Microsoft Word 10.0.6754;EXHIBIT (8)(b)
ADMINISTRATIVE SERVICES AGREEMENT
between
TRANSAMERICA LIFE INSURANCE AND ANNUITY COMPANY
and
STATE STREET BANK AND TRUST COMPANY
for
FIXED AND/OR VARIABLE ANNUITY CONTRACTS
ADMINISTRATIVE SERVICES AGREEMENT
AGREEMENT made as of the 28th day of January, 1991, by and between Transamerica
Life Insurance and Annuity Company, a corporation having its principal office
and place of business at 0000 Xxxxx Xxxxx, Xxx Xxxxxxx, Xxxxxxxxxx 00000-0000
(the "Insurance Company") and STATE STREET BANK AND TRUST COMPANY, a
Massachusetts Trust Company having its principal office and place of business at
000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000 (the "Bank" ).
BACKGROUND
The Insurance Company is in the business of issuing annuity contracts in the
form(s) identified as Exhibit A attached hereto (each form of contract a
"Policy" and tl1e contract with each contract owner a "Contract"). The Contracts
under each Policy will be funded through investments held in the accounts
identified in Exhibit A by the name of such Policy (collectively, the "Accounts"
and any such account other than the Insurance Company's general account, a
"Separate Account"). If the investments in any Separate Account are shares of an
investment company or companies (collectively, "Investment; Companies" and each
an "Investment Company"), such Investment Company is (or Companies are)
identified in Exhibit A.
The Insurance Company desires to appoint and retain the Bank as its agent to
perform the administrative services set forth in this Agreement and the Bank
desires to accept such appointment.
NOW, THEREFORE, in consideration of the mutual covenants contained in the
Agreement, the parties agree as follows:
Article 1 Appointment as Agent
1.01 Subject to the terms and conditions set forth in this Agreement,
the Insurance Company hereby appoints and retains the Bank, and the Bank agrees
to act as the Insurance Company's agent to perform the administrative services
set forth in Exhibit B attached hereto with respect to the Contracts under each
Policy, for the term, if any, of one year (the "Initial Term") and thereafter
until terminated as hereafter provided.
Additional functions and/or procedures; can be included within Exhibit B at any
time upon mutual written consent. Such consent shall not unreasonably be
withheld.
Article 2 Fees and Expenses
2.01 The Insurance Company shall pay the Bank fees in the amount set
forth in Exhibit C hereto. Such fees are effective for the Initial Term, and the
appropriate fees shall continue annually until this Agreement is terminated
pursuant to Section 7.01 hereof, or until changed as agreed upon in writing each
year thereafter. The fees consist of:
a) An Establishment fee that is payable by the Insurance Company once
and is payable during the Initial Term;
b) A Special programming fee that is payable only if special
programming is requested by the Insurance Company and is payable after the
programming is completed in the amount and manner agreed to in writing by the
Insurance Company;
c) Contract Issuance Fee that is payable once for each contract and is
payable the month after that contract is issued;
d) PAC Processing Fee that is payable monthly only if the Insurance
Company authorizes in writing PAC as a payment method;
e) Asset Balancing Fee payable for each fund monthly.
f) Contract fee. The contract fee is either the Minimum Fee or the
Annual Fee, whichever is greater. The Minimum Fee is a monthly fee payable by
the Insurance Company each month this agreement is in effect. The Annual Fee is
a yearly amount payable by the Insurance Company one-twelfth (1/12th) thereof in
arrears on the first day of each month following the month the contract is
issued as determined by the Policy Date and thereafter for each month such
contract is in effect when the contract's policy value is zero, the contract
will be deemed no longer in effect and no fee shall be payable for the contract
subsequent to the month the contract's policy value became zero.
2.02 In addition to the fees payable pursuant to Section 2.01 hereof,
the Insurance Company shall reimburse the Bank for all out-of-pocket expenses
occurred by the Bank in connection with the services set forth in Exhibit B
hereto or requested by the Insurance Company. Reimbursement for any such expense
shall be made promptly after notice from the Bank that such expense was incurred
and in any event within thirty days thereafter. Notwithstanding the foregoing,
the Insurance Company shall advance the cost of postage for mailings to contract
owners or annuitants generally under any Policy (e.g., proxies, annual reports,
tax information) at least seven (7) days prior to the mailing date specified by
the Insurance Company or required by law.
Article 3 Representations and Warranties of the Bank
The Bank represents and warrants to the Insurance Company that:
3.01 It is a trust company duly organized and existing in good standing
under the laws of the Commonwealth of Massachusetts.
3.02 It is duly qualified to carryon its business in the Commonwealth of
Massachusetts.
3.03 It has the power and authority under the laws of the Commonwealth of
Massachusetts al1d under its charter and by- laws to enter into and perform the
administrative services contemplated in this Agreement.
3.04 All requisite corporate proceedings have been taken to authorize it to
enter into and perform the administrative services contemplated in the
Agreement.
Article 4 Representations and Warranties of the Insurance Company
The Insurance Company represents and warrants to the bank that:
4.01 It is a corporation duly organized and existing in good standing under
the laws of the State of California.
4.02 It is qualified and licensed to carryon its business in those
jurisdictions in which it transacts business and is required to be qualified or
licensed.
4.03 It has the power and authority under law and under its charter and
by-laws to enter into and perform its obligations under this Agreement.
4.05 Each registration statement required under the Securities Act of
1933, as amended, or under the securities or "blue sky" laws of any
jurisdiction, as to each policy or shares of each Investment Company is, and
will, so long during the term hereof as such Policy is, anti shares of such
Investment Company are, offered, continue to be, in effect.
4.06 Each Separate Account and each Investment Company is, and will, so
long during the term hereof as such Separate Account is, and shares of such
Investment Company are outstanding, continue to be, registered under the
Investment Company Act of 1940, as amended, only so long as required by law.
4.07 It has complied and will continue to be in compliance with all
insurance or securities laws applicable to it and the offering, sale and
maintenance or Contracts under each Policy to be serviced by the Bank hereunder.
Article 5 Indemnification
5.01 The Bank shall not be responsible for, and the Insurance Company
shall indemnify, and hold the Bank. and its officers, directors, shareholders,
employees and agents harmless from and against, any and all losses damages,
costs, charges, counsel fees, payments, expenses and liabilities arising out of
or attributable to:
(a) The breach of any representation or warranty of the Insurance
Company hereunder;
(b) The default by the Insurance Company in the performance of any
covenant or agreement of the Insurance Company hereunder;
(c) Any action taken in connection with the performance of the
obligations of the Bank under this Agreement or requested by the Insurance
Company; provided, however, that such action is taken in good faith and without
negligence or willful misconduct;
(d) Reliance upon any information, document, record or data furnished
to the Bank in connection with this Agreement reasonably believed to be genuine
(whether furnished in writing or by electronic means or in English or machine
readable form or otherwise); or provided, however, that such reliance is taken
in good faith and without negligence or willful misconduct;
(e) To the extent permitted by law, the violation of any insurance or
securities law, or any rule, regulation, order or decree issued thereunder in
connection with the performance of services hereunder.
5.02 The Insurance Company shall not be held responsible and the Bank
shall indemnify and hold the Insurance Company harmless from and against any and
all losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to any action or failure or omission to
act by the Bank as a result of the Bank's lack of good faith, negligence or
willful misconduct.
5.03 Any provision of this Agreement to the contrary notwithstanding
the Bank shall have no liability arising out of any action or failure to act:
(a) Based upon any opinion of its counsel, any instruction furnished to
it by the Insurance Company or any order or decree of any court, regulatory body
or administrative agency;
(b) Caused by any act of God, strike, equipment or transmission
failure, or event beyond its control; or
(c) In connection with any legal obligation as a result of services
provided hereunder to register, qualify or obtain a license to act as an
insurance company, broker/dealer or agency thereof.
5.04 Neither party shall be liable to the other for special or
consequential damages.
5.05 Upon receiving notice of a claim for which one party (the
"Indemnifying Party") may be required to indemnify the other (the "Indemnified
Party") " the Indemnified Party shall promptly give notice' thereof to the
Indemnifying Party; provided, however, that the obligation of the Indemnifying
Party shall not be reduced on account of the failure or delay of the Indemnified
Party to give such notice except to the extent that the Indemnifying Party is
damaged by such failure or delay. The Indemnifying Party may participate in the
defense of such claim and if it elects to so participate the Indemnified Party
will not compromise or settle such claim without the prior written consent of
the Indemnifying Party.
Article 6 Certain Covenants
6.01 All information, books, records and data supplied by one party to
the other in connection with the negotiation or carrying out of the Agreement
are and shall remain the property of the party supplying such information, books
records or data and shall be kept confidential by the other party except as may
be required by law; provided, however, that the Bank may provide information
concerning the account of any contract owner when it is advised by its counsel
that it may be held liable for its failure to provide such information.
6.02 The Insurance Company will provide instructions with respect to
any matter concerning this Agreement requested by the Bank. The Bank may rely
upon any instruction or information furnished by any person reasonably believed
by it to be an officer or agent of the Insurance Company, and shall not be held
to have notice of any change or authority of any such person until receipt of
written notice thereof from the Insurance Company.
Article 7 Termination
7.01 This Agreement may be terminated by either party effective at any
time after the Initial Term hereof, upon one hundred eighty (180) days written
notice to the other party; provided, however tha1t, either party may immediately
terminate this Agreement if its continued performance hereunder would violate
any law, rule, regulation, order or decree; provided however if the Insurance
Company has not arranged for services by a new administrative agent after having
made a good faith effort, the Agreement shall be continued for another ninety
(90) days.
7.02 The Insurance Company shall reimburse the Bank for all reasonable
and necessary out-.of-pocket expenses incurred by the Bank in connection with
such termination, including, without limitation, the retrieval and movement of
documents, records and data, unless this Agreement is terminated by the
Insurance Company on account of any material default by the Bank hereunder.
Article 8 Assignment
8.01 Except as provided in Section 8.03 below, neither this Agreement~
nor any rights or obligations hereunder may be assigned by either party without
the written consent of the other party.
8.02 This Agreement shall inure to the benefit of and be binding upon
the parties and their respective permitted successors and assigns.
8.03 The Bank may, without further consent on the part of the Insurance
Company, subcontract for the performance hereof with (i) Boston Financial Data
Services, Inc., a Massachusetts corporation ("BFDS") which is duly registered as
a transfer agent pursuant to Section 17A(c) (1) of the Securities Exchange Act
of 1934 ("Section 17A(c) (1)"), (ii) a BFDS subsidiary duly registered as a
transfer agent pursuant to Section 17A(c) (1), or (iii) a BFDS affiliate;
provided, however, that the Bank shall be as fully responsible to the Fund for
the acts and omissions of any subcontractor as it is for its own acts and
omissions.
Article 9 Miscellaneous
9.01 This Agreement constitutes the entire agreement between the
parties hereto and supersedes any prior agreement with respect to the subject
matter hereof, whether written or oral.
9.02 This Agreement may be executed in any number or counterparts, each
of which shall be deemed an original but all of which together shall constitute'
one Agreement.
9.03 This Agreement shall be governed by and construed and interpreted
under the laws of the Commonwealth of Massachusetts.
IN WITNESS WHEREOF, the parties hereto caused this Agreement to be
executed in their names and on their behalf under their seals by and through
their duly authorized officers, as of the day and year first above written.
Attest:
INSURANCE COMPANY
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STATE STREET BANK AND TRUST COMPANY
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