ANTI-MONEY LAUNDERING AGREEMENT
EX 99.28(h)(6)
THIS ANTI-MONEY LAUNDERING AGREEMENT (“Agreement”) dated as of January 1, 2012 is entered into by and among Xxxxxxx National Life Insurance Company, a Michigan life insurance company (“Xxxxxxx”), Curian Variable Series Trust (“Trust”). Xxxxxxx and the Trust are herein individually referred to as a “Party,” and collectively referred to as the “Parties.”
RECITALS
WHEREAS, Xxxxxxx offers variable contracts to the retail public, and such variable contracts are sold through affiliated and unaffiliated broker-dealers and insurance agencies;
WHEREAS, the Trust is an investment company registered with the U.S. Securities and Exchange Commission (“SEC”) pursuant to the Investment Company Act of 1940, as amended (“1940 Act”), and the Securities Act of 1933, as amended;
WHEREAS, the Trust is subject in part to the provisions of the Bank Secrecy Act, as amended by The International Money Laundering Abatement and Financial Anti-Terrorism Act of 2001, Title III of the USA Patriot Act (“USA Patriot Act”), and the regulations promulgated thereunder and have established an anti-money laundering program (“AML Program”) pursuant to Section 352 of the USA Patriot Act;
WHEREAS, Xxxxxxx is a life insurance company subject in part to the provisions of the Bank Secrecy Act, as amended by the USA Patriot Act, and the regulations promulgated thereunder and has established an AML Program pursuant to Section 352 of the USA Patriot Act;
WHEREAS, the Trust desires to delegate to Xxxxxxx the performance of certain anti-money laundering (“AML”)” functions, and Xxxxxxx desires to accept such delegation and provide the Trust “AML Services,” as described in this Agreement;
WHEREAS, shares of the Trust are sold directly to the separate accounts of Xxxxxxx and Xxxxxxx National Life Insurance Company of New York that comprise the variable contracts, the separate accounts are the Trust’s “Customers” for AML purposes, and due to the structure of such variable contracts, the Trust generally does not have access to individual contractholder information;
WHEREAS, Xxxxxxx has access to contractholder information (including, but not limited to, information such as contractholder names, tax identification numbers, addresses, and other material non-public information), and affiliated and unaffiliated broker-dealers have access to contractholder information;
WHEREAS, the affiliated and unaffiliated broker-dealers and insurance agencies have been integrated into Xxxxxxx’x AML Program, and such broker-dealers, individually, have established AML Programs pursuant to rules of the Financial Industry Regulatory Authority (“FINRA”);
WHEREAS, by the provision of services by Xxxxxxx for the Trust, the Parties contemplate that the use of Xxxxxxx’x existing operations and economies of scale will provide cost savings and enhanced AML Services to the Trust; and
WHEREAS, the Parties intend to prescribe reasonable fees for the provision of AML Services described herein to reflect actual costs in a fair and equitable manner.
NOW, THEREFORE, in consideration of the premises and of the mutual promises set forth herein, and intending to be legally bound hereby, the Parties agree as follows:
ARTICLE I
Xxxxxxx AML Services
SECTION 1.1 AML SERVICES. Subject to the foregoing and to the terms, conditions, and limitations of this Agreement, Xxxxxxx shall perform or provide the AML Services described herein on behalf of the Trust, as follows:
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(a)
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PROVISION OF AML SERVICES. Xxxxxxx shall provide AML Services and undertake to administer and operate, in accordance with the requirements of the Bank Secrecy Act, as amended by the USA Patriot Act, its implementing regulations, and applicable rules adopted thereunder, the following aspects of the Trust’s AML Program including, but not limited to:
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(i)
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Monitoring and reporting of receipt of cash or cash equivalents;
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(ii)
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Suspicious activity monitoring and reporting;
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(iii)
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Comparisons with governmental lists, including the U.S. Treasury Department’s Office of Foreign Asset Control (“OFAC”) “Specially Designated National and Blocked Persons List” (“SDN List”);
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(iv)
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AML education for appropriate employees of the Trust, as requested by the Trust, and their service providers, including certain Xxxxxxx personnel;
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(v)
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Verifications that registered representatives (and insurance representatives) have received AML training at affiliated and unaffiliated broker-dealers;
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(vi)
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Reporting and recordkeeping requirements associated with the aforementioned services; and
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(vii)
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Performance of Customer Identification Program in association with Xxxxxxx’x Anti-Money Laundering Policy and the USA Patriot Act.
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Xxxxxxx agrees to perform such aspects on behalf of the Trust AML Program consistent with Xxxxxxx’x AML obligations as an insurance company.
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(b)
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REPORTING. Xxxxxxx shall promptly notify the Trust of violations or breaches of Xxxxxxx’x AML Program.
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(c)
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CONSENT TO PERMIT ACCESS AND INSPECTION: Xxxxxxx shall permit federal examiners or other representatives of the U.S. Treasury Department’s Financial Crimes Enforcement Network (“FinCEN”) or the SEC to obtain information and records relating to the AML Program and to inspect Xxxxxxx for purposes of the AML Program at any time, or from time to time during business hours, to the extent required under applicable laws and regulations. Xxxxxxx shall also provide the Trust with reasonable assistance necessary for the Trust to assure compliance with the AML Program and its related provisions, including access to information and records relating to compliance with the AML Program.
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(d)
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RULE 38a-1 COMPLIANCE AND REVIEWS. Xxxxxxx shall cooperate fully with the Trust so as to meet the Trust’s obligations under its compliance program, as established pursuant to Rule 38a-1 under the 1940 Act, including any reviews of Xxxxxxx’x AML Program. In addition, Xxxxxxx shall cooperate fully with the Trust in the provision of any data, reports, and responses to any inquiry, request for information, inspection or audit by the SEC or FinCEN.
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SECTION 1.2 OTHER AML RELATED SERVICES. The AML Services shall include the availability of any and all such Xxxxxxx facilities and staff as reasonably necessary to perform the AML Services described in Section 1.1 herein, including, without limitation, data processing equipment, office facilities (whether owned or leased) and communications equipment. Xxxxxxx may also provide other AML related services and assistance to the Trust, as reasonably required or requested and as agreed to from time to time by the Parties.
ARTICLE II
Provision of Services
SECTION 3.1 CAPACITY OF PERSONNEL AND STATUS OF FACILITIES. Whenever Xxxxxxx utilizes its personnel to perform services for the Trust pursuant to this Agreement, such personnel shall at all times remain employees of Xxxxxxx subject solely to its direction and control, and Xxxxxxx shall alone retain full liability for their compensation, employee benefits, payroll deductions and legally required employer contributions and withholding tax obligations.
No facility of Xxxxxxx used in performing services for or subject to use by the Trust pursuant to this Agreement shall be deemed to be transferred, assigned, conveyed, or leased to the Trust by performance, use, or otherwise.
SECTION 3.2 STANDARD OF CARE IN RENDERING SERVICES. Xxxxxxx and the Trust agree to use their best efforts and shall devote such time, as it deems necessary or appropriate for the full performance of its duties and obligations under the Agreement. In providing any services hereunder which require the exercise of judgment by either party, Xxxxxxx and the Trust shall perform such services in accordance with standards and guidelines established by the other Party and communicated in writing. Notwithstanding any provisions of this Agreement to the contrary, each Party shall refrain from acting in any manner that would cause the other Party to breach its obligations to its clients or to violate any requirement of applicable law and/or regulation. Each Party shall promptly notify the other if it receives formal or informal notice, or otherwise becomes aware in any respect, that the Trust, Xxxxxxx or any person associated with the Trust or Xxxxxxx is or may be subject of any non-routine inquiry, audit, investigation, suit, or proceeding of any governmental or self regulatory agency arising out of the activities associated with this Agreement, or is or may be named as a defendant or party to any suit, arbitration or court proceeding brought by a client arising out of the activities associated with this Agreement.
SECTION 3.3 CONTROL. The performance of Xxxxxxx under the Agreement with respect to the business and operations in connection with Xxxxxxx’x AML Services shall at all times be subject to the direction and control of the Xxxxxxx’x Board of Directors and its designated authorized representatives. The performance of the Trust under the Agreement with respect to the business and operations in connection with the AML Services shall at all times be subject to the direction and control of the Trust’s Board of Trustees and its designated authorized representatives. The performance of services by Xxxxxxx and the Trust pursuant to this Agreement shall in no way impair the absolute control of the business and operations of Xxxxxxx and the Trust by their respective Boards and management. Xxxxxxx and the Trust shall act hereunder so as to assure the separate operating and corporate identities of Xxxxxxx and the Trust.
ARTICLE IV
Effective Term
SECTION 4.1 EFFECTIVE TERM. This Agreement shall be effective beginning January 1, 2012 and shall remain in effect until terminated pursuant to Section 10.2 below (“Effective Term”).
ARTICLE V
Fees and Payments
SECTION 5.1 FEES. The Trust agrees to pay Xxxxxxx for the AML Services pursuant to this Agreement, including, but not limited to, reimbursements for all direct and directly allocable expenses, reasonably and equitably determined to be attributable to the Trust by Xxxxxxx, plus a reasonable charge for direct overhead, the amount of such charge for overhead to be agreed upon in writing by the Parties from time to time (“Funds Fees” or “Fees”), as set forth on Exhibit A attached hereto, and as described herein.
SECTION 5.2 DETERMINATION OF FEES AND COST ANALYSIS. Xxxxxxx shall perform a cost analysis at least annually to determine, as closely as possible, the actual cost of the AML Services it provides to the Trust. Xxxxxxx shall forward to the Trust the information developed by such analysis, and such information shall be used as a basis for the future Funds Fees.
SECTION 5.3 PAYMENT. Within sixty (60) days of the beginning of each calendar year, Xxxxxxx and the Trust shall agree upon for the upcoming year Funds Fees that the Trust will pay to Xxxxxxx for AML Services. The Fees shall be based on the preceding year’s Funds Fees and any foreseeable change. Beginning in January of each year during the Effective Term of this Agreement, the Trust shall pay Xxxxxxx on or before the 15th of each month 1/12 of the Funds Fee for that year. If during a calendar year the Parties agree to an adjustment of either, the Funds Fee will be adjusted accordingly, and the amount of the Trust’s remaining monthly payments to Xxxxxxx for that year will be recalculated to an amount equal to the unpaid balance of the adjusted Funds Fees divided by the number of remaining monthly payments.
SECTION 5.4 SETTLEMENT ON TERMINATION. No later than ninety (90) days after the end of the Effective Term, each Party shall deliver to the other Party a detailed written statement for all Fees not included in any previous statement through the end of the Effective Term. The amount owed or to be refunded, respectively, hereunder shall be due and payable within thirty (30) days of receipt of such statement.
ARTICLE VI
Recordkeeping
SECTION 6.1 OTHER RECORDS AND DOCUMENTS. All other books, records, and files related to the AML Services, as established and maintained by Xxxxxxx or the Trust by reason of their performance of its obligations under this Agreement which, absent this Agreement, would have been held by the other Party, shall be deemed the property of the other Party, and shall be subject to examination at all times by the other Party and its authorized representatives or any governmental agency having jurisdiction. Further, a Party shall immediately notify the other Party of any regulatory requests to inspect and review such books, records, and files related to the AML Services.
ARTICLE VII
Representations and Warranties
SECTION 7.1 REPRESENTATIONS AND WARRANTIES OF THE PARTIES. Xxxxxxx and the Trust each represents and warrants to the other that:
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(a)
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It is duly organized and in good standing under the laws of the jurisdiction under which such Party is incorporated or organized, and has the power and authority to enter into the Agreement;
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(b)
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It is in compliance with all applicable AML and currency transaction reporting laws, regulations, rules and government guidance and economic sanctions programs administered by OFAC;
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(c)
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The execution, delivery, and performance of the Agreement has been properly authorized by all necessary corporate or other action of the board of directors or other similar governing committee or body of such Party;
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(d)
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The Agreement constitutes the valid and binding obligation of the Party executing it which is enforceable according to its terms (subject to the effect, if any, of laws relating to insolvency, bankruptcy, reorganization, or similar laws affecting the enforcement of creditors’ rights, or by equitable principles relating generally to enforcement); and
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(e)
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The execution, delivery, and performance of the Agreement will not breach, contravene, violate, or conflict with the terms of any organizational documents under which the Party is organized, any material agreement to which the Party is subject, or any applicable law to which the Party or any affiliate thereof is or may be subject.
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ARTICLE VIII
Indemnification
SECTION 8.1 INDEMNIFICATION. Each Party hereto (each, an “Indemnifying Party”): (a) shall indemnify and hold harmless the other Party hereto (each, an “Indemnified Party”), to the full extent lawful, from and against any and all damages, losses, costs, expenses, and liabilities (“Losses”) for which such Indemnified Party may become liable as a result of any pending or threatened suit, claim, action, or proceeding, or otherwise (a “Claim”), whether such Claim proceeds to judgment or is settled or otherwise brought to a conclusion, to which such Indemnified Party is or may become subject by virtue of breach of any provision of the Agreement, or material violation of applicable law, by the Indemnifying Party in connection with this Agreement; and (b) shall reimburse each such Indemnified Party for all legal or other expenses reasonably incurred by such Indemnified Party in connection with any such Claim; provided, however, that no such Party shall be indemnified or reimbursed under the foregoing provisions to the extent that in the final non-appealable judgment of a court of competent jurisdiction such Claim or Loss is found to have arisen from such Indemnified Party’s fraud, intentional or willful misconduct, or gross negligence, in the performance of its duties or obligations hereunder. The indemnification provided for in this Section 8.1 represents the full extent of liability that each Party hereto shall have to the other Party for any Loss or Claim arising in connection with this Agreement, except that this Section 8.1 in no way limits any rights the Parties may have against the other Party for the Fees payable under the Agreement pursuant to Article V of this Agreement.
ARTICLE IX
Confidentiality of Information
SECTION 9.1 CONFIDENTIALITY. Neither Party will disclose Confidential Information to any person or entity other than their respective Representatives or use Confidential Information other than in connection with their activities under this Agreement, unless and to the extent: (a) if the Confidential Information relates to a Party or an affiliate thereof, such Party otherwise agreed in writing to such usage; or (b) if the Confidential Information relates to a client or prospective client of a Party or an affiliate, such client and such Party or affiliate otherwise agrees in writing to such usage.
“Confidential Information” relating to any person or entity means all information concerning the identity of, and the finances, business, operations, prospects, procedures, or relationships relating to such person or entity, which is received verbally or in writing by a Party from the other Party, unless and to the extent such information either becomes generally available to the public other than through disclosure by the receiving Party or becomes available to the receiving Party on a non-confidential basis from a person other than the other Party, who to the receiving Party’s knowledge, is not prohibited from disclosing the information. Without limitation of the foregoing, Xxxxxxx agrees to keep the identity of each client and all information of any nature relating to each client confidential and shall use such information only for the purposes set forth in this Agreement and not otherwise. “Representatives” of a Party means its directors, officers, employees, attorneys, agents, and other representatives that are designated and provided in writing from time to time to the other party upon request of the other party.
SECTION 9.2 EXCEPTIONS. Notwithstanding Section 9.1 herein, either Party may disclose Confidential Information to the extent required by applicable law or at the request of any regulatory or supervisory authority having jurisdiction over that Party.
SECTION 9.3 CONFIDENTIALITY OF SUSPICIOUS ACTIVITY REPORTS. Neither Party nor its Representatives shall disclose that a Suspicious Activity Report has been filed or provide any information that would disclose that a report has been prepared or filed, except where such disclosure is permitted under 31 C.F.R. § 103.15(d).
ARTICLE X
Miscellaneous Provisions
SECTION 10.1 RIGHT TO CONTRACT WITH THIRD PARTIES. Nothing herein shall be deemed to grant either Party an exclusive right to provide services to the other Party, and each Party retains the right to contract with any third party, affiliated or unaffiliated, for the performance of services or for the use of facilities as are available to or have been requested pursuant to this Agreement. Nothing herein shall be deemed to prohibit either Party from providing any or all of the Services to be provided under this Agreement to other persons, whether or not affiliated with Xxxxxxx or the Trust.
SECTION 10.2 TERMINATION AND MODIFICATION. This Agreement shall remain in effect until terminated by either Xxxxxxx or the Trust upon giving thirty (30) days or more advance written notice. Upon termination, each Party shall promptly deliver to the other Party all books and records that are, or are deemed by this Agreement to be, the property of the other Party.
SECTION 10.3 INDEPENDENT CONTRACTOR STATUS. In rendering the Services hereunder, each Party shall act as an independent contractor, and any duties of either Party arising hereunder shall be owed exclusively to the other Party.
SECTION 10.4 FORCE MAJEURE. If any condition beyond the control of the Parties shall wholly or partially prevent the performance by either Party of its obligations hereunder, including, without limitation, any act of God or the public enemy, fire, explosion, flood, earthquake, war, riot, adverse weather conditions, breakdowns in equipment or facilities, strike, slowdown, work stoppage or other labor trouble or delays in receiving or failures to receive any permits, licenses or approvals from any governmental authority, then the Party shall be excused to the extent made necessary by such cause or condition and during the continuance thereof, and the Party shall incur no liability by reason of its failure to perform the obligations so excused. Such cause or condition shall not, however, relieve either Party of the obligation to pay the Fees due for the Services rendered prior to such stoppage.
SECTION 10.5 ASSIGNMENT. This Agreement and any rights pursuant hereto shall be assignable only upon the written consent of the Parties. Except as and to the extent specifically provided in this Agreement, nothing in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto or their respective legal successors any rights, remedies, obligations or liabilities, or to relieve any person other than the Parties hereto or their respective legal successors from any obligations or liabilities that would otherwise be applicable. This Agreement shall be binding upon, extend to and inure to the benefit of the Parties hereto and each of their respective legal successors and assigns.
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SECTION 10.6 NO PARTNERSHIP OR JOINT VENTURE. The Parties are not, and shall not be deemed to be, partners or joint venturers with each other solely by reason of this Agreement.
SECTION 10.7 GOVERNING LAW. This Agreement and the rights and obligations of the Parties hereunder shall be governed by and construed and interpreted in accordance with the law of the State of Michigan.
SECTION 10.8 ARBITRATION. In the event of any irreconcilable dispute between the Parties, such dispute shall be submitted to arbitration. Either Party may submit the dispute to arbitration by notifying the other of its submission and naming its representative in arbitration. The other Party shall name its representative in arbitration within thirty (30) days after receiving such notice. Each such representative of the Parties shall nominate three persons to serve as umpire. The umpire shall be chosen by drawing lots after each representative has rejected two of the nominees named by the opposing representative. The representatives and umpire shall be disinterested insurance company executives. The arbitration shall be relieved from judicial formalities including but not limited to rules of evidence. The arbitration decision shall be final and binding upon the Parties. Each Party shall bear the expense of its own representative and one-half the other expenses of the arbitration proceedings. The arbitration, if any, shall take place in Lansing, Michigan, unless otherwise mutually agreed by the Parties.
SECTION 10.9 NOTICE. All notices, statements or requests pursuant to this Agreement shall be deemed to have been duly made when delivered by hand to an officer of the other Party, deposited with the U.S. Postal Service as first-class certified or registered mail with postage prepaid or a nationally recognized overnight courier service, or transmitted by facsimile to:
(a) If to Xxxxxxx to:
Xxxxxxx National Life Insurance Company
0 Xxxxxxxxx Xxx
Xxxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: General Counsel
(b) If to the Trust to:
0000 Xxxxxxxxxx Xxx
Xxxxxx, Xxxxxxxx 00000
FAX: (000) 000-0000
Attention: Xxxxxxx Xxxx, President
SECTION 10.10 ENTIRE AGREEMENT. This Agreement expresses the entire Agreement between the Parties, there being no representation, warranty or other agreement not herein expressly set forth or provided for. No amendment, supplement or other modification of this Agreement shall be binding on the Parties unless made in writing and executed by all of the Parties hereto.
SECTION 10.11 SEVERABILITY. Any provision of this Agreement, which is prohibited or unenforceable in any jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
SECTION 10.12 SECTION HEADINGS. Section headings contained herein are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.
SECTION 10.13 COUNTERPARTS. This Agreement may be executed in separate counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed in duplicate by their respective officers duly authorized as of the date and year first above written.
XXXXXXX NATIONAL LIFE INSURANCE COMPANY
By: /s/ Xxxx Xxxx
Name: Xxxx Xxxx
Title: Vice President
By: /s/ Xxxxx X. Xxxxxxx
Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary
Exhibit A
Fees and Expenses
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Fee for AML Services
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$ | 400 |
