Exhibit (c)(3)
DISTRIBUTION AND UNDERWRITING AGREEMENT
THIS AGREEMENT (this "Agreement"), entered into as of this 27th day of
April, 2006 is among NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION ("Insurance
Company"), on behalf of itself and the VARIABLE SEPARATE ACCOUNTS listed in
Attachment A (the "Separate Accounts") established by Insurance Company, and
NYLIFE DISTRIBUTORS LLC (the "Distributor").
WITNESSETH:
WHEREAS, Insurance Company has established the Separate Accounts by
resolution of its Board of Directors on its books of account, for the purpose of
supporting variable life insurance and variable annuity contracts;
WHEREAS, the Separate Accounts are registered with the Securities and
Exchange Commission ("Commission") as unit investment trusts under the
Investment Company Act of 1940 (the "1940 Act");
WHEREAS, certain flexible premium variable life insurance and variable
annuity contracts identified in Attachment A hereto ("Contracts") to be issued
by Insurance Company and funded through the Separate Accounts are registered
with the Commission under the Securities Act of 1933 (the "1933 Act") for offer
and sale to the public, and otherwise are in compliance with all applicable
laws;
WHEREAS, the Distributor, a broker-dealer registered under the Securities
Exchange Act of 1934 (the "1934 Act") and a member of the National Association
of Securities Dealers, Inc. (the "NASD"), proposes to act as the principal
underwriter and distributor on a non-exclusive agency basis in the marketing and
distribution of the Contracts;
WHEREAS, Insurance Company desires to obtain the services of the
Distributor as principal underwriter and distributor of said Contracts issued by
Insurance Company and funded through the Separate Accounts; and
WHEREAS, each of Insurance Company and Distributor hereby agree that the
terms and conditions set forth in this Agreement shall supercede and replace the
terms and conditions set forth in the Distribution Agreement, dated August 1,
1996, by and between Insurance Company and Distributor.
NOW THEREFORE, in consideration of the foregoing, and of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, Insurance Company, the Separate Accounts and the Distributor
hereby agree as follows:
1. The Distributor will serve as principal underwriter and distributor on a
non-exclusive agency basis for the Contracts, which will be issued by
Insurance Company through the Separate Accounts. Insurance Company shall
make the Contracts available to the Distributor for distribution pursuant
to this Agreement. The Distributor represents that it will actively engage
in its duties under this Agreement on a continuous basis while the
registration statements with respect to the Contracts (the "Registration
Statements") (or any other registration statements filed and declared
effective in lieu thereof) remain effective with respect to the Contracts.
It is understood that the Distributor has no present intention of engaging
in sales of the Contracts on a retail basis and intends to restrict its
distribution activities to wholesaling activities.
2. Except in connection with an indemnity obligation under Section 20 of this
Agreement, the Distributor shall not expend, nor contract for the
expenditure of, the funds of Insurance Company except as expressly provided
for by this Agreement. The Distributor shall not possess or exercise any
authority on behalf of Insurance Company other than that expressly
conferred on the Distributor by this Agreement.
3. The Distributor shall be responsible for its compliance, in connection with
its duties as distributor of the Contracts under this Agreement, with the
requirements of: (a) the 1934 Act; (b) any state securities laws to the
extent broker-dealer registration requirements imposed thereby are
applicable to it in performing such duties; (c) the NASD filing
requirements with respect to any advertisements and sales literature for
the Contracts, regardless of which person prepared such material (provided
that any such material that was not prepared by the Distributor has been
provided to the Distributor for filing) (d) all applicable state insurance
laws and regulations; (e) NASD Conduct Rules ("NASD Rules"); and (f) any
other applicable federal or state law, rule or regulation. In the event
that the Insurance Company determines that compliance with applicable state
insurance laws so requires, Insurance Company shall appoint and maintain
the appointment of the Distributor as necessary or appropriate for the
Distributor to engage in the offer and sale of the Contracts during the
term of this Agreement, and in that regard shall appoint any individuals
associated with the Distributor and designated by the Distributor as agents
acting on its behalf; provided, however, that Insurance Company reserves
the right to refuse to appoint any such person or renew any such
appointment or to terminate an appointment, consistent with its duties and
responsibilities under applicable insurance law. Insurance Company shall be
responsible for the payment of all fees for state insurance appointments
for the Distributor and its associated persons and the making of all
filings required to effect such appointments during the term of this
Agreement. Insurance Company shall also be responsible for the payment of
all fees for NASD and state securities registrations for all New York Life
Insurance Company employees who are engaged in activities in furtherance of
this Agreement. Moreover, the Distributor shall conduct its affairs in
accordance with the rules of the NASD (the "NASD Rules").
4. The Insurance Company may recruit selling firms interested in offering
Contracts ("Retailers"). The Insurance Company shall not recommend a
Retailer for a selling agreement unless the Insurance Company first
conducts due diligence and determines that the Retailer meets the standards
that may be established jointly by Insurance Company and the Distributor.
The Distributor and Insurance Company may jointly enter into selling
agreements with Retailers to sell the Contracts. Any such selling
arrangement is expressly made subject to this Agreement. Insurance Company
shall take all actions necessary to effect the appointment of such
registered sales representatives of such Retailers as may from time to time
be identified to Insurance Company by the Distributor as qualified to serve
as insurance agents of Insurance Company, provided, however, that Insurance
Company reserves the right, in its reasonable discretion, to refuse to
appoint
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any such person or renew any such appointment or to terminate any
appointment, consistent with its duties and responsibilities under
applicable law. Notwithstanding anything to the contrary contained in this
Section 4, all Retailers shall be approved in writing by Insurance Company
prior to offering Contracts.
5. Both parties acknowledge their intention that all sales of the Contracts by
Retailers be made in accordance with suitability standards, including those
established by law, rule or regulation, as well as any standards that may
be established by mutual agreement of the Distributor and Insurance Company
from time to time.
6. Warranties.
(a) Insurance Company represents and warrants to the Distributor that:
(i) The Registration Statements (the "Registration Statements") for
the Contracts have been filed with the Commission in the form
previously delivered to the Distributor;
(ii) The Registration Statements and any further amendments or
supplements thereto will, when they become effective, and the
prospectuses and statements of additional information when and as
required, constituting part of the Registration Statements (the
"Prospectuses") will, at all times, conform in all material
respects to the requirements of the 1933 Act and the 1940 Act,
and the rules and regulations of the Commission under such Acts,
and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
not apply to any statement or omission made in reliance upon and
in conformity with information furnished in writing to Insurance
Company by the Distributor expressly for use therein;
(iii) Insurance Company is validly existing as a stock life insurance
company in good standing under the laws of the state of Delaware,
with power (corporate or otherwise) to own its properties and
conduct its business as described in the Prospectus, and has been
duly qualified for the transaction of business and is in good
standing under the laws of other jurisdictions in which it owns
any property, or conducts any business, so as to require such
qualification. Insurance Company is in compliance in all material
respects with the insurance laws, rules and regulations in those
states in which it conducts business and will remain in
compliance in all material respects with all applicable laws,
rules and regulations. The Contracts to be issued through the
Separate Accounts and distributed by the Distributor on behalf of
Insurance Company hereunder have been duly and validly authorized
and, when issued and delivered against payment therefor as
provided herein, will be duly and validly issued and will conform
to the description of such Contracts contained in the
Prospectuses relating thereto and will comply in all material
respects with applicable federal and state law;
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(iv) The performance of this Agreement and the consummation of the
transactions contemplated by this Agreement will not result in a
breach or violation of any of the terms and provisions of, or
constitute a default under any statute, any indenture, mortgage,
deed of trust, note agreement or other agreement or instrument to
which Insurance Company is a party or by which Insurance Company
or any of its properties is bound, Insurance Company' charter as
a stock life insurance company or by-laws, or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over Insurance Company or any of its properties; and
no consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation by
Insurance Company of the transactions contemplated by this
Agreement, except such as will not have a materially adverse
effect on Insurance Company's performance of this Agreement and
the consummation by Insurance Company of the transactions
contemplated herein;
(v) To the knowledge of Insurance Company, there are no material
legal or governmental proceedings pending to which Insurance
Company or the Separate Accounts are parties or of which any
property of Insurance Company or the Separate Account is the
subject, other than as set forth in the Prospectuses relating to
the Contracts, and other than litigation incident to the kind of
business conducted by Insurance Company, if determined adversely
to Insurance Company, would individually or in the aggregate have
a material adverse effect on the financial position, surplus or
operations of Insurance Company;
(vi) Insurance Company shall submit to the Distributor or its designee
such reports, materials or data, in such form and signed by such
of its officers as the Distributor may reasonably request for the
purpose of complying with any applicable federal or state law or
regulation; and
(vii) The Contracts to be issued through the Separate Accounts and
distributed by the Distributor on behalf of Insurance Company
hereunder have been duly and validly authorized and, when issued
and delivered against payment therefore as provided herein, will
be duly and validly issued and will conform to the description of
such Contracts contained in the Prospectuses relating thereto and
will comply in all material respects with applicable federal and
state law.
(b) The Distributor represents and warrants to Insurance Company that:
(i) Distributor is validly existing as a limited liability company in
good standing under the laws of the State of Delaware, with power
(corporate or otherwise) to own its properties and conduct its
business as a broker-dealer in securities and has been duly
qualified for the transaction of such business and is in good
standing under the laws of each other jurisdiction in which it
owns any property, or conducts any business, so as to require
such qualification.
(ii) Distributor is a broker-dealer duly registered with the
Commission
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pursuant to the 1934 Act and a member in good standing of the
NASD, and, where required, is duly registered under and is in
compliance in all material respects with the securities laws,
rules and regulations in those states in which it conducts
business as a broker-dealer and will remain in compliance in all
material respects with all applicable federal, state and
self-regulatory organization laws, rules and regulations;
(iii) The performance of this Agreement and the consummation of the
transactions herein contemplated will not result in a breach or
violation of any of the terms or provisions of or constitute a
default under any statute, any indenture, mortgage, deed of
trust, note agreement or other agreement or instrument to which
the Distributor is a party or by which the Distributor or any of
its properties is bound, the limited liability company agreement
of the Distributor, or any order, rule or regulation of any court
or governmental agency or body having jurisdiction over the
Distributor or its property; and no consent, approval,
authorization or order of any court or governmental agency or
body is required for the consummation by the Distributor of the
transactions contemplated by this Agreement;
(iv) To the extent that any statements or omissions made in the
Registration Statements, or any amendment or supplement thereto
are made in reliance upon and in conformity with written
information furnished to Insurance Company by the Distributor
expressly for use therein, such Registration Statements and any
amendments or supplements thereto will, when they become
effective or are filed with the Commission, as the case may be,
conform in all material respects to the requirements of the 1933
Act and the 1940 Act and the rules and regulations of the
Commission under such Acts and will not contain any untrue
statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(v) To the knowledge of the Distributor, there are no material legal
or governmental proceedings pending to which the Distributor is a
party or of which any property of the Distributor is the subject,
other than as set forth in the Prospectus relating to the
Contracts, and other than litigation incident to the kind of
business conducted by the Distributor, if determined adversely to
the Distributor, would individually or in the aggregate have a
material adverse effect on the financial position, surplus or
operations of the Distributor.
(vi) The Distributor shall submit to Insurance Company or its designee
such reports, materials or data, in such form and signed by such
of its officers as Insurance Company may reasonably request for
the purpose of complying with any applicable federal or state law
or regulation; and
(vii) The Distributor has developed and implemented a written
anti-money laundering program that is in compliance with the
requirements imposed by Section 3011 of the NASD Rules.
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7. With respect to the issuance and servicing of the Contracts, and execution
of transactions thereunder carried out by Insurance Company (or a person
acting pursuant to its authorization), Insurance Company shall keep the
books and records in a manner and form prescribed by and in accordance with
Rules 17a-3 and 17a-4 under the 1934 Act. Insurance Company acknowledges
that it shall maintain such books and records and shall make such records
and books of account available for inspection by the Distributor and any
regulator with jurisdiction over the parties or the Contracts.
8. The Distributor shall use reasonable efforts to provide support to
Retailers to facilitate the distribution of the Contracts.
9. Insurance Company, at no cost to the Distributor, shall use best efforts to
provide quality service for the owners of the Contracts, including
providing policyholder support, administering the Contracts and printing
and mailing to existing Contract owners semi-annual and annual reports of
the management investment companies that serve as underlying funding
vehicles for the Contracts, customer statements and other communications
and the Prospectus. Insurance Company shall be responsible for issuing the
Contracts and for administering the Contracts and the Separate Account.
Subject to the Distributor's approval, which shall not be unreasonably
withheld, Insurance Company reserves the right to delegate such duties to a
third party administrator; provided, however, that such delegation shall
not relieve Insurance Company of any of its responsibility for the
performance of such duties in accordance with this Agreement and shall
ensure that such third party administrator undertakes in writing to comply
with the provisions of Section 22 of this Agreement.
10. Authorized Marketing Materials.
(a) The Distributor, in connection with its distribution activities
hereunder, will utilize no Prospectus purporting to meet the
requirements of Section 10(a) of the 1933 Act other than the one so
designated by Insurance Company. As to other types of sales material
used in connection with its distribution activities, the Distributor
agrees that it will provide to Retailers only such sales materials as
have been authorized in writing for use by Insurance Company, and only
for the period so authorized, and which (except for Registration
Statements, Prospectuses, Statements of Additional Information and
other sales materials that the Distributor has determined are not
required to be filed with the NASD) have been filed by the Distributor
with the NASD. Insurance Company has the right to recall sales
materials from use at any time by notice to the Distributor. If sales
materials are recalled by Insurance Company, Distributor will promptly
cease to use such sales materials and will notify Retailers to
promptly cease to use and to destroy any unused materials. The
Distributor shall promptly furnish to Insurance Company copies of any
letters from the NASD requesting changes in any sales materials used
or to be used in connection with its distribution activities
hereunder, and shall not, after receipt of such a letter, use such
sales materials until Insurance Company shall have approved (or
re-approved, as applicable) their use in writing. For purposes of this
Agreement, the phrase "sales material" includes, but is not limited
to, advertisements (such as material published, or designed for use
in, a newspaper, magazine, or other periodical, radio, television,
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telephone or tape recording, videotape display, signs or billboards,
motion pictures, telephone directories (other than routine listings),
electronic communications, the Internet or other public media), sales
literature (i.e., any written communication distributed or made
generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales
literature, or published article whether in electronic or paper form),
Registration Statements, Prospectuses, Statements of Additional
Information, shareholder reports, and proxy materials.
(b) The Distributor will not distribute any Prospectus, sales material, or
any other printed matter or material in the marketing and distribution
of any Contract if, to the knowledge of the Distributor, any of the
foregoing contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made,
not misleading.
(c) Insurance Company agrees that it shall file sales materials with any
insurance regulatory authorities as required.
11. Expenses of providing sales presentations, mailings, advertising and any
other marketing efforts conducted in connection with the distribution or
sale of the Contracts and NASD filing fees for sales materials shall be
borne by Insurance Company. Expenses for the Distributor's NASD membership
shall be borne by the Distributor.
12. Insurance Company shall, on behalf of the Distributor, upon or prior to
completion of each Contract transaction for which a written confirmation is
legally required, send a written confirmation to the Contract owner for
each such transaction, in a form and manner that complies with all
applicable law, including the 1934 Act and the Conduct Rules of the NASD.
13. The Distributor makes no representations or warranties regarding the number
of Contracts to be sold or the amount to be paid thereunder.
14. It is understood and agreed that the Distributor may render similar
services or act as a distributor or dealer in the distribution of
securities products, including mutual funds, 529 college savings plans and
private placement securities, and other variable products.
15. Insurance Company reserves the right at any time to suspend or limit the
public offering of the subject Contracts.
16. Insurance Company and the Distributor shall each consult and cooperate
fully with the other party in connection with any examination or
investigation conducted by any federal or state regulatory entity or any
self-regulating organization, including any securities regulatory
investigation, or proceeding or judicial proceeding arising in connection
with the Contracts marketed under this Agreement, and also in connection
with a written customer complaint involving Distributor. Each party shall
promptly provide to the other parties any materials related to any written
customer complaint or notice of any regulatory
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investigation or proceeding or judicial proceeding received by such party
with respect to any other party, or in connection with any Contract
marketed under this Agreement or any activity in connection with any such
Contract.
17. Neither party may assign its obligations under this Agreement without the
prior written consent of the other party. The term "assigned" shall not
include any transaction exempted from Section 15 of the 1940 Act and the
rules promulgated thereunder.
18. This Agreement shall terminate, without the payment of any penalty by
either party:
(a) at the option of Insurance Company, upon 60 days' advance written
notice to the Distributor; or
(b) at the option of the Distributor, upon 60 days' advance written notice
to Insurance Company; or
(c) at the option of either party upon institution of formal proceedings
against the other party by the NASD, the Commission or any state
securities or insurance regulator; or
(d) at the option of either party, if the other party or any
representative thereof at any time (i) employs any device, scheme, or
artifice to defraud; makes any untrue statement of a material fact or
omits to state a material fact necessary in order to make the
statements made, in light of the circumstances under which they were
made, not misleading; or engages in any act, practice, or course of
business which operates or would operate as a fraud or deceit upon any
person; or (ii) violates the conditions of this Agreement.
19. Each notice required by this Agreement may be given by telephone or telefax
and confirmed in writing. Notices shall be delivered as follows:
If to Insurance Company or the Separate Account:
New York Life Insurance and Annuity Corporation
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Attention: Xxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Office of the General Counsel
New York Life Insurance Company
Attention: Xxxxxxx X. Whites, Jr., Esq.
Facsimile: (000) 000-0000
If to the Distributor:
NYLIFE Distributors LLC
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to:
Attention: Xxxxxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
20.
(a) Insurance Company shall indemnify and hold harmless the Distributor
and each of its officers and directors and each person, if any, who
controls the Distributor within the meaning of the 1933 Act against
any losses, claims, damages or liabilities to which the Distributor or
such controlling person may become subject, under the 1933 Act or
otherwise, insofar as such losses, claims, damages or liabilities (or
actions in respect thereof) arise out of or are based upon (1) any
untrue statement or alleged untrue statement of a material fact
contained in the Registration Statement or Prospectuses or any other
written sales material prepared by Insurance Company which is utilized
by the Distributor in connection with the sale of Contracts or arise
out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein (in the case of
the Registration Statement, Prospectus and SAI), or in the case of
such other sales material, necessary to make the statements therein
not misleading in light of the circumstances under which they were
made, or (2) Insurance Company's negligence, misconduct, failure to
comply with applicable law or other material breach of this Agreement
(including any material breach of Insurance Company's representations
and warranties hereunder) and will reimburse the Distributor and each
such controlling person for any legal or other expenses reasonably
incurred by the Distributor or such controlling person in connection
with defending any such loss, claim, damage, liability or action,
provided, however, that Insurance
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Company will not be liable in any such case to the extent that any
such untrue statement or alleged untrue statement or omission or
alleged omission was made in such Registration Statement or Prospectus
or any other sales material in conformity with information furnished
by the Distributor to Insurance Company specifically for use therein;
and provided, further, that nothing herein shall be so construed as to
protect the Distributor against any liability to Insurance Company or
the Contract Owners to which the Distributor would otherwise be
subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of its duties, or by reason of the
reckless disregard by the Distributor of its obligations and duties
under this Agreement.
(b) The Distributor will likewise indemnify and hold harmless Insurance
Company, each of its directors and officers and each person, if any,
who controls Insurance Company within the meaning of the 1933 Act to
the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in
conformity with written information furnished to Insurance Company by
the Distributor specifically for use therein or for the Distributor's
negligence, misconduct, failure to comply with applicable law or other
material breach of this Agreement (including any material breach of
the Distributor's representations and warranties hereunder) and will
reimburse Insurance Company and each such controlling person for any
legal or other expenses reasonably incurred by Insurance Company or
such controlling person in connection with defending any such loss,
claim, damage, liability or action.
Promptly after receipt by a party entitled to indemnification
("indemnified person") under this Section 20 of notice of the
commencement of any action as to which a claim will be made against
any person obligated to provide indemnification under this Section 20
("indemnifying party"), such indemnified person shall notify the
indemnifying party in writing of the commencement thereof as soon as
practicable thereafter, but failure to so notify the indemnifying
party shall not relieve the indemnifying party from any liability
which it may have to the indemnified person on account of this Section
20. The indemnifying party will be entitled to participate in the
defense of the indemnified person but such participation will not
relieve such indemnifying party of the obligation to reimburse the
indemnified person for reasonable legal and other expenses incurred by
such indemnified person in defending himself or itself.
In no event shall any party under this Agreement be liable for lost profits
or for exemplary, special, punitive or consequential damages alleged to
have been sustained by the other party.
21. This Agreement shall be subject to the laws of the State of New York,
without regard to the conflicts of law principles thereof, and construed so
as to interpret the Contracts as variable life insurance contracts written
within the business operation of Insurance Company.
22. "Confidential Information" of a party shall mean all confidential or
proprietary information, including trade secrets of such party and any
documentation of such, the
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terms of this Agreement and any "non-public personal information" related
to "customers" or "consumers" as those terms are defined by the
Xxxxx-Xxxxx-Xxxxxx Act of 1999 (Public Law 106-102, 113 Stat. 1138), as it
may be amended from time to time (the "GLB Act"), the regulations
promulgated thereunder or other applicable law. All Confidential
Information relating to a party shall be held in confidence by the other
party to the same extent and in at least the same manner as such party
protects its own confidential or proprietary information. Neither party
shall disclose, publish, release, transfer or otherwise make available
Confidential Information of the other party in any form to, or for the use
or benefit of, any person or entity without the other party's prior written
consent. Notwithstanding the foregoing sentence, each party shall, however,
be permitted to disclose relevant aspects of the other party's Confidential
Information to its officers, affiliates, agents, subcontractors and
employees solely to the extent that such disclosure is reasonably necessary
for the performance of its duties and obligations under this Agreement and
such disclosure is not prohibited by the GLB Act, the regulations
promulgated thereunder or other applicable law; provided, however, that
such party shall take all reasonable measures to ensure that Confidential
Information of the other party is not disclosed or duplicated in
contravention of the provisions of this Agreement by such officers,
affiliates, agents, subcontractors and employees. The obligations in this
Section 22 shall not restrict any disclosure by either party pursuant to
any applicable law, or by order of any court, government agency or self
regulatory organization of which a party is a member (provided that the
disclosing party shall give prompt notice to the non-disclosing party of
such order) and shall not apply with respect to information which (1) is
developed by the other party without violating the disclosing party's
proprietary rights, (2) is or becomes publicly known (other than through
unauthorized disclosure), (3) is disclosed by the owner of such information
to a third party free of any obligation of confidentiality, (4) is already
known by such party without an obligation of confidentiality other than
pursuant to this Agreement or any confidentiality agreements entered into
before the effective date between the parties hereto or (5) is otherwise
rightfully received by a party free of any obligation of confidentiality.
If the GLB Act, the regulations promulgated thereunder or other applicable
law now or hereafter in effect imposes a higher standard of confidentiality
with respect to the Confidential Information, such standard shall prevail
over the provisions of Section 22 of this Agreement. Each party shall
implement those safeguards necessary for the protection of consumers and
customer records and information in accordance with the GLB Act, the
regulations promulgated thereunder, and any applicable interpretive
guidance or other applicable law. In addition, each party shall restrict
access to customer information to those persons who need to know such
information to discharge the duties and obligations set forth in this
Agreement or as otherwise permissible by law or regulation.
23. This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
24. This Agreement shall be binding on and shall inure to the benefit of the
respective successors and assigns of the parties hereto.
25. 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. Failure of either party to insist
00
xxxx xxxxxx compliance with any of the conditions of this Agreement shall
not be construed as a waiver of any of the conditions, but the same shall
remain in full force and effect. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provisions, whether or not similar, nor shall any waiver constitute a
continuing waiver.
26. If the Agreement terminates, the parties agree that Sections 20, 22 and 24
shall remain in effect after termination.
27. This Agreement constitutes the whole agreement between the parties hereto
with respect to the subject matter hereof, and supersedes all prior oral or
written understandings, agreements or negotiations between the parties with
respect to such subject matter. No prior writings by or between the parties
with respect to the subject matter hereof shall be used by either party in
connection with the interpretation of any provision of this Agreement.
28. This is a severable Agreement. In the event that any provision of this
Agreement would require a party to take action prohibited by applicable
federal or state law or the rules of any self-regulatory organization to
which such party is a member or prohibit a party from taking action
required by applicable federal or state law or the rules of any
self-regulatory organization to which such party is a member, then it is
the intention of the parties hereto that such provision shall be enforced
to the extent permitted under the law, and, in any event, that all other
provisions of this Agreement shall remain valid and duly enforceable as if
the provision at issue had never been a part hereof.
29. The headings 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.
30. This Agreement is not intended to confer upon any person other than the
parties hereto, any rights or remedies hereunder.
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IN WITNESS WHEREOF, the undersigned parties have caused this Agreement to
be duly executed on the date first stated above.
NEW YORK LIFE INSURANCE AND ANNUITY
CORPORATION
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
Title: Senior Vice President
NYLIFE DISTRIBUTORS LLC
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: President
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ATTACHMENT A
VARIABLE ANNUITY CONTRACTS
Facilitator(R) Multi-Funded Retirement Annuity
New York Life LifeStages(R) Flexible Premium Variable Annuity
New York Life LifeStages(R) Variable Annuity
LifeStages(R) Access Variable Annuity
LifeStages(R) Essentials Variable Annuity
LifeStages(R) Premium Plus Variable Annuity
LifeStages(R) Premium Plus II Variable Annuity
LifeStages(R) Select Variable Annuity
LifeStages(R) Elite Variable Annuity
LifeStages(R) Premium Plus Elite Variable Annuity
LifeStages(R) Longevity Benefit Variable Annuity
MainStay Plus Variable Annuity
MainStay Access Variable Annuity
MainStay Plus II Variable Annuity
MainStay Premium Plus Variable Annuity
MainStay Premium Plus II Variable Annuity
MainStay Select Variable Annuity
MainStay Elite Variable Annuity
Flexible Premium Variable Universal Life
NYLIAC Variable Universal Life 2000
NYLIAC Survivorship Variable Universal Life
NYLIAC Single Premium Variable Universal Life
NYLIAC Pinnacle Variable Universal Life
NYLIAC Pinnacle Survivorship Variable Universal Life
NYLIAC Variable Universal Life Provider
NYLIAC Corporate Sponsored Variable Universal Life
CorpExec VUL: Corporate Executive Series Variable Universal Life
Variable Life Insurance (VLI - no longer being offered)
VARIABLE SEPARATE ACCOUNTS
NYLIAC MFA Separate Account I
NYLIAC MFA Separate Account II
NYLIAC Variable Annuity Separate Account - I
NYLIAC Variable Annuity Separate Account - II
NYLIAC Variable Annuity Separate Account - III
NYLIAC Variable Annuity Separate Account - IV
NYLIAC Variable Universal Life Separate Account - I
NYLIAC Corporate Sponsored Variable Universal Life Separate Account - I
Variable Life Insurance (product no longer being offered)
