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Exhibit 99.(h)(21)
FUND PARTICIPATION AGREEMENT
TABLE OF CONTENTS
ARTICLE I Sale of Trust Shares.......................................... 4
ARTICLE II Representations and Warranties................................ 6
ARTICLE III Prospectus and Proxy Statements; Voting....................... 9
ARTICLE IV Sales Material and Information................................ 10
ARTICLE V Fees and Expenses............................................. 12
ARTICLE VI Diversification and Qualification............................. 12
ARTICLE VII Potential Conflicts and Compliance with Other Mixed and
Shared Funding Exemptive Order................................ 13
ARTICLE VIII Indemnification............................................... 15
ARTICLE IX Applicable Law................................................ 19
ARTICLE X Privacy and Confidential Information.......................... 20
ARTICLE XI Anti-Money Laundering Regulations............................. 21
ARTICLE XII Termination................................................... 22
ARTICLE XIII Notices....................................................... 24
ARTICLE XIV Miscellaneous................................................. 24
SCHEDULE A Contracts..................................................... 27
SCHEDULE B Designated Portfolios......................................... 28
SCHEDULE C Expenses...................................................... 29
ii
FORM OF PARTICIPATION AGREEMENT
Among
MASSCHUSETTS MUTUAL LIFE INSURANCE COMPANY
ING FUNDS DISTRIBUTOR, LLC
and
ING VARIABLE PRODUCTS TRUST
THIS AGREEMENT, made and entered into as of this 28th day of April 2006 by
and among Massachusetts Mutual Life Insurance Company (hereinafter "MMLIC"), a
Massachusetts life insurance company, on its own behalf and on behalf of its
Separate Account(s) (the "Account(s)") as set forth on Schedule A hereto; ING
Variable Products Trust, an open-end management investment company and business
trust organized under the laws of Massachusetts (hereinafter the "Trust"); and
ING Funds Distributor, LLC (hereinafter the "Distributor"), a Delaware limited
liability company.
WHEREAS, the Trust engages in business as an open-end management investment
company and is available to act as the investment vehicle for separate accounts
established for variable life insurance policies and/or variable annuity
contracts (collectively, the "Variable Insurance Products") to be offered by
insurance companies, including MMLIC, which have entered into participation
agreements similar to this Agreement (hereinafter "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into several series of
shares, each designated a "Portfolio" and representing the interest in a
particular managed portfolio of securities and other assets; and
WHEREAS, MMLIC has registered certain variable annuity contracts supported
wholly or partially by the Account (the "Contracts") under the 1933 Act, the
Account is a duly organized, validly existing segregated asset account,
established by resolution of the Board of Directors of MMLIC under the insurance
laws of the State of Massachusetts to set aside and invest assets attributable
to the Contracts; and MMLIC has registered the Account as a unit investment
trust under the 1940 Act and has registered the securities deemed to be issued
by the Account under the 1933 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
MMLIC intends to purchase shares in the Portfolio(s) listed in Schedule B
attached hereto and incorporated herein by reference, as such Schedule may be
amended from time to time by mutual written agreement (the "Designated
Portfolio(s)"), on behalf of the Account to fund the Contracts, and the Trust is
authorized to sell such shares to unit investment trusts such as the Account at
net asset value; and
iii
NOW, THEREFORE, in consideration of their mutual promises, MMLIC, the Trust, and
the Distributor agree as follows:
ARTICLE I
Sale of Trust Shares
1.1 The Trust agrees to sell to MMLIC those shares of the Designated
Portfolio(s) which the Account orders, executing such orders on each Business
Day at the net asset value next computed after receipt by the Trust or its
designee of the order for the shares of the Designated Portfolios. For purposes
of this Section 1.1, MMLIC shall be the designee of the Trust for receipt of
such orders and receipt by such designee shall constitute receipt by the Trust,
provided that the Trust receives notice of any such order, via facsimile, by
10:00 a.m. Eastern time on the next following Business Day. "Business Day" shall
mean any day on which the New York Stock Exchange is open for trading and on
which the Designated Portfolio calculates its net asset value pursuant to the
rules of the SEC.
1.2 The Trust agrees to make shares of the Designated Portfolio(s) available for
purchase at the applicable net asset value per share by MMLIC and the Account on
those days on which the Trust calculates its Designated Portfolio(s)' net asset
value pursuant to rules of the SEC, and the Trust shall calculate such net asset
value on each day which the New York Stock Exchange is open for trading.
Notwithstanding the foregoing, the Board of Trustees of the Trust (hereinafter
the "Board") may refuse to sell shares of any Designated Portfolio to any
person, or suspend or terminate the offering of shares of any Designated
Portfolio if such action is required by law or by regulatory authorities having
jurisdiction or is, in the sole discretion of the Board acting in good faith and
in light of its fiduciary duties under federal and any applicable state laws,
necessary in the best interests of the shareholders of such Designated
Portfolio.
1.3 The Trust and the Distributor agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts and other
persons who are permissible investors consistent with the Accounts meeting the
requirement of Treasury Regulation 1.817-5.
1.4 The Trust shall redeem its shares in accordance with the terms of its then
current prospectus. (For purposes of this Section 1.4, MMLIC shall be the
designee of the Trust for receipt of requests for redemption and receipt by such
designee shall constitute receipt by the Trust, provided that the Trust receives
notice of any such request for redemption by 10:00 a.m. Eastern time on the next
following Business Day.)
1.5 The Parties hereto acknowledge that the arrangement contemplated by this
Agreement is not exclusive; the Trust's shares may be sold to other
Participating Insurance Companies (subject to Section 1.3) and the cash value of
the Contracts may be invested in other investment companies.
1.6 MMLIC shall pay for Trust shares by 5:00 p.m. Eastern time on the next
Business Day after an order to purchase Trust shares is made in accordance with
the provisions of Section 1.1
iv
hereof. Payment shall be in federal funds transmitted by wire and/or by a credit
for any shares redeemed the same day as the purchase.
1.7 The Trust shall pay and transmit the proceeds of redemptions of Trust shares
by 11:00 a.m. Eastern Time on the next Business Day after a redemption order is
received in accordance with Section 1.4 hereof. Payment shall be in federal
funds transmitted by wire and/or a credit for any shares purchased the same day
as the redemption.
1.8 Issuance and transfer of the Trust's shares will be by book entry only.
Stock certificates will not be issued to MMLIC or the Account. Shares purchased
from the Trust will be recorded in an appropriate title for the Account or the
appropriate sub-account of the Account. The Trust will provide MMLIC with
account look-up access through DST Vision or similar electronic look-up feature
to review daily account share balances.
1.9 The Trust shall furnish same day notice (by wire or telephone, followed by
written confirmation) to MMLIC of any income, dividends or capital gain
distributions payable on the Designated Portfolio(s)' shares. MMLIC hereby
elects to receive all such income dividends and capital gain distributions as
are payable on the Designated Portfolio shares in additional shares of that
Designated Portfolio. MMLIC reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Trust shall notify MMLIC by the end of the next following Business Day of the
number of shares so issued as payment of such dividends and distributions.
1.10 The Trust shall make the net asset value per share for each Designated
Portfolio available to MMLIC on each Business Day as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 8:00 p.m.
Eastern time. In the event of an error in the computation of a Designated
Portfolio's net asset value per share ("NAV") or any dividend or capital gain
distribution (each, a "pricing error"), the Trust shall immediately notify MMLIC
as soon as possible after discovery of the error. Such notification may be
verbal, but shall be confirmed promptly in writing in accordance with Article XI
of this Agreement. A pricing error shall be corrected as follows:
a) If the pricing error results in a difference between the erroneous NAV
and the correct NAV of less than $0.01 per share, then no corrective
action need be taken.
b) If the pricing error results in a difference between the erroneous NAV
and the correct NAV equal to or greater than $0.01 per share, but less
than 1/2 of 1% of the Designated Portfolio's NAV at the time of the
error, then the Trust shall reimburse the Designated Portfolio for any
loss, after taking into consideration any positive effect of such
error; however, no adjustments to Contractowner accounts need be made.
c) If the pricing error results in a difference between the erroneous NAV
and the correct NAV equal to or greater than 1/2 of 1% of the
Designated Portfolio's NAV at the time of the error, then the Trust
shall reimburse the Designated Portfolio for any loss (without taking
into consideration any positive effect of such error) and shall
reimburse MMLIC for the costs of adjustments made to correct
Contractowner accounts.
v
If an adjustment is necessary to correct a material error which has caused
Contractowners to receive less than the amount to which they are entitled, the
number of shares of the applicable sub-account of such Contractowners will be
adjusted and the amount of any underpayments shall be credited by the Trust to
MMLIC for crediting of such amounts to the applicable Contractowners accounts.
Upon notification by the Trust of any overpayment due to a material error, MMLIC
shall promptly remit to Trust any overpayment that has not been paid to
Contractowners. In no event shall MMLIC be liable to Contractowners for any such
adjustments or underpayment amounts. A pricing error within items (b) and (c)
above shall be deemed to be "materially incorrect" or constitute a "material
error" for purposes of this Agreement.
The standards set forth in this Section 1.10 are based on the Parties'
understanding of the views expressed by the staff of the SEC as of the date of
this Agreement. In the event the views of the SEC staff are later modified or
superseded by SEC or judicial interpretation, the parties shall amend the
foregoing provisions of this Agreement to comport with the appropriate
applicable standards, on terms mutually satisfactory to all Parties.
ARTICLE II
Representations and Warranties
2.1 MMLIC represents and warrants that:
a) The Contracts and the securities deemed to be issued by the Account
under the Contracts are or will be registered under the 1933 Act.
b) The Contracts will be issued and sold in compliance in all material
respects with all applicable federal and state laws and that the sale
of the Contracts shall comply in all material respects with state
insurance requirements.
c) It is an insurance company duly organized and in good standing under
applicable law and that it has legally and validly established the
Account prior to any issuance or sale of units thereof as a segregated
asset account under Massachusetts law.
d) It has registered the Account as a unit investment trust in accordance
with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts and that it will maintain such
registration for so long as any Contracts are outstanding as required
by applicable law.
2.2 The Trust represents and warrants that:
a) It has obtained an order from the Securities and Exchange Commission
(hereinafter the "SEC"), dated October 12, 2005 (File No. 812-13116),
granting Participating Insurance Companies and variable annuity
separate accounts exemptions from the provisions of sections 9(a),
13(a), 15(a), and 15(b) of the Investment Company Act of 1940, as
amended, (hereinafter the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of
the Trust to be sold to and held by variable annuity separate accounts
of life insurance companies that may or may not be affiliated with one
another and qualified pension and retirement plans ("Qualified Plans")
(hereinafter the "Mixed and Shared Funding Exemptive Order").
vi
b) Designated Portfolio(s) shares sold pursuant to this Agreement shall
be registered under the 1933 Act, duly authorized for issuance and
sold in compliance with all applicable federal securities laws
including without limitation the 1933 Act, the 1934 Act, and the 0000
Xxx.
c) The Trust is and shall remain registered under the 0000 Xxx.
d) The Trust shall amend the registration statement for its shares under
the 1933 Act and the 1940 Act from time to time as required in order
to affect the continuous offering of its shares.
e) It will make every effort to ensure that Designated Portfolio(s)
shares will be sold in compliance with all applicable state insurance
and securities laws.
f) The Trust shall register and qualify the shares for sale in accordance
with the laws of the various states if and to the extent required by
applicable law.
g) MMLIC and the Trust will endeavor to mutually cooperate with respect
to the implementation of any modifications necessitated by any change
in state insurance laws, regulations or interpretations of the
foregoing that affect the Designated Portfolio(s) (a "Law Change"),
and to keep each other informed of any Law Change that becomes known
to either party.
h) It is lawfully organized and validly existing under the laws of the
Commonwealth of Massachusetts and that it does and will comply in all
material respects with the 1940 Act.
2.3 The Trust has adopted a plan pursuant to Rule 12b-1 under the 1940 Act an
asset-based or other charge to finance distribution expenses as permitted by
applicable law and regulation. To the extent that the Trust decides to finance
distribution expenses pursuant to Rule 12b-1, the Trust undertakes to have its
Board, a majority of whom are not interested persons of the Trust, formulate and
approve any plan pursuant to Rule 12b-1 under the 1940 Act to finance
distribution expenses. Certain share classes do not provide for 12b-1 expenses.
2.4 In the event of such a Law Change as noted in Section 2.2, the Trust agrees
that, except in those circumstances where the Trust has advised MMLIC that its
Board has determined that implementation of a particular Law Change is not in
the best interest of all of the Trust's shareholders with an explanation
regarding why such action is lawful, any action required by a Law Change will be
taken.
2.5 The Distributor represents and warrants that:
a) It is duly registered as a broker-dealer under the Securities Exchange
Act of 1934, as amended, (the "1934 Act") and is a member in good
standing of the National Association of Securities Dealers, Inc. (the
"NASD").
b) It is and shall remain duly registered under all applicable federal
and state securities laws.
c) It shall perform its obligations for the Trust in compliance in all
material respects with the laws of any applicable state and federal
securities laws.
2.6 The Trust and the Distributor represent and warrant that:
vii
a) All of their respective officers, employees, investment advisers, and
other individuals or entities dealing with the money and/or securities
of the Trust are, and shall continue to be at all times, covered by
one or more blanket fidelity bonds or similar coverage for the benefit
of the Trust in an amount not less than the minimal coverage required
by Rule 17g-1 under the 1940 Act or related provisions as may be
promulgated from time to time.
b) The aforesaid bonds shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.7 The Trust will provide MMLIC with as much advance notice as is reasonably
practicable of any material change affecting the Designated Portfolio(s)
(including, but not limited to, any material change in the registration
statement or prospectus affecting the Designated Portfolio(s)) and any proxy
solicitation affecting the Designated Portfolio(s) and consult with MMLIC in
order to implement any such change in an orderly manner, recognizing the
expenses of changes and attempting to minimize such expenses by implementing
them in conjunction with regular annual updates of the prospectus for the
Contracts. The Trust agrees to share equitably in expenses incurred by MMLIC as
a result of actions taken by the Trust, consistent with the allocation of
expenses contained in Schedule C attached hereto and incorporated herein by
reference.
2.8 MMLIC represents and warrants, for purposes other than diversification under
Section 817 of the Internal Revenue Code of 1986 as amended ("the Code"), that:
a) The Contracts are currently and at the time of issuance will be
treated as annuity contracts under applicable provisions of the Code,
and that it will make every effort to maintain such treatment and that
it will notify the Trust and the Distributor immediately upon having a
reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future.
b) The Account is a "segregated asset account" and that interests in the
Account are offered exclusively through the purchase of or transfer
into a "variable contract" within the meaning of such terms under
Section 817 of the Code and the regulations thereunder.
c) It will not purchase Trust shares with assets derived from
tax-qualified retirement plans except, indirectly, through Contracts
purchased in connection with such plans.
MMLIC will use every effort to continue to meet such definitional requirements,
and it will notify the Trust and the Distributor immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
ARTICLE III
Prospectuses and Proxy Statements; Voting
3.1 At least annually, the Trust or Distributor shall provide MMLIC with as many
copies of the Trust's current prospectus for the Designated Portfolio(s) as
MMLIC may reasonably request for marketing purposes (including distribution to
Contractowners with respect to new sales of a Contract), with expenses to be
borne in accordance with Schedule C hereof. If requested by MMLIC in lieu
thereof Trust or Distributor shall provide such documentation (including a
camera-ready copy and computer diskette of the current prospectus for the
Designated
viii
Portfolio(s)) and other assistance as is reasonably necessary in order for MMLIC
once each year (or more frequently if the prospectuses for the Designated
Portfolio(s) are amended) to have the prospectus for the Contracts and the
Trust's prospectus for the Designated Portfolio(s) printed together in one
document. The Trust and Distributor agree that the prospectus (and semi-annual
and annual reports) for the Designated Portfolio(s) will describe only the
Designated Portfolio(s) and will not name or describe any other portfolios or
series that may be in the Trust unless required by law.
3.2 The Trust's prospectus shall state that the Statement of Additional
Information ("SAI") for the Trust is available from the Trust and the Trust
shall provide the SAI free of charge to any current or prospective contract
owner who requests the SAI. The Trust and Distributor agree to provide the
Company with as many copies of the SAI as reasonably requested.
3.3 The Trust and/or Distributor shall provide MMLIC with copies of the Trust's
proxy material, reports to stockholders and other communications to stockholders
for the Designated Portfolio(s) in such quantity, with expenses to be borne in
accordance with Schedule C hereof, as MMLIC may reasonably require to permit
timely distribution thereof to Contractowners.
3.4 If and to the extent required by law MMLIC shall:
a) Solicit voting instructions from Contractowners.
b) Vote the Designated Portfolio(s) shares held in the Account in
accordance with instructions received from Contractowners.
c) Vote Designated Portfolio shares held in the Account for which no
instructions have been received in the same proportion as Designated
Portfolio(s) shares for which instructions have been received from
Contractowners, so long as and to the extent that the SEC continues to
interpret the 1940 Act to require pass-through voting privileges for
variable contract owners.
MMLIC reserves the right to vote Trust shares held in any segregated asset
account in its own right, to the extent permitted by law.
3.5 MMLIC shall be responsible for assuring that each of its separate accounts
holding shares of a Designated Portfolio calculates voting privileges as
directed by the Trust and agreed to by MMLIC and the Trust. The Trust agrees to
promptly notify MMLIC of any changes of interpretations or amendments of the
Mixed and Shared Funding Exemptive Order.
3.6 The Trust will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular the Trust will either provide for annual
meetings (except insofar as the SEC may interpret Section 16 of the 1940 Act not
to require such meetings) or, as the Trust currently intends, comply with
Section 16(c) of the 1940 Act (although the Trust is not one of the trusts
described in Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b). Further, the Trust will act in accordance with the
SEC's interpretation of the requirements of Section 16(a) with respect to
periodic elections of directors or trustees and with whatever rules the SEC may
promulgate with respect thereto.
ix
ARTICLE IV
Sales Material and Information
4.1 MMLIC shall furnish, or shall cause to be furnished, to the Trust or its
designee, a copy of each piece of sales literature or other promotional material
that MMLIC develops or proposes to use and in which the Trust (or a Portfolio
thereof) or the Distributor is named in connection with the Contracts, at least
ten (10) Business Days prior to its use. No such material shall be used if the
Trust objects to such use within five (5) Business Days after receipt of such
material.
4.2 MMLIC shall not give any information or make any representations or
statements on behalf of the Trust in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement, including the prospectus or SAI for the Trust shares, as the same may
be amended or supplemented from time to time, or in sales literature or other
promotional material approved by the Trust or Distributor except with the
permission of the Trust or Distributor.
4.3 The Trust or the Distributor shall furnish, or shall cause to be furnished,
to MMLIC, a copy of each piece of sales literature or other promotional material
in which MMLIC and/or its separate account(s) is named at least ten (10)
Business Days prior to its use. No such material shall be used if MMLIC objects
to such use within five (5) Business Days after receipt of such material.
4.4 The Trust or the Distributor shall not give any information or make any
representations on behalf of MMLIC or concerning MMLIC, the Account, or the
Contracts other than the information or representations contained in a
registration statement, including the prospectus or SAI for the Contracts, as
the same may be amended or supplemented from time to time, or in sales
literature or other promotional material approved by MMLIC or its designee,
except with the permission of MMLIC.
4.5 The Trust will provide to MMLIC at least one complete copy of all
registration statements, prospectuses, SAIs, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Designated
Portfolio(s) within a reasonable period of time following the filing of such
document(s) with the SEC or NASD or other regulatory authorities.
4.6 MMLIC will provide to the Trust at least one complete copy of all
registration statements, prospectuses, SAIs, reports, solicitations for voting
Instructions, sales literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to any of the
above, that relate to the Contracts or the Account, if requested by MMLIC.
4.7 For purposes of Articles IV and VIII, the phrase "sales literature and other
promotional material" includes, but is not limited to:
a) Advertisements (such as material published, or designed for use in, a
newspaper, magazine, or other periodical, radio, television, telephone
or tape recording, videotape
x
display, signs or billboards, motion pictures, or other public media;
e.g., on-line networks such as the Internet or other electronic
media).
b) Sales literature (i.e., any written communication distributed or made
generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar
texts, reprints or excerpts of any other advertisement, sales
literature, or published article).
c) Educational or training materials or other communications distributed
or made generally available to some or all agents or employees.
d) Shareholder reports.
e) Proxy materials (including solicitations for voting instructions).
f) Any other material constituting sales literature or advertising under
the NASD rules, the 1933 Act or the 0000 Xxx.
4.8 At the request of any party to this Agreement, each other party will make
available to the other party's independent auditors and/or representative of the
appropriate regulatory agencies, all records, data and access to operating
procedures that may be reasonably requested in connection with compliance and
regulatory requirements related to this Agreement or any party's obligations
under this Agreement.
ARTICLE V
Fees and Expenses
5.1 All expenses incident to performance by the Trust and the Distributor under
this Agreement shall be paid by the appropriate party, as further provided in
Schedule C. The Trust shall see to it that all shares of the Designated
Portfolio(s) are registered and authorized for issuance in accordance with
applicable federal law and, if and to the extent required, in accordance with
applicable state laws prior to their sale.
5.2 The parties shall bear the expenses of routine annual distribution (mailing
costs) of the Trust's prospectus and distribution (mailing costs) of the Trust's
proxy materials and reports to owners of Contracts offered by MMLIC, in
accordance with Schedule C.
ARTICLE VI
Diversification and Qualification
6.1 The Trust and the Distributor represent and warrant that:
a) The Trust will at all times sell its shares and invest its assets in
such a manner as to ensure that the Contracts will be treated as
annuity contracts under the Code, and the regulations issued
thereunder.
b) Without limiting the scope of the foregoing, the Trust and each
Designated Portfolio thereof will at all times comply with Section
817(h) of the Code and Treasury Regulation (S)1.817-5, as amended from
time to time, and any Treasury interpretations thereof, relating to
the diversification requirements for variable annuity contracts and
any amendments or other modifications or successor provisions to such
Section or Regulations.
xi
c) Shares of the Designated Portfolio(s) will be sold only to
Participating Insurance Companies and their separate accounts and to
Qualified Plans.
d) No shares of any Designated Portfolio of the Trust will be sold to the
general public.
e) The Trust and each Designated Portfolio is currently qualified as a
Regulated Investment Company under Subchapter M of the Code, and that
each Designated Portfolio will maintain such qualification (under
Subchapter M or any successor or similar provisions) as long as this
Agreement is in effect.
f) They will notify MMLIC immediately upon having a reasonable basis for
believing that the Trust or any Designated Portfolio has ceased to
comply with the aforesaid Section 817(h) diversification or Subchapter
M qualification requirements or might not so comply in the future.
6.2 MMLIC agrees that if the Internal Revenue Service ("IRS") asserts in writing
in connection with any governmental audit or review of MMLIC or, to MMLIC's
knowledge, of any Contractowner that any Designated Portfolio has failed to
comply with the diversification requirements of Section 817(h) of the Code or
MMLIC otherwise becomes aware of any facts that could give rise to any claim
against the Trust or Distributor as a result of such a failure or alleged
failure that:
a) MMLIC shall promptly notify the Trust and Distributor of such
assertion or potential claim.
b) MMLIC shall consult with the Trust and Distributor as to how to
minimize any liability that may arise as a result of such failure or
alleged failure.
c) MMLIC shall use its best efforts to minimize any liability of the
Trust and Distributor resulting from such failure, including, without
limitation, demonstrating, pursuant to Treasury Regulations, Section
1.817-5(a)(2), to the commissioner of the IRS that such failure was
inadvertent.
d) Any written materials to be submitted by MMLIC to the IRS, any
Contractowner or any other claimant in connection with any of the
foregoing proceedings or contests (including, without limitation, any
such materials to be submitted to the IRS pursuant to Treasury
Regulations, Section 1.817-5(a)(2)) shall be provided by MMLIC to the
Trust and Distributor (together with any supporting information or
analysis) within at least two (2) business days prior to submission.
e) MMLIC shall provide the Trust and Distributor with such cooperation as
the Trust and Distributor shall reasonably request (including, without
limitation, by permitting the Trust and Distributor to review the
relevant books and records of MMLIC) in order to facilitate review by
the Trust and Distributor of any written submissions provided to it or
its assessment of the validity or amount of any claim against it
arising from such failure or alleged failure.
ARTICLE VII
Potential Conflicts and Compliance with Mixed and Shared Funding Exemptive Order
7.1 The Board will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
separate accounts investing in the Trust. An irreconcilable material conflict
may arise for a variety of reasons, including:
xii
a) Any action by any state insurance regulatory authority.
b) 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 action by
insurance, tax, or securities regulatory authorities.
c) An administrative or judicial decision in any relevant proceeding.
d) The manner in which the investments of any Designated Portfolio are
being managed.
e) A difference in voting instructions given by variable annuity
contractowners or by contract owners of different Participating
Insurance Companies.
f) A decision by a Participating Insurance Company to disregard the
voting instructions of contract owners.
The Board shall promptly inform MMLIC if it determines that an irreconcilable
material conflict exists and the implications thereof.
7.2 MMLIC will report any potential or existing conflicts of which it is aware
to the Board. MMLIC will assist the Board in carrying out its responsibilities
under the Mixed and 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 MMLIC to inform
the Board whenever contract owner voting instructions are to be disregarded.
Such responsibilities shall be carried out by MMLIC with a view only to the
interests of its Contractowners.
7.3 If it is determined by a majority of the Board, or a majority of its
trustees who are not interested persons of the Trust or Distributor to any of
the Designated Portfolios (the "Independent Trustees"), that a material
irreconcilable conflict exists, MMLIC and other Participating Insurance
Companies shall, at their expense and to the extent reasonably practicable (as
determined by a majority of the Independent Trustees), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, up to and
including:
a) Withdrawing the assets allocable to some or all of the separate
accounts from the Trust or any Designated Portfolio and reinvesting
such assets in a different investment medium, including (but not
limited to) another portfolio of the Trust.
b) Submitting the question whether such segregation should be implemented
to a vote of all affected contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity
contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected contract owners the option of
making such a change.
c) Establishing a new registered management investment company or managed
separate account.
7.4 If a material irreconcilable conflict arises because of a decision by MMLIC
to disregard Contractowner voting instructions and that decision represents a
minority position or would preclude a majority vote, MMLIC may be required, at
the Trust's election, to withdraw the Account's investment in the Trust and
terminate this Agreement; provided, however that such withdrawal and termination
shall be limited to the extent required by the foregoing material
xiii
irreconcilable conflict as determined by a majority of the Independent Trustees.
Any such withdrawal and termination must take place within six (6) months after
the Trust gives written notice that this provision is being implemented, and
until the end of that six month period the Trust and Distributor shall continue
to accept and implement orders by MMLIC for the purchase (and redemption) of
shares of the Trust.
7.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to MMLIC conflicts with the majority
of other state regulators, then MMLIC will withdraw the Account's investment in
the Trust and terminate this Agreement within six months after the Board informs
MMLIC in writing that it has determined that such decision has created an
irreconcilable material conflict; 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. Until the end of the foregoing six month period, the Trust shall
continue to accept and implement orders by MMLIC for the purchase (and
redemption) of shares of the Trust.
7.6 For purposes of Sections 7.3 through 7.5 of this Agreement, a majority of
the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Trust be required to establish a new funding medium for the Contracts.
MMLIC shall not be required by Section 7.3 to establish a new funding medium for
the Contracts if an offer to do so has been declined by vote of a majority of
Contractowners affected by the irreconcilable material conflict. In the event
that the Board determines that any proposed action does not adequately remedy
any irreconcilable material conflict, then MMLIC will withdraw the Account's
investment in the Trust and terminate this Agreement within six (6) months after
the Board informs MMLIC in writing of the foregoing determination; provided,
however, that such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as determined by a
majority of the Independent Trustees.
7.7 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act
or the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Shared Funding
Exemptive Order, then (a) the Trust and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable: and (b) Sections 3.5, 3.6, 3.7, 7.1, 7.2, 7.3,
7.4, and 7.5 of this Agreement shall continue in effect only to the extent that
terms and conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
ARTICLE VIII
Indemnification
8.1 Indemnification By MMLIC
xiv
(a) MMLIC agrees to indemnify and hold harmless the Trust and Distributor
and each of their respective officers and directors or trustees and each person,
if any, who controls the Trust or Distributor within the meaning of Section 15
of the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, expenses, damages and
liabilities (including amounts paid in settlement with the written consent of
MMLIC) or litigation (including reasonable legal and other expenses) to which
the Indemnified Parties may become subject under any statute or regulation, at
common law or otherwise, insofar as such losses, claims, expenses, damages or
liabilities (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Trust's shares or the Contracts and:
(i) Arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statement or prospectus or SAI covering the
Contracts or contained in the Contracts or sales literature or
other promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged 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 or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished in writing to MMLIC by or on behalf of the
Trust or Distributor for use in the registration statement or
prospectus for the Contracts or in the Contracts or sales
literature or other promotional material (or any amendment or
supplement to any of the foregoing) or otherwise for use in
connection with the sale of the Contracts or Trust shares.
(ii) Arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature or other
promotional material of the Trust not supplied by MMLIC or
persons under its control) or wrongful conduct of MMLIC or
persons under its control, with respect to the sale or
distribution of the Contracts or Trust Shares.
(iii) Arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement,
prospectus, SAI, or sales literature or other promotional
material of the Trust, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, if such a statement or
omission was made in reliance upon information furnished in
writing to the Trust by or on behalf of MMLIC.
(iv) Arise as a result of any failure by MMLIC to provide the services
and furnish the materials under the terms of this Agreement.
(v) Arise out of or result from any material breach of any
representation and/or warranty made by MMLIC in this Agreement or
arise out of or result from any other material breach of this
Agreement by MMLIC,
xv
including without limitation Section 2.8 and Section 6.3 hereof,
as limited by and in accordance with the provisions of Sections
8.1(b) and8.1(c) hereof.
(b) MMLIC shall not be liable under this indemnification provision with
respect to any losses, claims, expenses, damages, liabilities or litigation to
which an Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
(c) MMLIC shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified MMLIC in writing within a reasonable time after the
summons or other first legal process giving information of the nature of the
claim shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify MMLIC of any such claim shall not relieve MMLIC
from any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision,
except to the extent that MMLIC has been prejudiced by such failure to give
notice. In case any such action is brought against the Indemnified Parties,
MMLIC shall be entitled to participate, at its own expense, in the defense of
such action. MMLIC also shall be entitled to assume the defense thereof, with
counsel satisfactory to the party named in the action. After notice from MMLIC
to such party of MMLIC's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel retained by it,
and MMLIC will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
(d) The Indemnified Parties will promptly notify MMLIC of the commencement
of any litigation or proceedings against them in connection with the issuance or
sale of the Trust Shares or the Contracts or the operation of the Trust.
8.2 Indemnification by the Trust and Distributor
(a) The Trust and Distributor agree to indemnify and hold harmless MMLIC
and its directors and officers, each person, if any, who controls MMLIC within
the meaning of Section 15 of the 1933 Act, and MMLIC's affiliated principal
underwriter of its Contracts (collectively, the "Indemnified Parties" for
purposes of this Section 8.2) against any and all losses, claims, expenses,
damages and liabilities (including amounts paid in settlement with the written
consent of the Trust or Distributor) or litigation (including reasonable legal
and other expenses) to which the Indemnified Parties may be required to pay or
become subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, expenses, damages, liabilities or expenses (or
actions in respect thereof) or settlements, are related to the operations of the
Trust or Distributor and arise:
xvi
(i) As a result of any failure by the Trust or Distributor to provide
the services and furnish the materials under the terms of this
Agreement (including a failure, whether unintentional or in good
faith or otherwise, to comply with the diversification and other
qualification requirements specified in Article VI of this
Agreement).
(ii) Out of or result from any material breach of any representation
and/or warranty made by the Trust or Distributor in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Trust.
(iii) Out of or result from the incorrect or untimely calculation or
reporting of the daily net asset value per share (subject to
Section 1.10 of this Agreement) or dividend or capital gain
distribution rate; as limited by and in accordance with the
provisions of Sections 8.3(b) hereof.
(iv) Out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration
statement or prospectus or SAI or sales literature or other
promotional material of the Trust prepared by the Trust or
Distributor (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission or the
alleged 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
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished in writing to the
Trust or Distributor by or on behalf of MMLIC for use in the
registration statement or SAI or prospectus for the Trust or in
sales literature or other promotional material (or any amendment
or supplement to any of the foregoing) or otherwise for use in
connection with the sale of the Contracts or Trust shares.
(v) Out of or as a result of statements or representations (other
than statements or representations contained in the registration
statement, prospectus, SAI, sales literature or other promotional
material for the Contracts not supplied by the Trust or
Distributor or persons under its control) or wrongful conduct of
the Trust or Distributor or persons under their control, with
respect to the sale or distribution of the Contracts or Trust
shares.
xvii
(b) The Trust or Distributor shall not be liable under this indemnification
provision with respect to any losses, claims, expenses, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by reason of
such Indemnified Party's willful misfeasance, bad faith, or negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
any of the Indemnified Parties.
(c) The Trust or Distributor shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the Trust or Distributor in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Trust or
Distributor of any such claim shall not relieve it from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification provision, except to the extent that the
Trust or Distributor has been prejudiced by such failure to give notice. In case
any such action is brought against the Indemnified Parties, the Trust and
Distributor will be entitled to participate, at its own expense, in the defense
thereof. The Trust and Distributor shall also be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the action. After
notice from the Trust or Distributor to such party of the Trust or Distributor's
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and the Trust and
Distributor will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
(d) MMLIC agrees promptly to notify the Trust or Distributor of the
commencement of any litigation or proceeding against them or any of its
respective officers or directors in connection with the Agreement, the issuance
or sale of the Contracts, the operation of the Account, or the sale or
acquisition of shares of the Trust.
ARTICLE IX
Applicable Law
9.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware, without regard
to the Delaware Conflict of Laws provisions.
9.2 This Agreement shall be subject to the provisions of the 1933, 1934 and 1940
Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
xviii
ARTICLE X
PRIVACY AND CONFIDENTIAL INFORMATION
10.1 MMLIC acknowledges that they must comply with the information security
standards of the Xxxxx-Xxxxx-Xxxxxx Act (15 USC 6801, 6805(b)(1))
("Xxxxx-Xxxxx-Xxxxxx Act") and all regulations under said act, as well as all
other statutory and regulatory acts and requirements including the SEC
Regulation S-P sections regarding "non-public personal information" ("Protected
Information"), as well as the Trust's own internal information security programs
and guidelines. MMLIC will reasonably assist the Trust in conforming to and
complying with any and all information protection policies, including delivery
of the Trust(s) privacy promise.
10.2 MMLIC agrees to not disclose or use Protected Information except in the
ordinary course of business as necessary to carry out the terms of this
Agreement and in compliance with Regulation S-P including, but not limited to,
Section 11 of Regulation S-P, and other applicable Federal and state statutes
and regulations regarding privacy of consumer information.
10.3 Confidential information shall mean information that a party ("Discloser")
discloses to another party ("Recipient"), or to which the Recipient obtains
access to and relates to the Discloser, the Trust(s), the Advisor, and/or a
third-party supplier or licensor who has made confidential or proprietary
information available to another party. Confidential information includes, but
is not limited to:
(a) Any and all proprietary information
(b) Data
(c) Trade secrets
(d) Business information
(e) Customer and Customer account information
The Recipient shall not disclose or use confidential information other than in
the course of ordinary business to carry out the purpose for which the
confidential information was provided to the Recipient. The Recipient shall not
disclose Customer information on other than a "need to know" basis and then only
to:
(a) Recipient's employees or officers.
(b) Affiliates of Recipient provided they would be restricted in use and
redisclosure to the same extent as the Recipient.
(c) Selected subcontractors who have entered into confidentiality
agreements no less restrictive that the terms of this Agreement.
(d) Any exceptions as listed in 15 USC 6802(e) and/or other associated
regulations established under the Xxxxx-Xxxxx-Xxxxxx Act or other
Federal and/or state statutes.
xix
Before any disclosure of confidential information as required by law, the
Recipient must notify the Discloser of any actual or threatened legal compulsion
of disclosure and/or any legal obligation of disclosure immediately upon
becoming obligated. The Recipient must also cooperate with the Discloser's
reasonable, lawful effort to resist, limit, or delay disclosure. Any requests or
demands for confidential information by any applicable regulator shall not
require notification or any other action by the Trust or the Advisor.
These confidentiality obligations do not apply to information which:
(a) Recipient already rightfully possesses when given by Discloser.
(b) Recipient develops independently of the Discloser.
(c) Becomes "public information" by methods other than by breach of this
section.
(d) Recipient rightfully receives from a third party without the
obligation of confidentiality.
ARTICLE XI
ANTI-MONEY LAUNDERING REGULATIONS
11.1 To allow the Trusts to comply with applicable "Know Your Customer" and/or
any Federal or state Anti-Money Laundering laws and regulations, MMLIC will,
upon request by the Trust(s), the independent Board of Trustees of the Trust(s),
or the Distributor, will provide, in a timely manner, any documentation deemed
necessary regarding MMLIC's "Know Your Customer" and/or Your Anti-Money
Laundering policies and procedures. MMLIC agrees to:
(a) Have in place established policies and procedures designed to prevent
and detect money laundering.
(b) Meet applicable anti-money laundering legal and regulatory
requirements.
(c) Have procedures in place to ensure that none of your customers that
invest within Trust(s) shares appear on or are covered by any list or
prohibited persons, entities, and/or jurisdictions maintained and
administered by the U.S. Treasury Department's Office of Foreign
Assets Control ("OFAC").
(d) Identify and continue to identify and retain all documentation
necessary to identify Your Customers and their sources of funds.
(e) Monitor for suspicious transactions and to assist the Trust in
monitoring for such transactions upon request from the Trust, the
transfer agent, or the independent Board of Trustees of the Trust(s).
11.2 At time of acceptance of the Agreement, MMLIC does not believe, nor have
any current reason to believe, and will immediately notify the Trusts if MMLIC
comes to have any reason to believe that any of MMLIC's customers that invest
within Trust(s) shares through MMLIC are engaged in money-laundering activities
or are associated with any terrorist and/or other individuals, entities or
organizations sanctioned by the United States or any other jurisdictions in
which MMLIC does business, or appear on any lists of prohibited persons,
entities and/or jurisdictions maintained and administered by OFAC.
The provisions of the section shall survive the termination of this Agreement.
xx
ARTICLE XII Termination
12.1 This Agreement shall terminate:
(a) At the option of any party, with or without cause, with respect to
some or all Designated Portfolios, upon ninety (90) days advance
written notice delivered to the other parties; provided, however, that
such notice shall not be given earlier than six (6) months following
the date of this Agreement.
(b) At the option of MMLIC by written notice to the other parties with
respect to any Designated Portfolio based upon MMLIC's determination
that shares of such Designated Portfolio are not reasonably available
to meet the requirements of the contracts.
(c) At the option of MMLIC by written notice to the other parties with
respect to any Designated Portfolio in the event any of the Designated
Portfolio's shares are not registered, issued or sold in accordance
with applicable state and/or federal law or such law precludes the use
of such shares as the underlying investment media of the Contracts
issued or to be issued by MMLIC.
(d) At the option of the Trust or Distributor in the event that formal
administrative proceedings are instituted against MMLIC by the NASD,
the SEC, the Insurance Commissioner or like official of any state or
any other regulatory body regarding MMLIC's duties under this
Agreement or related to the sale of the Contracts, the operation of
any Account, or the purchase of the Trust shares, if, in each case,
the Trust or Distributor, as the case may be, reasonably determines in
its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon
the ability of MMLIC to perform its obligations under this Agreement.
(e) At the option of MMLIC in the event that formal administrative
proceedings are instituted against the Trust or Distributor by the
NASD, the SEC, or any state securities or insurance department or any
other regulatory body, if MMLIC reasonably determines in its sole
judgment exercised in good faith, that any such administrative
proceedings will have a material adverse effect upon the ability of
the Trust or Distributor to perform their obligations under this
Agreement.
(f) At the option of MMLIC by written notice to the Trust with respect to
any Designated Portfolio if MMLIC reasonably believes that the
Designated Portfolio will fail to meet the Section 817(h)
diversification requirements or Subchapter M qualifications specified
in Article VI hereof.
(g) At the option of either the Trust or Distributor, if the Trust or
Distributor, respectively, shall determine, in its sole judgment
reasonably exercised in good faith, that MMLIC has suffered a material
adverse change in its business or financial condition or is the
subject of material adverse publicity and that material adverse change
or publicity will have a material adverse impact on MMLIC's ability to
perform its obligations under this Agreement. The Trust or Distributor
shall notify MMLIC of that determination and its intent to terminate
this Agreement, and after considering the actions taken by MMLIC and
any other changes in circumstances since the giving of such a notice,
the determination of the Trust or Distributor shall continue to apply
on the ninetieth (90th) day following the giving of that notice, which
sixtieth day shall be the effective date of termination.
xxi
(h) At the option of MMLIC, if MMLIC shall determine, in its sole judgment
reasonably exercised in good faith, that the Trust or Distributor has
suffered a material adverse change in its business or financial
condition or is the subject of material adverse publicity and that
material adverse change or publicity will have a material adverse
impact on the Trust's or Distributor's ability to perform its
obligations under this Agreement. MMLIC will notify the Trust or
Distributor, as appropriate, of that determination and its intent to
terminate this Agreement, and after considering the actions taken by
the Trust or Distributor and any other changes in circumstances since
the giving of such a notice, the determination of MMLIC shall continue
to apply on the ninetieth (90th) day following the giving of that
notice, which ninetieth day shall be the effective date of
termination.
(i) At the option of any non-defaulting party hereto in the event of a
material breach of this Agreement by any party hereto (the "defaulting
party") other than as described in Section 10.1(a)-(j); provided, that
the non-defaulting party gives written notice thereof to the
defaulting party, with copies of such notice to all other
non-defaulting parties, and if such breach shall not have been
remedied within thirty (30) days after such written notice is given,
then the non-defaulting party giving such written notice may terminate
this Agreement by giving thirty (30) days written notice of
termination to the defaulting party.
(j) At any time upon written agreement of all parties to this Agreement.
12.2 Effect of Termination
Notwithstanding any termination of this Agreement, other than as a result of a
failure by either the Trust or MMLIC to meet Section 817(h) of the Code
diversification requirements, the Trust and Distributor shall, at the option of
MMLIC, continue to make available additional shares of the Designated
Portfolio(s) pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, without
limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Designated Portfolio(s), redeem investments in the
Designated Portfolio(s) and/or invest in the Designated Portfolio(s) upon the
making of additional purchase payments under the Existing Contracts. The parties
agree that this Section 12.3 shall not apply to any terminations under Article
VII and the effect of such Article VII terminations shall be governed by Article
VII of this Agreement.
12.3 Surviving Provisions
Notwithstanding any termination of this Agreement, each party's obligations
under Article VIII to indemnify other parties shall survive and not be affected
by any termination of this Agreement. In addition, with respect to Existing
Contracts, all provisions of this Agreement shall also survive and not be
affected by any termination of this Agreement.
ARTICLE XIII
Notices
xxii
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other parties.
If to ING Variable Products Trust:
ING Variable Products Trust
Attn: Chief Counsel
0000 X Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to ING Funds Distributor, LLC:
ING Funds Distributor, LLC
Attn: Xxxxxx Xxxxxxxxx
0000 X Xxxxxxxxxx Xxxxx Xxxx
Xxxxxxxxxx, XX 00000
If to MMLIC:
Massachusetts Mutual Life Insurance Company
Annuity Development & Marketing
000 Xxxxxx Xxxxxx Xxxx.
Xxxxxxx XX 00000
ARTICLE XIV
Miscellaneous
14.1 A copy of the Declaration of Trust, as amended, is on file with the
Secretary of State of the Commonwealth of Massachusetts, and notice is hereby
given that this instrument is executed on behalf of the Trustees of the Trust as
Trustees and not individually and that the obligations of or arising out of this
instrument, including without limitation Article VII, are not binding upon any
of the Trustees or shareholders individually but binding only upon the assets
and property of the Trust.
14.2 Subject to the requirements of legal process and regulatory authority, each
party hereto shall treat as confidential the names and addresses of the owners
of the Contracts and all information reasonably identified as confidential in
writing by any other party hereto and, except as permitted by this Agreement,
shall not disclose, disseminate or utilize such names and addresses and other
confidential information without the express written consent of the affected
party until such time as such information may come into the public domain.
Without limiting the foregoing, no party hereto shall disclose any information
that another party has designated as proprietary.
xxiii
14.3 The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
14.4 This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
14.5 If any provision of this Agreement shall be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement shall not
be affected thereby.
14.6 Each party hereto shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, the NASD and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish any applicable state insurance department as may apply with
any information or reports in connection with services provided under this
Agreement which may be requested by the state in order to ascertain whether the
variable annuity operations of MMLIC are being conducted in a manner consistent
with any applicable law or regulations.
14.7 Any controversy or claim arising out of or relating to this Agreement, or
breach thereof, shall be settled by arbitration in a forum jointly selected by
the relevant parties (but if applicable law requires some other forum, then such
other forum) in accordance with the Commercial Arbitration Rules of the American
Arbitration Association, and judgment upon the award rendered by the arbitrators
may be entered in any court having jurisdiction thereof.
14.8 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, which the parties hereto are entitled to under state and
federal laws.
14.9 This Agreement or any of the rights and obligations hereunder may not be
assigned by any party without the prior written consent of all parties hereto.
14.10 MMLIC agrees that the obligations assumed by the Trust and/or Distributor
pursuant to this Agreement shall be limited in any case to the Trust and/or
Distributor and their respective assets and MMLIC shall not seek satisfaction of
any such obligation from the shareholders of the Trust and/or Distributor, the
directors, officers, employees or agents of the Trust and/or Distributor, or any
of them.
14.11 The Trust and Distributor agree that the obligations assumed by MMLIC
pursuant to this Agreement shall be limited in any case to MMLIC and its assets
and neither the Trust nor the Distributor shall seek satisfaction of any such
obligation from the shareholders of MMLIC, the directors, officers, employees or
agents of the MMLIC, or any of them.
14.12 No provision of this Agreement may be deemed or construed to modify or
supersede any contractual rights, duties, or indemnifications, as between the
Trust and the Distributor.
xxiv
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 below.
MASSACHUSETTS MUTUAL LIFE INSURANCE COMPANY
By its authorized officer,
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
ING VARIABLE PRODUCTS TRUST
By its authorized officer,
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
ING FUNDS DISTRIBUTOR, LLC
By its authorized officer,
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
xxv
SCHEDULE A
CONTRACTS:
MassMutual Transitions(SM)
MassMutual Evolution(SM)
MassMutual Artistry
MassMutual Transitions Select(SM)
Panaorama Passage
Panorama Premier
SEPARATE ACCOUNTS:
Massachusetts Mutual Variable Annuity Separate Account 4
xxvi
SCHEDULE B
Designated Portfolio(s):
ING VP Real Estate Portfolio- Class S
xxvii
SCHEDULE C
EXPENSES
The Trust and/or the Distributor and MMLIC will coordinate the functions and pay
the costs of the completing these functions based upon an allocation of costs in
the tables below. Costs shall be allocated to reflect the Trust's share of the
total costs determined according to the number of pages of the Trust's
respective portions of the documents.
ITEM FUNCTION COORDINATING PARTY EXPENSES PAID BY
---- -------- ------------------ ----------------
Mutual Fund Prospectus Printing of combined Trust provides PDF MMLIC
prospectuses MMLIC prints Trust reimburses prorata
Providing adequate MMLIC --
supply of prospectuses
and SAIs for designated
portfolios and Trust
Distribution (includes MMLIC Trust
postage) to new and
inforce clients
Distribution (includes MMLIC MMLIC
postage) to prospective
clients
Trust Prospectus Annual Trust provides PDF MMLIC
Update and Distribution MMLIC prints & Trust reimburses prorata
distributes
Product Prospectus Update MMLIC MMLIC
& Distribution
Mutual Fund SAI Trust Trust
Product SAI MMLIC MMLIC
Trust Proxy Material Trust Trust
Trust Annual and/or Semi Trust provides Trust
Annual reports MMLIC distributes
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