DISTRIBUTION AND ADMINISTRATIVE SERVICES AGREEMENT
CLASS S SHARES
THIS AGREEMENT, made and entered into as of the ______day of May, 2003, between
Xxxxxxxxx Xxxxxx Management, Inc. ("NBMI") and New York Life Insurance and
Annuity Corporation (the "Company").
RECITALS
1. NBMI is the distributor for the Class S shares of the Portfolios
(the "Portfolios") of the Xxxxxxxxx Xxxxxx Advisers Management Trust
(the "Fund").
2. The Company is a life insurance company that uses Class S shares of
one or more Portfolios as investment vehicles under certain variable
annuity and/or variable life insurance contracts ("Variable
Contracts") issued by the Company. The Portfolios may be among
several investment options offered under the Variable Contracts.
3. The Company, NBMI and the Fund have entered into a Participation
Agreement, dated June 6, 2001, as may be amended from time to time
(the "Participation Agreement"), pursuant to which the Company, on
behalf of certain of its separate accounts (the "Separate
Accounts"), purchases Class S shares of certain Portfolios.
4. Pursuant to Rule 12b-1 under the Investment Company Act of 1940 (the
"1940 Act"), the Fund has adopted a Distribution and Service Plan
(the "12b-1 Plan") with respect to the Class S shares of the
Portfolios pursuant to which each Portfolio pays NBMI, for services
rendered under the Plan, a distribution or service fee at the
annualized rate of 0.15% of the average daily net assets of the
Portfolio's Class S shares ("12b-1 Fee").
5. The 12b-1 Plan authorizes NBMI to retain the 12b-1 Fee or to use the
12b-1 Fee to compensate financial institutions and organizations,
such as the Company, for servicing shareholder accounts and for
services in connection with any activities or expenses primarily
intended to result in the sale of the Class S shares of the
Portfolios.
6. NBMI wishes to retain the Company to furnish certain services
pursuant to the 12b-1 Plan and the Company is willing to furnish
such services or cause its affiliates to provide the same.
Accordingly, the following represents the collective intention and understanding
of NBMI and the Company under this Agreement.
AGREEMENT
1. Services Provided
The Company agrees to provide, or cause its affiliates to provide,
the following 12b-1 Plan services in connection with the Class S
shares attributable to the Variable Contracts ("Services"): training
and educating agents of the Company about the Fund; telephone and
other communication; the printing of Portfolio Prospectuses,
Statements of Additional Information, and reports for other than
existing shareholders; the preparation, printing, and distribution
of sales literature and advertising materials that mention the
Portfolios; teleservicing support in connection with the Portfolios;
delivery and responding to inquiries respecting Portfolio
Prospectuses and/or Statements of Additional Information, reports,
notices, proxies and proxy statements and other information
respecting the Portfolios (but not including services paid for by
the Fund such as printing and mailing); facilitation of the
tabulation of Variable Contract owners' votes in the event of a
meeting of Fund shareholders; maintenance of Variable Contract
records reflecting Class S shares purchased and redeemed and Share
balances, and conveyance of that information to the Fund, its
transfer agent, or NBMI as may be reasonably requested; provision of
support services including providing information about the Fund and
its Portfolios and answering questions concerning the Fund and its
Portfolios, including questions respecting Variable Contract owners'
interests in one or more Portfolios; provision and administration of
Variable Contract features for the benefit of Variable Contract
owners participating in the Fund including fund transfers, dollar
cost averaging, asset allocation, portfolio rebalancing, earnings
sweep, and pre-authorized deposits and withdrawals; and provision of
other services as may be agreed upon from time to time.
2. Payment
In consideration of the Services, NBMI agrees to pay to the Company
or a person designated by the Company a service fee at the rate of
____% on an annualized basis of the average daily net assets of the
Class S shares of the Portfolios held in Separate Accounts. The
payment under this paragraph shall be calculated and accrued daily
by NBMI and will be paid monthly, with each monthly payment to be
made within thirty (30) days thereafter.
The Company may use a portion of the payments it receives hereunder
to pay commissions to broker-dealers. In connection therewith, the
Company represents to NBMI that it will serve in the capacity of
"paymaster" as defined in Sentry Insurance a Mutual Company, 1987
SEC No-Act. LEXIS 2750 (pub. avail. Set. 6, 1987) and any subsequent
applicable No-Action Letters.
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Unless otherwise agreed, payments of any amounts owed under this
Agreement shall be made by check and mailed to the following address
of the Company:
For Checks:
New York Life Insurance Company
00 Xxxxxxx Xxxxxx - Xxxx 0000
Xxx Xxxx, XX 00000
Attn: Xxxx Jaureguilorda
For Wire Transfers:
Chase Manhattan Bank
ABA: 02100021
Routing Number: 008057001
Account: 00000000
Attn: Xxxxxxxx Xxxxxx
In lieu of requesting that the Company indicate its Tax
Identification Number ("TIN") on Form W-9, NBMI hereby requests that
the Company furnish NBMI its TIN and acknowledge that the number
shown below is its correct TIN.
The Company acknowledges that the following number is its correct
TIN: 00-0000000.
3. Reports
The Company will furnish to NBMI such information as NBMI may
reasonably request, and will otherwise cooperate with NBMI in the
preparation of reports to the Board of Directors concerning this
Agreement, as well as any other reports or filings that may be
required by law.
4. Termination
This Agreement may be terminated as to a Portfolio at any time,
without payment of any penalty, by vote of a majority of the
Independent Directors or by a vote of a majority of the outstanding
voting securities of Class S shares on not less than 60 days' prior
written notice to both parties to the Agreement.
This Agreement may be terminated by either party, without payment of
any penalty, upon 60 days' prior written notice to the other party.
This Agreement will automatically terminate with respect to a
Portfolio in the event of its assignment (as such term is defined in
the 0000 Xxx) with respect to such Portfolio.
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In addition, either party may terminate this Agreement immediately
if at any time it is determined by any federal or state regulatory
authority that compensation to be paid under this Agreement is no
longer permitted by, or becomes inconsistent with, any federal or
state law.
5. Other Agreements
Nothing in this Agreement shall amend, modify or supersede any
contractual terms, obligations or covenants among or between any of
the Company, NBMI, or the Fund previously or currently in effect,
including those contractual terms, obligations or covenants
contained in the Participation Agreement.
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IN WITNESS HEREOF, the parties have caused this Agreement to be executed by
their duly authorized officers signing below.
XXXXXXXXX XXXXXX MANAGEMENT, INC.
By:
---------------------------------
Name:
Title:
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: /s/ Xxxxxx X. Rock
---------------------------------
Name: Xxxxxx X. Rock
Title: Senior Vice President
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