EXHIBIT (i)(13)
PIMCO VARIABLE INSURANCE TRUST
SERVICES AGREEMENT
This Agreement is made as of April 12, 2004 between PIMCO Variable
Insurance Trust (the "Trust") and New York Life Insurance and Annuity
Corporation ("Authorized Firm"), a life insurance company organized under the
laws of the State of Delaware.
RECITALS
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Trust issues shares of beneficial interest ("shares") in
separate series ("Portfolios"), with each Portfolio representing interests in a
separate portfolio of securities and other assets;
WHEREAS, certain beneficial owners of the Trust's shares ("investors") may
require administrative, recordkeeping, and other services, and the provision of
such services to investors requiring these services may benefit such investors
and facilitate their ability to invest in the Portfolios;
WHEREAS, the Trust has adopted a Services Plan pursuant to which the
Trust, on behalf of each Portfolio, may enter into agreements with registered
investment advisers, registered broker-dealers, banks, trust companies and other
persons or that agree to provide administrative, recordkeeping, and investor
services to their clients, members or customers who purchase shares of a
Portfolio, directly or indirectly; and
WHEREAS, the Trust desires that Authorized Firm provide, or arrange for
the provision of, certain administrative, recordkeeping, and/or investor
services with respect to shares of the Portfolios in accordance with the terms
and conditions of this Agreement set forth below.
W I T N E S S E T H:
The Trust and Authorized Firm agree as follows:
1. Appointment. The Trust hereby authorizes Authorized Firm to provide
certain administrative, recordkeeping and investor services to investors in the
Portfolios that are the clients, member, or customers of Authorized Firm. The
appointment of Authorized Firm hereunder is non-exclusive, and Authorized Firm
recognizes and agrees that, from time to time, the Trust (or its agent) may
enter into other agreements with financial intermediaries with respect to the
provision of administrative, recordkeeping and/or investors services.
2. Services to be Performed. For the duration of this Agreement,
Authorized Firm agrees to use its best efforts, subject to applicable legal and
contractual restrictions and in compliance with the procedures described in the
prospectus(es) and statement(s) of additional
information of the Portfolios as from time to time in effect (collectively, the
"Prospectus"), to provide in respect of investors investing in shares of the
Portfolios: teleservicing support in connection with Portfolios; delivery of
current Trust prospectuses, reports, notices, proxies and proxy statements and
other informational materials; facilitation of the tabulation of investors'
votes in the event of a Trust shareholder vote; receiving, tabulating and
transmitting proxies executed by or on behalf of investors; maintenance of
investor records reflecting shares purchased and redeemed and share balances,
and the conveyance of that information to the Trust or Pacific Investment
Management Company (the administrator of the Portfolios) as may be reasonably
requested; provision of support services, including providing information about
the Trust and its Portfolios and answering questions concerning the Trust and
its Portfolios, including questions respecting investors' interests in one or
more Portfolios; provision and administration of insurance features for the
benefit of investors in connection with the Portfolios, which may include fund
transfers, dollar cost averaging, asset allocation, portfolio rebalancing,
earnings sweep, and pre-authorized deposits and withdrawals; receiving,
aggregating and forwarding purchase and redemption orders; acting as the nominee
for investors; maintaining account records and providing investors with account
statements; processing dividend payments; issuing investor reports and
transaction confirmations; providing subaccounting services; general account
administration activities; and providing such similar services as the Trust may
reasonably request to the extent the Authorized Firm is permitted to do so under
applicable statutes, rules or regulation.
3. Orders and Settlement. Orders submitted by Authorized Firm on behalf of
investors shall be accepted or rejected by the Trust (or its agent) in the
manner disclosed in the Prospectus, or as otherwise agreed to by the parties.
4. Compliance with Laws. In performing its duties under this Agreement,
Authorized Firm agrees to abide by all applicable laws, including, without
limitation, federal and state securities laws and regulations, state insurance
laws and regulations, and the Employee Retirement Income Security Act of 1974.
5. Sales Materials. No person is authorized to make any representations
concerning shares of the Portfolios except those contained in the then current
Prospectus and printed information issued by the Trust as explanatory materials
and/or information supplemental to each Prospectus. The Trust shall supply or
cause to be supplied Prospectuses, reasonable quantities of supplemental sales
literature, explanatory materials and additional information as issued.
Authorized Firm agrees not to use other advertising or sales material relating
to the Portfolios unless approved in writing by the Trust in advance of such
use. Authorized Firm agrees to indemnify the Portfolios and the Trust for any
loss, injury, damage, expense or liability arising from or based upon any
alleged or untrue statement or representations made by Authorized Firm other
than statements contained in the Prospectus or sales literature authorized by
the Trust.
6. Compensation. In consideration of Authorized Firm's provision of the
services as described in this Agreement, the Trust agrees, subject to the
limitations of applicable law and regulations, including rules of the National
Association of Securities Dealers, Inc., to pay Authorized Firm fees ("Service
Fees") at an annual rate of up to ____% of the average of the aggregate net
asset value of outstanding shares serviced by Authorized Firm, measured on each
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business day during each month. Authorized Firm may, in turn, pay any or all of
these fees to service providers with whom it has entered into service
agreements, with no recourse to or liability on the part of the Trust or any
Portfolio. The applicable portion of the Service Fees will be paid by the Trust
within 20 days following the end of each calendar month. The parties acknowledge
and agree that the Service Fees will be paid by the Trust on behalf of each
Portfolio and shall be paid for each Portfolio only so long as this Agreement is
in effect.
The fee rate with respect to any Portfolio may be prospectively increased
or decreased by the Trust, in its sole discretion, at any time upon notice to
Authorized Firm.
In addition, Authorized Firm will furnish to the Trust or its designees
such information as the Trust or its designees may reasonably request
(including, without limitation, periodic certifications confirming the rendering
of services with respect to shares of the Portfolios as described herein), and
will otherwise cooperate with the Trust and its designees (including, without
limitation, any auditors designated by the Trust), in the preparation of reports
to the Trust's Board of Trustees concerning this Agreement and the monies paid
or payable by the Trust pursuant hereto, as well as any other reports or filings
that may be required by law.
7. Term and Termination.
(a) This Agreement is entered into by the Trust in accordance with
the terms of the Services Plan. Accordingly, unless sooner terminated, this
Agreement will continue in effect until one year from the date hereof and
thereafter for successive annual periods, provided that such continuance is
specifically approved at least annually by votes of a majority of both (i) the
Board of Trustees of the Trust and (ii) those Trustees of the Trust who are not
"interested persons" (as defined in the Investment Company Act of 1940) and have
no direct or indirect financial interest in the operation of the Distribution
Plan or any agreements related to it ("Plan Trustees"), cast in person at a
meeting called for the purpose of voting on the Services Plan and such related
agreements.
(b) This Agreement may be terminated, with respect to a Portfolio,
at any time without the payment of any penalty, by vote of a majority of the
Plan Trustees or by vote of a majority of a Portfolio's shares, on 30 days'
written notice. Notice of termination (or non-renewal) of the Services Plan by
the Trustees shall constitute a notice of termination of this Agreement.
(c) This Agreement shall terminate automatically in the event of its
assignment, as defined in the 1940 Act.
8. Governing Law. This Agreement shall be construed and the provisions
thereof interpreted under and in accordance with the laws of the State of New
York applicable to agreements fully executed and to be performed therein,
without regard to its conflicts of law rules.
9. Limitation on Liability. The obligations of the Trust under this
Agreement shall only be binding upon the assets and property of the Trust, and
shall not be binding upon any Trustee, officer or shareholder of the Trust
individually.
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10. Exculpation: Indemnification
(a) The Trust shall not be liable to Authorized Firm and Authorized
Firm shall not be liable to the Trust except for acts or failures to act which
constitute lack of good faith or gross negligence and for obligations expressly
assumed by either party hereunder. Nothing contained in this Agreement is
intended to operate as a waiver by the Trust or by Authorized Firm of compliance
with any applicable federal or state law, rule, or regulation and the rules and
regulations promulgated by the National Association of Securities Dealers, Inc.
(b) Authorized Firm will indemnify the Trust and hold it harmless
from any claims or assertions relating to the lawfulness of Authorized Firm's
participation in this Agreement and the transactions contemplated hereby or
relating to any activities of any persons serving as officers or employees of
Authorized Firm and performed in connection with the discharge of its
responsibilities under this Agreement. If any such claims are asserted, the
Trust shall have the right to manage its own defense, including the selection
and engagement of legal counsel of its choosing, and all costs of such defense
shall be borne by Authorized Firm.
(c) The Trust will indemnify the Authorized Firm and hold it
harmless from any claims or assertions relating to the lawfulness of Trust's
participation in this Agreement and the transactions contemplated hereby or
relating to any activities of any persons serving as officers or employees of
Trust and performed in connection with the discharge of its responsibilities
under this Agreement. If any such claims are asserted, the Authorized Firm shall
have the right to manage its own defense, including the selection and engagement
of legal counsel of its choosing, and all costs of such defense shall be borne
by Trust.
11. Notices. Each notice required by this Agreement shall be given in
writing and delivered personally or mailed by certified mail or courier service
or sent by facsimile to the party's address identified on the signature page to
this Agreement or such other address as each party may by written notice provide
to the other. A notice given pursuant to this section shall be deemed to have
been given immediately when delivered personally or by facsimile, three (3) days
after the date of certified mailing, and one (1) day after delivery by overnight
courier service.
12. Complete Agreement. This Agreement contains the full and complete
understanding of the parties and supersedes all prior representations, promises,
statements, arrangements, agreements, warranties and understandings between the
parties with respect to the subject matter hereof, whether oral or written,
express or implied.
13. Amendment. This Agreement may be modified or amended, and the terms of
this Agreement may be waived, only by a writing signed by each of the parties.
14. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement by their
duly authorized officers as of the date and year first written above.
PIMCO Variable Insurance Trust
By: ____________________________________ Address for Notices:
Name: __________________________________ 000 Xxxxxxx Xxxxxx Xxxxx
Xxxxx:__________________________________ Xxxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Authorized Firm
By: ____________________________________ Address for Notices:
Name: 00 Xxxxxxx Xxxxxx
Title: Xxx Xxxx, XX 00000
Fax: (000) 000-0000
For internal use:PIMCO Dealer No.___
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