AGREEMENT
THIS AGREEMENT ("Agreement") made as of November 15, 1999, is by and between XXX
XXXXXX ASSET MANAGEMENT INC., a Delaware corporation ("Adviser") and PREFERRED
LIFE INSURANCE COMPANY OF NEW YORK, a New York corporation ("COMPANY").
WITNESSETH:
WHEREAS, each of the investment companies listed on SCHEDULE ONE hereto
("SCHEDULE ONE," as the same may be amended from time to time), is registered as
an open-end management investment company under the Investment Company Act of
1940, as amended (the "Act") (such investment companies are hereinafter
collectively called the "Funds," or each a "Fund"); and
WHEREAS, each of the Funds is available as an investment vehicle for COMPANY for
its separate account to fund certain variable life insurance policies and/or
variable annuity contracts identified on SCHEDULE TWO hereto ("SCHEDULE TWO," as
the same may be amended from time to time) (the "Contracts"); and
WHEREAS, COMPANY has entered into a participation agreement dated [DATE], among
COMPANY, Adviser, Xxx Xxxxxx Funds Inc. ("Underwriter"), and the Funds (the
"Participation Agreement," as the same may be amended from time to time); and
WHEREAS, Adviser provides, among other things, investment advisory and/or
administrative services to the Funds; and
WHEREAS, Adviser desires COMPANY to provide the administrative services
specified in the attached EXHIBIT A ("Administrative Services"), in connection
with the Contracts for the benefit of persons who maintain their ownership
interests in the separate account, whose interests are included in the master
account ("Master Account") referred to in paragraph I of EXHIBIT A
("Shareholders"), and COMPANY is willing and able to provide such Administrative
Services - on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, each party hereto severally agrees as follows:
1. COMPANY agrees to perform the Administrative Services specified in EXHIBIT
A hereto for the benefit of the Shareholders.
2. COMPANY represents and agrees that it will maintain and preserve all
records as required by law to be maintained and preserved in connection
with providing the Administrative Services, and will otherwise comply with
all laws, rules and regulations applicable to the Administrative Services.
3. COMPANY agrees to provide copies of all the historical records relating to
transactions between the Funds and Shareholders, and all written
communications and other related materials regarding the Fund(s) to or from
such Shareholders, as reasonably requested by Adviser or its
representatives (which representatives, include, without limitation, its
auditors, legal counsel or the Underwriter, as the case may be), to enable
Adviser or its representatives to monitor and review the Administrative
Services performed by COMPANY, or comply with any request of the board of
directors, or trustees or general partners (collectively, the "Directors")
of any Fund, or of a governmental body, self-regulatory organization or
Shareholder.
In addition, COMPANY agrees that it will permit Adviser, the Funds or their
representatives, to have reasonable access to its personnel and records in
order to facilitate the monitoring of the quality of the Administrative
Services.
4. COMPANY may, with the consent of Adviser, contract with or establish
relationships with other parties for the provision of the Administrative
Services or other activities of COMPANY required by this Agreement, or the
Participation Agreement, provided that COMPANY shall be fully responsible
for the acts and omissions of such other parties.
5. COMPANY hereby agrees to notify Adviser promptly if for any reason it is
unable to perform fully and promptly any of its obligations under this
Agreement.
6. COMPANY hereby represents and covenants that it does not, and will not, own
or hold or control with power to vote any shares of the Funds which are
registered in the name of COMPANY or the name of its nominee and which are
maintained in COMPANY variable annuity or variable life insurance accounts.
COMPANY represents further that it is not registered as a broker-dealer
under the Securities Exchange Act of 1934, as amended (the"1934 Act"), and
it is not required to be so registered, including as a result of entering
into this Agreement and performing the Administrative Services, and other
obligations of COMPANY set forth in this Agreement.
7. The provisions of the Agreement shall in no way limit the authority of
Adviser, or any Fund or Underwriter to take such action as any of such
parties may deem appropriate or advisable in connection with all matters
relating to the operations of any of such Funds and/or sale of its shares.
8. In consideration of the performance of the Administrative Services by
COMPANY with respect to the Contracts, beginning on the date hereof and
during the term of the Participation Agreement, Adviser agrees to pay
COMPANY an annual fee which shall equal 0.25% (25 basis points) of the
value of each Fund's assets in the Contracts maintained in the Master
Account for the Shareholders (excluding all assets invested during the
guarantee periods available under the Contracts). The determination of
applicable assets shall be made by averaging assets in applicable Funds as
of the last Valuation Date (as defined in the prospectus relating to the
Contracts) of each month falling within the applicable calendar year. The
foregoing fee will be paid by Adviser to COMPANY on a calendar year basis,
and in this regard, payment of such fee will be made by Adviser to COMPANY
within thirty (30)
days following the end of each calendar year.
Notwithstanding anything in this Agreement or the Participation Agreement
appearing to the contrary, the payments by Adviser to COMPANY relate solely
to the performance by COMPANY of the Administrative Services described
herein only, and do not constitute payment in any manner for services
provided by COMPANY to COMPANY policy or contract owners, or to any
separate account organized by COMPANY, or for any investment advisory
services, or for costs associated with the distribution of any variable
annuity or variable life insurance contracts.
9. COMPANY shall indemnify and hold harmless each of the Funds, Adviser and
Underwriter and each of their respective officers, Directors, employees and
agents from and against any and all losses, claims, damages, expenses, or
liabilities that any one or more of them may incur including without
limitation reasonable attorneys' fees, expenses and costs arising out of or
related to the performance or non-performance by COMPANY of the
Administrative Services under this Agreement.
10 This Agreement may be terminated without penalty at any time by COMPANY or
by Adviser as to one or more of the Funds collectively, upon sixty (60)
days written notice to the other party. Notwithstanding the foregoing, the
provisions of paragraphs 2, 3, 9 and 11 of this Agreement, shall continue
in full force and effect after termination of this Agreement.
This Agreement shall not require COMPANY to preserve any records (in any
medium or format) relating to this Agreement beyond the time periods
otherwise required by the laws to which COMPANY or the Funds are subject
provided that such records shall be offered to the Funds in the event
COMPANY decides to no longer preserve such records following such time
periods.
11. After the date of any termination of this Agreement in accordance with
paragraph 10 of this Agreement, no fee will be due with respect to any
amounts in the Contracts first placed in the Master Account for the benefit
of Shareholders after the date of such termination. However,
notwithstanding any such termination, Adviser will remain obligated to pay
COMPANY the fee specified in paragraph 8 of this Agreement, with respect to
the value of each Fund's average daily net assets maintained in the Master
Account with respect to the Contracts as of the date of such termination,
for so long as such amounts are held in the Master Account and COMPANY
continues to provide the Administrative Services with respect to such
amounts in conformity with this Agreement. This Agreement, or any provision
hereof, shall survive termination to the extent necessary for each party to
perform its obligations with respect to amounts for which a fee continues
to be due subsequent to such termination.
12. COMPANY understands and agrees that the obligations of Adviser under this
Agreement are not binding upon any of the Funds, upon any of their Board
members or upon any shareholder of any of the Funds.
13. It is understood and agreed that in performing the services under this
Agreement COMPANY, acting in its capacity described herein, shall at no
time be acting as an agent for Adviser, Underwriter or any of the Funds.
COMPANY agrees, and agrees to cause its agents, not to make any
representations concerning a Fund except those contained in the
Fund's then-current prospectus; in current sales literature furnished by
the Fund, Adviser or Underwriter to COMPANY; in the then current prospectus
for a variable annuity contract or variable life insurance policy issued by
COMPANY or then current sales literature with respect to such variable
annuity contract or variable life insurance policy, approved by Adviser.
14. This Agreement, including the provisions set forth herein in paragraph 8,
may only be amended pursuant to a written instrument signed by the party to
be charged. This Agreement may not be assigned by a party hereto, by
operation of law or otherwise, without the prior written consent of the
other party.
15. This Agreement shall be governed by the laws of the State of Illinois,
without giving effect to the principles of conflicts of law of such
jurisdiction.
16. This Agreement, including EXHIBIT A and SCHEDULES ONE and TWO, constitutes
the entire agreement between the parties with respect to the matters dealt
with herein and supersedes any previous agreements and documents with
respect to such matters. The parties agree that SCHEDULES ONE and TWO may
be replaced from time to time with new SCHEDULES ONE or TWO, as
appropriate, to accurately reflect any changes in the Funds available as
investment vehicles under the Participation Agreement.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
PREFERRED LIFE INSURANCE COMPANY OF NEW YORK
By: /s/ Xxxxxxx X. Xxxxxxxxxxx
Its: Secretary
XXX XXXXXX ASSET MANAGEMENT INC.
By: /s/ Xxxxxx X. XxXxxxxxx
President
SCHEDULE ONE
INVESTMENT COMPANY NAME: FUND NAME(S):
Xxx Xxxxxx Life Investment Trust Growth and Income Portfolio
Enterprise Portfolio
SCHEDULE TWO
LIST OF CONTRACTS
1. Preferred Life U.S. Allianz Alterity.
EXHIBIT A
Pursuant to the Agreement by and among the parties hereto, COMPANY shall perform
the following Administrative Services:
1. Maintain separate records for each Shareholder, which records shall reflect
shares purchased and redeemed for the benefit of the Shareholder and share
balances held for the benefit of the Shareholder. COMPANY shall maintain
the Master Account with the transfer agent of the Fund on behalf of
Shareholders and such Master Account shall be in the name of COMPANY or its
nominee as the record owner of the shares held for such Shareholders.
2. For each Fund, disburse or credit to Shareholders all proceeds of
redemptions of shares of the Fund and all dividends and other distributions
not reinvested in shares of the Fund or paid to the Separate Account
holding the Shareholders' interests.
3. Prepare and transmit to Shareholders periodic account statements showing
the total number of shares held for the benefit of the Shareholder as of
the statement closing date (converted to interests in the Separate
Account), purchases and redemptions of Fund shares for the benefit of the
Shareholder during the period covered by the statement, and the dividends
and other distributions paid for the benefit of the Shareholder during the
statement period (whether paid in cash or reinvested in Fund shares).
4. Transmit to Shareholders proxy materials and reports and other information
received by COMPANY from any of the Funds and required to be sent to
Shareholders under the federal securities laws and, upon request of the
Fund's transfer agent, transmit to Shareholders material Fund
communications deemed by the Fund, through its Board of Directors or other
similar governing body, to be necessary and proper for receipt by all Fund
beneficial shareholders.
5. Transmit to the Fund's transfer agent purchase and redemption orders on
behalf of Shareholders.
6. Provide to the Funds, or to the transfer agent for any of the Funds, or any
of the agents designated by any of them, such periodic reports as shall
reasonably be concluded to be necessary to enable each of the Funds and its
Underwriter to comply with any applicable State Blue Sky requirements.
