EXHIBIT (8)(n)
PARTICIPATION AGREEMENT
AMONG
ML LIFE INSURANCE COMPANY OF NEW YORK,
LORD XXXXXX FAMILY OF FUNDS, AND
LORD XXXXXX DISTRIBUTOR LLC
THIS AGREEMENT, dated as of October 11, 2002, by and among ML Life
Insurance Company of New York (the "Company"), a New York life insurance
company, on its own behalf and on behalf of each segregated asset account of the
Company set forth on Schedule A hereto as may be amended from time to time
(hereinafter referred to individually and collectively as the "Account"), each
of the investment companies comprising the Lord Xxxxxx Family of Funds,
including each separate investment portfolio thereof, whether existing at the
date of this Agreement or established subsequent thereto (the "Fund Family"),
and Lord Xxxxxx Distributor LLC (the "Underwriter"), a New York limited
liability corporation.
WHEREAS, the shares of beneficial interests of the Fund (as defined
below) are divided into several series of shares, each representing the interest
in a particular managed portfolio of securities and other assets;
WHEREAS, the Fund is registered, or is a series of a fund registered,
as an open-end management investment company under the Investment Company Act of
1940, as amended, (the "1940 Act") and shares of the Fund are registered under
the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, Lord, Xxxxxx & Co. LLC (the "Adviser"), a Delaware limited
liability company, which serves as investment adviser to the Fund, is duly
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended;
WHEREAS, the Underwriter, which serves as distributor to the Fund, is
registered as a broker-dealer with the Securities and Exchange Commission (the
"SEC") under the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and is a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD");
WHEREAS, the Account is duly established and maintained as a segregated
asset account, duly established by the Company, on the date shown for such
Account on Schedule A hereto, to set aside and invest assets attributable to
variable annuity contracts set forth in Schedule A hereto, as it may be amended
from time to time by mutual written agreement (the "Contracts");
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WHEREAS, the Fund issues shares to the general public and to the
separate accounts of insurance companies ("Participating Insurance Companies")
to fund variable annuity and/or variable life insurance contracts sold to
certain qualified pension and retirement plans;
WHEREAS, the Company intends to purchase shares of other open-end
management investment companies that offer shares to the general public to fund
the Contracts;
WHEREAS, the Fund and the Underwriter know of no reason why shares in
the Fund may not be sold to Participating Insurance Companies to fund variable
annuity contracts sold to certain qualified pension and retirement plans (each a
"Plan" and collectively, the "Plans"); and
WHEREAS, Company and the Fund desire to facilitate the purchase and
redemption of Shares of certain funds in the Fund Family as specified on
Schedule B hereto (hereinafter referred to individually and collectively as the
"Fund"), through one or more accounts in the Fund established by the Company
through the Fund's designated transfer agent in the name of the Plans or in the
name of the Account maintained by Company with respect to or on behalf of the
Plans.
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase Class A shares ("Shares") of the Fund on behalf
of the Account to fund the aforesaid Contracts, and the Underwriter is
authorized to sell such Shares in the Fund to the Account at net asset value to
the extent such purchases qualify for net asset value treatment under the terms
of the Fund's then current prospectus and statement of additional information
("SAI").
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, and the Underwriter agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund has granted to the Underwriter exclusive authority to
distribute the Fund's shares, and has agreed to instruct, and has so instructed,
the Underwriter to make available to the Company for purchase on behalf of the
Account Shares of the Fund. Pursuant to such authority and instructions, and
subject to Article IX hereof, the Underwriter agrees to make the Shares
available to the Company for purchase on behalf of the Account, such purchases
to be effected at net asset value in accordance with Section 1.3 of this
Agreement and the terms of the Fund's then current prospectus and SAI.
Notwithstanding the foregoing, the Board of Directors/Trustees of the Fund (each
a "Board" and collectively, the "Boards")) may suspend or terminate the offering
of Shares of the Fund, if such action is required by law or by regulatory
authorities having jurisdiction or if, 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, suspension or termination is necessary in the best
interests of the shareholders of the Fund. The Fund may refuse to sell Shares to
any person, or suspend or terminate the offering of the Shares of the Fund if
such
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action is required by law or by regulatory authorities having jurisdiction or
is, in the sole discretion of the Fund, deemed necessary, desirable or
appropriate. Without limiting the foregoing, it has been determined that there
is a significant risk that the Fund and its shareholders may be adversely
affected by short-term or excessive trading activity, particularly activity used
to try and take advantage of short-term swings in the market. According, the
Fund reserves right to reject any purchase order, includes those purchase orders
with respect to shareholders or accounts whose trading has been or may be
disruptive to the Fund or that may otherwise adversely affect the Fund. The
Company acknowledges that the Fund has certain policies and restrictions on
short-term or excessive trading activity and agrees to cooperate with
identifying and monitoring such activity, provide reasonable cooperation in
controlling such activity and take such action as reasonably requested by Fund
with respect to such activity.
1.2. The Fund shall redeem, at the Company's request, any full or
fractional Shares held by the Company on behalf of the Account, such redemptions
to be effected at net asset value in accordance with Section 1.3 of this
Agreement. Notwithstanding the foregoing, (i) the Company shall not redeem
Shares attributable to Contract owners except in the circumstances permitted in
Section 9.3 of this Agreement, and (ii) the Fund may delay redemption of Shares
of the Fund to the extent permitted by the 1940 Act, and any rules, regulations,
or orders thereunder.
1.3. Purchase and Redemption Procedures
(a) The Fund hereby appoints the Company as an agent of
the Fund for the limited purpose of receiving purchase and redemption requests
on behalf of the Account (but not with respect to any Fund shares that may be
held in the general account of the Company) for the Shares made available
hereunder, based on allocations of amounts to the Account or subaccounts thereof
under the Contracts and other transactions relating to the Contracts or the
Account. All transactions on behalf of the Accounts shall be executed through
the omnibus accounts of Company's affiliate Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx, Inc. ("Omnibus Accounts"). Any such request (or relevant transactional
information therefor) received by the Company on any day 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 SEC ( a "Business Day") prior to the time
that the Fund ordinarily calculates its net asset value as described from time
to time in the Fund Prospectus (which as of the date of execution of this
Agreement is 4:00 p.m. Eastern Time) shall be executed by the Fund or its
designee at the net asset value determined as of the close of trading on that
same Business Day, provided that the Fund or its designee receives notice of
such request by 9:00 a.m. Eastern Time on the next following Business Day, or in
the event of systems issues necessitating later delivery of such purchase and
redemption requests by 11:00 a.m. Eastern Time on the next following Business
Day, provided Fund or its designee receives notice of any such issues by 9:30
a.m. Eastern Time on the next following Business Day. Company will provide to
the Fund or its designee via the NSCC Fund SERV DCC & S platform (which utilizes
the "as of" record layout within Fund/SERV) one or more files detailing the
instructions received with respect to each Plan prior to 4:00 p.m. Eastern Time
on the prior Business Day for each Fund.
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(b) The Company shall pay for Shares on the same day that
it notifies the Fund of a purchase request for such Shares. Payment for Shares
shall be made in federal funds transmitted to the Fund via the NSCC Fund/SERV
DCC&S platform to be received by the Fund by 6:30 p.m. Eastern Time on the day
the Fund is notified of the purchase request for Shares (unless the Fund
determines and so advises the Company that sufficient proceeds are available
from redemption of Shares of another Fund effected pursuant to redemption
requests tendered by the Company on behalf of the Account). Upon receipt of
federal funds transmitted via the NSCC Fund/SERV DCC&S platform, such funds
shall cease to be the responsibility of the Company and shall become the
responsibility of the Fund. Notwithstanding any provision of this Agreement to
the contrary, for purchase and redemption instructions with respect to any
Shares, Company and the Fund will settle the purchase and redemption
transactions referred to herein, via the NSCC Fund/SERV platform settlement
process on the next Business Day following the effective trade date. The Fund
will provide to Company a daily transmission of positions and trading activity
taking place in the Omnibus Accounts using Company's affiliate's proprietary
Inventory Control System ("ICS").
(c) Payment for Shares redeemed by the Account or the
Company shall be made in federal funds transmitted via the NSCC Fund/SERV DCC&S
platform to the Company or any other designated person on the next Business Day
after the Fund is properly notified of the redemption order of such Shares
(unless redemption proceeds are to be applied to the purchase of Shares of
another Fund in accordance with Section 1.3(b) of this Agreement), except that
the Fund reserves the right to redeem Shares in assets other than cash and to
delay payment of redemption proceeds to the extent permitted under Section 22(e)
of the 1940 Act and any Rules thereunder, and in accordance with the procedures
and policies of the Fund as described in the Fund's then current prospectus. The
Fund shall not bear any responsibility whatsoever for the proper disbursement or
crediting of redemption proceeds by the Company; the Company alone shall be
responsible for such action.
(d) Any purchase or redemption request for Shares held or
to be held in the Company's general account shall be effected at the closing net
asset value per share next determined after the Fund's receipt of such request
as set forth in Section 1.3(a) herein.
1.4. The Fund shall use its best efforts to make the closing net
asset value per Share for the Fund available to the Company by 6:30 p.m. Eastern
Time each Business Day via the NSCC Profile 1 platform, and in any event, as
soon as reasonably practicable after the closing net asset value per Share for
the Fund is calculated, and shall calculate such closing net asset value,
including any applicable daily dividend factor, in accordance with the Fund's
Prospectus. In the event that a Fund's net asset value per Share is not made
available to the Company by 6:30 p.m. Eastern Time on a given Business Day ("Day
1"), and the Company is unable to calculate purchase and redemption orders for
the Fund's Shares received on Day 1 ("Day 1 Trades") for transmission to the
Fund or its designee within the timeframes identified in Section 1.3(a), as
applicable, the Company agrees provide the Fund with estimates of trade orders
prior to the trade order deadline identified in Section 1.3(a) and to calculate
such Day 1 Trades in the next cycle
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based on the Fund's net asset value per Share when received and transmit such
orders to the Fund or its designee, either separately or along with, but
separately identified from, the purchase and redemption orders received on the
next Business Day ("Day 2 Trades"), within the timeframes identified in Section
1.3(a) for Day 2 Trades. In such event, provided that Day 1 Trades are
segregated and separately identified from Day 2 Trades when transmitted to the
Fund or its designee, the Fund agrees to effect Day 1 Trades at the Fund's net
asset value per Share for Day 1. Neither the Fund, the Underwriter, nor any of
their affiliates shall be liable for any information provided to the Company
pursuant to this Agreement which information is based on incorrect information
supplied by the Company to the Fund or the Underwriter.
1.5. Notwithstanding anything to the contrary contained in this
Agreement, the Fund will make Shares available for purchase by the Company, on
its behalf and on behalf of the Account, at net asset value and agrees to waive
any contingent deferred sales charge, redemption fees or exchange fees. The
parties agree that no selling concession or other similar compensation of any
sort shall be paid in connection with purchases of Shares pursuant to this
Agreement. The Fund shall furnish notice (via the NSCC Profile II platform to
the Company as soon as reasonably practicable of any income dividends or capital
gain distributions payable on any Shares. The form of payment of dividends and
capital gains distributions will be determined in accordance with the Company's
operational procedures in effect at the time of the payment of such dividend or
distribution and Company will notify Fund of such form of payment. The parties
understand and agree that all transactions of Account shares contemplated herein
shall be executed through the Omnibus Account and that Company's affiliate,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx, Inc. will receive all such dividends and
distributions in the form of cash which Company, in turn, will immediately
reinvest in the form of additional Shares of that Fund. The Fund or its designee
shall notify the Company promptly of the number of Shares so issued as payment
of such dividends and distributions. The Company reserves the right, on its
behalf and on behalf of the Account, to revoke this election and to receive all
such dividends and capital gain dividends and distributions in the form of cash.
1.6. Issuance and transfer of Shares shall be by book entry only
and executed through the Omnibus Accounts. Stock certificates will not be issued
to the Company or the Account. Purchase and redemption orders for the Fund's
shares shall be recorded in an appropriate ledger for the Account or the
appropriate subaccount of the Account.
1.7 Fund Information.
(a) Subject to the terms of this Agreement, the Fund will provide (or
cause to be provided) to Company the information set forth in Schedule C hereto.
In addition, notwithstanding anything contained in this Agreement to the
contrary, the Fund hereby agrees that Company may use, subject to Article IV
hereof and subject to Company's compliance with applicable SEC and NASD rules
and regulations, such information in communications prepared for the Contracts,
including, but not limited to, application, marketing, sales and other
communications materials. The Fund will provide timely notification to Company
of any change to the information described in Part I of Schedule C
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including without limitation any change to the CUSIP number or symbol
designation of a Fund. Such notification shall be given to Company at least ten
(10) Business Days or as soon as practicable prior to the effective date of the
change.
1.8. The parties hereto acknowledge that the arrangement
contemplated by this Agreement is not exclusive; the Fund's shares may be sold
to other investors and the cash value of the Contracts may be invested in other
investment companies.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts (a)
are, or prior to issuance will be, registered under the 1933 Act, or (b) are not
registered because they are properly exempt from registration under the 1933 Act
or will be offered exclusively in transactions that are properly exempt from
registration under the 1933 Act. The Company further represents and warrants
that the Contracts will be issued and sold in compliance in all material
respects with all applicable federal securities and state securities and
insurance 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 law, that it has legally and validly established
the Account prior to any issuance or sale thereof as a segregated asset account
under Arkansas insurance laws, and that it (a) has registered or, prior to any
issuance or sale of the Contracts, will register the 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, or alternatively (b) has not
registered the Account in proper reliance upon an exclusion from registration
under the 1940 Act. The Company shall register and qualify the Contracts or
interests therein as securities in accordance with the laws of the various
states only if and to the extent deemed advisable by the Company.
2.2 The Company represents and warrants that the Contracts provide
for the allocation of net amounts received by the Company to the Account, for
investment in the shares of specified investment companies selected among those
companies available through the Account to act as underlying investment media.
2.3. The Fund represents and warrants that Shares sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with applicable state and federal securities
laws and that the Fund is and shall remain registered under the 0000 Xxx. The
Fund shall amend the registration statement for its Shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the continuous
offering of its Shares. The Fund shall register and qualify the Shares for sale
in accordance with the laws of the various states only if and to the extent
deemed advisable by the Fund, the Adviser, or the Underwriter.
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2.4. The Fund and the Underwriter agree to comply with any
applicable state insurance laws or regulations (including the furnishing of
information not otherwise available to the Company which is required by state
insurance law to enable the Company to obtain the authority needed to issue the
Contracts in any applicable state, and including cooperating with the Company in
any filings of sales literature for the Contracts), to the extent notified
thereof in writing by the Company.
2.5. The Fund represents that it is lawfully organized and validly
existing under the laws of the state of its incorporation and that it does and
will comply in all material respects with the 1940 Act.
2.6. The Underwriter represents and warrants that it is a member in
good standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in accordance with any applicable state and federal securities laws.
2.7. The Fund and the Underwriter represent and warrant that all of
their trustees/directors, officers, employees, investment advisers, and other
individuals or entities dealing with the money and/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 than the
minimum coverage as required currently by Rule 17g-1 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.
ARTICLE III. Prospectuses and Proxy Statements; Voting
3.1. The Underwriter shall provide the Company with as many copies
of the Funds current prospectus and periodic reports to shareholders as the
Company may reasonably request. The Fund or the Underwriter shall bear the
expense of printing copies of the current prospectus and periodic reports to
shareholders for the Fund that will be distributed to existing and prospective
Contract owners whose Contracts are funded by Shares of the Fund. If requested
by the Company in lieu thereof, the Fund shall provide such documentation
(including a final copy of the new prospectus on diskette at the Fund's or
Underwriter's expense) and other assistance as is reasonably necessary in order
for the Company once each year (or more frequently if the prospectus for the
Fund is amended) to have the prospectus and/or periodic shareholder reports for
the Contracts and the Fund's prospectus and/or periodic reports to shareholders
printed together in one document, provided however that Company shall ensure
that, except as expressly authorized in writing by Fund, no alterations, edits
or changes whatsoever are made to prospectuses, periodic reports to shareholders
or other Fund documentation after such documentation has been furnished to
Company or its designee, and Company shall assume liability for any and all
alterations, errors or other changes that occur to such prospectuses, periodic
reports to shareholders or other Fund documentation after it has been furnished
to
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Company or its designee. In the event that Company determines to have the
prospectus and/or periodic shareholder reports for the Contracts and the Fund's
prospectus and/or periodic reports to shareholders printed together in one
document, the Fund, its designee or the Underwriter shall reimburse the Company
for the pro-rata share of the printing costs (excluding any non-printing costs
such as composition and document layout costs) for those pages that contain the
Fund's prospectus or periodic reports to shareholders that the Company may
reasonably print for distribution to existing and prospective Contract owners
whose Contracts are funded by Shares of the Fund. Company shall use best efforts
to minimize such printing costs and Company agrees that neither the Fund, its
designee, nor the Underwriter shall not be responsible to reimburse Company for
such pro-rata printing costs to the extent such costs exceed the Fund's per/unit
cost of printing prospectuses and periodic reports to shareholders. Company
shall provide such documentation as Fund or the Underwriter shall reasonably
request in connection with the reimbursement of such costs, including a
breakdown of the printing costs of prospectuses and periodic reports to
shareholders that are distributed to existing Contract owners whose Contracts
are funded by Shares of the Fund.
Notwithstanding the foregoing, the Company agrees (i) if the Fund or
Underwriter reasonably determines in good faith that any request(s) for Fund
prospectuses and periodic reports to shareholders, except those for existing
Contract owners whose Contracts are funded by Shares of the Fund, is excessive
in number, Company agrees it will negotiate in good faith an equitable
allocation between the parties of the printing and delivery costs of such Fund
documents; and (ii) if the Fund or Underwriter reasonably determines in good
faith that their pro-rata share of the printing costs, as described in the
preceding paragraph, for those pages that contain the Fund's prospectus or
periodic reports to shareholders that are printed by the Company, except those
relating to documents for Contract owners whose Contracts are funded by Shares
of the Fund, are excessive, the Company agrees that it will negotiate in good
faith an equitable allocation between the parties of such printing costs.
3.2. The Fund's prospectus shall state that the current SAI for the
Fund is available, and the Underwriter (or the Fund), at its expense, shall
provide a reasonable number of copies of such SAI free of charge to the Company
for itself and for any owner of a Contract who requests such SAI.
3.3. As reasonably requested by Company, the Fund shall provide the
Company with information regarding the Fund's expenses, which information may
include a table of fees and related narrative disclosure for use in any
prospectus or other descriptive document relating to a Contract.
3.4. To the extent that pass-through voting is applicable to the
Contracts the Fund, at its or the Underwriter's expense, shall provide the
Company with copies of its proxy material, reports to shareholders, and other
communications to shareholders in such quantity as the Company shall reasonably
require for distributing to Contract owners.
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3.5. The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Shares in accordance with instructions
received from Contract owners; and
(iii) vote Shares for which no instructions have been
received in the same proportion as Shares of the Fund
for which instructions have been received,
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract owners or to the
extent otherwise required by law. The Company will vote Shares held in any
segregated asset account in the same proportion as Shares of the Fund for which
voting instructions have been received from Contract owners, to the extent
permitted by law.
ARTICLE IV. Sales Material and Information
4.1. The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee, each piece of sales literature or other promotional
material that the Company develops and in which the Fund or the Adviser or the
Underwriter is named. No such material shall be used until approved by the Fund
or its designee. The Fund or its designee will be deemed to have approved such
sales literature or promotional material unless the Fund or its designee objects
or provides comments to the Company within ten (10) Business Days after receipt
of such material. The Fund or its designee reserves the right to reasonably
object to the continued use of any such sales literature or other promotional
material in which the Fund or the Adviser or the Underwriter is named, and no
such material shall be used if the Fund or its designee so object.
4.2. (a) The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund or
the Adviser or the Underwriter in connection with the sale of the Contracts
other than the information or representations contained in the registration
statement or profiles or prospectus or SAI for the Fund Shares, as such
registration statement and profiles and prospectus or SAI 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 or its
designee or by the Underwriter, except with the permission of the Fund or the
Underwriter or the designee of either. Neither Company nor its affiliates or
agents shall give such information or make such representations or statements in
a context that it knows or should have known causes the information,
representations or statements to be false or misleading.
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(b) With the exception of (i) listings of product offerings;
(ii) materials already in the public domain (e.g., magazine articles and trade
publications); and (iii) materials used by Company on an internal basis only,
and subject to compliance with applicable NASD and SEC rules and regulations,
Company agrees not to furnish or cause to be furnished to any third parties or
to display publicly or publish any information or materials relating to the
Fund, except such materials and information as may be distributed to Company by
Fund or approved for distribution by the Fund upon Company's request.
4.3. The Fund and the Underwriter, or their designee, shall
furnish, or cause to be furnished, to the Company, each piece of sales
literature or other promotional material that it develops and in which the
Company, and/or its Account, is named. No such material shall be used until
approved by the Company. The Company will be deemed to have approved such sales
literature or promotional material unless the Company objects or provides
comments to the Fund, the Underwriter, or their designee within ten Business
Days after receipt of such material. The Company reserves the right to
reasonably object to the continued use of any such sales literature or other
promotional material in which the Company and/or its Account is named, and no
such material shall be used if the Company so objects.
4.4. The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company, the
Account, or the Contracts other than the information or representations
contained in a registration statement and prospectus (which shall include an
offering memorandum, if any, if the Contracts issued by the Company or interests
therein are not registered under the 1933 Act), or SAI for the Contracts, as
such registration statement, prospectus, or SAI may be amended or supplemented
from time to time, or in published reports for the 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 or its
designee, except with the permission of the Company. Neither the Fund nor the
Underwriter shall give such information or make such representations or
statements in a context that knows or should have known causes the information,
representations or statements to be false or misleading.
4.5. The Fund will provide to the Company at least one complete
final copy of all registration statements, prospectuses, SAIs, reports, proxy
statements, sales literature and other promotional materials as set forth on
Schedule C.
4.6. The Company shall provide to the Fund and the Underwriter any
complaints received from the Contract owners pertaining solely to the Fund.
4.7. The Fund will provide the Company with as much notice as is
reasonably practicable of any proxy solicitation for the Fund, and of any
material change in the Fund's registration statement, particularly any change
resulting in a change to the registration statement
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or prospectus for any Account. The Fund will work with the Company so as to
enable the Company to solicit proxies from Contract owners, or to make changes
to its prospectus or registration statement, in an orderly manner.
4.8. For purposes of this Article IV, the phrase "sales literature
and other promotional materials" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: 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, 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,
SAIs, shareholder reports, proxy materials, and any other communications
distributed or made generally available with regard to the Fund.
ARTICLE V. Fees and Expenses
5.1. Except as otherwise expressly provided in this Agreement, each
party agrees to bear all expenses incident to performance by the party under
this Agreement. Fund and Company agree that, notwithstanding the existence of
any other agreement(s) between the parties and/or its affiliates as of the date
of this Agreement, the Company and/or its affiliates shall receive no other
compensation with respect to the Shares purchased by or on behalf of the Account
and/or with respect to the Contracts, except as set forth in the following four
agreements: (i) this Agreement; (ii) the Shareholder Services Agreement between
the Company and Underwriter dated October 11, 2002 (iii) the Sub-Transfer Agency
Agreement between the Company and Fund dated October 11, 2002; and (iv) the
Administrative Services agreement between the Company and Adviser dated October
11, 2002.
5.2 All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund. The Fund shall see to it that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Fund, in
accordance with applicable state laws prior to their sale. The Fund shall bear
the expenses for the cost of registration and qualification of the Fund's
shares, preparation and filing of the Fund's prospectus and registration
statement, proxy materials and reports, setting the prospectus in type, setting
in type and printing the proxy materials and reports to shareholders (including
the costs of printing a prospectus that constitutes an annual report), the
preparation of all statements and notices required by any federal or state law,
and all taxes on the issuance or transfer of the Fund's shares.
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5.3. The Company shall bear the expenses of distributing the Fund's
prospectus to owners of Contracts issued by the Company and of distributing the
Fund's proxy materials and reports to such Contract owners.
ARTICLE VI. Diversification and Qualification
6.1. The Fund represents that it is or will be qualified as a
Regulated Investment Company under Subchapter M of the Code, and that it will
maintain such qualification (under Subchapter M or any successor or similar
provisions) and that it will notify the Company immediately upon having a
reasonable basis for believing that it has ceased to so qualify or that it might
not so qualify in the future.
ARTICLE VII. Indemnification
7.1. Indemnification By the Company
7.1(a). Subject to Section 7.3 below, the Company agrees to
indemnify and hold harmless the Fund and the Underwriter and each of its
trustees/directors and officers, and each person, if any, who controls the Fund
or the Underwriter within the meaning of Section 15 of the 1933 Act or who is
under common control with the Underwriter (collectively, the "Indemnified
Parties" for purposes of this Section 7.1) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of the Company) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject under any statute
or regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements:
(i) arise out of or are based upon any untrue statement
or alleged untrue statements of any material fact contained in the registration
statement, prospectus (which shall include a written description of a Contract
that is not registered under the 1933 Act), or SAI for the Contracts or
contained in sales literature for the Contracts (or any amendment or supplement
to any of the foregoing), 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
agreement to indemnify shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission was made in reliance
upon and in conformity with information furnished to the Company by or on behalf
of the Fund for use in the registration statement, prospectus or SAI for the
Contracts or in the Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the Contracts or
Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus, SAI, or sales literature of the Fund not
supplied by the Company or persons under its control) or wrongful
12
conduct of the Company or its agents or persons under the Company's
authorization or control, with respect to the sale or distribution of the
Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, prospectus,
SAI, or sales literature 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 or on behalf of the Company; or
(iv) arise as a result of any material failure by the
Company to provide the services and furnish the materials under the terms of
this Agreement (including a failure, whether unintentional or in good faith or
otherwise, to comply with the qualification requirements specified in Section
6.1 of this Agreement); or
(v) 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;
as limited by and in accordance with the provisions of Sections 7.1(b) and
7.1(c) hereof.
7.1(b). The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of 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 its obligations or
duties under this Agreement.
7.1(c). The Company shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party 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 may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against an Indemnified Party, the Company shall be entitled to participate, at
its own expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Company to such party of the
Company's election to assume the defense thereof, the Indemnified Party shall
bear the fees and expenses of any additional counsel retained by it, and the
Company will not be liable to such party under this Agreement for any legal or
other expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
13
7.1(d). The Indemnified Parties will promptly notify the
Company of the commencement of any litigation or proceedings against them in
connection with the issuance or sale of Fund shares or the Contracts or the
operation of the Fund.
7.2. Indemnification by the Funds and Underwriter
7.2(a). Subject to Section 7.3 below, each of the Fund and
Underwriter respectively agree to indemnify and hold harmless the Company and
each of its directors and officers and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 7.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Underwriter) or litigation (including reasonable
legal and other expenses) to which the Indemnified Parties may become subject
under any statute or regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the registration
statement or profile or prospectus or SAI or sales literature of the Fund (or
any amendment or supplement to any of the foregoing), 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 agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with information furnished
to the Underwriter or the Fund by or on behalf of the Company for use in the
registration statement, profile, prospectus or SAI for the Fund or in sales
literature (or any amendment or supplement) or otherwise for use in connection
with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in the
registration statement, prospectus, SAI or sales literature for the Contracts
not supplied by the Underwriter or persons under their control) or wrongful
conduct of the Fund or the Underwriter or persons under their control, with
respect to the sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration statement, prospectus,
SAI or sales literature covering the Contracts, 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 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
or the Underwriter; or
14
(iv) arise as a result of any failure by the Fund or the
Underwriter to provide the services and furnish the materials under the terms of
this Agreement (including a failure of the Fund, whether unintentional or in
good faith or otherwise, to comply with the qualification requirements specified
in Section 6.1 of this Agreement); or
(v) arise out of or result from any material breach of
any representation and/or warranty made by the Fund or the Underwriter in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Fund or the Underwriter; or;
as limited by and in accordance with the provisions of Sections 7.2(b) and
7.2(c) hereof.
7.2(b). The Underwriter shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance or such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company or the Account, whichever is applicable.
7.2(c). The Underwriter shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Underwriter in
writing within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify the Underwriter of
any such claim shall not relieve the Underwriter from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise than
on account of this indemnification provision. In case any such action is brought
against the Indemnified Party, the Underwriter will be entitled to participate,
at its own expense, in the defense thereof. The Underwriter also shall be
entitled to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Underwriter to such party of the
Underwriter's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by it, and
the Underwriter will not be liable to such party under this Agreement for any
legal or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
7.2(d). The Indemnified Party will promptly notify the
Underwriter of the commencement of any litigation or proceedings against it or
any of its officers or directors in connection with the issuance or sale of the
Contracts or the operation of the Account.
15
7.3 Indemnification for Errors.
In the event of any error or delay with respect to information
regarding the purchase, redemption, transfer or registration of Shares of the
Fund, the parties agree that each is obligated to make the Accounts and/or the
Fund, respectively, whole for any error or delay that it causes, subject in the
case of pricing errors to the Fund's policies on materiality of pricing errors.
In addition, each party will compensate the other for the reasonable
out-of-pocket costs, as mutually agreed upon in good faith by the parties, of
any reprocessing necessary to adjust its respective accounting and/or
record-keeping systems as a result of an error or delay. Each party agrees to
provide the other with prompt notice of any errors or delays of the type
referred to in this Section and to use reasonable efforts to take such action as
may be appropriate to avoid or mitigate any such costs or losses.
Subject to the provisions of the foregoing paragraph, any material
error in calculation or reporting of the closing net asset value including any
applicable daily dividend factor per Share shall be reported immediately upon
discovery to the Company. In such event the Company shall be entitled to an
adjustment to the number of Shares purchased or redeemed to reflect the correct
closing net asset value, including any applicable daily dividend factor per
share and the Fund shall bear the cost of correcting such errors. Any errors of
a lesser amount shall be corrected in the next Business Day's net asset value
per Share.
ARTICLE VIII. Applicable Law
8.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York.
8.2. This Agreement shall be subject to the provisions of the 1933,
1934, and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules, and regulations as the SEC
may grant and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE IX. Termination
9.1. This Agreement shall continue in full force and effect until
the first to occur of:
(a) termination by any party, for any reason with respect
to some or all Fund, by three (3) months advance written notice delivered to the
other parties; or
(b) termination by the Company by written notice to the
Fund and the Underwriter based upon the Company's determination that shares of
the Fund are not reasonably available to meet the requirements of the Contracts;
or
16
(c) termination by the Company by written notice to the
Fund and the Underwriter in the event any of the Shares are not registered,
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
(d) termination by the Fund or the Underwriter in the
event that formal administrative proceedings are instituted against the Company
by the NASD, the SEC, the Insurance Commissioner, or like official of any state
or any other regulatory body regarding the Company's duties under this Agreement
or related to the sale of the Contracts, the operation of any Account, or the
purchase of the Shares; provided, however, that the Fund or the Underwriter
determines in its sole judgment exercised in good faith, that any such
administrative proceedings will have a material adverse effect upon the ability
of the Company to perform its obligations under this Agreement; or
(e) termination by the Company in the event that formal
administrative proceedings are instituted against the Fund or the Underwriter by
the NASD, the SEC, or any state securities or insurance department, or any other
regulatory body; provided, however, that the Company determines in its sole
judgment exercised in good faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the Fund or the Underwriter
to perform its obligations under this Agreement; or
(f) termination by the Company by written notice to the
Fund and the Underwriter with respect to the Fund in the event that the Fund
ceases to qualify as a Regulated Investment Company under Subchapter M as
specified in Section 6.1 hereof, or if the Company reasonably believes that the
Fund may fail to so qualify or comply; or
(g) termination by the Fund or the Underwriter by written
notice to the Company, if the Fund or the Underwriter respectively, shall
determine, in their 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; or
(h) termination by the Company by written notice to the
Fund and the Underwriter, if the Company shall determine, in its sole judgment
exercised in good faith, that the Fund, the Adviser, or the Underwriter 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; or
(i) termination by the Company upon any substitution of
the shares of another investment company or series thereof for Shares in
accordance with the terms of the Contracts, provided that the Company has given
at least 45 days prior written notice to the Fund and the Underwriter of the
date of substitution.
17
9.2. Notwithstanding any termination of this Agreement, the Fund
and the Underwriter shall, at the option of the Company, continue to make
available additional Shares 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"), unless the
Underwriter requests that the Company seek an order pursuant to Section 26(c) of
the 1940 Act to permit the substitution of other securities for the Shares. The
Underwriter agree to split the cost of seeking such an order, and the Company
agrees that it shall reasonably cooperate with the Underwriter and seek such an
order upon request. Specifically, the owners of the Existing Contracts may be
permitted to reallocate investments in the Fund, redeem investments in the Fund,
and/or invest in the Fund upon the making of additional purchase payments under
the existing Contracts (subject to any such election by the Underwriter). The
parties agree that this Section 9.2 shall not apply to any terminations under
Section 9.1(i) of this Agreement.
9.3. The Company shall not redeem Shares attributable to the
Contracts (as opposed to Shares attributable to the Company's assets held in the
Account) except (i) as necessary to implement Contract owner initiated or
approved transactions, (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"), (iii) upon 45 days
prior written notice to the Fund and Underwriter, as permitted by an order of
the SEC pursuant to Section 26(c) of the 1940 Act, but only if a substitution of
other securities for the Shares is consistent with the terms of the Contracts,
or (iv) as permitted under the terms of the Contract. Upon request, the Company
will promptly furnish to the Fund and the Underwriter reasonable assurance that
any redemption pursuant to clause (ii) above is a Legally Required Redemption.
Furthermore, except in cases where permitted under the terms of the Contacts,
the Company shall not prevent Contract owners from allocating payments to the
Fund that was otherwise available under the Contracts without first giving the
Fund or the Underwriter 45 days notice of its intention to do so.
9.4. Notwithstanding any termination of this Agreement, each
party's obligation under Article VII to indemnify the other parties shall
survive.
ARTICLE X. 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 Fund: Lord Xxxxxx Family of Funds
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
with a copy to:
00
Xxxx, Xxxxxx & Co. LLC
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
If to the Company: Xxxxx X. Xxxxxxxx, Esq.
Senior Vice President and General Counsel
ML Life Insurance Company of New York
0 Xxxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
If to the Underwriter: Lord Xxxxxx Distributor LLC
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: General Counsel
ARTICLE XI. Miscellaneous
11.1. All persons dealing with the Fund must look solely to the
property of the Fund, as though each the Fund had separately contracted with the
Company and the Underwriter for the enforcement of any claims against the Fund.
The parties agree that neither the Board, officers, agents, or shareholders of
the Fund assume any personal liability or responsibility for obligations entered
into by or on behalf of the Fund.
11.2. Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of the owners of the Contracts and 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 such names and
addresses and other confidential information without the express written consent
of the affected party until such time as such information has come into the
public domain.
11.3. 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.
11.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
19
11.5. 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.
11.6. Each party hereto shall cooperate with each other party and
all appropriate governmental authorities (including without limitation the SEC,
the NASD, 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.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the Arkansas Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the variable contract
operations of the Company are being conducted in a manner consistent with the
Arkansas variable annuity laws and regulations and any other applicable law or
regulations.
11.7. 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.
11.8. Neither this Agreement nor any of the rights, privileges,
duties or obligations hereunder may be assigned or delegated by any party
without the prior written consent of all parties hereto.
11.9. Neither this Agreement, nor any provision hereof, may be
amended, waived, modified or terminated in any manner except by a written
instrument properly authorized and executed by all parties hereto. The Company
shall notify the Fund and Underwriter of any additions it wishes to make to the
list of Accounts on SCHEDULE A or Fund list on SCHEDULE B, by furnishing a
signed written notice to the Fund and Underwriter in the form of an "Additional
Separate Account Letter" or "Additional Fund Letter" as applicable, a form of
which is attached hereto as Schedule D, which shall state name of the new
Account(s)/Fund and shall include a revised SCHEDULE A AND/OR SCHEDULE B, AS
APPLICABLE. The Additional Separate Account Letter/Additional Fund Letter, a
form of which is attached hereto, shall constitute an Amendment to this
Agreement upon the signed acknowledgement of such Additional Separate Account
Letter/Additional Fund Letter by both the Fund and Underwriter.
20
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
ML LIFE INSURANCE COMPANY OF NEW YORK:
By its authorized officer
By: ______________________________
Name: Xxxx X. Xxxxx
Title: Vice President and Secretary
LORD XXXXXX FAMILY OF FUNDS:
By its authorized officer
By: ______________________________
Name: ______________________________
Title: ______________________________
LORD XXXXXX DISTRIBUTOR LLC,
By: Lord, Xxxxxx & Co. LLC, it's Managing Member
By its authorized officer
By: ______________________________
Name: ______________________________
Title: ______________________________
21
SCHEDULE A
(Dated: October 11, 2002)
SEPARATE ACCOUNTS OF THE COMPANY:
Xxxxxxx Xxxxx Life Variable Annuity Separate Account D
22
SCHEDULE B
(Dated: October 11, 2002)
Fund List:
Lord Xxxxxx Bond-Debenture Fund
Lord Xxxxxx Mid-Cap Value Fund
23
SCHEDULE C
FUND MATERIALS
PART I. Fund Description
- The Fund will provide to Company or a common service provider
designated by Company within ten (10) days of the end of each month,
the Fund's average annual return for the 1, 5, and 10 year periods
ending the current month on a Net Asset Value basis.
- The Fund will provide to Company a description of the Fund including
holdings, portfolio composition, largest sectors and geographical
allocation and a statement of objective in a mutually acceptable
format.
Part II. Fund Information and Materials
The Fund will provide to Company the following information and
materials on an as needed basis, as requested by Company:
- A supply of materials relating to the Fund (prospectuses,
quarterly reports and other brochures) to include with
contract application sales, marketing and communication
materials.
- Specific investment performance information that may be
reasonably requested that cannot be obtained from the
prospectus. This would include specific calculations on
various performance parameters and will require an aggressive
turnaround time (usually 5 business days).
24
SCHEDULE D
[Form of Additional Fund/Separate Account Letter]
[date]
Lord Xxxxxx Family of Funds
00 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attn: General Counsel
Re: Letter Amendment [#1] to Fund Participation Agreement
Ladies and Gentlemen:
This is to advise you that effective as of ______________________,
Xxxxxxx Xxxxx Life Insurance Company ("Company") desires to add the following
fund(s) and/or separate account(s) to the list of funds and separate accounts
included on Schedule A and Schedule B, respectively, of the Fund Participation
Agreement between Company, the Lord Xxxxxx Family of Funds and Lord Xxxxxx
Distributor LLC dated October 1, 2002, as amended from time to time (the
"Participation Agreement"):
Fund(s):
Separate Account(s):
In accordance with Section 11.9 of the Participation Agreement, the
Company hereby requests that you acknowledge the addition of the
above-referenced fund(s) and/or separate account(s) under the Participation
Agreement. Attached hereto is an amended and restated Schedule A and/or Schedule
B, as applicable, to the Participation Agreement.
Please indicate your acceptance of the foregoing by executing two
originals of this Letter Amendment, returning one to the Company and retaining
one for your files.
ML LIFE INSURANCE COMPANY OF NEW YORK
BY: __________________________________
Name:
Title:
Acknowledged and agreed to this ____ day of _____________, _______:
00
XXXX XXXXXX XXXXXX XX XXXXX XXXX XXXXXX DISTRIBUTOR LLC
By: Lord, Xxxxxx & Co. LLC, its managing member
BY: _______________________ BY: _______________________
Name:______________________ Name:______________________
Title:_____________________ Title:_____________________
26
[Form of Additional Fund/Separate Account Letter - cont'd]
EXHIBIT A
(Revised as of :_________________)
SEPARATE ACCOUNTS OF THE COMPANY:
27
[Form of Additional Fund/Separate Account Letter - cont'd]
EXHIBIT B
(Revised as of: _________________)
Fund List:
28
