EXHIBIT (h)(1)
FUND PARTICIPATION AGREEMENT
BETWEEN
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
AND
MAINSTAY VP SERIES FUND, INC.
AND
NEW YORK LIFE INVESTMENT MANAGEMENT LLC
THIS AGREEMENT made as of the 7th day of October, 2004, by and among NEW
YORK LIFE INSURANCE AND ANNUITY CORPORATION ("COMPANY"), a life insurance
company organized under the laws of the State of Delaware, on its own behalf and
on behalf of each segregated asset account of the COMPANY set forth on Schedule
A hereto, as may be amended from time to time (the accounts hereinafter referred
to as the "Separate Accounts"), and MAINSTAY VP SERIES FUND, INC. ("FUND"), a
Maryland Corporation, and NEW YORK LIFE INVESTMENT MANAGEMENT LLC ("ADVISER"), a
Delaware limited liability company (each a "Party," and collectively, the
"Parties").
WHEREAS, the Parties acknowledge and agree that this Agreement supersedes
the Stock Sale Agreement between the COMPANY and the FUND dated June 4, 1993,
and the Amendment to the Stock Sale Agreement between the COMPANY and the FUND
dated September 27, 2002; and
WHEREAS, the FUND is registered with the Securities and Exchange
Commission ("SEC") under the Investment Company Act of 1940, as amended (the
"1940 Act"), as an open-end management investment company; and
WHEREAS, the shares of beneficial interest of the FUND are divided into
several series of shares, each designated a "Portfolio" and representing the
interest in a particular managed portfolio of securities and other assets; and
WHEREAS, certain series of shares of the FUND are divided into two
separate share classes, an Initial Class and a Service Class, and the FUND has
adopted a Rule 12b-1 Plan under the 1940 Act pursuant to which a distribution
services fee is paid out of the assets of the Service Class shares; and
WHEREAS, the shares of the Portfolios are registered under the Securities
Act of 1933, as amended (the " 1933 Act"); and
WHEREAS, the FUND is organized to act as the funding vehicle for certain
variable life insurance and/or variable annuity contracts offered by life
insurance companies through separate accounts of such life insurance companies,
which have entered into participation agreements with the FUND and the ADVISER
("Participating Insurance Companies"), and may also offer its shares to certain
qualified pension and retirement plans; and
WHEREAS, the FUND has received an order from the SEC, dated October 30,
1992 (File No. 812-7974), granting exemptions from the provisions of Sections
9(a), 13(a), 15(a) and 15(b) of the 1940 Act, and Rule 6e-2(b)(15) thereunder,
to the extent necessary to permit shares of the Portfolios of the FUND to be
sold to and held by variable annuity and variable life insurance separate
accounts of the COMPANY and affiliated life insurance companies (the "Mixed
Funding Order"); and
WHEREAS, the COMPANY has established or will establish one or more
Separate Accounts to offer variable contracts issued by the COMPANY ("Variable
Contracts") and, to the extent permitted by applicable insurance laws and
regulations, the COMPANY intends to purchase, on behalf of the Separate
Accounts, shares of the FUND to fund certain Variable Contracts, and the FUND is
authorized to sell such shares to the COMPANY at net asset value; and
WHEREAS, the ADVISER is duly registered with the SEC as an investment
adviser under the Investment Advisers Act of 1940, as amended, and is the
investment manager and administrator of the Portfolios of the FUND.
NOW, THEREFORE, in consideration of their mutual promises, the COMPANY,
the FUND and the ADVISER agree as follows:
Article I. SALE OF FUND SHARES
1.1 Subject to Article VIII hereof and the terms set forth in its
registration statement, as may be amended from time to time, the FUND agrees to
make shares of the Portfolios listed in Schedule A, as may be amended from time
to time ("Designated Portfolios"), available for purchase at the applicable net
asset value per share by the COMPANY and the Separate Accounts on those days on
which the New York Stock Exchange is open for regular trading and on which the
FUND calculates its Designated Portfolio(s)' net asset value (a "Business Day")
pursuant to the rules of the SEC.
1.2 The FUND agrees to sell to the COMPANY those shares of the
Designated Portfolios of the FUND which the COMPANY on behalf of the Separate
Account(s) orders, executing such orders on each Business Day at the net asset
value next computed after receipt by
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the FUND or its designee of the order for the shares of the FUND. For purposes
of this Section 1.2, the COMPANY shall be the designee of the FUND for receipt
of such orders from the COMPANY and receipt by such designee shall constitute
receipt by the FUND; provided that FUND receives notice of such order by 11 :00
a.m. Eastern Time on the next following Business Day, or such later time as
permitted in Section 1.5 hereof.
1.3 The FUND agrees to redeem for cash, on the COMPANY'S request, any
full or fractional shares of the FUND held by the COMPANY on behalf of the
Separate Account(s), executing such requests on each Business Day at the net
asset value next computed after receipt by the FUND or its designee of the
request for redemption. For purposes of this Section 1.3, the COMPANY shall be
the designee of the FUND for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by the
FUND; provided that FUND receives notice of such request for redemption by 11:OO
a.m. Eastern Time on the next following Business Day or such later time as
permitted in Section 1.5 hereof. The FUND may delay redemption of the FUND
shares of any Designated Portfolio to the extent permitted by the 1940 Act and
any rules, regulations or orders thereunder; provided that in no event may any
delay by the FUND in paying redemption proceeds cause the COMPANY or Separate
Account to fail to meet its obligations under Section 22(e) of the 1940 Act, or
require the COMPANY to pay redemption proceeds out of its general account,
unless such delay is the direct result of an exception stated in Section 22(e)
to which the FUND but not the COMPANY is entitled.
1.4 The FUND shall furnish same-day notice by wire or telephone
(followed by written confirmation) to the COMPANY of any income, dividends, or
capital gain distributions payable on the shares of any Portfolio of the FUND.
The COMPANY hereby elects to receive all such income, dividends, and capital
gain distributions as are payable on a Portfolio's shares in additional shares
of the Portfolio. The FUND shall notify the COMPANY by the end of the next
following Business Day of the number of shares so issued as payment of such
dividends and distributions. The COMPANY reserves the right, on its behalf and
on behalf of its Separate Account(s), to revoke this election and to receive all
dividends and capital gain distributions in cash.
1.5 The FUND shall make the net asset value per share for the Designated
Portfolio(s) available to the COMPANY on each Business Day as soon as reasonably
practicable after the net asset value per share is calculated but shall use its
best efforts to make such net asset value available by 6:00 p.m. Eastern Time.
In the event that the FUND is unable to meet the 6:00 p.m. time stated herein,
the FUND shall provide additional time for the COMPANY to place orders for the
purchase and redemption of shares equal to the additional time it takes the FUND
to make the net asset values available to the COMPANY. However, if net asset
values are not available for inclusion in the next business cycle and purchase
orders/redemptions are not able to be calculated and available for the COMPANY
to execute within the time frame identified in Sections 1.2 and 1.3 hereof, the
COMPANY on behalf of the Separate Account(s), shall be entitled to an adjustment
to the number of shares purchased or redeemed to reflect the correct
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share net asset value. The FUND shall calculate such net asset value in
accordance with the FUND'S registration statement.
1.6 The COMPANY shall calculate Separate Account unit values at the end
of each Business Day. Using these unit values, the COMPANY shall process each
such Business Day's Separate Account transactions based on requests and premiums
received by it by the close of trading on the floor of the New York Stock
Exchange (currently 4:00 p.m. Eastern Time) to determine the net dollar amount
of the FUND shares which shall be purchased or redeemed at that day's closing
net asset value per share.
1.7 In the event of net purchases, the COMPANY shall pay for the FUND
shares by 3:00 p.m. Eastern Time on the same day that it notifies the FUND or
its agent of a purchase request for such shares, as provided in Section 1.2.
Payment shall be in federal funds transmitted to the FUND by wire to an account
designated by the FUND. Upon receipt by the FUND of the federal funds so wired,
such funds shall cease to be the responsibility of the COMPANY and shall become
the responsibility of the FUND. In the event of net redemptions, the FUND shall
pay and transmit the proceeds of redemptions of FUND shares by 3:00 p.m. Eastern
Time on the next Business Day after the FUND or its agent is properly notified
of the redemption order of such shares, as provided in Section 1.3. The FUND may
delay payment of redemption proceeds to the extent permitted by the 1940 Act and
any rules, regulations or orders thereunder; provided that in no event may any
delay by the FUND in paying redemption proceeds cause the COMPANY or Separate
Account to fail to meet its obligations under Section 22(e) of the 1940 Act, or
require the COMPANY to pay redemption proceeds out of its general account,
unless such delay is the direct result of an exception stated in Section 22(e)
to which the FUND but not the COMPANY is entitled. Payment shall be in federal
funds transmitted to the COMPANY or its designee by wire to an account
designated by the COMPANY. Upon receipt by the COMPANY of the federal funds so
wired, such funds shall cease to be the responsibility of the FUND and shall
become the responsibility of the COMPANY.
1.8 In the event of an error in the computation of a Designated
Portfolio's net asset value per share ("NAV") or any dividend or capital gain
distribution (each, a "pricing error"), the ADVISER or the FUND shall
immediately notify the COMPANY as soon as possible after discovery of the error.
Such notification may be verbal, but shall be confirmed promptly in writing in
accordance with Article IX of this Agreement. A pricing error shall be corrected
as follows: (a) if the pricing error results in a difference between the
erroneous NAV and the correct NAV of less than $0.01 per share, then no
corrective action need be taken; (b) if the pricing error results in a
difference between the erroneous NAV and the correct NAV equal to or greater
than $0.01 per share, but less than 112 of 1% of the Designated Portfolio's NAV
at the time of the error, then the ADVISER shall reimburse the Designated
Portfolio for any loss, after taking into consideration any positive effect of
such error; however, no adjustments to Variable Contract owner accounts need be
made; and (c) if the pricing error results in a difference between the erroneous
NAV and the correct NAV equal to or greater than 112 of 1% of the Designated
Portfolio's NAV at the time of the error, then the ADVISER shall reimburse the
Designated Portfolio for any loss (without taking into consideration any
positive effect of such error) and
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shall reimburse the COMPANY for reasonable administrative and/or systems costs
of adjustments made to correct Variable Contract owner accounts. With respect to
(c) above, if an adjustment to a Variable Contract owner account is necessary to
correct a material error which has caused Variable Contract owners to receive
less than the amount to which they are entitled, the number of shares of the
appropriate Designated Portfolio(s) attributable to the accounts of the Variable
Contract owner's will be adjusted and the amount of any underpayments shall be
credited by the ADVISER to the COMPANY for crediting of such amounts to the
applicable Variable Contract owners accounts. Upon notification by the ADVISER
of any overpayment due to a material error, the COMPANY shall promptly remit to
the ADVISER any overpayment that has not been paid to Variable Contract owner's;
however, the ADVISER acknowledges that the COMPANY does not intend to seek
additional payments from any Variable Contract owner who, because of a pricing
error, may have underpaid for units of interest credited to his/her account. In
no event shall the COMPANY be liable to Variable Contract owners for any such
adjustments or underpayment amounts. A pricing error within categories (b) or
(c) above shall be deemed to be "materially incorrect" or constitute a "material
error" for purposes of this Agreement.
The standards set forth in this Section 1.8 are based on the Parties'
understanding of the views expressed by the staff of the SEC as of the date of
this Agreement. In the event the views of the SEC staff are later modified or
superseded by SEC or judicial interpretation, the Parties shall amend the
foregoing provisions of this Agreement to comport with the appropriate
applicable standards, on terms mutually satisfactory to all Parties.
1.9 The FUND agrees that all shares of the Designated Portfolios of the
FUND will be sold only to Participating Insurance Companies and their separate
accounts and to persons or plans which represent and warrant to the FUND that
they qualify to purchase shares of the FUND under Section 817(h)of the Internal
Revenue Code of 1986, as amended ("Code") and Treasury Regulation 1.817-5
without impairing the ability of the Separate Account to consider the portfolio
investments of the FUND as constituting investments of the Separate Account for
the purpose of satisfying the diversification requirements of Section 817(h).
Shares of the Designated Portfolios of the FUND will not be sold directly to the
general public.
1.10 The FUND may suspend or terminate the offering of the shares of any
Designated Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the Board of
Directors of the FUND ("Board"), acting in good faith in the exercise of its
fiduciary duties to such Designated Portfolio shareholders, including the
COMPANY and the Separate Account(s), under federal and any applicable state
laws, deemed necessary and in the best interests of the shareholders of such
Designated Portfolio. The FUND reserves the right, upon prior written notice to
the COMPANY (given at the earliest practicable time), to take all actions,
including but not limited to, the dissolution, reorganization, liquidation,
merger or sale of all assets of the FUND or any Portfolio upon the sole
authorization of the Board, acting in good faith, where permitted by law.
1.11 Issuance and transfer of the FUND's shares will be by book entry
only. Stock certificates will not be issued to the COMPANY or the Separate
Account(s). Shares ordered
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from the FUND will be recorded in an appropriate title for the Separate
Account(s) or the appropriate sub-account of the Separate Account(s).
1.12 The Parties acknowledge that the arrangement contemplated by this
Agreement is not exclusive; the FUND's shares may be sold to other Participating
Insurance Companies (subject to Section 1.9, Section 1.13, and Article VI
hereof) and the cash value of the Variable Contracts may be invested in other
investment companies.
1.13 Participating The FUND will not sell shares of the Designated
Portfolio(s) to Insurance Company separate account unless an agreement
containing any other provisions substantially the same as Sections 2.1, 2.2,
2.3, 2.4, 2.9, 2.12 and 2.13 of Article II, Article V, and Article VI of this
Agreement is in effect to govern such sales.
1.14 The Parties acknowledge that market timing, short-term trading or
excessive trading (hereinafter "Market Timing") may be harmful to the Designated
Portfolios. The Parties agree to establish policies and procedures reasonably
designed to prevent Market Timing trading abuses.
Article II. REPRESENTATIONS AND WARRANTIES
2.1 The COMPANY represents and warrants that it is an insurance company
duly organized and in good standing under the laws of Delaware and that it has
legally and validly established each Separate Account as a segregated asset
account under such laws, and that NYLIFE Distributors, Inc., the principal
underwriter for the Variable Contracts, is registered as a broker-dealer under
the Securities Exchange Act of 1934, as amended (the "1934 Act").
2.2 The COMPANY represents and warrants that it has registered or, prior
to any issuance or sale of the Variable Contracts, will register each Separate
Account as a unit investment trust ("UIT") in accordance with the provisions of
the 1940 Act unless exempt therefrom and cause each Separate Account to remain
so registered to the extent required thereby to serve as a segregated asset
account for the Variable Contracts.
2.3 The COMPANY represents and warrants that the interests under the
Variable Contracts are or will be registered under the 1933 Act to the extent
required prior to any issuance or sale of the Variable Contracts and that the
Variable Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws. The COMPANY further
represents and warrants that the sale of the Variable Contracts shall comply in
all material respects with applicable state insurance suitability requirements.
2.4 The COMPANY represents and warrants that the Variable Contracts are
currently and at the time of issuance will be treated as life insurance,
endowment or annuity contracts under applicable provisions of the Code, that it
will make every effort to maintain such treatment and that it will notify the
FUND and the ADVISER immediately upon having a reasonable basis for believing
that the Variable Contracts have ceased to be so treated or that they might not
be so treated in the future.
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2.5 The FUND represents and warrants that the Portfolio shares offered
and sold pursuant to this Agreement will be registered under the 1933 Act, duly
authorized for issuance and sold in accordance with this Agreement and all
applicable federal and state laws, and the FUND is and shall remain registered
under the 1940 Act. The FUND shall amend its registration statement for its
shares under the 1933 Act and the 1940 Act from time to time as required to
effect the continuous offering of its shares. The FUND shall register and
qualify its shares for sale in accordance with the laws of the various states
only if and to the extent deemed advisable by the FUND.
2.6 The FUND represents that it is lawfully organized and validly
existing under the laws of Maryland and that it does and will comply in all
material respects with the 1940 Act. The FUND represents and warrants that the
FUND has disclosed or made available, in writing, all information relating to
the FUND operations requested by the COMPANY and that such information is true
and accurate in all material respects as of the effective date of this
Agreement. Without prior written notice to the COMPANY, the FUND will not make
any changes in fundamental investment policies or advisory fees.
2.7 The ADVISER represents and warrants that it is and will remain duly
registered and licensed in all material respects under all applicable federal
and state laws and shall perform its obligations hereunder and for the FUND in
compliance in all material respects with all applicable federal and state laws.
2.8 The FUND and the ADVISER each represents and warrants that all of
its respective directors, officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of the FUND
are, and shall continue to be at all times, covered by one or more blanket
fidelity bonds or similar coverage for the benefit of the FUND in an amount not
less than the minimal coverage required by Rule 17g-1 under the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid bonds
shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
2.9 The COMPANY represents and warrants that all of its respective
directors, officers, employees and other individuals or entities dealing with
the money and/or securities of the Separate Account(s) are, and shall continue
to be at all times, covered by one or more blanket fidelity bonds or similar
coverage for the benefit of the Separate Account(s) in an amount not less than
$5 million. The aforesaid bonds shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.10 The FUND and the ADVISER each represents and warrants that each
Designated Portfolio complies, and will continue to comply, at all times with
the diversification requirements set forth in Section 817(h) of the Code, and
the rules and regulations thereunder, including without limitation Treasury
Regulation 1.8 17-5, and any Treasury interpretations thereof, relating to the
diversification requirements for variable annuity, endowment, or life insurance
contracts, and any amendments or other modifications or successor provisions to
such Section or Regulations. The ADVISER will notify the COMPANY immediately
upon having a reasonable basis for believing any Designated Portfolio has ceased
to comply or might not so
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comply and will immediately take all steps necessary to adequately diversify the
Designated Portfolio to achieve compliance within the grace period afforded by
Regulation 1.817-5. In making this representation and warranty, the FUND and the
ADVISER may assume that each of the Variable Contracts are and will be treated
as life insurance, endowment or annuity contracts under applicable provisions of
the Code and that such Variable Contracts are and will be treated as variable
contracts under Section 8 l7(d) of the Code.
2.11 The FUND and the ADVISER each represent and warrant that each
Designated Portfolio is currently qualified as a "regulated investment company"
under Subchapter M of the Code, that each will make every effort to maintain
such qualification and will notify the COMPANY immediately upon having a
reasonable basis for believing it has ceased to so qualify or might not so
qualify in the future.
2.12 Each Party shall comply with applicable anti-money laundering laws
and regulations, including the relevant provisions of the USA PATRIOT Act (Pub.
L. No. 107-56 (2001)) and the regulations issued thereunder.
2.13 Each Party shall comply with any applicable privacy and notice
provisions of 15 U.S.C. Sections 680 1-6827 and any applicable regulations
promulgated thereunder (including but not limited to 17 C.F.R. Part 248) as they
may be amended.
2.14 The COMPANY acknowledges that, pursuant to Form 24F-2, the FUND is
not required to pay fees to the SEC for registration of its shares under the
1933 Act with respect to its shares issued to a Separate Account that is a UIT
that offers interests that are registered under the 1933 Act and on which a
registration fee has been or will be paid to the SEC (a "Registered Account").
The COMPANY agrees to provide the FUND each year within 60 days of the end of
the FUND's fiscal year, or when reasonably requested by the FUND, information as
to the number of shares purchased by a Registered Account and any other Separate
Account the interests of which are not registered under the 1933 Act.
Article III. STATEMENTS AND REPORTS
3.1 The FUND or its designee shall provide to the COMPANY as many copies
of the FUND's current prospectuses and Statements of Additional Information
("SAIs") (describing only the Designated Portfolios listed on Schedule A) as the
COMPANY may reasonably request. If requested by the COMPANY in lieu thereof, the
FUND shall provide such documentation (including a final copy of the FUND's
prospectus as set in type or in camera-ready copy or in electronic form) and
other assistance as is reasonably necessary for the COMPANY to either print a
stand-alone document or print together in one document the current prospectus
for the Variable Contracts issued by the COMPANY and the current prospectus or
SAI for the FUND, or a document combining the FUND's prospectus or SAI for the
Designated Portfolios with prospectuses or SAIs of other funds in which the
Variable Contracts may be invested. The FUND shall bear the expense of printing
copies of its current prospectus and SAI that will be distributed to existing
Variable Contract owners, and the COMPANY shall bear the expense of
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printing copies of the FUND's prospectus and SAI that are used in connection
with offering the Variable Contracts.
3.2 The FUND, at the FUND'S expense, shall provide the COMPANY with
copies of its proxy statements, periodic reports to shareholders, and other
communications to shareholders (describing only the Designated Portfolios listed
on Schedule A) in such quantity as the COMPANY shall reasonably require for
purposes of distributing to owners of Variable Contracts. The FUND, at the
COMPANY'S expense, shall provide the COMPANY with copies of its periodic reports
to shareholders and other communications to shareholders in such quantity as the
COMPANY shall reasonably request for use in connection with offering the
Variable Contracts. If requested by the COMPANY in lieu thereof, the FUND shall
provide at the FUND'S expense such documentation (including a final copy of the
FUND's proxy statements, periodic reports to shareholders, and other
communications to shareholders, as set in type or in camera-ready copy or in
electronic form) and other assistance as reasonably necessary for the COMPANY to
print such shareholder communications for distribution to owners of Variable
Contracts.
3.3 The FUND will provide to the COMPANY at least one complete copy of
all registration statements, prospectuses, reports, proxy statements,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to the Designated Portfolios, promptly after
the filing or such document with the SEC or other regulatory authorities.
3.4 The COMPANY will provide to the FUND at least one copy of all
registration statements, prospectuses, reports, proxy statements, application
for exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to the Variable Contracts or the Separate Accounts, promptly
after the filing of such document with the SEC.
3.5 The COMPANY will provide the FUND on a semi-annual basis, or more
frequently as reasonably requested by the FUND, with a current tabulation of the
number of existing Variable Contract owners whose Variable Contract values are
invested in the Designated Portfolios.
3.6 Except as otherwise expressly provided in this Agreement, each Party
agrees to bear all expenses incident to performance by the Party under this
Agreement.
3.7 The Parties shall refer to Schedule B, attached hereto, which
details cost allocations for specific expenses.
3.8 Notwithstanding anything herein to the contrary, the FUND, the
ADVISER or their designee shall reimburse the COMPANY for the reasonable costs
associated with substituting one or more different portfolios of a registered
investment company for one or more Designated Portfolios where due to the acts
of the FUND or the ADVISER (i) the FUND either offers its Shares at public sale,
ceases to qualify as a regulated investment company under Subchapter M of the
Code (or any successor or similar provision), or fails to comply with the
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diversification requirements of Section 817(h) of the Code (or any successor or
similar provision), and as a result the FUND no longer qualifies to serve as a
funding vehicle for the Variable Contracts, (ii) there is a material change in a
fundamental investment objective of the FUND requiring shareholder approval
which results in the reclassification of the investment style of the Designated
Portfolio by a nationally recognized mutual fund ranking organization, and the
COMPANY W s h e s the FUND or the ADVISER with written notice of its objection
to such change prior to shareholder approval of such change, (iii) the FUND has
discontinued or intends to discontinue the offering of its shares to existing or
prospective Variable Contract owners, or (iv) the Agreement is terminated in
accordance with Article V. The costs of such substitution shall include, without
limitation, reasonable legal fees for obtaining any required SEC order approving
such substitution, and expenses for printing and distributing any Separate
Account prospectus or SAI supplement or other disclosure of the substitution or
elimination of the Designated Portfolios as an investment vehicle under the
Variable Contracts.
Article IV. SALES MATERIALS
4.1 Upon request from the FUND or the ADVISER, the COMPANY will furnish,
or will cause to be furnished, to the FUND sales literature or other promotional
material in which the FUND (or a Designated Portfolio thereof) or the ADVISER is
named. The FUND reserves the right to reasonably object to the continued use of
any such sales literature or other promotional material, and no such material
shall be used if the FUND so objects.
4.2 Upon request from the COMPANY, the FUND or the ADVISER will furnish,
or will cause to be furnished, to the COMPANY sales literature or other
promotional materials in which the COMPANY, its Separate Account(s), or any
Variable Contract is named. The COMPANY reserves the right to reasonably object
to the continued use of any such sales literature or .other promotional
material, and no such material shall be used if the COMPANY so objects.
4.3 The FUND and the ADVISER and their affiliates and agents shall not
give any information or make any representations on behalf of the COMPANY or
concerning the COMPANY, the Separate Account(s), or the Variable Contracts,
other than the information or representations contained in a registration
statement or prospectus or SAI for such Variable Contracts, as such registration
statement, prospectus or SAI may be amended or supplemented from time to time,
or in sales literature or other promotional material approved by the COMPANY or
its designee, except with the written permission of the COMPANY.
4.4 The COMPANY and its affiliates and agents shall not give any
information or make any representations on behalf of the FUND or the ADVISER or
concerning the FUND and the ADVISER in connection with the sale of the Contracts
other than the information or representations contained in a registration
statement, prospectus or SAI for the FUND, as such registration statement,
prospectus or SAI may be amended or supplemented from time to time, or in sales
literature or other promotional material approved by the FUND, the ADVISER, or
their designee, except with the written permission of the FUND or the ADVISER.
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4.5 For purposes of this Agreement, the phrase "sales literature or
other promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designed for use, in
a newspaper, magazine or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures or other
public media), sales literature (such as any written communication distributed
or made generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts, or
reprints or excerpts of any other advertisement, sales literature, or published
article), shareholder reports and proxy materials (including solicitations for
voting instructions), and any other material constituting sales literature or
advertising under National Association of Securities Dealers, Inc. rules, the
1940 Act or the 0000 Xxx.
4.6 At the request of any Party to this Agreement, each other Party will
make available to the other Party's independent auditors and/or representative
of the appropriate regulatory agencies, all records, data and access to
operating procedures that may be reasonably requested in connection with
compliance and regulatory requirements related to this Agreement or any Party's
obligations under this Agreement.
Article V. POTENTIAL CONFLICTS
The following provisions shall apply only upon the sale of shares of
Designated Portfolios to variable life insurance separate accounts, and then
only to the extent required under the 0000 Xxx.
5.1 The FUND represents that the FUND Board will monitor the FUND for
the existence of any material irreconcilable conflict between the interests of
the variable contract owners of Participating Insurance Company separate
accounts investing in the FUND. A material irreconcilable conflict may arise for
a variety of reasons, including: (a) state insurance regulatory authority
action; (b) a change in applicable federal or state insurance, tax, or
securities laws or regulations, or a public ruling, private letter ruling,
no-action or interpretive letter, or any similar action by insurance, tax, or
securities regulatory authorities; (c) an administrative or judicial decision in
any relevant proceeding; (d) the manner in which the investments of any
Designated Portfolio are being managed; (e) a difference in voting instructions
given by variable contract owners of different Participating Insurance
Companies; or (f) a decision by a Participating Insurance Company to disregard
voting instructions of variable contract owners.
5.2 The COMPANY will report any potential or existing conflicts of which
it is aware to the Board. The COMPANY will assist the Board in carrying out its
responsibilities under the relevant provisions of the federal securities laws,
including Rule 6e-3(T)(b)(15), and the conditions set forth in the notice issued
by the SEC for FUND on October 8, 1992 (the "Mixed Funding Notice") (Investment
Company Act Release No. 19010), by providing the Board with all information
reasonably necessary for it to consider any issues raised. This includes, but is
not limited to, an obligation by the COMPANY to inform the Board whenever
Variable Contract owner voting instructions are disregarded by the COMPANY.
These responsibilities will be carried out with a view only to the interests of
the Variable Contract owners.
11
5.3 (a) If a majority of the Board or a majority of its directors who
are not interested persons of the FUND, the ADVISER or any sub-adviser to any of
the Designated Portfolios ("Disinterested Directors") determines that a material
irreconcilable conflict exists, affecting the COMPANY, then the COMPANY, at its
expense and to the extent reasonably practicable (as determined by a majority of
Disinterested Directors), will take any steps necessary to remedy or eliminate
the irreconcilable material conflict, up to and including: (a) withdrawing the
assets allocable to some or all of the Separate Accounts from the FUND or any
Designated Portfolio thereof and reinvesting those assets in a different
investment medium, which may include another Designated Portfolio of the FUND or
another investment company, or submitting the question as to whether such
withdrawal should be implemented to a vote of all affected Variable Contract
owners and, as appropriate, segregating the assets of any appropriate group or
class (i.e., variable contract owners of one or more Participating Insurance
Companies) that votes in favor of such withdrawal; or (b) establishing a new
registered management investment company or managed separate account. The
responsibility to take such remedial action shall be carried out with a view
only to the interests of the Variable Contract owners.
(b) If a material irreconcilable conflict arises because of a
decision by the COMPANY to disregard Variable Contract owner voting instructions
and that decision represents a minority position or would preclude a majority
vote, the COMPANY may be required, at the FUND'S election, to withdraw the
affected Separate Account's investment in the FUND and terminate this Agreement
with respect to such Separate Account; provided, however, that such withdrawal
and termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of the
Disinterested Directors of the Board. Any such withdrawal and termination must
take place within 6 months after the FUND gives written notice that this
provision is being implemented, and until the end of that 6 month period, the
FUND shall continue to accept and implement orders by the COMPANY for the
purchase (and redemption) of shares of the FUND. No charge or penalty will be
imposed as a result of such withdrawal.
(c) If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the COMPANY
conflicts with the majority of other state regulators, then the COMPANY will
withdraw the affected Separate Account's investment in the FUND and terminate
this Agreement with respect to such Separate Account within 6 months after the
Board informs the COMPANY in writing that it has determined that such decision
has created an irreconcilable material conflict; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
Disinterested Directors of the Board. Until the end of the foregoing 6 month
period, the FUND shall continue to accept and implement orders by the COMPANY
for the purchase (and redemption) of shares of the FUND.
(d) For the purposes of this Section 5.3, a majority of the
Disinterested Directors shall determine whether or not any proposed action
adequately remedies any material irreconcilable conflict, but in no event will
the FUND or the ADVISER (or any other investment adviser of the FUND) be
required to establish a new funding medium for any Variable Contract.
12
Further, the COMPANY shall not be required by this Section 5.3 to establish a
new funding medium for any Variable Contract if an offer to do so has been
declined by a vote of a majority of Variable Contract owners affected in a
materially adverse manner by the irreconcilable material conflict. In the event
that the Board determines that any proposed action does not adequately remedy
any irreconcilable material conflict, then the COMPANY will withdraw the
affected Separate Account's investment in the FUND and terminate this Agreement
within 6 months after the Board informs the COMPANY in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as
determined by a majority of the disinterested members of the Board.
5.4 The Board's determination of the existence of a material
irreconcilable conflict and its implications shall be made known promptly and in
writing to the COMPANY.
5.5 The COMPANY shall submit to the Board such reports, materials or
data as the Board may reasonably request so that the Board may fully carry out
the obligations imposed upon it by Section 5.3 of this Agreement.
Article VI. VOTING
6.1 The COMPANY will provide pass-through voting privileges to all
Variable Contract owners with respect to shares of the FUND owned by the
COMPANY'S Separate Accounts that are registered as investment companies under
the 1940 Act ("Registered Separate Accounts") for as long as the SEC continues
to interpret the 1940 Act as requiring pass-through voting privileges for
Registered Separate Accounts. Accordingly, the COMPANY, where applicable, will
vote shares of the FUND held in its Registered Separate Accounts in a manner
consistent with voting instructions timely received from its Variable Contract
owners. The COMPANY will be responsible for assuring that each of its Registered
Separate Accounts that participates in the FUND calculates voting privileges on
matters related to the FUND in a manner consistent with other Registered
Separate Accounts owning shares of the FUND. The obligation to calculate voting
privileges in a manner consistent with all other Registered Separate Accounts
investing in the FUND will be a contractual obligation of all Participating
Insurance Companies under the agreements governing participation in the FUND.
Each Participating Insurance Company will vote shares for which it has not
received timely voting instructions, as well as shares it owns, in the same
proportion as its votes those shares for which it has received voting
instructions for that Registered Separate Account. The FUND shall provide the
COMPANY and each Participating Insurance Company with a written copy of the
conditions set forth in the Mixed Funding Notice and such other assistance as
may be necessary to facilitate coordination between the COMPANY and other
Participating Insurance Companies in complying with such conditions and provided
further that the COMPANY shall be free to vote the FUND shares attributable to
any Separate Account in any manner permitted by applicable law, to the extent
the Mixed Funding Order is superceded by SEC or administrative practice
(including no-action relief). The COMPANY will either (a) provide pass-through
voting privileges to owners of Variable Contracts with respect to shares of the
FUND owned by the
13
COMPANY'S Separate Accounts that are excluded from the definition of "investment
company" by Sections 3(c)(l) or 3(c)(7) of the 1940 Act ("Unregistered Separate
Accounts") or (b) vote shares of the FUND held by Unregistered Separate Accounts
in the same proportion as the vote of all other holders of such shares. The
COMPANY reserves the right to vote the FUND shares held in its general account
and any segregated asset account in its own right, to the extent permitted by
law.
6.2 If and to the extent Rule 6e-2 and/or Rule 6e-3(T) under the 1940
Act are amended, or Rule 6e-3 is adopted, to provide exemptive relief from any
provision of the 1940 Act or the rules thereunder with respect to mixed funding
on terms and conditions materially different from any exemptions granted in the
Mixed Funding Order, then (a) the FUND and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rule 6e-2 and Rule 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such Rules are applicable; and (b) Sections 5.1, 5.2 and 5.3 of this
Agreement shall continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as so
amended or adopted.
6.3 The FUND will comply with all provisions of the 1940 Act, the
regulations thereunder, and applicable SEC staff interpretations regarding
pass-through voting.
Article VII. INDEMNIFICATION
7.1 Indemnification by the COMPANY. The COMPANY agrees to indemnify and
hold harmless the FUND and the ADVISER and each of their directors, officers,
employees and agents and each person, if any, who controls the FUND or the
ADVISER within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of Sections 7.1 through 7.3) against any and
all losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the COMPANY, which consent shall not be unreasonably
withheld) or litigation (including reasonable legal and other expenses)
(collectively, a "Loss") to which the Indemnified Parties may become subject
under any statute or regulation, at common law or otherwise, insofar as such
Loss is related to the sale of the Variable Contracts and:
(b) arises out of or is based upon any untrue statements or
alleged untrue statements of any material fact contained in any registration
statement, prospectus, sales literature or other promotional material with
respect to the Variable Contracts or the Separate Accounts ("Contract
Material"), or arises out of or is based upon the omission or the alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished in writing to the COMPANY or
its designee by or on behalf of the Indemnified Party for use in the Contract
Material or otherwise for use in connection with the sale of the Variable
Contracts or the FUND shares; or
14
(c) arises out of any untrue statement or alleged untrue statement
of a material fact contained in the registration statement, prospectus or sales
literature or other promotional material of the FUND ("Fund Material") or arises
out of or is based on the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the FUND for inclusion therein by or on
behalf of the COMPANY; or
(d) arises out of or as a result of wrongful conduct, statements
or representations (other than statements or representations referred to in
clauses (a) or (b) of this Section 7.1) of the COMPANY or persons under its
control, with respect to the sale or distribution of the Variable Contracts or
the FUND shares; or
(e) arises as a result of any failure by the COMPANY to perform
the obligations, provide the services and furnish the materials required of it
under the terms of this Agreement; or
(f) arises out of or results from any material breach of any
representation and/or warranty made by the COMPANY in this Agreement or arises
out of or results from any other material breach of this Agreement by the
COMPANY;
as limited by and in accordance with the provisions of Sections 7.2 and 7.3
hereof.
7.2 The COMPANY shall not be liable under this indemnification provision
with respect to any Loss incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties, or by
reason of such Indemnified Party's reckless disregard of obligations or duties,
under this Agreement.
7.3 The COMPANY shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the COMPANY in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the COMPANY of any such claim shall not
relieve the COMPANY from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against an
Indemnified Party, the COMPANY shall be entitled to participate at its own
expense in the defense of such action. The COMPANY also shall be entitled to
assume the defense thereof, with counsel satisfactory to the Party named in the
action. After notice from the COMPANY to such Party of the COMPANY'S election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the COMPANY will not be
liable to such Party under this Agreement for any legal or other expenses
subsequently incurred by such Party independently in connection with the defense
thereof other than reasonable costs of investigation. Each Indemnified Party
will
15
promptly notify the COMPANY of the commencement of any litigation or proceedings
against the Indemnified Party or any of its officers or directors in connection
with this Agreement, the issuance or sale of the Portfolio shares, the Variable
Contracts or the operation of each Separate Account or the acquisition of shares
in the FUND.
7.4 Indemnification by ADVISER. The ADVISER agrees to indemnify and hold
harmless the COMPANY and each of its directors, officers, employees, and agents
and each person, if any, who controls the COMPANY within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" for the purposes of
Sections 7.4 through 7.6) against any Loss to which the Indemnified Parties may
become subject under any statute or regulation, at common law or otherwise,
insofar as such Loss is related to the sale or acquisition of shares or the sale
of the Variable Contracts and:
(b) arises out of or is based upon any untrue statement or alleged
untrue statement of any material fact contained in any Fund Material, or arises
out of or is based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the ADVISER or its designee by or on behalf
of the Indemnified Party for use in the Fund Material or otherwise for use in
connection with the sale of the Variable Contracts or Fund shares; or
(c) arises out of any untrue statement or alleged untrue statement
of a material fact contained in any Contract Material, or arises out of or is
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, provided that such statement or omission or such alleged statement
or omission was made in reliance upon and in conformity with information
furnished in writing to the COMPANY for inclusion therein by or on behalf of the
FUND or the ADVISER; or
(d) arises out of or as a result of wrongful conduct, statements
or representations (other than statements or representations referred to in
clauses (a) or (b) of this Section 7.4) of the FUND or the ADVISER or persons
under their control, with respect to the sale or distribution of the Variable
Contracts or the FUND shares; or
(e) arises as a result of (i) a failure by the FUND or the ADVISER
to perform the obligations, provide the services and furnish the materials
required of them under the terms of this Agreement; or (ii) a failure by a
Designated Portfolio(s) invested in by the Separate Account to comply with the
diversification requirements of Section 817(h) of the Code as delineated in
Section 2.10 of this Agreement, and subject to the assumptions made by the Fund
and the Adviser in Section 2.10; or (iii) a failure by a Designated Portfolio(s)
invested in by the Separate Account to qualify as a "regulated investment
company" under Subchapter M of the Code; or
16
(f) arises out of or results from any material breach of any
representation and/or warranty made by the FUND or the ADVISER in this Agreement
or arises out of or results from any other material breach of this Agreement by
the FUND or the ADVISER; as limited by and in accordance with the provisions of
Sections 7.5 and 7.6 hereof. In making this indemnification, the ADVISER and the
FUND may assume that the COMPANY is in compliance with Section 2.4 of this
Agreement.
7.5 The ADVISER shall not be liable under this indemnification provision
with respect to any Loss incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties, or by
reason of such Indemnified Party's reckless disregard of obligations and duties,
under this Agreement.
7.6 The ADVISER shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the ADVISER in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the ADVISER of any such claim shall not
relieve the ADVISER from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Parties, the ADVISER shall be entitled to participate at its own
expense in the defense thereof. The ADVISER also shall be entitled to assume the
defense thereof, with counsel satisfactory to the Party named in the action.
After notice from the ADVISER to such Party of the ADVISER'S election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the ADVISER will not be liable to
such Party under this Agreement for any legal or other expenses subsequently
incurred by such Party independently in connection with the defense thereof
other than reasonable costs of investigation. Each Indemnified Party will
promptly notify the ADVISER of the commencement of any litigation or proceedings
against it or any of its officers or directors in connection with the issuance
of sale of the FUND shares, the Variable Contracts or the operation of each
Separate Account or the acquisition of shares in the FUND.
7.7 Indemnification by the FUND. The FUND agrees to indemnify and hold
harmless the COMPANY and each of its directors, officers, employees, and agents
and each person, if any, who controls the COMPANY within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" for the purposes of
Sections 7.7 through 7.9) against any Loss to which the Indemnified Parties may
become subject under any statute or regulation, at common law or otherwise,
insofar as such Loss is related to the operation of the FUND and:
(b) arises out of or is based upon any untrue statement or alleged
untrue statement of any material fact contained in any Fund Material, or arises
out of or is based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, provided that this agreement to
17
indemnify shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance upon and in
conformity with information furnished in writing to the FUND or its designee by
or on behalf of the Indemnified Party for use in the Fund Material or otherwise
for use in connection with the sale of the Variable Contracts or the FUND
shares; or
(c) arises out of any untrue statement or alleged untrue statement
of a material fact contained in any Contract Material, or arises out of or is
based upon the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, provided that such statement or omission or such alleged statement
or omission was made in reliance upon and in conformity with information
furnished in writing to the COMPANY for inclusion therein by or on behalf of the
FUND; or
(d) arises out of or as a result of wrongful conduct, statements
or representations (other than statements or representations referred to in
clauses (a) or (b) of this Section 7.7) of the FUND or persons under its
control, with respect to the sale or distribution of the Variable Contracts or
the FUND shares; or
(e) arises as a result of (i) a failure by the FUND to perform the
obligations, provide the services and furnish the materials required of it under
the terms of this Agreement; or (ii) arises out of or results from any material
breach of any representation and/or warranty made by the FUND in this Agreement
or arises out of or results from any other material breach of this Agreement by
the FUND;
as limited by and in accordance with the provisions of Sections 7.8 and 7.9
hereof.
7.8 The FUND shall not be liable under this indemnification provision
with respect to any Loss incurred or assessed against an Indemnified Party as
such may arise from such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties, or by
reason of such Indemnified Party's reckless disregard of obligations and duties,
under this Agreement.
7.9 The FUND shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the FUND in writing within a reasonable
time after the summons or other first legal process giving information of the
nature of the claim shall have been served upon such Indemnified Party (or after
such Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify the FUND of any such claim shall not
relieve the FUND from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought against the
Indemnified Party, the FUND shall be entitled to participate at its own expense
in the defense of such action. The FUND also shall be entitled to assume the
defense thereof, with counsel satisfactory to the Party named in the action.
After notice from the FUND to such Party of the FUND'S election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the FUND will not be liable to such
18
Party under this Agreement for any legal or other expenses subsequently incurred
by such Party independently in connection with the defense thereof other than
reasonable costs of investigation. Each Indemnified Party will promptly notify
the FUND of the commencement of any litigation or proceedings against the
Indemnified Party or any of its officers or directors in connection with this
Agreement, the issuance or sale of the Portfolio shares, the Variable Contracts
or the operation of each Separate Account or the acquisition of shares in the
FUND.
Article VIII. TERMINATION
8.1 Notice of Termination. This Agreement may be terminated at any time
by the COMPANY on 120 days' written notice to the FUND and by the FUND on 120
days' written notice to the COMPANY.
8.2 Effect of Termination. Notwithstanding any termination of this
Agreement, the FUND shall, at the option of the COMPANY, continue to make
available additional shares of the Designated Portfolios pursuant to terms and
conditions of this Agreement, for all Variable Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to as
"Existing Contracts"). Specifically, without limitation, the owners of the
Existing Contracts shall be permitted to reallocate investments in the
Designated Portfolios, redeem investments in the Designated Portfolios, and/or
invest in the Designated Portfolios upon the making of additional purchase
payments under the Existing Contracts. The Parties agree that this Section 8.2
shall not apply to any terminations under Article V and the effect of such
Article V terminations shall be governed by Article V of this Agreement.
Notwithstanding any termination of this Agreement, Article VII shall survive.
Article IX. NOTICES
Any notice hereunder shall be sufficiently given when sent by registered
mail or certified mail return receipt requested, or next-day delivery to the
other Parties at the addresses set forth below or at such other address as a
Party may from time to time specify in writing to the other Parties.
If to the ADVISER:
New York Life Investment Management LLC
NYLIM Center
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attn: President, with a copy to the Associate General Counsel
If to the FUND:
Mainstay VP Series Fund, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
19
Attn: President, with a copy to the Associate General Counsel
If to the COMPANY:
New York Life Insurance and Annuity Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxx X. Xxxxx, Senior Vice President of the Individual Annuity Department,
with a copy to the Office of the General Counsel/Variable Product Attorney
Article X. MISCELLANEOUS
10.1 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.
10.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.3 If any provision of this Agreement shall be held or made invalid by
a court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
10.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York. It
shall also be subject to the provisions of the federal securities laws and the
rules and regulations thereunder and to any orders of the SEC granting exemptive
relief therefrom and the conditions of such orders.
10.5 The Parties agree that the assets and liabilities of each Portfolio
are separate and distinct from the assets and liabilities of each other
Portfolio. No Portfolio shall be liable or shall be charged for any debt,
obligation or liability of any other Portfolio. No Director, officer, or
shareholder of a Portfolio (solely by reason of their status as such) shall be
personally liable for such debt, obligation or liability of any Portfolio.
10.6 Each Party shall cooperate with each other Party and all appropriate
governmental authorities (including without limitation the SEC, the National
Association of Securities Dealers, Inc. and state insurance regulators) and
shall permit 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.
10.7 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, which the Parties hereto are entitled to under state and
federal laws.
20
10.8 No provision of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by the
FUND, the ADVISER and the COMPANY.
10.9 This Agreement or any of the rights and obligations hereunder may
not be assigned by any Party without the prior written consent of all Parties
hereto.
10.10 Subject to the requirements of legal process and regulatory
authority, each Party hereto shall treat as confidential the names and addresses
of the owners of the Variable Contracts and all information reasonably
identified as confidential in writing by any other Party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize such
names and addresses and other confidential information without the express
written consent of the affected Party until such time as such information has
come into the public domain.
21
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers
to execute this Fund Participation Agreement as of the date and year first above
written.
Mainstay VP Series Fund, Inc.
22
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers
to execute this Fund Participation Agreement as of the date and year first above
written.
Mainstay VP Series Fund, Inc.
By: \s\ Xxxx X. Xxxxxxxxx
Xxxx X. Xxxxxxxxx
Chairman
New York Life Investment Management LLC
By: \s\ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
President
New York Life Insurance and Annuity Corporation
By: \s\ Xxxx X. Xxxxx
Xxxx X. Xxxxx
Senior Vice President
23
SCHEDULE A
Separate Accounts, Variable Contracts and Designated Portfolios Subject to the
Participation Agreement
Registered Separate Accounts and Variable Contracts
Name of Separate Accounts and Date Established by Names of Contracts Funded by Separate Account and Form
Board of Directors Numbers Thereof
------------------------------------------------- ----------------------------------------------------------
NYLIAC Variable Universal Life Separate Variable Universal Life #793-90
Account-I Survivorship Variable Universal Life #797-150
June 4, 1993 Survivorship Variable Universal Life #302-150
Variable Universal Life 2000 #799-90
Variable Universal Life 2000 #302-90
Single Premium Variable Universal Life #301-95
Single Premium Variable Universal Life #302-95
Single Premium Variable Universal Life #303-95
Pinnacle Variable Universal Life #300-80 and #300-82
Pinnacle Survivorship Variable Universal Life #300-81 and
#300-83
Variable Universal Life Provider #303-30
Variable Universal Life Provider #303-31
NYLIAC Corporate Sponsored Variable Corporate Sponsored Variable Universal Life #796-40
Universal Life Corporate Executive Series Variable Universal Life #300-40
Separate Account-I and #301-43
May 24, 1966
NYLIAC Variable Annuity LifeStages(R) Flexible Premium Variable
Separate Account-I Annuity (The Original) #993-190
October 15, 1992
NYLIAC Variable Annuity LifeStages(R) Flexible Premium Variable
Separate Account-II Annuity (The Original) #993-190
October 15, 1992
NYLIAC MFA Separate Account-I Facilitator Multi-Funded Retirement Annuity
May 27, 1983 #983-192 and #983-193
NYLIAC MFA Separate Account-II Facilitator Multi-Funded Retirement Annuity
May 27, 1983 #983-190 and #983-191
NYLIAC Variable Annuity LifeStages(R) Variable Annuity #995-190
Separate Account-III MainStay Plus Variable Annuity #999-190
November 30, 1994 (Supersedes (998-190)
New LifeStages(R) Flexible Premium Variable Annuity #000-190
LifeStages(R) Premium Plus Variable Annuity #200-195
(Original) LifeStages(R)Access Variable Annuity #200-090
MainStay Access Variable Annuity #200-090
MainStay Premium Plus Variable Annuity #200-190
LifeStages(R) Essentials Variable Annuity #202-192
MainStay Plus II Variable Annuity #202-192
LifeStages(R) Select Variable Annuity #202-190
MainStay Select Variable Annuity #202-190
LifeStages(R) Premium Plus II #203-195
A-1
AmSouth Premium Plus #200-190
AmSouth Premium Plus II #203-190
LifeStages(R) Access Variable Annuity #204-191
NYLIAC Variable Annuity LifeStages(R) Elite Variable Annuity #203-193
Separate Account-IV MainStay Elite Variable Annuity #203-193
June 10, 2003 LifeStages(R) Premium Plus Elite Variable Annuity #204-193
Non-registered Separate Accounts and Variable Contracts
NYLIAC PPVUL Separate Account-I Pinnacle Private Placement Variable Universal Life
#301-41 CERT (group policies) and #301-42
(individual policies)
Magnastar Private Placement Variable Universal Life
#302-10C (group policies) and #301-11 (individual
policies)
Corporate Sponsored Private Placement Variable Universal
Life #304-47 (individual policies) and #304-46C (group
policies)
Magnastar Survivorship Private Placement Variable
Universal Life #302-14 (individual policies) and #304-12C
(group policies)
NYLIAC PPVUL SeparateAccount-II Pinnacle Private Placement Variable Universal Life #301-41
CERT (group policies) and #301-42 (individual policies)
Magnaster Private Placement Variable Universal Life
#302-10C (group policies) and #301-11 (individual
policies
Corporate Sponsored Private Placement Variable Universal
Life #304-47 (individual policies) and #304-46C (group
policies)
Magnastar Survivorship Private Placement Variable
Universal Life #302-14 (individual policies) and #304-12C
(group policies)
A-2
Designated Portfolios
MainStay XX Xxxx - Initial Class and Service Class
MainStay VP Capital Appreciation - Initial Class and Service Class
MainStay VP Cash Management
MainStay VP Common Stock - Initial Class and Service Class
MainStay VP Convertible - Initial Class and Service Class
MainStay VP Government - Initial Class and Service Class
MainStay VP High Yield Corporate Bond - Initial Class and Service Class
MainStay VP International Equity - Initial Class and Service Class
MainStay VP Mid Cap Core - Initial Class and Service Class
MainStay VP Mid Cap Growth - Initial Class and Service Class
MainStay VP Mid Cap Value - Initial Class and Service Class
MainStay VP Small Cap Growth - Initial Class and Service Class
MainStay VP S&P Index - Initial Class and Service Class
MainStay VP Total Return - Initial Class and Service Class
MainStay VP Value - Initial Class and Service Class
MainStay VP American Century Income & Growth - Initial Class and Service Class
MainStay XX Xxxxxxx Large Company Value - Initial Class and Service Class
MainStay VP Eagle Asset Management Growth Equity - Initial Class and Service
Class
MainStay VP Lord Xxxxxx Developing Growth - Initial Class and Service Class
A-3
SCHEDULE B(1)
The COMPANY The FUND
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Preparing and filing the Separate Preparing and filing the FUND
Account registration statements. registration statement.
Text composition and alterations for Text composition and alterations for the
the Separate Account prospectuses, FUND prospectuses, SAIs and any
SAIs and any supplements thereto. supplements thereto, including versions
of these documents to accommodate
various combinations of Designated
Portfolios offered under Separate
Account prospectuses.
Printing of the FUND prospectuses, Supplying typeset, camera and/or
SAIs and supplements thereto for web-ready FUND prospectuses, SAIs and
prospective Variable Contract owners. supplements. Printing of the FUND
Printing Separate Account prospectuses, SAIs and supplements
prospectuses, SAIs and supplements thereto for existing Variable Contract
thereto. owners that invest in the FUND.
Mailing and distributing the FUND All or the FUND's pro-rata portion (if
prospectuses, SAIs and supplements combined with documents of other funds)
thereto to prospective Variable of mailing and distributing the FUND
Contract owners. Mailing and prospectuses, SAIs and supplements
distributing Separate Account thereto to existing Variable Contract
prospectuses, SAIs and supplements to owners. (SAIs are distributed only upon
prospective and existing Variable request of the Variable Contract owner.)
Contract owners. (SAIs are distributed
only upon request of the Variable
Contract owner.)
Text composition and alterations of Text composition and alterations of the
the Separate Account portion of the FUND proxy statements and voting
annual and semi-annual reports. instructions solicitation materials to
Variable Contract owners with respect to
proxies related to the FUND, annual and
semi-annual reports for the FUND and
other communications to shareholders.
Printing, mailing and distributing All or the FUND's pro-rata portion (if
annual and semi-annual reports for combined with documents of other funds)
prospective Variable Contract owners. of mailing and distributing annual and
semi-annual reports for the FUND to
existing Variable Contract owners that
invest in the FUND.
Mailing and distributing and Supplying typeset, camera and/or
tabulation of proxy statements and web-ready FUND proxy statements and
voting instruction solicitation voting instructions solicitation
materials to Variable Contract owners materials, annual and semi-annual
with respect to proxies related to the reports and other communications to
Separate Account(s). shareholders. Printing costs for copies
of such materials distributed to
Variable Contract owners.
Preparation, printing and distributing
sales material and advertising related
to the FUND and contained in Separate
Account advertising and sales
materials; and filing such materials
with the obtaining approval from, the
SEC, the National Association of
Securities Dealers, Inc., any state
insurance regulatory authority and any
other appropriate regulatory
authority, to the extent required.
----------------------------
1 Pursuant to a Letter Agreement between the ADVISER and the COMPANY dated
March 1,200 1, the ADVISER has agreed to pay the COMPANY for the COMPANY'S
assistance with certain services rendered in connection with existing
Variable Contract owners. Such services include, but are not limited to,
mailing FUND prospectuses, SAIs and proxy material to existing Variable
Contract owners. To the extent that the services described in the Letter
Agreement conflict with those described in this Schedule By the Letter
Agreement, while in force, will supersede this Schedule B.
B-1
