EXHIBIT 8(c)
ADMINISTRATIVE SERVICES AGREEMENT
This Administrative Services Agreement (this "Agreement") is made
effective as of 12:01 a.m., Eastern Standard Time, on the 10th day of
March, 1992, ("Effective Date"), between Fidelity Investments Corporate
Services, a Massachusetts corporation ("Provider") Empire Fidelity
Investments Life Insurance Company, a New York corporation ("Company").
WHEREAS, Provider has experience helpful to the operation of life
insurance business and in performing administrative services; and
WHEREAS, Company desires for Provider to perform certain administrative
services (collectively "services") for Company in its insurance operations
and desires further to make use in its day-to-day operations of certain
property, equipment, space and facilities (collectively "facilities") of
Provider as Company may request; and
WHEREAS, Company has executed a Commitment Agreement to the New York
Insurance Department dated December 26, 1991 ("Commitment Agreement"),
regarding the operations of Company, which contemplates agreements for
services; and
WHEREAS, Provider and Company wish to assure that all charges for services
incurred hereunder are reasonable and in accordance with the requirements
of New York Insurance Department Regulation No. 33 and to the extent
practicable reflect actual costs and are arrived at in a fair and equitable
manner, and that estimated costs, whenever used, are adjusted periodically,
to bring them into alignment with actual costs; and
WHEREAS, Provider and Company wish to identify the services to be rendered
to Company by Provider and the facilities to be used by Company and to
provide a method of fixing bases for determining the charges to be made to
Company;
NOW THEREFORE, in consideration of premises and of the mutual promises set
forth herein, and intending to be legally bound hereby, Provider and
Company agree as follows:
1. PERFORMANCE OF SERVICES AND USE OF FACILITIES. Subject to the terms,
conditions, and limitations of this Agreement, Provider agrees to the
extent requested by Company to perform diligently and in a professional
manner the services listed in Section 2 of this Agreement.
Subject to the terms, conditions and limitations of this Agreement,
Provider agrees to the extent requested by Company to make available to
Company such data processing equipment, business property and space and
communications equipment, whether owned or leased, as Company may determine
to be reasonably necessary in the conduct of its insurance operations.
Provider agrees at all time to maintain sufficient facilities and capacity
of the kind necessary to perform this Agreement.
(a) CAPACITY OF PERSONNEL AND STATUS OF FACILITIES. Whenever Provider
utilizes its personnel to perform services for Company pursuant to this
Agreement, such personnel shall at all times remain subject to the
direction and control of Provider, and Company shall have no liability to
such personnel for their welfare, salaries, fringe benefits, legally
required employer contributions and tax obligations.
No facility of Provider used in performing services for or subject to use
by Company shall be deemed to be transferred, assigned, conveyed or eased
by performance or use pursuant to this Agreement.
(b) EXERCISE OF JUDGMENT IN RENDERING SERVICES. In providing any services
hereunder which require the exercise of judgment by Provider, Provider
shall perform any such service in accordance with any standards and
guidelines Company develops and communicates to Provider. In performing
any services hereunder, Provider shall at all times act in a manner
reasonably calculated to be in or not opposed to the best interests of
Company.
(c) CONTROL. The performance of services by Provider for Company pursuant
to this Agreement shall in no way impair the absolute control of the
business and operations of Provider or Company by their respective Boards
of Directors. Provider shall act hereunder so as to assure the separate
operating identity of Company.
2. SERVICES. It is understood that Company has certain obligations under
the Commitment Agreement, and it is agreed that Provider shall not act or
refrain from acting in any manner to cause Company to breach said
obligations.
The performance of Provider under this Agreement with respect to the
business and operations of Company shall at all times be subject to the
direction and control of the Board of Directors of Company. No services
will be provided under this Agreement in violation of the Commitment
Agreement.
To the extent that Provider would on occasion utilize outside consultants
to aid in the performance of a portion of its own functions and services,
Provider shall perform similar functions and services requested by the
Company utilizing the same outside consultants; provided, that the Company
shall approve the use and cost of any such consultant. These functions
would include:
Legal Services, as outlined in paragraph 2(a) below; and
Employee Relations Services, as outlined in paragraph 2(b) below.
Subject to the foregoing and to the terms, conditions and limitations of
this Agreement, Provider shall provide to Company, at Company's request,
the services set forth below.
(a) LEGAL SERVICES. Provider shall provide legal and related services,
including representation of Company in the prosecution or defense of
actions and in the negotiation and preparation of contracts, agreements and
agency documents, product development and drafting and filing of policies
and forms, governmental relations and advising on regulatory compliance and
rendering opinions on various legal matters.
(b) EMPLOYEE RELATIONS SERVICES. Provider shall provide employee
relations and related services, including staffing and recruiting,
developing and administering compensation and benefit programs, maintaining
employee records and managing employee relations issues, personnel policies
and procedures. All such services shall be provided under the direction
and control of Company, pursuant to Company's established standards and
guidelines.
3. CHARGES. Company agrees to reimburse Provider for the actual cost of
services and facilities provided by Provider to Company pursuant to this
Agreement. If Provider in the future provides such services to third
parties, then the charge shall be at market.
Cost analyses will be made from time to time by Provider to determine, as
closely as possible, the actual cost of services rendered and facilities
made available to Company hereunder. Provider shall forward to Company the
information developed by these analyses, and such information shall be used
to develop bases for the distribution of expenses which more currently
reflect the actual incidence of cost incurred by Provider on behalf of
Company.
Subject to New York Insurance Department Regulation 33, the bases for
determining such charges to Company shall be those used by Provider for
internal cost allocation including, where appropriate, time records
prepared at least annually for this purpose. Such bases shall be modified
and adjusted by mutual agreement where necessary or appropriate to reflect
fairly and equitably the actual incidence of cost incurred by Provider on
behalf of Company.
4. PAYMENT. Provider shall submit to Company within thirty (30) days of
the end of each calendar quarter a written statement of the amount
estimated to be owed by Company for services and the use of facilities
pursuant to this Agreement in that calendar quarter, and Company shall pay
to Provider within fifteen (15) days following receipt of such written
statement the amount set forth in the statement.
As soon as reasonably practical, after the end of each calendar year,
Provider will submit to Company a detailed written statement of the charges
due from Company to Provider in the immediately preceding year, including
charges not included in any previous statements, and any balance payable or
to be refunded as shown in such statement shall be paid or refunded within
fifteen (15) days following receipt of such written statement by Company.
5. ACCOUNTING RECORDS AND DOCUMENTS. Provider shall be responsible for
maintaining full and accurate accounts and records of all services rendered
and facilities used pursuant to this Agreement and such additional
information as Company may reasonably request for purposes of its internal
bookkeeping and accounting operations. Provider shall keep such accounts
and records insofar as they pertain to the computation of charges hereunder
available at its principal offices for audit, inspection and copying by
Company and persons authorized by it or any governmental agency having
jurisdiction over Company during all reasonable business hours.
With respect to accounting records prepared by Provider by reason of its
performance under this Agreement, summaries of such records shall be
delivered to Company within thirty (30) days from the end of the month to
which the records pertain.
6. OTHER RECORDS AND DOCUMENTS. Any other books, records, and files (for
example, actuarial work papers or administrative summaries) established and
maintained by Provider by reason of its performance under this Agreement
which, absent this Agreement, would have been held by Company, shall be
deemed the property of Company, and shall be subject to examination at all
times by Company and persons authorized by it or any governmental agency
having jurisdiction over Company, and shall be delivered to Company at
least quarterly. All such books, records, and files shall be promptly
transferred to Company by Provider upon termination of this Agreement, and
Company shall pay to Provider therefor an amount equal to the costs
incurred by Provider in making such transfer.
With respect to original documents other than those provided for under
Section 5 hereof which would otherwise be held by Company and which may be
obtained by Provider in performing under this Agreement, Provider shall
deliver such documents to Company within thirty (30) days of their receipt
by Provider except where continued custody of such original documents is
necessary to perform hereunder.
7. RIGHT TO CONTRACT WITH THIRD PARTIES. Nothing herein shall be deemed
to grant Provider an exclusive right to provide services to Company, and
Company retains the right to contract with any third party, affiliated or
unaffiliated, for the performance of services or for the use of facilities
as are available to or have been requested by Company pursuant to this
Agreement.
8. CONTACT PERSON(S). Company and Provider each shall appoint one or more
individuals who shall serve as contact person(s) for the purpose of
carrying out this Agreement. Such contact person(s) shall be authorized to
act on behalf of their respective parties as to the matters pertaining to
this Agreement. Each party shall notify the other, in writing, as to the
name, address and telephone number for any such designated contact person,
and of any replacement thereof.
9. TERMINATION AND AMENDMENT. This Agreement shall remain in effect until
terminated by either Provider or Company upon giving ninety (90) days or
more advance written notice, as to services other than electronic data
processing, and upon giving one hundred eighty (180) days or more advance
written notice as to electronic data processing services. In no event may
Provider terminate electronic data processing services if by doing so
Company would be left without data processing capabilities adequate to
services its policies. Upon termination, Provider shall promptly deliver
to Company all books and records that are, or are deemed by this Agreement
to be, the property of Company. No provision of this Agreement may be
waived or amended except by a statement in writing signed by all parties.
10. SETTLEMENT ON COMPLETE TERMINATION. No later than ninety (90) days
after the effective date of Complete Termination of this Agreement,
Provider shall deliver to Company a detailed written statement for all
charges incurred and not included in any previous statement to the
effective date of termination. The amount owed or to be refunded hereunder
shall be due and payable within fifteen (15) days of receipt of such
statement.
11. ASSIGNMENT. This Agreement and any rights pursuant hereto shall not
be assignable by either party hereto, except by operation of law. Except
as and to the extent specifically provided in this Agreement, nothing in
this Agreement expressed or implied, is intended to confer on any person
other than the parties hereto, or their respective legal successors, any
rights, remedies, obligations or liabilities that would otherwise be
applicable. The representations, warranties, covenants and agreements
contained in this Agreement shall be binding upon, extend to and inure to
the benefit of the parties hereto and each of their successors and assigns
respectively.
12. GOVERNING LAW; SERVICES OF SUIT; FORUM SELECTION. This Agreement
shall be governed by and construed and enforced in accordance with the laws
of the State of New York.
Provider shall submit to the jurisdiction of any court of competent
jurisdiction within the Southern and Eastern Districts of New York and will
comply with all requirements necessary to give such Court jurisdiction.
Service of process in any suit instituted against Provider upon this
Agreement may be made upon Secretary for Provider, and the Secretary for
Provider is authorized and directed to accept service of process on behalf
of Provider in any such suit and/or upon the request of Company to give a
written undertaking to Company that they will enter a general appearance on
behalf of Provider in the event such a suit shall be instituted.
Each party agrees that any suit against any other upon this Agreement
shall be instituted and prosecuted only in a Court of competent
jurisdiction within the Southern and Eastern Districts of New York, and
each party agrees that it shall not seek to remove or transfer any such
suit against it by any other party to any Court outside the Southern and
Eastern Districts of New York.
13. ARBITRATION. Any unresolved dispute or difference between the parties
arising out of or relating to this Agreement, or the breach thereof, shall
be settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and the Expedited Procedures
thereof. The award rendered by the Arbitrator shall be final and binding
upon the parties, and judgment upon the award rendered by the Arbitrator
may be entered in any Court having jurisdiction thereof. The arbitration
shall take place in New York, New York.
14. INDEMNIFICATION. The parties agree to hold each other harmless and to
indemnify each other against any and all extra-contractual liability and
any related loss, damage, expense, cost, cause of action, demand, penalty,
fine or claim (including cost of litigation or administrative proceeding
and counsel fees) arising out of or related to any of the services provided
hereunder to the extent the same are caused by the act or failure to act of
the indemnifying party.
15. NOTICE. All notices, statements or requests provided for hereunder
shall be deemed to have been duly given when delivered by hand to an
officer of the other party, or when deposited with the U.S. Postal
Services, as first class certified or registered mail, postage prepaid,
overnight courier services, telex or telecopier, addressed
(a) if to Provider to:
Fidelity Investments Corporate Services
00 Xxxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
(b) if to Company to:
Empire Fidelity Investments Life Insurance Company
000 Xxxxxxx Xxxxxx, Tower A
Xxx Xxxxx Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxx
or to such other persons or places as each party may from time to time
designate by written notice sent as aforesaid.
16. REPRESENTATIONS AND WARRANTIES OF PROVIDER. As a material inducement
to Company to enter into and perform this Agreement, Provider represents
and warrants to Company that : (i) Provider is a corporation duly
organized, validly existing and in good standing under the laws of the
Commonwealth of Massachusetts, with full power and authority to execute,
deliver and perform this Agreement; (ii) this Agreement is valid and
binding upon Provider and enforceable against Provider in accordance with
its terms, except as such enforceability may be limited by bankruptcy,
insolvency or similar laws and subject to general principles of equity; and
(iii) Provider has and shall maintain sufficient capacity and adequate
facilities to perform this Agreement.
17. ENTIRE AGREEMENT. This Agreement, together with such amendments as
may from time to time be executed in writing by the parties, constitutes
the entire agreement and understanding between the parties in respect of
the transactions contemplated hereby.
18. SECTION HEADINGS. Section headings contained herein are for reference
purposes only and shall not affect the meaning or interpretation of this
Agreement.
19. COUNTERPARTS. This Agreement may be executed in separate
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
in duplicate by their respective officers duly authorized to do so, and
their respect corporate seals to be affixed hereto, as of the date and year
first above written.
Empire Fidelity Investments Life Insurance Company
By: \s\ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
President
Fidelity Investments Corporate Services
By: \s\ Xxxxx X. Xxxxxxxxx
Xxxxx X. Xxxxxxxxx
Vice President, Corporate Counsel and Clerk
