EXHIBIT (h)(42)(a)
MARKETING AND ADMINISTRATIVE
SERVICES SUPPORT AGREEMENT
THIS MARKETING AND ADMINISTRATIVE SERVICES SUPPORT AGREEMENT is made as of
the __ day of ________, 2006, (the "Agreement") by and between Xxxxxx Retail
Management Limited Partnership, a Massachusetts limited partnership (the
"Distributor") and American General Life Insurance Company ("American
General"). American General and the Distributor are referred to collectively
herein as the "Parties."
WHEREAS, American General is the issuer of variable annuity contracts and
variable life insurance policies (the "Contracts");
WHEREAS, American General, Xxxxxx Variable Trust, a Massachusetts business
trust (the "Trust) and Distributor have entered into a Participation Agreement
dated as of June 1, 1998, as amended on February 1, 2000 and November 1, 2000,
and a second Participation Agreement dated June 1, 1999, as amended on July 1,
2002 ( each a "Participation Agreement"). Pursuant to the Participation
Agreement, the Trust agreed to make shares of certain of its portfolios, listed
in on Schedule B to the Participation Agreement, as such Schedule may be
amended from time to time (the "Portfolios"), available for purchase by one or
more of American General's separate accounts or divisions thereof (each, a
"Separate Account") for Contract owners to allocate Contract value;
WHEREAS, American General desires to provide certain marketing,
administrative and recordkeeping services (collectively, the "Services") to
Contract owners in connection with their allocation of Contract value and
purchase payments to the Portfolios; and
WHEREAS, Distributor desires to retain American General to provide such
Services and to compensate American General for providing such services.
NOW THEREFORE, the Parties agree as follows:
Section I - Representations and Warranties
(A) American General represents and warrants that it is an insurance company
licensed under the laws of the State of Texas.
(B) American General represents and warrants that it will not accept
compensation for promoting or selling shares of the Portfolios in the form of
commissions on brokerage transactions directed to it by a Portfolio.
(C) American General represents and warrants that it will not accept
compensation for promoting or selling shares of the Portfolios in the form of
commissions directed to it by any Portfolio from any broker or dealer which has
executed portfolio securities transactions for that Portfolio.
(D) American General represents and warrants that it has not entered into
any agreement with any Portfolio or Distributor or any of Distributor's
affiliates pursuant to which that Portfolio or Distributor or any of
Distributor's affiliates is expected to direct brokerage commissions to it to
compensate it for promoting or selling any Portfolio's shares.
Section II - Services; Payments
(A) American General shall perform all Services with respect to Contract
owner values and American General's assets from which investments in shares of
the Portfolios are made, including, without limitation, the following services:
(1) Maintaining separate records for each Contract owner, which shall
reflect the Portfolio shares purchased and redeemed and Portfolio share
balances attributable to such Contract owners. American General will maintain
an omnibus account with each Portfolio on behalf of Contract owners, and such
accounts shall be in the name of American General (or its nominee) as the
record owner of Portfolio shares attributable to such Contract owners.
(2) Disbursing to or crediting to the benefit of Contract owners all
proceeds of redemptions of shares of the Portfolios in relation to Contract
owner requests to redeem their Contract value and processing all dividends and
other distributions reinvested in shares of the Portfolios.
(3) Preparing and transmitting to Contract owners, as required by law,
periodic statements showing allocations to sub-accounts investing in the
Portfolios, purchases and redemptions of Portfolio shares and dividends and
other distributions paid in relation to Contract owner transaction requests,
and such other information as may be required, from time to time, by Contract
owners.
(4) Maintaining and preserving all records required by law to be
maintained and preserved in connection with providing the foregoing services
for Contract owners with respect to the Portfolios.
(5) Generating written confirmations to Contract owners, for
transactions respecting the Portfolios, to the extent required by law.
(6) Administering the distribution to existing Contract owners of
Portfolio prospectuses, proxy materials, periodic reports to shareholders and
other materials that the Portfolios provide to their shareholders.
(7) Aggregating and transmitting purchase and redemption orders to the
Portfolios on behalf of, or with respect to, Contract owners.
(8) Providing marketing assistance with respect to the offer of the
Portfolios.
(9) Providing formalized business planning.
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(10) Support and marketing of the Portfolios to American General's sales
representatives through internal sources (such as Internet web sites and
mailings).
(11) Providing market share data to Distributor.
(12) Assisting and facilitating new product approval on a timely basis.
(13) Enabling Distributor to participate in and present at due diligence
meetings for financial advisers.
(14) Consistent and timely communication to Distributor regarding
internal policies.
(15) Allowing Distributor to educate American General's sales and
marketing representatives.
(16) Communicating Distributor policies and procedures to American
General's sales and marketing representatives.
(17) Promoting or providing preferred access to the Putnam portfolios in
the Trust within American General's contracts.
(B) In consideration of American General performing the Services,
Distributor agrees to pay American General, quarterly, a marketing and
administrative support services fee at the annual rate provided in Schedule A
of the average daily net assets of Portfolio shares held by American General
pursuant each Participation Agreement. American General agrees that it will not
seek reimbursement for expenses for performing the Services under the Trust's
Distribution Plan adopted pursuant to Rule 12b-1 under the 1940 Act (where
applicable). In addition, American General represents and agrees that no charge
imposed by it on Contract owners is specifically intended or designed to
compensate American General for the Services for which payment is made by
Distributor under this Marketing and Administrative Services Agreement. Fees
contemplated under this paragraph (B) shall be wired to American General
pursuant to the wiring instructions in Schedule B.
(C) The Trust shall calculate the marketing and administrative support
services fee at the end of each calendar quarter and will make such payment to
American General, without demand or notice by American General, within 30 days
thereafter, in a manner mutually agreeable by the Parties from time to time.
(D) American General will furnish to Distributor or its designees such
information as Distributor may reasonably request, and will otherwise cooperate
with Distributor in the preparation of reports concerning this Agreement, as
well as any other reports or filing that may be required by law.
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Section III - Nature of Payments for Services
The Parties to this Agreement recognize and agree that Distributor's payments
to American General are for marketing and administrative services only and do
not constitute payment in any manner for investment advisory services. The
amount of marketing and administrative expense payments made by Distributor to
American General pursuant to this Agreement are not intended to be\\,\\ and
shall not be deemed to be, indicative of Distributor's bona fide profits or of
the actual costs to American General of providing marketing and administrative
services to Distributor.
Section IV - Disclosure
Consistent with any current legal requirements, including without limitation,
the Securities Exchange Act of 1934, the rules thereunder and the applicable
rules of any self-regulatory organization, in effect at any time during the
term of this Agreement, or as requested by Contract owners, American General
agrees to provide written point of sale disclosure to its Contract owners
describing the Services provided by it pursuant to this Agreement, the payments
made by Distributor pursuant to this Agreement and the payment schedule(s)
agreed to by Distributor pursuant to this Agreement in consideration of such
Services.
Section V- Maintenance of Records
Each party shall maintain and preserve all records as required by law to be
maintained and preserved in connection with providing the services described
herein. Upon the reasonable request of Distributor, American General will
provide Distributor or its representative, copies of all such records.
Section VI - Term and Termination
(A) The Parties acknowledge and agree that American General has provided the
Services referenced in this Agreement since January 1, 2005 and that the
provisions of this Agreement shall be deemed to have been effective since such
date. This Agreement shall remain in full force and effect for a period of one
year from the date hereof and shall be automatically renewed thereafter for
successive one-year periods, unless otherwise terminated.
(B) This Agreement may be terminated with respect to any Portfolio by
Distributor or by American General without penalty, upon sixty (60) days' prior
written notice to the other party.
(C) This Agreement will automatically terminate on the date of termination
of the Participation Agreement.
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Section VII - Amendment; Entire Agreement
This Agreement constitutes the entire agreement between the Parties with
respect to the Services and no modification, amendment or waiver of any of the
provisions of this Agreement shall be effective unless made in writing
specifically referring to this Agreement and signed by the Parties hereto.
Section VIII - Notices
All notices and other communications to either American General or Distributor
will be duly given if mailed, telegraphed or telecopied to the address set
forth below, or at such other address as either party may provide in writing to
the other party.
American General Life Insurance Company
0000 Xxxxx Xxxxxxx, X00-00
Xxxxxxx, Xxxxx 00000
Attn: General Counsel
Putnam Variable Trust
x/x Xxxxxx LLC
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: General Counsel
Section IX - Miscellaneous
(A) Successors and Assigns. This Agreement shall be binding upon the Parties
and their transferees, successors and permitted assigns. The benefits of and
the right to enforce this Agreement shall accrue to the Parties and their
transferees, successors and assigns. No party may assign either this Agreement
or any of its rights, interests, or obligations hereunder without the prior
written approval of the other party.
(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 Massachusetts.
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(E) Severability. This Agreement shall be severable as it applies to each
Portfolio, and action on any matter shall be taken separately for each
Portfolio affected by the matter. 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, each of the Parties has caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative.
American General Life Insurance Company ATTEST:
By: By:
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Title: Title:
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Xxxxxx Retail Management Limited Partnership
By:
--------------------------------
Title:
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SCHEDULE A
Beginning on the date hereof and during the term of this Agreement and for
Services that were performed during the calendar year ended December 31, 2005,
Dealer shall be compensated in accordance with the Fee Schedule set forth below:
a. "Relevant Assets" shall mean the Portfolio shares (Class 1A and Class
1B) held by American General and listed on Schedule B to each
Participation Agreement.
b. The Fee shall be calculated and paid each quarter based on the Asset
Based Component as follows
Asset Based Component:
Annual rate of ____% (____basis points) of the value of the Relevant
Assets.
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SCHEDULE B
BANK NAME:
BANK ABA # :
ACCOUNT #:
NAME ON ACCOUNT:
DESCRIPTION:
Please e-mail backup calculations to:
Mailing Address:
Contact phone #:
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