Exhibit 26(h)(6)
TARGET FUNDS PARTICIPATION AGREEMENT
(NORTHSTAR LIFE INSURANCE COMPANY)
This Fund Participation Agreement ("Agreement"), dated as of the 30th day of
April, 2004 is made by and between NORTHSTAR LIFE INSURANCE COMPANY ("Company")
on behalf of the Company separate accounts identified on Exhibit A which is
attached hereto and may be amended from time to time ("Variable Accounts"),
▇▇▇▇▇▇▇ & ▇▇▇▇, INC. ("W&R") which serves as the distributor to the W&R TARGET
FUNDS, INC. (the "Funds") listed on Exhibit B and W&R Target Funds, Inc.
WHEREAS, Company and W&R mutually desire the inclusion of the Funds as
underlying investment media for variable life insurance policies and/or variable
annuity contracts sold through distributors other than W&R and/or its affiliates
(collectively, the "Contracts") issued by Company; and
WHEREAS, the Contracts allow for the allocation of net amounts received by
Company to separate sub-accounts of the Variable Accounts for investment in
shares of the Funds and other similar funds; and
WHEREAS, selection of a particular sub-account (corresponding to a particular
Fund) is made by the Contract owner; and/or participants; and such Contract
owner and participants may reallocate their investment options among the
sub-accounts of the Variable Accounts in accordance with the terms of the
Variable Accounts and the Contracts.
NOW THEREFORE, Company and W&R, in consideration of the promises and
undertakings described herein, agree as follows:
1. The scope of this Agreement is limited to the inclusion of the Funds in
variable annuity and variable life contracts sold through distributors
other than W&R and/or its affiliates.
2. (a) Company represents and warrants that the Variable Accounts have been
established and are in good standing under New York Law; and the
Variable Accounts have been registered as unit investment trusts under
the Investment Company Act of 1940, as amended (the "1940 Act") and
will remain so registered, or are exempt from registration pursuant to
section 3(c)(11) of the 1940 Act;
(b) Company represents and warrants that it is an insurance company duly
organized and in good standing under the laws of its state of
incorporation and that it has legally and validly established each
Variable Account and Contract;
(c) Company represents and warrants that the Contracts will be registered
under the Securities Act of 1933, as amended ("1933 Act") unless an
exemption from registration is available prior to any issuance or sale
of the Contracts and that the Contracts will be issued in compliance
in all material respects with applicable federal and state laws.
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3. Subject to the terms and conditions of this Agreement, Company shall be
authorized to, and agrees, to act as a limited agent of W&R for purposes of
Rule 22c-1 under the 1940 Act and to the extent permitted by applicable
law, for the sole purpose of receiving instructions for the purchase and
redemption of Fund shares (from Contract owners or participants making
investment allocation decisions under the Contracts) prior to the close of
business of the New York Stock Exchange ("NYSE"), normally 3:00 p.m.
Central time ("Pricing Time") each Business Day. "Business Day" shall mean
any day on which the NYSE is open for trading and on which the Funds
calculate their net asset value as set forth in the Funds' most recent
Prospectuses and Statements of Additional Information. Except as
particularly stated in this paragraph, Company shall have no authority to
act on behalf of W&R or the Funds or to incur any cost or liability on its
behalf.
The Funds or their agents will use reasonable best efforts to provide
closing net asset value, change in net asset value, dividend or daily
accrual rate information and capital gain information by 6:00 p.m. Central
Time each Business Day to Company. Company shall use this data to calculate
unit values. Unit values shall be used to process that same Business Day's
Variable Account transactions. Orders for purchases or redemptions shall be
placed with W&R or its specified agent no later than 8:30 a.m. Central Time
of the following Business Day. The Company may aggregate separately all
purchase and/or redemption orders for shares of the Funds that it received
prior to the close of trading on the NYSE (i.e., 3:00 Central time, unless
the NYSE closes earlier in which case such earlier time shall apply). The
Company will not aggregate pre-3:00 Central time trades with post-3:00
Central time trades. To the extent permitted by applicable law, orders for
shares of Funds received by Company prior to the Pricing Time on a Business
Day and received by W&R by 8:30 a.m. Central time on the following Business
Day shall be executed at the time they are received by W&R and at the net
asset value price determined as of the close of trading on the previous
Business Day, provided that the Company represents it has received such
orders prior to the close of the NYSE on the previous Business Day. The
Funds may refuse to sell shares to any person or may suspend or terminate
the offering of its shares if such action is required by law or by
regulatory authorities having jurisdiction or is, in the sole discretion of
the directors of the Funds, necessary in the best interest of the
shareholders of the Funds. W&R will not accept any order made on a
conditional basis or subject to any delay or contingency. Company shall
only place purchase orders for shares of Funds on behalf of its customers
whose addresses recorded on Company's books are in a state or other
jurisdiction in which the Funds are registered or qualified for sale, or
are exempt from registration or qualification as confirmed in writing by
W&R.
Payment for net purchases shall be wired to a custodial account designated
by W&R and payment for net redemptions will be wired to an account
designated by Company. Dividends and capital gain distributions shall be
reinvested in additional Fund shares at net asset value. Notwithstanding
the above, W&R shall not be held responsible for providing Company with
ex-date net asset value, change in net asset value, dividend or capital
gain information when the New York Stock Exchange is closed, when an
emergency exists making the valuation of net assets not reasonably
practicable, or during any period when the Securities and Exchange
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Commission ("SEC") has by order permitted the suspension of pricing shares
for the protection of shareholders.
Issuance and transfer of Fund shares will be by book entry only. Share
certificates will not be issued to Company for any Variable Account. Fund
shares will be recorded in the appropriate title for each Variable Account.
Company agrees to provide W&R, upon request, written reports indicating the
number of shareholders or policyholders that hold interests in the Funds
and such other information (including books and records) that W&R may
reasonably request or as may be necessary or advisable to enable it to
comply with any law, regulation or order.
The Funds shall furnish, on or before the ex-dividend date, notice to
Company of any income dividends or capital gain distributions payable on
the shares of the Funds. Company hereby elects to receive all such income
dividends and capital gain distributions as are payable on a Fund's shares
in additional shares of the Fund. The Funds shall notify Company of the
number of shares so issued as payment of such dividends and distributions.
In the event adjustments are required to correct any material error in the
computation of the net asset value of a Fund's shares, the Fund shall
notify the Company as soon as practicable after discovering the need for
those adjustments which result in a reimbursement to a Variable Account in
accordance with the Fund's then current policies on reimbursement, which
the Fund represents are consistent with applicable SEC standards. If an
adjustment is to be made in accordance with such policies to correct an
error which has caused a Variable Account to receive an amount different
than that to which it is entitled, the Fund shall make all necessary
adjustments to the number of shares owned in the Variable Account and
distribute to the Variable Account the amount of such underpayment for
credit to Company's Contract/Policy Owners.
4. All expenses incident to the performance by W&R and/or the Funds under this
Agreement shall be paid by W&R and/or the Funds as applicable. W&R shall
pay fees or other compensation to the Company under this Agreement as
provided on Schedule C. W&R's obligation to pay compensation or fees as
provided in Schedule C shall survive termination of this Agreement.
W&R shall promptly provide Company (or its designee), or cause Company (or
its designee) to be provided with, a reasonable quantity of the Funds'
Statement of Additional Information and any supplements, and a camera-ready
copy of the Funds' Prospectus and any Supplements or at the option of the
Company, a camera-ready copy of the portions of the Funds' Prospectus, and
any supplements, pertaining specifically to the Funds used in the Company's
Contracts, for use by Company in producing a combined prospectus for each
Contract incorporating both the Contract Prospectus and the Funds'
Prospectus.
If the Company elects to include any materials provided by W&R or the
Funds, specifically prospectuses, SAIs, shareholder reports and proxy
materials, on its web site or in any other
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computer or electronic format, the Company assumes sole responsibility for
maintaining such materials in the form provided by W&R or the Funds and for
promptly replacing such materials with all updates provided by W&R or the
Funds. W&R or the Funds agree to provide all such materials requested by
the Company in a Portable Document Format (PDF, both camera ready and low
resolution enhanced) in a timely fashion at no additional cost, together
with such other formats as may be mutually agreed upon.
Each Fund (at its expense) shall provide Company with copies of any
Fund-sponsored proxy materials in such quantity as Company shall reasonably
require for distribution to contract owners. The Fund shall bear the costs
of distributing Fund proxy materials (or similar materials such as voting
solicitation instructions). Company shall bear the cost of distributing
prospectuses and statements of additional information to contract owners.
Company assumes sole responsibility for ensuring that such materials are
delivered to contract owners in accordance with applicable federal and
state securities laws.
If and to the extent required by law, Company shall: (i) solicit voting
instructions from contract owners; (ii) vote the Fund(s) shares in
accordance with the instructions received from contract owners; and (iii)
vote Fund(s) shares for which no instructions have been received; so long
as and to the extent that the Commission continues to interpret the 1940
Act to require pass-through voting privileges for variable contract owners.
The Company reserves the right to vote Fund shares held in any segregated
asset account in its own right, to the extent permitted by law. Company and
its agents will in no way recommend action in connection with or oppose or
interfere with the solicitation of proxies for the Fund shares held for the
benefit of such Contract owners.
5. Company and its agents shall make no representations concerning the Funds
or Fund shares except those contained in the Funds' then current
Prospectuses, Statements of Additional Information or other documents
produced by W&R (or an entity on its behalf) which contain information
about the Funds. Company agrees to allow at least five (5) Business Days
for W&R to review any advertising and sales literature drafted by Company
(or agents on its behalf) with respect to the Funds prior to submitting
such material to any regulator.
6. W&R represents that the Funds are currently qualified as regulated
investment companies under Subchapter M of the Internal Revenue Code of
1986 (the "Code"), as amended, and that the Funds shall make every effort
to maintain such qualification. W&R shall promptly notify Company upon
having a reasonable basis for believing that any of the Funds has ceased to
so qualify, or that they may not qualify as such in the future.
W&R represents that each of the Funds currently complies with the
diversification requirements pursuant to Section 817(h) of the Code and
Section 1.817-5(b) of the Federal Tax Regulations and that the Funds will
make every effort to maintain the Funds' compliance with such
diversification requirements, unless the Funds are otherwise exempt from
section 817(h) and/or except as otherwise disclosed in the Funds'
prospectus. W&R will notify Company promptly upon having a reasonable basis
for believing that a Fund has ceased to so qualify, or that a Fund might
not so qualify in the future. Unless otherwise exempt, W&R
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shall provide to Company a statement indicating compliance with Section
817(h) and a schedule of investment holdings, to be received by Company no
later than twenty-five (25) days following the end of each calendar
quarter.
Company represents that the Contracts are currently, and at the time of
issuance will be, treated as annuity contracts or life insurance policies,
whichever is appropriate under applicable provisions of the Code, and that
it shall make every effort to maintain such treatment. Company will
promptly notify W&R upon having a reasonable basis for believing that the
Contracts have ceased to be treated as annuity contracts or life insurance
polices, or that the Contracts may not be so treated in the future.
Unless the Funds are exempt from the requirements of section 817(h),
Company represents that each Variable Account is a "segregated asset
account" and that interests in each Variable Account are offered
exclusively through the purchase of a "variable contract", within the
meaning of such terms pursuant to section 1.817-5(f)(2) of the Federal Tax
Regulations, that it shall make every effort to continue to meet such
definitional requirements, and that it shall notify W&R immediately upon
having a reasonable basis for believing that such requirements have ceased
to be met or that they may not be met in the future.
Each Fund represents and warrants that each is duly organized and validly
existing under the laws of Maryland and that each does and will comply in
all material respects with the 1940 Act and the rules and regulations
thereunder.
Each Fund represents and warrants that the Fund shares offered and sold
pursuant to this Agreement will be registered under the 1933 Act and each
Fund shall be registered under the 1940 Act prior to and at the time of any
issuance or sale of such shares. Each Fund shall amend its registration
statement under the 1933 Act and the 1940 Act from time to time as required
in order to effect the continuous offering of its shares. Each Fund shall
register and qualify its shares for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund or
W&R.
Each Fund represents and warrants that it, its directors, officers,
employees and others dealing with the money or securities, or both, of a
Fund shall at all times be covered by a blanket fidelity bond or similar
coverage for the benefit of the Fund in an amount not less than the minimum
coverage required by Rule 17g-1 or other regulations under the 1940 Act.
Such bond shall include coverage for larceny and embezzlement and be issued
by a reputable bonding company.
W&R represents and warrants that it is currently and will continue to be a
registered-broker dealer and member in good standing with the National
Association of Securities Dealers ("NASD").
7. Within five (5) Business Days after the end of each calendar month, the
Funds or their agent shall provide Company a monthly statement of account,
which shall confirm all transactions in Fund shares made during that
particular month by a Variable Account.
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8. (a) The directors of the Funds will monitor the operations of the Funds
for the existence of any material irreconcilable conflict among the
interest of all Contract owners of all separate accounts investing in
the Funds. W&R shall notify Company of the potential for, or the
determination of, such irreconcilable material conflict. An
irreconcilable conflict may arise, among other things, from (i) an
action by any state insurance regulatory authority; (ii) a change in
applicable insurance laws or regulations; (iii) a tax ruling or
provision of the Code or the regulations thereunder; (iv) any other
development relating to the tax treatment of insurers, contract
holders or policy owners or beneficiaries of variable annuity or
variable life insurance products; (v) the manner in which the
investments of the Funds are managed; (vi) a difference in voting
instructions given by variable annuity contract owners, on the one
hand, and variable life insurance policy owners on the other hand, or
by the contract holders or policy owners of different participating
insurance companies; or (vii) a decision by an insurer to override the
voting instructions of participating contract owners.
(b) Company is responsible for reporting any potential or existing
conflicts to W&R and the Funds. Company will be responsible for
assisting the directors in carrying out their responsibilities under
this provision by providing the directors with all information
reasonably necessary for them to consider the issues raised. W&R shall
report to the directors any such conflict that comes to the attention
of W&R.
(c) If a majority of the directors of the Funds or a majority of the
disinterested directors determine that a material irreconcilable
conflict exists involving Contract owners and the Funds, Company
shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested directors), take
whatever steps are necessary to eliminate the irreconcilable material
conflict, including, but not limited to, withdrawing the assets
allocable to some or all of the Variable Accounts from the Funds and
reinvesting such assets in a different investment medium, including
another Fund, offering to the affected Contract owners the option of
making such a change or offering a new funding medium, including a
registered investment company.
For purposes of this provision, the directors or the disinterested
directors shall determine whether any proposed action adequately remedies
any irreconcilable material conflict. In the event of a determination of an
irreconcilable material conflict, the directors shall cause the Funds to
take such action, such as establishment of one or more additional Funds, as
they reasonably determine to be in the interest of all shareholders and
Contract owners in view of all the applicable factors such as the cost,
feasibility, tax, regulatory and other considerations. In no event will the
Funds be required by this provision to establish a new funding medium for
any Contract.
Company shall not be required by this provision to establish a new funding
medium for any Contract if an offer to do so has been declined by a vote of
a majority of the Contract owners materially adversely affected by the
material irreconcilable conflict. Company will decline an
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offer to establish a new funding medium only if Company believes it is in
the best interest of its Contract owners.
9. This Agreement shall terminate as to the sale and issuance of Fund shares
in new Contracts (i.e., Contracts issued after the effective date of
termination):
(a) at the option of Company, W&R or the Funds upon at least 60 days
advance written notice to the other;
(b) at any time, upon W&R's election, if the Funds determine that
liquidation of the Funds is in the best interest of the Funds and
their beneficial owners. Reasonable advance notice of election to
liquidate shall be furnished by W&R to permit the substitution of Fund
shares with the shares of another investment company pursuant to SEC
regulation;
(c) if the Contracts are not treated as annuity contracts or life
insurance policies by the applicable regulators or under applicable
rules or regulations;
(d) if the Variable Accounts are not deemed "segregated asset accounts" by
the applicable regulators or under applicable rules or regulations;
(e) at the option of Company, if Fund shares are not available for any
reason to meet the requirements of Contracts as determined by Company.
(f) with respect only to the applicable Fund, upon a decision by Company
based on reasonable cause, in accordance with regulations of the SEC,
to substitute such Fund shares with the shares of another investment
company for Contracts for which the Fund shares have been selected to
serve as the underlying investment medium. Company shall give at least
60 days written notice to the Funds and W&R of any decision to
substitute Fund shares;
(g) upon 60 days notice upon assignment of this Agreement unless such
assignment is made with the written consent of each other party; and
(h) in the event Fund shares are not registered, issued or sold pursuant
to Federal law, or such law precludes the use of Fund shares as an
underlying investment medium of Contracts issued or to be issued by
Company. Prompt written notice shall be given by either party to the
other in the event the conditions of this provision occur.
10. All notices sent under this Agreement shall be given in writing, and shall
be delivered personally, or sent by fax, or by a nationally-recognized
overnight courier, postage prepaid. All such notices shall be deemed to
have been duly given when so delivered personally or sent by fax, with
receipt confirmed, or one (1) business day after the date of deposit with
such nationally-recognized overnight courier. All such notices to Company,
W&R or the Funds shall be delivered to:
Northstar Life Insurance Company
c/o Minnesota Life Insurance Company
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
Northstar Life Insurance Company
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▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇, Vice President of Operations
▇▇▇▇▇▇▇ & ▇▇▇▇, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Legal Department
W&R Target Funds, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
All such notices to Company, W&R and the Funds shall be delivered to their
respective addresses as listed above, or such other address as Company,
W&R and/or the Funds may have furnished in writing to the other parties in
accordance herewith.
11. (a) Company agrees to reimburse and/or indemnify and hold harmless W&R,
the Funds, and each of their directors, officers, employees, agents
and each person, if any, who controls or is controlled by W&R within
the meaning of the Securities Act of 1933 (the "1933 Act")
(collectively, "Affiliated Party") against any losses, claims, damages
or liabilities ("Losses") to which W&R or any such Affiliated Party
may become subject, under the 1933 Act or otherwise, insofar as such
Losses arise out of or are based upon, but not limited to:
(i) any untrue statement or alleged untrue statement of any material
fact contained in information furnished by Company;
(ii) the omission or the alleged omission to state in the Registration
Statements or Prospectuses of the Variable Accounts, or Contract,
or in any sales literature generated by Company on behalf of the
Variable Accounts or Contracts, a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(iii) statements or representations of Company or its agents, with
respect to the sale and distribution of Contracts for which Fund
shares are an underlying investment, or wrongful conduct of
Company or its agents with respect to sale of acquisition of
Variable Insurance Products or Fund shares;
(iv) the failure of Company to provide the services and furnish the
materials under the terms of this Agreement;
(v) a material breach of this Agreement or of any of the
representations or warranties contained herein; or
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(vi) any failure to register the Contracts or the Variable Accounts
under federal or state securities laws, state insurance laws or
to otherwise comply with such laws, rules, regulations or orders.
Provided however, that Company shall not be liable in any such case to
the extent any such losses arise out of or are based upon an act,
statement, omission or representation or alleged act, alleged
statement, alleged omission or alleged representation which was made
in reliance upon and in conformity with written information furnished
to Company by or on behalf of W&R specifically for use therein.
Company shall reimburse any legal or other expenses reasonably
incurred by W&R, the Funds, or any Affiliated Party in connection with
investigating or defending any such Losses, provided, however, that
Company shall have prior approval of the use of said counsel or the
expenditure of said fees.
This indemnity agreement shall be in addition to any liability which
Company may otherwise have.
(b) W&R and/or the Funds, as applicable, agree to indemnify and hold
harmless Company and each of its directors, officers, employees,
agents and each person, (collectively, "Company Affiliated Party"),
who controls Company within the meaning of the 1933 Act against any
Losses to which Company or any such Company Affiliated Party may
become subject, under the 1933 Act or otherwise, insofar as such
Losses arise out of or are based upon; but not limited to:
(i) any untrue statement or alleged untrue statement of any material
fact contained in any information furnished by W&R or the Funds,
including but not limited to, the Registration Statements,
Prospectuses or sales literature of the Funds;
(ii) the omission or the alleged omission to state in the Registration
Statements or Prospectuses of the Funds or in any sales
literature generated by the Funds or their affiliates a material
fact required to be stated therein or necessary to make the
statements therein not misleading;
(iii) W&R's failure to keep the Funds fully diversified and qualified
as regulated investment companies as required by the applicable
provisions of the Code, the 1940 Act, and the applicable
regulations promulgated thereunder;
(iv) the failure of W&R to provide the services and furnish the
materials under the terms of this Agreement;
(v) a material breach of this Agreement or of any of the
representations or warranties contained herein; or
(vi) any failure to register the Funds under federal or state
securities laws or to otherwise comply with such laws, rules,
regulations or orders.
Provided however, that W&R and the Funds shall not be liable in any
such case to the extent that any such losses arise out of or are based
upon an act, statement, omission or representation or alleged act,
alleged statement, alleged omission or alleged
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representation which was made in reliance upon or in conformity with
written information furnished to W&R or the Funds by Company
specifically for use therein.
W&R and/or the Funds, as applicable, shall reimburse any reasonable
legal or other expenses reasonably incurred by Company or any Company
Affiliated Party in connection with investigating or defending any
such Losses, provided, however, that W&R and the Funds shall have
prior approval of the use of said counsel or the expenditure of said
fees.
This indemnity agreement will be in addition to any liability which
W&R and/or the Funds, as applicable, may otherwise have.
(c) Each party shall promptly notify the other party(ies) in writing of
any situation which presents or appears to involve a claim which may
be the subject of indemnification under this Agreement and the
indemnifying party shall have the option to defend against any such
claim. In the event the indemnifying party so elects, it shall notify
the indemnified party and shall assume the defense of such claim, and
the indemnified party shall cooperate fully with the indemnifying
party, at the indemnifying party's expense, in the defense of such
claim. Notwithstanding the foregoing, the indemnified party shall be
entitled to participate in the defense of such claim at its own
expense through counsel of its own choosing. Neither party shall admit
to wrong-doing nor make any compromise in any action or proceeding
which may result in a finding of wrongdoing by the other party without
the other party's prior written consent. Any notice given by the
indemnifying party to an indemnified party or participation in or
control of the litigation of any such claim by the indemnifying party
shall in no event be deemed to be an admission by the indemnifying
party of culpability, and the indemnifying party shall be free to
contest liability among the parties with respect to the claim.
12. Subject to Section 9(f) of this Agreement, W&R may request or Company may
initiate the filing of a substitution application pursuant to Section 26(c)
of the 1940 Act to substitute shares of a Fund held by a Company Variable
Account for another investment media ("Substitution Application"). The
costs associated with a Substitution Application shall be allocated as
follows:
(a) In the event W&R requests Company to submit a Substitution
Application, W&R shall reimburse Company for all reasonable costs
incurred by Company with respect to such Substitution Application. W&R
shall be obligated to reimburse Company under this provision
irrespective of whether the Substitution Application requested by W&R
is effectuated.
(b) In the event Company initiates a Substitution Application and the Fund
being substituted is offered by separate accounts of companies other
than Company, Company shall bear all costs associated with the
Substitution Application irrespective of whether the Substitution
Application is effectuated.
(c) In the event Company initiates a Substitution Application in
accordance with Section 9(f), Company shall bear the costs incurred in
the transfer.
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13. The forbearance or neglect of any party to insist upon strict compliance by
another party with any of the provisions of this Agreement, whether
continuing or not, or to declare a forfeiture of termination against the
other parties, shall not be construed as a waiver of any of the rights or
privileges of any party hereunder. No waiver of any right or privilege of
any party arising from any default or failure of performance by any party
shall affect the rights or privileges of the other parties in the event of
a further default or failure of performance.
14. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of Kansas, without respect to its
choice of law provisions and in accordance with the 1940 Act. In the case
of any conflict, the 1940 Act shall control.
15. Each party hereby represents and warrants to the other that the persons
executing this Agreement on its behalf are duly authorized and empowered to
execute and deliver the Agreement and that the Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance
with its terms. Except as particularly set forth herein, neither party
assumes any responsibility hereunder, and will not be liable to the other
for any damage, loss of data, delay or any other loss whatsoever caused by
events beyond its reasonable control.
16. Company acknowledges that the identity of W&R's (and its affiliates' and/or
subsidiaries') customers and all information maintained about those
customers constitute the valuable property of W&R. Company agrees that,
should it come into contact or possession of any such information
(including, but not limited to, lists or compilations of the identity of
such customers), Company shall hold such information or property in
confidence and shall not use, disclose or distribute any such information
or property except with W&R's prior written consent or as required by law
or judicial process.
W&R acknowledges that the identity of Company's (and its affiliates' and/or
subsidiaries') customers and all information maintained about those
customers constitute the valuable property of Company. W&R agrees that,
should it come into contact or possession of any such information
(including, but not limited to, lists or compilations of the identity of
such customers), W&R shall hold such information or property in confidence
and shall not use, disclose or distribute any such information or property
except with Company's prior written consent or as required by law or
judicial process.
This section shall survive the expiration or termination of this Agreement.
17. Nothing in this Agreement shall be deemed to create a partnership or joint
venture by and among the parties hereto.
18. Except to amend Exhibit A, or as otherwise provided in this Agreement, this
Agreement may not be amended or modified except by a written amendment
executed by each of the parties.
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19. Each party shall cooperate with each other party and all appropriate
government authorities (including without limitation the Commission, the
National Association of Securities Dealers, Inc. and state insurance
regulator) 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.
20. The parties of this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
21. This Agreement may be executed by facsimile signature and it may be
executed in one or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
NORTHSTAR LIFE INSURANCE COMPANY
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
▇▇▇▇▇▇▇ & ▇▇▇▇, INC.
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By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
W&R TARGET FUNDS, INC.
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By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: President
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EXHIBIT A
Variable Accounts of Northstar Life Insurance Company
1. Northstar Life Variable Universal Life Account
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EXHIBIT B
W&R Target Funds, Inc.
Funds Available to Variable Accounts
Balanced
Growth
Core Equity
Value
Small Cap Growth
International
Small Cap Value
Micro Cap Growth
Asset Strategy
Science and Technology
International II
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EXHIBIT C
Fees or Other Compensation
(a) Compensation described in this Exhibit C shall apply to all assets invested
in the Funds in connection with the Contracts (hereinafter the "Aggregated
Assets").
(b) Assets Under Management. Each quarter, W&R shall calculate and pay to
Company a fee that shall be equal to forty-five (45) basis points, on an
annualized basis, of the average daily account value of the Aggregated
Assets (including any seed money provided by Company or any of its
affiliates), provided, however, that the fee is subject to change pursuant
to Paragraphs (c) and (d) below. The fee (the "Total Fee") shall include
and not be in addition to the payment by W&R of the 12b-1 fees received by
W&R from the Funds relating to the Aggregated Assets. W&R may, at its
option, pay any portion of the Total Fee due which is attributable to 12b-1
fees to the underwriter of the Contracts
(c) Changes in Law. If a change in the law requires a reduction in the fees
paid by a pooled investment vehicle pursuant to Rule 12b-1 of the
Investment Company Act of 1940 (or its functional equivalent), and if the
Funds are required to reduce the 12b-1 fees they pay that are based upon
the value of the Aggregated Assets (including seed money provided by
Company or any of its affiliates) as a result of such change in the law,
then there shall be a corresponding reduction in the amount of the Total
Fee due pursuant to above.
(d) Voluntary Increase in 12b-1 Fees. If a Fund voluntarily increases the fees
it pays pursuant to Rule12b-1 of the Investment Company Act of 1940 (or its
functional equivalent) that are based upon the value of the Aggregated
Assets (including seed money provided by Company or any of its affiliates),
then there shall be a corresponding increase in the amount of the Total Fee
due pursuant to above.
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