Exhibit h(37)
PARTICIPATION AGREEMENT
By and Among
PIMCO ADVISORS VIT
And
ML LIFE INSURANCE COMPANY OF NEW YORK
And
OCC DISTRIBUTORS LLC
THIS AGREEMENT, made and entered into this 1ST day of May 2004 by and
among ML LIFE INSURANCE COMPANY OF NEW YORK, a New York corporation (hereinafter
the "Company"), on its own behalf and on behalf of each separate account of the
Company named in Schedule 1 to this Agreement, as may be amended from time to
time (each account referred to as the "Account"), PIMCO Advisors VIT, an
open-end diversified management investment company organized under the laws of
the State of Massachusetts (hereinafter the "Fund"), and OCC DISTRIBUTORS LLC, a
Delaware limited liability company (hereinafter the "Underwriter").
WHEREAS, the 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 participation agreements substantially
identical to this Agreement (the Company and such other insurance companies
being hereinafter "Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Fund are divided into several
series of shares, each representing the interest in a particular managed
portfolio of securities and other assets (the "Portfolios"); and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (alternatively referred to as the "SEC" or the
"Commission"), dated February 22, 1995 (File No. 812-9290), granting
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance separate accounts relief 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 Fund to be sold to and held by variable
annuity separate accounts and variable life insurance separate accounts of both
affiliated and unaffiliated Participating Insurance Companies and qualified
pension and retirement plans ("Plans") (hereinafter the "Mixed and Shared
Funding Exemptive Order");and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, the Company has registered or will register interests in the
Account funding certain variable annuity and/or life contracts, as the case may
be (the "Contracts") under the 1933 Act; and
WHEREAS, the Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Arkansas to set aside and
invest assets attributable to, among others, the Contracts; and
WHEREAS, the Company has registered the Account as a unit investment
trust under the 1940 Act; and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the National Association of
Securities Dealers, Inc. (hereinafter "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios named in
Schedule 2 on behalf of the Account to fund the Contracts and the Underwriter is
authorized to sell such shares to unit investment trusts such as the Account at
net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund and the Underwriter agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1. The Fund and the Underwriter agree to sell to the Company those
shares of the Fund which the Company orders on behalf of the Account, executing
such orders on a daily basis at the net asset value next computed after receipt
and acceptance by the Fund or its agent of the order for the
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shares of the Fund. For purposes of this Section 1.1, the Company shall be the
designee of the Fund for receipt of such orders from the Account and receipt by
such designee shall constitute receipt by the Fund; provided that the Fund
receives notice of such order 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 Fund calculates its net asset
value pursuant to the rules of the SEC.
1.2. The Company shall pay for Fund shares on the next Business Day
after it places an order to purchase Fund shares in accordance with Section 1.1
hereof. Payment shall be in federal funds transmitted by wire by 1 p.m. Eastern
time (unless the Fund determines and so advises the Company that sufficient
proceeds are available from redemption of shares of other Portfolios, effected
pursuant to redemption requests tendered by the Company on behalf of the
Account). Upon receipt by the Fund or its designee of federal funds so wired
such funds shall cease to be the responsibility of the Company and shall become
the responsibility of the Fund.
1.3. The Fund agrees to make its shares available indefinitely for
purchase at the applicable net asset value per share by Participating Insurance
Companies and their separate accounts on those days on which the Fund calculates
its net asset value pursuant to rules of the SEC; provided, however, that the
Fund may refuse to sell shares of any Portfolio to any person, or suspend or
terminate the offering of shares of any Portfolio if such action (a) is required
by law or by regulatory authorities having jurisdiction, (b) is, in the sole
discretion of the Board of Trustees of the Fund (hereinafter the "Fund Board"),
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, necessary in the best interests of the shareholders
of any Portfolio, or (c) is required by any policies that the Fund Board has
adopted or approved and that are applicable to all Participating Insurance
Companies. If the Fund Board refuses to sell shares to the Company, the Company
shall have the right to terminate this Agreement in accordance with section
10.1(b) of this Agreement.
1.4. The Fund and the Underwriter agree that shares of the Fund will
be sold only to (i) Participating Insurance Companies and their separate
accounts; and (ii) Plans and persons participating in such Plans
("participants"), or (iii) such other persons as are permitted under applicable
provisions of the Internal Revenue Code of 1986, as amended, (the "Internal
Revenue Code"), and regulations promulgated thereunder, the sale to which will
not impair the tax treatment currently afforded the Contracts. No shares of any
Portfolio will be sold to the general public.
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1.5. The Fund and the Underwriter will not sell Fund shares to any
insurance company or separate account unless an agreement containing provisions
substantially the same as this Agreement to govern such sales. The Fund shall
make available upon written request from the Company, at the Company's expense,
(i) a list of all other Participating Insurance Companies and (ii) a copy of the
Participation Agreement executed by any other Participating Insurance Company.
1.6. The Fund agrees to redeem for cash, upon the Company's request,
any full or fractional shares of the Fund held by the Company, executing such
requests on a daily basis at the net asset value next computed after receipt and
acceptance by the Fund or its agent of the request for redemption. For purposes
of this Section 1.6, the Company shall be the designee of the Fund for receipt
of requests for redemption from each Account and receipt by such designee shall
constitute receipt by the Fund; provided the Fund receives notice of request for
redemption by 10:00 a.m. Eastern Time on the next following Business Day.
Payment shall be in federal funds transmitted by wire to the Company's account
as designated by the Company in writing from time to time, on the same Business
Day the Fund receives notice of the redemption order from the Company, except
that the Fund reserves the right to delay payment of redemption proceeds, but in
no event may such payment be delayed longer than the period permitted under
Section 22(e) of the 1940 Act. The Fund agrees to notify the Company if it
intends to delay payment of redemption proceeds in accordance with its rights
under Section 22(e). After redemption proceeds are received by the Company,
neither the Fund nor the Underwriter shall bear any responsibility whatsoever
for the proper disbursement or crediting of redemption proceeds; the Company
alone shall be responsible for such action. If notification of redemption is
received after 10:00 a.m. Eastern Time, payment for redeemed shares will be made
on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the
Portfolios of the Fund named in Schedule 2 offered by the then current
prospectus of the Fund in accordance with the provisions of such prospectus,
provided that such provisions are also consistent with the terms of this
Agreement. Without limiting the scope or effect of the foregoing, on any given
Business Day, the Company shall submit orders to purchase or redeem shares of
any Portfolio in a manner consistent with the pricing requirements of Rule 22c-1
under the 1940 Act. The Company shall submit one net order for the Portfolio to
the Fund or its designee. However, the Fund reserves the right to obtain the
breakdown of any net order per contractowner. With respect to payment of the
purchase price by the Company and of
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redemption proceeds by the Fund, the Company and the Fund, as appropriate, shall
net purchase and redemption orders with respect to each Portfolio and shall
transmit one net payment for all of the Portfolios.
1.8. Issuance and transfer of the Fund's shares will be by book entry
only. Stock certificates will not be issued to the Company or the Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for the Account or the appropriate subaccount of the Account.
1.9. The Fund shall furnish notice to the Company as soon as
reasonably practicable, but no later than two business days prior to any
described action, of any income, dividends or capital gain distributions payable
on the Fund's shares. The Company hereby elects to receive all such dividends
and distributions as are payable on the Portfolio shares in the form of
additional shares of that Portfolio. The Company reserves the right to revoke
this election and to receive all such dividends and distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
dividends and distributions on the same business day that such dividend or
distribution is made).
1.10. The Fund shall make the net asset value per share for each
Portfolio available to the Company on a daily basis 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 5:50 p.m.,
Eastern Time, each business day. In the event that the Fund is unable to meet
the 5:50 time stated herein, it shall provide additional time for the Company to
place orders for the purchase and redemption of shares. Such additional time
shall be equal to the additional time which the Fund takes to make the net asset
value available to the Company. However, in the event the Fund makes the net
asset value available the following business day, the Company will have until
10:00 a.m. or two hours after such notice (whichever is later) to place orders
for the purchase and redemption of shares. In the event of an error in a
Portfolio's net asset value per share which, in accordance with procedures
adopted by the Fund's Board consistent with views expressed by the staff of the
SEC regarding appropriate error correction standards, as shall be in effect or
amended from time to time, requires adjustment to transactions previously
effected on behalf of the Account (a "Pricing Error"), the shall notify the
Company as soon as possible after discovery of the Pricing Error. Such
notification may be oral, but shall be confirmed in writing within 24 hours. In
such event, the Fund shall recompute all Account share transactions that were
based on the
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Pricing Error and credit or debit the Account's account so that the Account has
the correct number of Portfolio's shares had all those transactions had been
correctly priced. Notwithstanding anything else in this Section 1.10, neither
the Fund, any Portfolio, the Underwriter, nor any of their affiliates shall be
liable for any information provided to the Company pursuant to this Agreement
which information is based on incorrect information supplied by the Company to
the Fund or the Underwriter.
1.11 Without limiting the scope or effect of Section 1.7 hereof, the
Company agree to cooperate with the Fund and the Underwriter to prevent any
person exercising, or purporting to exercise, rights or privileges under one or
more Contracts from engaging in any trading practices in any Portfolio that the
Fund Board determines, in good faith and in its sole discretion, to be
detrimental or potentially detrimental to the other shareholders of the
Portfolio, or to be in contravention of any law or regulation including, without
limitation, Section 22 of the 1940 Act and the rules thereunder. Such
cooperation may include, but shall not be limited to, identifying the person or
persons engaging in such trading practices, facilitating the imposition of any
applicable redemption fee on such person or persons, limiting the telephonic or
electronic trading privileges of such person or persons, and taking such other
remedial steps, all to the extent permitted or required by applicable law.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that interests in the Account
funding the Contracts are or will be registered under the 1933 Act and that the
Contracts will be issued and sold in compliance with all applicable federal and
state laws. The Company further represents and warrants that it is an insurance
company duly organized and in good standing under applicable law and that it has
legally and validly established the Account as a segregated asset account under
applicable state law and has registered the Account as a unit investment trust
in accordance with the provisions of the 1940 Act to serve as segregated
investment accounts for the Contracts, and that it will maintain such
registration for so long as any Contracts are outstanding. The Company shall
amend the registration statement under the 1933 Act for the interests in the
Account and the registration statement under the 1940 Act for the Account from
time to time as required in order to affect the continuous offering of the
Contracts or as may otherwise be required by applicable law. The Company shall
register and qualify the Contracts for sale in accordance with the securities
laws of the various states only if and to the extent deemed necessary by the
Company.
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2.2. Subject to Section 2.4 and Article VI, the Company represents and
warrants that the Contracts are currently and at the time of issuance will be
treated as variable annuity or life insurance contracts, as the case may be,
under applicable provisions of the Internal Revenue Code and that it will make
every effort to maintain such treatment and that it will notify the Fund and the
Underwriter 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.
2.3. The Fund and the Underwriter each represents and warrants that
Fund shares sold pursuant to this Agreement shall be registered under the 1933
Act and duly authorized for issuance in accordance with applicable law and that
the Fund is and shall remain registered under the 1940 Act for as long as the
Fund shares are sold. The Fund 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 effect the continuous offering of its shares. The Fund shall register
and qualify the shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Fund or the
Underwriter.
2.4 The Fund and the Underwriter each represents and warrants that
each Portfolio is currently qualified as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code, and that it will maintain such
qualification (under Subchapter M or any successor or similar provision) and
that it will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify in
the future. In the event that a Portfolio fails to so qualify, the Company shall
have the right to terminate this arrangement in accordance with Section 10.1
(b), which right shall be in addition to any other rights that the Company has.
2.5. The Fund and the Underwriter each represents and warrants that
each Portfolio's investment objectives, policies and restrictions comply and
will continue to comply with applicable state and federal investment laws as
they may apply to the Fund. The Fund makes no representation as to whether any
aspect of its operations (including, but not limited to, fees and expenses and
investment policies) complies with the insurance laws and regulations of any
state. The Company alone shall be responsible for informing the Fund of any
insurance restrictions imposed by state insurance laws which are applicable to
the Portfolio. The Fund and the Underwriter will use reasonable efforts to
comply with the state insurance laws that apply to them as a result of the
availability of the Portfolio to contractowners
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pursuant to this Agreement, provided that the Company shall inform them in
writing of any such state insurance laws. To the extent feasible and consistent
with market conditions, the Portfolio will adjust investments practices to
comply with the aforementioned state insurance laws upon written notice from the
Company of such requirements and proposed adjustments, it being agreed and
understood that in any such case the Fund shall be allowed a reasonable period
of time under the circumstances after receipt of such notice to make any such
adjustment.
2.6. The Fund represents and warrants that it currently does not
intend to make any payments to finance distribution expenses pursuant to Rule
12b-1 under the 1940 Act or otherwise, although it may make such payments in the
future. To the extent that it decides to finance distribution expenses pursuant
to Rule 12b-1, the Fund undertakes to have its Board of Trustees, a majority of
whom are not interested persons of the Fund, formulate and approve any plan
under Rule 12b-1 to finance distribution expenses.
2.7. The Underwriter represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents and warrants that it will sell and distribute the
Fund shares in accordance with all applicable federal and state securities laws,
including without limitation the 1933 Act, the 1934 Act, and the 0000 Xxx.
2.9. The Fund represents and warrants that the Fund is lawfully
organized and is and will continue to be validly existing under the laws of
Massachusetts and that it does and will comply with all applicable provisions of
the 0000 Xxx.
2.10. The Fund and Underwriter each represent and warrant that all of
their directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Fund
are and continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the 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. The aforesaid Bond
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
2.11. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the Fund are covered by a blanket fidelity
bond or similar coverage. The Company further represents and warrants
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that said fidelity bond includes coverage for larceny and embezzlement and is
issued by a reputable bonding company in an amount not less than $5 million. The
Company agrees to make all reasonable efforts to see that this bond or another
bond containing these provisions is always in effect, and agrees to notify the
Fund and the Underwriter in the event that such coverage no longer applies.
ARTICLE III. PROSPECTUSES AND PROXY STATEMENTS; VOTING
3.1 The Underwriter shall provide the Company, at the Company's
expense, with as many copies of the Fund's current prospectus (which term as
used in this Agreement shall also include any supplements thereto) as the
Company may reasonably request for use with prospective contractowners and
applicants. The Underwriter shall print and distribute, at the Fund's or
Underwriter's expense, as many copies of said prospectus as necessary for
distribution to existing contractowners or participants and provide same to
Company on a timely basis such that Company can satisfy its obligation to
provide the prospectus to existing contractowners or participants, as required
by law. If requested by the Company in lieu thereof, the Fund shall provide such
documentation including a final copy of a current prospectus set in type or at
the request of the Company, as a diskette in the form sent to the financial
printer, at the Fund's expense and other assistance as is reasonably necessary
in order for the Company at least annually (or more frequently if the Fund
prospectus is amended more frequently) to have the new prospectus for the
Contracts and the Fund's new prospectus printed together in one document. In
such case the Fund shall bear its proportionate share of expenses as described
above.
3.2 The Fund's prospectus shall state that the Statement of Additional
Information ("SAI", which term, as used in this Agreement shall include any
supplement thereto) for the Fund is available from the Underwriter (or, in the
Fund's discretion, the prospectus shall state that such SAI is available from
the Fund), and the Underwriter (or the Fund) shall provide such SAI, at its
expense, to the Company and to any owner of or participant under a Contract who
requests such SAI or, at the Company's expense, to any prospective contractowner
or applicant who requests such SAI.
3.3 The Fund shall provide the Company with information regarding the
Fund's expenses, (including information that is legally required to be included
in the prospectus for the Account) which information may include a table of fees
and related narrative disclosure for use in any prospectus or other descriptive
document relating to a Contract.
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3.4. The Fund shall provide the Company with copies of its voting
instructions, proxy material, if any, reports to shareholders and certain other
communications to shareholders in such quantity as the Company shall reasonably
require and the Fund shall bear the costs of distributing them to existing
contractowners or participants (except for costs relating to activities
attributable to the Company).
3.5. If and to the extent required by law the Company shall:
(i) solicit voting instructions from contractowners or
participants;
(ii) vote the Fund shares held in the Account in accordance
with instructions received from contractowners or
participants; and
(iii) vote Fund shares held in the Account for which no timely
instructions have been received, in the same proportion
as Fund shares of such Portfolio for which instructions
have been received from the Company's contractowners or
participants;
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require "pass-through" voting privileges for variable contractowners. The
Company reserves the right to vote Fund shares held in any segregated asset
account in its own right, to the extent permitted by law. Participating
Insurance Companies shall be responsible for assuring that each of their
separate accounts participating in the Fund calculates voting privileges in a
manner consistent with other Participating Insurance Companies as those
procedures are provided to the Company by the adviser.
3.6. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular as required, the Fund will
either provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund 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 Fund will act in accordance with the SEC interpretation of the requirements
of Section 16(a) with respect to periodic elections of directors and with
whatever rules the Commission may promulgate with respect thereto.
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ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to the
Fund or the Underwriter, each piece of sales literature or other promotional
material in which the Fund or the Fund's adviser or the Underwriter is named, at
least fifteen days prior to its use. No such material shall be used if the Fund
or the Underwriter reasonably objects in writing to such use within fifteen days
after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus or SAI for
the Fund shares, as such registration statement, prospectus and SAI may be
amended or supplemented from time to time, or in reports or proxy statements for
the Fund, or in sales literature or other promotional material approved by the
Fund or by the Underwriter, except with the permission of the Fund or the
Underwriter. The Fund and the Underwriter agree to respond to any request for
approval within fifteen days of receipt of the request.
4.3. The Fund and the Underwriter shall furnish, or shall cause to be
furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company or its the Account is named, at
least fifteen days prior to its use. No such material shall be used if the
Company reasonably objects in writing to such use within fifteen days after
receipt of such material.
4.4 The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company,
each Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus or SAI for the Contracts, as
such registration statement, prospectus and SAI may be amended or supplemented
from time to time, or in published reports for each Account which are in the
public domain or approved by the Company for distribution to contractowners or
participants, or in sales literature or other promotional material approved by
the Company, except with the permission of the Company. The Company agrees to
respond to any request for approval within fifteen days of receipt of the
request.
4.5. The Fund will provide to the Company at least one complete copy
of all registration statements, prospectuses, SAIs, reports, proxy statements,
sales literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the
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above, that relate to the Portfolio or its shares, contemporaneously with the
filing of such document with the SEC or other regulatory authorities.
4.6. The Company will provide to the Fund at least one complete copy
of all registration statements, prospectuses, statements of additional
information, 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, contemporaneously with the filing of such document with the SEC or
other regulatory authorities.
4.7. For purposes of this Article IV, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media), 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), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under NASD rules, the 1940 Act or the 1933 Act.
ARTICLE V. FEES AND EXPENSES
5.1. The Fund shall pay no fee or other compensation to the Company
under this Agreement, except that if the Fund or any Portfolio adopts and
implements a plan pursuant to Rule 12b-1 to finance distribution expenses, then,
subject to obtaining any required exemptive orders or other regulatory
approvals, the Underwriter may make payments to the Company or to the
underwriter for the Contracts if and in amounts agreed to by the Underwriter in
writing. Currently, no such payments are contemplated.
5.2. Unless otherwise specified, each party shall bear the expenses
incident to its performance hereunder. The Fund shall bear the expenses for the
cost of registration and qualification of the Fund's shares, preparation and
filing of the Fund's prospectus and registration statement, Fund voting
instructions, proxy materials and reports, setting in type, printing and
distributing the prospectuses, the
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voting instructions, proxy materials and reports to existing shareholders and
contractowners, the preparation of all statements and notices required by any
federal or state law, all taxes on the issuance or transfer of the Fund's
shares, and any expenses permitted to be paid or assumed by the Fund pursuant to
a plan, if any, under Rule 12b-1 under the 1940 Act.
ARTICLE VI. DIVERSIFICATION
6.1. The Fund represents and warrants that the Portfolio will at all
times invest its assets in such a manner as to ensure that the Contracts will be
treated as variable contracts under the Internal Revenue Code and the
regulations issued thereunder. Without limiting the scope of the foregoing, the
Fund represents and warrants that the Portfolio will comply with Section 817(h)
of the Internal Revenue Code and Treasury Regulation 1.817-5(b) and (f),
relating to the diversification requirements for variable annuity, endowment, or
life insurance contracts and any amendments or other modifications to such
Section or Regulations (and any revenue rulings, revenue procedures, notices and
other published announcements of the Internal Revenue Service interpreting these
sections) as if those requirements applied separately to the Portfolio. In the
event of a breach of this Article VI by the Fund, and in addition to other
remedies and actions set forth in this Agreement, the Fund will take all
reasonable steps (a) to notify the Company of such breach and (b) to adequately
diversify the Fund so as to achieve compliance with the grace period afforded by
Treasury Regulation 1.817-5.
6.2. Without limiting their obligations under Section 6.1 above, the
Fund represents and warrants that the Portfolio will elect to be qualified as a
Regulated Investment Company under Subchapter M of the Code, that it or it's
adviser will operate each such Regulated Investment Company in such a way as to
avoid the imposition of any federal taxes, and that they will maintain such
qualification (under Subchapter M or any successor or similar provision).
6.3. Subject to Sections 6.1 and 6.2, the Company represents that the
Contracts are currently, and at the time of issuance shall be, treated as life
insurance or annuity insurance contracts, under applicable provisions for the
Code, and that it will maintain such treatment, and that it will notify the Fund
and the Underwriter immediately upon having a reasonable basis of believing the
Contracts have ceased to be so treated or that they might not be so treated in
the future. The Company will bear all costs, expenses (including but not limited
to legal fees) in connection with any issue arising under this Section 6.3.
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ARTICLE VII. POTENTIAL CONFLICTS
7.1. The Fund Board will monitor the Fund for the existence of any
material irreconcilable conflict among the interests of the contractowners of
all separate accounts investing in the Fund. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an 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 Portfolio are being managed; (e) a difference in voting
instructions given by Participating Insurance Companies or by variable annuity
contractowners and variable life insurance contractowners; or (f) a decision by
a Participating Insurance Company to disregard the voting instructions of
contractowners. The Fund Board shall promptly inform the Company if it
determines that an irreconcilable material conflict exists and the implications
thereof. A majority of the Fund Board shall consist of persons who are not
"interested" persons of the Fund.
7.2. The Company has reviewed a copy of the Mixed and Shared Funding
Exemptive Order, and in particular, has reviewed the conditions to the requested
relief set forth therein. As set forth in the Mixed and Shared Funding Exemptive
Order, the Company will report any potential or existing conflicts of which it
is aware to the Fund Board. The Company agrees to assist the Fund Board in
carrying out its responsibilities under the Mixed and Shared Funding Exemptive
Order, by providing the Fund Board with all information reasonably necessary for
the Fund Board to consider any issues raised. This includes, but is not limited
to, an obligation by the Company to inform the Fund Board whenever contractowner
voting instructions are disregarded. The Fund Board shall record in its minutes
or other appropriate records, all reports received by it and all action with
regard to a potential or existing conflict. The Company agrees to carry out the
responsibilities described above with a view only to the interests of
contractowners (per condition of SEC order).
7.3. If it is determined by a majority of the Fund Board, or a
majority of its disinterested Directors, that an irreconcilable material
conflict exists, the Company and other Participating Insurance Companies shall,
at their expense and to the extent reasonably practicable (as determined by a
majority of the disinterested Directors), take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, up to and including:
(1) withdrawing the assets allocable to some or all of
14
the separate accounts from the Fund or any Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such segregation
should be implemented to a vote of all affected contractowners and, as
appropriate, segregating the assets of any appropriate group (I.E., variable
annuity contractowners, or variable life insurance contractowners, or variable
contractowners of one or more Participating Insurance Companies) that votes in
favor of such segregation, or offering to the affected variable contractowners
the option of making such a change; and (2) establishing a new registered
management investment company or managed separate account.
7.4. If the Company's disregard of voting instructions could lead to a
material irreconcilable conflict with the majority of contractowner voting
instructions, and the Company's judgment represents a minority position or would
preclude a majority vote, the Company may be required, at the Fund's election,
to withdraw the Account's investment in the Fund and terminate this Agreement
with respect to such Account. Any such withdrawal and termination must take
place within 60 days after the Fund gives written notice to the Company that
this provision is being implemented and no charge or penalty will be imposed as
a result of such withdrawal. Until the end of such 60 day period the Underwriter
and Fund shall continue to accept and implement orders by the Company for the
purchase (and redemption) of shares of the Fund.
7.5. If a particular state insurance regulator's decision applicable
to the Company conflicts with the majority of other state insurance regulators,
then the Company will withdraw the Account's investment in the Fund and
terminate this Agreement with respect to such Account. Any such withdrawal and
termination must take place within 60 days after the Fund gives written notice
to the Company that this provision is being implemented. Until the end of such
60 day period the Underwriter and Fund shall continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Fund Board shall determine whether
any proposed action adequately remedies any irreconcilable material conflict,
but in no event will the Fund or the Adviser be required to establish a new
funding medium for the Contracts. The Company shall not be required by Section
7.3 to
15
establish a new funding medium for the Contracts if an offer to do so has been
declined by vote of a majority of contractowners materially adversely affected
by the irreconcilable material conflict.
7.7. The Company shall at least annually submit to the Fund Board such
reports, materials or data as the Fund Board may reasonably request so that the
Fund Board may fully carry out the duties imposed upon it as delineated in the
Mixed and Shared Funding Exemptive Order, and said reports, materials and data
shall be submitted more frequently if deemed appropriate by the Fund Board.
7. 8. 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, (a) the Fund 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, 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 THE COMPANY
(a) The Company agrees to indemnify and hold harmless the Fund and the
Underwriter, and each of their directors, officers, employees or agents and each
person, if any, who controls, is controlled by, or is under common control with,
the Fund or the Underwriter within the meaning of such terms under the federal
securities laws (collectively, the "indemnified parties" for purposes of this
Section 8.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or
litigation (including reasonable legal and other expenses), to which the
indemnified parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements that are related to the
sale, holding, acquisition or distribution of the 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 Account registration
16
statement, Account prospectus or Account SAI or contained
in the Account's or Contract's sales literature or other
promotional material (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 in light of
the circumstances in which they were made; provided that
this agreement to indemnify and hold harmless 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 to the Company by or on behalf of any
indemnified party, or approved for use by or on behalf of
any indemnified party for use in the Account registration
statement, Account prospectus or Account SAI or in the
Contract's or Account's 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, holding, acquisition or distribution of
the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations or wrongful conduct of the Company or
persons under its control, with respect to the sale,
holding, acquisition or distribution of the Contracts or
Fund shares, provided that this agreement to indemnify
and hold harmless 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 to the Company by
or on behalf of any indemnified party, or approved for
use by or on behalf of any indemnified party for use in
the Account registration statement, Account prospectus or
Account SAI or in the Contract's or Account's 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, holding,
acquisition or distribution of the Contracts or Fund
shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Fund
registration statement, Fund prospectus, Fund SAI, or
sales literature or other promotional material of the
Fund 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 in light of
the circumstances in which they were made, if such
statement or omission was made in reliance upon and in
conformity with information furnished to the Fund by or
on behalf of the Company or persons under its control
reasonably believed by the Fund, the Adviser or the
Underwriter to be authorized to act on its behalf under
this Agreement; or
(iv) arise as a result of any failure by the Company to
provide the services and furnish the materials or to make
any payments under the terms of this Agreement; or
(v) arise out of any material breach of any covenant,
representation and/or warranty made by the Company in
this Agreement or arise out of or result from any other
material breach by the Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Company may
otherwise have.
17
(b) No indemnified party shall be entitled to indemnification if such
loss, claim, damage, liability or litigation is due to the willful misfeasance,
bad faith, gross negligence or reckless disregard of duty by the party seeking
indemnification or due to the breach of any representation, warranty, and/or
covenant made by the indemnified party.
(c) The indemnified parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance, sale, holding, acquisition or distribution of the Fund shares, the
Account or the Contracts or the operation of the Fund for which indemnification
may be sought under this section 8.1.
8.2 INDEMNIFICATION BY THE UNDERWRITER
(a) The Underwriter, on its own behalf and on behalf of the Fund,
agrees to indemnify and hold harmless the Company and each of its directors,
officers, employees or agents and each person, if any, who controls, is
controlled by, or is under common control with, the Company within the meaning
of such terms under the federal securities laws (collectively, the "indemnified
parties" for purposes of this Section 8.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Underwriter) or litigation (including reasonable legal and other
expenses) to which the indemnified parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or settlements that are
related to the sale, holding, acquisition or distribution or the 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 Fund registration statement, Fund prospectus or
Fund SAI or sales literature or other promotional
material of the Fund, or the Underwriter (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 in light of the
circumstances in which they were made; provided that this
agreement to indemnify and hold harmless 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 to the Underwriter, Adviser or Fund by or on
behalf of the Company for use in the Fund registration
statement, Fund prospectus or Fund SAI or in sales
literature or other promotional material of the Fund or
the Underwriter (or any amendment or supplement thereto)
or otherwise for use in connection with the sale,
acquisition, holding or distribution of the Contracts or
Fund shares; or
(ii) arise out of or as a result of statements or
representations or wrongful conduct of the Underwriter or
the Fund, with respect to the sale,
18
acquisition, holding or distribution of the Contracts or
Fund shares, provided that this agreement to indemnify
and hold harmless 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 to the Underwriter
by or in the Underwriter's sales literature or other
promotional material (or any amendment or supplement to
same) or on behalf of any indemnified party for use in
connection with the sale, holding, acquisition or
distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in an Account
registration statement, Account prospectus, Account, SAI
or Contract or Account sales literature or other
promotional material (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 statement or statements
therein not misleading in light of the circumstances in
which they were made, 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
Underwriter or the Fund or persons under their control
and reasonably believed by the Company to be authorized
to act on their behalf under this Agreement
(iv) arise as a result of any failure by the Fund or the
Underwriter to provide the services and furnish the
materials or to make payments under the terms of this
Agreement or
(v) arise out of or result from any material breach of any
convenant, representation and/or warranty made by the
Underwriter or the Fund in this Agreement or arise out of
or result from any other material breach of this
Agreement by the Underwriter or the Fund;
except to the extent provided in Sections 8.2(b) and 8.3 hereof. This
indemnification shall be in addition to any liability which the Underwriter may
otherwise have.
(b) No indemnified party shall be entitled to indemnification if such
loss, claim, damage, liability or litigation is due to the willful misfeasance,
bad faith, gross negligence or reckless disregard of duty by the party seeking
indemnification.
(c) The indemnified parties will promptly notify the Underwriter of
the commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Contracts or the operation of the Account for
which indemnification may be sought under this section.
(d) In no event shall Underwriter be liable under the indemnification
provisions contained in this Agreement to any indemnified party with respect to
any losses, claims, damages, liabilities or expenses that arise out of or result
from (i) a breach of any representation, warranty, and/or covenant made by the
Company hereunder or by any Participating Insurance Company under an agreement
containing substantially similar representations, warranties and covenants; (ii)
the failure by the
19
Company or any Participating Insurance Company to maintain its segregated asset
account (which invests in any Portfolio) as a legally and validly established
segregated asset account under applicable state law and as a duly registered
unit investment trust under the provisions of the 1940 Act (unless exempt
therefrom); or (iii) the failure by the Company or any Participating Insurance
Company to maintain its variable annuity or life insurance contracts (with
respect to which any Portfolio serves as an underlying funding vehicle) as
annuity contracts or life insurance contracts under applicable provisions of the
Internal Revenue Code.
8.3. INDEMNIFICATION PROCEDURE
Any person obligated to provide indemnification under this Article
VIII ("indemnifying party" for the purpose of this Section 8.3) shall not be
liable under the indemnification provisions of this Article VIII with respect to
any claim made against a party entitled to indemnification under this Article
VIII ("indemnified party" for the purpose of this Section 8.3) unless such
indemnified party shall have notified the indemnifying party 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 party shall have received notice of such
service on any designated agent), but failure to notify the indemnifying party
of any such claim shall not relieve the indemnifying party from any liability
which it may have to the indemnified party against whom such action is brought
under the indemnification provision of this Article VIII, except to the extent
that the failure to notify results in the failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a result of
failure to give such notice. In case any such action is brought against the
indemnified party, the indemnifying party will be entitled to participate, at
its own expense, in the defense thereof. The indemnifying party also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action (which approval shall not be unreasonably withheld). After
notice from the indemnifying party to the indemnified party of the indemnifying
party'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
indemnifying party 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, unless (i) the indemnifying party and the
indemnified party shall have mutually agreed to the retention of such counsel or
(ii) the named parties to any such proceeding (including any impleaded parties)
include both the indemnifying party and the indemnified party
20
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. The indemnifying
party shall not be liable for any settlement of any proceeding effected without
its written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment.
A successor by law of a party to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article VIII. The
indemnification provisions contained in this Article VIII shall survive any
termination of this Agreement.
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 New York.
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.
ARTICLE X. TERMINATION
10.1. This Agreement shall terminate as to any Portfolio:
(a) at the option of any party upon 90 days' advance written
notice to the other parties unless otherwise agreed in a separate written
agreement among the parties; or
(b) at the option of the Company or Contract Distributor if
shares of the Portfolio are not reasonably available to meet the requirements of
the Contracts as determined by the Company; or
(c) at the option of the Fund upon institution of formal
proceedings against the Company by the NASD, the SEC, the insurance commission
of any state or any other regulatory body regarding the Company's duties under
this Agreement or related to the sale of the Contracts, the administration of
the Contracts, the operation of the Account, or the purchase of the Fund shares,
which would have a material adverse effect on the Company's ability to perform
its obligations under this Agreement; or
(d) at the option of the Company upon institution of formal
proceedings against the Fund or the Underwriter by the NASD, the SEC, or any
state securities or insurance department or any
21
other regulatory body, which would have a material adverse effect on the Fund's
or the Underwriter's ability to perform its obligations under this Agreement; or
(e) at the option of the Company or the Fund, upon receipt of
any necessary regulatory approvals and/or the vote of the contractowners having
an interest in the Account (or any subaccount) to substitute the shares of
another investment company for the corresponding Portfolio shares of the Fund in
accordance with the terms of the Contracts for which those Portfolio shares had
been selected to serve as the underlying investment media. The Company will give
at least 90 days prior written notice to the Fund of the date of any proposed
vote or other action taken to replace a Portfolio's shares. The Fund will give
at least 90 days prior written notice to the Company of the date of any proposed
vote or other action taken to replace a Portfolio's shares; or
(f) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a majority of the
disinterested Fund Board members, that an irreconcilable material conflict
exists among the interests of (i) all contractowners of variable insurance
products of all separate accounts or (ii) the interests of the Participating
Insurance Companies investing in the Fund as delineated in Article VII of this
Agreement; or
(g) at the option of the Company if a Portfolio ceases to
qualify as a Regulated Investment Company under Subchapter M of the Internal
Revenue Code, or under any successor or similar provision, or if the Company
reasonably believes that the Portfolio may fail to so qualify; or (h) at the
option of the Company if the Portfolio fails to meet the requirements specified
in Article VI hereof; or (i) at the option of any party to this Agreement, upon
another party's material breach of any provision of this Agreement; or (j) at
the option of the Company, if it determines in its sole judgment exercised in
good faith, that either the Fund or the Underwriter has suffered a material
adverse change in its business, operations or financial condition since the date
of this Agreement 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 as it relates to the selling, administration or maintenance of the
Contracts; or
(k) at the option of the Fund or Underwriter, if the Fund or
Underwriter respectively, shall determine in its sole judgment exercised in good
faith, that the Company has suffered a
22
material adverse change in its business, operations or financial condition since
the date of this Agreement or is the subject of material adverse publicity which
is likely to have a material adverse impact upon the business and operations of
the Fund or Underwriter; or
(l) at the option of the Fund in the event any of the Contracts
are not issued or sold in accordance with applicable federal and/or state law in
all material respects, or any Contract no longer qualifies for treatment as an
annuity or life insurance contract, as the case may be, under the Internal
Revenue Code. Termination under this sub-paragraph shall be effective
immediately without advance notice of termination of this Agreement..
10.2. NOTICE REQUIREMENT
(a) In the event that any termination of this Agreement is
based upon the provisions of Article VII, such prior written notice shall be
given in advance of the effective date of termination as required by such
provisions.
(b) In the event that any termination of this Agreement is
based upon the provisions of Sections 10.1(b) - (d) or 10.1(g) - (i), prompt
written notice of the election to terminate for cause shall be furnished by the
terminating party the Agreement to the non-terminating parties, with said
termination to be effective upon receipt of such notice by the non-terminating
parties.
(c) In the event that any termination of this Agreement is
based upon the provisions of Sections 10.1(j) or 10.1(k), prior written notice
of the election to terminate this Agreement for cause shall be furnished by the
terminating party to the non-terminating parties. Such prior written notice
shall be given by the terminating party this Agreement to the non-terminating
parties at least 30 days before the effective date of termination, provided that
such termination will not be effective if the circumstances giving rise to the
notice are cured prior to the termination date. It shall be in the discretion of
the party otherwise entitled to terminate this Agreement to determine whether
any such circumstance has been sufficiently cured.
10.3. It is understood and agreed that the right to terminate this
Agreement pursuant to Section 10.1(a) may be exercised for any reason or for no
reason.
10.4. EFFECT OF TERMINATION
(a) Notwithstanding any termination of this Agreement by the
Company pursuant to Section 10.1 of this Agreement, and subject to Section 1.3
of this Agreement, the Company may require
23
the Fund and the Underwriter to, continue to make available additional shares of
the Fund for so long after the termination of this Agreement as the Company
desires pursuant to the terms and conditions of this Agreement as provided in
paragraph (b) below, 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 Portfolio, redeem investments in the
Portfolio and/or invest in the Portfolio upon the making of additional purchase
payments under the Existing Contracts. The parties agree that this Section 10.4
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.
(b) If shares of a Portfolio continue to be made available
after termination of this Agreement pursuant to this Section 10.4, the
provisions of this Agreement shall remain in effect and thereafter the Fund, the
Underwriter, or the Company or Contract Distributor may terminate the Agreement,
as so continued pursuant to this Section 10.4, upon written notice to the other
parties in accordance with Section 10.2 hereof.
10.5. Except as necessary to implement contractowner initiated or
approved transactions, or as required by state insurance laws or regulations,
the Company shall not redeem Fund shares attributable to the Contracts (as
opposed to Fund shares attributable to the Company's assets held in the
Account), and the Company shall not prevent contractowners from allocating
payments to a Portfolio that was otherwise available under the Contracts, until
90 days after the Company shall have notified the Fund or Underwriter of its
intention to do so. Nothing in this paragraph 10.5 is intended to restrict the
Company's ability to deduct fees and charges associated with the Contracts.
10.6 In the event of any termination of this Agreement with respect to
any Portfolio, the parties agree to cooperate and give reasonable assistance to
one another in taking all necessary and appropriate steps for the purpose of
ensuring that the Account owns no Shares of the Portfolio six months after such
termination. Such steps may include combining the affected Account with another
Account, substituting other mutual fund shares for those of the affected
Portfolio, or otherwise terminating participation by the Contracts in the
Portfolio.
ARTICLE XI. NOTICES
24
Any notice shall be deemed duly given only if sent by hand, evidenced
by written receipt, or by certified mail, return receipt requested, 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 party.
If to the Fund:
PIMCO Advisors VIT
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Secretary
If to the Company:
ML Life Insurance Company of New York
0000 Xxxxxxx Xxxxx Xxxxx, 0xx Xxx.
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, Xx., Vice President and Senior Counsel
Email: xx_xxxxxx@xx.xxx
Fax: 000.000.0000
If to the Underwriter:
OCC Distributors LLC
1345 Avenue of the Americas
Legal Department
Attn: Xxxxxxx X. Xxxx
Email: xxxxx.xxxx@xxxx-xx.xxx
Fax: 000.000.0000
25
ARTICLE XII. MISCELLANEOUS
12.1. All persons dealing with the Fund must look solely to the
property of the Fund for the enforcement of any claims against the Fund as
neither the Fund Board, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
12.2. Subject to law and regulatory authority, each party hereto shall
treat as confidential all information reasonably identified as such in writing
by any other party hereto (including without limitation the names and addresses
of the owners of the Contracts) and, except as contemplated by this Agreement,
shall not disclose, disseminate or utilize such confidential information until
such time as it may come into the public domain without the express prior
written consent of the affected party.
12.3. 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.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5. 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.
12.6. This Agreement shall not be assigned by any party hereto without
the prior written consent of all the parties.
12.7. 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 each other and 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. Each party hereto shall immediately notify the other
parties of (i) the issuance by any court or regulatory body of any stop order,
cease and desist order, or other similar order that may affect the business
contemplated by this Agreement, (ii) any request by any regulatory body,
including without limitation the SEC, NASD, or state regulator, for information
relating to such other parties, (iii) the initiation of any investigation or
inquiry (other than routine examination) of the party by any regulatory body,
including without limitation the SEC, NASD, or state regulator relating to this
Agreement or the transactions contemplated hereby, or (iv) any other action or
circumstances that could adversely affect the ability of the party to fulfill
the terms of this Agreement.
26
12.8. Each party represents that the execution and delivery of this
Agreement and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or trust action, as applicable, by
such party and when so executed and delivered this Agreement will be the valid
and binding obligation of such party enforceable in accordance with its terms.
12.9. The parties to this Agreement, upon mutual written agreement,
may amend the schedules to this Agreement from time to time to reflect changes
in or relating to the Contracts, the Accounts or the Portfolios of the Fund, or
changes in the laws and regulations affecting the business contemplated by this
Agreement.
12.10 The rights, remedies, and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies,
and obligations, at law or in equity, that the parties are entitled to under
federal and state laws.
27
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and behalf by its duly authorized
representative as of the date and year first written above.
COMPANY:
ML LIFE INSURANCE COMPANY OF NEW YORK
By:
------------------------------
FUND:
PIMCO Advisors VIT
By:
------------------------------
UNDERWRITER:
OCC DISTRIBUTORS LLC
By:
------------------------------
28
SCHEDULE 1
Participation Agreement
By and Among
PIMCO Advisors VIT, OCC Distributors LLC,
Ml LIFE INSURANCE COMPANY OF NEW YORK
The following separate accounts of ML LIFE INSURANCE COMPANY OF NEW
YOR are permitted in accordance with the provisions of this Agreement to invest
in Portfolios of the Fund shown in Schedule 2 with respect to the Contracts
listed below:
Names of Separate Account
Ml of New York Variable Annuity Separate Account A
Date: May 1, 2004
SCHEDULE 2
Participation Agreement
Among
PIMCO Advisors VIT, OCC Distributors LLC
ML LIFE INSURANCE COMPANY OF NEW YORK
The Separate Account(s) shown on Schedule 1 may invest in the
following Portfolios of the PIMCO Advisors VIT:
Names of Portfolios
PEA Renaissance Portfolio
Date: May 1, 2004
