Exhibit 3
UNDERWRITING AGREEMENT
AGREEMENT made this _____ day of August, 2002, by and between ML Life
Insurance Company of New York ("ML Life of New York"), a New York corporation,
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated ("MLPF&S"), a Delaware
corporation.
W I T N E S S E T H :
WHEREAS, ML Life of New York has established a separate account entitled
the ML of New York Variable Annuity Separate Account C for the purpose of
issuing certain variable annuity contracts ("Contracts");
WHEREAS, ML Life of New York wishes to arrange for the underwriting of the
Contracts in conformity with the requirements of the Securities Exchange Act of
1934 ("1934 Act"); and
WHEREAS, MLPF&S is registered with the Securities and Exchange Commission
("SEC") as a broker-dealer under the 1934 Act and is a member of the National
Association of Securities Dealers, Inc. ("NASD");
NOW, THEREFORE, the parties hereto agree as follows:
1. ML Life of New York hereby appoints MLPF&S as its exclusive
representative for the distribution of the Contracts, and MLPF&S hereby agrees
to use its best efforts to sell and distribute the Contracts through its
registered representatives; provided, that with the approval of ML Life of New
York, MLPF&S may arrange with other broker-dealers for the sale of the Contracts
and execute agreements relating thereto upon such terms and conditions as MLPF&S
deems appropriate.
2. Unless otherwise permitted by applicable law, each person engaged in
the sale of the Contracts must be both an agent of ML Life of New York and a
"person associated with a broker or dealer" as that term is defined in Section
3(a)(18) of the 1934 Act. With respect to all persons associated with it who
will be engaged in the sale of the Contracts, MLPF&S will be responsible for
their training, qualification, registration, supervision and control in the
manner and to the extent required by the applicable rules of the SEC and NASD
and by any applicable securities laws or rules of the various states relating to
the sale of the Contracts. ML Life of New York reserves the right to refuse to
appoint any person proposed to be associated with MLPF&S as an agent, or if
appointed, to terminate such appointment in its sole discretion. From time to
time as requested by ML Life of New York, MLPF&S will furnish to it a list of
all persons associated with it authorized to sell the Contracts.
3. MLPF&S will prepare and maintain all books and records relating to the
Contracts which are required to be maintained by it under the 0000 Xxx.
4. MLPF&S may accept or receive on behalf of ML Life of New York any
Contract purchase payments. Any payment received by MLPF&S will be forwarded
promptly to ML Life of New York or its Service Center. ML Life of New York
reserves the right to reject any application.
5. ML Life of New York will furnish MLPF&S currently effective
prospectuses relating to the Contracts in such numbers as MLPF&S may reasonably
require from time to time. MLPF&S will use its best efforts to obtain any
approvals or clearances required from the NASD with respect to all sales
materials relating to the Contracts. Any sales materials relating to the
Contracts prepared by MLPF&S must be approved by ML Life of New York prior to
their use.
6. All commissions payable by ML Life of New York in connection with
Contract sales will be payable to the appropriate general agent affiliated with
MLPF&S in accordance with terms of the agreement with such general agent then in
effect. If any provision of any such agreement applicable to the Contracts
conflicts with any provision of this Agreement, the provision of this Agreement
shall govern.
7. This Agreement may be terminated at any time by either party hereto on
sixty (60) days' written notice.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed on the day and year first above written.
ML LIFE INSURANCE COMPANY OF NEW YORK
By:
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ATTEST
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XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By:
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ATTEST
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