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
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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+1”). 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
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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.
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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
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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-1 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.
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(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.
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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: Name: |
/s/ Xxxxxxx X. Xxxxx
|
|||||
| 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: Name: |
/s/ Xxxxx X. Xxxxxxxx
|
|||||
| Title: | President and General Counsel | |||||
| Date: | ||||||
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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
Offered to the Separate Accounts Listed in Schedule A
| • | VP International Fund |
