XXXXXXX XXXXX VARIABLE INSURANCE TRUST SERVICE AGREEMENT
January 2nd, 2005
First Allmerica Financial Life Insurance Company
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RE: XXXXXXX SACHS VARIABLE INSURANCE TRUST (THE "TRUST") SERVICE AGREEMENT
Ladies and Gentlemen:
The undersigned, Xxxxxxx, Xxxxx & Co. ("Xxxxxxx Sachs"), 00 Xxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx 00000, is the principal distributor of the shares of beneficial
interest of each Fund. Xxxxxxx Xxxxx Asset Management, a separate operating
division of Xxxxxxx Sachs, or an affiliate thereof, acts as an investment
adviser to the Trust, which is an open-end management investment company that
offers its shares of beneficial interest exclusively to separate accounts of
life insurance companies and various qualifying retirement plans or accounts.
(such Funds now or hereafter offered by the Trust are individually referred to
herein as a "Fund" and, collectively, as the "Funds"). Shares or units of
beneficial interest (the "Shares") of each Fund are divided into separate
classes. This Agreement relates to Service Class Shares of the Funds.
You are a broker-dealer and the principal underwriter of variable annuity
contracts and/or variable life insurance contracts (the "Contracts") issued
through one or more separate accounts by [name] Life Insurance Company (the
"Company"). The Company acting on behalf of its separate account purchases,
holds, exchanges and redeems Shares of the Funds as investments for values
accumulated under the Contracts. The Company has entered into an agreement with
the Trust and Xxxxxxx Xxxxx regarding its purchase and redemption of the Shares
(the "Participation Agreement"). You (the "Contract Underwriter") are willing to
perform, and Xxxxxxx Sachs wishes to compensate you for performing, certain
services with respect to the sale and distribution of the Contracts Contract
owner (the "Services") that may indirectly result in the sale of Shares to the
Company. Accordingly, the Contract Underwriter and Xxxxxxx Xxxxx agree as
follows:
1. AGREEMENT TO PROVIDE SERVICES. Xxxxxxx Sachs hereby engages the
Contract Underwriter, and the Contract Underwriter hereby agrees, to perform the
following Services: (a) establish and maintain (or assist the Company in
establishing and maintaining) relationships with owners of Contracts who are its
customers or customers of other broker-dealers with whom it has entered into
agreements to sell the Contracts ("Selling Dealers") ; (b) provide Contract
owners with "personal services" (within the meaning of NASD Conduct Rule
2830(b)(9)) ; (c) assist in the preparation of advertisements and other sales
literature for the Contracts that describes or discusses the Funds ; (d) provide
sales compensation to representatives of the Contract Underwriter ; (e) pay
money to Selling Dealers for any of the foregoing purposes ; and (f) perform any
additional services primarily intended to result in the distribution of the
Contracts and the sale of the Shares to the Company
2. EXPENSES OF THE CONTRACT UNDERWRITER. The Contract Underwriter shall
furnish such office space, equipment, facilities and personnel as may be
necessary to perform its duties hereunder. The Contract Underwriter shall bear
all costs incurred by it in performing such duties.
3. FEES PAYABLE TO THE CONTRACT UNDERWRITER. For the Services provided and
the expenses incurred by the Contract Underwriter hereunder, Xxxxxxx Xxxxx will
pay to the Contract Underwriter a quarterly service fee equal on an annual basis
to: the 12b-1 fee, subject to waivers, as disclosed in each Fund's current
prospectus, of the average daily net asset value of the Shares of each Fund
which are owned beneficially by Contract owners through the Contract Underwriter
during such period.
4. PERFORMANCE OF DUTIES. In performing its duties hereunder, the Contract
Underwriter will act in conformity with Xxxxxxx Sachs' instructions, the terms
of the Contracts and Contract prospectuses, the then effective prospectuses and
statements of additional information for the Shares of each Fund, the Investment
Company Act of 1940, as amended (the "1940 Act") and all other applicable
federal and state laws, regulations and rulings and the constitution, by-laws
and rules of any applicable self-regulatory organization. The Contract
Underwriter will assume sole responsibility for its compliance with applicable
federal and state laws and regulations, and shall rely exclusively upon its own
determination, or that of its legal advisers, that the performance of its duties
hereunder complies with such laws and regulations. Under no circumstances shall
the Trust, any Fund, Xxxxxxx Xxxxx or any of their affiliates be held
responsible or liable in any respect for any statements or representations made
by them or their legal advisers to the Contract Underwriter or any Contract
owner concerning the applicability of any federal or state laws or regulations
to the activities described herein. The Contract Underwriter will perform its
duties hereunder in a manner consistent with the customs and practices of other
institutions that provide similar services.
5. ANTI-MONEY LAUNDERING. The Contract Underwriter and its agents as well
as the Company and its affiliates are required either by law, regulation or
order, or as a matter of good practice, to operate policies and procedures for
the purpose of guarding against money laundering activities. Among other
matters, those policies and procedures include the identification of Contract
owners and the source of moneys provided by Contract owners, the identification
of "suspicious transactions" and the adoption of anti-money laundering programs.
As a consequence, you hereby agree that you will identify your Contract owners
underlying each transaction and the source of the moneys used for each
transaction, and will identify whether such transactions are "suspicious
transactions." In addition, you hereby agree that you will fully comply with all
applicable anti-money laundering laws, regulations and orders, as now or
hereafter in force. Without limiting the generality of the foregoing, you agree
to assist the Company in complying with the "anti-money laundering" provisions
of the Participation Agreement.
6. REPRESENTATIONS AND WARRANTIES. The Contract Underwriter hereby
represents, warrants and covenants to Xxxxxxx Sachs:
(a). That it is a broker or dealer as defined in Section
3(a)(4) or 3(a)(5) of the Securities Exchange Act of 1934,
as amended (the "Exchange Act"); that it is registered and
in good standing, and will during the term of this
Agreement remain in good standing (A) as a broker-dealer
with the Commission pursuant to Section 15 of the Exchange
Act and with the securities commission of any state,
territory or possession of the United States and (B) as a
member of the National Association of Securities Dealers,
Inc. (the "NASD") and/or any stock exchange or other
self-regulatory organization in which the Contract
Underwriter's membership is necessary for the conduct of
its business under this Agreement, and is in full
compliance with the rules, regulations and policies of the
aforesaid commissions and organizations, particularly
those rules, regulations and policies governing capital
requirements, financial reporting, bonding, fiduciary
standards and supervisory concerns; and its entering into
and performing its obligations under this Agreement does
not and will not violate any laws, rules or regulations
(including the net capital and customer protection rules
of the Commission and the rules or regulations of the NASD
or any self-regulatory organization or any so-called
"restriction" letter with the NASD); OR
(b). That it is a corporation, association or partnership duly organized,
validly existing, and in good standing under the laws of the state of
its organization;
(c). That entering into and performing its obligations under this Agreement
does not and will not violate (i) its charter or by-laws; or (ii) any
agreements to which it is a party;
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(f). It will keep confidential any information acquired as a result of this
Agreement regarding the business and affairs of the Trust and Xxxxxxx,
Sachs & Co., which requirement shall survive the term of this
Agreement; and
(g). It will not, without written consent of the Trust in each instance,
use in advertising, publicity, administering and servicing the Funds
or otherwise the name of the Trust, Xxxxxxx, Xxxxx & Co., or any of
their affiliates nor any trade name, trademark, trade device, service
xxxx, symbol or any abbreviation, contraction or simulation thereof
(the "Xxxx") of the Trust, Xxxxxxx, Sachs & Co. or their affiliates.
Contract Underwriter acknowledges that Xxxxxxx Xxxxx owns all right,
title and interest in and to the Xxxx and the registration thereof.
Upon termination of this Agreement, the Contract Underwriter or its
successor, (to the extent and as soon as it lawfully can), will cease
the use of the Xxxx.
(h). You covenant and agree that you will only offer or sell Contracts to
"U.S. persons" and that all offering or other solicitation activities
in which you engage shall be conducted by you or any of your agents
solely within the "United States," in each case as defined in Rule 902
promulgated under the Securities Act of 1933, as amended. In addition,
you covenant and agree that you shall have received and shall maintain
duly executed and completed Internal Revenue Service Form W-9's for
each one of your Contract owner customers and shall update such Form
W-9's as may be required by law.
7. RESPONSIBILITIES OF THE CONTRACT UNDERWRITER. The Contract Underwriter
agrees that neither Xxxxxxx Sachs nor any Fund nor any of its agents shall have
any responsibility or liability to review any purchase, exchange or redemption
request which is presented by the Company (A) to determine whether such request
is genuine or authorized by the Contract owner; or (B) to determine the
suitability of the selected Class or Fund for such Contract owner. Xxxxxxx
Xxxxx, each Fund and their agents shall be entitled to rely conclusively on any
purchase or redemption request communicated to any of them by the Company
pursuant to the Participation Agreement, and shall have no liability whatsoever
for any losses, claims or damages to or against the Contract Underwriter or any
Contract owner resulting from a failure of the Contract Underwriter to perform
the services provided for under this agreement. Xxxxxxx Sachs and the Contract
Underwriter agree that the Participation Agreement shall govern the purchase,
exchange and redemption of Shares for the Company's separate accounts
8. AMENDMENT; TERMINATION. This Agreement may be amended by a written
instrument executed by both parties and may be terminated by Xxxxxxx Xxxxx or
the Contract Underwriter at any time on 60 days' written notice mailed or
delivered to the other party at its address set forth above.
9. INDEMNIFICATION. Xxxxxxx Sachs agrees to indemnify the Contract
Underwriter and each person who controls (as defined in Section 2(a)(9) of the
0000 Xxx) the Contract Underwriter from and against any losses, claims, damages,
expenses (including reasonable fees and expenses of counsel) or liabilities
("Damages") to which the Contract Underwriter or such person may become subject
in so far as such Damages arise out of the failure of Xxxxxxx Xxxxx or its
employees or agents to comply with Xxxxxxx Sachs' obligations under this
Agreement or any other agreement between Xxxxxxx Xxxxx and the Contract
Underwriter relating to the performance of Services hereunder (a "Covered
Agreement"). The Contract Underwriter agrees to indemnify Xxxxxxx Sachs, the
Funds, their agents and each person who controls (as defined in Section 2(a)(9)
of the 0000 Xxx) any of them from and against any Damages to which any of them
may become subject in so far as such Damages arise out of the failure of the
Contract Underwriter or its employees, agents or Contract owners to comply with
the Contract Underwriter's obligations under a Covered Agreement.
Notwithstanding the foregoing, neither Xxxxxxx Xxxxx nor the Contract
Underwriter shall be entitled to be indemnified for Damages arising out of its
or its agent's or employee's gross negligence. The foregoing indemnity
agreements shall be in addition to any liability Xxxxxxx Xxxxx or the Contract
Underwriter may otherwise have, and shall survive the termination of this
Agreement.
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10. NO ASSOCIATION OR AGENCY. The Contract Underwriter shall be deemed an
independent contractor and not an agent of Xxxxxxx Sachs or any Fund for all
purposes hereunder and shall have no authority to act for or represent Xxxxxxx
Xxxxx or any Fund. In addition, no officer or employee of the Contract
Underwriter shall be deemed to be an employee or agent of the Funds or Xxxxxxx
Sachs or be subject, in any respect, to the supervision of Xxxxxxx Xxxxx or any
affiliate thereof.
11. APPLICABLE LAW. If any provision of this Agreement shall be held or
made invalid by a decision in a judicial or administrative proceeding, statute,
rule or otherwise, the enforceability of the remainder of this Agreement will
not be impaired thereby. This Agreement shall be governed by the laws of the
State of New York and shall be binding upon and inure to the benefit of the
parties hereto and their respective successors.
12. IMPORTANT INFORMATION. In accordance with government regulations,
financial institutions are required to obtain, verify, and record information
that identifies each person or entity that opens an account. Except as provided
in the Participation Agreement, when the Company opens a Contract owner account,
the Trust may ask for the name, address, identification number and other
information that will allow us to identify the Contract owner. The Trust may
also ask to see government-issued identifying documents.
Very truly yours,
XXXXXXX, SACHS & CO.
By:
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[Authorized Officer]
ACCEPTED AND AGREED TO AS OF THE DATE FIRST ABOVE WRITTEN:
[NAME]
By:
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[Authorized Officer]
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(Print Name)
, 2005
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(Date)
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