Administrative Services Agreement
This Agreement is made this 1st day of October, 1999 by and between
First Trust Defined Portfolio Fund, LLC (the "Fund"), a Delaware limited
liability company, and American Skandia Life Assurance Corporation
("American Skandia"), a stock life insurance company domiciled in
Connecticut.
WHEREAS, the Fund is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, the Fund is authorized to issue interests ("Shares") in
separate portfolios with each such portfolios representing interests in
a separate portfolio of securities and other assets; and
WHEREAS, the Fund initially established a number of portfolios, and may
establish other portfolios in the future (each a "Portfolio" and
collectively the "Portfolios"); and
WHEREAS, the Fund is currently available to offer shares of one or more
of its Portfolios to a separate account of American Skandia that fund
variable annuity contracts ("Variable Contracts") and, therefore, to
serve as an underlying investment medium for Variable Contracts offered
by American Skandia; and
WHEREAS, pursuant to an Investment Advisory and Management Agreement
between the Fund and First Trust Advisors L.P. ("First Trust") dated
October 1, 1999 ("Management Agreement"), the Fund has retained First
Trust to furnish investment advisory and management services and certain
administrative services (collectively, "management services") with
respect to the Portfolios in the manner and on the terms thereinafter
set forth; and
WHEREAS, the Fund wishes to retain American Skandia to provide certain
administrative services to the Fund with respect to the Portfolios in
the manner and on the terms hereinafter set forth, and
WHEREAS, American Skandia is willing to furnish such services in the
manner and on the terms hereinafter set forth;
NOW, THEREFORE in consideration of the premises and mutual covenants
herein contained, the parties agree as follows:
1. Appointment. The Fund hereby appoints American Skandia as the
administrator (the "Administrator") to provide certain administrative
and other services with respect to the Portfolios for the period and on
the terms set forth in this agreement. The Administrator accepts such
appointment and agrees during such period to render the services herein
set forth for the compensation herein provided.
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In the event the Fund establishes and designates additional portfolios
with respect to which it desires to retain the Administrator to render
the administrative and other services hereunder, it shall notify the
Administrator in writing. If the Administrator is willing to render such
services it shall notify the Fund in writing, whereupon such additional
portfolios shall become a Portfolio hereunder.
2. Duties. Subject to the general supervision of the Trustees, the
Administrator shall provide those administrative services reasonably
necessary for the operation of the Portfolios other than the management
services provided by First Trust pursuant to the Management Agreement.
(a) The services hereunder shall also include the following: (i)
coordinating matters relating to the operation of the Separate Account
with the Portfolios, including any necessary coordination with the
custodian, transfer agent, dividend disbursing agent, recordkeeping
agent, accountants, attorneys, and other parties performing services or
operational functions for the Portfolios; (ii) coordinating the
preparation of the necessary documents with the SEC and other federal
and state regulatory authorities as may be required; (iii) taking such
other action as may be required by applicable law, with respect to the
foregoing, including without limitation the rules and regulations of the
SEC and of state insurance authorities and other regulatory agencies;
and (iv) coordinating with First Trust regarding investment limitations
and parameters imposed on funding vehicles for variable annuities by the
insurance laws of the various states and by the Internal Revenue Code.
(b) The Administrator shall also make its officers and employees
available to the Trustees and officers of the Fund for consultation and
discussions regarding the operations of the Separate Account and the
Variable Contracts in connection with the administration of the
Portfolios and services provided to the Portfolios under this agreement.
(c) In performing these services, the Administrator:
(i) Shall conform with the 1940 Act and all rules and
regulations thereunder, all other applicable federal and state laws and
regulations, with any applicable procedures adopted by the Fund's
Trustees, and with the provisions of the Fund's Registration Statement
filed on Form N-1A as supplemented or amended from time to time.
(ii) Will make available to the Fund, promptly upon request,
appropriate books and records as are maintained under this agreement,
and will furnish to regulatory authorities having the requisite
authority any such books and records and any information or reports in
connection with the Administrator's services under this agreement that
may be requested.
(iii) Will regularly report to the Fund's Trustees on the
services provided under this agreement and will furnish the Fund's Board
of Trustees with respect to the Portfolios such periodic and special
reports with respect to such services as the Trustees may reasonably
request.
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3. Documentation. The Fund has delivered copies of each of the
following documents to the Administrator and will deliver to it all
future amendments and supplements thereto, if any:
(a) the Fund's Registration Statement as filed with the SEC
and any amendments thereto; and
(b) exhibits, powers of attorneys, certificates and any and
all other documents relating to or filed in connection with the
Registration Statement described above.
4. Independent Contractor. The Administrator shall for all
purposes herein be deemed to be an independent contractor and shall,
unless otherwise expressly provided herein or authorized by the Board of
Trustees of the Fund from time to time, have no authority to act for or
represent the Fund in any way or otherwise be deemed its agent.
5. Administrative Fee. As compensation for the services rendered
under this agreement, the Fund shall pay to the Administrator a fee at
an annual rate of 0.325% of the average daily net assets of each
Portfolio that were invested in such Portfolio through the Separate
Account. The fee payable to the Administrator for all of the Portfolios
shall be computed and accrued daily and paid [quarterly]. If the
Administrator shall serve for less than any whole month, the foregoing
compensation shall be prorated.
6. Non-Exclusivity. It is understood that the services of the
Administrator hereunder are not exclusive, and the Administrator shall
be free to render similar services to other investment companies and
other clients.
7. Expenses. During the term of this agreement, the Administrator
will pay all ordinary expenses incurred by it in connection with its
obligations under this agreement.
8. Standard of Care. The Administrator shall not be liable for any
error of judgment or mistake of law or for any loss suffered by the Fund
in connection with matters to which this agreement relates, except a
loss resulting from willful misfeasance, bad faith or gross negligence
on its part in the performance of its duties or the reckless disregard
by it of its obligations and duties under this agreement.
9. Terms and Continuation. This agreement shall take effect as of
the date indicated above, and shall remain in effect, unless sooner
terminated as provided herein, for two years from such date, and shall
continue thereafter on an annual basis with respect to the Portfolios
provided that such continuance is specifically approved at least
annually (a) by the vote of a majority of the Board of Trustees of the
Fund, or (b) by vote of a majority of the outstanding voting shares of
the Portfolios, and provided continuance is also approved by the vote of
the majority of the Board of Trustees of the Fund who are not parties to
this agreement or "interested persons" (as defined in the 0000 Xxx) of
the Fund, or the Administrator, cast in person at a meeting called for
the purpose of voting on such approval.
This agreement may be terminated:
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(a) by the Fund at any time with respect to the services provided
by the Administrator, by vote of a majority of the entire Board of
Trustees of the Fund or by a vote of a majority of the outstanding
voting shares of the Fund or, with respect to a particular" Portfolio,
by vote of a majority of the outstanding voting shares of such
Portfolio, on sixty (60) days' written notice to the Administrator;
(b) by the Administrator at any time, without the payment of any
penalty, upon sixty (60) days' written notice to the Fund.
10. Notice. Any notice shall be sufficiently given when sent by
registered or certified mail to the other party at the address of such
party set forth below or at such other address as such party may from
time to time specify in writing to the other party.
If to the Administrator:
American Skandia Life Assurance Company
Xxx Xxxxxxxxx Xxxxx
X.X. Xxx 000
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: Xxxxx Xxxxxxxxxx
If to the Fund:
First Trust Defined Portfolio Fund, LLC
0000 Xxxxxxxxxxx Xxxx, Xxxxx 000
Xxxxx, Xxxxxxxx 00000
Attention: General Counsel
11. Fund Obligations. The Certificate of Formation of the Fund on
file with the Secretary of State of the State of Delaware was executed
on behalf of the Fund by its authorized person, and any obligation of
the Fund shall be binding only upon the assets of the Fund (or
applicable series thereof) and shall not be binding upon any trustee,
officer, employee, agent, member or shareholder of the Fund. Neither the
authorization of any action by any trustee, officer, employee, agent,
member or shareholder of the Fund nor the execution of this agreement on
behalf of the Fund shall impose any liability upon any trustee, officer,
employee, agent, member or shareholder of the Fund.
12. Counterparts. This agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original.
13. Miscellaneous. (a) This agreement shall be governed by
Illinois law (without regard to principles of conflicts of law) except
for Section 11, which shall be governed by Delaware law; provided that
nothing herein shall be construed in a manner inconsistent with the 1940
Act or any rule or regulation of the Securities and Exchange Commission
thereunder.
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(b) If any provision of this agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder
of this agreement shall not be affected thereby.
(c) The captions in this agreement are included for convenience
only and in no way define any of the provisions hereof or otherwise
affect their construction or effect.
(d) This agreement may not be assigned (as defined under the 0000
Xxx) by the Fund or the Administrator without the consent of the other
party.
(e) This agreement shall be binding upon and shall inure to the
benefit of the parties hereto and their respective successors.
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In Witness Whereof, the parties hereto have caused this instrument to be
executed by their officers designated below on the day and year first
above written.
First Trust Defined Portfolio Fund, LLC,
a Delaware limited liability company
By /s/ Xxxxx X. Xxxxx, President
________________________________
American Skandia Life Assurance Corporation,
a Connecticut stock life insurance company
By /s/ Xxxxxx X. Xxxxxxx, Deputy Chief
Executive Officer and President
________________________________
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