Exhibit (i)(17)
SERVICE AGREEMENT
This Agreement is made as of August 1, 2005, by and between Xxxxx
Distributors, LLC, a Delaware Limited Liability Company ("Xxxxx Distributors"),
and New York Life Insurance and Annuity Corporation, a Delaware corporation
("Insurance Company"), collectively, the "Parties."
WITNESSETH:
WHEREAS Xxxxx Distributors serves as the distributor for Xxxxx Variable
Account Fund, Inc. (the "Company") which offers shares of Xxxxx Value Portfolio,
Xxxxx Financial Portfolio, and Xxxxx Real Estate Portfolio (each a "Fund"); and
WHEREAS The Insurance Company has entered into an agreement, as of the
same date as this Agreement, with the Company and Xxxxx Distributors (the
"Participation Agreement") pursuant to which Xxxxx Distributors will make shares
of one or more of its Funds available to certain variable life insurance and/or
variable annuity contracts offered by the Insurance Company through certain
separate accounts (the "Separate Accounts") at net asset value and with no sales
charges, subject to the terms of the Participation Agreement; and
WHEREAS the Parties hereto wish to allocate the expenses in a manner that
is fair and equitable, and consistent with the best interests of Contract
Owners; and
WHEREAS the Parties hereto wish to establish a means for allocating the
expenses that does not entail the expense and inconvenience of separately
identifying and accounting for each item of Fund expense;
NOW THEREFORE, in consideration of the mutual benefits and promises
contained herein, the Parties hereto agree as follows:
I. SERVICES PROVIDED:
The Insurance Company agrees to provide services to the Company and Xxxxx
Distributors including the following:
a) responding to inquiries from Contract Owners using one or more of
the Funds as an investment vehicle regarding the services performed
by the Insurance Company as they relate to Xxxxx Distributors, the
Company or its Funds;
b) providing information to Xxxxx Distributors or the Company and to
Contract Owners with respect to shares attributable to Contract
Owner accounts;
c) facilitate the printing and mailing of shareholder communications
from Xxxxx Distributors or the Company as may be required pursuant
to the Participation Agreement;
d) communication directly with Contract Owners concerning Xxxxx
Distributors or the Company's operations;
e) providing such similar services as Xxxxx Distributors or the Company
may reasonably request to the extent permitted or required under
applicable statutes, rules and regulations.
II. PAYMENT OF EXPENSES:
In recognition of the substantial savings in administrative expenses to
Xxxxx Distributors and the Company by virtue of having a sole shareholder, the
Separate Accounts, and having that shareholder be responsible for the servicing
of the Contract Owners, Xxxxx Distributors will pay an administrative service
fee ("Service Fee") to Insurance Company as described below:
a) Xxxxx Distributors agrees to pay to the Insurance Company an amount
equal to [ ] basis points [ ] per annum of the average aggregate
amount invested by the Insurance Company in the Company under this
Agreement. Such payments will be made monthly. The parties agree
that such payments are for administrative services and investor
support services, and do not constitute payment for investment
advisory, distribution or other services. Payment of such amounts by
Xxxxx Distributors shall not increase the fees paid by the Company
or its shareholders.
b) From time to time, the Parties hereto shall review the Service Fee
to determine whether it reasonably approximates the incurred and
anticipated costs, over time, of Insurance Company in connection
with its duties hereunder. The Parties agree to negotiate in good
faith any change to the Service Fee proposed by another Party in
good faith.
c) This Agreement shall not modify any of the provisions of the
Participation Agreement, but shall supplement those provisions.
III. TERM OF AGREEMENT:
This Agreement shall continue in effect for so long as the Insurance
Company or its successor(s) in interest, or any affiliate thereof, continues to
hold shares of the Company or its Funds, and continues to perform in a similar
capacity for the Company and Xxxxx Distributors.
IV. INDEMNIFICATION:
(a) The Insurance Company agrees to indemnify and hold harmless Xxxxx
Distributors and their officers and directors, from any and all
loss, liability and expense resulting from the gross negligence or
willful wrongful act of the Insurance Company under this Agreement,
except to the extent such loss, liability or expense is the result
of the willful misfeasance, bad faith or gross negligence of the
Company or Xxxxx Distributors in the performance of its duties, or
by reason of the reckless disregard of their obligations and duties
under this Agreement.
(b) Xxxxx Distributors agrees to indemnify and hold harmless the
Insurance Company and its officers and directors from any and all
loss, liability and expense resulting from the gross negligence or
willful wrongful act of Xxxxx Distributors under this Agreement,
except to the extent that such loss, liability or expense is the
result of the willful misfeasance, bad faith or gross negligence of
the Insurance Company in the performance of its duties, or by reason
of the reckless disregard of its obligations and duties under this
Agreement.
V. 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 the Insurance Company:
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Senior Vice President
cc: Office of the General Counsel, Variable Products Attorney
If to Xxxxx Distributors:
0000 Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx Xxxx, Chief Operating Officer
VI. 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 New York law, without
regard for that state's principles of conflict of laws.
VII. EXECUTION IN COUNTERPARTS:
This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together will constitute one and the same instrument.
VII. SEVERABILITV:
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.
IX. 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.
X. HEADINGS:
The headings used in this Agreement are for purposes of reference only and
shall not limit or define the meaning of the provisions of this Agreement.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized officers
signing below.
New York Life Insurance and Annuity Corporation
("Insurance Company")
By its authorized officer,
By: /s/XXXXXX X. XXXXXX
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Title: Xxxxxx X. Xxxxxx, Senior Vice President
Date: July 22, 2005
Xxxxx Distributors, LLC
("Xxxxx Distributors")
By its authorized officer,
By: /s/XXXXXXX XXXX
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Title: Xxxxxxx Xxxx, President
Date: 07-21-05
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