become aware of a failure of
Fund, or any of its Portfolios, to comply with Subchapter M of the Code or
Section 817(h) of the Code and regulations thereunder, they represent and agree
that they will immediately notify Insurer of such in writing.
7
4.2 INSURANCE AND CERTAIN OTHER LAWS.
(a) The Adviser will use its best efforts to cause the Fund to
comply with any applicable state insurance laws or regulations, to the extent
specifically requested in writing by Insurer. If it cannot comply, it will so
notify Insurer in writing.
(b) Insurer represents and warrants that (i) it is an insurance
company duly organized, validly existing and in good standing under the laws of
the State of Delaware and has full corporate power, authority and legal right to
execute, deliver and perform its duties and comply with its obligations under
this Agreement, (ii) it has legally and validly established and maintains the
Separate Account as a segregated asset account under Delaware law, and (iii) the
Contracts comply in all material respects with all other applicable federal and
state laws and regulations.
(c) Insurer and Contracts Distributor represent and warrant that
Contracts Distributor is a business corporation duly organized, validly
existing, and in good standing under the laws of the State of Massachusetts and
has full corporate power, authority and legal right to execute, deliver, and
perform its duties and comply with its obligations under this Agreement.
(d) Distributor represents and warrants that it is a business
corporation duly organized, validly existing, and in good standing under the
laws of the State of Delaware and has full corporate power, authority and legal
right to execute, deliver, and perform its duties and comply with its
obligations under this Agreement.
(e) Distributor represents and warrants that the Fund is a
corporation duly organized, validly existing, and in good standing under the
laws of the State of Maryland and has full power, authority, and
8
legal right to execute, deliver, and perform its duties and comply with its
obligations under this Agreement.
(f) Adviser represents and warrants that it is a limited
partnership, duly organized, validly existing and in good standing under the
laws of the State of Delaware and has full power, authority, and legal right to
execute, deliver, and perform its duties and comply with its obligations under
this Agreement.
4.3 SECURITIES LAWS.
(a) Insurer represents and warrants that (i) interests in the
Separate Account pursuant to the Contracts will be registered under the 1933 Act
to the extent required by the 1933 Act and the Contracts will be duly authorized
for issuance and sold in compliance with Delaware law, (ii) the Separate Account
is and will remain registered under the 1940 Act to the extent required by the
1940 Act, (iii) the Separate Account does and will comply in all material
respects with the requirements of the 1940 Act and the rules thereunder, (iv)
the Separate Account's 1933 Act registration statement relating to the
Contracts, together with any amendments thereto, will, at all times comply in
all material respects with the requirements of the 1933 Act and the rules
thereunder, and (v) the Separate Account Prospectus will at all times comply in
all material respects with the requirements of the 1933 Act and the rules
thereunder.
(b) The Adviser and Distributor represent and warrant that (i)
Fund shares sold pursuant to this Agreement will be registered under the 1933
Act to the extent required by the 1933 Act and duly authorized for issuance and
sold in compliance with Maryland law, (ii) the Fund is and will remain
registered under the 1940 Act to the extent required by the 1940 Act, (iii) the
Fund will amend the registration statement for its shares under the 1933 Act and
itself under the 1940 Act from time to time as required in order to effect the
continuous offering of its shares, (iv) the Fund does and will comply in all
9
material respects with the requirements of the 1940 Act and the rules
thereunder, (v) the Fund's 1933 Act registration statement, together with any
amendments thereto, will at all times comply in all material respects with the
requirements of the 1933 Act and rules thereunder, and (vi) the Fund Prospectus
will at all times comply in all material respects with the requirements of the
1933 Act and the rules thereunder.
(c) The Fund will register and qualify its shares for sale in
accordance with the laws of any state or other jurisdiction only if and to the
extent reasonably deemed advisable by the Fund, Insurer or any other life
insurance company utilizing the Fund.
(d) Distributor and Contracts Distributor each represents and
warrants that it is registered as a broker-dealer with the SEC under the
Securities Exchange Act of 1934, as amended, and is a member in good standing of
the National Association of Securities Dealers Inc. (the "NASD").
4.4 NOTICE OF CERTAIN PROCEEDINGS AND OTHER CIRCUMSTANCES.
(a) Distributor or the Fund shall immediately notify Insurer of
(i) the issuance by any court or regulatory body of any stop order, cease and
desist order, or other similar order with respect to the Fund's registration
statement under the 1933 Act or the Fund Prospectus, (ii) any request by the SEC
for any amendment to such registration statement or Fund Prospectus, (iii) the
initiation of any proceedings for that purpose or for any other purpose relating
to the registration or offering of the Fund's shares, or (iv) any other action
or circumstances that may prevent the lawful offer or sale of Fund shares in any
state or jurisdiction, including, without limitation, any circumstances in which
(x) the Fund's shares are not registered and, in all material respects, issued
and sold in accordance with applicable state and federal law or (y) such law
precludes the use of such shares as an underlying investment medium of the
Contracts issued or to be issued by Insurer. Distributor and the Fund will make
every reasonable effort to prevent
10
the issuance of any such stop order, cease and desist order or similar order
and, if any such order is issued, to obtain the lifting thereof at the earliest
possible time.
(b) Insurer and Contracts Distributor shall immediately notify the
Fund of (i) the issuance by any court or regulatory body of any stop order,
cease and desist order or similar order with respect to the Separate Account's
registration statement under the 1933 Act relating to the Contracts or the
Separate Account Prospectus, (ii) any request by the SEC for any amendment to
such registration statement or Separate Account Prospectus, (iii) the initiation
of any proceedings for that purpose or for any other purpose relating to the
registration or offering of the Separate Account interests pursuant to the
Contracts, or (iv) any other action or circumstances that may prevent the lawful
offer or sale of said interests in any state or jurisdiction, including, without
limitation, any circumstances in which said interests are not registered and, in
all material respects, issued and sold in accordance with applicable state and
federal law. Insurer and Contracts Distributor will make every reasonable effort
to prevent the issuance of any such stop order, cease and desist order or
similar order and, if any such order is issued, to obtain the lifting thereof at
the earliest possible time.
4.5 INSURER TO PROVIDE DOCUMENTS.
Upon request, Insurer will provide the Fund and the Distributor one
complete copy of SEC registration statements, Separate Account Prospectuses,
reports, any preliminary and final voting instruction solicitation material,
applications for exemptions, requests for no-action letters, and amendments to
any of the above, that relate to the Separate Account or the Contracts,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
11
4.6 FUND TO PROVIDE DOCUMENTS.
Upon request, the Fund will provide to Insurer one complete copy of SEC
registration statements, Fund Prospectuses, reports, any preliminary and final
proxy material, applications for exemptions, requests for no-action letters, and
all amendments to any of the above, that relate to the Fund or its shares,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
SECTION 5. MIXED AND SHARED FUNDING
5.1 GENERAL.
The Fund has obtained an order exempting it from certain provisions of
the 1940 Act and rules thereunder so that the Fund is available for investment
by certain other entities, including, without limitation, separate accounts
funding variable life insurance policies and separate accounts of insurance
companies unaffiliated with Insurer ("Mixed and Shared Funding Order"). The
Parties recognize that the SEC has imposed terms and conditions for such orders
that are substantially identical to many of the provisions of this Section 5.
5.2 DISINTERESTED DIRECTORS.
The Fund agrees that its Board of Directors shall at all times consist
of directors a majority of whom (the "Disinterested Directors") are not
interested persons of Adviser or Distributor within the meaning of Section
2(a)(19) of the 1940 Act.
5.3 MONITORING FOR MATERIAL IRRECONCILABLE CONFLICTS.
The Fund agrees that its Board of Directors will monitor for the
existence of any material irreconcilable conflict between the interests of the
participants in all separate accounts of life insurance companies utilizing the
Fund, including the Separate Account. Insurer agrees to inform the Board of
12
Directors of the Fund of the existence of or any potential for any such material
irreconcilable conflict of which it is aware. The concept of a "material
irreconcilable conflict" is not defined by the 1940 Act or the rules thereunder,
but the Parties recognize that such a conflict may arise for a variety of
reasons, including, without limitation:
(a) an action by any state insurance or other regulatory
authority;
(b) a change in applicable federal or state insurance, tax or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretative letter, or any similar action by insurance, tax or
securities regulatory authorities;
(c) an administrative or judicial decision in any relevant
proceeding;
(d) the manner in which the investments of any Portfolio are
being managed;
(e) a difference in voting instructions given by variable annuity
contract and variable life insurance contract participants or by participants of
different life insurance companies utilizing the Fund; or
(f) a decision by a life insurance company utilizing the Fund to
disregard the voting instructions of participants.
Insurer will assist the Board of Directors in carrying out its
responsibilities by providing the Board of Directors with all information
reasonably necessary for the Board of Directors to consider any issue raised,
including information as to a decision by Insurer to disregard voting
instructions of Participants.
13
5.4 CONFLICT REMEDIES.
(a) It is agreed that if it is determined by a majority of the
members of the Board of Directors or a majority of the Disinterested Directors
that a material irreconcilable conflict exists, Insurer and the other life
insurance companies utilizing the Fund will, at their own expense and to the
extent reasonably practicable (as determined by a majority of the Disinterested
Directors), take whatever steps are necessary to remedy or eliminate the
material irreconcilable conflict, which steps may include, but are not limited
to:
(i) withdrawing the assets allocable to some or all of the
separate accounts from the Fund or any Portfolio and
reinvesting such assets in a different investment medium,
including another Portfolio of the Fund, or submitting the
question whether such segregation should be implemented to a
vote of all affected participants and, as appropriate,
segregating the assets of any particular group (e.g., annuity
contract owners or participants, life insurance contract
owners or all contract owners and participants of one or more
life insurance companies utilizing the Fund) that votes in
favor of such segregation, or offering to the affected
contract owners or participants the option of making such a
change; and
(ii) establishing a new registered investment company of the type
defined as a "Management Company" in Section 4(3) of the
1940 Act or a new separate account that is operated as a
Management Company.
(b) If the material irreconcilable conflict arises because of
Insurer's decision to disregard Participant voting instructions and that
decision represents a minority position or would preclude a majority vote,
Insurer may be required, at the Fund's election, to withdraw the Separate
Account's
14
investment in the Fund. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal must take place within six months after the Fund
gives notice to Insurer that this provision is being implemented, and until such
withdrawal Distributor and the Fund shall continue to accept and implement
orders by Insurer for the purchase and redemption of shares of the Fund.
(c) If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to Insurer conflicts
with the majority of other state regulators, then Insurer will withdraw the
Separate Account's investment in the Fund within six months after the Fund's
Board of Directors informs Insurer that it has determined that such decision has
created a material irreconcilable conflict, and until such withdrawal
Distributor and Fund shall continue to accept and implement orders by Insurer
for the purchase and redemption of shares of the Fund.
(d) Insurer agrees that any remedial action taken by it in
resolving any material irreconcilable conflict will be carried out at its
expense and with a view only to the interests of Participants.
(e) For purposes hereof, a majority of the Disinterested Directors
will determine whether or not any proposed action adequately remedies any
material irreconcilable conflict. In no event, however, will the Fund or
Distributor be required to establish a new funding medium for any Contracts.
Insurer will not be required by the terms hereof to establish a new funding
medium for any Contracts if an offer to do so has been declined by vote of a
majority of Participants materially adversely affected by the material
irreconcilable conflict.
15
5.5 NOTICE TO INSURER.
The Fund will promptly make known in writing to Insurer the Board of
Directors' determination of the existence of a material irreconcilable conflict,
a description of the facts that give rise to such conflict and the implications
of such conflict.
5.6 INFORMATION REQUESTED BY BOARD OF DIRECTORS.
Insurer and the Fund will at least annually submit to the Board of
Directors of the Fund such reports, materials or data as the Board of Directors
may reasonably request so that the Board of Directors may fully carry out the
obligations imposed upon it by the provisions hereof, and said reports,
materials and data will be submitted at any reasonable time deemed appropriate
by the Board of Directors. All reports received by the Board of Directors of
potential or existing conflicts, and all Board of Directors actions with regard
to determining the existence of a conflict, notifying life insurance companies
utilizing the Fund of a conflict, and determining whether any proposed action
adequately remedies a conflict, will be properly recorded in the minutes of the
Board of Directors or other appropriate records, and such minutes or other
records will be made available to the SEC upon request.
5.7 COMPLIANCE WITH SEC RULES.
If, at any time during which the Fund is serving an investment medium
for variable life insurance policies, 1940 Act Rules 6e-3(T) or, if applicable,
6e-2 are amended or Rule 6e-3 is adopted to provide exemptive relief with
respect to mixed and shared funding, the Parties agree that they will comply
with the terms and conditions thereof and that the terms of this Section 5 shall
be deemed modified if and only to the extent required in order also to comply
with the terms and conditions of such exemptive relief that is afforded by any
of said rules that are applicable.
16
SECTION 6. TERMINATION
6.1 EVENTS OF TERMINATION.
Subject to Section 6.4 below, this Agreement will terminate as to a
Portfolio:
(a) at the option of Insurer or Distributor upon at least six
months advance written notice to the other Parties, or
(b) at the option of the Fund upon (i) at least sixty days advance
written notice to the other parties, and (ii) approval by (x) a majority of the
disinterested Directors upon a finding that a continuation of this Contract is
contrary to the best interests of the Fund, or (y) a majority vote of the shares
of the affected Portfolio in the corresponding Division of the Separate Account
(pursuant to the procedures set forth in Section 11 of this Agreement for voting
Trust shares in accordance with Participant instructions).
(c) at the option of the Fund upon institution of formal
proceedings against Insurer or Contracts Distributor by the NASD, the SEC, any
state insurance regulator or any other regulatory body regarding Insurer's
obligations under this Agreement or related to the sale of the Contracts, the
operation of the Separate Account, or the purchase of the Fund shares, if, in
each case, the Fund reasonably determines that such proceedings, or the facts on
which such proceedings would be based, have a material likelihood of imposing
material adverse consequences on the Portfolio to be terminated; or
(d) at the option of Insurer upon institution of formal
proceedings against the Fund, Adviser, or Distributor by the NASD, the SEC, or
any state insurance regulator or any other regulatory body regarding the Fund's,
Adviser's or Distributor's obligations under this Agreement or related to the
operation or management of the Fund or the purchase of Fund shares, if, in each
case, Insurer reasonably determines that such proceedings, or the facts on which
such proceedings would be based, have a material
17
likelihood of imposing material adverse consequences on Insurer, Contracts
Distributor or the Division corresponding to the Portfolio to be terminated; or
(e) at the option of any Party in the event that (i) the
Portfolio's shares are not registered and, in all material respects, issued and
sold in accordance with any applicable state and federal law or (ii) such law
precludes the use of such shares as an underlying investment medium of the
Contracts issued or to be issued by Insurer; or
(f) upon termination of the corresponding Division's investment in
the Portfolio pursuant to Section 5 hereof; or
(g) at the option of Insurer if the Portfolio ceases to qualify as
a RIC under Subchapter M of the Code or under successor or similar provisions;
or
(h) at the option of Insurer if the Portfolio fails to comply with
Section 817(h) of the Code or with successor or similar provisions; or
(i) at the option of Insurer if Insurer reasonably believes that
any change in a Fund's investment adviser or investment practices will
materially increase the risks incurred by Insurer.
6.2 FUNDS TO REMAIN AVAILABLE.
Except (i) as necessary to implement Participant-initiated
transactions, (ii) as required by state insurance laws or regulations, (iii) as
required pursuant to Section 5 of this Agreement, or (iv) with respect to any
Portfolio as to which this Agreement has terminated, Insurer shall not (x)
redeem Fund shares attributable to the Contracts, or (y) prevent Participants
from allocating payments to or transferring
18
amounts from a Portfolio that was otherwise available under the Contracts,
until, in either case, 60 calendar days after Insurer shall have notified the
Fund or Distributor of its intention to do so.
6.3 SURVIVAL OF WARRANTIES AND INDEMNIFICATIONS.
All warranties and indemnifications will survive the termination of
this Agreement.
6.4 CONTINUANCE OF AGREEMENT FOR CERTAIN PURPOSES.
Notwithstanding any termination of this Agreement, the Distributor
shall continue, at the option of the Insurer, to make available shares of the
Portfolios pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement (the
"Existing Contracts"), except as otherwise provided under Section 5 of this
Agreement. Specifically, and without limitation, the Distributor shall, at the
option of the Insurer, facilitate the sale and purchase of shares of the
Portfolios as necessary in order to process premium payments, surrenders and
other withdrawals, and transfers or reallocations of values under Existing
Contracts.
SECTION 7. PARTIES TO COOPERATE RESPECTING TERMINATION
The other Parties hereto agree to cooperate with and give reasonable
assistance to Insurer in taking all necessary and appropriate steps for the
purpose of ensuring that the Separate Account owns no shares of a Portfolio
after the Final Termination Date with respect thereto.
SECTION 8. ASSIGNMENT
This Agreement may not be assigned by any Party, except with the
written consent of each other Party.
19
SECTION 9. CLASS B DISTRIBUTION PAYMENTS
From time to time during the term of this Agreement the Distributor may
make payments to the Contracts Distributor pursuant to a distribution plan
adopted by the Fund with respect to the Class B shares of the Portfolios
pursuant to Rule 12b-1 under the 1940 Act (the "Rule 12b-1 Plan) in
consideration of the Contracts Distributor's furnishing distribution services
relating to the Class B shares of the Portfolios and providing administrative,
accounting and other services, including personal service and/or the maintenance
of Participant accounts, with respect to such shares. The Distributor has no
obligation to make any such payments, and the Contracts Distributor waives any
such payment, until the Distributor receives monies therefor from the Fund. Any
such payments made pursuant to this Section 9 shall be subject to the following
terms and conditions:
(a) Any such payments shall be in such amounts as the Distributor
may from time to time advise the Contracts Distributor in writing but in any
event not in excess of the amounts permitted by the Rule 12b-1 Plan. Such
payments may include a service fee in the amount of .25 of 1% per annum of the
average daily net assets of the Fund attributable to the Class B shares of a
Portfolio held by clients of the Contracts Distributor. Any such service fee
shall be paid solely for personal service and/or the maintenance of Participant
accounts.
(b) The provisions of this Section 9 relate to a plan adopted by
the Fund pursuant to Rule 12b-1. In accordance with Rule 12b-1, any person
authorized to direct the disposition of monies paid or payable by the Fund
pursuant to this Section 9 shall provide the Fund's Board of Directors, and the
Directors shall review, at least quarterly, a written report of the amounts so
expended and the purposes for which such expenditures were made.
(c) The provisions of this Section 9 shall remain in effect for
not more than a year and thereafter for successive annual periods only so long
as such continuance is specifically approved at
20
least annually in conformity with Rule 12b-1 and the 1940 Act. The provisions of
this Section 9 shall automatically terminate in the event of the assignment (as
defined by the 0000 Xxx) of this Agreement, in the event the Rule 12b-1 Plan
terminates or is not continued or in the event this Agreement terminates or
ceases to remain in effect. In addition, the provisions of this Section 9 may be
terminated at any time, without penalty, by either the Distributor or the
Contracts Distributor with respect to any Portfolio on not more than 60 days'
nor less than 30 days' written notice delivered or mailed by registered mail,
postage prepaid, to the other party.
SECTION 10. NOTICES
Notices and communications required or permitted by Section 2 hereof
will be given by means mutually acceptable to the Parties concerned. Each other
notice or communication required or permitted by this Agreement will be given to
the following persons at the following addresses and facsimile numbers, or such
other persons, addresses or facsimile numbers as the Party receiving such
notices or communications may subsequently direct in writing:
If to Insurer
First Allmerica Financial Life Insurance
Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, President
If to Contracts Distributor
Allmerica Investments, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, President
21
If to Distributor
Alliance Fund Distributors, Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx XX 00000
Attn.: Xxxxxx X. Xxxxxx
FAX: (000) 000-0000
If to Advisor or the Fund
Alliance Capital Management L.P.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx XX 00000
Attn: Xxxxxx X. Xxxxxx
FAX: (000) 000-0000
SECTION 11. VOTING PROCEDURES
Subject to the cost allocation procedures set forth in Section 3
hereof, Insurer will distribute all proxy material furnished by the Fund to
Participants and will vote Fund shares in accordance with instructions received
from Participants. Insurer will vote Fund shares that are (a) not attributable
to Participants or (b) attributable to Participants, but for which no
instructions have been received, in the same proportion as Fund shares for which
said instructions have been received from Participants. Insurer agrees that it
will disregard Participant voting instructions only to the extent it would be
permitted to do so pursuant to Rule 6e-3 (T)(b)(15)(iii) under the 1940 Act if
the Contracts were variable life insurance policies subject to that rule. Other
participating life insurance companies utilizing the Fund will be responsible
for calculating voting privileges in a manner consistent with that of Insurer,
as prescribed by this Section 11.
22
SECTION 12. FOREIGN TAX CREDITS
The Adviser agrees to consult in advance with Insurer concerning any
decision to elect or not to elect pursuant to Section 853 of the Code to pass
through the benefit of any foreign tax credits to the Fund's shareholders.
SECTION 13. INDEMNIFICATION
13.1 INDEMNIFICATION OF FUND, DISTRIBUTOR AND ADVISER BY INSURER.
(a) Except to the extent provided in Sections 13.1(b) and 13.1(c),
below, Insurer agrees to indemnify and hold harmless the Fund, Distributor and
Adviser, each of their directors and officers, and each person, if any, who
controls the Fund, Distributor or Adviser within the meaning of Section 15 of
the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 13. 1) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of Insurer) or
actions in respect thereof (including, to the extent reasonable, 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 actions are related to the sale, acquisition, or holding
of the Fund's shares and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
Separate Account's 1933 Act registration statement, the
Separate Account Prospectus, the Contracts or, to the extent
prepared by Insurer or Contracts Distributor, sales literature
or advertising 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
23
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 Insurer or Contracts Distributor by or on behalf of the
Fund, Distributor or Adviser for use in the Separate
Account's 1933 Act registration statement, the Separate
Account Prospectus, the Contracts, or sales literature or
advertising (or any amendment or supplement to any of the
foregoing); or
(ii) arise out of or as a result of any other statements or
representations (other than statements or representations
contained in the Fund's 1933 Act registration statement, Fund
Prospectus, sales literature or advertising of the Fund, or
any amendment or supplement to any of the foregoing, not
supplied for use therein by or on behalf of Insurer or
Contracts Distributor) or the negligent, illegal or fraudulent
conduct of Insurer or Contracts Distributor or persons under
their control (including, without limitation, their employees
and "Associated Persons," as that term is defined in paragraph
(m) of Article I of the NASD's By-Laws), in connection with
the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Fund's
1933 Act registration statement, Fund Prospectus, sales
literature or advertising of the Fund, or any amendment or
supplement to any of the foregoing, 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 and in conformity with information
24
furnished to the Fund, Adviser or Distributor by or on
behalf of Insurer or Contracts Distributor for use in the
Fund's 1933 Act registration statement, Fund Prospectus,
sales literature or advertising of the Fund, or any
amendment or supplement to any of the foregoing; or
(iv) arise as a result of any failure by Insurer or Contracts
Distributor to perform the obligations, provide the services
and furnish the materials required of them under the terms
of this Agreement.
(b) Insurer shall not be liable under this Section 13.1 with
respect to any losses, claims, damages, liabilities or actions to which an
Indemnified Party would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance by that Indemnified Party of
its duties or by reason of that Indemnified Party's reckless disregard of
obligations or duties under this Agreement or to Distributor or to the Fund.
(c) Insurer shall not be liable under this Section 13.1 with
respect to any action against an Indemnified Party unless the Fund, Distributor
or Adviser shall have notified Insurer in writing within a reasonable time after
the summons or other first legal process giving information of the nature of the
action 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 Insurer of any such action shall not relieve
Insurer from any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this Section 13. 1. In
case any such action is brought against an Indemnified Party, Insurer shall be
entitled to participate, at its own expense, in the defense of such action.
Insurer also shall be entitled to assume the defense thereof, with counsel
approved by the Indemnified Party named in the action, which approval shall not
be unreasonably withheld. After notice
25
from Insurer to such Indemnified Party of Insurer's election to assume the
defense thereof, the Indemnified Party will cooperate fully with Insurer and
shall bear the fees and expenses of any additional counsel retained by it, and
Insurer will not be liable to such Indemnified Party under this Agreement for
any legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof, other than reasonable
costs of investigation.
13.2 INDEMNIFICATION OF INSURER AND CONTRACTS DISTRIBUTOR BY
ADVISER.
(a) Except to the extent provided in Sections 13.2(d) and 13.2(e),
below, Adviser agrees to indemnify and hold harmless Insurer and Contracts
Distributor, each of their directors and officers, and each person, if any, who
controls Insurer or Contracts Distributor within the meaning of Section 15 of
the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 13.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of Adviser) or
actions in respect thereof (including, to the extent reasonable, legal and other
expenses) to which the Indemnified Parties may become subject under any statute,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or actions are related to the sale, acquisition, or holding of the Fund's shares
and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Fund's
1933 Act registration statement, Fund Prospectus, sales
literature or advertising of the Fund or, to the extent not
prepared by Insurer or Contracts Distributor, sales literature
or advertising 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
26
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 Distributor,
Adviser or the Fund by or on behalf of Insurer or Contracts
Distributor for use in the Fund's 1933 Act registration
statement, Fund Prospectus, or in sales literature or
advertising (or any amendment or supplement to any of the
foregoing); or
(ii) arise out of or as a result of any other statements or
representations (other than statements or representations
contained in the Separate Account's 1933 Act registration
statement, Separate Account Prospectus, sales literature or
advertising for the Contracts, or any amendment or supplement
to any of the foregoing, not supplied for use therein by or on
behalf of Distributor, Adviser, or the Fund) or the negligent,
illegal or fraudulent conduct of the Fund, Distributor,
Adviser or persons under their control (including, without
limitation, their employees and Associated Persons), in
connection with the sale or distribution of the Contracts or
Fund shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the
Separate Account's 1933 Act registration statement, Separate
Account Prospectus, sales literature or advertising covering
the Contracts, or any amendment or supplement to any of the
foregoing, 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 and in
conformity with information furnished to Insurer or Contracts
Distributor by or on behalf of the Fund, Distributor or
Adviser for use in the Separate Account's 1933
27
Act registration statement, Separate Account Prospectus,
sales literature or advertising covering the Contracts, or
any amendment or supplement to any of the foregoing; or
(iv) arise as a result of any failure by the Fund, Adviser or
Distributor to perform the obligations, provide the services
and furnish the materials required of them under the terms of
this Agreement;
(b) Except to the extent provided in Sections 13.2(d) and 13.2(e)
hereof, Adviser agrees to indemnify and hold harmless the Indemnified Parties
from and against any and all losses, claims, damages, liabilities (including
amounts paid in settlement thereof with, except as set forth in Section 13.2(c)
below, the written consent of Adviser) or actions in respect thereof (including,
to the extent reasonable, legal and other expenses) to which the Indemnified
Parties may become subject directly or indirectly under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
actions directly or indirectly result from or arise out of the failure of any
Portfolio to operate as a regulated investment company in compliance with (i)
Subchapter M of the Code and regulations thereunder and (ii) Section 817(h) of
the Code and regulations thereunder (except to the extent that such failure is
caused by Insurer), including, without limitation, any income taxes and related
penalties, rescission charges, liability under state law to Contract owners or
Participants asserting liability against Insurer or Contracts Distributor
pursuant to the Contracts, the costs of any ruling and closing agreement or
other settlement with the Internal Revenue Service, and the cost of any
substitution by Insurer of shares of another investment company or portfolio for
those of any adversely affected Portfolio as a funding medium for the Separate
Account that Insurer deems necessary or appropriate as a result of the
noncompliance.
28
(c) The written consent of Adviser referred to in Section 13.2(b)
above shall not be required with respect to amounts paid in connection with any
ruling and closing agreement or other settlement with the Internal Revenue
Service.
(d) Adviser shall not be liable under this Section 13.2 with
respect to any losses, claims; damages, liabilities or actions to which an
Indemnified Party would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance by that Indemnified Party of
its duties or by reason of such Indemnified Party's reckless disregard of its
obligations and duties under this Agreement or to Insurer, Contracts Distributor
or the Separate Account.
(e) Adviser shall not be liable under this Section 13.2 with
respect to any action against an Indemnified Party unless Insurer or Contracts
Distributor shall have notified Adviser in writing within a reasonable time
after the summons or other first legal process giving information of the nature
of the action 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 Adviser of any such action shall not relieve
Adviser from any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this Section 13.2. In
case any such action is brought against an Indemnified Party, Adviser will be
entitled to participate, at its own expense, in the defense of such action.
Adviser also shall be entitled to assume the defense thereof (which shall
include, without limitation, the conduct of any ruling request and closing
agreement or other settlement proceeding with the Internal Revenue Service),
with counsel approved by the Indemnified Party named in the action, which
approval shall not be unreasonably withheld. After notice from Adviser to such
Indemnified Party of Adviser's election to assume the defense thereof, the
Indemnified Party will cooperate fully with Adviser and shall bear the fees and
expenses of any additional counsel retained by it, and Adviser will not
29
be liable to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof, other than reasonable costs of
investigation.
13.3 EFFECT OF NOTICE.
Any notice given by the indemnifying Party to an Indemnified Party
referred to in Section 13.1(c) or 13.2(e) above of participation in or control
of any action by the indemnifying Party will in no event be deemed to be an
admission by the indemnifying Party of liability, culpability or responsibility,
and the indemnifying Party will remain free to contest liability with respect to
the claim among the Parties or otherwise.
SECTION 13. APPLICABLE LAW
This Agreement will be construed and the provisions hereof interpreted
under and in accordance with New York law, without regard for that state's
principles of conflict of laws.
SECTION 14. EXECUTION IN COUNTERPARTS
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the same
instrument.
SECTION 15. SEVERABILITY
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will not
be affected thereby.
30
SECTION 16. RIGHTS CUMULATIVE
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, that the Parties are entitled to under federal and state
laws.
SECTION 17. RESTRICTIONS ON SALES OF FUND SHARES
Insurer agrees that the Fund will be permitted (subject to the other
terms of this
Agreement) to make its shares available to separate accounts of other
life insurance companies.
SECTION 18. HEADINGS
The Table of Contents and headings used in this Agreement are for
purposes of reference only and shall not limit or define the meaning of the
provisions of this Agreement.
31
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers signing below.
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
By:
Name:
Title:
ALLMERICA INVESTMENTS, INC.
By:
Name:
Title:
ALLIANCE CAPITAL MANAGEMENT LP
By: Alliance Capital Management Corporation,
its General Partner
By:
Name: Xxxxxx X. Xxxxxx, Xx.
Title: VP and Assistant General Counsel
ALLIANCE FUND DISTRIBUTORS, INC.
By:
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
32
SCHEDULE A
--------------------------------------------------------------------------------------------------------------------
PRODUCT NAME 1933 ACT NUMBER 1940 ACT NUMBER PORTFOLIOS
--------------------------------------------------------------------------------------------------------------------
Allmerica Accumulator 333-87105 811-8114 Alliance Growth Portfolio
Alliance Growth & Income
Portfolio
Alliance Premier Growth
Portfolio
Alliance Technology
Portfolio
--------------------------------------------------------------------------------------------------------------------
Annuity Scout 33-38274 811-8114 Alliance Growth Portfolio
--------------------------------------------------------------------------------------------------------------------
Delaware Medallion (I, II, 33-71054 811-8114 Alliance Growth Portfolio
III)
Alliance Premier Growth
Portfolio
Alliance Growth and
Income Portfolio
Alliance Technology
Portfolio
--------------------------------------------------------------------------------------------------------------------
Executive Annuity Plus 33-71052 811-8114 Alliance Growth Portfolio
--------------------------------------------------------------------------------------------------------------------
Fund Quest 333-90545 811-8114 Alliance Growth Portfolio
--------------------------------------------------------------------------------------------------------------------
Pioneer Vision (I, II) 33-86664 811-8872 Alliance Premier Growth
Portfolio
Alliance Technology
Portfolio
--------------------------------------------------------------------------------------------------------------------
Pioneer C-Vision 333-64833 811-8872 Alliance Premier Growth
Portfolio
Alliance Growth Portfolio
Alliance Growth & Income
Portfolio
--------------------------------------------------------------------------------------------------------------------
33
--------------------------------------------------------------------------------------------------------------------
Alliance Technology
Portfolio
--------------------------------------------------------------------------------------------------------------------
Pioneer No-Load 333-90535 811-8848 Alliance Premier Growth
Portfolio
Alliance Technology
Portfolio
--------------------------------------------------------------------------------------------------------------------
34
