Exhibit (8)(A)(A)
ADMINISTRATIVE SERVICES AGREEMENT
THIS AGREEMENT is executed as of March 25, 2011, and effective as of May
1, 2011, between BLACKROCK ADVISORS, LLC ("BAL") and NEW YORK LIFE INSURANCE AND
ANNUITY CORPORATION, a life insurance company organized under the laws of the
State of Delaware (the "Insurer").
WHEREAS, BAL is the investment advisor to the BlackRock Variable Series
Funds, Inc. ("the Fund"); and
WHEREAS, the Insurer issues variable annuity contracts and/or variable life
insurance policies (the "Contracts"); and
WHEREAS, the Insurer, the Fund and BlackRock Investments, LLC have entered
into a Fund Participation Agreement ("Participation Agreement") dated February
XX 2011, providing for the sale of shares of the Fund to certain separate
accounts of the Insurer ("Separate Accounts"); and
WHEREAS, amounts invested in the Contracts by contract owners are deposited
in the Separate Accounts of the Insurer which will in turn purchase shares of
certain portfolios of the Fund, each of which is an investment option offered by
the Contracts (the "Portfolios"); and
WHEREAS, the Fund may derive savings in administrative expenses by virtue
of having the Separate Accounts of the Insurer as shareholders of record of Fund
shares and having the Insurer perform certain administrative services for the
Fund (which are identified on Schedule A hereto); and
WHEREAS, neither BAL nor the Insurer has any contractual or other legal
obligation to perform such administrative services for the Fund; and
WHEREAS, the Insurer desires to be compensated for providing such
administrative services to the Fund; and
WHEREAS, BAL desires that the Fund benefit from the lower administrative
expenses expected to result from the administrative services performed by the
Insurer holding omnibus accounts with the Fund's transfer agent on behalf of
contract owners.
NOW, THEREFORE, the parties hereto agree as follows:
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1. ADMINISTRATION EXPENSE PAYMENTS.
(a) BAL or its affiliates or, if approved by the Fund Board, the Funds
shall pay the Insurer an annual fee equal to 25 basis points (0.25%)
of the average daily net assets of the Equity Portfolios, excluding
Index Portfolios, that are held in Separate Accounts of Insurer listed
in Schedule A of the Fund Participation Agreement(s).
(b) BAL or its affiliates or, if approved by the Fund Board, the Funds
shall pay the Insurer an annual fee equal to 15 basis points (0.15%)
of the average daily net assets of the Fixed Income Portfolios,
excluding index portfolios, that are held in Separate Accounts of
Insurer listed in Schedule B of the Fund Participation Agreement(s).
(c) BAL or its affiliates or, if approved by the Fund Board, the Funds
shall pay the Insurer an annual fee equal to 5 basis points (0.5%) of
the average daily net assets of the Index Portfolios that are held in
Separate Accounts of Insurer listed in Schedule B of the Fund
Participation Agreement(s).
BAL shall calculate the payment contemplated by this Section 1 at the end
of each calendar quarter ("Quarterly Payment"). Insurer will provide
payment instructions (Wire/ACH) and BAL will submit such payment to Insurer
no later than 90 days after the end of each calendar quarter.
Insurer will provide account numbers and other relevant information (as
agreed to by the parties) ("Account Data") and will notify BAL within five
business days of any changes in the Account Data. Insurer will also notify
BAL of any new accounts within five business days following the set up of
any new accounts. If Insurer does not notify BAL of changes to Account Data
or new accounts within the five business days, the fees on such accounts
may be subject to nonpayment.
The parties acknowledge and agree that the assets and/or accounts covered
under the terms of this Agreement, as amended, will not be subject to fees
or any additional payment arrangements with BAL or its affiliates for
services, sub-transfer agency, sub- accounting, networking services or for
any similar services, other than as described herein. Insurer represents
and warrants that they are not invoicing BAL or its affiliates for
duplicative fees as described in the preceding sentence.
Insurer shall have ninety (90) days from date payment is made by BAL, to
request in writing additions or adjustments. After each ninety (90) day
reconciliation period, Insurer represents and warrants that they accept the
invoice as provided by BAL. After the reconciliation period, any dispute of
such fees or fees which are in addition to such invoiced amounts for the
invoiced time period, shall be addressed on a case by case basis to
determine BAL's ability to make payment.
Any invoices shall only cover time periods for which this Agreement is in
effect.
Insurer hereby represents that the fees paid pursuant to this Agreement, as
amended, are reasonable in relation to the services it provides and
reasonably similar to fees it receives for equivalent services provided to
other parties.
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2. NATURE OF PAYMENTS.
The parties to this Agreement recognize and agree that the payments to
the Insurer are for administrative services only and do not constitute
payment in any manner for investment advisory services or for costs of
distribution of Contracts or of Fund shares and are not otherwise related
to investment advisory or distribution services or expenses. The amount of
administration expense payments made to the Insurer pursuant to Section
1(a) of this Agreement are intended to reimburse or compensate the Insurer
for providing administrative services with respect to the Contracts or any
Separate Accounts.
3. TERM AND TERMINATION.
(a) Any party may terminate this Agreement, without penalty, on sixty
days' advance written notice to the other party. Unless so terminated,
this Agreement shall continue in effect for so long as BAL or its
successor(s) in interest, or any affiliate thereof, continues to
perform in a similar capacity for the Fund, and for so long as Insurer
or its successors(s) in interest, or any affiliate thereof, provides
the services contemplated hereunder with respect to Contracts under
which values or monies are allocated to a Portfolio.
(b) This Agreement shall automatically terminate upon (i) the termination
of the Fund Participation Agreement(s) between the Insurer and the
Fund, or (ii) the dissolution or bankruptcy of any party hereto, or in
the event that any party hereto is placed in receivership or
rehabilitation, or in the event that the management of its affairs is
assumed by any governmental, regulatory or judicial authority.
4. AMENDMENT.
This Agreement may be amended only upon mutual agreement of the
parties hereto in writing.
5. NOTICES.
All notices, requests, demands and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
delivered
To BAL: With a copy to:
BLACKROCK ADVISORS, LLC BLACKROCK, INC.
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇ Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ General Counsel
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
To the Insurer:
NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Vice President, with a copy to Office
of the General
Counsel/Variable Product Attorney.
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6. MISCELLANEOUS.
(a) Successors and Assigns. This Agreement shall be binding upon the
parties hereto and their transferees, successors and assigns. The
benefits of and the right to enforce this Agreement shall accrue to
the parties and their transferees, successors and assigns.
(b) Assignment. Neither this Agreement nor any of the rights, obligations
or liabilities of either party hereto shall be assigned without the
written consent of the other party.
(c) Intended Beneficiaries. Nothing in this Agreement shall be construed
to give any person or entity other than the parties hereto any legal
or equitable claim, right or remedy. Rather, this Agreement is
intended to be for the sole and exclusive benefit of the parties
hereto.
(d) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original but all of which shall together
constitute one and the same instrument.
(e) Applicable Law. This Agreement shall be interpreted, construed, and
enforced in accordance with the laws of the State of New York, without
reference to the conflict of law thereof.
(f) Severability. If any portion of this Agreement shall be found to be
invalid or unenforceable by a court or tribunal or regulatory agency
of competent jurisdiction, the remainder shall not be affected
thereby, but shall have the same force and effect as of the invalid or
unenforceable portion had not been inserted.
(g) Entire Agreement. This Agreement, including the attachments hereto,
constitutes the entire agreement between the parties with respect to
the matters dealt with herein, and supersedes all previous agreements,
written or oral, with respect to such matters.
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SCHEDULE A
ADMINISTRATIVE SERVICES FOR THE FUND
MAINTENANCE OF BOOKS AND RECORDS
o Maintaining an inventory of share purchases to assist transfer agent
in recording issuance of shares.
o Performing miscellaneous accounting services to assist transfer agent
in recording transfers of shares (via net purchase orders).
o Reconciliation and balancing of the Separate Account at the Fund level
in the general ledger and reconciliation of cash accounts at general
account level.
PURCHASE ORDERS
o Determination of net amount of cash flow into Fund.
o Reconciliation and deposit of receipts at Fund and confirmation
thereof.
REDEMPTION ORDERS
o Determination of net amount required for redemptions by Fund.
o Notification to Fund of cash required to meet payments.
o Cost of share redemptions.
FUND-RELATED CONTRACT OWNER SERVICES
o Telephonic support for contract owners with respect to inquiries about
the Fund (not including information about performance or related to
sales.)
OTHER ADMINISTRATIVE SUPPORT
o Operational and recordkeeping services.
o Providing other administrative support to the Fund as mutually agreed
between the Insurer and the Fund.
o Relieving the Fund of other usual or incidental administrative
services provided to individual contract owners.
o Preparation of reports to certain third-party reporting services.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first above written.
BLACKROCK ADVISORS, LLC NEW YORK LIFE INSURANCE AND ANNUITY CORPORATION
By: By:
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Name: Name:
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Title: Title:
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Date: Date:
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