Exhibit (h)(6)
Form of
Service Agreement
[Name]
[Address]
[City, State and Zip Code]
Ladies and Gentlemen:
BB&T Variable Insurance Funds (the "Trust") is an open-end management
investment company organized as a Massachusetts business trust and registered
with the Securities and Exchange Commission (the "SEC") under the Investment
Company Act of 1940 (the "1940 Act"). On behalf of direct or indirect investors
in each of the investment portfolios of the Trust identified in Schedule A
hereto (individually, a "Fund" and collectively, the "Funds"), including
variable contract owners with contract value allocated to the Funds, the
Trustees of the Trust have adopted a Service Plan (the "Plan") which, among
other things, authorizes the Trust to enter into this Agreement with
_________________ (the "Participating Organization"), concerning the provision
of support services to the Participating Organization's customers who may from
time to time be investors in the Funds ("Customers"). The terms and conditions
of this Agreement are as follows:
1. REFERENCE TO PROSPECTUS; DETERMINATION OF NET ASSET VALUE.
1.1 Reference is made to the prospectus for the shares of each Fund
(individually, a "Prospectus" and collectively, the "Prospectuses") as
from time to time are effective under the Securities Act of 1933 (the
"1933 Act"). Terms defined therein and not otherwise defined herein are
used herein with the meaning so defined.
1.2 For purposes of determining the fees payable to the Participating
Organization under Section 3, the average daily net asset value of a
Fund's shares will be computed in the manner specified in the Trust's
registration statement (as the same is in effect from time to time) in
connection with the computation of the net asset value of such Fund's
shares for purposes of purchases and redemptions.
2. SERVICES AS PARTICIPATING ORGANIZATION.
2.1 The Participating Organization is hereby authorized and may from time to
time undertake to perform the following support services to Customers in
connection with investments in the Shares of a Fund: (i) providing
Customers with a service that directly or indirectly invests the assets of
their accounts in a Fund's shares pursuant to specific or pre-authorized
instructions; (ii) processing dividend payments from the Trust on behalf
of Customers; (iii) providing information periodically to Customers
showing variable contract value or their positions in a Fund's shares;
(iv) arranging for bank wire transfers of funds to or from a Customer's
account; (v) responding to inquiries from Customers relating to the
services performed by the Participating Organization under this Agreement;
(vi) providing subaccounting with respect to a Fund's shares beneficially
owned by Customers or the information to the Trust necessary for
subaccounting; (vii) if required by law, forwarding communications from
the Trust (such as proxies, shareholder reports, annual and semi-annual
financial statements, and dividend,
distribution, and tax notices) to Customers; (viii) rendering ongoing
advice respecting the suitability of particular investment opportunities
offered by the Trust in light of the Customer's needs; and (ix) providing
such other similar services as may be reasonably requested to the extent
the Participating Organization is permitted to do so under applicable
statutes, rules, or regulations.
2.2 The Participating Organization will provide such office space and
equipment, telephone facilities, and personnel (which may be any part of
the space, equipment, and facilities currently used in the Participating
Organization's business, or any personnel employed by the Participating
Organization) as may be reasonably necessary or beneficial in order to
provide such support services.
2.3 All orders for a Fund's shares are subject to acceptance or rejection by
the Trust in its sole discretion, and the Trust may, in its discretion and
without notice, suspend or withdraw the sale of a Fund's shares.
2.4 In no transaction shall the Participating Organization act as dealer for
its own account; the Participating Organization shall act solely for, upon
the specific or pre-authorized instructions of, and for the account of,
its Customers. For all purposes of this Agreement, the Participating
Organization will be deemed to be an independent contractor, and will have
no authority to act as agent for the Trust or BISYS Fund Services (the
"Distributor"), the underwriter of the Trust's shares, in any matter or in
any respect. No person is authorized to make any representations
concerning the Distributor, the Trust, or a Fund's shares except those
representations contained in the Fund's then-current Prospectus and the
Trust's Statement of Additional Information and in such printed
information as the Distributor or the Trust may subsequently prepare.
2.5 The Participating Organization and its employees will, upon request, be
available during normal business hours to consult with the Distributor or
its designees concerning the performance of the Participating
Organization's responsibilities under this Agreement. Any person
authorized to direct the disposition of monies paid or payable by the
Trust pursuant to Section 3 of this Agreement will provide to the
Distributor and the Trust's Board of Trustees, and the Trust's Trustees
will review at least quarterly, a written report of the amounts so
expended and the purposes for which such expenditures were made.
In addition, the Participating Organization will furnish to the
Distributor, the Trust or their designees such information as the
Distributor, the Trust or their designees may reasonably request
(including, without limitation, periodic certifications confirming the
rendering of support services described herein), and will otherwise
cooperate with the Distributor, the Trust and their designees (including,
without limitation, any auditors designated by the Trust), in the
preparation of reports to the Trust's Board of Trustees concerning this
Agreement and the monies paid or payable by the Trust pursuant hereto, as
well as any other reports or filings that may be required by law.
3. FEES.
3.1 In consideration of the services and facilities provided by the
Participating Organization hereunder, the Trust will pay to the
Participating Organization a fee calculated at the applicable annual rate
set forth on Schedule A hereto with respect to the average daily net asset
value of each Fund's shares which are attributable to Customers, which fee
will be computed daily and paid monthly. The fee
will not be paid to the Participating Organization with respect to (i)
shares of a Fund that are redeemed or repurchased by the Trust or the
Distributor within seven business days of receipt of confirmation of such
sale, or (ii) a Customer if the amount of such fee on an annual basis with
respect to such Customer shall be less than $1.00.
3.2 The fee rate with respect to any Fund or Funds stated on Schedule A hereto
may be prospectively increased or decreased by the Trust, in its sole
discretion, at any time upon notice to the Participating Organization.
4. REPRESENTATIONS, WARRANTIES AND AGREEMENTS.
4.1 By written acceptance of this Agreement, the Participating Organization
represents, warrants, and agrees that: (i) the Participating Organization
will provide to Customers a schedule of the services it will perform
pursuant to this Agreement and a schedule of any fees that the
Participating Organization may charge directly to Customers for services
it performs in connection with investments in the Trust on the Customer's
behalf; and (ii) any and all compensation payable to the Participating
Organization by Customers in connection with the investment of their
assets in the Trust will be disclosed by the Participating Organization to
Customers and will be authorized by Customers and will not result in an
excessive fee to the Participating Organization.
4.2 The Participating Organization agrees to comply with all requirements
applicable to it by reason of all applicable laws, including state
insurance laws and regulations, federal and state securities laws, the
Rules and Regulations of the SEC and the Conduct Rules of the National
Association of Securities Dealers, Inc. (the "NASD"), including, without
limitation, all applicable requirements of the 1933 Act, the Securities
Exchange Act of 1934, the 1940 Act, and the provisions of Rule 2830 of the
Conduct Rules. The Distributor has furnished the Participating
Organization with a list of the states or other jurisdictions in which the
Distributor believes the shares of the Fund have been registered for sale
or are otherwise qualified for sale, and the Participating Organization
agrees that it will not engage in any transaction on behalf of a
Customer's account resulting in the purchase of a Fund's shares in any
jurisdiction in which such shares are not registered or otherwise
qualified for sale. The Participating Organization further agrees that it
will maintain all records required by applicable law or otherwise
reasonably requested by the Trust or the Distributor relating to the
services provided by it pursuant to the terms of this Agreement.
4.3 The Participating Organization agrees that under no circumstances shall
the Trust or the Distributor be liable to the Participating Organization
or any other person under this Agreement as a result of any action by the
SEC or the NASD affecting the operation or continuation of the Plan.
5. EXCULPATION; INDEMNIFICATION.
5.1 The Trust shall not be liable to the Participating Organization and the
Participating Organization shall not be liable to the Trust except for
acts or failures to act which constitute lack of good faith or gross
negligence and for obligations expressly assumed by either party
hereunder. Nothing contained in this Agreement is intended to operate as a
waiver by the Trust or by the Participating Organization of compliance
with any applicable federal or state law, rule, or regulation and the
rules and regulations promulgated by the NASD.
5.2 The Participating Organization will indemnify the Trust and hold it
harmless from any claims or assertions relating to the lawfulness of the
Participating Organization's participation in this Agreement and the
transactions contemplated hereby or relating to any activities of any
persons or entities affiliated with the Participating Organization
performed in connection with the discharge of its responsibilities under
this Agreement. If any such claims are asserted, the Trust shall have the
right to manage its own defense, including the selection and engagement of
legal counsel of its choosing, and all costs of such defense shall be
borne by the Participating Organization.
6. EFFECTIVE DATE; TERMINATION.
6.1 This Agreement will become effective with respect to each Fund on the date
a fully executed copy of this Agreement is received by the Trust or its
designee. Unless sooner terminated with respect to any Fund, this
Agreement will continue with respect to a Fund until _______________, and
thereafter will continue automatically for successive one-year periods
from that date, provided such continuance is specifically approved at
least annually by the vote of a majority of the members of the Board of
Trustees of the Trust who are not "interested persons" (as such term is
defined in the 0000 Xxx) of the Trust and who have no direct or indirect
financial interest in the Plan relating to such Fund or any agreement
relating to such Plan, including this Agreement, cast in person at a
meeting called for the purpose of voting on such approval.
6.2 This Agreement will automatically terminate with respect to a Fund in the
event of its assignment (as such term is defined in the 1940 Act). This
Agreement may be terminated with respect to any Fund by the Trust or by
the Participating Organization, without penalty, upon sixty days' prior
written notice to the other party. This Agreement may also be terminated
with respect to any Fund at any time without penalty by the vote of a
majority of the members of the Board of Trustees of the Trust who are not
"interested persons" (as such term is defined in the 0000 Xxx) of the
Trust and who have no direct or indirect financial interest in the Plan
relating to such Fund or any agreement relating to such Plan, including
this Agreement, on sixty days' written notice.
7. GENERAL.
7.1 All notices and other communications to either the Participating
Organization or the Trust will be duly given if mailed, telegraphed or
telecopied to the appropriate address set forth on page 1 hereof, or at
such other address as either party may provide in writing to the other
party.
7.2 The Trust may enter into other similar agreements for the provision of
services with any other person or persons without the Participating
Organization's consent.
7.3 Upon receiving the written consent of the Trust or its designee, the
Participating Organization may, at its expense, subcontract with any
entity or person concerning the provision of the services contemplated
hereunder; provided, however, that the Participating Organization shall
not be relieved of any of its obligations under this Agreement by the
appointment of such subcontractor and provided further, that the
Participating Organization shall be responsible, to the extent provided in
Article 5 hereof, for all acts of such subcontractor as if such acts were
its own.
7.4 This Agreement supersedes any other agreement between the Trust and the
Participating Organization relating to support services in connection
with a Fund's shares and relating to any other matters discussed herein.
All covenants, agreements, representations, and warranties made herein
shall be deemed to have been material and relied on by each party,
notwithstanding any investigation made by either party or on behalf of
either party, and shall survive the execution and delivery of this
Agreement. The invalidity or unenforceability of any term or provision
hereof shall not affect the validity or enforceability of any other term
or provision hereof. The headings in this Agreement are for convenience of
reference only and shall not alter or otherwise affect the meaning hereof.
This Agreement may be executed in any number of counterparts which
together shall constitute one instrument and shall be governed by and
construed in accordance with the laws (other than the conflict of laws
rules) of the State of Ohio and shall bind and inure to the benefit of the
parties hereto and their respective successors and assigns.
7.5 The Declaration of Trust establishing the Trust, dated November 8, 2004
(the "Declaration"), is filed with the Office of the Secretary of the
Commonwealth of Massachusetts and provides that the obligations of the
Trust under this instrument are not binding upon any of the Trust's
Trustees or shareholders individually, but bind only the estate of the
Trust or its Funds, as applicable.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below.
BB&T VARIABLE INSURANCE FUNDS
By: ______________________
Title: ___________________
Date: ____________________
The foregoing Agreement is hereby accepted:
[Name of Participating Organization]
By: ________________________
Title: _____________________
Date: ______________________
Dated: ____________________
Schedule A
to the Service Agreement
between BB&T Variable Insurance Funds
and [Participating Organization]
NAME OF FUND COMPENSATION*
----------------------
* All fees are computed daily and paid monthly.
BB&T VARIABLE INSURANCE FUNDS [PARTICIPATING ORGANIZATION]
By: ____________________________ By: _____________________________
Title: _________________________ Title: __________________________
Date: __________________________ Date: ___________________________
