Exhibit 8(q)
FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made as of the day of , 1998, by and between
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), as Sponsor
and principal underwriter of Equity Investor Fund, 1998 ML Select Ten V.I. Trust
and each successor V.I. Trust (each, a "Fund"), and ML LIFE INSURANCE COMPANY OF
NEW YORK, a life insurance company organized under the laws of the state of New
York, (the "Company"), on its behalf and on behalf of each segregated asset
account of the Company set forth on Schedule A as attached hereto, as such
schedule may be amended from time to time (the "Accounts").
W I T N E S S E T H:
WHEREAS, Equity Investor Fund has a registration statement effective with
the Securities Exchange Commission ("SEC") under the Investment Company Act of
1940, as amended (the "1940 Act") by which it has registered as a unit
investment trust and the Fund will have a registration statement effective with
the SEC registering its units of fractional undivided interest ("Units") for
offer and sale under the Securities Act of 1933, as amended (the "1933 Act");
and
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ desires the Fund to act as an investment vehicle for
separate accounts established for variable annuity contracts and/or variable
life insurance contracts set forth on Schedule A attached hereto, as it may be
amended from time to time, to be offered by the Company; and
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ is registered as a broker-dealer with the SEC under
the Securities Exchange Act of 1934, as amended (the "1934 Act") and is a member
in good standing of the National Association of Securities Dealers Inc. (the
"NASD"); and
WHEREAS, the Company has registered or will register under the 1933 Act
certain variable annuity contracts and/or variable life insurance contracts
funded or to be funded through one or more of the Accounts (the "Contracts");
and
WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act, unless exempt from such registration; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase units of fractional undivided
interest of the Fund ("Units") on behalf of the Accounts to fund the Contracts,
and the Fund intends to sell such Units to the relevant Accounts at the
applicable net
asset value of such Units, subject to a deferred transaction fee as described in
the Fund prospectus;
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE I
SALE OF UNITS
1.1 Subject to Section 1.3 of this Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall cause
the Fund to make Units available to the Accounts at such Units' most recent net
asset value provided to the Company prior to receipt by the unit trust
department of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ("Defined Asset Funds") of a purchase order, in
accordance with the operational procedures mutually agreed to by the Defined
Asset Funds and the Company from time to time and the provisions of the
then-current prospectus of the Fund. Units 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 Fund, acting through Defined Asset Funds,
may refuse to sell Units to any person (including the Company and the Accounts)
or suspend or terminate the offering of Units if such action is required by law
or by regulatory authorities having jurisdiction or is, in the sole discretion
of ▇▇▇▇▇▇▇ ▇▇▇▇▇ acting in good faith and in light of its fiduciary duties under
federal and any applicable state laws, necessary in the best interest of the
holders of Units.
1.2 Subject to Section 1.3 of this Agreement, the Fund will redeem any
full or fractional Units when requested by the Company on behalf of an Account
at their most recent net asset value (reflecting deduction of any accrued but
uncollected transaction fees) provided to the Company prior to receipt by
Defined Asset Funds of the request for redemption, established in accordance
with the operational procedures mutually agreed to by Defined Asset Funds and
the Company from time to time and the provisions of the then-current prospectus
of the Fund. The Fund's Trustee shall make payment for such Units in the manner
established from time to time by Defined Asset Funds, consistent with the terms
of the Indenture relating to the Fund, and will use its best efforts to make
such payment by 2:00 p.m. on the same Business Day on which such orders for
redemption are received by Defined Asset Funds. 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 Defined Asset Funds, on behalf of 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.
New York time on such Business Day and reflect instructions received by the
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Company from Contract holders in good order prior to 4:00 p.m. Eastern time on
the prior Business Day. Any purchase or redemption order for Units received by
the Company from a Contract holder after said time on any Business Day shall not
be submitted by the Company until the second succeeding Business Day. "Business
Day" shall be defined as set forth in the Fund prospectus. Purchase and
redemption orders for Units shall be provided by the Company to Defined Asset
Funds in such written or electronic form (including facsimile) as may be
mutually acceptable to the Company and Defined Asset Funds. On behalf of the
Fund, Defined Asset Funds may reject purchase and redemption orders that are not
in proper form. In the event that the Company and Defined Asset Funds agree to
use a form of written or electronic communication which is not capable of
recording the time, date and recipient of any communication and confirming good
transmission, the Company agrees that it shall be responsible (i) for confirming
with Defined Asset Funds that any communication sent by the Company was in fact
received by Defined Asset Funds in proper form, and (ii) for the effect of any
delay in Defined Asset Funds' receipt of such communication in proper form.
Defined Asset Funds and its agents shall be entitled to rely, and shall be fully
protected from all liability in acting, upon the instructions of the persons
named in the list of authorized individuals attached hereto as Schedule B, or
any subsequent list of authorized individuals provided to Defined Asset Funds or
its agents by the Company in such form, without being required to determine the
authenticity of the authorization or the authority of the persons named therein.
1.4 Purchase orders that are received by Defined Asset Funds in accordance
with Section 1.3 of this Agreement shall be paid for no later than 2:00 p.m. on
the Business Day when Defined Asset Funds receives notice of the order.
Payments shall be made by the Company in federal funds transmitted by wire to
the Fund Trustee. In the event that the Company shall fail to pay in a timely
manner for any purchase order validly received by Defined Asset Funds on behalf
of the Fund pursuant to Section 1.3 of this Agreement (whether or not such
failure is the fault of the Company), the Company shall hold the Fund and
▇▇▇▇▇▇▇ ▇▇▇▇▇ harmless from any losses reasonably sustained by either as the
result of acting in reliance on such purchase order.
1.5 Issuance and transfer of the Fund's Units will be by book entry only.
Certificates representing Units will not be issued to the Company or to any
Account. Units acquired by an Account will be recorded in the appropriate title
for the Account.
1.6 ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall cause the Fund Trustee to furnish prompt written
notice to the Company of any income, dividends or capital gain distributions
payable on Units. The Company hereby elects to receive all such income
distributions and capital gain distributions in additional Units. The Trustee
shall notify the Company of the number of Units so issued.
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1.7 ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall cause the Fund Trustee to make the net asset value
per Unit (reflecting deduction of any accrued but uncollected transaction fees)
available to the Company on a daily basis as soon as reasonably practical after
such net asset value is calculated and shall use its best efforts to make such
net asset value per Unit available no later than 6:30 p.m. New York time. Any
error in the net asset value per Unit that is discovered by the Trustee after
such value has been reported to the Company shall be reported to the Company
immediately.
1.8 ▇▇▇▇▇▇▇ ▇▇▇▇▇ agrees that Units will be sold only to the Company, any
affiliated insurance company and their separate accounts. No Units will be
sold directly to the general public. The Company agrees that Fund Units will be
used only for the purposes of funding the Contracts and Accounts listed in
Schedule A, as such schedule may be amended from time to time.
1.9 The Company hereby appoints Defined Asset Funds as its attorney in
fact for each Account purchasing Units for the purpose of executing any
documents required to be executed on behalf of an Account in connection with
purchase of Units under Article II of the Trust's Indenture or redemption of
Units under Article V thereof.
ARTICLE 2
OBLIGATIONS OF THE PARTIES
2.1 ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting through Defined Asset Funds, shall prepare and
be responsible for filing with the SEC and any state securities regulators, all
prospectuses, notices and other documents of the Fund required to be filed with
said regulators. 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 the Fund, as an issuer, is subject on
the issuance and transfer of its securities.
2.2 At least annually, ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting through Defined Asset Funds
or its designee, shall provide the Company, free of charge, with a camera-ready
proof of the current prospectus of the Fund and any other assistance as is
reasonably necessary in order for the parties hereto once each year (or more
frequently if the Fund prospectus is supplemented or amended) to have the
prospectus for the Contracts and the Fund prospectus printed together in one
document; the expenses of such printing to be borne by the Company. Defined
Asset Funds shall be responsible solely for providing the Fund prospectus in the
format in which it is accustomed to formatting prospectuses, the Fund shall bear
the expense of providing the prospectus in such format (E.G., typesetting
expenses), and the Company shall bear the expense of adjusting or changing the
format to conform with any of its prospectuses.
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2.3 ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting through Defined Asset Funds or its designee,
shall provide the Company, if and to the extent applicable to the Units, free of
charge with copies of each Fund report to Unitholders and other communications
to Unitholders.
2.4 The Company shall furnish, or cause to be furnished, to Defined Asset
Funds or its designee, a copy of each prospectus for the Contracts or statement
of additional information for the Contracts in which the Fund or ▇▇▇▇▇▇▇ ▇▇▇▇▇
is named prior to the filing of such document with the SEC. The Company shall
furnish, or shall cause to be furnished, to Defined Asset Funds or its designee,
each piece of sales literature or other promotional material intended for
distribution to the public in which the Fund or ▇▇▇▇▇▇▇ ▇▇▇▇▇ is named, at least
five Business Days prior to its use. No such prospectus, statement of
additional information or material shall be used if Defined Asset Funds or an
authorized agent thereof reasonably objects to such use within five Business
Days after receipt of such material.
2.5 The Company shall not give any information or make any representations
or statements on behalf of or concerning the Fund or Defined Asset Funds in
connection with the sale of the Contracts other than information or
representations contained in and accurately derived from the registration
statement or prospectus for the Fund (as such registration statement and
prospectus may be amended or supplemented from time to time) or in sales
literature or other promotional materials approved by Defined Asset Funds or its
designee, except with written permission of Defined Asset Funds or its designee.
2.6 Neither the Fund nor Defined Asset Funds 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
statement or prospectus for the Contracts (as such registration statement and
prospectus may be amended or supplemented from time to time), or in materials
approved by the Company for distribution including sales literature or other
promotional materials, except with the written permission of the Company.
2.7 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 federal and state securities laws and insurance laws of the various
states.
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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 its
incorporation and has established each Account as a segregated asset account
under such laws on the date set forth in Schedule A.
3.2 The Company represents and warrants that it has registered or, prior
to any issuance or sale of the contracts, unless exempt from such registration
will register each of its Accounts as a unit investment trust in accordance with
the provisions of the 1940 Act to serve as a segregated investment account for
the Contracts.
3.3 The Company represents and warrants that the issuance of the
Contracts, unless exempt from such registration, will be registered under the
1933 Act prior to any issuance or sale of the Contracts; the Contracts will be
issued and sold in compliance in all material respects with all applicable
federal and state laws; and the sale of the Contracts shall comply in all
material respects with state insurance suitability requirements.
3.4 The Company represents and warrants that, provided the representations
and warranties made pursuant to Section 3.7 of this Agreement are true, its
Contracts are currently and at the time of issuance will be treated as annuity
contracts or life insurance contracts under applicable provisions of the
Internal Revenue Code of 1986, as amended (the "Code"). The Company shall make
every effort to maintain such treatment and shall notify Defined Asset Funds
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.
3.5 ▇▇▇▇▇▇▇ ▇▇▇▇▇ represents and warrants that the Fund, prior to any
issuance of sale of Units, will be duly organized and validly existing as a
trust in accordance with the laws of the State of New York.
3.6 ▇▇▇▇▇▇▇ ▇▇▇▇▇ represents and warrants that the Units offered and sold
pursuant to this Agreement will be registered under the 1933 Act and that the
Fund will be a part of a unit investment trust registered under the 1940 Act.
Defined Asset Funds shall use its best efforts to amend the Fund's registration
statement under the 1933 Act and the 1940 Act from time to time as required in
order to effect the continuous offering of Units of the Fund and annual
successor series. The Company shall consult with Defined Asset Funds
concerning any requirements to register Units for sale to the Accounts in any
state. Defined Asset Funds will advise the Company promptly of any action of
the SEC or any state
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authority of which it may be advised, affecting registration or qualification of
the Units or the right to offer Units for sale. The Company agrees that it will
not solicit any orders for the purchase of Units if and so long as effectiveness
of the Fund's registration statement or any necessary amendments thereto shall
be suspended under any of the provisions of the 1933 Act, or if and so long as a
current prospectus, as required by Section 5(b) of such Act, is not on file with
the SEC, or redemption rights of shareholders have been suspended under any of
the circumstances specified in Section 22(e) of the 1940 Act, provided nothing
in this Section 3.6 shall affect the Fund's obligations to redeem its Units in
accordance with the provisions of the Indenture and the Fund's prospectus, and
PROVIDED FURTHER that the Company may continue to act under this Agreement until
it has been notified in writing (which may include written notice by facsimile)
of the occurrence of any of these events.
3.7 ▇▇▇▇▇▇▇ ▇▇▇▇▇ represents and warrants that the Fund's investments will
comply with the diversification requirements set forth in section 817(h) of the
Code and regulations thereunder and any successor provisions of the Code or
regulations thereunder.
3.8 ▇▇▇▇▇▇▇ ▇▇▇▇▇ represents that each Fund prospectus, as of their
respective effective dates, will contain all statements and information which
are required to be stated therein by the 1933 Act, will in all respects conform
to the requirements thereof and will not include any untrue statement of a
material fact or omit to state any material fact required to be stated therein,
or necessary to make the statements therein not misleading; provided, however,
that this representation shall not apply to information contained in or omitted
from a Fund prospectus in reliance upon, and in conformity with, written
information furnished by the Company specifically for use in the preparation
thereof. Defined Asset Funds shall promptly advise the Company of the happening
of any event which makes untrue any material statement in a Fund's registration
statement or prospectus or which requires the making of any change in either of
those documents in order to make the statements therein not misleading.
ARTICLE 4
INDEMNIFICATION
4.1 The Company agrees to indemnify and hold harmless the Fund and ▇▇▇▇▇▇▇
▇▇▇▇▇ and each of its directors, officers, employees and agents and each person,
if any, who controls ▇▇▇▇▇▇▇ ▇▇▇▇▇ within the meaning of Section 15 of the 1933
Act (collectively, "Indemnified Parties") against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Company) or expenses (including reasonable costs of investigating
or defending any alleged loss, claim, damage, liability or expense and
reasonable
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counsel fees incurred in connection therewith [collectively, "Losses"] to which
any such Indemnified Party 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 alleged
untrue statements of any material fact contained in a registration
statement, prospectus or statement of additional information for the
Contracts or in any sales literature or other promotional material
generated or approved by the Company on behalf of the Contracts or Accounts
(or any amendment or supplement to any of the foregoing) (collectively,
"Company Documents"), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading,
provided that this indemnity shall not apply as to any Indemnified Party if
such statement was made in reliance upon and was accurately derived from
written information furnished to the Company by or on behalf of the Fund
for use in Company Documents or otherwise for use in connection with the
sale of the Contracts or Units; 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 4.2(a) below) or wrongful conduct of
the Company or persons under its control, with respect to the sale or
acquisition of the Contracts or Units; or
(c) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Fund Documents or the
omission or alleged 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 Defined Asset
Funds or its designee 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
arise out of or result from any other material breach of this Agreement by
the Company.
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4.2 ▇▇▇▇▇▇▇ ▇▇▇▇▇ agrees 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 (also
collectively, the "Indemnified Parties") against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇) or expenses (including the reasonable costs of
investigating or defending any alleged loss, claim, damage, liability or expense
and reasonable legal fees incurred in connection therewith [collectively,
"Losses"] to which such 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 or alleged
untrue statements of any material fact contained in the registration
statement or prospectus for the Fund (or any amendment or supplement
thereto) or in sales literature with respect to the Fund generated or
approved by Defined Asset Funds (but regarding sales literature so
approved, solely with respect to statements regarding the Fund)
(collectively, "Fund Documents") or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to any
Indemnified Party if such statement or omission or such alleged statement
or omission was made in reliance upon and was accurately derived from
written information furnished to Defined Asset Funds 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 Units; or
(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 Defined Asset Funds or persons
under its control, with respect to the sale or acquisition of the Contracts
or Units; or
(c) arise out of or result from any untrue statement or alleged
untrue statement of a material fact contained in Company Documents or the
omission or alleged 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 concerning the Fund furnished
to the Company by or on behalf of Defined Asset Funds; or
(d) arise out of or result from any failure by ▇▇▇▇▇▇▇ ▇▇▇▇▇ or
Defined Asset Funds to provide the services or furnish the materials
required under the terms of this Agreement; or
9
(e) arise out of or result from any material breach of any
representation and/or warranty made by ▇▇▇▇▇▇▇ ▇▇▇▇▇ in this Agreement or
arise out of or result from any other material breach of this Agreement by
▇▇▇▇▇▇▇ ▇▇▇▇▇ or Defined Asset Funds.
4.3 Neither the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ nor Defined Asset Funds shall be
liable under the indemnification provisions of Section 4.1 or 4.2, 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 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.
4.4 Neither the Company, ▇▇▇▇▇▇▇ ▇▇▇▇▇ nor Defined Asset Funds shall be
liable under the indemnification provisions of Section 4.1 or 4.2, as
applicable, with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified the party against whom
indemnification is sought 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 that it may have to the Indemnified Party in the
absence of Sections 4.1 and 4.2.
4.5 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 the 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
Indemnified Party independently in connection with the defense thereof other
than reasonable costs of investigation.
ARTICLE 5
TERMINATION
5.1 This Agreement may be terminated by either party for any reason by six
(6) months' advance written notice to the other party, and may be terminated
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by either party pursuant to Sections 5.2 through 5.7 below upon written notice
to the other party.
5.2 This Agreement may be terminated at the option ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting
through Defined Asset Funds, upon institution of formal proceedings against the
Company by the NASD, the SEC, the insurance department 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, the
administration of the Contracts or the purchase of the Units, or an expected or
anticipated ruling, judgment or outcome that would, in Defined Asset Funds'
reasonable judgment, materially impair the Company's ability to meet and perform
the Company's obligations and duties hereunder.
5.3 This Agreement may be terminated at the option of ▇▇▇▇▇▇▇ ▇▇▇▇▇,
acting through Defined Asset Funds if the Contracts cease to qualify as annuity
contracts under the Code, or if Defined Asset Funds reasonably believes that the
Contracts may fail to so qualify.
5.4 This Agreement may be terminated by ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting through
Defined Asset Funds, at its option, if it shall determine, in its sole judgment
exercised in good faith, that either (1) the Company shall have suffered a
materially adverse change in its business or financial condition or (2) the
Company shall have been the subject of material adverse publicity that is likely
to have a material adverse impact upon the business and operations of either the
Fund or Defined Asset Funds.
5.5 This Agreement may be terminated at the option of the Company upon
institution of formal proceedings against the Fund, Defined Asset Funds or
▇▇▇▇▇▇▇ ▇▇▇▇▇ by the NASD, the SEC, the insurance department of any state, or
any other regulatory body regarding ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ or Defined Asset Funds'
duties under this Agreement or related to the sale of Units or the operation of
the Fund, or an expected or anticipated ruling, judgment or outcome that would,
in the Company's reasonable judgment, materially impair ▇▇▇▇▇▇▇ ▇▇▇▇▇'▇ or
Defined Asset Funds' ability to meet and perform its obligations hereunder.
5.6 This Agreement may be terminated at the option of the Company if the
Fund ceases to comply with Section 817(h) of the Code and the rules and
regulations thereunder, or if the Company reasonably believes that the Fund may
fail to so comply.
5.7 This Agreement may be terminated by the Company, at its option, if the
Company shall determine, in its sole judgment exercised in good faith, that
either (1) ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Fund shall have suffered a material adverse
change in its business or financial condition or (2) ▇▇▇▇▇▇▇ ▇▇▇▇▇ or the Fund
shall
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have been the subject of material adverse publicity that is likely to have a
material adverse impact upon the business and operations of the Company.
5.8 Nothwithstanding the termination of this Agreement pursuant to this
Article 5, the Fund, at the option of ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting through Defined
Asset Funds, may continue to make available additional Units for so long after
the termination of this Agreement as ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting through Defined Asset
Funds, desires pursuant to the terms and conditions of this Agreement as
provided in Section 5.9 below, for all Contracts in effect on the effective date
of termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, if ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting
through Defined Asset Funds, so elects to make additional Units available, the
owners of the Existing Contracts or the Company, whichever shall have legal
authority to do so, shall be permitted to reallocate investments in the Fund,
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts.
5.9 In the event of a termination of this Agreement pursuant to this
Article 5, ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting through Defined Asset Funds, shall promptly
notify the Company whether the Fund will continue to make Units available after
such termination; if the Fund will continue to make Units so available, the
provisions of this Agreement shall remain in effect except for Section 5.1
hereof and thereafter either ▇▇▇▇▇▇▇ ▇▇▇▇▇, acting through Defined Asset Funds,
or the Company may terminate the Agreement, as so continued pursuant to this
Section 5.9, upon prior written notice to the other party, such notice to be for
a period that is reasonable under the circumstances but, if given by Defined
Asset Funds, need not be greater than six months.
5.10 The provisions of Article 4 shall survive the termination of this
Agreement, and the provisions of Sections 2.4 and 2.10 shall survive the
termination of this Agreement so long as Units are held on behalf of Contract
owners in accordance with Section 5.8.
ARTICLE 6
NOTICES
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Fund, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or Defined Asset Funds:
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▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
Defined Asset Funds
800 Scudders Mill Road, Section F
Plainsboro, N.J. 08536
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
If to the Company:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Insurance Group, Inc.
Administrative Offices
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
ARTICLE 7
MISCELLANEOUS
7.1 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.
7.2 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York,
shall 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 has granted or may grant and the
terms thereof shall be interpreted and construed in accordance therewith.
7.3 Each party shall cooperate with each other party and all appropriate
governmental authorities (including, without limitation, the SEC, the NASD and
state insurance regulators) and shall permit such authorities reasonable access
to its books and records in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
7.4 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, which the parties hereto are entitled to under state and
federal laws.
7.5 The parties to this Agreement acknowledge and agree that, for a period
of one year from the date of this Agreement, ▇▇▇▇▇▇▇ ▇▇▇▇▇ shall not create or
offer any unit investment trust applying the Select Ten Strategy to the Dow
▇▇▇▇▇ Industrial Average to fund any insurance company separate account other
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than one sponsored by an insurance company controlled by ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
Inc., and the Company shall not offer any allocation option for a separate
account to be funded by investing in a unit investment trust applying that
Strategy other than a trust sponsored by ▇▇▇▇▇▇▇ ▇▇▇▇▇.
7.6 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written consent of the other party.
7.7 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 hereto.
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Agreement as of the date and year first above written.
ML LIFE INSURANCE COMPANY OF NEW YORK
By
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By