Exhibit 9(a)(1)
Exhibit 9(a)(l)
TRANSFER, DIVIDEND DISBURSING AND
PLAN AGENCY AGREEMENT
THIS AGREEMENT made this _____ day of _____, 1985 by and between XXXXXXX
VARIABLE LIFE INVESTMENT FUND, a Massachusetts business trust having its
principal place of business at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000
(hereinafter called the "Fund") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts trust company with a usual place of business at 000 Xxxxxxxx,
Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (hereinafter called "State Street").
WITNESSETH THAT:
State Street is hereby appointed Transfer Agent for the Shares of
beneficial interest of the Fund ("Shares") and Dividend Disbursing Agent for the
Fund, and shall act as Plan Agent for shareholders of the Fund under the
following terms and conditions:
DOCUMENTS
1. In connection with the appointment of State Street as Transfer Agent,
the Fund shall furnish State Street with the following documents:
A. A certified copy of the Declaration of Trust of the Fund;
B. A certified copy of the By-laws of the Fund;
C. A copy of the resolution of the trustees of the Fund authorizing
this Agreement;
D. Specimens of all forms of outstanding and new Share certificates, if
any, in the forms approved by the trustees of the Fund with a
certificate of the Secretary of the Fund as to such approval1 it
being understood that the trustees do not presently intend to issue
any Share certificates;
E. All account application forms and other documents relating to
shareholder accounts;
F. A certified list of shareholders of the Fund with the name, address
and tax identification number of each shareholder, the number of
Shares held by each, certificate numbers and denominations (if any
have been issued), the plan account number of each shareholder
having a plane lists of any accounts against which stops have been
placed, together with the reasons for said stops, and the number of
shares redeemed by the Fund;
G. A copy of the Underwriting Agreement in effect between the Fund and
Xxxxxxx Fund Distributors, Inc., the distributor of its shares (the
"Distributor");
H. A copy of the Custodian Contract in effect between the Fund and the
custodian of the assets of the Fund; and
I. An opinion of counsel for the Fund with respect to the validity of
the Shares, the number of Shares authorized, the status of redeemed
Shares and the number of Shares with respect to which a registration
statement under the Securities Act of 1933, as amended, has been
filed and is in effect.
FURTHER DOCUMENTATION
2. The Fund will also furnish from time to time the following documents:
A. Each resolution of the trustees of the Fund authorizing the original
issue of its Shares;
B. Each registration statement under the Securities Act of 1933, as
amended, filed with the Securities and Exchange Commission and
amendments thereof;
C. A certified copy of each amendment to the Declaration of Trust of
the Fund and the By-laws of the Fund;
D. Certified copies of each resolution of the trustees authorizing
officers to give instructions to the Transfer Agent or Dividend
Disbursing Agent;
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E. Each written instrument establishing and designating a new series of
the Fund;
F. Specimens of all new forms of Share certificates accompanied by
trustees' resolutions approving such forms;
G. Such other certificates, documents or opinions which State Street
may, in its discretion, deem necessary or appropriate in the proper
performance of its duties;
H. Copies of all documents relating to special investment or withdrawal
plans which may be offered in the future by the Fund and for which
State Street is to act as plan agent.
AUTHORIZED SHARES; APPLICATION OF AGREEMENT TO SEPARATE SERIES
3. The Fund certifies to State Street that as of the close of business on
the date of this Agreement, it has an unlimited number of authorized Shares.
Shares of the Fund are of a single class; however, Shares may be divided into
additional series of the Fund ("Portfolios") that may be established, from time
to time by action of the trustees of the Fund. If the context requires and
unless otherwise specifically provided herein, the term "Fund" as used in this
Agreement shall mean in addition each separate Portfolio, subsequently created,
and the term "Shares" shall mean all shares of beneficial interest in the Fund,
whether of a single class or divided into separate series of the Fund.
STATE STREET TO REGISTER SHARES
4. State Street shall record issues of Shares of the Fund. Except as
provided in Section 5 of this Agreement or as specifically agreed in writing
from time to time between State
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Xxxxxx and the Fund, State Street shall have no obligation, when countersigning
and issuing and/or crediting shares, to take cognizance of any laws relating to
issue and sale of Shares.
SHARE CERTIFICATES
5. In the event that the trustees shall have determined to issue Share
certificates, the Fund shall supply State Street with a sufficient supply of
blank Share certificates and from time to time shall renew such supply upon
request of State Street. Such blank Share certificates shall be properly signed,
manually or, if authorized by the Fund, by facsimile, and shall bear the seal or
facsimile thereof of the Fund; and notwithstanding the death, resignation or
removal of any officers of the Fund authorized to sign Share certificates, State
Street may continue to countersign certificates which bear the manual or
facsimile signature of such officer until otherwise directed by the Fund.
PURCHASE ORDERS FROM THE DISTRIBUTOR
6. Upon receipt of a check or other written order from the Distributor for
the purchase of Shares of the Fund, accompanied or preceded in the case of a new
account by a completed account application or a letter request, and in the case
of any other account accompanied by sufficient information to identify the
existing account, State Street shall, as of the time of
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determination of net asset value specified in the Fund's then currently
effective prospectus not later than the second business day after receipt of the
check or other written order, credit the Share account of the investor with the
number of Shares of the Fund so purchased and shall promptly mail to the
investor a notice of such credit. State Street, upon receipt on a Boston
business day of federal funds and sufficient information to identify the account
for which the investment is intended, or, in the case of a new account,
sufficient information from the Distributor to enable State Street to establish
a shareholder account, shall as of the time of determination of net asset value
next after receipt of such funds and information on that day credit the Share
account of the investor with the number of Shares of the Fund so purchased and
shall promptly mail to the investor a notice of such credit.
RECEIPT OF FUNDS
7. Upon receipt of any check or other instrument drawn or endorsed to it
as agent for, or identified as being for the account of, the Fund, State Street
shall stamp the check with the date of receipt, shall forthwith process the same
for collection and, not later than as of the opening of business on the second
business day following receipt of such check or instrument, shall credit to the
Fund federal funds in the face amount of the check or other instrument to the
Fund and shall deposit the amount due the Fund to the custodian account of the
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Fund. Upon receipt of funds through the Federal Reserve Wire System or
conversion into federal funds of funds transmitted by other bank wire transfer
systems, State Street shall notify the Fund and the Distributor of such
deposits, such notification to be given on a daily basis, of the total amount
deposited to said account during the day.
ISSUE OF SHARE CERTIFICATES
8. In the event that the trustees shall have determined to issue Share
certificates and if an investor requests a Share certificate, State Street, as
Transfer Agent, will countersign and mail, by insured first-class mail, a Share
certificate to the investor at his address as set forth on the transfer books of
the Fund, subject to any other instructions for delivery of certificates
representing newly purchased Shares and subject to the limitation that no
certificates representing newly-purchased Shares shall be mailed to the investor
unless and until State Street is satisfied that the method of payment insures
that the cash purchase price of such Shares has been collected and credited to
the account of the Fund maintained by the custodian or thirty days have elapsed.
RETURNED CHECKS
9. In the event that any check or other order for the payment of money is
returned unpaid for any reason, State Street will:
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A. Give prompt notification to the Distributor and the Fund of the
non-payment of said check;
B. In the absence of other instructions from the Fund or the
Distributor, take such steps as may be necessary to redeem promptly
any Shares purchased on the basis of such returned check and cause
the proceeds of such redemption plus any dividends declared with
respect to such Shares up to the amount paid for the Shares to be
credited to the account of State Street or its designee, with any
excess to be paid over to the Fund and to forward such returned
check to the person who originally submitted the check. In the event
that the amount paid for such Shares exceeds the proceeds of the
redemption of such Shares plus the amount of any dividends declared
with respect to such Shares, State Street may seek reimbursement of
such excess from the Distributor.
DIVIDENDS AND DISTRIBUTIONS
10. The Fund shall furnish State Street with appropriate evidence of
trustee action, as the case may be, (a) authorizing, in accordance with the
Declaration of Trust, the automatic declaration in cash or in Shares of the Fund
of dividends from net income for a specified period as described in the
currently effective prospectus of the Fund, or (b) declaring a dividend, and
shall in such case advise State Street of the record date, payment date,
"ex-dividend" date, amount and source of such dividend, and whether it is in
cash or Shares. In the event that the trustees authorize the automatic
declaration of a dividend, State Street shall establish procedures under which
it will have available from the custodian of the Fund information for each day
of the year or other appropriate period concerning the per Share net income of
the Fund and the sources of such net income, allocated as prescribed in
Paragraph 14-D of this Agreement, and, after
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deducting any amount required to be withheld by any applicable tax laws, rules
and regulations or other applicable laws, rules and regulations, shall, as agent
for each shareholder, (a) as of the time and date specified in the resolution of
the trustees (i) invest the cash dividend declared during the preceding period
in full and fractional Shares and (ii) credit such Shares and the number of full
and fractional Shares declared as a dividend during the preceding period to the
account of each shareholder; and (b) not later than the time specified in the
Fund's currently effective prospectus mail to each shareholder at his address of
record or such other address as the shareholder may have designated a statement
as of the end of the preceding month showing the number of full and fractional
Shares (rounded to three decimal places) and the net asset value per Share of
Shares so credited, except that if a shareholder has elected to receive
dividends in cash, then State Street shall prepare a check in the appropriate
amount and mail it to such shareholder at his address of record or to such other
address as the shareholder may have designated not later than the time specified
in the Fund's currently effective prospectus. In the case of a dividend other
than an automatic dividend as referred to above, State Street shall comply with
the instructions of the Fund as to date of payment or reinvestment, mailing of
checks and similar matters. If the Fund at any time declares a dividend from a
source other than net income as described in the current prospectus, it shall
notify Xxxxx
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Xxxxxx of the date of distribution thereof and State Street shall process such
distribution in a manner similar to net income dividends. State Street shall, on
or before the mailing date for the payment of dividends, notify the Fund and the
custodian of the estimated amount of cash required to pay such dividend or
distribution, and the Fund shall instruct the custodian to make available from
time to time sufficient funds therefor in the Fund's dividend disbursing
account. State Street shall prepare, file with the Internal Revenue Service, and
when required, address and mail to shareholders such returns and information
relating to dividends and distributions paid by the Fund as are required to be
so prepared, filed and mailed by applicable laws, rules and regulations,
including Forms 1042, 1099 Div. and 2439, or such substitute or supplemental
form of notice as may from time to time be permitted or required by the Internal
Revenue Service. On behalf of the Fund, State Street shall pay on a timely basis
to the appropriate federal authorities any taxes required by applicable federal
tax laws to be withheld on dividends and distributions paid by the Fund.
REDEMPTIONS
11. State Street shall process each order for the redemption of Shares of
the Fund accepted by State Street on behalf of the Fund from or on behalf of an
investor and shall mail to the investor a confirmation showing the name of the
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Fund, trade date, number of full and fractional Shares redeemed (in the case of
a fractional Share, rounded to three decimal places), the price per Share and
the total redemption proceeds. In the event of a complete redemption, such
confirmation shall show, in addition, the amount of accumulated dividends, if
any, included in such total redemption proceeds not previously reported to the
investor in a monthly statement and the total distributions for the year to
date. State Street shall either (a) prepare, affix the appropriate facsimile
signature to, address and mail a check in the appropriate amount to the
appropriate person or; (b) in the event redemption proceeds are to be wired
through the Federal Reserve Wire System or by bank wire, cause such proceeds to
be wired in federal funds to the bank or trust company account designated by the
investor for receiving such proceeds. The requirements as to the instruments of
transfer and other documentation, the applicable redemption price and the time
of payment shall be as provided in the then curently effective prospectus of the
Fund, subject to such supplemental requirements consistent with such prospectus
as may be established by mutual agreement between the Fund and State Street. If
State Street or the Fund determines that a request for redemption does not
comply with the requirements for redemption, State Street shall promptly so
notify the investor, together with the reason therefor. State Street shall
notify the custodian and the Fund on each business day of the amount of cash
required to meet payments made pur-
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suant to the provisions of this paragraph and the Fund shall instruct the
custodian to make available from time to time sufficient funds therefor in the
liquidation account of the Fund.
Procedures and standards for effecting and accepting redemption orders
from investors by telephone or TWX shall be established by mutual agreement
between State Street and the Fund consistent with the then currently effective
prospectus of the Fund.
The authority of State Street to perform its responsibilities under this
Paragraph 11 shall be suspended upon receipt of notification by it of the
suspension of the determination of the Fund's net asset value.
UNCLAIMED DIVIDEND AND REDEMPTION PAYMENTS
12. State Street shall, within 90 days after the end of each calendar
year, furnish in writing to the Fund the names and addresses, as shown in the
shareholder accounts maintained pursuant to Paragraph 14, of all investors for
which, as of the end of the calendar year, checks, Share certificates or account
statements have been returned. State Street shall follow any written
instructions received from the Fund concerning the disposition of any such
unclaimed dividends or distributions.
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XXXXX XXXXXX TO RECORD TRANSFERS
13. State Street, upon receipt of a proper request for transfer and
surrender to it of certificates, if any, in proper form for transfer, is
authorized to transfer on the records of the Fund maintained by it from time to
time Shares of the Fund, and upon cancellation of surrendered certificates, if
any, to credit a like amount of Shares to the transferee and to countersign,
issue and deliver new certificates if required, and if the trustees shall have
determined to issue Share certificates, except that State Street shall take such
reasonable measures as may be agreed upon from time to time between the Fund and
State Street to identify proposed transfers which, if effected, appear likely to
cause the Fund to fall within the definitions of a personal holding company as
defined in the Internal Revenue Code and shall not make such transfer without
the prior written approval of the Fund and its counsel.
BOOKS AND RECORDS
14. State Street shall maintain records showing for each investor's
account the following:
A. Names, addresses and tax identifying numbers, when provided;
B. Number of Shares of the Fund held;
C. Historical information regarding the account of each shareholder,
including dividends and distributions distributed in cash or
invested in Shares;
D. Information with respect to the source of all dividends and
distributions allocated among income, realized short-term gains and
realized long-term gains;
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E. Any stop or restraining order placed against a shareholder's
account;
F. Information with respect to withholdings on domestic or foreign
accounts;
G. Any instructions from a shareholder including all forms furnished by
the Fund and executed by a shareholder with respect to (i) dividend
or distribution elections and (ii) elections with respect to payment
options in connection with the redemption of Shares;
H. Any dividend address and correspondence relating to the current
maintenance of a shareholder's account;
I. Certificate numbers and denominations for any shareholder holding
certificates;
J. Any information required in order for State Street to perform the
calculations contemplated under Paragraphs 6, 7 and 10 hereof.
Any such records required to be maintained by Rule 31a-l of the General
Rules and Regulations under the Investment Company Act of 1940 will be preserved
for the periods prescribed in Rule 31a-2 of said rules. Disposition of such
rec6rds after such prescribed periods shall be as mutually agreed upon from time
to time by the Fund and State Street. The retention of such records, which may
be inspected by the Fund at reasonable times, shall be at the expense of the
Fund.
RIGHTS OF OWNERSHIP
15. The Fund agrees that all computer programs and procedures developed to
perform services required under this Agreement are the property of State Street,
and State Street agrees that all records and other data except computer programs
and procedures are the exclusive property of the Fund and that
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all such records and other data will be furnished to the Fund in available
computer oriented data forms as soon as practicable upon termination of this
Agreement for any reason whatsoever.
OTHER INFORMATION TO THE FUND
16. State Street will furnish to the Fund such other information,
including shareholder lists, and statistical information, as may be agreed upon
from time to time between State Street and the Fund.
FORM X-xX
00. Xxxxx Xxxxxx shall maintain such records as shall enable the Fund to
fulfill the requirements of Form N-1R, including but not limited to the
requirements of Items 58 and 59 of Form N-lR.
COOPERATION WITH ACCOUNTANTS
18. State Street shall cooperate with the Fund's independent public
accountants and shall take all reasonable action in the performance of its
obligations under this Agreement to ensure that the necessary information is
made available to such accountants for the expression of their unqualified
opinion, including but not limited to the opinion included in the Fund's annual
report on Form X-xX.
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XXXXXXXXXXXXXX
19. State Street will answer that correspondence from shareholders
relating to their Share accounts and such other correspondence as may from time
to time be mutually agreed upon and notify the Fund of any correspondence which
may require an answer from the Fund.
PROXIES
20. State Street shall mail proxy cards and other material supplied to it
by the Fund in connection with shareholder meetings of the Fund and shall
receive, examine and tabulate returned proxies and certify the vote of the Fund.
To the extent that shareholders of a subsequently created Portfolio would be
entitled to vote as a class, State Street shall receive, examine and tablulate
returned proxies and certify the vote of the Fund by Portfolio.
FEES AND CHARGES
21. State Street will receive such compensation from the Fund for its
service as the Fund's Transfer, Dividend Disbursing and Plan Agent and for its
other duties pursuant hereto as may be agreed upon from time to time, and shall
be reimbursed for the cost of any and all forms, including blank checks and
proxies, used by it in communicating with shareholders of the Fund, or
especially prepared for use in connection with its actions hereunder, as well as
the cost of
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postage, telephone and telegraph used in communicating with shareholders of the
Fund, except to the extent that certain such expenses are charged directly to
shareholders as set forth in the then currently effective prospectus of the
Fund, it being agreed that State Street, prior to ordering any forms in such
supply as it estimates will be adequate for more than two years use, shall
obtain the written consent of the Fund. All forms for which State Street has
received reimbursement from the Fund shall be and remain the property of the
Fund until used. State Street shall also receive from the Fund all reasonable
counsel fees incurred by it in connection with the performance of its duties
under this Agreement, unless such fees are incurred on a matter involving State
Street's willful misconduct or negligence.
COMPLIANCE WITH GOVERNMENTAL RULES AND REGULATIONS
22. Except as otherwise provided in this Agreement and except for the
accuracy of information furnished to it by State Street, the Fund assumes full
responsibility for the preparation, contents and distribution of each prospectus
of the Fund for complying with all applicable requirements of the Securities Act
of 1933, as amended, the Investment Company Act of 1940, as amended, and any
laws, rules and regulations of governmental authorities having jurisdiction.
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INSTRUCTIONS
23. Whenever State Street is authorized to take action hereunder pursuant
to proper instructions from the Fund, State Street shall be entitled to rely
upon any certification, letter or other instrument or communication reasonably
believed by State Street to be genuine and to have been properly made or signed
or authorized by an officer or other authorized agent of the Fund and shall be
entitled to receive as conclusive proof of any fact or matter required to be
ascertained by it hereunder a certificate signed by any officer of the Fund, or
any person authorized by the trustees of the Fund.
CONFIDENTIALITY
24. State Street agrees to treat all records and other information
relative to the Fund and its prior, present or potential shareholders
confidentially and State Street on behalf of itself and its employees agrees to
keep confidential all such information, except, after prior notification to and
approval in writing by the Fund, which approval shall not be unreasonably
withheld and may not be withheld where State Street may be exposed to civil or
criminal contempt proceedings for failure to comply, when requested to divulge
such information by duly constituted authorities, or when so requested by the
Fund.
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4904B
REFERENCES TO XXXXX XXXXXX
00. The Fund shall not circulate any printed matter which contains any
reference to State Street without the prior written approval of State Street,
excepting solely such printed matter as merely identifies State Street as
Transfer Agent, Dividend Disbursing Agent and Plan Agent. The Fund will submit
printed matter requiring approval to State Street in draft form, allowing
sufficient time for review by State Street and its counsel prior to any deadline
for printing.
UNCONTROLLABLE EVENTS
26. State Street shall not be liable for damage, loss of data, delays or
errors occurring by reason of circumstances beyond its control, including but
not limited to acts of civil or military authority, national emergencies, labor
difficulties, fire, flood or catastrophe1 acts of God, insurrection, war, riots,
or failure of transportation1 communication or power supply. In the event of
electromechanical breakdowns beyond its control, State Street shall, at no
additional expense to the Fund, take reasonable steps to minimize service
interruptions but shall have no liability with respect thereto. State Street
shall enter into and shall maintain in effect with appropriate parties one or
more agreements making reasonable provision for emergency use of electronic data
processing equipment to the extent appropriate equipment is available and State
Street shall further use reasonable care to
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minimize the likelihood of such damage, loss of data, delays or errors, and
should such damage, loss of data, delays or errors occur, State Street shall use
its best efforts to mitigate the effects of such occurrence. Representatives of
the Fund shall be entitled to inspect the State Street premises and operating
capabilities within reasonable business hours upon reasonable notice to State
Street, and, upon request of such representative or representatives, State
Street shall from time to time as appropriate, furnish to the Fund a letter
setting forth the insurance coverage thereon, any changes in such coverage which
may occur, and any claim relating to the Fund, and shall deliver the same to the
Fund.
STANDARD OF CARE
27. State Street shall at all times act in good faith and agrees to use
its best efforts within reasonable limits to ensure the accuracy of all services
performed under this Agreement, but assumes no responsibility and shall not be
liable for loss or damage due to errors unless said error is caused by its
negligence, bad faith or willful misconduct or that of its employees.
ADVICE OF COUNSEL AND INDEMNIFICATION
28. State Street as Transfer Agent and Dividend Disbursing Agent shall be
entitled to receive and act upon advice of counsel (who may be counsel for the
Fund) and shall be without
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liability for any action reasonably taken or thing reasonably done pursuant to
such advice, and shall be kept indemnified by the Fund and be without liability
for any action taken or thing done by it in carrying out the terms and
provisions of this Agreement in good faith and without negligence. In order that
the indemnification provisions contained in this Paragraph 28 shall apply,
however, it is understood that if in any case the Fund may be asked to indemnify
or save State Street harmless, the Fund shall be fully and promptly advised of
all pertinent facts concerning the situation in question, and it is further
understood that State Street will use all reasonable care to identify and notify
the Fund promptly concerning any situation which presents or appears likely to
present the probability of such a claim for indemnification against the Fund.
The Fund shall have the option to defend State Street against any claim which
may be the subject of this indemnification, and in the event that the Fund so
elects it will so notify State Street, and thereupon the Fund shall take over
complete defense of the claim, and State Street shall, in such situation,
initiate no further legal or other expenses for which it shall seek
indemnification under this Paragraph 28. State Street shall in no case confess
any claims or make any compromise in any case in which the Fund will be asked to
indemnify State Street except with the Fund's prior written consent.
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FURTHER ACTIONS
29. Each party agrees to perform such further acts and execute such
further documents as are necessary to effectuate the purposes hereof.
AMENDMENT AND TERMINATION
30. This Agreement shall run for a period .of one year from the date first
above written and may be modified or amended from time to time by mutual
agreement in writing between the parties hereto. The Agreement may be terminated
at any time after the expiration of such one year by sixty days written notice
given by one party to the other. Upon termination hereof the Fund shall pay to
State Street such compensation as may be due as of the date of such termination,
and shall likewise reimburse State Street for its costs, expenses and
disbursements as contemplated by this Agreement.
NOTICE
31. 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 above
or at such other address as such party may from time to time specify in writing
to the other party.
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INTERPRETIVE PROVISIONS
32. In connection with the operation of this Agreement, State Street and
the Fund may agree from time to time on such provisions interpretive of or in
addition to the provisions of this Agreement as may in their joint opinion be
consistent with the general tenor of this Agreement. Any such interpretive or
additional provisions are to be signed by all parties and annexed hereto, but no
such provision shall contravene any applicable Federal or State law or
regulation and no such interpretive or additional provision shall be deemed to
be an amendment of this Agreement.
MISCELLANEOUS
33. It is understood and expressly stipulated that neither the holders of
Shares in the Fund nor the trustees of the Fund shall be personally liable
hereunder. This Agreement shall be construed and enforced in accordance with and
governed by the laws of The Commonwealth of Massachusetts. 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. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
ATTEST: XXXXXXX VARIABLE LIFE INVESTMENT FUND
By
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President
ATTEST: STATE STREET BANK AND TRUST COMPANY
By
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