FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made as of April 1, 2008, between Northern Lights Variable
Trust, an open-end management investment company organized as a Delaware
business trust (the "Trust"), and PHL Variable Insurance Company, a life
insurance company organized under the laws of the State of Connecticut (the
"Company"), on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A, as the parties hereto may amend it from
time to time (the "Accounts") (individually, a "Party", and collectively, the
"Parties").
W I T N E S S E T H:
WHEREAS, the Trust has registered with the Securities and Exchange
Commission as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"), and has registered the offer
and sale of its shares ("Shares") under the Securities Act of 1933, as amended
(the "1933 Act"); and
WHEREAS, the Trust desires to act as an investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts to be offered by insurance companies that enter into participation
agreements with the Trust (the "Participating Insurance Companies"); and
WHEREAS, the beneficial interest in the Trust may be divided into several
series of Shares, each series representing an interest in a particular managed
portfolio of securities and other assets, and the Trust will make Shares listed
on Schedule B hereto as the Parties hereto may amend from time to time (each a
"Portfolio"; reference herein to the "Trust" includes reference to each
Portfolio, to the extent the context requires) available for purchase by the
Accounts; and
WHEREAS, the Company will be the issuer of certain variable annuity
contracts and variable life insurance contracts (each a "Contract";
collectively, the "Contracts") as set forth on Schedule B hereto, as the
Parties hereto may amend from time to time, which Contracts, will be registered
under the 1933 Act; and
WHEREAS, the Company will fund the Contracts through the Accounts, each of
which may be divided into two or more subaccounts ("Subaccounts"; reference
herein to an "Account" includes reference to each Subaccount thereof to the
extent the context requires); and
WHEREAS, the Company will serve as the depositor of the Accounts, each of
which is registered as a unit investment trust investment company under the
1940 Act, and the security interests deemed to be issued by the Accounts under
the Contracts will be registered as securities under the 1933 Act; and
WHEREAS, the Company intends to utilize Shares of one or more Portfolios as
an investment vehicle of the Accounts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree
as follows:
ARTICLE I
Sale of Trust Shares
1.1 The Trust shall make Shares of its Portfolios available to the Accounts
at the net asset value of the applicable Portfolio next computed after receipt
of such purchase order by the Trust (or its agent), as established in
accordance with the provisions of the then current prospectus of the Portfolio.
Shares of a particular Portfolio of the Trust shall be ordered in such
quantities and at such times as determined by the Company to be necessary to
meet the requirements of the Contracts. Notwithstanding anything to the
contrary herein, the Trustees of the Trust (the "Trustees") may refuse to sell
Shares of any Portfolio to any person, or suspend or terminate the offering of
Shares of any Portfolio if such action is required by law or by regulatory
authorities having jurisdiction or is deemed in the sole discretion of the
Trustees acting in good faith and in light of their fiduciary duties under
federal and any applicable state laws, in the best interests of the
shareholders of such Portfolio.
The Parties hereto may agree, from time to time, to add other Portfolios to
provide additional funding media for the Contracts, or to delete, combine, or
modify existing Portfolios, by amending Schedule A hereto. Upon such amendment
to Schedule A, any applicable reference to a Portfolio, the Trust, or its
Shares herein shall include a reference to any such additional Portfolio.
Schedule A, as amended from time to time, is incorporated herein by reference
and is a part hereof.
1.2 The Trust will redeem any full or fractional Shares of any Portfolio
when requested by the Company on behalf of an Account at the net asset value of
the applicable Portfolio next computed after receipt by the Trust (or its
agent) of the request for redemption, as established in accordance with the
provisions of the then current prospectus of the applicable Portfolio. With
respect to payment of the purchase price by the Company and of redemption
proceeds by the Trust, the Company and the Trust shall net purchase and
redemption orders with respect to each Portfolio and shall transmit one net
payment per Portfolio in accordance with this Section 1.2 and Section 1.4. The
Trust shall make payment no later than 12:00 noon New York time on the same day
as the order is placed, to the extent practicable, but in no event shall
payment be delayed for a greater period than is permitted by the ▇▇▇▇ ▇▇▇.
1.3 For the purposes of Sections 1.1 and 1.2, the Trust hereby appoints the
Company as its agent for the limited purpose of receiving and accepting
purchase and redemption orders resulting from investment in and payments under
the Contracts. Receipt by the Company shall constitute receipt by the Trust
provided that (i) such orders are received by the Company in good order prior
to the time the net asset value of each Portfolio is priced in accordance with
its prospectus and (ii) the Trust receives notice of such orders by 10:00 a.m.
New York time on the next following Business Day. "Business Day" shall mean any
day on which the New York Stock Exchange is open for regular trading, on which
the Trust calculates the Portfolio's net asset value pursuant to the rules of
the Securities and Exchange Commission ("SEC") and on which the Company is open
for business.
1.4 The Company shall wire payment for net purchase orders that are
transmitted to the Trust in accordance with Section 1.3 to a custodial agent
designated by the Trust no later than 12:00 noon New York time on the same
Business Day that the Trust receives notice of the order. Payments shall be
made in federal funds transmitted by wire.
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1.5 Issuance and transfer of the Trust's Shares will be by book entry only.
Stock certificates will not be issued to the Company or the Account. Shares
ordered from the Trust will be recorded in the appropriate title for each
Account or the appropriate subaccount of each Account.
1.6 The Trust shall furnish same day notice (by email or telephone followed
by written or email confirmation) to the Company of any income dividends or
capital gain distributions payable on the Trust's Shares. The Company hereby
elects to receive all such income dividends and capital gain distributions as
are payable on a Portfolio's Shares in additional Shares of that Portfolio. The
Company reserves the right to revoke this election and to receive all such
dividends and capital gain distributions in cash. The Trust shall notify the
Company of the number of Shares so issued as payment of such dividends and
distributions.
1.7 The Trust shall make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and shall use its best efforts to
make such net asset value per share available by 6 p.m. New York time.
1.8 The Company shall use the data provided by the Trust each Business Day
pursuant to Section 1.7 above immediately to calculate Account unit values and
to process transactions that receive that same Business Day's Account unit
values. The Company shall perform such Account processing the same Business
Day, and shall place corresponding orders to purchase or redeem Shares with the
Trust by 10:00 a.m. New York time the following Business Day.
1.9 The Trust agrees that all Participating Insurance Companies shall have
the obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 2.8 and
Article IV of this Agreement.
1.10 The Trust shall use its best efforts to provide closing net asset
value, dividend and capital gain information on a per-share basis to the
Company on each Business Day. Any material errors in the calculation of net
asset value, dividend and/or capital gain information shall be reported to the
Company promptly upon discovery. Material errors will be corrected in the
applicable Business Day's net asset value per share. The Company will adjust
the number of shares purchased or redeemed for the Accounts to reflect the
correct net asset value per share. Any administrative or other costs or losses
incurred by the Company for correcting underlying Contract owner accounts shall
be at the Portfolio's expense.
ARTICLE II
Obligations of the Parties
2.1 The Trust shall prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction solicitation
materials), prospectuses and statements of
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additional information of the Trust. The Trust shall bear the costs of
registration and qualification of its Shares, preparation and filing of the
documents listed in this Section 2.1 and all taxes to which an issuer is
subject on the issuance and transfer of its Shares.
2.2 At the option of the Trust, the Trust shall either (a) provide the
Company (at the Trust's expense) with as many copies of the Trust's current
prospectus, annual report, semi-annual report and other shareholder
communications, including any amendments or supplements to any of the
foregoing, as the Company shall request for Contract owners for whom Shares are
held by an Account; or (b) provide the Company with a camera ready copy of such
documents in a form suitable for printing, and then reimburse the Company for
the costs of printing and distributing such materials. The Trust shall provide
the Company with a copy of its statement of additional information in a form
suitable for duplication by the Company. The Trust (at its expense) shall
provide the Company with copies of any Trust-sponsored proxy materials in such
quantity as the Company shall reasonably require for distribution to Contract
owners. The Trust shall provide the materials described in this Section 2.2
within a reasonable time prior to required printing and distribution of such
materials.
2.3 (a) The Trust shall bear the costs of distributing the Trust's
prospectus, statement of additional information, shareholder reports and other
shareholder communications to Contract owners of and applicants for policies
for which the Trust is serving or is to serve as an investment vehicle. The
Trust shall bear the costs of distributing proxy materials (or similar
materials such as voting solicitation instructions) to Contract owners. The
Company assumes sole responsibility for ensuring that such materials are
delivered to Contract owners on a timely basis in accordance with applicable
federal and state securities laws.
(b) If the Company elects to include any materials provided by the Trust,
specifically prospectuses, statements of additional information, shareholder
reports and proxy materials, on its web site or in any other computer or
electronic format, the Company assumes sole responsibility for maintaining
such materials in the form provided by the Trust and for promptly replacing
such materials with all updates provided by the Trust.
2.4 The Company agrees and acknowledges that it has no rights to the name
and ▇▇▇▇ "Northern Lights" and that all use of any designation comprised in
whole or part of Northern Lights or the names of the Portfolios (each a "Fund
▇▇▇▇") under this Agreement shall inure to the benefit of the Trust. Except as
provided in Section 2.5, the Company shall not use any Fund ▇▇▇▇ on its own
behalf or on behalf of the Accounts or Contracts in any registration statement,
advertisement, sales literature or other materials relating to the Accounts or
Contracts without the prior written consent of the Trust. Upon termination of
this Agreement for any reason, the Company shall cease all use of any Fund ▇▇▇▇
as soon as reasonably practicable.
2.5 (a) The Company shall furnish, or cause to be furnished, to the Trust or
its designee, a copy of each Contract prospectus or statement of additional
information in which the Trust or its investment adviser(s) is named prior to
the filing of such document with the SEC. The Company shall furnish, or shall
cause to be furnished, to the Trust or its designee, each piece of sales
literature or other promotional material, reports, any preliminary and final
voting instruction solicitation materials and all amendments to any of the
above in which the Trust or its investment adviser(s) is named, or which
relates to the Accounts or Contracts, at least three (3)
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Business Days prior to its use. No such material shall be used if the Trust or
its designee reasonably objects to such use within three (3) Business Days
after receipt of such material. The Company shall furnish, or shall cause to be
furnished, to the Trust or its designee, each application for exemption,
request for no-action letter, and all amendments thereto, promptly after filing
such document with the SEC.
(b) The Trust shall furnish, or shall cause to be furnished, to the
Company or its designee, each piece of sales literature or other promotional
material in which the Company, the Accounts or the Contracts are named, at
least three (3) Business Days prior to its use. No such material shall be
used if the Company or its designee reasonably objects to such use within
three (3) Business Days after receipt of such material.
2.6 The Company and its affiliates shall not give any information or make
any representations or statements on behalf of the Trust or concerning the
Trust or any of its affiliates or its investment adviser(s) in connection with
the sale of the Contracts other than information or representations contained
in and accurately derived from the registration statement, including the
prospectus and statement of additional information, for the Trust Shares (as
such registration statement, prospectus and statement of additional information
may be amended or supplemented from time to time), reports of the Trust,
Trust-sponsored proxy statements, or in sales literature or other promotional
material approved by the Trust or its designee, except as required by legal
process or regulatory authorities or with the written permission of the Trust
or its designee.
2.7 The Trust and its affiliates shall not give any information or make any
representations or statements on behalf of the Company or concerning the
Company or any of its affiliates, the Contracts or the Accounts other than
information or representations contained in and accurately derived from the
registration statement, including the prospectus and statement of additional
information, for the Contracts (as such registration statement, prospectus, and
statement of additional information may be amended or supplemented from time to
time), or in materials approved by the Company or its designee for distribution
including sales literature or other promotional materials, except as required
by legal process or regulatory authorities or with the written permission of
the Company or its designee.
2.8 So long as, and to the extent that the Securities and Exchange
Commission interprets the 1940 Act to require pass-through voting privileges
for owners of variable life insurance policies and/or variable annuity
contracts, the Company will provide pass-through voting privileges to Contract
owners whose cash values are invested, through the Accounts, in Shares of the
Trust. The Trust shall require all Participating Insurance Companies to
calculate voting privileges in the same manner and the Company shall be
responsible for assuring that the Accounts calculate voting privileges in the
manner established by the Trust. With respect to each Account, the Company will
vote Shares of the Trust held by the Account and for which no timely voting
instructions from policyowners are received, as well as Shares it owns that are
held by that Account or directly, in the same proportion as those Shares for
which timely voting instructions are received. The Company and its affiliates
and agents will in no way recommend or oppose or interfere with the
solicitation of proxies for Trust Shares held by Contract owners without the
prior written consent of the Trust, which consent may be withheld in the
Trust's sole discretion.
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2.9 The Company shall use its best efforts to notify the Trust of any
applicable state insurance laws that restrict the Portfolios' investments or
otherwise affect the operation of the Trust and shall notify the Trust in
writing of any changes in such laws.
2.10 The Company shall adopt and implement procedures reasonably designed to
ensure that information concerning the Trust and its affiliates that is
intended for use only by brokers or agents selling the Contracts (i.e.,
information that is not intended for distribution to Contract owners) ("broker
only materials") is so used, and neither the Trust nor any of its affiliates
shall be liable for any losses, damages or expenses relating to the improper
use of such broker only materials.
2.11 For purposes of Sections 2.6 and 2.7, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under the FINRA rules, the 1933 Act or the ▇▇▇▇ ▇▇▇.
2.12 The Trust will immediately notify the Company of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to the Trust's registration statement under
the 1933 Act or the Trust prospectus, (ii) any request by the SEC for any
amendment to such registration statement or the Trust prospectus that may
affect the offering of Shares of the Trust, (iii) the initiation of any
proceedings for that purpose or for any other purpose relating to the
registration or offering of the Trust's Shares, or (iv) any other action or
circumstances that may prevent the lawful offer or sale of Shares of any
Portfolio in any state or jurisdiction, including, without limitation, any
circumstances in which (a) such Shares are not registered and, in all material
respects, issued and sold in accordance with applicable state and federal law,
or (b) such law precludes the use of such Shares as an underlying investment
medium of the Contracts issued or to be issued by the Company. The Trust will
make every reasonable effort to prevent the issuance, with respect to any
Portfolio, of any such stop order, cease and desist order or similar order and,
if any such order is issued, to obtain the lifting thereof at the earliest
possible time.
2.13 The Company will immediately notify the Trust of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or
other similar order with respect to each Account's registration statement under
the 1933 Act relating to the Contracts or each Account prospectus, (ii) any
request by the SEC for any amendment to such registration statement or Account
prospectus that may affect the offering of Shares of the Trust, (iii) the
initiation of any proceedings for that purpose or for any other purpose
relating to the registration or offering of each Account's interests pursuant
to the Contracts, or (iv) any other action or circumstances that may prevent
the lawful offer or sale of said interests in any state or
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jurisdiction, including, without limitation, any circumstances in which said
interests are not registered and, in all material respects, issued and sold in
accordance with applicable state and federal law. The Company will make every
reasonable effort to prevent the issuance of any such stop order, cease and
desist order or similar order and, if any such order is issued, to obtain the
lifting thereof at the earliest possible time.
ARTICLE III
Representations and Warranties
3.1 The Company represents and warrants (i) that it is an insurance company
duly organized and in good standing under the laws of the State of Connecticut
and has full corporate power, authority and legal right to execute, deliver and
perform its duties and comply with its obligations under this Agreement,
(ii) that it has legally and validly established and maintained each Account as
a segregated asset account under such law and the regulations thereunder, and
(iii) that the Contracts comply in all material respects with all other
applicable federal and state laws and regulations.
3.2 The Company represents and warrants that (i) each Account has been
registered or, prior to any issuance or sale of the Contracts, will be
registered and each Account will remain registered as a unit investment trust
in accordance with the provisions of the 1940 Act, (ii) each Account does and
will comply in all material respects with the requirements of the 1940 Act and
the rules thereunder, (iii) each Account's 1933 Act registration statement
relating to the Contracts, together with any amendments thereto, will at all
times comply in all material respects with the requirements of the 1933 Act and
the rules thereunder, (iv) the Company will amend the registration statement
for its Contracts under the 1933 Act and for its Accounts under the 1940 Act
from time to time as required in order to effect the continuous offering of its
Contracts or as may otherwise be required by applicable law, and (v) each
Account prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
3.3 The Company represents and warrants that the Contracts or interests in
the Accounts are or, prior to issuance, will be registered as securities under
the 1933 Act. The Company further represents and warrants that: (i) the
Contracts will be issued and sold in compliance in all material respects with
all applicable federal and state laws, (ii) the sale of the Contracts, and the
allocation of purchase payments under the Contracts to any Portfolio of the
Trust, shall comply in all material respects with federal and state securities
and insurance suitability requirements, (iii) the Company has adopted policies
and procedures reasonably designed to comply with the USA PATRIOT Act, and
(iv) the Company does not encourage or facilitate active trading (other than in
underlying money market fund options and other investment options that
expressly permit active trading) and has adopted policies and procedures
reasonably designed to prevent market timing within the Portfolios.
3.4 The Trust represents and warrants (i) that it is duly organized and
validly existing under the laws of the State of Delaware, (ii) that it does and
will comply in all material respects with the requirements of the 1940 Act and
the rules thereunder, (iii) that its 1933 Act registration statement, together
with any amendments thereto, will at all times comply in all material respects
with the requirements of the 1933 Act and rules thereunder, and (iv) that its
Prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
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3.5 The Trust represents and warrants that the Trust Shares offered and sold
pursuant to this Agreement shall be registered under the 1933 Act to the extent
required by the 1933 Act and the Trust shall be registered under the 1940 Act
to the extent required by the 1940 Act prior to any issuance or sale of such
Shares. The Trust shall amend its registration statement for its shares under
the 1933 Act and itself under the 1940 Act from time to time as required in
order to effect the continuous offering of its Shares. The Trust shall register
and qualify its Shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust.
3.6 The Trust represents and warrants that each Portfolio complies, and will
comply, with the diversification requirements set forth in Section 817(h) of
the Internal Revenue Code of 1986, as amended, (the "Code") and the regulations
thereunder and that the Trust will notify the Company promptly upon having a
reasonable basis for believing that a Portfolio does not so comply. In the
event of any such non-compliance, the Trust will take all reasonable steps to
adequately diversify the Portfolio so as to achieve compliance within the grace
period afforded by Section 1.817-5 of the regulations under the Code.
Notwithstanding any other provision of this Agreement, the Company agrees
that if the Internal Revenue Service ("IRS") asserts in writing in
connection with any governmental audit or review of the Company or, to the
Company's knowledge, of any Contract owners or annuitants, insureds or
participants under the Contracts (as appropriate) (collectively,
"Participants"), that any Portfolio has failed to comply with the
diversification requirements of Section 817(h) of the Code or the Company
otherwise becomes aware of any facts that could give rise to any claim
against the Trust or its affiliates as a result of such a failure or alleged
failure:
(a) the Company shall promptly notify the Trust of such assertion or
potential claim;
(b) the Company shall consult with the Trust as to how to minimize any
liability that may arise as a result of such failure or alleged failure.
(c) the Company shall use its best efforts to minimize any liability of
the Trust or its affiliates resulting from such failure, including, without
limitation, demonstrating, pursuant to Treasury Regulations
Section 1.817-5(a)(2), to the Commissioner of the IRS that such failure was
inadvertent;
(d) the Company shall permit the Trust, its affiliates and their legal
and accounting advisors to participate in any conferences, settlement
discussions or other administrative or judicial proceeding or contests
(including judicial appeals thereof) with the IRS, any Participant or any
other claimant regarding any claims that could give rise to liability to the
Trust or its affiliates as a result of such a failure or alleged failure;
provided, however, that the Company will retain control of the conduct of
such conferences discussions, proceedings, contests or appeals;
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(e) any written materials to be submitted by the Company to the IRS, any
Participant or any other claimant in connection with any of the foregoing
proceedings or contests (including, without limitation, any such materials
to be submitted to the IRS pursuant to Treasury Regulations
Section 1.817-5(a)(2)), (a) shall be provided by the Company to the Trust
(together with any supporting information or analysis) at least five
(5) business days or such shorter period to which the Parties hereto agree
prior to the day on which such proposed materials are to be submitted, and
(b) shall not be submitted by the Company to any such person without the
express written consent of the Trust which shall not be unreasonably
withheld;
(f) the Company shall provide the Trust or its affiliates and their
accounting and legal advisors with such cooperation as the Trust shall
reasonably request (including, without limitation, by permitting the Trust
and its accounting and legal advisors to review the relevant books and
records of the Company) in order to facilitate review by the Trust or its
advisors of any written submissions provided to it pursuant to the preceding
clause or its assessment of the validity or amount of any claim against its
arising from such a failure or alleged failure;
(g) the Company shall not with respect to any claim of the IRS or any
Participant that would give rise to a claim against the Trust or its
affiliates (a) compromise or settle any claim, (b) accept any adjustment on
audit, or (c) forego any allowable administrative or judicial appeals,
without the express written consent of the Trust or its affiliates, which
shall not be unreasonably withheld; provided that the Company shall not be
required, after exhausting all administrative remedies, to appeal any
adverse judicial decision unless the Trust or its affiliates shall have
provided an opinion of independent counsel to the effect that a reasonable
basis exists for taking such appeal; and
(h) the Trust and its affiliates shall have no liability as a result of
such failure or alleged failure if the Company fails to comply in any
material respect with any of the foregoing clauses (a) through (g).
Should the Trust or any of its affiliates refuse to give its written
consent to any compromise or settlement of any claim or liability hereunder,
the Company may, in its discretion, authorize the Trust or its affiliates to
act in the name of the Company in, and to control the conduct of, such
conferences, discussions, proceedings, contests or appeals and all
administrative or judicial appeals thereof, and if such arrangement is
agreed to in writing by the Trust or its affiliates, the Trust or its
affiliates shall bear the fees and expenses associated with the conduct of
the proceedings that it is so authorized to control; provided, that in no
event shall the Company have any liability resulting from the Trust's
refusal to accept the proposed settlement or compromise with respect to any
failure caused by the Trust. As used in this Agreement, the term
"affiliates" shall have the same meaning as "affiliated person" as defined
in Section 2(a)(3) of the ▇▇▇▇ ▇▇▇.
3.7 The Trust represents and warrants that each Portfolio qualifies, and
will qualify, as a Regulated Investment Company under Subchapter M of the Code
and that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) and that it will notify the
Company promptly upon having a reasonable basis for believing that a Portfolio
has ceased to so qualify.
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3.8 The Trust's Shares intend to make any payments to finance distribution
expenses pursuant to Rule 12b-1 under the 1940 Act or otherwise. The Trust
represents and warrants that its board of trustees, a majority of whom are not
interested persons of the Trust, formulated and approved such plan under Rule
12b-1 to finance distribution expenses.
3.9 The Trust represents and warrants that all of its trustees, officers and
employees are and shall continue to be at all times covered by a blanket
fidelity bond or similar coverage for the benefit of the Trust in an amount not
less than the minimal coverage as required currently by Rule 17g-(1) under the
1940 Act or related provisions as may be promulgated from time to time. The
aforesaid Bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
3.10 The Company represents and warrants that the Contracts currently are
and will be treated as annuity contracts or life insurance contracts under
applicable provisions of the Code and that it will make every effort to
maintain such treatment; the Company will notify the Trust immediately upon
having a reasonable basis for believing that any of the Contracts have ceased
to be so treated or that they might not be so treated in the future.
3.11 The Company represents and warrants that each Account is a "segregated
asset account" and that interests in each Account are offered exclusively
through the purchase of or transfer into a "variable contract," within the
meaning of such terms under Section 817 of the Code and the regulations
thereunder. The Company will make every effort to continue to meet such
definitional requirements, and it will notify the Trust immediately upon having
a reasonable basis for believing that such requirements have ceased to be met
or that they might not be met in the future.
3.12 Each of the Parties represents and warrants that it shall perform its
obligations hereunder in compliance, in all material respects, with any
applicable state and federal laws.
ARTICLE IV
Potential Conflicts
4.1 The parties acknowledge that the Trust's Shares may be made available
for investment to other Participating Insurance Companies. In such event, the
Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. An irreconcilable material conflict may
arise for a variety of reasons, including: (a) an action by any state insurance
regulatory authority; (b) a change in applicable federal or state insurance,
tax, or securities laws or regulations, or a public ruling, private letter
ruling, no-action or interpretative letter, or any similar action by insurance,
tax, or securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the investments of
any Portfolio are being managed; (e) a difference in voting instructions given
by variable annuity contract and variable life insurance policyowners; or (f) a
decision by an insurer to disregard the voting instructions of contract owners.
The Trustees shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
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4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. The Company agrees to provide
the Trustees with all information reasonably necessary for the Trustees to
consider any issues raised including, but not limited to, information as to a
decision by the Company to disregard Contract owner voting instructions.
4.3 If it is determined by a majority of the Trustees, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists that
affects the interests of Contract owners, the Company shall, in cooperation
with other Participating Insurance Companies whose contract owners are also
affected, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees) take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict, which
steps could include: (a) withdrawing the assets allocable to some or all of the
Accounts from the Trust or any Portfolio and reinvesting such assets in a
different investment medium, including (but not limited to) another Portfolio
of the Trust, or submitting the question of whether or not such segregation
should be implemented to a vote of all affected Contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
contract owners, life insurance contract owners, or variable contract owners of
one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected Contract owners the option of making
such a change; and (b) establishing a new registered management investment
company or managed separate account.
4.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Trust's election, to withdraw each affected Account's
investment in the Trust and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be
limited to the extent required to adequately remedy the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
Trustees. Any such withdrawal and termination must take place within six
(6) months after the Trust gives written notice that this provision is being
implemented. Until the end of such six (6) month period, the Trust shall
continue to accept and implement orders by the Company for the purchase and
redemption of Shares of the applicable Portfolio.
4.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the affected
Account's investment in the Trust and terminate this Agreement with respect to
such Account within six (6) months after the Trustees inform the Company in
writing that it has determined that such decision has created an irreconcilable
material conflict; provided, however, that such withdrawal and termination
shall be limited to the extent required to adequately remedy the foregoing
material irreconcilable conflict as determined by a majority of the
disinterested Trustees. Until the end of such six (6) month period, the Trust
shall continue to accept and implement orders by the Company for the purchase
and redemption of Shares of the applicable Portfolio.
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4.6 With the exception of the events described in Section 4.1(d), the
Company agrees that any remedial action taken by it in resolving any material
irreconcilable conflict will be carried out at its expense and with a view only
to the interests of Contract owners.
4.7 For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested Trustees shall determine whether any proposed action
adequately remedies any irreconcilable material conflict, but in no event will
the Company be required to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material conflict. In the
event that the Trustees determine that any proposed action does not adequately
remedy any irreconcilable material conflict, then the Company will withdraw the
Account's investment in the Trust and terminate this Agreement within six
(6) months after the Trustees inform the Company in writing of the foregoing
determination.
4.8 The Trust has not applied for an order from the SEC granting
Participating Insurance Companies and their separate accounts exemptions from
the provisions of Sections 9(a), 13(a), 15(a) and 15(b) of the 1940 Act, and
Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunderto (the "Exemptive Order"), and
has no present intention to apply for an Exemptive Order. To the extent the
Company determines that it requires the relief provided by an Exemptive Order,
the Company agrees to obtain such relief or notify the Trust sufficiently in
advance that the Trust may obtain an Exemptive Order on behalf of the Company.
4.9 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding, then the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable.
ARTICLE V
Indemnification
5.1 Indemnification By the Company. The Company agrees to indemnify and hold
harmless the Trust, its affiliates and each of its Trustees, officers,
employees and agents and each person, if any, who controls the Trust or any of
its affiliates within the meaning of Section 15 of the 1933 Act (collectively,
the "Trust Indemnified Parties" for purposes of this Article V) against any and
all losses, claims, damages, liabilities (including amounts paid in settlement
with the written consent of the Company) or expenses (including the reasonable
costs of investigating or defending any alleged loss, claim, damage, liability
or expense and reasonable legal counsel fees incurred in connection therewith)
(collectively, "Losses"), to which the Trust Indemnified Parties may become
subject under any statute or regulation, or at common law or otherwise, insofar
as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in a registration statement
or prospectus for the Contracts or in the Contracts themselves or in
advertising or sales literature for the Contracts (or any amendment or
supplement to any of the foregoing) (collectively, "Company Documents" for
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the purposes of this Article V), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, provided that this indemnity shall not apply as to any Trust
Indemnified Party if such statement or omission or such alleged statement or
omission was made in reliance upon and was accurately derived from written
information furnished to the Company or its affiliates by or on behalf of
the Trust or its affiliates for use in Company Documents or otherwise for
use in connection with the sale of the Contracts or Trust Shares; or
(b) arise out of or result from statements or representations (other than
statements or representations contained in and accurately derived from Trust
Documents as defined in Section 5.2(a)) or the negligent or wrongful conduct
of the Company, or persons under its control (including, without limitation,
its employees), in connection with the sale or distribution of the Contracts
or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Trust Documents as defined in
Section 5.2(a) or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading if such statement or omission was made in
reliance upon and accurately derived from written information furnished to
the Trust or its affiliates by or on behalf of the Company or its
affiliates; or
(d) arise out of or result from any failure by the Company to perform the
obligations, provide the services or furnish the materials required under
the terms of this Agreement; or
(e) arise out of or result from any material breach of any representation
and/or warranty made by the Company in this Agreement or arise out of or
result from any other material breach of this Agreement by the Company.
5.2 Indemnification By the Trust. The Trust agrees to indemnify and hold
harmless the Company its affiliates and each of its directors, officers,
employees and agents and each person, if any, who controls the Company or any
of its affiliates within the meaning of Section 15 of the 1933 Act
(collectively, the "Company Indemnified Parties" for purposes of this Article
V) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Trust) or expenses
(including the reasonable costs of investigating or defending any alleged loss,
claim, damage, liability or expense and reasonable legal counsel fees incurred
in connection therewith) (collectively, "Losses"), to which the Company
Indemnified Parties may become subject under any statute or regulation, or at
common law or otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration
statement or prospectus for the Trust or in advertising or sales literature
for the Trust (or any amendment or supplement to any of the foregoing),
(collectively, "Trust Documents" for the purposes of this Article V), or
arise out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, provided that this indemnity shall
not apply as to any Company Indemnified Party if such statement or omission
or
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such alleged statement or omission was made in reliance upon and was
accurately derived from written information furnished to the Trust or its
affiliates by or on behalf of the Company or its affiliates for use in Trust
Documents or otherwise for use in connection with the sale of the Contracts
or Trust Shares; or
(b) arise out of or result from statements or representations (other than
statements or representations contained in and accurately derived from
Company Documents) or the negligent or wrongful conduct of the Trust or
persons under its control (including, without limitation, its employees), in
connection with the sale or distribution of the Contracts or Trust Shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents or the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading if such
statement or omission was made in reliance upon and accurately derived from
written information furnished to the Company or its affiliates by or on
behalf of the Trust or its affiliates; or
(d) arise out of or result from any failure by the Trust to perform the
obligations, provide the services or furnish the materials required under
the terms of this Agreement; or
(e) arise out of or result from any material breach of any representation
and/or warranty made by the Trust in this Agreement or arise out of or
result from any other material breach of this Agreement by the Trust.
5.3 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any Losses incurred or
assessed against a Trust Indemnified Party or a Company Indemnified Party, as
applicable (as to each, an "Indemnified Party") to the extent the Losses arise
from such Indemnified Party's willful misfeasance, bad faith or negligence in
the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
5.4 No Party shall be liable under the indemnification provisions of
Sections 5.1 or 5.2, as applicable, with respect to any claim made against an
Indemnified Party unless such Indemnified Party shall have notified the party
or parties against whom Indemnification is sought (the "Indemnifying Party") in
writing within a reasonable time after the summons, or other first written
notification, giving information of the nature of the claim shall have been
served upon or otherwise received by such Indemnified Party (or after such
Indemnified Party shall have received notice of service upon or other
notification to any designated agent), but failure to notify the Indemnifying
Party of any such claim shall not relieve such Indemnifying Party from any
liability which it may have to the Indemnified Party in the absence of Sections
5.1 and 5.2.
5.5 In case any such action is brought against the Indemnified Parties, the
Indemnifying Party shall be entitled to participate, at its own expense, in the
defense of such action. The Indemnifying Party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the party named in
the action. After notice from the Indemnifying
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Party to the Indemnified Party of an election to assume such defense, the
Indemnified Party shall cooperate with the Indemnifying Party and bear the fees
and expenses of any additional counsel retained by it, and the Indemnifying
Party will not be liable to the Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof other than reasonable
costs of investigation.
ARTICLE VI
Confidentiality
6.1 The Trust acknowledges that the identities of the customers of Company
or any of its affiliates (collectively, the "Company Protected Parties" for
purposes of this Article VI), information maintained regarding those customers,
and all computer programs and procedures or other information developed by the
Company Protected Parties or any of their employees or agents in connection
with Company's performance of its duties under this Agreement are the valuable
property of the Company Protected Parties. The Trust agrees that if it comes
into possession of any list or compilation of the identities of or other
information about the Company Protected Parties' customers, or any other
information or property of the Company Protected Parties, other than such
information as may be independently developed or compiled by the Trust from
information supplied to it by the Company Protected Parties' customers who also
maintain accounts directly with the Trust, the Trust will hold such information
or property in confidence and refrain from using, disclosing or distributing
any of such information or other property except: (a) with Company's prior
written consent; or (b) as required by law or judicial process. The Company
acknowledges that the identities of the customers of the Trust or any of its
affiliates (collectively, the "the Trust Protected Parties" for purposes of
this Article VI), information maintained regarding those customers, and all
computer programs and procedures or other information developed by the Trust
Protected Parties or any of their employees or agents in connection with the
Trust's performance of its duties under this Agreement are the valuable
property of the Trust Protected Parties. The Company agrees that if it comes
into possession of any list or compilation of the identities of or other
information about the Trust Protected Parties' customers or any other
information or property of the Trust Protected Parties, other than such
information as may be independently developed or compiled by Company from
information supplied to it by the Trust Protected Parties' customers who also
maintain accounts directly with the Company, the Company will hold such
information or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with the
Trust's prior written consent; or (b) as required by law or judicial process.
Each party acknowledges that any breach of the agreements in this Article VI
would result in immediate and irreparable harm to the other parties for which
there would be no adequate remedy at law and agree that in the event of such a
breach, the other parties will be entitled to equitable relief by way of
temporary and permanent injunctions, as well as such other relief as any court
of competent jurisdiction deems appropriate.
ARTICLE VII
Termination
7.1 (a) This Agreement may be terminated by either party for any reason by
ninety (90) days advance written notice delivered to the other party.
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(b) This Agreement may be terminated by the Company immediately upon
written notice to the Trust with respect to any Portfolio:
(i) based upon the Company's determination that Shares of such
Portfolio are not reasonably available to meet the requirements of the
Contracts; or
(ii) in the event any of the Portfolio's Shares are not registered,
and in all material respects issued or sold in accordance with
applicable state and/or federal law or such law precludes the use of
such Shares as the underlying investment media of the Contracts issued
or to be issued by the Company; or
(iii) in the event that such Portfolio ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably believes
that the Trust may fail to so qualify; or
(iv) in the event that such Portfolio fails to meet the
diversification requirements specified in this Agreement.
7.2 Notwithstanding any termination of this Agreement under Section 7.1, the
Trust shall, at the option of the Company, continue to make available
additional Shares of the Trust (or any Portfolio) for at least 180 days,
pursuant to the terms and conditions of this Agreement, for all Contracts in
effect on the effective date of termination of this Agreement, provided that
the Company continues to meet all obligations of the Company under this
Agreement (treating it as being in full force and effect), and further provided
that Shares of the Trust (or any Portfolio) shall only be required to be made
available with respect to owners of the Contracts for whom Shares are held by
an Account on the effective date of the termination. Such Contract owners will
be permitted to reallocate investments in the Portfolio and/or invest in the
Portfolio upon the making of additional purchase payments under the Contracts.
The provisions of this Section 7.2 shall not apply to any termination pursuant
to Article IV or in the event the Trust determines to liquidate the Portfolio
and end the Portfolio's existence.
7.3 The provisions of Articles V and VI shall survive the termination of
this Agreement, and the provisions of Articles II and IV shall survive the
termination of this Agreement as long as Shares of the Trust are held on behalf
of Contract owners in accordance with Section 7.2.
7.4 This Agreement will terminate as to a Portfolio upon at least ninety
(90) days advance written notice:
(a) at the option of the Trust upon institution of formal proceedings
against the Company by FINRA, the SEC, or any state securities or insurance
department or any other regulatory body if the Trust shall determine, in its
sole judgment exercised in good faith, that the Company has suffered a
material adverse change in its business, operations, financial condition, or
prospects since the date of this Agreement or is the subject of material
adverse publicity; or
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(b) at the option of the Company upon institution of formal proceedings
against the Trust, its principal underwriter, or its investment adviser by
FINRA, the SEC, or any state securities or insurance department or any other
regulatory body if the Company shall determine, in its sole judgment
exercised in good faith, that the Trust, its principal underwriter, or its
investment adviser has suffered a material adverse change in its business,
operations, financial condition, or prospects since the date of this
Agreement or is the subject of material adverse publicity; or
7.5 This Agreement will terminate as to a Portfolio immediately upon prior
written notice which shall be given as soon as possible within twenty-four
(24) hours after the terminating Party learns of the event causing termination
to be required:
(a) at the option of the Trust if the Contracts issued by the Company
cease to qualify as annuity contracts or life insurance contracts under the
Code (other than by reason of the Portfolio's noncompliance with
Section 817(h) or Subchapter M of the Code) or if interests in an Account
under the Contracts are not registered, or, in all material respects, are
not issued or sold in accordance with any applicable federal or state law; or
(b) upon another Party's material breach of any provision of this
Agreement.
7.6 The Parties hereto agree to cooperate and give reasonable assistance to
one another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Portfolio after the effective date
of this Agreement's termination with respect to such Shares or, if such
ownership following termination cannot be avoided, that the duration thereof is
as brief as reasonably practicable. Such steps may include, for example,
combining the affected Account with another Account, substituting other
portfolio shares for those of the affected Portfolio, or otherwise terminating
participation by the Contracts in such Portfolio.
ARTICLE VIII
Contractholder Information
8.1 The Company agrees to provide the Trust, upon written request (which may
include electronic writings and facsimile transmissions, a "Request"), the
taxpayer identification number (the "TIN"), the Individual/International
Taxpayer Identification Number ("ITIN") or other government-issued identifier
("GII"), if known, of any person that is a party to a Contract that uses a
Portfolio of the Trust as an underlying investment medium by investments
through the Company or its affiliates (individually, a "Contractholder" or
collectively, the "Contractholders") who have purchased, redeemed, transferred
or exchanged Shares held through an Account during the period covered by the
Request and the amount, date, name or other identifier of any investment
professional(s) associated with the Contractholders or Account (if known), and
transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares("Transaction
Information").
(a) Requests must set forth a specific period, not to exceed 180 days
from the date of the Request for which transaction information is sought.
The Trust may request transaction information older than 180 days from the
date of the Request as it deems necessary to investigate compliance with
policies established by the Trust for the purpose of eliminating or reducing
any dilution of the value of its Shares.
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(b) The Company agrees to transmit the requested information that is on
its books and records to the Trust or its designee promptly, but in any
event not later than ten (10) Business Days after receipt of a Request. To
the extent practicable, the format for any transaction information provided
to the Trust should be consistent with the National Securities Clearing
Corporation Standardized Data Report Format, or any other format acceptable
to the Trust.
(c) The Trust agrees not to use the information received for marketing or
any other similar purpose without the prior written consent of the Company.
8.2 The Company agrees to execute a Request from the Trust to restrict or
prohibit further purchases or exchanges of Shares by a Contractholder that has
been identified by the Trust as having engaged in transactions in Shares
(directly or indirectly through an Account) that violate policies established
by the Trust for the purpose of eliminating or reducing any dilution of the
value of its Shares.
(a) Such Request must include the TIN, ITIN or GII, if known, and the
specific restriction(s) to be executed. If the TIN, ITIN or GII is not
known, the instructions must include an equivalent identifying number of the
Contractholder(s) or Account(s) or other agreed upon information to which
the instruction relates.
(b) The Company agrees to execute the Request as soon as reasonably
practicable, but not later than five (5) Business Days after receipt of the
instructions by the Company.
(c) The Company agrees to provide written confirmation to the Trust as
soon as reasonably practicable that the Request has been executed, but not
later than ten (10) Business Days after the Request has been executed.
8.3 Company will use best efforts to determine, promptly upon the request of
the Trust, but not later than five (5) Business Days after receipt of the
Request by the Company, whether any specific person or entity about whom the
Trust has received information pursuant to Section 8.1 of this Agreement is an
"indirect intermediary" as defined in Rule 22c-2 of the 1940 Act (the "Rule")
(an "Indirect Intermediary") and, upon further Request from the Trust, promptly
(but not later than five (5) Business Days after receipt of such Request either:
(a) provide (or arrange to have provided) the identification and
transaction information set forth in Section 8.1(a) of this Agreement
regarding a Contractholder who holds Shares through the Indirect
Intermediary; or
(b) restrict or prohibit the Indirect Intermediary from purchasing Shares
on behalf of itself or other persons.
The Company agrees to inform the Trust whether it plans to perform (a) or
(b) above.
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8.4 Limitations on Use of Shareholder Information-
(a) Limitations. The Trust agrees to only use the Transaction Information
for the purposes of identifying Contractholders who may be violating
the Trust's policies and procedures with respect to dilution of the
Trust's value as contemplated by the Rule or to fulfill other
regulatory or legal requirements subject to the privacy provisions of
Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act (Public Law 106-102) and
comparable state laws. The Trust agrees that the Transaction
Information is confidential and that the Trust will not share the
Transaction Information externally, unless the Company provides the
Trust with prior written consent to share such Transaction Information.
(b) Breach of Confidentiality. If the Trust becomes aware of any
disclosure to an unauthorized third party of any non-public personal
financial information of a consumer, including Transaction
Information, provided to the Trust or received by the Company in
response to a Request for Transaction Information pursuant to the
terms of this Agreement, the Trust promptly shall, at its expense:
(i) notify the Chief Privacy Officer or comparable staff person of the
Company; (ii) investigate the circumstances relating to such actual or
suspected unauthorized access, use or disclosure; (iii) take
commercially reasonable steps to mitigate the effects of such
unauthorized access, use or disclosure and to prevent any
reoccurrence; (iv) provide to the other such information regarding
such unauthorized access, use or disclosure as is reasonably required
for the other party to evaluate the likely consequences and any
regulatory or legal requirements arising out of such unauthorized
access, use or disclosure; and (v) cooperate with the Company to
further comply with all relevant laws, rules and regulations.
(c) Transmissions of Transaction Information. The Trust agrees that when
transmitting Transaction Information by facsimile or electronic
writing that the Transaction Information will be protected by
encryption, password, or some other form of secure transmission, which
will adequately protect the confidentiality of the Transaction
Information.
8.5 This Article VIII is effective as of October 16, 2007, or such earlier
date as mutually agreed upon by the Parties. With respect to any Indirect
Intermediary, this Article VIII will remain in effect so long as that Indirect
Intermediary is deemed to be a "financial intermediary" (as defined in the
Rule).
ARTICLE IX
Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Trust: ▇▇▇▇▇▇▇ ▇▇▇▇▇, Chairman
Northern Lights Variable Trust
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
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with a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
and a copy to: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Jefferson National Financial Corp.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Company: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Second Vice President
Phoenix Companies, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
ARTICLE X
Miscellaneous
10.1 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
10.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.3 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
10.4 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of State of New York without regard for
that state's principles of conflict of laws.
10.5 The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the Trust and that no Trustee, officer, agent or holder of Shares of
beneficial interest of the Trust shall be personally liable for any such
liabilities.
10.6 Each party shall cooperate with each other party and all appropriate
governmental authorities (including without limitation the Securities and
Exchange Commission, the Financial Industry Regulatory Authority, and state
insurance regulators) and shall permit such authorities reasonable access to
its books and records in connection with any investigation or inquiry relating
to this Agreement or the transactions contemplated hereby reasonable access to
its books and records in connection with any investigation or inquiry relating
to this Agreement or the transactions contemplated hereby.
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10.7 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.
10.8 The parties to this Agreement acknowledge and agree that this Agreement
shall not be exclusive in any respect.
10.9 Neither this Agreement nor any of its rights or obligations hereunder
may be assigned by any party without the prior written approval of the other
parties.
10.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
Parties hereto.
IN WITNESS WHEREOF, the Parties have caused their duly authorized officers
to execute this Agreement as of the date and year first above written.
NORTHERN LIGHTS VARIABLE TRUST
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: President
PHL VARIABLE INSURANCE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇'▇▇▇▇▇▇▇
Title: Senior Vice President
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SCHEDULE A
Separate Accounts and Associated Contracts
Policies/Contracts Funded By
Name of Separate Account Separate Account
------------------------ ----------------------------------
PHL Variable Accumulation Account II Phoenix Portfolio Advisor
PHL-2300-2 and state variations
SCHEDULE B
Participating Portfolios
JNF Equity Portfolio
JNF Balanced Portfolio
JNF Money Market Portfolio Effective - April 7, 2008
JNF ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bond Portfolio- Effective May 1, 2008