ADMINISTRATIVE SERVICES AGREEMENT
New York Life Insurance and Annuity Corporation, a Delaware corporation
("INSURER"), and New York Life Investment Management LLC, a limited liability
company ("ADVISER"), (each a "Party," and, collectively, the "Parties") mutually
agree to the arrangements set forth in this Administrative Services Agreement
(the "Agreement") dated as of January 1, 2005.
WHEREAS, ADVISER is the investment adviser to the portfolios
(collectively, the "Portfolios") listed on Schedule A hereto, as may be amended
from time to time, of MainStay VP Series Fund, Inc. (the "Fund");
WHEREAS, ADVISER has entered into an Administration Agreement, dated
December 15, 1996, with the Fund regarding the provision of administrative
services with respect to the MainStay VP Basic Value, MainStay XX Xxxx, MainStay
VP Capital Appreciation, MainStay VP Cash Management, MainStay VP Common Stock,
MainStay VP Convertible, MainStay VP Developing Growth, MainStay VP Government,
MainStay VP Large Cap Growth, MainStay VP High Yield Corporate Bond, MainStay VP
Income & Growth, MainStay VP International Equity, MainStay VP S&P 500 Index,
MainStay VP Total Return and MainStay VP Value Portfolios;
WHEREAS, ADVISER has entered into a Management Agreement, dated May 15,
2001, with the Fund regarding the provision of advisory and administrative
services with respect to the MainStay VP Balanced, MainStay VP Floating Rate,
MainStay VP Mid Cap Core, MainStay VP Mid Cap Growth, MainStay VP Mid Cap Value,
MainStay VP Small Cap Growth, MainStay VP Conservative Allocation, MainStay VP
Moderate Allocation, MainStay VP Moderate Growth Allocation and MainStay VP
Growth Allocation Portfolios;
WHEREAS, INSURER issues variable life insurance policies and/or variable
annuity contracts (collectively, the "Contracts");
WHEREAS, INSURER has entered into a Participation Agreement, dated October
7, 2004 ("Participation Agreement") with the Adviser and the Fund, pursuant to
which the Fund has agreed to make shares of the Portfolios available for
purchase by one or more of the INSURER's separate accounts or divisions thereof
(each, a "Separate Account"), in connection with the allocation by Contract
owners of purchase payments to corresponding investment options offered under
the Contracts;
WHEREAS, INSURER and ADVISER expect that the Fund and its Portfolios can
derive substantial savings in administrative expenses by virtue of having one or
more Separate Accounts of INSURER each as a single shareholder of record of
Portfolio shares, rather than having numerous shareholders of such shares, and
by having INSURER perform the administrative services listed on Schedule B
hereto for the Fund in connection with the Contracts issued by INSURER;
WHEREAS, INSURER desires to be compensated for providing such
administrative services;
WHEREAS, ADVISER desires that the Fund benefit from the administrative
services performed by INSURER; and
WHEREAS, ADVISER desires to retain the administrative services of INSURER
and to compensate INSURER for providing such administrative services;
NOW, THEREFORE, the Parties agree as follows:
SECTION 1. ADMINISTRATIVE SERVICES; PAYMENTS THEREFOR.
(a) INSURER shall provide the administrative services set out in Schedule
B hereto and made a part hereof, as the same may be amended from time to time.
For the sub-administration services set forth in Section I of Schedule B,
ADVISER agrees to pay to INSURER a quarterly fee equal to an annual rate of
0.10% of the total average daily net asset values of the Portfolios
("Sub-Administration Services Fee"). For the other services set forth in Section
II of Schedule B, ADVISER agrees to pay INSURER a quarterly fee equal to an
annual rate of 0.05% of the total average daily net asset values of the
Portfolios ("Other Services Fee" and, together with the Sub-Administration
Services Fee, "Quarterly Fee"). For convenience, ADVISER shall remit all
Quarterly Fees payable to INSURER, unless otherwise instructed. Notwithstanding
the foregoing, ADVISER will not pay Quarterly Fees to INSURER with respect to
the MainStay VP Conservative Allocation, MainStay VP Moderate Allocation,
MainStay VP Moderate Growth Allocation and MainStay VP Growth Allocation
Portfolios (the "Asset Allocation Portfolios") because the Asset Allocation
Portfolios invest in shares of the other Portfolios.
(b) ADVISER shall calculate the Quarterly Fee at the end of each calendar
quarter and will make such payment to INSURER, without demand or notice by
INSURER, within 30 days thereafter, in a manner mutually agreed upon by the
Parties from time to time.
(c) At least annually, the Parties shall review the Quarterly Fee to
determine whether it is reasonable in view of the incurred and anticipated
costs, over time, of INSURER. The Parties agree to negotiate in good faith a
reduction or an increase to the Quarterly Fee as required by such review.
(d) For purposes of this Section 1, the average daily net asset value of
the shares of the Portfolios will be based on the net asset values reported by
such Portfolios to INSURER or its designee. In the event there is an error in
the net asset value for shares of a Portfolio on any day, ADVISER will use its
best efforts to correct the net asset value as soon as practicable and to report
the corrected net asset value to INSURER as soon as it is available. Pricing
errors will be corrected in accordance with the error correction policy
described in the Participation Agreement. The Quarterly Fee stated in this
Section 1 will be based on the corrected net asset value.
SECTION 2. NATURE OF PAYMENTS.
The Parties to this Agreement recognize and agree that ADVISER's payments
hereunder are for the administrative services described in Schedule B and do not
constitute payment in any manner
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for investment advisory services or for costs of distribution of Contracts or of
Portfolio shares, and are not otherwise related to investment advisory or
distribution services or expenses. The Parties to this Agreement also recognize
and agree that the fees to be paid by ADVISER hereunder are not designed to
reimburse or compensate INSURER for providing administrative services with
respect to Contracts that do not hold investment options that correspond to the
Portfolios.
SECTION 3. REPRESENTATIONS, WARRANTIES AND COVENANTS.
(a) ADVISER represents and warrants that:
(1) It has the requisite authority to enter into this Agreement
and to perform the services contemplated herein; and
(2) That the payment to INSURER of any fees pursuant hereto:
A. has been duly authorized by the Fund, the Board of
Directors of the Fund, or any other persons, if such
authorization is required;
B. is accurately disclosed in the Fund prospectus, if
such disclosure is required;
(3) It is, and will continue to be, in material conformity with
all applicable federal and state laws and regulations; and
(4) This Agreement constitutes the valid and binding obligation of
the ADVISER.
(b) INSURER represents, warrants and agrees that:
(1) It has the requisite authority to enter into this Agreement
and to perform the services contemplated herein;
(2) The performance of the services contemplated herein has been
duly authorized by all necessary corporate action on its part;
(3) It is, and will conduct its activities hereunder, in material
conformity with all applicable federal and state laws and
regulations; and
(4) This Agreement constitutes the valid and binding obligation of
the INSURER.
(c) Each Party hereto agrees to provide to the other such information or
documentation necessary for such Party to fulfill its obligations
hereunder and such other information or documentation as the other Party
may reasonably request.
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SECTION 4. TERM AND TERMINATION.
Any 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 ADVISER 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 INSURER provides the services contemplated hereunder with
respect to Contracts under which values or monies are allocated to a Portfolio.
SECTION 5. INDEMNIFICATION.
The Parties to this Agreement shall indemnify and hold harmless each other
to the same degree and under the same conditions as provided for in the
Participation Agreement to the extent those provisions apply to a Party.
SECTION 6. AMENDMENT.
This Agreement may be amended upon mutual agreement of the Parties in
writing.
SECTION 7. NOTICES.
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 ADVISER:
New York Life Investment Management LLC
00 Xxxxxxx Xxxxxx, 0x Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxxxxx
Fax: 000-000-0000
with a copy to:
New York Life Investment Management LLC
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxxxx X.X. Xxxxxxxx
Fax: 000-000-0000
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If to INSURER:
New York Life Insurance and Annuity Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx
Fax: 000-000-0000
with a copy to:
New York Life Insurance and Annuity Corporation
0 Xxxxxxxx Xxxx
Xxxxxx Xxxxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxxxxx
Fax: 000-000-0000
SECTION 8. MISCELLANEOUS.
(a) Successors and Assigns. This Agreement shall be binding upon the
Parties and their transferees, successors and assigns. The benefits of and the
right to enforce this Agreement shall accrue to the Parties and their
transferees, successors and assigns.
(b) Assignment. Neither this Agreement nor any of the rights, obligations
or liabilities of any Party hereto shall be assigned (as that term is defined in
the Investment Company Act of 1940, as amended) by either Party without the
prior written consent of the other Party.
(c) Intended Beneficiaries. Nothing in this Agreement shall be construed
to give any person or entity other than the Parties, any legal or equitable
claim, right or remedy. Rather, this Agreement is intended to be for the sole
and exclusive benefit of the Parties, as well as the Fund.
(d) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but both of which shall together constitute
one and the same instrument.
(e) Applicable Law. This Agreement shall be interpreted, construed, and
enforced in accordance with the laws of the State of New York without reference
to the conflict of law principles thereof.
(f) Severability. If any portion of this Agreement shall be found to be
invalid or unenforceable by a court or tribunal or regulatory agency of
competent jurisdiction, the remainder shall not be affected thereby, but shall
have the same force and effect as if the invalid or unenforceable portion had
not been included.
(g) Force Majeure. Neither INSURER nor ADVISER nor their respective
affiliates shall be liable to the other or to any Portfolio for any damage,
claim or other loss whatsoever caused by
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circumstances or events beyond its reasonable control, provided that such Party
has exercised such reasonable diligence as the circumstances require.
(h) Entire Agreement. This Agreement, including the attachments hereto,
constitutes the entire agreement between the Parties regarding the provision of,
and payment for, the administrative services described herein and supersedes all
previous agreements, written or oral, with respect to such matters.
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date of first above written.
NEW YORK LIFE INVESTMENT MANAGEMENT LLC
By:________________________________
Name: Xxxx X. Xxxxxxxxx
Title: Chairman
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By:________________________________
Name: Xxxx X. Xxxxx
Title: Senior Vice President
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SCHEDULE A
PORTFOLIOS
MainStay VP Balanced
MainStay VP Basic Value
MainStay XX Xxxx
MainStay VP Capital Appreciation
MainStay VP Cash Management
MainStay VP Common Stock
MainStay VP Convertible
MainStay VP Developing Growth
MainStay VP Floating Rate
MainStay VP Government
MainStay VP Large Cap Growth
MainStay VP High Yield Corporate Bond
MainStay VP Income & Growth
MainStay VP International Equity
MainStay VP S&P 500 Index
MainStay VP Total Return
MainStay VP Value
MainStay VP Mid Cap Core
MainStay VP Mid Cap Growth
MainStay VP Mid Cap Value
MainStay VP Small Cap Growth
MainStay VP Conservative Allocation
MainStay VP Moderate Allocation
MainStay VP Moderate Growth Allocation
MainStay VP Growth Allocation
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SCHEDULE B
SERVICES
INSURER shall provide certain administrative services respecting the
operations of the Fund, as set forth below. This Schedule, which may be amended
from time to time as mutually agreed upon by the Parties, constitutes an
integral part of the Agreement to which it is attached. Capitalized terms used
herein shall, unless otherwise noted, have the same meaning as the defined terms
in the Agreement to which this Schedule relates.
SUB-ADMINISTRATION SERVICES
A. RECORDS OF PORTFOLIO SHARE TRANSACTIONS; MISCELLANEOUS RECORDS
1. INSURER shall maintain master accounts with the Fund, on behalf of each
Portfolio, which accounts shall bear the name of INSURER as the record owner of
Portfolio shares on behalf of each Separate Account investing in the Portfolio.
2. INSURER shall maintain a daily journal setting out the number of shares
of each Portfolio purchased, redeemed or exchanged by Contract owners each day,
the number of share trades attributable to death benefits, annuity payouts and
charges, as well as the net purchase or redemption orders for Portfolio shares
submitted each day, to assist ADVISER and the Fund in tracking and recording
Portfolio share transactions, and to facilitate the computation of each
Portfolio's net asset value per share. INSURER shall promptly provide ADVISER
and the Fund, with a copy of such journal entries or information appearing
thereon in such format as may be reasonably requested from time to time.
3. In addition to the foregoing records, and without limitation, INSURER
shall maintain and preserve all records as required by law to be maintained and
preserved in connection with providing administrative services hereunder.
B. ORDER PLACEMENT AND PAYMENT
1. INSURER shall determine the net amount to be transmitted to the
Separate Accounts as a result of redemptions of each Portfolio's shares based on
Contract owner redemption requests, charges and benefit payments and shall
disburse or credit to the Separate Accounts all proceeds of redemptions of
Portfolio shares. INSURER shall notify the Fund of the cash required to meet
redemption payments.
2. INSURER shall determine the net amount to be transmitted to the Fund as
a result of purchases of Portfolio shares based on Contract owner purchase
payments and transfers allocated to the Separate Accounts investing in each
Portfolio. INSURER shall transmit net purchase payments to the Fund's custodian.
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C. REPORTS
1. CORPORATE GOVERNANCE
INSURER acknowledges that ADVISER may, from time to time, be called upon
by the Fund's Board of Directors ("Board"), and/or the Fund's Chief Compliance
Officer ("CCO") to provide various types of information pertaining to the
operations of the Fund and related matters, and that ADVISER also may, from time
to time, decide to provide such information to the Board and/or the CCO in its
own discretion. Accordingly, INSURER agrees to provide ADVISER and CCO with such
assistance as ADVISER or CCO may reasonably request so that ADVISER or CCO can
report such information to the Fund's Board in a timely manner. INSURER
acknowledges that such information and assistance shall be in addition to the
information and assistance required of INSURER pursuant to the Fund's mixed
funding SEC exemptive order, described in the Participation Agreement.
2. REGULATORY FILINGS AND INQUIRIES
INSURER further agrees to provide ADVISER with such assistance as ADVISER
may reasonably request with respect to the preparation and submission of reports
and other documents pertaining to the Fund to appropriate regulatory bodies and
third party reporting services.
D. MISCELLANEOUS SERVICES
INSURER shall provide such other administrative support to the Fund as
mutually agreed between INSURER and ADVISER or the Fund from time to time. Such
administrative support shall be limited to performance of usual or incidental
administration services of the type ordinarily borne by mutual funds that offer
shares to the public.
OTHER SERVICES
A. MISCELLANEOUS RECORDS
INSURER shall provide such other assistance to ADVISER and the Fund, as
may be necessary to cause various Portfolio share transactions effected by
Contract owners to be properly reflected on the books and records of the Fund.
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B. ACCOUNTING SERVICES
INSURER shall perform miscellaneous accounting services as may be
reasonably requested from time to time by ADVISER, which services shall relate
to the business contemplated by the Participation Agreement between INSURER and
the Fund, as amended from time to time. Such accounting services shall include,
without limitation, periodic reconciliation and balancing of INSURER'S books and
records with those of the Fund with respect to such matters as cash accounts,
Portfolio share purchase and redemption orders placed with the Fund, dividend
and distribution payments by the Fund, and such other accounting matters that
may arise from time to time in connection with the operations of the Fund as
related to the business contemplated by the Participation Agreement.
C. REPORTS
INSURER further agrees to provide ADVISER with such other assistance as
ADVISER may reasonably request with respect to the preparation and submission of
reports and other documents pertaining to the Fund.
D. FUND-RELATED CONTRACT OWNER SERVICES
INSURER further agrees to provide telephonic support for Contract owners,
including, without limitation, information with respect to inquiries about the
Fund and each Portfolio thereof (not including information about performance or
related to sales), communicating with Contract owners about Fund (and Separate
Account) performance, and assisting with proxy solicitations relating to the
Fund, specifically with respect to soliciting voting instructions from Contract
owners.
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