EXHIBIT 8(u)
FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 1st day of March, 2005, between ML Life
Insurance Company of New York, a life insurance company organized under the laws
of the State of New York ("Insurance Company"), on its own behalf and on behalf
of each segregated asset account of Insurance Company set forth on Exhibit A
hereto as may be amended from time to time, The Dreyfus Corporation ("TDC"), and
Dreyfus Service Corporation, a New York Corporation ("Dreyfus"), and those
registered investment companies managed, advised, sub-advised or administered by
TDC that are identified on Exhibit B.
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Directors or Trustees, as the case may be,
of a Fund, which has the responsibility for management and control of the
Fund.
1.3 "Business Day" shall mean any day for which a Fund calculates net asset
value per Share (as defined below) as described in the Fund's Prospectus.
1.4 "Commission" shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity or variable life insurance
contract issued in connection with certain retirement plans, which through
segregated asset accounts, use any Participating Fund (as defined below)
as an underlying investment medium.
1.6 "Contractholder" shall mean any entity that is a party to a Contract with
a Participating Company (as defined below).
1.7 "Disinterested Board Members" shall mean those members of the Board of a
Fund that are not deemed to be "interested persons" of the Fund, as
defined by the Act.
1.8 "Dreyfus" or "TDC" shall mean The Dreyfus Corporation and its affiliates,
including Dreyfus Service Corporation.
1.9 "Insurance Company's General Account(s)" shall mean the general account(s)
of Insurance Company and its affiliates that invest in Shares (as defined
below) of a Participating Fund.
1.10 "Participating Companies" shall mean any insurance company (including
Insurance Company) that offers variable annuity and/or variable life
insurance contracts to the public and that has entered into an agreement
with one or more of the Funds.
1.11 "Participating Fund" shall mean each Fund, including, as applicable, any
series thereof, specified in Exhibit A, as such Exhibit may be amended
from time to time by agreement of the parties hereto, the Shares (as
defined below) of which are available to serve as the underlying
investment medium for the aforesaid Contracts.
1.12 "Prospectus" shall mean the current prospectus and statement of additional
information of a Fund, relating to its Shares (as defined below), as most
recently filed with the Commission.
1.13 "Separate Account" shall mean a separate account established by Insurance
Company in accordance with the laws of the State of New York as set forth
on Exhibit A.
1.14 "Shares" shall mean (i) each class of shares of a Participating Fund set
forth on Exhibit A next to the name of such Participating Fund, as such
Exhibit may be revised from time to time, or (ii) if no class of shares is
set forth on Exhibit A next to the name of such Participating Fund, the
shares of the Participating Fund.
1.15 "Software Program" shall mean the software program used by a Fund for
providing Fund and account balance information including net asset value
per Share. Such Program may include the Lion System. In situations where
the Lion System or any other Software Program used by a Fund is not
available, such information may be provided by telephone. The Lion System
shall be provided to Insurance Company at no charge.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law; (b) it
has legally and validly established the Separate Account pursuant to the
insurance laws of the State of New York and the regulations thereunder for
the purpose of offering to the public certain individual and group
variable annuity and variable life insurance contracts; and (c) it has
registered the Separate Account as a unit investment trust under the Act
to serve as the segregated investment account for the Contracts, or
alternatively has not registered the Separate Account in proper reliance
upon an exclusion from registration under the Act.
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2.2 Insurance Company represents and warrants that (a) the Contracts will be
described in a registration statement filed under the Securities Act of
1933, as amended ("1933 Act"), or alternatively not described in such a
registration statement because the Contracts are properly exempt from
registration under the 1933 Act or will be offered exclusively in
transactions that are properly exempt from registration 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 (c) the
sale of the Contracts shall comply in all material respects with state
insurance law requirements. Insurance Company shall register and qualify
the Contracts or interests therein as securities in accordance with the
laws of the various states to the extent required by state laws, rules or
regulations. Insurance Company agrees to notify each Participating Fund
promptly of any investment restrictions imposed by state insurance law and
applicable to the Participating Fund.
2.3 Insurance Company represents and warrants that the income, gains and
losses, whether or not realized, from assets allocated to the Separate
Account are, in accordance with the applicable Contracts, to be credited
to or charged against such Separate Account without regard to other
income, gains or losses from assets allocated to any other accounts of
Insurance Company. Insurance Company represents and warrants that the
assets of the Separate Account are and will be kept separate from
Insurance Company's General Account and any other separate accounts
Insurance Company may have, although Insurance Company may transfer
Separate Account assets to another separate account pursuant to a
combination or otherwise and, if Separate Account assets exceed the
required reserves and liabilities, Insurance Company may transfer the
excess to Insurance Company's General Account. Insurance Company further
represents and warrants that the assets of the Separate Account, to the
extent of its reserves and liabilities, will not be charged with
liabilities arising from any business that Insurance Company may conduct
or the liabilities of any companies affiliated with Insurance Company.
2.4 Each Participating Fund represents and warrants that it is and will remain
registered with the Commission under the Act as an open-end, management
investment company and possesses, and shall maintain, all legal and
regulatory licenses, approvals, consents and/or exemptions required for
the Participating Fund to operate and offer its Shares as an underlying
investment medium for Participating Companies. Each Participating Fund
represents and warrants that Shares sold pursuant to this Agreement will
be registered under the 1933 Act, duly authorized for issuance, and sold
in compliance with applicable state and federal securities laws. Each
Participating Fund shall amend the registration statement for its Shares
under the 1933 Act and the Act from time to time as required in order to
effect the continuous offering of its Shares.
2.5 Each Participating Fund represents that it is currently qualified as a
regulated investment company under Subchapter M of the Internal Revenue
Code of 1986,
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as amended (the "Code"), and that it will maintain such qualification
(under Subchapter M or any successor or similar provision) and that it
will notify Insurance 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.
2.6 Insurance Company agrees that each Participating Fund shall be permitted
(subject to the other terms of this Agreement) to make its shares
available to other Participating Companies and Contractholders.
2.7 Each Participating Fund represents and warrants that any of its directors,
trustees, officers, employees, investment advisers, and other
individuals/entities who deal with the money and/or securities of the
Participating Fund are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the
Participating Fund in an amount not less than that required by Rule 17g-1
under the Act. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company.
2.8 Insurance Company represents and warrants that all of its employees and
agents who deal with the money and/or securities of each Participating
Fund are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the coverage
required to be maintained by the Participating Fund. The aforesaid Bond
shall include coverage for larceny and embezzlement and shall be issued by
a reputable bonding company.
2.9 Each Participating Fund represents that it will comply with any applicable
state insurance laws and regulations, as provided in writing by Insurance
Company to the Participating Fund, including the furnishing of information
not otherwise available to Insurance Company which is required by state
insurance law to enable Insurance Company to obtain the authority needed
to issue the Contracts in any applicable state and including cooperating
with Insurance Company in any filings of sales literature for the
Contracts.
2.10 The Fund represents that it is lawfully organized and validly existing
under the laws of the State of Maryland and that it does and will comply
in all material respects with the Act.
ARTICLE III
FUND SHARES
3.1 The Contracts funded through the Separate Account will provide for the
investment of certain amounts in Shares of each Participating Fund.
3.2 Each Participating Fund agrees to make its Shares available for purchase
at the then applicable net asset value per Share by Insurance Company and
the Separate
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Account on each Business Day pursuant to rules of the Commission.
Notwithstanding the foregoing, each Participating Fund may refuse to sell
its Shares to any person, or suspend or terminate the offering of its
Shares, if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of its Board, acting in
good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary and in the best interests of the
Participating Fund's shareholders.
3.3 Each Participating Fund shall use its best efforts to provide closing net
asset value, dividend and capital gain information on a per Share basis to
Insurance Company by 6:30 p.m. Eastern time on each Business Day, and
shall calculate such closing net asset value in accordance with the
Participating Fund's Prospectus. Any material errors in the calculation or
reporting of net asset value, dividend and capital gain information shall
be reported immediately upon discovery to Insurance Company. In such event
Insurance Company shall be entitled to an adjustment to the number of
Shares purchased or redeemed to reflect the correct closing net asset
value per Share and the Participating Fund shall bear the cost of
correcting such errors. Non-material errors will be corrected in the next
Business Day's net asset value per Share.
3.4 At the end of each Business Day, Insurance Company will use the
information described in Sections 3.2 and 3.3 to calculate the unit values
of the Separate Account for the day. Using this unit value, Insurance
Company will process the day's Separate Account transactions received by
it by the close of trading on the floor of the New York Stock Exchange
(currently 4:00 p.m. Eastern time) to determine the net dollar amount of
the Shares of each Participating Fund that will be purchased or redeemed
at that day's closing net asset value per Share. The net purchase or
redemption orders will be transmitted to each Participating Fund by
Insurance Company by 9:30 a.m. Eastern time on the Business Day next
following Insurance Company's receipt of that information. Subject to
Sections 3.5 and 3.7, all purchase and redemption orders for Insurance
Company's General Accounts shall be effected at the net asset value per
Share of each Participating Fund next calculated after receipt of the
order by the Participating Fund or its Transfer Agent.
3.5 Each Participating Fund appoints Insurance Company as its agent for the
limited purpose of accepting orders for the purchase and redemption of
Shares of the Participating Fund for the Separate Account. Each
Participating Fund will execute orders at the applicable net asset value
per Share determined as of the close of trading on the day of receipt of
such orders by Insurance Company acting as agent ("effective trade date"),
provided that the Participating Fund receives notice of such orders by
9:30 a.m. Eastern time on the next following Business Day and, if such
orders request the purchase of Shares of the Participating Fund, the
conditions specified in Section 3.7, as applicable, are satisfied. A
redemption or purchase request that does not satisfy the conditions
specified above and in
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Section 3.7, as applicable, will be effected at the net asset value per
Share computed on the Business Day immediately preceding the next
following Business Day upon which such conditions have been satisfied in
accordance with the requirements of this Section and Section 3.7.
Insurance Company represents and warrants that all orders submitted by the
Insurance Company for execution on the effective trade date shall
represent purchase or redemption orders received from Contractholders
prior to the close of trading on the New York Stock Exchange on the
effective trade date.
3.6 Insurance Company will make its best efforts to notify each applicable
Participating Fund in advance of any purchase or redemption order in
excess of $1 million dollars.
3.7 If Insurance Company's order requests the purchase of Shares of a
Participating Fund, Insurance Company will pay for such purchases by
wiring Federal Funds to the Participating Fund or its designated custodial
account on the day the order is transmitted. Insurance Company shall make
all reasonable efforts to transmit to the applicable Participating Fund
payment in Federal Funds by 4:00 p.m. Eastern time on the Business Day the
Participating Fund receives the notice of the order pursuant to Section
3.4 (unless the Participating Fund determines and so advises Insurance
Company that sufficient proceeds are available from redemption of Shares
effected pursuant to redemption requests tendered by Insurance Company on
behalf of the Separate Account). Upon receipt of Federal Funds so wired,
such funds shall cease to be the responsibility of Insurance Company and
shall become the responsibility of the Participating Fund. Each applicable
Participating Fund will execute such orders at the applicable net asset
value per Share determined as of the close of trading on the effective
trade date if the Participating Fund receives payment in Federal Funds by
12:00 midnight Eastern time on the Business Day the Participating Fund
receives the notice of the order pursuant to Section 3.4. If payment in
Federal Funds for any purchase is not received or is received by a
Participating Fund after midnight Eastern time on such Business Day,
Insurance Company shall promptly, upon each applicable Participating
Fund's request, reimburse the respective Participating Fund for any
charges, costs, fees, interest or other expenses incurred by the
Participating Fund in connection with any advances to, or borrowings or
overdrafts by, the Participating Fund, or any similar expenses incurred by
the Participating Fund, as a result of portfolio transactions effected by
the Participating Fund based upon such purchase request. If Insurance
Company's order requests the redemption of any Shares of a Participating
Fund valued at or greater than $1 million dollars, the Participating Fund
will wire such amount to Insurance Company within seven days of the order.
3.8 If Insurance Company's order requests the redemption of Shares of a
Participating Fund, the Participating Fund will pay for such redemptions
by wiring Federal Funds to Insurance Company or its designated custodial
account on the day the order is transmitted. The Participating Fund shall
make all reasonable efforts to transmit to Insurance Company payment in
Federal Funds by 4:00 p.m. Eastern
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time on the Business Day the Participating Fund receives the notice of the
order pursuant to Section 3.4. Upon receipt of Federal Funds so wired,
such funds shall cease to be the responsibility of the Participating Fund
and shall become the responsibility of Insurance Company.
3.9 Each Participating Fund has the obligation to ensure that its Shares are
registered with applicable federal agencies at all times.
3.10 Each Participating Fund will confirm each purchase or redemption order
made by Insurance Company. Issuance and transfers of Shares of a
Participating Fund will be by book entry only. No share certificates will
be issued to Insurance Company or the Separate Account. Insurance Company
will record Shares ordered from a Participating Fund in an appropriate
ledger for the Separate Account.
3.11 Each Participating Fund shall credit Insurance Company with the
appropriate number of Shares.
3.12 On each ex-dividend date of a Participating Fund or, if not a Business
Day, on the first Business Day thereafter, each Participating Fund shall
communicate to Insurance Company the amount of dividend and capital gain,
if any, per Share. All dividends and capital gains shall be automatically
reinvested in additional Shares of the applicable Participating Fund at
the net asset value per Share on the ex-dividend date. Insurance Company
reserves the right, on its behalf and on behalf of the Separate Account,
to instead receive all such dividends and capital gain distributions in
cash. Each Participating Fund shall, on the day after the ex-dividend date
or, if not a Business Day, on the first Business Day thereafter, notify
Insurance Company of the number of Shares so issued as payment of such
dividends and distributions.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 Each Participating Fund shall provide monthly statements of account as of
the end of each month for all of Insurance Company's accounts by the
fifteenth (15th) Business Day of the following month.
4.2 Each Participating Fund shall distribute to Insurance Company copies of
the Prospectuses, proxy materials, notices, periodic reports and other
printed materials (which the Participating Fund customarily provides to
the holders of its Shares) relating only to the Shares of the
Participating Fund(s) listed in Exhibit A in quantities as Insurance
Company may reasonably request for distribution to each Contractholder and
Participant. Insurance Company may elect to print the Participating Fund's
prospectus and/or its statement of additional information in combination
with the Contract's prospectus and statement of additional
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information and/or with other fund companies' prospectuses and statements
of additional information, which are also offered in Insurance Company's
insurance product at its own cost. At Insurance Company's request, the
Participating Fund will provide, in lieu of printed documents,
camera-ready copy or diskette of prospectuses, annual and semi-annual
reports for printing by the Insurance Company.
4.3 Each Participating Fund will provide to Insurance Company at least one
complete copy of all registration statements, Prospectuses, reports, proxy
statements, 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 Participating Fund or its Shares (except
for such materials that are designed only for a class of shares of a
Participating Fund not offered to the Insurance Company pursuant to this
Agreement), promptly after the filing of such document with the Commission
or other regulatory authorities.
4.4 Insurance Company will provide to each Participating Fund at least one
copy of all registration statements, prospectuses, reports, proxy
statements, 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 Separate Account,
promptly after the filing of such document with the Commission or other
regulatory authorities.
4.5 Each Participating Fund's Prospectus will state that the current statement
of additional information for the Participating Fund is available, and the
Participating Fund, at its expense, will provide a reasonable number of
copies of such statement free of charge to Insurance Company for itself
and for any owner of a Contract who requests such statement.
4.6 Each Participating Fund will provide Insurance Company with as much notice
as is reasonably practicable of any material change in the Participating
Fund's registration statement, particularly any change resulting in a
change to the registration statement or prospectus for the Separate
Account. The Participating Fund will work with Insurance Company so as to
enable Insurance Company to make changes to its prospectus or registration
statement in an orderly manner. The Participating Fund will make
reasonable efforts to attempt to have changes affecting Contract
prospectuses become effective simultaneously with the annual updates for
such prospectuses.
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ARTICLE V
EXPENSES
5.1 The charge to each Participating Fund for all expenses and costs of the
Participating Fund, including but not limited to management fees, Rule
12b-1 fees, if any, administrative expenses and legal and regulatory
costs, will be included in the determination of the Participating Fund's
daily net asset value per Share.
5.2 Except as provided in Article IV and V, in particular in the next
sentence, Insurance Company shall not be required to pay directly any
expenses of any Participating Fund or expenses relating to the
distribution of its Shares. Insurance Company shall pay the following
expenses or costs:
a. Such amount of the production expenses of any Participating Fund
materials, including the cost of printing a Participating Fund's
Prospectus, or marketing materials for prospective Insurance Company
Contractholders as Dreyfus and Insurance Company shall agree from
time to time.
b. Distribution expenses of any Participating Fund materials or
marketing materials for prospective Insurance Company
Contractholders.
c. Distribution expenses of any Participating Fund materials or
marketing materials for Insurance Company Contractholders.
A Participating Fund's principal underwriter may pay Insurance Company, or
the broker-dealer acting as principal underwriter for the Insurance
Company's Contracts, for distribution and other services related to the
Shares of the Participating Fund pursuant to any distribution plan adopted
by the Participating Fund in accordance with Rule 12b-1 under the Act,
subject to the terms and conditions of an agreement between the
Participating Fund's principal underwriter and Insurance Company or the
principal underwriter for the Insurance Company's Contracts, as
applicable, related to such plan.
Except as provided herein, all other expenses of each Participating Fund
shall not be borne by Insurance Company. Without limiting the foregoing,
each Participation Fund shall bear the expense of printing copies of the
current prospectus, annual, and semi-annual reports for the Funds that
will be distributed to existing Contractholders. Furthermore, each
Participating Fund shall bear the expenses for the cost of registration
and qualification of the Participating Fund's shares, preparation and
filing of the Participating Fund's Prospectus and registration statement,
setting the prospectus in type, setting in type and printing the proxy
materials and reports to shareholders, preparation of all statements and
notices required by any federal or state law and all taxes on the issuance
or transfer of the Participating Fund's shares.
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ARTICLE VII
VOTING SHARES OF PARTICIPATING FUND
7.1 Each Participating Fund shall provide Insurance Company with copies, at no
cost to Insurance Company, of the Participating Fund's proxy materials,
reports to shareholders and other communications to shareholders (except
for such materials that are designed only for a class of shares of a
Participating Fund not offered to the Insurance Company pursuant to this
Agreement) in such quantity as Insurance Company shall reasonably require
for distributing to Contractholders. Each Participating Fund will provide
Insurance Company with as much notice as is reasonably practicable of any
proxy solicitation. The Participating Fund will work with Insurance
Company so as to enable Insurance Company to solicit proxies from
Contractholders in an orderly manner.
Insurance Company shall:
(a) solicit voting instructions from Contractholders or on a timely
basis and in accordance with applicable law;
(b) vote the Shares of the Participating Fund in accordance with
instructions received from Contractholders; and
(c) vote the Shares of the Participating Fund for which no
instructions have been received in the same proportion as Shares of
the Participating Fund for which instructions have been received so
long as and to the extent that the Commission continues to interpret
the Act to require pass-through voting privileges for variable
contract owners or to the extent otherwise required by law.
Insurance Company agrees at all times to vote Shares held by
Insurance Company's General Account in the same proportion as Shares
of the Participating Fund for which instructions have been received
from Contractholders.
7.2 Insurance Company agrees that it shall not, without prior written notice
to each applicable Participating Fund and Dreyfus, solicit, induce or
encourage Contractholders to (a) change or supplement the Participating
Fund's current investment adviser or (b) change, modify, substitute, add
to or delete from the current investment media for the Contracts.
ARTICLE VIII
MARKETING AND REPRESENTATIONS
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8.1 Each Participating Fund or its principal underwriter shall periodically
furnish Insurance Company with the following documents relating only to
the Shares of the Participating Fund(s) listed in Exhibit A, in quantities
as Insurance Company may reasonably request:
a. Current Prospectus and any supplements thereto; and
b. Other marketing materials.
Expenses for the production of such documents shall be borne by the
Insurance Company in accordance with Section 5.2 of this Agreement.
8.2 Insurance Company shall designate certain persons or entities that shall
have the requisite licenses to solicit applications for the sale of
Contracts. No representation is made as to the number or amount of
Contracts that are to be sold by Insurance Company. Insurance Company
shall make reasonable efforts to market the Contracts and shall comply
with all applicable federal and state laws in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to each
applicable Participating Fund or its designee, each piece of Insurance
Company's sales literature or other promotional material in which the
Participating Fund or, its investment adviser is named, at least ten
Business Days prior to its use. No such material shall be used unless the
Participating Fund or its designee approves such material. Such approval
(if given) must be in writing and shall be presumed not given if not
received within 10 Business Days after receipt of such material. Each
Participating Fund or its designee, as the case may be, shall use
reasonable efforts to respond within 5 Business Days of receipt.
8.4 Insurance Company shall not give any information or make any
representations or statements on behalf of a Participating Fund or
concerning a Participating Fund in connection with the sale of the
Contracts other than the information or representations contained in the
registration statement or Prospectus of, as may be amended or supplemented
from time to time, or in reports or proxy statements for, the applicable
Participating Fund, or in sales literature or other promotional material
approved by the applicable Participating Fund, except with the permission
of the Participating Fund or its designee in writing.
8.5 Each Participating Fund shall furnish, or shall cause to be furnished, to
Insurance Company, each piece of the Participating Fund's sales literature
or other promotional material in which Insurance Company or the Separate
Account is named, at least fifteen Business Days prior to its use. No such
material shall be used unless Insurance Company or its designee approves
such material. Such approval (if given) must be in writing and shall be
presumed not given if not
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received within ten Business Days after receipt of such material.
Insurance Company shall use all reasonable efforts to respond within ten
days of receipt.
8.6 Each Participating Fund shall not, in connection with the sale of Shares
of the Participating Fund, give any information or make any
representations or statements on behalf of Insurance Company or concerning
Insurance Company, the Separate Account, or the Contracts other than the
information or representations contained in a registration statement or
prospectus for the Contracts, as may be amended or supplemented from time
to time, or in published reports for the Separate Account that are in the
public domain or approved by Insurance Company for distribution to
Contractholders, or in sales literature or other promotional material
approved by Insurance Company, except with the permission of Insurance
Company or its designee.
8.7 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without
limitation, 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 (such as any
written communication distributed or made generally available to customers
or the public, including brochures, circulars, research reports, market
letters, form letters, seminar texts, or 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 Act or the 1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless each Participating
Fund, Dreyfus, and their respective affiliates, and each of their
directors, trustees, officers, employees, agents and each person, if any,
who controls or is associated with any of the foregoing entities or
persons within the meaning of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of Section 9.1), against any and all losses, claims,
damages or liabilities joint or several (including any investigative,
legal and other expenses reasonably incurred in connection with, and any
amounts paid in settlement of, any action, suit or proceeding or any claim
asserted) to which the Indemnified Parties may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) (i) arise 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 sales literature
or advertisements of the Separate Account or Contracts or contained in
information furnished in writing by
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Insurance Company for use in the registration statement or Prospectus or
sales literature or advertisements of the respective Participating Fund,
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; (ii) arise out of or as a
result of conduct, statements or representations (other than statements or
representations contained in the Prospectus and sales literature or
advertisements of the respective Participating Fund) of Insurance Company
or its agents, with respect to the sale and distribution of Contracts for
which the Shares of the respective Participating Fund are an underlying
investment; (iii) arise out of the wrongful conduct of Insurance Company
or persons under its control with respect to the sale or distribution of
the Contracts or the Shares of the respective Participating Fund; (iv)
arise out of Insurance Company's incorrect calculation and/or untimely
reporting of net purchase or redemption orders; or (v) arise out of any
breach by Insurance Company of a material term of this Agreement or as a
result of any failure by Insurance Company to provide the services and
furnish the materials or to make any payments provided for in this
Agreement. Insurance Company will reimburse any legal or other expenses
reasonably incurred by any Indemnified Party in connection with
investigating or defending any such loss, claim, damage, liability or
action; provided, however, that with respect to clauses (i) and (ii) above
Insurance Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is based upon
any untrue statement or omission or alleged omission made in such
registration statement, prospectus, sales literature, or advertisement in
conformity with written information furnished to Insurance Company by the
respective Participating Fund specifically for use therein. This indemnity
agreement will be in addition to any liability which Insurance Company may
otherwise have.
9.2 Each Participating Fund and TDC severally agree to indemnify and hold
harmless Insurance Company and each of its directors, officers, employees,
agents and each person, if any, who controls Insurance Company within the
meaning of the 1933 Act against any losses, claims, damages or liabilities
(including any investigative, legal and other expenses reasonably incurred
in connection with, and any amounts paid in settlement of, any action,
suit or proceeding or any claim asserted) to which Insurance Company or
any such director, officer, employee, agent or controlling person may
become subject, under the 1933 Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) (i) arise
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 sales literature or advertisements of the respective Participating Fund
or contained in information furnished in writing by the respective
Participating Fund for use in the registration statement or prospectus or
sales literature or advertisements of the Contracts, 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; (ii) arise out of the wrongful conduct
of the respective Participating Fund or persons under its control with
respect to the sale
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or distribution of the Contracts or the Shares of the respective
Participating Fund; or (iii) arise out of any breach by a Participating
Fund of a material term of this Agreement or as a result of any failure by
a Participating Fund to provide the services and furnish the materials or
to make any payments provided for in this Agreement (including a failure
of a Participating Fund, whether unintentional or in good faith or
otherwise, to comply with the qualification requirements specified in
Section 2.5 of this Agreement). The respective Participating Fund will
reimburse any legal or other expenses reasonably incurred by Insurance
Company or any such director, officer, employee, agent or controlling
person in connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that with respect to
clauses (i) and (ii) above the respective Participating Fund will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or omission
or alleged omission made in such registration statement, prospectus, sales
literature or advertisements in conformity with written information
furnished to the respective Participating Fund by Insurance Company
specifically for use therein. This indemnity agreement will be in addition
to any liability which the respective Participating Fund may otherwise
have.
9.3 Each Participating Fund and TDC severally shall indemnify and hold
Insurance Company harmless against any and all liability, loss, damages,
costs or expenses which Insurance Company may incur, suffer or be required
to pay due to the respective Participating Fund's (i) incorrect
calculation of the daily net asset value, dividend rate or capital gain
distribution rate; (ii) incorrect reporting of the daily net asset value,
dividend rate or capital gain distribution rate; (iii) untimely
calculation of the net asset value, dividend rate or capital gain
distribution rate; and (iv) untimely reporting of the net asset value,
dividend rate or capital gain distribution rate; provided that the
respective Participating Fund shall have no obligation to indemnify and
hold harmless Insurance Company if the incorrect calculation or incorrect
or untimely reporting was the result of incorrect information furnished by
Insurance Company or information furnished untimely by Insurance Company
or otherwise as a result of or relating to a breach of this Agreement by
Insurance Company.
9.4 Promptly after receipt by an indemnified party under this Article of
notice of the commencement of any action, such indemnified party will, if
a claim in respect thereof is to be made against the indemnifying party
under this Article, notify the indemnifying party of the commencement
thereof. The omission to so notify the indemnifying party will not relieve
the indemnifying party from any liability under this Article IX, except to
the extent that the omission results in a failure of actual notice to the
indemnifying party and such indemnifying party is damaged solely as a
result of the failure to give such notice. In case any such action is
brought against any indemnified party, and it notified the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, assume the
defense thereof, with counsel satisfactory to such indemnified party, and
to the extent that the
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indemnifying party has given notice to such effect to the indemnified
party and is performing its obligations under this Article, the
indemnifying party shall not be liable for any legal or other expenses
subsequently incurred by such indemnified party in connection with the
defense thereof, other than reasonable costs of investigation.
Notwithstanding the foregoing, in any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
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 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.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX. The
provisions of this Article IX shall survive termination of this Agreement.
9.5 The Indemnified Parties will promptly notify Insurance Company of the
commencement of any litigation or proceedings against them or any of their
officers or directors in connection with the issuance or sale of the Fund
Shares or the Contract or the operation of the Fund. Insurance Company
agrees promptly to notify the Fund of the commencement of any litigation
or proceedings against them or any of their officers or directors in
connection with the issuance or sale of the Funds or Contracts or the
operation of the Separate Account.
9.6 No party shall be liable under this Article IX with respect to any losses,
claims, damages or liabilities to which an indemnified party would
otherwise be subject by reason of such party's willful misfeasance, bad
faith, or gross negligence in the performance of such party's duties or by
reason of such party's reckless disregard of its obligations or duties
under this Agreement.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall continue
in force until terminated in accordance with the provisions herein.
10.2 This Agreement shall terminate without penalty:
a. As to any Participating Fund, at the option of Insurance Company or
the Participating Fund at any time from the date hereof upon 180
days' notice, unless a shorter time is agreed to by the respective
Participating Fund and Insurance Company;
15
b. As to any Participating Fund, at the option of Insurance Company, if
Shares of that Participating Fund are not reasonably available to
meet the requirements of the Contracts as determined by Insurance
Company. Prompt notice of election to terminate shall be furnished
by Insurance Company, said termination to be effective ten days
after receipt of notice unless the Participating Fund makes
available a sufficient number of Shares to meet the requirements of
the Contracts within said ten-day period;
c. As to a Participating Fund, at the option of Insurance Company, upon
the institution of formal proceedings against that Participating
Fund by the Commission, NASD or any other regulatory body, the
expected or anticipated ruling, judgment or outcome of which would,
in Insurance Company's reasonable judgment, materially impair that
Participating Fund's ability to meet and perform the Participating
Fund's obligations and duties hereunder. Prompt notice of election
to terminate shall be furnished by Insurance Company with said
termination to be effective upon receipt of notice;
d. As to a Participating Fund, at the option of each Participating
Fund, upon the institution of formal proceedings against Insurance
Company by the Commission, NASD or any other regulatory body, the
expected or anticipated ruling, judgment or outcome of which would,
in the Participating Fund's reasonable judgment, materially impair
Insurance Company's ability to meet and perform Insurance Company's
obligations and duties hereunder. Prompt notice of election to
terminate shall be furnished by such Participating Fund with said
termination to be effective upon receipt of notice;
e. As to a Participating Fund, at the option of that Participating
Fund, if the Participating Fund shall determine, in its sole
judgment reasonably exercised in good faith, that Insurance Company
has suffered a material adverse change in its business or financial
condition or is the subject of material adverse publicity and such
material adverse change or material adverse publicity is likely to
have a material adverse impact upon the business and operation of
that Participating Fund or Dreyfus, such Participating Fund shall
notify Insurance Company in writing of such determination and its
intent to terminate this Agreement, and after considering the
actions taken by Insurance Company and any other changes in
circumstances since the giving of such notice, such determination of
the Participating Fund shall continue to apply on the sixtieth
(60th) day following the giving of such notice, which sixtieth day
shall be the effective date of termination;
16
f. As to a Participating Fund, at the option of Insurance Company, if
Insurance Company shall determine, in its sole judgment reasonably
exercised in good faith that the Participating Fund has suffered a
material adverse change in its business or financial condition or is
the subject of material adverse publicity and such material adverse
change or material adverse publicity is likely to have a material
adverse impact upon the business and operations of Insurance Company
or its Separate Account, the Insurance Company shall notify the
Participating Fund in writing of such determination and its intent
to terminate this Agreement, and after considering the actions taken
by the Participating Fund and any other changes in circumstances
since the giving of such notice, such determination of Insurance
Company shall continue to apply to the sixtieth (60th) day following
the giving of such notice, which sixtieth day shall be the effective
date of termination;
g. As to a Participating Fund, upon termination of the Investment
Advisory Agreement between that Participating Fund and Dreyfus or
its successors unless Insurance Company specifically approves the
selection of a new Participating Fund investment adviser. Such
Participating Fund shall promptly furnish notice of such termination
to Insurance Company;
h. As to a Participating Fund, in the event that Shares of the
Participating Fund are not registered, issued or sold in accordance
with applicable federal or state law, or such law precludes the use
of such Shares as the underlying investment medium of Contracts
issued or to be issued by Insurance Company. Termination shall be
effective immediately as to that Participating Fund only upon such
occurrence without notice;
i. At the option of a Participating Fund upon a determination by its
Board in good faith that it is no longer advisable and in the best
interests of shareholders of that Participating Fund to continue to
operate pursuant to this Agreement. Termination pursuant to this
Subsection (i) shall be effective upon notice by such Participating
Fund to Insurance Company of such termination;
j. At the option of any party to this Agreement, upon another party's
breach of (and failure to cure) any material provision of this
Agreement;
k. At the option of a Participating Fund, if the Contracts are not
registered, issued or sold in accordance with applicable federal
and/or state law;
l. At the option of Insurance Company in the event a Participating Fund
ceases to qualify as a regulated investment company under Subchapter
M, or if Insurance Company reasonably believes that such
Participating Fund may fail to so qualify; or
17
m. Upon assignment of this Agreement, unless made with the written
consent of every other non-assigning party.
Any termination of this Agreement shall not affect the operation of
Articles V and IX of this Agreement.
10.3 Notwithstanding any termination of this Agreement pursuant to Section 10.2
hereof, each Participating Fund and Dreyfus may, at the option of
Insurance Company, continue to make available additional Shares of that
Participating Fund pursuant to the terms and conditions of this Agreement
as provided 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 or Insurance Company, whichever shall have legal authority to do
so, shall be permitted to reallocate investments in that Participating
Fund, redeem investments in that Participating Fund and/or invest in that
Participating Fund upon the making of additional purchase payments under
the Existing Contracts. If such Shares of the Participating Fund continue
to be made available after such termination, the provisions of this
Agreement shall remain in effect.
10.4 Termination of this Agreement as to any one Participating Fund shall not
be deemed a termination as to any other Participating Fund unless
Insurance Company or such other Participating Fund, as the case may be,
terminates this Agreement as to such other Participating Fund in
accordance with this Article X.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement, except for the addition
or deletion of any Participating Fund or class of Shares of a
Participating Fund as specified in Exhibit A, shall be made by agreement
in writing between Insurance Company and each respective Participating
Fund.
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ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be given by certified mail,
return receipt requested, to the appropriate parties at the following
addresses or at such other address as such party may from time to time
specify in writing to the other party:
Insurance Company: ML Life Insurance Company of New York
1300 Xxxxxxx Xxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Xx.
Participating Funds: Dreyfus Appreciation Fund
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx X. Xxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the addresses as
evidence by the return receipt.
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ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement has been executed on behalf of each Fund by the undersigned
officer of the Fund in his capacity as an officer of the Fund. The
obligations of this Agreement shall only be binding upon the assets and
property of the Fund and shall not be binding upon any director, trustee,
officer or shareholder of the Fund individually. It is agreed that the
obligations of the Funds are several and not joint, that no Fund shall be
liable for any amount owing by another Fund and that the Funds have
executed one instrument for convenience only.
13.2 Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of
Contractholders and Participants 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 has come into the public domain.
13.3 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Commission, 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 the New York
Insurance Commissioner with any information or reports in connection with
services provided under this Agreement which such Commissioner may request
in order to ascertain whether the variable contract operations of
Insurance Company are being conducted in a manner consistent with the New
York variable contract laws and regulations and any other applicable law
or regulations.
ARTICLE XIV
LAW
14.1 This Agreement shall be construed in accordance with the internal laws of
the State of New York, without giving effect to principles of conflict of
laws.
ARTICLE XV
FOREIGN TAX CREDITS
15.1 Each Participating Fund agrees to consult in advance with Insurance
Company concerning any decision to elect or not to pass through the
benefit of any foreign tax credits to the Participating Fund's
shareholders pursuant to Section 853 of the Code.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
ML LIFE INSURANCE COMPANY OF NEW YORK
By: _______________________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Its: Vice President & Senior Counsel
Attest:_____________________
On behalf of those funds listed on Exhibit B
By: _______________________________________
Name: Xxxxxx X. Xxxxxx
Its: Secretary
Attest:_____________________
THE DREYFUS CORPORATION
By: _______________________________________
Name: Xxxxxxx X. Xxxxxxx
Its: Controller
Attest:______________________
DREYFUS SERVICE CORPORATION
By: _______________________________________
Name: Xxxxxxx X. Xxxxxxx
Its: Chief Financial Officer
Attest:______________________
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EXHIBIT A
ML of New York Variable Annuity Separate Account A
22
EXHIBIT B
LIST OF PARTICIPATING FUNDS
Fund Name
Dreyfus Appreciation Fund, Inc.
23
