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EXECUTION COPY
ADMINISTRATIVE SERVICES AGREEMENT
Between
XXXX XXXXX LIFE INSURANCE COMPANY
and
SUNAMERICA LIFE INSURANCE COMPANY
Dated: March 31, 1997
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TABLE OF CONTENTS
Page
ARTICLE 1 APPOINTMENT OF THE COMPANY; SERVICES AND AUTHORITY............................................ 2
1.1 Engagement........................................................................... 2
1.2 General Description of the Services.................................................. 2
1.3 Performance by Affiliates............................................................ 3
1.4 Controlled Disbursement Account...................................................... 3
1.5 Monthly Accounting. ................................................................. 3
1.6 Maintenance of Books and Records..................................................... 3
1.7 Novation Report...................................................................... 5
1.8 Claims-Payment Instructions.......................................................... 5
1.9 Complaint-Handling Procedure......................................................... 5
1.10 Filings.............................................................................. 6
ARTICLE 2 COMPENSATION; PAYMENT......................................................................... 6
ARTICLE 3 TERM AND TERMINATION.......................................................................... 6
3.1 Term................................................................................. 6
3.2 Termination for Breach............................................................... 7
3.3 Termination for Receivership......................................................... 7
3.4 Other Termination Events............................................................. 7
ARTICLE 4 REPRESENTATIONS............................................................................... 7
ARTICLE 5 INDEPENDENT CONTRACTOR........................................................................ 8
ARTICLE 6 INTENTIONALLY DELETED......................................................................... 8
ARTICLE 7 FORCE MAJEURE................................................................................. 8
ARTICLE 8 HOLD HARMLESS................................................................................. 9
ARTICLE 9 MISCELLANEOUS................................................................................. 10
9.1 Notices.............................................................................. 10
9.2 Entire Agreement..................................................................... 12
9.3 Amendments........................................................................... 13
9.4 Waivers.............................................................................. 13
9.5 Governing Law........................................................................ 13
9.6 Arbitration.......................................................................... 14
9.7 Certain Definitions.................................................................. 15
9.8 Binding Effect; Assignment; Third Party Beneficiaries................................ 15
9.9 Severability......................................................................... 16
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TABLE OF CONTENTS
(cont'd)
Page
9.10 Headings............................................................................. 16
9.11 Counterparts......................................................................... 16
9.12 Further Assurances................................................................... 17
SCHEDULES:
Schedule 1.1 - Services
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ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE SERVICES AGREEMENT (the "Agreement") dated March 31,
1997 (the "Effective Date") between Xxxx Xxxxx Life Insurance Company, a
Minnesota corporation ("JALIC"), and SunAmerica Life Insurance Company, an
Arizona corporation (the "Company").
WHEREAS, pursuant to an Asset Purchase and Sale Agreement dated as of
November 29, 1996 (the "Asset Purchase Agreement") between the Company and
JALIC, JALIC is selling to the Company certain assets used in JALIC's business
of issuing, selling and administering annuity policies and related activities in
the United States other than the State of New York;
WHEREAS, pursuant to an Indemnity Reinsurance Agreement between the
Company and JALIC dated concurrently herewith (the "Indemnity Reinsurance
Agreement") JALIC has ceded on a 100% coinsurance basis all of JALIC's Insurance
Liabilities arising under the Annuity Contracts and Additional Policies (as
defined in the Indemnity Reinsurance Agreement; the Additional Policies together
with the Annuity Contracts are hereinafter referred to as "Policies") after the
Closing Date pending assumption of the Policies as contemplated in the
Assumption Reinsurance Agreement between the Company and JALIC dated
concurrently herewith; and
WHEREAS, JALIC desires that the Company provide to JALIC administrative
services, with respect to the Policies.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements contained herein, and other good, valuable and
sufficient consideration including the consideration provided hereunder, the
receipt of which is hereby acknowledged, JALIC and the
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Company (collectively, the "Parties" and, sometimes individually a "Party"),
intending to be legally bound, hereby agree as follows:
ARTICLE 1
APPOINTMENT OF THE COMPANY; SERVICES AND AUTHORITY
1.1 Engagement. For the term of the Agreement, JALIC hereby engages the
Company to perform and provide the technical and administrative service,
assistance and support functions described in Schedule 1.1 attached hereto (the
"Services"). The Company hereby accepts such appointment.
1.2 General Description of the Services. The purpose of this Agreement
is to set forth the terms upon which the Company shall provide to JALIC the
Services. The Company shall provide the Services in a manner consistent with the
then current prevailing standards of the life insurance industry. Services that
are consistent with (i) the Company's past practices and (ii) the Company's
current prevailing standards with regard to administering its own annuity
policies which are similar to the Policies shall be conclusively deemed
consistent with industry standards; provided, however, that the Company shall
have the discretion to make such changes to such practices that the Company
reasonably deems appropriate, so long as such Services continue to be provided
in a manner consistent with (i) the current prevailing standards of the life
insurance industry and (ii) the current standards of the Company with regard to
administering its own annuity policies similar to the Policies.
1.3 Performance by Affiliates. The Parties recognize that the Services
may include services which, by their nature, are more effectively to be provided
by Affiliates of the Company or to Affiliates of JALIC. Subject to the next
sentence of this Section 1.3, the Company shall, to the extent required in order
for its Affiliates to provide such Services, cause
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its Affiliates to provide such Services hereunder as if such Affiliates were
themselves parties hereto. In connection with the provision of such Services,
the Company's Affiliates shall be entitled, as if such Affiliates were
themselves parties hereto, to the benefits of (i) the limitations on liability
set forth herein and (ii) the limitations on the obligation to provide Services
set forth herein.
1.4 Accounts. (a) The Company shall establish and fund on a timely
basis a bank account (which need not be a segregated account) for purposes of
making any and all payments to holders of Policies in the performance of the
Services by the Company hereunder, including, but not limited to, all items set
forth in Section 3.3 of the Indemnity Reinsurance Agreement.
(b) JALIC shall cooperate with the Company in any reasonable
arrangement which will allow the Company to deposit checks made payable to JALIC
in a Company bank account.
1.5 Monthly Accounting. For the term of this Agreement, the Company
shall provide JALIC with a monthly accounting (the "Monthly Accounting")
relating to the Policies no later than ten (10) Business Days following the end
of each calendar month. The Monthly Accounting shall contain such information
relating to such cash flow transactions as are set forth on Schedule 1.5 hereto,
including a statement of income received in connection with the Policies. Such
Schedule 1.5 shall also include a statement of monthly reserves for GAAP and
SAP. The first Monthly Accounting shall be provided to JALIC no later than
forty-five (45) Business Days after the date hereof and the final Monthly
Accounting shall be provided to JALIC no later than ten (10) Business Days after
the termination of this Agreement.
1.6 Maintenance of Books and Records. (a) For the duration of this
Agreement, the Company shall maintain books and records of all transactions
pertaining to the Policies,
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including, but not limited to, any disbursement requests submitted in respect of
the Policies and any documents relating thereto, any material communications
relating to any Policy, any material communication with any regulatory
authority, complaint logs and all data used by the Company in the performance of
services required under this Agreement. These books and records shall be
maintained, in all material respects, in accordance with any and all applicable
Laws. All such books and records pertaining to a Policy shall be the property of
the Company. The Company shall (i) allow JALIC, upon reasonable prior notice and
during regular business hours, through its employees and other Representatives,
at JALIC's expense to examine and make copies of such books and records for any
reasonable business purpose, including, without limitation, the preparation or
examination of Tax Returns, regulatory filings and financial statements and the
conduct of any Action or the conduct of any regulatory, contract holder,
participant or other dispute resolution, whether pending or threatened, at the
Company's offices or other facilities or properties and (ii) maintain such books
and records for JALIC's examination and copying. Access to such books and
records shall be at JALIC's expense and may not unreasonably interfere with the
Company's or any successor company's business operations and JALIC shall
reimburse the Company for all reasonable out-of-pocket expenses incurred by the
Company in copying such records. Upon termination of this Agreement, all books
and records pertaining to Policies for which there has been no Novation (as
defined in the Assumption Reinsurance Agreement) shall be delivered promptly to
JALIC or such other Person as JALIC shall designate in writing.
(b) The Company shall back up and maintain its computer files
used in the performance of the Services hereunder in the same manner that the
Company presently backs up and maintains its existing computer files relating to
annuity policies.
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(c) The Company shall maintain facilities and procedures for
safekeeping all records used in the performance of services under this Agreement
of the same kind used to safekeep the Company's own records.
(d) Each Party and its representatives may audit and review
the other's records relating to the Services provided hereunder during
reasonable business hours and upon reasonable advance notice; provided, however,
that such audit or review may be postponed during any such period if it will be
unreasonably disruptive to the Party being audited or reviewed.
1.7 Novation Report. Within 10 business days after the end of each
month during the term of this Agreement, beginning with the month in which the
first Novation of a Policy occurs, the Company shall provide to JALIC a report
indicating all Policies that have been the subject of a Novation by the Company
during the prior month.
1.8 Claims-Payment Instructions. The Company at its own cost will
perform during the term of this Agreement claims administration and processing
of the Policies, including, without limitation, review, investigation,
adjustment, settlement, defense and payment of claims, special investigation and
anti-fraud compliance, and preparation of any report required by regulatory
authorities concerning the foregoing services and will, in connection with such
claims administration, retain, at its sole discretion and cost, any outside
investigation firms, adjusters, attorneys or other professionals that the
Company deems necessary in the adjustment of such claims. In regards to payment
of claims regarding the Policies, the Company shall be entitled to rely on the
express written contractual terms of the Policies and other books and records
provided by JALIC.
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1.9 Complaint-Handling Procedure. The Parties will cooperate with each
other in providing information necessary to respond to any inquiries and
complaints concerning the Policies. The Company shall answer all inquiries and
complaints received by it concerning a Policy. All inquiries and complaints
concerning the Policies received by JALIC with respect to a Policy transitioned
to the Company or converted to the Company's administrative system shall be
immediately forwarded by facsimile or overnight mail to a contact person
designated by the Company for reply. Initially, such contact person shall be
Xxxxx X. Xxxxx. Upon answering such inquiries or complaints, the Company will
furnish JALIC with a copy of the complaint file. JALIC shall be solely
responsible for maintaining any complaint files, complaint registers or other
reports of any kind, which are required to be maintained under applicable Laws.
JALIC shall also be responsible for preparing and submitting any other complaint
filings as required by applicable Laws.
1.10 Filings. The Company shall handle all compliance and regulatory
matters relating to the administration of a Policy, including monitoring changes
in applicable laws, implementing the appropriate and necessary changes to forms
and rates as required by applicable Laws, filing and refiling forms and rates as
required by applicable Laws, and preparing and filing all reports and other
filings required by applicable Laws. The Company shall use its reasonable
efforts to provide copies of all reports and filings with respect to a Policy
required to be made with any governmental entity to JALIC.
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ARTICLE 2
COMPENSATION; PAYMENT
There shall be no fee payable to the Company for Services provided to
JALIC hereunder.
ARTICLE 3
TERM AND TERMINATION
3.1 Term. This Agreement shall commence upon the first Policy or
Policies being transitioned to the Company or converted onto the Company's
administrative system and shall continue with respect to Policies until such
time as all of the liabilities under the Policies have been satisfied or a
Novation has occurred or unless earlier terminated pursuant to Sections 3.2, 3.3
or 3.4 below and shall terminate as to each Policy on the effective date of the
Novation of such Policy pursuant to the Assumption Reinsurance Agreement. Upon
any termination of this Agreement pursuant to Sections 3.2, 3.3 or 3.4 below,
the Services performed by the Company shall be assumed by JALIC or JALIC's
designee. In such event of termination, the Company shall cooperate in the
transfer of services and the applicable books and records maintained by the
Company pursuant to Section 1.6 hereof to JALIC or JALIC's designee, so that
JALIC or its designee will be able to perform the Services required under this
Agreement following termination of this Agreement.
3.2 Termination for Breach. In the event of a breach by either Party of
any obligation of any provision of this Agreement, the non-breaching Party shall
give written notice of breach to the breaching Party detailing the nature of
such breach in sufficient detail to allow the breaching party to cure, if cure
is possible. If a material breach of any material obligation is not cured by the
breaching Party within 30 days after such notice of breach, then the non-
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breaching Party may terminate this Agreement by giving notice of termination to
the breaching Party. Such termination shall be effective on notice of
termination by the non-breaching Party to the breaching Party.
3.3 Termination for Receivership. In the event of a receivership or
insolvency of either Party, this Agreement may be terminated immediately by the
other Party upon written notice.
3.4 Other Termination Events. This Agreement may be terminated at any
time upon the mutual written consent of the Parties hereto, which writing shall
state the effective date of termination.
ARTICLE 4
REPRESENTATIONS
THERE ARE NO REPRESENTATIONS OR WARRANTIES BY THE COMPANY OR
ITS AFFILIATES WITH RESPECT TO THE SERVICES, EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, THE ASSET PURCHASE AGREEMENT AND THE ANCILLARY AGREEMENTS. NO
REPRESENTATION OR WARRANTY SHALL BE IMPLIED UNDER THIS AGREEMENT OR AT LAW,
INCLUDING, WITHOUT LIMITATION, WARRANTY OF MERCHANTABILITY OR WARRANTY OF
FITNESS FOR A PARTICULAR PURPOSE AS TO THE SERVICES.
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ARTICLE 5
INDEPENDENT CONTRACTOR
The Company and its Affiliates shall be independent contractors to
JALIC and its Affiliates with respect to the performance of the Services
hereunder. Nothing contained in this Agreement shall make the Company, its
Affiliates or their employees the employees of JALIC.
ARTICLE 6
INTENTIONALLY DELETED
ARTICLE 7
FORCE MAJEURE
The Company and its Affiliates shall not be liable for its or their
failure to perform hereunder to the extent that such performance is made
impracticable, delayed or prevented, in whole or in part, due to any acts of
God; fires; wars; Laws or Orders, whether valid or invalid (including, without
limitation, requisitions, allocations and price adjustment restrictions); or
inability to obtain or unavoidable delay in obtaining necessary power. The
Company and its Affiliates shall use commercially reasonable efforts (which
shall be substantially similar to those used by the Company immediately prior to
the date hereof) to minimize the likelihood of any damage, loss of data, delay
or error resulting from such occurrence beyond its or their control. If the
Company or its Affiliates fails to perform hereunder as a result of any
occurrence described in the preceding sentence, the Company shall (i) give
written notice to that effect to JALIC within 10 days after such occurrence
together with a statement setting forth reasonably full particulars concerning
such occurrence and (ii) during the period any Service required to be
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provided hereunder cannot be provided as a result of such occurrence, use
reasonable efforts to remedy such occurrence. To the extent required by any such
occurrence, the performance by the Company or its Affiliates hereunder shall be
suspended during the continuance of any such occurrence and this Agreement shall
otherwise remain unaffected. If such occurrence is remedied during the time that
any Service affected by such occurrence is required to be provided under this
Agreement, the Company or its Affiliates shall promptly notify JALIC and any
such suspension shall end.
ARTICLE 8
HOLD HARMLESS
The Company shall indemnify and hold JALIC and each of its Affiliates
harmless from any and all damages, claims, suits, actions, causes of action,
proceedings, investigations, losses, liabilities, assessments, judgments,
deficiencies and expenses (including, without limitation, reasonable legal,
accounting and other professional expenses) ("Liabilities") directly arising
from the Company's or its Affiliates breach of any provision of this Agreement,
including any act of negligence, bad faith or willful misconduct of the Company
in providing the Services. The indemnification provisions under this Article 8
shall survive the term of this agreement for all Liabilities arising from
omissions or acts committed during such term.
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ARTICLE 9
MISCELLANEOUS
9.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be delivered personally (by courier or
otherwise), or sent by certified, registered or express mail, postage prepaid
and return receipt requested, or transmitted by facsimile (with a copy of such
notice or other communication and a confirmation of transmission sent by
certified, registered, or express mail, postage prepaid and return receipt
requested no later than the close of business on the next Business Day following
such transmission) and shall be addressed as follows:
when JALIC is to be notified:
SunAmerica Life Insurance Company
0 XxxXxxxxxx Xxxxxx, Xxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
With a copy to:
SunAmerica Life Insurance Company
0 XxxXxxxxxx Xxxxxx, Xxxxxxx Xxxx
Xxx Xxxxxxx, XX 00000-0000
Attention: Controller
Facsimile No.: (000) 000-0000
and
O'Melveny & Xxxxx
1999 Avenue of the Stars
Xxxxx 000
Xxx Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
when the Company is to be notified:
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Xxxx Xxxxx Life Insurance Company
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
With copies to:
Xxxx Xxxxx Financial Corporation
0000 Xxxxxxxxx Xxxxxx Xxxxx
Xxxxx, XX 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
Xxxxx Xxxxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
A Party may, by notice given in accordance with this Section 9.1 to the other
Party, designate another address or person to which notices required or
permitted to be given pursuant to this Agreement shall thereafter be
transmitted. Each notice transmitted in the manner described in this Section 9.1
shall be deemed to have been given, received and become effective for all
purposes at the time it shall have been (i) delivered to the addressee as
indicated by the return receipt (if transmitted by mail), transmitted to the
addressee (if transmitted by facsimile and subject to delivery of the mailed
copy thereof) or the affidavit of the messenger (if transmitted by personal
delivery) (ii) presented for delivery to the addressee as so indicated during
normal business hours, if such delivery shall have been refused for any reason.
9.2 Entire Agreement. This Agreement (including the Schedules attached
hereto), the Asset Purchase Agreement (including the Ancillary Agreements and
the Annex, Exhibits and Schedules attached hereto), the Assumption Reinsurance
Agreement and the Indemnity Reinsurance Agreement contain the entire agreement
and understanding between the Parties with
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respect to the subject matter hereof and cancels and supersedes all of the
previous or contemporaneous agreements, representations, warranties and
understandings, whether written or oral, by or between the Parties with respect
to the subject matter hereof. Nothing contained in this Agreement or any of the
Schedules hereto shall constitute or be interpreted or construed as an admission
by any Party or any of its Affiliates of liability to third parties, whether
under any Laws or ordinances or otherwise, or as an admission that any Party or
any of its Affiliates are in violation of or have ever violated any such Laws.
Notwithstanding anything contained in this Section 9.2 to the contrary, any
inconsistencies between this Agreement and the Indemnity Reinsurance Agreement
shall be governed by the terms of the Indemnity Reinsurance Agreement. In the
event of any conflict between this Agreement, the Indemnity Reinsurance
Agreement and the Asset Purchase Agreement as to the rights or obligations of
JALIC or the Company, the Asset Purchase Agreement shall control. In the event
of any ambiguity in this Agreement as to the rights or obligations of JALIC or
the Company, the Asset Purchase Agreement shall control.
9.3 Amendments. No addition to, and no cancellation, renewal,
extension, modification or amendment of, or approvals under, this Agreement
shall be binding upon a Party unless such addition, cancellation, renewal,
extension, modification, amendment, or approval is set forth in a written
instrument which states that it adds to, amends, cancels, renews or extends this
Agreement or grant an approval hereunder and which is executed and delivered on
behalf of each Party by an officer of, or attorney-in-fact for, such Party.
9.4 Waivers. No waiver of any provision of this Agreement shall be
binding upon a Party unless such waiver is expressly set forth in a written
instrument which is executed and delivered on behalf of such Party by an officer
of, or attorney-in-fact for, such Party. Such
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waiver shall be effective only to the extent specifically set forth in such
written instrument. Neither the exercise (from time to time or at any time) nor
the delay or failure (at any time or for any period of time) to exercise any
right, power or remedy shall operate as a waiver of, the right to exercise, or
impair, limit or restrict the exercise by, any Party of any such right, power or
remedy any other right, power or remedy at any time and from time to time
thereafter. No waiver of any right, power or remedy of a Party shall be deemed
to be a waiver of any other right, power or remedy of such Party or shall,
except to the extent so waived, impair, limit or restrict the exercise of such
right, power or remedy.
9.5 Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO ITS
PRINCIPLES OF CONFLICTS OF LAWS. Each Party consents and submits to the
non-exclusive personal jurisdiction of any federal court in the State of
Delaware in respect of any proceeding for the sole purpose of injunctive relief
or to enforce an arbitration award under Section 9.6 hereof. Each Party consents
to service of process upon it with respect to any such proceeding by registered
mail, return receipt requested, and by any other means permitted by applicable
Laws. Each Party waives any objection that it may now or hereafter have to the
laying of venue of any such proceeding in federal court in the State of Delaware
and any claim that it may now or hereafter have that any such proceeding in any
such court has been brought in an inconvenient forum.
9.6 Arbitration. The Parties acknowledge and agree that the
transactions contemplated herein substantially affect and impact interstate
commerce. Therefore, all disputes or differences between JALIC and the Company
arising under or which are related to this Agreement upon which an amicable
understanding cannot be reached within 30 days shall be settled by arbitration
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in accordance with the Commercial Arbitration Rules of the American Arbitration
Association, except as hereinafter provided, and judgment upon the award entered
by the Arbitrators (as defined below) may be entered in any court having
jurisdiction thereof. The Arbitrators provided for herein shall construe this
Agreement in light of the prevailing custom and practices for transactions of a
similar nature in the insurance industry. The "Arbitrators" shall consist of one
neutral arbitrator (or as provided below, three neutral arbitrators). The
Parties agree that the arbitration, if implemented under this Agreement, shall
be held at a site selected by the Arbitrators. The Parties agree to arbitrate
within 90 days following the transmittal of written demand of either Party to
arbitrate any dispute arbitrable under this Agreement. The Parties will in good
faith, within 15 days following notice of written demand to arbitrate attempt to
agree on a single Arbitrator. If the Parties cannot within 15 days thereafter
agree on a single Arbitrator, each of the Parties shall appoint an Arbitrator,
notifying the other Party of the name and address of such Arbitrator. The
Arbitrators appointed by each Party shall agree upon and appoint a third neutral
Arbitrator. If either Party shall fail to appoint an Arbitrator as herein
provided, or should the two Arbitrators so named fail to select the third
Arbitrator within 30 days after their appointment, then, in either event, the
President of the American Arbitration Association or its successor shall appoint
such second and/or third Arbitrator. A decision of a majority of the Arbitrators
shall be final and binding and there shall be no appeal therefrom. The
Arbitrators shall within 45 days after the last hearing enter an award and the
award shall be supported by a written opinion. The fees of the Arbitrators and
the direct costs of the arbitration shall be shared equally by the Parties; all
other costs of the respective Parties, including without limitation fees and
expenses of the respective Party's attorneys, witnesses and discovery shall be
paid by the respective Party, except to the extent that the Arbitrators
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otherwise direct based on the equities of the situation. The arbitration shall
be held in New York, New York, unless otherwise agreed between the Parties.
9.7 Certain Definitions. Capitalized terms used herein without
definition shall have the meaning ascribed to them in the Asset Purchase
Agreement.
9.8 Binding Effect; Assignment; Third Party Beneficiaries. This
Agreement shall be binding upon and inure to the benefit of the Parties and
their respective successors and permitted assigns. Except as otherwise provided
in this Agreement, neither the Company nor JALIC shall assign any of its rights
or delegate any of its duties hereunder (in whole or in part and by operation of
Law or otherwise) without the prior written consent of the other Party hereto,
which consent shall not be unreasonably withheld. Any other assignment of rights
or delegation of duties under this Agreement by a Party without the prior
written consent of the other Party, if such consent is required hereby, shall be
void. Notwithstanding the foregoing, the Company may subcontract all or part of
the Services hereunder to a third party without JALIC's consent. No Person
(including, without limitation, any employee of a Party) shall be, or be deemed
to be, a third party beneficiary of this Agreement.
9.9 Severability. If any provision of this Agreement shall hereafter be
held to be invalid, unenforceable or illegal, in whole or in part, in any
jurisdiction under any circumstances for any reason, (i) such provision shall be
reformed to the minimum extent necessary to cause such provision to be valid,
enforceable and legal while preserving the intent of the Parties as expressed
in, and the benefits to the Parties provided by, this Agreement or (ii) if such
provision cannot be so reformed, such provision shall be severed from this
Agreement and an equitable adjustment shall be made to this Agreement
(including, without limitation, addition of necessary further provisions to this
Agreement) so as to give effect to the intent as so expressed and the
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benefits so provided. Such holding shall not affect or impair the validity,
enforceability or legality of such provision in any other jurisdiction or under
any other circumstances. Neither such holding nor such reformation or severance
shall affect or impair the legality, validity or enforceability of any other
provision of this Agreement.
9.10 Headings. The headings in this Agreement have been inserted for
convenience of reference only, and shall not be considered a part of this
Agreement and shall not limit, modify or affect in any way the meaning or
interpretation of this Agreement.
9.11 Counterparts. This Agreement may be executed by the Parties in any
number of counterparts, each of which when so executed and delivered shall
constitute an original instrument, but all such counterparts shall together
constitute one and the same instrument. This Agreement shall become effective
and be deemed to have been executed and delivered by all of the Parties at such
time as counterparts shall have been executed and delivered by both of the
Parties, regardless of whether each of the Parties has executed the same
counterpart. It shall not be necessary when making proof of this Agreement to
account for any counterparts other than a sufficient number of counterparts
which, when taken together, contain signatures of both of the Parties.
9.12 Further Assurances. Subject to the provisions of this Agreement,
JALIC and the Company will use their commercially reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable Laws to provide the Services
required herein. With regard to any matters not expressly stated herein, the
Parties to this Agreement agree to furnish such information, to execute such
additional documents, and to cooperate with each other as may be reasonably
necessary to carry out the purposes of this Agreement, in accordance with
industry practice for transactions of this kind.
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If either Party becomes aware that any Action has been or is about to be
initiated with respect to the Policies, or any other matter reasonably related
thereto, it shall inform the other Party as soon as practicable. The Parties
agree to cooperate in furnishing to each other any files or other information
needed by the other to respond to any Action or threatened Action.
IN WITNESS WHEREOF, the parties have executed this Agreement.
XXXX XXXXX LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------
Title: Senior Vice President and CFO
-------------------------------
SUNAMERICA LIFE INSURANCE COMPANY
By: /s/ Xxxxx X. Xxxxx
-------------------------------
Title: Senior Vice President
-------------------------------
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Schedule 1.1
SERVICES
Services with respect to the Policies transitioned to the Company as
conducted by the Company shall consist of those services, and only those
services, the Company or its Affiliates customarily renders for its own annuity
policies. Such Services shall include:
(a) all Policyholder services including but not limited to the
following:
1. Billing and collection of premiums;
2. Payment of claims;
3. Handling of Policyholder service requests, inquiries and
complaints under the Policies;
4. Preparation of quarterly statements of cash flow
transaction data (within ten Business Days after the
end of a calendar quarter) and annual financial
statement data (within thirty-five calendar days
after the end of the fiscal year), for inclusion in
JALIC's applicable financial statements (except for
statements of cash flow testing and actuarial
memorandum which shall be delivered on or before
March 1 of each calendar year);
5. Administration of any agreements providing for the payment of
commissions relating to the Policies;
6. Provision of the Monthly Accounting pursuant to Section 1.5;
7. Payment of agent commissions due and payable;
8. Provision of data on reimbursement of premium taxes and
provision of data on net DAC taxes, sales taxes, value added
taxes or any other taxes on receipts due and payable;
9. Preparation and mailing of quarterly or annual statements to
policyholders; and
10. Provision of such other Policyholder services on the
Policies as are reasonably required or which have
been previously provided by the Company or its
Affiliates with respect to its own annuity policies
with respect to its annuity policies which are
similar to the Policies.
(b) All other services performed by or for the Company or its
Affiliates with respect to its own annuity polices similar to the Policies,
including the providing of legal, compliance, actuarial, accounting, treasury,
human resources and data processing services.
i
