EXECUTION COPY
SELLING AGREEMENT
This Selling Agreement (this "Agreement"), effective as of the date set forth
below, is made by and among MetLife Investors Insurance Company, MetLife
Investors Insurance Company of California, First MetLife Investors Insurance
Company (collectively, the "Company") MetLife Investors Distribution Company
(the "Distributor"), UBS PaineWebber, Inc., ("UBS PaineWebber") and PWJC
Insurance Sales, Inc., on behalf of itself and the other licensed insurance
subsidiaries of UBS PaineWebber listed on Schedule A, attached hereto
(collectively, the "UBS Agencies"). (Each, of the Company, the Distributor, UBS
PaineWebber and the UBS Agencies shall be referred to as a "Party" and,
collectively, shall be referred to as the "Parties").
WHEREAS, the Company is an insurance company that underwrites certain life
insurance policies and annuity contracts;
WHEREAS, the Company has, under a separate agreement that was entered into
prior to this Agreement, appointed the Distributor as principal underwriter of
certain life insurance policies and annuity contracts that are registered under
the Securities Act of 1933, as amended, which are listed on Schedule B, as may
be modified from time to time upon agreement of the Parties (the "Registered
Contracts");
WHEREAS, the Company offers certain insurance policies and annuity contracts
that are not required to be registered under the Securities Act of 1933, which
are listed in Schedule C, as may be modified from time to time upon agreement of
the Company and UBS PaineWebber (the "Unregistered Contracts" and together with
the Registered Contracts, the "Contracts");
WHEREAS, the Company and/or the Distributor, as the case may be, wish to
distribute the Contracts to current and future holders of UBS PaineWebber
investment accounts (or in the case of UBS PaineWebber trusteed or custodial
account, the individual or individuals for whom UBS PaineWebber or an affiliate
of UBS PaineWebber serves as custodian or trustee, including but not limited to
certain Uniform Transfer to Minors Act Accounts and Individual Retirement
Accounts) ("Accountholders");
WHEREAS, UBS PaineWebber is a registered broker dealer under the Securities
Exchange Act of 1934 and is in good standing with the National Association of
Securities Dealers, Inc. ("NASD");
WHEREAS, The Metropolitan Life Insurance Company ("MetLife") has entered into an
agreement with General American Life Insurance Company ("GenAm") whereby it has
agreed to maintain the capital and surplus of GenAm at a
particular level, a copy of which is attached hereto as Schedule D (the "MetLife
Agreement");
WHEREAS, GenAm has entered into an agreement with the Company whereby it has
agreed to guarantee certain obligations of the Company, a copy of which is
attached hereto as Schedule E (the "GenAm Agreement" and, together with the
MetLife Agreement, the "Net Worth Agreements"); and
WHEREAS, UBS PaineWebber and the UBS Agencies have entered into this Agreement
based upon representations by the Company regarding the Net Worth Agreements.
NOW THEREFORE, in consideration of the representations, warranties, covenants
and agreements set forth herein, the Parties agree as follows:
1. Solicitation and Appointment
(a) Distributor, under the authority of the Company, hereby authorizes UBS
PaineWebber to have its Financial Advisors ("FAs") solicit
applications for the Registered Contracts, provided such FAs 1) are
duly registered representatives of UBS PaineWebber, 2) in good
standing with accreditation to sell the Registered Products as
required by the NASD, and 3) properly licensed or certified by the
appropriate state insurance department or other state agency that may
require licensing or certification (the FAs that meet these
requirements shall be referred to as the "Agents").
(b) Company hereby authorizes the Agents to sell the Unregistered
Contracts.
(c) The Agents shall write insurance products through the UBS Agencies
and, for certain products, in conjunction with independent general
agents who have separate agreements with both 1) the Company and/or
Distributor and 2) the UBS PaineWebber and/or UBS Agencies, where
applicable (each such independent agency shall be a "Life Network
Agency"). The Parties hereby agree and acknowledge that UBS
PaineWebber and the UBS Agencies shall not be responsible for, nor
shall it indemnify the Company and/or the Distributor, for any action
performed by a Life Network Agency.
(d) Solicitations to Accountholders shall only be performed by an Agent
that is recommended by a UBS Agency or a Life Network Agency and
appointed by the Company to write the type of Contract being
solicited. The Company may refuse to appoint or terminate the
appointment of a properly licensed Agent in its discretion, provided
that it shall consult with UBS PaineWebber prior to any such action.
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(e) An Agent may only solicit a Contract in a state where such Contract is
authorized to be issued. The Company shall provide a list to UBS
PaineWebber of the states in which each Contract is authorized to be
issued (the "Authorized States"). The Company shall promptly inform
UBS PaineWebber if the authority to issue a Contract in a state has
changed.
(f) UBS PaineWebber and the UBS Agencies, where applicable, shall have
sole responsibility for training and supervision of the Agents and for
assuring that Agents are properly licensed and in compliance with
applicable federal, state and local laws and regulations and the rules
of the NASD. UBS PaineWebber shall be responsible for determining the
suitability of recommendations of the Contracts made by the Agents as
required by applicable Federal or state law and the rules of the NASD
as they apply to the Contracts.
(g) This Agreement only covers and the Agents may only solicit the
Contracts. If the Company and/or the Distributor desires to amend
Schedules B and/or C, which lists the Contracts, to add a new
insurance policy or annuity contract, the Company shall notify UBS
PaineWebber in writing of its desire at least forty five (45) days in
advance of the offering of the new product. The new insurance policy
or annuity contract shall only be added if approved, in writing, by
UBS PaineWebber. The Company shall not market or introduce such new
insurance policy or annuity contract to the Agents until such time
that 1)the product is approved by UBS PaineWebber and Schedule B or C
is amended to add the new policy or contract and 2) UBS PaineWebber
notifies the Company that its distribution system is ready for the new
policy or contract.
(h) If the Company and/or Distributor desires to temporarily or
permanently discontinue the offering of a Contract, the Company shall
notify UBS PaineWebber, in writing, at least thirty (30) days prior to
the effective date of such discontinuance, provided, however, that if
the discontinuance is required by law or regulatory action, the
Company and/or Distributor shall have the right to immediately
discontinue the offering of the Contract, if immediate discontinuance
is required by the law or regulatory action, and shall promptly notify
UBS PaineWebber.
(i) The Parties agree that UBS PaineWebber may offer the Contracts to
certain accountholders of its affiliates and subsidiaries, in which
case such accountholders shall also become Accountholders, provided
that UBS PaineWebber and the UBS Agencies shall be responsible for and
obligated by the actions of any such affiliates or subsidiaries as if
they were the actions of UBS PaineWebber, and such offers shall only
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be made in accordance with the terms and conditions of this Agreement.
(j) UBS PaineWebber represents and warrants that it is a broker-dealer
registered with the SEC under the 1934 Act, and is a member of the
NASD in good standing. UBS PaineWebber shall, at all times when
performing its functions and fulfillinq its obligations under this
Agreement, be duly registered as a broker-dealer under the 1934 Act
and, as required by applicable law, in each state or other
jurisdiction in which UBS PaineWebber intends to perform its functions
and fulfill its obligations hereunder, and be a member in good
standing of the NASD.
(k) UBS PaineWebber represents and warrants that each of the UBS Agencies
is an appropriately licensed insurance agency where required to
solicit applications for the Contracts. Each UBS Agency shall, at all
times when performing its functions and fulfilling its obligations
under this Agreement, be duly licensed to offer or sell the Contracts
in each state or other jurisdiction in which such UBS Agency intends
to perform its functions and fulfill its obligations hereunder.
(L) [This suggested paragraph is not necessary since we already
established that UBSPW is responsible for suitability]
2. Relationship of the Parties
UBS PaineWebber shall act as an independent contractor and nothing herein shall
create or be deemed to create an employer/employee relationship among the
Company, the Distributor and UBS PaineWebber, its agents, including the Agents,
representatives or employees.
3. Non-Exclusivity of Agreement
a) Neither this Agreement nor the performance of the services by the
Parties hereunder shall be considered to constitute an exclusive
arrangement, or to create a partnership, association or joint venture
between the Parties.
b) No Party to this Agreement shall be, act as, or represent itself as,
the agent or representative of another Party, nor shall any Party have
the right or authority to assume, create or incur any liability or any
obligation of any kind, express or implied, against or in the name of,
or on behalf of, any other Party without the prior written consent of
said Party, provided, however, that an Agent may represent that he or
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she is acting as an insurance agent for the Company.
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c) This Agreement is not intended to, and shall not, create any rights
against any Party hereto by any third party solely on account of this
Agreement.
d) No Party hereto shall use the name of any other Party in any manner
without the other Party's prior written consent, except as (i)
required by applicable federal or state law, or regulation or (ii) in
the normal course of representing the Contracts to Accountholders.
4. Limitations
UBS PaineWebber and the UBS Agencies, on their own behalf and on behalf of the
Agents, agrees not to:
a) accept risks, pass upon insurability or bind the Distributor and/or
Company in any way;
b) misrepresent the Contracts or make or modify the Contracts on behalf
of the Company or waive any of the Company's rights or requirements
thereunder;
c) endorse, cash or deposit any check or draft made payable to the
Company;
d) open any bank account or trust account on behalf of, for the benefit
of, or containing the name of the Company;
e) directly cause or endeavor to cause any agents of the Company (other
than Agents) to terminate or alter their association with the Company;
or
f) give any information or make any representations or statements,
written or oral, concerning the Contracts, the variable accounts or
the Company other than information or representation contained in the
Contracts, Contract prospectuses, the prospectuses of the underlying
mutual funds, statements of additional information and Contract
registration statements, or in reports or proxy statements therefore,
or in the Sales and Marketing Materials (as defined in Section 8).
5. The Contracts
The Company and the Distributor represent and warrant that:
a) the Registered Contracts that are variable insurance policies or
variable annuities (the "Variable Contracts") are issued by separate
accounts registered with the Securities and Exchange Commission
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("SEC") as unit investment trusts under the Investment Company Act of
1940, as amended;
b) the Registered Contracts are registered with the SEC as securities
under the Securities Act of 1933, as amended;
c) the Unregistered Contracts, and the investment options thereunder, if
any, do not require registration with the SEC;
d) the Contracts have been approved by the appropriate state regulatory
officials for use in the Authorized States;
e) any change in the registration, registration status or approval of a
Contract by any jurisdiction, whether it be the SEC a state insurance
department or any other administrative or regulatory agency, division
or department, shall be communicated to UBS PaineWebber as soon as
practical; and
f) on the effective date of this Agreement, the Net Worth Agreements are
in full force and effect and have not been modified or amended in any
way that would affect the obligations of MetLife and/or GenAm under
said agreements.
6. Contract Delivery & Servicing
The Company and the Distributor agree:
a) All Contracts offered by UBS PaineWebber and issued by the Company are
to be delivered by the Company to the Accountholder with a copy of the
Contract or specifications page to UBS PaineWebber unless otherwise
agreed to by the Parties.
b) For the Registered Contracts, or any other Contract that may require a
prospectus, the Company shall deliver, with the Contract, a current
prospectus. [We do require that the FA deliver a prospectus at time of
sale but as a matter of caution we also require the vendors to send a
prospectus so, even if the insured later states that his FA did not
provide a prospectus he did get one from the company and had time to
review it before the end of the free-look period]
c) With the delivery of the prospectus or the policy or contract, in the
case of Contracts not requiring a prospectus, the Company shall
provide to the Accountholder any information required by UBS
PaineWebber which may include material designed to assist the
Accountholder in understanding the Contract purchased, provided,
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however, that if the information specifically refers to the Company or
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the Company's products, the Company must approve such material prior
to it being provided to the Accountholder and such approval shall
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not be unreasonably withheld. Any such information that is not
approved by the Company shall be submitted to the Company for its
review at least thirty (30) days prior to the date on which the
Company must commence delivery hereunder.
d) The Company shall not process any application or transmittal for a
Contract unless a prior or contemporaneous transmittal is received
from UBS PaineWebber indicating that the transaction has been entered
into UBS PaineWebber's books and records. The Parties acknowledge that
if the Company does not receive the required transmittal from UBS
PaineWebber, the application must be promptly returned as unaccepted
by the Company.
e) The Company shall follow the administrative procedures set forth by
UBS PaineWebber in Schedule F and any additional procedures as UBS
PaineWebber and the Company may agree to in the future.
f) To notify UBS PaineWebber if it receives a renewal or additional
payment for application to an existing Contract directly from an
Accountholder.
7. Prompt Transmittal
UBS PaineWebber agrees to promptly transmit to the Company applications
solicited by the Agents [if we take too long and it violates any law or rule, we
provide indemnification] and initial premiums received for the Company. All
initial premium amounts, and other amounts being sent from an Accountholder's
UBS PaineWebber account shall be 1) net of commissions as set forth in paragraph
13 of this Agreement due to UBS PaineWebber, the UBS Agencies or the Agent, as
the case may be, and 2) sent via a National Securities Clearing Corporation
("NSCC") data feed in a form and in such manner within NSCC procedures as
specified by UBS PaineWebber, provided, however, that if in the future UBS
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PaineWebber shall decide to facilitate payments other than via NSCC, the Company
shall make commercially reasonable accommodations to receive payments in such
alternative format. Each initial premium shall be preceded or accompanied by a
properly completed application for a Contract, which shall include applications
submitted electronically to the Company in such manner and format as the Company
and UBS PaineWebber shall agree. Checks in payment of premiums or outstanding
loans shall be drawn to the order of the Company.
8. Marketing Materials
a) The Company and/or the Distributor shall provide to UBS PaineWebber,
"Sales and Marketing Materials," which may include, broker-dealer
kits; brochures; newsletters; advertisements; documents
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regarding sales promotions or contests; questions and answer sheets;
scripts; speech outlines or other public presentations; prospecting or
solicitation letters; slide presentations; audiotapes and videotapes;
columns prepared for outside publications; reprints or excerpts from
published materials; and any documents or items adapted from the above
materials (regardless of such materials or for internal use or public
use).
b) All Sales and Marketing Material provided by the Company or
Distributor to UBS PaineWebber shall 1) be up-to-date as of the time
they are distributed or made available by the Company and/or
Distributor to UBS PaineWebber personnel; 2) have been reviewed by
the appropriate personnel of the Company and have been determined, in
the opinion of the Company, to be accurate and in compliance with all
applicable laws, rules and regulations and 3) approved by UBS
PaineWebber in accordance with its guidelines for advertising.
c) The Company represents and warrants that all registration statements,
offering documents and Sales and Marketing Materials that the Company
and/or the Distributor provides to UBS PaineWebber (collectively,
"Written Material") for use will be properly filed and cleared and/or
approved by all necessary regulatory bodies including, as applicable,
but not limited NASD, state insurance and securities regulatory
authorities and the Secuiities and Exchange Commission ("SEC") prior
to distribution to UBS PaineWebber for use.
d) Any materials that are intended for "internal" or "agent use only"
shall be clearly designated "Internal Use Only", or shall contain
similar language.
e) The Company and/or the Distributor shall submit all Sales and
Marketing Material to UBS PaineWebber, including copies of any
approval or clearance letters or acknowledgement received from
regulatory authorities where required. UBS PaineWebber shall have the
right, but not the obligation, to review the Sales and Marketing
Materials and request reasonable changes to such materials. The
Company and/or the Distributor, as the case may be, shall make such
requested reasonable changes unless the changes would violate any
applicable laws, rules and regulations. The review and requested
modification by UBS PaineWebber shall not be deemed to constitute a
waiver or modification of the Company's obligation to ensure that the
Sales and Marketing Materials comply with all applicable laws, rules
and regulations and accurately represent the Contract.
f) The cost of the Written Material produced by the Company or the
Distributor shall be borne by the Company or the Distributor, as the
case may be.
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g) The Company and the Distributor acknowledge that the distribution to
UBS PaineWebber of Written Material that are not in compliance with
the above statements is strictly prohibited, and the Company and the
Distributor further acknowledge that UBS PaineWebber is relying on
their fulfillment of the obligations and agreements hereunder.
Further, the Company and the Distributor will take all reasonable
actions to prevent the distribution to UBS PaineWebber of any such
materials that are inconsistent with these representations.
h) UBS PaineWebber shall neither use nor authorize for use, any
promotional, sales or advertising material it prepares for external
use that relates to the Contract or the Company without prior written
approval of the Company or Distributor.
9. Replacement Activity
a) The Company shall implement, and the UBS Agencies shall comply with,
practices and procedures as may be required by applicable laws,
regulations or rules to monitor Agent Contract replacement activity.
Such monitoring shall include, but not be limited to, information
identifying patterns of replacement, high lapse rates, Contract
surrenders, etc. The Company's monitoring process shall not be less
than that required by applicable law, regulation or rule.
b) In the event that the Company identifies inappropriate or improper
replacement activity, the Company agrees to promptly notify UBS
PaineWebber and cooperate with UBS PaineWebber in any investigation it
may conduct.
c) The Company represents and warrants that its procedures comply with
all relevant laws, rules and regulations related to the replacement of
life insurance policies and/or annuity contracts.
d) The Company shall provide the UBS Agencies and the Agents with the
forms required to be completed by such Agents to comply with the state
laws, rules and regulations regarding the replacement of life
insurance policies and/or annuity contracts. The Company shall also
provide commercially reasonable assistance to the Agents in the
completion of said forms.
e) The Company shall maintain procedures for the proper transfer of funds
from an insurance policy or annuity contract to a Contract in
compliance with the Internal Revenue Service requirements for tax-
free exchanges.
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10. Records
a) Each Party shall maintain its own records with respect to Contracts.
Each Party, at its own expense shall have the right to audit the
records and procedures of any other Party at any time upon three
business day notice. [I think three is a reasonable compromise - this
provision and the timeframe would only come into play if there was a
problem and a week is too long]
b) The Company or the Distributor shall not offer any product to a person
they know to be an Accountholder without the prior written
authorization of UBS PaineWebber, whether such offering is direct
through an affiliated organization.
c) On a daily basis, the Company shall provide UBS PaineWebber with the
positions of the Accountholders via a NSCC data feed in a form and in
such manner within NSCC procedures as specified by UBS PaineWebber,
provided, however, that if UBS PaineWebber shall in the future decide
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to facilitate the sending of information in a manner other than via
NSCC, the Company shall make commercially reasonable accommodations to
send the requested information in such alternative format.
d) The Company shall provide to UBS PaineWebber, in a reasonably prompt
time period, reasonably requested and obtainable information
pertaining to Contracts issued to Accountholders, which shall include,
but not be limited to, reports of beneficiaries listed for such
Contracts, or certain classes or sub-classes of Contracts. Such
information shall be provided in a format and in a form, including
electronically, as may be reasonably requested by UBS PaineWebber in
light of the systems maintained by the Company.
11. Accountholder Complaints and Compliance
a) UBS PaineWebber shall promptly notify the Company and the Distributor,
in the case of a Registered Contract, in writing of correspondence
received by it or an Agent from insurance regulatory or other
governmental authorities, including without limitation the NASD,
concerning the Contracts or their offer or sale and cooperate fully
with the Company in making responses to those authorities.
b) UBS PaineWebber shall promptly transmit to the Company and the
Distributor, in the case of a Registered Contract, any paper served
upon UBS PaineWebber, Agents, UBS PaineWebber's directors, officers or
employees in connection with any legal proceedings by or
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against the Company concerning or relating to a Contract offered or
sold under this Agreement.
c) The Parties agree to keep informed of and shall comply with all
applicable federal, state or local regulations and laws now or
hereafter in force while conducting business hereunder.
d) The Company and/or the Distributor shall promptly notify UBS
PaineWebber in writing of all correspondence received from insurance
regulatory or other governmental authorities concerning or relating to
the Contracts or their offer or sale and cooperate fully with UBS
PaineWebber in making responses to those authorities.
e) The Company and/or the Distributor shall promptly transmit to UBS
PaineWebber any paper served upon the Company, the Distributor, the
Company's directors, officers or employees or the Distributor's
directors, officers or employees in connection with any legal
proceedings by or against UBS PaineWebber or any legal proceeding
concerning or relating to a Contract issued to an Accountholder.
12. Confidential Information & Privacy
a) Each Party shall safeguard and hold confidential from disclosure to
unauthorized parties all "Confidential Information" of any other
Party, which term "Confidential Information" shall mean any and all
information which is in any way connected with, derived from or
related to the business of such Party, including without limitation,
any business and financial records, any retail or institutional
customer information, computer programs, technical data, investment
information, lists, compilations, compositions, programs, plans,
devices, descriptions, drawings, methods, techniques, processes,
designs, theories concepts or ideas, and any information relating to
the pricing or marketing policies, suppliers or customers of a Party.
b) Confidential Information shall not include information to the extent
such information is (i) already known to the receiving Party free of
any restriction at the time obtained, including information in the
public domain; (ii) subsequently learned from an independent third
party free of restriction; or (iii) independently developed by a Party
without reference to information which is confidential.
c) For purposes of this Section, only officers, directors, and employees
of the Company, any affiliate of the Company providing administrative
services (related to the Contracts) to the Company, the Distributor,
the UBS Agencies and UBS PaineWebber, including their respective
accountants, auditors, and attorneys, shall be authorized parties,
provided those individuals have a "need to know" the Confidential
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Information that is consistent with their respective positions and
legal obligations and responsibilities. Before disclosing any
Confidential Information, an authorized individual will be advised
that such information must be kept confidential.
d) In the event that one Party (the "Disclosing Party") is requested or
required (by oral questions, interrogatories, requests for information
or documents in legal proceedings, subpoena, civil investigative
demand or other similar process) to disclose any of the Confidential
Information to an unauthorized party, the Disclosing Party shall
provide the other Parties (the "Non-Disclosing Parties") with prompt
notice of any such request or requirement so that the Non-Disclosing
Parties may seek a protective order or other appropriate remedy and/or
waive compliance with the provisions of this Agreement. If, in the
absence of a protective order or other remedy or the receipt of a
waiver by the Non-Disclosing Parties, the Disclosing Party is
nonetheless, in the opinion of counsel, required to disclose
Confidential Information, the Disclosing Party may, without liability
hereunder, disclose only that portion of the Confidential Information
which such counsel advises the Disclosing Party is required to be
disclosed, provided that the Disclosing Party attempt to preserve the
confidentiality of the Confidential Information, including, without
limitation, by cooperating with the Non-Disclosing Parties, at the
Non-Disclosing Partys' expense, to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be
accorded the Confidential Information.
e) Each Party further acknowledges and agrees that, in the event of a
breach by it of the provisions of this Section 12, one or more other
Parties will suffer irreparable harm and damages and, accordingly,
shall be entitled to seek injunctive or other equitable relief in a
court of competent jurisdiction. The provisions of this Section shall
survive any termination of this Agreement.
f) Notwithstanding the provisions of this Section 12 to the contrary, the
Parties hereby acknowledge that they are subject to privacy
regulations under Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, 15 U.S.C.
Section 6801 et seq., pursuant to which regulations the Parties are
required to obtain certain undertakings from each other with regard to
the privacy, use and protection of nonpublic personal financial
information of Accountholders or prospective Accountholders or the
Company's insureds or prospective insureds. Therefore, notwithstanding
anything to the contrary contained in this Agreement and to the extent
that such is not otherwise provided in this Paragraph 12, the Parties
agree that: (1) they shall not disclose or use any Customer Data
received from another party except to the extent necessary to carry
out their obligations under this Agreement and for no other purpose,
(2) they shall not disclose Customer Data received from another Party
to any
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third party, including, without limitation, their respective third
party services providers except to the extent necessary to carry out
their obligations under this Agreement and then only with an agreement
in writing from the third party to use or disclose such Customer Date
only to the extent necessary to carry their respective obligations
under this Agreement and for no other purposes, (3) they shall
maintain, and require all third parties approved under subsection (2)
to maintain effective information security measures to protect
Customer Data from unauthorized disclosure or use, and (4) they shall
provide each other with general information regarding such security
measures upon reasonable request of the other Party and will promptly
provide the other Party with information regarding any failure of such
security measures or any security breach which affects the Customer
Data. For purposes of this paragraph 12(f), Customer Data means the
nonpublic personal information (as defined in 15 U.S.C. Section
6809(4)) of the Parties' customers or prospective customers or
insureds or prospective insureds received by the other Parties in
connection with the performance of its obligations under this
Agreement, including, but not limited to (i) an individual's name,
address, e-mail address, IP address, telephone number and/or social
security number, (ii) the fact that an individual has a relationship
with the another Party and their parents, affiliated or subsidiary
companies or (iii) an individual's account information.
g) Without limiting the generality of the foregoing, each Party
represents and warrants that it maintains privacy procedures and
policies in compliance with relevant laws, rules and regulations
("Privacy Policies"), and further represents and warrants that such
procedures shall be modified from time to time to comply with
modifications in applicable laws, rules and regulations.
h) Each Party agrees to comply with its own and the other Parties' then-
current Privacy Policies with respect to customer information of such
other Parties. Each Party agrees to provide the other Parties with a
copy of the most current Privacy Policies, or any changes thereto, at
the same time that such Privacy Policies or changes are disseminated
to the public.
i) Each Party covenants that it shall not sell, assign, transfer or make
available to any affiliated or unaffiliated third party entity or
person any information relating to any customer or account of the
other Parties, except: (i) as may be permitted by this Agreement and
allowed by law; (ii) as is reasonably necessary in the servicing,
administration or audit of such customer or customer's account; (iii)
as required by law; or (iv) as so consented to by a customer.
13. Compensation and Broker of Record
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a) Compensation based on the premium or account value shall be paid to
the appropriate UBS Agency or UBS PaineWebber, as the case may be,
unless the UBS Agency or UBS PaineWebber directs the Company or the
Distributor to pay the commission to another person or entity. The
amount of compensation shall be determined in accordance with the
table or tables contained in Schedule G. All commissions shall be paid
on a daily basis through an NSCC wire in a form and in such manner
within NSCC specifications as provided by UBS PaineWebber, provided,
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however, that if UBS PaineWebber shall decide in the future to receive
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commissions other than via NSCC, the Company shall make commercially
reasonable accommodations to pay commissions in such alternative
format. UBS PaineWebber and the UBS Agencies shall be solely
responsible and shall arrange for the payment of commissions to the
Agents as compensation for the sale of the Contracts.
b) The insurance agent or insurance broker of record on the files of the
Company and/or the Distributor shall be the Agent or the appropriate
UBS Agency if requested by UBS PaineWebber. The broker dealer of
record, if any, shall be UBS PaineWebber. If the Company or the
Distributor shall receive a request to change the aforementioned
agent, broker or broker dealer of record on its file, it shall notify
UBS PaineWebber of such request. The Company nor the Distributor,
including their employees or agents, shall not solicit or otherwise
encourage an Accountholder to change its broker or agent of record
designation.
c) Any commission paid on the sale of a Contract shall be reimbursed if
the Contract is returned, surrendered or not taken any time before the
later of (1) seven days from the issuance of the Contract; (2) the
date when the free-look period under the Contract is terminated; or
(3) the number of days required for the Contract to be in force for
commissions not to be refunded as indicated in Schedule G.
14. Notice Required to UBS PaineWebber
The Company and/or the Distributor shall provide notice to UBS PaineWebber
promptly upon the occurrence of any of the following events:
a) The Company is placed under administrative supervision or is deemed
insolvent by any governmental entity;
b) The Company receives a ratings downgrade or is placed on a ratings
watch by A.M. Best, ▇▇▇▇▇'▇, Standard & Poor's. Fitch, or any other
rating agency that now exists or which may exist in the future that
measures the claim's paying ability or credit worthiness of the
Company;
14
c) The Company or the Distributor receives notice of fine in the amount
of $100,000 or greater being levied by any regulatory authority that
results from, in whole or in part, the sale of the Contracts or other
life insurance policies or annuity contracts that are substantially
similar to the Contracts, whether the Company or the Distributor, as
the case may be, believes the fine is warranted or otherwise; and
d) The Company or the Distributor is put on notice of any class action
lawsuit or proceeding, or potential class action lawsuit or
proceeding, resulting from, in whole or in part, the sale or
administration of the Contracts or other life insurance policies or
annuity contracts that are substantially similar to the Contracts.
e) Either MetLife, GenAm or the Company provides notice under either of
the Net Worth Agreements of its desire to terminate such agreement
and/or seeks to have the insurance department or any other regulatory
authority approve the termination of either Net Worth Agreement. For
purposes of this paragraph, the agreement of MetLife, GenAm and/or the
Company to terminate either Net Worth Agreement shall be the same as
either party, unilaterally, terminating said Net Worth Agreement.
15. Indemnification
a) Indemnification by UBS PaineWebber
UBS PaineWebber hereby agrees to indemnify and hold harmless the
Company, the Distributor, their subsidiaries and affiliates and their
respective officers, directors and employees (collectively,
"Indemnified Persons") against any and all losses, claims, damages,
liabilities or expenses, (including, the reasonable costs of counsel
and investigation) to which any Indemnified Person may become subject,
insofar as any such loss, claim, damage, liability or expense (or
action with respect thereto) arises out of or is based upon:
(i) any negligent, fraudulent or intentional acts, omissions or
errors of the Agents, the UBS Agencies or UBS PaineWebber in
connection with the or related to the Contracts, including their
offer or sale;
(ii) the willful misconduct or negligence of UBS PaineWebber, the UBS
Agencies or the Agents in the performance of, or failure to
perform, their obligations under this Agreement; or
(iii) a breach or violation by UBS PaineWebber or the UBS Agencies of
the representations, warranties or covenants made by UBS
PaineWebber and/or the UBS Agencies in this Agreement.
15
b) Indemnification by the Company
The Company hereby agrees to indemnify and hold harmless UBS
PaineWebber, the Agents, their subsidiaries and affiliates and their
respective officers, directors and employees (collectively,
"Indemnified Persons") against any and all losses, claims, damages,
liabilities or expenses (including the reasonable costs of counsel and
investigation) to which any Indemnified Person may become subject,
insofar as any such loss, claim, damage, liability or expense (or
action with respect thereto) arises out of or is based upon;
(i) any untrue statement of a material fact or omission to state a
material fact required to be stated or necessary to make the
statements therein not misleading in any Written Material that
the Company and/or the Distributor provides to UBS PaineWebber,
or any Sales and Marketing Material produced or modified by UBS
PaineWebber for which it has obtained the Company's and/or the
Distributor's consent:
(ii) any negligent, fraudulent or intentional acts, omissions or
errors by the Company and/or the Distributor in connection with
or related to the Contracts, including their offer or sale;
(iii) the willful misconduct or negligence of the Company and/or the
Distributor in the performance of, or failure to perform, its
obligations under this Agreement; or
(iv) a breach or violation by the Company and/or the Distributor of
the representations, warranties or covenants made by the Company
and/or the Distributor in this Agreement.
c) After receipt by a Party entitled to indemnification of notice of the
commencement of any action, if a claim in respect thereof is to be
made against any person obligated to provide indemnification, such
indemnified Party will notify the indemnifying Party in writing of the
commencement thereof as soon as practicable thereafter, and the
omission to so notify the indemnifying Party will not relieve it from
any liability, except to the extent that the omission results in a
failure of actual notice to the indemnifying Party and such
indemnifying Party is damaged solely as a result of the failure to
give such notice.
16. Money Laundering, Foreign Assets Control
The Parties agree to comply with all applicable anti-money laundering laws,
regulations, rules and government guidance, including the reporting,
16
recordkeeping and compliance requirements of the Bank Secrecy Act ("BSA"), as
amended by the International Money Laundering Abatement and Financial
Anti-Terrorism Act of 2002, Title III of the USA Patriot Act ("the Act"), its
implementing regulations, and related SEC and NASD rules. These requirements
include requirements to identify and report currency transactions and suspicious
activity, to verify customer identity, to conduct customer due diligence, and to
implement anti-money laundering compliance programs. Each Party represents to
the other Parties that, to the extent required by the Act, it will establish and
maintain a comprehensive anti-money laundering compliance program.
The Parties further agree to comply with the economic sanctions programs
adminstered by the U.S. Treasury Department's Office of Financial Assets Control
("OFAC") and, to the extent required by such programs, establish and maintain a
comprehensive compliance program which includes, among other things, procedures
for checking customer names and wire transfers against OFAC lists.
The Parties agree to promptly take whatever action is required by law,
regulations, rule or its internal policies whenever it discovers questionable
activity or potential indications of suspicious activity or OFAC matches are
detected. To the extent requested by a Party discovering questionable activity
or potential indications of suspicious activity involving the owner or
beneficial owner of a Contract, the other Parties, to the extent allowed by law,
shall assist the requesting Party in the investigation of such activity.
17. Dispute/Dispute Resolution
Each Party agrees to cooperate fully with each other in the resolution of all
matters arising out of the business of this Agreement. In the event of a dispute
with respect to this Agreement that the Parties are unable to resolve
themselves, such dispute will be settled by arbitration before arbitrators
sitting in the Borough of Manhattan, New York, New York in accordance with the
then existing NASD Code of Arbitration Procedures ("NASD Code"). The arbitrators
will act by majority decision and their award may allocate attorneys fees and
arbitration costs between the disputing Parties. Their award will be final and
binding between the Parties, and such award may be entered as a judgment in any
court of competent jurisdiction. The Parties agree that, to the extent permitted
by the NASD Code, the arbitrators will be selected from the securities or
insurance industries.
17
Unless the arbitrators shall provide otherwise, each Party involved in the
arbitration shall be responsible for (i) all fees and expenses of its respective
counsel, accountants, actuaries and any other representative in connection with
the arbitration, and (ii) one half (1/2) of the expenses of the arbitration,
including the fees and expenses of the arbitrator(s). For purposes of this
paragraph both UBS PaineWebber and the UBS Agencies shall be deemed to be one
party and Company and Distributor shall be deemed to be one party.
18. Termination
This Agreement may be terminated by any Party upon ten days' prior written
notice. No application for Contracts will be solicited from Accountholders and
no Contracts will be accepted by the Company after the effective date of
termination, provided, however, that the Company shall not refuse any Contracts
-------- -------
that were sold to Accountholders prior to the effective date of the termination.
This Agreement shall remain in force with regard to all Contracts issued to
Accountholders prior to termination being effective.
19. Notice
Any notices required hereby must be in writing. Such notices may be sent by U.S.
Mail, Certified, Return Receipt Requested, air courier service, or by facsimile
confirmed by a facsimile acknowledgment from the recipient, and will be deemed
given upon actual receipt by the addressee as reflected by the receipt. Such
notices will be sent to the following addresses, or such other address as may be
contained in a notice sent in accordance with this paragraph:
To Company: MetLife Investors Insurance Company
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
To Distributor: MetLife Investors Distribution Company
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: President
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
To UBS PaineWebber: UBS PaineWebber, Inc.
Director of Insurance Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
To the UBS Agencies: PWJC Insurance Sales Incorporated
18
C/O UBS PaineWebber, Inc.
Director of Insurance Services
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
20. Assignment
This Agreement is not assignable by any Party without the other Partys' written
consent, and any attempted assignment in contravention hereof shall be null and
void; provided, however, that UBS PaineWebber may, without the Company's
consent, assign any and all of its rights and obligations hereunder to any
affiliate of UBS PaineWebber whether such affiliate may exist now or come into
existence in the future.
21. Previous Agreements
Any and all prior agreements between the Parties hereto authorizing the
solicitation of the Contracts are hereby terminated and are superseded by this
Agreement.
22. Amendments
This Agreement may be amended only by a writing executed by each Party hereto.
23. Forbearance
Forbearance or neglect on the part of any Party to insist upon compliance with
the terms of this Agreement or the rules and regulations of the Company shall
not be construed as or constitute a waiver thereof.
24. Severability
This is a severable agreement. If any provision of this Agreement would require
a Party to take action prohibited by applicable federal or state law or prohibit
a Party from taking action required by applicable federal or state law, then it
is the intention of the Parties hereto that such provision shall be enforced to
the extent permitted under the law, and, in any event, that all other provisions
of this Agreement shall remain valid and duly enforceable as if the provision at
issue had never been a part of this Agreement.
25. Applicable Law
This Agreement shall be construed in accordance with the laws of the state of
New York.
19
26. Counterparts
This Agreement may be executed in two or more counterparts. All counterparts
shall collectively constitute a single instrument.
This Agreement is effective as of Oct 31, 2002.
UBS PaineWebber, Inc. MetLife Investors Insurance Company
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP Title: Executive Vice President
PWJC Insurance Sales, Inc. MetLife Investors Insurance Company
of California
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: Executive Vice President
First MetLife Investors Insurance
Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
MetLife Investors Distribution Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
20
SCHEDULE A
PWJC Sales Agency Incorporated
PWJC Insurance Agency (Massachusetts) Incorporated
PaineWebber Insurance Sales (Arizona) Incorporated
PWJC Insurance Services (Illinois) Incorporated
PWJC Insurance Agency (Oklahoma) Incorporated
PWJC Insurance Agency (Texas) Incorporated
PWJC Insurance Sales (Wyoming) Incorporated
PWJC Insurance Sales (Montana) Incorporated
PW Insurance Agency of Puerto Rico
PWJC Insurance Agency (Arkansas) Incorporated
PWJC Insurance Agency (Ohio) Incorporated
PWJC Insurance Agency (Idaho) Incorporated
▇▇ ▇▇▇▇▇▇▇▇ Insurance Agency of Alabama
FIRST AMENDMENT TO SELLING AGREEMENT
This First Amendment ("First Amendment") to the Selling Agreement dated as of
October 31, 2002 (the "Agreement") by and among MetLife Investors Insurance
Company, MetLife Investors Insurance Company of California, First MetLife
Investors Insurance Company (collectively, the "Company") MetLife Investors
Distribution Company (the "Distributor"), UBS PaineWebber, Inc., ("UBS
PaineWebber") and PWJC Insurance Sales, Inc., on behalf of itself and the other
licensed insurance subsidiaries of UBS PaineWebber listed on Schedule A,
attached hereto (collectively, the "UBS Agencies") is entered into effective
December 2, 2002.
AGREEMENT
IN CONSIDERATION of the mutual promises contained herein and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the Company, UBS PaineWebber
and the UBS Agencies hereby agree as follows:
1. Attachment 1 to this First Amendment is added as Schedule C to the Selling
Agreement.
2. Schedule G of the Agreement is amended to add Attachment 2 of this First
Amendment.
3. Except as expressly amended, modified or supplemented hereby, the Agreement
shall remain in full force and effect in accordance with its terms.
4. This Amendment may be executed in one or more counterparts, each of which
shall be considered an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS THEREOF, the Parties hereto have caused this First Amendment to be
executed, and do each hereby warrant and represent that the respective signatory
whose signature appears below has been and is on the date of the First
Amendment, duly authorized by all necessary corporate action to execute this
First Amendment.
UBS PaineWebber, Inc. MetLife Investors Insurance Company
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP Title: Executive Vice President
PWJC Insurance Sales, Inc. MetLife Investors Insurance Company
of California
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: Executive Vice President
First MetLife Investors Insurance
Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
MetLife Investors Distribution Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Attachment 1
SCHEDULE C
MetLife Investors Single Premium Deferred Annuity
Policy Form Series: XLC-7001-0; XLC-7001-0CA (California);
CNY-790 (New York)
SECOND AMENDMENT TO SELLING AGREEMENT
This Second Amendment ("Second Amendment") to the Selling Agreement dated as of
October 31, 2002 (the "Agreement") by and among MetLife Investors Insurance
Company, MetLife Investors Insurance Company of California, First MetLife
Investors Insurance Company (collectively, the "Company") MetLife Investors
Distribution Company (the "Distributor"), UBS PaineWebber, Inc., ("UBS
PaineWebber") and PWJC Insurance Sales, Inc., on behalf of itself and the other
licensed insurance subsidiaries of UBS PaineWebber listed on Schedule A,
attached thereof (collectively, the "UBS Agencies") is entered into effective as
of January 1, 2003. (Each of the Company, the Distributor, UBS ▇▇▇▇▇ ▇▇▇▇▇▇ and
the UBS Agencies shall be referred to as a "Party" and, collectively, shall be
referred to as the "Parties").
WHEREAS, UBS PaineWebber and the UBS Agencies entered into the Agreement based
on representations by the Company regarding the Net Worth Agreements, as defined
in the Agreement;
WHEREAS, the Company has notified UBS PaineWebber and UBS Agencies that the
GenAm Agreement, as defined in the Agreement, has been terminated effective as
of December 31, 2002;
WHEREAS, the Company has informed UBS PaineWebber and the UBS Agencies that the
Company has entered into Agreements with MetLife, Inc. ("MetLife") requiring
MetLife to, among other items, maintain the surplus and risk-based capital of
the Company (the "Support Agreements);
WHEREAS, copies of the Support Agreements are attached hereto as Exhibit A to
this Second Amendment; and
WHEREAS, UBS PaineWebber and the UBS Agencies are continuing its relationship
with the Company and the Distributor under the Agreement based upon the terms of
the Support Agreements.
AGREEMENT
IN CONSIDERATION of the mutual promises contained herein and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the Company, the Distributor,
UBS PaineWebber and the UBS Agencies hereby agree as follows:
1. The Company and/or the Distributor shall provide notice to UBS ▇▇▇▇▇ ▇▇▇▇▇▇
promptly upon either MetLife or the Company providing notice under one or
more of the Support Agreements of its desire to terminate such agreement
and/or seeks to have the insurance department or any other regulatory
authority approve the termination of one or more pf the Support Agreements.
For purposes of this paragraph, the agreement of MetLife and the Company to
terminate one or more Support Agreement shall be the same as either party,
unilaterally, terminating said Support Agreement.
2. Except as expressly amended, modified or supplemented hereby, the Agreement
shall remain in full force and effect in accordance with its terms.
3. This Amendment may be executed in one or more counterparts, each of which
shall be considered an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS THEREOF, the Parties hereto have caused this Second Amendment to be
executed and do each hereby warrant and represent that the respective signatory
whose signature appears below has been and is on the date of the First
Amendment, duly authorized by all necessary corporate action to execute this
Second Amendment.
UBS PaineWebber, Inc. MetLife Investors Insurance Company
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP Title: Executive Vice President
PWJC Insurance Sales, Inc. MetLife Investors Insurance Company
of California
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------- -----------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP Title: Executive Vice President
First MetLife Investors Insurance
Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
MetLife Investors Distribution Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
NET WORTH MAINTENANCE AGREEMENT
This agreement ("Agreement"), made and entered into as of the 31st day of
December, 2002, (the "Effective Date"), by and between MetLife, Inc.
("MetLife"), a Delaware Corporation, and MetLife Investors Insurance Company
("Beneficiary"), a stock life insurance company domiciled in the State of
Missouri.
INTRODUCTION
MetLife directly or indirectly owns 100% of the outstanding common stock of
Beneficiary;
Beneficiary is a company with operations that are distinct and separate from
those Of MetLife, but its operations are integral to MetLife's strategic
direction;
MetLife and Beneficiary recognize the importance in a competitive insurance
industry of obtaining the highest possible ratings for financial strength; and
MetLife and Beneficiary desire to take certain actions to enhance and maintain
the financial strength of Beneficiary.
In consideration of the mutual promises herein contained, the parties hereto
agree as follows:
1. Capital and Surplus. MetLife agrees that it shall cause Beneficiary to have
-------------------
at all times during the term of this Agreement the greater of:
(a) A capital and surplus of $10 million; or
(b) the amount of capital and surplus as shall be necessary to maintain a
total adjusted capital of Beneficiary at a level not less than 150% of the
company action level RBC of Beneficiary.
For purposes of this Paragraph 1, "total adjusted capital" and "company
action level RBC" shall be as defined in the Risk-Based Capital (RBC) for
Insurers Model Act adopted by the National Association of Insurance
Commissioners."
2. Liquidity. During the term of this Agreement, MetLife shall cause
---------
Beneficiary to have the liquidity necessary to enable it to meet its
current obligations on a timely basis; provided, however, that such
liquidity shall be provided in accordance with, and only to the extent
permitted by, applicable law.
3. Waivers. MetLife hereby waives any failure or delay on the part of
-------
Beneficiary (but not of any other person or entity) in asserting or
enforcing any of its rights or in making any claims or demands hereunder.
4. Term and Termination. Unless earlier terminated in accordance with this
--------------------
paragraph 4, this Agreement shall continue indefinitely. MetLife shall have
the absolute right to terminate this Agreement upon thirty (30) days' prior
written notice to Beneficiary; provided, however, that MetLife agrees not
to terminate this Agreement unless Beneficiary attains a stand-alone rating
from [▇▇▇▇▇'▇ Investors Service ("Moody's")], without giving weight to the
support of this Agreement, that is the same as or better than its rating
from such agency with such support, or MetLife sells Beneficiary or
Beneficiary's entire block of business to an acquirer (i) having a rating
from [Moody's] that is at least equal to the lower of (a) MetLife's then
current rating from such agency or (b) Beneficiary's then current rating as
supported by this Agreement from such agency; or (ii) such that, after
giving effect to the sale, Beneficiary attains a rating from [Moody's] that
is the same as or better than its then current rating from such agency as
supported by this Agreement. Notwithstanding the foregoing, this Agreement
will terminate automatically one year after the closing of a sale of
Beneficiary by MetLife, and all provisions hereof will be of no further
force and effect.
5. Right to Enforce. Any creditor of Beneficiary (including, but not limited
----------------
to, its employees, policyholders and trade creditors) shall have the right
to enforce the provisions of this Agreement through the Director of
Insurance, Missouri Department of Insurance or the state insurance
regulator of such creditor's state of residence if Beneficiary defaults on
any claim or other payment owed to such creditor when due, and such
insurance regulator may, at the request of such creditor made in accordance
with and subject to the conditions of this Agreement, proceed directly
against MetLife to enforce the provisions of this Agreement during its
term; provided, however, that no creditor of Beneficiary may take any
action authorized under this paragraph 5 unless and until (a) such creditor
has given MetLife written notice of its intent to enforce the terms of this
Agreement as provided in this paragraph 5, which notice shall specify in
reasonable detail the nature of and basis for the creditor's complaint and
(b) MetLife has failed to comply with this Agreement within sixty (60) days
after such notice is given.
6. Not a Guarantee. This Agreement is not, and nothing herein contained and
---------------
nothing done pursuant hereto by MetLife shall constitute or be construed or
deemed to constitute, an evidence of indebtedness or an obligation or
liability of MetLife as guarantor, endorser, surety or otherwise in respect
of any obligation, indebtedness or liability, of any kind whatsoever, of
Beneficiary. This Agreement does not provide, and is not intended to be
construed or deemed to provide, any creditor of Beneficiary with recourse
to or against any of the assets of MetLife.
7. Applicable Law and Forum. This Agreement shall be governed by and construed
------------------------
in accordance with the laws of the State of New York, without giving effect
to the principles of conflicts of laws.
8. Assignment. This Agreement shall be binding upon and enforceable against
----------
successors and permitted assigns. Neither party hereto shall assign this
Agreement or any rights or obligations hereunder, and no other person or
entity entitled to take any action under this Agreement shall assign the
right to take such action, without the prior written consent of the
parties hereto (other than the party proposing to make such assignment),
and any such attempted assignment without prior written consent shall be
void and of no force or effect.
9. Communications. All notices, requests, demands and other communications
--------------
under this Agreement (whether from MetLife, Beneficiary, or any other
person or entity) shall be in writing and shall be deemed to have been duly
given: (a) on the date of service if served personally on the party to
which such notice is to be given; (b) on the date of transmission if sent
via facsimile transmission to the facsimile number given below, and
telephonic confirmation of transmission is obtained promptly after
completion of transmission; (c) on the business day after delivery to
Federal Express or similar overnight carrier or the Express Mail Service
maintained by the United States Postal Service; or (d) on the fifth
calendar day after mailing, if mailed to the party to which such notice is
to be given, by first class mail, registered or certified, postage prepaid
and properly addressed, to the party as follows:
If to MetLife to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice-Chairman of the Board
And Chief Financial Officer
MetLife, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
Copy to: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Senior Executive Vice-President and General Counsel
Facsimile No. (▇▇▇) ▇▇▇-▇▇▇▇
If to Beneficiary to:
MetLife Investors Insurance Company
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Controller
Any party hereto may change its address or facsimile number for the purpose
of this paragraph 9 by giving the other party notice of its new address in
the manner set forth above.
10. Publicity. No party hereto may, directly or indirectly, disclose the
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existence of this Agreement or the terms hereof, other than to any
regulatory agency or rating agency, except with the permission of the other
party hereto and then only as permitted by law. MetLife may make such
disclosures as are required by federal or state securities laws, without
prior notice to, or consent of the Beneficiary.
11. Severability. If any provision of this Agreement shall be declared null,
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void or
unenforceable in whole or in part by any court, arbitrator or governmental
agency, said provision shall survive to the extent it is not so declared
and all the other provisions of this Agreement shall remain in full force
and effect unless, in each case, such declaration shall serve to deprive
any of the parties hereto of the fundamental benefits of or rights under
this Agreement.
12. Entire Agreement. This Agreement constitutes the entire agreement between
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the parties hereto with respect to the subject matter hereof and supersedes
all prior and contemporaneous agreements, understandings, negotiations and
discussion, whether oral or written, of the parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective duly authorized representatives as of the day and year above
written.
METLIFE, INC. METLIFE INVESTORS
INSURANCE COMPANY
By: /s/ Illegible By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------- ----------------------------------
Title: Executive Vice President
Title: --------------------------------
THIRD AMENDMENT TO SELLING AGREEMENT
This Amendment ("Amendment") to the Selling Agreement dated as of October 31,
2002 (the "Agreement") by and among MetLife Investors Insurance Company, MetLife
Investors Insurance Company of California, First MetLife Investors Insurance
Company (collectively, the "Company") MetLife Investors Distribution Company
(the "Distributor"), UBS Financial Services Inc. (formerly UBS PaineWebber),
("UBS Financial Services") and PWJC Insurance Sales, Inc., on behalf of itself
and the other licensed insurance affiliates of UBS Financial Services listed on
Schedule A to the Agreement (collectively, the "UBS Agencies") is entered into
effective upon execution of this Amendment.
AGREEMENT
IN CONSIDERATION of the mutual promises contained herein and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the Company, UBS Financial
Services and the UBS Agencies hereby agree as follows:
1. Schedule B of the Agreement is amended to include Attachment 1 of this
Amendment. The products on Attachment 1 are being added only for purposes
of servicing said Contracts and no new applications for those products
shall be solicited by UBS Financial Services or the UBS Agencies nor will
they be accepted by the Company.
2. Schedule G of the Agreement is amended to add Attachment 2 of this
Amendment.
3. Except as expressly amended, modified or supplemented hereby, the Agreement
shall remain in full force and effect in accordance with its terms.
4. This Amendment may be executed in one or more counterparts, each of which
shall be considered an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS THEREOF, the Parties hereto have caused this First Amendment to be
executed, and do each hereby warrant and represent that the respective signatory
whose signature appears below has been and is on the date of the First
Amendment, duly authorized by all necessary corporate action to execute this
First Amendment.
UBS Financial Services Inc. MetLife Investors Insurance Company
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: SVP Title: Executive Vice President
PWJC Insurance Sales, Inc. MetLife Investors Insurance Company
of California
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: Executive Vice President
First MetLife Investors Insurance
Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
MetLife Investors Distribution Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Attachment 1
Annuity Products - Services Only
Class AA
Class A
Class B
FIFTH AMENDMENT TO SELLING AGREEMENT
This Amendment ("Amendment") to the Selling Agreement dated as of October 31,
2002 (the "Agreement") by and among MetLife Investors Insurance Company and
First MetLife Investors Insurance Company; whereas MetLife Investors Insurance
Company of California has merged into MetLife Investors Insurance Company
(collectively, the "Company") MetLife Investors Distribution Company (the
"Distributor"), UBS Financial Services Inc. (formerly UBS PaineWebber), ("UBS
Financial Services") and PWJC Insurance Sales, Inc., on behalf of itself and the
other licensed insurance affiliates of UBS Financial Services listed on Schedule
A to the Agreement (collectively, the "UBS Agencies") is entered into effective
upon execution of this Amendment.
AGREEMENT
IN CONSIDERATION of the mutual promises contained herein and other good and
valuable consideration the receipt and sufficiency of which is hereby
acknowledged, and intending to be legally bound, the Company, UBS Financial
Services and the UBS Agencies hereby agree as follows:
1. Schedule B of the Agreement is amended to add attachment 1 of this
Amendment.
2. Schedule G of the Agreement is amended to add Attachment 1 of this
Amendment.
3. Except as expressly amended, modified or supplemented hereby, the Agreement
shall remain in full force and effect in accordance with its terms.
4. This Amendment may be executed in one or more counterparts, each of which
shall be considered an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS THEREOF, the Parties hereto have caused this Fifth Amendment to be
executed, and do each hereby warrant and represent that the respective signatory
whose signature appears below has been and is on the date of the Fifth
Amendment, duly authorized by all necessary corporate action to execute this
Fifth Amendment.
UBS Financial Services Inc. MetLife Investors Insurance Company
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Director Title: Executive Vice President
PWJC Insurance Sales, Inc. First MetLife Investors Insurance Company
Signature: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President Title: Executive Vice President
MetLife Investors Distribution Company
Signature: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-----------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Executive Vice President
ATTACHMENT 1
SCHEDULE B
Annuity Products - Services Only
.. Class VA (option C)
SCHEDULE G
Selling Agreement Date 10/31/02
FMLI, MLI, MET-LIFE
* VA = B
* Fixed = C