EXHIBIT 8
Delaware Valley Financial Services Administrative Agreement
appointing Delaware Valley Financial Services by American
International Life Assurance Company of New York and AIG Life
Company
DELAWARE VALLEY FINANCIAL SERVICES, INC.
ADMINISTRATIVE AGREEMENT
Client: American International Life Assurance Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Date: October 1, 1986
Initial Term: Three (3) years.
Background: Client wishes to appoint Delaware Valley Financial Services, Inc.
("DVFS") as the exclusive administrator of certain Single Premium Variable
Annuity policies issued by Client and its affiliated insurers (as defined in
Section 9.13 of this Agreement).
INTENDING TO BE LEGALLY BOUND, and in consideration of the mutual
agreements stated below, Client and DVFS agree as follows:
SECTION 1: APPOINTMENT AND ACCEPTANCE
1.1 Appointment of DVFS. During the term of this Agreement, Client
appoints DVFS as its exclusive administrator of the policies
described on the attached Schedule A ("Policies") , subject to
the terms and conditions of this Agreement. Schedule A may be
amended from time to time by the mutual written agreement of
Client and DVFS.
1.2 Acceptance by DVFS. DVFS accepts such appointments as Client's
exclusive administrator of the Policies.
1.3 Start-Up Procedure. The parties shall use their best efforts
to implement and perform the start-up processes and procedures
described on the attached Schedule B, in accordance with the
schedules and subject to the testing and acceptance criteria
stated on Schedule B. Schedule B may be amended from time to
time by the mutual agreement of Client and DVFS. If, despite
using best efforts, the parties are unable to complete such
start-up processes and procedures within 90 days after the
completion date stated on Schedule B, then either party may
terminate this Agreement immediately upon notice to the other
party.
SECTION 2: SERVICES
2.1 General Services. During the term of this Agreement, DVFS
shall perform services of the type described on the attached
Schedule C ("Services"), subject to the terms and conditions
of this Agreement. Schedule C may be amended from time to time
by the mutual written agreement of Client and DVFS, or by the
agreement of any Authorized Employee (as defined in Section
2.2) and DVFS as contemplated by Section 2.2.
2.2 Client's Authorized Employees. Subject to the limitations and
conditions stated on the attached Schedule D, Client
authorizes the employees named on the attached Schedule D
("Authorized Employee") to (a) coordinate communications with
DVFS with respect to this Agreement, (b) provide to DVFS
requests and instructions with respect to the Services, (c)
clarify with DVFS the specific scope and timing of records
maintained, reports prepared and other Services performed by
DVFS, and (d) agree in writing with DVFS on changes in the
Base Compensation payable by Client to DVFS under Section 3.1
to reflect changes in the scope and timing of the Services.
Client may amend Schedule D from time to time by giving
written notice to DVFS of the amendment, but no amendment to
Schedule D shall be effective unless and until it is received
by DVFS.
2.3 DVFS Personnel and Facilities. DVFS shall maintain such
personnel and facilities as it deems necessary, in its sole
discretion, to perform the Services. Client acknowledges that
DVFS owns, and will use to perform the Services, certain
computer programs and related documentation and materials
("System") which constitute trade secrets and proprietary
property of DVFS. No provision of this Agreement is intended
to grant to Client, and Client shall not have, any right to
use, or any right to access to, any part of the System, except
to the extent permitted under Section 5.4 and 7.3(h).
2.4 Regulatory Changes. If there are changes in any federal, state
or local law, rule or regulation which affect the Services, or
if any regulatory agency having jurisdiction over Client takes
a position which effects the Services and of which DVFS is
notified in writing by Client, then DVFS shall use its best
efforts to develop and implement changes in the System or
Services and take other actions reasonably required so that
the Services continue to satisfy applicable laws, rules and
regulations. Client acknowledges that any change in the System
contemplated by this Section 2.4 may result in changes in the
scope and timing of records maintained, reports prepared and
other Services performed by DVFS. If so, the parties shall
negotiate in good faith appropriate and corresponding changes
in the Base Compensation payable by Client to DVFS under
Section 3.1.
2.5 Excused Performance. As used herein, "Force Majeure" means any
Act of God, act of civil or military authority, war, criminal
act, fire, explosion, earthquake, flood, weather condition, power
failure, labor problem, accident, or any other cause, beyond
DVFS's reasonable control. If DVFS fails to perform, in whole or
in part, any of its obligations under this Agreement as a
consequence of any Force Majeure, then (a) such failure to
perform shall not constitute a breach of this Agreement for as
long as the Force Majeure continues and for a reasonable period
thereafter, and DVFS shall have no liability for any loss or
damage resulting therefrom, (b) to the extent possible, DVFS
shall use its best efforts to perform its obligations under this
Agreement, and (c) DVFS shall promptly notify Client in writing
of the occurrence of the Force Majeure, its expected duration (if
known), and the extent to which the Force majeure is expected to
affect DVFS's ability to perform its obligations under this
Agreement.
SECTION 3: FEES AND EXPENSES
3.1 Base Compensation. In consideration of the Services to be
rendered by DVFS as provided in this Agreement, Client shall
pay to DVFS the fees and expenses described on the attached
Schedule E ("Base Compensation"). Schedule E may be amended
from time to time by the mutual written agreement of Client
and DVFS or by the written agreement of any Authorized
Employee and DVFS as contemplated by Section 2.2. Schedule E
shall be amended as a result of any changes in the Base
Compensation agreed to by the parties under Section 2.4 or as
a result of any price increase implemented under Section 3.4.
The Base Compensation due DVFS shall be payable by client to
DVFS no later than 30 days after receipt of DVFS's invoice
therefor.
3.2 Additional Expenses. If DVFS incurs additional costs or
expenses in connection with this Agreement, other than those
included in the Base Compensation, as a result of any request
or instruction of Client or any Authorized Employee, then
Client shall reimburse DVFS for any such additional costs and
expenses no later than 30 days after receipt of DVFS's invoice
therefor. Notwithstanding the foregoing, if the amount of any
such additional costs and expenses will exceed $1,000.00, then
DVFS shall first obtain the written approval of Client or any
Authorized Employee before incurring the same.
3.3 Regulatory Changes. Client shall pay its proportionate share
of all costs and expenses incurred by DVFS in developing and
implementing any change under Section 2.4, within 30 days
after receipt of DVFS's invoice therefor. DVFS shall determine
Client's proportionate share by reasonably allocating all such
costs and expenses among all of its clients who are affected.
3.4 Price Increases. DVFS may increase the fees described on
Schedule E to be in effect during any renewal term of this
Agreement, by giving notice to Client at least 120 days before
the beginning of the renewal term affected.
3.5 Late Payments. A service charge at an annual rate equal to the
prime rate as published in the Eastern Edition of the Wall
Street Journal as of the original due date (or, if lower, the
maximum rate permitted by applicable law) shall accrue on any
amount not paid by Client to DVFS within ten days after the
last day for paying such amount under this Agreement, and
shall be payable by Client to DVFS on demand.
3.6 Taxes. The fees and expenses payable by Client under this
Agreement do not include, and Client shall timely pay, all
sales, use, transfer or other taxes which are levied or
imposed by reasons of the transactions contemplated hereby;
excluding, however, income taxes on profits which may be
levied against DVFS.
SECTION 4: DVFS's RESPONSIBILITIES
4.1 Services. DVFS represents to Client that, based upon DVFS's
review of the July 30, 1986 draft of the form of the Policies
and the July 31, 1986 memorandum from Xxxxxxxx Xxxxxxxxx
concerning such form, DVFS has the capability to perform the
Services. DVFS shall, using reasonable care, perform the
Services in accordance with this Agreement and in compliance
with all applicable laws, rules and regulations. DVFS shall
have no liability under this Section 4.1 unless, within 30
days after the date Client discovered or reasonably should
have discovered any material error caused by DVFS's failure to
so use reasonable care, DVFS receives notice from Client
describing such material error, together with adequate
supporting documentation and data.
4.2 Client's Data. DVFS shall use reasonable care in handling
Client's data which is in DVFS's possession. DVFS's only
obligation under this Section 4.2 is to maintain, in
accordance with prudent standards of insurance record keeping,
daily, weekly and monthly off-site backup copies of Client's
computer data which is in DVFS's possession. DVFS shall have
no liability for any loss or damage arising from Client's
failure to maintain backup copies of all data delivered by
Client or any of its personnel to DVFS.
4.3 Confidentiality. In performing its obligations under this
Agreement, DVFS may have access to and receive disclosure of
certain confidential or proprietary information about Client,
including without limitation marketing philosophies and
objectives, competitive advantages and disadvantages,
financial results, technological developments, names,
addresses, telephone numbers and related information
("Confidential Information"). DVFS shall take all reasonable
steps necessary to protect and preserve the confidential and
proprietary nature of all Confidential Information in its
possession, and shall promptly notify Client of any loss or
misplacement of any Confidential Information in DVFS's
possession. Except as provided in this Agreement or as
reasonably required to perform the Services, DVFS shall not,
directly or indirectly, disclose, give, sell or otherwise
transfer or make available to any third party, or use for any
purpose, or make any copies of, any Confidential Information
in DVFS's possession. Notwithstanding the foregoing,
"Confidential Information" shall not include (a) any
information which is or becomes generally available to the
public or the insurance industry, other than as a result of a
breach of this Agreement by DVFS, (b) any information which is
lawfully obtained by DVFS from a third party, provided that
the third party is not, to DVFS's knowledge, bound by a
nondisclosure agreement with respect thereto, and (c) any
information which DVFS already knew or subsequently develops
from independent sources.
4.4 Records and Permits. DVFS shall maintain, at its principal
administrative office, for the duration of this Agreement and
for a period of five years thereafter, adequate books and
records of all transactions between DVFS, Client and persons
insured under the Policies, provided that the foregoing shall
not require DVFS to retain copies of, or otherwise maintain
records of, any data, information, reports, records or other
documents sent or returned to Client. Client shall have the
right to review such books and records, in accordance with
Section 6, subject to any proprietary rights of DVFS in such
books and records. DVFS shall maintain, for the duration of
this Agreement, all licenses required to be maintained by it
under applicable law, rule or regulation.
4.5 Disclaimer. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT,
DVFS MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY NATURE,
ORAL OR WRITTEN, EXPRESS OR IMPLIED, CONCERNING THE SERVICES
OR ANY OTHER MATTER, INCLUDING WITHOUT LIMITATION IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
4.6 Limitation on Damages. DVFS's total liability under this
Agreement will not exceed the greater of (a) the total of all
fees actually paid by Client to DVFS during the most recent 12
calendar months, or (b) the amount payable under DVFS's errors
and omissions insurance policy(ies), provided that DVFS
maintains throughout the term of this Agreement an errors and
omissions insurance policy(ies) acceptable by Client in an
amount of not less than one million dollars ($1,000,000.00),
relating to all of the services to be performed hereunder.
DVFS shall at all times as Client may request, but at least
once a year, provide Client proof that said policy(ies) of
insurance are in force. DVFS shall also notify Client when any
claims made against the errors and omissions policy(ies), in
the aggregate, total in excess of one hundred thousand dollars
($100,000.00). Neither DVFS nor Client will be liable for any
special, indirect or consequential damages of any nature,
whether or not foreseeable.
4.7 Other Persons. The responsibilities and obligations of DVFS
under this Agreement run only to Client, and not to any
holder, annuitant, owner, insured or beneficiary of any of the
Policies or any other Person. Under no circumstances will any
Person be considered a third party beneficiary of this
Agreement.
SECTION 5: CLIENT'S OBLIGATIONS
5.1 Data and Documents. Client shall provide to DVFS, as and when
necessary, all data concerning the Policies and other
information, and all forms, applications, certificates and
other documents, reasonably required by DVFS from Client to
properly perform the Services. All such data, information and
documents provided to DVFS by Client or an Authorized Employee
shall be accurate, current and complete, and DVFS shall have
the right to fully rely thereon in performing the Services.
Client shall maintain backup copies of all data, information
and documents provided to DVFS by Client or an Authorized
Employee. DVFS shall also have the right to fully rely on any
data and information supplied by any holder, annuitant, owner,
insured or beneficiary of the Policies, or any agent of the
Client.
5.2 Policies. In offering, selling, issuing, underwriting or
otherwise handling the Policies, Client and its affiliated
insurers shall obtain all required governmental and regulatory
approvals and shall otherwise comply with all applicable
federal, state and local laws, rules and regulations.
5.3 Exclusivity. During the term of this Agreement, DVFS shall be
the exclusive administrator of the Policies. Neither Client
nor any of its affiliated insurers shall appoint any other
Person as administrator of any of the Policies or enter into
any administration or similar agreement with any other Person
with respect to any of the Policies, nor shall Client or any
of its affiliated insurers act as administrator of the
Policies.
5.4 Limited System Access. Client may install a limited number of
remote terminals connected to the System via telephone line,
for the sole purpose of obtaining, at limited times during
DVFS's normal business hours, read-only access to profile
information and account values for the Policies. All costs and
expenses associated with the installation, connection and use
of such terminals shall be paid directly by Client or
reimbursed by Client to DVFS within 30 days after receipt of
DVFS's invoice therefor. Costs reimbursed to DVFS shall
include, without limitation, costs of telephone lines and
multiplexers and, at DVFS's option, clock-time and CPU-time
charges. If and whenever DVFS determines that such access to
the System is disruptive to DVFS's use of the System, DVFS may
further restrict the number of remote terminals used and the
hours of access, and may impose any other restrictions which
DVFS deems necessary. DVFS shall have no liability of any
nature arising from any improper use or disclosure of Policy
information so obtained by Client. Any information regarding
the System itself shall be held in strict confidence by Client
and shall not be used for any purpose or disclosed to any
Person by Client.
SECTION 6: AUDITS
6.1 General Conditions. Upon reasonable notice to DVFS and at
reasonable times, Client may conduct or have conducted audits
of the type described in Sections 6.2 and 6.3. Each such audit
shall be conducted in a manner which avoids any material
disruption to DVFS's business.
6.2 Records Audits. If the audit involves a review of Client's
data and records which are in DVFS's possession, or of DVFS's
books and records maintained in accordance with Section 4.4,
then, at Client's option, the audit may be conducted by
Client's qualified personnel or by a qualified independent
auditor selected by Client, in either case, at Client's sole
expense.
6.3 Systems Audits. If the audit involves a review of DVFS's
procedures, programs and systems, or of DVFS's proprietary
records pertaining to this Agreement, then, at Client's
options, the audit may be conducted by Client's qualified
personnel or by a qualified independent auditor reasonably
satisfactory to DVFS, selected and paid for by Client,
provided that such personnel or auditor signs a reasonably
acceptable confidentiality agreement with DVFS before
beginning the audit.
SECTION 7: DURATION AND TERMINATION
7.1 Term of Agreement. The term of this Agreement begins on the
date stated on the first page of this Agreement, and shall
continue for the number of years stated as the Initial Term on
the first page of this Agreement, and thereafter for
successive one year renewal terms (or such other renewal terms
as are then mutually agreed upon), unless and until terminated
as provided in Section 7.3.
7.2 Default. The occurrence of any one or more of the following
events shall constitute a default under this Agreement by the
party to whom the event relates ("Default"):
(a) Any failure or refusal by Client to pay any amount to DVFS
within 15 days after the last day for payment of such amount
under this Agreement.
(b) Any failure or refusal by a party to perform or satisfy any
term or condition of this Agreement, if such failure
continues for more than 30 days after the other party gives
notice thereof to such party, provided that such failure or
refusal shall not constitute a Default if more than 30 days
are reasonably required for its cure and the party involved
commences the cure during such 30-day period and thereafter
diligently prosecutes the cure to completion.
(c) The voluntary or involuntary bankruptcy or insolvency of a
party, the voluntary or involuntary dissolution or
liquidation of a party, the admission in writing by a party
of its inability to pay its debts as they mature, or the
assignment by a party for the benefit of creditors.
7.3 Termination of Agreement. This Agreement may not be terminated by
either party except as follows:
(a) Either party may terminate this Agreement immediately upon
notice to the other party if the other party is in Default
under this Agreement. If Client is in Default under Section
3, Section 5.3 or Section 8.1 of this Agreement, DVFS may,
without terminating this Agreement, withhold its performance
of the Services until Client's Default has been cured.
(b) Either party may terminate this Agreement at the end of the
Initial Term by giving notice to the other party at least
180 days before the end of the Initial Term. If DVFS gives
Client notice of a price increase to be effective at the end
of the Initial Term, then Client may terminate this
Agreement at the end of the Initial Term by giving notice to
DVFS at least 90 days before the end of the Initial Term.
(c) Either party may terminate this Agreement at the end of any
renewal term by giving notice to the other party at least 90
days before the end of the then current renewal term.
(d) If, after the Initial Term of the Agreement, the aggregate
account values of the Policies fall below $50 million and
remain below that amount for a period of more than 90 days,
then DVFS may terminate this Agreement upon 120 days prior
notice to Client, provided that:
(i) By giving written notice to DVFS at least 30 days
before the end of such 120-day period, Client may
extend the term of this Agreement up to an additional
90 days. During any such extension period, all Base
Compensation payable by Client under this Agreement
shall be increased by a 20% surcharge.
(ii) If the aggregate account values of all policies then
administered by DVFS for Client (including the Policies
administered under this Agreement and all other
policies administered under other agreements between
DVFS and Client) exceed $300 million, then DVFS shall
not have the right to terminate this Agreement. If, due
to the foregoing, DVFS cannot terminate this Agreement,
then all Base Compensation payable by Client under this
Agreement shall be increased by a 20% surcharge for as
long as the aggregate account values of the Policies
remain below $50 million.
(c) If there is a change in any federal, state or local
law, rule or regulation which affects the Services, or
if any regulatory agency having jurisdiction over
Client takes a position which affects the Services and
of which DVFS is notified in writing by Client, and if,
despite using its best efforts, DVFS is unable to
develop and implement the necessary changes in the
System or Services on a timely basis, then Client may
give notice to DVFS of its intent to terminate 45 days
after DVFS receives such notice unless DVFS is first
able to complete the development and implementation of
the necessary changes in the System and Services. For
purposes of this Section 7.3(e), the necessary changes
in the System and Services" means those changes
required so that the Services continue to comply in all
material respects with all applicable laws, rules,
regulations, and other applicable administrative
requirements.
(d) If DVFS assigns this Agreement, without Client's
consent, in accordance with Section 9.3 (b) and, as a
result, there is a significant change in the management
of DVFS, then client may terminate this Agreement upon
120 days prior notice to DVFS.
(e) If DVFS is unable to substantially perform the Services
for more than 30 days due to one of the causes
described in Section 2.5, then Client may give notice
to DVFS of its intent to terminate this Agreement, and
this Agreement shall terminate 15 days after DVFS
receives such notice unless DVFS is first able to
resume performance of the Services.
(f) If DVFS is in default under Section 7.2(c) of this
Agreement, Client shall, in its sole discretion, have
the option to obtain a nonexclusive license to use the
System, on an "as is" basis and limited to use for
administering the Policies, in which event Client and
DVFS shall negotiate in good faith the fee for the
license and other terms governing such license, and
shall enter into a written license agreement. This
Section 7.3(h) shall survive the termination of this
Agreement.
7.4 Effect of Termination. Upon termination of this Agreement:
(a) Provided Client is not in Default, DVFS shall assist
Client, at Client's sole expense, in converting
Client's data and records to another administrator
selected by Client.
(b) Whether or not Client is in Default, DVFS shall
promptly return to Client, at Client's sole expense,
all data, records and documents belonging to Client and
then in DVFS's possession.
(c) All fees and expenses due to DVFS for Services rendered
up to the date of termination, and all charges due to
DVFS for conversion assistance and return of materials
under this Section 7.4, shall be paid promptly by
Client to DVFS.
SECTION 8: INDEMNIFICATION
8.1 Indemnification by Client. Client shall indemnify and hold
harmless DVFS (and its directors, officers, employees and
agents) from and against any all demands, claims, actions,
suits, proceedings (whether civil, criminal, administrative,
investigative or otherwise), orders, judgments, liabilities,
losses, damages, settlements, costs and expenses (including
without limitation reasonable attorneys' fees, court costs,
fines and penalties) arising out of or caused by (a) the
performance by DVFS of the Services, except to the extent that
DVFS shall not have performed the Services in compliance with
this Agreement, (b) the failure or refusal by Client to
substantially perform any of its obligations under this
Agreement, or (c) the offer, sale, issuance or underwriting of
any of the Policies (except to the extent DVFS is responsible
for issuance of Policies hereunder) or any other policies
offered, sold, issued or underwritten by Client or any of its
affiliated insurers. Without limiting the generality of the
foregoing, this indemnification by Client shall cover any and
all liabilities, losses, damages, costs and expenses
(including without limitation fines and penalties) arising out
of or caused by any action or omission of DVFS in reasonable
reliance upon any oral or written data or information, any
oral or written request or instruction, or any form,
application, certificate or other document, provided to DVFS
by Client or by any Authorized Employee or agents, or by any
holder, annuitant, owner, insured or beneficiary of the
Policies, including without limitation any such action or
omission which constitutes a violation of any federal, state
or local law, rule or regulation.
8.2 Indemnification by DVFS. DVFS shall indemnify and hold
harmless Client (and its directors, officers, employees and
agents) from and against any and all demands, claims, actions,
suits, proceedings (whether civil, criminal, administrative,
investigative or otherwise), orders, judgments, liabilities,
losses, damages, settlements, costs and expenses (including
without limitation reasonable attorneys' fees, court costs,
fines and penalties) arising out of or caused by the
performance by DVFS of the Services, but only to the extent
that DVFS shall not have performed the Services in compliance
with this Agreement. Without limiting the generality of the
foregoing, this indemnification by DVFS shall cover any and
all liabilities, losses, damages, costs and expenses
(including without limitation fines and penalties) arising out
of or caused by any violation of any federal, state or local
law, rule or regulation resulting from DVFS's failure to
perform the Services in compliance with this Agreement.
8.3 Defense of Indemnification Matters. With respect to any demand
or proceeding involving a matter ("Indemnification Matter")
against which one party ("Indemnitee") is indemnified by the
other party ("Indemnitor") under this Section 8, the
Indemnitor shall be solely responsible, at its sole expense,
for litigating, defending or otherwise attempting to resolve
such demand or proceeding, and the Indemnitee shall fully
cooperate with the Indemnitor and its counsel in their efforts
to litigate, defend or otherwise attempt to resolve such
demand or proceeding, and the Indemnitee shall have the right
to participate therein through counsel of its own choice. The
Indemnitor shall not, however, agree to any settlement without
the Indemnitee's prior written consent, which shall not be
unreasonably withheld.
8.4 Indemnification, Policies and Payments. With respect to each
Indemnification Matter:
(a) Within 30 days after the Indemnitee receives written documents
pertaining to the demand or proceeding underlying such
Indemnification Matter, or within such shorter period of time as
may be necessary under the circumstances to avoid prejudice to
the Indemnitor's rights, the Indemnitee shall give notice to the
Indemnitor of the nature of such Indemnification Matter and shall
deliver to the Indemnitor copies of all such written documents.
(b) Within 10 days after a final agreement is reached or a final
judgment is rendered with respect to such Indemnification Matter,
the Indemnitor shall pay to the Indemnitee any amounts to which
the Indemnitee is entitled under this Section 8, provided that
the Indemnitee may offset such amounts against any sums it may
then owe to the Indemnitor.
8.5 Survival. The provisions of this Section 8 shall survive the
termination of this Agreement.
SECTION 9: OTHER PROVISIONS
9.1 Notices. All notices and consents required or permitted to be
given under this Agreement shall be in writing and shall be
deemed to have been duly given if and when (a) delivered
personally, (b) transmitted by prepaid telegram or telex, (c)
mailed by first class certified mail, return receipt
requested, postage prepaid, or (d) sent by a nationally
recognized express courier service, postage or delivery
charges prepaid, to Client at is address stated on the first
page of this Agreement, or to DVFS at Great Valley Corporate
Center, Xxx Xxxxxx Xxxxxx Xxxxxxx, Xxxxxxx, Xxxxxxxxxxxx
00000, Attention: President. Either party may from time to
time change its address for notices, by giving notice of a new
address to the other party in accordance with this Section
9.1.
9.2 Relationship between Parties. Client acknowledges that DVFS
has entered into and in the future may enter into
administration agreements and other arrangements with other
insurance companies. No provision of this Agreement shall in
any manner restrict the right of DVFS to transact business of
nay nature with other insurance companies or any other
Persons. The relationship between Client and DVFS shall be
that of independent contractors, and no provision of this
Agreement shall be construed to constitute either party as a
partner, joint venturer or agent of the other. Neither party
shall have any authority to bind the other party in any
manner. Neither party shall be liable in any manner for the
debts and liabilities of the other party, and , except as
provided in this Agreement, each party shall be solely
responsible for all costs and expenses incurred by it in
performing its obligations under this Agreement.
9.3 Assignments. Neither party shall, voluntarily, by operation of
law or otherwise, assign any of its rights or obligations
under this Agreement without the prior consent of the other
party, except that (a) DVFS, in its sole discretion, may
delegate or subcontract certain of its obligations under this
Agreement without Client's consent, provided that DVFS shall
remain liable for all such obligations, and provided further,
however, that with respect to any material obligation to be
performed by DVFS under this Agreement, the prior written
consent of Client shall first be obtained, (b) DVFS may assign
this Agreement, without Client's consent, to a successor to or
purchaser of all or substantially all of that part of DVFS's
business to which this Agreement relates, if the successor or
purchaser agrees in writing to be bound by the provisions of
this Agreement, and (c) Client may assign this Agreement,
without DVFS's consent, to AIG Life Insurance Co., Delaware
American Life Insurance Company, or another substantive
affiliate of Client. The assigning party shall promptly notify
the other party of any such assignment.
9.4 Entire Understanding. This Agreement, together with the
attached Schedules, states the entire understanding between
the parties with respect to the subject matter hereof, and
supersedes all earlier and contemporaneous oral and written
communications and agreements with respect to the same subject
matter. This Agreement shall not be modified except as
provided in this Agreement or in a written document signed by
both parties, and this Agreement shall not be terminated
except as provided in Section 7.3 or in a written document
signed by both parties.
9.5 Parties in Interest. This Agreement shall bind Client and DVFS
and their respective successors and assigns. This Agreement
shall benefit and be enforceable by Client and DVFS, and, to
the extent permitted by this Agreement, their respective
successors and assigns.
9.6 No Waivers. No failure to exercise, delay in exercising, or
single or partial exercise of any right, power or remedy by
either party shall constitute a waiver of , or shall preclude
any other or further exercise of , the same or any other
right, power or remedy.
9.7 Severability. If any provision of this Agreement is construed
to be invalid, illegal or unenforceable, then the remaining
provisions of this Agreement shall not be affected thereby and
shall be enforceable without regard thereto.
9.8 Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed and delivered
shall be an original hereof, and it shall not be necessary in
making proof of this Agreement to produce or account for more
than one counterpart hereof.
9.9 Section Headings. Section and subsection headings are for
convenience of reference only, do not constitute a part of
this Agreement, and shall not affect its interpretation.
9.10 Controlling Law. This Agreement is made under, and shall be
construed and enforced in accordance with, the laws of the
Commonwealth of Pennsylvania applicable to agreements made and
to be performed solely therein.
9.11 Definition of Person. As used in this Agreement, "Person"
means any individual, sole proprietorship, joint venture,
partnership, corporation, bank, insurance company,
association, cooperative, trust, estate, government (or any
branch, agency or subdivision thereof), regulatory authority,
or any other entity.
9.12 Arbitration. Any disputes between the parties arising out of,
or relating to this Agreement shall be submitted to and
settled by arbitration in the City of Philadelphia,
Pennsylvania, before and in accordance with the rules then
recognized by the American Arbitration Association. Each party
shall be responsible for its own travel expenses. Each party
shall pay 50% of the fees and expenses of any arbitration,
unless the arbitrators determine that one party acted
arbitrarily or in bad faith, in which case that party shall
pay all such fees and expenses. Decisions of the arbitrators
shall be final and binding upon both parties, and judgment
thereon may be entered in any court of competent jurisdiction.
9.13 Definition of Affiliated Insureres. As used in this Agreement,
"Affiliated Insurers" of Client means any existing domestic
life insurer affiliated of Client.
WITNESS THE DUE EXECUTION AND DELIVERY HEREOF as the date
first stated above.
CLIENT:
DELAWARE VALLEY FINANCIAL AMERICAN INTERNATIONAL LIFE
SERVICES, INC. ASSURANCE COMPANY OF NEW YORK
By: /s/ X.X. Xxxxxxx, Xx. By: /s/ Xxxxx X. Xxxxxxxx
Print Print
Name: X.X. Xxxxxxx, Xx. Name: Xxxxx X. Xxxxxxxx
Title: President Title: Vice President
