PARTICIPATION AGREEMENT
PARTICIPATION AGREEMENT (the "Agreement") made by and between XXXXXXX
VARIABLE LIFE INVESTMENT FUND (the "Fund"), a Massachusetts business trust
created under a Declaration of Trust dated March 15, 1985, as amended, with
a principal place of business in Boston, Massachusetts and CHARTER NATIONAL
LIFE INSURANCE COMPANY, a Missouri corporation (the "Company"), with a
principal place of business in St. Louis, Missouri, on behalf of Charter
National Variable Annuity Account and Charter National Variable Account,
each a separate account of the Company, and any other separate account of
the Company as designated by the Company from time to time, upon written
notice to the Fund in accordance with Section 10 herein (together, the
"Account").
WHEREAS, the Fund acts as the investment vehicle for the separate
accounts established for variable life insurance policies and variable
annuity contracts (collectively referred to herein as "Variable Insurance
Products") to be offered by insurance companies which have entered into
participation agreements substantially identical to this Agreement
("Participating Insurance Companies") and their affiliated insurance
companies; and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares of beneficial interest ("Shares"), and additional series
of Shares may be established, each designated a "Portfolio" and
representing the interest in a particular managed portfolio of securities;
and
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WHEREAS, - it is in the best interest of Participating Insurance
Companies to make capital contributions if required so that the annual
expenses of each Portfolio of the Fund in which a Participating Insurance
Company is a shareholder will not exceed a fixed percentage of the
Portfolio's average annual net assets; and
WHEREAS, the Parties desire to evidence their agreement as to certain
other matters,
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Additional Definition.
For the purposes of this Agreement, the following definitions shall
apply:
(a) The "expenses of a Portfolio" for any fiscal year shall mean
the expenses for such fiscal year as shown in the Statement of Operations
(or similar report) certified by the Fund's independent public accountants;
(b) A "Portfolio's average daily net assets" for each fiscal year
shall mean the sum of the net asset values determined throughout the year
for the purpose of determining net asset value per Share, divided by the
number of such determinations during such year;
(c) The Company's "Required Contribution" on behalf of the Account in
respect of a Portfolio for any fiscal year shall mean an amount equal to
the expenses of that Portfolio for such
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year minus the below-indicated percentage of that Portfolio's average daily
net assets for the year:
International Portfolio 1.50%
Each other Portfolio 0.75%
multiplied by a fraction the denominator of which is the average daily net
assets of that Portfolio and the numerator of which is the average daily
net asset value of the Shares of that Portfolio owned by the Account
(referred to herein as a "Participating Shareholder"). The Company's
Required Contribution in respect of a Portfolio shall be pro-rated based on
the number of business days on which this Agreement is in effect for
periods of less than a fiscal year.
(d) The "average daily net asset value of the Shares of the
Portfolio" owned by the Account for any fiscal year of the Fund shall mean
the greater of (i) $500,000 or (ii) the sum of the aggregate net asset
values of the Shares so owned determined during the fiscal year, as of each
determination of the net asset value per Share, divided by the total number
of determinations of net asset value during such year.
(e) "Shares" means shares of beneficial interest, without par
value, of any Portfolio, now or hereafter created, of the Fund.
2. Capitol Contribution.
The Company on behalf of the Account shall, within sixty days after
the end of each fiscal year of the Fund, make a capital contribution to the
Fund in respect of each Portfolio equal to the Required Contribution for
that Portfolio for such year; provided,
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however, that in the event that both clauses (i) and (ii) of paragraph (d)
of Section 1 of this Agreement or similar agreements are applicable to
different Participating Insurance Companies during the same fiscal year,
there shall be a proportionate reduction of the Required Contribution of
each Participating Insurance Company to which said clause (ii) is
applicable so that the total of all required capital contributions to the
Fund on behalf of any Portfolio is not greater than the excess of the
expenses of that Portfolio for that fiscal year less the percentage of that
Portfolio's total expenses set forth in paragraph (c) of Section 1 of this
Agreement for such fiscal year.
3. Duty of Fund to Sell.
The Fund shall make its shares available for purchase at the
applicable net asset value per Share by Participating Insurance
Companies and their affiliates and separate accounts on those days on which
the Fund calculates its net asset value pursuant to rules of the Securities
and Exchange Commission; provided, however, that the Trustees of the Fund
may refuse to sell Shares of any Portfolio to any person, or suspend or
terminate the offering of Shares of any Portfolio, if such action is
required by law or by regulatory authorities having jurisdiction or is, in
the sole discretion of the Trustees, necessary in the best interest of the
shareholders of any Portfolio.
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4. Requirement to Execute Participation Agreement; Requests.
Each Participating Insurance Company shall, prior to purchasing Shares
in the Fund, execute and deliver a participation agreement in a form
substantially identical to this Agreement.
The Fund shall make available, upon written request from the
Participating Insurance Company given in accordance with Paragraph 10, to
each Participating Insurance Company which has executed an Agreement and
which Agreement has not been terminated pursuant to Paragraph 8 (i) a list
of all other Participating Insurance Companies, and (ii) a copy of the
Agreement as executed by any other Participating Insurance Company.
The Fund shall also make available upon request to each Participating
Insurance Company which has executed an Agreement and which Agreement has
not been terminated pursuant to Paragraph 8, the net asset value of any
Portfolio of the Fund as of any date upon which the Fund calculates the net
asset value of its Portfolios for the purpose of purchase and redemption of
Shares.
5. Indemnification.
(a) The Company agrees to indemnify and hold harmless the Fund and
each of its Trustees and officers and each person, if any, who controls the
Fund within the meaning of Section 15 of the Securities Act of 1933 (the
"Act") against any and all losses, claims, damages, liabilities or
litigation (including legal and other expenses), arising out of the
acquisition of any Shares by any person, to which the Fund or such
Trustees, officers or controlling person may become subject under the Act,
under any other statute, at common law or otherwise, which (i) may be based
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upon any wrongful act by the Company, any of its employees or
representatives, any affiliate of or any person acting on behalf of the
Company or a principal underwriter of its insurance products, or (ii) may
be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus covering
Shares or any amendment thereof or supplement thereto or the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading if such
a statement or omission was made in reliance upon information furnished to
the Fund by the Company, or (iii) may be based on any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement or prospectus covering insurance products sold by the Company or
any insurance company which is an affiliate thereof, or any amendments or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statement or statements therein not misleading, unless such statement or
omission was made in reliance upon information furnished to the Company or
such affiliate by or on behalf of the Fund; provided, however, that in no
case (i) is the Company's indemnity in favor of a Trustee or officer or any
other person deemed to protect such Trustee or officer or other person
against any liability to which any such person would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance of his duties or by reason of his reckless disregard of
obligations and duties under
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this Agreement or (ii) is the Company to be liable under its indemnity
agreement contained in this Paragraph 5 with respect to any claim made
against the Fund or any person indemnified unless the Fund or such person,
as the case may be, shall have notified the Company in writing pursuant to
Paragraph 10 within a reasonable time after the summons or other first
legal process giving information of the nature of the claims shall have
been served upon the Fund or upon such person (or after the Fund or such
person shall have received notice of such service on any designated agent),
but failure to notify the Company of any such claim shall not relieve the
Company from any liability which it has to the Fund or any person against
whom such action is brought otherwise than on account of its indemnity
agreement contained in this Paragraph 5. The Company shall be entitled to
participate, at its own expense, in the defense, or, if it so elects, to
assume the defense of any suit brought to enforce any such liability, but,
if it elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to the Fund, to its officers and
Trustees, or to any controlling person or persons, defendant or defendants
in the suit. In the event that the Company elects to assume the defense of
any such suit and retain such counsel, the Fund, such officers and Trustees
or controlling person or persons, defendant or defendants in the suit,
shall bear the fees and expenses of any additional counsel retained by
them, but, in case the Company does not elect to assume the defense of any
such suit, the Company will reimburse the Fund, such officers and Trustees
or
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controlling person or persons, defendant or defendants in such suit, for
the reasonable fees and expenses of any counsel retained by them. The
Company agrees promptly to notify the Fund pursuant to Paragraph 10 of the
commencement of any litigation or proceedings against it in connection with
the issue and sale of any Shares.
(b) The Fund agrees to indemnify and hold harmless the Company and
each of its directors and officers and each person, if any, who controls
the Company within the meaning of Section 15 of the Act against any and all
losses, claims, damages, liabilities or litigation (including legal and
other expenses) to which it or such directors, officers or controlling
person may become subject under the Act, under any other statute, at common
law or otherwise, arising out of the acquisition of any Shares by any
person which (i) may be based upon any wrongful act by the Fund, any of its
employees or representatives or a principal underwriter of the Fund, or
(ii) may be based upon any untrue statement or alleged untrue statement of
a material fact contained in a registration statement or prospectus
covering Shares or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading unless such statement or omission was made in reliance upon
information furnished to the Fund by the Company or (iii) may be based on
any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering insurance
products
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sold by the Company, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or statements therein
not misleading, if such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of the Fund; provided,
however, that in no case (i) is the Fund's indemnity in favor of a director
or officer or any other person deemed to protect such director or officer
or other person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his duties or by reason of his reckless
disregard of obligations and duties under this Agreement or (ii) is the
Fund to be liable under its indemnity agreement in this Paragraph 5 with
respect to any claims made against the Company or any such director,
officer or controlling person, as the case may be, shall have notified the
Fund in writing pursuant to Paragraph 10 within a reasonable time after the
summons or other first legal process giving information of the nature of
the claim shall have been served upon it or upon such director, officer or
controlling person (or after the Company or such director, officer or
controlling person shall have received notice of such service on any
designated agent), but failure to notify the Fund of any claim shall not
relieve it from any liability which it may have to the person against whom
such action is brought otherwise than on account of its indemnity agreement
contained in
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this Paragraph. The Fund will be entitled to participate at its own expense
in the defense, or, if it so elects, to assume the defense of any suit
brought to enforce any such liability, but if the Fund elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Company, its directors, officers or controlling person
or persons, defendant or defendants, in the suit. In the event the Fund
elects to assume the defense of any such suit and retain such counsel, the
Company, its directors, officers or controlling person or persons,
defendant or defendants in the suit, shall bear the fees and expenses of
any additional counsel retained by them, but, in case the Fund does not
elect to assume the defense of any such suit, it will reimburse the Company
or such directors, officers or controlling person or persons, defendant or
defendants in the suit, for the reasonable fees and expenses of any counsel
retained by them. The Fund agrees promptly to notify the Company pursuant
to Paragraph 10 of the commencement of any litigation or proceedings
against it or any of its officers or Trustees in connection with the
issuance or sale of any Shares.
6. Procedure for Resolving Irreconcilable Conflicts.
(a) The Trustees of the Fund will monitor the operations of the
Fund for the existence of any material irreconcilable conflict among the
interests of all the contract holders and policy owners of Variable
Insurance Products (the "Participants") of all separate accounts investing
in the Fund. An irreconcilable material conflict may arise, among other
things, from: (a) an action by any
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state insurance regulatory authority; (b) a change in applicable insurance
laws or regulations; (c) a tax ruling or provision of the Internal Revenue
Code or the regulations thereunder; (d) any other development relating to
the tax treatment of insurers, contract holders or policy owners or
beneficiaries of Variable Insurance Products; (e) the manner in which the
investments of any Portfolio are being managed; (f) a difference in voting
instructions given by variable annuity contract holders, on the one hand,
and variable life insurance policy owners, on the other hand, or by the
contract holders or policy owners of different participating insurance
companies; or (g) a decision by an insurer to override the voting
instructions of Participants.
(b) The Company will be responsible for reporting any potential or
existing conflicts to the Trustees of the Fund. The Company will be
responsible for assisting the Trustees in carrying out their
responsibilities under this Paragraph 6(b) and Paragraph 6(a), by providing
the Trustees with all information reasonably necessary for the Trustees to
consider the issues raised. The Fund will also request its investment
adviser to report to the Trustees any such conflict which comes to the
attention of the adviser.
(c) If it is determined by a majority of the Trustees of the Fund,
or a majority of its disinterested Trustees, that a material irreconcilable
conflict exists involving the Company, the Company shall, at its expense,
and to the extent reasonably practicable (as determined by a majority of
the disinterested Trustees), take whatever steps are necessary to eliminate
the irreconcilable
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material conflict, including withdrawing the assets allocable to
some or all of the separate accounts from the Fund or any Portfolio and
reinvesting such assets in a different investment medium, including another
Portfolio of the Fund, offering to the affected Participants the option of
making such a change or establishing a new funding medium including a
registered investment company.
For purposes of this Paragraph 6(c), the Trustees, or the
disinterested Trustees, shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict. In the event of
a determination of the existence of an irreconcilable material conflict,
the Trustees shall cause the Fund to take such action, such as the
establishment of one or more additional Portfolios, as they in their sole
discretion determine to be in the interest of all shareholders and
Participants in view of all applicable factors, such as cost, feasibility,
tax, regulatory and other considerations. In no event will the Fund be
required by this Paragraph 6(c) to establish a new funding medium for any
variable contract or policy.
The Company shall not be required by this Paragraph 6(c) to establish
a new funding medium for any variable contract or policy if an offer to do
so has been declined by a vote of a majority of the Participants materially
adversely affected by the material irreconcilable conflict. The Company
will recommend to its Participants that they decline an offer to establish
a new funding medium only if the Company believes it is in the best
interest of the Participants.
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(d) The Trustees' determination of the existence of an irreconcilable
material conflict and its implications promptly shall be communicated to
all Participating Insurance Companies by written notice thereof delivered
or mailed, first class postage prepaid.
7. Voting Privileges.
The Company shall be responsible for assuring that its separate
account or accounts participating in the Fund shall use a calculation
method of voting procedures substantially the same as the following: those
Participants permitted to give instructions and the number of Shares for
which instructions may be given will be determined as of the record date
for the Fund shareholders' meeting, which shall not be more than 60 days
before the date of the meeting. Whether or not voting instructions are
actually given by a particular Participant, all Fund shares held in any
separate account or sub-account thereof and attributable to policies will
be voted for, against, or withheld from voting on any proposition in the
same proportion as (i) the aggregate record date cash value held in such
sub-account for policies giving instructions, respectively, to vote for,
against, or withhold votes on such proposition, bears to (ii) the aggregate
record date cash value held in the sub-account for all policies for which
voting instructions are received. Participants continued in effect under
lapse options will not be permitted to give voting instructions. Shares
held in any other insurance company general or separate account or sub-
account thereof will be voted in the proportion
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specified in the second preceding sentence for shares attributable to
policies.
8. Duration and Termination.
This Agreement shall remain in force one year from the date of its
execution (such date and any anniversary of such date being hereinafter
called a "Renegotiation Date"), and from year to year thereafter provided
that neither the Company nor the Fund shall have given written notice to
the other within thirty (30) days prior to a Renegotiation Date that it
desires to renegotiate the amount or contribution to capital due hereunder
("Renegotiation Notice"). In the event any other Participating Insurance
Company (which thereafter remains a Participating Insurance Company) shall
cease to be subject to the obligation to make capital contributions under
the terms of their respective Participation Agreement, this agreement will
remain in effect; however, the Company shall discontinue payment of capital
contributions as defined in paragraph (c) of Section 1 of this Agreement.
If a Renegotiation Notice is properly given as aforesaid and the Fund
and the Company shall fail, within sixty (60) days after the renegotiation
date, either to enter into an amendment to this Agreement or a written
acknowledgment that the Agreement shall continue in effect, this Agreement
shall terminate as of the one hundred twentieth day after such
Renegotiation Date. If this Agreement is so terminated, the Fund may, at
any time thereafter, automatically redeem the Shares of any Portfolio held
by a Participating Shareholder. This Agreement may be terminated at any
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time, at the option of either of the Company or the Fund, when neither the
Company, any insurance company nor the separate account or accounts of such
insurance company which is an affiliate thereof which is not a
Participating Insurance Company own any Shares of the Fund or may be
terminated by either party to the Agreement upon a determination by a
majority of the Trustees of the Fund, or a majority of its disinterested
Trustees, following certification thereof by a Participating Insurance
Company given in accordance with Paragraph 10 that an irreconcilable
conflict exists among the interests of (i) all contract holders and policy
holders of Variable Insurance Products of all separate accounts or (ii) the
interests of the Participating Insurance Companies investing in the Fund.
Notwithstanding anything to the contrary in this Agreement or its
termination as provided herein, the Company's obligation to make a capital
contribution to the Fund in accordance with this Agreement at the time in
effect shall continue (i) following a properly given Renegotiation Notice,
in the absence of agreement otherwise, until termination of this Agreement,
and (ii) (except termination due to the existence of an irreconcilable
conflict), following termination of this Agreement, until the later of the
anniversary of the date of this Agreement or the date on which the Company,
its separate account(s) or the separate account(s) of any affiliated
insurance company owns no Shares.
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9. Compliance.
The Fund will comply with the provisions of Section 4240(a) of the New
York Insurance Law.
Each Portfolio of the Fund will comply with the provisions of Section
817(h) of the Internal Revenue Code of 1986, as amended (the "Code"),
relating to diversification requirements for variable annuity, endowment
and life insurance contracts. Specifically, each Portfolio will comply
with either (i) the requirement of Section 817(h)(1) of the Code that its
assets be adequately diversified, or (ii) the "Safe Harbor for
Diversification" specified in Section 817(h)(2) of the Code, or (iii) the
diversification requirement of Section 817(h)(1) of the Code by having all
or part of its assets invested in U.S. Treasury securities which quality
for the "Special Rule for Investments in United States Obligations"
specified in Section 817(h)(3) of the Code.
The provisions of Paragraphs 6 and 7 of this Agreement shall be
interpreted in a manner consistent with any Rule or order of the Securities
and Exchange commission under the Investment Company Act of 1940, as
amended, applicable to the parties hereto.
No shares of any Portfolio of the Fund may be sold to the general
public.
10. Notices.
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party
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set forth below or at such other address as such party may from time to
time specify in writing to the other party.
If to the Fund:
Xxxxxxx Variable Life Investment Fund
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn.: Xxxxx X. Xxxxx
If to the Company:
Charter National Life Insurance Company
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn.: Xxxxxxx X. Xxxxxxxx
11. Massachusetts Law to Apply.
This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
12. Miscellaneous.
The name "Xxxxxxx Variable Life Investment Fund" is the designation of
the Trustees for the time being under a Declaration of Trust dated March
15, 1985, as amended, and all persons dealing with the Fund must look
solely to the property of the Fund for the enforcement of any claims
against the Fund as neither the Trustees, officers, agents or shareholders
assume any personal liability for obligations entered into on behalf of the
Fund. No Portfolio shall be liable for any obligations properly
attributable to any other Portfolio.
The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect.
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This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
13. Entire Agreement.
This Agreement incorporates the entire understanding and agreement
among the parties hereto, and supersedes any and all prior understandings
and agreements between the parties hereto with respect to the subject
matter hereof.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the 3rd
day of September, 1993.
SEAL XXXXXXX VARIABLE LIFE
INVESTMENT FUND
By:__________________________
/S/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
President
SEAL CHARTER NATIONAL LIFE
INSURANCE COMPANY
BY:___________________________
/S/Xxxxxxx X. Xxxxxxxx
Its: Executive Vice President
REIMBURSEMENT AGREEMENT
REIMBURSEMENT AGREEMENT (the "Agreement") made by and between XXXXXXX,
XXXXXXX & XXXXX LTD., a Delaware corporation ("SS&C"), with a principal
place of business in Boston, Massachusetts and CHARTER NATIONAL LIFE
INSURANCE COMPANY, a Missouri corporation (the "Company"), with a principal
place of business in St. Louis, Missouri.
WHEREAS, SS&C has caused to be organized Xxxxxxx Variable Life
Investment Fund (the "Fund"), a Massachusetts business trust created under
a Declaration of Trust dated March 15, 1985, the beneficial interest in
which is divided into several series, each designated a "Portfolio" and
representing the interest in a particular managed portfolio of securities;
and
WHEREAS, the purpose of the FUND is to act as the investment vehicle
for the separate accounts established for variable life insurance policies
and variable annuity contracts to be offered by insurance companies which
have entered into reimbursement agreements substantially identical to this
Agreement ("Participating Insurance Companies"); and
WHEREAS, it is in the best interest of the parties hereto for
Participating Insurance Companies, including the Company, to assume a
portion of the organization and other expenses incurred by SS&C in
connection with the FUND; and
WHEREAS, the parties desire to express their agreement as to certain
other matters;
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements hereinafter contained, the parties hereto agree as
follows:
1. Additional Definitions.
For purposes of this Agreement, the following definitions shall apply:
(a) The "average annual net asset value of the Shares of each
Portfolio of the Fund" shall mean the sum of the aggregate net asset values
of the Shares of such Portfolio owned by the Company, the separate account
or accounts of the Company, and any insurance company or the separate
account or accounts of such insurance company which is an affiliate
thereof which is not a Participating Insurance Company (each individually
referred to herein as a "Participating Shareholder" or collectively as the
"Participating Shareholders") determined as of each determination of the
net asset value per Share of the Fund during the fiscal year, divided by
the number of such determinations during such year.
(b) "Shares" means shares of beneficial interest, without par
value, of any Portfolio, now or hereafter created, of the Fund.
2. Initial Reimbursement Fee.
Simultaneously with the execution of this Agreement, the Company has
paid to SS&C a fee ("Reimbursement Fee") in the
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amount of $10,000 in order partially to defray expenses incurred by SS&C in
connection with the organization of the Fund.
3. Annual Reimbursement Fee
For a period of five years from the date of this Agreement, the
Company shall in respect of each fiscal year of the Fund pay to SS&C a sum
equal to (i) $25,000 (or such lesser amount as is provided in the next
subsequent sentence) less (ii) the sum of the average annual net asset
value of the Shares of each Portfolio of the Fund held during such fiscal
year by the Participating Shareholders multiplied by the annual advisory
fee applicable to such Portfolio pursuant to an Investment Advisory
Agreement dated July 12, 1985 between SS&C and the Fund, or any superseding
or amended agreement. If this Agreement commences or terminates on a date
other than the first day of a fiscal year of the Fund, the amount of
$25,000 in the calculation for such year prescribed in the preceding
sentence shall be reduced in the proportion that the number of business
days in such fiscal year during which this Agreement is in effect bears to
the total number of business days in such fiscal year.
4. Fund Exclusive Funding Vehicle until Minimum Size Attained.
Until such time as the aggregate net assets of the Fund shall first
have reach $200,000,000, neither the Company nor any person controlling,
controlled by, or under common control with the Company, shall, during the
term of this Agreement and
3 5091J
without the express written consent of SS&C, offer any variable life
insurance policy or variable annuity contract which permits the policy or
contract holder to designate that a portion of the premium be invested in,
or represent an investment in, directly or indirectly, securities of a
registered investment company other than the fund.
5. Access to Other Products.
SS&C shall permit a Participating Shareholder to participate in any
registered investment company other than the Fund which is intended as the
funding vehicle for insurance products and for which SS&C or an affiliate
of SS&C acts as investment adviser, on the same basis as other insurance
companies are permitted to participate in such a registered investment
company; This provision shall not require SS&C to make available to the
Company shares of any investment company which is organized solely as the
funding vehicle for insurance products offered by a single insurance
company or a group of affiliated insurance companies.
6. Right to Review and Approve Sales Materials.
The Company shall furnish, or shall cause to be furnished, to SS&C or
its designee, at least twenty days prior to its intended use, each piece of
promotional material in which SS&C or the Fund is named. No such material
shall be used unless SS&C or its designee shall have approved such use in
writing, or 20 days shall have elapsed without approval, rejection or
objection since receipt by SS&C or its designee of such material.
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SS&C shall furnish, or shall cause to be furnished, to the Company or
its designee, at least twenty days prior to its intended use, each piece of
promotional material in which the Company or its separate account(s) is
named. No such material shall be used unless the Company or its designee
shall have approved such use in writing, or 20 days shall have elapsed
without approval, rejection or objection since receipt by the Company or
its designee of such material.
7. Sales Organization Meetings.
Representatives of SS&C or its designee shall meet with the sales
organizations of the Company at such reasonable times and places as may be
agreed upon by the Company and SS&C or its designee for the purpose of
educating sales personnel about the Fund.
8. Duration.
This Agreement shall continue in effect for five (5) years from the
date of its execution, except that the obligation of each party hereto to
indemnify the other party hereto shall continue with respect to all losses,
claims, damages, liabilities or litigation based upon the acquisition of
Shares purchased as the funding vehicle for any variable life insurance
policy or variable annuity contract issued by the Company or any affiliated
insurance company.
9. Indemnification.
The Company agrees to indemnify and hold harmless SS&C and each of its
Directors and officers and each person, if any, who
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controls SS&C within the meaning of Section 15 of the Securities Act of
1933 (the "ACT") or any person, controlled by or under common control with
SS&C ("affiliate") against any and all losses, claims, damages, liabilities
or litigation (including legal and other expenses) to which SS&C or such
Directors, officers or controlling person may become subject under the Act,
under any other statute, at common law or otherwise, arising out of the
acquisition of any Shares by any person which (i) may be based upon any
wrongful act by the Company, any of its employees or representatives, any
affiliate of or any person acting on behalf of the Company or a principal
underwriter of its insurance products, or (ii) may be based upon any untrue
statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering Shares or any amendment
thereof or supplement thereto or the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading if such a statement or omission was
made in reliance upon information furnished to SS&C or the Fund by the
Company, provided, however, that in no case (i) is the Company's indemnity
in favor of a Director or officer or other person deemed to protect such
Director or officer or other person against any liability to which any such
person would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of his duties or by reason of
his reckless disregard of obligations and
6 5091J
duties under this Agreement or (ii) is the Company to be liable under its
indemnity agreement contained in this Paragraph 9 with respect to any claim
made against SS&C or any person indemnified unless SS&C or such person, as
the case may be, shall have notified the Company in writing pursuant to
Paragraph 11 within a reasonable time after the summons or other first
legal process giving information of the nature of the claims shall have
been served upon SS&C or upon such person (or after SS&C or such person
shall have received notice of such service on any designated agent), but
failure to notify the Company of any such claim shall not relieve the
Company from any liability which it has to SS&C or any person against whom
such action is brought otherwise than on account of the indemnity agreement
contained in this Paragraph 9. The Company shall be entitled to
participate, at its own expense, in the defense, or, it is so elects, to
assume the defense of any suit brought to enforce any such liability, but,
if it elects to assume the defense, such defense shall be conducted by
counsel chosen by it and satisfactory to SS&C, to it officers and
Directors, or to any controlling person or persons, defendant or defendants
in the suit, In the event that the Company elects to assume the defense of
any such suit and retain such counsel, SS&C, such officers and Directors or
controlling person or persons, defendant or defendants in the suit, shall
bear the fees and expenses of any additional counsel retained by them, but,
in case the Company does not elect to assume the
7 5091J
defense of any such suit, the Company will reimburse SS&C, such officers
and Directors or controlling person or persons, defendant or defendants in
such suit, for the reasonable fees and expenses of any counsel retained by
them. The Company agrees promptly to notify SS&C pursuant to Paragraph 11
of the commencement of any litigation or proceedings against it in
connection with the issue and sale of any Shares.
SS&C agrees to indemnify and hold harmless the Company and each of its
directors and officers and each person, if any, who controls the Company
within the meaning of Section 15 of the Act against any and all losses,
claims, damages, liabilities or litigation (including legal and other
expenses) to which it or such directors, offices or controlling person may
become subject under the Act, under any other statute, at common law or
otherwise, arising out of the acquisition of any Shares by any person which
(i) may be based upon any wrongful act by SS&C, any of its employees or
representatives or a principal underwriter of the Fund, or (ii) may be
based upon any untrue statement or alleged untrue statement of a material
fact contained in a registration statement or prospectus covering Shares or
any amendment thereof or supplement thereto or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if such statement
or omission was made in reliance upon information furnished to the Company
by SS&C; provided, however, that in no case (i) is SS&C's indemnity
8 5091J
in favor of a director or officer or any other person deemed to protect
such director or officer or other person against any liability to which any
such person would otherwise be subject by reason of willful misfeasance,
bad faith, or gross negligence in the performance of his duties or by
reason of his reckless disregard of obligations and duties under this
Agreement or (ii) is SS&C to be liable under its indemnity agreement
contained in this Paragraph 9 with respect to any claims made against the
Company or any such director, officer or controlling person unless it or
such director, officer or controlling person, as the case may be, shall
have notified SS&C in writing pursuant to Paragraph 11 within a reasonable
time after the summons or other first legal process giving information of
the nature of the claim shall have been served upon it or upon such
director, officer or controlling person (or after the Company or such
director, officer or controlling person shall have received notice of such
service on any designated agent), but failure to notify SS&C of any claim
shall not relieve it from any liability which it may have to the person
against whom such action is brought otherwise than on account of its
indemnity agreement contained in this Paragraph 9. SS&C will be entitled
to participate at its own expense in the defense, or, if it so elects, to
assume the defense of any suit brought to enforce any such liability, but
if SS&C elects to assume the defense, such defense shall be conducted by
counsel chosen by it an satisfactory to the Company, it directors,
9 5091J
officers or controlling person or persons, defendant or defendants, in the
suit. In the event SS&C elects to assume the defense of any such suit and
retain such counsel, the Company, its directors, officers or controlling
person or persons, defendant or defendants in the suit, shall bear the fees
and expenses of any additional counsel retained by them, but, in case SS&C
does not elect to assume the defense of any such suit, it will reimburse
the Company, or such directors, officers or controlling person or persons,
defendant or defendants in the suit, for the reasonable fees and expenses
of any counsel retained by them. SS&C agrees promptly to notify the
Company pursuant to Paragraph 11 of the commencement of any litigation or
proceedings against it or any of its officers or Directors in connection
with the issuance or sale of any Shares.
10. Massachusetts Law to Apply
This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of The Commonwealth of
Massachusetts.
11. Notices.
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth
below or at such other address as such party may from time to time specify
in writing to the other party.
10 5091J
If to SS&C:
Xxxxxxx, Xxxxxxx & Xxxxx Ltd.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
(000) 000-0000
Attn: Xxxxx X. Xxxxx
If to the Company:
Charter National Life Insurance Company
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx
12. Miscellaneous
The captions in the Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions
hereof or otherwise affect their construction or effect. This Agreement
may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
11 5091J
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the 9th
day of June, 1986.
SEAL XXXXXXX, XXXXXXX & XXXXX LTD.
BY___________________________
/S/ Xxxxx X. Xxxxx
Managing Director
SEAL CHARTER NATIONAL LIFE
INSURANCE COMPANY
BY___________________________
/S/ G. Xxxxxx Xxxxxxxx
Its Executive Vice President
12 5091J
XXXXXXX, XXXXXXX & XXXXX
Investment Counsel
000 XXXXXXX XXXXXX
XXXXXX, XXXXXXXXXXXXX 00000
000 000-0000
June 12, 1986
Charter National Life
Insurance Company
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Gentlemen:
Reference is made to the Reimbursement Agreement between Xxxxxxx,
Xxxxxxx & Xxxxx Ltd. and Charter National Life Insurance Company (the
"Company") dated June 9, 1986 (the "Agreement").
As an additional inducement for the Company entering into the
Agreement, Scudder, Stevens, & Xxxxx Ltd. hereby agrees that Xxxxxxx,
Xxxxxxx & Xxxxx Ltd. and the Company each has a duty to the other party to
cooperate in any investigation relating to the subject matter of the
Agreement conducted by any regulatory or other governmental body having
jurisdiction.
If the foregoing represents your understanding, please sign the extra
copy of this letter provided and return it to the undersigned.
XXXXXXX, XXXXXXX & XXXXX LTD.
By __________________________
/S/Xxxxx X. Xxxxx
The foregoing represents our understanding.
CHARTER NATIONAL LIFE INSURANCE COMPANY
By __________________________
/S/ G. Xxxxxx Xxxxxxxx
5/22/86
Xxxxxxx Fund Distributors, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
PARTICIPATING CONTRACT AND POLICY AGREEMENT
Dear Sirs:
We (sometimes hereinafter referred to as "SFD") are the Principal
Underwriter of shares of Xxxxxxx Variable Life Investment Fund (the
"Fund"), a no-load, open-end, diversified registered management investment
company established in 1985 as a Massachusetts business trust. The Fund is
a series fund consisting of the Money Market Portfolio, Managed Bond
Portfolio, Managed Equity Portfolio, Managed Diversified Portfolio and five
Managed Zero Coupon Portfolios maturing in 1990, 1995, 2000, 2005 and 2010,
respectively (individually or collectively hereinafter referred to as the
"Portfolio" or the "Portfolios"). Additional Portfolios may be created
from time to time. The Fund is the funding vehicle for variable annuity
contracts and variable life insurance policies ("Participating Contracts
and Policies") to be offered to the separate accounts (the "Accounts") of
certain life insurance companies ("Participating Insurance companies").
Owners of Participating Contracts and Policies will designate a portion of
their premium to be invested in insurance company separate accounts or sub-
accounts which invest in, or represent an investment in, directly or
indirectly, shares of beneficial interest ("Shares") of the Portfolios of
the Fund . You are a registered
broker-dealer which intends to offer and sell Participating Contracts and
Policies. In connection with such offer and sale you will be obligated to
deliver the prospectuses of such Participating Contracts and Policies and,
contemporaneously therewith, the prospectus of the Fund. Sales of Shares
to Participating Insurance Companies or their affiliates or the separate
accounts of either shall be effected solely by us as principal underwriter
of the Fund, and not by you. The relationship between us shall be further
governed by the following terms and conditions:
1. To the extent, if any, that your activities or the activities of
the Participating Insurance Companies in connection with the sale of
Participating Contracts and Policies may constitute the sale of Shares, you
and we agree that (i) we are the sole "principal underwriter" of the Fund
and the sole "underwriter" of the Shares as those terms are defined in the
Investment Company Act of 1940 (the "1940 Act") and the Securities Act of
1933 (the "1933 Act"), respectively, and (ii) neither you nor the
Participating Insurance Companies or the Accounts shall be deemed to be
"principal underwriters" of the Fund or "underwriters" of the Fund within
the meaning of the 1940 Act and the 1933 Act, respectively.
2. You hereby represent and warrant to us as follows:
(a) You are a corporation duly organized and validly existing in
good standing under the laws of the State of Missouri and have full power
and authority to enter into this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by you and is a valid and binding obligation enforceable against you in
accordance with its terms.
(c) Your compliance with the provisions of this Agreement will not
conflict with or result in a violation of the provisions of your charter or
by-laws, or any stature or any judgment, decree, order, rule or regulation
of any court or governmental agency or body having jurisdiction.
2 5089J
3. We hereby represent and warrant to you as follows:
(a) A registration statement (File No. 2-96461) on Form N-1A with
respect to the Shares (x) has been prepared by the Fund in conformity with
the requirements of the 1940 Act and the 1933 Act and all applicable
published instructions, rules and regulations (the "Rules and Regulations")
of the Securities and Exchange Commission (the "Commission"), (y) has been
filed with the Commission, and (z) is currently effective. The
registration statement, including financial statements and exhibits, and
the final prospectus, including the statement of additional information, as
subsequently amended and supplemented, are herein respectively referred to
as the (Registration Statement" and the "Prospectus".
(b) The Registration Statement and the Prospectus and any amendment
or supplement thereto will contain all statements required to be stated
therein and will comply in all material respects with the requirements of
the 1940 Act, the 1933 Act and the Rules and Regulations, and the
Registration Statement and any post-effective amendment thereto will not
contain or incorporate by reference any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading, and the Prospectus and any
amendment or supplement thereto will not contain or incorporate by
reference any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading.
(c) We are a corporation duly organized and validly existing in
good standing under the laws of The Commonwealth of Massachusetts and have
full power and authority to enter into this Agreement.
(d) This Agreement has been duly authorized, executed and delivered
by us and is a valid and binding obligation enforceable against us in
accordance with its terms.
(e) Our compliance with all of the provisions of this Agreement
will not conflict with or result in a violation of the provisions of our
charter or by laws, or any statute or any judgment, decree, order, rule or
regulation of any court or governmental agency or body having jurisdiction
over us.
3 5089J
4. You hereby covenant and agree with us as follows:
(a) You shall be an independent contractor and neither you nor any
of your directors, partners, officers or employees as such, is or shall be
an employee of us or of the Fund. You are responsible for your own conduct
and the employment, control and conduct of your agents and employees and
for injury to such agents or employees or to other through your agents or
employees.
(b) You or one or more Participating Insurance Companies will be
responsible for insuring compliance with all applicable laws and
regulations of any regulatory body having jurisdiction over you or
Participating Contracts and Policies.
(c) No person is authorized to make any representations concerning
Shares except those contained in the prospectus and statement of additional
information relating thereto and in such printed information as issued by
us for use as information supplemental to the prospectus. In offering
Participating Contracts and Policies you shall, with respect to the Fund
and the Shares, rely solely on the representations contained in the
prospectus and statement of additional information and in the above-
mentioned supplemental information.
(d) You are not entitled to any compensation whatsoever from us or
the Fund with respect to offers of Participating Contracts and Policies.
5. We hereby covenant and agree with you as follows:
(a) If, at any time when a prospectus relating to the Shares is
required to be delivered under the 1940 Act, the 1933 Act or the Rules and
Regulations, we become aware of the occurrence of any event as a result of
which the Prospectus as then amended or supplemented would include any
untrue statement of a material fact, or omit to state a material fact
necessary to make the statements therein, in light of the circumstances
under which made, not misleading, or if we become aware that it has become
necessary at any time to amend or supplement the Prospectus to comply with
the 1940 Act, the 1933 Act or the Rules and Regulations, we will promptly
notify you and promptly request the Fund to prepare and to file with the
Commission an amendment to the Registration Statement or supplement to the
Prospectus which will correct such statement or omission or an amendment or
supplement which will
4 5089J
effect such compliance, and deliver to you copies of any such amendment or
supplement.
(b) We will cooperate with you in taking such action as may be
necessary to qualify the Shares for offering and sale under the securities
or Blue Sky laws of any state or jurisdiction as you may request and will
continue such qualification in effect so long as is required by applicable
law in connection with the distribution of Shares.
6. We reserve the right in our discretion, without notice, to suspend
sales or withdraw the offering of Shares entirely, as to any person or
generally. We reserve the right to amend this agreement at any time and
you agree that the sale of Participating Contracts and Policies, after
notice of any such amendment has been sent to you, shall constitute your
agreement to any such amendment.
7. If we elect to provide to you for the purpose of your offering
Participating Contracts and Policies copies of any prospectus and statement
of additional information relating to the Shares and printed information
supplemental thereto, we shall furnish you with such copies as you
reasonably request upon the payment of reasonable charges therefor by you
or one or more Participating Insurance Companies. If we elect not to
provide such copies of such documents, you or one or more Participating
Insurance Companies shall bear the entire cost of printing copies for your
use. You shall not use such copies of such documents printed by you or one
or more Participating Insurance Companies until you shall have furnished us
with a copy thereof and we either have given you written approval for use
or twenty days shall have elapsed following our receipt thereof and we have
not objected thereto in writing.
8.
(a) You will indemnify and hold harmless SFD and each of its
directors and officers and each person, if any, who controls SFD within the
meaning of Section 15 of the 1933 Act, against any loss, liability,
damages, claim or expense (including the reasonable cost of investigating
or defending any alleged loss, liability, damages, claim or expense and
reasonable counsel fees incurred in connection therewith), arising by
reason of any person's acquiring any Shares, which may be based upon the
1933 Act or any other statute or
5 5089J
common law, and which (i) may be based upon any wrongful act by you, any of
your employees or representatives, any affiliate of or any person acting on
behalf of you, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a registration statement
or prospectus covering Shares or any amendment thereof or supplement
thereto or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements
therein not misleading if such a statement or omission was made in reliance
upon information furnished to us or the Fund by you, or (iii) may be based
on any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering insurance
products sold by you, or any amendments or supplement thereto, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or statements therein
not misleading, unless such statement or omission was made in reliance upon
information furnished to you or a Participating Insurance Company by or on
behalf of SFD or the Fund; provided, however, that in no case (i) is the
indemnity by you in favor of any person indemnified to be deemed to protect
SFD or any such person against any liability to which SFD or any such
person would otherwise be subject by reason of willful misfeasance, bad
faith or gross negligence in the performance of its or his duties or by
reason of its or his reckless disregard of its obligations and duties under
this Agreement, or (ii) are you to be liable under your indemnity agreement
contained in this paragraph with respect to any claim made against SFD or
any person indemnified unless SFD or such person, as the case may be, shall
have notified you in writing within a reasonable time after the summons or
other first legal process giving information of the nature of the claim
shall have been served upon SFD or upon such person (or after SFD or such
person shall have received notice of such service on any designated agent),
but failure to notify you of any such claim shall not relieve you from any
liability which you may have to SFD or any person against whom such action
is brought otherwise than on account of your indemnity agreement contained
in this paragraph. You shall be entitled to participate, at your own
expense, in the defense, or, if you so elect, to assume the defense of any
suit brought to enforce any such liability, but, if you elect to assume the
defense, such defense shall be conducted by counsel chosen by you and
satisfactory to
6 5089J
SFD, or to its officers or directors, or to any controlling person or
persons, defendant or defendants in the suit. In the event that you assume
the defense of any such suit and retain such counsel, SFD or such officers
or directors or controlling person or persons, defendant or defendants in
the suit, shall bear the fees and expenses of any additional counsel
retained by them, but, in case you do not elect to assume the defense of
any such suit, you shall reimburse SFD and such officers, directors or
controlling person or persons, defendant or defendants in such suit, for
the reasonable fees and expenses of any counsel retained by them. You
agree promptly to notify SFD of the commencement of any litigation or
proceedings against it in connection with the offer, issue and sale of any
shares.
(b) SFD will indemnify and hold harmless you and each of your
directors and officers and each person, if any, who controls you within the
meaning of Section 15 of the 1933 Act, against any loss, liability,
damages, claim or expense (including the reasonable cost of investigating
or defending any alleged loss, liability, damages, claim or expense and
reasonable counsel fees incurred in connection therewith), arising by
reason of any person's acquiring any Shares, which may be based upon the
1933 Act or any other statute or common law, and which (i) may be based
upon any wrongful act by SFD, any of its employees or representatives, or
(ii) may be based upon any untrue statement or alleged untrue statement of
a material fact contained in a registration statement or prospectus
covering Shares or any amendment thereof or supplement thereto or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading unless such statement or omission was made in reliance upon
information furnished to SFD or the Fund by you or (iii) may be based on
any untrue statement or alleged untrue statement of a material fact
contained in a registration statement or prospectus covering insurance
products sold by you, or any amendment or supplement thereto, or the
omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statement or statements therein
not misleading, if such statement or omission was made in reliance upon
information furnished to you by or on behalf of SFD or the Fund; provided,
however, that in no case (i) is the indemnity by SFD in favor of any person
indemnified to be deemed to protect you or any such person against any
7 5089J
liability to which you or any such person would otherwise be subject by
reason of willful misfeasance, bad faith or gross negligence in the
performance of your or his duties or by reason of your or his reckless
disregard of your or his obligations and duties under this Agreement, or
(ii) is SFD to be liable under its indemnity agreement contained in this
paragraph with respect to any claim made against you or any person
indemnified unless you or such person, as the case may be, shall have
notified SFD in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall
have been served upon you or upon such person(or after you or such person
shall have received notice of such service on any designated agent), but
failure to notify SFD of any such claim shall not relieve SFD from any
liability which SFD may have to you or any person against whom such action
is brought otherwise than on account of its indemnity agreement contained
in this paragraph. SFD shall be entitled to participate, at its own
expense, in the defense, or, if it so elects, to assume the defense of any
suit brought to enforce any such liability, but, if it elects to assume the
defense, such defense shall be conducted by counsel chosen by SFD and
satisfactory to you, or to your officers or directors, or to any
controlling person or persons, defendant or defendants in the suit. In the
event that SFD assumes the defense of any such suit and retains such
counsel, you or such officers or directors or controlling person or
persons, defendant or defendants in the suit, shall bear the fees and
expenses of any additional counsel retained by it, but, in case SFD does
not elect to assume the defense or any such suit, SFD shall reimburse you
and such officers, directors or controlling person or persons, defendant or
defendants in such suit, for the reasonable fees and expenses of any
counsel retained by it. SFD agrees promptly to notify you of the
commencement of any litigation or proceedings against it in connection with
the offer, issue and sale of any Shares.
9. The indemnities, representations, warranties, covenants and
agreements of each party to this Agreement as set forth in this Agreement
will remain in full force and effect regardless of any investigation made
by or on behalf of either of such parties or any of their respective
officers, directors, partners or any controlling person, and will survive
delivery of and payment for the Shares.
8 5089J
10. Any provision of this Agreement which may be determined by
competent authority to be prohibited or unenforceable in any jurisdiction
shall, as to such jurisdiction, be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any other jurisdiction. To the extent permitted by applicable law, each
party hereto waives any provision of law which renders any provision hereof
prohibited or unenforceable in any respect.
11. This Agreement constitutes the entire agreement among the parties
concerning the subject matter hereof, and supersedes any and all prior
understandings.
12. This Agreement shall automatically terminate in the event of its
assignment. This Agreement may be terminated at any time by either party
by written notice given to the other party, provided that the obligation of
each party to indemnify the other party pursuant to paragraph 8 hereof
shall apply with respect to any Shares sold before or after such
termination.
13. Any notice hereunder shall be duly given if mailed or telegraphed
to the other party hereto at the address specified below. This Agreement
shall be governed by and construed in accordance with the laws of The
Commonwealth of Massachusetts.
14. This Agreement may be executed in any number of counterparts
which, taken together shall constitute one and the same instrument. This
Agreement shall become effective upon receipt by us of your acceptance
hereof.
15. This Agreement may not be modified or amended except by a written
instrument duly executed by the parties hereto.
XXXXXXX FUND DISTRIBUTORS, INC.
BY_____________________________
/S/ Xxxxx X. Xxx
Authorized Officer
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
9 5089J
The undersigned hereby accepts the
offer set forth in the above
letter.
CNL, Inc.
dated: June 4, 1986 By _______________________________
/S/ G. Xxxxxx Xxxxxxxx
Authorized Representative
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
10 5089J
XXXXXXX FUND DISTRIBUTORS, INC.
UNDERWRITER FOR THE XXXXXXX FUNDS
000 Xxxxxxx Xxxxxx
XXXXXX, XXXXXXXXXXXXX 00000
(000)000-0000
June 12, 1986
CNL, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Gentlemen:
Reference is made to the Participating Contract and Policy Agreement
between Xxxxxxx Fund Distributors, Inc. ("SFD") and CNL, Inc. ("Dealer")
dated June 4, 1986 (the "Agreement").
As an additional inducement for Dealer entering into the Agreement,
SFD hereby agrees with Dealer, and Dealer hereby agrees with SFD, that SFD
and Dealer each has a duty to the other party to cooperate in any
investigation relating to the subject matter of the Agreement conducted by
any regulatory or other governmental body having jurisdiction.
SFD hereby further agrees to be responsible for ensuring its
compliance with all applicable laws and regulations of any regulatory body
having jurisdiction over SFD with respect to the distribution of shares of
beneficial interest of Xxxxxxx Variable Life Investment Fund.
If the foregoing represents your understanding, please sign the extra
copy of this letter provided and return it to the undersigned.
XXXXXXX FUND DISTRIBUTORS, INC.
By ____________________________
/S/ Xxxxx X. Xxx
The foregoing represents our understanding.
CNL, INC.
BY ___________________________
/S/ G. Xxxxxx Xxxxxxxx
XXXXXXX VARIABLE LIFE INVESTMENT FUND
000 Xxxxxxx Xxxxxx
XXXXXX, XXXXXXXXXXXXX 00000
(000)000-0000
June 12, 1986
Charter National Life Insurance Company
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Gentlemen:
Reference is made to the Participation Agreement between Xxxxxxx
Variable Life Investment Fund (the "Fund") and Charter National Life
Insurance Company (the "Company") dated June 4, 1986 (the "Agreement").
As an additional inducement to enter into the Agreement, the Fund
hereby agrees with the Company, and the Company hereby agrees with the
Fund, that the Fund and the Company each has a duty to the other party to
cooperate in any investigation relating to the subject matter of the
Agreement conducted by any regulatory or other governmental body having
jurisdiction.
The Fund hereby further agrees with the Company that
(i) the Fund will use its best efforts to continue to qualify as a
"regulated investment company" under Subchapter M of the Internal Revenue
Code of 1954, as amended, and
(ii) that termination of the Participating Contract and Policy
Agreement dated June 4, 1986 between Xxxxxxx Fund Distributors, Inc. and
CNL, Inc. will not affect the effectiveness of the Agreement.
If the foregoing represents your understanding, kindly execute the
additional copy of this letter provided and return it to the undersigned.
XXXXXXX VARIABLE LIFE INVESTMENT
FUND
By _____________________________
/S/Xxxxx X. Xxxxx
The foregoing represents our understanding.
CHARTER NATIONAL LIFE INSURANCE COMPANY
By ____________________________________
/S/ G. Xxxxxx Xxxxxxxx
Xxxxxxx Investor Services, Inc.
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
February 20, 1996
CNL, Inc.
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Ladies and Gentlemen:
Reference is made to the Participating Contract and Policy Agreement (the
"Agreement") between Xxxxxxx Investor Services, Inc. ("SIS"), the principal
underwriter of Shares of Xxxxxxx Variable Life Investment Fund (the
"Fund"), and you with respect to the offer and sale of Participating
Contracts and Policies for which the Fund serves as a funding vehicle.
In order to reflect the new multiple class structure and addition of a Rule
12b-1 Plan with respect to Class B Shares of all Portfolios (with the
exception of the Money Market Portfolio) of the Fund, the following
sections of the Agreement are hereby amended or supplemented as follows:
(1) Section 4 of the Agreement is amended to include the following
subsection (e):
With respect to payments to be made to SIS pursuant to a Rule 12b-1 Plan
for the Fund, you will not seek reimbursement for administration and
recordkeeping services under the Fund's Rule 12b-1 Plan that have been or
will be paid for by any fees or charges imposed on owners of participating
Contracts and Policies by a Participating Insurance Company for such
services. This limitation does not, however, apply to profits that you
earn from fees and charges under Participating Contracts and Policies for
your nondistribution-related costs and expenses, such as mortality and
expense risk charges under Participating Contracts and Policies, which
profits may be available for your use to pay distribution and other
expenses incurred by you. Further, this provision does not restrict you
from receiving sales charges on purchases and redemptions, consistent with
applicable law, made under or redemption proceeds from a Participating
Contract or Policy at the same time that you are seeking reimbursement for
expenses under the Fund's Rule 12b-1 Plan.
(2) Section 5 of the Agreement is amended to include the following
subsection (c):
We shall reimburse you, subject to the minimum amounts set forth in the
attached schedule, for those distribution and shareholder servicing-related
expenses that are permitted to be paid for by the Fund under the Fund's
Rule 12b-1 Plan and for which (i) you submit documentation, as may be
requested by us or by the Fund's Board of Trustees, and (ii) we receive
payment for such expenses from the Fund under the Fund's Rule 12b-1 Plan.
We shall remit to you as promptly as reasonably practicable all payments
received by us from the Fund for remittance to you pursuant to the Fund's
Rule 12b-1 Plan.
(3) Section 12 of the Agreement is amended to include the following
sentence at the end of that section:
To the extent we receive payments under any provision of this Agreement
pursuant to a Rule 12b-1 Plan for the Fund, both you and we understand and
agree that this Agreement will be subject to the applicable approval,
reporting and termination requirements set forth in Rule 12b-1.
This letter constitutes notice of the above amendments. Your first sale of
contracts and/or policies after receipt of this notice and after the
expiration of any applicable minimum notice requirement set forth in the
Agreement constitutes your acceptance of such amendments to the Agreement.
Capitalized terms used in this letter without definition that are defined
in the Agreement shall have the same meaning assigned to them in the
Agreement.
XXXXXXX INVESTOR SERVICES, INC.
_______________________________
/S/ Xxxxx X. Xxx
President
