Pre-Effective Amendment to Registration Statement for a Separate Account (Management Investment Company) — Form N-3
Filing Table of Contents
Document/Exhibit Description Pages Size
1: N-3 EL Registration Statement 117 633K
9: EX-99.11II Administrative Services Agr. 20 62K
10: EX-99.12 Opinion of Counsel 2 10K
11: EX-99.13I Consent of Coopers & Lybrand 1 8K
12: EX-99.13II Consent of Deloitte & Touche 1 7K
13: EX-99.13III Consent of Ropes & Gray 1 7K
14: EX-99.14 Powers of Attorney 17 37K
2: EX-99.1I Resolution of Board of Directors 4 16K
3: EX-99.1II Resolution 2± 13K
4: EX-99.4 Advisory Agr. 4 16K
5: EX-99.5 Distribution Agreement 5 24K
6: EX-99.6IV Met Endorsement 1 7K
7: EX-99.8I Copy of Charter & By-Laws 25 53K
8: EX-99.8II By-Laws Amendment 2 11K
EX-99.11II — Administrative Services Agr.
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Exhibit 99.8(i)
(Exhibit 99.11(ii)
on Form N-3)
August 8, 1996
Metropolitan Life Insurance Company
One Madison Avenue
New York, New York 10010
New England Securities Corporation
399 Boylston Street
Boston, Massachusetts 02116
RE: Administrative Services Agreement between Metropolitan Life
Insurance Company and New England Variable Life Insurance Company
Ladies and Gentlemen:
This letter supplements the Administrative Services Agreement dated
July 1, 1996 (the "Services Agreement") between Metropolitan Life Insurance
Company ("MetLife") and New England Variable Life Insurance Company ("NEVLICO").
Whereas the Services Agreement relates to the overall servicing of insurance
policies and annuity contracts sold by the sales force of agents and general
agents of NEVLICO, this letter reflects additional special provisions for the
servicing of variable annuity contracts, as set forth below.
As a result of the merger (the "Merger") of NEVLICO's parent
corporation, New England Mutual Life Insurance Company ("TNE"), with and into
MetLife, NEVLICO will become a wholly-owned subsidiary of MetLife.
Simultaneously with the Merger, NEVLICO will be redomesticated as a
Massachusetts insurance company and its name will be changed to New England Life
Insurance Company ("NELICO"). For purposes of simplicity, this remainder of
this letter will refer to the company as NELICO regardless of the applicable
time period.
By operation of law as the result of the Merger, MetLife will assume
the variable annuity contracts issued by and in effect with TNE at the time of
the Merger. These contracts were issued by TNE and three of its separate
accounts: New England Variable Annuity Fund I; New England Retirement
Investment Account; and The New England Variable Account. In addition,
Page 2
after consummation of the Merger, MetLife will continue to issue variable
annuity contracts funded by The New England Variable Account. Each of the
separate accounts is registered as an investment company with the Securities and
Exchange Commission ("SEC") under the Investment Company Act of 1940. Interests
in the variable annuity contracts issued by the separate accounts are registered
as securities with the SEC under the Securities Act of 1933.
New England Securities Corporation ("NES") is the principal
underwriter for the variable annuity contracts. NES is registered as a broker-
dealer with the Securities and Exchange Commission under the Securities Exchange
Act of 1934 (the "1934 Act") and is a member of the National Association of
Securities Dealers, Inc. ("NASD"). As a result of the merger, NES will become a
wholly-owned subsidiary of NELICO.
. To the extent that the Services Agreement relates to variable annuity
contracts that are registered with the SEC, the following special provisions
will apply:
1. NES shall assume full responsibility for the securities activities of,
and for securities law compliance by, any "person associated" (as that
term is defined in Section 3(a) (18) of the 1934 Act) with NES and
engaged directly or indirectly in the variable annuity operation (the
"associated persons"). This shall include (i) compliance with NASD Rules
of Fair Practice and with federal and state laws and regulations, (ii)
the appropriate training of associated persons, and (iii) the filing with
the SEC, NASD and other appropriate regulatory authorities of any sales
literature or materials required to be filed with respect to sales of
variable annuity contracts.
2. All books and records maintained by NELICO in connection with the
offer and sale of the variable annuity contracts will (i) be maintained
and preserved in conformity with the requirements of Rules 17a-3 and 17a-
4 under the 1934 Act, (ii) be maintained and held on behalf of and as
agent for NES, whose property they are and shall remain, and (iii) be at
all times subject to inspection by the SEC in accordance with Section
17(a) of the 1934 Act.
3. Upon or prior to the completion of each transaction for which a
confirmation is legally required, NELICO shall, on behalf of NES acting
as agent for MetLife, send to the appropriate person a written
confirmation of such transaction reflecting the facts of the transaction.
Page 3
Please confirm your consent to the above provisions by signing where
indicated below and on the enclosed counterparts of this letter.
Very truly yours,
NEW ENGLAND VARIABLE LIFE
INSURANCE COMPANY
by /s/ H. James Wilson
---------------------------------
title General Counsel
-------------------------------
METROPOLITAN LIFE INSURANCE COMPANY
by /s/ Christopher P. Nicholas
---------------------------------
title Associate General Counsel
------------------------------
NEW ENGLAND SECURITIES CORPORATION
by /s/ Anne M. Goggin
----------------------------------
title General Counsel
------------------------------
EXHIBIT 99.8(i)
(Exhibit 99.11(ii)
on Form N-3)
Administrative Services Agreement
between
Metropolitan Life Insurance Company
and
New England Variable Life Insurance Company
Metropolitan Life Insurance Company ("MetLife") and New England Variable Life
Insurance Company ("NEVLICO") agree as follows:
WHEREAS as a result of the merger (the "Merger") of NEVLICO's parent
corporation New England Mutual Life Insurance Company ("TNE") with and into
MetLife pursuant to the Agreement and Plan of Merger dated as of August 16,
1995, as amended, between MetLife and TNE, (i) NEVLICO will become a wholly-
owned subsidiary of MetLife, (ii) most of TNE's former employees and operating
assets will be transferred to NEVLICO, and, (iii) simultaneously with the
consummation of the Merger, NEVLICO will be redomesticated as a Massachusetts
insurance company and its name will be changed from New England Variable Life
Insurance Company to New England Life Insurance Company ("NELICO") (for purposes
of simplicity this Agreement will refer to the company as NELICO regardless of
the time period referred to); and
WHEREAS TNE and MetLife are entering into the Merger on the understanding that
their complementary strengths will benefit both parties, that the preservation
of the TNE franchise and the separate identity of NELICO will advance the
objectives of the Merger, and that, after consummation of the Merger, NELICO is
intended to operate as a separate and entrepreneurial business entity with a
high degree of independence from MetLife; and
WHEREAS MetLife will by operation of law as the result of the Merger assume the
insurance policies and annuity contracts in effect with TNE at the time of the
Merger; and
WHEREAS MetLife will for a transition period after the Merger is consummated
issue insurance policies and annuity contracts sold by the sales force of agents
and general agents of NELICO (the Transition Policies); and
WHEREAS by virtue of its personnel, systems, experience and capabilities NELICO
(which as NEVLICO is a subsidiary of TNE) will be capable of providing a wide
range of administrative services to assist MetLife in administering the business
written by TNE and in selling and administering the Transition Policies; and
WHEREAS MetLife wishes NELICO to provide such services after the Merger and
NELICO wishes to do so; and
WHEREAS for their mutual convenience and to obtain various savings and
efficiencies the parties wish NELICO to provide other services to MetLife and
MetLife to provide certain services to NELICO, all after the Merger and on the
terms and conditions and for the consideration provided for herein;
NOW THEREFORE the parties agree as follows effective as of the date of the
Merger:
1. Administrative Services in connection with MetLife Contracts
------------------------------------------------------------
NELICO will provide administrative and other services as provided herein in
respect of all policies and annuity contracts of MetLife in effect from time to
time after the Merger that were either (i) originally issued by TNE before the
Merger or (ii) Transition Policies (the "Administered Contracts"). Should the
parties agree that NELICO will no longer provide services for any of these
obligations it will cease to be an Administered Contract.
NELICO shall (to the extent permitted by and in accordance with applicable law)
perform all administrative services in respect of the Administered Contracts and
make all payments in connection therewith, including without limitation:
a. Home office underwriting and new business issue services, including
without limitation underwriting on contracts previously written to the
extent applicable to new purchase payments, conversions, changes to
benefits, determinations relating to reinstatements of policies and
the like.
b. Accounting.
c. Financial reporting.
d. Determination of fees, charges and interest rates, recommendation of
dividend scales and preparation of all necessary information and
documents for consideration by MetLife pursuant to applicable law.
e. Policy changes, including without limitation changes of ownership and
beneficiary and conversions and purchase option exercises.
f. Loans and surrenders.
g. Claims handling services, including without limitation investigation,
approval or disapproval, settlement or compromise of resisted claims,
litigation relating to claims, and all related matters. NELICO will
design, print and distribute claim forms. All claims records and
accounting shall be created and maintained by NELICO.
h. Reserve valuation and certification.
i. Negotiation and administration of reinsurance arrangements. All
changes to reinsurance contracts and
new reinsurance arrangements will only be made with the approval of
MetLife.
j. Broker and agent relations related to the Administered Contracts,
including without limitation interpretation and administration of
applicable contracts for the NELICO distribution systems, resolution
of disputes between and among agents, general agents and brokers in
the NELICO distribution systems and all litigation resulting from
agent, general agent and broker action or inaction involving MetLife
as a result of the sale of the Administered Contracts.
k. Premium billing and collection, including without limitation
processing payments.
l. Payment of dividends.
m. Determination and payment of general agent, agent and broker
compensation, including without limitation commissions, overrides,
persistency bonuses, and lives bonuses. Administration of general
agent, agent and broker benefit plans, including without limitation
the General Agents Deferred Compensation Plan, the General Agents
Retirement Plan, the Agents Deferred Compensation Plan and the Agents
Retirement Plan. Providing training, conferences, conventions, awards
and recognition, computer support, financing, and other support to the
NELICO field force as appropriate. All changes to plans of
compensation which require regulatory approval will be developed by
NELICO and submitted through MetLife.
n. Contractholder reporting and other policyholder transactions.
o. Data processing.
p. Legal services and litigation. MetLife reserves the right to object in
any instance to the engagement of attorneys hereunder but NELICO need
not obtain MetLife's prior approval before engaging attorneys.
q. Customer requests.
r. Complaints.
s. Maintenance of contract records.
t. Backup and disaster recovery, including without limitation development
and implementation of appropriate arrangements.
u. Tax withholding and reporting.
v. Contractholder and plan recordkeeping and other client requested
contractholder or plan services.
Nothing in this Agreement will require or permit NELICO to perform any service
that is (a) agreed by the parties not to be performed by NELICO or (b) illegal
for NELICO to perform (however where applicable law does not permit NELICO to
take action but does permit it to make recommendations to MetLife or provide
documents to MetLife for filing in MetLife's name then NELICO will take all
action that it is legally permitted to take on MetLife's behalf and will refer
the appropriate information or documents to MetLife for approval, disapproval,
filing or such other action as MetLife is legally required to take for itself).
This Agreement does not authorize NELICO to engage in any sales activities on
behalf of MetLife, but to the extent agreed by the parties NELICO shall prepare
for MetLife's approval sales and training material (using MetLife's name and not
NELICO's name) for new sales of Administered Contracts and shall train the
salespersons selected by MetLife with respect to such sales.
2. Other Administrative Services
-----------------------------
MetLife shall perform for NELICO and NELICO shall perform for MetLife such other
administrative services as the parties have agreed upon or may in the future
agree upon. The parties intend such services to be generally provided under
circumstances where this will either assist the parties in implementing matters
relating to the merger in a timely and cost-effective manner or will assist the
parties in avoiding wasteful and unnecessary duplication of resources (e.g.
MetLife providing certain internal auditing services to NELICO in lieu of NELICO
maintaining a fully duplicative internal auditing function). The foregoing
statement is intended for the guidance and convenience of the parties and
nothing in this paragraph shall require either party to perform any service not
provided for by agreement of the parties or to fail to perform any service
provided for by agreement of the parties. The other services that one party may
perform in whole or in part for the other include, but need not be limited to:
new product development; accounting; auditing services at the direction of
MetLife; risk management services at the direction of MetLife; legal services;
actuarial services; sales services; software development services; electronic
data processing operations; communications operations and investment services.
3. Bank Accounts For Administered Contracts; Payment of Disbursements,
-------------------------------------------------------------------
Dividends, Commissions, etc.
----------------------------
All funds received in respect of the Administered Contracts (including without
limitation premiums and loan repayments) shall
be deposited into accounts of MetLife at a bank or banks approved by MetLife.
Payments and transfers (including without limitation transfers to other
accounts) shall be made from such accounts as needed to pay disbursements
(including without limitation claims, surrenders, policy loans and similar
payments), dividends and commissions in respect of the Administered Contracts.
NELICO shall book all such bank account activity on the ledger accounts of
MetLife relating to the Administered Contracts. The amounts maintained in such
accounts shall be adjusted daily as agreed by MetLife and NELICO in order to
provide appropriate balances to cover the payments referred to above. Within 45
days after the end of each month, NELICO will submit to MetLife a written
statement of the activity (including without limitation deposits,
disbursements, dividends and commissions) relating to such accounts during the
preceding month.
4. Payment for Services
--------------------
(a) Each party agrees to pay to the party providing any service (the
"provider") a charge equal to all expenses, direct and indirect, reasonably and
equitably determined by the provider to be attributable to the recipient for
services and facilities provided by the former to the latter pursuant hereto,
except to the extent applicable laws or regulations otherwise require. The
bases for determining such charges to the recipient shall be similar to those
used by the provider for internal cost distribution including, where
appropriate, time records prepared for this purpose. Such bases shall be
modified and adjusted where necessary or appropriate to reflect fairly and
equitably the actual incidence of costs incurred by the provider on behalf of
the recipient. Analyses will be made from time to time by the provider to
determine, as closely as possible, the actual cost of services rendered and
facilities made available to the recipient hereunder. The provider shall advise
the recipient of the information developed by these analyses and such
information shall be used to develop bases for the distribution of expenses that
accurately reflect the actual incidence of costs incurred by the former on
behalf of the latter. Should such analysis determine that past payments did not
in fact fairly and equitably reflect the actual incidence of costs at the time
that services were provided the party receiving payments in excess of such costs
will pay the deficiency to the other party.
(b) On the 10th day of each calendar month, NELICO shall submit to
MetLife a written statement of the estimated amount owed by MetLife to NELICO
pursuant to this Agreement for the previous month. To the extent applicable, the
monthly amounts shall be calculated based on the Revenue Factors attached as
Exhibit 1 to this Agreement. The Revenue Factors are averages by line of
business based on product pricing and may be adjusted from time to time by
agreement of the parties to reflect changes in product distribution or other
relevant changes. MetLife shall pay to NELICO the amount owed by wire
transfer(s) to the account(s) designated by
NELICO within 10 days following receipt of such written statement.
(c) If MetLife has provided any services to NELICO during the previous
month that are not related to the Administered Contracts, then within 30 days
after the end of such month MetLife shall submit to NELICO a written statement
of the estimated amount owed by NELICO to MetLife pursuant to this Agreement for
the previous month. (It is understood that because the Administered Contracts
are policies and contracts of MetLife, MetLife will not charge NELICO for any
services relating to the Administered Contracts.) NELICO shall pay such amount
to MetLife within 30 days following receipt of such written statement.
(d) Within 30 days after the end of each calendar year, NELICO will submit
to MetLife a detailed written reconciliation statement of the actual charges due
from MetLife to NELICO for the preceding year, including charges not included in
any previous statements and any necessary adjustments to estimated charges
previously paid, and any balance payable (by MetLife or NELICO, as the case may
be) as shown in such statement shall be paid within 30 days following receipt of
such written statement by MetLife. The same procedure will apply to charges due
from NELICO to MetLife.
(e) If the recipient of a reconciliation statement objects to any
determination of charges, it shall so advise the provider in writing, including
the details of such objection and the recipient's calculation of the amount of
charges it believes to be correct, within 30 days of receipt of notice of the
provider's determination. Any such objection may instead be made at the time of
the annual reconciliation referred to in paragraph (c). Unless the parties
reach agreement within 30 days of the provider's receipt of such objection, they
shall select a firm of independent certified public accountants that shall
determine the charges properly allocable to the recipient and shall, within a
reasonable time, submit such determination, together with the basis therefor, in
writing to both parties whereupon such determination shall be binding; the
expenses of any such determination by independent accountants shall be borne
equally by the parties.
(f) Within 30 days after the end of each calendar quarter, NELICO and
MetLife shall each furnish the other with a report containing such information
maintained by the other hereunder as is required by the other to satisfy
applicable reporting requirements.
(g) Payments under this Section 4 shall be in accordance with applicable
requirements of law including but not limited to new York Regulation 33 and any
applicable provisions of the Internal Revenue Code required to be complied with
for the party paying for the services to obtain a deduction or other appropriate
tax treatment therefor.
5. Identification of MetLife; Final Authority
------------------------------------------
In administering the Administered Contracts NELICO will indicate in all
correspondence to MetLife contractholders (including but not limited to checks
and drafts for payment) in a manner mutually agreeable to MetLife and NELICO
that NELICO is acting as administrator for MetLife and that such correspondence
pertains to a MetLife obligation.
Notwithstanding anything in this Agreement to the contrary, MetLife shall retain
the authority to make all final decisions with respect to the administration of
the contracts with respect to which NELICO is providing administrative services.
6. Administrative Actions
----------------------
Each party agrees to notify the other party within a reasonable time upon
receipt of any written or oral communication from any state insurance department
or any other government or regulatory department or agency of such department's
or agency's intention to proceed with any administrative action, such as a
hearing, fine, license suspension or revocation or similar action, against
NELICO or MetLife, which administrative action relates in any way to NELICO's or
MetLife's performance under this Agreement or which otherwise relates to the
Administered Contracts.
7. Standards Applicable
--------------------
Subject to the provisions of this Agreement, each party agrees that in providing
services under this Agreement it shall conduct itself in accordance with all
reasonable commercial and professional standards which are equal to or greater
in quality to the standards it applies or would apply with respect to its own
comparable business, and shall generally act in such a way as to preserve and
promote goodwill toward the other party on the part of the general public,
customers, and all those having business relations with such other party. NELICO
agrees that it shall comply with all laws, regulations and orders applicable to
the Administered Contracts, and not enter into any transaction which has a
material adverse effect on the Administered Contracts or the services provided
herein except with the approval of MetLife.
8. Reports
-------
To the extent NELICO has available the applicable information, NELICO shall
prepare all reports needed by MetLife or any of MetLife's reinsurers (if any) in
connection with the Administered Contracts to enable MetLife to comply with any
and all federal,
state and local laws including, without limitation, all statutory insurance and
statutory/regulatory task reporting requirements and, as the case may be,
reasonable requests from reinsurers. Any monthly or quarterly reports required
to be prepared by NELICO shall be prepared on a timely basis in order for
MetLife to comply with any filing deadlines required by law or by contract. All
such reports shall include such information as may reasonably be required by
MetLife.
9. Cooperation
-----------
Each party and its authorized representatives may from time to time
reasonably request, and the other shall provide, at reasonable times during
normal business hours, full and open access to examine all files, records,
operations and information under the control of such other party pertaining
to the services to be provided under this Agreement and to discuss any
matters relating to the services to be provided under this Agreement with
the employees and agents who are familiar therewith, so that the requesting
party shall have sufficient opportunity to make whatever investigation it
shall deem necessary and desirable in connection with the transactions
contemplated by this Agreement. Such access and opportunity shall be
exercised by the requesting party and such authorized representatives in a
manner that shall not interfere unreasonably with the operations of the
other party. Such access shall include the right to make and retain copies
of any documents to the extent that the requesting party reasonably
determines that it requires copies in order to carry out the transactions
contemplated by this Agreement or for any legitimate business purpose
related to this Agreement.
10. Files
-----
All original files or suitable copies, which are transferred to NELICO by
MetLife or TNE or produced by NELICO for the benefit of MetLife pursuant to
this Agreement (including but not limited to, all policy and case files,
correspondence and data processing tapes and files) shall be or remain the
property of MetLife. NELICO shall provide security for the files that are
in its possession, including disaster recovery procedures, and shall
maintain them in space owned or leased by MetLife or segregated within a
NELICO facility, in accessible form, for either (i) the period of time
specified by NELICO's procedures unless MetLife specifies otherwise, or
(ii) until such files are returned to Metlife upon the termination of this
Agreement, if earlier; provided, however, the original underwriting files
-------- -------
shall be delivered to and retained by MetLife when not in actual use by
NELICO for underwriting, claims determination, actuarial studies, audits
and its other services under this Agreement. Upon request by
NELICO, MetLife shall deliver such files to NELICO, and upon completion of
any such use by NELICO, NELICO shall deliver such underwriting files to
MetLife. NELICO shall provide files to MetLife promptly upon request and
shall cooperate with any regulatory authority having jurisdiction over
MetLife in providing access to such files. Each party shall take all
reasonable actions necessary to ensure that at all times MetLife has timely
access to all claims and underwriting information relating to the
Administered Contracts. To the extent required by the New York Insurance
Department, NELICO shall make all files (or copies thereof, if permitted)
available in New York City.
11. Accounts
--------
Consistent with its obligations to pay claims with respect to the
Administered Contracts, MetLife shall establish or maintain disbursement
and claims paying accounts owned by and in the name of MetLife unless the
parties agree that claims may be paid from NELICO accounts funded by
MetLife.
12. Proceedings
-----------
In the event that MetLife or NELICO or both are made parties to any legal
or regulatory proceeding arising out of or in connection with the
Administered Contracts, it is agreed that they will promptly notify and
cooperate fully with each other to defend, settle, compromise or otherwise
resolve such legal or regulatory proceeding. Neither MetLife nor NELICO
shall have the authority to institute, prosecute or maintain any legal or
regulatory proceedings on behalf of the other party without the prior
written consent of such other party except to the extent contemplated by
this Agreement. If any legal actions are threatened or filed in connection
with any of the Administered Contracts or this Agreement during the term of
this Agreement, the party who receives notice of such action shall give the
other party reasonable notice of any such filed action and of any such
threatened action if, after due inquiry, such threatened or filed action is
deemed to be material in the sole discretion of such receiving party. The
parties shall cooperate with each other with respect to any legal action,
whether threatened or actual.
13. Termination
-----------
This Agreement may be terminated by mutual agreement of the parties.
Unless the parties otherwise agree termination shall be upon six months
notice. In the event of termination, each party receiving services
hereunder shall make a reasonable effort to obtain services from another
party or to handle the matters as to which services were provided on an
internal basis by the date of termination or as soon thereafter as is
reasonably possible. If, notwithstanding such efforts, a party continues
to need services under this Agreement after the date of termination the
party providing such services shall continue to provide them and to receive
compensation therefor as if this Agreement had remained in effect for as
long as reasonably necessary (but in no event for more than three years
after termination).
14. Confidential Information; Software
----------------------------------
MetLife and NELICO acknowledge that each will have access to confidential
and proprietary information concerning the other party and its businesses,
which information is not readily available to the public, and acknowledge
that MetLife and NELICO have taken and will continue to take reasonable
actions to ensure such information is not made available to the public.
MetLife and NELICO further agree that they will not at any time (during the
term hereof or thereafter) disclose to any person, corporation, partnership
or other entity whatsoever (except MetLife or NELICO and their affiliates
and the officers, directors, employees, agents and representatives of
MetLife and NELICO and their affiliates who require such information in
order to perform their duties in connection with the services provided
hereunder), directly or indirectly, or make any use of, for any purpose
other than those contemplated by this Agreement any information or trade
secrets relating to the Administered Contracts or the business affairs of
MetLife or NELICO, including the identity of and/or the compensation
arrangements with, any agents, affiliates and subsidiaries of MetLife and
NELICO, so long as such information remains confidential.
Information that identifies an individual covered under one of the
Administered Contracts may be confidential. NELICO shall take all
reasonable precautions to prevent disclosure or use of information
identifying individuals covered under Administered Contracts for a purpose
unrelated to the performance of this Agreement.
MetLife and NELICO acknowledge that software supplied by each party
(including, but not limited to, the design, programming techniques, source
codes and documentation thereof) may contain confidential information or
trade secrets and may be subject to licensing restrictions. Neither party
may disclose any confidential or trade secret information concerning the
software owned by the other party to any person, firm or organization
without the other party's prior written consent, or except as otherwise
provided for in this Agreement or in any license, sub-license or other
agreement between the parties or with respect to software acquired by
NELICO to perform the services contemplated by this Agreement.
NELICO or MetLife may disclose confidential information in the following
circumstances (or as otherwise provided by this Agreement):
(i) in response to a court order or formal discovery request
after notice to the other party (to the extent such notice
is reasonably practicable);
(ii) if requested by any regulatory authority after notice to
other party (to the extent such notice is reasonably
practicable);
(iii) at the proper request of a covered person or MetLife
contractholder or his/her legal representative; or
(iv) as otherwise required by law.
15. Indemnification
---------------
Each party shall indemnify, defend and hold harmless, the other party and
its affiliates and its directors, officers, employees and agents from and
against any and all claims, demands or lawsuits ("Demands") to the extent
relating to or arising out of any act or omission of the indemnifying
party, its directors, officers, agents, brokers or employees, in performing
their obligations under this Agreement or as a result of the indemnifying
party's breach of this Agreement or failure to make available to the other
party any information or to provide any services required to be made
available or provided under this Agreement. This indemnification and hold
harmless clause includes, without limiting the foregoing, any Demands
incurred as a result of any of the Administered Contracts being found to be
not in compliance with a law or regulation as a result of any action or
omission by NELICO.
Notwithstanding the foregoing, neither party shall indemnify for any
demands to the extent arising from acts or omissions on the part of the
other party or its affiliates and their directors, officers, employees and
agents, other than the indemnifying party.
If either party asserts that the other party has become obligated to
indemnify or if any suit, action, investigation, claim or proceeding is
begun, made or instituted as a result of which one party may become
obligated to the other party hereunder, the party to be indemnified shall
give written notice to the other party within a sufficiently prompt time to
avoid prejudice to the other party, specifying in reasonable detail the
facts upon which the claimed right to indemnification is based.
Any payment to be made by an indemnifying party shall be made within thirty
days of the delivery of notice of an uncontested claim to indemnification
or final determination of the amount to be indemnified. Any amount not
paid within such thirty day period shall bear simple interest.
16. Exclusivity
-----------
Nothing in this Agreement will restrict or limit either party's rights to
provide services similar to those provided for hereby to any other person.
17. General Provision.
-----------------
A. Taxes. Each party shall furnish to the other party on a timely basis
-----
such information available to such party that the other party may require
to fulfill all tax and related reporting requirements.
B. Cooperation. The parties shall cooperate in a commercially reasonable
-----------
manner in order that the duties assumed by each will be effectively,
efficiently and promptly discharged, and will not take any actions which
would frustrate the intent of the transactions contemplated by this
Agreement. Each party shall, at all reasonable times under the
circumstances, make available to the other party properly authorized
personnel for the purpose of consultation and decision.
C. Amendment; Waivers. This Agreement may be amended or modified, and any
------------------
of the terms or conditions hereof may be waived, only by a written
instrument executed by the parties hereto, or in the case of a waiver, by
the party waiving compliance. Any waiver by either party of any condition,
or of the breach of any provision or term contained in this Agreement, in
any one or more instances, shall not be deemed to be nor construed as a
further or continuing waiver of any such condition, or of the breach of any
other provision or term of this Agreement.
D. Entire Agreement. This Agreement contains the entire understanding
----------------
between the parties hereto with respect to the transactions contemplated
hereby and supersedes and replaces all prior and contemporaneous agreements
and understandings, oral or written, with regard to such transactions.
E. Relationship. MetLife and NELICO are and shall remain independent
------------
contractors and not agents of the other party except as provided herein.
Except as expressly granted in this Agreement or otherwise by the other
party in writing or as may be required by law or as necessary to perform
the services to be provided hereunder or to obtain the benefits
hereof, no party shall have any authority, express or implied, to act as an
agent of the other party under this Agreement. Except as otherwise
provided by this Agreement or by any other agreement between the parties,
each party shall be responsible for the payment of all employment, income
and social security taxes arising in connection with the compensation
payable to its personnel involved in the provision of the services
hereunder.
F. Errors and Omissions. Any delays, errors or omissions on the part of a
--------------------
party occurring in connection with this Agreement or any transaction
hereunder shall not relieve the other party from any liability to the first
party which would have otherwise attached, had such delay, error or
omission not occurred, provided that such error or omission is rectified as
soon as reasonably practicable after discovery thereof.
G. Right of Offset. Amounts due under this Agreement from either party to
---------------
the other may be offset against amounts due to the first party from the
second party under this Agreement on the same date. Notwithstanding the
payment of such amounts, for all purposes as between the parties hereto
such amounts shall be treated and recorded as if the gross amounts due to
either party hereto under this Agreement had been paid.
H. Governing Law. This Agreement shall be deemed to have been made under
-------------
and governed by the laws of the State of New York without regard to New
York's choice of law rules.
I. Invalidity. Unless the invalidity or unenforceability of any provision
----------
or portion hereof frustrates the intent of the parties or the purpose of
this Agreement, such invalidity or unenforceability shall not affect the
validity or enforceability of the other provisions or portions hereof. In
the event that such provision shall be declared unenforceable by a court of
competent jurisdiction, such provision or portion thereof, to the extent
declared unenforceable, shall be stricken. However, in the event any such
provision or portion thereof shall be declared unenforceable due to its
scope, breadth or duration, then it shall be modified to the scope, breadth
or duration permitted by law and shall continue to be fully enforceable as
so modified unless such modification frustrates the intent of the parties
or the purpose of this Agreement.
J. Counterparts. This Agreement may be executed in counterparts and by
------------
the different parties on separate counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the
same instrument.
K. No Third Party Beneficiaries. Nothing in this Agreement
----------------------------
is intended to confer any rights or remedies under or by reason of this
Agreement on any persons other than MetLife and NELICO and their respective
successors. Nothing in this Agreement is intended to relieve or discharge
the obligations or liability of any third persons to MetLife or NELICO. No
provision of this Agreement shall give any third persons any right of
subrogation or action over or against MetLife or NELICO.
L. Assignment. Neither party shall assign this Agreement or any rights or
----------
obligations hereunder without the prior written consent of the other party
hereto, and any such attempted assignment without such prior written
consent shall be void and of no force and effect; provided, however, that
-------- -------
no such assignment shall reduce or otherwise vitiate any of the obligations
of any other party hereunder. This Agreement shall inure to the benefit of
and shall be binding upon the successors of the parties hereto.
M. Headings. The headings in this Agreement are for convenience only and
--------
shall not affect its interpretation.
N. Preparation. This Agreement has been jointly prepared by the parties
-----------
hereto and the terms hereof will not be construed in favor of or against
either party by reason of its participation in such preparation.
O. Reasonableness. Each of the parties will act reasonably and in good
--------------
faith on all matters within the terms of this Agreement.
P. Notices. All notices, requests, demands, approvals and other
-------
communications under this Agreement shall be in writing and shall be deemed
to have been duly given upon receipt. Notices shall be directed to the
following addresses:
If to MetLife: Fred P. Hauser
Senior Vice-President and Controller
Metropolitan Life Insurance Company
New York, N.Y. 10010
If to NELICO: H. James Wilson
Secretary
New England Life Insurance Company
501 Boylston Street
Boston, MA 02116
Any party may, by notice given in accordance with this Agreement designate
another address or person for receipt of notices hereunder.
IN WITNESS WHEREOF, this Agreement has been duly executed.
METROPOLITAN LIFE INSURANCE COMPANY
Date: 7/1/96 By: [SIGNATURE APPEARS HERE]
---------------- ---------------------------
NEW ENGLAND VARIABLE LIFE
INSURANCE COMPANY
Date: By:
---------------- ---------------------------
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Any party may, by notice given in accordance with this Agreement designate
another address or person for receipt of notices hereunder.
IN WITNESS WHEREOF, this Agreement has been duly executed.
METROPOLITAN LIFE INSURANCE COMPANY
Date: By:
---------------- ---------------------------
NEW ENGLAND VARIABLE LIFE
INSURANCE COMPANY
Date: 6-28-96 By: [SIGNATURE APPEARS HERE]
---------------- ---------------------------
Dates Referenced Herein and Documents Incorporated by Reference
| Referenced-On Page |
|---|
| This ‘N-3 EL/A’ Filing | | Date | | First | | Last | | | Other Filings |
|---|
| |  |
| | 11/20/97 |
| Filed on: | | 8/30/96 | | | | | | | POS AMI |
| | 8/8/96 | | 1 |
| | 7/1/96 | | 1 |
| | 8/16/95 | | 5 |
| List all Filings |
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