Participation Agreement (American Century)
THIS PARTICIPATION AGREEMENT is made and entered into as of May 1, 2001 by and between ML
LIFE INSURANCE COMPANY OF NEW YORK (the “Company”), and AMERICAN CENTURY INVESTMENT SERVICES, INC.
(“Distributor”).
WHEREAS, the Company offers to the public certain individual variable annuity and variable
life insurance contracts (the “Contracts”); and
WHEREAS, the Company wishes to make available as investment options under certain of the
Contracts as listed in Exhibit A, designated series of mutual fund shares as listed in Exhibit B
(the “Funds”), each of which is registered under the Investment Company Act of 1940, as amended
(the “1940 Act”), and issued by American Century Variable Portfolios, Inc. (the “Issuer”); and
WHEREAS, on the terms and conditions hereinafter set forth, Distributor desires to make
shares of the Funds available as investment options under the Contracts and to retain the Company
to perform certain administrative services on behalf of the Funds, and the Company is willing and
able to furnish such services;
NOW, THEREFORE, the Company and Distributor agree as follows:
1. Transactions in the Funds. Subject to the terms and conditions of this Agreement,
Distributor will cause the Issuer to make shares of the Funds available to be purchased,
exchanged,
or redeemed, by or on behalf of the Accounts (defined in Section 7(a) below) through a single
account per Fund at the net asset value applicable to each order. The Funds’ shares shall be
purchased and redeemed on a net basis in such quantity and at such time as determined by the
Company to satisfy the requirements of the Contracts for which the Funds serve as underlying
investment media. Dividends and capital gains distributions will be automatically reinvested
in full
and fractional shares of the Funds.
2. Administrative Services. The Company agrees to provide all administrative
services for the Contract owners in accordance with the provisions of that certain
Administrative
Services Agreement between the Company and Distributor of even date herewith.
3. Timing of Transactions. Distributor hereby appoints the Company as agent for the
Funds for the limited purpose of accepting purchase and redemption orders for Fund shares from
the Contract owners. On each day the New York Stock Exchange (the “Exchange”) is open for
business (each, a “Business Day”), the Company may receive instructions from the Contract
owners
for the purchase or redemption of shares of the Funds (“Orders”). Orders received and accepted
by
the Company prior to the close of regular trading on the Exchange (the “Close of Trading”) on
any
given Business Day (currently, 4:00 p.m. Eastern time) and transmitted to the Funds’ transfer
agent
by 8:00 a.m. Eastern time on such Business Day will be executed at the net asset value
determined
1
as of the Close of Trading on the next Business Day. Any Orders received by the Company on
such day but after the Close of Trading, and all Orders that are transmitted to the Funds’ transfer
agent after 8:00 a.m. Eastern time on the next Business Day, will be executed at the net asset
value determined as of the Close of Trading on the next Business Day following the day of receipt
of such Order. The day as of which an Order is executed by the Funds’ transfer agent pursuant to
the provisions set forth above is referred to herein as the “Trade Date”. All orders are subject to
acceptance or rejection by Distributor or the Funds in the sole discretion of either of them.
4. Processing of Transactions.
(a) If transactions in Fund shares are to be settled through the National Securities
Clearing Corporation’s Mutual Fund Settlement, Entry, and Registration Verification
(Fund/SERV)
system, the terms of the Fund/SERV and Networking Agreement, between Company and American
Century Services Corporation, an affiliate of Distributor, shall apply.
(b) If transactions in Fund shares are to be settled directly with the Funds’ transfer
agent, the following provisions shall apply:
(1) By 6:30 p.m. Eastern time on each Business Day, Distributor (or one of its
affiliates) will provide to the Company via facsimile or other electronic transmission
acceptable to
the Company the Funds’ net asset value, dividend and capital gain information and, in the case
of
income funds, the daily accrual for interest rate factor (mil rate), determined at the Close
of
Trading.
(2) By 8:00 a.m. Eastern time on the Business Day next following the Trade
Date, the Company will provide to Distributor via facsimile or other electronic transmission
acceptable to Distributor a report stating whether the instructions received by the Company
from
Contract owners by the Close of Trading on such Business Day resulted in the Accounts being a
net
purchaser or net seller of shares of the Funds. As used in this Agreement, the phrase “other
electronic transmission acceptable to Distributor” includes the use of remote computer
terminals
located at the premises of the Company, its agents or affiliates, which terminals may be
linked
electronically to the computer system of Distributor, its agents or affiliates (hereinafter,
“Remote
Computer Terminals”).
(3) Upon the timely receipt from the Company of the report described in (2)
above, the Funds’ transfer agent will execute the purchase or redemption transactions (as the
case
may be) at the net asset value computed as of the Close of Trading on the Trade Date. Payment
for
net purchase transactions shall be made by wire transfer to the applicable Fund custodial
account
designated by the Funds on the Business Day next following the Trade Date. Such wire
transfers
shall be initiated by the Company’s bank prior to 4:00 p.m. Eastern time and received by the
Funds
prior to 6:00 p.m. Eastern time on the Business Day next following the Trade Date (“T+l”).
If
payment for a purchase Order is not timely received, such Order will be, at Distributor’s
option,
either (i) executed at the net asset value determined on the Trade Date, and the Company shall
be
2
responsible for all costs to Distributor or the Funds resulting from such delay, or (ii) executed
at the net asset value next computed following receipt of payment. Payments for net redemption
transactions shall be made by wire transfer by the Issuer to the account(s) designated by the
Company on T+l; provided, however, the Issuer reserves the right to settle redemption
transactions within the time period set forth in the applicable Fund’s then-current prospectus. On
any Business Day when the Federal Reserve Wire Transfer System is closed, all communication and
processing rules will be suspended for the settlement of Orders. Orders will be settled on the next
Business Day on which the Federal Reserve Wire Transfer System is open and the original Trade Date
will apply.
5. Prospectus and Proxy Materials.
(a) Distributor shall provide the Company with copies of the Issuer’s proxy materials,
periodic fund reports to shareholders and other materials that are required by law to be sent
to the
Issuer’s shareholders. In addition, Distributor shall provide the Company with a sufficient
quantity
of prospectuses of the Funds to be used in conjunction with the transactions contemplated by
this
Agreement, together with such additional copies of the Issuer’s prospectuses as may be
reasonably
requested by Company. If the Company provides for pass-through voting by the Contract owners,
or if the Company determines that pass-through voting is required by law, Distributor will
provide
the Company with a sufficient quantity of proxy materials for each, as directed by the
Company.
(b) The cost of preparing, printing and shipping of the prospectuses, periodic fund
reports and other materials of the Issuer to the Company shall be paid by Distributor or its
agents or
affiliates; provided, however, that if at any time Distributor or its agent reasonably
deems the usage
by the Company of such items to be excessive, it may, prior to the delivery of any quantity of
materials in excess of what is deemed reasonable, request that the Company demonstrate the
reasonableness of such usage. If Distributor believes the reasonableness of such usage has not
been
adequately demonstrated, it may request that the party responsible for such excess usage pay
the
cost of printing (including press time) and delivery of any excess copies of such materials.
Unless
the Company agrees to make such payments, Distributor may refuse to supply such additional
materials and Distributor shall be deemed in compliance with this Section 5 if it delivers to
the
Company at least the number of prospectuses and other materials as may be required by the
Issuer
under applicable law.
(c) If the Company so requests, Distributor shall provide the Issuer’s prospectuses,
periodic fund reports and other materials of the Issuer to the Company by electronic file
instead of
by paper copy. If the Company chooses to receive electronic files, the Company shall be
responsible for any costs of preparing, printing and shipping such documents.
(d) The cost of any distribution of prospectuses, proxy materials, periodic fund reports
and other materials of the Issuer to the Contract owners shall be paid by the Company and
shall not
be the responsibility of Distributor or the Issuer.
3
6. Record Owner.
The Separate Accounts listed in Exhibit A shall be the sole shareholder of Fund shares
purchased for the Contract owners pursuant to this Agreement (the “Record Owner”). The Record Owner
shall properly complete any applications or other forms required by Distributor or the Issuer from
time to time.
7. Representations.
(a) The Company represents and warrants that (i) this Agreement has been duly
authorized by all necessary corporate action and, when executed and delivered, shall
constitute the
legal, valid and binding obligation of the Company, enforceable in accordance with its terms;
(ii) it
has established the Separate Accounts listed in Schedule A hereto (the “Accounts”), each of
which
is a duly authorized and established separate account under New York Insurance law, and has
registered each Account as a unit investment trust under the 1940 Act to serve as an
investment
vehicle for the Contracts; (iii) each Contract provides for the allocation of net amounts
received by
the Company to an Account for investment in the shares of one or more specified investment
companies selected among those companies available through the Account to act as underlying
investment media; (iv) selection of a particular investment company is made by the Contract
owner
under a particular Contract, who may change such selection from time to time in accordance
with
the terms of the applicable Contract; and (v) the activities of the Company contemplated by
this
Agreement comply in all material respects with all provisions of federal and state securities
laws
applicable to such activities.
(b) Distributor represents that (i) this Agreement has been duly authorized by all
necessary corporate action and, when executed and delivered, shall constitute the legal, valid
and
binding obligation of Distributor, enforceable in accordance with its terms; (ii) the
prospectus of
each Fund complies in all material respects with federal and state securities laws; (iii)
shares of the
Issuer are registered and authorized for sale in accordance with all federal and state
securities laws;
(iv) each Fund engages in business as an open-end, diversified management investment company
and was established for the purpose of serving as the investment vehicle for separate accounts
established for variable life insurance contracts and variable annuity contracts to be offered
by
insurance companies which have entered into agreements substantially similar to this
Agreement;
(v) each Fund is currently qualified as a Regulated Investment Company under Subchapter M of
the
Internal Revenue Code of 1986, as amended (the “Code”) and they will maintain such
qualification
(under Subchapter M or any successor or similar provision); (vi) each Fund will at all times
be
adequately diversified within the meaning of Section 817(h) of the Code and Treasury
Regulation
1.817-5 relating to the diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section or Regulations
or
successors thereto; (vii) the Issuer is lawfully organized and validly existing under the laws
of the
State of Maryland and it does and will comply with applicable provisions of the 1940 Act;
(viii) the
Funds and all of their directors, officers, employees and other individuals/entities having
access to
the funds and/or securities of the Funds are and continue to be at all times covered by a
blanket
4
fidelity bond or similar coverage issued by a reputable bonding company (including coverage for
larceny and embezzlement) for the benefit of each Fund in an amount not less than the minimal
coverage as required currently by Rule 17g-l of the 1940 Act or related provisions as may be
promulgated from time to time; (ix) the Distributor is a member in good standing of the NASD and is
registered as a broker-dealer under the Securities Exchange Act of 1934, as amended (the “1934
Act”); and (x) the Distributor will sell and distribute the Funds’ shares in accordance with all
applicable federal and state securities laws.
8. Additional Covenants and Agreements.
(a) Each party shall comply with all provisions of federal and state laws applicable to its
respective activities under this Agreement. All obligations of each party under this Agreement
are
subject to compliance with applicable federal and state laws.
(b) Each party shall promptly notify the other party in the event that it is, for any reason,
unable to perform any of its obligations under this Agreement.
(c) The Company covenants and agrees that all Orders accepted and transmitted by it
hereunder with respect to each Account on any Business Day will be based upon instructions
that it
received from the Contract owners, in proper form prior to the Close of Trading of the
Exchange on
that Business Day. The Company shall time stamp all Orders or otherwise maintain records that
will enable the Company to demonstrate compliance with Section 8(c) hereof.
(d) The Company covenants and agrees that all Orders transmitted to the Issuer,
whether by telephone, telecopy, or other electronic transmission acceptable to Distributor,
shall be
sent by or under the authority and direction of a person designated by the Company as being
duly
authorized to act on behalf of the owner of the Accounts. Distributor shall be entitled to
rely on the
existence of such authority and to assume that any person transmitting Orders for the
purchase,
redemption or transfer of Fund shares on behalf of the Company is “an appropriate person” as
used
in Sections 8-107 and 8-401 of the Uniform Commercial Code with respect to the transmission of
instructions regarding Fund shares on behalf of the owner of such Fund shares. The Company
shall
maintain the confidentiality of all passwords and security procedures issued, installed or
otherwise
put in place with respect to the use of Remote Computer Terminals and assumes full
responsibility
for the security therefor. The Company further agrees to be responsible for the accuracy,
propriety
and consequences of all data transmitted to Distributor by the Company by telephone, telecopy
or
other electronic transmission acceptable to Distributor.
(e) The Company agrees that, to the extent it is able to do so, it will use its best efforts
to give equal emphasis and promotion to shares of the Funds as is given to other underlying
investments of the Accounts, subject to applicable Securities and Exchange Commission rules.
In
addition, the Company shall not impose any fee, condition, or requirement for the use of the
Funds
as investment options for the Contracts that operates to the specific prejudice of the Funds
vis-a-vis
the other investment media made available for the Contracts by the Company.
5
(f) The Company shall not, without the written consent of Distributor, make
representations concerning the Issuer or the shares of the Funds except those contained in the
then-current prospectus and in current printed sales literature approved by Distributor or the
Issuer.
(g) Advertising and sales literature with respect to the Issuer or the Funds prepared by
the Company or its agents, if any, for use in marketing shares of the Funds as underlying
investment
media to Contract owners shall be submitted to Distributor for review and approval at least 10
business days before such material is used. No such material shall be used unless the
Distributor or
its designee approves such material within the 10 business days after receipt thereof.
9. Use of Names. Except as otherwise expressly provided for in this Agreement,
neither Distributor nor any of its affiliates nor the Funds shall use any trademark, trade
name,
service xxxx or logo of the Company, or any variation of any such trademark, trade name,
service
xxxx or logo, without the Company’s prior written consent, the granting of which shall be at
the
Company’s sole option. Except as otherwise expressly provided for in this Agreement, the
Company shall not use any trademark, trade name, service xxxx or logo of the Issuer,
Distributor or
any variation of any such trademarks, trade names, service marks, or logos, without the prior
written consent of either the Issuer or Distributor, as appropriate, the granting of which
shall be at
the sole option of Distributor and/or the Issuer.
10. Proxy Voting.
(a) The Company shall provide pass-through voting privileges to all Contract owners so
long as the SEC continues to interpret the 1940 Act as requiring such privileges. It shall
be the
responsibility of the Company to assure that it and the separate accounts of the other
Participating
Companies (as defined in Section 12(a) below) participating in any Fund calculate voting
privileges in a consistent manner.
(b) The Company will distribute to Contract owners all proxy material furnished by
Distributor and will vote shares in accordance with instructions received from such Contract
owners. The Company shall vote Fund shares for which no voting instructions are received in
the
same proportion as shares for which such instructions have been received. The Company and its
agents shall not oppose or interfere with the solicitation of proxies for Fund shares held for
such
Contract owners.
11. Indemnity.
(a) Distributor agrees to indemnify and hold harmless the Company and its officers,
directors, employees, agents, affiliates and each person, if any, who controls the Company within
the meaning of the Securities Act of 1933 (collectively, the “Indemnified Parties” for purposes of
this Section 11 (a)) against any losses, claims, expenses, damages or liabilities (including
amounts paid in settlement thereof) or litigation expenses (including legal and other expenses)
(collectively,
6
“Losses”), to which the Indemnified Parties may become subject, insofar as such Losses (i) result
from a breach by Distributor of a material provision of this Agreement, or (ii) arise out of or are
based upon any untrue statement of material fact contained in the Issuer’s registration statement
(or any amendment or supplement thereto) or the omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading. Distributor will
reimburse any legal or other expenses reasonably incurred by the Indemnified Parties in connection
with investigating or defending any such Losses. Distributor shall not be liable for
indemnification hereunder if such Losses are attributable to the negligence or misconduct of the
Company in performing its obligations under this Agreement.
(b) The Company agrees to indemnify and hold harmless Distributor and the Issuer, and
their respective officers, directors, employees, agents, affiliates and each person, if any,
who
controls Issuer or Distributor within the meaning of the Securities Act of 1933 (collectively,
the
“Indemnified Parties” for purposes of this Section 11(b)) against any Losses to which the
Indemnified Parties may become subject, insofar as such Losses (i) result from a breach by the
Company of a material provision of this Agreement; (ii) result from the use by any person of
the
Remote Computer Terminals; or (iii) arise out of or are based upon any untrue statement of any
material fact contained in the registration statement or private offering memorandum for the
Contracts or contained in the Contracts (or any amendment or supplement to any of the
foregoing)
or the omission to state therein a material fact required to be stated therein or necessary to
make the
statements therein not misleading, provided that this agreement to indemnify shall not apply
as to
any Indemnified Party if such statement or omission was made in reliance upon and in
conformity
with information furnished to the Company by or on behalf of the Issuer for use in the
registration
statement or private offering memorandum for the Contracts (or any amendment or supplement to
any of them). The Company will reimburse any legal or other expenses reasonably incurred by
the
Indemnified Parties in connection with investigating or defending any such Losses. The Company
shall not be liable for indemnification hereunder if such Losses are attributable to the
negligence or
misconduct of Distributor or the Issuer in performing their obligations under this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of notice of the
commencement of action, such indemnified party will, if a claim in respect thereof is to be
made
against the indemnifying party hereunder, notify the indemnifying party of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve it from any
liability
which it may have to any indemnified party otherwise than under this Section 11. In case any
such
action is brought against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate therein and, to
the
extent that it may wish to, assume the defense thereof, with counsel satisfactory to such
indemnified
party, and after notice from the indemnifying party to such indemnified party of its election
to
assume the defense thereof, the indemnifying party will not be liable to such indemnified
party
under this Section 11 for any legal or other expenses subsequently incurred by such
indemnified
party in connection with the defense thereof other than reasonable costs of investigation.
7
(d) If the indemnifying party assumes the defense of any such action, the indemnifying party
shall not, without the prior written consent of the indemnified parties in such action, settle or
compromise the liability of the indemnified parties in such action, or permit a default or consent
to the entry of any judgment in respect thereof, unless in connection with such settlement,
compromise or consent, each indemnified party receives from such claimant an unconditional release
from all liability in respect of such claim.
12. Potential Conflicts
(a) The Company has received a copy of an application for exemptive relief, as
amended, filed by the Issuer on December 21, 1987, with the SEC and the order issued by the
SEC
in response thereto (the “Shared Funding Exemptive Order”). The Company has reviewed the
conditions to the requested relief set forth in such application for exemptive relief. As set
forth in
such application, the Board of Directors of the Issuer (the “Board”) will monitor the Issuer
for the
existence of any material irreconcilable conflict between the interests of the contract owners
of all
separate accounts (“Participating Companies”) investing in funds of the Issuer. An
irreconcilable
material conflict may arise for a variety of reasons, including: (i) an action by any state
insurance
regulatory authority; (ii) a change in applicable federal or state insurance, tax, or
securities laws or
regulations, or a public ruling, private letter ruling, no-action or interpretative letter, or
any similar
actions by insurance, tax or securities regulatory authorities; (iii) an administrative or
judicial
decision in any relevant proceeding; (iv) the manner in which the investments of any portfolio
are
being managed; (v) a difference in voting instructions given by variable annuity contract
owners
and variable life insurance contract owners; or (vi) a decision by an insurer to disregard the
voting
instructions of contract owners. The Board shall promptly inform the Company if it determines
that
an irreconcilable material conflict exists and the implications thereof.
(b) The Company will report any potential or existing conflicts of which it is aware to
the Board. The Company will assist the Board in carrying out its responsibilities under the
Shared
Funding Exemptive Order by providing the Board with all information reasonably necessary for
the
Board to consider any issues raised. This includes, but is not limited to, an obligation by
the
Company to inform the Board whenever contract owner voting instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board members,
determines that a material irreconcilable conflict exists with regard to contract owner
investments in
a Fund, the Board shall give prompt notice to all Participating Companies. If the Board
determines
that the Company is responsible for causing or creating said conflict, the Company shall at
its sole
cost and expense, and to the extent reasonably practicable (as determined by a majority of the
disinterested Board members), take such action as is necessary to remedy or eliminate the
irreconcilable material conflict. Such necessary action may include but shall not be limited
to:
| (i) | withdrawing the assets allocable to the Accounts from the Fund and reinvesting such assets in a different investment medium or submitting the question of whether such segregation should be implemented to a vote of all |
8
| affected contract owners and as appropriate, segregating the assets of any appropriate group (i.e., annuity contract owners, life insurance contract owners, or variable contract owners of one or more Participating Companies) that votes in favor of such segregation, or offering to the affected contract owners the option of making such a change; and/or | |||
| (ii) | establishing a new registered management investment company or managed separate account. |
(d) If a material irreconcilable conflict arises as a result of a decision by the Company to
disregard its contract owner voting instructions and said decision represents a minority
position or
would preclude a majority vote by all of its contract owners having an interest in the Issuer,
the
Company at its sole cost, may be required, at the Board’s election, to withdraw an Account’s
investment in the Issuer and terminate this Agreement; provided, however, that such withdrawal
and termination shall be limited to the extent required by the foregoing material
irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
(e) For the purpose of this Section 12, a majority of the disinterested Board members
shall determine whether or not any proposed action adequately remedies any irreconcilable
material
conflict, but in no event will the Issuer be required to establish a new funding medium for
any
Contract. The Company shall not be required by this Section 12 to establish a new funding
medium for any Contract if an offer to do so has been declined by vote of a majority of the
Contract
owners materially adversely affected by the irreconcilable material conflict.
13. Termination; Withdrawal of Offering. This Agreement may be terminated by either party
upon 180 days’ prior written notice to the other party. Notwithstanding the above, the Issuer
reserves the right, without prior notice, to suspend sales of shares of any Fund, in whole or in
part, or to make a limited offering of shares of any of the Funds in the event that (A) any
regulatory body commences formal proceedings against the Company, Distributor, affiliates of
Distributor, or the Issuer, which proceedings Distributor reasonably believes may have a material
adverse impact on the ability of Distributor, the Issuer or the Company to perform its obligations
under this Agreement or (B) in the judgment of Distributor, declining to accept any additional
instructions for the purchase or sale of shares of any such Fund is warranted by market, economic
or political conditions.
The Company reserves the right to terminate the Agreement:
(a) if shares of the Funds are not reasonably available to meet the requirements of the
Contracts as determined by the Company;
(b) upon institution of formal proceedings against a Fund or Distributor by the National
Association of Securities Dealers, the Securities and Exchange Commission, or any state
securities
or insurance department or any other regulatory body, which would have a material adverse
effect
9
on the Distributor’s or a Fund’s ability to perform its obligations under this Agreement;
(c) upon a determination by a majority of the Board of Issuer, or a majority of the
disinterested Directors, that a material irreconcilable conflict exists among the interests of
(i) all
contract owners of variable insurance products of all separate accounts, or (ii) the interests
of the
participating insurance companies investing in the Funds, as discussed in Section 12 above;
(d) as to any Fund, if the Fund ceases to qualify as a Regulated Investment Company
under Subchapter M of the Code, or under any successor or similar provision, or if the Company
reasonably believes that the Fund may fail to so qualify;
(e) as to any Fund, if the Fund fails to meet the diversification requirements of Section
817(h) of the Code or if the Company reasonably believes that the Fund will fail to meet such
requirements; or
(f) if the Company determines in its sole judgment exercised in good faith, that either
any Fund or the Distributor has suffered a material adverse change in its business,
operations, or
financial condition or is the subject of material adverse publicity which is likely to have a
material
adverse impact upon the business and operations of the Company or the Contracts (including the
sale thereof).
Notwithstanding the foregoing, this Agreement may be terminated immediately (i) by any party
as a result of any other breach of this Agreement by another party, which breach is not cured
within 30 days after receipt of notice from the other party, or (ii) by any party upon a
determination that continuing to perform under this Agreement would, in the reasonable opinion of
the terminating party’s counsel, violate any applicable federal or state law, rule, regulation or
judicial order. Termination of this Agreement shall not affect the obligations of the parties to
make payments under Section 4 for Orders received by the Company prior to such termination and
shall not affect the Issuer’s obligation to maintain the Accounts as set forth by this Agreement.
Following termination, Distributor shall not have any Administrative Services payment obligation
to the Company (except for payment obligations accrued but not yet paid as of the termination
date).
14. Non-Exclusivity. Both parties acknowledge and agree that this Agreement and the
arrangement described herein are intended to be non-exclusive and that each party is free to
enter
into similar agreements and arrangements with other entities.
15. Survival.
The provisions of Section 9 (Use of Names) and Section 11 (Indemnity)
of this Agreement shall survive termination of this Agreement.
16. Amendment. Neither this Agreement, nor any provision hereof, may be amended,
waived, discharged or terminated orally, but only by an instrument in writing signed by all of
the
parties hereto.
10
17. Notices. All notices and other communications hereunder shall be given or made in
writing and shall be delivered personally, or sent by telex, telecopier, express delivery or
registered
or certified mail, postage prepaid, return receipt requested, to the party or parties to whom
they are
directed at the following addresses, or at such other addresses as may be designated by notice
from
such party to all other parties.
To the Company:
ML Life Insurance Company of Xxx Xxxx
0 Xxxxxx Xxxx — 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
(000) 000-0000 (office number)
(000) 000-0000 (telecopy number)
0 Xxxxxx Xxxx — 0xx Xxxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
(000) 000-0000 (office number)
(000) 000-0000 (telecopy number)
To the Issuer or Distributor:
American
Century Investment Services, Inc.
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
(000) 000-0000 (office number)
(000) 000-0000 (telecopy number)
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxx X. Xxxx, Esq.
(000) 000-0000 (office number)
(000) 000-0000 (telecopy number)
Any notice, demand or other communication given in a manner prescribed in this Section 17 shall be
deemed to have been delivered on receipt.
18. Successors and Assigns. This Agreement may not be assigned without the written
consent of both parties to the Agreement at the time of such assignment. This Agreement shall
be
binding upon and inure to the benefit both parties hereto and their respective permitted
successors
and assigns.
19. Counterparts. This Agreement may be executed in any number of counterparts, all
of which taken together shall constitute one agreement, and any party hereto may execute this
Agreement by signing any such counterpart.
20. Severability. In case any one or more of the provisions contained in this Agreement
should be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of
the remaining provisions contained herein shall not in any way be affected or impaired
thereby.
21. Entire Agreement. This Agreement, including the attachments hereto, constitutes
the entire agreement between the parties with respect to the matters dealt with herein, and
11
supersedes all previous agreements, written or oral, with respect to such matters.
If the foregoing correctly sets forth our understanding, please indicate your agreement to and
acceptance thereof by signing below, whereupon this Agreement shall become a binding agreement
between us as of the latest date indicated.
| AMERICAN CENTURY INVESTMENT SERVICES INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: | ||||||
| Title: | Executive Vice President | |||||
| Date: | 7/16/01 | |||||
We agree to and accept the terms of the foregoing Agreement.
| ML LIFE INSURANCE COMPANY OF NEW YORK | ||||||
| By: | /s/ Xxxxx X. Xxxxxxxx | |||||
| Name: | ||||||
| Title: | President and General Counsel | |||||
| Date: | ||||||
12
Exhibit A
Separate Accounts and Contracts
| • | Name of Separate Account and Date Established by the Board of Directors: |
ML of New York Variable Annuity Separate Account A — 08/14/1991
| • | Form Number and Names of Contracts Funded by Separate Account: |
Xxxxxxx Xxxxx Retirement Plus
Forms MLNY-VA-001NY1
Flexible Premium Variable Annuity Contract
Forms MLNY-VA-001NY1
Flexible Premium Variable Annuity Contract
Exhibit B
Funds of American Century Portfolios, Inc.
Offered to the Separate Accounts Listed in Schedule A
| • | VP International Fund |
