FORM OF FUND OF FUNDS INVESTMENT AGREEMENT
Exhibit (h)(12)
FORM OF
FUND OF FUNDS INVESTMENT AGREEMENT
THIS AGREEMENT, dated as of __________________, is made among the Acquiring Funds, severally and not jointly (each, an “Acquiring Fund”), and the Acquired Funds, severally and not jointly (each, an “Acquired Fund” and together with the Acquiring Funds, the “Funds”), in each case as listed on Schedule A, as amended from time to time. This Agreement shall be effective as of January 18, 2022.
WHEREAS, each Fund is registered with the U.S. Securities and Exchange Commission (“SEC”) as an investment company under the Investment Company Act of 1940, as amended, (the “1940 Act”);
WHEREAS, Section 12(d)(1)(A) of the 1940 Act limits the extent to which a registered investment company may invest in shares of other registered investment companies, Section 12(d)(1)(B) limits the extent to which a registered investment company, its principal underwriter (“Distributor”) or registered brokers or dealers (“Brokers”) may knowingly sell shares of such registered investment company to other investment companies, and Section 12(d)(1)(C) limits the extent to which an investment company may invest in the shares of a registered closed-end investment company;
WHEREAS, Rule 12d1-4 under the 1940 Act (the “Rule”) permits (i) registered investment companies, such as the Acquiring Funds, to invest in shares of other registered investment companies, such as the Acquired Funds, in excess of the limits of Section 12(d)(1)(A) and Section 12(d)(1)(C) of the 1940 Act, and (ii) registered investment companies, such as the Acquired Funds, as well as the Distributor and Brokers, knowingly to sell shares of the Acquired Funds to the Acquiring Funds in excess of the limits of Section 12(d)(1)(B) of the 1940 Act, subject to compliance with the conditions of the Rule;
WHEREAS, an Acquiring Fund may, from time to time, invest in shares of one or more Acquired Funds in excess of the limitations of Section 12(d)(1)(A) and Section 12(d)(1)(C), as applicable, in reliance on the Rule;
WHEREAS, an Acquired Fund, Distributor, or Broker, from time to time, may knowingly sell Shares of one or more Acquired Funds to an Acquiring Fund in excess of the limitations of Section 12(d)(1)(B) in reliance on the Rule; and
WHEREAS, to date such investments have been governed by a Participation Agreement dated as of _________________ by and among the parties (the “Participation Agreement”) and made in reliance on SEC exemptive relief that will be rescinded one year from the effective date of the Rule;
NOW THEREFORE, in accordance with the Rule, the Acquiring Funds and the Acquired Funds desire to set forth the following terms pursuant to which the Acquiring Funds may invest in the Acquired Funds in reliance on the Rule and the Acquired Funds, Distributor, or Broker may sell shares of the Acquired Funds to the Acquiring Funds in reliance on the Rule.
1. Terms of Investment
(a) In order to help reasonably address the risk of undue influence on an Acquired Fund that operates as a mutual fund (“Acquired Mutual Fund”) by an Acquiring Fund, and to assist the Acquired Mutual Fund’s investment adviser with making the required findings under the Rule, each Acquiring Fund and each Acquired Mutual Fund agree as follows:
(i) In-kind redemptions. The Acquiring Fund acknowledges and agrees that, if
and to the extent consistent with the Acquired Mutual Fund’s registration statement,as amended from time to time, the Acquired Mutual Fund in its sole discretion may honor any redemption request partially or wholly in-kind. In the event that the Acquired Mutual Fund honors a redemption request partially or wholly in-kind, the Acquired Mutual Fund shall have sole discretion to determine the selection of its portfolio securities to distribute in-kind.
(ii) Timing/advance notice of redemptions. The Acquiring Fund will use reasonable efforts to spread large redemption requests over multiple days or to provide advance notification of redemption requests to the Acquired Mutual Fund(s) whenever practicable and consistent with the Acquiring Fund’s best interests. The Acquired Mutual Fund acknowledges and agrees that any notification provided pursuant to the foregoing is not a commitment to redeem and constitutes an estimate that may differ materially from the amount, timing and manner in which a redemption request is submitted, if any.
(iii) Scale of investment. Upon a reasonable request by an Acquired Mutual Fund, the Acquiring Fund will provide summary information regarding the anticipated timeline of its investment in the Acquired Mutual Fund and the scale of its contemplated investments in the Acquired Mutual Fund.
(b) In order to assist the Acquiring Fund’s investment adviser with evaluating the complexity of the structure and fees and expenses associated with an investment in an Acquired Fund, each Acquired Fund shall provide each Acquiring Fund with information on the fees and expenses of the Acquired Fund and such other information relating to the Acquired Fund as may be reasonably requested by the Acquiring Fund to facilitate compliance with the Rule. In accordance with the foregoing and in recognition of each Acquired Fund’s obligations regarding disclosure of material nonpublic information under applicable laws, rules and regulations, including without limitation Regulation FD, each Acquiring Fund and Acquired Fund agree that the information on fees and expenses of each Acquired Fund shall be provided through delivery or access to publicly available documents.
(c) With respect to investments in Acquired Funds that operate as exchange-traded funds (“Acquired ETFs”), the Funds note that each Acquired ETF is designed to accommodate large investments and redemptions, whether from Acquiring Funds or other investors. Creation and redemption orders for shares of the Acquired ETFs can only be submitted by Brokers or other participants of a registered clearing agency (collectively, “Authorized Participants”) that have entered into an agreement (“Authorized Participant Agreement”) with the Acquired ETFs’ distributor to transact in shares of the Acquired ETFs. The Acquired ETFs also have policies and procedures (the “Basket Policies”) that have been adopted pursuant to Rule 6c-11 under the 1940 Act, which govern creations and redemptions of the Acquired ETFs’ shares. Any creation or redemption order submitted by an Acquiring Fund through an Authorized Participant will be satisfied pursuant to the Basket Policies and the relevant Authorized Participant Agreement. The Basket Policies include provisions that govern in-kind creations and redemptions, as well as cash transactions. In any event, the Funds generally expect that the Acquiring Funds will transact in shares in the Acquired ETFs on the secondary market rather than through direct creation and redemption transactions with the Acquired ETF. The Funds believe that these material terms regarding an Acquiring Fund’s investment in shares of an Acquired ETF should assist the Acquired ETF’s investment adviser with making the required findings under the Rule.
(d) With respect to investments in Acquired Funds that operate as closed-end funds (“Acquired CEFs”), the Funds note that Acquired CEFs do not permit daily redemptions, and that Acquired CEFs
that permit periodic repurchases, such as interval funds that operate under Rule 23c-3 under the 1940 Act or funds that conduct periodic tender offers pursuant to Rule 13e-4 under the Securities Exchange Act of 1934, as amended, would do so only under prescribed circumstances. Upon a reasonable request by an Acquired CEF, the Acquiring Fund will provide summary information regarding the anticipated timeline of its investment in the Acquired CEF and the scale of its contemplated investments in the Acquired CEF.
(e) An Acquiring Fund shall provide an Acquired Fund with information regarding the amount of the Acquiring Fund’s investments in the Acquired Fund, and information regarding affiliates of the Acquiring Fund, upon the Acquired Fund’s reasonable request.
2. Representations of the Acquired Funds.
(a) In connection with any investment by an Acquiring Fund in an Acquired Fund in excess of the limitations in Section 12(d)(1)(A) or Section 12(d)(1)(C) or knowing sale of shares by an Acquired Fund, Distributor, or Broker to an Acquiring Fund in excess of the limitations in Section 12(d)(1)(B), the Acquired Fund agrees to: (i) comply with all conditions of the Rule, as interpreted or modified by the SEC or its Staff from time to time, applicable to the Acquired Funds; (ii) comply with its obligations under this Agreement; and (iii) promptly notify the Acquiring Fund if such Acquired Fund fails to comply with the Rule with respect to an investment by the Acquiring Fund, as interpreted or modified by the SEC or its Staff from time to time, or fails to comply with this Agreement.
(b) Each Acquired Fund represents that it will not purchase or otherwise acquire during the term of this Agreement the securities of an investment company or private fund as defined in the Rule (a “Private Fund”) where immediately after such purchase or acquisition, the securities of investment companies and Private Funds owned by the Acquired Fund have an aggregate value in excess of 10% of the value of the total assets of the Acquired Fund except as otherwise permitted by the Rule and guidance issued thereunder by the SEC or its Staff.
3. Representations of the Acquiring Funds.
(a) In connection with any investment by an Acquiring Fund in an Acquired Fund in excess of the limitations in Section 12(d)(1)(A) or Section 12(d)(1)(C) or knowing sale of Shares by an Acquired Fund, Distributor, or Broker to an Acquiring Fund in excess of the limitations in Section 12(d)(1)(B), the Acquiring Fund agrees to: (i) comply with all conditions of the Rule, as interpreted or modified by the SEC or its Staff from time to time, applicable to the Acquiring Funds; (ii) comply with its obligations under this Agreement; and (iii) promptly notify the Acquired Fund if such Acquiring Fund fails to comply with the Rule with respect to its investment in such Acquired Fund, as interpreted or modified by the SEC or its Staff from time to time, or fails to comply with this Agreement.
(b) Shares of each Acquiring Fund will be offered and sold only to, and ownership of such shares will be limited solely to, separate accounts funding variable annuity contracts and variable life insurance policies issued by New York Life Insurance and Annuity Corporation (each, a “Contract”). Each Acquiring Fund will notify the Acquired Funds immediately upon having any basis for believing that the Acquiring Fund has ceased or might in the future cease to comply with Section 817(h) of the Internal Revenue Code of 1986, as amended (the “Code”), and Treasury Regulations Section 1.817-5 or as a regulated investment company under Subchapter M of the Code and in each case will not be
able to comply within the grace period afforded by Treasury Regulations Section 1.817-5 or Section 851 of the Code, as applicable. This provision will survive the termination of this Agreement for so long as shares of an Acquired Fund are held by any Acquiring Fund.
(c) Each Acquiring Fund is a regulated investment company that satisfies the “look through” requirements of Treasury Regulations Section 1.817-5(f), that limits the ownership of its shares or other beneficial interests to solely separate accounts of life insurance companies that fund variable life insurance policies, variable annuity policies and other variable insurance policies characterized as “variable contracts” under Section 817(d) of the Code and persons referred to in Treasury Regulations Section 1.817-5(f)(3) (an “Insurance Dedicated Fund”). Each Acquiring Fund will continue to qualify as an Insurance Dedicated Fund, and will notify the Acquired Funds immediately upon having any basis for believing that the Acquiring Fund has ceased to satisfy the requirements necessary to qualify as an Insurance Dedicated Fund, or that the Acquiring Fund might cease to satisfy such requirements in the future. This provision will survive the termination of this Agreement for so long as shares of an Acquired Fund are held by any Acquiring Fund.
(d) Each Acquiring Fund also agrees to notify the Acquired Funds reasonably in advance of offering shares of one or more Acquiring Funds other than to separate accounts funding variable annuity contracts and variable life insurance policies issued by New York Life Insurance and Annuity Corporation. This provision will survive the termination of this Agreement for so long as shares of an Acquired Fund are held by any Acquiring Fund.
4. Notices.
All notices, including all information that either party is required to provide under the terms of this Agreement and the Rule, shall be in writing and shall be delivered by registered orovernight mail, facsimile, or electronic mail to the address for each party specified below.
If to the Acquiring Fund: | If to the Acquired Fund: |
With a copy to: |
5. Term and Termination; Assignment; Amendment
(a) Unless otherwise set forth herein, this Agreement shall be effective for the duration of the Acquired Funds’ and the Acquiring Funds’ reliance on the Rule, as interpreted or modified by the SEC or its Staff from time to time. While the terms of the Agreement shall only be applicable to investments in Funds made in reliance on the Rule, as interpreted or modified by the SEC or its Staff from time to time, the Agreement shall continue in effect until terminated pursuant to Section 5(b).
(b) This Agreement shall continue until terminated in writing by either party upon 60 days’
written notice to the other party. Upon termination of this Agreement, the Acquiring Fund may not
purchase additional shares of the Acquired Fund beyond the Section 12(d)(1)(A) or Section 12(d)(1)(C) limits in reliance on the Rule.
(c) This Agreement may not be assigned by either party without the prior written consentof the other. In the event either party assigns this Agreement to a third party as provided in this Section, such permitted third party shall be bound by the terms and conditions of this Agreement applicable to the assigning party.
(d) This Agreement may be amended, including for the purpose of adding Acquiring Funds and Acquired Funds to Schedule A, only by a writing that is signed by each affected party.
6. Additional Provisions
(a) If one or more Acquiring Funds provides an Acquired Fund with the notice contemplated by either of Sections 3(b) or (c) hereof, or if an Acquired Fund has any basis for believing that: (1) a Contract will not be treated or qualified as a “variable contract” as defined under Section 817(d) of the Code; or (2) an Acquiring Fund has ceased or might in the future cease to comply with Section 817(h) of the Code and Treasury Regulations Section 1.817-5 or as a regulated investment company under Subchapter M of the Code and will not be able to comply within the grace period afforded by Treasury Regulations Section 1.817-5 or Section 851 of the Code (as applicable), then, in each case, the applicable Acquiring Funds will redeem the shares of the applicable Acquired Funds held by such Acquiring Fund(s) upon request of, and within the time period prescribed in such notice by, the Acquired Funds. If requested by the Acquired Funds under such circumstances, the Acquiring Funds will make other arrangements satisfactory to the Acquired Funds and their counsel.
(b) The Acquiring Funds and ___________________________, severally and not jointly, agree to hold harmless, indemnify and defend the Acquired Funds and MainStay VP Funds Trust, including any of their principals, trustees, officers, employees and agents (“Acquired Fund Agents”), against and from any and all losses, costs, expenses or liabilities incurred by or claims or actions (“Losses or Claims”) asserted against any Acquired Fund and/or MainStay VP Funds Trust, including any Acquired Fund Agents, to the extent such Losses or Claims arise in connection with Section 3(b), Section 3(c) or Section 3(d) hereof. The indemnification provided for in this paragraph shall include any reasonable counsel fees and expenses incurred in connection with investigating and/or defending such Losses or Claims. This provision shall survive the termination of this Agreement.
(c) The parties hereby mutually agree to terminate the Participation Agreement as of the date hereof and waive any provision of the Participation Agreement requiring advance notice of termination thereof.
(d) This Agreement will be governed by the laws of the ______________________ without regard to its choice of law principles.
(e) In no event and under no circumstances will any party to this Agreement be liable to any person, including without limitation any other party to this Agreement, for any special, indirect or consequential loss or damages resulting from any act or failure to act in accordance with the provision of this Agreement, even if such party had been advised of the possibility of such loss or damages.
(f) Other than as set forth in Section 6(b) hereof with respect to __________________________, in any action arising under this Agreement, each Acquiring Fund and each Acquired agrees to look solely to the particular Acquired Funds or Acquiring Funds, as applicable, involved in the matter in controversy and not to any other Fund.
(g) The parties are hereby put on notice that no director/trustee, officer, employee, agent, employee or shareholder of the Funds shall have any personal liability under this Agreement, and that this Agreement is binding only upon the assets and property of the applicable Funds.
[Signature page to follow.]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
Acquiring Funds
By: [insert] , On behalf of each of the Acquiring Funds
By: Name:
Title:
Acquired Funds
By: [insert], On behalf of each of the Acquired Funds
By: Name:
Title:
[insert]
Solely for purposes of Section 6(b) of this Agreement
By: Name:
Title:
SCHEDULE A
Acquiring Funds
Acquired Funds
