DELAWARE
- Amendment to Fund Participation Agreement between Delaware VIP Trust dated
December 31, 2007 (Fund/SERV)
AMENDMENT TO FUND PARTICIPATION AGREEMENT
BETWEEN
DELAWARE VIP TRUST
DELAWARE DISTRIBUTORS, L.P.
COMMONWEALTH ANNUITY AND LIFE INSURANCE COMPANY
AND
FIRST ALLMERICA FINANCIAL LIFE INSURANCE COMPANY
This Amendment is made this 31st day of December 2007, by and between
Delaware VIP Trust (the "Trust"), Delaware Distributors, L.P. (the
"Distributor"), Commonwealth Annuity and Life Insurance Company ("Commonwealth
Annuity") and First Allmerica Financial Life Insurance Company ("FAFLIC").
WITNESSETH:
WHEREAS, the Trust (formerly known as Delaware Group Premium Fund, Inc.),
the Distributor (formerly known as Delaware Distributors, Inc.), Commonwealth
Annuity (formerly known as SMA Life Assurance Company and as Allmerica Financial
Life Insurance and Annuity Company) and FAFLIC (formerly known as State Mutual
Life Assurance Company of America) entered into a Fund Participation Agreement
dated December 23, 1991 (the "Agreement"); and
WHEREAS, the parties to the Agreement have determined to amend said
Agreement to insert a new section to the Agreement relating to processing orders
via the National Securities Clearing Corporation ("NSCC"); and;
WHEREAS, the parties desire to memorialize the amendment to the
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set
forth, and intending to be legally bound, the Agreement shall be amended as
follows:
1. A new Paragraph 1.10 shall be added to Article I as follows:
"1.10 The Trust, the Distributor, Commonwealth Annuity and FAFLIC intend
that communications, processing and settlement of purchase and redemption
transactions for Shares (collectively, "Share transactions") shall occur
via the Fund/SERV and Networking systems of the National Securities
Clearing Corporation (hereinafter, "NSCC"). Distributor represents and
warrants that it or one of its affiliates: (a) has entered into an
agreement or agreements with NSCC to process transactions via Fund/SERV and
Networking, (b) has met and will continue to meet all of the requirements
to participate in Fund/SERV and Networking, and (c) intends to remain at
all times in compliance with the then-current rules and procedures of NSCC,
all to the extent necessary or appropriate to facilitate such
communications, processing, and settlement of Share transactions.
Commonwealth Annuity and FAFLIC represent that one or more of their
affiliates or designee(s) (a) has entered into an agreement or agreements
with NSCC to process transactions via Fund/SERV and Networking and (b) has
met and will continue to meet all of the requirements to participate in
Fund/SERV and
Networking, and (c) intends to remain at all times in compliance with the
then-current rules and procedures of NSCC, all to the extent necessary or
appropriate to facilitate such communications, processing, and settlement
of Share transactions. Distributor or Trust agrees to provide Commonwealth
Annuity and FAFLIC or such other entity as Commonwealth Annuity and/o
FAFLIC directs with account positions and activity data relating to Share
transactions via Networking. Commonwealth Annuity and FAFLIC shall pay for
Shares in the manner and within the time as required by the Fund/SERV and
Networking rules.
For purposes of this Agreement, "Fund/SERV" shall mean NSCC's system for
automated, centralized processing of mutual fund purchase and redemption
orders, settlement, and account registration. "Networking" shall mean
NSCC's (Level Zero) system that allows mutual funds and life insurance
companies to exchange account level information electronically. In all
cases, processing and settlement of Share transactions shall be done in a
manner consistent with applicable law.
In the event that any party is prohibited or unable to communicate, process
or settle Share transactions via Fund/SERV or Networking, such party shall
provide prompt notice to the other parties. After all parties have been
notified, the original provisions contained in the Agreement regarding
process or settlement of Share transactions shall apply.
2. Article XII of the Agreement shall be deleted in its entirety and
replaced with the following language:
ARTICLE XII: NOTICE.
Any notice or amendment required or permitted hereunder shall be in writing
and shall be given by personal service, mail, or facsimile to the other
parties at the address set forth below (or such other address as the
parties may specify by written notice). Notice shall be effective upon
receipt if by mail, on the date of personal delivery (by private messenger,
courier service or otherwise), or upon receipt of facsimile, whichever
occurs first at:
If to the Trust: Delaware VIP Trust
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If to the Distributor: Delaware Distributors, L.P.
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Senior Vice President/Operations
Fax: 000-000-0000
With a copy to: General Counsel
Delaware Investments
One Commerce Square
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX 00000
If to Commonwealth Annuity
and Life Insurance Company:
Xxxxxxx X. Xxxxxxx
President and CEO
Commonwealth Annuity and Life Insurance
Company
000 Xxxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxxx, XX 00000
Fax: 000-000-0000
With a copy to: Office of the General Counsel
First Allmerica Financial Life Insurance Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Fax: (000)-000-0000
3. Except as provided herein, the terms and conditions contained in the
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Amendment as of the date set forth above.
COMMONWEALTH ANNUITY AND DELAWARE VIP TRUST
LIFE INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxx
----------------------------- -----------------------------------
NAME: XXXXXXX X. XXXXXXX NAME: XXXXXXX X. XXXXX
TITLE: PRESIDENT AND CEO TITLE: PRESIDENT
FIRST ALLMERICA FINANCIAL DELAWARE DISTRIBUTORS, L.P.
LIFE INSURANCE COMPANY
BY: COMMONWEALTH ANNUITY AND LIFE
INSURANCE COMPANY (POA)
By: /s/ Xxxxxxx X. Xxxxxxx By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------- -----------------------------------
NAME: XXXXXXX X. XXXXXXX NAME: XXXXXXX X. XXXXXXXX
TITLE: PRESIDENT AND CEO TITLE: SENIOR VICE PRESIDENT/OPERATIONS
