ADMINISTRATIVE SERVICE AGREEMENT
Exhibit
99(h)(x)
This
ADMINISTRATIVE SERVICE AGREEMENT (“Agreement”) is made and entered into as of
this 18th day of October 2004, by and among The
Merger Fund VL,
a
registered investment company under the Investment Company Act of 1940, as
amended (the “1940 Act”) and organized as a statutory trust under the laws of
the State of Delaware (the “Fund”); Westchester
Capital Management, Inc.,
a
corporation organized under the laws of the State of New York, a registered
investment adviser under the Investment Advisers Act of 1940, as amended (the
“Advisers Act”), and investment adviser to the Fund (the “Adviser”); and
Hartford
Life Insurance Company,
a
Connecticut corporation (the “Company”).
WHEREAS,
the Fund engages in business as an open-end management investment company and
was established for the purpose of serving as the investment vehicle for
separate accounts established for variable life insurance contracts and variable
annuity contracts to be offered by insurance companies;
WHEREAS,
the Fund has entered into a Participation Agreement, as amended, with the
Company whereby the Fund will be included as an investment option in the
separate accounts set forth on Schedule
A
hereto
(the “Accounts”) established by the Company to serve as investment vehicles for
certain variable annuity and/or variable life insurance policies offered by
the
Company;
WHEREAS,
the parties hereto acknowledge and agree that the Adviser is not a registered
broker/dealer, that the Adviser is not receiving any form of sales compensation
for the sale of shares of the Fund to any party and the Company is not receiving
any form of compensation from the Adviser or the Fund for the sale of shares
of
the Fund to any party; and
1
WHEREAS,
the Company desires to provide certain shareholder services to certain owners
of
variable annuity and/or variable life insurance policies issued by the Company
(“Owners”) in connection with their indirect investment in the Fund through the
Accounts;
THEREFORE,
in consideration of the mutual covenants contained herein and intending to
be
legally bound, the parties agree as follows:
1. Services
of the Company
(a) The
Company shall provide any combination of the following support services, as
agreed upon by the parties from time to time, to Owners who indirectly invest
in
the Fund through the Accounts: responding to inquiries from the Owners using
the
Fund as an investment vehicle; providing information to Adviser and to Owners
with respect to shares attributable to Owner accounts; communicating directly
with Owners concerning the Fund’s operations; and providing such other similar
services as Adviser of the Fund may reasonably request pursuant to and to the
extent permitted or required under applicable statutes, rules and
regulations.
(b) The
Company will provide such office space and equipment, telephone facilities,
and
personnel as may be reasonably necessary or beneficial in order to provide
such
services to Owners.
(c) The
Company will furnish to the Fund, the Adviser or their designees such
information as the Fund and/or the Adviser may reasonably request, and will
otherwise reasonably cooperate with the Fund and/or the Adviser in the
preparation of reports to the Fund’s Board of Trustees concerning this
Agreement, as well as any other reports or filings that may be required by
law.
2
2. Maintenance
of Records
Each
party shall maintain and preserve all records as required by law to be
maintained and preserved in connection with providing the services described
herein. Upon the reasonable request of the Fund and/or the Adviser, the Company
will provide the Fund, the Adviser or the representative of either with
reasonable access to all such records, including, if requested, copies thereof.
3. Compliance
with Law
At
all
times, the Company shall comply with all laws, rules and regulations applicable
to it by virtue of entering into the Agreement. At all times, the Fund and
the
Adviser shall comply with all laws, rules and regulations applicable to it
by
virtue of entering into this Agreement.
4. Indemnification
(a) The
Company shall indemnify and hold harmless the Fund, the Adviser and their
respective trustees, officers, employees, and agents (“Indemnified Parties”)
from and against any and all actual losses, claims, liabilities and expenses
(including reasonable attorney’s fees) (“Losses”) incurred by any of them
arising out of (i) the Company’s dissemination of information regarding the Fund
or the Adviser that is materially incorrect and that was not provided to the
Company, or approved by the Fund or the Adviser, or any of their agents or
“affiliated persons”, as defined under the 1940 Act, or (ii) the Company’s
willful misconduct or negligence in the performance of, or failure to perform,
its obligations under this Agreement, except to the extent such Losses result
from the gross negligence or willful misconduct of, or breach of this Agreement
by, an Indemnified Party.
(b) In
any
event, no party shall be liable for any special, consequential or incidental
damages.
3
(c) This
indemnification obligation shall survive any termination of this
Agreement.
5. Relationship
of Parties
It
is
understood and agreed that all services performed hereunder by the Company
shall
be as an independent contractor and not as an employee or agent of the Fund
or
the Adviser, are not the services of an underwriter or a principal underwriter
of the Fund within the meaning of the Securities Act of 1933, as amended, or
the
1940 Act, neither the Fund nor the Adviser shall hold itself out as an agent
of
the Company with the authority to bind the Company, and the Company shall not
hold itself out as an agent of the Fund or the Adviser with the authority to
bind the Fund or the Adviser.
6. Expenses
The
Company or its affiliates shall bear all expenses of providing the services
to
Owners set forth in Section 1 of this Agreement.
7. Compensation
The
Fund
shall pay the Company for the services to be provided by the Company under
this
Agreement in accordance with, and in the manner set forth in, Schedule
B
hereto,
as such Schedule may be amended from time to time.
8. Representations,
Warranties and Agreements
(a) Each
party represents and warrants that it is free to enter into this Agreement
and
that by doing so it will not breach or otherwise impair any other agreement
or
understanding with any other person, corporation, or other entity.
(b) The
Company represents and warrants that:
| (i) |
it
has full power and authority under applicable law, and has taken
all
action necessary, to enter into and perform this
Agreement;
|
4
| (ii) |
if
and to the extent required by applicable law, the arrangement provided
for
in this Agreement, including the amount of the fee received by the
Company, will be timely disclosed to the Owners;
|
| (iii) |
the
execution, performance and delivery of this Agreement will not result
in
it violating, breaching or otherwise impairing any judgment, order
or
contractual obligation to which it is
subject;
|
| (iv) |
the
Agreement constitutes a legal, valid and binding obligation, enforceable
against it in accordance with its terms;
and
|
| (c) |
Fund
and Adviser represent and warrant
that:
|
| (i) |
the
Fund is registered as an investment company under the 1940 Act and
the
Adviser is registered as an investment adviser under the Advisers
Act;
|
| (ii) |
they
have full power and authority under applicable law, and have taken
all
action necessary, to enter into and perform this
Agreement;
|
| (iii) |
the
Agreement constitutes a legal, valid and binding obligation, enforceable
against them in accordance with its
terms;
|
| (iv) |
the
execution, performance and delivery of the Agreement will not result
in
them violating, breaching or otherwise impairing any judgment, order
or
contractual obligation to which they are subject;
and
|
| (v) |
the
payment of the fees to the Company by the Fund for performance of
the
duties and the provision of services by the Company as described
in this
Agreement will not violate federal or state securities laws, or any
other
applicable law.
|
9. Termination
| (a) |
This
Agreement may be terminated by the Fund, the Adviser or by the Company
without penalty, (i) upon sixty (60) days’ prior written notice to the
other parties or (ii) upon such shorter notice as is required by
law,
order, or instruction by a court of competent jurisdiction or a regulatory
body or self-regulatory organization with jurisdiction over the
terminating party.
|
5
|
(b)
|
Sections
4, 14 and 17 shall survive termination of this
Agreement.
|
10.
Assignment
The
Agreement may not be assigned (as that term is defined by the Advisers Act)
by
either party without the prior written consent of the other parties, which
consent shall not be unreasonably withheld or delayed, except that any party
may
assign this Agreement to any entity controlling, controlled by or under common
control with such party without the consent of the other parties
hereto.
11.
Schedules
and Exhibits
All
schedules and exhibits attached to this Agreement, as they may be amended from
time to time, are by this reference incorporated into and made a part of this
Agreement.
12.
Non-Exclusivity
Each
of
the parties acknowledges and agrees that this Agreement and the arrangement
described herein are intended to be non-exclusive and that each of the parties
is free to enter into similar agreements and arrangements with other
entities.
13.
Notices
All
notices and other communications to either the Company, the Fund or the Adviser
shall be in writing and will be duly given if mailed, telegraphed or telecopied
to the address set forth below, or at such other address as either party may
provide in writing to the other party.
6
If
to the
Company:
Hartford
Life Insurance Co.
000
Xxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
Xxxxxx X. Xxxxx, President
With
a
copy to:
Hartford
Life Insurance Co.
000
Xxxxxxxxx Xxxxxx
Xxxxxxxx,
Xxxxxxxxxxx 00000
Attn:
General Counsel
If
to the
Fund:
The
Merger Fund VL
000
Xxxxxx Xxxx Xxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxx
If
to the
Adviser:
Westchester
Capital Management, Inc.
000
Xxxxxx Xxxx Xxxxx
Xxxxxxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxx
If
to the
Fund or the Adviser, with a copy to:
Fulbright
& Xxxxxxxx L.L.P.
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000-0000
Attn:
Xxxxxxx X. Xxxxxxx
14.
Confidentiality
All
parties agree to keep confidential all proprietary data, software, processes,
information and documentation provided by the other party (collectively, the
“Confidential Information”), unless the party providing such information
consents in writing to the disclosure of the Confidential Information, the
Confidential Information is already in the public domain by no fault of either
party to this Agreement, or the disclosure of the Confidential Information
is
required by law or by a governmental body or self-regulatory organization.
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15.
Modification
This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter of this Agreement, supersedes any and all
agreements, representations and warranties, written or oral, regarding such
subject matter made prior to the time at which this Agreement has been executed
and delivered by the parties, and no modification, amendment or waiver of any
of
the provisions of this Agreement shall be effective unless made in writing
specifically referring to this Agreement and signed by the parties
hereto.
16.
Counterparts
This
Agreement may be executed in any number of counterparts which all together
shall
constitute one instrument.
17.
Governing
Law; Severability
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of New York applicable to agreements fully executed and to be performed
therein, and without giving effect to the choice of law principles thereof.
If
any provision of this Agreement shall be held or made invalid by a court or
regulatory agency decision, statute, rule or otherwise, the remainder of this
Agreement shall not be affected thereby and shall remain in full force and
effect.
8
IN
WITNESS WHEREOF,
the
undersigned have executed this Agreement by their duly authorized officers
as of
the date and year first written above.
THE
MERGER FUND VL
By:_____/s/
Xxx Behren___________________
Name:
_____Roy Behren___________________
Title:
_____CCO__________________________
WESTCHESTER
CAPITAL MANAGEMENT, INC.
By:_____/s/
Xxx Behren___________________
Name:
_____Roy Behren___________________
Title:
_____CCO__________________________
HARTFORD
LIFE INSURANCE COMPANY
By:_____/s/
Xxxxxx Andriola________________
Name:
_____Daniel Andriola_______________
Title:
_____VP___________________________
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SCHEDULE
A
SEPARATE
ACCOUNTS
Name
of Separate Account and Date Established
Hartford
Life Insurance Company
Separate
Account ICMG Series VII
April
1,
1999
10
SCHEDULE
B
COMPENSATION
The
Company shall receive a fee from the Fund, accrued daily and paid on a monthly
basis, calculated at an annual rate of 0.05% of the Fund’s
average
daily net assets attributable to shares of the Fund beneficially owned by Owners
of the variable life and variable annuity policies offered through the Accounts.
11
FIRST
AMENDMENT
The
Merger Fund VL, a registered investment company under the Investment Company
Act
of 1940, as amended (the “1940 Act”) and organized as a statutory trust under
the laws of the State of Delaware (the “Fund”); Westchester Capital Management,
Inc., a corporation organized under the laws of the State of New York,
a
registered investment adviser under the Investment Advisers Act of 1940,
as
amended (the “Advisers Act”), and investment adviser to the Fund (the
“Adviser”); and Hartford Life Insurance Company, a Connecticut corporation (the
“Company”) (altogether the “Parties”) previously entered into an Administrative
Services Agreement (the “Agreement”) as of October 18, 2004. Now, pursuant to
Section 15 of the Agreement, the Parties wish to amend the Agreement by
way of
this first amendment to the Agreement (the “First Amendment”), effective May 1,
2006.
The
Agreement is hereby amended as follows. The current Schedule A, Separate
Accounts, and Schedule B, Compensation, are deleted in their entirety and
replaced with the Revised Schedule A, Separate Accounts, and the Revised
Schedule B, Compensation, attached to this First Amendment.
All
other
terms of the Agreement shall remain in full and effect without
change.
IN
WITNESS WHEREOF, the
undersigned have executed this First Amendment to the Administrative Service
Agreement by their duly authorized representatives as of the date first
written
below.
|
THE
MERGER FUND VL
By:
/s/ Xxx
Xxxxxx
Name:
Xxx
Xxxxxx
Title:
CCO
Date:
5/2/06
|
HARTFORD
LIFE INSURANCE
COMPANY
By:
/s/ Xxxxxx X.
Xxxxxxx
Name:
Xxxxxx X.
Xxxxxxx
Title:
Vice
President
Date:
5/8/06
|
|
|
WESTCHESTER
CAPITAL MANAGEMENT, INC.
By:
/s/ Xxx
Xxxxxx
Name:
Xxx
Xxxxxx
Title:
CCO
Date:
5/2/06
|
||
REVISED
SCHEDULE B
FIRST
AMENDMENT
COMPENSATION
The
Company shall receive a fee from the Fund, accrued daily and paid on a
monthly
basis, calculated at an annual rate of 0.40% of the Fund’s average daily net
assets attributable to
shares
of
the Fund beneficially owned by Owners of the variable life and variable
annuity
policies offered through the Accounts.
REVISED
SCHEDULE A
FIRST
AMENDMENT
SEPARATE
ACCOUNTS
Name
of Separate Account and Date Established
Hartford
Life Insurance Company
Separate
Account ICMG Series VII
April
1,
1999
Hartford
Life Insurance Company
PPVA
Separate Account
December
20, 2004
