FUND PARTICIPATION AGREEMENT
This FUND PARTICIPATION AGREEMENT, made on this the 14th day of May,
1999, among JNLNY Variable Fund II LLC (the "Fund"), a limited liability company
organized under the laws of the State of Delaware, and Xxxxxxx National Life
Insurance Company of New York (the "Company"), a life insurance company
organized under the laws of the State of New York, on behalf of itself and on
behalf of JNLNY Separate Account II ("Separate Account"), a separate account of
the Company existing pursuant to the New York Insurance Code.
WITNESSETH:
WHEREAS, the Fund is an open-end management investment company, which
is divided into various investment series ("Series"), each Series being subject
to separate investment objectives and restrictions. (See Schedule A for
available Series); and
WHEREAS, the Company, by resolution, has established the Separate
Account on its books of account for the purpose of funding certain variable
contracts ("Contracts"); and
WHEREAS, the Separate Account, registered with the Securities and
Exchange Commission as a unit investment trust under the Investment Company Act
of 1940, as amended ("1940 Act"), is divided into various "Portfolios" under
which the income, gains and losses, whether or not realized, from assets
allocated to each such Portfolio are, in accordance with the Contracts, credited
to or charged against such Portfolio without regard to any other income, gains
or losses of other Portfolios or separate accounts or of the Company; and
WHEREAS, the Separate Account desires to purchase interests of the
Fund; and
WHEREAS, the Fund agrees to make its interests available to serve as
underlying investment media for the various Portfolios of the Separate Account
with each Series of the Fund serving as the underlying investment medium for the
corresponding Portfolio of the Separate Account; and
WHEREAS, the Fund has undertaken that its Board of Managers ("Board")
will monitor the Fund for the existence of any material irreconcilable conflicts
that may arise between the Contract owners of the Separate Account for the
purpose of identifying and remedying any such conflict.
NOW, THEREFORE, in consideration of the foregoing and of mutual
covenants and conditions set forth herein and for other good and valuable
consideration, the Fund and the Company (on behalf of itself and the Separate
Account) hereby agree as follows:
ARTICLE I
SALE OF FUND INTERESTS
1.1 The Contracts funded by the Separate Account will provide for the
allocation of net amounts among the various Portfolios of the Separate Account
for investment in the interests of the particular Series of the Fund underlying
each Portfolio. The selection of a particular Portfolio is to be made (and such
selection may be changed) in accordance with the terms of the Contract.
1.2 Fund interests to be made available to the respective Portfolios of
the Separate Account shall be sold by each of the respective Series of the Fund
and purchased by the Company for that Portfolio at the net asset value next
computed after receipt of each order, as established in accordance with the
provisions of the then current prospectus of the Fund. Interests of a particular
Series of the Fund shall be ordered in such quantities and at such times as
determined by the Company to be necessary to meet the requirements of those
Contracts having amounts allocated to the Portfolio for which the Fund Series
interests serve as the underlying investment medium. Orders and payments for
interests purchased will be sent promptly to the Fund and will be made payable
in the manner established from time to time by the Fund for the receipt of such
payments. Notwithstanding the foregoing, the Board of the Fund may refuse to
sell interests of any Series to any person or suspend or terminate the offering
of interests of any Series if such action is required by law or by regulatory
authority having jurisdiction over the Fund or is, in the sole discretion of the
Board acting in good faith and in light of its fiduciary duties under federal
and any applicable state laws, necessary in the best interests of the interest
holders of such Series.
1.3 The Fund will redeem the interests of the various Series when
requested by the Company on behalf of the corresponding Portfolio of the
Separate Account at the net asset value next computed after receipt of each
request for redemption, as established in accordance with the provisions of the
then current prospectus of the Fund. The Fund will make payment in the manner
established from time to time by the Fund for the receipt of such redemption
requests, but in no event shall payment be delayed for a greater period than is
permitted by the 0000 Xxx.
1.4 For purposes of paragraphs 1.2 and 1.3 above, the Company shall be
the agent of the Fund for the receipt of (1) orders to purchase, and (2)
requests to redeem, interests of the Series of the Fund on behalf of the
Separate Account, and receipt of such orders and requests by such agent shall
constitute receipt thereof by the Fund, provided that the Fund receives actual
notice of such order or request by 12:00 noon (at the Fund's offices) on the
next following Business Day. "Business Day" shall mean any day on which the New
York Stock Exchange is open for trading and on which the Fund calculates its net
asset value pursuant to the rules of the Securities and Exchange Commission.
1.5 Transfer of the Fund's interests will be by book entry only. No
stock certificates will be issued to the Separate Account. Interests ordered
from a particular Series of the Fund will be recorded in an appropriate title
for the corresponding Portfolio of the Separate Account.
1.6 The Fund shall furnish same day notice to the Company of any
dividend or distribution payable on its interests. All of such dividends and
distributions as are payable on each of the Series interests in the title for
the corresponding Portfolio of the Separate Account shall be automatically
reinvested in additional interests of that Series of the Fund. The Fund shall
notify the Company of the number of interests so issued.
1.7 The Fund shall make the net asset value per interest of each Series
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per interest is calculated and shall use its best efforts to
make such net asset value per interest available by 6:00 p.m. Eastern time.
ARTICLE II
SALES MATERIAL AND INFORMATION
2.1 The Company shall furnish to the Fund each piece of sales
literature or other promotional material in which the Fund or its investment
adviser is named at least ten business days prior to its use. No such material
shall be used if the Fund objects to such use within five business days after
receipt of such material.
2.2 The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus for the
Fund interests, as such documents may be amended or supplemented from time to
time, or in reports or proxy statements for the Fund, or in sales literature or
other promotional material approved by the Fund, except with the permission of
the Fund.
2.3 The Fund shall furnish to the Company each piece of sales
literature or other promotional material in which the Company or the Separate
Account is named at least ten business days prior to its use. No such material
shall be used if the Company objects to such use within five business days after
receipt of such material.
2.4 The Fund shall not give any information or make any representations
on behalf of the Company or concerning the Company, the Separate Account, or the
Contracts other than the information or representations contained in the
registration statement or prospectus for the Contracts, as such registration
statement and prospectus may be amended or supplemented from time to time, or in
published reports for the Separate Account which are in the public domain or
approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company, except with
the permission of the Company.
2.5 The Fund will provide to the Company at least one complete copy of
all registration statements, prospectuses, statements of additional information,
reports, proxy statements, sales literature and other promotional materials,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above that relate to the Fund or its interests, contemporaneously
with the filing of such document with the Securities and Exchange Commission or
other regulatory authorities.
2.6 The Company will provide to the Fund at least one complete copy of
all registration statements, prospectuses, statements of additional information,
reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Contracts or
the Separate Account, contemporaneously with the filing of such documents with
the Securities and Exchange Commission or other regulatory authorities.
2.7 For purposes of this Article II, 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), 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, and registration statements,
prospectuses, statements of additional information, interest holder reports, and
proxy materials.
ARTICLE III
EXPENSES
3.1 The Fund shall pay no fee or other compensation to the Company
under this Agreement. All expenses incident to performance by the Fund under
this Agreement shall be paid by the Fund. The Fund shall bear the expenses for:
the cost of registration of the Fund's interests; preparation and filing of the
Fund's prospectus and registration statement; preparation and filing of proxy
materials and reports; setting the prospectus in type; setting in type the proxy
materials and reports to interest holders; the preparation of all statements and
notices required of the Fund by any federal or state law; and all taxes on the
issuance or transfer of the Fund's interests.
3.2 The Fund's prospectus shall state that the statement of additional
information for the Fund is available from the Fund, and the Fund, at its
expense, shall provide such statement free of charge to the Company and to any
Contract owner or prospective Contract owner who requests such statement.
3.3 The Fund, at its expense, shall provide the Company with copies of
its proxy material, reports to interest holders and other communications to
interest holders in such quantities as the Company shall reasonably require for
distribution to Contract owners.
ARTICLE IV
VOTING
4.1 The Company shall provide pass-through voting privileges to all
Contract owners so long as the Securities and Exchange Commission continues to
interpret the 1940 Act to require pass-through voting privileges for variable
contract owners. The Company shall be responsible for assuring that the Separate
Account calculates voting privileges in a manner consistent with standards
provided by the Fund. To the extent required by law, the Company will vote
interests for which it has not received voting instructions as well as interests
attributable to the Company in the same proportion as it votes interests for
which it has received instructions.
4.2 The Fund will comply with all provisions of the 1940 Act requiring
voting by interest holders and, in particular, the Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Fund
is not one of the trusts described in Section 16(c) of that Act) as well as with
Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will act in
accordance with the Securities and Exchange Commission's interpretation of the
requirements of Section 16(a) with respect to periodic elections of directors
and with whatever rules the Commission may promulgate with respect thereto.
ARTICLE V
POTENTIAL CONFLICTS
5.1 The Board of the Fund will monitor the Fund for the existence of
any material irreconcilable conflict between the interests of the Contract
owners of the Separate Account. The Company will report to the Board any
potential or existing conflicts of which it is or becomes aware between any of
its Contract owners. The Company will be responsible for assisting the Board in
carrying out its responsibilities to identify and resolve material conflicts by
providing the Board with all information available to it that is reasonably
necessary for the Board to consider any issues raised, including information as
to a decision by the Company to disregard voting instructions of its Contract
owners.
5.2 The Board's determination of the existence of any irreconcilable
material conflict and its implications shall be made known promptly by it to the
Company. 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, 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 Series are being managed; or (e) a decision by the Company to
disregard the voting instructions of its variable contract owners.
5.3 If it is determined by a majority of the Board or a majority of its
disinterested Members of the Board that a material irreconcilable conflict
exists that affects the interests of the Contract owners, the Company shall, to
the extent reasonably practicable (as determined by a majority of the
disinterested Members), take whatever steps are necessary to remedy or eliminate
the irreconcilable material conflict, which steps could include: (a) withdrawing
the assets allocable to the Separate Account from the Fund or any Series and
reinvesting such assets in a different investment medium, including another
Series of the Fund, 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. If a material irreconcilable
conflict arises because of the Company's decision 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 Fund's election,
to withdraw the investment of the Separate Account in the Fund, and no charge or
penalty will be imposed as a result of such a withdrawal. The Company agrees to
take such remedial action as may be required under this paragraph 5.3 with a
view only to the interests of its Contract owners. For purposes of this
paragraph 5.3, a majority of the disinterested members of the Fund's Board shall
determine whether or not any proposed action adequately remedies any
irreconcilable conflict, but in no event will Fund be required to establish a
new funding medium for any variable contract. The Company shall not be required
by this paragraph 5.3 to establish a new funding medium if any offer to do so
has been declined by vote of a majority of Contract owners materially and
adversely affected by the irreconcilable material conflict.
Notwithstanding the foregoing, if the Company is required under this
paragraph 5.3 to withdraw the investment of the Separate Account in the Fund,
such withdrawal may take place within six (6) months after the Fund gives
written notice that this paragraph 5.3 is being implemented, provided that the
Fund may require that such withdrawal must take place within a shorter period of
time after such notice if a majority of the disinterested members of the Fund's
Board determines that such shorter period is necessary to avoid irreparable harm
to its interest holders; and further provided that until the end of such six
month (or shorter) period the Fund shall continue to accept and implement orders
by the Company for the purchase and redemption of Fund interests. The Company
will not be required to withdraw investments in the Separate Account of the Fund
until all regulatory approval is obtained.
5.4 In discharging its responsibilities under this Article V, the
Company will cooperate and coordinate, to the extent necessary, with the Board.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
6.1 The Company represents and warrants that the Contracts are or will
be registered under the Securities Act of 1933 ("1933 Act"), that the Contracts
will be issued and sold in compliance in all material respects with all
applicable federal and state laws, and that the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements.
The Company further represents and warrants that it is an insurance company duly
organized and in good standing under applicable laws and that it has legally and
validly established the Separate Account prior to any issuance or sale thereof
as a segregated asset account under the New York Insurance Code and has
registered or, prior to any issuance or sale of the Contracts, will register the
Separate Account as a unit investment trust in accordance with the provisions of
the 1940 Act to serve as a segregated investment account for the Contracts.
6.2 The Fund represents and warrants that Fund interests sold pursuant
to this Agreement shall be registered under the 1933 Act, shall be duly
authorized for issuance and sold in compliance with the laws of the State of
Delaware and all applicable federal and state securities laws and that the Fund
is and shall remain registered under the 0000 Xxx. The Fund shall amend the
Registration Statement for its interests under the 1933 Act and the 1940 Act
from time to time as required in order to effect the continuous offering of its
interests. The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Delaware and that it does and will
comply in all material respects with the 0000 Xxx.
6.3 The Fund represents and warrants that it will at all times invest
money from the Contracts in such a manner as to ensure that the Contracts will
be treated as variable contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund will at all
times comply with Section 817(h) of the Code and the Regulations thereunder,
relating to the diversification requirements for annuity contracts and any
amendments or other modifications to such Section or Regulation.
6.4 The Company represents that the Contracts are to be treated as
annuity contracts, under applicable provisions of the Code, and that it will
make every effort to maintain such treatment and that it will notify the Fund
immediately upon having a reasonable basis for believing that the Contracts have
ceased to be so treated or that they might not be so treated in the future.
6.5 The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
policies) complies with the insurance laws or regulations of the various states
except that the Fund represents that its investment policies, fees and expenses
are and shall at all times remain in compliance with the laws of the State of
Delaware and the Fund represents that its operations are and shall at all times
remain in material compliance with the 0000 Xxx.
6.6 The Fund represents and warrants that all of the Members of its
Board, its officers, employees, investment advisers, and other persons dealing
with the money or securities of the Fund are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
the Fund in an amount not less that the minimal coverage as required currently
by Section 17(g) of 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.
6.7 The Company represents and warrants that all of its directors,
officers, employees, and other persons who are directly dealing with the money
or securities of the Fund are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage in amounts which shall comply with
Rule 17g-1 under the 0000 Xxx.
6.8 The Fund represents and warrants that interests of the Fund will be
sold only to the Separate. No interests of any Series will be sold to the
general public.
6.9 The Company represents and warrants that it will make reasonable
efforts to market those Contracts it determines from time to time to offer for
sale and, although it is not required to offer for sale new Contracts in all
cases, will accept payments and otherwise service existing Contracts funded in
the Separate Account. No representation is made as to the number or amount of
such Contracts to be sold.
ARTICLE VII
INDEMNIFICATION
7.1 The Company agrees to indemnify and hold harmless the Fund and each
of the Members of the Fund's Board and officers and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933 Act against any
and all losses, claims, damages, liabilities or litigation (including legal and
other expenses), arising out of the acquisition of any interests of the Fund by
any person, to which the Fund or such Members, officers or controlling person
may become subject under the 1933 Act, under any other statute, at common law or
otherwise, which (i) may be based upon any wrongful act by the Company, any of
its employees or representatives, any affiliate of or any person acting on
behalf of the Company or a principal underwriter of its insurance products, or
(ii) may be based upon any untrue statement or alleged untrue statement of a
material fact contained in a registration statement or prospectus covering
interests of the Fund or any amendment thereof or supplement thereto 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 a statement or omission was made in reliance upon information furnished to
the Fund by the Company, or (iii) may be based on any untrue statement or
alleged untrue statement of a material fact contained in a registration
statement or prospectus covering the Contracts, or any amendments or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or statements
therein not misleading, unless such statement or omission was made in reliance
upon information furnished to the Company or such affiliate by or on behalf of
the Fund; provided, however, that in no case (i) is the Company's indemnity in
favor of a Member or officer or any other person deemed to protect such Member
or officer or other person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his or her duties or by reason of his or her
reckless disregard of obligations and duties under this Agreement or (ii) is the
Company to be liable under its indemnity agreement contained in this Paragraph
7.1 with respect to any claim made against the Fund or any person indemnified
unless the Fund or such person, as the case may be, shall have notified the
Company in writing pursuant to Paragraph 10 of this Agreement within a
reasonable time after the summons or other first legal process giving
information of the nature of the claims shall have been served upon the Fund or
upon such person (or after the Fund or such person shall have received notice of
such service on any designated agent), but failure to notify the Company of any
such claim shall not relieve the Company from any liability which it has to the
Fund or any person against whom such action is brought otherwise than on account
of its indemnity agreement contained in this Paragraph 7.1. The Company shall be
entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense of any suit which could result in liability to it
under this Paragraph 7.1, but, if it elects to assume the defense, such defense
shall be conducted by counsel chosen by it and satisfactory to the Fund and to
such of its officers, Members and controlling person or persons as may be
defendants in the suit. In the event that the Company elects to assume the
defense of any such suit and retain such counsel, the Fund, such officers,
Members and controlling person or persons shall bear the fees and expenses of
any additional counsel retained by them, but, in case the Company does not elect
to assume the defense of any such suit, the Company will reimburse the Fund,
such officers, Members and controlling person or persons for the reasonable fees
and expenses of any counsel retained by them. The Company agrees promptly to
notify the Fund pursuant to Paragraph 10 of this Agreement of the commencement
of any litigation or proceedings against it in connection with the issue and
sale of any interests of the Fund.
7.2 The Fund agrees to indemnify and hold harmless the Company and its
affiliated principal underwriter of the Contracts and each of the Company's
Directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all losses, claims,
damages, liabilities or litigation (including legal and other expenses) to which
it or such directors, officers or controlling person may become subject under
the 1933 Act, under any other statute, at common law or otherwise, arising out
of the acquisition of any interests of the Fund by any person which (i) may be
based upon any wrongful act by the Fund or any of its employees or
representatives, or (ii) may be based upon any untrue statement or alleged
untrue statement of a material fact contained in a registration statement or
prospectus covering interests of the Fund or any amendment thereof or supplement
thereto 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 unless such statement or omission was made in reliance upon
information furnished to the Fund by the Company, or (iii) may be based on any
untrue statement or alleged untrue statement of a material fact contained in a
registration statement or prospectus covering the Contracts, or any amendment or
supplement thereto, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statement
or statements therein not misleading, if such statement or omission was made in
reliance upon information furnished to the Company by or on behalf of the Fund;
provided, however, that in no case (i) is the Fund's indemnity in favor of a
Director or officer or any other person deemed to protect such Director or
officer or other person against any liability to which any such person would
otherwise be subject by reason of willful misfeasance, bad faith, or gross
negligence in the performance of his or her duties or by reason of his or her
reckless disregard of obligations and duties under this Agreement or (ii) is the
Fund to be liable under its indemnity agreement contained in this Paragraph 7.2
with respect to any claims made against the Company or any such Director,
officer or controlling person unless it, Director, officer or controlling
person, as the case may be, shall have notified the Fund in writing pursuant to
Paragraph 10 of this Agreement within a reasonable time after the summons or the
first legal process giving information of the nature of the claim shall have
been served upon it or upon such Director, officer or controlling person (or
after the Company or such Director, officer or controlling person shall have
received notice of such service on any designated agent), but failure to notify
the Fund of any claim shall not relieve it from any liability which it may have
to the person against whom such action is brought otherwise than on account of
its indemnity agreement contained in this Paragraph 7.2. The Fund will be
entitled to participate, at its own expense, in the defense, or, if it so
elects, to assume the defense of any suit which could result in liability to it
under this Paragraph 7.2, but, if the Fund elects to assume the defense, such
defense shall be conducted by counsel chosen by it and satisfactory to the
Company and to such of its Directors, officers and controlling person or persons
as may be defendants in the suit. In the event that the Fund elects to assume
the defense of any such suit and retain such counsel, the Company, such
Directors, officers and controlling person or persons shall bear the fees and
expenses of any additional counsel retained by them, but, in case the Fund does
not elect to assume the defense of any such suit, it will reimburse the Company,
such Directors, officers and controlling person or persons for the reasonable
fees and expenses of any counsel retained by them. The Fund agrees promptly to
notify the Company pursuant to Paragraph 10 of this Agreement of the
commencement of any litigation or proceedings against it or any of its officers
or Members in connection with the issue and sale of any of its interests.
ARTICLE VIII
CONFIDENTIALITY
8. Subject to the requirements of legal process and regulatory
authority, each party shall treat as confidential all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize
confidential information without the express written consent of the affected
party until such time as it may come into the public domain.
ARTICLE IX
TERMINATION
9.1 This Agreement shall terminate:
(a) at the option of the Company or the Fund upon 90
days' advance written notice to all other parties to
this Agreement, provided, however, such notice shall
not be given earlier than twenty four months
following the date of this Agreement; or
(b) at the option of the Company if any of the Fund's
interests are not reasonably available to meet the
requirements of the Contracts funded in the Separate
Account as determined by the Company; or
(c) at the option of any party to this Agreement upon
institution of formal proceedings against any other
party to this Agreement by the Securities and
Exchange Commission or any other regulatory body; or
(d) upon the vote of Contract owners having an interest
in a particular Portfolio of the Separate Account.
The Company will give 30 days' prior written notice
to the Fund of the date of any proposed action to
replace the Fund's interests; or
(e) at the option of the Company if the Fund's interests
are not registered, issued or sold in accordance with
applicable state and/or federal law or such law
precludes the use of such interests as the underlying
investment medium of the Contracts funded in the
Separate Account; or
(f) at the option of the Company if any Series of the
Fund fails to meet the diversification requirements
specified in paragraph 6.4 hereof.
9.2 Prompt notice of election to terminate under subparagraphs (b),
(c), (e), (f) and (g) of paragraph 9.1 shall be furnished by the electing party.
9.3 Notwithstanding any termination of this Agreement, the Fund shall,
at the option of the Company, continue to make available additional interests of
the Fund pursuant to the terms and conditions of this Agreement for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, without
limitation, the owners of the Existing Contracts shall be permitted to
reallocate investments in the Fund, redeem investments in the Fund or invest in
the Fund upon the making of additional purchase payments under the Existing
Contracts. The parties agree that this paragraph 9.3 shall not apply to any
terminations under Article V and the effect of such Article V terminations shall
be governed by Article V of this Agreement.
9.4 Notwithstanding Article V and the foregoing provisions of this
Article IX, the provisions of Article VII (Indemnification) and Article VIII
(Confidentiality) shall survive any termination of this Agreement.
ARTICLE X
NOTICES
10. Any notice shall be sufficiently given when sent by registered or
certified mail to each other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Fund:
JNLNY Variable Fund II LLC
ATTN: Xxxxxx X. Xxxxxxx
President
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
If to the Company or the Separate Account:
Xxxxxxx National Life Insurance Company of New York
ATTN: Xxxxxx X. Xxxxx
Senior Vice President
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
ARTICLE XI
APPLICABLE LAW
11. This Agreement shall be construed in accordance with the laws of
the State of New York.
ARTICLE XII
MISCELLANEOUS
12.1 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.
12.2 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.
12.3 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.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5 The Fund and the Company agree that the obligations of the Fund
under this Agreement shall not be binding upon any of the Managers, interest
holders, nominees, officers, employees or agents, whether past, present or
future, of the Fund individually, but are binding only upon the assets and
property of the Fund or of the appropriate Series thereof, as provided in the
Operating Agreement of the Fund. The execution and delivery of this Agreement
has been authorized by the Board of Managers of the Fund, and signed by an
authorized officer of the Fund, acting as such, and neither such authorization
by such Board of Managers nor such execution and delivery by such officer shall
be deemed to have been made by any of them or any interest holder of the Fund
individually or to impose any liability on any of them or any interest holder of
the Fund personally, but shall bind only the assets and property of the Fund or
of the appropriate Series thereof as provided in the Operating Agreement of the
Fund.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
Attest: JNLNY Variable Fund II LLC
/s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxx
President
Attest: Xxxxxxx National Life Insurance Company of
New York
/s/ Xxx X. Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Senior Vice President
JNLNY Separate Account II
Attest: By: Xxxxxxx National Life Insurance Company
of New York
/s/ Xxx X. Xxxxxxxxx
By: /s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Senior Vice President
SCHEDULE A
DATED MAY 14, 1999
JNL/First Trust The DowSM Target 10 Series
