Exhibit 8(d)
AGREEMENT
THIS AGREEMENT ("Agreement") made as of December 1, 1998, is by and between
OFFITBANK, a New York chartered trust company ("Adviser") and THE UNITED STATES
LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK, a New York corporation ("USL").
W I T N E S S E T H:
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 called
the "Funds," whether one or more); and
WHEREAS, each of the Funds is available as the investment vehicle for certain
separate accounts of USL, established for variable life insurance policies
and/or variable annuity contracts offered by USL (the "Separate Account,"
whether one or more); and
WHEREAS, USL has entered into a participation agreement dated December 1, 1998
among USL, American General Securities Incorporated, Advisor, the Funds and
OFFIT Funds Distributor Inc. (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, OFFIT Funds Distributor Inc. ("Distributor") is the distributor of the
Funds; and
WHEREAS, Adviser desires USL to provide the administrative services specified in
the attached Exhibit A ("Administrative Services"), in connection with the
ownership of interests of the Separate Account, which is the owner of shares of
the Funds for the benefit of persons who are the holders of variable life
insurance policies or variable annuity contracts, and who have directed USL to
invest all or a portion of their interests in the Separate Account in shares of
the Funds and whose respective interests in shares owned by the Separate Account
are included in the master account ("Master Account") referred to in paragraph 1
of Exhibit A ("Shareholders"), and USL is willing and able to provide
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. USL agrees to perform the Administrative Services for the benefit of the
Shareholders.
2. USL 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. USL agrees to provide copies of all the historical records relating to
transactions between the Funds and the Separate Account and relating to the
respective interests of Shareholders in shares of the Funds owned by the
Separate Account, and all written communications and other related materials
regarding the Funds which have been sent to or received from such
Shareholders, as reasonably requested by Adviser or its representatives
(which representatives, include, without limitation, its auditors, legal
counsel or the Underwriter), to enable Adviser or its representatives to
monitor and review the Administrative Services performed by USL, or comply
with any request of the board of directors, or trustees or general partners
(collectively, the "Directors") of any of the Funds, or of a governmental
body, self-regulatory organization or Shareholder.
In addition, USL agrees that it will permit Adviser, the Funds and 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. USL 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 USL required by this Agreement, or the
Participation Agreement, provided that USL shall be fully responsible for the
acts and omissions of such other parties.
5. USL 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. USL 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 USL or the name of its nominee and which are
maintained in USL variable annuity or variable life insurance accounts. USL
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 USL set forth in this Agreement.
7. The provisions of the Agreement shall in no way limit the authority of
Adviser, or any of the Funds or Distributor 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 Administrative Services by USL,
Adviser agrees to pay USL the following fees:
a. in connection with the OFFITBANK VIF-Emerging Markets Fund, Adviser shall
pay USL a monthly fee at an annual rate which shall equal (i) .135% of the
first $200 Million of the Fund's average monthly net assets maintained in
the Master Account for the Shareholders; and (ii) .12% of the Fund's
average monthly net assets maintained in the Master Account for the
Shareholders in excess of the first $200 Million;
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b. in connection with the OFFITBANK VIF-High Yield Fund, Adviser shall pay
USL a monthly fee at an annual rate which shall equal (i) .1275% of the
first $200 Million of the Fund's average monthly net assets maintained in
the Master Account for the Shareholders; and (ii) .1125% of the Fund's
average monthly net assets maintained in the Master Account for the
Shareholders in excess of the first $200 Million.
c. in connection with the OFFITBANK VIF-Total Return Fund, Adviser shall pay
USL a monthly fee at an annual rate which shall equal to .105% of the
Fund's average monthly net assets maintained in the Master Account for the
Shareholders, with a reservation by OFFITBANK to adjust the rate
respecting the OFFITBANK VIF-Total Return Fund only, to be exercised, if
at all, one year from the effective date of this Agreement, to the extent
experience warrants, as determined in OFFITBANK's sole discretion.
d. in connection with the OFFITBANK VIF-U.S. Government Securities, Adviser
shall pay USL a monthly fee at an annual rate which shall equal .06% of
the Fund's average monthly net assets maintained in the Master Account for
the Shareholders.
The foregoing fees will be paid by Adviser to USL on a calendar quarterly basis,
and in this regard, payment of such fee will be made by Adviser to USL within
thirty (30) days following the end of each calendar quarter. The determination
of applicable assets shall be made by averaging the assets of the applicable
portfolios of the Funds maintained in the Master Account for the Shareholders as
of the last Business Day (as defined in the Participation Agreement) of each
month falling within the applicable calendar quarter.
Notwithstanding anything in this Agreement or the Participation Agreement
appearing to the contrary, the payments by Adviser to USL are being made solely
in consideration of USL providing Administrative Services as described herein
only, and do not constitute payment in any manner for services provided by USL
to USL policy or contract owners, or to any separate account organized by USL,
or for any investment advisory services, or for costs associated with the
distribution of any variable annuity or variable life insurance contracts.
9. USL shall indemnify and hold harmless each of the Funds, Adviser and
Distributor 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 USL of the Administrative
Services under this Agreement.
10. This Agreement may be terminated without penalty at any time by USL or by
Adviser as to one or more of the Funds collectively, upon one hundred and
eighty days (180) 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.
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This Agreement shall not require USL to preserve any records (in any medium
or format) relating to this Agreement beyond the time periods otherwise
required by the laws to which USL or the Funds are subject provided that
such records shall be offered to the Funds in the event USL 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 first placed in the Master Account for the benefit of Shareholders
after the date of such termination or any earnings thereon. However,
notwithstanding any such termination, Adviser will remain obligated to pay
USL the fee specified in paragraph 8 of this Agreement, with respect to that
portion of the value of each of the Funds' average monthly net assets
reflected in the Master Account that is attributable to shares of the Fund
held by the Separate Account as of the date of such termination and all
earning thereon, for so long as USL continues to provide the Administrative
Services with respect to such holdings in conformity with this Agreement.
This Agreement and each provision hereof, shall survive termination so as to
govern the rights and obligations of each party with respect to the holdings
of shares of the Fund for which a fee continues to be due subsequent to such
termination and Administrative Services relating thereto.
12. USL 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 USL, acting in its capacity described herein, shall at no time be
acting as an agent for Adviser, Distributor or any of the Funds. USL
agrees, and agrees to cause its agents, not to make any representations
concerning any of the Funds except those contained in the Funds' then-
current prospectus; in current sales literature furnished by the Funds,
Adviser or Distributor to USL; in the then current prospectus for a variable
annuity contract or variable life insurance policy issued by USL 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 either 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 Texas, without
giving effect to the principles of conflicts of law of such jurisdiction.
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16. This Agreement, including Exhibit A and Schedule One, 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 Schedule One may be replaced from time to
time with a new Schedule One 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.
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
By: /s/ XXXXX X. XXXXXXXX
---------------------------------
Xxxxx X. Xxxxxxxx
Vice President
OFFITBANK
By: /s/ XXXXXXX X. XXXXX
-----------------------------------
Name: Xxxxxxx Xxxxx Xxxxx
Title: Managing Director
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SCHEDULE ONE
FUNDS: AVAILABLE PORTFOLIOS OF THE FUNDS:
OFFITBANK Variable Insurance Fund, Inc. OFFITBANK VIF-Emerging Markets Fund
OFFITBANK VIF-High Yield Fund
OFFITBANK VIF-Total Return Fund
OFFITBANK VIF-U.S. Government Securities
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EXHIBIT A
Pursuant to the Agreement by and among the parties hereto, USL shall perform the
following Administrative Services:
1. Maintain separate records for each Shareholder, which records shall reflect
shares of the Funds purchased and redeemed by the Separate Account for the
benefit of the Shareholder and share balances held by the Separate Accounts
for the benefit of the Shareholder. USL shall maintain a master account with
the transfer agent of each of the Funds, which master account shall be in the
name of USL or its nominee as the record owner of the shares held for the
Separate Account (the "Master Account").
2. For each of the Funds, disburse or credit to the appropriate account or
accounts all proceeds of redemptions of shares of the Fund by the Separate
Account and all dividends and other distributions not reinvested by the
Separate Account in shares of the Fund.
3. Prepare and transmit to Shareholders periodic account statements showing the
total number of shares held by the Separate Account 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 by the Separate
Account for the benefit of the Shareholder during the period covered by the
statement, and the dividends and other distributions paid to the Separate
Account 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 USL from any of the Funds and required to be sent to Shareholders
under the federal securities laws and, upon request of any of the Funds'
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 each of the Funds' transfer agent purchase and redemption orders
on behalf of the Separate Account.
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.
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