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EXHIBIT (A)(8)(c)
INVESTMENT SERVICES AGREEMENT
This Investment Services Agreement (this "Agreement") is made
effective as of 12:01 a.m., Eastern Standard Time, on the 1st day of October,
1997 ("Effective Date"), by and between THE MANUFACTURERS LIFE INSURANCE
COMPANY, a corporation organized under the Insurance Company Act (Canada)
("Provider") and THE MANUFACTURERS LIFE INSURANCE COMPANY OF NEW YORK, a New
York stock life insurance corporation ("Company").
WHEREAS, Provider has extensive experience in investment
operations; and
WHEREAS, the Company is a party to an Investment Services
Agreement effective July 8, 1992 with ▇▇▇▇▇▇▇ & Page, a subsidiary of Provider
(the "Prior Agreement"); and
WHEREAS, Company desires Provider to perform certain
investment advisory services ("services") for Company in its investment
operations; and
WHEREAS, Provider and Company contemplate that such an
arrangement will achieve certain operating economies and improve services to the
mutual benefit of both; and
WHEREAS, Provider and Company wish to assure that all charges
for services and the use of facilities incurred hereunder are reasonable; and
WHEREAS, Provider and Company wish to identify the services to
be rendered to Company by Provider and its subsidiaries and to provide a formula
for determining the charges to be made to Company:
NOW, THEREFORE, in consideration of the premises and of the
mutual promises set forth herein, and intending to be legally bound hereby,
Provider and Company agree as follows:
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1. PERFORMANCE OF SERVICES. Subject to the terms, conditions
and limitations of this Agreement, Provider agrees to the extent requested by
Company to perform diligently and in a professional manner such services for
Company as Company determines to be reasonably necessary in the conduct of its
investment operations.
Provider agrees at all times to maintain sufficient facilities
and trained personnel of the kind necessary to perform this Agreement.
2. CAPACITY OF PERSONNEL AND STATUS OF FACILITIES. Whenever
Provider utilizes its personnel to perform services for Company pursuant to this
Agreement, such personnel shall at all times remain employees of Provider
subject solely to its direction and control, and Provider shall alone retain
full liability to such employees for their welfare, salaries, fringe benefits,
legally required employer contributions and tax obligations.
No facility of Provider used in performing services for or
subject to use by Company shall be deemed to be transferred, assigned, conveyed
or leased by performance or use pursuant to this Agreement.
3. EXERCISE OF JUDGMENT IN RENDERING SERVICES. In providing
any services hereunder which require the exercise of judgment by Provider,
Provider shall perform any such services in accordance with any standards and
guidelines Company develops and communicates to Provider. In performing any
services hereunder, Provider shall at all times act in a manner reasonably
calculated to be in or not opposed to the best interests of Company.
4. CONTROL. The performance of services by Provider for
Company pursuant to this Agreement shall in no way impair the absolute control
of the business and operations of Provider or Company by their respective Boards
of Directors. Provider shall act hereunder so as to assure the separate
operating identity of Company.
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5. SERVICES. The performance of Provider under this Agreement
with respect to the business and operations of Company, including without
limitation the kinds of investments to be purchased and sold for the account of
Company hereunder, shall at all times be subject to the direction and control of
the Board of Directors of Company.
Subject to the terms, conditions and limitations of this
Agreement, Provider shall provide to Company the services set forth in Appendix
A, which is attached hereto and made a part of this Agreement.
6. CHARGES. Charges for the services provided hereunder shall
include all direct and directly allocable expenses, reasonably and equitably
determined to be attributable to Company by Provider, plus a reasonable charge
for direct overhead, the amount of such charge for overhead to be agreed upon by
the parties from time to time. Subject to New York Insurance Department
Regulation 33, the bases for determining such charges to Company shall be those
used by Provider for internal cost distribution. Such bases shall be modified
and adjusted by mutual agreement where necessary or appropriate to reflect
fairly and equitably the actual incidence of cost incurred by Provider on behalf
of Company. Cost analyses will be made from time to time by Provider to
determine, as closely as possible, the actual cost of services rendered and
facilities made available to Company hereunder. Provider shall forward to
Company the information developed by these analyses, and such information shall
be used to develop bases for the distribution of expenses which more currently
reflect the actual incidence of cost incurred by Provider on behalf of Company.
Provider's determination of charges hereunder shall be
presented to Company, and if Company objects to any such determination, it shall
so advise Provider within thirty (30) days of receipt of notice of said
determination. Unless the parties can reconcile any such objection,
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they shall agree to the selection of a firm of independent certified public
accountants which shall determine the charges properly allocable to Company and
shall, within a reasonable time, submit such determination, together with the
basis therefor, in writing to Provider and Company 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 Provider and Company.
4. In addition, at the first regular Board of Directors meeting of the Company
immediately following the end of each calendar year during the term of this
Agreement, the Board of Directors of Company shall review the fees charged by
Provider for the preceding calendar year. If, pursuant to any such review, the
Board of Directors of Company shall determine that the fee charged by Provider
for the preceding calendar year is not reflective of the cost to Provider of
performing the services provided for hereunder, the Company shall so notify the
Provider, and such notice shall specify the amount of the fee that is reflective
of Provider's actual costs of performing the services. In such event, the fee
for the Provider's performing the services hereunder beginning on October 1 of
such year and continuing until later modified pursuant to this section (whether
by mutual agreement or pursuant to an independent accountant's determination)
shall be the amount specified in the Company's notice to Provider. Fees will be
paid quarterly in arrears.
7. PAYMENT. Provider shall submit to Company within thirty
(30) days of the end of each calendar quarter a written statement of the amount
owed by Company for services pursuant to this Agreement in that calendar
quarter, and Company shall pay to Provider within fifteen (15) days following
receipt of such written statement the amount set forth in the statement.
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8. ACCOUNTING RECORDS AND DOCUMENTS. Provider shall be
responsible for maintaining full and accurate accounts and records of all
services rendered pursuant to this Agreement and such additional information as
Company may reasonably request for purposes of its internal bookkeeping and
accounting operations. Provider shall keep such accounts and records insofar as
they pertain to the computation of charges hereunder available at its principal
offices for audit, inspection and copying by Company and persons authorized by
it or any governmental agency having jurisdiction over Company during all
reasonable business hours.
9. OTHER RECORDS AND DOCUMENTS. All books, records, and files
established and maintained by Provider by reason of its performance under this
Agreement which, absent this Agreement, would have been held by Company, shall
be deemed the property of Company, and shall be subject to examination at all
times by Company and persons authorized by it or any governmental agency having
jurisdiction over Company, and shall be delivered to Company at least quarterly.
With respect to original documents other than those provided
for in Section 5 hereof which would otherwise be held by Company and which may
be obtained by Provider in performing under this Agreement, Provider shall
deliver such documents to Company within thirty (30) days of their receipt by
Provider except where continued custody of such original documents is necessary
to perform hereunder.
10. RIGHT TO CONTRACT WITH THIRD PARTIES. Nothing herein shall
be deemed to grant Provider an exclusive right to provide services to Company,
and Company retains the right to contract with any third party, affiliated or
unaffiliated, for the performance of services as are available to or have been
requested by Company pursuant to this Agreement.
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11. CONTACT PERSON(S). Company and Provider 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 B. 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.
12. TERMINATION. This Agreement shall remain in effect until
terminated by either Provider or Company upon giving thirty (30) days or more
advance written notice. Upon termination, Provider shall promptly deliver to
Company all books and records that are, or are deemed by this Agreement to be,
the property of Company.
13. SETTLEMENT ON TERMINATION. No later than sixty (60) days
after the effective date of termination of this Agreement, Provider shall
deliver to Company a detailed written statement for all charges due and not
included in any previous statement to the effective date of termination. The
amount owed shall be due and payable within fifteen (15) days of receipt of such
statement.
14. ASSIGNMENT. This Agreement and any rights pursuant hereto
shall not be assignable by either party hereto, 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 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
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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.
15. 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.
16. ARBITRATION. Any unresolved dispute or difference between
the parties arising out of or relating to this Agreement, or the breach thereof,
except as provided in Section 3, shall be settled by arbitration in accordance
with the Commercial Arbitration Rules of the American 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 rendered by
the Arbitrator may be entered in any Court having jurisdiction thereof. The
arbitration shall take place in New York, New York.
17. 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 Provider to:
The Manufacturers Life Insurance Company
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Senior Vice President, Investments
Attention: Portfolio Manager, The Manufacturers
Life Insurance Company of New York
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If to Company to:
The Manufacturers Life Insurance Company of New York
International Corporate Center at Rye
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Vice President
or to such other persons or places as each party may from time to time designate
by written notice sent as aforesaid.
19. ENTIRE AGREEMENT. This Agreement, together with such
amendments as may from time to time be executed in writing by the parties in
accordance with Section 1505 of the New York Insurance Law, constitutes the
entire agreement and understanding between the parties in respect of the
transactions contemplated hereby and supersedes the Prior Agreement, as well as
all other prior agreements, arrangements and understandings relating to the
subject matter hereof.
20. PRIOR AGREEMENT. The Company represents that the Prior
Agreement will be terminated and appropriate authorizations will be given to
custodians of Company's assets to permit Provider to perform investment services
pursuant to this Agreement as of the Effective Date hereof.
21. SECTION HEADINGS. Section headings contained herein are
for reference purposes only and shall not affect the meaning or interpretation
of this Agreement.
22. 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 so to do, and their
respective corporate seals to be affixed hereto, as of the date and year first
above written.
(Seal) THE MANUFACTURERS LIFE INSURANCE COMPANY
BY /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Senior Vice President and General Manager,
U.S. Operations
Attest:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
(Seal) THE MANUFACTURERS LIFE INSURANCE COMPANY
OF NEW YORK
BY /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President
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APPENDIX A
INVESTMENT SERVICES
Pursuant to Paragraph 2 of the Investment Services Agreement
of which this is Appendix A, Company does hereby appoint Provider to act for
Company as its investment advisor and authorizes Provider to provide asset
management services as described herein as to all monies, stocks, bonds,
securities and mortgages held in the Company's General Account provided that:
1. All investments made by Provider on behalf of Company shall
be approved or preauthorized by the Board of Directors of Company or by such
committee of the Board charged with supervision of investments and shall be in
accordance with investment policies and objectives, rules and regulations
established periodically by the Board of Directors of Company or by such
committee of the Board charged with the supervision thereof. Provider shall
acquire or dispose of any specific investment if so directed by the Board of
Directors of Company.
2. All investments made by Provider on behalf of Company shall
be in those classes of investments prescribed by Section 1405 of the New York
Insurance Law or as otherwise permitted Company by law; provided, however, that
nothing contained herein shall authorize the Provider to purchase or dispose of
on the Company's behalf without its prior written approval any interest in real
property, mortgages or any investment not included within one of the following
categories:
(a) Cash Balances - Cash may be invested in U.S. Treasury
bills and A1, P1-rated commercial paper, bankers acceptances and certificates of
deposit.
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(b) Corporate Bonds - The purchase of corporate bonds may 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, or 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 of the National Association of
Insurance Commissioners.
(c) 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 investment grade as
defined by ▇▇▇▇▇'▇ and S&P.
(d) Mortgage-Backed Securities - The purchase of mortgage-backed
securities will be limited to:
i. The Government National Mortgage Association (GNMA);
ii. The Federal National Mortgage Association (FNMA);
iii. The Federal Home Loan Mortgage Corporation (FHLMC); or
iv. Any other entity provided that all the underlying loans
are FHA-insured or VA guaranteed loans, or are any other U.S. government
guaranteed loans.
(e) Equity Securities - Equity securities are defined to include
preferred stocks that are rated class 1 or 2 by the Securities Valuation Office
of the National Association of Insurance Commissioners, mutual fund shares and
common stocks which are traded on a national stock exchange.
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Securities shall be held in New York State in behalf of and in the name of
Company in a custodial account with a qualified fiduciary agent or in book-entry
form in the Federal Reserve of New York, all such securities, stocks, bonds and
evidences of indebtedness, to which access shall be permitted to the proper
officers of Company, and such representatives of Provider as shall be authorized
from time to time by Company.
4. Provider shall keep and maintain books and records
wherein shall be recorded the business transacted by it on behalf of, in the
name of, or on account of Company. Provider shall furnish the Company a monthly
statement of all investment activities. Provider shall also submit, on a monthly
basis, a statement of all investment activities occurring within the period in
question, as well as a summary of all investments maintained on behalf of
Company. Any and all records maintained by Provider hereunder on behalf of
Company shall be and remain the property of Company.
5. Provider is authorized and agrees as follows:
(b) To analyze, promptly upon receipt, all assets it
manages for the Company pursuant to this Agreement and thereafter, from time to
time or as requested by Company, to analyze such assets, and upon completion of
such analysis, to report to the Company its recommendations as to the sale or
other disposition of any of said assets and as to the investment of cash
available for such purpose in accordance with investment policies and objectives
established periodically by the Board of Directors of Company or by such
committee thereof charged with supervision of investments, and in connection
therewith to advise Company of any investments proposed to be made by Provider
in any assets for its own account and to permit Company the opportunity to
purchase its proportionate share of any such assets, provided that any
investment in assets to be jointly held by Company and any parent, affiliate, or
subsidiary of
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Company may be made only under a separate agreement that has been submitted to
and approved by the New York Insurance Department;
(c) To execute the specific instructions of the chief
executive officer of Company or officers designated by him with respect to the
sale, exchange, investment or other disposition of the assets managed hereunder;
(d) To receive and collect on behalf of Company and
for Company's account all sums due on the sale of any investment items held on
behalf of Company under this Agreement, regardless of whether a profit or loss
is realized, and to receive and collect for the account of Company all interest
payments, dividends, of every kind or character, receipts, income items,
profits, commissions, and other sums due or accruing under investments made
pursuant to this Agreement and in connection therewith, to reinvest, deposit, or
otherwise dispose of such monies or assets in accordance with the provisions of
this Agreement and applicable New York Insurance Laws and Regulations; and
(e) To surrender promptly for redemption any
securities managed pursuant to this Agreement with respect to which notice of
redemption is published, and to prepare, sign and file in the name of the
Company any proper certificate or other statement with respect to the ownership
of any of said assets which may be required by law upon receiving payment of any
income or principal, and to exchange temporary for definitive securities, and to
exchange securities in recapitalization and reorganizations, and to deliver
securities upon sales thereof.
6. To facilitate the delivery of securities held by
Provider, Company does hereby constitute and appoint Provider the true and
lawful attorney of Company and authorize Provider in Company's name, place and
stead to register all securities from time to time managed by Provider pursuant
to this Agreement, other than securities in bearer form, in Company's name
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and execute endorsements, assignments or other instruments of transfer of
securities so registered and due bills and dividend orders as Provider may deem
proper in connection with the transfer of any such securities, Provider being
expressly authorized to execute any such instruments either by signing Company's
name alone without any designation of itself as attorney-in-fact, or it may sign
Company's name as such attorney.
7. Whenever Provider receives and collects monies for the
account of Company, Provider will not commingle such monies with its own, but
will deposit such monies in an appropriate separate account in the name of
Company in a bank domiciled and located in the State of New York.
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APPENDIX B
CONTACT PERSON(S) FOR PROVIDER
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Senior Vice President, Investments
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Portfolio Manager, The Manufacturers Life Insurance Company
of New York
CONTACT PERSON(S) FOR COMPANY
▇▇▇▇▇▇ ▇▇▇▇▇
President
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