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