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EXHIBIT 8(a)(iii)
FORM OF
PARTICIPATION AGREEMENT AMONG
SAGE LIFE ASSURANCE OF AMERICA, INC.
LIBERTY VARIABLE INVESTMENT TRUST,
LIBERTY ADVISORY SERVICES CORP.
AND
LIBERTY FUNDS DISTRIBUTOR, INC.
This Agreement, made and entered into as of this ______ day of __________,
1999 by and among Sage Life Assurance of America, Inc. (the "Company"), on its
own behalf and on behalf of its Separate Accounts, each of which is a segregated
asset account of the Company, Liberty Variable Investment Trust (the "Trust"),
Liberty Advisory Services Corp. ("LASC") and Liberty Funds Distributor, Inc.
("LFDI").
WHEREAS, the Trust engages in business as an open-end management
investment company and is available to act as the investment vehicle for
separate accounts established for variable life insurance policies and variable
annuity contracts (collectively, "Variable Insurance Products") to be offered by
insurance companies which have entered into participation agreements
substantially identical to this Agreement (each hereinafter a "Participating
Insurance Company"); and
WHEREAS, the beneficial interest in the Trust is divided into several
series of shares (such series being hereinafter referred to individually as a
"Series" or collectively as the "Series") available for purchase by the Company
for the Separate Accounts and listed in Schedule A, which is attached hereto and
incorporated herein; and
WHEREAS, the Trust relies on an order from the Securities and Exchange
Commission ("SEC"), dated July 1, 1988 (File No. 812-7044), granting life
insurance companies and variable annuity and variable life insurance separate
accounts exemptions from the provisions of Sections 9(a), 13(a), 15(a), and
15(b) of the Investment Company Act of 1940, as amended (the "1940 Act") and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder to the extent necessary to
permit shares of the Trust to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
life insurance companies (hereinafter the "Shared Funding Exemptive Order"); and
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WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, Liberty Advisory Services Corp. ("LASC") serves as investment
adviser to the Trust and is duly registered as an investment adviser under the
Investment Advisers Act of 1940 and applicable state securities laws; and
provides certain administrative services to the Trust; and
WHEREAS, Liberty Funds Services, Inc. ("LFSI") serves as transfer agent to
the Trust; and
WHEREAS, the Company has registered or will register certain Variable
Insurance Products (set forth in Schedule A, which is attached hereto and
incorporated herein) under the 1933 Act, unless exempt therefrom; and
WHEREAS, the Company has established duly organized, validly existing
segregated asset accounts (set forth in Schedule A, which is attached hereto and
incorporated herein) (the "Separate Accounts") by resolution of the Board of
Directors of the Company; and
WHEREAS, the Company has registered or will register certain Separate
Accounts as unit investment trusts under the 1940 Act, unless exempt therefrom;
and
WHEREAS, the Company may rely on certain provisions of the 1933 and 1940
Acts that exempt certain Separate Accounts and Variable Insurance Products from
the registration requirements of the Acts in connection with the sale of
Variable Insurance Products under certain tax-advantaged retirement programs as
provided for by Internal Revenue Code of 1986, as amended (the "Code"); and
WHEREAS, LFDI serves as distributor of the Trust's shares and is
registered as a broker-dealer with the SEC under the Securities Exchange Act of
1934, as amended (the "1934 Act"), and is a member in good standing of the
National Association of Securities Dealers, Inc. (the "NASD");
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Trust on behalf of
each Separate Account to fund certain Variable Insurance Products listed in
Schedule A and LFDI is authorized to sell such shares to the Separate Accounts
at net asset value as provided in Article I hereof;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Trust and LFDI agree as follows:
ARTICLE I. Sale of Fund Shares
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1.1. LFDI will sell to the Company those shares of the Trust which each
Separate Account orders, executing such orders on a daily basis at the closing
net asset value next computed after receipt by the Separate Accounts of purchase
payments or for the business day on which transactions under Variable Insurance
Products are effected by the Separate Accounts. The Company will notify the
Trust of purchase orders by 9:30 a.m. Eastern time on the next following
Business Day. For purposes of this Section 1.1, LFSI shall be the designee of
the Trust to receive such orders from the Company on behalf of each Separate
Account and receipt by LFSI shall constitute receipt by the Trust. "Business
Day" shall mean any day on which the New York Stock Exchange is open for trading
and on which the Trust calculates its net asset value pursuant to the rules of
the SEC.
1.2. The Trust will make its shares available indefinitely for purchase at
the applicable closing net asset value per share by the Company and its Separate
Accounts on those days on which the Trust calculates its net asset value
pursuant to rules of the SEC, and the Trust shall use reasonable efforts to
calculate such net asset value on each Business Day, in accordance with Section
1.11. Notwithstanding the foregoing, the Board of Trustees of the Trust (the
"Trustees") may refuse to sell shares of any Series to any person, or suspend or
terminate the offering of shares of any Series if such action is required by law
or by regulatory authorities having jurisdiction or is, in the sole discretion
of the Trustees, acting in good faith and in light of their fiduciary duties
under federal and any applicable state laws, necessary in the best interests of
the shareholders of such Series.
1.3. The Trust and LFDI agree that shares of the Trust will be sold only
to Participating Insurance Companies and their Separate Accounts. No shares of
any Series will be sold to the general public.
1.4. The Trust and LFDI will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles I, III, V, VII and Sections 2.5 and 2.12 of
Article II of this Agreement is in effect to govern such sales.
1.5. The Trust will redeem for cash, at the Company's request, any full or
fractional shares of the Trust held by the Company, executing such requests on a
daily basis at the closing net asset value next computed after receipt by the
Separate Accounts of redemption requests or for the Business Day on which
transactions under Variable Insurance Products are effected by the Separate
Accounts. The Company will notify the Trust of redemption requests by 9:30 a.m.
Eastern time on the next following Business Day. For purposes of this Section
1.5, LFSI shall be the designee of the Trust to receive
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requests for redemption from the Company on behalf of each Separate Account, and
receipt by such designee shall constitute receipt by the Trust.
1.6. The Trust may suspend the redemption of any full or fractional shares
of the Trust (1) for any period (a) during which the New York Stock Exchange is
closed (other than customary weekend and holiday closings) or (b) during which
trading on the New York Stock Exchange is restricted; (2) for any period during
which an emergency exists (as determined by the SEC) as a result of which (a)
disposal by the Trust of securities owned by it is not reasonably practicable or
(b) it is not reasonably practicable for the Trust fairly to determine the value
of its net assets; or (3) for such other periods as the SEC may by order permit
for the protection of shareholders of the Trust.
1.7. The Company will purchase and redeem the shares of each Series
offered by the then current prospectus of the Trust and in accordance with the
provisions of such prospectus and statement of additional information (the
"SAI") (collectively referred to as the "Prospectus," unless otherwise
provided).
1.8. The Company shall pay for Trust shares on the next Business Day after
an order to purchase Trust shares is placed in accordance with the provisions of
Section 1.1. hereof. Payment shall be in federal funds transmitted by wire, or
may otherwise be provided by separate agreement, with the reasonable expectation
of receipt by the Trust by 2:00 p.m. Eastern time on the next Business Day after
the Trust (or its designee) receives the purchase order.
The Trust shall pay for redeemed Trust shares on the next Business Day
after a request to redeem Trust shares is made in accordance with the provisions
of Section 1.5 hereof. Payment shall be in federal funds transmitted by wire, or
may otherwise be provided by separate agreement, with the reasonable expectation
of receipt by the Company by 2:00 p.m. Eastern time on the next Business Day
after the Trust (or its designee) receives the redemption request.
With respect to the payment of the purchase price by the Company and of
the redemption proceeds by the Trust, the Company and the Trust may net purchase
and redemption orders with respect to each Series and may transmit one net
payment per Series.
1.9. Issuance and transfer of the Trust's shares will be by book entry
only. The Trust will not issue share certificates to either the Company or the
Separate Accounts. Shares ordered from the Trust will be recorded in an
appropriate title for each Separate Account or the appropriate subaccount of
each Separate Account.
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1.10. The Trust, through its designee LFSI, shall furnish same day notice
(by wire or telephone, followed by written confirmation) to the Company of any
income dividends or capital gain distributions payable on the shares of any
Series. The Company hereby elects to receive all such income, dividends and
capital gain distributions as are payable on the shares of each Series in
additional shares of that Series. The Company reserves the right to revoke this
election and to receive all such income, dividends and capital gain
distributions in cash. The Trust shall notify the Company through LFSI of the
number of shares so issued as payment of such income, dividends and
distributions.
1.11. The Trust shall make the closing net asset value per share for each
Series available to the Company on a daily basis as soon as reasonably practical
after closing the net asset value per share is calculated and shall use its best
efforts to make such closing net asset value per share available by 6:30 p.m.,
Boston time. If the trust provides materially incorrect share net asset value
information (as determined under SEC guidelines), the Company shall be entitled
to an adjustment to the number of shares purchased or redeemed to reflect the
correct net asset value per share. Any material error in the calculation or
reporting of net asset value per share, dividend or capital gain information
shall be reported promptly upon discovery to the Company.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act to the extent required by the 1933 Act; that the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws and that the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements.
The Company further represents and warrants that it is duly organized and in
good standing under applicable law and that prior to any issuance or sale of any
Contract it has legally and validly established each Separate Account as a
segregated asset account under all applicable state insurance laws and has
registered or, prior to any issuance or sale of the Contracts, will register
each Separate Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for the
Contracts, to the extent required by the ▇▇▇▇ ▇▇▇.
2.2. The Trust represents and warrants that Trust shares sold pursuant to
this Agreement shall be registered under the 1933 Act to the extent required by
the 1933 Act, duly authorized for issuance and sold in compliance with the laws
of the Commonwealth of Massachusetts and all applicable federal and any state
securities laws and that the Trust is and shall remain registered under the 1940
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Act to the extent required by the 1940 Act. The Trust shall amend the
registration statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares. The Trust shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent deemed advisable
by the Trust or LFDI.
2.3. The Trust represents and warrants that it currently is qualified as a
Regulated Investment Company under Subchapter M of the Code and that it will
make every effort to remain qualified (under Subchapter M or any successor or
similar provision) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it might
not so qualify in the future.
2.4. Subject to Sections 2.3 and 6.1 thereof, the Company represents that
the Contracts are currently treated as endowment, annuity or life insurance
contracts under applicable provisions of the Code and that it will make every
effort to maintain such treatment and that it will notify the Trust and LFDI
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future.
2.5. The Trust currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise,
although it may make such payments in the future consistent with applicable law.
To the extent that it decides to finance distribution expenses pursuant to Rule
12b-1, the Trust undertakes to have its Trustees, a majority of whom are not
interested persons of the Trust, formulate and approve any plan under Rule 12b-1
to finance distribution expenses.
2.6. The Trust makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Trust represents that it is currently in compliance and shall at
all times remain in compliance with the applicable insurance laws of Delaware to
the extent required to perform this Agreement and all other states to the extent
that the Participating Insurance Company advises the Trust, in writing, of such
laws or any changes in such laws, including the furnishing of information not
otherwise available to the Company which is required by state insurance law to
enable the Company to obtain the authority needed to issue the Contracts in any
applicable state.
2.7. LFDI represents and warrants that it is duly organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it is, and
will remain, a member in good standing of
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the NASD and registered as a broker-dealer with the SEC. LFDI further represents
that it will sell and distribute the Trust shares in accordance with the laws of
the Commonwealth of Massachusetts and all applicable state and federal
securities laws, including without limitation the 1933 Act, the 1934 Act, and
the ▇▇▇▇ ▇▇▇.
2.8. The Trust represents and warrants that it is and shall remain
lawfully organized and validly existing under the laws of the Commonwealth of
Massachusetts and that it does and will comply in all material aspects with the
1940 Act and the rules and regulations thereunder.
2.9. LASC represents and warrants that it is duly organized and validly
existing under the laws of the Commonwealth of Massachusetts and that it is and
will remain duly registered as an investment adviser in all material aspects
under all applicable federal and state securities laws and that it shall perform
its obligations for the Trust in compliance in all material respects with all
applicable laws of the Commonwealth of Massachusetts and any applicable state
and federal securities laws.
2.10. The Trust represents and warrants that all of its trustees,
officers, employees, investment advisers, and other individuals/entities having
access to securities or funds of the Trust are and shall continue to be at all
times covered by a joint fidelity bond in an amount not less than the minimum
coverage required by Rule 17g-1 or other applicable regulations under the 1940
Act with no deductible amount. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable fidelity insurance
company. Such fidelity bond may be a joint bond with other investment companies
having the same investment adviser, sub-adviser, distributor or transfer agent.
2.11. The Company represents and warrants that it will not transfer or
otherwise convey shares of the Trust, without the prior written consent of LFDI.
ARTICLE III. Prospectus and Proxy Statements; Voting
3.1. LFDI shall provide the Company with as many copies of the current
prospectus for each Series set forth on Schedule A, excluding the SAI, as the
Company may reasonably request in connection with delivery of the prospectus,
excluding the SAI, to shareholders and purchasers of the Contracts. If requested
by the Company in lieu thereof, the Trust shall provide such documentation
(including a final copy of the new prospectus, excluding the SAI, as set in type
at the Trust's expense) and other assistance as is reasonably necessary in order
for the Company once each year (or more frequently if a prospectus for a Series
is amended) to have the prospectus for the Contracts and the Series'
prospectuses, excluding the SAI, printed together in one document. With respect
to any Series
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prospectus that is printed in combination with any one or more Contract
prospectus (the "Prospectus Booklet"), the costs of printing Prospectus Booklets
for distribution to existing Contract owners shall be prorated to the Trust
based on (a) the ratio of the number of pages of the Series prospectus included
in the Prospectus Booklet to the number of pages in the Prospectus Booklet as a
whole; and (b) the ratio of the number of Contract owners with Contract value
allocated to the Series to the total number of Contract owners, provided that
the Trust shall not be required to pay the Company more than $67,500 during
calendar year 1999 as its portion of the cost of printing Prospectus Booklets,
as allocated pursuant to this Section.
3.2. Each Series prospectus shall state that the SAI for the Series is
available from LFDI and the Trust, at its expense, shall provide a final copy of
such SAI to LFDI for duplication and provision to any prospective owner who
requests the SAI and to any owner of a Contract ("Owners").
3.3. The Trust, at its expense, shall provide the Company with copies of
its proxy material, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably require for
distribution to Owners.
3.4. If and to the extent required by law, the Company and, so long as and
to the extent that the SEC continues to interpret the 1940 Act to require
pass-through voting privileges for Owners, the Trust shall:
(i) solicit voting instructions from Owners;
(ii) vote the Trust shares in accordance with instructions received from
Owners; and
(iii) vote Trust shares for which no instructions have been received in
the same proportion as Trust shares of such Series for which instructions have
been received;
The Company reserves the right to vote Trust shares held in any segregated
asset account in its own right, to the extent permitted by law. Each
Participating Insurance Company shall be responsible for assuring that each of
its Separate Accounts participating in the Trust calculates voting privileges in
a manner consistent with the standards to be provided in writing to the
Participating Insurance Company.
3.5. The Trust will comply with all provisions of the 1940 Act requiring
voting by shareholders. The Trust reserves the right to take all actions,
including but not limited to, the dissolution, merger, and
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sale of all assets of the Trust upon the sole authorization of its Trustees, to
the extent permitted by the laws of the Commonwealth of Massachusetts and the
1940 Act.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to the
Trust or its designee, each piece of sales literature or other promotional
material in which the Trust or LASC or any sub-adviser or LFDI is named, at
least 10 days prior to its use. No such material shall be used if the Trust or
its designee objects to such use within 10 days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or a Prospectus for
Series shares, as such registration statement and Prospectus may be amended or
supplemented from time to time, or in reports or proxy statements for the Trust,
or in sales literature or other promotional material approved by the Trust or
its designee or by LFDI, except with the permission of the Trust or LFDI or the
designee of either. The Trust and LFDI agree to respond to any request for
approval on a prompt and timely basis. The Company shall adopt and implement
procedures reasonably designed to ensure that "broker only" materials including
information about the Trust or LFII are not distributed to existing or
prospective owners, and neither the Trust nor LFII shall be liable for any
losses, damages, or expenses relating to the improper use of such broker only
materials.
4.3. The Trust or its designee shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company, a Separate Account(s) and/or
the Contracts are named at least 10 days prior to its use. No such material
shall be used if the Company or its designee objects to such use within 10 days
after receipt of such material.
4.4. The Trust and LFDI shall not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, any Separate Account, or the Variable Insurance Products 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 published
reports for such Separate Account which are in the public domain or approved by
the Company for distribution to Owners, or in sales literature or other
promotional material approved by the Company or its designee, except with the
permission of the Company. The Company agrees to respond to any request for
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approval on a prompt and timely basis. The Trust and LFII shall adopt and
implement procedures reasonably designed to ensure that "broker only" materials
including information about the Company or the Contracts are not distributed to
existing or prospective owners, and the Company shall not be liable for any
losses, damages, or expenses relating to the improper use of such broker only
materials.
4.5. The Trust will provide to the Company at least one complete copy of
all registration statements, prospectuses, SAIs, reports, proxy statements,
sales literature and other promotional materials, applications for exemption,
requests for no-action letters, and all amendments to any of the above, that
relate to the Trust or its shares, contemporaneously with the filing of such
document with the SEC or other regulatory authorities.
The Trust shall provide the Company with as much notice as is reasonable
practicable of any proxy solicitation for a Series and of any material change in
the prospectuses or registration statements relating to the Trust or its shares,
particularly any changes resulting in a change to a prospectus or registration
statement relating to the Contracts.
4.6. The Company will provide to the Trust at least one complete copy of
all registration statements, prospectuses, SAIs, reports, solicitations for
voting instructions, sales literature and other promotional materials,
applications for exemption, requests for no-action letters, and all amendments
to any of the above, that relate to the Variable Insurance Products or any
Separate Account, contemporaneously with the filing of such document with the
SEC.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, 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 (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, 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, and registration statements,
prospectuses, SAIs, shareholder reports, proxy materials, and any other material
constituting sales literature or advertising under the NASD rules, the 1933 Act,
or the 1940 Act.
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4.8 The Company, the Trust, and LFII agree that the provisions of this
Article IV is not intended to designate or otherwise imply that the Company is
an underwriter or distributor of shares of the Trust.
ARTICLE V. Fees and Expenses
5.1. The Trust and LFDI shall pay no fee or other compensation to the
Company under this Agreement, except that if the Trust or any Series adopts and
implements a plan pursuant to Rule 12b-1 to finance distribution expenses, then
LFDI may make payments to the Company or to the underwriter for the Variable
Insurance Products if and in amounts agreed to by LFDI in writing and such
payments will be made out of existing fees payable to LFDI by the Trust for this
purpose. No such payments shall be made directly by the Trust. Currently, no
such plan pursuant to Rule 12b-1 or payments are contemplated.
5.2. All expenses incident to performance by the Trust under this
Agreement shall be paid by the Trust. At its expense, the Trust shall see to it
that all its shares are registered and authorized for issuance in accordance
with applicable federal law and, if and to the extent deemed advisable by the
Trust, in accordance with applicable state laws prior to their sale. The Trust
shall bear the expenses of registration and qualification of the Trust's shares,
preparation and filing of the Trust's registration statement, registration
statement amendments, Series prospectuses, proxy materials and reports, setting
the prospectus in type, setting in type and printing the proxy materials and
reports to shareholders (including the costs of printing a prospectus that
constitutes an annual report), the preparation of all statements and notices
required by any federal or state law, and all taxes on the issuance or transfer
of the Trust's shares.
5.3. The Company shall bear the expenses of distributing the Trust's proxy
materials and reports to Owners.
ARTICLE VI. Diversification
6.1. The Trust will at all times invest money from the Variable
Insurance Products in such a manner as to ensure that, insofar as such
investment is required to assure such treatment, the Variable
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Insurance Products will be treated as variable contracts under the Code and the
regulations issued thereunder. Without limiting the scope of the foregoing, the
Trust currently complies with and at all times will continue to comply with
Section 817(h) of the Code and the Treasury Regulations thereunder relating to
the diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section or
Regulations, and will notify the Company immediately upon having a reasonable
basis to believe any Series has ceased to comply or may not so comply in the
future and will immediately take all necessary steps to adequately diversify the
Series to achieve compliance within the grace period afforded by Regulation
1.817-5 of the Code.
ARTICLE VII. Potential Conflicts
7.1. The Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the Owners of separate accounts
of the Participating Insurance Companies investing in the Trust. A material
irreconcilable conflict may arise for a variety of reasons, including: (a) an
action by any state insurance regulatory authority; (b) a change in applicable
federal or state insurance, tax, or securities laws or regulations, or a public
ruling, private letter ruling, no-action or interpretive 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 Series are being managed; (e) a difference in
voting instructions given by variable annuity contract and variable life
insurance policy owners; or (f) a decision by an insurer to disregard the voting
instructions of Owners. The Trustees shall promptly inform the Participating
Insurance Companies if they determine that a material irreconcilable conflict
exists and the implications thereof.
7.2. The Company will report to the Trustees any potential or existing
conflicts (including the occurrence of any event specified in paragraph 7.1
which may give rise to such a conflict) of which it is aware. The Company will
assist the Trustees in carrying out their responsibilities under the Shared
Funding Exemptive Order, by providing the Trustees with all information
reasonably necessary for the Trustees to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform the
Trustees whenever Owner voting instructions are disregarded.
7.3. If it is determined by a majority of the Trust's Trustees, or a
majority of its disinterested Trustees, that a material irreconcilable conflict
exists, the Company and other Participating Insurance Companies for which a
material irreconcilable conflict is relevant shall, at their expense and to the
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extent reasonably practicable (as determined by a majority of the disinterested
Trustees), take whatever steps are necessary to remedy or eliminate the material
irreconcilable conflict, up to and including: (1), withdrawing the assets
allocable to some or all of the separate accounts of Participating Insurance
Companies from the Trust or any Series and reinvesting such assets in a
different investment medium, including (but not limited to) another Series of
the Trust, or submitting the question whether such segregation should be
implemented to a vote of all affected Owners and, as appropriate, segregating
the assets of any appropriate group (i.e., annuity contract owners, life
insurance contract owners, or variable contract owners of one or more of the
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Owners the option of making such a change; (2),
establishing a new registered management investment company or managed separate
account; and (3) obtaining SEC approval.
7.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Owner voting instructions and that decision represents
a minority position or would preclude a majority vote, the Company may be
required, at the Trust's election, to withdraw the affected Separate Account's
investment in the Trust and terminate this Agreement; provided, however that
such withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Any such withdrawal and termination must take place
within six months after the Trust gives written notice that this provision is
being implemented, and until the end of that six-month period LFDI and Trust
shall continue to accept and implement orders by the Company for the purchase
(and redemption) of shares of the Trust.
7.5. If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Company conflicts with
the majority of other state regulators, then the Company will withdraw the
affected Separate Account's investment in the Trust and terminate this Agreement
within six months after the Trustees inform the Company in writing that they
have determined that such decision has created a material irreconcilable
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested Trustees. Until the end of the
foregoing six-month period, LFDI and Trust shall continue to accept and
implement orders by the Company for the purchase (and redemption) of shares of
the Trust.
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7.6. For purposes of Sections 7.3. through 7.6. of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any material irreconcilable conflict, but in no event
will the Trust be required to establish a new funding medium for the Variable
Insurance Products. The Company shall not be required to establish a new funding
medium for the Variable Insurance Products if an offer to do so has been
declined by vote of a majority of Owners materially adversely affected by the
material irreconcilable conflict. If the Trustees determine that any proposed
action does not adequately remedy any material irreconcilable conflict, then the
Company will withdraw the affected Separate Account's investment in the Trust
and terminate this Agreement within six (6) months after the Trustees inform the
Company in writing of the foregoing determination, provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested Trustees.
7.7. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the 1940
Act or the rules promulgated thereunder with respect to mixed or shared funding
(as defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Trust and/or the Company, as appropriate, shall take such steps as
may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule
6e-3, as adopted, to the extent such rules are applicable; and (b) Sections
3.4., 3.5., 7.1., 7.2., 7.3., 7.4., and 7.5. of this Agreement shall continue in
effect only to the extent that terms and conditions substantially identical to
such Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1 Indemnification By the Company
(a) The Company agrees to indemnify and hold harmless LASC, the LFDI, the
Trust and each of its Trustees, officers, employees and agents and each person,
if any, who controls the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" and individually the "Indemnified
Party" for purposes of this Article VIII) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Company, which consent shall not be unreasonably withheld) or
expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal
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counsel fees incurred in connection therewith) (collectively, "Losses"), to
which the Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses are related to
the sale or acquisition of Trust Shares or the Contracts and
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a disclosure document for
the Contracts or in the Contracts themselves or in sales literature generated or
approved by the Company on behalf of the Contracts or Accounts (or any amendment
or supplement to any of the foregoing) (collectively, "Company Documents" for
the purposes of this Article VIII), 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 indemnity 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 was accurately derived from written information furnished to the
Company by or on behalf of the Trust for use in Company Documents or otherwise
for use in connection with the sale of the Contracts or Trust shares; or
(ii) arise out of or result from statements or representations
(other than statements or representations contained in and accurately derived
from Trust Documents as defined in Section 8.2(a)(i) below) or wrongful conduct
of the Company or persons under its control, with respect to the sale or
acquisition of the Contracts or Trust shares; or
(iii) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Trust Documents as defined in
Section 8.2(a)(i) 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 accurately derived from written information furnished to the Trust by or on
behalf of the Company; or
(iv) arise out of or result from any failure by the Company to
provide the services or furnish the materials required under the terms of this
Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company.
(b) The Company shall not be liable under this indemnification provision
with respect to any Losses to which an Indemnified Party would otherwise be
subject by reason of such Indemnified
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Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to the
Trust or LASC, whichever is applicable. The Company shall also not be liable
under this indemnification provision with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the Company
in writing 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 such Indemnified Party (or after such Indemnified Party 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 may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, the Company shall be
entitled to participate, at its own expense, in the defense of such action. The
Company also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the Company to
such party of the Company's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional counsel
retained by it, and the Company will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable
costs of investigation.
(c) The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Trust shares or the Contracts or the operation of
the Trust.
8.2 Indemnification By The Adviser
(a) The LASC agrees to indemnify and hold harmless the Company, the
underwriter of the Contracts and each of its directors and officers and each
person, if any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" and individually an
"Indemnified Party" for purposes of this Section 8.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of LASC, which consent shall not be unreasonably withheld)
or expenses (including the reasonable costs of investigating or defending any
alleged loss, claim, damage, liability or expense and reasonable legal counsel
fees incurred in connection therewith) (collectively, "Losses") to which the
Indemnified Parties may become subject under any statute, at common law or
otherwise, insofar as such Losses are related to the sale or acquisition of the
Trust's Shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the Registration Statement,
prospectus or sales literature of the Trust (or any amendment or supplement to
any of the foregoing) (collectively, the "Trust Documents") 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 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
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furnished to LASC or Trust by or on behalf of the Company for use in the
Registration Statement or prospectus for the Trust or in sales literature (or
any amendment or supplement) or otherwise for use in connection with the sale of
the Contracts or Trust shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the disclosure documents
or sales literature for the Contracts not supplied by LASC or persons under its
control) or wrongful conduct of the Trust, LASC or LFDI or persons under their
control, with respect to the sale or distribution of the Contracts or Trust
shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a disclosure document or sales literature
covering the Contracts, 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 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 Trust; or
(iv) arise as a result of any failure by the Trust to provide the
services and furnish the materials under the terms of this Agreement (including
a failure, whether unintentional or in good faith or otherwise, to comply with
the qualification representation specified in Section xx.x of this Agreement and
the diversification requirements specified in Section xx.x of this Agreement);
or
(v) arise out of or result from any material breach of any
representation and/or warranty made by LASC in this Agreement or arise out of or
result from any other material breach of this Agreement by LASC; as limited by
and in accordance with the provisions of Sections 5.2(b) and 5.2(c) hereof.
(b) The LASC shall not be liable under this indemnification provision with
respect to any Losses to which an Indemnified Party would otherwise be subject
by reason of such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations and duties under this
Agreement or to each Company or the Account, whichever is applicable.
(c) The LASC shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified LASC in writing 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 such Indemnified Party (or after such
Indemnified Party shall
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have received notice of such service on any designated agent), but failure to
notify LASC of any such claim shall not relieve LASC from any liability which
it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case any such
action is brought against the Indemnified Parties, LASC will be entitled to
participate, at its own expense, in the defense thereof. The LASC also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from LASC to such party of LASC's election to
assume the defense thereof, the Indemnified Party shall bear the expenses of
any additional counsel retained by it, and LASC will not be liable to such
party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
(d) The Company agrees promptly to notify LASC of the commencement of any
litigation or proceedings against it or any of its officers or directors in
connection with the issuance or sale of the Contracts or the operation of each
Account.
8.3 Indemnification By The Trust
(a) The Trust 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 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.3) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Trust, which consent shall not be unreasonably withheld) or
litigation (including 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 expenses (or actions in respect
thereof) or settlements result from the gross negligence, bad faith or willful
misconduct of the Board or any member thereof, are related to the operations of
the Trust, and arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this Agreement or arise out
of or result from any other material breach of this Agreement by the Trust; as
limited by and in accordance with the provisions of Section 5.3(b) and 5.3(c)
hereof. It is understood and expressly stipulated that neither the holders of
shares of the Trust nor any Trustee, officer, agent or employee of the Trust
shall be personally liable hereunder, nor shall any resort be had to other
private property for the satisfaction of any claim or obligation hereunder, but
the Trust only shall be liable.
(b) The Trust shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against any Indemnified Party as such may
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arise from such Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties or by reason of
such Indemnified Party's reckless disregard of obligations and duties under this
Agreement or to the Company, the Trust, LASC or each Account, whichever is
applicable.
(c) The Trust shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Trust in writing 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 such Indemnified Party (or
after such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the Trust of any such claim shall not
relieve the Trust from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the Trust will be entitled to participate, at its own
expense, in the defense thereof. The Trust also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Trust to such party of the Trust's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Trust will not be liable to such
party under this Agreement for any legal or other expenses subsequently incurred
by such party independently in connection with the defense thereof other than
reasonable costs of investigation.
(d) The Company and LASC agree promptly to notify the Trust of the
commencement of any litigation or proceedings against it or any of its
respective officers or directors in connection with this Agreement, the issuance
or sale of the Contracts, with respect to the operation of either the Account,
or the sale or acquisition of share of the Trust.
ARTICLE IX. Applicable Law
9.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts, without giving effect to conflict of laws principles provided,
however, that if such laws or any of the provisions of this Agreement conflict
with applicable provisions of the 1940 Act, the latter shall control.
9.2. This Agreement shall be made subject to the provisions of the 1933,
1934, and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes,
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rules and regulations as the SEC may grant (including, but not limited to, the
Shared Funding Exemptive Order) and the terms hereof shall be interpreted and
construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement shall terminate:
(a) at the option of any party upon six months advance written notice to
the other parties; or
(b) at the option of the Company to the extent that shares of a Series are
not reasonably available to meet the requirements of the Variable Insurance
Products as determined by the Company, provided however, that such termination
shall apply only to the Series not reasonably available. Prompt notice of the
election to terminate for such cause shall be furnished by the Company; or
(c) at the option of the Trust, LASC or LFDI, if formal administrative
proceedings are instituted against the Company by the NASD, the SEC, the
Insurance Commissioner or any other regulatory body regarding the duties of the
Company under this Agreement or related to the sale of the Variable Insurance
Products, with respect to the operation of a Separate Account, or the purchase
of the Trust shares, provided, however, that the Trust or LFDI, as the case may
be, shall determine in its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon the ability
of the Company to perform its obligations under this Agreement; or
(d) at the option of the Company, if formal administrative proceedings are
instituted against the Trust, LASC or LFDI by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body, provided,
however, that the Company determines in its sole judgment exercised in good
faith, that any such administrative proceedings will have a material adverse
effect upon the ability of the Trust, LASC or LFDI to perform its respective
obligations under this Agreement; or
(e) with respect to a Separate Account, upon requisite authority to
substitute the shares of another investment company for shares of the
corresponding Series of the Trust in accordance with the terms of the Variable
Insurance Products for which those Series shares had been selected to serve as
the underlying investment media. The Company will give the Trust 30 days' prior
written notice the date of any proposed action to replace the Trust shares; or
(f) at the option of the Company, in the event any of the Trust's shares
are not registered, issued or sold in accordance with applicable federal and any
state law or such law precludes the use of
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such shares as the underlying investment media of the Variable Insurance
Products issued or to be issued by the Company; or
(g) at the option of the Company, if the Trust ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably believes that the
Trust may fail to so qualify; or
(h) at the option of the Company, if the Trust fails to meet the
diversification requirements specified in Article VI. hereof; or
(i) at the option of the Trust, LASC or LFDI, if:
(1) the Trust, LASC or LFDI, respectively, shall determine, in their
sole judgment reasonably exercised in good faith, that the Company has suffered
a material adverse change in its business or financial condition or is the
subject of material adverse publicity and that such material adverse publicity
will have a material adverse impact upon the business and operations of the
Trust, LASC or LFDI,
(2) the Trust, LASC or LFDI shall notify the Company in writing of
such determination and its intent to terminate this Agreement, and
(3) after considering the actions taken by the Company and any other
changes in circumstances since the giving of such notice, such determination of
the Trust, LASC or LFDI shall continue to apply on the 60th day following the
giving of such notice, which 60th day shall be the effective date of
termination; or
(j) at the option of the Company, if
(1) the Company shall determine, in its sole judgment reasonably
exercised in good faith, that the Trust, LASC or LFDI has suffered a material
adverse change in its business or financial condition or is the subject of
material adverse publicity and such material adverse publicity will have a
material adverse impact upon the business and operations of the Company or the
sale of the Contracts, and
(2) after making such determination, the Company has notified the
Trust, LASC and LFDI in writing of such determination and of its intent to
terminate the Agreement, and
(3) after considering the actions taken by the Trust, LASC and/or
LFDI and any other changes in circumstances since the giving of such notice,
such determination shall continue to apply on
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the 60th day following the giving of such notice, which 60th day shall be the
effective date of termination; or
(k) at the option of either the Trust or LFDI, if the Company gives the
Trust and LFDI the written notice specified in Section 10.3.(a). hereof and at
the time such notice was given there was no notice of termination outstanding
under any other provision of this Agreement; provided, however any termination
under this Section 10.1.(k). shall be effective 45 days after the notice
specified in 10.3.(a). was given; or
(l) upon another Party's failure to cure a material breach of any
provision of this Agreement within thirty (30) days after written notice
thereof.
10.2. It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 10.1.(a). may be exercised for any
reason or for no reason.
10.3. Notice Requirement. No termination of this Agreement shall be
effective unless and until the party terminating this Agreement gives prior
written notice to all other parties to this Agreement of its intent to
terminate, which notice shall set forth the basis for such termination.
Furthermore,
(a) in the event that any termination is based upon the provisions of
Article VII., or the provision of Section 10.1.(a), 10.1.(i), 10.1.(j) or
10.1.(k) of this Agreement, such prior written notice shall be given in advance
of the effective date of termination as required by such provisions; and
(b) in the event that any termination is based upon the provisions of
Section 10.1.(c) or 10.1.(d) of this Agreement, such prior written notice shall
be given at least ninety (90) days before the effective date of termination.
10.4. Effect of Termination. Notwithstanding any termination of this
Agreement, the Trust, LASC and LFDI shall, at the option of the Company,
continue to make available additional shares of the Trust pursuant to the terms
and conditions of this Agreement, for all Variable Insurance Products in effect
on the effective date of termination of this Agreement (hereinafter referred to
as "Existing Products"). Specifically, without limitation, the Owners of the
Existing Products shall be permitted to reallocate investments in the Trust,
redeem investments in the Trust and/or invest in the Trust upon the making of
additional purchase payments under the Existing Products. The parties agree that
this Section 10.4 shall not apply to any terminations under Article VII and the
effect of such Article VII terminations shall be governed by Article VII of this
Agreement.
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ARTICLE XI. Notices
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 Company:
Sage Life Assurance of America, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esquire
If to the Trust:
c/o Colonial Management Associates, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Secretary
If to LASC:
c/o Keyport Life Insurance Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: Secretary
If to LFDI:
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
With a copy to: General Counsel
ARTICLE XII. Miscellaneous
12.1. All persons dealing with the Trust must look solely to the property
of the Trust for the enforcement of any claims against the Trust hereunder and
otherwise understand that the Trustees, officers, agents or shareholders of the
Trust shall have no personal liability for any obligations entered into by or on
behalf of the Trust.
12.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the Owners and all information reasonably identified as confidential in
writing be any other party hereto and, except as permitted by this Agreement,
shall not disclose, disseminate or utilize such names and addresses and other
confidential information until such time as it may come into the public domain
without the express written consent of the affected party.
12.3. 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.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be effected thereby.
12.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD, the Internal Revenue Service and state insurance regulators) and shall
permit each other and such authorities reasonable access to its books and
records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
12.7. The Trust and LFDI agree that to the extent any advisory or other
fees received by the Trust, LFDI, or LASC are determined to be unlawful in
appropriate legal or administrative proceedings, the Trust shall indemnify and
reimburse the Company for any out-of-pocket expenses and
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actual damages the Company has incurred as a result of any such proceeding,
provided however that the provisions of Section 8.2(b) and 8.2(c) of this
Agreement. shall apply to such indemnification and reimbursement obligation.
Such indemnification and reimbursement obligation shall be in addition to any
other indemnification and reimbursement obligations of the Trust under this
Agreement.
12.8. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligation,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
12.9. Except as otherwise expressly provided in this Agreement, neither
the Trust, its investment adviser, its principal underwriter, or any affiliates
thereof, or LFII, shall use any trademark, trade name, service ▇▇▇▇ or logo of
the Company or any of its affiliates, or any variation of any such trademark,
trade name, service ▇▇▇▇ or logo, without the Company's prior written consent,
the granting of which shall be at the Company's sole option.
12.10. Except as otherwise expressly provided in this Agreement, neither
the Company nor any of its affiliates shall use any trademark, trade name,
service ▇▇▇▇ or logo of the Trust, its investment adviser, its principal
underwriter, or any affiliates thereof, or LFII, or any variation of any such
trademark, trade name, service ▇▇▇▇ or logo, without the Trust's prior written
consent, the granting of which shall be at the Trust's sole option.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by its duly authorized officer and
its seal to be hereunder affixed hereto as of the date first set forth above.
SAGE LIFE ASSURANCE OF AMERICA, INC.
By:
Title:
LIBERTY VARIABLE INVESTMENT TRUST
By:
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Title:
LIBERTY ADVISORY SERVICES CORP.
By:
Title:
LIBERTY FUNDS DISTRIBUTOR, INC.
By:
Title:
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SCHEDULE A
Trust Series Available Under the Variable Insurance Products
[list Series]
Separate Accounts Utilizing the Series
[list Separate Accounts]
Variable Insurance Products Funded By the Separate Account
[list Variable Insurance Products]
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