EX-99.B8(A)(iii)
PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT (the "Agreement") made by and between XXXXXXX
VARIABLE LIFE INVESTMENT FUND (the "Fund"), a Massachusetts business trust
created under a Declaration of Trust dated March 15, 1985, as amended, with a
principal place of business in Boston, Massachusetts, and United Investors Life
Insurance Company, a Missouri corporation (the "Company"), with a principal
place of business in Birmingham, Alabama, on behalf of Retire MAP 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 (each, an "Account").
WHEREAS, the Fund acts as the investment vehicle for the separate accounts
established for variable life insurance policies and variable annuity contracts
(collectively referred to herein as "Variable Insurance Products") to be offered
by insurance companies which have entered into participation agreements
substantially identical to this Agreement ("Participating Insurance Companies")
and their affiliated insurance companies; and
WHEREAS, the beneficial interest in the Fund is divided into several series
of shares of beneficial interest without par value ("Shares"), and additional
series of Shares may be established, each designated a "Portfolio" and
representing the interest in a particular managed portfolio of securities; and
WHEREAS, each Portfolio of the Fund, except the Money Market Portfolio, is
divided into two classes of Shares, and additional classes of Shares may be
established; and
WHEREAS, the Parties desire to evidence 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. Duty of Fund to Sell.
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The Fund shall make its Shares available for purchase at the applicable net
asset value per Share by Participating Insurance Companies and their affiliates
and separate accounts on those days on which the Fund calculates its net asset
value pursuant to rules of the Securities and Exchange
Commission; provided, however, that the Trustees of the Fund may refuse to sell
Shares of any Portfolio to any person, or suspend or terminate the offering of
Shares of any Portfolio, if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Trustees,
necessary in the best interest of the shareholders of any Portfolio.
2. Fund Materials.
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The Fund, at its expense, shall provide the Company or its designee with
camera-ready copy or computer diskette versions of all prospectuses, statements
of additional information, annual and semi-annual reports and proxy materials
(collectively, "Fund Materials") to be printed and distributed by the Company or
its broker/dealer to the Company's existing or prospective contract owners, as
appropriate. The Company agrees to bear the cost of printing and distributing
such Fund Materials.
3. Requirement to Execute Participation Agreement; Requests.
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Each Participating Insurance Company shall, prior to purchasing Shares in
the Fund, execute and deliver a participation agreement in a form substantially
identical to this Agreement.
The Fund shall make available, upon written request from the Participating
Insurance Company given in accordance with Paragraph 9, to each Participating
Insurance Company which has executed an Agreement and which Agreement has not
been terminated pursuant to Paragraph 7 (i) a list of all other Participating
Insurance Companies, and (ii) a copy of the Agreement as executed by any other
Participating Insurance Company.
The Fund shall also make available upon request to each Participating
Insurance Company which has executed an Agreement and which Agreement has not
been terminated pursuant to Paragraph 7, the net asset value of any Portfolio of
the Fund as of any date upon which the Fund calculates the net asset value of
its Portfolios for the purpose of purchase and redemption of Shares.
4. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the Fund and each of
its Trustees and officers and each person, if any, who controls the Fund within
the meaning of Section 15 of the Securities Act of 1933 (the "Act") against any
and all losses, claims, damages, liabilities or litigation (including legal and
other expenses), arising out of the acquisition of any Shares by any person, to
which the Fund or such Trustees, officers or controlling person may become
subject under
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the Act, under any other statute, at common law or otherwise, which (i) may be
based upon any wrongful act by the Company, any of its employees 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 be stated therein or necessary to make the statements
therein not misleading if such a statement or omission was made in reliance upon
information furnished to the Fund by the Company, or (iii) may be based on any
untrue statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering insurance products sold by the
Company or any insurance company which is an affiliate thereof, or any
amendments or supplement thereto, or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statement or statements therein not misleading, unless such statement or
omission was made in reliance upon information furnished to the Company or such
affiliate by or on behalf of the Fund; provided, however, that in no case (i) is
the Company's indemnity in favor of a Trustee or officer or any other person
deemed to protect such Trustee 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 this Paragraph 4 with respect to any claim made against the Fund or
any person indemnified unless the Fund 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 the Fund or upon such person
(or after the Fund 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 liability which it has to the Fund or any
person against whom such action is brought otherwise than on account of its
indemnity agreement contained in this Paragraph 4. The Company shall be
entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the
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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 the Fund, to its officers and Trustees, 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,
the Fund, such officers and Trustees 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 the Fund, such officers and
Trustees 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 the Fund pursuant to Paragraph 9 of the
commencement of any litigation or proceedings against it in connection with the
issue and sale of any Shares.
(b) The Fund 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 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 Fund, 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 unless such statement or omission was made in reliance upon
information furnished to the Fund by the Company or (iii) may be based on any
untrue statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering insurance products sold by the
Company, or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished to the
Company by or on behalf of the
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Fund; provided, however, that in no case (i) is the Fund'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 Fund to
be liable under its indemnity agreement contained in this Paragraph 4 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 the Fund 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 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 the Fund 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. The Fund 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 the Fund 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 the Fund 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 the Fund 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. The Fund 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 Trustees in connection with
the issuance or sale of any Shares.
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The provisions of this Section 4 shall survive the termination of the
Agreement. These indemnification provisions are in addition to any liability
the Fund or the Company may otherwise have.
5. Procedure for Resolving Irreconcilable Conflicts.
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(a) The Trustees of the Fund will monitor the operations of the Fund
for the existence of any material irreconcilable conflict among the interests of
all the contract holders and policy owners of Variable Insurance Products (the
"Participants") of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise, among other things, from: (a) an
action by any state insurance regulatory authority; (b) a change in applicable
insurance laws or regulations; (c) a tax ruling or provision of the Internal
Revenue Code or the regulations thereunder; (d) any other development relating
to the tax treatment of insurers, contract holders or policy owners or
beneficiaries of Variable Insurance Products; (e) the manner in which the
investments of any Portfolio are being managed; (f) a difference in voting
instructions given by variable annuity contract holders, on the one hand, and
variable life insurance policy owners, on the other hand, or by the contract
holders or policy owners of different participating insurance companies; or (g)
a decision by an insurer to override the voting instructions of Participants.
(b) The Company will be responsible for reporting any potential or
existing conflicts to the Trustees of the Fund. The Company will be responsible
for assisting the Trustees in carrying out their responsibilities under this
Paragraph 5(b) and Paragraph 5(a), by providing the Trustees with all
information reasonably necessary for the Trustees to consider the issues raised.
The Fund will also request its investment adviser to report to the Trustees any
such conflict which comes to the attention of the adviser.
(c) If it is determined by a majority of the Trustees of the Fund, or
a majority of its disinterested Trustees, that a material irreconcilable
conflict exists involving the Company, the Company shall, at its expense, and to
the extent reasonably practicable (as determined by a majority of the
disinterested Trustees), take whatever steps are necessary to eliminate the
irreconcilable material conflict, including withdrawing the assets allocable to
some or all of the separate accounts from the Fund or any Portfolio or class
thereof and reinvesting such assets in a different investment
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medium, including another Portfolio of the Fund or class thereof, offering to
the affected Participants the option of making such a change or establishing a
new funding medium including a registered investment company.
For purposes of this Paragraph 5(c), the Trustees, or the disinterested
Trustees, shall determine whether or not any proposed action adequately remedies
any irreconcilable material conflict. In the event of a determination of the
existence of an irreconcilable material conflict, the Trustees shall cause the
Fund to take such action, such as the establishment of one or more additional
Portfolios or classes, as they in their sole discretion determine to be in the
interest of all shareholders and Participants in view of all applicable factors,
such as cost, feasibility, tax, regulatory and other considerations. In no
event will the Fund be required by this Paragraph 5(c) to establish a new
funding medium for any variable contract or policy.
The Company shall not be required by this Paragraph 5(c) to establish a new
funding medium for any variable contract or policy if an offer to do so has been
declined by a vote of a majority of the Participants materially adversely
affected by the material irreconcilable conflict. The Company will recommend to
its Participants that they decline an offer to establish a new funding medium
only if the Company believes it is in the best interest of the Participants.
(d) The Trustees' determination of the existence of an irreconcilable
material conflict and its implications promptly shall be communicated to all
Participating Insurance Companies by written notice thereof delivered or mailed,
first class postage prepaid.
6. Voting Privileges.
-----------------
The Company shall be responsible for assuring that its separate account or
accounts participating in the Fund shall use a calculation method of voting
procedures substantially the same as the following: those Participants
permitted to give instructions and the number of Shares for which instructions
may be given will be determined as of the record date for the Fund shareholders'
meeting, which shall not be more than 60 days before the date of the meeting.
Whether or not voting instructions are actually given by a particular
Participant, all Fund shares held in any separate account or sub-account thereof
and attributable to policies will be voted for, against, or withheld from voting
on any proposition in the same proportion as (i) the aggregate record date cash
value
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held in such sub-account for policies giving instructions, respectively, to vote
for, against, or withhold votes on such proposition, bears to (ii) the aggregate
record date cash value held in the sub-account for all policies for which voting
instructions are received. Participants continued in effect under lapse options
will not be permitted to give voting instructions. Shares held in any other
insurance company general or separate account or sub-account thereof will be
voted in the proportion specified in the second preceding sentence for shares
attributable to policies.
7. Duration and Termination.
------------------------
This Agreement shall continue in effect unless terminated as set forth
below. This Agreement may be terminated at any time, at the option of either of
the Company or the Fund, when neither the Company, any insurance company nor the
separate account or accounts of such insurance company which is an affiliate
thereof which is not a Participating Insurance Company own any Shares of the
Fund or may be terminated by either party to the Agreement upon a determination
by a majority of the Trustees of the Fund, or a majority of its disinterested
Trustees, following certification thereof by a Participating Insurance Company
given in accordance with Paragraph 9 that an irreconcilable conflict exists
among the interests of (i) all contract holders and policy holders of Variable
Insurance Products of all separate accounts or (ii) the interests of the
Participating Insurance Companies investing in the Fund. If this Agreement is
so terminated, the Fund may, at any time thereafter, automatically redeem the
Shares of any Portfolio held by a Participating Shareholder.
8. Compliance.
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The Fund will comply with the provisions of Section 4240(a) of the New York
Insurance Law.
Each Portfolio of the Fund will use its best efforts to comply with the
provisions of Section 817(h) of the Internal Revenue Code of 1986, as amended
(the "Code"), relating to diversification requirements for variable annuity,
endowment and life insurance contracts. Specifically, each Portfolio will comply
with either (i) the requirement of Section 817(h)(1) of the Code that its assets
be adequately diversified, or (ii) the "Safe Harbor for Diversification"
specified in Section 817(h)(2) of the Code. The Fund will notify the Company
immediately upon having a reasonable basis for
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believing that a Portfolio has ceased to comply with the requirements of Section
817(h) of the Code or that the Portfolio might not so comply in the future.
The provisions of Paragraphs 5 and 6 of this Agreement shall be interpreted
in a manner consistent with any Rule or order of the Securities and Exchange
Commission under the Investment Company Act of 1940, as amended, applicable to
the parties hereto.
No Shares of any Portfolio of the Fund may be sold to the general public.
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 the Fund:
Xxxxxxx Variable Life Investment Fund
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn: Xxxxx X. Xxxxx
If to the Company:
United Investors Life Insurance Company
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, President
Copy to:
MidAmerica Partners
0000 X. Xxx, Xxxxx 000
Xxxxxxxx Xxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxx
10. Massachusetts Law to Apply.
--------------------------
This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
11. Miscellaneous.
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The name "Xxxxxxx Variable Life Investment Fund" is the designation of the
Trustees for the time being under a Declaration of Trust dated March 15, 1985,
as amended, and all persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against
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the Fund as neither the Trustees, officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Fund. No
Portfolio shall be liable for any obligations properly attributable to any other
Portfolio.
The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
12. Entire Agreement.
----------------
This Agreement incorporates the entire understanding and agreement among
the parties hereto, and supersedes any and all prior understandings and
agreements between the parties hereto with respect to the subject matter hereof.
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 ____ day of _______________ ,
1997.
SEAL XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By:
---------------------------------
Xxxxx X. Xxxxx
President
SEAL UNITED INVESTORS LIFE
INSURANCE COMPANY
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
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Continuation of EX-99.B8(A)(iii)
AMENDMENT
The Participation Agreement, made the ______ day of _____________, 1997 by
______________ and ______________ (the "Agreement"), is hereby amended by the
addition of the provisions set forth in this Amendment to the Agreement.
As an additional inducement for the Company to enter into the Agreement,
the Fund hereby agrees with the Company as follows:
1. all shares of the Portfolios will be sold only to Participating
Insurance companies which have agreed to participate in the Fund to fund their
separate accounts and/or to certain qualified pension and other retirement
plans, all in accordance with the requirements of Section 817(h) of the Internal
Revenue Code of 1986, as amended ("Code") and Treasury Regulation Sec. 1.817-5;
2. the Fund shall make the net asset value per Share for the selected
Portfolio(s) available to the Company on a daily basis as soon as reasonably
practicable after the net asset value per share is calculated but shall use
commercially reasonable efforts to make such net asset value available by 6:30
p.m. New York time. If the Fund provides materially incorrect share net asset
value information, the Fund shall make an adjustment to the number of shares
purchased or redeemed for the Account to reflect the current net asset value per
share. Any material error in the calculation or reporting of net asset value
per share, dividend or capital gains information shall be reported promptly upon
discovery to the Company;
3. the Fund will provide the Company with at least one complete copy of
all prospectuses, statements of additional information, annual and semi-annual
reports, proxy statements, exemptive applications and all amendments or
supplements to any of the above that relate to the Portfolios promptly after the
filing of each such document with the Securities and Exchange Commission ("SEC")
or other regulatory authority. The Company will provide the Fund with at least
one complete copy of all prospectuses, statements of additional information,
annual and semi-annual reports, proxy statements, exemptive applications and all
amendments or supplements to any of the above that relate to an Account promptly
after the filing of each such document with the SEC or other regulatory
authority;
4. the Fund will provide the Company with a "camera ready" copy of all
prospectuses, statements of additional information and annual and semi-annual
reports as set in type or, at the request of the Company, as a diskette in the
form sent to the financial printer, in order to allow for the combined printing
of the prospectuses of the Fund, the Variable Insurance Products and other funds
invested in by the Variable Insurance Products;
5. the Fund and its affiliates and the agents shall not give any
information or make any representations on behalf of the Company or concerning
the Company, the Accounts or the Variable Insurance Products issued by the
Company other than the information or representations contained in a
registration statement or prospectus for such Variable Insurance Products, as
such registration statement and prospectus may be amended or supplemented from
time to time, or in reports of the Accounts or reports prepared for distribution
to owners of such Variable Insurance
Products, or in sales literature or other promotional material approved by the
company or its designee, except with the written permission of the Company;
6. for purposes of the Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without limitation,
advertisements (such as material published, or designed for use, in a newspaper,
magazine or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures or other public media),
sales literature (such as any written communication distributed or made
generally available to customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, or reprints or
excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made
generally available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports and
proxy materials, and any other material constituting sales literature or
advertising under the National Association of Securities Dealers, Inc. ("NASD")
rules or federal securities laws;
7. the Agreement shall also terminate in accordance with the following
provisions:
a. At the option of any party hereto, with or without cause upon 90
days advance written notice to the other parties;
b. At the option of the Company, if the number of Fund Shares
available is not reasonably sufficient to meet the requirements of the Variable
Insurance Products as determined by the Company. Prompt notice of election to
terminate shall be furnished by the Company, said termination to be effective
ten days after receipt of notice unless the Fund makes available a sufficient
number of Shares to meet the reasonable requirements of the Variable Insurance
Products within said ten-day period;
c. At the option of the Company, upon the institution of formal
proceedings against the Fund by the SEC, the NASD or any other regulatory body,
the expected or anticipated ruling, judgment or outcome of which would, in the
Company's reasonable judgment, materially impair the Fund's ability to meet and
perform the Fund's obligations and duties hereunder. The Company shall provide
promptly to the Fund a written explanation of how the Fund is materially
impaired so that it cannot meet its obligations and duties hereunder and shall
provide promptly an opinion of counsel stating that it is probable that the
proceedings will lead to a ruling, judgment or outcome which will materially
impair the Fund's ability to meet and perform its obligations and duties
hereunder. Prompt notice of election to terminate shall be furnished by the
Company with said termination to be effective upon receipt of notice,
explanation and opinion of counsel;
d. In the event the Fund's shares are not registered, issued or sold
in accordance with applicable state insurance or federal law and such failure of
the Fund's shares to be so registered, issued, and sold in accordance with
applicable state insurance or federal law has had a material adverse effect on
the status of such contracts under state or federal law, or such law precludes
the use of such shares as the underlying investment medium of Variable Insurance
Products issued or to be issued by the Company. Termination shall be effective
upon such occurrence without notice;
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e. At the option of the Company, upon the Fund's breach of any
material provision of the Agreement, which breach has not been cured to the
reasonable satisfaction of the Company within ten days after written notice of
such breach is delivered to the Fund;
f. At the option of the Company, if the Company shall determine, in
its sole judgment reasonably exercised in good faith, that the Fund is the
subject of material adverse publicity which has had a material adverse impact on
the sale of the Variable Insurance Products and/or the operations or business
reputation of the Company, the Company shall have notified the Fund in writing
of such determination and its intent to terminate the Agreement, and after
consideration of the actions taken by the Fund and any other changes in
circumstances since the giving of such notice, the determination of the Company
shall continue to apply on the sixtieth (60th) day since giving of such notice,
which sixtieth (60th) day shall be the effective date of termination;
g. Upon requisite vote of the Participants having an interest in the
Accounts to substitute the shares of another investment company for the
corresponding shares of the Fund in accordance with the terms of the Variable
Insurance Products for which those shares had been selected to serve as the
underlying investment, such termination to be effective sixty days after
notification of the Fund. The Company shall provide to the Fund copies of any
proxy material sent to Participants in connection with such vote at such time
the materials are mailed to the Participants; or
h. In the event the Agreement is assigned without the prior written
consent of the Company and the Fund, termination shall be effective immediately
upon such occurrence without notice.
In the event of any termination of this Agreement, the Fund will, at the
option of the Company, continue to make available additional shares of the Fund
pursuant to the terms and conditions of this Agreement, for all of the Company's
Variable Insurance Products 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 will be permitted to
reallocate investments in the Portfolios (as in effect on such date), redeem
investments in the Portfolios and/or invest in the Portfolios upon the making of
additional purchase payments under the Existing Contracts. However, the
availability of additional shares hereunder will be subject to the restrictions
and limitations set forth in Section 5, as applicable. The Company agrees (i) to
terminate the availability of shares of the Fund to Contracts other than
Existing Contracts and (ii) to request approval from the SEC to replace shares
of the Fund with other investments for Contracts and, if and when granted such
approval, thereafter to so replace the shares of the Fund, in each such case as
soon as reasonably practicable.
8. the Fund represents and warrants that each Portfolio will comply with
the diversification requirements set forth in Section 817(h) of the Code, and
the rules and regulations thereunder, including without limitation Treasury
Regulation 1.817-5, and will notify the Company immediately upon having a
reasonable basis for believing any Portfolio has ceased to so comply and will
immediately take all reasonable steps to adequately diversify the Portfolio to
achieve compliance;
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9. the Fund represents and warrants that each Portfolio invested in by
the Accounts will qualify as a "regulated investment company" under Subchapter M
of the Code, that it will maintain such qualification and will notify the
Company immediately upon the reasonable likelihood that it will cease to so
qualify or might not so qualify in the future; and
10. each party shall cooperate with the reasonable requests of each other
party and all appropriate governmental authorities (including without limitation
the SEC, the NASD and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to the Agreement or the transactions
contemplated thereby.
IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to
be executed in its name and behalf by its duly authorized representative and its
seal to be hereunder affixed as of the _____ day of _____________, 1997.
SEAL XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By: _________________________________
Xxxxx X Xxxxx
President
SEAL UNITED INVESTORS LIFE INSURANCE
COMPANY
By: _________________________________
Name:
Title:
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