(8)(u)
AGREEMENT
THIS AGREEMENT ("Agreement") made as of July 1, 2004, is by and between ROYCE &
ASSOCIATES,LLC,a Delaware limited liability company ("Adviser") and NEW YORK
LIFE INSURANCE AND ANNUITY CORPORATION,a life insurance company organized under
the laws of the State of Delaware ("NYLIAC").
W I T N E S S E T H :
WHEREAS, Royce Capital Fund, the investment company listed on Schedule One
hereto ("Schedule One," as the same may be amended from time to time), is
registered as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "Act") (each series of such investment
company is hereinafter called a "Fund"); and
WHEREAS, each Fund is available as an investment vehicle for certain separate
accounts of NYLIAC, established for variable life insurance policies and/or
variable annuity contracts offered by NYLIAC (the "Separate Account," whether
one or more); and
WHEREAS, NYLIAC has entered into a participation agreement dated June 25, 2004
among NYLIAC, Adviser and Royce Capital Fund, (the "Participation Agreement," as
amended from time to time); and
WHEREAS, Adviser provides, among other things, investment advisory and/or
administrative services to the Funds; and
WHEREAS, Adviser desires NYLIAC to provide the administrative services specified
in the attached Exhibit A ("Administrative Services"), in connection with the
ownership of interests of the Separate Account, which, in turn, is the owner of
shares of the Funds for the benefit of persons who own contracts supported by
investments in the Separate Account, whose interests are included in the master
account ("Master Account") referred to in paragraph 1, of Exhibit A
("Shareholders"), and NYLIAC is willing and able to provide such Administrative
Services on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter contained, each party hereto severally agrees as follows:
1. NYLIAC agrees to perform the Administrative Services specified in Exhibit
A hereto for the benefit of the Shareholders.
2. NYLIAC represents and agrees that it will maintain and preserve all
records as required by law to be maintained and preserved in connection
with providing the
Administrative Services, and will otherwise comply with all laws, rules
and regulations applicable to the Administrative Services.
3. NYLIAC agrees to provide copies of all the historical records, subject to
the restriction of Federal or State privacy statutes, rules or
regulations, relating to transactions between the Funds and Shareholders,
and all written communications and other related materials regarding the
Fund(s) to or from such Shareholders, as reasonably requested by Adviser
or its representatives (which representatives, include, without
limitation, its auditors or legal counsel), to enable Adviser or its
representatives to monitor and review the Administrative Services
performed by NYLIAC, or comply with any request of the board of directors,
or trustees (collectively, the "Directors") of any Fund, or of a
governmental body, self-regulatory organization or Shareholder.
In addition, NYLIAC agrees that it will permit Adviser, the Funds or their
representatives, to have reasonable access to its personnel and records in
order to facilitate the monitoring of the quality of the Administrative
Services.
4. NYLIAC may, with the consent of Adviser, contract with or establish
relationships with other parties for the provision of the Administrative
Services or other activities of NYLIAC required by this Agreement, or the
Participation Agreement, provided that NYLIAC shall be fully responsible
for the acts and omissions of such other parties.
5. NYLIAC hereby agrees to notify Adviser promptly if for any reason it is
unable to perform fully and promptly any of its obligations under this
Agreement.
6. The provisions of the Agreement shall in no way limit the authority of
Adviser or the Funds to take such action as any of such parties may deem
appropriate or advisable in connection with all matters relating to the
operations of any Fund and/or sale of its shares.
7. In consideration of the performance of the Administrative Services by
NYLIAC, Adviser agrees to pay NYLIAC a quarterly fee at an annual rate,
which shall equal ____% of the value of the average daily net assets of
each Fund maintained in the Master Account for the Shareholders. The
foregoing fee will be paid by Adviser to NYLIAC on a calendar quarterly
basis, and in this regard, payment of such fee will be made by Adviser to
NYLIAC within thirty (30) days following the end of each calendar quarter.
The determination of applicable assets shall be made by averaging assets
of applicable Funds maintained in the Master Account for the Shareholders,
as of the last Business Day (as defined in the Participation Agreement) of
each month falling within the applicable calendar quarter.
Notwithstanding anything in this Agreement or the Participation Agreement
appearing to the contrary, the payments by Adviser to NYLIAC relate solely
to the performance by NYLIAC of the Administrative Services described
herein only, and
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do not constitute payment in any manner for services provided by NYLIAC to
NYLIAC policy or contract owners, or to any separate account organized by
NYLIAC, or for any investment advisory services, or for costs associated
with the distribution of any variable annuity or variable life insurance
contracts.
8. NYLIAC shall indemnify and hold harmless the Funds, Adviser and each of
their respective officers, Directors, employees and agents from and
against any and all losses, claims, damages, expenses, or liabilities that
any one or more of them may incur including without limitation reasonable
attorneys' fees, expenses and costs arising out of or related to the
performance or non-performance by NYLIAC of the Administrative Services
under this Agreement.
9. This Agreement may be terminated without penalty at any time by NYLIAC or
by Adviser as to one or more of the Funds, upon ninety days (90) written
notice to the other party. Notwithstanding the foregoing, the provisions
of paragraphs 2, 3, 8 and 10 of this Agreement, shall continue in full
force and effect after termination of this Agreement.
This Agreement shall not require NYLIAC to preserve any records (in any
medium or format) relating to this Agreement beyond the time periods
otherwise required by the laws to which NYLIAC or the Funds are subject
provided that such records shall be offered to the Funds in the event
NYLIAC decides to no longer preserve such records following such time
periods.
10. After the date of any termination of this Agreement in accordance with
paragraph 9 of this Agreement, no fee will be due with respect to any
amounts first placed in the Master Account for the benefit of Shareholders
after the date of such termination. However, notwithstanding any such
termination, Adviser will remain obligated to pay NYLIAC the fee specified
in paragraph 7 of this Agreement, with respect to the value of each Fund's
average daily net assets maintained in the Master Account as of the date
of such termination, for so long as such amounts are held in the Master
Account and NYLIAC continues to provide the Administrative Services with
respect to such amounts in conformity with this Agreement. This Agreement,
or any provisions hereof, shall survive termination to the extent
necessary for each party to perform its obligations with respect to
amounts for which a fee continues to be due subsequent to such
termination.
11. NYLIAC understands and agrees that the obligations of Adviser under this
Agreement are not binding upon any Fund, upon any of their Board members
or upon any shareholder of any of the Funds.
12. It is understood and agreed that in performing the services under this
Agreement NYLIAC, acting in its capacity described herein, shall at no
time be acting as an agent for Adviser or the Funds. NYLIAC agrees, and
agrees to cause its agents, not to make any representations concerning the
Funds except those contained in each Fund's then-current prospectus; in
current sales literature furnished by the Funds or
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Adviser to NYLIAC; in the then-current prospectus for a variable annuity
contract or variable life insurance policy issued by NYLIAC or
then-current sales literature with respect to such variable annuity
contract or variable life insurance policy, approved by the Adviser.
13. This Agreement shall be governed by the laws of the State of New York,
without giving effect to the principles of conflicts of law of such
jurisdiction.
14. This Agreement, including Exhibit A and Schedule One hereto, constitutes
the entire agreement between the parties with respect to the matters dealt
with herein and supersedes any previous agreements, other than the
Participation Agreement and documents with respect to such matters. The
parties agree that Schedule One may be replaced from time to time with a
new Schedule One to accurately reflect any changes in the Fund available
as investment vehicles under the Participation Agreement.
IN WITNESS HEREOF, the parties hereto have executed and delivered this Agreement
as of the date first above written.
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: /s/ Xxxxx Xxxxxx
-------------------------
Xxxxx Xxxxxx
Vice President
ROYCE & ASSOCIATES, LLC
By: /s/ Xxxx X. Xxxxxxxxx
-------------------------
Chief Operating Officer
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SCHEDULE ONE
INVESTMENT COMPANY: AVAILABLE FUNDS:
Royce Capital Fund Royce Micro-Cap Portfolio
Royce Small-Cap Portfolio
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EXHIBIT A
Pursuant to the Agreement by and among the parties hereto, NYLIAC shall perform
the following Administrative Services:
1. Maintain separate records for each Shareholder, which records shall
reflect shares purchased and redeemed for the benefit of the Shareholder
and share balances held for the benefit of the Shareholder. NYLIAC shall
maintain the Master Account with the transfer agent of each Fund on behalf
of Shareholders and such Master Account shall be in the name of NYLIAC or
its nominee as the record owner of the shares held for such Shareholders.
2. For each Fund, disburse or credit to Shareholders all proceeds of
redemptions of shares of the Fund and all dividends and other
distributions not reinvested in shares of the Fund or paid to the Separate
Account holding the Shareholders' interests.
3. Prepare and transmit to Shareholders periodic account statements showing
the total number of shares held for the benefit of the Shareholder as of
the statement closing date (converted to interests in the Separate
Account), purchases and redemptions of Fund shares for the benefit of the
Shareholder during the period covered by the statement, and the dividends
and other distributions paid for the benefit of the Shareholder during the
statement period (whether paid in cash or reinvested in Fund shares).
4. Transmit to Shareholders proxy materials and reports and other information
received by NYLIAC from any Fund and required to be sent to Shareholders
under the federal securities laws and, upon request of any of the Fund's
transfer agent, transmit to Shareholders material Fund communications
deemed by the Fund, through its Board of Directors or other similar
governing body, to be necessary and proper for receipt for all Fund
beneficial shareholders.
5. Transmit to each Fund's transfer agent purchase and redemption orders on
behalf of Shareholders.
6. Provide to the Fund, or to the transfer agent for any Fund, or any of the
agents designated by any of them, such periodic reports as shall
reasonably be concluded to be necessary to enable each Fund to comply with
any applicable State Blue Sky requirements.
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