Exhibit 10.29
INVESTMENT ADVISORY AGREEMENT
This Investment Advisory Agreement (this "Agreement") is made as of
the 1st day of July, 1999 ("Effective Date"), by and between Allstate Insurance
Company, an Illinois insurance company ("Allstate") and Intramerica Life
Insurance Company, a New York insurance company ("ILIC").
WHEREAS, ILIC is an indirect subsidiary of Allstate; and
WHEREAS, Allstate has extensive experience in the management of
portfolios of insurance companies; and
WHEREAS, Allstate and ILIC desire to contract for the rendering of
investment advisory services and advice by Allstate to ILIC with respect to the
investment portfolio maintained by ILIC, subject to the terms and conditions
hereinafter set forth; and
WHEREAS, Allstate and ILIC contemplate that such an arrangement will
achieve certain operating economies and improve services to the benefit of
Allstate, ILIC, and ILIC's insureds; and
WHEREAS, Allstate and ILIC wish to assure that all charges for
services incurred hereunder are reasonable; and
WHEREAS, Allstate and ILIC wish to identify the services to be
rendered to ILIC by Allstate and to provide a formula for determining the
charges to be made to ILIC;
NOW, THEREFORE, in consideration of the premises and of the mutual
promises set forth herein, and intending to be legally bound hereby, Allstate
and ILIC agree as follows.
1. APPOINTMENT. ILIC hereby appoints Allstate as the investment advisor
and manager of its investment assets (the "Account") and grants Allstate the
power and authority to advise, manage, and direct the investment and
reinvestment of the assets of the Account for the period and on the terms and
conditions set forth in this Agreement, subject to the supervision of the Board
of Directors of ILIC (the "Board"). Such activities shall be conducted subject
to and in accordance with the investment objectives, restrictions, and
strategies set forth in Exhibit A attached hereto, in investment objectives that
are not inconsistent with Exhibit A that are adopted by the Board, and in
accordance with such other limitations and guidelines that are not inconsistent
with Exhibit A as may be established from time to time for the Account by the
Board (such investment objectives, restrictions, strategies, limitations, and
guidelines herein referred to collectively as the "Investment Guidelines").
Allstate hereby accepts such responsibility and agrees during such period to
render the services and to assume the obligations herein set forth.
2. ALLSTATE AS AGENT. ILIC shall retain responsibility, authority and
control with respect to the management and investment of the Account and shall
supervise the activities of
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Allstate with respect to the Account. Subject to the foregoing and to the
Investment Guidelines, Allstate shall, for purposes of this Agreement, be
granted and exercise full investment discretion and authority in buying, selling
or otherwise disposing of or managing the investment of the assets held in the
Account and in the performance of the services rendered hereunder, and shall do
so as ILIC's agent only. ILIC hereby authorizes Allstate to exercise all such
powers with respect to the assets of the Account as may be necessary or
appropriate for the performance by Allstate of its obligations under this
Agreement, subject to the supervision of the Board and the limitations contained
herein. All investments made by Allstate on behalf of ILIC shall be in those
classes of investments prescribed by Section 1405 of the New York Insurance Law
or as otherwise permitted ILIC by law; provided, however, that nothing contained
herein shall authorize Allstate to purchase or dispose of on ILIC's behalf
without ILIC's prior written approval any mortgages or any interest in real
property.
3. INVESTMENT ADVISORY SERVICES. In furtherance of the foregoing, and in
carrying out its obligations to manage the investment and reinvestment of the
assets in the Account, Allstate shall, as appropriate and consistent with the
Investment Guidelines:
(a) perform research and obtain and evaluate such information
relating to the economics, industries,
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businesses, markets and new investment structures, techniques,
practices, and financial data as Allstate deems appropriate in its
discharge of its duties under this Agreement;
(b) consult with and furnish to the Board recommendations with
respect to overall investment strategies for the Account;
(c) seek out and implement specific investment opportunities,
consistent with such overall investment strategies approved by the
Board, including making and carrying out day-to-day decisions to
acquire or dispose of permissible investments, managing the investment
of the assets of the Account, and providing or obtaining such services
as may be necessary in managing, acquiring or disposing of
investments;
(d) regularly report to the Board with respect to the implementation
of investment strategies and any other activities in connection with
management of the Account's assets, including furnishing to the Board,
within 15 days after the end of each quarter, a summary of investment
activity during the quarter, and a schedule of investments and other
assets of the Account as of the end of the quarter;
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(e) maintain all required accounts, records, memoranda, instructions
or authorizations relating to the acquisition or disposition of
investments for the Account;
(f) determine the securities to be purchased or sold by the Account
and place orders either directly with the issuer, with any
broker-dealer or underwriter that specializes in the securities for
which the order is made, or with any other broker or dealer that
Allstate selects; and
(g) perform the services hereunder in a manner consistent with
investment objectives and policies of ILIC as detailed in the
Investment Guidelines, as amended from time to time, and in compliance
with the provisions of the New York Insurance Law, as amended.
4. ALLOCATION OF BROKERAGE. Allstate is authorized in its sole discretion
to select the brokers or dealers that will execute the purchases and sales of
securities for the Account. In making such selection, Allstate shall use its
best efforts to obtain for the Account the most favorable net price and
execution available taking into account all appropriate factors, including
price, dealer spread or commission, if any, and size and difficulty of the
transaction.
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If, in the judgment of Allstate, ILIC should be benefitted by
supplemental investment research, Allstate is authorized, but not obligated, to
select brokers or dealers on the basis of research information, materials, or
service furnished by them to Allstate to use in supplementing Allstate's own
information and in making investment decisions for the Account. The expenses of
Allstate and the charges to ILIC may not necessarily be reduced as a result of
receipt of such supplemental information. Subject to the above requirements,
nothing shall prohibit Allstate from selecting brokers or dealers with which it
or ILIC are affiliated.
5. SERVICE TO OTHER CLIENTS. ILIC acknowledges that Allstate may perform
services for clients other than ILIC which are similar to the services to be
performed pursuant to this Agreement, and that Allstate is free to do so
provided that its services pursuant to this Agreement are not in any way
impaired. ILIC agrees that Allstate may provide investment advice to any of its
other clients that may differ from advice given to ILIC, or take action with
respect to assets owned by it or its other clients that may differ from the
action taken with respect to the Account and/or assets held therein, so long as
Allstate, to the extent reasonable and practicable, allocates investment
opportunities to the Account on a fair and equitable basis relative to
Allstate's other clients. It is understood that Allstate shall have no
obligation to purchase or sell, or to recommend for purchase or sale for the
Account, any security,
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which Allstate, its affiliates, employees or agents may purchase or sell for its
or their own accounts or for the account of any other client, if, in the opinion
of Allstate, such transaction or investment appears unsuitable, impractical or
undesirable for the Account. It is agreed that Allstate may use any supplemental
investment research obtained for the benefit of ILIC in providing investment
advice to its other clients or its own accounts. Conversely, such supplemental
information obtained by the placement of business for Allstate or other entities
advised by Allstate will be considered by and may be useful to Allstate in
carrying out its obligations to ILIC.
6. ALLOCATION OF TRADES. It is acknowledged that securities held by ILIC
may also be held by separate investment accounts or other funds for which
Allstate may act as a manager or by Allstate or its other affiliates. If
purchases or sales of securities for ILIC or other entities for which Allstate
or its affiliates act as investment manager arise for consideration at or about
the same time, ILIC agrees that Allstate may make transactions in such
securities, insofar as feasible, for the respective entities in a manner deemed
equitable to all. To the extent that transactions on behalf of more than one
client of Allstate during the same period may increase the demand for securities
being purchased or the supply of securities being sold, ILIC recognizes that
there may be an adverse effect on price.
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It is agreed that, on occasions when Allstate deems the purchase or
sale of a security to be in the best interests of ILIC as well as other accounts
or companies, it may, to the extent permitted by applicable laws and
regulations, but will not be obligated to, aggregate the securities to be so
sold or purchased for ILIC with those to be sold or purchased for other accounts
or companies in order to obtain favorable execution and lower brokerage
commissions. In that event, allocation of the securities purchased or sold, as
well as the expenses incurred in the transaction, will be made by Allstate in
the manner it considers to be most equitable and consistent with its obligations
to ILIC and to such other accounts or companies. ILIC recognizes that in some
cases this procedure may adversely affect the size of the position obtainable
for ILIC.
7. CONTRACTS; AUTHORIZED SIGNATORIES. Allstate shall have the full power,
right and authority, as ILIC's agent, in accordance with this Agreement and the
Investment Guidelines, to negotiate, apply for, enter into, execute, deliver,
amend, modify and/or terminate legal documents of every kind and nature relating
to or required by the investment of the assets of the Account. All such
documents may be entered into in ILIC's name or in Allstate's name (as agent for
ILIC), as Allstate shall determine, and all such documents shall be legally
binding on ILIC. Those certain employees and officers of Allstate who are
authorized to execute transactions and sign documentation pursuant to the
Policies and Procedures and Investment guidelines
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adopted by the Investment Committee of Allstate, as they may be amended from
time to time, shall also be authorized to the same extent to execute
transactions and sign documentation on behalf of ILIC and/or Allstate in
connection with transactions entered into on behalf of the assets of the Account
pursuant to this Agreement.
8. COMPLIANCE WITH LEGAL REQUIREMENTS. Allstate shall make all reasonable
efforts to comply with and cause to be complied with all applicable laws, rules,
and regulations of the State of New York, and any federal, state or municipal
authority governing this Agreement, the services rendered hereunder, the Account
and the assets held therein. Without limiting the foregoing, Allstate shall
comply with all securities laws and other laws applicable to the services
provided under this Agreement.
9. TRANSACTION PROCEDURES. The assets of the Account are or will be held in
custody in the State of New York by the bank custodian(s) appointed by ILIC from
time to time. Allstate shall not act as custodian for the assets of the Account
and shall not under any circumstances have or be deemed to have ownership,
custody or physical control of any of the assets of the Account. Allstate may,
however, issue instructions to, and communicate with, the bank custodian for the
Account as may be necessary and appropriate in connection with provision of its
services pursuant to this Agreement. At the option of Allstate, instructions by
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Allstate to the bank custodian may be made orally or by computer, electronic
instruction systems or telecommunications terminals. Allstate will confirm that
the bank custodian has effected such instructions either by access to the bank's
computerized identification system or by telephonic confirmation. The bank
custodian will confirm with Allstate receipt of trade instructions orally or by
computer for the Account. Allstate will instruct all brokers, dealers and
counterparties executing orders on behalf of the assets of the Account to
forward to Allstate and ILIC copies of all confirmations. In the event Allstate
receives and collects monies for the account of ILIC, Allstate will not
commingle such monies with its own, but will deposit such monies in an
appropriate ILIC account.
10. STANDARD OF PERFORMANCE. Allstate shall discharge its duties hereunder
at all times in good faith and with that degree of prudence, diligence, care and
skill which a prudent person rendering services as an institutional investment
manager and adviser would exercise under similar circumstances. The provisions
of this Agreement shall not be interpreted to imply any obligation on the part
of Allstate to observe any standard of care other than as set forth in this
Section 10.
11. RECORDKEEPING. Allstate shall keep and maintain an accurate and
detailed accounting of each transaction concerning the assets of the Account and
of all receipts, disbursements, and other transactions relating to the purchase
and sale transactions
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arising hereunder. All such records shall be kept in accordance with applicable
laws and regulations, including, but not limited to, New York Insurance
Department Regulation 152. Allstate acknowledges that all such records shall be
the property of ILIC and shall be made available, within five (5) business days
of a written request, to ILIC, its accountants, auditors or other
representatives of ILIC for inspection and/or copying (at ILIC's expense) during
regular business hours. In addition, Allstate will provide any materials,
reasonably related to the investment advisory services provided hereunder, as
may be reasonably requested in writing by the directors or officers of ILIC or
as may be required by any governmental agency with jurisdiction thereunder.
Allstate further agrees to prepare and furnish to ILIC and to other persons
designated by ILIC, at such regular intervals and other times as may be
specified by ILIC from time to time (a) such balance sheets, income and expense
statements and other financial statements and reports, and (b) such other
statements, reports and information, in each case regarding the assets of the
Account as ILIC shall from time to time reasonably direct.
In the event of termination for any reason, all such records shall be
returned promptly to ILIC, free from any claim or retention of rights by
Allstate.
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12. LIABILITY OF ALLSTATE. In the absence of Allstate's willful or
negligent misconduct (or the willful or negligent misconduct of its officers,
directors, agents, employees, controlling persons, shareholders, and any other
person or entity affiliated with Allstate or retained by it to perform or assist
in the performance of its obligations under this Agreement), neither Allstate
nor any of its officers, directors, employees or agents shall be subject to
liability to ILIC for any act or omission in the course of, or connected with,
rendering services hereunder.
13. INDEPENDENT CONTRACTOR. Allstate shall for all purposes be deemed to
be an independent contractor. Allstate shall have no power or authority to bind
ILIC or to assume or create an obligation or responsibility, express or implied,
on behalf of ILIC, nor shall it represent to anyone that it has such power or
authority, except as expressly provided in this Agreement. Nothing in this
Agreement shall be deemed to create a partnership between or among the parties,
whether for purposes of taxation or otherwise.
14. CAPACITY OF PERSONNEL AND STATUS OF FACILITIES. Whenever Allstate
utilizes its personnel to perform services for ILIC pursuant to this Agreement,
such personnel shall at all times remain employees of Allstate subject solely to
its direction and control, and Allstate shall alone retain full liability to
such employees for their welfare, salaries, fringe
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benefits, legally required employer contributions, and tax obligations. No
facility of Allstate used in performing services for ILIC shall be deemed to be
transferred, assigned, conveyed, or leased by performance or use pursuant to
this Agreement.
15. FEES. ILIC agrees to reimburse Allstate for services provided by
Allstate to ILIC pursuant to this Agreement. The charge to ILIC for such
services shall be at cost. Cost shall mean Allstate's actual costs and expenses
fairly attributable to this Agreement.
Subject to New York Insurance Department Regulation 33, the bases for
determining such charges to ILIC shall be those used by Allstate for internal
cost distribution including, where appropriate, time records prepared at least
annually for this purpose.
Cost analyses will be made at least annually by Allstate to determine,
as closely as possible, the actual cost of services rendered to ILIC hereunder.
Allstate shall forward to ILIC the information developed by these analyses, and
such information shall be used to develop bases for distribution of expenses
which more currently reflect the actual incidence of costs incurred by Allstate
on behalf of ILIC.
The fees provided for in this Section 15 are exclusive of any fees
charged or to be charged by any custodian under a separate custody agreement.
ILIC agrees that Allstate may direct custodians of the Account to make direct
payment of fees due hereunder.
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16. PAYMENT. Within thirty (30) days after the end of each month,
Allstate shall submit to ILIC, via an intercompany settlement process, a
statement of the amount owed by ILIC for services pursuant to this Agreement in
that month, and, unless such amount is disputed by ILIC, ILIC shall pay to
Allstate within thirty (30) days following receipt of such statement the amount
set forth in the statement.
If ILIC objects to any determination of the amount owed by ILIC, it
shall so advise Allstate within thirty (30) days of receipt of notice of said
determination. Unless the parties can reconcile any such objection, they shall
agree to the selection of a firm of independent certified public accountants
which shall determine the charges properly allocable to ILIC and shall, within a
reasonable time, submit such determination together with the basis therefor, in
writing to Allstate and ILIC, whereupon such determination shall be binding. The
expenses of such a determination by a firm of independent certified public
accountants shall be borne equally by Allstate and ILIC.
17. CONTACT PERSON(S). ILIC and Allstate 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. Effective upon execution of this Agreement, the initial contact
person(s) shall be those set forth in Appendix A.
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Each party shall notify the other, in writing, as to the name, address, and
telephone number of any replacement for any such designated contact person.
18. TERMINATION. This Agreement shall remain in effect until
terminated by either Allstate or ILIC upon giving thirty (30) days or more
advance written notice. Upon termination, Allstate shall promptly deliver to
ILIC all books and records that are, or are deemed by this Agreement to be, the
property of ILIC.
19. SETTLEMENT ON TERMINATION. No later than thirty (30) days after
the effective date of termination of this Agreement, Allstate shall deliver to
ILIC a detailed written statement for all fees due and not included in any
previous statement to the effective date of termination. The amount owed shall
be due and payable within thirty (30) days of receipt of such statement.
20. ASSIGNMENT. This Agreement and any rights pursuant hereto shall
not be assignable by either party hereto without the prior written consent of
the other party, except as set forth herein or 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, or
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to relieve any person other than the parties hereto, or their respective legal
successors, from any 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, their, and each of their, successors and assigns,
respectively.
21. GOVERNING LAW. This Agreement shall be governed by and construed
and enforced in accordance with the internal laws of the State of New York
applicable to contracts made and to be performed in that State without regard to
principles of conflict of laws.
22. CONFIDENTIALITY. ILIC agrees to give Allstate any information in
its possession which ILIC deems relevant to the suitability of the investment
strategy implemented by Allstate, including information on ILIC's liabilities,
whether this information becomes known before or after the adoption of the
strategy. Allstate shall keep any information it obtains about ILIC's business
or investment objectives and results in confidence.
23. ARBITRATION. An 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
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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 may be entered in any court having jurisdiction thereof. The
arbitration shall take place in New York, New York.
24. 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 Service, as
first class certified or registered mail, postage prepaid, overnight courier
service, telex or telecopier, addressed
(a) If to Allstate, to:
Allstate Insurance Company
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Investment Law (Suite G5A)
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with concurrent copy to:
Allstate Insurance Company
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Investment Department (Suite G3A)
Phone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to ILIC, to:
Intramerica Life Insurance Company
c/o Charter National Life Insurance Company
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Sales Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
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or to such other persons or places as each party may from time to time designate
by written notice sent as aforesaid.
25. 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.
26. SECTION HEADINGS. Section headings contained herein are for
reference purposes only and shall not affect the meaning or interpretation of
this Agreement.
27. 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.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate by their respective officers duly authorized to do so, as
of the date and year first above written.
ALLSTATE INSURANCE COMPANY
BY /s/ Xxxxx X. Xxxxx
------------------
Name: Xxxxx X. Xxxxx
Title: Senior Vice President and
Chief Investment Officer
INTRAMERICA LIFE INSURANCE COMPANY
BY /s/ Xxxxx X. Xxxxxx
-------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
EXHIBIT A
INVESTMENT OBJECTIVE, POLICIES AND RESTRICTIONS
Allstate will have full discretion to invest and reinvest the funds made
available to it for that purpose by ILIC as follows:
INVESTMENT OBJECTIVES
ILIC's investment objective is to obtain as high a level of current interest
income as is consistent, in the view of Allstate, with preservation of
investment capital. There are market risks inherent in all investments in
securities, and there can be no assurance that Allstate will achieve this
objective. The primary objective of preserving capital will preclude realization
of the highest available income yields.
INVESTMENT POLICIES
Allstate will seek to achieve the above-stated objective by investing in a
diversified portfolio of securities. In selecting securities for this portfolio,
Allstate will seek the highest available yields consistent with the rating
standards and other policies stated herein.
Portfolio securities will be selected pursuant to the following fundamental
investment policies:
1. CASH BALANCES. Cash balances occurring pending permanent investment will be
invested in high grade, corporate commercial paper. The corporate paper
must have the highest rating by one or more of the nationally recognized
rating
organizations. Other acceptable short-term investments include U.S.
Treasury bills and notes, certificates of deposit, time deposits, bankers
acceptances and money market funds.
2. CORPORATE BONDS. The purchases of corporate bonds will include bonds,
notes, debentures and other evidences of indebtedness issued, assumed or
guaranteed by a corporation incorporated under the laws of the United
States of America, of any state, district or territorial possession thereof
or of the Dominion of Canada or any province thereof; provided that the
bonds are rated class 1 or 2 by the Securities Valuation Office ("SVO") of
the National Association of Insurance Commissioners ("NAIC").
3. GOVERNMENT OBLIGATIONS. The purchase of government obligations will include
bonds, notes, bills and other evidences of indebtedness issued, assumed or
guaranteed by the U.S. Government, its agencies or instrumentalities or of
any state or municipality thereof or of the Dominion of Canada or any
province thereof; provided the bonds are rated class 1 or 2 by the SVO of
the NAIC.
4. MORTGAGE-BACKED SECURITIES. The purchase of mortgage-backed securities will
include obligations issued by:
A. The Government National Mortgage Association (GNMA)
B. The Federal National Mortgage Association (FNMA)
C. The Federal Home Loan Mortgage Corporation (FHLMC)
D. FHA and VA insured or guaranteed loans, or any other government
guaranteed loans.
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5. EQUITY SECURITIES. Equity securities are defined to include preferred
stocks, mutual funds shares or common stocks which are traded on a national
stock exchange, provided that the preferred stocks are rated class 1 or 2
by the SVO of the NAIC.
INVESTMENT RESTRICTIONS
In the course of its investment management activity for ILIC, Allstate MAY NOT
engage in or execute transactions in any of the following:
1. Borrow money for any purpose on behalf of ILIC.
2. Pledge, mortgage or hypothecate the assets of ILIC.
3. Purchase the securities of any non-government issuer if, as a result, more
than 10% of the total assets of the portfolio would be invested in the
securities of the issuer.
4. Invest more than 25% of the portfolio, measured at the time of investment,
in a single industry. For the purpose of this restriction, mortgage-backed
securities do not constitute an industry.
5. Enter into any investment which would violate the New York Insurance Law.
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6. Purchase or sell investments, other than portfolio investments listed in
policies 1 through 5 under Investment Policies above, without the prior
written approval of ILIC.
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Appendix A
CONTACT PERSON(S) FOR ALLSTATE:
(a) If to Allstate, to:
Allstate Insurance Company
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Investment Law (Suite G5A)
Phone: (000) 000-0000
Facsimile: (000) 000-0000
with concurrent copy to:
Allstate Insurance Company
0000 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: Investment Department (Suite G3A)
Phone: (000) 000-0000
Facsimile: (000) 000-0000
CONTACT PERSON(S) FOR ILIC:
Intramerica Life Insurance Company
c/o Charter National Life Insurance Company
0000 Xxxxxxxx Xxxxxx
Xx. Xxxxx, Xxxxxxxx 00000
Attention: Sales Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
