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EXHIBIT 9.3
PM SUPPORT SERVICES AGREEMENT
This AGREEMENT is made this ____ day of __________, 1996 by and
between Pacific Innovations Trust, a Delaware business trust (the "Fund"), and
Pacific Mutual Life Insurance Company (the "Servicer" or "PM"), a California
mutual life insurance company.
WHEREAS, the Pacific Innovations Trust (the "Fund") is registered
with the Securities and Exchange Commission ("SEC") as an open- end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"); and
WHEREAS, the Fund is authorized to issue shares of beneficial
interest ("Shares") in separate portfolios with each such portfolio
representing interests in a separate portfolio of securities and other assets;
and
WHEREAS, the Fund initially established eight (8) portfolios,
which are designated as the Money Market Portfolio, Managed Bond Portfolio,
Capital Income Portfolio, Blue Chip Portfolio, Mid-Cap Equity Portfolio,
International Portfolio and Aggressive Growth Portfolio being herein
individually referred to as each "Portfolio" or collectively referred to as the
"Portfolios"; and
WHEREAS, the Fund is available to offer shares of one or more of
its Portfolios to the separate accounts of PM that fund variable annuity
contracts ("Variable Contracts") and to serve as an investment medium for
Variable Contracts offered by PM and other portfolios as may be established in
the future; and
WHEREAS, pursuant to a Management Agreement between the Fund and
Bank of America NT&SA ("Management Agreement") the Fund has retained Bank of
America NT&SA ("BofA") to provide investment advisory services with respect to
the Portfolios in the manner and on the terms thereinafter set forth; and
WHEREAS, pursuant to the Management Agreement, the Fund has also
retained BofA to provide certain administrative and management services with
respect to the Portfolios in the manner and on the terms thereinafter set
forth; and
WHEREAS, the Fund wishes to retain PM to provide certain support
services to the Fund with respect to the Portfolios in the manner and on the
terms hereinafter set forth; and
WHEREAS, PM is willing to furnish such in the manner and on the
terms hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, the parties agree as follows:
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1. Appointment. The Fund hereby appoints PM as the support
servicer (the "Servicer") to provide the administrative and other services with
respect to the Portfolios for the period and on the terms set forth in this
Agreement. The Servicer accepts such appointment and agrees during such period
to render the services herein set forth for the compensation herein provided.
In the event the Fund establishes and designates additional
portfolios with respect to which it desires to retain the Servicer to render
administrative and other services hereunder, it shall notify the Servicer in
writing. If the Servicer is willing to render such services it shall notify
the Fund in writing, whereupon such additional portfolios shall become a
Portfolio hereunder.
2. Duties. Subject to the general supervision of the
Trustees, the Servicer shall provide those support services reasonably
necessary for the operation of the Portfolio other than the administrative
services and investment advisory services provided by BofA pursuant to the
Management Agreement.
(a) Support Services. The Servicer shall initially
provide the Fund and the Portfolios, at the Servicer's expense,
with the services necessary to organize the Fund so that the Fund
can conduct business as described in its Registration Statement.
(b) The services hereunder shall also include the
following: (i) coordinating matters relating to the operation of
the Separate Account with the Portfolios, including any necessary
coordination with the custodian, transfer agent, dividend
disbursing agent, and recordkeeping agent, accountants, attorneys,
and other parties performing services or operational functions for
the Portfolios; (ii) maintaining such appropriate books and
records of the Separate Accounts, including contractowner
information as may be required by applicable federal or state law;
(iii) providing information periodically to contractowners showing
their interest in the Separate Accounts or subaccounts thereof
that invest in the Fund or in any Portfolios thereof; (iv)
addressing inquiries for contractowners relating to investing,
exchanging or transferring, or redeeming interests under the
Variable Contract and the Separate Account or subaccounts or any
Portfolios thereof funding such Variable Contracts, which
inquiries may relate to the Fund or a Portfolio thereof; (v)
providing explanations to owners regarding Fund investment
objectives and policies and other information about the Fund and
its Portfolios, including the performance of the Portfolios; (vi)
delivering any notices of shareholder meetings and proxy
statements accompanying such notices in connection with general
and special meetings of shareholders of the Fund under which
contractowner may have voting rights, and tabulating the voting of
contractowners tendering voting instructions to the Separate
Account; (vii) coordinating the preparation of the necessary
documents with the SEC and other federal and state regulatory
authorities as may be required; and (viii) taking such
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other action as may be required by applicable law, with respect to
the foregoing, including without limitation the rules and
regulations of the SEC and of state insurance authorities and
other regulatory agencies.
(c) The Servicer shall also make its officers and
employees available to the Trustees and officers of the Fund for
consultation and discussions regarding the administration of the
Portfolios and services provided to the Portfolios under this
Agreement.
(d) In performing these services, the Servicer:
(i) Shall conform with the 1940 Act and all
rules and regulations thereunder, all other applicable
federal and state laws and regulations, with any
applicable procedures adopted by the Fund's Trustees, and
with the provisions of the Fund's Registrations Statement
filed on Form N-1A as supplemented or amended from time to
time.
(ii) Will make available to the Fund, promptly
upon request, appropriate books and records as are
maintained under this Agreement, and will furnish to
regulatory authorities having the requisite authority any
such books and records and any information or reports in
connection with the Servicer's services under this
Agreement that may be requested in order to ascertain
whether the operations of the Fund are being conducted in
a manner consistent with applicable laws and regulations.
(iii) Will regularly report to the Fund's
Trustees on the services provided under this Agreement and
will furnish the Fund's Board of Trustees with respect to
the Portfolios such periodic and special reports as the
Trustees may reasonably request.
3. Documentation. The Fund has delivered copies of each of
the following documents to the Servicer and will deliver to it all future
amendments and supplements thereto, if any:
(a) the Fund's Registration Statement as filed with
the SEC and any amendments thereto; and
(b) exhibits, powers of attorneys, certificates and
any and all other documents relating to or filed in connection
with the Registration Statement described above.
4. Independent Contractor. The Servicer shall for all
purposes herein be deemed to be an independent contractor and shall, unless
otherwise expressly provided
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herein or authorized by the Board of Trustees of the Fund from time to time,
have no authority to act for or represent the Fund in any way or otherwise be
deemed its agent.
5. Service Fee. As compensation for the services rendered
under this Agreement, the Fund shall pay to the Servicer a fee based on the
average daily net assets of each of the Portfolios at an annual rate of .16%.
The fees payable to the Servicer for all of the Portfolio shall be computed and
accrued daily and paid monthly. If the Servicer shall serve for less than any
whole month, the foregoing compensation shall be prorated.
6. Non-Exclusivity. It is understood that the services of
the Servicer hereunder are not exclusive, and the Servicer shall be free to
render similar services to other investment companies and other clients.
7. Expenses. During the term of this Agreement, the Servicer
will pay all ordinary expenses incurred by it in connection with its
obligations under this Agreement.
8. Liability. The Servicer shall give the Fund the benefit
of the Servicer's best effort in rendering services under this Agreement. The
Servicer may rely on information reasonably believed by it to be accurate and
reliable. As an inducement for the Servicer's undertaking to render services
under this Agreement, the Fund agrees that neither the Servicer nor its
officers, directors, or employees shall be subject to any liability for any
damages, expenses or losses incurred in connection with, any act or omission or
mistake in judgment connected with or arising out of any services rendered
under this Agreement, except by reason of willful misfeasance, bad faith, or
negligence in performance of the Servicer's duties, or by reason of reckless
disregard of the Servicer's obligations and duties under this Agreement. This
provision shall govern only the liability to the Fund of the Servicer and that
of its officers, directors, and employees, and shall in no way govern the
liability to the Fund or the Servicer or provide a defense for any other person
including persons that provide services for the Portfolios as described in
Section 2(b) of this Agreement.
9. Terms and Continuation. This Agreement shall take effect
as of the date indicated above, and shall remain in effect, unless sooner
terminated as provided herein, for two years from such date, and shall continue
thereafter on an annual basis with respect to the Portfolios provided that such
continuance is specifically approved at least annually (a) by the vote of a
majority of the Board of Trustees of the Fund, or (b) by vote of a majority of
the outstanding voting shares of the Portfolios, and provided continuance is
also approved by the vote of a majority of the Board of Trustees of the Fund
who are not parties to this Agreement or "interested persons" (as defined in
the 0000 Xxx) of the Fund, or PM, cast in person at a meeting called for the
purpose of voting on such approval.
This Agreement may be terminated:
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(a) by the Fund at any time with respect to the
services provided by the Servicer, by vote of a majority of the
entire Board of Trustees of the Fund or by a vote of a majority of
the outstanding voting shares of the Fund or, with respect to a
particular Portfolio, by vote of a majority of the outstanding
voting shares of such Portfolio, on sixty (60) days' written
notice to the Servicer;
(b) by the Servicer at any time, without the payment
of any penalty, upon sixty (60) days' written notice to the Fund.
10. Notices. Notices of any kind to be given to the Servicer
by the Fund shall be in writing and shall be duly given if mailed or delivered
to the Servicer at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Law Department , or to such other address or to such individual as
shall be specified by the Servicer. Notices of any kind to be given to the
Fund by the Servicer shall be in writing and shall be duly given if mailed or
delivered to, _________________ or to such other address or to such individual
as shall be specified by the Fund.
11. Fund Obligations. A copy of the Fund's Agreement and
Declaration of Trust is on file with the Secretary of the state of Delaware and
notice is hereby given that the Agreement has been executed on behalf of the
Trust by a trustee of the Trust in his or her capacity as trustee and not
individually. The obligations of this Agreement shall only be binding upon the
assets and property of the Fund and shall not be binding upon any trustee,
officer, or shareholders of the Fund individually.
12. Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original.
13. Miscellaneous.
(a) This Agreement shall be governed by the laws of
California, provided that nothing herein shall be construed in a
manner inconsistent with the 1940 Act, the Investment Advisers Act
of 1940, or any rule or order of the SEC thereunder.
(b) If any provisions of this Agreement shall be held
or made invalid by a court decision, statute, rule or otherwise,
the remainder of this Agreement shall not be affected thereby and,
to this extent, the provisions of this Agreement shall be deemed
to be severable. To the extent that any provision of this
Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise with regard to any party hereunder,
such provisions with respect to other parties hereto shall not be
affected thereby.
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(c) The captions in this Agreement are included for
convenience only and in no way define any of the provisions hereof
or otherwise affect their construction or effect.
(d) This Agreement may not be assigned by the Fund
or the Servicer without the consent of the other party.
IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed by their officers designated below on the day and year first
above written.
PACIFIC INNOVATIONS TRUST,
a Delaware business trust
By: ________________________
By: ________________________
PACIFIC MUTUAL LIFE INSURANCE COMPANY,
a California mutual life insurance
Company
By: ________________________________
By: ________________________________
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