SERVICES AGREEMENT
THIS SERVICES AGREEMENT ("Agreement") is made and entered into as of the
24th day of April, 2002 by and between NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION (the "Insurance Company"), and AMERICAN CENTURY INVESTMENT SERVICES,
INC. ("Distributor").
WHEREAS, pursuant to that certain Participation Agreement (the
"Participation Agreement") by and between the Insurance Company and Distributor
of even date herewith, Distributor is making shares of certain mutual funds
listed in Schedule A to the Participation Agreement, as such schedule may be
amended from time to time by mutual written consent of the parties (the "Funds")
available to the Insurance Company for use as investment options under certain
individual variable annuity and variable life insurance contracts listed in
Schedule A to the Participation Agreement as such schedule may be amended from
time to time by mutual written consent of the parties (the "Contracts"); and
WHEREAS, on the terms and conditions hereinafter set forth, Distributor
desires to retain the Insurance Company to perform certain administrative
services on behalf of the Funds, and the Insurance Company is willing and able
to furnish such services or cause such services to be furnished;
NOW, THEREFORE, the Insurance Company and Distributor agree as follows:
1. ADMINISTRATIVE SERVICES. The Insurance Company agrees to provide those
administrative services for the Contract owners specified in Exhibit A hereto
(the "Administrative Services"). The Insurance 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
provision of the Administrative Services. Upon request, the Insurance Company
will provide Distributor or its representatives reasonable information regarding
the Administrative Services being provided and its compliance with the terms of
this Agreement.
2. DISTRIBUTION SERVICES. The Insurance Company agrees to provide those
distribution services specified in Exhibit B hereto (the "Distribution
Services"). The Insurance Company agrees that it will comply with all laws,
rules and regulations applicable to the provision of the Distribution Services.
3. COMPENSATION AND EXPENSES.
(a) The Separate Accounts listed on Schedule A to the Participation
Agreement shall be the sole shareholder of Fund shares purchased for the
Contract owners pursuant to this Agreement (the "Record Owner").
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(b) Distributor acknowledges that it 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 performance of the
Administrative Services under this Agreement by the Insurance Company,
Distributor will pay the Insurance Company a fee (the "Administrative Services
Fee") equal to __ basis points (_______) per annum of the average aggregate
amount invested by the Insurance Company in Class II shares of the Funds. The
payments received by the Insurance Company under this Section 3(b) are for
administrative and shareholder services only and do not constitute payment in
any manner for investment advisory services or for costs of distribution.
(c) In consideration of performance of the Distribution Services under
this Agreement, Distributor will pay the Insurance Company a fee (the
"Distribution Fee") of basis points of the average aggregate amount
invested by the Insurance Company in Class II shares of the Funds.
(d) For the purposes of computing the payments to the Insurance Company
contemplated by this Section 3, the average aggregate amount invested by the
Insurance Company on behalf of the Accounts in the Funds over a one month period
shall be computed by totaling the Insurance Company's aggregate investment
(i.e., the sum of the share net asset value multiplied by total number of shares
of the Funds held by the Insurance Company) at the end of each business day
during the calendar month and dividing the sum by the total number of business
days during such month.
(e) Distributor will calculate the amount of the payments to be made
pursuant to this Section 3 at the end of each calendar month and will make such
payment to the Insurance Company within 30 days thereafter. The check for such
payments will be accompanied by a statement showing the calculation of the
amounts being paid by Distributor for the relevant months and such other
supporting data as may be reasonably requested by the Insurance Company and
shall be mailed to:
New York Life Insurance Company
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ Jaureguilorda
Phone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
4. TERM AND TERMINATION. This Agreement shall commence on the first day
written above and shall continue in effect for so long as the Insurance Company
provides the services contemplated hereunder with respect to Contracts under
which values or monies are allocated to the Funds, or until terminated in
accordance with this Section 4. Any party may terminate this Agreement, without
penalty, on 90 days' written notice to the other party. This Agreement will
terminate automatically upon the termination of the Participation Agreement.
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Notwithstanding any such termination, Distributor will remain obligated to
pay the Insurance Company the fees specified in Section 3 above with respect to
the shares of the Funds attributable to any Contract owners as of the date of
such termination, as follows: (a) for the Administrative Services Fee, for a
period of two years after the date of such termination, and (b) for the
Distribution Fee, for so long as the Insurance Company continues to provide the
Distribution Services. This Agreement, or any provision hereof, shall survive
termination to the extent necessary for each party to perform its obligations
with respect to shares of the Funds for which a fee continues to be due
subsequent to such termination.
5. 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.
6. 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.
7. NOTICES. All notices and other communications hereunder shall be
given or made in writing and shall be deemed to have been duly given when
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 written notice from such party to
all other parties.
To Insurance Company:
New York Life Insurance and Annuity Corporation
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▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. Rock
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
To Distributor:
American Century Investment Services, Inc.
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Attention: ▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice, demand or other communication given in a manner prescribed in this
Section 7 shall be deemed to have been delivered on receipt.
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8. 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.
9. 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.
10. 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.
11. 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.
12. APPLICABLE LAW. This Agreement shall be interpreted, construed, and
enforced in accordance with the laws of the State of Maryland without reference
to the conflict of law principles thereof.
13. 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 and the Distribution Services
described herein and supersedes all previous agreements, written or oral, with
respect to such matters.
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.
AMERICAN CENTURY INVESTMENT
SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
Date: 4/24/02
We agree to and accept the terms of the foregoing Agreement.
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NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. Rock
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Name: ▇▇▇▇▇▇ ▇. Rock
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Title: Senior Vice President
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Date: 4/19/02
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EXHIBIT A
ADMINISTRATIVE SERVICES
Pursuant to the Agreement to which this is attached, the Insurance Company shall
perform all administrative and shareholder services required or requested under
the Contracts with respect to the Contract owners:
1. Maintain separate records for each Contract owner and Separate
Account, which records shall reflect the shares purchased and redeemed and share
balances of such Contract owners. The Insurance 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 Insurance 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.
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
(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 the Participation
Agreement.
5. Distribute to the Contract owners copies of the Funds' prospectus,
proxy materials, periodic fund reports to shareholders and other materials
required to be sent by the Funds to shareholders by applicable law.
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.
7. Provide telephonic support for Contract owners with respect to Fund
inquiries (not including information about performance or related to sales).
8. Provide other administrative support for the Funds as mutually agreed
between the Insurance Company and the Distributor.
A-1
EXHIBIT B
DISTRIBUTION SERVICES
Pursuant to the Agreement to which this is attached, the Insurance Company
shall perform distribution services for Class II shares of the Funds,
including, but not limited to, the following:
1. Receive and answer correspondence from prospective shareholders, including
distributing prospectuses, statements of additional information, and
shareholder reports.
2. Provide facilities to answer questions from prospective investors about
Fund shares.
3. Assist investors in completing application forms and selecting account
options.
4. Provide other reasonable assistance in connection with the distribution of
Fund shares.
B-1
