SERVICES AGREEMENT
The terms and conditions of this Services Agreement between Pacific Investment
Management Company ("PIMCO") and Preferred Life Insurance Company of New York
(the "Company") are effective as of December 1, 1999.
WHEREAS, the Company, PIMCO Funds Distributors LLC and PIMCO Variable Insurance
Trust (the "Trust") have entered into a Fund Participation Agreement dated
December 1, 1999, as may be amended from time to time (the "Participation
Agreement"), pursuant to which the Company, on behalf of certain of its separate
accounts (the "Separate Accounts"), purchases shares ("Shares") of certain
Portfolios of the Trust ("Portfolios") to serve as an investment vehicle under
certain variable annuity and/or variable life insurance contracts ("Variable
Contracts") offered by the Company, which Portfolios may be one of several
investment options available under the Variable Contracts; and
WHEREAS, PIMCO recognizes that it will derive substantial savings in
administrative expenses by virtue of having a sole shareholder rather than
multiple shareholders in connection with each Separate Account's investments in
the Portfolios, and that in the course of soliciting applications for Variable
Contracts issued by the Company and in servicing owners of such Variable
Contracts, the Company will provide information about the Trust and its
Portfolios from time to time, answer questions concerning the Trust and its
Portfolios, including questions respecting Variable Contract owners' interests
in one or more Portfolios, and provide services respecting investments in the
Portfolios; and
WHEREAS, PIMCO wishes to compensate the Company for the efforts of the Company
in providing written and oral information and services regarding the Trust to
Variable Contract owners; and
WHEREAS, the following represents the collective intention and understanding of
the service fee agreement between PIMCO and the Company.
NOW, THEREFORE, in consideration of their mutual promises, the Company and PIMCO
agree as follows:
l. Services. The Company and/or its affiliates agree to provide services
("Services") to owners of Variable Contracts including, but not limited to:
teleservicing support in connection with the Portfolios; delivery of current
Trust prospectuses, reports, notices, proxies and proxy statements and other
informational materials; facilitation of the tabulation of Variable Contract
owners' votes in the event of a Trust shareholder vote; maintenance of Variable
Contract records reflecting Shares purchased and redeemed and Share balances,
and the conveyance of that information to the Trust or PIMCO 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 Variable
Contract owners' interests in one or more Portfolios; provision and
administration of Variable Contract features for the benefit of Variable
Contract owners 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; and provision of
other services as may be agreed upon from time to time.
2. Compensation. In consideration of the Services, PIMCO agrees to pay to the
Company a service fee at an annual rate equal to twenty-five (25) basis points
(0.25%) of the average daily value of the Shares held in the Separate Accounts.
Such payments will be made monthly in arrears. For purposes of computing the
payment to the Company under this paragraph 2, the average daily value of Shares
held in the Separate Accounts over a monthly period shall be computed by
totaling such Separate Accounts' aggregate investment (Share net asset value
multiplied by total number of Shares held by such Separate Accounts) on each
business day during the calendar month, and dividing by the total number of
business days during such month. The payment to the Company under this paragraph
2 shall be calculated by PIMCO at the end of each calendar month and will be
paid to the Company within 30 days thereafter. Payment will be accompanied by a
statement showing the calculation of the monthly amounts payable by PIMCO and
such other supporting data as may be reasonably requested by the Company.
3. Term. This Services Agreement shall remain in full force and effect for an
initial term of one year, and shall automatically renew for successive one year
periods. This Services Agreement may be terminated by either party hereto upon
30 days written notice to the other. This Services Agreement shall terminate
automatically upon the redemption of all Shares held in the Separate Accounts,
upon termination of the Participation Agreement, upon a material, unremedied
breach of the Participation Agreement, as to a Portfolio upon termination of the
investment advisory agreement between the Trust, on behalf of such Portfolio,
and PIMCO, or upon assignment of the Participation Agreement by either the
Company or PIMCO. Notwithstanding the termination of this Services Agreement,
PIMCO will continue to pay the service fees in accordance with paragraph 2 so
long as net assets of the Separate Accounts remain in a Portfolio, provided such
continued payment is permitted in accordance with applicable law and regulation.
4. Amendment. This Services Agreement may be amended only upon mutual agreement
of the parties hereto in writing.
5. Effect on Other Terms, Obligations and Covenants. Nothing herein shall amend,
modify or supersede any contractual terms, obligations or covenants among or
between any of the Company, PIMCO or the Trust previously or currently in
effect, including those contractual terms, obligations or covenants contained in
the Participation Agreement.
In witness whereof, the parties have caused their duly authorized officers to
execute this Services Agreement.
PACIFIC INVESTMENT MANAGEMENT COMPANY
/s/ Xxxxx X. Xxxxxx
By: Xxxxx X. Xxxxxx
Title: Chairman
Date: 12/9/99
PREFERRED LIFE INSURANCE COMPANY OF NEW YORK
/s/ Xxxxxxx X. Xxxxxxxxxxx
By: Xxxxxxx X. Xxxxxxxxxxx
Title: SECRETARY
Date:11-18-99
AMENDMENT NO. 1 TO SERVICES AGREEMENT
This Amendment No. 1 to the Services Agreement dated December 1, 1999 (the
"Agreement") between Pacific Investment Management Company ("PIMCO") and
Preferred Life Insurance Company of New York (the "Company") is effective as of
April 1, 2000. Capitalized terms not otherwise defined herein shall have the
meanings ascribed to them in the Agreement.
WHEREAS, PIMCO and the Company entered into the Agreement to provide for the
rendering of services to the owners of variable annuity and/or variable life
insurance contracts ("Variable Contracts") offered by the Company that use
shares of certain Portfolios of PIMCO Variable Insurance Trust (the "Trust') as
the underlying investment vehicle;
WHEREAS, the Trust, effective April 1, 2000, may offer shares of its Portfolios
in two classes, designated "Institutional Class" shares and "Administrative
Class" shares;
WHEREAS, the shares of the Portfolios offered prior to April 1, 2000 have been
designated as Administrative Class shares;
WHEREAS, the Trust has adopted an Administrative Services Plan (the "Plan") for
the Administrative Class shares of each Portfolio under which Administrative
Class assets may be used to reimburse financial intermediaries that provide
services relating to Administrative Class shares;
WHEREAS, the Company or its affiliate has executed a Services Agreement pursuant
to which the Company or its affiliate is entitled to reimbursement under the
Plan for services provided to Variable Contract owners;
NOW, THEREFORE, in consideration of their mutual promises, PIMCO and the
Company, acting pursuant to Section 4 of the Agreement, agree that Section 2 of
the Agreement be amended to read as follows:
2. Compensation. In consideration of the Services, PIMCO agrees to pay to the
Company a service fee at an annual rate equal to ten (10) basis points (0.10%)
of the average daily value of the Shares held in the Separate Accounts. Such
payments will be made monthly in arrears. For purposes of computing the payment
to the Company under this paragraph 2, the average daily value of Shares held in
the Separate Accounts over a monthly period shall be computed by totaling such
Separate Accounts' aggregate investment (Share net asset value multiplied by
total number of Shares held by such Separate Accounts) on each business day
during the calendar month, and dividing by the total number of business days
during such month. The payment to the Company under this paragraph 2 shall be
calculated by PIMCO at the end of each calendar month and will be paid to the
Company within 30 days thereafter. Payment will be accompanied by a statement
showing the calculation of the monthly amounts payable by PIMCO and such other
supporting data as may be reasonably requested by the Company.
This Amendment No. 1 may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
PACIFIC INVESTMENT MANAGEMENT COMPANY
/s/ Xxxxx X. Xxxxxx
By:
Title:
Date:
PREFERRED LIFE INSURANCE COMPANY OF NEW YORK
/s/ Xxxxxxx X. Xxxxx
By:Xxxxxxx X. Xxxxx
Title: VP & SECRETARY
Date: 6/2/00
PIMCO VARIABLE INSURANCE TRUST SERVICES AGREEMENT
This Agreement is made as of April 1, 2000 between PIMCO Variable Insurance
Trust (the "Trust") and Preferred Life Insurance Company of New York
("Authorized Firm"), a New York life insurance company.
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.
WITNESSETH:
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 0.15% of the
average of the aggregate net asset value of outstanding shares serviced
by Authorized Firm, measured on each
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
quarter. 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 nonrenewal) 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 California 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.
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.
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.
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: /s/ Xxxxx X. Xxxxxx Address for Notices:
Name: 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx
Xxxxx: Xxxxxxx Xxxxx, XX 00000
Fax: (000) 000-0000
Preferred Life Insurance Company of New York
By: /s/ Xxxxxxx Xxxxx Address for Notices:
Name: Xxxxxxx X. Xxxxx 0000 Xxxxxxxx Xxx
Title: VP & Secretary Xxxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
