EXHIBIT (H)(37)(A)
ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT is made this 1st day of July, 2003, by and among XXXXXXX
XXXXX VARIABLE SERIES FUNDS, INC., an open-end management investment company
organized as a Maryland corporation (the "Fund"), FAM DISTRIBUTORS, INC., a
broker-dealer registered as such under the Securities Exchange Act of 1934, as
amended (the "Underwriter"), and AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY
OF NEW YORK, a life insurance company organized under the laws of the state of
New York (the "Company").
WHEREAS, FAMD is the principal underwriter to the Xxxxxxx Xxxxx
Variable Series Funds, Inc. (the "Fund"); and
WHEREAS, the Insurer issues variable annuity contracts and variable
life insurance policies (the "Policies"); and
WHEREAS, the Insurer and the Fund have entered into a Fund
Participation Agreement ("Participation Agreement") dated June 9, 2003,
providing for the sale of shares of the Fund to certain segregated separate
accounts of the Insurer; and
WHEREAS, amounts invested in the Policies by policy holders are
deposited in separate accounts of the Insurer which will in turn purchase shares
of certain portfolios of the Fund, each of which is an investment option offered
by the Policies (the "Portfolios"); and
WHEREAS, the Fund expects to derive substantial savings in
administrative expenses by virtue of having separate accounts of the Insurer as
shareholders of record of Fund shares and having the Insurer perform certain
administrative services for the Fund (which are identified on Schedule A
hereto); and
WHEREAS, neither FAMD nor the Insurer has any contractual or other
legal obligation to perform such administrative services for the Fund; and
WHEREAS, the Insurer desires to be compensated for providing such administrative
services to the Fund; and
WHEREAS, FAMD desires that the Fund benefit from the lower
administrative expenses expected to result from the administrative services
performed by the Insurer; and
WHEREAS, FAMD accordingly would prefer to compensate the Insurer for
providing administrative services to the Fund from its own funds, derived from
its own resources, including its bona fide profits, rather than request that the
Fund bear the costs of such compensation:
NOW, THEREFORE, the parties agree as follows:
1. Administration Expense Payments.
(a) FAMD agrees to pay the Insurer an amount as identified and
described on Schedule B hereto of that portion of the gross
annual investment advisory fees paid by the Fund to FAMD or
its affiliate attributable to certain investments in
portfolios of the Fund by separate accounts of the Insurer.
(b) the Insurer shall calculate the payment contemplated by this
Section 1 at the end of each fiscal quarter and will invoice
such payment to FAMD, which shall remit payment reasonably
promptly thereafter.
2. Nature of Payments.
The parties to this Agreement recognize and agree that FAMD's
payments to the Insurer are for administrative services only and do not
constitute payment in any manner for investment advisory services or
for costs of distribution of Policies or of Fund shares and are not
otherwise related to investment advisory or distribution services or
expenses. The amount of administration expense payments made by FAMD to
the Insurer pursuant to Section 1(a) of this Agreement are not intended
to be, and shall not be deemed to be, indicative of FAMD's bona fide
profits from serving as principal underwriter to any Fund.
3. Term and Termination,
(a) Any Party may terminate this Agreement, without
penalty, on ninety day's advance written notice to
the other Party. Unless so terminated, this Agreement
shall continue in effect for so long as FAMD or its
successor(s) in interest, or any affiliate thereof,
continues to perform in a similar capacity for the
Fund, and for so long as Insurer or its successors(s)
in interest, or any affiliate thereof, provides the
services contemplated hereunder with respect to
Contracts under which values or monies are allocated
to a Portfolio.
(b) This Agreement shall automatically terminate upon (i)
the termination of the Participation Agreement
between the Insurer and the Fund, or (ii) the
dissolution or bankruptcy of any party hereto, or in
the event that any party hereto is placed in
receivership or rehabilitation, or in the event that
the management of its affairs is assumed by any
governmental, regulatory or judicial authority.
4. AMENDMENT.
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This Agreement may be amended only upon mutual agreement of
the parties hereto in writing.
5. NOTICES.
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All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed to have been duly
given if delivered
(a) to FAMD, at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx
Xxxxxx 00000, attention: _______________, Director,
Legal Advisory; and
(b) to the Insurer, at:
American International Life Assurance
Company of New York
c/o American General Life Companies
0000 Xxxxx Xxxxxxx, X00
Xxxxxxx, Xxxxx 00000
Attention: General Counsel
6. MISCELLANEOUS.
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(a) Successors and Assigns. This Agreement shall be
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binding upon the parties hereto and their
transferees, successors and assigns. The benefits of
and the right to enforce this Agreement shall accrue
to the parties and their transferees, successors and
assigns.
(b) Assignment. Neither this Agreement nor any of the
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rights, obligations or liabilities of either party
hereto shall be assigned without the written consent
of the other party.
(c) Intended Beneficiaries. Nothing in this Agreement
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shall be construed to give any person or entity other
than the parties hereto any legal or equitable claim,
right or remedy. Rather, this Agreement is intended
to be for the sole and exclusive benefit of the
parties hereto.
(d) Counterparts. This Agreement may be executed in
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counterparts, each of which shall be deemed an
original but all of which shall together constitute
one and the same instrument.
(e) Applicable Law. This Agreement shall be interpreted,
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construed, and enforced in accordance with the laws
of the State of New York, without reference to the
conflict of law thereof.
(f) Severability. If any portion of this Agreement shall
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be found to be invalid or unenforceable by a court or
tribunal or regulatory agency of competent
jurisdiction, the remainder shall not be affected
thereby, but shall have the same force and effect as
of the invalid or unenforceable portion had not been
inserted.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK
By: Attest:
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Name: Name:
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Title: Title:
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FAM DISTRIBUTORS, INC.
By:
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Name:
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Title:
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SCHEDULE A
ADMINISTRATIVE SERVICES FOR THE FUND
MAINTENANCE OF BOOKS AND RECORDS
. Maintaining an inventory of share purchases to assist transfer
agent in recording issuance of shares.
. Performing miscellaneous accounting services to assist
transfer agent in recording transfers of shares (via net
purchase orders).
. Reconciliation and balancing of the separate account at the
Fund level in the general ledger and reconciliation of cash
accounts at general account.
PURCHASE ORDERS
. Determination of net amount of cash flow into Fund.
. Reconciliation and deposit of receipts at Fund and
confirmation thereof.
REDEMPTION ORDERS
. Determination of net amount required for redemptions by Fund.
. Notification to Fund of cash required to meet payments.
. Cost of share redemptions.
REPORTS
. Periodic information reporting to the Fund.
FUND-RELATED CONTRACT OWNER SERVICES
. Telephonic support for contract owners with respect to
inquiries about the Fund (not including information about
performance or related to sales.)
OTHER ADMINISTRATIVE SUPPORT
. Sub-Accounting services.
. Providing other administrative support to the Fund as mutually
agreed between the Insurer and the Fund.
. Relieving the Fund of other usual or incidental administrative
services provided to individual policyholders.
. Preparation of reports to certain third-party reporting
services.
SCHEDULE B
PORTFOLIOS AND CLASSES OF
XXXXXXX XXXXX VARIABLE SERIES FUNDS, INC. APPLICABLE FEE RATE
OFFERED TO SEGREGATED ACCOUNTS OF AMERICAN INTERNATIONAL
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LIFE ASSURANCE COMPANY OF NEW YORK
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Xxxxxxx Xxxxx Basic Value V.I. Fund - Class A Shares ___%
Xxxxxxx Xxxxx Small Cap Value V.I. Fund - Class A Shares ___%
Xxxxxxx Xxxxx Fundamental Growth X.X.Xxxx - Class A Shares ___%
Xxxxxxx Xxxxx Government Bond V.I. Fund - Class A Shares ___%
