EXHIBIT (h)(6)
FORM OF
SUB-ADMINISTRATION SERVICES AGREEMENT
THIS AGREEMENT is made as of April 23, 2007 by and between BB&T ASSET
MANAGEMENT, INC., a North Carolina corporation (the "Administrator") and PFPC
Inc., a Massachusetts corporation (the "Sub-Administrator").
WITNESSETH:
WHEREAS, the Administrator serves as the administrator to the BB&T Variable
Insurance Funds, a Massachusetts business trust (the "Trust") pursuant to an
Administration Services Agreement dated April 23, 2007;
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act');
WHEREAS, the Administrator wishes to retain the Sub-Administrator to
provide certain administration services to its investment portfolios listed on
Exhibit A attached hereto and made a part hereof, as such Exhibit A may be
amended from time to time (each a "Fund"), and the Sub-Administrator wishes to
furnish such services.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, and intending to be legally bound hereby, the parties hereto
agree as follows:
1. DEFINITIONS. As used in this Agreement:
(a) "1933 Act" means the Securities Act of 1933, as amended.
(b) "1934 Act" means the Securities Exchange Act of 1934, as amended.
(c) "Authorized Person" means any officer of the Administrator, any
officer of the Trust that is an employee of the Administrator, and any
other person duly authorized by the Administrator to give Oral
Instructions and Written Instructions
on behalf of the Administrator. An Authorized Person's scope of
authority may be limited by setting forth such limitation in a written
document signed by all parties hereto.
(d) "Change of Control" means a change in ownership or control (not
including transactions between wholly-owned direct or indirect
subsidiaries of a common parent) of 25% or more of the beneficial
ownership of the shares of common stock or shares of beneficial
interest of an entity or its parent(s).
(e) "Oral Instructions" mean oral instructions received by the
Sub-Administrator from an Authorized Person or from a person
reasonably believed by the Sub-Administrator to be an Authorized
Person. The Sub-Administrator may, in its sole discretion in each
separate instance, consider and rely upon instructions it receives
from an Authorized Person via electronic mail as Oral Instructions.
(f) "SEC" means the Securities and Exchange Commission.
(g) "Securities Laws" means the 1933 Act, the 1934 Act and the 1940 Act.
(h) "Shares" means the shares of beneficial interest of any series or
class of the Trust.
(i) "Written Instructions" mean (i) written instructions signed by an
Authorized Person and received by the Sub-Administrator or (ii) trade
instructions transmitted (and received by the Sub-Administrator) by
means of an electronic transaction reporting system access to which
requires use of a password or other authorized identifier. The
instructions may be delivered electronically (with respect to sub-item
(ii) above) or by hand, mail, tested telegram, cable, telex or
facsimile sending device.
2. APPOINTMENT. As of the date first set forth above, the Administrator hereby
appoints
Sub-Administrator, subject to the oversight and direction of the
Administrator, to provide administration services to each of the Funds
identified on Exhibit A in accordance with the terms set forth in this
Agreement. The Sub-Administrator accepts such appointment and agrees to
furnish such services.
3. COMPLIANCE WITH RULES AND REGULATIONS.
The Sub-Administrator undertakes to comply with the applicable requirements
of all laws, rules and regulations, including, without limitation,
applicable requirements of the Securities Laws and all applicable rules and
regulations promulgated by the SEC thereunder, and all applicable rules and
regulations by any securities association registered under the 1934 Act,
with respect to the duties to be performed by the Sub-Administrator
hereunder. Except as specifically set forth herein, the Sub-Administrator
assumes no responsibility for such compliance by the Trust or other entity.
4. INSTRUCTIONS.
(a) Unless otherwise provided in this Agreement, the Sub-Administrator
shall act only upon Oral Instructions or Written Instructions.
(b) The Sub-Administrator shall be entitled to rely upon any Oral
Instruction or Written Instruction it receives from an Authorized
Person (or from a person reasonably believed by the Sub-Administrator
to be an Authorized Person) pursuant to this Agreement. The
Sub-Administrator may assume that any Oral Instruction or Written
Instruction received hereunder is not in any way inconsistent with the
provisions of organizational documents or this Agreement or of any
direction to the Administrator from the Trust's Board of Trustees or
of the Trust's shareholders, unless and until the Sub-Administrator
receives Written Instructions to the contrary.
(c) The Administrator agrees to forward (or arrange to be forwarded) to
the Sub-Administrator Written Instructions confirming Oral
Instructions (except where such Oral Instructions are given by the
Sub-Administrator or its affiliates) so that the Sub-Administrator
receives the Written Instructions by the close of business
on the same day that such Oral Instructions are received. The fact
that such confirming Written Instructions are not received by the
Sub-Administrator or differ from the Oral Instructions shall in no way
invalidate the transactions or enforceability of the transactions
authorized by the Oral Instructions or the Sub-Administrator's ability
to rely upon such Oral Instructions.
5. RIGHT TO RECEIVE ADVICE.
(a) Advice of the Administrator. If the Sub-Administrator is in doubt as
to any action it should or should not take, the Sub-Administrator may
request Written Instructions from the Administrator.
(b) Advice of Counsel. If the Sub-Administrator shall be in doubt as to
any question of law pertaining to any action it should or should not
take with respect to any matter under this Agreement, the
Sub-Administrator may (i) upon prior written notice to and after
receiving written approval from, the Administrator, request advice
from the Administrator's counsel at the Administrator's expense; or
(ii) upon prior notice to the Administrator, request advice from the
Sub-Administrator's counsel (the "Sub-Administrator Counsel") at the
Sub-Administrator's own expense.
(c) Conflicting Advice. In the event of a conflict between directions or
advice or Oral Instructions or Written Instructions the
Sub-Administrator receives from the Administrator and the advice the
Sub-Administrator receives from Administrator counsel, the
Sub-Administrator may, in good faith, rely upon and follow the advice
of such Administrator counsel, provided that reasonable prior written
notice has been given to the Administrator. In the event of a conflict
between
directions or advice or Oral Instructions or Written Instructions the
Sub-Administrator receives from the Administrator and the advice the
Sub-Administrator receives from the Sub-Administrator Counsel, the
Sub-Administrator shall notify the Administrator in writing regarding
such conflict. The Administrator shall, within a reasonable period of
time after receipt of such notice, notify the Sub-Administrator in
writing of its agreement or disagreement to any actions or any
omissions to act the Sub-Administrator proposes to take pursuant to
the Sub-Administrator Counsel's advice. If the Administrator (i) does
not respond to the Sub-Administrator within a reasonable period of
time; or (ii) responds with agreement to the Sub-Administrator's
proposed actions or omissions the Sub-Administrator proposes to take
pursuant to the Sub-Administrator Counsel's advice; then the
Sub-Administrator may, in good faith, rely upon and follow the advice
of the Sub-Administrator Counsel. However, in the event where the
Administrator has timely notified the Sub-Administrator in writing of
its disagreement with the Sub-Administrator's proposed actions or
omissions, the Sub-Administrator and the Administrator shall consult
with each other in good faith to reach agreement on the actions or
omissions that are the subject of the Administrator's objection. If,
after such consultations, the Sub-Administrator and the Administrator
are unable to agree on the actions or omissions in question, the
Sub-Administrator and the Administrator shall consult independent
counsel reasonably acceptable to both parties ("Independent Counsel"),
the expense of such Independent Counsel to be split 50/50 between the
Sub-Administrator and the Administrator, and the Sub-Administrator
may, after
such advice is delivered to the Sub-Administrator and the
Administrator, follow and rely upon the advice of such Independent
Counsel.
(d) Protection of the Sub-Administrator. The Sub-Administrator shall be
protected for any action the Sub-Administrator takes or does not take
in reliance upon directions or advice or Oral Instructions or Written
Instructions the Sub-Administrator receives from or on behalf of the
Administrator from (i) Administrator Counsel; or, (ii) if the
Sub-Administrator follows and acts in accordance with the provisions
of paragraph (c) hereof, the Sub-Administrator Counsel or Independent
Counsel, as applicable; provided the Sub-Administrator believes, in
good faith, that such action or inaction is consistent with those
directions or advice and Oral Instructions or Written Instructions.
Nothing in this section shall be construed so as to impose an
obligation upon the Sub-Administrator (i) to seek such directions or
advice or Oral Instructions or Written Instructions, or (ii) to act in
accordance with such directions or advice or Oral Instructions or
Written Instructions unless, under the terms of other provisions of
this Agreement, the same is a condition of the Sub-Administrator'
properly taking or not taking such action.
6. RECORDS; VISITS.
(a) The books and records pertaining to the Trust and the Funds which are
in the possession or under the control of the Sub-Administrator shall
be the property of the Trust. Such books and records shall be prepared
and maintained as required by the 1940 Act and other applicable
securities laws, rules and regulations. The Trust, the Administrator
and Authorized Persons shall have access to such books
and records at all times during the Sub-Administrator's normal
business hours. Upon the reasonable request of the Trust or the
Administrator, copies of any such books and records shall be provided
by the Sub-Administrator to the Trust, the Administrator or to an
Authorized Person, at the Trust's expense.
(b) The Sub-Administrator shall keep the following records:
(i) all books and records with respect to each Fund's books of
account;
(ii) records of each Fund's securities transactions; and
(iii) all other books and records as the Sub-Administrator is required
to maintain pursuant to Rule 31a-1 of the 1940 Act in connection
with the services provided hereunder.
(c) Any books or records maintained by the Sub-Administrator may, but are
not required to, be maintained in the form of electronic media and
stored on any magnetic disk or tape or similar recording method; in
such case copies of such books and records will, upon request from the
Trust or Administrator, be provided to the Trust, the Administrator or
an Authorized Person in such form of electronic media. The
Sub-Administrator will return all such books and records to the Trust
or the Administrator upon termination of this Agreement, and the Trust
will reimburse the Sub-Administrator for the reasonable actual
out-of-pocket expenses incurred by the Sub-Administrator to return all
such books and records. The Sub-Administrator may retain copies as are
required by applicable law or customary archival purposes. If the
Sub-Administrator is required by law to retain copies of certain
documents and the Trust or Administrator demands the return of
applicable original documents, then the Sub-Administrator may make
such copies.
7. CONFIDENTIALITY. Each party shall keep confidential any information
relating to the other party's business ("Confidential Information").
Confidential Information shall include (a) any data or information that is
competitively sensitive material, and not generally known to the public,
including, but not limited to, information about investments, investment
strategies, investment research, research and portfolio management
methodologies, product plans, marketing strategies, finances, operations,
customer relationships, customer profiles (including nonpublic financial
and other information relating to customers), customer lists, sales
estimates, business plans, and internal performance results relating to the
past, present or future business activities of the Trust, the Administrator
or the Sub-Administrator or their respective subsidiaries and affiliated
companies; (b) any scientific or technical information, design, process,
procedure, formula, or improvement that is commercially valuable and secret
in the sense that its confidentiality affords the Trust, the Administrator
or the Sub-Administrator a competitive advantage over its competitors; (c)
all confidential or proprietary concepts, documentation, reports, data,
specifications, computer software, source code, object code, flow charts,
databases, inventions, know-how, and trade secrets, whether or not
patentable or copyrightable, of the Trust, the Administrator or the
Sub-Administrator; and (d) anything designated as confidential, by the
Trust, the Administrator or the Sub-Administrator. Notwithstanding the
foregoing:
(i) information shall not be Confidential Information and shall not be
subject to such confidentiality obligations if it: (1) is already
known to the receiving party at the time it is obtained; (2) is or
becomes publicly known or available through no wrongful act of the
receiving party; (3) is rightfully received from a third party
who, to the best of the receiving party's knowledge, is not under a
duty of confidentiality; or (4) is released by the protected party to
a third party without restriction.
(ii) Confidential Information may be disclosed by the receiving party (the
party that received the Confidential Information from the protected
party) where the Confidential Information: (1) is required to be
disclosed by the receiving party pursuant to a court order, subpoena,
governmental or regulatory agency request or order made pursuant to
applicable law, provided that the receiving party has provided the
protected party prior written notice of the same, to the extent such
notice is not prohibited by law; (2) is reasonably relevant to the
defense of any claim or cause of action asserted against the receiving
party provided that the receiving party has provided the protected
party prior written notice of the same, to the extent such notice is
not prohibited by law; (3) is Trust information provided by PFPC in
connection with an independent third party compliance or other review;
provided that the recipient is bound by a duty of confidentiality; or
(4) release of such information by the Sub-Administrator is necessary
in connection with the provision of services under this Agreement,
provided that the recipient is bound by a duty of confidentiality.
The provisions of this Section 7 shall survive termination of this
Agreement for a period of three (3) years after such termination.
8. LIAISON WITH ACCOUNTANTS. The Sub-Administrator shall act as liaison with
the Trust's independent public accountants and shall provide account
analyses, fiscal year summaries, and other audit related schedules with
respect to each Fund. The Sub-
Administrator shall take all reasonable action in the performance of its
duties under this Agreement to assure that the necessary information is
made available to such accountants for the expression of their opinion, as
required by the Trust.
9. PFPC SYSTEM. The Sub-Administrator shall retain title to and ownership of
any and all data bases, computer programs, screen formats, report formats,
interactive design techniques, derivative works, inventions, discoveries,
patentable or copyrightable matters, concepts, expertise, patents,
copyrights, trade secrets, and other related legal rights utilized by the
Sub-Administrator in connection with the services provided by the
Sub-Administrator to the Trust and/or the Administrator.
10. DISASTER RECOVERY. The Sub-Administrator shall enter into and shall
maintain in effect (i) agreements entered into and maintained in effect
with appropriate parties making reasonable provisions for emergency use of
electronic data processing equipment to the extent appropriate equipment is
available, and (ii) emergency data recovery policies and procedures (a
"Disaster Recovery Plan"), which is commercially reasonable in light of the
services to be provided. In the event of equipment failures, the
Sub-Administrator shall, at no additional expense to the Trust or
Administrator, take reasonable steps to minimize service interruptions. The
Sub-Administrator shall have no liability with respect to the loss of data
or service interruptions caused by equipment failure, provided such loss or
interruption is not caused by the Sub-Administrator's own willful
misfeasance, bad faith, gross negligence or reckless disregard of its
duties or obligations under this Agreement, and further provided that PFPC
has implemented and materially complied with its Disaster Recovery Plan.
11. COMPENSATION. As compensation for services rendered by the
Sub-Administrator during the term of this Agreement, the Administrator will
pay to the Sub-Administrator the fees agreed upon by the parties hereto.
12. INDEMNIFICATION.
(a) The Administrator agrees to indemnify and hold harmless
Sub-Administrator and its affiliates from all taxes, charges,
expenses, assessments, claims and liabilities (including, without
limitation, attorneys' fees and disbursements and liabilities arising
under the Securities Laws and any state and foreign securities and
blue sky laws) ("Losses") arising directly or indirectly from any
appropriate and reasonable action or omission to act which
Sub-Administrator takes in connection with the provision of services
to the Administrator. Neither Sub-Administrator, nor any of its
affiliates, shall be indemnified against any liability (or any
expenses incident to such liability) caused by Sub-Administrator's or
its affiliates' material and uncured breach of any term of this
Agreement or Sub-Administrator's or its affiliates' willful
misfeasance, bad faith, gross negligence or reckless disregard in the
performance of Sub-Administrator's activities under this Agreement.
(b) Sub-Administrator agrees to indemnify and hold harmless the
Administrator and its affiliates (including, without limitation, its
officers, directors, and employees) from all Losses arising from
Sub-Administrator's or its affiliates' material and uncured breach of
any term of this Agreement or Sub-Administrator's or its affiliates'
willful misconduct, bad faith, gross negligence or reckless disregard
in the performance of Sub-Administrator's activities under this
Agreement.
(c) In any case in which one party hereto (the "Indemnifying Party") may
be asked to indemnify or hold the other party hereto (the "Indemnified
Party") harmless, the Indemnified Party will notify the Indemnifying
Party promptly after identifying any situation which it believes
presents or appears likely to present a claim for indemnification (an
"Indemnification Claim") against the Indemnifying Party, although the
failure to do so shall not prevent recovery by the Indemnified Party
(except to the extent the Indemnifying Party shows that the delay
prejudiced the defense of the action), and shall keep the Indemnifying
Party advised with respect to all developments concerning such
situation. The Indemnifying Party may participate in the defense of
against, and shall have the option to defend the Indemnified Party
against, any Indemnification Claim which may be the subject of this
indemnification, and, in the event that the Indemnifying Party so
elects to assume the defense, such defense shall be conducted by
counsel chosen by the Indemnifying Party and satisfactory to the
Indemnified Party, and thereupon the Indemnifying Party shall take
over complete defense of the Indemnification Claim and the Indemnified
Party shall sustain no further legal or other expenses in respect of
such Indemnification Claim (except for reasonable investigation
costs). In the event that the Indemnifying Party does not elect to
assume the defense of any such suit within 15 days of its receipt of
notice of the Indemnification Claim, or in case the Indemnified Party
reasonably does not approve of counsel chosen by the Indemnifying
Party, or in case there is a conflict of interest between the
Indemnifying Party or the Indemnified Party, the Indemnifying Party
will reimburse the Indemnified Party for the fees and expenses of any
counsel retained
by the Indemnified Party. The Indemnified Party will not confess any
Indemnification Claim or make any compromise in any case in which the
Indemnifying Party will be asked to provide indemnification, except
with the Indemnifying Party's prior written consent (which shall not
be unreasonably withheld, delayed or conditioned); provided that if
the Indemnifying Party fails to participate in or assume the defense
within 15 days after receiving notice of the action, the Indemnifying
Party is bound by any determination made in the action or by any
compromise or settlement made by the other party.
(d) The provisions of this Section 12 shall survive termination of this
Agreement.
13. RESPONSIBILITY OF THE SUB-ADMINISTRATOR.
(a) The Sub-Administrator shall be under no duty to take any action
hereunder on behalf of the Trust or Administrator except as
specifically set forth herein or as may be specifically agreed to by
the Sub-Administrator and the Administrator in a written amendment
hereto. The Sub-Administrator shall be obligated to exercise care and
diligence in the performance of its duties hereunder and to act in
good faith in performing services provided for under this Agreement.
The Sub-Administrator shall be liable only for any damages to the
extent such damages arise out of the Sub-Administrator' material and
uncured breach of this Agreement, willful misfeasance, bad faith,
gross negligence or reckless disregard of such duties.
(b) Notwithstanding anything in this Agreement to the contrary, (i)
Sub-Administrator shall not be liable for losses, delays, failure,
errors, interruption or loss of data occurring directly or indirectly
by reason of circumstances beyond its reasonable control, including
without limitation acts of God; action or inaction of civil or
military authority; public enemy; war; terrorism; riot; fire; flood;
sabotage; epidemics; labor disputes; civil commotion; interruption,
loss or malfunction of utilities, transportation, computer or
communications capabilities; insurrection; elements of nature; or
non-performance by a third party (unless such
third party was engaged by Sub-Administrator); provided that
Sub-Administrator has adopted and implemented a commercially
reasonable Disaster Recovery Plan; and (ii) Sub-Administrator shall
not be under any duty or obligation to inquire into and shall not be
liable for the validity or invalidity, authority or lack thereof, or
truthfulness or accuracy or lack thereof, of any instruction,
direction, notice, instrument or other information which
Sub-Administrator reasonably believes to be genuine.
(c) Notwithstanding anything in this Agreement to the contrary, neither
Sub-Administrator nor its affiliates shall be liable for any
consequential, special or indirect losses or damages, whether or not
the likelihood of such losses or damages was known by
Sub-Administrator or its affiliates.
(d) Each party shall have a duty to mitigate damages for which the other
party may become responsible.
(e) Notwithstanding anything in this Agreement to the contrary,
Sub-Administrator shall have no liability either for any error or
omission of any of its predecessors as servicer on behalf of the
Administrator or for any failure to discover any such error or
omission.
(f) The provisions of this Section 13 shall survive termination of this
Agreement.
14. DESCRIPTION OF SERVICES ON A CONTINUOUS BASIS.
The Sub-Administrator will perform the following services for the
Administrator with respect to each Fund:
(i) Prepare quarterly broker security transactions summaries;
(ii) Prepare monthly security transaction listings;
(iii) Supply on an ongoing basis Fund and Trust statistical data including
total returns (gross and after tax), one-, seven- and 30-day yields,
monthly expense ratios, and such other normal and customary
statistical data as mutually agreed;
(iv) Provide quarterly expense budget analysis to Administrator and update
expense accruals upon receipt of Written Instructions from the
Administrator;
(v) Prepare for execution and file the Trust's Federal and state tax
returns, and Form 1099-MISC;
(vi) Provide tax-basis estimates of income and capital gain distribution
requirements for each fund, twice annually, at the request of the
advisor in accordance with IRS rules for regulated investment
companies and other applicable regulatory requirements.
(vii) Calculate various contractual expenses (e.g., advisory and custody
fees);
(viii) Monitor the expense accruals and notify an officer of the Fund of
any proposed adjustments;
(ix) Control all disbursements and authorize such disbursements upon
Written Instructions;
(x) Monitor each Fund's status as a regulated investment company under
Sub-chapter M of the Internal Revenue Code of 1986, as amended
provided that the fund acknowledges that PFPC monitors such status on
a trade receipt + 1 basis;
(xi) Prepare the Trust's financial statements in connection with the
Trust's annual and semi-annual shareholder reports, and prepare and
coordinate the filing of Forms N-CSR, N-Q, and N-PX (provided proxy
voting records are delivered to PFPC in the format required by PFPC),
in each such case working in coordination with the printer and/or
other vendor selected and approved by mutual agreement of the
Sub-Administrator and the Administrator;
(xii) Assist Trust counsel in the preparation of and coordinate the filing
of annual Post-Effective Amendments to the Trust's Registration
Statement; prepare and file (or coordinate the filing of) (i)
semi-annual reports on Form N-SAR and (ii) Notices pursuant to Rule
24f-2;
(xiii) Administratively assist in obtaining the fidelity bond and
directors' and officers'/errors and omissions insurance policies for
the Trust in accordance with the requirements of Rule 17g-1 and
17d-1(d)(7) under the 1940 Act as such bond and policies are approved
by the Trust's Board of Trustees;
(xiv) Coordinate the assembly and mailing of board materials for quarterly
board meetings;
(xv) Attend quarterly board meetings;
(xvi) Maintain a regulatory calendar for the Trust (with a copy to the
Administrator) listing various SEC filing and board approval
deadlines;
(xvii) As requested by the Board of Trustees of the Trust, and on such
terms and conditions as the parties shall mutually agree, make
available a PFPC employee to serve, upon appointment as such by the
Board of Trustees of the Trust, as the chief financial officer of the
Trust; and
(xviii) As requested by the Board of Trustees of the Trust, make available
appropriate individuals to serve as officers of the Trust (to serve
only in ministerial or administrative capacities relevant to PFPC's
services hereunder).
All regulatory services are subject to the review and approval of Trust
counsel. For clarification, PFPC may freely send regulatory services
materials to Trust counsel and, upon request by Administrator, shall send
regulatory services materials to Administrator counsel for review and
approval, notwithstanding the provisions of Section 5 of this Agreement.
15. DATA REPOSITORY AND ANALYTICS SUITE.
The Sub-Administrator will provide to the Administrator the data repository
and analytics suite services as set forth on Exhibit C attached hereto and
made a part hereof, as such Exhibit C may be amended from time to time.
Persons who are Authorized Persons may access the data repository and
analytics suite are set forth on Exhibit D attached hereto and made a part
hereof, as such Exhibit D may be amended from time to time.
16. DURATION AND TERMINATION.
(a) This Agreement shall be effective on the date first written above and
unless terminated pursuant to its terms shall continue for a period of
three (3) years (the "Initial Term").
(b) Upon the expiration of the Initial Term, this Agreement shall
automatically renew for successive terms of one (1) year ("Renewal
Terms") each, unless the Sub-Administrator or the Administrator
provides written notice to the other party of its intent not to renew.
Such notice must be received not less than ninety (90) days prior to
the expiration of the Initial Term or the then current Renewal Term.
(c) In the event of termination, all reasonable, documented, out-of-pocket
expenses associated with movement of records and materials and
conversion thereof to the Administrator or such other successor
sub-administrator as the Administrator may designate to the
Sub-Administrator in writing will be borne by the Administrator.
(d) If a party hereto is guilty of a material failure to perform its
duties and obligations hereunder (a "Defaulting Party") the other
parties (the "Non-Defaulting Parties") may give written notice thereof
to the Defaulting Party, and if such material breach shall not have
been remedied within thirty (30) days after such written notice is
given, then the Non-Defaulting Parties may terminate this Agreement by
giving thirty (30) days written notice of such termination to the
Defaulting Party. In all cases, termination by the Non-Defaulting
Parties shall not constitute a waiver by the Non-Defaulting Parties of
any other rights it might have under this Agreement or otherwise
against the Defaulting Party.
(e) Notwithstanding anything contained in this Agreement to the contrary,
should a merger, acquisition, change in control, re-structuring,
re-organization or any other decision involving the Trust or any
affiliate (as defined under the 0000 Xxx) of the Trust result in the
Trust's or the Administrator's desire to cease to use the
Sub-Administrator as the provider of any of the services set forth
hereunder in favor of another service provider prior to the expiration
of the then current Initial or Renewal Term, the Sub-Administrator
shall make a good faith effort to facilitate a conversion of services
to the Trust's or Administrator's successor service, provider,
however, there can be no guarantee that the Sub-Administrator will be
able to facilitate such a conversion of services on the conversion
date requested by the Trust or the Administrator. In connection with
the foregoing and prior to such conversion to the successor service
provider, the payment of all fees to the Sub-Administrator as set
forth herein shall be accelerated to a date prior to the conversion or
termination of services and calculated as if the services had remained
with the Sub-Administrator until the expiration of the then current
Initial or Renewal Term and calculated at the asset and/or Shareholder
account levels, as the case may be, on the date notice of termination
was given to the Sub-Administrator.
17. NOTICES. Notices shall be addressed (a) if to the Sub-Administrator at 000
Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000, Attention: President (or such
other address as the Sub-Administrator may inform the Trust and the
Administrator in writing); (b) if to the Administrator at 000 Xxxxxxxxxxxx
Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, XX 00000, (or such other address as the
Administrator may inform the Trust and the Sub-Administrator in writing;
and (c) if to the Trust, 000 Xxxxxxxxxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxx, XX
00000, Attention: President (or such other address as the Trust may inform
the Administrator and the Sub-Administrator in writing). If notice is sent
by confirming telegram, cable, telex or facsimile sending device, it shall
be deemed to have been given immediately. If notice is sent by first-class
mail, it shall be deemed to have been given three (3) days after it has
been mailed. If notice is sent by messenger, it shall be deemed to have
been given on the day it is delivered.
18. AMENDMENTS. This Agreement, or any term thereof, may be changed or waived
only by written amendment, signed by the party against whom enforcement of
such change or waiver is sought.
19. DELEGATION; ASSIGNMENT. The Sub-Administrator may assign its rights and
delegate its duties hereunder to any majority-owned direct or indirect
subsidiary of the Sub-Administrator or of The PNC Financial Services Group,
Inc., provided that the Sub-Administrator gives the Administrator and the
Trust thirty (30) days prior written notice of such assignment or
delegation.
20. COUNTERPARTS. This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
21. FURTHER ACTIONS. Each party agrees to perform such further acts and execute
such further documents as are necessary to effectuate the purposes hereof.
22. MISCELLANEOUS.
(a) Notwithstanding anything in this Agreement to the contrary,
Administrator agrees to notify Sub-Administrator (which may be done in
the ordinary course of business discussions)(the "Notice") of any
modifications made to a Fund's Registration Statement (each an "RS
Amendment") or policies (each a "Policy Amendment") which affect
Sub-Administrator's responsibilities under this Agreement; provided
that, Sub-Administrator shall not be bound by any such modifications
which, in either case, would affect materially the obligations or
responsibilities of Sub-Administrator hereunder if Sub-Administrator
objects in writing to such modifications within ten (10) days' of
receipt of the Notice; provided that implementation of any such
modification or change by Sub-Administrator shall be deemed to
conclusively establish such acceptance.
(b) During the term of this Agreement and for one year thereafter, the
Administrator shall not (with the exceptions noted in the immediately
succeeding sentence) knowingly solicit or recruit for employment or
hire any of the Sub-Administrator's employees. To "knowingly" solicit,
recruit or hire within the meaning of this provision does not include,
and therefore does not prohibit, solicitation, recruitment or hiring
of a Sub-Administrator employee by the
Administrator, if the Sub-Administrator employee was identified by
such entity solely as a result of the Sub-Administrator employee's
response to a general advertisement by such entity in a publication of
trade or industry interest or other similar general solicitation by
such entity.
(c) This Agreement embodies the entire agreement and understanding between
the parties and supersedes all prior agreements and understandings
relating to the subject matter hereof, provided that the parties may
embody in one or more separate documents their agreement, if any, with
respect to delegated duties. The captions in this Agreement are
included for convenience of reference only and in no way define or
delimit any of the provisions hereof or otherwise affect their
construction or effect. Notwithstanding any provision hereof, the
services of the Sub-Administrator are not, nor shall they be,
construed as constituting legal advice or the provision of legal
services for or on behalf of the Administrator, the Trust or any other
person.
(d) The Administrator will provide such information and documentation as
the Sub-Administrator may reasonably request in connection with
services provided by the Sub-Administrator hereunder.
(e) This Agreement shall be deemed to be a contract made in Delaware and
governed by Delaware law, without regard to principles of conflicts of
law.
(f) If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby. This Agreement shall be
binding upon and shall inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
(g) The facsimile signature of any party to this Agreement shall
constitute the valid and binding execution hereof by such party.
(h) To help the U.S. government fight the funding of terrorism and money
laundering activities, U.S. Federal law requires each financial
institution to obtain, verify, and record certain information that
identifies each person who initially opens an account with that
financial institution on or after October 1, 2003. Certain of the
Sub-Administrator's affiliates are financial institutions, and the
Sub-Administrator may, as a matter of policy, request (or may have
already requested) the Trust and the Administrator's name, address and
taxpayer identification number or other government-issued
identification number, and, if such party is a natural person, that
party's date of birth. The Sub-Administrator may also ask (and may
have already asked) for additional identifying information, and the
Sub-Administrator may take steps (and may have already taken steps) to
verify the authenticity and accuracy of these data elements.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
BB&T ASSET MANAGEMENT, INC.
By:
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Name:
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Title:
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PFPC INC.
By:
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Name:
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Title:
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EXHIBIT A
THIS EXHIBIT A, dated as of April 23, 2007 is Exhibit A to that certain
Sub-Administration Services Agreement dated as of April 23, 2007 between the
Administrator and the Sub-Administrator.
FUNDS
BB&T Capital Manager Equity Variable Insurance Fund
BB&T Large Cap Variable Insurance Fund
BB&T Mid Cap Growth Variable Insurance Fund
BB&T Special Opportunities Variable Insurance Fund
BB&T Total Return Bond Variable Insurance Fund
EXHIBIT B
DATA REPOSITORY AND ANALYTICS SUITE
1. SUB-ADMINISTRATOR SERVICES. Sub-Administrator will:
(a) Provide Internet access to Sub-Administrator's data repository and
analytics suite at xxx.xxxxxxxxxxxx.xxx or other site operated by
Sub-Administrator (the "Site") for Trust portfolio data otherwise
supplied by Sub-Administrator to the Administrator and other Trust
service providers via other electronic and manual methods. Types of
information to be provided on the Site include: (i) data relating to
portfolio securities (other than Compliance Reporting Services, as
defined below), (ii) general ledger balances and (iii) net asset
value-related data, including NAV and net asset, distribution and
yield detail (collectively, the "Accounting Services"). Types of
information to be provided on the Site also include: data relating to
portfolio securities relative to certain provisions of the Internal
Revenue Code, securities laws or the Trust's offering documents
(collectively, the "Compliance Reporting Services") the Accounting
Services and the Compliance Reporting Services are together referred
to in Exhibits B and C as the "Services"). The parties hereby agree
that Sub-Administrator shall have no liability whatsoever with respect
to the accuracy or inaccuracy or complete or incomplete nature of data
or information provided on the Site, except that (i) to the extent
data provided on the Site is received from a party other than the
Sub-Administrator (a "Third Party"), or is calculated based on data
received from a Third Party, then such data or information as of the
time posted on the Site will be an accurate duplication, consolidation
and/or calculation of the underlying data provided to PFPC, as
applicable; and (ii) to the extent that Sub-Administrator generates
original data or information provided on the Site that was not
received from a Third Party, this liability exclusion shall not apply.
The parties hereby agree that the Compliance Reporting Services are
provided for back-end compliance purposes only.
(b) Supply each of the Authorized Persons specified on Exhibit C as
permissible users of the Data Repository and Analytics Suite (the
"Users") with a logon ID and Password;
(c) Provide to Users access to the information listed in (a) above using
standard inquiry tools and reports. With respect to the Accounting
Services, Users will be able to modify standard inquiries to develop
user-defined inquiry tools; however, Sub-Administrator will review
computer costs for running user-defined inquiries and may assess
surcharges for those requiring excessive hardware resources. In
addition, costs for developing custom reports or enhancements are not
included in the fees set forth below and will be billed separately to
the Administrator.
(d) Utilize a form of encryption that is generally available to the public
in the U.S. for standard Internet browsers and establish, monitor and
verify firewalls and other security features (commercially reasonable
for this type of information and these types of users) and exercise
commercially reasonable efforts to attempt to maintain the security
and integrity of the Site; and
(e) Monitor the telephone lines involved in providing the Services and
inform the Trust promptly of any malfunctions or service
interruptions.
2. DUTIES OF THE TRUST AND THE USERS. The Administrator and the Users (to the
extent applicable) will:
(a) Provide and maintain a web browser supporting Secure Sockets Layer
128-bit encryption; and
(b) Keep logon IDs and passwords confidential and notify Sub-Administrator
immediately in the event that a logon ID or password is lost, stolen
or if you have reason to believe that the logon ID and password are
being used by an unauthorized person.
3. STANDARD OF CARE; LIMITATIONS OF LIABILITY.
(a) Notwithstanding anything to the contrary contained in this Exhibit or
any other part of the Agreement, Sub-Administrator shall be liable for
direct damages incurred by the Trust or the Administrator which arise
out of Sub-Administrator's failure to perform its duties and
obligations described in this Exhibit only to the extent such damages
constitute willful misfeasance, bad faith, gross negligence or
reckless disregard, or any material, uncured breach of this Agreement
by Sub-Administrator.
(b) The Administrator acknowledges that the Internet is an "open,"
publicly accessible network and not under the control of any party.
Sub-Administrator's provision of Services is dependent upon the proper
functioning of the Internet and services provided by
telecommunications carriers, firewall providers, encryption system
developers and others. The Administrator agrees that Sub-Administrator
shall not be liable in any respect for the actions or omissions of any
third party wrongdoers (i.e., hackers not employed by such party or
its affiliates) or of any third parties involved in the Services and
shall not be liable in any respect for the selection of any such third
party, unless the access by such third party wrongdoers or third
parties involved in the Services constitutes a breach of
Sub-Administrator's standard of care above, or that selection of the
third party constitutes a breach of Sub-Administrator's standard of
care above.
(c) Without limiting the generality of the foregoing or any other
provisions of this Exhibit or the Agreement, Sub-Administrator shall
not be liable for delays or
failures to perform any of the Services or errors or loss of data
occurring by reason of circumstances beyond such party's control,
including acts of civil or military authority, national emergencies,
labor difficulties, fire, flood, catastrophe, acts of God,
insurrections, war, riots or failure of the mails, transportation,
communication or power supply, functions or malfunctions of the
Internet or telecommunications services, firewalls, encryption systems
or security devices caused by any of the above, or laws or regulations
imposed after the date of this Exhibit; provided, that
Sub-Administrator maintains and implements the Disaster Recovery Plan.
4. DURATION, TERMINATION AND CHANGES TO TERMS.
(a) Sub-Administrator shall have the right at any time to provide notice
of changes to the terms described in this Exhibit B. Such changes will
become effective and bind the parties hereto after sixty (60) days
from the date Sub-Administrator notifies the Administrator of such
changes, unless the Administrator objects to such changes, terminates
this Exhibit B pursuant hereto or the parties agree otherwise at such
time.
(b) Either party may terminate this Exhibit B upon sixty (60) days' prior
written notice to the other. Any outstanding fees must be paid before
this Agreement terminates, unless Sub-Administrator waives such
requirement.
5. MISCELLANEOUS. In the event of a conflict between specific terms of this
Exhibit and the balance of the Agreement, this Exhibit shall control as to
the Services.
EXHIBIT C
DATA REPOSITORY AND ANALYTICS SUITE AUTHORIZED PERSONS
The following individuals shall be Trust Authorized Persons to access
Sub-Administrator's data repository and analytics suite:
NAME COMPANY OR FIRM SIGNATURE
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