PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into this 17th day of February, 1998 by
and between XXXXXXX XXXXX VARIABLE INSURANCE TRUST, an unincorporated business
trust formed under the laws of Delaware (the "Trust"), XXXXXXX, SACHS & CO., a
New York limited partnership (the "Distributor"), and SUN LIFE ASSURANCE COMPANY
OF CANADA (U.S.), a Delaware life insurance company (the "Company"), on its own
behalf and on behalf of each separate account of the Company identified herein.
WHEREAS, the Trust is a series-type mutual fund offering shares of
beneficial interest (the "Trust shares") consisting of one or more separate
series ("Series") of shares, each such Series representing an interest in a
particular investment portfolio of securities and other assets (a "Fund"), and
which Series may be subdivided into various classes ("Classes") with each such
Class supporting a distinct charge and expense arrangement; and
WHEREAS, the Trust was established for the purpose of serving as an
investment vehicle for insurance company separate accounts supporting variable
annuity contracts and variable life insurance policies to be offered by
insurance companies and may also be utilized by qualified retirement plans; and
WHEREAS, the Distributor has the exclusive right to distribute Trust shares
to qualifying investors; and
WHEREAS, the Company desires that the Trust serve as an investment vehicle
for a certain separate account(s) of the Company and the Distributor desires to
sell shares of certain Series and/or Class(es) to such separate account(s);
NOW, THEREFORE, in consideration of their mutual promises, the Trust, the
Distributor and the Company agree as follows:
ARTICLE I
ADDITIONAL DEFINITIONS
1.1. "Account" -- the separate account of the Company described more
specifically in Schedule 1 to this Agreement. If more than one separate account
is described on Schedule 1, the term shall refer to each separate account so
described.
1.2. "Business Day" -- each day that the Trust is open for business as
provided in the Trust's Prospectus.
1.3. "Code" -- the Internal Revenue Code of 1986, as amended, and any
successor thereto.
1.4. "Contracts" -- the class or classes of variable annuity contracts
and/or variable life insurance policies issued by the Company and described more
specifically on Schedule 2 to this Agreement.
1.5. "Contract Owners" -- the owners of the Contracts, as distinguished
from all Product Owners.
1.6. "Participating Account" -- a separate account investing all or a
portion of its assets in the Trust, including the Account.
1.7. "Participating Insurance Company" -- any insurance company investing
in the Trust on its
behalf or on behalf of a Participating Account, including the Company.
1.8. "Participating Plan" -- any qualified retirement plan investing in
the Trust.
1.9. "Participating Investor" -- any Participating Account, Participating
Insurance Company or Participating Plan, including the Account and the Company.
1.10. "Products" -- variable annuity contracts and variable life insurance
policies supported by Participating Accounts, including the Contracts.
1.11. "Product Owners"-- owners of Products, including Contract Owners.
1.12. "Trust Board" -- the board of trustees of the Trust.
1.13. "Registration Statement" -- with respect to the Trust shares or a
class of Contracts, the registration statement filed with the SEC to register
such securities under the 1933 Act, or the most recently filed amendment
thereto, in either case in the form in which it was declared or became
effective. The Contracts' Registration Statement for each class of Contracts is
described more specifically on Schedule 2 to this Agreement. The Trust's
Registration Statement is filed on Form N-1A (File No. 333-35883).
1.14. "1940 Act Registration Statement" -- with respect to the Trust or
the Account, the registration statement filed with the SEC to register such
person as an investment company under the 1940 Act, or the most recently filed
amendment thereto. The Account's 1940 Act Registration Statement is described
more specifically on Schedule 2 to this Agreement. The Trust's 1940 Act
Registration Statement is filed on Form N-1A (File No. 811-08361).
1.15. "Prospectus" -- with respect to shares of a Series (or Class) of the
Trust or a class of Contracts, each version of the definitive prospectus or
supplement thereto filed with the SEC pursuant to Rule 497 under the 1933 Act.
With respect to any provision of this Agreement requiring a party to take action
in accordance with a Prospectus, such reference thereto shall be deemed to be
the version for the applicable Series, Class or Contracts last so filed prior to
the taking of such action. For purposes of Article IX, the term "Prospectus"
shall include any statement of additional information incorporated therein.
1.16. "Statement of Additional Information" -- with respect to the shares
of the Trust or a class of Contracts, each version of the definitive statement
of additional information or supplement thereto filed with the SEC pursuant to
Rule 497 under the 1933 Act. With respect to any provision of this Agreement
requiring a party to take action in accordance with a Statement of Additional
Information, such reference thereto shall be deemed to be the last version so
filed prior to the taking of such action.
1.17. "SEC" -- the Securities and Exchange Commission.
1.18. "NASD" -- the National Association of Securities Dealers, Inc.
1.19. "1933 Act" -- the Securities Exchange Act of 1933, as amended.
1.20. "1940 Act" -- the Investment Company Act of 1940, as amended.
ARTICLE II
SALE OF TRUST SHARES
2.1. AVAILABILITY OF SHARES
(a) The Trust has granted to the Distributor exclusive authority to
distribute the Trust
shares and to select which Series or Classes of Trust shares shall be made
available to Participating Investors. Pursuant to such authority, and
subject to Article X hereof, the Distributor shall make available to the
Company for purchase on behalf of the Account, shares of the Series and
Classes listed on Schedule 3 to this Agreement, such purchases to be
effected at net asset value in accordance with Section 2.3 of this
Agreement. Such Series and Classes shall be made available to the Company
in accordance with the terms and provisions of this Agreement until this
Agreement is terminated pursuant to Article X or the Distributor suspends
or terminates the offering of shares of such Series or Classes in the
circumstances described in Article X.
(b) Notwithstanding clause (a) of this Section 2.1, Series or
Classes of Trust shares in existence now or that may be established in the
future will be made available to the Company only as the Distributor may so
provide, subject to the Distributor's right, set forth in Article X to
suspend or terminate the offering of shares of any Series or Class or to
terminate this Agreement.
(c) The parties acknowledge and agree that: (i) the Trust may
revoke the Distributor's authority pursuant to the terms and conditions of
its distribution agreement with the Distributor; and (ii) the Trust
reserves the right in its sole discretion to refuse to accept a request for
the purchase of Trust shares.
2.2. REDEMPTIONS. The Trust shall redeem, at the Company's request, any
full or fractional Trust shares held by the Company on behalf of the Account,
such redemptions to be effected at net asset value in accordance with Section
2.3 of this Agreement. Notwithstanding the foregoing, (i) the Company shall not
redeem Trust shares attributable to Contract Owners except in the circumstances
permitted in Article X of this Agreement, and (ii) the Trust may delay
redemption of Trust shares of any Series or Class to the extent permitted by the
1940 Act, any rules, regulations or orders thereunder, or the Prospectus for
such Series or Class.
2.3. PURCHASE AND REDEMPTION PROCEDURES
(a) The Trust hereby appoints the Company as an agent of the Trust
for the limited purpose of receiving purchase and redemption requests on
behalf of the Account (but not with respect to any Trust shares that may be
held in the general account of the Company) for shares of those Series or
Classes made available hereunder, based on allocations of amounts to the
Account or subaccounts thereof under the Contracts, other transactions
relating to the Contracts or the Account and customary processing of the
Contracts. Receipt of any such requests (or effectuation of such
transaction or processing) on any Business Day by the Company as such
limited agent of the Trust prior to the Trust's close of business as
defined from time to time in the applicable Prospectus for such Series or
Class (which as of the date of execution of this Agreement is defined as
the close of regular trading on the New York Stock Exchange (normally 4:00
p.m. New York Time)) shall constitute receipt by the Trust on that same
Business Day, provided that the Company uses its best efforts to provide
actual and sufficient notice of such request to the Trust by 8:00 a.m. New
York Time on the next following Business Day and the Trust receives such
notice no later than 9:00 a.m. New York Time on such Business Day. Such
notice may be communicated by telephone to the office or person designated
for such notice by the Trust, and shall be confirmed by facsimile.
(b) The Company shall pay for shares of each Series or Class on the
same day that it provides actual notice to the Trust of a purchase request
for such shares. Payment for Series or Class shares shall be made in
Federal funds transmitted to the Trust by wire to be received by the Trust
by 12:00 noon New York Time on the day the Trust receives actual notice of
the purchase request for Series or Class shares (unless the Trust
determines and so advises the Company that sufficient proceeds are
available from redemption of shares of other Series or Classes effected
pursuant to redemption requests tendered by the Company on behalf of the
Account). In no event may proceeds from the redemption of shares requested
pursuant to an order received by the Company after the
Trust's close of business on any Business Day be applied to the payment for
shares for which a purchase order was received prior to the Trust's close
of business on such day. If the issuance of shares is canceled because
Federal funds are not timely received, the Company shall indemnify the
respective Fund and Distributor with respect to all costs, expenses and
losses relating thereto. Upon the Trust's receipt of Federal funds so
wired, such funds shall cease to be the responsibility of the Company and
shall become the responsibility of the Trust. If Federal funds are not
received on time, such funds will be invested, and Series or Class shares
purchased thereby will be issued, as soon as practicable after actual
receipt of such funds but in any event not on the same day that the
purchase order was received.
(c) Payment for Series or Class shares redeemed by the Account or
the Company shall be made in Federal funds transmitted by wire to the
Company or any other person properly designated in writing by the Company,
such funds normally to be transmitted by 6:00 p.m. New York Time on the
next Business Day after the Trust receives actual notice of the redemption
order for Series or Class shares (unless redemption proceeds are to be
applied to the purchase of Trust shares of other Series or Classes in
accordance with Section 2.3(b) of this Agreement), except that the Trust
reserves the right to redeem Series or Class shares in assets other than
cash and to delay of redemption proceeds to the extent permitted by the
1940 Act, any rules or regulations or orders thereunder, or the applicable
Prospectus. The Trust shall not bear any responsibility whatsoever for the
proper disbursement or crediting of redemption proceeds by the Company; the
Company alone shall be responsible for such action.
(d) Any purchase or redemption request for Series or Class shares
held or to be held in the Company's general account shall be effected at
the net asset value per share next determined after the Trust's actual
receipt of such request, provided that, in the case of a purchase request,
payment for Trust shares so requested is received by the Trust in Federal
funds prior to close of business for determination of such value, as
defined from time to time in the Prospectus for such Series or Class.
(e) Prior to the first purchase of any Trust shares hereunder, the
Company and the Trust shall provide each other with all information
necessary to effect wire transmissions of Federal funds to the other party
and all other designated persons pursuant to such protocols and security
procedures as the parties may agree upon. Should such information change
thereafter, the Trust and the Company, as applicable, shall notify the
other in writing of such changes, observing the same protocols and security
procedures, at least three Business Days in advance of when such change is
to take effect. The Company and the Trust shall observe customary
procedures to protect the confidentiality and security of such information,
but neither party shall be liable to the other party for any breach of
security.
(f) The procedures set forth herein are subject to any additional
terms set forth in the applicable Prospectus for the Series or Class or by
the requirements of applicable law.
2.4. NET ASSET VALUE. The Trust shall inform the Company of the net asset
value per share for each Series or Class available to the Company as soon as
reasonably practicable after the net asset value per share for such Series or
Class is calculated. The Trust shall calculate such net asset value in
accordance with the Prospectus for such Series or Class.
2.5. DIVIDENDS AND DISTRIBUTIONS. The Trust shall furnish notice to the
Company as soon as reasonably practicable of any income dividends or capital
gain distributions payable on any Series or Class shares. The Company, on its
behalf and on behalf of the Account, hereby elects to receive all such dividends
and distributions as are payable on any Series or Class shares in the form of
additional shares of that Series or Class. The Company reserves the right, on
its behalf and on behalf of the Account, to revoke this election and to receive
all such dividends and capital gain distributions in cash; to be effective, such
revocation must be made in writing and received by the Trust at least ten
Business Days prior to a dividend or distribution date. The Trust shall notify
the Company of the number of Series or Class shares so issued as payment of such
dividends and distributions.
2.6. BOOK ENTRY. Issuance and transfer of Trust shares shall be by book
entry only. Stock certificates will not be issued to the Company or the Account.
Purchase and redemption orders for Trust shares shall be recorded in an
appropriate ledger for the Account or the appropriate subaccount of the Account.
2.7. PRICING ERRORS. Any material errors in the calculation of net asset
value, dividends or capital gain information shall be reported immediately upon
discovery to the Company. An error shall be deemed "material" based on the
Trust's reasonable interpretation of the SEC's position and policy with regard
to materiality, as it may be modified from time to time. Neither the Trust, any
Fund, the Distributor, nor any of their affiliates shall be liable for any
information provided to the Company pursuant to this Agreement which information
is based on incorrect information supplied by or on behalf of the Company to the
Trust or the Distributor.
2.8. LIMITS ON PURCHASERS. The Distributor and the Treat shall sell Trust
shares only to insurance companies and their separate accounts and to persons or
plans ("Qualified Persons") that qualify to purchase shares of the Trust under
Section 817(h) of the Code and the regulations thereunder without impairing the
ability of the Account to consider the portfolio investments of the Trust as
constituting investments of the Account for the purpose of satisfying the
diversification requirements of Section 817(h). The Distributor and the Trust
shall not sell Trust shares to any insurance company or separate account unless
an agreement complying with Article VIII of this Agreement is in effect to
govern such sales. The Company hereby represents and warrants that it and the
Account are Qualified Persons.
ARTICLE III
REPRESENTATIONS AND WARRANTIES
3.1. COMPANY. The Company represents and warrants that: (i) the Company
is an insurance company duly organized and in good standing under Delaware
insurance law; (ii) the Account is a validly existing separate account, duly
established and maintained in accordance with applicable law; (iii) the
Account's 1940 Act Registration Statement has been or will be filed with the SEC
in accordance with the provisions of the 1940 Act and the Account is duly
registered as a unit investment trust thereunder; (iv) the Contracts'
Registration Statement has been declared effective by the SEC; (v) the Contracts
will be issued in compliance in all material respects with all applicable
Federal and state laws; (vi) the Contracts have been filed, qualified and/or
approved for sale, as applicable, under the insurance laws and regulations of
the states in which the Contracts will be offered; (vii) the Account will
maintain its registration under the 1940 Act and will comply in all material
respects with the 1940 Act; (viii) the Contracts currently are, and at the time
of issuance and for so long m they are outstanding will be, treated as annuity
contracts or life insurance policies, whichever is appropriate, under applicable
provisions of the Code; and (ix) the Company's entering into and performing its
obligations under this Agreement does not and will not violate its charter
documents or by-laws, rules or regulations, or any agreement to which it is a
party. The Company will notify the Trust promptly if for any reason it is unable
to perform its obligations under this Agreement.
3.2. TRUST. The Trust represents and warrants that: (i) the Trust is an
unincorporated business trust duly formed and validly existing under the
Delaware law; (ii) the Trust's 1940 Act Registration Statement has been filed
with the SEC in accordance with the provisions of the 1940 Act and the Trust is
duly registered as an open-end management investment thereunder; (iii) the
Trust's Registration Statement has been declared effective by the SEC; (iv) the
Trust shares will be issued in compliance in all material respects with all
applicable federal and state securities laws; (v) the Trust will remain
registered under and will comply in all material respects with the 1940 Act
during the term of this Agreement; (vi) each Fund of the Trust intends to
qualify as a "regulated investment company" under Subchapter M of the Code and
to comply with the diversification standards prescribed in Section 817(h) of the
Code and the regulations thereunder; and (vii) the investment policies of each
Fund comply in all material respects with any investment restrictions set forth
on Schedule 4 to this Agreement. The Trust, however, makes no representation as
to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) otherwise complies with the insurance laws or regulations of any
state.
3.3. DISTRIBUTOR. The Distributor represents and warrants that: (i) the
Distributor is a limited partnership duly organized and in good standing under
New York law; (ii) the Distributor is registered as a broker-dealer under
federal and applicable state securities laws and is a member of the NASD; and
(iii) the Distributor is registered as an investment adviser under federal
securities laws.
3.4. LEGAL AUTHORITY. Each party represents and warrants that the
execution and delivery of this Agreement and the consummation of the
transactions contemplated herein have been duly authorized by all necessary
corporate, partnership or trust action, as applicable, by such party, and, when
so executed and delivered, this Agreement will be the valid and binding
obligation of such party enforceable in accordance with its terms.
3.5. BONDING REQUIREMENT. Each party represents and warrants that all of
its directors, officers, partners and employees dealing with the money and/or
securities of the Trust are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the Trust in an
amount not less than the amount required by the applicable rules of the NASD and
the federal securities laws. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable bonding company. All
parties shall make all reasonable efforts to see that this bond or another bond
containing these provisions is always in effect, shall provide evidence thereof
promptly to any other party upon written request therefor, and shall notify the
other parties promptly in the event that such coverage no longer applies.
ARTICLE IV
REGULATORY REQUIREMENTS
4.1. TRUST FILINGS. The Trust shall amend the Trust's Registration
Statement and the Trust's 1940 Act Registration Statement from time to time as
required in order to effect the continuous offering of Trust shares in
compliance with applicable law and to maintain the Trust's registration under
the 1940 Act for so long as Trust shares are sold.
4.2. CONTRACTS FILINGS. The Company shall amend the Contracts'
Registration Statement and the Account's 1940 Act Registration Statement from
time to time as required in order to effect the continuous offering of the
Contracts in compliance with applicable law or as may otherwise be required by
applicable law, but in any event shall maintain a current effective Contracts'
Registration Statement and the Account's registration under the 1940 Act for so
long as the Contracts are outstanding unless the Company has supplied the Trust
with an SEC no-action letter or opinion of counsel satisfactory to the Trust's
counsel to the effect that maintaining such Registration Statement on a
concurrent basis is no longer required. The Company shall be responsible for
filing all such Contract forms, applications, marketing materials and other
documents relating to the Contracts and/or the Account with state insurance
commissions, as required or customary, and shall use its best efforts: (i) to
obtain any and all approval thereof, under applicable state insurance law, of
each state or other jurisdiction in which Contracts are or may be offered for
sale; and (ii) to keep such approvals in effect for so long as the Contracts are
outstanding.
4.3. VOTING OF TRUST SHARES. With respect to any matter put to vote by
the holders of Trust shares ("Voting Shares"), the Company will provide
"pass-through" voting privileges to owners of Contracts registered with the SEC
as long as the 1940 Act requires such privileges in such cases. In cases in
which "pass-through" privileges apply, the Company will (i) solicit voting
instructions from Contract Owners of SEC-registered Contracts; (ii) vote Voting
Shares attributable to Contract Owners in accordance with instructions or
proxies timely received from such Contract Owners; and (iii) vote Voting Shares
held by it that are not attributable to reserves for SEC-registered Contracts or
for which it has not received timely voting instructions in the same proportion
as instructions received in a timely fashion from Owners of SEC-registered
Contracts. The Company shall be responsible for ensuring that it calculates
"pass-through" votes for the
Account in a manner consistent with the provisions set forth above, the
Prospectuses for the Contracts and the Trust, and with other Participating
Insurance Companies. The Trust and the Distributor undertake to require every
other Participating Insurance Company to vote Shares held by it in accordance
with this Section 4.3. The Distributor and the Trust will inform the Company if
it learns that any Participating Insurance Company is calculating votes in a
manner different than set forth in this Section 4.3. Neither the Company nor any
of its affiliates will in any way recommend action in connection with, or oppose
or interfere with, the solicitation of proxies for the Trust shares held for
such Contract Owners, except with respect to matters as to which the Company has
the right under Rule 6e-2 or 6e-3(T) under the 1940 Act, to vote Voting Shares
without regard to voting instructions from Contract Owners.
4.4. STATE INSURANCE RESTRICTIONS. The Company acknowledges and agrees
that it is the responsibility of the Company and other Participating Insurance
Companies to determine investment restrictions and any other restrictions,
limitations or requirements under state insurance law applicable to any Fund or
the Trust or the Distributor, and that neither the Trust nor the Distributor
shall bear any responsibility to the Company, other Participating Insurance
Companies or any Product Owners for any such determination or the correctness of
such determination. Schedule 4 sets forth the investment restrictions that the
Company and/or other Participating Insurance Companies have determined are
applicable to any Fund and with which the Trust has agreed to comply of the date
of this Agreement. The Company shall inform the Trust of any investment
restrictions imposed by state insurance law that the Company determines may
become applicable to the Trust or a Fund from time to time as a result of the
Account's investment therein, other than those set forth on Schedule 4 to this
Agreement. Upon receipt of any such information from the Company or any other
Participating Insurance Company, the Trust shall determine whether it is in the
best interests of shareholders to comply with any such restrictions. The Trust
shall inform the Company of any investment restrictions brought to its attention
by any other Participating Insurance Company. If the Trust determines that it is
not in the best interests of shareholders (it being understood that
"shareholders" for this purpose shall mean Product Owners) to comply with a
restriction determined to be applicable by the Company or another Participating
Insurance Company, the Trust shall so inform the Company, and the Trust and the
Company shall discuss alternative accommodations in the circumstances. If the
Trust determines that it is in the best interests of shareholders to comply with
such restrictions, the Trust and the Company shall amend Schedule 4 to this
Agreement to reflect such restrictions, subject to obtaining any required
shareholder approval thereof.
4.5. DRAFTS OF FILINGS. The Trust and the Company shall provide to each
other copies of draft versions of any Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statements, solicitations for voting instructions,
applications for exemptions, requests for no-action letters, and all amendments
or supplements to any of the above, prepared by or on behalf of either of them
and that mentions the other party by name. Such drafts shall be provided to the
other party at least 5 business days in advance of filing such materials with
regulatory authorities in order to allow such other party a reasonable
opportunity to review the materials.
4.6. COPIES OF FILINGS. The Trust and the Company shall provide to each
other at least one complete copy of all Registration Statements, Prospectuses,
Statements of Additional Information, periodic and other shareholder or Contract
Owner reports, proxy statement, solicitations of voting instructions,
applications for exemptions, requests for no-action letters, and all amendments
or supplements to any of the above, that relate to the Trust, the Contracts or
the Account, as the case may be, promptly after the filing by or on behalf of
each such party of such document with the SEC or other regulatory authorities
(it being understood that this provision is not intended to require the Trust to
provide to the Company copies of any such documents prepared, filed or used by
Participating Investors other than the Company and the Account).
4.7. REGULATORY RESPONSES. Each party shall promptly provide to all other
parties copies of responses to no-action requests, notices, orders and other
rulings received by such party with respect to any filing covered by Section 4.6
of this Agreement.
4.8. COMPLAINTS AND PROCEEDINGS
(a) The Trust and/or the Distributor shall immediately notify the
Company of: (i) the issuance by any court or regulatory body of any stop
order, cease and desist order, or other similar order (but not including an
order of a regulatory body exempting or approving a proposed transaction or
arrangement) with respect to the Trust's Registration Statement or the
Prospectus of any Series or Class; (ii) any request by the SEC for any
amendment to the Trust's Registration Statement or the Prospectus of any
Series or Class; (iii) the initiation of any proceedings for that purpose
or for any other purposes relating to the registration or offering of the
Trust shares; or (iv) any other action or circumstances that may prevent
the lawful offer or sale of Trust shares or any Class or Series in any
state or jurisdiction, including, without limitation, any circumstance in
which (A) such shares are not registered and, in all material respects,
issued and sold in accordance with applicable state and federal law or (B)
such law precludes the use of such shares as an underlying investment
medium for the Contracts. The Trust will make every reasonable effort to
prevent the issuance of any such stop order, cease and desist order or
similar order and, if any such order is issued, to obtain the lifting
thereof at the earliest possible time.
(b) The Company shall immediately notify the Trust and the
Distributor of: (i) the issuance by any court or regulatory body of any
stop order, cease and desist order, or other similar order (but not
including an order of a regulatory body exempting or approving a proposed
transaction or arrangement) with respect to the Contracts' Registration
Statement or the Contracts' Prospectus; (ii) any request by the SEC for any
amendment to the Contracts' Registration Statement or Prospectus; (iii) the
initiation of any proceedings for that purpose or for any other purposes
relating to the registration or offering of the Contracts; or (iv) any
other action or circumstances that may prevent the offer or sale of the
Contracts or any class of Contracts in any state jurisdiction, including,
without limitation, any circumstance in which such Contracts are not
registered, qualified and approved, and, in all material respects, issued
and sold in accordance with applicable state and federal laws. The Company
will make every reasonable effort to prevent the issuance of any such stop
order, cease and desist order or similar order and, if any such order is
issued, to obtain the lifting thereof at the earliest possible time.
(c) Each party shall immediately notify the other parties when it
receives notice, or otherwise becomes aware of, the commencement of any
litigation or proceeding against such party or a person affiliated
therewith in connection with the issuance or sale of Trust shares or the
Contracts.
(d) The Company shall provide to the Trust and the Distributor any
complaints it has received from Contract Owners pertaining to the Trust or
a Fund, and the Trust and Distributor shall each provide to the Company any
complaints it has received from Contract Owners relating to the Contracts.
4.9. COOPERATION. Each party hereto shall cooperate with the other
parties and all appropriate government authorities (including without limitation
the SEC, the NASD and state securities and insurance regulators) and shall
permit such authorities reasonable access to its books and records in connection
with any investigation or inquiry by any such authority relating, to this
Agreement or the transactions contemplated hereby. However, such access shall
not extend to attorney-client privileged information.
4.10. DISTRIBUTOR. During the term of this agreement, the Distributor (i)
will be duly organized and in good standing under the laws of the state of its
organization; (ii) will be registered as a broker dealer under federal and
applicable state securities laws and will be a member of the NASD, or its
successor; and will be registered as an investment adviser under the federal
securities laws.
ARTICLE V
SALE, ADMINISTRATION AND SERVICING OF THE CONTRACTS
5.1. SALE OF THE CONTRACTS. The Company shall be fully responsible for
the sale and marketing of the Contracts. The Company shall provide Contracts,
the Contracts' and Trust's Prospectuses, Contracts' and Trust's Statements of
Additional Information, and all amendments or supplements to any of the
foregoing to Contract Owners and prospective Contract Owners, all in accordance
with federal and state laws. The Company shall ensure that all persons offering
the Contracts are duly licensed and registered under applicable insurance and
securities laws. The Company shall use all reasonable efforts to cause each sale
of a Contract to satisfy applicable suitability requirements under insurance and
securities laws and regulations, including without limitation the rules of the
NASD. The Company shall adopt and implement procedures reasonably designed to
ensure that information concerning the Trust and the Distributor that is
intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract Owners or
prospective Contract Owners) is so used.
5.2. ADMINISTRATION AND SERVICING OF THE CONTRACTS. The Company shall be
fully responsible for the underwriting, issuance, service and administration of
the Contracts and for the administration of the Account, including, without
limitation, the calculation of performance information for the Contracts, the
timely payment of Contract Owner redemption requests and processing of Contract
transactions, and the servicing of the Contracts, such functions to be performed
in all respects at a level of service commensurate with those standards
prevailing in the variable insurance industry. The Company shall provide to
Contract Owners all Trust reports, solicitations for voting instructions
including any related Trust proxy solicitation materials, and updated Trust
Prospectuses as required under the federal securities laws.
5.3. CUSTOMER COMPLAINTS. The Company, with such assistance as may be
required from the Trust, shall promptly address all customer complaints and
resolve such complaints consistent with high ethical standards and principles of
ethical conduct.
5.4. TRUST PROSPECTUSES AND REPORTS. In order to enable the Company to
fulfill its obligations under this Agreement and the federal securities laws,
the Trust shall provide the Company with a copy, in camera-ready to form or form
otherwise suitable for printing or duplication, or printed copies, as the
parties may agree, of: (i) the Trust's Prospectus for the Series and Classes
listed on Schedule 3 and any supplement thereto; (ii) each Statement of
Additional Information and any supplement thereto; (iii) any Trust proxy
solicitation material for such Series or Classes; and (iv) any Trust periodic
shareholder reports. The Trust and the Company may agree upon alternate
arrangements, but in all cases, the Trust reserves the right to approve the
printing of any such material. The Trust shall provide the Company at least 10
days advance written notice when any such material shall become available,
provided, however, that in the case of a supplement, the Trust shall provide the
Company notice reasonable in the circumstances, it being understood that
circumstances surrounding such supplement may not allow for advance notice and,
in such case, the Company will use its best efforts to distribute such
supplement to its Contract Owners, as required by law, as soon as reasonably
practicable after such supplement becomes available. The Company may not alter
any material so provided by the Trust or the Distributor (including without
limitation presenting or delivering such material in a different medium, e.g.,
electronic or Internet) without the prior written consent of the Distributor.
5.5. TRUST ADVERTISING MATERIAL. No piece of advertising or sales
literature or other promotional material in which the Trust or the Distributor
is named (including, without limitation, material for prospective and/or
existing Contract Owners, brokers, rating or ranking agencies, or the press,
whether in print, radio, television, video, Internet, or other electronic
medium) shall be used by the Company or any person directly or indirectly
authorized by the Company, including without limitation, underwriters,
distributors, and sellers of the Contracts, except with the prior written
consent of the Trust or the Distributor, as applicable, as to the form, content
and medium of such material, which consent may not be unreasonably withheld. Any
such piece shall be furnished to the Trust for such consent at least 10 Business
Days prior to its use. The Trust or the Distributor shall respond to any request
for written consent within 7 Business Days after receipt of such material, but
failure to respond shall not relieve the Company of the obligation to obtain the
prior written consent of the Trust or the Distributor. After receiving the
Trust's or Distributor's consent to the use of any such material, no further
material changes or changes relating to information concerning the Trust may be
made without obtaining the Trust's or Distributor's consent to such changes. The
Trust or Distributor may at any time in its sole discretion revoke such written
consent for reasonable cause, and upon notification of such revocation in
writing, the Company shall promptly discontinue its use of the material subject
to such revocation. Until further notice to the Company, the Trust has delegated
its rights and responsibilities under this provision to the Distributor.
5.6. CONTRACTS ADVERTISING MATERIAL. No piece of advertising or sales
literature or other promotional material in which the Company is named shall be
used by the Trust or the Distributor, except with the prior written consent of
the Company, which consent may not be unreasonably withheld. Any such piece
shall be furnished to the Company for such consent at least 10 Business Days
prior to its use. The Company shall respond to any request for written consent
within 7 Business Days after receipt of such material, but failure to respond
shall not relieve the Trust or the Distributor of the obligation to obtain the
prior written consent of the Company. The Company may at any time in its sole
discretion revoke any written consent for reasonable cause, and upon
notification of such revocation in writing, the Trust and the Distributor shall
promptly discontinue their use of the material subject to such revocation.
5.7. TRADE NAMES. No party shall use any other party's names, logos,
trademarks or service marks, whether registered or unregistered, without the
prior written consent of such other party, or after written consent therefor has
been revoked. The Company shall not use in advertising, publicity or otherwise
the name of the Trust, Distributor, or any of their affiliates nor any trade
name, trademark, trade device, service xxxx, symbol or any abbreviation,
contraction, or simulation thereof of the Trust, Distributor, or their
affiliates without the prior written consent of the Trust or the Distributor in
each instance, unless required to do so by applicable law or regulation.
5.8. REPRESENTATIONS BY COMPANY. Except with the prior written consent of
the Trust, the Company shall not give any information or make any
representations or statements about the Trust or the Funds nor shall it
authorize or allow any other person to do so except information or
representations contained in the Trust's Registration Statement or the Trust's
Prospectuses or in reports or proxy statements for the Trust, or in sales
literature or other promotional material approved in writing by the Trust or its
designee in accordance with this Article V, or in published reports or
statements of the Trust in the public domain.
5.9. REPRESENTATIONS BY TRUST AND DISTRIBUTOR. Except with the prior
written consent of the Company, neither the Trust nor the Distributor shall give
any information or make any representation on behalf of the Company or
concerning the Company, the Account or the Contracts other than the information
or representations contained in the Contracts' Registration Statement or
Contracts' Prospectus or in published reports of the Account which are in the
public domain or in sales literature or other promotional material approved in
writing by the Company in accordance with this Article V.
5.10. ADVERTISING. For purposes of this Article V, the phrase "sales
literature or other promotional material" includes, but is not limited to, any
material constituting sales literature or advertising under the NASD rules, the
1940 Act or the 1933 Act.
ARTICLE VI
COMPLIANCE WITH CODE
6.1. SECTION 817(h). Each Fund of the Trust shall comply with Section
817(h) of the Code and the regulations issued thereunder to the extent
applicable to the Fund as an investment company underlying the Account, and the
Trust shall notify the Company immediately upon having a reasonable basis for
believing that a Fund has ceased to so qualify or that it might not so qualify
in the future.
6.2. SUBCHAPTER M. Each Fund of the Trust shall maintain the
qualification of the Fund as a registered investment company (under Subchapter M
or any successor or similar provision), and the Trust shall notify the Company
immediately upon having a reasonable basis for believing that a Fund has ceased
to so
qualify or that it might not so qualify in the future.
6.3. CONTRACTS. The Company shall ensure the continued treatment of the
Contracts as annuity contracts or life insurance policies, whichever is
appropriate, under applicable provisions of the Code and shall notify the Trust
and the Distributor 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 VII
EXPENSES
7.1. EXPENSES. All expenses incident to each party's performance under
this Agreement (including expenses expressly assumed by such party pursuant to
this Agreement) shall be paid by such party to the extent permitted by law.
7.2. TRUST EXPENSES. Expenses incident to the Trust's performance of its
duties and obligations under this Agreement include, but are not limited to, the
costs of:
(a) registration and qualification of the Trust shares under the
federal securities laws;
(b) preparation and filing with the SEC of the Trust's
Prospectuses, Trust's Statement of Additional information, Trust's's
Registration Statement, Trust proxy materials and shareholder reports;
(c) preparation of all statements and notices required by any
Federal or state securities law;
(d) printing, distribution and solicitation of voting instructions
with respect to all proxy materials required to be distributed to existing
Contract Owners to the extent the content is initiated by the Trust;
printing and mailing of all other materials and reports (other than those
specified as being paid for by the Company below) required to be provided
by the Trust to existing Contract Owners;
(e) all taxes on the issuance or transfer of Trust shares;
(f) payment of all applicable fees relating to the Trust,
including, without limitation, all fees due under Rule 24f-2 in connection
with sales of Trust shares to qualified retirement plans, custodial,
auditing, transfer agent and advisory fees, fees for insurance coverage and
Trustees' fees;
(g) any expenses permitted to be paid or assumed by the Trust
pursuant to a plan, if any, under Rule 12b-1 under the 1940 Act;
(h) printing of the Trust's Prospectuses for distribution by the
Company to existing Contract Owners. If the Trust's Prospectuses are
printed by the Company in one document with the prospectus for the
Contracts and/or the prospectuses for other funds available under the
Contracts, then the expenses of such printing will be apportioned between
the Company and the Trust in proportion to the number of pages of the
Contract's prospectus, other fund prospectuses and the Trust's
Prospectuses, taking account of other relevant factors affecting the
expense of printing, such as covers, columns, graphs and charts; the Trust
to bear the cost of printing the Trust's portion of such document (relating
to the Trust's Prospectuses) for distribution only to owners of existing
Contracts and the Company to bear the expense of printing the portion of
such documents relating to the Account; provided, however, the Company
shall bear all printing of such combined documents where used for
distribution to prospective purchasers; and
(i) printing of all supplements to the Trust's Prospectuses, the
content of which is
initiated by the Trust, and distribution of such supplements to existing
Contract Owners to the extent such distribution does not coincide with a
scheduled mailing and printing of annual and semi-annual reports of the
Trust for distribution by the Company to existing Contract Owners or of any
other required documents, including, but not limited to, mailing of
periodic account reports or Contract Owner statements.
7.3. COMPANY EXPENSES. Expenses incident to the Company's performance of
its duties and obligations under this Agreement include, but are not limited to,
the costs of:
(a) registration and qualification of the Contracts under the
federal securities laws;
(b) preparation and filing with the SEC of the Contracts'
Prospectus and Contracts' Registration Statement;
(c) the sale, marketing and distribution of the Contracts,
including printing and dissemination of Contract Prospectuses and printing
of the Trust's Prospectuses intended for distribution to prospective
Contract Owners and for other marketing purposes, and compensation for
Contract sales;
(d) printing, distribution and solicitation of voting instructions
with respect to all proxy materials required to be distributed to existing
Contract Owners to the extent the content is initiated by the Company;
(e) payment of all applicable fees relating to the Contracts,
including, without limitation, all fees due under Rule 24f-2;
(f) preparation, printing and dissemination of all statements,
materials and notices to Contract Owners required by any Federal or state
insurance law other than those paid for by the Trust; and
(g) preparation, printing and dissemination of all marketing
materials for the Contracts and Trust (to the extent it relates to the
Contracts) except where other arrangements are made in advance.
7.4. 12B-1 PAYMENTS. The Trust shall pay no fee or other compensation to
the Company under this Agreement, except that if the Trust or any Series or
Class adopts and implements a plan pursuant to Rule 12b-1 under the 1940 Act to
finance distribution expenses, then payments may be made to the Company in
accordance with such plan. The Trust Currently does not intend to make any
payments to finance distribution expenses pursuant to Rule 12b-1 under the 1940
Act or in contravention of such rule, although it may make payments pursuant to
the Rule 12b-1 in the future. To the extent that it decides to finance
distribution expenses pursuant to Rule 12b-1 and such formulation is required by
the 1940 Act or any rules or order thereunder, the Trust undertakes to have a
Board of 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.
ARTICLE VIII
POTENTIAL CONFLICTS
8.1. EXEMPTIVE ORDER. The parties to this Agreement acknowledge that
the Trust has filed an application with the SEC to request an order (the
"Exemptive Order") granting relief from various provisions of the 1940 Act
and the rules thereunder to the extent necessary to permit Trust shares to be
sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated Participating Insurance
Companies and other Qualified Persons (as defined in Section 2.8 hereof). It
is anticipated that the Exemptive Order, when and if issued, shall require
the Trust and each Participating
Insurance Company to comply with conditions and undertakings substantially as
provided in this Article VIII. The Trust will not enter into a participation
agreement with any other Participating Insurance Company unless it imposes
the same conditions and undertakings on that company as are imposed on the
Company pursuant to this Article VIII.
8.2. COMPANY MONITORING REQUIREMENTS. To the extent reasonably
practicable, the company will monitor its operations and those of the Trust for
the purpose of identifying any material irreconcilable conflicts or potential
material irreconcilable conflicts between or among the interests of
Participating Plans, Product Owners of variable life insurance policies and
Product Owners of variable annuity contracts.
8.3. COMPANY REPORTING REQUIREMENTS. The Company shall report any
conflicts or potential conflicts to the Trust Board and will provide the Trust
Board, at least annually, with all information reasonably necessary for the
Trust Board to consider any issues raised by such existing or potential
conflicts or by the conditions and undertakings required by the Exemptive Order.
The Company also shall assist the Trust Board in carrying out its obligations
including, but not limited to: (a) informing the Trust Board whenever it
disregards Contract Owner voting instructions with respect to variable life or
variable annuity insurance policies, and (b) providing such other information
and reports as the Trust Board may reasonably request. The Company will carry
out these obligations with a view only to the interests of Contract Owners.
8.4. TRUST BOARD MONITORING AND DETERMINATION. The Trust Board shall
monitor the Trust for the existence of any material irreconcilable conflicts
between or among the interests of Participating Plans, Product Owners of
variable life policies and Product Owners of variable annuity contracts and
determine what action, if any, should be taken in response to those conflicts. A
majority vote of Trustees who are not interested persons of the Trust as defined
in the 1940 Act (the "disinterested trustees") shall represent a conclusive
determination as to the existence of a material irreconcilable conflict between
or among the interests of Product Owners and Participating Plans and as to
whether any proposed action adequately remedies any material irreconcilable
conflict. The Trust Board shall give prompt written notice to the Company and
Participating Plan of any such determination.
8.5. UNDERTAKING TO RESOLVE CONFLICT. In the event that a material
irreconcilable conflict of interest arises between Product Owners of variable
life insurance policies or Product Owners of variable annuity contracts and
Participating Plans, the Company will, at its own expense, take whatever action
is necessary to remedy such conflict as it adversely affects Contract Owners up
to and including (1) establishing a new registered management investment
company, and (2) withdrawing assets from the Trust attributable to reserves for
the Contracts subject to the conflict and reinvesting such assets in a different
investment medium (including another Fund of the Trust) or submitting the
question of whether such withdrawal should be implemented to a vote of all
affected Contract Owners, and, as appropriate, segregating the assets supporting
the Contracts of any group of such owners that votes in favor of such
withdrawal, or, offering to such owners the option of making such a change. The
Company will carry out the responsibility to take the foregoing action with a
view only to the interests of Contract Owners.
8.6. WITHDRAWAL. If a material irreconcilable conflict arises because of
the Company's decision to disregard the voting instructions of Contract Owners
of variable life insurance policies and that decision represents a minority
position or would preclude a majority vote at any Fund shareholder meeting,
then, at the request of the Trust Board, the Company will redeem the shares of
the Trust to which the disregarded voting instructions relate. No charge or
penalty, however, will be imposed in connection with such a redemption.
8.7. EXPENSES ASSOCIATED WITH REMEDIAL ACTION. In no event shall the
Trust be required to bear the expense of establishing a new funding medium for
any Contract. The Company shall not be required by this Article to establish a
new funding medium for any Contract if an offer to do so has been declined by
vote of a majority of the Contract Owners materially adversely affected by the
irreconcilable material conflict.
8.8. SUCCESSOR RULES. 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 provisions of the 1940
Act or the rules promulgated thereunder with respect to mixed and shared
funding on terms and conditions materially different from those contained in
the Exemptive Order, then (i) 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, or Rule 6e-3, as adopted, as applicable, to the extent
such rules are applicable, and (ii) Sections 8.2 through 8.5 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 IX
INDEMNIFICATION
9.1. INDEMNIFICATION BY THE COMPANY. The Company hereby agrees to, and
shall, indemnify and hold harmless the Trust, the Distributor and each person
who controls or is affiliated with the Trust or the Distributor within the
meaning of such terms under the 1933 Act or 1940 Act (but not any Participating
Insurance Companies or Qualified Persons) and any officer, trustee, partner,
director, employee or agent of the foregoing, against any and all losses,
claims, damages, expenses, costs or liabilities, joint or several (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amounts paid in settlement of, any action, suit or proceeding or any
claim asserted), to which they or any of them may become subject under any
statute or regulation, at common law or otherwise, insofar as such losses,
claims, damages, expenses, costs or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Contracts Registration Statement, Contracts
Prospectus, sales literature or other promotional material for the
Contracts or the Contracts themselves (or any amendment or supplement to
any of the foregoing), or arise out of or are based upon the omission to
state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances in
which they were made; provided that this obligation to indemnify shall not
apply if such statement or omission was made in reliance upon and in
conformity with information furnished in writing to the Company by the
Trust or the Distributor for use in the Contracts Registration Statement,
Contracts Prospectus or in the Contracts or sales literature or promotional
material for the Contracts (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the
Contracts or Trust shares; or
(b) arise out of any untrue statement of a material fact contained
in the Trust Registration Statement, any Prospectus for Series or Classes
or sales literature or other promotional material of the Trust (or any
amendment or supplement to any of the foregoing), or the omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances in
which they were made, if such statement or omission was made in reliance
upon and in conformity with information furnished to the Trust or
Distributor in writing by or on behalf of the Company; or
(c) arise out of or are based upon any wrongful conduct of, or
violation of federal or state law by, the Company or persons under its
control or subject to its authorization, including without limitation, any
broker-dealers or agents authorized to sell the Contracts, with respect to
the sale, marketing or distribution of the Contracts or Trust shares,
including, without limitation, any impermissible use of broker-only
material, unsuitable or improper sales of the Contracts or unauthorized
representations about the Contracts or the Trust; or
(d) arise as a result of any failure by the Company or persons
under its control (or subject to its authorization) to provide services,
furnish materials or make payments as required under this Agreement; or
(e) arise out of any material breach by the Company or persons
under its control (or
subject to its authorization) of this Agreement; or
(f) any breach of any warranties of the Company contained in
Article III hereof, any failure by the Company to transmit a request for
redemption or purchase of Trust shares or payment therefor on a timely
basis in accordance with the procedures set forth in Article II, or any
unauthorized use by the Company of the names or trade names of the Trust or
the Distributor.
This indemnification is in addition to any liability that the Company may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage, expense, cost or liability is
caused by the wilful misfeasance, bad faith, gross negligence or reckless
disregard of duty by the party seeking indemnification.
9.2. INDEMNIFICATION BY THE TRUST. The Trust hereby agrees to, and shall,
indemnify and hold harmless the Company and each person who controls or is
affiliated with the Company within the meaning of such terms under the 1933 Act
or 1940 Act and any officer, director, employee or agent of the foregoing,
against any and all losses, claims, damages, expenses, costs or liabilities,
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in settlement of,
any action, suit or proceeding or any claim asserted), to which they or any of
them may become subject under any statute or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Trust Registration Statement, any Prospectus
for Series or Classes or sales literature of the Trust (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the
circumstances in which they were made; provided that this obligation to
indemnify shall not apply if such statement or omission was made in
reliance upon and in conformity with information furnished in writing by
the Company to the Trust or the Distributor for use in the Trust
Registration Statement, Trust Prospectus or sales literature or promotional
material for the Trust (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of the
Contracts or Trust shares; or
(b) arise out of any untrue statement of a material fact contained
in the Contracts Registration Statement, Contracts Prospectus or sales
literature or other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or the omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances in
which they were made, if such statement or omission was made in reliance
upon information furnished in writing by the Trust to the Company; or
(c) arise out of or are based upon wrongful conduct of the Trust or
its Trustees or officers with respect to the sale of Trust shares; or
(d) arise as a result of any failure by the Trust to provide
services, furnish materials or make payments as required under the terms of
this Agreement; or
(e) arise out of any material breach by the Trust of this Agreement
(including any breach of Section 6.1 of this Agreement and any warranties
contained in Article III hereof);
it being understood that in no way shall the Trust be liable to the Company with
respect to any violation of insurance law, compliance with which is a
responsibility of the Company under this Agreement or otherwise or as to which
the Company failed to inform the Trust in accordance with Section 4.4 hereof.
This indemnification is in addition to any liability that the Trust may
otherwise have; provided, however, that no party shall be entitled to
indemnification if such loss, claim, damage, expense, cost or liability is
caused by the
wilful misfeasance, bad faith, gross negligence or reckless disregard of duty by
the party seeking indemnification.
9.3. INDEMNIFICATION BY THE DISTRIBUTOR. The Distributor hereby agrees
to, and shall, indemnify and hold harmless the Company and each person who
controls or is affiliated with the Company within the meaning of such terms
under the 1933 Act or 1940 Act and any officer, director, employee or agent of
the foregoing, against any and all losses, claims, expenses, costs, damages or
liabilities, joint or several (including any investigative, legal and other
expense reasonably incurred in connection with, and any amounts paid in
settlement of, any action, suit or proceeding or any claim asserted), to which
they or any of them may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, damages, expenses,
costs or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Trust's Registration Statement, any
Prospectus for Series or Classes or sales literature or other promotional
material of the Trust (or any amendment of supplement to any of the
foregoing), or arise out of or are based upon the omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein not misleading in light of the circumstances in which
they were made; provided that this obligation to indemnify shall not apply,
if such statement or omission was made in reliance upon and in conformity
with information furnished in writing by the Company to the Trust or
Distributor for use in the Trust Registration Statement, Trust Prospectus
or sales literature or promotional material for the Trust (or any amendment
or supplement to any of the foregoing) or otherwise for use in connection
with the sale of the Contracts or Trust shares; or
(b) arise out of any untrue statement of a material fact contained
in the Contracts Registration Statement, Contracts Prospectus or sales
literature or other promotional material for the Contracts (or any
amendment or supplement to any of the foregoing), or the omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading in light of the circumstances in
which they were made, if such statement or omission was made in reliance
upon information furnished in writing by the Distributor or the Trust to
the Company; or
(c) arise out of or are based upon wrongful conduct of the
Distributor or the Trust or persons under their respective control with
respect to the sale of Trust shares; or
(d) arise as a result of any failure by the Trust, the Distributor
or persons under their respective control to provide services, furnish
materials or make payments as required under the terms of this Agreement,
including, without limitation, any failure of the Trust, under
circumstances within its or its investment adviser's or custodian's
control, to inform the Company of the current net asset value per share for
each Series or Class available to the Company on a timely basis sufficient
to ensure the timely execution of all purchase and redemption orders at the
correct net asset value per share; or
(e) arise out of any material breach by the Trust, Distributor or
persons under their respective control of this Agreement (including any
breach of Section 6.1 of this Agreement) at and any warranties contained in
Article III hereof);
it being understood that in no way shall the Distributor be liable to the
Company with respect to any violation of insurance law, compliance with which is
a responsibility of the Company under this Agreement or otherwise or as to which
the Company failed to inform the Distributor in accordance with Section 4.4
hereof. This indemnification is in addition to any liability that the
Distributor may otherwise have; provided, however, that no party shall be
entitled to indemnification if such loss, claim, damage or liability is caused
by the wilful misfeasance, bad faith, gross negligence or reckless disregard of
duty by the party seeking indemnification.
9.4. RULE OF CONSTRUCTION. It is the parties' intention that, in the
event of an occurrence for which
the Trust has agreed to indemnify the Company, the Company shall seek
indemnification from the Trust only in circumstances in which the Trust is
entitled to seek indemnification from a third party with respect to the same
event or cause thereof.
9.5. INDEMNIFICATION PROCEDURES. After receipt by a party entitled to
indemnification ("indemnified party") under this Article IX of notice of the
commencement of any action, if a claim in respect thereof is made by the
indemnified party against any person obligated to provide indemnification under
this Article IX ("indemnifying party"), such indemnified party will notify the
indemnifying party in writing of the commencement thereof as soon as practicable
thereafter, provided that the omission to so notify the indemnifying party will
not relieve it from any liability under this Article IX, except to the extent
that the omission results in a failure of actual notice to the indemnifying
party and such indemnifying party is damaged solely as a result of the failure
to give such notice. The indemnifying party, upon the request of the indemnified
party shall retain counsel reasonably satisfactory to the indemnified party and
any others the indemnifying party may designate in such proceeding and shall pay
the reasonable fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such indemnified party unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party and representation
of both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its written consent
but if settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the indemnified party from
and against any loss or liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX. The
indemnification qualification provisions contained in this Article IX shall
survive any termination of this Agreement.
ARTICLE X
RELATIONSHIP OF THE PARTIES; TERMINATION
10.1. RELATIONSHIP OF PARTIES. The Company is to be an independent
contractor vis-a-vis the Trust, the Distributor, or any of their affiliates for
all purposes hereunder and will have no authority to act for or represent any of
them (except to the limited extent the Company acts as agent of the Trust
pursuant to Section 2.3(a) of this Agreement). In addition, no officer or
employee of the Company will be deemed to be an employee or agent of the Trust,
Distributor, or any of their affiliates. The Company will not act as an
"underwriter" or "distributor" of the Trust, as those terms variously are used
in the 1940 Act, the 1933 Act, and rules and regulations promulgated thereunder.
10.2. NON-EXCLUSIVITY AND NON-INTERFERENCE. The parties hereto acknowledge
that the arrangement contemplated by this Agreement is not exclusive; the Trust
shares may be sold to other insurance companies and investors (subject to
Section 2.8 hereof) and the cash value of the Contracts may be invested in other
investment companies, provided, however, that until this Agreement is terminated
pursuant to this Article X:
(a) the Company shall, for so long as it intends to use the Trust's
shares as underlying investment vehicles under the Contracts, promote the
Trust and the Funds made available hereunder on the same basis as other
funding vehicles available under the Contracts;
(b) the Company shall not, without prior notice to the Distributor
(unless otherwise required by applicable law), take any action to operate
the Account as a management investment company under the 1940 Act;
(c) the Company shall not, without cause, solicit, induce or
encourage Contract Owners to change or modify the Trust to change the
Trust's distributor or investment adviser, to transfer or withdraw Contract
values allocated to a Fund, or to exchange their Contracts for contracts
not allowing for investment in the Trust; except with 30 days prior written
notice to the Distributor under circumstances where the Company has
determined, in its sole discretion exercised in good faith, that such
solicitation, inducement or encouragement may be in the best interests of
Contract Owners (unless otherwise required by applicable law).
(d) the Company shall not, without the consent of the Distributor,
substitute another investment company for one or more Funds without
providing written notice to the Distributor at least 60 days in advance of
effecting any such substitution, unless required to do so by applicable law
or regulation; and
(e) the Company shall not withdraw the Account's investment in the
Trust or a Fund of the Trust except as necessary to facilitate Contract
Owner requests and routine Contract processing.
10.3. TERMINATION OF AGREEMENT. This Agreement shall not terminate until
(i) the Trust is dissolved, liquidated, or merged into another entity, or (ii)
as to any Fund that has been made available hereunder, the Account no longer
invests in that Fund and the Company has confirmed in writing to the
Distributor, if so requested by the Distributor, that it no longer intends to
invest in such Fund. However, certain obligations of, or restrictions on, the
parties to this Agreement may terminate as provided in Sections 10.4 through
10.6 and the Company may be required to redeem Trust shares pursuant to Section
10.7 or in the circumstances contemplated by Article VIII. Article IX and
Sections 5.7, 10.8 and 10.9 shall survive any termination of this Agreement.
10.4. TERMINATION OF OFFERING OF TRUST SHARES. The obligation of the Trust
and the Distributor to make Trust shares available to the Company for purchase
pursuant to Article II of this Agreement shall terminate at the option of the
Distributor upon written notice to the Company as provided below:
(a) upon institution of formal proceedings against the Company, or
the Distributor's reasonable determination that institution of such
proceedings is being considered by the NASD, the SEC, the insurance
commission of any state or any other regulatory body regarding the
Company's duties under this Agreement or related to the sale of the
Contracts, the operation of the Account, the administration of the
Contracts or the purchase of Trust shares, or an expected or anticipated
ruling, judgment or outcome which would, in the Distributor's reasonable
judgment exercised in good faith, materially impair the Company's or
Trust's ability to meet and perform the Company's or Trust's obligations
and duties hereunder, such termination effective upon 15 days prior written
notice;
(b) in the event any of the Contracts are not registered, issued or
sold in accordance with applicable federal and/or state law, such
termination effective immediately upon receipt of written notice;
(c) if the Distributor shall determine, in its sole judgment
exercised in good faith, that either (1) the Company shall have suffered a
material adverse change in its business or financial condition or (2) the
Company shall have been the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations
of either the Trust or the Distributor, such termination effective upon 30
days prior written notice;
(d) if the Distributor suspends or terminates the offering of Trust
shares of any Series or Class to all Participating Investors or only
designated Participating Investors, if such action is required by law or by
regulatory authorities having jurisdiction or if, in the sole discretion of
the Distributor acting in good faith, suspension or termination is
necessary in the best interests of the shareholders of any Series or Class
(it being understood that "shareholders" for this purpose shall mean
Product
Owners), such notice effective immediately upon receipt of written notice,
it being understood that a lack of Participating Investor interest in a
Series or Class may be grounds for a suspension or termination as to such
Series or Class and that a suspension or termination shall apply only to
the specified Series or Class;
(e) upon the Company's assignment of this Agreement (including,
without limitation, any transfer of the Contracts or the Account to another
insurance company pursuant to an assumption reinsurance agreement) unless
the Trust consents thereto, such termination effective upon 30 days prior
written notice;
(f) if the Company is in material breach of any provision of this
Agreement, which breach has not been cured to the satisfaction of the Trust
within 15 days after written notice of such breach has been delivered to
the Company, such termination effective upon expiration of such 15-day
period; or
(g) upon the determination of the Trust's Board to dissolve,
liquidate or merge the Trust as contemplated by Section 10.3(i), upon
termination of the Agreement pursuant to Section 10.3(ii), or upon notice
from the Company pursuant to Section 10.5 or 10.6, such termination
pursuant hereto to be effective upon 15 days prior written notice; or
(h) at any time more than one year after the date of this
Agreement, upon six months prior written notice; provided the foregoing
shall not apply in the event that all or a portion of the Account assets
invested in the Trust are transferred to another investment company advised
or sub-advised by the Trust's investment adviser unless the parties
otherwise agree.
Except in the case of an option exercised under clause (b), (d) or (g), the
obligations shall terminate only as to new Contracts and the Distributor shall
continue to make Trust shares available to the extent necessary to permit owners
of Contracts in effect on the effective date of such termination (hereinafter
referred to as "Existing Contracts") 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 Contracts.
10.5. TERMINATION OF INVESTMENT IN A FUND. The Company may elect to cease
investing in a Fund, promoting a Fund as an investment option under the
Contracts, or withdraw its investment or the Account's investment in a Fund,
subject to compliance with applicable law:
(a) immediately at the option of the Company, if the Trust informs
the Company pursuant to Section 4.4 that it will not cause such Fund to
comply with investment restrictions as requested by the Company and the
Trust and the Company are unable to agree upon any reasonable alternative
accommodations;
(b) upon 15 days written notice, if shares in such Fund are not
reasonably available to meet the requirements of the Contracts as
determined by the Company (including, any non-availability as a result of
notice given by the Distributor pursuant to Section 10.4(d)), and the
Distributor, after receiving written notice from the Company of such
non-availability, fails to make available, within 10 days after receipt of
such notice, a sufficient number of shares in such Fund or an alternate
Fund to meet the requirements of the Contracts;
(c) immediately at the option of the Company, if such Fund fails to
meet the diversification requirements specified in Section 817(h) of the
Code and any regulations thereunder and the Trust, upon written request,
fails to provide reasonable assurance that it will take action to cure or
correct such failure; or
(d) immediately at the option of the Company, if such Fund ceases
to qualify as a
regulated investment company under Subchapter M of the Code, as defined
therein, or any successor or similar provision, or if the Company
reasonably believes that the Fund may fail to so qualify, and the Fund,
upon written request, fails to provide reasonable assurance that it will
take action to cure or correct such failure within 15 days.
Such termination shall apply only as to the affected Fund and shall not apply to
any other Fund in which the Company or the Account invests.
10.6. TERMINATION OF INVESTMENT BY THE COMPANY. The Company may elect to
cease investing in all Series or Classes of the Trust made available hereunder,
promoting the Trust as an investment option under the Contracts, or withdraw its
investment or the Account's investment in the Trust, subject to compliance with
applicable law, upon written notice to the Trust within 15 days of the
occurrence of any of the following events (unless provided otherwise below):
(a) upon institution of formal proceedings against the Trust or the
Distributor, or the Company's reasonable determination that institution of
such proceedings is being considered by the NASD, the SEC, the insurance
commission of any state or any other regulatory body regarding the Trust's
or the Distributor's duties under this Agreement, the sale of Trust shares,
or an expected or anticipated ruling, judgment or outcome which would, in
the Company's reasonable judgment exercised in good faith, materially
impair the Distributor's or Trust's ability to meet and perform the
Distributor's or Trust's obligations and duties hereunder, such termination
effective upon 15 days prior written notice;
(b) if, with respect to the Trust or a Fund, the Trust or the Fund
ceases to qualify as a regulated investment company under Subchapter M of
the Code, as defined therein, or any successor or similar provision, or if
the Company reasonably believes that the Trust may fail to so qualify, and
the Trust, upon written request, fails to provide reasonable assurance that
it will take action to cure or correct such failure within 15 days; or
(c) if the Trust or Distributor is in material breach of a
provision of this Agreement, which breach has not been cured to the
satisfaction of the Company within 15 days after written notice of such
breach has been delivered to the Trust or the Distributor, as the case may
be; or
(d) in the event any of the Trust's shares are not registered,
issued or sold in material compliance with applicable federal and/or state
law, such termination effective immediately upon receipt of written notice;
or
(e) at any time more than one year after the date of this
Agreement, upon six months prior written notice; provided the foregoing
shall not apply in the event that all or a portion of the Account assets
invested in the Trust are transferred to another investment company advised
or sub-advised by the Trust's investment adviser unless the parties
otherwise agree; or
(f) if the Company shall determine, in its sole judgment exercised
in good faith, that either (1) the Distributor or the Trust's investment
adviser shall have suffered a material adverse change in its business or
financial condition or (2) the Distributor, the Trust's investment adviser
or the Trust shall have been the subject of material adverse publicity
(excluding with respect to the Trust, market events impacting the Trust's
performance) which is likely to have a material adverse impact upon the
business and operations of either the Trust, its investment adviser, or the
Distributor, such termination effective upon 30 days prior written notice.
(g) upon the assignment of this Agreement by the Distributor unless
the Company consents thereto, such termination effective upon 30 days prior
written notice.
10.7. COMPANY REQUIRED TO REDEEM. The parties understand and acknowledge
that it is essential for compliance with Section 817(h) of the Code that the
Contracts qualify as annuity contracts or life insurance policies, as
applicable, under the Code. Accordingly, if any of the Contracts cease to
qualify as annuity contracts or life insurance policies, as applicable, under
the Code, or if the Trust reasonably believes that any such Contracts may fail
to so qualify, the Trust shall have the right to require the Company to redeem
Trust shares attributable to such Contracts upon notice to the Company and the
Company shall so redeem such Trust shares in order to ensure that the Trust
complies with the provisions of Section 817(h) of the Code applicable to
ownership of Trust Shares. Notice to the Company shall specify the period of
time the Company has to redeem the Trust shares or to make other arrangements
satisfactory to the Trust and its counsel, such period of time to be determined
with reference to the requirements of Section 817(h) of the Code. In addition,
the Company may be required to redeem Trust shares pursuant to action taken or
request made by the Trust Board in accordance with the Exemptive Order described
in Article VIII or any conditions or undertakings set forth or referenced
therein, or other SEC rule, regulation or order that may be adopted after the
date hereof. The Company agrees to redeem shares in the circumstances described
herein and to comply with applicable terms and provisions. Also, in the event
that the Distributor suspends or terminates the offering of a Series or Class
pursuant to Section 10.4(d) of this Agreement, the Company, upon request by the
Distributor, will cooperate in taking appropriate action to withdraw the
Account's investment in the respective Fund.
10.8. CONFIDENTIALITY. The Company will keep confidential any information
acquired as a result of this Agreement regarding the business and affairs of the
Trust, the Distributor, and their affiliates.
ARTICLE XI
APPLICABILITY TO NEW ACCOUNTS AND NEW CONTRACTS
The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect, as appropriate, changes in or relating to the
Contracts, any Series or Class, additions of new classes of Contracts to be
issued by the Company, and separate accounts therefor investing in the Trust.
Such amendments may be made effective by executing the form of amendment
included on each schedule attached hereto. The provisions of this Agreement
shall be equally applicable to each such class of Contracts, Series, Class or
separate account, as applicable, effective as of the date of amendment of such
Schedule, unless the context otherwise requires. The parties to this Agreement
may amend this Agreement from time to time by written agreement signed by all of
the parties.
ARTICLE XII
NOTICE, REQUEST OR CONSENT
Any notice, request or consent to be provided pursuant to this Agreement is
to be made in writing and shall be given:
If to the Trust:
Xxxxxxx X. Grip
President
Xxxxxxx Sachs Variable Insurance Trust
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
If to the Distributor:
Xxxxxxx X. Grip
Vice President
Xxxxxxx Sachs & Co.
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, XX 00000
If to the Company:
Xxxxxxxx Xxxxxxx
Senior Associate Counsel
Sun Life Assurance Company of Canada (U.S.)
Retirement Products and Services Division
0 Xxxxxx Xxxxx Xxxxx 000
Xxxxxx, XX 00000
or at such other address as such party may from time to time specify in writing
to the other party. Each such notice, request or consent to a party shall be
sent by registered or certified United States mail with return receipt requested
or by overnight delivery with a nationally recognized courier, and shall be
effective upon receipt. Notices pursuant to the provisions of Article II may be
sent by facsimile to the person designated in writing for such notices.
ARTICLE XIII
MISCELLANEOUS
13.1. INTERPRETATION. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the state of
Delaware, without giving effect to the principles of conflicts of laws, subject
to the following rules:
(a) This Agreement shall be subject to the provisions of the 1933
Act, 1940 Act and Securities Exchange Act of 1934, as amended, and the
rules, regulations and rulings thereunder, including such exemptions from
those statutes, rules, and regulations as the SEC may grant, and the terms
hereof shall be limited, interpreted and construed in accordance therewith.
(b) 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.
(c) If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rate or otherwise, the remainder of
the Agreement shall not be affected thereby.
(d) 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.
13.2. COUNTERPARTS. This Agreement may be executed simultaneously in two
or more counterparts, each of which together shall constitute one and the same
instrument.
13.3. NO ASSIGNMENT. Neither this Agreement nor any of the rights and
obligations hereunder may be assigned by the Company, the Distributor or the
Trust without the prior written consent of the other parties.
13.4. DECLARATION OF TRUST. A copy of the Declaration of Trust of the
Trust is on file with the Secretary of State of the state of Delaware, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as trustees, and is not binding upon any of the Trustees,
officers or shareholders of the Trust individually, but binding only upon the
assets and property of the Trust. No Series of the Trust shall be liable for the
obligations of any other Series of the Trust.
13.5. ACCESS TO INFORMATION BY COMPANY. During ordinary business hours,
the Trust and the Distributor shall afford the Company, directly or through its
authorized representatives, reasonable access to all files, books, records and
other materials of the Trust or the Distributor, as applicable, which relate,
directly or indirectly, to transactions arising in connection with the Agreement
and to make available appropriate personnel familiar with such items for the
purpose of explaining the form and content of such items. This
Section 13.5 shall survive the termination of this Agreement, but only to the
extent necessary to wind up termination of investment of the Accounts in the
Trust pursuant to the terms of this Agreement or to the extent required by
appropriate regulatory agencies.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and behalf by its duly authorized officer on the date
specified below.
XXXXXXX XXXXX VARIABLE INSURANCE TRUST
(Trust)
Date: By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Secretary
XXXXXXX, SACHS & CO.
(Distributor)
Date: By: /s/ Xxxxxx Xxxxxxx
------------------
Name: Xxxxxx Xxxxxxx
Title: Vice President
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
(Company)
Date: February 17, 1998 By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx --------------------
Title: Vice President, Retirement Products
And Services Division
SCHEDULE 1
Accounts of the Company
Investing in the Trust
Effective as of the date the Agreement was executed, the following separate
accounts of the Company are subject to the Agreement:
--------------------------------------------------------------------------------------------------
Date Established by
Name of Account and Board of Directors of SEC 1940 Act Type of Product
Subaccounts the Company Registration Number Supported by Account
--------------------------------------------------------------------------------------------------
Sun Life of Canada U.S. July 13, 1989 811-5846 Combination
Variable Account F Fixed/Variable Annuity
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
[Form of Amendment to Schedule 1]
Effective as of ______, the following separate accounts of the Company are
hereby added to this Schedule 1 and made subject to the Agreement:
--------------------------------------------------------------------------------------------------
Date Established by
Name of Account and Board of Directors SEC 1940 Act Type of Product
Subaccounts of the Company Registration Number Supported by Account
--------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 1 in accordance with Article XI of the Agreement.
Xxxxxxx Xxxxx Variable Insurance Trust Sun Life Assurance Company of
Canada (U.S.)
Xxxxxxx, Sachs & Co.
SCHEDULE 2
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Effective as of the date of the Agreement was executed, the following classes of
Contracts are subject to the Agreement:
----------------------------------------------------------------------------------------
SEC 1933 Act
Policy Marketing Name Registration Number Contract Form Number Annuity or Life
----------------------------------------------------------------------------------------
Futurity 333-37907 FY-MVA-CONT-1 Annuity
----------------------------------------------------------------------------------------
--------------------------------------------------------------------------------
[Form of Amendment to Schedule 2]
Effective as of _____, the following classes of Contracts are hereby added to
this Schedule 2 and made subject to the Agreement:
----------------------------------------------------------------------------------------
SEC 1933 Act
Policy Marketing Name Registration Number Contract Form Number Annuity of Life
----------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 2 in accordance with Article XI of the Agreement.
Xxxxxxx Xxxxx Variable Insurance Trust Sun Life Assurance Company of
Canada (U.S.)
Xxxxxxx, Sachs & Co.
SCHEDULE 3
Trust Classes and Series
Available Under
Each Class of Contracts
Effective as of the date the Agreement was executed, the following Trust Classes
and Series are available under the Contracts:
---------------------------------------------------------------
Contract Marketing Name Trust Classes and Series
---------------------------------------------------------------
Futurity Growth and Income Fund
CORE Large Cap Growth Fund
CORE U.S. Equity Fund
CORE Small Cap Equity Fund
International Equity Fund
---------------------------------------------------------------
------------------------------------------------------------------------------
[Form of Amendment to Schedule 3]
Effective as of _____________, this Schedule 3 is hereby amended to reflect the
following changes in Trust Classes and Series:
-------------------------------------------------------------------------------
Contracts Marketing Name Trust Classes and Series
-------------------------------------------------------------------------------
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 3 in accordance with Article XI of the Agreement.
Xxxxxxx Xxxxx Variable Insurance Trust Sun Life Assurance Company of
Canada (U.S.)
Xxxxxxx, Sachs & Co.
SCHEDULE 4
Investment Restrictions
Applicable to the Trust
Effective as of the date the Agreement was executed, the following investment
restrictions are applicable to the Trust:
--------------------------------------------------------------------------------
[Form of Amendment to Schedule 4]
Effective as of ______________, this Schedule 4 is hereby amended to reflect the
following changes:
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this
Schedule 4 in accordance with Article XI of the Agreement.
Xxxxxxx Xxxxx Variable Insurance Trust Sun Life Assurance Company of
Canada (U.S.)
Xxxxxxx, Sachs & Co.
