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Exhibit (8)
Service Agreement between New York Life Insurance Company and NYLIAC
(including Amendments)
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ADMINISTRATIVE, UNDERWRITING AND DISTRIBUTION AGREEMENT
AGREEMENT, made as of this 11th day of December, 1980, by and between
New York Life Insurance Company (the "Company"), a New York corporation and New
York Life Insurance and Annuity Corporation (the "Corporation"), a Delaware
corporation and wholly-owned subsidiary of the Company.
In consideration of the premises and mutual covenants contained in this
Agreement and other good and valuable consideration, the receipt of which is
acknowledged, IT IS MUTUALLY AGREED AS FOLLOWS:
1. General
The Corporation intends to engage in the life, accident and
health insurance and annuity business and in business activities reasonably and
necessarily incidental to the insurance business.
The Company will provide the Corporation with service and
facilities in connection with the sale of insurance and other activities which
relate to the business of insurance.
2. Relationship of the Parties
Neither the Company nor the Corporation shall act or hold
itself as acting as agent of the other. Employees of the Company providing
service to the Corporation, pursuant to this Agreement, shall provide such
service as employees of the Company. The facilities used in providing such
service shall be deemed to be owned and operated by the Company and, unless
otherwise provided in writing, shall not be considered as being leased to the
Corporation.
3. Compensation
All employees, officers and directors of the Corporation who
are also employees, officers and directors of the Company shall serve without
personal compensation from the Corporation. The cost of these services will be
allocated to the Corporation as provided in Section 7.
4. Contracts and Brokerage Arrangements
The Company and the Corporation each retain the right to
contract with any third party, affiliated or unaffiliated, for the performance
of services or use of facilities.
5. Selection of Agents
The Company shall submit the names of its agents to the
Corporation from which the Corporation may select individuals to represent it as
independent contractors in the sale of insurance policies and/or annuity
contracts issued by the Corporation. The Corporation and each agent selected to
represent the Corporation shall enter into a separate agreement defining the
terms of the agency between the agent and the Corporation.
6. Performance of Services and Joint Use of Facilities
A. Services
At the direction of the Corporation, the
Company will perform services of a type similar to
that which the Company customarily performs in the
course of its own insurance operations for the
Corporation. The services which the Company shall
perform in whole or in part for the Corporation may
include, but need not be limited to: accounting, tax
auditing services; legal services; actuarial
services; employee benefit plans and personnel
administration; sales services; software development
services; electronic data processing operations;
communications operations and investment services.
B. Facilities
The Company agrees to make available its
facilities to the Corporation as the Corporation may
determine to be reasonably necessary in the conduct
of its insurance operations. The facilities of the
Company which the Corporation may use in whole or in
part shall include but need not be limited to:
electronic data processing equipment; business
property, whether owned or leased; communications
equipment; security vault.
C. Best Efforts
The Company agrees at all times to use its
best efforts to maintain sufficient personnel and
facilities of the kind necessary to perform this
Agreement, in accordance with the reasonable requests
of the Corporation. If, however, the Company
determines that for any reason, including its own
needs, it is or will be unable to perform any service
or provide any facility under this Agreement, it
shall immediately notify the Corporation so that it
can make other arrangements.
D. Designation of Capacity of Personnel
Even though the Company utilizes its
personnel to perform services for the Corporation
pursuant to this Agreement, such personnel shall at
all times remain employees of the Company. The
Company shall alone retain full liability to such
personnel for their welfare, salaries, fringe
benefits, legally required employee contributions and
tax obligations.
E. Status of Facilities
No facility of the Company used in
performing services for or subject to use by the
Corporation shall be deemed to be transferred,
assigned, conveyed or leased by performance or use
pursuant to this Agreement, except as the Company and
Corporation may otherwise agree in writing. The
amount charged as rent for any facilities leased
pursuant to any such writing shall be computed in
accordance with the provisions of Section 7A of this
Agreement.
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F. Exercise of Judgment in Rendering Services
In providing any services which require the
exercise of judgment, the Company will endeavor to
perform any such service in accordance with any
reasonable and appropriate standards and guidelines
the Corporation develops and communicates to the
Company.
G. Control
The performance or receipt of services or
the making available or use of facilities pursuant to
this Agreement shall in no way impair the absolute
control of the business and operations of each of the
parties by its own Board of Directors.
The Company shall not liable for its actions or omissions in
furnishing services and facilities in good faith without gross negligence.
7. Income and Expenses
The Corporation shall be entitled to all income
realized on the sale of its insurance policies and annuity contracts and on its
investments and shall be responsible for all expenses incurred in its behalf.
Expenses incurred by the Company, as a result of providing services to the
Corporation under this Agreement, will be determined on an identified basis and
billed periodically to the Corporation.
A. Charges
The Corporation agrees to pay to the Company
a charge equal to all expenses, direct and allocated,
reasonably and equitably determined by the Company to
be attributable to the Corporation for services and
facilities provided pursuant to this Agreement.
The methods of determining such charges to
the Corporation shall be similar to those employed by
the Company under its internal cost accounting
procedures. Such procedures shall be modified where
necessary or appropriate to reflect fairly and
equitably the actual cost incurred by the Company on
behalf of the Corporation.
The Company will make periodic analyses to
determine, as closely as possible, the actual cost of
services rendered and facilities made available to
the Corporation under this Agreement. The Company
shall advise the Corporation of the results of these
analyses and such information shall be used to modify
the method of the distribution of expenses to more
accurately reflect actual cost.
The Company's determination of charges shall
be conclusive as between such parties, except that if
the Corporation objects to any such determination, it
shall so notify the Company within thirty days of
receipt of notice of the determination. Unless the
Company and the Corporation can reconcile any such
objection, or otherwise agree, they shall select a
firm of independent accountants which shall determine
the proper allocation of charges and, within a
reasonable time, shall submit such determination,
together with the basis thereof, in writing to both
the Company and the Corporation. Thereupon, such
determination shall be binding. The cost of any such
determination shall be borne equally by the Company
and the Corporation.
B. Payment
The Company shall provide to the Corporation
within thirty days of the end of each calendar month
(or such other interval not greater than quarterly as
such parties may agree), a written statement of the
amount estimated to be due from the Corporation to
the Company for services and the use of facilities
pursuant to this Agreement in that calendar month (or
interval) and the Corporation shall pay to the
Company, within thirty days following receipt of the
statement, the amount set forth.
Within sixty days after the end of each
calendar year, the Company will submit to the
Corporation a detailed written statement of the
charges due in the preceding calendar year, including
charges not included in any previous statements, and
any balance payable to either party shall be paid
within thirty days following receipt of such written
statement.
The Company shall also provide the
Corporation with a report containing such information
maintained by the Company pursuant to this Agreement
and required by the Corporation to satisfy applicable
reporting requirements.
8. Records and Documents
Both the Company and the Corporation shall maintain
appropriate records identifying the nature and type of each service requested
and provided pursuant to this Agreement. All books, records, and files
established and maintained by the Company by reason of its performance under
this Agreement which, absent this agreement would have been held by the
Corporation, shall be deemed the property of the Corporation and shall be
subject to examination by the Corporation and persons authorized by it at all
times, and shall be delivered to the Corporation on demand.
9. Compliance with Applicable Law; Governing Law
The Corporation shall appropriately comply with all
applicable federal, state and local laws and any rules, regulations or rulings
issued under such laws. This Agreement is made pursuant to and shall be subject
to and interpreted under the law of New York State.
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10. Notice
All notices, statements or requests furnished under this
Agreement shall be duly given either by the Company or the Corporation upon
delivery by hand to an officer of the other, or when deposited with the U.S.
Postal Services, as certified or registered mail, postage prepaid, addressed to
the other at its principal office to the attention of the Chief Executive
Officer or to such other person or place as that party may from time to time
designate by written notice provided in this Paragraph 10.
11. Assignment; Termination
This Agreement may not be assigned by either party except by
mutual consent and shall continue for a period of one year, and from year to
year thereafter, subject to termination by either party at any time upon sixty
days written notice to the other party, except that with regard to electronic
data processing operations such written notice shall be six months.
12. Headings
The headings contained in this Agreement are inserted for
convenience and are not intended to be part of this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the day and year first above written.
ATTEST: NEW YORK LIFE INSURANCE COMPANY
/s/Xxxxxx X. Xxxxxxx /s/Xxxxxx Xxxxxx
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Secretary Senior Vice President
ATTEST: NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
/s/Xxxxxx X. Xxxxxxxxx /s/Xxxxxx X. Xxxx
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Secretary President
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AMENDMENT NO. 1
To
Dated as of July 30, 1984
Administrative, Underwriting and Distribution Agreement
Dated as of December 11, 0000
Xxxxxxx
Xxx Xxxx Life Insurance Company
And
New York Life Insurance and Annuity Corporation
* * * * *
New York Life Insurance Company ("Company") and New York Life Insurance
and Annuity Corporation ("Corporation"), a wholly-owned subsidiary of the
Company, having entered into a certain Administrative, Underwriting and
Distribution Agreement ("Agreement"), dated as of December 11, 1980, hereby
mutually agree to amend the Agreement in the manner herein set forth:
(i) the name of the Agreement is changed to "Service Agreement"
and
(ii) paragraph 2 of the Agreement is deleted, in its entirety, and
a new paragraph 2, in the form set forth immediately
hereunder, is substituted therefore, with the same force and
effect as if such paragraph has appeared in the Agreement, as
originally executed:
"2. Relationship of the Parties
Neither the Company nor the Corporation shall act or
hold itself as acting as agent of the other. Employees of the
Company providing service to the Corporation, pursuant to this
Agreement, shall provide such service as employees of the
Company.
The Company and employees of the Company shall keep
confidential records and information concerning the
Corporation obtained in the course of the performance of their
obligations under this Agreement. Neither the Company, nor any
employees of the Company, shall disclose or use any records or
information obtained pursuant to this Agreement except as
expressly authorized pursuant to the terms hereof or if the
Corporation, or any of its separate accounts or underlying
investment companies, has authorized such disclosure, or if
such disclosure is expressly required by appropriate federal
or state regulatory authorities.
The facilities used by the Company, in providing
service to the Corporation, pursuant to this Agreement, shall
be deemed to be owned and operated by the Company and, unless
otherwise provided in writing, shall not be considered as
being leased to the Corporation."
Except to the extent specifically provided herein, the Agreement shall
remain in force and effect in accordance with its terms. This Amendment No. 1
shall become effective as of the date hereof.
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Dated as of this 30th
date of July 1984
NEW YORK LIFE INSURANCE COMPANY
Attest: By : /s/Xxxxxxx X. Xxxxxx
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/s/Xxxxxx X Xxxxxxx
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Secretary
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By : /s/Xxxxx X. Xxxxxxxxx
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Attest:
/s/Xxxxxxxx Xxxxxxx
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Secretary
