AMENDMENT NO. 7
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated December 18, 1996, by and
among AIM Variable Insurance Funds, a Delaware trust; A I M Distributors, Inc.,
a Delaware corporation, and ML Life Insurance Company of New York ("MLLICNY"), a
New York life insurance company, is hereby amended as follows:
Section 2.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
2.3 APPLICABLE PRICE
(a) Share purchase payments and redemption orders that result from
purchase payments, premium payments, surrenders and other transactions
under Contracts (collectively, "Contract transactions") and that MLLICNY
receives prior to the close of regular trading on the New York Stock
Exchange (or such other time set by the Board for purposes of determining
the current net asset value of a Fund in accordance with Rule 22c-1 under
the 0000 Xxx) on a Business Day will be executed at the net asset values of
the appropriate Funds next computed after receipt by AVIF or its designated
agent of the orders. For purposes of this Section 2.3(a), MLLICNY shall be
the designated agent of AVIF for receipt of orders relating to Contract
transactions, , in accordance with Section 22(c) and Rule 22c-1 under the
1940 Act, on each Business Day and receipt by such designated agent shall
constitute receipt by AVIF; provided that AVIF receives notice of such
orders by 9:00 a.m. Central Time on the next following Business Day or such
later time as computed in accordance with Section 2.1(b) hereof. In
connection with this Section 2.3(a), MLLICNY represents and warrants that
it will not submit any order for Shares or engage in any practice, nor will
it allow or suffer any person acting on its behalf to submit any order for
Shares or engage in any practice, that would violate or cause a violation
of applicable law or regulation including, without limitation Section 22 of
the 1940 Act and the rules thereunder.
(b) All other Share purchases and redemptions by MLLICNY will be
effected at the net asset values of the appropriate Funds next computed
after receipt by AVIF or its designated agent of the order therefor, and
such orders will be irrevocable.
(c) Without limiting the scope or effect of Section 1.1 hereof,
pursuant to which the Board may reject a Share purchase order by or on
behalf of MLLICNY under the circumstances described therein, MLLICNY agree
to cooperate with the Fund and AIM to prevent any person exercising, or
purporting to exercise, rights or privileges under one or more Contracts
(including, but not limited to Contract owners, annuitants, insureds or
participants, as the case may be (collectively, "Participants")) from
engaging in any trading practices in any Fund that the Board or AIM
determines, in good faith and in their sole discretion, to be detrimental
or
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potentially detrimental to the other shareholders of the Fund, or to be in
contravention of any applicable 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.
Section 6.3 of the Agreement is hereby deleted in its entirety and replaced with
the following:
6.3 FUNDS TO REMAIN AVAILABLE
Notwithstanding any termination of this Agreement by MLLICNY, AVIF
will, at the option of MLLICNY, continue to make available additional
shares of the Fund 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"), unless AIM or
the Board determines that doing so would not serve the best interests of
the shareholders of the affected Funds or would be inconsistent with
applicable law or regulation. Specifically, without limitation, the owners
of the Existing Contracts will be permitted to reallocate investments in
the Fund (as in effect on such date), redeem investments in the Fund and/or
invest in the Fund upon the making of additional purchase payments under
the Existing Contracts. The parties agree that this Section 6.3 will not
apply to any (i) terminations under Section 5 and the effect of such
terminations will be governed by Section 5 of this Agreement or (ii) any
rejected purchase and/or redemption order as described in Section 2.3(c)
hereof.
Section 19 is hereby added to the Agreement:
SECTION 19. FORCE MAJEURE
Each Party shall be excused from the performance of any of its
obligations to the other where such nonperformance is occasioned by any
event beyond its control which shall include, without limitation, any
applicable order, rule or regulation of any federal, state or local body,
agency or instrumentality with jurisdiction, work stoppage, accident,
natural disaster, war, acts of terrorism or civil disorder, provided that
the Party so excused shall use all reasonable efforts to minimize its
nonperformance and overcome, remedy, cure or remove such event as soon as
is reasonably practicable, and such performance shall be excused only for
so long as, in any given case, the force or circumstances making
performance impossible shall exist.
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Schedule A of the Agreement is hereby deleted in its entirety and replaced with
the following:
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
- AIM V.I. Basic Value Fund
- AIM V.I. Capital Appreciation Fund
- AIM V.I. International Growth Fund (formerly known as AIM V.I.
International Equity Fund)
- AIM V.I. Mid Cap Core Equity Fund
- AIM V.I. Premier Equity Fund (formerly known as AIM V.I. Value Fund)
SEPARATE ACCOUNTS UTILIZING THE FUNDS
- ML of New York Variable Annuity - Separate Account A
- ML of New York Variable Life - Separate Account II
- ML of New York Life Variable Life - Separate Account
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
- Xxxxxxx Xxxxx Retirement Plus
- Xxxxxxx Xxxxx Investor Life
- Xxxxxxx Xxxxx Investor Life Plus
- Xxxxxxx Xxxxx Estate Investor I
- Xxxxxxx Xxxxx Estate Investor II
- Prime Plans I, II, III, IV, V, VI, 7
- Prime Plan Investor
- Directed Life, Directed Life 2
- Xxxxxxx Xxxxx Retirement Power
- Xxxxxxx Xxxxx Legacy Power
- Xxxxxxx Xxxxx Retirement Optimizer
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All other terms and provisions of the Agreement not amended herein shall remain
in full force and effect.
Effective date: March 1, 2005
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxx Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx
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Title: Assistant Secretary Title: President
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A I M DISTRIBUTORS, INC.
Attest: /s/ Xxx Xxxxxxxx By: /s/ Xxxx X. Needles
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Name: Xxx X. Xxxxxxxx Name: Xxxx X. Needles
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Title: Assistant Secretary Title: President
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ML LIFE INSURANCE COMPANY OF NEW YORK
Attest: /s/ Xxxxxx X. Xxxxxxxx By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxxxx Name: Xxxxxx X. Xxxxxx, Xx.
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Title: Asst VP & Sr. Paralegal Title: Director & Senior Counsel
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