(8)(p)
SERVICE AGREEMENT
CLASS S
AGREEMENT dated as of April 30, 2003, between Xxxx Xxxxx & Company,
Incorporated ("Xxxxx"), as principal underwriter for the Portfolio(s) of The
Xxxxx American Fund (the "Fund") listed on Schedule A hereto (the "Portfolio" or
"Portfolios"), and New York Life Insurance & Annuity Corporation (the
"Company"), a life insurance company that uses Class S shares of one or more
Portfolios as investment vehicles for its separate account or accounts set forth
on Schedule A (the "Account" or "Accounts").
WHEREAS, each of the Portfolios has adopted a plan pursuant to Rule
12b-1 under the Investment Company act of 1940 providing, inter alia, for
payments to Xxxxx out of the assets of the Portfolio allocated to its
outstanding Class S shares for distribution of Class S shares and services to
Class S shareholders (each, a "12b-1 Plan"); and
WHEREAS, Xxxxx contemplates using all or part of such payments to
compensate insurance companies and service providers of qualified pension plans
for distribution assistance and shareholder services with respect to Class S
shares; and
WHEREAS, the Company is willing to provide such assistance and services
with respect to Class S shares held by the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
1. Services Provided
The Company agrees to provide services to holders of its variable life
insurance policies and/or variable annuity contracts investing through
an Account or Accounts in Class S shares of a Portfolio ("Contracts";
"Contractholders"), such as responding to Contractholder inquiries,
receiving and answering Contractholder correspondence and providing
Contractholder-level recordkeeping and administrative services, and to
provide assistance in distributing Class S shares of the Portfolio(s),
such as printing and distributing disclosure, educational or sales and
promotional materials to prospective Contractholder and compensating
agents.
2. Payment of Expenses
As compensation for such services and assistance, Xxxxx agrees to pay
the Company a quarterly fee at an annual rate of 0.25% of the average
daily nets assets of the Portfolio(s) attributable to Contracts
investing in Class S shares, provided, however, that Xxxxx may reduce
such rate with respect to a Portfolio in the event of a proportional
reduction of the rate payable under the Portfolio's 12b-1 Plan. In
addition to the foregoing payments, which are indirectly provided by
the Portfolio(s) under the 00x-0 Xxxx(x), Xxxxx agrees to pay the
Company, out of Xxxxx'x own resources, an additional quarterly fee at
an annual rate of ____% of the average daily net assets of the first $1
billion invested in the
Portfolio(s) attributable to the Contracts investing in Class S shares
and ____% of all assets in excess of $1 billion.
3. Term of Agreement
This Agreement shall continue in effect with respect to a Portfolio for
as long as Xxxxx or its successor(s) in interest remains principal
underwriter to the Portfolio and Class S shares of the Portfolio are
held by any Account provided, however, that either party may terminate
this Agreement upon a material breach of the Agreement that remains
uncured for 60 days after written notice by the by the terminating
party and provided, further, that Xxxxx may terminate this Agreement
with respect to a Portfolio by written notice upon termination of the
Portfolio's 12b-1 Plan.
4. Indemnification
a) The Company agrees to indemnify Xxxxx, the Fund, and their
officers, directors, trustees and affiliates from any loss,
liability and expense resulting from the gross negligence or
willful wrongful act of the Company under this Agreement,
except to the extent that such loss, liability or expense is
the result of willful misfeasance, bad faith or gross
negligence on the part of Xxxxx or occurs by reason of
reckless disregard by Xxxxx of its duties under this
Agreement.
b) Xxxxx agrees to indemnify the Company and its officers,
directors and affiliates from any loss, liability and expense
resulting from the gross negligence or willful wrongful act of
Xxxxx under this Agreement, except to the extent that such
loss, liability or expense is the result of willful
misfeasance, bad faith or gross negligence on the part of the
Company or occurs by reason of reckless disregard by the
Company of its duties under this Agreement.
5. Notice
Notices and communications required or permitted hereby will be given
to the following persons at the following addressees and facsimile
numbers or such other persons, addresses or facsimile numbers as may be
subsequently provided in writing:
Xxxx Xxxxx & Company, Incorporated New York Life Insurance & Annuity
00 Xxxxxxxxxx Xxxxxx Individual Xxxxxxx Xxxxxxxxxx
Xxxxxx Xxxx, XX 00000 00 Xxxxxxx Xxxxxx
Fax: (000) 000-0000 Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxx Attn: Xxxx Jaureguilorda
Xxxx Xxxxx Management, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxx Xxxxxxxx
6. 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.
7. 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.
8. 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.
9. Amendment
This Agreement or Schedule A may be amended or modified in whole or in
part only by a writing 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 & COMPANY, INCORPORATED
By:__________________________
Name_____________________
Title: __________________
New York Life Insurance and Annuity Corporation
By:__________________________
Name: Xxxxxx X. Rock
Title: Senior Vice President
SCHEDULE A
Account(s): Portfolio(s):
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NYLIAC Variable Annuity Separate Account - III - Xxxxx American Small Capitalization Portfolio
(established November 30, 1994) (Class S)
