(8)(v)
XXXXXX XXXXXXX & CO. INCORPORATED
ADMINISTRATIVE SERVICE AGREEMENT
This ADMINISTRATIVE SERVICE AGREEMENT ("Agreement") is made and entered into as
of this 30th day of April, 2003, by and between Xxxxxx Xxxxxxx & Co.
Incorporated (the "Distributor") and New York Life Insurance And Annuity Company
(the "Company").
WHEREAS, the Distributor is the principal underwriter of The Universal
Institutional Funds, Inc. (the "Fund"), an open-end investment company that
serves as an investment vehicle for separate accounts established by insurance
companies; and
WHEREAS, the Fund has entered into a participation agreement with the
Company, dated June 28, 1996, as may be amended from time to time (the
"Participation Agreement"), providing for the purchase by the Company of shares
of certain series of the Fund ("Portfolios") on behalf of its separate
account(s) to fund certain variable life and annuity contracts ("Contracts"),
each as specified in the Participation Agreement; and
WHEREAS, the Fund has adopted a Plan of Distribution pursuant to Rule
12b-1 under the Investment Company Act of 1940, as amended, relating to Class II
Shares of the Portfolios (the "Plan"), as described in the Portfolios' Class II
Shares Prospectus and Statement of Additional Information; and
WHEREAS, the Plan authorizes the Distributor to enter into administrative
service agreements (such as this Agreement) with organizations selected by the
Distributor (such as the Company) whereby the Distributor may make payments to
the Company at a specified rate in consideration of administrative related
services rendered.
NOW, THEREFORE, in consideration of their mutual promises, and other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Distributor and the Company agree as follows:
1. The Distributor agrees to pay a fee to the Company with respect to
Class II Shares of a Portfolio, in accordance with Section 2 below, for
providing administrative related services in connection with Contract owner
accounts (the "Service Activities") as described in the Plan. The Service
Activities may include, without limitation: (a) responding to customer
inquiries; (b) providing information to customers with respect to their
investment in Class II Shares of a Portfolio; and (c) servicing the account of
each client or customer who has an investment in Class II Shares of a Portfolio.
The Company acknowledges that it is responsible for all costs and expenses
associated with the provision of the Service Activities hereunder.
2. Subject to the Company's continuing compliance with its obligations
pursuant to Section 1 above, the Distributor will pay a fee to the Company for
providing the Service Activities, during the term of the Participation
Agreement, at an annual rate of ____% of the average daily net assets invested
in Class II Shares of the then offered Portfolios under the
Contracts identified in the Participation Agreement (excluding all assets
invested during the guarantee (free look) periods available under the Contracts)
(the "Service Fee"). Payment will be made on a quarterly basis during the month
following the end of each quarter and shall be prorated for any portion of such
period during which this Agreement is in effect for less than the full quarter.
The Service Fee will be calculated based on the average daily net assets
invested in Class II Shares of the applicable Portfolio(s) under the Contracts
over a quarter (which shall be computed by totaling daily balances during the
quarter and dividing such total by the actual days in the quarter). The
Distributor will not be required to pay the Service Fee with respect to assets
invested in Class II Shares of a Portfolio upon the termination of the Plan with
respect to Class II Shares of the Portfolio or if, at any time, the fee payable
by the Fund under the Plan with respect to Class II Shares of the Portfolio is
reduced.
3. It is understood and agreed that the Distributor, acting reasonably and
in good faith, may make final and binding determinations as to the Company's
continuing compliance under Section 1 above and as to the specific amount of the
Company's assets invested in Class II Shares of the Portfolios that will be
considered in determining the Service Fee.
4. The Company and the Distributor acknowledge that the Fund maintains the
right, at any time and without notice to the Company, to amend its current
Prospectus, Statement of Additional Information or the Plan subject to the terms
thereof.
5. The Company 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 Service Activities, and will otherwise comply with all laws, rules
and regulations applicable to such Service Activities.
6. The Company agrees to provide copies of all historical records relating
to the Company's provision of the Service Activities in accordance with this
Agreement, and all written communications and other related materials regarding
the Fund or a Portfolio to or from Contract owners, as reasonably requested by
the Distributor or its representatives (which representatives may include,
without limitation, the auditors or legal counsel of the Fund or the
Distributor) to enable the Distributor, the Fund or their respective
representatives to monitor and review the Service Activities provided by the
Company, or comply with any request of the Board of Trustees or "disinterested"
Trustees of the Fund, or a governmental body or a self-regulatory organization.
7. The Company agrees that it will permit the Distributor, the Fund or
their respective representatives to have reasonable access to the Company's
personnel and records in order to facilitate the monitoring of the quality of
the Service Activities.
8. The Company hereby agrees to notify the Distributor promptly if for any
reason it is unable to perform fully and promptly any of its obligations under
this Agreement.
9. This Agreement may be amended only by mutual consent of the parties
hereto in
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writing and will terminate: (i) upon mutual agreement of the parties hereto,
(ii) upon thirty (30) days advance written notice by either party delivered to
the other party, or (iii) automatically upon the termination of the
Participation Agreement.
10. The provisions, construction, validity and effect of this Agreement
will be construed in accordance with and governed by the laws of New York.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified above.
NEW YORK LIFE INSURANCE AND ANNUITY COMPANY
By: __________________________________
Name: __________________________________
Title: __________________________________
Tax ID: ____________________________________________________________
Company Address: ____________________________________________________________
City, State, Zip: ____________________________________________________________
XXXXXX XXXXXXX & CO. INCORPORATED
By: __________________________________
Name: __________________________________
Title: __________________________________
c/x Xxxxxx Xxxxxxx Investment Management Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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