FUND PARTICIPATION AGREEMENT
----------------------------
THIS AGREEMENT is executed as of November 17, 2014, and effective as of
November 17, 2014 (the "Effective Date"), by and among BLACKROCK VARIABLE SERIES
FUNDS, INC. an open-end management investment company organized as a Maryland
corporation (the "Fund"), BLACKROCK INVESTMENTS, LLC ("BRIL" or the
"Underwriter"), a broker-dealer registered as such under the Securities Exchange
Act of 1934, as amended (the "1934 Act"), and METLIFE INSURANCE COMPANY USA, a
life insurance company organized under the laws of the state of Delaware (the
"Company"), on its own behalf and on behalf of each separate account of the
Company set forth on Schedule A, as may be amended from time to time (each
separate account hereinafter referred to individually as an Account" and
collectively as the "Accounts").
W I T N E S S E T H:
-------------------
WHEREAS, the Fund has filed a registration statement with the Securities
and Exchange Commission ("SEC") to register itself as an open-end management
investment company under the Investment Company Act of 1940, as amended (the
"1940 Act"), and to register the offer and sale of its shares under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Fund desires to act as an investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts to be offered by insurance companies that have entered into
participation agreements with the Fund (the "Participating Insurance
Companies"); and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the 1934 Act, is a member in good standing of the Financial Industry
Regulatory Authority, Inc. ("FINRA") and acts as principal underwriter of the
shares of the Fund; and
WHEREAS, the capital stock of the Fund is divided into several series of
shares, each series representing an interest in a particular managed portfolio
of securities and other assets; and
WHEREAS, the several series of shares of the Fund offered now or in the
future by the Fund to the Company and the Accounts are described on Schedule B
attached hereto (each, a "Portfolio," and, collectively, the "Portfolios"); and
WHEREAS, the Fund has received an order from the SEC granting Participating
Insurance Companies and their separate accounts exemptions from the provisions
of sections 9(a), 13(a), 15(a) and 15(b) of 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 and variable life insurance
separate accounts of both affiliated and unaffiliated life insurance companies
(the "Shared Fund Exemptive Order"); and
WHEREAS, BlackRock Advisors, LLC ("BAL") is duly registered as an
investment adviser under the Investment Advisers Act of 1940, as amended, and is
the Fund's investment adviser; and
WHEREAS, the Company has registered or will register under the 1933 Act
certain variable life insurance policies and/or variable annuity contracts
funded or to be funded through one or more of the Accounts (the "Contracts") and
will sell the Contracts to owners of the Contracts ("Contract owners"); and
WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act; and
1
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in one or more of the
Portfolios (the "Shares") on behalf of the Accounts to fund the Contracts, and
the Fund intends to sell such Shares to the relevant Accounts at such Shares'
net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE 1
SALE OF THE FUND SHARES
-----------------------
1.1 Subject to Section 1.3, the Fund shall make Shares of the Portfolios
available to the Accounts at net asset value in accordance with the operational
procedures mutually agreed to by the Fund and the Company from time to time and
the provisions of the then current prospectuses and statements of additional
information of the Portfolios (collectively, the "Prospectus"). Shares of a
particular Portfolio of the Fund shall be ordered in such quantities and at such
times as determined by the Company to be necessary to meet the requirements of
the Contracts. The Directors of the Fund (the "Directors") may refuse to sell
Shares of any Portfolio to any person (including the Company and the Accounts),
or suspend or terminate the offering of Shares of any Portfolio, if such action
is required by law or by regulatory authorities having jurisdiction in their
sole discretion when acting in good faith and in light of their fiduciary duties
under federal and any applicable state laws, if they deem such actions necessary
in the best interests of the shareholders of such Portfolio.
1.1(a) If there are corrections to a Portfolio's net asset value, the
following provisions shall apply:
Fund/SERV Transactions. If the parties choose to use the National
----------------------
Securities Clearing Corporation's Mutual Fund Settlement, Entry and Registration
Verification ("Fund/SERV") system, any corrections to a Portfolio's net asset
value for the prior Trade Date (as hereinafter defined) will be submitted
through the Mutual Fund Profile with the correct net asset value and applicable
date. If the corrections are dated later than Trade Date plus one, an electronic
transmission should be sent in addition to the Mutual Fund Profile submission;
or
Manual Transactions. If the parties choose not to use Fund/SERV, if there
-------------------
are technical problems with Fund/SERV, or if the parties are not able to
transmit or receive information through Fund/SERV, any corrections to a
Portfolio's net asset value should be communicated by facsimile or by electronic
transmission, and will include for each day on which an adjustment has occurred
the incorrect Portfolio net asset value, the correct net asset value, and, to
the extent communicated to Portfolio shareholders, the reason for the
adjustment.
1.1(b) FUND/SERV TRANSACTIONS. If the parties choose to use Fund/SERV or
-----------------------------
any other NSCC service, the following provisions shall apply:
The Company and the Fund or its designee will each be bound by the rules of
the National Securities Clearing Corporation ("NSCC") and the terms of any NSCC
agreement filed by it with the NSCC. Without limiting the generality of the
following provisions of this section, the Company and the Fund or its designee
will each perform any and all duties, functions, procedures and responsibilities
assigned to it and as otherwise established by the NSCC applicable to Fund/SERV,
the Mutual Fund Profile Service, the Networking Matrix Level utilized and any
other relevant NSCC service or system (collectively, the "NSCC Systems").
Any information transmitted through the NSCC Systems by any party to the
other and pursuant to this Agreement will be accurate, complete, and in the
format prescribed by the NSCC.
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Each party will adopt, implement and maintain procedures reasonably designed to
ensure the accuracy of all transmissions through the NSCC Systems and to limit
the access to, and the inputting of data into, the NSCC Systems to persons
specifically authorized by such party.
On each Business Day (as hereinafter defined), the Company shall aggregate
and calculate the net purchase and redemption orders for each Account received
by the Company prior to the Close of Trading (as hereinafter defined) on each
Business Day. The Company shall communicate to the Fund or its designee for
that Business Day, by Fund/SERV, the net aggregate purchase or redemption orders
(if any) for each Account received by the Close of Trading on such Business Day
(the "Trade Date") no later than 7:00 a.m. Eastern Time (or such other time as
may be agreed by the parties from time to time) on the Business Day following
the Trade Date. All orders received by the Company after the Close of Trading
on a Business Day shall not be transmitted to NSCC prior to the following
Business Day. The Fund or its designee shall treat all trades communicated to
the Fund or its designee in accordance with this provision as if received prior
to the Close of Trading on the Trade Date.
All orders are subject to acceptance by the Fund or its designee and become
effective only upon confirmation by the Fund or its designee. Upon confirmation,
the Fund or its designee will verify total purchases and redemptions and the
closing share position for each Account. In the case of delayed settlement, the
Fund or its designee shall make arrangements for the settlement of redemptions
by wire no later than the time permitted for settlement of redemption orders by
the 1940 Act. Unless otherwise informed in writing, such redemption wires should
be sent to:
ABA#:
Account Title:
Account No.:
1.1(c) MANUAL TRANSACTIONS. If the parties choose not to use Fund/SERV,
--------------------------
if there are technical problems with Fund/SERV, or if the parties are not able
to transmit or receive information through Fund/SERV, the following provisions
shall apply:
Next Day Transmission of Orders. On each Business Day, the Company shall
-------------------------------
aggregate and calculate the net purchase and redemption orders for each Account
received by the Company prior to the Close of Trading on such Business Day.
Prior to 9:00 a.m. Eastern Time (or such other time as may be agreed by the
parties from time to time) on the next following Business Day, the Company shall
communicate to the Fund or its designee by facsimile or, in the Company's
discretion, by telephone or any other method agreed upon by the parties, the net
aggregate purchase or redemption orders (if any) for each Account received by
the Close of Trading on the prior Business Day. All orders communicated to the
Fund or its designee by the 9:00 a.m. deadline (or such other time as may be
agreed by the parties from time to time) shall be treated by the Fund or its
designee as if received prior to the Close of Trading on the Trade Date.
Purchases. The Company will use its best efforts to transmit each
---------
purchase order to the Fund or its designee in accordance with written
instructions previously provided by the Fund or its designee to the Company. The
Company will use its best efforts to initiate by wire transfer to BRIL or its
designee purchase amounts no later than the close of the Federal Reserve Wire
Transfer System (the "Fedwire System") on the next Business Day following the
Trade Date.
Redemptions. With respect to redemption orders placed by the Company by
-----------
9:00 a.m. Eastern Time (or such other time as may be agreed by the parties from
time to time) on the first Business Day following the Trade Date, the Fund or
its designee will use its best efforts to initiate by
3
wire transfer to the Company proceeds of such redemptions no later than the
close of the Fedwire System on the next Business Day following the Trade Date.
Unless otherwise informed in writing, such redemption wires should be
sent to:
ABA#:
Account Title:
Account No.:
Reference:
1.2 Subject to Section 1.3, the Fund will redeem any full or fractional
Shares of any Portfolio when requested by the Company on behalf of an Account at
net asset value in accordance with the operational procedures mutually agreed to
by the Fund and the Company from time to time and the provisions of the
Prospectus of the Portfolios. The Fund shall make payment for such Shares in
accordance with Section 1.4, but in no event shall payment be delayed for a
greater period than is permitted by the 1940 Act (including any Rule or order of
the SEC thereunder).
1.3 (a) The Company will not aggregate orders received from its Contract
owners after close of the New York Stock Exchange (generally, 4:00 p.m. Eastern
Time) (the "Close of Trading") with orders received before the Close of Trading,
and warrants that its internal control structure concerning the processing and
transmission of orders is suitably designed to prevent or detect on a timely
basis orders received after the Close of Trading from being aggregated with
orders received before the Close of Trading and to minimize errors that could
result in late transmission of orders. Orders received by the Company before the
Close of Trading are eligible to receive that Business Day's net asset value,
and Orders received by the Company after the Close of Trading are eligible to
receive the next Business Day's net asset value.
(b) Notwithstanding anything to the contrary in this Agreement, the Fund
shall accept purchase and redemption orders resulting from investment in and
payments under the Contracts on each Business Day, provided that such orders are
received prior to 9:00 a.m. Eastern Time and reflect instructions received by
the Company from Contract owners in good order prior to the time the net asset
value of each Portfolio is priced in accordance with the preceding paragraph and
the Fund's Prospectus on the prior 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. Purchase
and redemption orders shall be provided by the Company in such written or
electronic form (including, without limitation, facsimile) as may be mutually
acceptable to the Company and the Fund. The Fund may reject purchase and
redemption orders which are not in the form prescribed in the Fund's Prospectus.
1.4 Purchase orders that are transmitted to the Fund or its designee in
accordance with Section 1.3 shall be paid for on the next Business Day following
the Trade Date. Payments shall be made in federal funds transmitted by wire. In
the event that the Company shall fail to pay in a timely manner for any purchase
order validly received by the Fund or its designee pursuant to Section 1.3, the
Company shall hold the Fund or its designee harmless from any losses reasonably
sustained by the Fund or its designee as the result of acting in reliance on
such purchase order. Redemption orders that are transmitted to the Fund or its
designee in accordance with Section 1.3 shall be paid for no later than the end
of the Business Day after the Fund receives notice of the order. Payments shall
be made in federal funds transmitted by wire. In the event that the Fund or its
designee shall fail to pay in a timely manner for any redemption order validly
received by the Fund or its designee pursuant to Section 1.3, the Fund or its
designee shall hold the Company harmless from any losses reasonably sustained by
the Company as the result of acting in reliance on such redemption order.
4
1.5 Issuance and transfer of Shares of the Portfolios will be by book entry
only. Share certificates will not be issued to the Company or the Account.
Shares ordered from the Fund will be recorded in the appropriate title for each
Account or the appropriate sub-account of each Account.
1.6 The Fund or its designee shall furnish prompt written notice by email
to the Company of any income, dividends or capital gain distribution payable on
Shares. The Company hereby elects to receive all such income, dividends and
capital gain distributions as are payable on a Portfolio's Shares in additional
Shares of that Portfolio. The Fund shall notify the Company in writing by email
of the number of Shares so issued as payment of such income, dividends and
distributions.
1.7 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 7:00 p.m. Eastern Time. If the
Fund provides materially incorrect net asset value information, which, in
accordance with views expressed by the staff of the Securities and Exchange
Commission regarding appropriate error correction standards, requires adjustment
to previously effected transactions, the Fund shall make an adjustment to the
number of Shares purchased or redeemed for any affected Account to reflect the
correct net asset value. Any material error in the calculation or reporting of
net asset value, dividend or capital gains information shall be reported
promptly in writing by email upon discovery to the Company.
1.8 The Company agrees that it will not take any action to operate an
Account as a management investment company under the 1940 Act without the Fund's
and the Underwriter's prior written consent.
1.9 The Fund agrees that its Shares will be sold only to Participating
Insurance Companies and their separate accounts. No Shares of any Portfolio will
be sold directly to the general public. The Company agrees that Shares will be
used only for the purposes of funding the Contracts and Accounts listed in
Schedule A, as amended from time to time.
1.10 The Fund agrees that all Participating Insurance Companies shall have
the obligations and responsibilities regarding conflicts of interest
corresponding to those contained in Article 4 of this Agreement.
1.11 The Fund reserves the right to reject any purchase orders, including
exchanges, for any reason, including if the Fund, in its sole opinion, believes
any of the Company's Contract owners is engaging in short-term or excessive
trading into and out of a Portfolio or otherwise engaging in trading that may be
disruptive to a Portfolio ("Market Timing"). The Company agrees to cooperate
with the Underwriter and the Fund to monitor for Market Timing by its Contract
owners, to provide such relevant information about Market Timing to the Fund as
it may reasonably request, including but not limited to such Contract owner's
identity, and to prevent Market Timing from occurring by or because of Contract
owners. Failure of the Fund to reject any purchase orders that might be deemed
to be Market Timing shall not constitute a waiver of the Fund's rights under
this section. Pursuant to Rule 22c-2 of the 1940 Act, on behalf of the Fund, the
Underwriter and the Company agree to comply with the terms included in the
attached Schedule C as of the effective date of this Agreement.
ARTICLE 2
OBLIGATIONS OF THE PARTIES
--------------------------
2.1 The Fund shall prepare and be responsible for filing with the SEC and
any state securities regulators requiring such filing, all shareholder reports,
notices, proxy materials (or
5
similar materials such as voting instruction solicitation materials),
prospectuses and statements of additional information of the Fund required to be
so filed. The Fund shall bear the costs of registration and qualification of its
Shares, preparation and filing of the documents listed in this Section 2.1 and
all taxes to which an issuer is subject on the issuance and transfer of its
Shares.
2.2 At least annually, the Underwriter or its designee shall provide the
Company with a PDF of the current prospectus of the applicable Portfolio(s)
suitable for duplication by the Company for distribution to existing Contract
owners whose Contracts are funded by Shares of such Portfolio(s) and to
prospective purchasers of Contracts. The Underwriter or its designee will pay
the Company's usual, customary and reasonable printing costs for printing
prospectuses for existing Contract owners. The Company will bear the costs of
printing prospectuses for prospective purchasers of Contracts. The Company will
provide the Underwriter or its designee with supporting documentation which is
sufficient in the reasonable opinion of the Underwriter or its designee to
enable the Underwriter or its designee to verify the printing expenses for which
the Company requests reimbursement. The Company agrees to use its best efforts
to minimize any printing expenses. If the Company prints such documents, Company
agrees that any printer its selects shall be a reputable printer within the
industry.
The Company may use such PDF described above to assist with the updating of
any of its Contract prospectuses or related materials in order to have the
prospectuses of the Portfolios conform to the Company's Contract prospectuses or
related materials, with the expenses of such updating, including printing, to be
borne by the Company.
For purposes of this Section 2.2 only, references to a Portfolio's
"prospectus" shall exclude the related statement of additional information.
2.3 The Fund or its designee shall provide a master PDF of the statement of
additional information for the Portfolios to the Company (suitable for
duplication by the Company at the Company's expense) for distribution to any
owner of a Contract funded by the Shares or to a prospective purchaser who
requests such statement.
2.4 The Underwriter or its designee shall provide the Company free of
charge copies, if and to the extent applicable to the Shares, of the Fund's
proxy materials, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably request for
distribution to Contract owners.
2.5 The Company shall furnish, or cause to be furnished, to the Fund or its
designee, a copy of language that would be used in any prospectus for the
Contracts or statement of additional information for the Contracts in which the
Fund, the Underwriter or BAL ("Fund Parties") or any Portfolio or any entity
with BlackRock in its name is named at least fifteen Business Days prior to the
filing of such document with the SEC. The Company shall furnish, or shall cause
to be furnished, to the Fund or its designee, each piece of sales literature or
other promotional material in which the Fund, any Portfolio, the Underwriter, or
BAL or any entity with BlackRock in its name is named (such materials together
with Contract prospectuses and statements of additional information, "Company
Materials"), at least fifteen Business Days prior to its use. No Company
Materials shall be used if any of the Fund Parties reasonably objects to such
use within fifteen Business Days after receipt of such material. Notwithstanding
the foregoing, the Company need not furnish, or cause to be furnished, to the
Fund or its designee revisions to Company Materials previously approved by the
Fund or its designee ("Updated Company Materials") unless the Company Materials
on which they are based have been materially changed. The Fund or its designee
also reserves the right to review Company Materials and Updated Company
Materials at any time upon request made by the Fund or its designee to the
Company. The Fund or its designee may reasonably object to the continued use of
any
6
Company Materials or Updated Company Materials. No Company Materials or
Updated Company Materials shall be used if the Fund or its designee so objects.
2.6 At the reasonable request of the Fund or its designee, the Company
shall furnish, or shall cause to be furnished, as soon as practical, to the Fund
or its designee copies of the following reports:
(a) the Company's annual financial report (prepared under generally
accepted accounting principles ("GAAP", if any);
(b) the Company's quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the
Company sent to policyholders; and
(d) any registration statement (without exhibits) and financial reports
of the Company filed with any state insurance regulator.
2.7 Notwithstanding anything to the contrary in this Agreement, the Company
shall not give any information or make any representations or statements on
behalf of the Fund or Underwriter or concerning the Fund, the Underwriter or BAL
in connection with the Contracts other than information or representations
contained in and accurately derived from the registration statement or
Prospectus for the Shares (as such registration statement and Prospectus may be
amended or supplemented from time to time), reports of the Fund, Fund-sponsored
proxy statements, or in sales literature or other promotional material approved
by the Fund or Underwriter, except with the written permission of the Fund or
Underwriter.
2.8 Neither the Fund nor the Underwriter shall give any information or make
any representations or statements on behalf of the Company or concerning the
Company, the Accounts or the Contracts other than information or representations
contained in and accurately derived from the registration statements or Contract
prospectuses (as such registration statements or Contract prospectuses may by
amended or supplemented from time to time), except with the written permission
of the Company.
2.9 The Company shall register and qualify the Contracts for sale to the
extent required by applicable law. The Company shall amend the registration
statement of the Contracts under the 1933 Act and registration statement for
each Account under the 1940 Act from time to time as required in order to effect
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 to
the extent required by applicable securities laws and insurance laws of the
various states.
2.10 Solely with respect to Contracts and Accounts that are subject to the
1940 Act, so long as, and to the extent that the SEC interprets the 1940 Act to
require pass-through voting privileges for variable Contract owners: (a) the
Company will provide pass-through voting privileges to owners of Contracts whose
cash values are invested, through the Accounts, in Shares of the Fund; (b) the
Fund shall require all Participating Insurance Companies to calculate voting
privileges in the same manner and the Company shall be responsible for assuring
that the Accounts calculate voting privileges in the manner established by the
Fund; (c) with respect to each Account, the Company will vote Shares of the Fund
held by the Account and for which no timely voting instructions from Contract
owners are received, as well as Shares held by the Account that are owned by the
Company for its general accounts, in the same proportion as the Company votes
Shares held by the Account for which timely voting instructions are received
from Contract owners; and (d) the Company and its agents will in no way
recommend or oppose or interfere with the solicitation of proxies for Fund
7
Shares held by Contract owners without the prior written consent of the Fund,
which consent may be withheld in the Fund's sole discretion.
2.11 (a) The Company will furnish the Fund or its designee (including,
without limitation, any auditors designated by the Fund) with such information
in connection with this Agreement and/or any agreement for the provision of
administrative services or distribution-related services by the Company for the
Fund (the "Related Agreements") as it may reasonably request (including, without
limitation, periodic certifications confirming the Company's provision of
services for the Fund) and will cooperate with the Fund or its designee in
connection with the preparation of reports to the Board of Directors concerning
this Agreement and/or any Related Agreement and the monies paid or payable
pursuant to this Agreement or any Related Agreement, as well as any other
reports or filings that may be required by law.
(b) The Company and its employees will, upon reasonable request, be
available during normal business hours to consult with the Fund or its designee
concerning this Agreement and/or any Related Agreement.
(c) Each party will maintain and preserve all records as required by law to
be maintained and preserved by it in connection with the performance of its
obligations under this Agreement and any Related Agreement. Upon the reasonable
request of another party, a party will provide copies of historical records
relating to transactions between the Fund and the Accounts, written
communications regarding the Fund to or from the Accounts and other materials
that enable the requesting party to monitor and review the other party's or
parties' performance or perform general customer supervision. The Company shall
also use its best efforts to maintain and preserve all records which would
enable the Fund or its designee to substantiate the fees paid to the Company,
the services provided by the Company and the internal controls over services
provided by the Company as well as any other records reasonably required by the
Fund or its designee. Upon reasonable request, the Company agrees to make these
records available to the Fund or its designee.
(d) From time-to-time, the Fund or its designee may submit a due diligence
questionnaire to the Company, and the Company shall complete and return such due
diligence questionnaire within a reasonable timeframe. Upon request, the Company
shall promptly provide to the Fund or its designee a copy of its Statement on
Standards for Attestation Engagements 16 Report ("SSAE 16") and its Financial
Intermediary Controls and Compliance Assessment.
(e) The Company shall permit the Fund or its designee to conduct one
physical audit per calendar year to ensure compliance with the terms of this
Agreement and the Related Agreements. The Fund or its designee agrees to provide
the Company with reasonable notice of their intention to conduct such an audit.
For purposes of these audit privileges, the Company shall permit the authorized
personnel of the Fund or its designee to have access to its books, records,
information, systems and employees pertinent to the Company's performance under
this Agreement and/or any Related Agreement. The Fund or its designee will not
perform any activity that materially interferes with any activities of the
Company or its systems during the audit. The Company is entitled to observe all
audit activity or the Fund or its designee, and the audit will be subject to
such reasonable security and confidentiality measures as the Company may
require.
(f) Nothing in this Agreement will impose upon the Fund or its designee the
obligation to review the Company's practices, procedures and controls.
8
ARTICLE 3
REPRESENTATIONS AND WARRANTIES
------------------------------
3.1 The Company represents and warrants that it is an insurance company
duly organized and in good standing under the laws of the State of Delaware,
with full power, authority and legal right to execute, deliver and perform its
duties and comply with its obligations under this Agreement and has established
each Account as a separate account under such law and the Accounts comply in all
material respects with all applicable federal and state laws and regulations.
3.2 The Company represents and warrants that it has registered or, prior to
any issuance or sale of the Contracts, will register each Account as a unit
investment trust in accordance with the provisions of the 1940 Act to serve as a
separate account for the Contracts. The Company further represents and warrants
that the Contracts will be registered under the 1933 Act prior to any issuance
or sale of the Contracts; the Contracts will be issued in compliance in all
material respects with all applicable federal and state laws.
3.3 The Company represents and warrants that the Contracts are currently
and at the time of issuance will be treated as annuity contracts or life
insurance policies, whichever is appropriate, under applicable provisions of the
Internal Revenue Code of 1986, as amended ("Code"). The Company shall make every
effort to maintain such treatment and shall 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.
3.4 The Fund represents and warrants that it is duly organized and validly
existing under the laws of the State of Maryland.
3.5 The Fund represents and warrants that the Fund Shares offered and sold
pursuant to this Agreement will be registered under the 1933 Act and the Fund is
registered under the 0000 Xxx. The Fund shall amend its registration statement
under the 1933 Act and the 1940 Act from time to time as required in order to
effect the continuous offering of its Shares. If the Fund determines that notice
filings are appropriate, the Fund shall use its best efforts to make such notice
filings in accordance with the laws of such jurisdictions reasonably requested
by the Company.
3.6 The Fund has adopted a Distribution Plan (the "Plan") with regard to
the Class II and Class III shares of each Portfolio, pursuant to Rule 12b-1
under the 1940 Act. The Plan permits the Underwriter to pay to each
Participating Insurance Company that enters into an agreement with the
Underwriter to provide distribution-related services to Contract owners, a fee,
at the end of each month, of up to 0.15% of the average daily net asset value of
the Class II shares and up to 0.25% of the average daily net asset value of
Class III shares of each Portfolio held by such Participating Insurance Company.
The Company agrees to waive the payment of any such distribution fee unless and
until Underwriter has received such fees from the Fund. All distribution-related
services will be provided in accordance with all applicable federal and state
securities laws and the rules and regulations of applicable regulatory agencies
or authorities, such as the SEC and FINRA, specifically including but not
limited to Rule 22c-1(a) under the 1940 Act, all requirements to provide
specific disclosures to Contract Owners regarding fees paid for such services,
and the requirements of the applicable Portfolio's prospectus and statement of
additional information, this Agreement and any Related Agreement.
3.7 The Fund and Underwriter each represent that it will comply and
maintain each Portfolio's compliance with the diversification requirements set
forth in Section 817(h) of the Code and Section 1.817-5 of the regulations under
the Code (the "Diversification Requirement"). The Fund will provide the Company
within 30 days of the end of each quarter a confirmation of
9
compliance with the Diversification Requirement by each Portfolio for such
quarter and will notify the Company immediately upon having a reasonable basis
for believing that a Portfolio has ceased to so comply or that a Portfolio might
not so comply in the future. In the event of a breach of this Section 3.7 by the
Fund, it will take all reasonable steps to adequately diversify the Portfolio so
as to achieve compliance within the grace period afforded by Section 1.817-5 of
the regulations under the Code.
3.8 The Fund and Underwriter each represent and warrant that each Portfolio
is currently qualified as a regulated investment company ("RIC") under
Subchapter M of the Code, and represent that they will use their best efforts to
qualify and to maintain qualification of each Portfolio as a RIC. The Fund will
notify the Company immediately in writing upon having a reasonable basis for
believing that a Portfolio has ceased to so qualify or that it might not so
qualify in the future.
3.9 The Company hereby certifies that it has established and maintains an
anti-money laundering ("AML") program that includes written policies, procedures
and internal controls reasonably designed to identify its Contract owners and
has undertaken appropriate due diligence efforts to "know its customers" in
accordance with all applicable anti-money laundering regulations in its
jurisdiction including, but not limited to, the USA PATRIOT Act of 0000 (xxx
"Xxxxxxx Xxx"). The Company further confirms that it will monitor for suspicious
activity in accordance with the requirements of the Patriot Act and any other
applicable regulations. The Company agrees to provide the Fund with such
information as it may reasonably request, including but not limited to, the
filling out of questionnaires, attestations and other documents, to enable the
Fund to fulfill its obligations under the Patriot Act, and, upon its request, to
file a notice pursuant to Section 314 of the Patriot Act and the implementing
regulations related thereto to permit the voluntary sharing of information
between the parties hereto. Upon filing such a notice the Company agrees to
forward a copy to the Fund, and further agrees to comply with all requirements
under the Patriot Act and implementing regulations concerning the use,
disclosure, and security of any information that is shared.
3.10 The Company acknowledges and agrees that it is the responsibility of
the Company to determine investment restrictions under state insurance law
applicable to any Portfolio, and that the Fund shall bear no responsibility to
the Company for any such determination or the correctness of such determination.
The Companyis currently unaware of any investment restrictions under state
insurance laws that would be applicable to the Portfolios as a result of the
Account's investment therein. The Company shall inform the Fund of any
investment restrictions imposed by state insurance law after the date of this
Agreement that may become applicable to the Fund or any Portfolio from time to
time as a result of the Account's investment therein. Upon receipt of any such
information from the Company, the Fund shall determine whether it is in the best
interests of shareholders to comply with any such restrictions. If the Fund
determines that it is not in the best interests of shareholders to comply with a
restriction determined to be applicable by the Company, the Fund shall so inform
the Company, and the Fund and the Company shall discuss alternative
accommodations in the circumstances.
3.11 The Company represents and warrants that each Account is a "segregated
asset account" and that interests in each Account are offered exclusively
through the purchase of or transfer into a "variable contract," within the
meaning of such terms under Section 817 of the Code and the regulations
thereunder. The Company will use its best efforts to continue to meet such
definitional requirements, and it will notify the Fund immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
10
ARTICLE 4
POTENTIAL CONFLICTS
-------------------
4.1 The parties acknowledge that the Fund's Shares may be made available
for investment to other Participating Insurance Companies. In such event, the
Directors of the Fund will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. A material irreconcilable 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 variable annuity contract and variable life insurance contract owners; or (f)
a decision by a Participating Insurance Company to disregard the voting
instructions of contract owners. The Directors shall promptly inform the Company
in writing if they determine that an irreconcilable material conflict exists and
the implications thereof.
4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Directors. The Company will assist the
Directors in carrying out their responsibilities under the Shared Fund Exemptive
Order by providing the Directors with all information reasonably necessary for
them to consider any issues raised including, but not limited to, information as
to a decision by the Company to disregard Contract owner voting instructions.
4.3 If it is determined by a majority of the Directors who are not
affiliated with BAL or the Underwriter (the "Disinterested Directors"), that a
material irreconcilable conflict exists that affects the interests of Contract
owners, the Company shall, in cooperation with other Participating Insurance
Companies whose contract owners are also affected, at its expense and to the
extent reasonably practicable (as determined by the Directors) take whatever
steps are necessary to remedy or eliminate the irreconcilable material conflict,
which steps could include: (a) withdrawing the assets allocable to some or all
of the 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 of whether or not such segregation should
be implemented to a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity contract owners,
life insurance contract owners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such segregation, or
offering to the affected Contract owners the option of making such a change; and
(b) establishing a new registered management investment company or managed
separate account.
4.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such
Account; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the Disinterested Directors. Any such withdrawal
and termination must take place within 30 days after the Fund gives written
notice that this provision is being implemented, subject to applicable law but
in any event consistent with the terms of the Shared Fund Exemptive Order. Until
the end of such 30 day period, the Fund shall continue to accept and implement
orders by the Company for the purchase and redemption of Shares.
4.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the affected
Account's investment in the Fund and terminate this
11
Agreement with respect to such Account within 30 days after the Fund informs the
Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and
termination shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the Disinterested
Directors. Until the end of such 30 day period, the Fund shall continue to
accept and implement orders by the Company for the purchase and redemption of
Shares.
4.6 For purposes of section 4.3 through 4.6 of this Agreement, a majority
of the Disinterested Directors shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Company be required to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Directors determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Fund and terminate this Agreement within 30 days
after the Directors inform the Company in writing of the foregoing
determination; provided, however, that such withdrawal and termination shall be
limited to the extent required by any such material irreconcilable conflict as
determined by a majority of the Disinterested Directors.
4.7 Upon request, the Company shall submit to the Directors such reports,
materials or data as the Directors may reasonably request so that the Directors
may fully carry out the duties imposed upon them by the Shared Fund Exemptive
Order, and said reports, materials and data shall be submitted more frequently
if deemed appropriate by the Directors.
4.8 If and to the extent that (a) 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 application for the Shared Fund Exemptive Order) on
terms and conditions materially different from those contained in the
application for the Shared Fund Exemptive Order, or (b) the Shared Fund
Exemptive Order is granted on terms and conditions that differ from those set
forth in this Article 4, then the Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary (a) 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, or (b) to conform this Article 4 to the
terms and conditions contained in the Shared Fund Exemptive Order, as the case
may be.
ARTICLE 5
INDEMNIFICATION
---------------
5.1 The Company agrees to indemnify and hold harmless the Fund Parties and
each of their respective Directors, officers, employees and agents and each
person, if any, who controls a Fund Party within the meaning of Section 15 of
the 1933 Act (collectively the "Indemnified Parties" for purposes of this
Section 5.1) against any and all direct losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Company)
or expenses (including the reasonable costs of investigating or defending any
loss, claim, damage, liability or expense and reasonable legal counsel fees
incurred in connection therewith) (collectively, "Losses"), to which the
Indemnified Parties may become subject under any statute or regulation, or
common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or untrue
statements of any material fact contained in the registration statement,
prospectus(es) or statements of additional information for the Contracts or
in the Contracts themselves or in sales literature or other promotional
material generated or approved by the Company on behalf of the Contracts or
Accounts (or
12
any amendment or supplement to any of the foregoing) (collectively,
"Company Documents" for the purposes of this Article 5), or arise out of or
are based upon the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that this indemnity shall not apply as to any Indemnified Party if
such statement or omission was made in reliance upon and was accurately
derived from written information furnished to the Company by or on behalf
of the Fund or Underwriter for use in Company Documents or otherwise for
use in connection with the sale of the Contracts or Shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Fund Documents as defined in Section 5.2(a)) or wrongful conduct of the
Company or persons under its control, with respect to the sale or
acquisition of the Contracts or Shares; or
(c) arise out of or result from any untrue statement of a material
fact contained in Fund Documents as defined in Section 5.2(a) or the
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading if such statement
or omission was made in reliance upon and accurately derived from written
information furnished to the Fund or Underwriter by or on behalf of the
Company; or
(d) arise out of or result from any failure by the Company to provide
the services or furnish the materials required under the terms of this
Agreement; or
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or any
Related Agreement or arise out of or result from any other material breach
of this Agreement by the Company.
5.2 The Underwriter and the Fund agree severally to indemnify and hold
harmless the Company and each of its directors, officers, employees and agents
and each person, if any, who controls the Company within the meaning of Section
15 of the 1933 Act (collectively, the "Indemnified Parties" for purposes of this
Section 5.2) against any and all direct losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the Fund
Parties) or expenses (including the reasonable costs of investigating or
defending any loss, claim, damage liability or expense and reasonable legal
counsel fees incurred in connection therewith) (collectively, "Losses"), to
which the Indemnified Parties may become subject under any statute or
regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements of any
material fact contained in the registration statement or Prospectus for the
Fund (or any amendment or supplement thereto) (collectively, "Fund
Documents" for the purposes of this Article 5), or arise out of or are
based upon the omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
provided that this indemnity shall not apply as to any Indemnified Party if
such statement or omission was made in reliance upon and was accurately
derived from written information furnished to the Fund Parties by or on
behalf of the Company for use in Fund Documents or otherwise for use in
connection with the sale of the Contracts or Shares; or
13
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Company Documents) or wrongful conduct of a Fund Party or persons under its
respective control, with respect to the sale or acquisition of the
Contracts or Shares; or
(c) arise out of or result from any untrue statement of a material
fact contained in Company Documents or the omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading if such statement or omission was made in
reliance upon and accurately derived from written information furnished to
the Company by or on behalf of the Fund Parties; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Fund in this
Agreement or any Related Agreement or arise out of or result from any other
material breach of this Agreement by the Underwriter or the Fund.
5.3 Neither the Company, the Underwriter nor the Fund shall be liable under
the indemnification provisions of Section 5.1 or 5.2, as applicable, with
respect to any Losses incurred or assessed against any Indemnified Party to the
extent such Losses arise out of or result from such Indemnified Party's willful
misfeasance, bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations or duties under this Agreement.
5.4 Neither the Company, the Underwriter nor the Fund shall be liable under
the indemnification provisions of Section 5.1 or 5.2, as applicable, with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the other parties in writing within a reasonable time
after the summons, or other first written notification, giving information of
the nature of the claim shall have been served upon or otherwise received by
such Indemnified Party (or after such Indemnified Party shall have received
notice of service upon or other notification to any designated agent), but
failure to notify the party against whom indemnification is sought of any such
claim shall not relieve that party from any liability which it may have to the
Indemnified Party in the absence of Sections 5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties, the
indemnifying party shall be entitled to participate, at its own expense, in the
defense of such action. The indemnifying party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the party named in
such action. After notice from the indemnifying party to the Indemnified Party
of an election to assume such defense, 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 the Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
14
ARTICLE 6
TERMINATION
-----------
6.1 This Agreement may be terminated by any party for any reason by sixty
(60) days' advance written notice to the other parties.
6.2 This Agreement may be terminated immediately upon written notice to the
other parties at the option of either the Underwriter or the Fund upon
institution of formal proceedings against the Company by FINRA, 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 operation of the Account(s), the administration of the Contracts or the
purchase of the Shares, or an expected or anticipated ruling, judgment or
outcome which would, in the Fund's or the Underwriter's respective reasonable
judgment, materially impair the Company's ability to meet and perform the
Company's obligations and duties hereunder.
6.3 This Agreement may be terminated immediately upon written notice to the
other parties at the option of the Fund or the Underwriter if the Internal
Revenue Service determines that the Contracts cease to qualify as annuity
contracts or life insurance policies, as applicable, under the Code, or if the
Fund or Underwriter reasonably believes that the Contracts may fail to so
qualify or if interests in an Account under the Contracts are not registered,
where required, and, in all material respects, are not issued or sold in
accordance with any applicable federal or state law.
6.4 This Agreement may be terminated immediately upon written notice to the
other parties by the Fund or the Underwriter, at either's option, if either the
Fund or the Underwriter shall determine, in its sole judgment exercised in good
faith, that either (1) the Company shall have suffered a material adverse change
in its business or financial condition, (2) the Company shall have been the
subject of material adverse publicity which is likely to have a material adverse
impact upon the business and operations of either the Fund or the Underwriter,
or (3) the Company breaches any obligation under this Agreement or any Related
Agreement in a material respect and such breach shall continue unremedied for
thirty (30) days after receipt by the Company of notice in writing from the Fund
or Underwriter of such breach.
6.5 This Agreement may be terminated immediately upon written notice to the
other parties at the option of the Company if (A) the Internal Revenue Service
determines that any Portfolio fails to qualify as a RIC under the Code or fails
to comply with the diversification requirements of Section 817(h) of the Code
and the Fund, upon written request fails to provide reasonable assurance that it
will take action to cure such failure, or (B) the Company shall determine, in
its sole judgment exercised in good faith, that either (1) the Fund or
Underwriter shall have suffered a material adverse change in its business or
financial condition, (2) the Fund or the Underwriter shall have been the subject
of material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Company, or (3) the Fund or Underwriter
breaches any obligation under this Agreement or any Related Agreement in a
material respect and such breach shall continue unremedied for thirty (30) days
after receipt of notice in writing to the Fund or the Underwriter from the
Company of such breach.
6.6 Notwithstanding any termination of this Agreement, the Fund and the
Underwriter may continue to make available additional Shares of the Portfolios
of the Fund pursuant to the terms and conditions of this Agreement, for all
existing Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts"). Specifically,
without limitation, if the Fund, Underwriter and the Company agree to make
additional Shares available, 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. In the event of a
termination
15
of this Agreement pursuant to this Article 6, the Fund and the Underwriter shall
promptly notify the Company in writing whether the Underwriter and the Fund will
continue to make Shares available to Existing Contracts after such termination;
if the Underwriter and the Fund will continue to make Shares so available, the
provisions of this Agreement shall remain in effect with respect to transactions
in Shares by such Existing Contracts except for Section 6.1 and thereafter
either the Fund, Underwriter or the Company may terminate the Agreement as so
continued pursuant to this Section 6.6 upon prior written notice to the other
parties, such notice to be for a period that is reasonable under the
circumstances but need not be greater than six months.
6.7 The provisions of Section 2.11, Articles 5, 7 and 8 and Section 10 of
Schedule C shall survive the termination of this Agreement, and the provisions
of Articles 2 and 4 shall survive the termination of this Agreement as long as
Shares of the Fund are held on behalf of Contract owners.
ARTICLE 7
NOTICES
-------
Unless otherwise specified in this Agreement, any notice shall be
sufficiently given when sent by registered or certified mail (postage prepaid,
return receipt requested) or by prepaid courier (return receipt requested) to
the other parties at the addresses of such parties set forth below or at such
other addresses as such parties may from time to time specify in writing to the
other parties in accordance with this Article 7.
To the Advisor: With a copy to:
BlackRock Advisors, LLC BlackRock, Inc.
Attn: Xxxx Xxxx, Managing Director Attn: General Counsel
U.S. Retail, Contracts & Administration 00 Xxxx 00xx Xxxxxx
00 Xxxx 00xx Xxxxxx Xxx Xxxx, XX 00000
Xxx Xxxx, XX 00000
To BRIL: with a copy to:
BlackRock Investments, LLC BlackRock Investments, LLC
Attn: Xxxxx Xxxxxxxx Attn: Chief Compliance Officer
Managing Director, 000 Xxxxxx Xxxxxx
Global Client Group Xxx Xxxxxxxxx, XX 00000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
If to the Company:
MetLife
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Law Department
16
ARTICLE 8
MISCELLANEOUS
-------------
8.1 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.
8.2 This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall together constitute one
and the same instrument.
8.3 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.
8.4 This Agreement, including the attached schedules, shall be interpreted,
construed, and enforced in accordance with the laws of the State of New York,
without reference to any conflict of laws provisions thereof that would cause
the application of laws of any jurisdiction other than those of the State of New
York, and shall, to the extent applicable, be subject to the provisions of the
1933, 1934, and 1940 Acts, and the rules, regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant and the terms hereof shall be interpreted and construed in accordance
therewith.
8.5 The parties to this Agreement acknowledge and agree that the Fund is a
Maryland corporation, and that all liabilities of the Fund arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of the relevant Portfolio(s) of the Fund and
that no Director, officer, agent or holder of Shares of the Fund shall be
personally liable for any such liabilities.
8.6 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the SEC, FINRA 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.
8.7 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, to which the parties hereto are entitled under state and
federal laws.
8.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
8.9 This Agreement shall be binding upon and shall inure to the benefit of
the parties and their respective successors and permitted assigns; provided,
however, that neither this Agreement nor any rights, privileges, duties or
obligations of the parties may be assigned by a party without the written
consent of the other parties. Any attempted assignment in violation of this
Section 8.9 shall be null and void.
8.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
parties.
8.11 This Agreement, including all attachments hereto, constitutes the
entire agreement between the parties with respect to the subject matter
contained herein.
17
8.12 Nothing in this Agreement shall be construed to give any person or
entity other than the parties hereto any legal or equitable claim, right or
remedy. Rather, this Agreement is intended to be for the sole and exclusive
benefit of the parties hereto.
8.13 NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO
EVENT SHALL ANY PARTY BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INDIRECT OR
INCIDENTAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS), EVEN IF SUCH
PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Fund Participation Agreement as of the Effective Date.
BLACKROCK VARIABLE SERIES FUNDS, INC.
By: /s/ Xxxxxxx Xxxx
----------------------------------
Name: Xxxxxxx Xxxx
----------------------------------
Title: Vice President
----------------------------------
BLACKROCK INVESTMENTS, LLC
By: /s/ Xxxxxxxx Xxxx
----------------------------------
Name: Xxxxxxxx Xxxx
----------------------------------
Title: Director
----------------------------------
METLIFE INSURANCE COMPANY USA/1/
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Vice President
/1/ The Company is currently known as MetLife Insurance Company of Connecticut.
The Company's name will change to MetLife Insurance Company USA following
the close of business on November 14, 2014.
18
SCHEDULE A
Separate Accounts of MetLife Insurance Company USA participating in Portfolios
of BlackRock Variable Series Funds, Inc.
MetLife Investors USA Separate Account A
19
SCHEDULE B
Portfolios and Classes of BlackRock Variable Series Funds, Inc. now or in the
---------------------------------------------------------------
future available to Separate Accounts of MetLife Insurance Company USA
including, but not limited to:
PORTFOLIO NAME CLASS CUSIP TICKER
EQUITY PORTFOLIOS
BlackRock Basic Value V.I. Fund I 00000X000 XXXXX
BlackRock Basic Value V.I. Fund II 00000X000 BAVII
BlackRock Basic Value V.I. Fund III 00000X000 BVIII
BlackRock Capital Appreciation V.I. Fund I 00000X000 FDGRI
BlackRock Capital Appreciation X.X. Xxxx XXX 00000X000 XXXXX
BlackRock Equity Dividend V.I. Fund I 00000X000 UTTLI
BlackRock Equity Dividend V.I. Fund III 00000X000 UTIII
BlackRock Global Allocation V.I. Fund I 00000X000 GLALI
BlackRock Global Allocation X.X. Xxxx XX 00000X000 XXXXX
BlackRock Global Allocation V.I. Fund III 00000X000 GAIII
BlackRock Global Opportunities V.I. Fund I 00000X000 GLGRI
BlackRock Global Opportunities V.I. Fund III 00000X000 GGIII
BlackRock International V.I. Fund I 00000X000 IVVVI
BlackRock Large Cap Core V.I. Fund I 00000X000 LGCCI
BlackRock Large Cap Core V.I. Fund II 00000X000 LGCII
BlackRock Large Cap Core X.X. Xxxx XXX 00000X000 LCIII
BlackRock Large Cap Growth V.I. Fund I 00000X000 LGGGI
BlackRock Large Cap Growth X.X. Xxxx XXX 00000X000 XXXXX
BlackRock Large Cap Value V.I. Fund I 00000X000 LCATT
BlackRock Large Cap Value V.I. Fund II 00000X000 LCBTT
BlackRock Large Cap Value V.I. Fund III 00000X000 LVIII
BlackRock Managed Volatility V.I. Fund I 00000X000 AMBLI
BlackRock Managed Volatility V.I. Fund III XXX XXX
BlackRock Value Opportunities V.I. Fund I 00000X000 SMCPI
BlackRock Value Opportunities V.I. Fund II 00000X000 SMCII
BlackRock Value Opportunities V.I. Fund III 00000X000 SCIII
FIXED INCOME PORTFOLIOS
BlackRock High Yield V.I. Fund I 00000X000 HICUI
BlackRock High Yield V.I. Fund III 00000X000 HCIII
BlackRock Total Return V.I. Fund I 00000X000 CRBDI
BlackRock Total Return V.I. Fund III 00000X000 CBIII
BlackRock U.S. Government Bond V.I. Fund I 00000X000 GVBDI
BlackRock U.S. Government Bond X.X. Xxxx XXX 00000X000 XXXXX
INDEX PORTFOLIOS
BlackRock S&P 500 Index V.I. Fund I 00000X000 IDXVI
BlackRock S&P 500 Index X.X. Xxxx XX 00000X000 IXVII
MONEY MARKET PORTFOLIOS
BlackRock Money Market V.I. Fund * I 00000X000 DMMKI
* NO FEES SHALL BE PAID FOR THE BLACKROCK MONEY MARKET V.I. FUND
20
