SERVICE AGREEMENT
AGREEMENT dated as of August 15, 2006, between Delaware Distributors L.P.
("Distributor"), a limited liability partnership with its principal offices at
Xxx Xxxxxxxx Xxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx, 00000, as Distributor for
Delaware VIP Trust (the "Fund"), an open-end management investment company
organized as a statutory trust under the laws of the State of Delaware, and New
York Life Insurance and Annuity Corporation (the "Company"), a Delaware
corporation having its principal office and place of business at 00 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on its behalf and on behalf of each separate
account set forth on attached SCHEDULE A as it may be amended from time to time
(the "Separate Accounts"), as issuer of variable annuities and/or variable life
insurance policies funded through the Separate Accounts for distribution (the
"Contracts").
In consideration of the promises and mutual covenants set forth in this
Agreement, the parties agree as follows:
1. SERVICES PROVIDED
The Company agrees to provide services to the Fund including the following:
a) responding to inquiries from the Company Contract owners using one or
more portfolios (each, a "Portfolio") of the Fund as an investment
vehicle regarding the services performed by the Company as they relate
to the Fund;
b) providing information to Distributor and to Contract owners with
respect to shares attributable to Contract owner accounts and
maintaining records for each Contract owner with respect to units
purchased and redeemed and unit balances;
c) printing and mailing of shareholder communications from the Fund (such
as proxies, shareholder reports, annual and semi-annual financial
statements and dividend, distribution, and tax notices) as may be
required;
d) facilitation of the tabulation of Contract owners' votes in the event
of a meeting of the shareholders;
e) communication directly with Contract owners concerning the Fund's
operations;
f) providing such other similar services as Distributor may reasonably
request pursuant to the extent permitted or required under applicable
statutes, rules, and regulations.
2. EXPENSE ALLOCATION
Subject to Paragraph 3 hereof, the Company or its affiliates shall
initially bear the costs of the following:
a) printing and distributing the Fund's prospectus, statement of
additional information and any amendments or supplements thereto,
periodic reports to shareholders, Fund proxy material, and other
shareholder communications (collectively, the "Fund Materials") to be
distributed to prospective Contract owners;
b) printing and distributing all sales literature or promotional material
developed by the Company or its affiliates and relating to the
contracts;
c) servicing Contract owners who have allocated Contract value to a
Portfolio, which servicing shall include, but is not limited to, the
items listed in Paragraph 1 of this Agreement.
3. PAYMENT OF EXPENSES
a) Distributor will pay the Company a quarterly fee equal to a percentage
of the average daily net assets of each Portfolio attributable to
Contracts, at the annual rate as set forth in the following schedule
("Portfolio Servicing Fee"), in connection with the expenses incured
by the Company under Paragraph 2 hereof: [ %] of all assets in any
Portfolio of the Fund attributable to Contracts. For purposes of
computing the payment to the Company under this paragraph, the average
daily value of shares held in the covered Separate Accounts over a
monthly period shall be computed by totaling such Separate Accounts'
aggregate investment (share net asset value multiplied by total number
of shares held by such Separate Accounts) on each day during the
calendar month, and dividing by the total number of days during such
month. The Company will deliver to Distributor a quarterly statement
showing the calculation of the amounts payable to the Company by
Distributor, along with other supporting data reasonably requested by
Distributor. The fees will be calculated based on monthly periods, but
billed quarterly. The data shall be sent in the format described in
SCHEDULE B. Unless the Company objects in writing, Distributor will
pay the fee to the Company within thirty (30) days following
Distributor's receipt of such statement from the Company. Distributor
will make payment to the Company if the fee payable to the Company
equals or exceeds $50.00 in any particular quarter. If, however,
payment due does not equal or exceed $50.00 in any particular quarter,
the Company may roll any outstanding charges forward and include them
on the Company's next quarterly statement. During the effectiveness
Period of this Agreement, and for a period of thirty (30) days
following receipt by Distributor of a final statement from the Company
in the event of a termination of this Agreement, Distributor or its
duly appointed agents or representatives may review any relevant books
and records during the Company's normal business hours for the purpose
of verifying the accuracy of the amounts billed by the Company, or the
fees paid by Distributor to the Company.
b) From time-to-time, the parties hereto shall review the Portfolio
Servicing Fee to determine whether it reasonably approximates the
incured and anticipated costs, over time of the Company in connection
with its duties hereunder. The parties agree to negotiate in good
faith any change to the Portfolio Servicing Fee requested by a party
in good faith.
c) The Fund shall have no obligation to pay the Company any fees,
including the Portfolio Servicing Fee, under this Agreement.
4. TERM OF AGREEMENT
Either party may terminate this Agreement, without penalty, on 60 days'
written notice to the other party. Unless so terminated, this Agreement
shall continue in effect for so long as Distributor or its successor(s) in
interest, or any affiliate thereof, continues to perform in a similar
capacity for the Fund, and for so long as any Contract value or any monies
attributable to the Company is allocated to a Portfolio.
5. INDEMNIFICATION
a) the Company agrees to indemnify and hold harmless Distributor and its
employees, officers, directors, agents, and affiliates from any and
all loss, liability, and expense resulting from the negligence, bad
faith or willful misfeasance of the Company under this Agreement or by
reason of the reckless disregard of the Company's obligations and
duties under this Agreement, except to the extent such loss, liability
or expense is the result of the willful misfeasance, bad faith or
negligence of Distributor in the performance of its duties under this
Agreement.
b) Distributor agrees to indemnify and hold harmless the Company and its
employees, officers, directors, agents, and affiliates from any and
all loss, liability, and expense resulting from the negligence, bad
faith or wilful misfeasance of Distributor under this Agreement or by
reason of the reckless disregard of the Distributor's obligations and
duties under this Agreement, except to the extent such loss, liability
or expense is the result of the willful misfeasance, bad faith or
negligence of the Company in the performance of its duties under this
Agreement.
6. NOTICE
Notices and communications required or permitted hereby will be given to
the following persons at the following addresses and facsimile numbers, or
such other persons, addresses or facsimile numbers as the party receiving
such notices or communications may subsequently direct in writing:
If to the Distributor:
Delaware Distributors, L.P.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, XX x0000
Att: General Counsel
Fax: 000-000-0000
If to the Company:
New York Life Insurance and Annuity Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Senior Vice President
Fax: (000) 000-0000
With a Copy to:
New York Life Insurance and Annuity Corporation
Office of the General Counsel, Variable Products Attorney
51 Madison Avenue, Room 10SB
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
7. APPLICABLE LAW
Except insofar as the Investment Company Act of 1940 or other federal laws
and regulations may be controlling, this Agreement will be construed and
the provisions hereof interpreted under and in accordance with the laws of
the State of New York, without regard for that state's conflict of laws
principles.
8. SEVERABILITY
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will
not be affected thereby.
9. RIGHTS CUMULATIVE
The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, that the parties are entitled to under
federal and state laws.
10. PARTICIPATION AGREEMENT
Nothing in this Agreement shall amend, modify or supersede any contractual
terms, obligation or covenants among or between the Company and Distributor
previously or currently in effect, including those contractual terms,
obligations or covenants contained in the Fund Participation Agreement.
11. ASSIGNMENT
Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written consent of the other
party thereto.
12. AMENDMENT
This Agreement may be amended or modified in whole or in part only by a
written agreement executed by both parties. Notwithstanding the above, the
parties to this Agreement may amend the Schedule A to this Agreement from
time to time to reflect changes in or relating to the Separate Accounts
that are the subject of this Agreement.
13. CAPTIONS
The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
14. COUNTERPARTS
This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together will constitute one and the same instrument.
15. NON-EXCLUSIVITY
The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
16. COOPERATION
Each party to this Agreement will cooperate with the other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the National Association of Securities
Dealers, Inc. and state insurance regulators) and will permit each other
and such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this Agreement or
the transactions contemplated hereby.
17. DULY AUTHORIZED AGREEMENT
Each party represents that the execution and delivery of this Agreement and
the consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate or partnership action, as applicable,
by such party and when so executed and delivered this Agreement will be the
valid and binding obligation of such party enforceable in accordance with
its terms.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers signing below.
DELAWARE DISTRIBUTORS, L.P.
By: /s/ Xxxxxxx X. Xxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Senior Vice President
SCHEDULE A
SEPARATE ACCOUNTS
NAME OF SEPARATE ACCOUNT AND DATE ESTABLISHED
NYLIAC Corporate Sponsored Variable Universal Life Separate Account-I May 24,
1996
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SCHEDULE B
CONTACT INFORMATION
- Name, phone number, e-mail, company, address of invoice contact
- How to send payment (wire instructions or check/address)
INVOICE DATA
- Date of Invoice
- Billing Period
- Company Name
- Invoice number (Created by Agent)
- Accounts by Delaware fund name & CUSIP
- Delaware fund account number
- Account Registration
- Average assets for the billing period
- Services compensation rate
- Payable Amount
