EXHIBIT 10(f)
EVERGREEN VARIABLE ANNUITY TRUST
PARTICIPATION AGREEMENT
THIS AGREEMENT is made this ____ day of __________, 2000
between EVERGREEN VARIABLE ANNUITY TRUST, an open-end management
investment company organized as a Delaware business trust (the
"Trust"), and _________________________, a life insurance company
organized under the laws of the State of __________ (the ACompany"),
on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A, as may be amended from time to
time (the "Accounts").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management
investment company under the Investment Company Act of 1940, as
amended (the "1940 Act"), and the offer and sale of its shares are
registered under the Securities Act of 1933, as amended (the "1933
Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for
separate accounts established for variable life insurance policies
and variable annuity contracts to be offered by insurance companies
that have entered into participation agreements with the Trust (the
"Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into
several series of shares, each series representing an interest in a
particular managed portfolio of securities and other assets (the
"Portfolios"); and
WHEREAS, the Trust has obtained an order from the Securities and
Exchange Commission ("Commission") granting Participating Insurance
Companies and their separate account(s) exemptions from the
provisions of Section(s) 9(a), 13(a), 15(a) and 15(b) of 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 nonaffiliated life insurance companies and
certain qualified pension and retirement plans (the "Shared Trust
Exemptive Order"); and
WHEREAS, the Company has registered or will register under the
1933 Act certain variable life insurance policies and/or variable
annuity contracts identified by the form number(s) listed on Schedule
A, as may be amended from time to time (the "Contracts"); and
WHEREAS, the Company has registered or will register each
Account as a unit investment trust under the 1940 Act; and
WHEREAS, each Account is a duly organized, validly existing
segregated asset account, established by resolution of the Board of
Directors of the Company on the date shown for that Account on
Schedule A, to set aside and invest assets attributable to the
Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, the Company intends to purchase shares of the
Portfolios at net asset value on behalf of each Account to fund the
Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the
parties agree as follows:
ARTICLE I
Sale of Trust Shares
1.1. The Trust shall make shares of its Portfolios available
to the Accounts at the net asset value next computed after receipt of
such purchase order by the Trust (or its agent), as established in
accordance with the provisions of the then current prospectus of the
Trust. Shares of a particular Portfolio of the Trust shall be
ordered in such quantities and at such times as determined by the
Company to be necessary to meet the requirements of the Contracts.
The trustees of the Trust (the "Trustees") 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 acting in good faith and in light of their
fiduciary duties under federal and any applicable state laws,
necessary and in the best interest of the shareholders of such
Portfolio.
1.2. The Trust will redeem any full or fractional shares of
any Portfolio when requested by the Company on behalf of an Account
at the net asset value next computed after receipt by the Trust (or
its agent) of the request for redemption, as established in
accordance with the provisions of the then current prospectus of the
Trust. The Trust shall make payment for such shares in the manner
established from time to time by the Trust, but in no event shall
payment be delayed for a greater period than is permitted by the 1940
Act.
1.3. For the purposes of Sections 1.1. and 1.2., the Trust
hereby appoints the Company as its agent for the limited purpose of
receiving and accepting purchase and redemption orders resulting from
investment in and payments under the Contracts. Receipt by the
Company shall constitute receipt by the Trust provided that: (a) such
orders are received by the Company in good order prior to the close
of the regular trading session of the New York Stock Exchange, and
(b) the Trust receives notice of such orders by 9:30 a.m., New York
time, on the next following Business Day. "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.
1.4. Purchase orders that are transmitted to the Trust in
accordance with Section 1.3. shall be paid for on the same Business
Day that the Trust receives notice of the order. Payments shall be
made in federal funds transmitted by wire.
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1.5. The Trust shall furnish prompt notice to the Company of
any income dividends or capital gain distributions payable on shares
of any Portfolio. The Company hereby elects to receive all such
income dividends and capital gain distributions as are payable on a
Portfolio's shares in additional shares of that Portfolio. The Trust
shall notify the Company of the number of shares so issued as payment
of such dividends and distributions.
1.6 The Trust shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as
reasonably practical after the net asset value per share is
calculated and shall use its best efforts to make such net asset
value per share available by 7:00 p.m., New York time.
1.7. The Trust agrees that its shares will be sold only to
Participating Insurance Companies and their separate accounts and to
certain qualified pension and retirement plans to the extent
permitted by the Shared Trust Exemptive Order. No shares of any
Portfolio will be sold directly to the general public. The Company
agrees that the Trust shares will be used only for the purposes of
funding the Contracts and Accounts listed in Schedule A, as amended
from time to time.
1.8. The Trust agrees that all Participating Insurance
Companies shall have the obligations and responsibilities regarding
pass-through voting and conflicts of interest corresponding to those
contained in Section 2.12. and Article IV of this Agreement.
ARTICLE II
Obligations of the Parties
2.1. The Trust shall bear the costs of registering and
qualifying the Trust's shares, and of preparing and filing the
Trust's prospectus, registration statement, Trust sponsored proxy
materials (or similar materials such as voting instruction
solicitation materials), reports to shareholders, and all statements
and notices required by federal or state law. The Trust shall pay
all taxes on the issuance and/or transfer of the Trust's shares.
2.2. The Trust shall bear the printing costs (or duplicating
costs with respect to the statement of additional information)
associated with distributing the Trust's current prospectus,
statement of additional information, annual report, semi-annual
report, Trust sponsored proxy material or other shareholder
communications, including any amendments or supplements to any of the
foregoing, to the extent required to be provided by the Trust to its
then-current shareholders. The Trust shall not bear any costs of
preparing, printing, recording, taping or disseminating sales
literature or other promotional materials or the costs of printing
and mailing prospective Contract owners copies of the Trust's
prospectus, statement of additional information, periodic reports or
other printed materials.
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2.3. The Trust shall provide the Company (at the Company's
expense) with as many copies of the Trust's current prospectus as the
Company may reasonably request for distribution to prospective
purchasers of Contracts. If requested by the Company in lieu
thereof, the Trust shall provide such documentation (including a
final copy of the current prospectus 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 the prospectus for
the Trust is amended) to have the prospectus for the Contracts and
the Trust's prospectus printed together in one document (at the
Company's expense).
2.4. The Company will bear the costs of registering and
qualifying the Accounts for sale, printing (or duplicating costs with
respect to the statement of additional information) and mailing costs
associated with the delivery of the Accounts' current prospectuses
and statements of additional information, private placement
memoranda, annual and semi-annual reports, Contracts, Contract
applications, sales literature or other promotional material, Account
sponsored proxy materials and voting solicitation instructions.
2.4. The Company will bear the responsibility and correlative
expense for administrative and support services for Contract owners.
The Trust recognizes the Company as the sole shareholder of shares of
the Trust issued under this Agreement.
2.5. The Company agrees and acknowledges that one of the
Trust's advisers, Evergreen Asset Management Corp. ("Evergreen
Asset"), is the sole owner of the name and xxxx "Evergreen" and that
all use of any designation comprised in whole or in part of Evergreen
(an "Evergreen Xxxx") under this Agreement shall inure to the benefit
of Evergreen Asset. Except as provided in Section 2.6., the Company
shall not use any Evergreen Xxxx on its own behalf or on behalf of
the Accounts or Contracts in any registration statement,
advertisement, sales literature or other materials relating to the
Accounts or Contracts without the prior written consent of Evergreen
Asset. Upon termination of this Agreement for any reason, the
Company shall cease all use of any Evergreen Xxxx(s) as soon as
reasonably practicable.
2.6. The Company shall furnish, or cause to be furnished, to
the Trust or its designee, a copy of each Contract prospectus or
statement of additional information in which the Trust or its
investment advisers are named prior to the filing of such document
with the Commission. The Company shall also furnish, or shall cause
to be furnished, to the Trust or its designee, each piece of sales
literature or other promotional material including private placement
memoranda, in which the Trust or its investment advisers are named,
at least fifteen Business Days prior to its use. No such material
shall be used if the Trust or its designee reasonably objects to such
use within fifteen Business Days after receipt of such material.
2.7. The Company will provide to the Trust at least one
complete copy of each report, solicitation for voting instructions,
application for exemption, request for no-action relief, and any
amendment to any of the above (or any amendment to the registration
statement, prospectus,
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statement of additional information, piece of sales literature or
other promotional material) that relates to the Contracts or the
Account, contemporaneously with the filing of the document with the
Commission, the NASD, or other regulatory authorities.
2.8. For purposes of this Article II, the phrase Asales
literature or other promotional material" includes, but is not
limited to, advertisements, newspapers, magazines, or other
periodicals, 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, shareholder newsletters, 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, statements of
additional information, shareholder reports and proxy materials.
2.9. The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning
the Trust or its investment advisers in connection with the sale of
the Contracts other than information or representations contained in
and accurately derived from the registration statement or prospectus
for the Trust shares (as such registration statement and prospectus
may be amended or supplemented from time to time), annual and semi-
annual reports of the Trust, Trust-sponsored proxy statements, or in
sales literature or other promotional material approved by the Trust
or its designee, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its
designee.
2.10. The Trust shall furnish or cause to be furnished, to the
Company or its designee, a copy of each Trust prospectus or statement
of additional information in which the Company or the Accounts are
named prior to the filing of such document with the Commission. The
Trust 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 or the Accounts are named, at least
fifteen Business Days prior to its use. No such material shall be
used if the Company or its designee reasonably objects to such use
within fifteen Business Days after receipt of such material.
2.11. The Trust shall not give any information or make any
representations or statements on behalf of the Company or concerning
the Company, the Accounts or the Contracts other than information or
representations contained in and accurately derived from the
registration statement, prospectus or private placement memorandum
for the Contracts (as such registration statement, prospectus or
private placement memorandum may be amended or supplemented from time
to time), or in materials approved by the Company for distribution
including sales literature or other promotional materials, except as
required by legal process or regulatory authorities or with the
written permission of the Company.
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2.12. At the request of either party to this Agreement, the
other party will make available to the requesting party's independent
auditors and/or representatives of the appropriate regulatory
agencies, all records, data and access to operating procedures that
may be reasonably requested.
2.13. So long as, and to the extent that the Commission
interprets the 1940 Act to require pass-through voting privileges for
variable contract owners, the Company will provide pass-through
voting privileges to owners of policies whose cash values are
invested, through the Accounts, in shares of the Trust and shall
distribute all proxy material furnished by the Trust. The Trust
shall require all Participating Insurance Companies to calculate
voting privileges in the same manner and the Company shall be
responsible for assuring that the Accounts calculated voting
privileges in the manner established by the Trust. With respect to
each Account, the Company will vote shares of the Trust held by the
Account and for which no timely voting instructions from policy
owners are received as well as shares it owns that are held by that
Account, in the same proportion as those shares for which voting
instructions are received. The Company and its agents will in no way
recommend or oppose or interfere with the solicitation of proxies for
Trust shares held by Contract owners without the prior written
consent of the Trust, which consent may be withheld in the Trust's
sole discretion.
ARTICLE III
Representations and Warranties
3.1. The Company represents and warrants that it is an
insurance company duly organized and in good standing under the laws
of the State of ____________ and that it has legally and validly
established each Account as a segregated asset account under such law
on the dates set forth in Schedule A.
3.2. The Company represents and warrants that it has registered
or, prior to any issuance or sale of the Contracts, will register
each 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.
3.3. 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 prior to any issuance or sale of the Contracts, the
Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state law, and the sale of
the Contracts will comply in all material respects with state
insurance suitability requirements.
3.4. The Trust represents and warrants that it is duly
organized and validly existing under the laws of the State of
Delaware.
3.5. The Trust represents and warrants that the Trust shares
offered and sold pursuant to this Agreement will be registered under
the 1933 Act and that the Trust is registered under the
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1940 Act prior to any issuance or sale of such shares. The Trust
shall amend its registration statement 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 its shares for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Trust.
3.6. The Trust represents and warrants that the investments of
each Portfolio will comply with the diversification requirements set
forth in Section 817(h) of the Internal Revenue Code of 1986, as
amended (the "Code"), and the rules and regulations thereunder. In
the event of a breach of this Section 3.6 by the Trust, it will take
all reasonable steps to: (1) immediately notify the Company of such
breach, and (2) adequately diversify the Trust so as to achieve
compliance within the grace period afforded by Section 1.817-5(b) of
the rules and regulations under the Code.
3.7. The Company represents that the Contracts are currently
treated as annuity or life insurance contracts under applicable
provisions of the Code and warrants and agrees that it will make
every effort to maintain such treatment and that it will notify the
Trust 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.
ARTICLE IV
Potential Conflicts
4.1. The parties acknowledge that the Trust's shares may be
made available for investment to other Participating Insurance
Companies. In such event, the Trustees will monitor the Trust for
the existence of any material irreconcilable conflict between the
interests of the contract owners of all Participating Insurance
Companies. A material irreconcilable conflict may arise for a
variety of reasons, including: (a) an action by any state insurance
regulatory or other authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public
ruling, private letter ruling, no-action or interpretative letter, or
any similar action by insurance, tax, or securities regulatory
authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any
Portfolio are being managed; (e) a difference in voting instructions
given by variable annuity contract and variable life insurance
contract owners; or (f) a decision by an insurer to disregard the
voting instructions of contract owners. The Trustees shall promptly
inform the Company if they determine that a material irreconcilable
conflict exists and the implications thereof. The Trustees shall
have sole authority to determine whether a material irreconcilable
conflict exists and their determination shall be binding upon the
Company.
4.2. The Company agrees to promptly report any potential or
existing conflicts of which it is aware to the Trustees. The Company
will assist the Trustees in carrying out their
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responsibilities under the Shared Trust Exemptive Order and this
Article IV by providing the Trustees with all information reasonably
necessary for them to consider any issues raised including, but not
limited to, information as to a decision by the Company to disregard
Contract owner voting instructions.
4.3. If it is determined by a majority of the Trustees, or a
majority of the disinterested Trustees, that a material
irreconcilable conflict exists that affects the interests of Contract
owners, the Company shall, in cooperation with other Participating
Insurance Companies whose contract owners are also affected, at its
expense and to the extent reasonably practicable (as determined by
the Trustees) take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, which steps could
include: (a) withdrawing the assets allocable to some or all of the
Accounts from the Trust or any Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to)
another Portfolio of the Trust, or submitting the question of whether
or not such segregation should be implemented to a vote of all
affected Contract 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
Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option
of making such a change; and (b) establishing a new registered
management investment company or managed separate account and
obtaining any necessary approvals or orders of the Commission in
connection therewith.
4.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard Contract 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 Account's investment in
the Trust and terminate this Agreement with respect to such Account;
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 (6) months after the Trust gives written notice
that this provision is being implemented. Until the end of such six
(6) month period, the Trust shall continue to accept and implement
orders by the Company for the purchase and redemption of shares of
the Trust.
4.5. If any 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 Account's investment in the
Trust and terminate this Agreement with respect to such Account
within six (6) months after the Trust gives written notice that it
has 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 such six (6) month period,
the 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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4.6. For purposes of Sections 4.3. through 4.5. of this
Agreement, a majority of the disinterested Trustees shall determine
whether any proposed action adequately remedies any material
irreconcilable conflict. The Company shall not be required by
Section 4.3 to establish a new funding medium for the Contracts if
any offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the material
irreconcilable conflict. In the event that the Trustees determine
that any proposed action does not adequately remedy any material
irreconcilable conflict, then the Company will withdraw the Account's
investment in the Trust and terminate this Agreement within six (6)
months after the Trust gives written notice 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.
4.7. The Company shall at least annually submit to the Trustees
such reports, materials or data as the Trustees may reasonably
request so that the Trustees may fully carry out the duties imposed
upon them by the Shared Trust Exemptive Order and this Article IV.
Said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Trustees.
4.8. 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 and/or shared funding (as defined in the Shared
Trust Exemptive Order) on terms and conditions materially different
from those contained in the Shared Trust Exemptive Order, then the
Trust and/or the Participating Insurance Companies, 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.
ARTICLE V
Indemnification
5.1. The Company agrees to indemnify and hold harmless 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 AIndemnified Parties"
for purposes of this Section 5.1.) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Company) 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 or
regulation, or at common law or otherwise, insofar as such Losses are
related to the sale, acquisition, or redemption of the Trust's shares
or the Contracts and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in a
registration statement, prospectus or private placement
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memorandum for the Contracts or in the Contracts themselves or in sales
literature generated or approved by the Company relating to the
Contracts or Accounts (or any amendment or supplement to any of the
foregoing) (collectively, "Company 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 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
(b) 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
5.2.(a)) or wrongful conduct of the Company or persons under its
control, with respect to the sale, distribution or acquisition of the
Contracts or Trust shares; or
(c) 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 5.2.(a) 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
(d) 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
(e) arise out of or result from any material breach of any
representation, warranty or agreement made by the Company in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Company; or
(f) arise out of or result from negligence or wrongful
conduct in the Company's administration of the Accounts or the
Contracts.
5.2. The Trust agrees to indemnify and hold harmless the
Company and each of its directors, officers, employees and agents 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 5.2.) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Trust) 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 or
regulation, or at common law or otherwise, insofar as such Losses are
related to the sale, acquisition, or redemption of the Trust's shares
or the Contracts and:
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(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or prospectus for the Trust (or any amendment
or supplement thereto), (collectively, "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 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 Trust by or on behalf of the Company for
use in Trust Documents or otherwise for use in connection with the
sale of the Contracts or Trust shares; or
(b) arise out of or result from statements or
representations (other than statements or representations contained
in and accurately derived from Company Documents) or wrongful conduct
of the Trust or persons under its control, with respect to the sale,
distribution or acquisition of the Contracts or Trust shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Company
Documents 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 form written information
furnished to the Company by or on behalf of the Trust; or
(d) arise out of or result from any failure by the Trust to
provide the services or furnish the materials required under the
terms of this Agreement; or
(e) arise out of or result from any material breach of any
representation, warranty or agreement made by the Trust in this
Agreement or arise out of or result from any other material breach of
this Agreement by the Trust.
5.3. Neither the Company nor the Trust shall be liable under
the indemnification provisions of Section 5.1. or 5.2., as
applicable, with respect to any Losses incurred or assessed against
an indemnified party that 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 or duties under this Agreement.
5.4. Neither the Company nor the Trust shall be liable under
the indemnification provisions of Section 5.1. or 5.2., as
applicable, with respect to any claim made against an indemnified
party unless such indemnified party shall have notified the other
party in writing within a reasonable time after the summons, or other
first written notification, giving information of the nature of the
claim which shall have been served upon or otherwise received by such
indemnified party (or after such indemnified party shall have
received notice of service upon or other notification to any
designated agent), but failure to notify the party against whom
indemnification is sought of any such claim shall not relieve that
party from any liability which it may have to the indemnified party
in the absence of Sections 5.1. and 5.2. except to the extent
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that the indemnifying party has been prejudiced by such failure to give
notice.
5.5. In case any such action is brought against the indemnified
parties, the indemnifying party shall be entitled to participate, at
its own expense, in the defense of such action. The indemnifying
party also shall be entitled to assume the defense thereof, with
counsel reasonably satisfactory to the party named in the action.
After notice from the indemnifying party to the indemnified party of
an election to assume such defense, the indemnified party shall bear
the fees and expenses of any additional counsel retained by it, and
the indemnifying party will not be liable to the indemnified 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.
ARTICLE VI
Termination
6.1. This Agreement shall continue in full force and effect
until the first to occur of:
(a) termination by any party for any reason by six (6) months
advance written notice delivered to the other party; or
(b) termination by the Company by written notice to the Trust
with respect to any Portfolio based upon the Company's determination
that shares of such Portfolio are not reasonably available to meet
the requirements of the Contracts or not consistent with the
Company's obligations to Contract owners; provided, however, that
such a termination shall apply only to the Portfolio not reasonably
available and the Trust shall have ninety (90) days from the initial
notification by the Company of the deficiency to correct such
deficiency. If not cured within ninety (90) days, prompt written
notice of the election to terminate for such cause shall again be
furnished by the Company to the Trust; or
(c) termination by the Company by written notice to the Trust
with respect to any Portfolio in the event such Portfolio's shares
are not registered, issued or sold in accordance with applicable
state and/or federal law or such law precludes the use of such shares
as the underlying investment media of the Contracts issued or to be
issued by the Company; or
(d) termination by the Company by written notice to the Trust
with respect to any Portfolio in the event that the Trust ceases to
qualify as a Regulated Investment Company under Subchapter M of the
Code or any independent or resulting failure under Section 817
of the Code, or under any successor or similar provision of either,
or if the Company reasonably believes that the Trust may fail to so
qualify; or
(e) termination by the Trust by written notice to the Company if
the Trust shall
12
determine, in its sole judgment exercised in good faith, that the
Company and/or its affiliated companies has suffered a material
adverse change in its business, operations, financial condition
or prospects since the date of this Agreement or is the subject
of material adverse publicity and that material adverse change
or material adverse publicity will have a material adverse impact
upon the business and operations of the Company or the Trust; but
no such termination shall be effective under this subsection (e)
until the Company has been afforded a reasonable opportunity to
respond to a statement by the Trust concerning the reason for notice
of termination hereunder; or
(f) termination by the Company by written notice to the Trust if
the Company shall determine, in its sole judgment exercised in good
faith, that either the Trust or an investment adviser to the Trust
has suffered a material adverse change in its business, operations,
financial condition or prospects since the date of this Agreement or
is the subject of material adverse publicity and that material
adverse change or material adverse publicity will have a material
adverse impact upon the business and operations of the Trust; but no
such termination shall be effective under this subsection (f) until
the Trust has been afforded a reasonable opportunity to respond to a
statement by the Company concerning the reason for notice of
termination hereunder; or
(g) termination by the Trust in the event that formal
administrative proceedings are instituted against the Company by the
NASD, the Commission, an insurance commissioner or any other
regulatory body regarding the Company's duties under this Agreement
or related to the sale of the Contracts, the operation of any
Account, or the purchase of the Trust's shares; provided, however,
that the Trust determines in its sole judgement 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
(h) termination by the Company in the event that formal
administrative proceedings are instituted against the Trust by the
NASD, the Commission, any state securities or insurance department or
any other regulatory body regarding the Trust's duties under this
Agreement, provided, however, that the Company determines in its sole
judgement exercised in good faith, that any such administrative
proceedings will have a material adverse effect upon the ability of
the Trust to perform its obligations under this Agreement.
6.2. Notwithstanding any termination of this Agreement, the
Trust shall, at the option of the Company, continue to make available
additional shares of the Trust (or any Portfolio) pursuant to the
terms and conditions of this Agreement for all Contracts in effect on
the effective date of termination of this Agreement, provided that
the Company continues to pay the costs set forth in Article II.
6.3. The provisions of Article V shall survive the termination
of this Agreement, and the provisions of Article IV and Section 2.12.
shall survive the termination of this Agreement as long as shares of
the Trust are held on behalf of Contract owners in accordance with
Section 6.2.
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ARTICLE VII
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 Trust:
---------------
Evergreen Funds
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Legal Department
If to the Company:
-----------------
ARTICLE VIII
Miscellaneous
8.1. 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.
8.2. This Agreement may be executed simultaneously in two or
more counterparts, each of which taken together shall constitute one
and the same instrument.
8.3. 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 affected thereby.
8.4. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the
Commonwealth of Massachusetts.
14
8.5. The parties to this Agreement acknowledge and agree that
all liabilities of the Trust arising directly or indirectly under
this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of the Trust and that no Trustee,
officer, agent or holder of shares of beneficial interest of the
Trust shall be personally liable for any such liabilities.
8.6. Each party shall cooperate with each other party and all
appropriate governmental authorities (including without limitation
the Commission, 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 this
Agreement or the transactions contemplated hereby.
8.7. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights,
remedies and obligations, at law or in equity, which the parties
hereto are entitled to under state and federal laws.
8.8. The parties to this Agreement acknowledge and agree that
this Agreement shall not be exclusive in any respect.
8.9. This Agreement shall be binding upon and inure to the
benefit of the parties and their respective successors and assigns,
provided that no party may assign this Agreement without the prior
written consent of the other party.
8.10. No provisions of this Agreement may be amended or
modified in any manner except by a written agreement properly
authorized and executed by both parties.
IN WITNESS WHEREOF, the parties have each caused this Agreement
to be executed in its name and on its behalf by its duly authorized
representative as of the date and year first above written.
INSURANCE COMPANY EVERGREEN VARIABLE ANNUITY TRUST
-------------
By: By:
--------------------- ---------------------
Name: Name:
Title: Title:
15
SCHEDULE A
Separate Accounts, Contracts and Associated Portfolios
------------------------------------------------------
Name of Separate Accounts and Date
Established by Board of Directors
---------------------------------
Contracts Funded by Separate Account and Form Number
----------------------------------------------------
Designated Portfolios
---------------------
