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EXHIBIT 9(h)
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX, INCORPORATED
WORLD FINANCIAL CENTER
000 XXXXX XXXXXX
XXX XXXX, XXX XXXX 00000
December 18, 1996
AIM Variable Insurance Funds, Inc.
A I M Distributors, Inc.
00 Xxxxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Gentlemen:
This letter sets forth certain understandings between AIM Variable
Insurance Funds, Inc. and A I M Distributors, Inc. ("AVIF" and "AIM
Distributors," respectively; together, "AIM"), on the one hand, and Xxxxxxx
Xxxxx Xxxxxx, Xxxxxx & Xxxxx, Incorporated ("Xxxxxxx Xxxxx"), on the other
hand, with respect to the sale through registered representatives of Xxxxxxx
Xxxxx of certain variable annuity contracts (the "Policies") issued through
separate accounts of Xxxxxxx Xxxxx Life Insurance Company ("MLLIC") or ML Life
Insurance Company of New York ("MLLICNY"), as applicable (the "Accounts").
Pursuant to and in accordance with certain participation agreements by and
among AVIF, AIM Distributors, and MLLIC or MLLICNY, as applicable (the
"Participation Agreements"), the Accounts purchase shares of certain portfolios
of AVIF (the "Portfolios"); such investment is in connection with the
availability of investment options under the Policies that correspond to the
Portfolios.
In connection with the Participation Agreements, Xxxxxxx Xxxxx
represents and warrants the following:
X. Xxxxxxx Xxxxx is a Delaware corporation duly organized,
validly existing, and in good standing under the laws of the state of
Delaware and has full power, authority, and legal right to perform its
duties as distributor of the Policies, to execute and deliver this
letter agreement ("Agreement"), and to perform its duties hereunder.
2. Xxxxxxx Xxxxx is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is
a member "in good standing of the National Association of Securities
Dealers, Inc. (the "NASD").
3. The Policies will be sold in compliance with all applicable
federal and state laws, including, without limitation, the Securities
Act of 1933, as amended (the "1933 Act"), the 1934 Act, the Investment
Company Act of 1940, as amended (the "1940 Act"), and applicable state
insurance laws.
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4. Xxxxxxx Xxxxx will bear the expenses of distributing the
Policies. These expenses include by way of illustration, but are not
limited to, the costs of printing and distributing to Policy offerees
the AVIF Prospectus and periodic reports of AVIF. These costs would
also include the costs of preparing, printing, and distributing sales
literature and advertising relating to the Policies and the Funds
(other than sales literature and advertising prepared by A I M
Distributors or an affiliate thereof), as well as filing such prepared
materials with, and obtaining approval from, the SEC, the NASD, any
state insurance regulatory authority, and any other appropriate
regulatory authority, to the extent required.
5. Xxxxxxx Xxxxx will immediately notify AIM if Xxxxxxx Xxxxx
receives notice of (i) the issuance by any court or regulatory body of
any stop order, cease and desist order, or other similar order with
respect to the registration statement of an Account under the 1933 Act
relating to the Policies or the Prospectus for such Policies; (ii) any
request by the Securities and Exchange Commission ("SEC") for any
amendment to such registration statement or Prospectus; (iii) the
initiation of any proceedings for that purpose or for any other
purpose relating to the registration or offering of each Account's
interests pursuant to the Policies; (iv) any other action or
circumstances that may prevent the lawful offer or sale of said
interests in any state or jurisdiction, including, without limitation,
any circumstances in which said interests are not registered and, in
all material respects, issued sold in accordance with applicable
state and federal law.
6. Xxxxxxx Xxxxx will not give any information or make any
representations or statements on behalf of or concerning AIM
Distributors, AVIF or their respective affiliates in connection with
the sale of the Policies other than (i) the information or
representations contained in the registration statement, including the
AVIF Prospectus contained therein, relating to shares of the
Portfolios, as such registration statement and AVIF Prospectus may be
amended or supplemented from time to time; or (ii) in reports or proxy
materials for AVIF; or (iii) in sales literature or other promotional
material approved by AIM, except with the express written permission
of AIM.
7. Xxxxxxx Xxxxx agrees to cooperate in arranging to mail and/or
deliver, in a timely manner, combined or coordinated prospectuses or
other materials relating to AVIF and the Policies.
8. Xxxxxxx Xxxxx will adopt and implement procedures reasonably
designed to ensure that information concerning AVIF and its affiliates
that is intended for use only by registered representatives of Xxxxxxx
Xxxxx selling the Policies (i.e., information that is not intended for
distribution to Policy owners or prospective Policy owners) ("broker
only materials") is so used. Xxxxxxx Xxxxx acknowledges that neither
AIM Distributors, AVIF,
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nor their respective affiliates will be liable for any losses,
damages, or expense relating to the improper use of such broker only
materials by registered representatives of Xxxxxxx Xxxxx.
INDEMNIFICATION. Except to the extent set forth below, Xxxxxxx Xxxxx
agrees to indemnify and hold harmless AVIF, AIM Distributors, and each of their
respective affiliates, directors and officers and each person, if any, who
controls AIM Distributors or its affiliates within the meaning of Section 15 of
the 1933 Act (for purposes of this paragraph, "AIM Indemnified Parties")
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of Xxxxxxx Xxxxx) or actions in
respect thereof (including, to the extent reasonable, legal and other
expenses), to which the AIM Indemnified Parties may become subject under any
statute, regulation, at common law, or otherwise, insofar as such losses,
claims, damages, liabilities or actions are related to the sale or acquisition
of AVIF shares and arise as a result of any failure by Xxxxxxx Xxxxx to perform
the obligations, provide the services, and furnish the materials required of it
under the terms of this Agreement, or any material breach of any representation
and/or warranty made by Xxxxxxx Xxxxx in this Agreement or arise out of any
other material breach of this Agreement by Xxxxxxx Xxxxx.
Notwithstanding the foregoing, Xxxxxxx Xxxxx shall not be liable under
this Agreement with respect to any losses, claims, damages, liabilities or
actions to which the AIM Indemnified Party would otherwise be subject by reason
of willful misfeasance, bad faith, or gross negligence in the performance by
that AIM Indemnified Party of its duties or by reason of that AIM Indemnified
Party's reckless disregard of obligations or duties (i) under this Agreement or
under the Participation Agreements, or (ii) to AVIF or its shareholders.
Xxxxxxx Xxxxx shall not be liable under this Agreement with respect to
any action against an AIM Indemnified Party unless AIM shall have notified
Xxxxxxx Xxxxx in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the action shall have
been served upon such AIM Indemnified Party (or after such AIM Indemnified
Party shall have received notice of such service on any designated agent), but
failure to notify Xxxxxxx Xxxxx of any such action shall not relieve Xxxxxxx
Xxxxx from any liability which it may have to the AIM Indemnified Party against
whom such action is brought otherwise than on account of this Agreement. Except
as otherwise provided herein, in case any such action is brought against an AIM
Indemnified Party, Xxxxxxx Xxxxx shall be entitled to participate, at its own
expense, in the defense of such action and also shall be entitled to assume the
defense thereof, with counsel approved by the AIM Indemnified Party named in
the action, which approval shall not be unreasonably withheld. After notice
from Xxxxxxx Xxxxx to such AIM Indemnified Party of the election of Xxxxxxx
Xxxxx to assume the defense thereof, the AIM Indemnified Party shall cooperate
fully with Xxxxxxx Xxxxx and shall bear the fees and expenses of any additional
counsel retained by it, and Xxxxxxx Xxxxx will not be liable to such AIM
Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such AIM Indemnified Party independently in connection
with the defense thereof, other than reasonable costs of investigation.
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TERM. This Agreement shall be in effect for so long as AVIF serves as
or is offered as an investment medium for Policies.
NOTICES. Notices provided pursuant to this Agreement (a) if to AIM,
will be directed to Xxxxx X. Xxxxxx, Esq., at the address above (telecopy
number 713/993-9185); and (b) if to Xxxxxxx Xxxxx, xxxx be directed to Xxxxx X.
Xxxxxxxx, Esq., at 000 Xxxxxxxx Xxxx Xxxx, Xxxxxxxxxx, Xxx Xxxxxx 00000
(telecopy number 609/282-1247). Notice shall be given immediately, by telecopy;
notice shall be confirmed in writing through hand delivery or transmittal by
registered or certified U.S. Mail with return receipt requested. Notice will
be effective upon receipt of written confirmation of such notice.
MISCELLANEOUS. This Agreement may be executed simultaneously in
counterparts, each of which taken together will constitute one and the same
instrument. If any provision of this Agreement is held or made invalid by
controlling legal authority, the remainder of this Agreement will not be
affected thereby.
If this Agreement is consistent with your understanding of the matters
we have discussed relating to the offer and sale of the Policies, kindly sign
below and return a signed copy to us.
Very truly yours,
XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX,
INCORPORATED
/s/ XXXXX X. XXXXXXXX
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Xxxxx X. Xxxxxxxx
Title: First Vice President
ACKNOWLEDGED AND AGREED:
AIM VARIABLE INSURANCE FUNDS, INC.
By:/s/ XXXXXX X. XXXXXX
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Name: Xxxxxx X. Xxxxxx
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Title: President
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AIM DISTRIBUTORS, INC.
By: /s/ W. XXXX XXXXXXXXXX
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Name: W. Xxxx Xxxxxxxxxx
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Title: Senior Vice President
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