AMENDMENT 1
Effective September 15, 2001
This first Amendment forms a part of the Marketing Coordination and
Administrative Service Agreement ("Agreement"), dated January 1, 1998, by and
between Sun Life Assurance Company of Canada (U.S.) and Clarendon Insurance
Agency, Inc.
1. Exhibit A attached hereto states the Type of Plans subject to the
Agreement.
2. Part II, B of the Agreement includes the Distribution Agreement attached
hereto as Exhibit C.
Effective this 15th day of September, 2001.
SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.)
By:___________________________________________
By:___________________________________________
CLARENDON INSURANCE AGENCY, INC.
By:___________________________________________
By:___________________________________________
EXHIBIT A
Amended and Restated, Effective September 15, 2001
Type of Plans
- Sun Life Corporate VUL
(a flexible premium variable universal life insurance product offered in
the corporate marketplace on a group and individual basis)
- Futurity Corporate VUL
(a flexible premium variable universal life insurance product offered in
the corporate marketplace on a group and individual basis)
- Sun Life Corporate PPVUL
(a flexible premium variable universal life insurance product offered in
the private placement corporate marketplace on a group and individual
basis)
- Maturity Date Extension rider (offered as a supplemental benefit to the Sun
Life Corporate VUL, Sun Life Corporate PPVUL and Futurity Corporate VUL
products on a group and individual basis)
- Additional Protection Benefit rider (offered as a supplemental benefit to
the Sun Life Corporate VUL and Futurity Corporate VUL products on a group
and individual basis)
- Credit Enhancement Benefit endorsement (provided as an automatic benefit to
the Sun Life Corporate PPVUL on a group and individual basis)
- Enhanced Cash Surrender Value Benefit endorsement (provided as an automatic
benefit to the Futurity Corporate VUL product on a group and individual
basis)
EXHIBIT C
CORPORATE MARKETS PRIVATE PLACEMENT INSTITUTIONAL VARIABLE
UNIVERSAL LIFE INSURANCE SALES AGREEMENT
AGREEMENT by and between SUN LIFE ASSURANCE COMPANY OF CANADA (U.S.), a
Delaware corporation ("the Company"); Clarendon Insurance Agency, Inc., a
Massachusetts corporation and a broker-dealer registered with the Securities and
Exchange Commission under the Securities Exchange Act of 1934 (the "1934 Act")
and a member of the National Association of Securities Dealers, Inc. ("NASD")
that engages in the distribution of insurance products ("Clarendon"); and XXXX
("Selling Broker-Dealer") also a broker-dealer registered under the 1934 Act and
a member of the NASD.;
WITNESSETH:
WHEREAS, the Company issues certain variable life insurance policies
listed in Schedule A (the "Contracts") in reliance upon certain exemptions from
the registration requirements of the Securities Act of 1933 (the "1933 Act") and
the Investment Company Act of 1940 (the "1940 Act") for securities transactions
not involving a public offering;
WHEREAS, the Company has authorized Clarendon to act as the general
distributor and principal underwriter of the Contracts that are sold on a
private placement basis; and in that capacity to enter into agreements, subject
to the consent of the Company, with broker-dealers such as Selling Broker-Dealer
to act as "Special COLI Producers" for the distribution of the Contracts and not
other Company products;
WHEREAS, Clarendon has agreed to assist in obtaining licenses,
registrations and appointments to enable the registered representatives of
Selling Broker-Dealer to sell the Contracts; and
WHEREAS, Selling Broker-Dealer has been selected by Clarendon to
distribute the Contracts and Selling Broker-Dealer in an insurance brokerage
capacity desires to participate in the distribution of the Contracts to its
clients.
NOW THEREFORE, in consideration of the promises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
I.
APPOINTMENT
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Subject to the terms and conditions of this Agreement, the Company and
Clarendon hereby appoint Selling Broker-Dealer to solicit applications for the
Contracts on a private placement basis.
Selling Broker-Dealer accepts such appointment and agrees to use
reasonable efforts to find private placement purchasers for the Contracts
acceptable to the Company ("acceptable private placement clients").
Selling Broker-Dealer will demonstrate to the satisfaction of Clarendon
that it or an affiliate of its has a pre-existing business relationship with
each prospective purchaser.
Selling Broker-Dealer will not take actions or make any statements or
omit to make statements, whether written or oral, in connection with its
activities that could be deemed to be inconsistent with the issuance of the
Contracts on a private placement basis.
II.
AUTHORITY AND DUTIES OF SELLING BROKER-DEALER
A. Licensing and Appointment of Registered Representatives
Selling Broker-Dealer is authorized to appoint registered
representatives to solicit sales of the Contracts on a private placement basis
only. Selling Broker-Dealer agrees to fulfill all requirements set forth in the
General Letter of Recommendation attached as Schedule B hereto in conjunction
with its submission of licensing and appointment papers for all registered
representatives.
Selling Broker-Dealer warrants that it and all of its registered
representatives appointed pursuant to this Agreement shall not solicit nor aid,
directly or indirectly, in the solicitation of any application for any Contract
until fully licensed by the proper authorities under the applicable insurance
laws within the applicable jurisdictions where Selling Broker-Dealer proposes to
offer the Contracts, where the Company is authorized to conduct business and
where the Contracts may be lawfully sold.
Selling Broker-Dealer shall periodically provide the Company with a
list of all appointed registered representatives and the jurisdictions where
such registered representatives are licensed to solicit sales of the Contracts.
The Company shall periodically provide Selling Broker-Dealer with a list which
shows: (i) the jurisdictions where the Company is authorized to do business; and
(ii) any limitations on the availability of the Contracts in any of such
jurisdictions.
Selling Broker-Dealer shall prepare and transmit the appropriate
appointment forms to the Company. Selling Broker-Dealer shall pay all fees to
state insurance regulatory authorities in connection with obtaining necessary
licenses and authorizations for registered representatives to solicit and
sell the Contracts. The Company will pay appointment fees for Selling
Broker-Dealer and resident appointment fees for registered representatives.
Non-resident appointment fees for
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registered representatives will be paid by the Selling Broker-Dealer. The
Company may refuse for any reason to apply for the appointment of a
registered representative and may cancel any existing appointment at any time.
B. Rejection of Registered Representatives
The Company or Clarendon may refuse for any reason, by written notice
to Selling Broker-Dealer to permit any registered representative the right to
solicit applications for the sale of any of the Contracts. Upon receipt of such
notice, Selling Broker-Dealer immediately shall cause such registered
representative to cease such solicitations of sales and cancel the appointment
of registered representative under this Agreement.
C. Supervision of Registered Representatives
Selling Broker-Dealer shall supervise registered representatives
appointed pursuant to this Agreement to solicit sales of the Contracts on a
private placement basis and bear responsibility for all acts and omissions of
each registered representative. Selling Broker-Dealer shall comply with and
exercise all responsibilities required by applicable federal and state law and
regulations. Selling Broker-Dealer shall train and supervise registered
representatives to ensure that purchase of a Contract is recommended only to
applicants where there are reasonable grounds to believe the purchase of the
Contract is suitable for that applicant. While not limited to the following, a
determination of suitability shall be based on information furnished to a
Selling Broker-Dealer after reasonable inquiry of such applicant concerning the
applicant's insurance and investment objectives, financial situation and needs,
and the likelihood that the applicant will continue to make any premium payments
contemplated by the Contracts and will keep the Contract in force for a
sufficient period of time so that the Company's acquisition costs are amortized
over a reasonable period of time.
Nothing contained in this Agreement or otherwise shall be deemed to
make any registered representative an employee or agent of the Company or
Clarendon. Neither the Company nor Clarendon shall have any responsibility for
the training and supervision of any registered representative. If the act or
omission of a registered representative is the proximate cause of claim, damage
or liability (including reasonable attorneys' fees) to the Company or Clarendon,
Selling Broker-Dealer shall be responsible and liable.
Selling Broker-Dealer agrees that it has the full legal
responsibility for the training and supervision of all persons, associated
with Selling Broker-Dealer who are engaged directly or indirectly in the
offer or sale of Contracts. All such persons shall be registered
representatives of Selling Broker-Dealer and shall be subject to the control
and supervision of Selling Broker-Dealer with respect to their securities
regulated activities. Selling Broker-Dealer shall: (i) train and supervise
its registered representatives, in the sale of Contracts; (ii) use its best
efforts to cause such registered representatives to qualify under applicable
federal and state laws to engage
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in the sale of Contracts; (iii) provide the Company and Clarendon to their
satisfaction with evidence of registered representatives' qualifications to
sell Contracts; (iv) notify the Company if any registered representative
ceases to be a registered representative of Selling Broker-Dealer; and (v)
train and supervise registered representatives to ensure compliance with
applicable federal and state securities laws, rules, regulations, statements
of policy thereunder and with NASD rules. Selling Broker-Dealer shall train
and supervise registered representatives to ensure that purchase of a
Contract is recommended only to acceptable private placement clients where
there are reasonable grounds to believe the purchase of the Contract is
suitable for that private placement client. While not limited to the
following, a determination of suitability shall be based on information
furnished to a registered representative after reasonable inquiry of such
applicant concerning the applicant's other security holdings, financial
situation and needs.
Selling Broker-Dealer shall ensure that any offer of a Contract made by
a registered representative will be made on a private placement basis only to
prospective purchasers, each of whom shall be both (i) an "accredited investor"
which meets the definition of accredited investor in Rule 501 under 1933 Act,
and (ii) a "qualified purchaser" which satisfies the definition of qualified
purchaser in Section 2 (a) (51) of the 1940 Act. Selling Broker-Dealer shall use
a purchaser questionnaire to require each prospective purchaser to represent and
warrant that it meets the requirements of the appropriate definitions of
"accredited investor" in Rule 501 under 1933 Act and "qualified purchaser" in
Section 2 (a) (51) of the 1940 Act and the rules promulgated thereunder.
The Company and Clarendon shall not have any responsibility for the
supervision of any registered representative or any employee or affiliate of
Selling Broker-Dealer. If the act or omission of a registered representative or
any employee or affiliate of Selling Broker-Dealer is the proximate cause of any
claim, damage or liability (including reasonable attorney's fees) to the Company
or Clarendon, Selling Broker-Dealer shall be responsible and liable.
Selling Broker-Dealer at all times shall be duly registered as a
broker-dealer under the 1934 Act, a member in good standing of the NASD and
duly licensed in all states and jurisdictions where required to perform
pursuant to this agreement. Selling Broker-Dealer shall fully comply with the
requirements of the 1934 Act and all other applicable federal or state laws
and with the rules of the NASD. Selling Broker-Dealer shall establish such
rules and procedures as may be necessary to cause diligent supervision of the
securities activities of the registered representatives including ensuring
compliance with the private placement offering requirements of the 1933 Act
and the 1940 Act.
D. Contracts
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The Contracts issued by the Company to which this Agreement applies
are listed in Schedule A. Schedule A may be amended from time to time by the
Company. The Contracts shall be sold in reliance upon exemptions from the
registration requirements of the federal securities laws for securities
transactions not involving any public offering.
The Company, in its sole discretion, with prior or concurrent written
notice to Selling Broker-Dealer may suspend distribution of any Contract. The
Company also has the right to amend any Contract at any time.
E. Securing Applications
Each application for a Contract shall be made on an application form
provided by the Company and all payments collected by Selling Broker-Dealer or
any registered representative shall be remitted promptly in full, together with
such application form and any other required documentation, directly to the
Company at the address indicated on such application or to such other address as
may be designated by the Company. All such payments and documents shall be the
property of the Company. Selling Broker-Dealer shall review all such
applications for completeness and for compliance with the conditions herein,
including the suitability requirements set forth herein. Check or money order in
payment of such Contracts should be made payable to the order of "Sun Life
Assurance Company of Canada (U.S.)." All applications are subject to acceptance
or rejection by the Company pursuant to the underwriting rules and procedures of
the Company.
F. Receipt of Money
All money payable in connection with any of the Contracts, whether as
premium, purchase payment, loan or other payment and whether paid by or on
behalf of any Contract owner or anyone else having an interest in the Contracts,
is the property of the Company and shall be transmitted immediately in
accordance with the administrative procedures of the Company without any
deduction or offset for any reason including, but not limited to, any deduction
or offset for compensation claimed by Selling Broker-Dealer, unless there has
been a prior written arrangement for net wire transmissions between the Company
and Selling Broker-Dealer.
G. Notice of Registered Representative's Noncompliance
Selling Broker-Dealer shall immediately notify Clarendon in the
event a registered representative fails or refuses to submit to the
supervision of Selling Broker-Dealer in accordance with this Agreement or any
related agreement between Selling Broker-Dealer and registered representative
or otherwise fails to meet the rules and standards imposed by Selling
Broker-Dealer. Selling Broker-Dealer shall immediately notify such registered
representative that he or
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she is no longer authorized to sell the Contracts, and Selling Broker-Dealer
shall take whatever additional action may be necessary to terminate the sales
activities of such registered representative relating to the Contracts.
H. Sales and Marketing Materials
Selling Broker-Dealer and registered representatives shall not engage
in any activity, which constitutes a public offering of the Contracts or
involves any form of a general solicitation or general advertising of the
Contracts. In furtherance of the prohibition on public offerings, general
advertising and general solicitation, Selling Broker-Dealer and registered
representatives shall not solicit or provide materials relating to the Contracts
to any persons other than acceptable private placement clients. Further, Selling
Broker-Dealer and registered representatives shall not: (i) engage in cold
calling; (ii) publish any advertisement, article, notice or other communication
in any newspaper, magazine, newsletter or similar media or broadcast on TV,
radio or cable; or (iii) hold any meetings or seminars unless each invitee is
known to be an acceptable private placement client.
No sales promotion materials, circulars, documents or any marketing
materials relating to any of the Contracts shall be used by Selling
Broker-Dealer or any registered representative unless the specific item ("Sales
Materials") has been provided by Clarendon or the Company. Selling Broker-Dealer
agrees that if it develops any Sales Materials for sales, training, explanatory
or other purposes in connection with the solicitation or sale of the Contracts,
including generic materials and/or training materials which may be used in
connection with the sale of the Contracts, it will obtain the prior written
approval of the Company or Clarendon, such approval not to be unreasonably
withheld. Selling Broker-Dealer shall be provided with such material as
Clarendon determines necessary or desirable for use in connection with sales of
the Contracts.
Selling Broker-Dealer and registered representatives shall make no
material representations relating to the Contracts, other than those contained
in the relevant private placement memorandum, as may be amended, or in sales
promotion or other marketing materials provided by the Company or Clarendon as
provided herein.
I. Confidentiality
The Company, Clarendon and Selling Broker-Dealer shall keep
confidential all information obtained pursuant to this Agreement, including,
without limitation, names of the purchasers of the Contracts, and shall
disclose such information, only if authorized to make such disclosure in
writing, or if such disclosure is expressly required by applicable federal or
state regulatory authorities or by other legal authority, e.g. subpoena, etc.
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J. Records
Selling Broker-Dealer shall have the responsibility for maintaining
the records of its registered representatives licensed, registered and
otherwise qualified to sell the Contracts. Selling Broker-Dealer shall
maintain such other records as are required of them by applicable laws and
regulations.
Selling Broker-Dealer shall maintain records of prospective private
placement purchasers with whom the Contracts are discussed and to whom materials
relating to the Contracts are sent. The books, accounts and records of Selling
Broker-Dealer relating to the sale of the Contracts shall be maintained so as to
clearly and accurately disclose the nature and details of the transactions.
Selling Broker-Dealer agrees to make the books and records relating to the sale
of the Contracts available to the Company or Clarendon upon their written
request.
K. Registered Representative Agreements
Before a registered representative is permitted by Selling
Broker-Dealer to offer the Contracts, registered representative shall have
entered into a written agreement with Selling Broker-Dealer pursuant to which
(i) registered representative is appointed as a registered representative of
Selling Broker-Dealer; (ii) registered representative agrees that his or her
selling activities relating to Contracts shall be under the supervision and
control of Selling Broker-Dealer, (iii) registered representative's right to
continue to sell such Contracts is subject to his or her continued compliance
with such agreement and any procedures, rules or regulations implemented by
Selling Broker-Dealer, and (iv) registered representative agrees not to take
actions or make any statements or omit to make statements, whether written or
oral, in connection with its activities that could be deemed to be inconsistent
with the issuance of the Contracts on a private placement basis. At the request
of the Company, a copy of each such written agreement shall be mailed to the
Company.
III.
COMPENSATION
A. Commissions and Fees
Commissions and fees payable to Selling Broker-Dealer or any
registered representative in connection with the Contracts shall be paid by
the Company through Clarendon, as paying agent for the Company to Selling
Broker-Dealer, or as otherwise permitted by law or regulation. Selling
Broker-Dealer shall pay registered representatives. Clarendon will provide
Selling Broker-Dealer with a copy of its current Compensation Schedule(s),
attached hereto as Schedule C. Unless otherwise provided in Schedule C,
compensation will be paid as a percentage of premiums or purchase payments
(collectively, "Payments") received and accepted by the
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Company on applications obtained by the various registered representatives
appointed by Selling Broker-Dealer hereunder. Selling Broker-Dealer or
registered representative shall be entitled to receive compensation for all
new and additional premium payments which are in process at the time of
termination of this Agreement in accordance with Schedule C, and shall
continue to be liable for any charge-backs pursuant to the provisions of said
Schedule C, or for any other amount advanced by or otherwise due the Company
or Clarendon hereunder. The Company reserves the right not to pay
compensation on a Contract for which the premium is paid in whole or in part
by the loan or surrender value of any other life insurance policy or annuity
contract issued by the Company or any direct or indirect affiliated company.
Clarendon, at the direction of the Company, shall deduct any
charge-backs from compensation otherwise due Selling Broker-Dealer or registered
representative. If any amount to be deducted exceeds compensation otherwise due,
Selling Broker-Dealer and/or registered representative shall promptly pay back
the amount of the excess following a written demand by Clarendon or the Company.
Selling Broker-Dealer and registered representative are jointly and severally
liable for such charge- backs.
The Company recognizes the Contract Owners' right on issued Contracts
to terminate its agent of record status with Selling Broker-Dealer and/or change
a Selling Broker-Dealer, provided that the Contract Owner notifies Clarendon in
writing. When a Contract Owner terminates its agent of record, fees or
compensation on any payments due or received on any increases in face amount in
the existing policy after termination, shall be payable to Selling Broker-Dealer
in accordance with Schedule C after the notice of termination is received and
accepted by Clarendon. However, when a Contract Owner designates a new Selling
Broker-Dealer other than those of record, no fees or compensation will be
received by the new Selling Broker-Dealer.
A change of Selling Broker-Dealer request by a Contract Owner shall be
honored by the Company only if there exists a valid similar Corporate Markets
Variable Life Insurance Sales Agreement between the Company, Clarendon and the
new Selling Broker-Dealer and (1) the Contract Owner(s) requests in writing that
the registered representative remains as representative of record, or (2) both
the former and future Selling Broker-Dealers direct the Company and Clarendon in
a joint writing to transfer all policies to the new Selling Broker-Dealer, or
(3) the NASD approves and effects a bulk transfer of all representatives to a
new Selling Broker-Dealer.
B. Time of Payment
Clarendon will pay any commissions due Selling Broker-Dealer in
accordance with Schedule C of this Agreement, as it may be amended from time to
time.
C. Amendment of Schedules
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Clarendon may amend Schedule C upon at least ten (10) days' prior
written notice to Selling Broker-Dealer. The submission of an application for
the Contracts by Selling Broker-Dealer after the effective date of any such
amendment shall constitute agreement to such amendment. Any such amendment
shall apply to compensation due on applications received by the Company after
the effective date of such notice.
D. Prohibition Against Rebates
The Company or Clarendon may terminate this Agreement if Selling
Broker-Dealer, or any registered representative rebates, offers to rebate or
withholds any part of any Payment on the Contracts. If Selling Broker-Dealer or
any registered representative shall at any time induce or endeavor to induce any
Owner of any Contract issued hereunder to discontinue payments or to relinquish
any such Contract, except under circumstances where there is reasonable grounds
for believing the Contract is not suitable for such person, any and all
compensation due Selling Broker-Dealer hereunder shall cease and terminate.
E. Indebtedness and Right of Set Off
Nothing contained in this Agreement shall be construed as giving
Selling Broker-Dealer the right to incur any indebtedness on behalf of the
Company or Clarendon. Selling Broker-Dealer hereby authorizes Clarendon and the
Company to set off liabilities of Selling Broker-Dealer to the Company and
Clarendon against any and all amounts otherwise payable to Selling
Broker-Dealer.
IV.
GENERAL PROVISIONS
A. No Waiver
Failure of any party to insist upon strict compliance with any of the
conditions of this Agreement shall not be construed as a waiver of any of the
conditions, but the same shall remain in full force and effect. No waiver of any
of the provisions of this Agreement shall be deemed to be, or shall constitute,
a waiver of any other provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver.
B. Limitations
The Selling Broker-Dealer is an independent contractor with respect
to the Company and Clarendon. No registered representative is a party to this
Agreement nor is any registered
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representative entitled to claim the status of a third party beneficiary with
respect to this Agreement. No party other than the Company and or Clarendon,
as the case may be, shall have the authority to: (i) make, alter or discharge
any Contract issued by the Company; (ii) waive any forfeiture or extend the
time of making any payments; (iii) enter into any proceeding in a court of
law or before a regulatory agency in the name of or on behalf of the Company
or Clarendon; (iv) contract for the expenditure of funds of the Company or
Clarendon; (v) alter the forms which the Company prescribes, or substitute
other forms in place of those prescribed by Clarendon.
C. Fidelity Bond and Other Liability Coverage
Selling Broker-Dealer represents that all directors, officers, agents,
employees and brokers who are licensed pursuant to this Agreement as brokers for
the Company for state insurance law purposes or who have access to funds of the
Company, including but not limited to, funds submitted with applications for the
Contracts are and shall be covered by a blanket fidelity bond, including
coverage for larceny and embezzlement issued by a reputable bonding company.
This bond shall be maintained by Selling Broker-Dealer at their expense and
shall be, at a minimum, of the form, type and amount required under NASD Rules
endorsed to extend coverage to transactions relating to the Contracts. The
Company may require evidence satisfactory to it that such coverage is in force
and Selling Broker-Dealer shall give prompt written notice to the Company of any
notice of cancellation of the bond or change of coverage.
Selling Broker-Dealer hereby assigns any proceeds received from a
fidelity bonding company, error and omissions or other liability coverage, to
the Company or Clarendon as their interest may appear, to the extent of their
loss due to activities covered by the bond, policy or other liability coverage.
If there is any deficiency amount, whether due to a deductible or otherwise,
Selling Broker-Dealer shall promptly pay such amounts on demand. Selling
Broker-Dealer hereby indemnifies and holds harmless the Company and Clarendon
from any such deficiency and from the costs of collection thereof (including
reasonable attorneys' fees).
D. Binding Effect
This Agreement shall be binding on and shall inure to the benefit of
the parties to it and their respective successors and permitted assigns. Neither
this Agreement nor any rights or obligations hereunder may be assigned by any
party without the written consent of the other parties hereto, provided that
Selling Broker-Dealer may assign this Agreement to Analect LLC or an affiliate
or member thereof if Analect LLC or an affiliate or member thereof are
appropriately licensed under applicable securities and insurance laws, and the
Company and Clarendon agree to such an assignment. Any assignment shall be
subject to any indebtedness and obligation of the assigning parties.
E. Regulations
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All parties agree to observe and comply with the existing laws and
rule or regulations of applicable local, state, or federal regulatory
authorities and with those which may be enacted or adopted during the term of
this Agreement regulating the business contemplated hereby in any
jurisdiction in which the business described herein is to be transacted.
F. Indemnification
The Company and Clarendon agree to indemnify and hold harmless Selling
Broker-Dealer, and its officers, directors, agents and employees, against any
and all losses, claims, damages or liabilities to which they may become subject
under the 1933 Act, the 1934 Act, or other federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon
any untrue statement or alleged untrue statement of a material fact or any
omission or alleged omission to state a material fact required to be stated or
necessary to make the statements made not misleading in the private placement
memorandum for the Contracts, as from time to time amended and supplemented, or
in any or sales literature approved in writing by the Company and Clarendon
pursuant to this Agreement. Company or Clarendon will reimburse the Selling
Broker-Dealer or any director, officer, agent or employee of the entity for any
legal or other expenses reasonably incurred by the Selling Broker-Dealer, or
such officer, director, agent or employee in connection with defending any such
loss, claims, damages, liability or action. This indemnity agreement will be in
addition to any liability, which Company and Clarendon may otherwise have.
Selling Broker-Dealer agrees to indemnify and hold harmless the
Company and Clarendon, their officers, directors, agents and employees,
against any and all losses, claims, damages or liabilities to which they may
become subject under the 1933 Act, the 1934 Act, or other federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon (a) any oral or written misrepresentation by Selling
Broker-Dealer or their officers, directors, employees or agents unless such
misrepresentation is contained in the private placement memorandum for the
Contracts, as from time to time amended and supplemented, or any sales
literature approved in writing by the Company and Clarendon pursuant to this
Agreement, (b) the failure of Selling Broker-Dealer or their officers,
directors, employees or agents to comply with any applicable provisions of
this Agreement or (c) claims by brokers, registered representativesor
employees of Selling Broker-Dealer for payments of compensation or
remuneration of any type. Selling Broker-Dealer will reimburse the Company or
Clarendon or any director, officer, agent or employee of either entity for
any legal or other expenses reasonably incurred by the Company, Clarendon, or
such officer, director, agent or employee in connection with defending any
such loss, claims, damages, liability or action. This indemnity agreement
will be in addition to any liability, which Selling Broker-Dealer may
otherwise have.
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G. Notices
All notices or communications shall be sent to the following address
for the Company or Clarendon, or to such other address as the Company or
Clarendon may request by giving written notice to the other parties:
Sun Life Assurance Co. Of Canada (U.S.) Clarendon Insurance Agency, Inc.
One Sun Life Executive Park, SC 2145 One Sun Life Executive Park, SC 1335
Xxxxxxxxx Xxxxx, XX 00000 Xxxxxxxxx Xxxxx, XX 00000
All notices or communications to the Selling Broker-Dealer shall be
sent to the last address known to the Company for that party, or to such other
address as Selling Broker-Dealer may request by giving written notice to the
other parties.
H. Governing Law
This Agreement shall be construed in accordance with and governed by
the laws of the Commonwealth of
Massachusetts.
I. Amendment of Agreement
This Agreement may be amended at any time by written agreement among
the parties hereto.
J. Complaints and Investigations
The Company, Clarendon and Selling Broker-Dealer agree to cooperate
fully in any insurance regulatory investigation or proceeding or judicial
proceeding arising in connection with the Contracts distributed under this
Agreement. The Company, Clarendon and Selling Broker-Dealer further agree to
cooperate fully in any securities regulatory investigation or proceeding with
respect to the Company, Clarendon and, Selling Broker-Dealer, their affiliates
and their agents or representatives to the extent that such investigation or
proceeding is in connection with the Contracts distributed under this Agreement.
Without limiting the foregoing:
(a) Selling Broker-Dealer will be notified promptly of any customer
complaint or notice of any regulatory investigation or proceeding or
judicial proceeding received by the Company or Clarendon with respect
to Selling Broker-Dealer or any registered representative or which may
affect the Company's issuance of any contracts sold under this
Agreement; and
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(b) Selling Broker-Dealer will promptly notify the Company and
Clarendon of any customer complaint or notice of any regulatory
investigation or proceeding received by Selling Broker-Dealer or their
affiliates with respect to Selling Broker-Dealer or any registered
representative in connection with any Contracts distributed under this
Agreement or any activity in connection with any such policies.
In the case of a substantive customer complaint, the Company, Clarendon
and Selling Broker-Dealer will cooperate in investigating such
complaint and any response will be sent to the other party to this
Agreement for approval not less than five business days prior to its
being sent to the customer or regulatory authority, except that if a
more prompt response is required, the proposed response shall be
communicated by telephone or telegraph.
K. Termination
This Agreement may be terminated, without cause, by any party by giving
at least 180 days written notice to all other parties. This Agreement also may
be terminated immediately if Clarendon or Selling Broker-Dealer shall cease to
be a registered Broker-Dealer under the 1934 Act or a member in good standing of
the NASD, or if there occurs the dissolution, bankruptcy or insolvency of
Selling Broker-Dealer. This Agreement may also be terminated upon delivery of
prior written notice by one party to another party effective not less than 30
days after delivery of such written notice for failure of the other party to
comply with any agreement, conditions or covenant under this Agreement, provided
that such termination shall not be effective if, during such 30 day or other
notice period, such failure has been cured, or in the case of any failure to
comply other than nonpayment compensation under this Agreement, if the cure will
require more than 30 days, if the cure has been commenced and is pursued in good
faith. Sections III, IV, F, G, H and J shall survive termination of this
Agreement.
Upon termination of this Agreement, Selling Broker-Dealer shall use its
best efforts to have all property of the Company and Clarendon in Selling
Broker-Dealer or registered representative's possession promptly returned to the
Company or Clarendon, as the case may be. Such property includes illustration
software, private placement memoranda, applications and other literature
supplied by the Company or Clarendon.
L. Exclusivity
Selling Broker-Dealer agrees that no territory is assigned exclusively
hereunder and that the Company and Clarendon reserve the right in their
discretion to establish one or more agencies in any jurisdiction in which
Selling Broker-Dealer transacts business hereunder.
M. Entire Contract
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This Agreement embodies the entire agreement and understanding between
the parties and supersedes all prior and contemporaneous agreements,
understandings, negotiations and discussions of the parties relating to the
subject matter hereof.
N. Counterparts
This Agreement may be signed in multiple counterparts. Each counterpart
shall be considered an original instrument, but all of them in the aggregate
shall constitute one agreement.
O. Severability
In the event that any word, sentence, paragraph provision or article of
this Agreement is found to be void or voidable, the remainder of this Agreement
shall nevertheless be legal and binding with the same force and effect as though
the void or voidable parts were deleted.
P. Interpretations of Headings
The headings, exhibit names and captions, if any, provided herein are
inserted only as a matter of convenience and for reference and in no way define,
limit or describe the scope of this document, and shall not be used in
construing this instrument. This Agreement shall be interpreted and enforced in
accordance with the provisions hereof without the aid of any canon, custom or
rule or law requiring or suggesting construction against the party causing the
drafting of the provision in question. Whenever the singular number is used in
the Agreement and when required by the context, the same shall include the
plural, and the masculine gender shall include the feminine and neutral genders.
This Agreement shall be effective as of ______________________________.
Sun Life Assurance Company of Canada (U.S.) XXXX (Selling Broker-Dealer)
By: ___________________________________ By: ________________________________
(Signature) (Signature)
Title: _________________________________ Title: _____________________________
Date: _________________________________ Date: ______________________________
Clarendon Insurance Agency, Inc.
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By: ____________________________________
(Signature)
Title: _________________________________
Date: __________________________________
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AMENDMENT TO CORPORATE MARKETS INSTITUTIONAL PRIVATE
PLACEMENT
VARIABLE UNIVERSAL LIFE INSURANCE SALES AGREEMENT
This Amendment to the Corporate Markets Institutional Private Placement Variable
Universal Life Insurance Sales Agreement (COLI 45/16 - 11/98) Section V (A) and
Exhibit A, by and between Sun Life Assurance Company of Canada (U.S.) (the
"Company"); Clarendon Insurance Agency, Inc. ("Clarendon"); and XXXX ("Selling
Broker-Dealer"); is effective as of the date the Agreement is executed (the
"Effective Date"). The amended Section V (A) and Exhibit A will affect only
cases placed on or after the Effective Date.
V.
COMPENSATION
A. Commissions and Fees
The commissions and fees payable to the Selling Broker-Dealer or any registered
representative in connection with the Contracts will be paid by the Company
through Clarendon, as paying agent for the Company, to Selling Broker-Dealer, or
as otherwise permitted by law or regulation. Selling Broker-Dealer shall pay
registered representative. The Company, directly or through Clarendon, will
provide Selling Broker-Dealer with a copy of its current Compensation
Schedule(s) for the Sun Life Institutional Private Placement VUL, attached
hereto as Schedule C. The Compensation Schedule for the Sun Life Institutional
Private Placement VUL will be determined by the Company and Clarendon at the
time of sale, and will vary from sale to sale. The commission payable by the
Company, however, will be no more than 1% of premium payments and no more than
0.55% per annum of the difference between a Contract's account value and the
loan account.
For the Sun Life Institutional Private Placement VUL, unless otherwise provided
in Schedule C, compensation will be paid as a percentage of premiums or purchase
payments (collectively, "Payments") received and accepted by the Company on
applications obtained by the various registered representatives appointed by
Selling Broker-Dealer hereunder. Selling Broker-Dealer or registered
representative shall be entitled to receive compensation for all new additional
Payments which are in process at the time of termination in accordance with
Schedule C, and shall continue to be liable for any charge-backs pursuant to the
provisions of Schedule C, or for any other amount advanced by or otherwise due
the Company or Clarendon hereunder. The Company reserves the right not to pay
compensation on a Contract for which the premium is paid in whole or in part by
the loan or surrender value of any other life insurance policy or annuity by the
Company or any direct or indirect affiliated company. Schedule C may be amended
as described in the Corporate Markets Institutional Private Placement Variable
Institutional Private Placement Life Insurance Sales Agreement (COLI
45/16-11/98).
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SCHEDULE A
TYPE OF PLAN
- SUN LIFE INSTITUTIONAL PRIVATE PLACEMENT VARIABLE UNIVERSAL LIFE
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COLI 45/16 (11/98)
SCHEDULE B
General Letter of Recommendation
SELLING BROKER-DEALER hereby certifies to Sun Life of Canada (U.S.) and
Clarendon that all the following requirements will be fulfilled in conjunction
with the submission of licensing/appointment papers for all applicants as
registered representatives submitted by Selling Broker-Dealer. Selling
Broker-Dealer will, upon request, forward proof of compliance with same to Sun
Life of Canada (U.S.) in a timely manner.
1. We have made a thorough and diligent inquiry and investigation
relative to each applicant's identity, residence and business
reputation and declare that each applicant is personally known
to us, has been examined by us, is known to be of good moral
character, has a good business reputation, is reliable, is
financially responsible and is worthy of a license. Each
individual is trustworthy, competent and qualified to act as a
sales representative for Sun Life of Canada (U.S.) to hold
himself out in good faith to the general public. We vouch for
each applicant.
2. We have on file a X-000, X-000, or U-4 form, which was
completed by each applicant. We have fulfilled all the
necessary investigative requirements for the registration of
each applicant as a registered representative through the
Selling Broker-Dealer, a NASD member firm, and each applicant
is presently registered as an NASD registered representative
with the Selling Broker-Dealer..
The above information in our files indicates no fact or
condition which would disqualify the applicant from receiving
a license and all the findings of all investigative
information is favorable.
3. We certify that all educational requirements have been met for
the specific state each applicant is requesting a license in,
and that, all such persons have fulfilled the appropriate
examination, education and training requirements.
4. If the applicant is required to submit his picture, his
signature, and securities registration in the state in which
he is applying for a license, we certify that those items
forwarded to Sun Life of Canada (U.S.) are those of the
applicant and the securities registration is a true copy of
the original.
5. We hereby warrant that the applicant is not applying for a
license with Sun Life of Canada (U.S.) in order to place
insurance chiefly and solely on his life or property, lives or
property of his relatives, or property or liability of his
associates.
6. We certify that each applicant will receive close and adequate
supervision, and that we will make inspection when needed of
any or all risks written by these
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applicants, to the end that the insurance interest of the
public will be properly protected.
7. We will not permit any applicant to transact insurance until
duly licensed therefore. No applicants have been given a
contract or furnished supplies, nor have any applicants been
permitted to write, or solicit business in any capacity, and
they will not be so permitted until the certificate of
authority or license applied for is received. We acknowledge
that the applicant, when licensed, shall be a broker for Sun
Life of Canada (U.S.) and not an agent or sub-agent of Sun
Life of Canada (U.S.).
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SCHEDULE C
SUN LIFE
ASSURANCE COMPANY OF CANADA (U.S.)
CORPORATE MARKETS PRODUCER'S
REMUNERATION SCHEDULE FOR
SUN LIFE INSTITUTIONAL PRIVATE PLACEMENT
VARIABLE UNIVERSAL LIFE
WDC #69281V2
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