Contract
EX-23.h.5.a
AMENDED
AND RESTATED ADMINISTRATIVE SERVICES AGREEMENT
This
Amended and Restated Administrative Services Agreement (the “Agreement”), amends
and restates the previous Administrative Services Agreement, made as of August
22, 2008 (the “Prior Agreement”) between Genworth Variable Insurance Trust (the
“Trust) and Genworth Life Insurance Company of New York(the “Insurance
Company”), and relates to the Service Class Shares of the series of the Trust
listed on Exhibit A hereto, which are referred to as the “Funds”), effective as
of _____________, 2009.
WHEREAS, the Insurance Company
issues variable life insurance policies and/or variable annuity contracts (each,
a “Contract”); and
WHEREAS, the Insurance Company
has entered into a fund participation agreement (the “Participation Agreement”)
with the Trust, on behalf of each Fund, pursuant to which the Trust has agreed
to make Service Class shares of the Funds available for purchase by the
Insurance Company’s separate accounts or divisions thereof (each, a “Separate
Account”) in connection with the allocation by Contract owners of purchase
payments to corresponding investment options offered under the Contracts;
and
WHEREAS, the parties to this
Agreement expect that the Service Class shares of the Funds can derive
substantial savings in administrative expenses by virtue of having one or more
Separate Accounts each as a single shareholder of record of the Service Class
shares of each Fund, rather than having numerous public shareholders of such
shares and having the Insurance Company perform the administrative services
listed on Exhibit B hereto
for the Service Class shares in connection with the Contracts issued by the
Insurance Company; and
WHEREAS, the Insurance Company
has no contractual or other legal obligation to perform such administrative
services, other than pursuant to this Agreement; and
WHEREAS,
the parties now desire to amend and restate the Agreement to document: (1) the
addition of new series of the Trust; (2) to make this Agreement applicable to
Service Class shares of the Funds; and (3) to clarify that the Agreement relates
to non-distribution-related services.
NOW, THEREFORE, the parties
agree as follows:
Section 1. Administrative
Services; Payments Therefor.
(a) Insurance
Company shall provide the administrative services set out in Exhibit B
hereto, as may be amended from time to time, relating to the Service Class
shares of the Funds. For such services, each Fund agrees to pay to
the Insurance Company, or its designee, an annual fee (the “Fee”) equal to 0.25%
of the average daily net assets of the Fund attributable to the
Contracts. The parties agree that the Fee will be paid on a monthly
basis.
(b) The
Fund shall calculate the Fee at the end of each applicable calculation period
(as described above) and will make such payment to the Insurance Company, or its
designee,
without
demand or notice from the Insurance Company, within thirty (30) days thereafter,
in a manner mutually agreed upon by the parties to this Agreement from time to
time.
Section 2. Term and
Termination. This Agreement may be terminated with respect to
any Fund, without penalty on sixty (60) days written notice by: (1)
the Insurance Company; or (2) by the Board of Trustees of the
Trust. Unless so terminated, this Agreement shall continue in effect
for so long as the Insurance Company provides the services contemplated
hereunder with respect to Contracts under which values or monies are allocated
to a Fund.
Section 3. Amendment and
Assignment. This Agreement may be amended or assigned only
upon mutual agreement of the parties in writing.
Section 4. Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if delivered:
Xxxxxx
Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxx
Xxxx, XX 00000-0000
Attention: President
Genworth
Life and Annuity Insurance Company
0000 Xxxx
Xxxxx Xxxxxx, Xxxxxxxx 0
Xxxxxxxx,
XX 00000
Attention:
General Counsel, Securities
Section 5. Miscellaneous.
(a) Successors
and Assigns. To the extent this Agreement is transferred to another
party, this Agreement shall be binding upon the parties 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) Intended
Beneficiaries. Nothing in this Agreement shall be construed to give
any person or entity other than the parties any legal or equitable claim, right
or remedy. Rather, this Agreement is intended to be for the sole and
exclusive benefit of the parties.
(c) Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall together constitute one and the same
instrument.
(d) Applicable
Law. This Agreement shall be interpreted, construed, and enforced in
accordance with the laws of the Commonwealth of Virginia without reference to
the conflict of law principles thereof.
(e) Severability. If
any portion of this Agreement shall 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 if
the invalid
or
unenforceable portion had not been inserted.
IN
WITNESS WHEREOF, the parties have executed this Agreement effective as of the
date first above written.
By: _____________________________________
Name: Xxxxxx
X. Xxxxxx
Title: President
GENWORTH
LIFE INSURANCE COMPANY OF NEW YORK
By: _____________________________________
Name: _____________________________________
Title: _____________________________________
Exhibit
A
to
the
Name of
Fund Share
Class Effective
Date
Genworth
Calamos Growth
Fund Service
Class December__,
0000
Xxxxxxxx
Xxxxxxxx Mid Cap Value
Fund Service
Class December__,
0000
Xxxxxxxx
Xxxxx XX Venture
Fund Service
Class December__,
2009
Genworth
Xxxxx Xxxxx Large Cap Value
Fund Service
Class December__,
2009
Genworth
Xxxx Xxxxx Aggressive Growth
Fund Service
Class December__,
2009
Genworth
PIMCO StockPLUS
Fund Service
Class December__,
2009
Genworth
Xxxxxx International Capital Opportunities
Fund Service
Class
December__, 2009
Genworth
Xxxxxxxxx International Value
Fund Service
Class
December__, 2009
Genworth
Xxxxxxx Sachs Enhanced Core Bond Index
Fund
Service
Class December__,
2009
Genworth
40/60 Index Allocation
Fund
Service
Class December__,
2009
Genworth
60/40 Index Allocation
Fund Service
Class
December__, 2009
Genworth
Moderate Allocation
Fund Service
Class
December__, 2009
Genworth
Growth Allocation
Fund
Service
Class December__,
2009
Genworth
Enhanced Small Cap Index
Fund Service
Class December__,
2009
Genworth
Enhanced International Index
Fund
Service
Class December__,
2009
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Exhibit
B
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ADMINISTRATIVE
SERVICES FOR THE TRUST
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MAINTENANCE
OF BOOKS AND RECORDS:
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Maintaining
a record of share purchases to assist transfer agent in recording issuance
of shares.
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Performing
miscellaneous account services to assist transfer agent in recording
transfers of shares (via net purchase
orders).
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Reconciliation
and balancing of the separate account at the Fund level in the general
ledger and reconciliation of cash accounts at general
account.
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PURCHASE
ORDERS:
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Determination
of net amount of cash flow into
Fund.
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Reconciliation
and deposit of receipts at Fund and confirmation
thereof.
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REDEMPTION
ORDERS:
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Determination
of net amount required for redemptions by
Fund.
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Notification
to Fund of cash required to meet payments for
redemption.
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REPORTS:
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Periodic
information reporting to the Trust as mutually agreed to in writing by the
Insurance Company and the Trust.
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FUND-RELATED
CONTRACT OWNER SERVICES:
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Telephone
support for Contract owners with respect to inquiries about the Service
Class shares of the Funds (not including information about performance or
related to sales) available in the
Contracts.
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Facilitation
of the tabulation of Contract owners’ votes in the event of a rust
shareholder vote.
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Delivery
of current prospectuses, reports, proxies and other informational
materials to Contract owners.
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OTHER
ADMINISTRATIVE SUPPORT:
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Sub-Accounting
services as mutually agreed to in writing by the Insurance Company and the
Trust.
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Providing
other administrative support to the Trust as mutually agreed to in writing
by the Insurance Company and the
Trust.
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Relieving
the Trust of other usual or incidental administrative services provided to
individual Contract owners as mutually agreed to in writing by the
Insurance Company and the Trust.
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Preparation
of reports to certain third-party reporting services as mutually agreed to
in writing by the Insurance Company and the
Trust.
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