Exhibit 99.b(j)
FUND PARTICIPATION AGREEMENT
THIS FUND PARTICIPATION AGREEMENT made as of the _____ day of February,
2002 by and between American International Life Assurance Company of New York, a
New York corporation (the "Company"), on its own behalf and on behalf of each
segregated asset account of the Company identified in Schedule A hereto (each,
an "Account" and collectively, the "Accounts"), and Liberty Funds Services,
Inc., a Delaware corporation and the transfer agent ("LFSI") for the investment
companies identified in Schedule B hereto (the "Liberty Funds").
W I T N E S S E T H:
WHEREAS, the Liberty Funds are provided services by transfer agents,
dividend disbursement agents, and shareholder servicing agents for the open-end,
management investment companies registered under the Investment Company Act of
1940 that are included in Schedule B;
WHEREAS, the Liberty Funds and LFSI desire to make shares of the Liberty
Funds identified in Schedule B available to serve as underlying investment
options for variable annuity contracts ("Contracts") designed and offered by the
Company;
WHEREAS, the Liberty Funds and LFSI will establish an account or accounts
on its mutual fund shareholder accounting system to reflect the Accounts'
ownership of shares of the Liberty Funds and all transactions by the Accounts
involving such shares;
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto, intending to be legally bound, hereby agree and declare as
follows:
1. Establishment of Accounts; Availability of Funds. The Company
represents that it has established under New York law the Accounts identified in
Schedule A hereto. Each of the Accounts is, as of the date of this Agreement,
registered as a unit investment trust in accordance with the provisions of the
Investment Company Act of 1940, as amended, to serve as a segregated asset
account for the Contracts. The Contracts provide for the allocation of net
amounts received by the Company to each Account for investment in shares of the
appropriate Liberty Fund as selected among those investments available through
the Contracts to act as underlying investment media.
2. Marketing and Promotion. The Company agrees to make every reasonable
effort to market its Contracts. It will use its best efforts to give equal
emphasis and promotion to shares of the Liberty Funds as is given to other
underlying investments available through the Contracts. In marketing and
administering its Contracts, the Company will comply with all applicable state
and federal laws.
3. Sale of Fund Shares.
(a) Appointment of Company as Agent. Subject to and in accordance with the
terms and procedures hereof, the Company is hereby appointed as the agent of
LFSI, and the Company hereby accepts such appointment, for the limited purpose
of treating instructions received by the Company from Contract owners as to the
allocation of Contract purchase payments, Contract transfers and Contract
surrenders (to the extent such instructions would result in the purchase or
redemption of Liberty Fund shares by the Company) ("Instructions") as receipt by
LFSI of purchase and redemption orders for shares of the Funds. Notwithstanding
the Company's appointment hereunder as the agent of LFSI for the sole purpose of
receiving Instructions for the purchase and redemption by the Company and its
Accounts of shares of the Liberty Funds, the Company shall not be, nor hold
itself out to the public or engage in any activity as, an agent for LFSI or the
Liberty Funds in respect of or in connection with the distribution or marketing
of shares of the Funds.
It is acknowledged and agreed by the parties that the availability of
shares of any Liberty Fund shall be subject to such Fund's then current
prospectus and Statement of Additional Information, federal and state securities
laws and applicable rules and regulations of the Securities and Exchange
Commission (the "SEC") and the National Association of Securities Dealers, Inc.
(the "NASD").
(b) Receipt of Instructions by Company. In the case of any orders
resulting from Instructions received by the Company on any day on which the New
York Stock Exchange is open for trading (a "Business Day") prior to the time the
net asset values of shares of the Liberty Funds are determined (the close of
trading on the New York Stock Exchange, generally 4:00 p.m. Eastern Time) (the
"Market Close"), such orders shall be accorded a trade date on LFSI's accounting
system that is the date of receipt of the Instructions by the Company, except as
set forth in Section 3(e) below. Any purchase or redemption order resulting from
Instructions received by the Company on any Business Day after the Market Close
shall be accorded a trade date on LFSI's accounting system that is the next
Business Day.
(c) Issuance of Fund Shares. Issuance and transfer of shares of the
Liberty Funds shall be by book entry only. Stock certificates will not be issued
to the Company or any Account. Shares purchased from the Liberty Funds will be
recorded on LFSI's accounting system in the appropriate Account or subaccount
thereof based upon information provided to LFSI by the Company.
(d) Transmission of Orders by Company. Based on the Instructions received
by the Company on each Business Day, the Company shall transmit to LFSI by 9:00
a.m. Eastern Time on the following business day a fax transmission containing
the net purchase or redemption order, in dollars, by each Account of the Company
(or in the aggregate for all Accounts, if that has been agreed to in advance by
the parties) for shares of each Liberty Fund for the preceding Business Day.
Each transmission by the Company of a net purchase or redemption order shall
constitute a representation by the Company that such net order was based solely
on Instructions from Contract owners received by the Company prior to the Market
Close on the previous Business Day, and that such net order included all
Instructions so received by the Company. The Company shall maintain records
sufficient to identify the date and time of receipt of all Instructions
involving the Liberty Funds and shall make such records available upon request
for examination
by LFSI or its designated representative or, at the request of LFSI, by
appropriate governmental authorities.
(e) Extraordinary Events. The Company is not authorized to accept as
LFSI's agent any purchase or redemption of shares where such order is the result
of an "Extraordinary Event" of which the Company is aware, unless the Company
has notified LFSI of such order, by calling the Company's assigned Contact
Person, as soon as practicable following the Company becoming aware of the
Extraordinary Event and in no event later than 3:00 p.m. Eastern time on the
trade date, or as soon thereafter as is practicable. For these purposes, an
"Extraordinary Event" shall mean an event outside the normal operation of an
Account such as an entire Account moving into or out of the Company's account
with LFSI, or an asset transfer, merger, acquisition or divestiture. In
accordance with the prospectus of each Liberty Fund, LFSI reserves the right to
refuse any purchase order, or to delay settlement of any redemption order which
LFSI, in its sole discretion, deems disruptive or detrimental to the applicable
Liberty Fund.
(f) Wiring of Funds. In the case of a net purchase order, the Company
shall remit to LFSI the exact amount of requisite funds to cover such order by
Federal Funds wire by 4:00 p.m. Eastern Time on the Business Day on which the
transmission containing the net purchase order is transmitted to LFSI or, if
such day is not a Business Day, on the next Business Day (the "Settlement
Date"). If the Company becomes aware that LFSI may not receive, prior to the
Market Close on the Settlement Date, a wire transfer relating to a net purchase
order, the Company shall promptly inform LFSI of the facts and circumstances
thereof and shall cooperate with LFSI with the goal of LFSI receiving such
purchase proceeds as soon as reasonably possible. Notwithstanding the
immediately preceding sentence, if a wire transfer relating to an aggregate
purchase order is not received by LFSI prior to Market Close on the appropriate
Settlement Date, LFSI reserves the right to (i) charge the Company interest on
the amount of the delayed wire as provided below or (ii) redeem the shares for
which payment has not been received on any Business Day subsequent to the
appropriate Settlement Date if (A) LFSI has further notified the Company by no
later than 12:00 noon Eastern Time on the Business Day following the Settlement
Date that LFSI still has not received the delayed wire transfer relating to the
net purchase order and (B) LFSI still has not received the delayed wire by one
hour prior to Market Close on such subsequent Business Day.
In the case of a net redemption order, LFSI shall remit or cause to be
remitted to the Company the exact amount of requisite funds to cover such order
by Federal Funds wire sent by LFSI by 4:00 p.m. Eastern Time on the Business Day
that the transmission containing the net redemption order is received by LFSI
or, if such day is not a Business Day, on the next Business Day; provided,
however, that in the event that the Company's account in a Fund is redeemed in
full such that it will have a zero balance on such Business Day, LFSI reserves
the right to wire, or to cause to be wired, the redemption proceeds within the
time frame set forth in the applicable Fund prospectus. If LFSI becomes aware
that the Company may not receive the wire transfer relating to a net redemption
order by 4:00 p.m. Eastern Time on the appropriate date, LFSI shall promptly
inform the Company of the facts and circumstances thereof and shall cooperate
with the Company with the goal of the Company receiving such proceeds as soon as
reasonably possible. If such wire transfer is not received by the Company on the
appropriate date, LFSI shall pay the Company interest on the amount of the
delayed wire as provided below.
In the event that a wire is delayed, the interest owed shall be deemed to
be the interest cost on the delayed funds until paid, charged at the Federal
Funds "offered" rate as published by The Wall Street Journal.
(g) Transmission by LFSI of Share Price and Distribution Information. LFSI
shall transmit to the Company by 6:30 p.m. Eastern Time on each Business Day, by
on-line remote access or otherwise, a file identifying the net asset value per
share (or "share price") of the Funds as of the Market Close on that Business
Day. LFSI shall also transmit to the Company by 6:30 p.m. Eastern Time on the
first Business Day following each record date established for the payment of
dividends or capital gains distributions by a Fund a file containing the
dividend or capital gains distribution rate for such payment. The Company elects
to receive payment income, dividends and capital gains distributions in
additional shares of the Fund and it reserves the right to revoke this election
and it receive all such shares in cash. The Company shall not be entitled to
rely on any source of share price or distribution information other than such
transmission by LFSI. If LFSI is unable to provide the net asset value, dividend
and capital gain information to the Company by 6:30 p.m. on any Business Day,
the Company shall have the additional amount of time, equal to the amount of
time by which such information is provided late to the Company, to notify LFSI
of trades.
(h) Confirmations. LFSI shall transmit to the Company by 8:30 a.m. Eastern
Time on each Business Day a confirmation of any net purchase or redemption
orders for shares of the Liberty Funds with a Settlement Date of the second
preceding Business Day. However, on any Business Day that is the first Business
Day of the month, LFSI shall transmit such confirmation by 11:00 a.m. Eastern
Time.
(i) Processing Adjustments. Each business day the Company and LFSI will
reconcile their records so that an appropriate number of shares of each of the
Funds are credited to the Accounts invested in the various Funds with LFSI.
(a) In the event of any error (other than a Pricing Error, as
hereinafter defined) or delay with respect to the procedures outlined in
this Section 3 which is caused by LFSI, LFSI shall make any adjustments on
its accounting system necessary to correct such error or delay and shall
reimburse the Accounts for any losses or reasonable costs incurred
directly as a result of the error or delay.
(b) In the event of any error or delay with respect to the
procedures outlined in this Section 3 which is caused by the Company, the
Company shall adjust its records accordingly in order to correct such
error or delay. The Company will notify LFSI of the error and required
correction and shall reimburse LFSI for any losses or reasonable costs
incurred as a result of the error or delay. In the event of an error or
delay caused by the Company, LFSI will process any adjustment with the
trade date of the day such error or delay is identified by the Company to
LFSI.
(iii) The Company and LFSI, respectively, each agree to provide the
other prompt notice of any errors or delays of the type referred to in
this Section
3(a) and to use reasonable efforts to take such action as may be
appropriate to avoid or mitigate any such costs or losses.
(j) Pricing Errors. In the event of an error in the computation of an
Liberty Fund's net asset value per share which, in accordance with procedures
adopted by the Fund's Board of Directors consistent with views expressed by the
staff of the Securities and Exchange Commission regarding appropriate error
correction standards, as shall be in effect or amended from time to time,
requires adjustment to transactions previously effected on behalf of an Account
(a "Pricing Error"), LFSI shall notify the Company as soon as possible after
discovery of the Pricing Error. Such notification may be oral, but shall be
confirmed promptly in writing. In such event, LFSI shall reimburse the affected
Liberty Fund for any loss (without taking into consideration any positive effect
of such Pricing Error) and shall make appropriate adjustments to the Company's
accounts, which adjustments shall net the impact of individual Contract gains
and losses; this will result in either a net payment to the Account from the
Liberty Fund (in the event of net Contract losses) or from the Account to the
Liberty Fund (in the event of net Contract gains), but only to the extent the
Company is able to and does subtract such gains from the Contract's Account
Values. In addition, in the event that the Pricing Error causes the Company to
incur any direct costs for re-processing Contract accounts under an Account,
such as preparing and mailing revised statements, LFSI shall reimburse the
Company for all such reasonable costs upon receipt from the Company of an
invoice or other statement documenting such costs in reasonable detail.
4. Expenses.
(a) Except as otherwise provided in this Agreement, all expenses incident
to the performance by any Liberty Fund or LFSI under this Agreement shall be
paid by such Fund or LFSI, including the cost of registration of such Fund's
shares with the SEC and in states where required. All expenses incident to the
performance by the Company under this Agreement shall be paid by the Company.
(b) LFSI shall provide the Company, upon request, with sufficient copies
of the Liberty Fund's proxy material, periodic reports to shareholders,
prospectuses and other materials that are required by law to be sent to Fund
shareholders. In addition, LFSI shall provide the Company, upon request, with a
sufficient quantity of the Liberty Fund's prospectuses to be used in connection
with the Company's offerings and the transactions contemplated by this
Agreement. The cost of preparing and printing such materials shall be paid by
the Liberty Funds or LFSI, and the cost of distributing such materials shall be
paid by the Company; provided, however, that if at any time LFSI reasonably
deems the usage of such items to be excessive, LFSI may request that the Company
pay the cost of printing (including press time and paper) of any additional
copies of such materials requested by the Company.
5. Company Use of Liberty Funds Name. The Company agrees and acknowledges
that LFSI and Liberty Funds are the sole owner of their respective names and
marks , and that any and all use of any designation comprised in whole or in
part of the use of those names and marks under this Agreement shall inure to
their benefit. The use by the Company of those names and marks in any
advertisement or sales literature or other
promotional materials shall occur only with the prior consent of LFSI. Except to
the extent required by law, the Company shall not, without the prior consent of
LFSI, make written representations regarding the Liberty Funds, LFSI or any of
their affiliates, except those contained in the then current prospectus and in
the then current sales literature for the Liberty Funds.
6. Administration of Accounts. Administrative services to purchasers of
Contracts, including without limitation all record keeping, shall be the
responsibility of the Company and shall not be the responsibility of LFSI or any
Fund. LFSI shall recognize the appropriate Account as the sole shareholder of
each of the respective Fund shares issued to such Account under this Agreement.
7. Representations and Warranties. LFSI and the Company, respectively,
each represent that it has obtained and shall maintain all authorizations,
licenses, qualifications or registrations of any governmental body required of
it in connection with this Agreement and that such registrations are and will
remain in full force and effect during the term of this Agreement, and that it
will promptly notify the other party in the event that it is unable to perform
any of its obligations under this Agreement.
(a) The Company further represents and warrants that:
(i) It has full power and authority to enter into and perform
this Agreement; including but not limited to, the ability to use
publicly available securities as an investment option for the
Contracts; it further represents that the Diversification
requirements of Internal Revenue Code Section 817(h) and regulations
promulgated are not applicable to these Contracts;
(ii) (A) its internal control systems for the processing and
transmission of orders for the purchase and redemption of Fund
shares are designed to monitor, regulate and exclude orders received
after the Market Close on each Business Day from being aggregated
and communicated to LFSI or its designee with orders received before
Market Close on such Business Day (consistent with the requirements
of Section 22(c) of the Investment Company Act of 1940 and Rule
22c-1 thereunder and the registration statements of the Liberty
Funds); and (B) its internal control systems shall implement
commercially reasonable efforts, in accordance with general industry
standards, to assure that such processing of transactions occurs
without error or omission, and does not result in late transmission
of orders to LFSI; and
(iii) it is not required to be registered as broker-dealer
under any applicable federal securities laws as a result of entering
into and performing the services set forth in this Agreement; and
(iv) all purchases and redemptions of Liberty Fund shares
contemplated by this Agreement shall be effected in accordance with
the Liberty Fund's then current prospectus.
(b) LFSI further represents and warrants that:
(i) it is duly registered as a transfer agent under Section
17A of the Securities Exchange Act of 1934, as amended;
(ii) it is authorized to enter into this Agreement on behalf
of each Liberty Fund identified in Schedule B, and the performance
of its obligations hereunder does not and will not violate or
conflict with any governing documents or agreements with respect to
(A) any of the Liberty Funds or (B) any applicable law;
(iii) each Liberty Fund is an open-end investment company
registered under the Investment Company Act of 1940, as amended; and
(iv) a registration statement under the Securities Act of
1933, as amended, is current and appropriate state securities law
filings have been made and will continue to be made with respect to
all shares of the Liberty Funds being offered for sale.
8. Termination. This Agreement shall terminate as to the issuance of new
Contracts:
(a) at the option of either the Company or LFSI upon three months'
advance written notice to the other, or any mutually agreed upon time period;
(b) at the option of the Company if either the Liberty Funds' shares
are not available for any reason to meet the requirements of the Contracts as
determined by the Company, provided that reasonable advance notice of election
to terminate shall be furnished by the Company;
(c) at the option of either the Company or LFSI upon the taking of
any material action or the institution of proceedings against the broker-dealer
or broker-dealers marketing the Contracts, the Accounts, Liberty Funds by the
NASD, the SEC or any other regulatory body;
(d) upon assignment of this Agreement unless made with the written
consent of the other party hereto; or
(e) if the Liberty Funds' shares are not registered, issued or sold
in compliance with federal law or such law precludes the use of Liberty Fund
shares as the underlying investment medium of Contracts issued or to be issued
by the Company, provided that prompt notice shall be given by either party
should such situation occur.
9. Continuation of Agreement. Termination as a result of any cause
listed in the preceding paragraph shall not affect LFSI's obligation to furnish
shares of the Funds to Contracts then in force for which shares of the Liberty
Funds serve or may serve as the underlying
investment medium unless such further sale of Liberty Fund shares is proscribed
by law or the SEC or other regulatory body.
10. Advertising Materials; Filed Documents.
(a) All advertising and literature with respect to the funds, other
than those which merely name the funds as an investment option and its
investment objective, prepared by the Company or its agents for use in marketing
the Contracts will be submitted to LFSI for review and acceptance in their sole
discretion before such material is first used.
(b) LFSI will provide to the Company at least one complete copy of
all registration statements, prospectuses, statements of additional information,
annual and semi-annual reports, proxy statements and all amendments or
supplements to any of the above that relate to the Funds promptly after the
filing of such documents with the SEC or other regulatory authorities.
11. Proxy Voting. The Company, as the sole shareholder of the Funds'
shares issued under this Agreement, shall vote such shares in accordance with
instructions received from persons having a voting interest in the Fund.
12. Diversification. Liberty Funds and LFSI each represent that each
Liberty Fund has elected to be qualified as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code of 1986, as amended, and each will
maintain such qualification (under Subchapter M or any successor or similar
provision). Without limiting the scope of the foregoing, each Liberty Fund and
LFSI represents and warrants that it will, at a minimum, meet the
diversification requirements of Section 5(b)(1) of the Investment Company Act of
1940 ("Act"), relating to the diversification requirements for open-end
management companies, and any amendments or other modifications to such Section,
as if those requirements applied directly to each Liberty Fund. Notwithstanding
the foregoing, for any Liberty Fund that is structured as a 'Fund of Funds', the
foregoing representations regarding diversification are made on behalf of the
underlying funds, and not the Fund of Funds.
13. Indemnification.
(a) The Company agrees to indemnify and hold harmless LFSI and each
of their respective directors, officers, employees, agents and each person, if
any, who controls it within the meaning of the Act against any losses, claims,
damages or liabilities to which LFSI or any such director, officer, employee,
agent or controlling person may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue statement of any material
fact contained in the current registration statement, prospectus or sales
literature of the Company or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) the Company's lack of good faith, gross negligence
or willful misconduct in carrying out its duties and responsibilities under this
Agreement or (iii) any breach by the Company of any representation, warranty or
covenant made in this Agreement. The Company will reimburse any legal or other
expenses reasonably incurred
by LFSI or any such director, officer, employee, agent, investment adviser or
controlling person in connection with investigating or defending any such loss,
claim, damage, liability or action; provided, however, that the Company will not
be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or omission or
alleged omission made in such registration statements, prospectuses or sales
literature in conformity with then current written materials furnished to the
Company by LFSI specifically for use therein. This indemnity agreement will be
in addition to any liability which the Company may otherwise have.
(b) LFSI agrees to indemnify and hold harmless the Company and each
of its directors, officers, employees, agents and each person, if any, who
controls the Company within the meaning of the Act against any losses, claims,
damages or liabilities to which the Company or any such director, officer,
employee, agent or controlling person may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon (i) any untrue statement of any
material fact contained in the current registration statement, prospectus or
sales literature of the Liberty Funds or the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) LFSI's lack of good faith, gross
negligence or willful misconduct in carrying out its duties and responsibilities
under this Agreement or (iii) any breach by LFSI of any representation, warranty
or covenant made in this Agreement. LFSI will reimburse any legal or other
expenses reasonably incurred by the Company or any such director, officer,
employee, agent, investment adviser or controlling person in connection with
investigating or defending any such loss, claim, damage, liability or action;
provided, however, that LFSI will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based upon an
untrue statement or omission or alleged omission made in such registration
statements, prospectuses or sales literature in conformity with then current
written materials furnished to LFSI by the Company specifically for use therein.
This indemnity agreement will be in addition to any liability, which LFSI may
otherwise have.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of an action, such indemnified party will, if a claim
in respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party of the commencement thereof; but the omission to
so notify the indemnifying party will not relieve it form any liability which it
may have to any indemnified party otherwise than under this Section 14. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish to, assume
the defense thereof, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party of
its election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 12 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
15. Miscellaneous.
(a) Amendment and Waiver. Neither this Agreement, nor any provision
hereof, may be amended, waived, discharged or terminated orally, but only by an
instrument in writing signed by all parties hereto.
(b) Notices. All notices and other communications hereunder shall be
given or made in writing and shall be delivered personally, or sent by fax,
telex, telecopier or registered or certified mail, postage prepaid, return
receipt requested, to the party or parties to whom they are directed at the
following addresses, or at such other addresses as may be designated by notice
from such party to all other parties:
To the Company:
American International Life
Assurance Company of New York
Pensions Department
00 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxxxx
To Liberty Funds Services Inc.:
Liberty Funds Services, Inc.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: ______________
Any notice, demand or other communication given in a manner prescribed in this
subsection (b) shall be deemed to have been delivered on receipt.
(b) Successors and Assigns. This Agreement shall be binding upon and
insure to the benefit of the parties hereto and their respective permitted
successors and assigns.
(c) Back-up Files. The Company shall maintain back-up files stored
in an appropriate location at no cost to LFSI. The purpose of backup and
recovery procedures is to permit file recovery in the event of disruption of
normal processing.
(d) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without giving effect to
the principles of conflicts of law thereof.
(e) Compliance with Applicable Laws. The Company and LFSI will
conduct each of the activities pursuant to this Agreement in compliance with all
applicable laws, rules and regulations, including, but not limited to, the
securities laws governing the sale of mutual fund shares.
(f) Anti-Money Laundering Policies. To the extent legally required,
the Company and Liberty Funds agree to comply with all money laundering rules,
regulations and
government guidance, including but not limited to, cash and suspicious activity
reporting and recordkeeping requirements, as well as creation and implementation
of policies, procedures and internal controls in order to ensure compliance.
(g) Authorized Persons. For purposes of this Agreement, the Company
will designate "Authorized Persons" entitled to act on its behalf in connection
with this Agreement. "Authorized Person" will mean any officer or employee of
the Company properly designated by the Company.
(h) Confidentiality. Subject to the requirements of legal process
and regulatory authority, each party hereto shall treat as confidential the
names and addresses of the owners of the Contracts and all information
reasonably identified as confidential in writing by any other party hereto and,
except as permitted by this Agreement, shall not (unless it has obtained the
express written consent of the affected party) disclose, disseminate or utilize
such names and addresses and other confidential information, except as may be
required in order to fulfill its obligations under this Agreement, until such
time as it may come into the public domain, except to the extent that such names
and addresses were rightfully in a party's possession free of any obligation of
confidentiality at or subsequent to the time such names and addresses were
communicated to such party by the other party.
(i) Counterparts. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
(j) Severability. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
(k) Entire Agreement. This Agreement constitutes the entire
agreement and understanding between the parties hereto with regard to the
Company's utilizing the Liberty Funds identified herein in the Contracts and
supersedes all prior agreements and understandings relating to the subject
matter hereof.
IN WITNESS WHEREOF, the undersigned have executed this Agreement by
their duly authorized officers as of the day and year first above written.
AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK
By:___________________________________
Its:__________________________________
Agreed and accepted as to Paragraph 12 (Diversification)
LIBERTY FUNDS
By:___________________________________
Its:__________________________________
LIBERTY FUNDS SERVICES, INC.
By:_________________________________
Its:_________________________________
SCHEDULE A
THE ACCOUNTS
Variable Account A of American International Life Assurance Company of New York
SCHEDULE B
THE FUNDS
Liberty High Yield Securities Fund
Liberty Newport Tiger Fund
