SHAREHOLDER SERVICES AGREEMENT
THIS SHAREHOLDER SERVICES AGREEMENT is made and entered into as of
November 13, 2001 by and between The American Life Insurance Company of New York
(the "Company"), Royce & Associates, Inc. (the "Adviser") and Royce Capital Fund
(the "Trust" and together with the Adviser, "Fund Parties").
WHEREAS, the Company offers to the public certain group and individual
variable annuity and variable life insurance contracts (the "Contracts"); and
WHEREAS, the Company wishes to make available as investment options
under the Contracts shares of Royce Small-Cap Portfolio and Royce Micro-Cap
Portfolio (each, a "Fund" and together, the "Funds"), each a series of the Trust
registered under the Investment Company Act of 1940, as amended; and
WHEREAS, on the terms and conditions hereinafter set forth, the Fund
Parties desire to make shares of the Funds available as investment options under
the Contracts and to retain the Company to perform certain administrative
services on behalf of the Funds, and the Company is willing and able to furnish
such services;
NOW, THEREFORE, the Company and the Fund Parties agree as follows:
1. TRANSACTIONS IN THE FUNDS. Subject to the terms and conditions
of this Agreement, the Fund Parties will cause the Trust to make shares of the
Funds available to be purchased, exchanged, or redeemed, by or on behalf of the
Accounts (defined in SECTION 7(a) below) through a single account per Fund at
the net asset value applicable to each order. The Funds' shares shall be
purchased and redeemed on a net basis in such quantity and at such time as
determined by the Company to satisfy the requirements of the Contracts for which
the Funds serve as underlying investment media. Dividends and capital gains
distributions will be automatically reinvested in full and fractional shares of
the Funds.
2. ADMINISTRATIVE SERVICES. The Company agrees to provide all
administrative services for the Contract owners, including but not limited to
those services specified in EXHIBIT A (the "Administrative Services"). Neither
the Adviser nor the Trust shall be required to provide Administrative Services
for the benefit of Contract owners. The Company agrees that it will maintain and
preserve all records as required by law to be maintained and preserved in
connection with providing the Administrative Services, and will otherwise comply
with all laws, rules and regulations applicable to the marketing of the
Contracts and the provision of the Administrative Services. Upon request, the
Company will provide Fund Parties or their representatives reasonable
information regarding the quality of the Administrative Services being provided
and its compliance with the terms of this Agreement.
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3. TIMING OF TRANSACTIONS. Fund Parties hereby appoint the Company
as agent for the Funds for the limited purpose of accepting purchase and
redemption orders for Fund shares from the Contract owners. On each day the
New York Stock Exchange (the "Exchange") is open for business (each, a
"Business Day"), the Company may receive instructions from the Contract
owners for the purchase or redemption of shares of the Funds ("Orders").
Orders received and accepted by the Company prior to the close of regular
trading on the Exchange (the "Close of Trading") on any given Business Day
(currently, 4:00 p.m. Eastern time) and transmitted to the Funds' transfer
agent by 10:00 p.m. Eastern time on such Business Day will be executed at the
net asset value determined as of the Close of Trading on such Business Day.
Any Orders received by the Company on such day but after the Close of
Trading, and all Orders that are transmitted to the Funds' transfer agent
after 10:00 p.m. Eastern time on such Business Day, will be executed at the
net asset value determined as of the Close of Trading on the next Business
Day following the day of receipt of such Order. The day as of which an Order
is executed by the Funds' transfer agent pursuant to the provisions set forth
above is referred to herein as the "Trade Date". All orders are subject to
acceptance or rejection by Fund Parties in their sole discretion.
4. PROCESSING OF TRANSACTIONS.
(a) If transactions in Fund shares are to be settled directly with
the Funds' transfer agent, the following provisions shall apply:
(1) By 6:30 p.m. Eastern time on each Business Day, Fund
Parties (or one of its affiliates or designees) will provide to the Company via
electronic transmission acceptable to the Company the Funds' net asset value,
dividend and capital gain information and, in the case of income funds, the
daily accrual for interest rate factor (mil rate), determined at the Close of
Trading.
(2) By 10:00 p.m. Eastern time on each Business Day, the
Company will provide to Fund Parties or their designees via electronic
transmission acceptable to Fund Parties a report stating whether the
instructions received by the Company from Contract owners by the Close of
Trading on such Business Day resulted in the Accounts being a net purchaser or
net seller of shares of the Funds. As used in this Agreement, the phrase "other
electronic transmission acceptable to Fund Parties" includes the use of remote
computer terminals located at the premises of the Company, its agents or
affiliates, which terminals may be linked electronically to the computer system
of Fund Parties, their agents or affiliates (hereinafter, "Remote Computer
Terminals").
(3) Upon the timely receipt from the Company of the report
described in (2) above, the Funds' transfer agent will execute the purchase or
redemption transactions (as the case may be) at the net asset value computed as
of the Close of Trading on the Trade Date. Payment for net purchase transactions
shall be made by wire transfer to the applicable Fund custodial account
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designated by the Funds on the Business Day next following the Trade Date. Such
wire transfers shall be initiated by the Company's bank prior to 4:00 p.m.
Eastern time and received by the Funds prior to 6:00 p.m. Eastern time on the
Business Day next following the Trade Date ("T+1"). If payment for a purchase
Order is not timely received, such Order will be, at Fund Parties' option,
either (i) executed at the net asset value determined on the Trade Date, and the
Company shall be responsible for all costs to Fund Parties resulting from such
delay, or (ii) executed at the net asset value next computed following receipt
of payment. Payments for net redemption transactions shall be made by wire
transfer by the Fund Parties to the account(s) designated by the Company on T+1;
PROVIDED, HOWEVER, the Fund Parties reserve the right to settle redemption
transactions within the time period set forth in the applicable Fund's
then-current prospectus. On any Business Day when the Federal Reserve Wire
Transfer System is closed, all communication and processing rules will be
suspended for the settlement of Orders. Orders will be settled on the next
Business Day on which the Federal Reserve Wire Transfer System is open and the
original Trade Date will apply.
5. PROSPECTUS AND PROXY MATERIALS.
(a) Fund Parties shall electronically provide in pdf format the
Company with copies of the Trust's proxy materials, periodic fund reports to
shareholders and other materials that are required by law to be sent to the
Trust's shareholders. In addition, to the extent applicable, Fund Parties shall
provide the Company with a sufficient quantity of prospectuses of the Funds to
be used in conjunction with the transactions contemplated by this Agreement,
together with such additional copies of the Funds' prospectuses as may be
reasonably requested by Company. If the Company provides for pass-through voting
by the Contract owners, or if the Company determines that pass-through voting is
required by law, Fund Parties will provide the Company with a sufficient
quantity of proxy materials for each, as directed by the Company.
(b) The cost of preparing, printing and shipping of the
prospectuses, periodic fund reports and other materials of the Trust to the
Company shall be paid by Fund Parties or their agents or affiliates; PROVIDED,
HOWEVER, that if at any time Fund Parties or their agents reasonably deem the
usage by the Company of such items to be excessive, it may, prior to the
delivery of any quantity of materials in excess of what is deemed reasonable,
request that the Company demonstrate the reasonableness of such usage. If Fund
Parties believe the reasonableness of such usage has not been adequately
demonstrated, they may request that the party responsible for such excess usage
pay the cost of printing (including press time) and delivery of any excess
copies of such materials. Unless the Company agrees to make such payments, Fund
Parties may refuse to supply such additional materials and Fund Parties shall be
deemed in compliance with this SECTION 5 if it delivers to the Company at least
the number of prospectuses and other materials as may be required by the Trust
under applicable law.
(c) The cost of any distribution of prospectuses, proxy materials,
periodic fund reports and other materials of the Trust to the Contract owners
shall be paid by the Company and shall not be the responsibility of Fund Parties
or the Trust.
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6. COMPENSATION AND EXPENSES.
(a) The Accounts shall be the sole shareholder of Fund shares
purchased for the Contract owners pursuant to this Agreement (the "Record
Owner"). The Record Owner shall properly complete any applications or other
forms required by Fund Parties or the Trust from time to time.
(b) Fund Parties acknowledges that the Funds will derive a
substantial savings in administrative expenses, such as a reduction in expenses
related to postage, shareholder communications and recordkeeping, by virtue of
having a single shareholder account per Fund for the Accounts rather than having
each Contract owner as a shareholder. In consideration of the Administrative
Services and performance of all other obligations under this Agreement by the
Company, Fund Parties will pay the Company a fee (the "Administrative Services
Fee") equal to __ basis points (____%) per annum of the average aggregate amount
invested by the Company in shares of the Funds under this Agreement. Each Fund
will be obligated to pay that portion of the Administrative Services Fee
designated by the Fund as representing transfer agent, recordkeeping,
administrative servicing and/or shareholder servicing fees which the Fund would
otherwise pay if the Accounts were direct shareholders of the Fund. The Adviser,
or its designee, will pay any portion of the Administrative Services Fee not
paid by the Funds. The payments received by the Company under this SECTION 6(b)
are for administrative and shareholder services only and do not constitute
payment in any manner for investment advisory services.
(c) Reserved.
(d) For the purposes of computing the payments to the Company
contemplated by this SECTION 6, the average aggregate amount invested by the
Company on behalf of the Accounts in the Funds over a one month period shall be
computed by totaling the Company's aggregate investment (share net asset value,
as reported by Fund Parties or their affiliates or designees to the Company,
multiplied by total number of shares of the Funds held by the Company) on each
Business Day during the month and dividing by the total number of Business Days
during such month.
(e) The Company will provide to Fund Parties an invoice indicating
the amount of the payments to be made pursuant to this SECTION 6 at the end of
each calendar quarter and Fund Parties will make such payment to the Company
within 30 days after receiving such invoice. The invoice will be accompanied by
a statement showing the calculation of the amounts to be paid by Fund Parties
for the relevant months and such other supporting data as may be reasonably
requested by Fund Parties. Fund Parties shall mail the payment check to:
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The American Life Insurance Company of New York
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Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
Phone No.: ▇▇▇-▇▇▇-▇▇▇▇
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
7. REPRESENTATIONS.
(a) The Company represents and warrants that (i) this Agreement has
been duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; (ii) it has established The
American Separate Account 5 (the "Account"), which is a duly authorized and
established separate account under New York Insurance law, and has registered
the Account as a unit investment trust under the Investment Company Act of 1940
(the "1940 Act") to serve as an investment vehicle for the Contracts; (iii) each
Contract provides for the allocation of net amounts received by the Company to
an Account for investment in the shares of one or more specified investment
companies selected among those companies available through the Account to act as
underlying investment media; (iv) selection of a particular investment company
is made by the Contract owner under a particular Contract, who may change such
selection from time to time in accordance with the terms of the applicable
Contract; and (v) the activities of the Company contemplated by this Agreement
comply in all material respects with all provisions of federal and state
securities laws applicable to such activities.
(b) Fund Parties represent that (i) this Agreement has been duly
authorized by all necessary corporate action and, when executed and delivered,
shall constitute the legal, valid and binding obligation of Fund Parties,
enforceable in accordance with its terms; (ii) the prospectus of each Fund
complies in all material respects with federal and state securities laws, and
(iii) shares of the Trust are registered and authorized for sale in accordance
with all federal and state securities laws.
8. ADDITIONAL COVENANTS AND AGREEMENTS.
(a) Each party shall comply with all provisions of federal and state
laws applicable to its respective activities under this Agreement. All
obligations of each party under this Agreement are subject to compliance with
applicable federal and state laws.
(b) Each party shall promptly notify the other party in the event
that it is, for any reason, unable to perform any of its obligations under this
Agreement.
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(c) The Company covenants and agrees that all Orders accepted and
transmitted by it hereunder with respect to each Account on any Business Day
will be based upon instructions that it received from the Contract owners, in
proper form prior to the Close of Trading of the Exchange on that Business Day.
The Company shall time stamp all Orders or otherwise maintain records that will
enable the Company to demonstrate compliance with SECTION 8(c) hereof.
(d) The Company covenants and agrees that all Orders transmitted to
the Trust, whether by telephone, telecopy, or other electronic transmission
acceptable to Fund Parties, shall be sent by or under the authority and
direction of a person designated by the Company as being duly authorized to act
on behalf of the owner of the Accounts. Fund Parties shall be entitled to rely
on the existence of such authority and to assume that any person transmitting
Orders for the purchase, redemption or transfer of Fund shares on behalf of the
Company is "an appropriate person" as used in Sections 8-107 and 8-401 of the
Uniform Commercial Code with respect to the transmission of instructions
regarding Fund shares on behalf of the owner of such Fund shares. The Company
shall maintain the confidentiality of all passwords and security procedures
issued, installed or otherwise put in place with respect to the use of Remote
Computer Terminals and assumes full responsibility for the security therefor.
The Company further agrees to be responsible for the accuracy, propriety and
consequences of all data transmitted to Fund Parties by the Company by
telephone, telecopy or other electronic transmission acceptable to Fund Parties.
(e) The Company agrees that, to the extent it is able to do so, it
will use its best efforts to give equal emphasis and promotion to shares of the
Funds as is given to other underlying investments of the Accounts, subject to
applicable Securities and Exchange Commission rules. In addition, the Company
shall not impose any fee, condition, or requirement for the use of the Funds as
investment options for the Contracts that operates to the specific prejudice of
the Funds VIS-A-VIS the other investment media made available for the Contracts
by the Company.
(f) The Company shall not, without the written consent of Fund
Parties, make representations concerning the Trust or the shares of the Funds
except those contained in the then-current prospectus and in current printed
sales literature approved by Fund Parties or the Trust.
(g) Advertising and sales literature with respect to the Trust or
the Funds prepared by the Company or its agents, if any, for use in marketing
shares of the Funds as underlying investment media to Contract owners shall be
submitted to Fund Parties for review and written approval before such material
is used.
9. USE OF NAMES. Except as otherwise expressly provided for in this
Agreement, neither Fund Parties nor any of their affiliates nor the Funds shall
use any trademark, trade name, service ▇▇▇▇ or logo of the Company, or any
variation of any such trademark, trade name, service ▇▇▇▇ or logo, without the
Company's prior written consent, the granting of which shall be at the Company's
sole option. Except as otherwise expressly provided for in this Agreement, the
Company shall not use any trademark, trade name, service ▇▇▇▇ or logo of the
Trust, Fund Parties
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or any variation of any such trademarks, trade names, service marks, or logos,
without the prior written consent of either the Trust or Fund Parties, as
appropriate, the granting of which shall be at the sole option of Fund Parties
and/or the Trust.
10. PROXY VOTING.
(a) The Company shall provide pass-through voting privileges to all
Contract owners so long as the SEC continues to interpret the 1940 Act as
requiring such privileges. It shall be the responsibility of the Company to
assure that it and the separate accounts of the other Participating Companies
(as defined in SECTION 12(a) below) participating in any Fund calculate voting
privileges in a consistent manner.
(b) The Company will electronically or otherwise distribute to
Contract owners all proxy material furnished by Fund Parties and will vote
shares in accordance with instructions received from such Contract owners. The
Company shall vote Fund shares for which no voting instructions are received in
the same proportion as shares for which such instructions have been received.
The Company and its agents shall not oppose or interfere with the solicitation
of proxies for Fund shares held for such Contract owners.
11. INDEMNITY.
(a) The Adviser agrees to indemnify and hold harmless the Company
and its officers, directors, employees, agents, affiliates and each person, if
any, who controls the Company within the meaning of the Securities Act of 1933
(collectively, the "Indemnified Parties" for purposes of this SECTION 11(a))
against any losses, claims, expenses, damages or liabilities (including amounts
paid in settlement thereof) or litigation expenses (including legal and other
expenses) (collectively, "Losses"), to which the Indemnified Parties may become
subject, insofar as such Losses result from a breach by Fund Parties of a
material provision of this Agreement. The Adviser will reimburse any legal or
other expenses reasonably incurred by the Indemnified Parties in connection with
investigating or defending any such Losses. The Adviser shall not be liable for
indemnification hereunder if such Losses are attributable to the negligence or
misconduct of the Company in performing its obligations under this Agreement.
(b) The Company agrees to indemnify and hold harmless the Adviser
and the Trust, and their respective officers, directors, trustees, employees,
agents, affiliates and each person, if any, who controls the Trust or the
Adviser within the meaning of the Securities Act of 1933 (collectively, the
"Indemnified Parties" for purposes of this SECTION 11(b)) against any Losses to
which the Indemnified Parties may become subject, insofar as such Losses result
from a breach by the Company of a material provision of this Agreement or the
use by any person of the Remote Computer Terminals. The Company will reimburse
any legal or other expenses reasonably incurred by the Indemnified Parties in
connection with investigating or defending any such Losses. The Company shall
not be liable for indemnification hereunder if such Losses are attributable to
the
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negligence or misconduct of the Adviser or the Trust in performing their
obligations under this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of
notice of the commencement of action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party hereunder, notify
the indemnifying party of the commencement thereof; but the omission so to
notify the indemnifying party will not relieve it from any liability which it
may have to any indemnified party otherwise than under this SECTION 11. In case
any such action is brought against any indemnified party, and it notifies the
indemnifying party of the commencement thereof, the indemnifying party will be
entitled to participate therein and, to the extent that it may wish to, assume
the defense thereof, with counsel satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this SECTION 11 for any legal or other
expenses subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation.
(d) If the indemnifying party assumes the defense of any such
action, the indemnifying party shall not, without the prior written consent of
the indemnified parties in such action, settle or compromise the liability of
the indemnified parties in such action, or permit a default or consent to the
entry of any judgment in respect thereof, unless in connection with such
settlement, compromise or consent, each indemnified party receives from such
claimant an unconditional release from all liability in respect of such claim.
12. POTENTIAL CONFLICTS
(a) The Company has received a copy of an application for exemptive
relief, as amended, filed by the Trust on February 9, 1996, with the SEC and the
order issued by the SEC in response thereto (the "Shared Funding Exemptive
Order"). The Company has reviewed the conditions to the requested relief set
forth in such application for exemptive relief. As set forth in such
application, the Board of Trustees of the Trust (the "Board") will monitor the
Trust for the existence of any material irreconcilable conflict between the
interests of the contract owners of all separate accounts ("Participating
Companies") investing in funds of the Trust. An irreconcilable material conflict
may arise for a variety of reasons, including: (i) an action by any state
insurance regulatory authority; (ii) a change in applicable federal or state
insurance, tax, or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretative letter, or any similar actions by
insurance, tax or securities regulatory authorities; (iii) an administrative or
judicial decision in any relevant proceeding; (iv) the manner in which the
investments of any portfolio are being managed; (v) a difference in voting
instructions given by variable annuity contract owners and variable life
insurance contract owners; or (vi) a decision by an insurer to disregard the
voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
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(b) The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order by providing
the Board with all information reasonably necessary for the Board to consider
any issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever contract owner voting instructions are
disregarded.
(c) If a majority of the Board, or a majority of its disinterested
Board members, determines that a material irreconcilable conflict exists with
regard to contract owner investments in a Fund, the Board shall give prompt
notice to all Participating Companies. If the Board determines that the Company
is responsible for causing or creating said conflict, the Company shall at its
sole cost and expense, and to the extent reasonably practicable (as determined
by a majority of the disinterested Board members), take such action as is
necessary to remedy or eliminate the irreconcilable material conflict. Such
necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from
the Fund and reinvesting such assets in a different
investment medium or submitting the question of
whether such segregation should be implemented to a
vote of all affected contract owners and as
appropriate, segregating the assets of any
appropriate group (i.e., annuity contract owners,
life insurance contract owners, or variable contract
owners of one or more Participating Companies) that
votes in favor of such segregation, or offering to
the affected contract owners the option of making
such a change; and/or
(ii) establishing a new registered management investment
company or managed separate account.
(d) If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard its contract owner voting instructions and
said decision represents a minority position or would preclude a majority vote
by all of its contract owners having an interest in the Trust, the Company at
its sole cost, may be required, at the Board's election, to withdraw an
Account's investment in the Trust and terminate this Agreement; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested members of the Board.
(e) For the purpose of this SECTION 12, a majority of the
disinterested Board members shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Trust be required to establish a new funding medium for any Contract. The
Company shall not be required by this SECTION 12 to establish a new funding
medium for any Contract if an offer to do so has been declined by vote of a
majority of the Contract owners materially adversely affected by the
irreconcilable material conflict.
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13. TERMINATION; WITHDRAWAL OF OFFERING. This Agreement may be
terminated by either party upon 180 days' prior written notice to the other
party. Notwithstanding the above, the Trust reserves the right, without prior
notice, to suspend sales of shares of any Fund, in whole or in part, or to make
a limited offering of shares of any of the Funds in the event that (A) any
regulatory body commences formal proceedings against the Company, the Adviser,
affiliates of the Adviser, or the Trust, which proceedings the Adviser
reasonably believes may have a material adverse impact on the ability of the
Adviser, the Trust or the Company to perform its obligations under this
Agreement or (B) in the judgment of the Adviser, declining to accept any
additional instructions for the purchase or sale of shares of any such Fund is
warranted by market, economic or political conditions. Notwithstanding the
foregoing, this Agreement may be terminated immediately (i) by any party as a
result of any other breach of this Agreement by another party, which breach is
not cured within 30 days after receipt of notice from the other party, or (ii)
by any party upon a determination that continuing to perform under this
Agreement would, in the reasonable opinion of the terminating party's counsel,
violate any applicable federal or state law, rule, regulation or judicial order.
Termination of this Agreement shall not affect the obligations of the parties to
make payments under SECTION 4 for Orders received by the Company prior to such
termination and shall not affect the Trust's obligation to maintain the Accounts
as set forth by this Agreement. Following termination, the Fund Parties shall
not have any Administrative Services payment obligation to the Company (except
for payment obligations accrued but not yet paid as of the termination date).
14. NON-EXCLUSIVITY. Both parties acknowledge and agree that this
Agreement and the arrangement described herein are intended to be non-exclusive
and that each party is free to enter into similar agreements and arrangements
with other entities.
15. SURVIVAL. The provisions of SECTION 9 (Use of Names) and
SECTION 11 (Indemnity) of this Agreement shall survive termination of this
Agreement.
16. AMENDMENT. Neither this Agreement, nor any provision hereof,
may be amended, waived, discharged or terminated orally, but only by an
instrument in writing signed by all of the parties hereto.
17. NOTICES. All notices and other communications hereunder shall
be given or made in writing and shall be delivered personally, or sent by telex,
telecopier, express delivery or registered or certified mail, postage prepaid,
return receipt requested, to the party or parties to whom they are directed at
the following addresses, or at such other addresses as may be designated by
notice from such party to all other parties.
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To the Company:
The American Life Insurance Company of New York
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▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (office number)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax number)
Attention: General Counsel
To the Fund Parties:
Royce & Associates, Inc.
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(▇▇▇) ▇▇▇-▇▇▇▇ (office number)
(▇▇▇) ▇▇▇-▇▇▇▇ (fax number)
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
cc: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
Any notice, demand or other communication given in a manner prescribed in this
SECTION 17 shall be deemed to have been delivered on receipt.
18. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned
without the written consent of both parties to the Agreement at the time of such
assignment. This Agreement shall be binding upon and inure to the benefit both
parties hereto and their respective permitted successors and assigns.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
20. SEVERABILITY. In case any one or more of the provisions
contained in this Agreement should be invalid, illegal or unenforceable in any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired thereby.
21. ENTIRE AGREEMENT. This Agreement, including the attachments
hereto, constitutes the entire agreement between the parties with respect to the
matters dealt with herein, and supersedes all previous agreements, written or
oral, with respect to such matters.
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If the foregoing correctly sets forth our understanding, please
indicate your agreement to and acceptance thereof by signing below, whereupon
this Agreement shall become a binding agreement between us as of the latest date
indicated.
ROYCE & ASSOCIATES, INC.
ROYCE CAPITAL FUND
By:
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Name:
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Title:
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Date:
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We agree to and accept the terms of the foregoing Agreement.
THE AMERICAN LIFE INSURANCE
COMPANY OF NEW YORK
By:
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Name:
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Title:
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Date:
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EXHIBIT A
ADMINISTRATIVE SERVICES
Pursuant to the Agreement to which this is attached, the Company shall perform
all administrative and shareholder services required or requested under the
Contracts with respect to the Contract owners, including, but not limited to,
the following:
1. Maintain separate records for each Contract owner, which records
shall reflect the shares purchased and redeemed and share balances of such
Contract owners. The Company will maintain a single master account with each
Fund on behalf of the Contract owners and such account shall be in the name of
the Company (or its nominee) as the record owner of shares owned by the Contract
owners.
2. Disburse or credit to the Contract owners all proceeds of
redemptions of shares of the Funds and all dividends and other distributions not
reinvested in shares of the Funds.
3. Prepare and transmit to the Contract owners, as required by law
or the Contracts, periodic statements showing the total number of shares owned
by the Contract owners as of the statement closing date, purchases and
redemptions of Fund shares by the Contract owners during the period covered by
the statement and the dividends and other distributions paid during the
statement period (whether paid in cash or reinvested in Fund shares), and such
other information as may be required, from time to time, by the Contracts.
4. Transmit purchase and redemption orders to the Funds on behalf
of the Contract owners in accordance with the procedures set forth in SECTION 4
to the Agreement.
5. Distribute to the Contract owners copies of the Funds'
prospectus, proxy materials, periodic fund reports to shareholders and other
materials that the Funds are required by law or otherwise to provide to their
shareholders or prospective shareholders.
6. Maintain and preserve all records as required by law to be
maintained and preserved in connection with providing the Administrative
Services for the Contracts.
B-1