FUND PARTICIPATION AGREEMENT
Exhibit (h) (29)
THIS AGREEMENT is made as of October 28, 2011, between Northern Lights Variable Trust,
an open-end management investment company organized as a Delaware business trust (the “Trust”),
Northern Lights Distributors, LLC, a Nebraska limited liability company (the “Distributor”),
ValMark Advisers, Inc., an Ohio corporation (the “Adviser”) and New York Life Insurance and
Annuity Corporation, a life insurance company organized under the laws of the State of Delaware
(the “Company”), on its own behalf and on behalf of each segregated asset account of the Company
set forth on Schedule A, as the parties hereto may amend it from time to time (the “Accounts”)
(individually, a “Party”, and collectively, the “Parties”).
W I T N E S S E T H:
WHEREAS, the Trust has registered with the Securities and Exchange Commission (“SEC”) as an
open-end management investment company under the Investment Company Act of 1940, as amended (the
“1940 Act”), and has registered the offer and sale of its shares (“Shares”) under the Securities
Act of 1933, as amended (the “1933 Act”); and
WHEREAS, the Trust desires to act as an investment vehicle for separate accounts established
for variable life insurance policies and variable annuity contracts to be offered through separate
accounts of insurance companies that enter into participation agreements with the Trust (the
“Participating Insurance Companies”); and
WHEREAS, the beneficial interest in the Trust may be divided into several series of Shares,
each series representing an interest in a particular managed portfolio of securities and other
assets, and the Trust will make Shares listed on Schedule B hereto as the Parties hereto may amend
from time to time (each a “Portfolio”; reference herein to the “Trust” includes reference to each
Portfolio, to the extent the context requires) available for purchase by the Accounts; and
WHEREAS, the Trust has received an order from the Securities and Exchange Commission (“SEC”)
granting Participating Insurance Companies and their separate accounts exemptions from the
provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act, and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit Shares of the Trust to be sold to and
held by variable annuity and variable life insurance separate accounts of life insurance companies
and certain qualified pension and retirement plans (the “Exemptive Order”); and
WHEREAS, the Adviser is registered with the SEC as an investment adviser under the Investment
Advisers Act of 1940 (the “Advisers Act”) and serves as the investment adviser to the Portfolios;
WHEREAS, the Distributor is duly registered as a broker-dealer under the Securities Exchange
Act of 1934 (the “1934 Act”) and is a member in good standing of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) and serves as the principal underwriter of the Shares of the Portfolios;
and
WHEREAS, the Company is the issuer of certain variable annuity contracts and variable life
insurance contracts (“Contracts”) as set forth on Schedule A hereto, as the Parties hereto may
amend from time to time, which Contracts will be registered under the 1933 Act; and
WHEREAS, the Company will fund the Contracts through the Accounts, each of which may be
divided into two or more subaccounts (“Subaccounts”; reference herein to an “Account” includes
reference to each Subaccount thereof to the extent the context requires); and
WHEREAS, the Company will serve as the depositor of the Accounts, each of which is registered
as a unit investment trust investment company under the 1940 Act, and the security interests deemed
to be issued by the Accounts under the Contracts will be registered as securities under the 1933
Act; and
WHEREAS, the Company intends to purchase Shares of one or more Portfolios to serve as an
investment vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree as follows:
ARTICLE I
Sale of Trust Shares
Sale of Trust Shares
1.1 The Trust shall make Shares of its Portfolios available to the Accounts at the net asset
value of the applicable Portfolio next computed after receipt of such purchase order by the Trust
(or its agent). Shares of a particular Portfolio of the Trust shall be ordered in such quantities
and at such times as determined by the Company to be necessary to meet the requirements of the
Contracts. Notwithstanding anything to the contrary herein, the Trustees of the Trust (the
“Trustees”) may refuse to sell Shares of any Portfolio to any person, or suspend or terminate the
offering of Shares of any Portfolio if such action is required by law or by regulatory authorities
having jurisdiction or is deemed in the sole discretion of the Trustees acting in good faith and
in light of their fiduciary duties under federal and any applicable state laws, in the best
interests of the shareholders of such Portfolio.
The Parties hereto may agree, from time to time, to add other Portfolios to provide additional
funding media for the Contracts, or to delete, combine, or modify existing Portfolios, by amending
Schedule A hereto. Upon such amendment to Schedule A, any applicable reference to a Portfolio, the
Trust, or its Shares herein shall include a reference to any such additional Portfolio. Schedule A,
as amended from time to time, is incorporated herein by reference and is a part hereof.
1.2 The Trust will redeem in cash any full or fractional Shares of any Portfolio when
requested by the Company on behalf of an Account at the net asset value of the applicable
Portfolio next computed after receipt by the Trust (or its agent) of the request for redemption,
With respect to payment of the purchase price by the Company and of redemption proceeds by the
Trust, the Company and the Trust shall net purchase and redemption orders with respect to each
Portfolio and shall transmit one net payment per Portfolio in accordance with this Section 1.2 and
Section 1.4. The Trust shall make payment no later than 12:00 noon New York time on
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the same day as the order is placed, to the extent practicable, but in no event shall payment
be delayed for a greater period than is permitted by the 0000 Xxx.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints the Company as its
agent for the limited purpose of receiving and accepting purchase and redemption orders resulting
from investment in and payments under the Contracts. Receipt by the Company shall constitute
receipt by the Trust provided that i) such orders are received by the Company in good order prior
to the time the net asset value of each Portfolio is priced in accordance with its prospectus and
ii) the Trust receives notice of such orders by 10:00 a.m. New York time on the next following
Business Day. “Business Day” shall mean any day on which the New York Stock Exchange is open for
regular trading, on which the Trust calculates the Portfolio’s net asset value pursuant to the
rules of the SEC and on which the Company is open for business.
1.4 The Company shall wire payment for net purchase orders that are transmitted to the Trust
in accordance with Section 1.3 to a custodial agent designated by the Trust no later than 3.00
p.m. New York time on the same Business Day that the Trust receives notice of the order. Payments
shall be made in federal funds transmitted by wire.
1.5 Issuance and transfer of the Trust’s Shares will be by book entry only. Stock
certificates will not be issued to the Company or the Account. Shares ordered from the Trust will
be recorded in the appropriate title for each Account or the appropriate subaccount of each
Account.
1.6 The Trust shall furnish same day notice (by email or telephone followed by written or
email confirmation) to the Company of any income dividends or capital gain distributions payable
on the Trust’s Shares. The Company hereby elects to receive all such income dividends and capital
gain distributions as are payable on a Portfolio’s Shares in additional Shares of that Portfolio.
The Company reserves the right to revoke this election and to receive all such dividends and
capital gain distributions in cash. The Trust shall notify the Company of the number of Shares so
issued as payment of such dividends and distributions.
1.7 The Trust shall provide closing net asset value, dividend and capital gain information
per share for each Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use its best efforts to make
such net asset value per share available by 6 p.m. New York time. In the event of an error in the
computation of a Portfolio’s NAV or any dividend or capital gain distribution (each, a “pricing
error”), the Distributor or the Trust shall promptly notify the Company verbally, with written
notification to follow, as soon as possible after discovery of the error. A pricing error shall
be corrected in accordance with the Trust’s policy for correction of pricing errors (“Pricing
Policy”), provided that the Pricing Policy meets the requirements of the 1940 Act and SEC staff
interpretations. If an adjustment is necessary to correct a material error which has caused
Contract owners to receive less than the amount to which they are entitled, the number of Shares
of the applicable Portfolio will be adjusted and the amount of any underpayments will be credited
by the Distributor to the Company for crediting of such amounts to the applicable Contract. Upon
notification by the Distributor of any overpayment due to a material error, the Company shall
promptly remit to the Distributor any overpayment that has not been paid to the Contract owners.
The standards set forth in this section are based
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on the parties’ understanding of the views expressed by the SEC staff as of the date of this
Agreement. If these views are modified or superseded by SEC or judicial interpretation, the
parties shall amend this section to comport with the new standards, on terms mutually satisfactory
to all parties.
1.8 The Company shall use the data provided by the Trust each Business Day pursuant to
Section 1.7 above immediately to calculate Account unit values and to process transactions that
receive that same Business Day’s Account unit values. The Company shall perform such Account
processing the same Business Day, and shall place corresponding orders to purchase or redeem
Shares with the Trust by 10:00 a.m. New York time the following Business Day.
1.9 The Trust agrees that its Shares will be sold only to Participating Insurance Companies
and their separate accounts and to certain qualified pension and retirement plans (“Plans”) to the
extent permitted by the Exemptive Order. No Shares of any Portfolio will be sold directly to the
general public. The Company agrees that Trust Shares will be used only for the purposes of funding
the Contracts and Accounts listed in Schedule A, as amended from time to time.
1.10 The Trust agrees that all Participating Insurance Companies shall have the obligations
and responsibilities regarding pass-through voting and conflicts of interest corresponding to
those contained in Section 2.8 and Article IV of this Agreement.
ARTICLE II
Obligations of the Parties
Obligations of the Parties
2.1 The Trust shall prepare and be responsible for filing with the SEC and any state
regulators requiring such filing all shareholder reports, notices, proxy materials (or similar
materials such as voting instruction solicitation materials), prospectuses and statements of
additional information of the Trust. The Trust shall bear the costs of registration and
qualification of its Shares, preparation and filing of the documents listed in this Section 2.1
and all taxes to which an issuer is subject on the issuance and transfer of its Shares.
2.2 At the option of the Company, the Trust shall either (a) provide the Company (at its
expense) with as many copies of the Trust’s current prospectus, annual report, semi-annual report
and other shareholder communications, including any amendments or supplements to any of the
foregoing, as the Company shall request for Contract owners for whom Shares are held by an
Account; or (b) provide the Company with a camera ready copy of such documents in a form suitable
for printing. The Trust shall provide the Company with a copy of its statement of additional
information in a form suitable for duplication by the Company. The Trust shall provide these
documents on a timely basis.
2.3 The Trust (at its expense) shall distribute any Trust-sponsored proxy materials to
Contract owners through a proxy solicitation firm, and the Company agrees to provide reasonable
support and cooperation for any proxy solicitation. The Trust shall provide the materials
described in this Section 2.3 within a reasonable time prior to required printing and distribution
of such materials.
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2.4 (a) The Company shall bear the costs of distributing the Trust’s prospectus, statement of
additional information, shareholder reports and other shareholder communications to Contract
owners of and applicants for policies for which the Trust is serving or is to serve as an
investment vehicle. The Trust shall bear the costs of distributing proxy materials (or similar
materials such as voting solicitation instructions) to Contract owners. The Company assumes sole
responsibility for ensuring that such materials are delivered to Contract owners on a timely basis
in accordance with applicable federal and state securities laws.
(b) If the Company elects to include any materials provided by the Trust, specifically
prospectuses, statements of additional information, shareholder reports and proxy materials, on its
web site or in any other computer or electronic format, the Company assumes sole responsibility for
maintaining such materials in the form provided by the Trust or as filed in definitive form with
the SEC, and for promptly replacing such materials with all updates provided by the Trust.
2.5 The Parties each agree and acknowledge that it has no rights to the name, log, brand or
xxxx of the other Party or its affiliates and that all use of any designation comprised in whole
or part of any such name, log, brand or xxxx by a Party is prohibited without the prior written
consent of the other Party, unless use is required under applicable law. Upon termination of this
Agreement for any reason, each Party shall cease all use of the other Party’s name, log, brand or
xxxx as soon as reasonably practicable.
2.6 (a) The Company shall furnish, or cause to be furnished, to the Trust or its designee, a
copy of each Contract prospectus or statement of additional information in which the Trust,
Distributor and/or the Adviser is named prior to filing of such document with the SEC. The Company
shall furnish, or shall cause to be furnished, to the Trust or its designee, each piece of sales
literature or other promotional material, reports, any preliminary and final voting instruction
solicitation materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above in which the Trust or its investment adviser(s) is named, or which
relates to the Accounts or Contracts, at least ten Business Days prior to its use. No such
material shall be used if the Trust or its designee reasonably objects to such use within ten
Business Days after receipt of such material.
(b) The Trust shall furnish, or shall cause to be furnished, to the Company or its designee,
each piece of sales literature or other promotional material in which the Company, the Accounts or
the Contracts are named, at least ten Business Days prior to its use. No such material shall be
used if the Company or its designee reasonably objects to such use within ten Business Days after
receipt of such material.
2.7 The Company and its affiliates shall not give any information or make any representations
or statements on behalf of the Trust or concerning the Trust or any of its affiliates or its
investment adviser(s) in connection with the sale of the Contracts other than information or
representations contained in and accurately derived from the registration statement, including the
prospectus and statement of additional information, for the Trust Shares (as such registration
statement, prospectus and statement of additional information may be amended or supplemented from
time to time), reports of the Trust, Trust-sponsored proxy statements, or in sales literature or
other promotional material approved by the Trust or its
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designee, except as required by legal process or regulatory authorities or with the written
permission of the Trust or its designee.
2.8 The Trust and its affiliates shall not give any information or make any representations
or statements on behalf of the Company or concerning the Company or any of its affiliates, the
Contracts or the Accounts other than information or representations contained in and accurately
derived from the registration statement, including the prospectus and statement of additional
information, for the Contracts (as such registration statement, prospectus, and statement of
additional information may be amended or supplemented from time to time), or in materials approved
by the Company or its designee for distribution including sales literature or other promotional
materials, except as required by legal process or regulatory authorities or with the written
permission of the Company or its designee.
2.9 So long as, and to the extent that the Securities and Exchange Commission interprets the
1940 Act to require pass-through voting privileges for owners of variable life insurance policies
and/or variable annuity contracts, the Company will provide pass-through voting privileges to
Contract owners whose cash values are invested, through the Accounts, in Shares of the Trust. The
Trust shall require all Participating Insurance Companies to calculate voting privileges in the
same manner and the Company shall be responsible for assuring that the Accounts calculate voting
privileges in the manner established by the Trust. With respect to each Account, the Company will
vote Shares of the Trust held by the Account and for which no timely voting instructions from
policyowners are received, as well as Shares it owns that are held by that Account or directly, in
the same proportion as those Shares for which timely voting instructions are received. The Company
and its affiliates and agents will in no way recommend or oppose or interfere with the
solicitation of proxies for Trust Shares held by Contract owners without the prior written consent
of the Trust, which consent may be withheld in the Trust’s sole discretion.
2.10 The Company shall adopt and implement procedures reasonably designed to ensure that
information concerning the Trust and its affiliates that is intended for use only by brokers or
agents selling the Contracts (i.e., information that is not intended for distribution to Contract
owners) (“broker only materials”) is so used, and neither the Trust nor any of its affiliates
shall be liable for any losses, damages or expenses relating to the improper use of such broker
only materials.
2.11 For purposes of Sections 2.8 and 2.9, the phrase “sales literature or other promotional
material” includes, but is not limited to, advertisements (such as material published, or designed
for use in, a newspaper, magazine, or other periodical, radio, television, telephone or tape
recording, videotape display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks such as the Internet or other electronic messages), sales literature (i.e., any
written communication distributed or made generally available to customers or the public,
including brochures, circulars, research reports, market letters, form letters, seminar texts,
reprints or excerpts of any other advertisement, sales literature, or published article),
educational or training materials or other communications distributed or made generally available
to some or all agents or employees, registration statements, prospectuses, statements of
additional information, shareholder reports, and proxy materials and any other material
constituting retail communications under FINRA rules, the 1933 Act or the 1940 Act.
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2.12 The Trust will immediately notify the Company of (i) the issuance by any court or
regulatory body of any stop order, cease and desist order, or other similar order with respect to
the Trust’s registration statement under the 1933 Act or the Trust prospectus, (ii) any request by
the SEC for any amendment to such registration statement or the Trust prospectus that may affect
the offering of Shares of the Trust, (iii) the initiation of any proceedings for that purpose or
for any other purpose relating to the registration or offering of the Trust’s Shares, or (iv) any
other action or circumstances that may prevent the lawful offer or sale of Shares of any Portfolio
in any state or jurisdiction, including, without limitation, any circumstances in which (a) such
Shares are not registered and, in all material respects, issued and sold in accordance with
applicable state and federal law, or (b) such law precludes the use of such Shares as an
underlying investment medium of the Contracts issued or to be issued by the Company. The Trust
will make every reasonable effort to prevent the issuance, with respect to any Portfolio, of any
such stop order, cease and desist order or similar order and, if any such order is issued, to
obtain the lifting thereof at the earliest possible time.
2.13 The Company will promptly notify the Trust of (i) the issuance by any court or
regulatory body of any stop order, cease and desist order, or other similar order with respect to
each Account’s registration statement under the 1933 Act relating to the Contracts or each
Contract prospectus, (ii) any request by the SEC for any amendment to such registration statement
or Contract prospectus that may affect the offering of Shares of the Trust, (iii) the initiation
of any proceedings for that purpose or for any other purpose relating to the registration or
offering of each Account’s interests pursuant to the Contracts, or (iv) any other action or
circumstances that may prevent the lawful offer or sale of said interests in any state or
jurisdiction, including, without limitation, any circumstances in which said interests are not
registered and, in all material respects, issued and sold in accordance with applicable state and
federal law. The Company will make every reasonable effort to prevent the issuance of any such
stop order, cease and desist order or similar order and, if any such order is issued, to obtain
the lifting thereof at the earliest possible time.
2.14 (a) The Company confirms that it will be considered the Trust’s agent for purposes of
Rule 22c 1 under the Investment Company Act of 1940, as amended (the “Investment Company Act”).
The Company may authorize such intermediaries as it deems appropriate (“Correspondents”) to
receive orders on the Trust’s behalf for purposes of Rule 22c-1 under the Investment Company Act.
The Company shall be liable to the Trust for each Correspondent’s compliance with this Section
2.14 to the same extent as if the Company itself had acted or failed to act instead of the
Correspondent. The Company acknowledges that it has: (1) Adopted and implemented procedures
reasonably designed to prevent orders received after the Market Close on any day that a Fund is
open for business from being improperly aggregated with orders received prior to the Market Close;
and (2)Determined that each Correspondent has adopted and implemented its own internal procedures
reasonably designed to prevent orders received after the Market Close on any day that a Fund is
open for business from being improperly aggregated with orders received prior the Market Close.
(b) The Company agrees to provide or cause to be provided, promptly upon request by the Trust,
the Taxpayer Identification Number (“TIN”), the International/Individual Taxpayer Identification
Number (“ITIN”), or other government-issued identifier (“GII”), if known, of all
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shareholders that purchased, redeemed, transferred or exchanged Fund shares held through an
account with the Company covered by the period of the request.
(c) If the requested information is not on the Company’s books and records, the Company agrees
to: (a) promptly obtain and transmit the requested information; (b) obtain assurances from the
indirect intermediary with access to such information that the requested information will be
provided directly to the Trust promptly; or (c) if directed by the Trust, block further purchases
of Fund Shares from such indirect intermediary. In such instance, the Company agrees to inform the
Trust whether it plans to perform (i), (ii) or (iii). Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the parties.
(d) The Company agrees to transmit the requested information that is on its books and records
to the Trust or its designee promptly, but in any event not later than ten business days, after
receipt of a request. To the extent practicable, the format for any transaction information
provided to the Trust should be consistent with the NSCC Standardized Data Reporting Format. All
shareholder information shall be transmitted and received by both parties using data security and
encryption technology that is standard for the industry in transmitting confidential information.
(e) The Company will execute or cause to be executed any instructions from the Trust or its
agents to restrict or prohibit further purchases or exchanges of Fund shares by a shareholder who
has been identified by the Trust as having engaged in transactions in Fund shares (either directly
or indirectly through an account with the Company) that violate policies established by the Trust.
ARTICLE III
Representations and Warranties
Representations and Warranties
3.1 The Company represents and warrants (i) that it is an insurance company duly organized
and in good standing under the laws of the State of Delaware and has full corporate power,
authority and legal right to execute, deliver and perform its duties and comply with its
obligations under this Agreement, (ii) that it has legally and validly established and maintained
each Account as a segregated asset account under such law and the regulations thereunder, and
(iii) that the Contracts comply in all material respects with all other applicable federal and
state laws and regulations.
3.2 The Company represents and warrants that (i) each Account has been registered or, prior
to any issuance or sale of the Contracts, will be registered and each Account will remain
registered as a unit investment trust in accordance with the provisions of the 1940 Act, unless an
exemption from registration is available, and (ii) each Account required to be registered under
the 1940 Act does and will comply in all material respects with the requirements of the 1940 Act
and the rules thereunder. The Company represents and warrants that interests in the Accounts
through the Contracts will be registered under the 1933 Act, unless an exemption from registration
is available, prior to any issuance or sale of the Contracts and that the Contracts will be issued
and sold in compliance in all material respects with applicable federal and state laws. The
Company represents and warrants that, it will amend the registration statement for those
Contracts required to be registered under the 1933
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Act and for those Accounts required to be registered under the 1940 Act from time to time as
required in order to effect the continuous offering of its Contracts or as may otherwise be
required by applicable law, and each Contract prospectus or private placement memorandum will at
all times comply in all material respects with applicable federal securities law requirements. .
3.3 The Company represents and warrants that : (i) the sale of the Contracts, and the
allocation of purchase payments under the Contracts to any Portfolio of the Trust, shall comply in
all material respects with federal and state securities and insurance suitability requirements,
(ii) the Company has adopted policies and procedures reasonably designed to comply with the US
PATRIOT Act, and (iii) the Company does not encourage or facilitate active trading and has adopted
policies and procedures reasonably designed to prevent market timing within the Portfolios.
3.4 The Trust represents and warrants (i) that it is duly organized and validly existing
under the laws of the State of Delaware, (ii) that it does and will comply in all material
respects with the requirements of the 1940 Act and the rules thereunder, (iii) that its 1933 Act
registration statement, together with any amendments thereto, will at all times comply in all
material respects with the requirements of the 1933 Act and rules thereunder, and (iv) that its
Prospectus will at all times comply in all material respects with the requirements of the 1933 Act
and the rules thereunder.
3.5 The Trust represents and warrants that the Trust Shares offered and sold pursuant to this
Agreement shall be registered under the 1933 Act to the extent required by the 1933 Act and the
Trust shall be registered under the 1940 Act to the extent required by the 1940 Act prior to any
issuance or sale of such Shares. The Trust shall amend its registration statement for its shares
under the 1933 Act and itself under the 1940 Act from time to time as required in order to effect
the continuous offering of its Shares. The Trust shall register and qualify its Shares for sale in
accordance with the laws of the various states only if and to the extent deemed advisable by the
Trust.
3.6 The Trust and the Adviser represent and warrant that each Portfolio shall comply with the
diversification requirements set forth in Section 817(h) of the Internal Revenue Code of 1986, as
amended, (the “Code”) and the regulations thereunder and that the Adviser will notify the Company
promptly upon having a reasonable basis for believing that a Portfolio does not so comply. In the
event of any such non-compliance, the Adviser will take all reasonable steps to adequately
diversify the Portfolio so as to achieve compliance within the grace period afforded by Section
1.817-5 of the regulations under the Code. Within 10 business days after the end of each calendar
quarter, the Adviser shall provide to the Company evidence of its compliance with the
aforementioned diversification requirements, substantially in the Form of Exhibit A hereto.
Notwithstanding any other provision of this Agreement, the Company agrees that if the Internal
Revenue Service (“IRS”) asserts in writing in connection with any governmental audit or review of
the Company that any Portfolio has failed to comply with the diversification requirements of
Section 817(h) of the Code:
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(a) the Company shall promptly notify the Trust of such assertion;
(b) the Company and the Trust shall consult with each other as to how to minimize any
liability that may arise as a result of such failure or alleged failure.
(c) the Company and the Trust shall respectively use their commercially reasonable best
efforts to minimize any liability of the Trust or its affiliates resulting from such failure,
including, without limitation, demonstrating, pursuant to Treasury Regulations Section
1.817-5(a)(2), to the Commissioner of the IRS that such failure was inadvertent;
(d) the Company shall permit the Trust, its affiliates and their legal and accounting advisors
(collectively, “Trust Tax Participants”) to participate in any conferences, settlement discussions
or other administrative or judicial proceeding or contests (including judicial appeals thereof)
with the IRS regarding any claims that could give rise to liability to the Trust or its affiliates
under this Agreement as a result of such a failure or alleged failure; provided, however, that the
Company will retain control of the conduct of such conferences discussions, proceedings, contests
or appeals; provided further, however, that the Trust Tax Participants shall have no right to
communicate with the IRS or any other administrative, regulatory or judicial authority unless the
Company expressly consents in writing to such communication.
(e) any written materials to be submitted by the Company to the IRS in connection with any of
the foregoing proceedings or contests (including, without limitation, any such materials to be
submitted to the IRS pursuant to Treasury Regulations Section 1.817-5(a)(2)), (a) shall be provided
by the Company to the Trust (together with any supporting information or analysis) at least ten
(10) business days or such shorter period to which the Parties hereto agree prior to the day on
which such proposed materials are to be submitted, and (b) the Company shall reasonably consider
any written comments provided by the Trust within at least three business days before such
materials are required to be submitted by the Company;
(f) the Company and the Trust shall provide each other with such cooperation as the other
party shall reasonably request (including, without limitation, by permitting such other party or
its representatives to review the relevant books and records of such other party) in order to
facilitate (i) preparation and review of any written submissions described in the preceding clause
or (ii) such other party’s assessment of the validity or amount of any claim against its arising
from such a failure or alleged failure;
(g) the Trust and its affiliates shall have no liability as a result of such failure or
alleged failure if the Company fails to comply with any of the foregoing clauses (a) through (f);
and
(h) the Trust and its affiliates shall have no rights or benefits under the foregoing clauses
(a) through (g) and the Company shall have no obligations under the foregoing clauses (a) through
(f) if either the Trust fails to comply materially with its obligations under any or the foregoing
clauses (a) through (f) or if the Trust is negligent in its failure to satisfy its obligations
under the first paragraph of this Section 3.6. As used in this Agreement, the term “affiliates”
shall have the same meaning as “affiliated person” as defined in Section 2(a)(3) of the 1940 Act.
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3.7 The Adviser represents and warrants that each Portfolio shall qualify as a Regulated
Investment Company under Subchapter M of the Code and that it will notify the Company promptly in
writing upon having a reasonable basis for believing that a Portfolio has ceased to so qualify
under such Subchapter or any successor provision. The Adviser represents and warrants that each
Portfolio shall make distributions to its shareholders so that each such Portfolio incurs no
entity level tax, as determined under Subchapter M of the Code.
3.8 The Trust represents and warrants that it will avoid acting in a manner with respect to
the Contracts and owners of the Contracts, and to avoid engaging in any communication with any
Contract owner, that would result in a determination by the IRS or a court that a Contract owner,
or the grantor or beneficiary of a Contract owner that is a trust, or any agent or representative
of such contract owner, grantor or beneficiary, has such incidents of control as will cause the
Portfolio’s income and gains to be currently taxable to the Contract owner as a result of the
application of the “investor control” doctrine described in Revenue ruling 00-00, Xxxxxxx Xxxxxx
00-000, Xxxxxxx Xxxxxx 82-54, Revenue Ruling 2003-91, Revenue Ruling 2003-92 and in any successor
guidance issued by the IRS.
3.9 The Trust represents and warrants that all of its trustees, officers and employees are
and shall continue to be at all times covered by a blanket fidelity bond or similar coverage for
the benefit of the Trust in an amount not less than the minimal coverage as required currently by
Rule 17g-(1) under the 1940 Act or related provisions as may be promulgated from time to time. The
aforesaid Bond shall include coverage for larceny and embezzlement and shall be issued by a
reputable bonding company.
3.10 The Company represents and warrants that the Contracts currently are treated as annuity
contracts or life insurance contracts under Sections 72 and 7702 of the Code, respectively, and
that it will make every effort to maintain such treatment; the Company will promptly notify the
Trust upon having a reasonable basis for believing that any of the Contracts have ceased to be so
treated.
3.11 The Company represents and warrants that each Account is a “segregated asset account”
and that interests in each Account are offered exclusively through the purchase of or transfer
into a “variable contract,” within the meaning of such terms under Section 817 of the Code and the
regulations thereunder. The Company will make every commercially reasonable effort to continue to
meet such definitional requirements, and it will notify the Trust promptly upon having a
reasonable basis for believing that such requirements have ceased to be met.
3.12 Each party to this Agreement represents and warrants that it shall comply with the
requirements of Rule 38a-1 of the 1940 Act.
3.13 The Adviser represents and warrants that it is registered as an investment adviser and
shall remain duly registered under all applicable federal and state securities laws and that it
shall perform its obligations for the Trust in compliance in all material respects with the laws
of the State of Ohio and any applicable state and federal securities laws.
3.14 The Distributor represents and warrants that it is registered as a broker-dealer and
shall remain duly registered under all applicable federal and state securities laws and that it
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shall perform its obligations for the Trust in compliance in all material respects with the
laws of the State of Nebraska and any applicable state and federal securities laws.
3.15 Each of the Parties represents and warrants that it shall perform its obligations
hereunder in compliance with any applicable state and federal laws.
ARTICLE IV
Potential Conflicts
Potential Conflicts
4.1 The parties acknowledge that the Trust’s Shares may be made available for investment to
other Participating Insurance Companies. In such event, the Trustees will monitor the Trust for
the existence of any material irreconcilable conflict between the interests of the contract owners
of all Participating Insurance Companies. An irreconcilable material conflict may arise for a
variety of reasons, including: (a) an action by any state insurance regulatory authority; (b) a
change in applicable federal or state insurance, tax, or securities laws or regulations, or a
public ruling, private letter ruling, no-action or interpretative letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or judicial decision
in any relevant proceeding; (d) the manner in which the investments of any Portfolio are being
managed; (e) a difference in voting instructions given by variable annuity contract and variable
life insurance policyowners; or (f) a decision by an insurer to disregard the voting instructions
of contract owners. The Trustees shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
4.2 The Company agrees to promptly report any potential or existing conflicts of which it is
aware to the Trustees. The Company will assist the Trustees in carrying out their responsibilities
under the Exemptive Order by providing the Trustees with all information reasonably necessary for
the Trustees to consider any issues raised including, but not limited to, information as to a
decision by the Company to disregard Contract owner voting instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of its disinterested
Trustees, that a material irreconcilable conflict exists that affects the interests of Contract
owners, the Company shall, in cooperation with other Participating Insurance Companies whose
contract owners are also affected, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees) take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, which steps could include: (a)
withdrawing the assets allocable to some or all of the Accounts from the Trust or any Portfolio
and reinvesting such assets in a different investment medium, including (but not limited to)
another Portfolio of the Trust, or submitting the question of whether or not such segregation
should be implemented to a vote of all affected Contract owners and, as appropriate, segregating
the assets of any appropriate group (i.e., annuity contract owners, life insurance contract
owners, or variable contract owners of one or more Participating Insurance Companies) that votes
in favor of such segregation, or offering to the affected Contract owners the option of making
such a change; and (b) establishing a new registered management investment company or managed
separate account.
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4.4 If a material irreconcilable conflict arises because of a decision by the Company to
disregard Contract owner voting instructions and that decision represents a minority position or
would preclude a majority vote, the Company may be required, at the Trust’s election, to withdraw
each affected Account’s investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be limited to the extent
required to adequately remedy the foregoing material irreconcilable conflict as determined by a
majority of the disinterested Trustees. Any such withdrawal and termination must take place within
six (6) months after the Trust gives written notice that this provision is being implemented.
Until the end of such six (6) month period, the Trust shall continue to accept and implement
orders by the Company for the purchase and redemption of Shares of the applicable Portfolio.
4.5 If a material irreconcilable conflict arises because a particular state insurance
regulator’s decision applicable to the Company conflicts with the majority of other state
regulators, then the Company will withdraw the affected Account’s investment in the Trust and
terminate this Agreement with respect to such Account within six (6) months after the Trustees
inform the Company in writing that it has determined that such decision has created an
irreconcilable material conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required to adequately remedy the foregoing material irreconcilable conflict
as determined by a majority of the disinterested Trustees. Until the end of such six (6) month
period, the Trust shall continue to accept and implement orders by the Company for the purchase
and redemption of Shares of the applicable Portfolio.
4.6 The Company agrees that any remedial action taken by it in resolving any material
irreconcilable conflict will be carried out at its expense and with a view only to the interests
of Contract owners.
4.7 For purposes of Sections 4.3 through 4.6 of this Agreement, a majority of the
disinterested Trustees shall determine whether any proposed action adequately remedies any
irreconcilable material conflict, but in no event will the Company be required to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote of a majority of
Contract owners materially adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately remedy any
irreconcilable material conflict, then the Company will withdraw the Account’s investment in the
Trust and terminate this Agreement within six (6) months after the Trustees inform the Company in
writing of the foregoing determination.
4.8 The Company shall at least annually submit to the Trustees such reports, materials or
data as the Trustees may reasonably request so that the Trustees may fully carry out the duties
imposed upon them by the Exemptive Order, and said reports, materials and data shall be submitted
more frequently if deemed appropriate by the Trustees.
4.9 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule 6e-3 is
adopted, to provide exemptive relief from any provision of the 1940 Act or the rules promulgated
thereunder with respect to mixed or shared funding (as defined in the Exemptive Order) on terms
and conditions materially different from those contained in the Exemptive Order, then the Trust
and/or the Participating Insurance Companies, as appropriate, shall take
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such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and Rule
6e-3, as adopted, to the extent such rules are applicable, and Sections 4.2 through 4.8 shall
continue in effect only to the extent that terms and conditions substantially identical to such
Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE V
Indemnification
Indemnification
5.1 Indemnification By the Company. The Company agrees to indemnify and hold harmless the
Trust, Distributor, Adviser and their respective affiliates and each of their Trustees, officers,
employees and agents and each person, if any, who control them or any of their affiliates within
the meaning of Section 15 of the 1933 Act (collectively, the “Trust Indemnified Parties” for
purposes of this Article V) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company which consent shall not be
unreasonably withheld) or expenses (including the reasonable costs of investigating or defending
any alleged loss, claim, damage, liability or expense and reasonable legal counsel fees incurred
in connection therewith) (collectively, “Losses”), to which the Trust Indemnified Parties may
become subject under any statute or regulation, or at common law or otherwise, insofar as such
Losses:
(a) arise out of or are based upon any untrue statements or alleged untrue statements of any
material fact contained in a registration statement or prospectus for the Contracts or in the
Contracts themselves or in advertising or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing) (collectively, “Company Documents” for the purposes of this
Article V), or arise out of or are based upon the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to any Trust Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance upon and was
accurately derived from written information furnished to the Company or its affiliates by or on
behalf of the Trust or its affiliates for use in Company Documents or otherwise for use in
connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations (other than statements or
representations contained in and accurately derived from Trust Documents as defined in Section
5.2(a)) or or wrongful conduct of the Company, or persons under its control (including, without
limitation, its employees), in connection with the sale or distribution of the Contracts or Trust
Shares; or
(c) arise out of or result from any untrue statement or alleged untrue statement of a material
fact contained in Trust Documents as defined in Section 5.2(a) or the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to make the statements
therein not misleading if such statement or omission was made in reliance upon and accurately
derived from written information furnished to the Trust or its affiliates by or on behalf of the
Company or its affiliates; or
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(d) arise out of or result from any failure by the Company to perform the obligations, provide
the services or furnish the materials required under the terms of this Agreement; or
(e) arise out of or result from any material breach of any representation and/or warranty made
by the Company in this Agreement or arise out of or result from any other material breach of this
Agreement by the Company.
5.2 Indemnification By the Adviser. The Adviser agrees to indemnify and hold harmless the
Company its affiliates and each of its directors, officers, employees and agents and each person,
if any, who controls the Company or any of its affiliates within the meaning of Section 15 of the
1933 Act (collectively, the “Company Indemnified Parties” for purposes of this Article V) against
any and all losses, claims, damages, liabilities (including amounts paid in settlement with the
written consent of the Adviser which consent shall not be unreasonably withheld) or expenses
(including the reasonable costs of investigating or defending any alleged loss, claim, damage,
liability or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, “Losses”), to which the Company Indemnified Parties may become subject under any
statute or regulation, or at common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged untrue statements of any
material fact contained in the registration statement or prospectus for the Trust or in advertising
or sales literature for the Trust (or any amendment or supplement to any of the foregoing),
(collectively, “Trust Documents” for the purposes of this Article V), or arise out of or are based
upon the omission or the alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, provided that this indemnity
shall not apply as to any Company Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and was accurately derived from written information
furnished to the Trust by or on behalf of the Company or its affiliates for use in Trust Documents
or otherwise for use in connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations (other than statements or
representations contained in and accurately derived from Company Documents) or wrongful conduct of
the Adviser , the Distributor or the Trust or persons under its control (including, without
limitation, its employees), in connection with the sale or distribution of the Contracts or Trust
Shares; or
(c) arise out of or result from any untrue statement or alleged untrue statement of a material
fact contained in Company Documents or the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein not misleading if
such statement or omission was made in reliance upon and accurately derived from written
information furnished to the Company or its affiliates by or on behalf of the Trust or its
affiliates; or
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(d) arise out of or result from any failure by the Adviser, the Distributor or the Trust to
perform the obligations, provide the services or furnish the materials required under the terms of
this Agreement; or
(e) arise out of or result from any material breach of any representation and/or warranty made
by the Adviser, the Distributor or the Trust in this Agreement or arise out of or result from any
other material breach of this Agreement by the Adviser, the Distributor or the Trust.
5.3 No Party shall be liable under the indemnification provisions of Sections 5.1 or 5.2, as
applicable, with respect to any Losses incurred or assessed against a Trust Indemnified Party or a
Company Indemnified Party, as applicable (as to each, an “Indemnified Party”) to the extent the
Losses arise from such Indemnified Party’s willful misfeasance, bad faith or gross negligence in
the performance of such Indemnified Party’s duties or by reason of such Indemnified Party’s
reckless disregard of obligations or duties under this Agreement.
5.4 No Party shall be liable under the indemnification provisions of Sections 5.1 or 5.2, as
applicable, with respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the party or parties against whom Indemnification is sought (the
“Indemnifying Party”) in writing within a reasonable time after the summons, or other first
written notification, giving information of the nature of the claim shall have been served upon or
otherwise received by such Indemnified Party (or after such Indemnified Party shall have received
notice of service upon or other notification to any designated agent), but failure to notify the
Indemnifying Party of any such claim shall not relieve such Indemnifying Party from any liability
which it may have to the Indemnified Party in the absence of
Sections 5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties, the Indemnifying
Party shall be entitled to participate, at its own expense, in the defense of such action. The
Indemnifying Party also shall be entitled to assume the defense thereof, with counsel reasonably
satisfactory to the party named in the action. After notice from the Indemnifying Party to the
Indemnified Party of an election to assume such defense, the Indemnified Party shall cooperate
with the Indemnifying Party and bear the fees and expenses of any additional counsel retained by
it, and the Indemnifying Party will not be liable to the Indemnified Party under this Agreement
for any legal or other expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof other than reasonable costs of investigation.
ARTICLE VI
Confidentiality
Confidentiality
6.1 The Trust acknowledges that the identities of the customers of Company or any of its
affiliates (collectively, the “Company Protected Parties” for purposes of this Article VI),
information maintained regarding those customers, and all computer programs and procedures or
other information developed by the Company Protected Parties or any of their employees or agents
in connection with Company’s performance of its duties under this Agreement are the valuable
property of the Company Protected Parties. The Trust agrees that if it comes into
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possession of any list or compilation of the identities of or other information about the
Company Protected Parties’ customers, or any other information or property of the Company
Protected Parties, other than such information as may be independently developed or compiled by
the Trust from information supplied to it by the Company Protected Parties’ customers who also
maintain accounts directly with the Trust, the Trust will hold such information or property in
confidence and refrain from using, disclosing or distributing any of such information or other
property except: (a) with Company’s prior written consent; or (b) as required by law or judicial
process. The Trust agrees to notify Company Protected Parties of any unauthorized use or
disclosure of information pertaining to the Company Protected Parties’ customers within three days
of discovery of the incident.
6.2 The Company acknowledges that the identities of the customers of the Trust or any of its
affiliates (collectively, the “the Trust Protected Parties” for purposes of this Article VI),
information maintained regarding those customers, and all computer programs and procedures or
other information developed by the Trust Protected Parties or any of their employees or agents in
connection with the Trust’s performance of its duties under this Agreement are the valuable
property of the Trust Protected Parties. The Company agrees that if it comes into possession of
any list or compilation of the identities of or other information about the Trust Protected
Parties’ customers or any other information or property of the Trust Protected Parties, other than
such information as may be independently developed or compiled by Company from information
supplied to it by the Trust Protected Parties’ customers who also maintain accounts directly with
the Company, the Company will hold such information or property in confidence and refrain from
using, disclosing or distributing any of such information or other property except: (a) with the
Trust’s prior written consent; or (b) as required by law or judicial process. Each party
acknowledges that any breach of the agreements in this Article VI would result in immediate and
irreparable harm to the other parties for which there would be no adequate remedy at law and agree
that in the event of such a breach, the other parties will be entitled to equitable relief by way
of temporary and permanent injunctions, as well as such other relief as any court of competent
jurisdiction deems appropriate.
ARTICLE VII
Termination
Termination
7.1 (a) This Agreement may be terminated by either party for any reason by ninety (90) days
advance written notice delivered to the other party.
(b) This Agreement may be terminated by the Company immediately upon written notice to the
Trust with respect to any Portfolio:
(i) based upon the Company’s determination that Shares of such Portfolio are not reasonably
available to meet the requirements of the Contracts; or
(ii) in the event any of a Portfolio’s Shares are not registered, and in all material respects
issued or sold in accordance with applicable state and/or federal law or such law precludes the use
of such Shares as the underlying investment media of the Contracts issued or to be issued by the
Company; or
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(iii) in the event that such Portfolio ceases to qualify as a Regulated Investment Company
under Subchapter M of the Code or under any successor or similar provision, or if the Company
reasonably believes that the Trust may fail to so qualify; or
(iv) in the event that such Portfolio fails to meet the diversification
requirements specified in this Agreement; or upon institution of formal
proceedings against the Trust, the Distributor, or Adviser by FINRA, the
SEC, or any state securities or insurance department or any other regulatory
body if the Company shall determine, in its sole judgment exercised in good
faith, that the Trust, the Distributor or the Adviser has suffered a
material adverse change in its business, operations, financial condition, or
prospects since the date of this Agreement or is the subject of material
adverse publicity.
7.2 Notwithstanding any termination of this Agreement under Section 7.1, the Trust shall, at
the option of the Company, continue to make available additional Shares of the Trust (or any
Portfolio) for at least 180 days, pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement, provided that the
Company continues to pay the costs set forth in Section 2.3 and meet all obligations of the
Company under this Agreement (treating it as being in full force and effect), and further provided
that Shares of the Trust (or any Portfolio) shall only be required to be made available with
respect to owners of the Contracts for whom Shares are held by an Account on the effective date of
the termination. Such Contract owners will be permitted to reallocate investments in the Portfolio
and/or invest in the Portfolio upon the making of additional purchase payments under the
Contracts. The provisions of this Section 7.2 shall not apply to any termination pursuant to
Article IV or in the event the Trust determines to liquidate the Portfolio and end the Portfolio’s
existence.
7.3 The provisions of Articles IV and V shall survive the termination of this Agreement, and
the provisions of Articles II and III shall survive the termination of this Agreement as long as
Shares of the Trust are held on behalf of Contract owners in accordance with Section 7.2.
7.4 This Agreement will terminate as to any Portfolio upon at least sixty (60) days advance
written notice, unless a shorter time is agreed to by the parties at the option of the Trust upon
institution of formal proceedings against the Company by FINRA, the SEC, or any state securities
or insurance department or any other regulatory body if the Trust shall determine, in its sole
judgment exercised in good faith, that the Company has suffered a material adverse change in its
business, operations, financial condition, or prospects since the date of this Agreement or is the
subject of material adverse publicity.
7.5 This Agreement will terminate as to a Portfolio immediately upon prior written notice
which shall be given as soon as possible within twenty-four (24) hours after the terminating Party
learns of the event causing termination to be required:
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(a) at the option of the Trust if the Contracts issued by the Company cease to qualify as
annuity contracts or life insurance contracts under the Code (other than by reason of the
Portfolio’s noncompliance with Section 817(h) or Subchapter M of the Code) or if interests in an
Account under the Contracts are not registered, or, in all material respects, are not issued or
sold in accordance with any applicable federal or state law, including applicable exemptions from
registration under the federal securities laws;
(b) at the option of the Company, if any such Portfolio fails to comply with Section 817(h) or
Subchapter M of the Code: or
(c) upon another Party’s material breach of any provision of this Agreement.
7.6 The Parties hereto agree to cooperate and give reasonable assistance to one another in
taking all necessary and appropriate steps for the purpose of ensuring that an Account owns no
Shares of a Portfolio after the effective date of this Agreement’s termination with respect to
such Shares or, if such ownership following termination cannot be avoided, that the duration
thereof is as brief as reasonably practicable. Such steps may include, for example, combining the
affected Account with another Account, substituting other portfolio shares for those of the
affected Portfolio, or otherwise terminating participation by the Contracts in such Portfolio.
ARTICLE VIII
Notices
Notices
Any notice shall be sufficiently given when sent by registered or certified mail to the other
party at the address of such party set forth below or at such other address as such party may from
time to time specify in writing to the other party.
| If to the Trust: | Xxxxxx Xxxxxx, President | |||
| Northern Lights Variable Trust | ||||
| 000 Xxxxxxxx Xxxx. | ||||
| Xxxxxxxxx, Xxx Xxxx 00000 | ||||
| with a copy to: | XxXxx X. Xxxxxxxx, Esq. | |||
| Xxxxxxxx Xxxx LLP | ||||
| 310 Xxxxxx Xxxxxx, Xxxxx 0000 | ||||
| Xxxxxxxxxx, Xxxx 00000 | ||||
| If to the Company: | Xxxxxx Xxxxxx, Senior Vice President | |||
| New York Life Insurance and Annuity Corporation | ||||
| 51 Xxxxxxx Xxxxxx | ||||
| Xxx Xxxx, XX 00000 | ||||
| with a copy to: | Xxxxx Xxxxxxx, Associate General Counsel | |||
| New York Life Insurance and Annuity Corporation | ||||
| 1 Xxxxxxxx Xxxx | ||||
| Xxxxxx Xxxxxx, XX 00000 |
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| If to the Distributor: | Northern Lights Distributors, LLC | |||
| Attn: President | ||||
| 4000 Xxxxx 000xx Xxxxxx | ||||
| Xxxxx, XX 00000 | ||||
| If to the Adviser: | Xxxxxxx XxXxxxx, Chief Investment Officer | |||
| ValMark Advisers, Inc. | ||||
| 130 Xxxxxxxxxx Xxxxx, Xxxxx 000 | ||||
| Xxxxx, XX 00000 |
ARTICLE IX
Miscellaneous
Miscellaneous
9.1 The captions in this Agreement are included for convenience of reference only and in no
way define or delineate any of the provisions hereof or otherwise affect their construction or
effect.
9.2 This Agreement may be executed simultaneously in two or more counterparts, each of which
taken together shall constitute one and the same instrument.
9.3 If any provision of this Agreement shall be held or made invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be affected thereby.
9.4 This Agreement shall be construed and the provisions hereof interpreted under and in
accordance with the laws of State of New York without regard for that state’s principles of
conflict of laws.
9.5 The parties to this Agreement acknowledge and agree that all liabilities of the Trust
arising, directly or indirectly, under this Agreement, of any and every nature whatsoever, shall
be satisfied solely out of the assets of the Trust and that no Trustee, officer, agent or holder
of Shares of beneficial interest of the Trust shall be personally liable for any such liabilities.
9.6 Each party shall cooperate with each other party and all appropriate governmental
authorities (including without limitation the Securities and Exchange Commission, the Financial
Industry Regulatory Authority, Inc. and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with any investigation or
inquiry relating to this Agreement or the transactions contemplated hereby reasonable access to
its books and records in connection with any investigation or inquiry relating to this Agreement
or the transactions contemplated hereby.
9.7 The rights, remedies and obligations contained in this Agreement are cumulative and are
in addition to any and all rights, remedies and obligations, at law or in equity, which the
Parties hereto are entitled to under state and federal laws.
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9.8 The parties to this Agreement acknowledge and agree that this Agreement shall not be
exclusive in any respect.
9.9 Neither this Agreement nor any of its rights or obligations hereunder may be assigned by
any party without the prior written approval of the other parties.
9.10 No provisions of this Agreement may be amended or modified in any manner except by a
written agreement properly authorized and executed by all Parties hereto.
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers to execute this
Agreement as of the date and year first above written.
| NORTHERN LIGHTS VARIABLE TRUST |
||||
| By: | ||||
| Name: | Xxxxxx Xxxxxx | |||
| Title: | President | |||
| ValMark Advisers, Inc. |
||||
| By: | ||||
| Name: | Xxxxxxx XxXxxxx | |||
| Title: | Chief Investment Officer | |||
| Northern Lights Distributors, LLC |
||||
| By: | ||||
| Name: | Xxxxx Xxxxxxx | |||
| Title: | President | |||
| New York Life Insurance and Annuity Corporation |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
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SCHEDULE A
Separate Accounts and Associated Contracts
| Name of Separate Account and | Policies/Contracts Funded | |
| Date Established by Board of Directors | By Separate Account | |
Corporate-Sponsored VUL SA-I
|
CorpExec VUL 2-5, Corp Exec VUL 6 | |
| CorpExec Accumulator VUL | ||
Corporate sponsored Private Placement VUL SA-1
|
CorpExec PPVUL | |
Corporate-sponsored Private Placement VUL SA-2
|
CorpExec PPVUL |
SCHEDULE B
Participating Portfolios
TOPSTM Capital Preservation ETF Portfolio — Class 2
TOPSTM Balanced ETF Portfolio — Class 2
TOPSTM Moderate Growth ETF Portfolio — Class 2
TOPSTM Growth ETF Portfolio — Class 2
TOPSTM Aggressive Growth ETF Portfolio — Class 2
TOPSTM Protected Balanced ETF Portfolio — Class 2
TOPSTM Protected Moderate Growth ETF Portfolio — Class 2
TOPSTM Protected Growth ETF Portfolio — Class 2
Exhibit A
SAMPLE REPORT OF COMPLIANCE WITH TREAS. REG. SEC. 1.817-5
| NAME OF PORTFOLIO: | ABC INVESTMENTS |
| PERIOD OF REPORT: | January 1, ____ — March 31, ____ |
1. In accordance with the requirements of Treas. Reg. §1.817-5(b):
• No more than 55% of the value of the total assets of the Portfolio is represented by any
one investment;
• No more than 70% of the value of the total assets of the Portfolio is represented by any
two investments;
• No more than 80% of the value of the total assets of the Portfolio is represented by any
three investments; and
• No more than 90% of the value of the total assets of the Portfolio is represented by any
four investments.
2. The five largest investments of the Portfolio as of the close of the above reporting period are:
| Name | Fair Market Value | % of Total Portfolio Holdings |
3. If any of the assets of the Portfolio are subject to indebtedness (or if the Portfolio has
engaged in any borrowing), attached are schedules that show compliance with Treas. Reg. §1.817-5,
both when the Portfolio’s investments are considered without regard to any borrowing (gross basis)
and when borrowing is reflected (net basis).
4. During the above reporting period, has the Portfolio made any investments in foreign entities
that are treated as corporations for U.S. tax purposes?
| • | No _____Yes _____ |
If the response is “Yes”, the Portfolio shall use commercially reasonable efforts to make a
“qualified electing fund” election in order to avoid passive foreign investment company (“PFIC”)
income.
I hereby affirm that the above information is correct.
ABC INVESTMENTS
| By: | ||||
| Name: | ||||
| Title: | ||||
| Date: | ||||
