SERVICE AGREEMENT
AGREEMENT dated as of June 20, 1996, between Xxxx Xxxxx Management, Inc.
("Xxxxx"), a New York Corporation with its principal offices at 00 Xxxxxx Xxxx,
Xxx Xxxx, XX 00000, as Investment Adviser for The Xxxxx American Fund (the
"Fund"), and New York Life Insurance and Annuity Corporation ("NYLIAC"), a
Delaware corporation having its principal office and place of business at 00
Xxxxxxx Xxxxxx, Xxx Xxxx, XX 00000.
In consideration of the promises and mutual covenants set forth in this
Agreement, the Parties agree as follows:
1. SERVICES PROVIDED
NYLIAC agrees to provide services to the Fund including the following:
a) responding to inquiries from NYLIAC Contract owners using one or more
Portfolios of the Fund as an investment vehicle regarding the services
performed by NYLIAC as they relate to the Fund;
b) providing information to Xxxxx and to Contract owners with respect to
shares attributable to Contract owner accounts;
c) printing and mailing of shareholder communications from the Fund (such
as proxies, shareholder reports, annual and semi-annual financial
statements and dividend, distribution and tax notices) as may be
required;
d) communication directly with Contract owners concerning the Fund's
operations;
e) providing such other similar services as Xxxxx may reasonably request
to the extent permitted or required under applicable statutes, rules
and regulations.
2. EXPENSE ALLOCATION
Subject to Paragraph 3 hereof, NYLIAC or its affiliates shall initially
bear the costs of the following:
a) printing and distributing the Fund's prospectus, statement of
additional information and any amendments or supplements thereto,
periodic reports to shareholders, Fund proxy material and other
shareholder communications (collectively, the "Fund Materials") to be
distributed to prospective Contract owners;
b) printing and distributing all sales literature or promotional material
developed by NYLIAC or its affiliates and relating to the contracts;
c) servicing Contract owners who have allocated Contract value to a
Portfolio, which servicing shall include, but is not limited to, the
items listed in Paragraph 1 of this Agreement.
3. Payment of Expenses
a) Xxxxx will pay NYLIAC a quarterly fee equal to a percentage of the
average daily net assets of the Portfolio attributable to Contracts,
at the annual rate as set forth in the following schedule ("Portfolio
Servicing Fee"), in connection with the expenses incurred by NYLIAC
under Paragraph 2 hereof: of the first $1 billion invested in
any Portfolio of the Fund, of all assets in excess of $1
billion. The payment of the Portfolio Servicing Fee shall commence at
the end of the first calendar quarter in which Contract value has been
allocated to a Portfolio.
b) From time to time, the Parties hereto shall review the Portfolio
Servicing Fee to determine whether it reasonably approximates the
incurred and anticipated costs, over time of NYLIAC in connection with
its duties hereunder. The Parties agree to negotiate in good faith any
change to the Portfolio Servicing Fee proposed by a Party in good
faith.
4. Term of Agreement
Either Party may terminate this Agreement, without penalty, on 60 days'
written notice to the other Party. Unless so terminated, this Agreement
shall continue in effect for so long as Xxxxx or its successor(s) in
interest, or any affiliate thereof, continues to perform in a similar
capacity for the Fund, and for so long as any Contract value or any monies
attributable to NYLIAC is allocated to a Portfolio.
5. Indemnification
a) NYLIAC agrees to indemnify and hold harmless Xxxxx and its officers,
directors and affiliates from any and all loss, liability and expense
resulting from the negligence or willful wrongful act of NYLIAC under
this Agreement, except to the extent such loss, liability or expense
is the result of the willful misfeasance, bad faith or negligence of
Xxxxx in the performance of its duties, or by reason of the reckless
disregard of its obligations and duties under this Agreement.
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b) Xxxxx agrees to indemnify and hold harmless NYLIAC and its officers,
directors, and affiliates from any and all loss, liability and expense
resulting from the negligence or willful wrongful act of Xxxxx under
this Agreement, except to the extent such loss, liability or expense
is the result of the willful misfeasance, bad faith or negligence of
NYLIAC in the performance of its duties, or by reason of the reckless
disregard of its obligations and duties under this Agreement.
6. NOTICE
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:
Xxxx Xxxxx Management, Inc.
00 Xxxxxx Xxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
New York Life Insurance and Annuity Corporation
00 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Rock
Fax: (000) 000-0000
7. 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.
8. SEVERABILITY
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.
9. 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.
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10. ASSIGNMENT
Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written consent of the other
party thereto.
11. AMENDMENT
This Agreement may be amended or modified in whole or in part only by a
written agreement executed by both parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
by their duly authorized officers signing below.
XXXX XXXXX MANAGEMENT, INC.
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION
By: /s/ Xxxxxx X. Rock
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Name: Xxxxxx X. Rock
Title: Senior Vice President
