EX-99 B. 8.(xiii)
PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT (the "Agreement") made by and between XXXXXXX
VARIABLE SERIES I (formerly Xxxxxxx Variable Life Investment Fund) (the "Fund"),
a Massachusetts business trust created under a Declaration of Trust dated March
15, 1985, as amended, with a principal place of business in Boston,
Massachusetts and First MetLife Investors Insurance Company, a New York
corporation (the "Company"), with a principal place of business in Newport
Beach, California on behalf of separate accounts of the Company referred to in
Schedule A hereto as amended from time to time (each, an "Account").
WHEREAS, the Fund acts as the investment vehicle for the separate
accounts established for variable life insurance policies and variable annuity
contracts (collectively referred to herein as "Variable Insurance Products") to
be offered by insurance companies which have entered into participation
agreements substantially identical to this Agreement ("Participating Insurance
Companies") and their affiliated insurance companies; and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares of beneficial interest without par value ("Shares"), and
additional series of Shares may be established, each designated a. "Portfolio"
and representing the interest in a particular managed portfolio of securities;
and
WHEREAS, each Portfolio of the Fund, except the Money Market Portfolio,
is divided into two classes of Shares, and additional classes of Shares may be
established; and
WHEREAS, the Parties desire to evidence their agreement as to certain
other matters,
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Duty of Fund to Sell.
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The Fund shall make its Shares available for purchase at the applicable
net asset value per Share by Participating Insurance Companies and their
affiliates and separate accounts on those days on which the Fund calculates its
net asset value pursuant to rules of the Securities and Exchange Commission;
provided, however, that the Trustees of the Fund may refuse to sell Shares of
any Portfolio to any person, or suspend or terminate the offering of Shares of
any Portfolio, if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of the Trustees, necessary in
the best interest of the shareholders of any Portfolio.
2. Fund Materials.
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The Fund, at its expense, shall provide the Company or its designee
with camera-ready copy or computer diskette versions of all prospectuses,
statements of additional information, annual and semi-annual reports and proxy
materials (collectively, "Fund Materials") to be printed and distributed by the
Company or its broker/dealer to the Company's existing or prospective contract
owners, as appropriate. The Company agrees to bear the cost of printing and
distributing such Fund Materials.
3. Requirement to Execute Participation Agreement; Requests.
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Each Participating Insurance Company shall, prior to purchasing Shares
in the Fund, execute and deliver a participation agreement in a form
substantially identical to this Agreement.
The Fund shall make available, upon written request from the
Participating Insurance Company given in accordance with Paragraph 9, to each
Participating Insurance Company which has executed an Agreement and which
Agreement has not been terminated pursuant to Paragraph 7 (i) a list of all
other Participating Insurance Companies, and (ii) a copy of the Agreement as
executed by any other Participating Insurance Company.
The Fund shall also make available upon request to each Participating
Insurance Company which has executed an Agreement and which Agreement has not
been terminated pursuant to Paragraph 7, the net asset value of any Portfolio of
the Fund as of any date upon which the Fund calculates the net asset value of
its Portfolios for the purpose of purchase and redemption of Shares.
4. Indemnification.
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(a) The Company agrees to indemnify and hold harmless the Fund and each
of its Trustees and officers and each person, if any, who controls the Fund
within the meaning of Section 15 of the Securities Act of 1933 (the "Act")
against any and all losses, claims, damages, liabilities or litigation
(including legal and other expenses), arising out of the acquisition of any
Shares by any person, to which the Fund or such Trustees, officers or
controlling person may become subject under the Act, under any other statute, at
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common law or otherwise, which (i) may be based upon any wrongful act by the
Company, any of its employees or representatives, any affiliate of or any person
acting on behalf of the Company or a principal underwriter of its insurance
products, or (ii) may be based upon any untrue statement or alleged untrue
statement of a material fact contained in a registration statement or prospectus
covering Shares or any amendment thereof or supplement thereto or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading if such a
statement or omission was made in reliance upon information furnished to the
Fund by the Company, or (iii) may be based on any untrue statement or alleged
untrue statement of a material fact contained in a registration statement or
prospectus covering insurance products sold by the Company or any insurance
company which is an affiliate thereof, or any amendments or supplement thereto,
or the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or statements therein not
misleading, unless such statement or omission was made in reliance upon
information furnished to the Company on such affiliate by or on behalf of the
Fund; provided, however, that in no case (i) is the Company's indemnity in favor
of a Trustee or officer or any other person deemed to protect such Trustee or
officer or other person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties or by reason of his reckless
disregard of obligations and duties under this Agreement or (ii) is the Company
to be liable under its indemnity agreement contained in this Paragraph 4 with
respect to any claim made against the Fund or any person indemnified unless the
Fund or such, person, as the case may be, shall have notified the Company in
writing pursuant to Paragraph 9 within a reasonable time after the summons or
other first legal process giving information of the nature of the claims shall
have been served upon the Fund or upon such person (or after the Fund or such
person shall have received notice of such service on any designated agent), but
failure to notify the Company of any such claim shall not relieve the Company
from any liability which it has to the Fund or any person against whom such
action is brought otherwise than on account of its indemnity agreement contained
in this Paragraph 4. The Company shall be entitled to participate, at its own
expense, in the defense, or, if it so elects, to assume the defense of any suit
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brought to enforce any such liability, but, if it elects to assume the defense,
such defense shall be conducted by counsel chosen by it and satisfactory to the
Fund, to its officers and Trustees, or to any controlling person or persons,
defendant or defendants in the suit. In the event that the Company elects to
assume the defense of any such suit and retain such counsel, the Fund, such
officers and Trustees or controlling person or persons, defendant or defendants
in the suit, shall bear the fees and expenses of any additional counsel retained
by them, but, in ease the Company does not elect to assume the defense of any
such suit, the Company will reimburse the Fund, such officers and Trustees or
controlling person or persons, defendant or defendants in such suit, for the
reasonable fees and expenses of any counsel retained by them. The Company agrees
promptly to notify the Fund pursuant to Paragraph 9 of the commencement of any
litigation or proceedings against it in connection with the issue and sale of
any Shares.
(b) The Fund agrees to indemnify and hold harmless the Company and each
of its directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
it or such directors, officers or controlling person may become subject under
the Act, under any other statute, at common law or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based upon any wrongful
act by the Fund, any of its employees or representatives or a principal
underwriter of the Fund, or (ii) may be based upon any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement or prospectus covering Shares or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading unless such statement or omission was made in reliance upon
information furnished to the Fund by the Company or (iii) may be based on any
untrue statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering insurance products sold by the
Company, or any amendment or supplement thereto, or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not misleading, if such
statement or omission was made in reliance upon information furnished to the
Company by or on behalf of the Fund; provided, however, that in no case (i) is
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the Fund's indemnity in favor of a director or officer or any other person
deemed to protect such director or officer or other person against any liability
to which any such person would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance of his duties or
by reason of his reckless disregard of obligations and duties under this
Agreement or (ii) is the Fund to be liable under its indemnity agreement
contained in this Paragraph 4 with respect to any claims made against the
Company or any such director, officer or controlling person unless it or such
director, officer or controlling person, as the case may be, shall have notified
the Fund in writing pursuant to Paragraph 9 within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon it or upon such director, officer or
controlling person (or after the Company or such director, officer or
controlling person shall have received notice of such service on any designated
agent), but failure to notify the Fund of any claim shall not relieve it from
any 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
Paragraph. The Fund 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 Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
Company, its directors, officers or controlling person or persons, defendant or
defendants, in the suit. In the event the Fund elects to assume the defense of
any such suit and retain such counsel, the Company, its directors, officers or
controlling person or persons, defendant or defendants in the suit, shall bear
the fees and expenses of any additional counsel retained by them, but, in case
the Fund does not elect to assume the defense of any such suit, it will
reimburse the Company or such directors, officers or controlling person or
persons, defendant or defendants in the suit, for the reasonable fees and
expenses of any counsel retained by them. The Fund agrees promptly to notify the
Company pursuant to Paragraph 9 of the commencement of any litigation or
proceedings against it or any of its officers or Trustees in connection with the
issuance or sale of any Shares.
The provisions of this Section 4 shall survive the termination of the
Agreement.
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5. Procedure for Resolving Irreconcilable Conflicts.
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(a) The Trustees of the Fund will monitor the operations of the Fund
for the existence of any material irreconcilable conflict among the interests of
all the contract holders and policy owners of Variable Insurance Products (the
"Participants") of all separate accounts investing in the Fund. An
irreconcilable material conflict may arise, among other things, from: (a) an
action by any state insurance regulatory authority; (b) a change in applicable
insurance laws or regulations; (c) a tax ruling or provision of the Internal
Revenue Code or the regulations thereunder; (d) any other development relating
to the tax treatment of insurers, contract holders or policy owners or
beneficiaries of Variable Insurance Products; (e) the manner in which the
investments of any Portfolio are being managed; (f) a difference in voting
instructions given by variable annuity contract holders, on the one hand, and
variable life insurance policy owners, on the other hand, or by the contract
holders or policy owners of different participating insurance companies; or (g)
a decision by an insurer to override the voting instructions of Participants.
(b) The Company will be responsible for reporting any potential or
existing conflicts to the Trustees of the Fund. The Company will be responsible
for assisting the Trustees in carrying out their responsibilities under this
Paragraph 5(b) and Paragraph 5(a), by providing the Trustees with all
information reasonably necessary for the Trustees to consider the issues raised.
The Fund will also request its investment adviser to report to the Trustees any
such conflict which comes to the attention of the adviser.
(c) If it is determined by a majority of the Trustees of the Fund, or a
majority of its disinterested Trustees, that a material irreconcilable conflict
exists involving the Company, the Company shall, at its expense, and to the
extent reasonably practicable (as determined by a majority of the disinterested
Trustees), take whatever steps are necessary to eliminate the irreconcilable
material conflict, including withdrawing the assets allocable to some or all of
the separate accounts from the Fund or any Portfolio or class thereof and
reinvesting such assets in a different investment medium, including another
Portfolio of the Fund or class thereof offering to the affected Participants the
option of making such a change or establishing a new funding medium including a
registered investment company.
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For purposes of this Paragraph 5(c), the Trustees, or the disinterested
Trustees, shall determine whether or not any proposed action adequately remedies
any irreconcilable material conflict. In the event of a determination of the
existence of an irreconcilable material conflict, the Trustees shall cause the
Fund to take such action, such as the establishment of one or more additional
Portfolios or classes, as they in their sole discretion determine to be in the
interest of all shareholders and Participants in view of all applicable factors,
such as cost, feasibility, tax, regulatory and other considerations. In no event
will the Fund be required by this Paragraph 5(c) to establish a new funding
medium for any variable contract or policy.
The Company shall not be required by this Paragraph 5(c) to establish a
new funding medium for any variable contract or policy if an offer to do so has
been declined by a vote of a majority of the Participants materially adversely
affected by the material irreconcilable conflict. The Company will recommend to
its Participants that they decline an offer to establish a new funding medium
only if the Company believes it is in the best interest of the Participants.
(d) The Trustees' determination of the existence of an irreconcilable
material conflict and its implications promptly shall be communicated to all
Participating Insurance Companies by written notice thereof delivered or mailed,
first class postage prepaid.
6. Privileges.
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The Company shall be responsible for assuring that its separate account
or accounts participating in the Fund shall use a calculation method of voting
procedures substantially the same as the following: those Participants permitted
to give instructions and the number of Shares for which instructions may be
given will be determined as of the record date for the Fund shareholders'
meeting, which shall not be more than 60 days before the date of the meeting.
Whether or not voting instructions are actually given by a particular
Participant, all Fund shares held in any separate account or sub-account thereof
and attributable to policies will be voted for, against, or withheld from voting
on any proposition in the same proportion as (i) the aggregate record date cash
value held in such sub-account for policies giving instructions, respectively,
to vote for, against, or withhold votes on such proposition, bears to (ii) the
aggregate record date cash value held in the subaccount for all policies for
which voting instructions are received. Participants continued in effect under
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lapse options will not be permitted to give voting instructions. Shares held in
any other insurance company general or separate account or sub-account thereof
will be voted in the proportion specified in the second preceding sentence for
shares attributable to policies.
7. Duration and Termination.
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This Agreement shall continue in effect as set forth below. This
Agreement may be terminated at any time, at the option of either of the Company
or the Fund, when neither the Company, any insurance company nor the separate
account or accounts of such insurance company which is an affiliate thereof
which is not a Participating Insurance Company own any Shares of the Fund or may
be terminated by either party to the Agreement upon a determination by a
majority of the Trustees of the Fund, or a majority of its disinterested
Trustees, following certification thereof by a Participating Insurance Company
given in accordance with Paragraph 9 that an irreconcilable conflict exists
among the interests of (i) all contract holders and policy holders of Variable
Insurance Products of all separate accounts or (ii) the interests of the
Participating Insurance Companies investing in the Fund. If this Agreement is so
terminated, the Fund may, at any time thereafter, automatically redeem the
Shares of any Portfolio held by a Participating Shareholder.
8. Compliance.
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The Fund will comply with the provisions of Section 4240(a) of the New
York Insurance Law.
Each Portfolio of the Fund will comply with the provisions of Section
817(h) of the Internal Revenue Code of 1986, as amended (the "Code"), relating
to diversification requirements for variable annuity, endowment and life
insurance contracts. Specifically, each Portfolio will comply with either (i)
the requirement of Section 817(h)(1) of the Code that its assets be adequately
diversified, or (ii) the "Safe Harbor for Diversification" specified in Section
817(h)(2) of the Code. The Fund will notify the Company immediately upon having
a reasonable basis for believing that a Portfolio has ceased to comply with the
requirements of Section 817(h) of the Code or that the Portfolio might not so
comply in the future.
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The provisions of Paragraphs 5 and 6 of this Agreement shall be
interpreted in a manner consistent with any Rule or order of the Securities and
Exchange Commission under the Investment Company Act of 1940, as amended,
applicable to the parties hereto.
No Shares of any Portfolio of the Fund may be sold to the general
public.
9. Notices.
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Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Fund:
Xxxxxxx Variable Series I
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Secretary
If to the Company:
First MetLife Investors Insurance Company
00 Xxxxxxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
10. Massachusetts Law to Apply.
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This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of The Commonwealth of Massachusetts.
11. Miscellaneous.
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The name "Xxxxxxx Variable Series I" is the designation of the Trustees
for the time being under a Declaration of Trust dated March 15, 1985, as
amended, and all persons dealing with the Fund must look solely to the property
of the Fund for the enforcement of any claims against the Fund as neither the
Trustees, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Fund. No Portfolio shall be liable for
any obligations properly attributable to any other Portfolio.
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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. This Agreement may be executed
simultaneously in two or more counterparts, each of which taken together shall
constitute one and the same instrument.
12. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto.
13. Entire Agreement.
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This Agreement incorporates the entire understanding and agreement
among the parties hereto, and supersedes any and all prior understandings and
agreements between the parties hereto with respect to the subject matter hereof
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the 1st day of
May, 2001.
SEAL XXXXXXX VARIABLE SERIES I
By: /S/ Xxxxx Xxxxxxxx
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Its: President
-----------------------------
SEAL FIRST METLIFE INVESTORS
INSURANCE COMPANY
By: ______________________________
Its:______________________________
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AMENDMENTS FOR PARTICIPATION AGREEMENT
As an additional inducement for the Company to enter into the
Agreement, the Fund hereby agrees with the Company as follows:
(1) all shares of the Portfolios will be sold only to Participating
insurance companies which have agreed to participate in the fund to fund their
separate accounts, to certain qualified pension and other retirement plans, and
to certain other entities as allowed under and in accordance with the
requirements of Section 817(h) of the Internal Revenue Code of 1986, as amended
("Code") and Treasury Regulation Sec. 1.817-5;
(2) the Fund shall make the net asset value per Share for the selected
Portfolio(s) available to the Company on a daily basis as soon as reasonably
practicable after the net asset value per share is calculated but shall use
commercially reasonable efforts to make such net asset value available by 6:30
p.m. New York time. If the Fund provides materially incorrect share net asset
value information, the Fund shall make an adjustment to the number of shares
purchased or redeemed for the Account to reflect the current net asset value per
share. Any material error in the calculation or reporting of net asset value per
share, dividend or capital gains information shall be reported promptly upon
discovery to the Insurer;
(3) the Fund will provide the Company with at least one complete copy
of all prospectuses, statements of additional information, annual and
semi-annual reports, proxy statements, exemptive applications and all amendments
or supplements to any of the above that relate to the Portfolios promptly after
the filing of each such document with the Securities and Exchange Commission
("SEC") or other regulatory authority. The Company will provide the Fund with at
least one complete copy of all prospectuses, statements of additional
information, annual and semi-annual reports, proxy statements, exemptive
applications and all amendments or supplements to any of the above that relate
to an Account promptly after the filing of each such document with the SEC or
other regulatory authority.
(4) the Fund will provide the Company with a "camera ready" copy of all
prospectuses, statements of additional information and annual and semiannual
reports as set in type or, at the request of the Company, as a diskette or
electronically in the form sent to the financial printer, in order to allow for
the combined printing of the prospectuses of the Fund, the Variable Insurance
Contracts and other funds invested in by the Variable Insurance Contracts;
(5) the Fund and its affiliates and the agents shall not give any
information or make any representations on behalf of the Company or concerning
the Company, the Accounts or the Variable Insurance Contracts issued by the
Company other than the information or representations contained in a
registration statement or prospectus for such Variable insurance Contracts, as
such registration statement and prospectus may be amended or supplemented from
time to time, or in reports of the accounts or reports prepared for distribution
to owners of such Variable Insurance Contracts, or in sales literature or other
promotional material approved by the company or its designee, except with the
written permission of the Company.
(6) for purposes of the Agreement, the phrase "sales literature or
other promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designated for use,
in a newspaper, magazine or other periodical, radio, television, telephone or
tape recording, videotape displays, signs or billboards, motion pictures or
other public media), sales literature (such as any written communication
distributed or made generally available to customers or the public, including
brochures, circulars, research reports, market letters, form letters, seminar
texts, or reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other communications
distributed or made generally available to some or all agents or employees,
registration statements, prospectuses, statements of additional information,
shareholder reports and proxy materials, and any other material constituting
sales literature or advertising under the National Association of Securities
Dealers, Inc. ("NASD") rules or federal securities laws;
(7) the Agreement shall also terminate in accordance with the following
provisions:
(a) At the option of any party hereto, with or without cause
upon 90 days advance written notice to the other parties;
(b) At the option of the Company, if the number of Fund Shares
available is not reasonably sufficient to meet the requirements of the Variable
Insurance Contracts as determined by the Company. Prompt notice of election to
terminate shall be furnished by the Company, said termination to be effective
ten days after receipt of notice unless the Fund makes available a sufficient
number of Shares to meet the reasonable requirements of the Variable Insurance
Contracts within said ten-day period;
(c) At the option of the Company, upon the institution of
formal proceedings against the Fund by the SEC, the NASD or any other regulatory
body, the expected or anticipated ruling, judgment or outcome of which would, in
the Company's reasonable judgment, materially impair the Fund's ability to meet
and perform the Fund's obligations and duties hereunder. The Company shall
provide promptly to the Fund a written explanation of how the Fund is materially
impaired so that it cannot meet its obligations and duties hereunder and shall
provide promptly an opinion of counsel stating that it is probable that the
proceedings will lead to a ruling, judgment or outcome which will materially
impair the Fund's ability to meet and perform its obligations and duties
hereunder. Prompt notice of election to terminate shall be furnished by the
Company with said termination to be effective upon receipt of notice,
explanation and opinion of counsel;
(d) In the event the Fund's shares are not registered, issued
or sold in accordance with applicable state insurance or federal law, or such
law precludes the use of such shares as the underlying investment medium of
Variable Insurance Contracts issued or to be issued by the Company. Termination
shall be effective upon such occurrence without notice;
(e) At the option of the Company upon the Fund's breach of any
material provision of the Agreement, which breach has not been cured to the
reasonable satisfaction of the Company within 30 days after written notice of
such breach is delivered to the Fund.
(f) At the option of the Company, if the Company shall
determine, in its sole judgment reasonably exercised in good faith, that the
Fund is the subject of material adverse publicity which has had a material
adverse impact on the sale of the Variable Insurance Contracts and/or the
operations or business reputation of the Company, the Company shall have
notified the fund in writing of such determination and its intent to terminate
the Agreement, and after consideration of the actions taken by the Fund and any
other changes in circumstances since the giving of such notice, the
determination of the Company shall continue to apply on the sixtieth (60th) day
since giving of such notice, which sixtieth (60th) day shall be the effective
date of termination;
(g) At the option of the Fund, if the Fund shall determine, in
its sole judgment reasonably exercised in good faith, that the Company is the
subject of material adverse publicity which has had a material adverse impact on
the sale of the Fund's shares and/or the operations or business reputation of
the Fund, the Fund shall have notified the Company in writing of such
determination and its intent to terminate the Agreement, and after consideration
of the actions taken by the Company and any other changes in circumstances since
the giving of such notice, the determination of the Fund shall continue to apply
on the sixtieth (60th) day since giving of such notice, which sixtieth (60th)
day shall be the effective date of termination; or
(h) Upon requisite vote of the Variable Contract Owners having
an interest in the Accounts to substitute the shares of another investment
company for the corresponding shares of the Fund in accordance with the terms of
the Variable Insurance Contracts for which those shares had been selected to
serve as the underlying investment, such termination to be effective sixty days
after notification of the Fund. The Company shall provide to the Fund copies of
any proxy material sent to Variable Contract Owners in connection with such vote
at such time the materials are mailed to the Variable Contract Owners.
In the event of any termination of this Agreement, the Fund will, at
the option of the Company, continue to make available additional shares of the
Fund pursuant to the terms and conditions of this Agreement for a period not to
exceed nine months, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, the owners of the Existing Contracts will be
permitted to reallocate investments in the Portfolios (as in effect on such
date), redeem investments in the Portfolios and/or invest in the Portfolios upon
the making of additional purchase payments under the Existing Contracts.
However, the availability of additional shares hereunder will be subject to the
restrictions and limitations set forth in Section 5, as applicable. The Company
agrees (i) to terminate the availability of shares of the Fund to Contracts
other than Existing Contracts and (ii) to request approval from the SEC to
replace shares of the Fund with other investments for Contracts and, if and when
granted such approval, thereafter to so replace the shares of the Fund, in each
such case as soon as reasonably practicable.
(8) the Fund represents and warrants that each Portfolio will comply
with the diversification requirements set forth in Section 817(h) of the Code,
and the rules and regulations thereunder, including without limitation Treasury
Regulation 1.817-5, and will notify the Company immediately upon having a
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reasonable basis for believing any Portfolio has ceased to so comply and will
immediately take all reasonable steps to adequately diversify the Portfolio to
achieve compliance.
(9) the Fund represents and warrants that each Portfolio invested in by
the Separate Account will qualify as a "regulated investment company" under
Subchapter M of the Code, that it will maintain such qualification and will
notify the Company immediately upon the reasonable likelihood that it will cease
to so qualify or might not so qualify in the future; and
(10) each party shall cooperate with the reasonable requests of each
other party and all appropriate governmental authorities (including without
limitation the SEC, the NASD and state insurance regulators) and shall permit
such authorities (which have asserted jurisdiction over the Fund's operations)
reasonable access to its books and records in connection with any investigation
or inquiry relating to the Agreement or the transactions contemplated thereby.
(11) the Fund represents and warrants it has used reasonable efforts to
ensure that the computer systems which it will use in performing its duties
under this Agreement perform all date related functions in respect of dates
prior to the year 1999 accurately, and will perform all such functions in
respect of dates during and after the year 1999 with the same accuracy; and
(12) 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 law.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the 1st day of
May, 2001.
SEAL XXXXXXX VARIABLE SERIES I
By: /S/ Xxxxx Xxxxxxxx
-------------------------------
Its: President
-----------------------------
SEAL FIRST METLIFE INVESTORS
INSURANCE COMPANY
By: ______________________________
Its:______________________________
Schedule A
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Separate Accounts:
First MetLife Investors Variable Annuity Account One
