KEYPORT VARIABLE INVESTMENT TRUST
UNDERWRITING AGREEMENT
AGREEMENT made this 7th day of June, 1993, between Keyport
Variable Investment Trust, a Massachusetts business trust (the
"Trust"), and Keyport Financial Services Corp., a Massachusetts
corporation (the "Underwriter").
W I T N E S S E T H
WHEREAS, the Trust is an open-end investment company
registered under the Investment Company Act of 1940 (the "1940
Act") the shares of beneficial interest ("shares") of which are
registered under the Securities Act of 1933(the "1933 Act"); and
WHEREAS, the Trust is a series investment company currently
consisting of three funds, namely Colonial-Keyport U.S. Government
Fund, Colonial-Keyport Growth and Income Fund, and Colonial-
Keyport Utilities Fund (collectively referred to as the "Funds");
and
WHEREAS, the Trust has agreed to sell its shares to the
the separate accounts of Keyport Life Insurance Company
("Keyport") and Liberty Life Assurance Company of Boston
("Liberty"), and separate accounts of other insurance companies
investing in the Trust pursuant to a Participation Agreement
("Separate Accounts"), in order to fund such Separate Accounts and
certain variable life insurance policies and variable annuity
contracts (the "Contracts") issued by Keyport, Liberty and any
such other insurance companies; and
WHEREAS, the Underwriter is a broker-dealer registered under
the Securities Exchange Act of 1934 (the "1934 Act") and is a
member of the National Association of Securities Dealers, Inc.
(the "NASD"); and
WHEREAS, the Underwriter serves as the principal underwriter
for certain Separate Accounts in connection with the sale of the
Contracts; and
WHEREAS, the Trust desires to appoint the Underwriter as the
principal underwriter for the Trust's shares that the Trust will
sell for the purpose of funding the Contracts issued by Keyport
and Liberty and any other variable insurance products funded
through the Separate Accounts, and such other separate accounts as
may be established by Keyport and Liberty and other insurance
companies affiliated or unaffiliated with Keyport and Liberty, and
the Underwriter is willing to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants
hereinafter contained, it is hereby agreed by and between the
parties hereto as follows:
1. The Trust hereby appoints the Underwriter as the
principal underwriter and distributor for the Trust, on the terms
and conditions herein provided, to sell its shares to the Separate
Accounts in jurisdictions wherein shares of the Trust may legally
be offered to the Separate Accounts for sale, it being understood
that the Trust in its absolute discretion may issue or sell shares
directly to holders of shares of the Trust upon such terms and
conditions and for such consideration, if any, as it may
determine, whether in connection with the distribution of
subscription or purchase rights, the payment or reinvestment of
dividends or distributions, or otherwise. The Underwriter shall
act solely as a disclosed agent on behalf of and for the account
of the Trust. The Trust and its transfer agent shall receive
directly from the Separate Accounts all payments for purchase of
shares of the Trust, and shall pay directly to the Separate
Accounts all amounts due them upon redemption of such shares, and
the Underwriter shall have no liability for the payment for
purchase of shares of the Trust which it sells as agent.
2. The Underwriter hereby accepts its appointment as the
principal underwriter and distributor for the Trust's shares. The
Underwriter shall be subject to the direction and control of the
Trust in the sale of its shares and shall not be obligated to sell
any specific number of shares of any Fund.
3. The Trust will use its best efforts to keep effectively
registered under the 1933 Act for sale as herein contemplated such
shares as the Underwriter shall reasonably request and as the
Securities and Exchange Commission (the "SEC") shall permit to be
so registered.
4. Notwithstanding any other provision hereof, the Trust may
terminate, suspend or withdraw the offering of shares whenever, in
its sole discretion, it deems such action to be desirable.
5. Shares of the Trust shall be sold, repurchased or
redeemed at the current public offering price per share. The
current public offering price of the Trust's shares shall be the
net asset value per share as determined in the manner and at the
times set forth in the then current prospectus for the Trust.
6. The Trust shall continuously offer and redeem its shares
at net asset value without addition of selling commission, sales
load or redemption charge. The Underwriter will receive no
compensation for the performance of its duties hereunder, except
as otherwise specifically provided.
7. The Underwriter, or its agent, shall issue and deliver on
behalf of the Trust such confirmations of sales to the Separate
Accounts made by the Underwriter as agent pursuant to this
Agreement as may be required. Certificates, if any, shall be
issued or shares registered on the record books of the Trust or
its transfer or similar agent in such names and denominations as
the Underwriter may specify.
8. The Trust will furnish to the Underwriter from time to
time such information with respect to the Trust and its shares as
the Underwriter may reasonably request for use in connection with
the sales and distribution of shares of the Trust. The Trust will
furnish to the Underwriter in reasonably quantities, upon request
by the Underwriter, copies of annual and interim reports of the
Trust.
9. The Underwriter will not use, distribute or disseminate
or authorize the use, distribution or dissemination, in connection
with the sale and distribution of shares of the Trust, any
statements, other than those contained in the Trust's current
prospectus, except such supplemental literature or advertising as
shall be lawful under federal and any state securities laws and
regulations. The Underwriter will furnish the Trust with copies
of all material containing such statements. Neither the
Underwriter nor any other person is authorized by the Trust to
give any information or to make any representations, other than
those contained in the registration statement (or related
prospectus or statement of additional information), or any
advertising or sales literature authorized by responsible officers
of the Trust. The Underwriter shall cause any sales literature,
advertising, or other similar materials to be filed with and
reviewed by the NASD, the SEC, or any other required securities
regulatory body, as appropriate.
10. The Trust shall use its best efforts to qualify and
maintain the qualification of an appropriate number of shares of
the Trust and each Fund for sale under the federal securities laws
and the securities laws of such states, if any, as the Underwriter
may reasonably request. The Trust shall promptly notify the
Underwriter if the registration or qualification of any Trust
shares under federal or any state securities laws, or the Trust's
registration statement under the 1940 Act, is suspended or
terminated, or if any governmental body or agency institutes
proceedings to terminate the offer and sale of any Trust shares in
any jurisdiction.
11. The Underwriter shall order shares of the Trust from the
Trust only to the extent that it shall have received purchase
orders therefor. The Underwriter will not make any short sales of
shares of the Trust.
12. In selling or reacquiring shares of the Trust the
Underwriter will in all respects conform to the requirements of
federal and state laws, if any, and the Rules of Fair Practice of
the NASD, relating to such sale or reacquisition, as the case may
be. The Underwriter will observe and be bound by all the
provisions of the Trust's Agreement and Declaration of Trust (and
of any fundamental policies adopted by the Trust pursuant to the
1940 Act, written notice of which shall have been given to the
Underwriter) which at the time in any way require, limit, restrict
or prohibit or otherwise regulate any action on the part of the
Underwriter.
13. The Underwriter will conform to the provisions hereof
and the registration statement at the time in effect under the
1933 Act and 1940 Act with respect to the Trust and the Trust's
shares, and the Underwriter shall not withhold the placing of
purchase orders so as to make a profit thereby.
14. The Trust will pay or cause to be paid expenses
(including the fees and disbursements of its own counsel) and all
taxes and fees payable to any federal, state or other governmental
agencies on account of the registration or qualification of
securities issued by the Trust or otherwise. The Trust will also
pay or cause to be paid expenses incident to the issuance of
shares of beneficial interest, such as the cost of share
certificates, issue taxes, and fees of the transfer agent. The
Underwriter will pay all expenses in connection with its own
operations. All other expenses related hereto shall be borne by
the Trust or parties related to the Trust.
15. The Underwriter, or its agent, shall maintain all books
and records required by the 1934 Act and rules thereunder with
respect to the purchase, redemption or repurchase of Trust shares.
All books and records required to be maintained by this paragraph
shall be maintained and preserved in conformity with the
requirements of Rule 17a-3 and 17a-4 under the 1934 Act, be and
remain the property of the Underwriter, and be at all times
subject to inspection by the SEC in accordance with Section 17(a)
of the 1934 Act. The Underwriter shall itself maintain the books
and records relating to a Underwriter's general assets and
liabilities or financial statements, the computation of its
aggregate indebtedness or net capital, employment records or any
other records not specifically relating to particular purchases,
redemptions or repurchases of Trust shares.
16. The Underwriter shall be an independent contractor with
respect to the Trust and nothing herein contained shall constitute
the Underwriter, its agent or representative, or any employee
thereof as employees of the Trust in connection with sale of
shares of the Trust. The Underwriter is responsible for its own
conduct and the employment, control and conduct of its agents and
employees, and for injury to such agents or employees or to others
through its agents or employees. The Underwriter assumes full
responsibility for its agents and employees under applicable
statutes and agrees to pay all applicable employer taxes.
17. The Underwriter shall indemnify and hold harmless the
Trust and each of its directors and officers (or former officers
and directors) and each person, if any, who controls the Trust
(collectively, "Indemnitees") against any loss, liability, claim,
damage, or expense (including the reasonable cost of investigating
and defending against the same any counsel fees reasonably
incurred in connection therewith) incurred by any Indemnitees
under the 1933 Act or under common law or otherwise which arise
out of or are based upon (1) any untrue or alleged untrue
statement of a material fact contained in information furnished by
the Underwriter to the Trust for use in the Trust's registration
statement, prospectus and statement of additional information or
any supplements thereto (hereinafter collectively referred to as
the "prospectus," unless otherwise noted), or annual or interim
reports to shareholders, (2) any omission or alleged omission to
state a material fact in connection with such information
furnished by the Underwriter to the Trust which is required to be
stated in any of such documents or necessary to make such
information not misleading, (3) any misrepresentation or omission
or alleged misrepresentation or omission to state a material fact
on the part of the Underwriter or any agent or employee of the
Underwriter or any other person for whose acts the Underwriter is
responsible, unless such misrepresentation or omission or alleged
misrepresentation or omission was made in reliance on written
information furnished by the Trust, or (4) the willful misconduct
or failure to exercise reasonable care and diligence on the part
of any such persons enumerated in clause (3) of this section 17
with respect to services rendered under this Agreement. This
indemnity provision, however, shall not operate to protect any
officer or trustee of the Trust from any liability to the Trust or
any shareholder by reason of willful misfeasance, bad faith, gross
negligence or reckless disregard of the duties involved in the
conduct of the office of such officer or trustee.
In case any action shall be brought against any Indemnitee,
the Underwriter shall not be liable under its indemnity agreement
contained in this section with respect to any claim made against
any Indemnitee, unless the Indemnitee shall have notified the
Underwriter in writing within a reasonable time after the summons
or other first legal process giving information of the nature of
the claim that shall have been served upon the Indemnitee (or
after the Indemnitee shall have received notice of such service on
any designated agent). Failure to notify the Underwriter of any
such claim shall not relieve it from liability which it may have
to the person against whom such action is brought otherwise than
on account of its indemnity agreement contained in this section.
The Underwriter will be entitled to participate at its own expense
in the defense, or, if it so elects, to assume the defense of any
suit brought to enforce any such liability, but if the Underwriter
elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Indemnitees which are
defendants in the suit. In the event the Underwriter elects to
assume the defense of any such suit and retain such counsel, the
Indemnitees which are defendants in the suit shall bear the fees
and expenses of any additional counsel retained by them, but, in
case the Underwriter does not elect to assume the defense of any
such suit, the Underwriter will reimburse the Indemnitees which
are defendants in the suit for the reasonable fees and expenses of
any counsel retained by them.
The Underwriter shall promptly notify the Trust of the
commencement of any litigation or proceedings in connection with
the issuance or sale of the shares.
The Trust will indemnify and hold harmless the Underwriter
against any loss, liability, claim, damage or expense, to which
the Underwriter may become subject, insofar as such loss,
liability, claim, damage or expense (or action in respect thereof)
arise out of or are based upon any untrue or alleged untrue
statement of material fact contained in the Trust's registration
statement (or related prospectus) or arise out of or are based
upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse the
Underwriter for any legal or other expenses reasonably incurred by
it in connection with investigating or defending against such
loss, claim, damage, liability or action; provided, however, that
the Trust shall not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in the Trust's prospectus in
reliance upon and in conformity with written information furnished
by the Underwriter specifically for use in the preparation
thereof.
The Trust shall not indemnify the Underwriter for any action
where a purchaser of the Contracts was not furnished or sent or
given, at or prior to written confirmation of the sale of the
Contracts, a copy of the prospectus for the Trust.
18. This Agreement shall become effective on the date hereof
and shall continue in effect until May 31, 1995, and from year
to year thereafter but only so long as such continuance is
specifically approved in the manner required by the 1940 Act.
Either party hereto may terminate this Agreement without payment
of any penalty on any date by giving the other party at least six
months prior written notice of such termination specifying the
date fixed therefor. Without prejudice to any other remedies of
the Trust, in any such event the Trust may terminate this
Agreement at any time immediately upon any failure of fulfillment
of any of the obligations of the Underwriter hereunder.
19. This Agreement shall automatically terminate in the event
of it assignment. Without limiting the generality of the
foregoing, the term "assigned," when used in this Agreement, shall
have the meaning specified in the 1940 Act and the rules
thereunder.
20. Any notice under this Agreement shall be in writing,
addressed and delivered or mailed, postage prepaid, to the other
party at such address as such other party may designate for the
receipt of such notice.
21. All parties hereto are expressly put on notice of the
Trust's Agreement and Declaration of Trust dated March 4, 1993,
and all amendments thereto, all of which are on file with the
Secretary of the Commonwealth of Massachusetts and with the Boston
City Clerk, and the limitation of shareholder and trustee
liability contained therein. This Agreement has been executed by
and on behalf of the Trust by its representatives as such
representatives and not individually, and the obligations of the
Trust hereunder are not binding upon any of the trustees,
officers, employees, agents or shareholders of the Trust
individually but are binding upon only the assets and property of
the Trust. With respect to any claim by the Underwriter for
recovery of any liability of the Trust arising hereunder allocated
to a particular Fund of the Trust if there be more than one,
whether in accordance with the express terms hereof or otherwise,
the Underwriter shall have recourse solely against the assets of
that Fund to satisfy such claim and shall have no recourse against
the assets of any other Fund for such purpose.
22. This Agreement shall be construed in accordance with the
laws of the Commonwealth of Massachusetts and the applicable
provisions of the 1940 Act and rules thereunder. To the extent
the applicable law of the Commonwealth of Massachusetts, or any
provisions herein, conflict with applicable provisions of the 1940
Act or rules thereunder, the latter shall control.
IN WITNESS WHEREOF, the Trust and the Underwriter have each
caused this Agreement to be executed as of the day and year first
written above.
KEYPORT VARIABLE INVESTMENT TRUST
By XXXXXXX X. XXXXXXXXXXX
Attest: XXXX X. XXXXXXXXX
KEYPORT FINANCIAL SERVICES CORP.
By XXXXXX X. XXXXX
President
Attest: XXXXXXXXX X. LOVE
