See All of This Company's Exhibits
EX-99.8.AA
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w45887bex99-8_aa.txt
FORM OF PARTICIPATION AGGREEMENT
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Exhibit 8(aa)
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT is made and entered into as of May 1, 2001 by
and between MERRILL LYNCH LIFE INSURANCE COMPANY (the "Company"), and AMERICAN
CENTURY INVESTMENT SERVICES, INC. ("Distributor").
WHEREAS, the Company offers to the public certain individual variable
annuity and variable life insurance contracts (the "Contracts"); and
WHEREAS, the Company wishes to make available as investment options under
certain of the Contracts as listed in Exhibit A, designated series of mutual
fund shares as listed in Exhibit B (the "Funds"), each of which is registered
under the Investment Company Act of 1940, as amended (the "1940 Act"), and
issued by American Century Variable Portfolios, Inc. (the "Issuer"); and
WHEREAS, on the terms and conditions hereinafter set forth, Distributor
desires to make shares of the Funds available as investment options under the
Contracts and to retain the Company to perform certain administrative services
on behalf of the Funds, and the Company is willing and able to furnish such
services;
NOW, THEREFORE, the Company and Distributor agree as follows:
1. TRANSACTIONS IN THE FUNDS. Subject to the terms and conditions of
this Agreement, Distributor will cause the Issuer to make shares of the Funds
available to be purchased, exchanged, or redeemed, by or on behalf of the
Accounts (defined in SECTION 7(a) below) through a single account per Fund at
the net asset value applicable to each order. The Funds' shares shall be
purchased and redeemed on a net basis in such quantity and at such time as
determined by the Company to satisfy the requirements of the Contracts for
which the Funds serve as underlying investment media. Dividends and capital
gains distributions will be automatically reinvested in full and fractional
shares of the Funds.
2. ADMINISTRATIVE SERVICES. The Company agrees to provide all
administrative services for the Contract owners in accordance with the
provisions of that certain Administrative Services Agreement between the
Company and Distributor of even date herewith.
3. TIMING OF TRANSACTIONS. Distributor hereby appoints the Company as
agent for the Funds for the limited purpose of accepting purchase and
redemption orders for Fund shares from the Contract owners. On each day the New
York Stock Exchange (the "Exchange") is open for business (each, a "Business
Day"), the Company may receive instructions from the Contract owners for the
purchase or redemption of shares of the Funds ("Orders"). Orders received and
accepted by the Company prior to the close of regular trading on the Exchange
(the "Close of
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Trading") on any given Business Day (currently, 4:00 p.m. Eastern time) and
transmitted to the Funds' transfer agent by 8:00 a.m. Eastern time on such
Business Day will be executed at the net asset value determined as of the Close
of Trading on the next Business Day. Any Orders received by the Company on such
day but after the Close of Trading, and all Orders that are transmitted to the
Funds' transfer agent after 8:00 a.m. Eastern time on the next Business Day,
will be executed at the net asset value determined as of the Close of Trading on
the next Business Day following the day of receipt of such Order. The day as of
which an Order is executed by the Funds' transfer agent pursuant to the
provisions set forth above is referred to herein as the "Trade Date". All
orders are subject to acceptance or rejection by Distributor or the Funds in
the sole discretion of either of them.
4. PROCESSING OF TRANSACTIONS.
(a) If transactions in Fund shares are to be settled through the National
Securities Clearing Corporation's Mutual Fund Settlement, Entry, and
Registration Verification (Fund/SERV) system, the terms of the Fund/SERV and
Networking Agreement, between Company and American Century Services
Corporation, an affiliate of Distributor, shall apply.
(b) If transactions in Fund shares are to be settled directly with the
Funds' transfer agent, the following provisions shall apply:
(1) By 6:30 p.m. Eastern time on each Business Day, Distributor (or
one of its affiliates) will provide to the Company via facsimile or other
electronic transmission acceptable to the Company the Funds' net asset value,
dividend and capital gain information and, in the case of income funds, the
daily accrual for interest rate factor (mil rate), determined at the Close of
Trading.
(2) By 8:00 a.m. Eastern time on the Business Day next following the
Trade Date, the Company will provide to Distributor via facsimile or other
electronic transmission acceptable to Distributor a report stating whether the
instructions received by the Company from Contract owners by the Close of
Trading on such Business Day resulted in the Accounts being a net purchaser or
net seller of shares of the Funds. As used in this Agreement, the phrase "other
electronic transmission acceptable to Distributor" includes the use of remote
computer terminals located at the premises of the Company, its agents or
affiliates, which terminals may be linked electronically to the computer system
of Distributor, its agents or affiliates (hereinafter, "Remote Computer
Terminals").
(3) Upon the timely receipt from the Company of the report described
in (2) above, the Funds' transfer agent will execute the purchase or redemption
transactions (as the case may be) at the net asset value computed as of the
Close of Trading on the Trade Date. Payment for net purchase transactions shall
be made by wire transfer to the applicable Fund custodial account
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designated by the Funds on the Business Day next following the Trade Date. Such
wire transfers shall be initiated by the Company's bank prior to 4:00 p.m.
Eastern time and received by the Funds prior to 6:00 p.m. Eastern time on the
Business Day next following the Trade Date ("T+1"). If payment for a purchase
Order is not timely received, such Order will be, at Distributor's option,
either (i) executed at the net asset value determined on the Trade Date, and the
Company shall be responsible for all costs to Distributor or the Funds resulting
from such delay, or (ii) executed at the net asset value next computed following
receipt of payment. Payments for net redemption transactions shall be made by
wire transfer by the Issuer to the account(s) designated by the Company on T+1;
provided, however, the Issuer reserves the right to settle redemption
transactions within the time period set forth in the applicable Fund's
then-current prospectus. On any Business Day when the Federal Reserve Wire
Transfer System is closed, all communication and processing rules will be
suspended for the settlement of Orders. Orders will be settled on the next
Business Day on which the Federal Reserve Wire Transfer System is open and the
original Trade Date will apply.
5. PROSPECTUS AND PROXY MATERIALS.
(a) Distributor shall provide the Company with copies of the Issuer's
proxy materials, periodic fund reports to shareholders and other materials that
are required by law to be sent to the Issuer's shareholders. In addition,
Distributor shall provide the Company with a sufficient quantity of prospectuses
of the Funds to be used in conjunction with the transactions contemplated by
this Agreement, together with such additional copies of the Issuer's
prospectuses as may be reasonably requested by Company. If the Company provides
for pass-through voting by the Contract owners, or if the Company determines
that pass-through voting is required by law, Distributor will provide the
Company with a sufficient quantity of proxy materials for each, as directed by
the Company.
(b) The cost of preparing, printing and shipping of the prospectuses,
periodic fund reports and other materials of the Issuer to the Company shall be
paid by Distributor or its agents or affiliates; provided, however, that if at
any time Distributor or its agent reasonably deems the usage by the Company of
such items to be excessive, it may, prior to the delivery of any quantity of
materials in excess of what is deemed reasonable, request that the Company
demonstrate the reasonableness of such usage. If Distributor believes the
reasonableness of such usage has not been adequately demonstrated, it may
request that the party responsible for such excess usage pay the cost of
printing (including press time) and delivery of any excess copies of such
materials. Unless the Company agrees to make such payments, Distributor may
refuse to supply such additional materials and Distributor shall be deemed in
compliance with this SECTION 4 if it delivers to the Company at least the number
of prospectuses and other materials as may be required by the Issuer under
applicable law.
(c) If the Company so requests, Distributor shall provide the Issuer's
prospectuses, periodic fund reports and other materials of the Issuer to the
Company by electronic file instead of
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be paper copy. If the Company chooses to receive electronic files, the Company
shall be responsible for any costs of preparing, printing and shipping such
documents.
(d) The cost of any distribution of prospectuses, proxy materials,
periodic fund reports and other materials of the Issuer to the Contract owners
shall be paid by the Company and shall not be the responsibility of Distributor
or the Issuer.
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6. RECORD OWNER.
The Separate Accounts listed in Exhibit A shall be the sole shareholder of
Fund shares purchased for the Contract owners pursuant to this Agreement (the
"Record Owner"). The Record Owner shall properly complete any applications or
other forms required by Distributor or the Issuer from time to time.
7. REPRESENTATIONS.
(a) The Company represents and warrants that (i) this Agreement has been
duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; (ii) it has established the
Separate Accounts listed in Schedule A hereto (the "Accounts"), each of which is
a duly authorized and established separate account under Arkansas Insurance law,
and has registered each Account as a unit investment trust under the 1940 Act to
serve as an investment vehicle for the Contracts; (iii) each Contract provides
for the allocation of net amounts received by the Company to an Account for
investment in the shares of one or more specified investment companies selected
among those companies available through the Account to act as underlying
investment media; (iv) selection of a particular investment company is made by
the Contract owner under a particular Contract, who may change such selection
from time to time in accordance with the terms of the applicable Contract; and
(v) the activities of the Company contemplated by this Agreement comply in all
material respects with all provisions of federal and state securities laws
applicable to such activities.
(b) Distributor represents that (i) this Agreement has been duly authorized
by all necessary corporate action and, when executed and delivered, shall
constitute the legal, valid and binding obligation of Distributor, enforceable
in accordance with its terms; (ii) the prospectus of each Fund complies in all
material respects with federal and state securities laws; (iii) shares of the
Issuer are registered and authorized for sale in accordance with all federal and
state securities laws; (iv) each Fund engages in business as an open-end,
diversified management investment company and was established for the purpose of
serving as the investment vehicle for separate accounts established for variable
life insurance contracts and variable annuity contracts to be offered by
insurance companies which have entered into agreements substantially similar to
this Agreement; (v) each Fund is currently qualified as a Regulated Investment
Company under Subchapter M of the Internal Revenue Code of 1986, as amended (the
"Code") and they will maintain such qualification (under Subchapter M or any
successor or similar provision); (vi) each Fund will at all times be adequately
diversified within the meaning of Section 817(h) of the Code and Treasury
Regulation 1.817-5 relating to the diversification requirements for variable
annuity, endowment, or life insurance contracts and any amendments or other
modifications to such Section or Regulations or successors thereto; (vii) the
Issuer is lawfully organized and validly existing under the laws of the State of
Maryland and it does and will comply with applicable provisions of the 1940 Act;
(viii) the
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Funds and all of their directors, officers, employees and other
individuals/entities having access to the funds and/or securities of the Funds
are and continue to be at all times covered by a blanket fidelity bond or
similar coverage issued by a reputable bonding company (including coverage for
larceny and embezzlement) for the benefit of each Fund in an amount not less
than the minimal coverage as required currently by Rule 17g-1 of the 1940 Act or
related provisions as may be promulgated from time to time; (ix) the Distributor
is a member in good standing of the NASD and is registered as a broker-dealer
under the Securities Exchange Act of 1934, as amended (the "1934 Act"); and (x)
the Distributor will sell and distribute the Funds' shares in accordance with
all applicable federal and state securities laws.
8. ADDITIONAL COVENANTS AND AGREEMENTS.
(a) Each party shall comply with all provisions of federal and state laws
applicable to its respective activities under this Agreement. All obligations of
each party under this Agreement are subject to compliance with applicable
federal and state laws.
(b) Each party shall promptly notify the other party in the event that it
is, for any reason, unable to perform any of its obligations under this
Agreement.
(c) The Company covenants and agrees that all Orders accepted and
transmitted by it hereunder with respect to each Account on any Business Day
will be based upon instructions that it received from the Contract owners, in
proper form prior to the Close of Trading of the Exchange on that Business Day.
The Company shall time stamp all Orders or otherwise maintain records that will
enable the Company to demonstrate compliance with SECTION 8(c) hereof.
(d) The Company covenants and agrees that all Orders transmitted to the
Issuer, whether by telephone, telecopy, or other electronic transmission
acceptable to Distributor, shall be sent by or under the authority and direction
of a person designated by the Company as being duly authorized to act on behalf
of the owner of the Accounts. Distributor shall be entitled to rely on the
existence of such authority and to assume that any person transmitting Orders
for the purchase, redemption or transfer of Fund shares on behalf of the Company
is "an appropriate person" as used in Sections 8-107 and 8-401 of the Uniform
Commercial Code with respect to the transmission of instructions regarding Fund
shares on behalf of the owner of such Fund shares. The Company shall maintain
the confidentiality of all passwords and security procedures issued, installed
or otherwise put in place with respect to the use of Remote Computer Terminals
and assumes full responsibility for the security therefor. The Company further
agrees to be responsible for the accuracy, propriety and consequences of all
data transmitted to Distributor by the Company by telephone, telecopy or other
electronic transmission acceptable to Distributor.
(e) The Company agrees that, to the extent it is able to do so, it will
use its best efforts to give equal emphasis and promotion to shares of the Funds
as is given to other underlying
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investments of the Accounts, subject to applicable Securities and Exchange
Commission rules. In addition, the Company shall not impose any fee, condition,
or requirement for the use of the Funds as investment options for the Contracts
that operates to the specific prejudice of the Funds vis-a-vis the other
investment media made available for the Contracts by the Company.
(f) The Company shall not, without the written consent of Distributor,
make representations concerning the Issuer or the shares of the Funds except
those contained in the then-current prospectus and in current printed sales
literature approved by Distributor or the Issuer.
(g) Advertising and sales literature with respect to the Issuer or the
Funds prepared by the Company or its agents, if any, for use in marketing
shares of the Funds as underlying investment media to Contract owners shall be
submitted to Distributor for review and approval at least 10 business days
before such material is used. No such material shall be used unless the
Distributor or its designee approves such material within the 10 business days
after receipt thereof.
9. USE OF NAMES. Except as otherwise expressly provided for in this
Agreement, neither Distributor nor any of its affiliates nor the Funds shall
use any trademark, trade name, service mark or logo of the Company, or any
variation of any such trademark, trade name, service mark or logo, without the
Company's prior written consent, the granting of which shall be at the
Company's sole option. Except as otherwise expressly provided for in this
Agreement, the Company shall not use any trademark, trade name, service mark or
logo of the Issuer, Distributor or any variation of any such trademarks, trade
names, service marks, or logos, without the prior written consent of either the
Issuer or Distributor, as appropriate, the granting of which shall be at the
sole option of Distributor and/or the Issuer.
10. PROXY VOTING.
(a) The Company shall provide pass-through voting privileges to all
Contract owners so long as the SEC continues to interpret the 1940 Act as
requiring such privileges. It shall be the responsibility of the Company to
assure that it and the separate accounts of the other Participating Companies
(as defined in SECTION 12(a) below) participating in any Fund calculate voting
privileges in a consistent manner.
(b) The Company will distribute to Contract owners all proxy material
furnished by Distributor and will vote shares in accordance with instructions
received from such Contract owners. The Company shall vote Fund shares for
which no voting instructions are received in the same proportion as shares for
which such instructions have been received. The Company and its agents shall
not oppose or interfere with the solicitation of proxies for Fund shares held
for such Contract owners
11. INDEMNITY.
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(a) Distributor agrees to indemnify and hold harmless the Company and its
officers, directors, employees, agents, affiliates and each person, if any, who
controls the Company within the meaning of the Securities Act of 1933
(collectively, the "Indemnified Parties" for purposes of this SECTION 11(a))
against any losses, claims, expenses, damages or liabilities (including amounts
paid in settlement thereof) or litigation expenses (including legal and other
expenses)(collectively, "Losses"), to which the Indemnified Parties may become
subject, insofar as such Losses (i) result from a breach by Distributor of a
material provision of this Agreement, or (ii) arise out of or are based upon
any untrue statement of material fact contained in the Issuer's registration
statement (or any amendment or supplement thereto) or the omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading. Distributor will reimburse any legal or
other expenses reasonably incurred by the Indemnified Parties in connection
with investigating or defending any such Losses. Distributor shall not be
liable for indemnification hereunder if such Losses are attributable to the
negligence or misconduct of the Company in performing its obligations under
this Agreement.
(b) The Company agrees to indemnify and hold harmless Distributor and the
Issuer, and their respective officers, directors, employees, agents, affiliates
and each person, if any, who controls Issuer or Distributor within the meaning
of the Securities Act of 1933 (collectively, the "Indemnified Parties" for
purposes of this SECTION 11(b)) against any Losses to which the Indemnified
Parties may become subject, insofar as such Losses (i) result from a breach by
the Company of a material provision of this Agreement; (ii) result from the use
by any person of the Remote Computer Terminals; or (iii) arise out of or are
based upon any untrue statement of any material fact contained in the
registration statement or private offering memorandum for the Contracts or
contained in the Contracts (or any amendment or supplement to any of the
foregoing) or 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 agreement to indemnify shall not apply as to any Indemnified
Party if such statement or omission was made in reliance upon and in conformity
with information furnished to the Company by or on behalf of the Issuer for use
in the registration statement or private offering memorandum for the Contracts
(or any amendment or supplement to any of them). The Company will reimburse any
legal or other expenses reasonably incurred by the Indemnified Parties in
connection with investigating or defending any such Losses. The Company shall
not be liable for indemnification hereunder if such Losses are attributable to
the negligence or misconduct of Distributor or the Issuer in performing their
obligations under this Agreement.
(c) Promptly after receipt by an indemnified party hereunder of notice of
the commencement of action, such indemnified party will, if a claim in respect
thereof is to be made against the indemnifying party hereunder, notify the
indemnifying party of the commencement thereof; but the omission so to notify
the indemnifying party will not relieve it from any liability which it may have
to any indemnified party otherwise than under this SECTION 11. In case any such
action is brought against any indemnified party, and it notifies the
indemnifying party of the
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commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish to, assume the defense thereof,
with counsel satisfactory to such indemnified party, and after notice from the
indemnifying party to such indemnified party of its election to assume the
defense thereof, the indemnifying party will not be liable to such indemnified
party under this SECTION 11 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof other
than reasonable costs of investigation.
(d) If the indemnifying party assumes the defense of any such action, the
indemnifying party shall not, without the prior written consent of the
indemnified parties in such action, settle or compromise the liability of the
indemnified parties in such action, or permit a default or consent to the entry
of any judgment in respect thereof, unless in connection with such settlement,
compromise or consent, each indemnified party receives from such claimant an
unconditional release from all liability in respect of such claim.
12. POTENTIAL CONFLICTS
(a) The Company has received a copy of an application for exemptive
relief, as amended, filed by the Issuer on December 21, 1987, with the SEC and
the order issued by the SEC in response thereto (the "Shared Funding Exemptive
Order"). The Company has reviewed the conditions to the requested relief set
forth in such application for exemptive relief. As set forth in such
application, the Board of Directors of the Issuer (the "Board") will monitor
the Issuer for the existence of any material irreconcilable conflict between
the interests of the contract owners of all separate accounts ("Participating
Companies") investing in funds of the Issuer. An irreconcilable material
conflict may arise for a variety of reasons, including: (i) an action by any
state insurance regulatory authority; (ii) 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
actions by insurance, tax or securities regulatory authorities; (iii) an
administrative or judicial decision in any relevant proceeding; (iv) the manner
in which the investments of any portfolio are being managed; (v) a difference
in voting instructions given by variable annuity contract owners and variable
life insurance contract owners; or (vi) a decision by an insurer to disregard
the voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and
the implications thereof.
(b) The Company will report any potential or existing conflicts of which
it is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever contract owner voting instructions are
disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board
members,
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determines that a material irreconcilable conflict exists with regard to
contract owner investments in a Fund, the Board shall give prompt notice to all
Participating Companies. If the Board determines that the Company is
responsible for causing or creating said conflict, the Company shall at its
sole cost and expense, and to the extent reasonably practicable (as determined
by a majority of the disinterested Board members), take such action as is
necessary to remedy or eliminate the irreconcilable material conflict. Such
necessary action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund
and reinvesting such assets in a different investment medium or
submitting the question of whether 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
Companies) that votes in favor of such segregation, or offering
to the affected contract owners the option of making such a
change; and/or
(ii) establishing a new registered management investment company or
managed separate account.
(d) If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard its contract owner voting instructions and
said decision represents a minority position or would preclude a majority vote
by all of its contract owners having an interest in the Issuer, the Company at
its sole cost, may be required, at the Board's election, to withdraw an
Account's investment in the Issuer and terminate this Agreement; 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 members of the Board.
(e) For the purpose of this SECTION 12, a majority of the disinterested
Board members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the Issuer
be required to establish a new funding medium for any Contract. The Company
shall not be required by this SECTION 12 to establish a new funding medium for
any Contract if an offer to do so has been declined by vote of a majority of
the Contract owners materially adversely affected by the irreconcilable
material conflict.
13. TERMINATION; WITHDRAWAL OF OFFERING. This Agreement may be
terminated by either party upon 180 days' prior written notice to the other
party. Notwithstanding the above, the Issuer reserves the right, without prior
notice, to suspend sales of shares of any Fund, in whole or in part, or to make
a limited offering of shares of any of the Funds in the event that (A) any
regulatory body commences formal proceedings against the Company, Distributor,
affiliates of Distributor, or the Issuer, which proceedings Distributor
reasonably believes may have a material adverse impact on the ability of
Distributor, the Issuer or the Company to perform its obligations under this
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Agreement or (B) in the judgment of Distributor, declining to accept any
additional instructions for the purchase or sale of shares of any such Fund is
warranted by market, economic or political conditions.
The Company reserves the right to terminate the Agreement:
(a) if shares of the Funds are not reasonably available to meet the
requirements of the Contracts as determined by the Company;
(b) upon institution of formal proceedings against a Fund or Distributor
by the National Association of Securities Dealers, the Securities and Exchange
Commission, or any state securities or insurance department or any other
regulatory body, which would have a material adverse effect on the Distributor's
or a Fund's ability to perform its obligations under this Agreement;
(c) upon a determination by a majority of the Board of Issuer, or a
majority of the disinterested Directors, that a material irreconcilable conflict
exists among the interests of (i) all contract owners of variable insurance
products of all separate accounts, or (ii) the interests of the participating
insurance companies investing in the Funds, as discussed in Section 12 above;
(d) as to any Fund, if the Fund ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code, or under any successor or
similar provision, or if the Company reasonably believes that the Fund may fail
to so qualify;
(e) as to any Fund, if the Fund fails to meet the diversification
requirements of Section 817(h) of the Code or if the Company reasonably believes
that the Fund will fail to meet such requirements; or
(f) if the Company determines in its sole judgment exercised in good
faith, that either any Fund or the Distributor has suffered a material adverse
change in its business, operations, or financial condition or is the subject of
material adverse publicity which is likely to have a material adverse impact
upon the business and operations of the Company or the Contracts (including the
sale thereof).
Notwithstanding the foregoing, this Agreement may be terminated immediately
(i) by any party as a result of any other breach of this Agreement by another
party, which breach is not cured within 30 days after receipt of notice from the
other party, or (ii) by any party upon a determination that continuing to
perform under this Agreement would, in the reasonable opinion of the terminating
party's counsel, violate any applicable federal or state law, rule, regulation
or judicial order. Termination of this Agreement shall not affect the
obligations of the parties to make payments under SECTION 4 for Orders received
by the Company prior to such termination and shall not affect the Issuer's
obligation to maintain the Accounts as set forth by this Agreement.
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Following termination, Distributor shall not have any Administrative Services
payment obligation to the Company (except for payment obligations accrued but
not yet paid as of the termination date).
14. NON-EXCLUSIVITY. Both parties acknowledge and agree that this
Agreement and the arrangement described herein are intended to be non-exclusive
and that each party is free to enter into similar agreements and arrangements
with other entities.
15. SURVIVAL. The provisions of SECTION 9 (Use of Names) and SECTION 11
(Indemnity) of this Agreement shall survive termination of this Agreement.
16. AMENDMENT. Neither this Agreement, nor any provision hereof, may be
amended, waived, discharged or terminated orally, but only by an instrument in
writing signed by all of the parties hereto.
17. NOTICES. All notices and other communications hereunder shall be
given or made in writing and shall be delivered personally, or sent by telex,
telecopier, express delivery or registered or certified mail, postage prepaid,
return receipt requested, to the party or parties to whom they are directed at
the following addresses, or at such other addresses as may be designated by
notice from such party to all other parties.
To the Company:
Merrill Lynch Life Insurance Company
7 Roszel Road -- 3rd Floor
Princeton, New Jersey 08540
Attention: Edward W. Diffin, Jr.
(609)627-3969 (office number)
(609)627-3996 (telecopy number)
To the Issuer or Distributor:
American Century Investment Services, Inc.
4500 Main Street
Kansas City, Missouri 64111
Attention: Janet A. Nash, Esq.
(816)340-7480 (office number)
(816)340-4964 (telecopy number)
Any notice, demand or other communication given in a manner prescribed in this
SECTION 17 shall be deemed to have been delivered on receipt.
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18. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned without the
written consent of both parties to the Agreement at the time of such assignment.
This Agreement shall be binding upon and inure to the benefit both parties
hereto and their respective permitted successors and assigns.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, all of which taken together shall constitute one agreement, and
any party hereto may execute this Agreement by signing any such counterpart.
20. SEVERABILITY. In case any one or more of the provisions contained in
this Agreement should be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
21. ENTIRE AGREEMENT. This Agreement, including the attachments hereto,
constitutes the entire agreement between the parties with respect to the matters
dealt with herein, and supersedes all previous agreements, written or oral, with
respect to such matters.
If the foregoing correctly sets forth our understanding, please indicate
your agreement to and acceptance thereof by signing below, whereupon this
Agreement shall become a binding agreement between us as of the latest date
indicated.
AMERICAN CENTURY INVESTMENT
SERVICES, INC.
BY: ___________________________________
NAME: _________________________________
TITLE: ________________________________
DATE: _________________________________
We agree to and accept the terms of the foregoing Agreement.
MERRILL LYNCH LIFE INSURANCE
COMPANY
BY: ___________________________________
NAME: _________________________________
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Title: ________________________________
Date: _________________________________
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EXHIBIT A
SEPARATE ACCOUNTS AND CONTRACTS
- Name of Separate Account and Date Established by the Board of Directors:
Merrill Lynch Life Variable Annuity Separate Account A - 08/06/1991
- Form Number and Names of Contracts Funded by Separate Account:
Merrill Lynch Retirement Plus
Forms ML-VA-001 and ML-VA-002 and state variations thereof
Flexible Premium Variable Annuity Contract
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EXHIBIT B
FUNDS OF AMERICAN CENTURY PORTFOLIOS, INC.
OFFERED TO THE SEPARATE ACCOUNTS LISTED IN SCHEDULE A
- VP International Fund