EXHIBIT (H)(IV)
FORM OF SUPPORT SERVICES AGREEMENT
This AGREEMENT is made this ____ day of _____ , 1998 by and between the
Xxxxxx Xxxx Mutual Funds, a Delaware business trust (the "Fund"), and Xxxxxx
Xxxx Life Insurance Company, an Illinois stock life insurance company ("Xxxxxx
Xxxx").
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 shares of beneficial interest
("Shares") in separate portfolios with each such portfolio representing
interests in a separate portfolio of securities and other assets; and
WHEREAS, the Fund currently consists of seven of portfolios and may
include other portfolios in the future (each a "Portfolio" and collectively the
"Portfolios"); and
WHEREAS, the Fund is currently available to offer shares of its
Portfolios to the Xxxxxx Xxxx Life Insurance Company Separate Account, a
segregated variable investment account consisting of seven subaccounts (the
"Separate Account") that fund variable annuity contracts offered by Xxxxxx Xxxx
("Variable Contracts"); and
WHEREAS, pursuant to a Management Agreement with Xxxxxx Xxxx Investors,
Inc. (the "Manager"), the Fund has retained the Manager to furnish certain
management and 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 Xxxxxx Xxxx 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, Xxxxxx Xxxx 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 Xxxxxx Xxxx as the support
servicer (the "Servicer") to provide certain administrative and other support
services with respect to the Portfolios for the period and on the terms set
forth in this agreement. The Servicer accepts such appointment and agrees during
such period to render the services herein set forth for the compensation herein
provided.
In the event the Fund establishes and designates additional portfolios
with respect to which it desires to retain the Servicer to render the
administrative and other support services hereunder, it shall notify the
Servicer in writing. If the Servicer 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
Servicer shall provide those administrative and support services reasonably
necessary to coordinate the activities of the Portfolios with those of the
Separate Account other than the management services provided by the Manager
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, and
recordkeeping agent, accountants, attorneys, and other parties
performing services or operational functions for the Portfolios; (ii)
providing information periodically to contract owners showing their
interest in the Separate Accounts or subaccounts thereof that invest in
the Fund or in any Portfolios thereof; (iii) addressing inquiries of
contract owners relating to investing, exchanging or transferring, or
redeeming interests under the Variable Contracts, which inquiries may
relate to the Fund or a Portfolio; (iv) providing explanations to
contract owners regarding Fund investment objectives and policies and
other information about the Fund and the Portfolios, including the
performance of the Portfolios; (v) delivering any prospectuses,
statements of additional information or annual or semi-annual reports
relating to the Fund; (vi) delivering any notices of shareholder
meetings and proxy statements accompanying such notices in connection
with general and special meetings of shareholders of the Fund under
which contract owners may have voting rights and tabulating the voting
of contract owners tendering voting instructions to the Separate
Account; (vii) coordinating the preparation of the necessary documents
with the SEC and other federal and state regulatory authorities as may
be required; and (viii) 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.] [Compare to services
covered by Management Agreement to ensure that no overlap.]
(b) The Servicer 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 Servicer:
(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 Servicer'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.
3. Documentation. The Fund has delivered copies of each of the
following documents to the Servicer 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 Servicer 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 Servicer a fee at an annual rate of
______% on the average daily net assets of each Portfolio that were invested in
such Portfolio through the Separate Account. The fee payable to the Servicer for
all of the Portfolios shall be computed and accrued daily and paid monthly. If
the Servicer 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 Servicer
hereunder are not exclusive, and the Servicer shall be free to render similar
services to other investment companies and other clients. Further, it is
understood that the Fund may offer the shares of one or more of its Portfolios
to other insurance companies to fund variable annuity and/or variable insurance
contracts.
7. Expenses. During the term of this agreement, the Servicer will pay
all ordinary expenses incurred by it in connection with its obligations under
this agreement.
8. Standard of Care. The Servicer 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 Servicer, cast in person at a meeting called for the purpose
of voting on such approval.
This agreement may be terminated:
(a) by the Fund at any time with respect to the services
provided by the Servicer, 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 Servicer;
(b) by the Servicer at any time, without the payment of
any penalty, upon sixty (60) days' written notice to the Fund.
10. Notices. 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 Servicer:
Xxxxxx Xxxx Life Insurance Company
Xxx Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: General Counsel
If to the Fund:
Xxxxxx Xxxx Mutual Funds
Xxx Xxxxxx Xxxx Xxxxx
Xxxxxxxxxxx, Xxxxxxxx 00000-0000
Attention: President
11. Fund Obligations. The Declaration of Trust of the Fund on file with
the Secretary of the State of Delaware was executed on behalf of the Fund by its
initial trustees and not individually, and any obligation of the Fund shall be
binding only upon the assets of the Fund (or applicable services thereof) and
shall not be binding upon any trustee, officer or shareholder of the Fund.
Neither the authorization of any action by the trustees or shareholders of the
Fund nor the execution of this agreement on behalf of the Fund shall impose any
liability upon any Trustee, officer 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.
(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 Servicer 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.
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.
XXXXXX XXXX MUTUAL FUNDS,
a Delaware business trust
By: _________________________________
THE XXXXXX XXXX LIFE INSURANCE COMPANY,
an Illinois stock life insurance company
By: _________________________________
