AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT: RULE 30e-3
Exhibit 99.(h)(12)(a)
AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT: RULE 30e-3
First Security Benefit Life Insurance and Annuity Company of New York (the “Company”) on its own behalf and on behalf of each separate account of the Company as set forth on Schedule A to the Participation Agreement, as may be amended from time to time (individually and collectively the “Accounts”), and Virtus Variable Insurance Trust (the “Fund”), a Delaware statutory trust, and VP Distributors, LLC (the “Distributor”), a Delaware limited liability company have entered into a participation agreement dated April 5, 2013, as amended (the “Participation Agreement”) whereby the Company invests in shares of certain of the portfolios of the Fund (the “Portfolios”) as a funding vehicle for the Accounts that issue variable annuity and/or life insurance contracts (the “Variable Contracts” or “Contracts”) to persons that are registered owners of such Variable Contracts on the books and records of the Company (the “Contract Owners”).
This Amendment No. 1 to Participation Agreement (the “Amendment”) is entered into by and among the Company, the Fund, and Adviser (collectively, the “Parties”), and is effective as of the Effective Date set forth herein.
RECITALS
WHEREAS, the Parties desire to supplement and amend the Participation Agreement to reflect and implement the requirements, terms and conditions of Rule 30e-3 under the Investment Company Act of 1940 (“Rule 30e-3” or “the Rule”);
WHEREAS, the Fund is responsible for preparing and timely filing with the Securities and Exchange Commission (“SEC”) and/or providing to the Company the Required Materials, as specified in paragraph (b)(1) of Rule 30e-3 and as defined below; and
WHEREAS, the Company intends to host the website of Required Materials.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which consideration is full and complete, the Company, the Fund, and the Distributor hereby agree to supplement and amend the Participation Agreement as follows:
| 1. | Posting and Availability of Fund Shareholder Reports and Other Required Materials. The Company shall be responsible for and shall fulfill the website posting requirements specified in paragraph (b) of Rule 30e-3. The Company shall ensure that, with respect to the Portfolios, the following Fund materials are posted to a website address specified by the Company (the “Specified Website”), and are publicly accessible and free of charge on the Specified Website: (i) Current Report to Shareholders; (ii) Prior Report to Shareholders; (iii) Complete Portfolio Holdings From Reports Containing a Summary Schedule of Investments; and (iv) Portfolio Holdings For Most Recent First and Third Fiscal Quarters; all of (i) through (iv) to be as specified in paragraph (b)(1) of Rule 30e- 3 (items (i) through (iv) collectively, with respect to the Portfolios, the “Required Materials”). |
| 2. | Preparation, Content, and Timely Provision of Required Materials. The Fund shall be responsible for the preparation and content of the Required Materials, including, but not limited to, the accuracy and completeness of the Required Materials; and the Fund shall be responsible for sending a .pdf of the Required Materials to xxxxxxxxx@xxxxxxxxxxxxx.xxx as soon as practicable after filing with the SEC but no later than sixty (60) days after the close of the period for which the Required Materials are being made. Without limiting the generality of the foregoing in any manner, the Fund shall be responsible for ensuring that the Required Materials: |
(a) Meet the applicable standards of the Securities Act of 1933, as amended; the Securities Exchange Act of 1934, as amended; the Investment Company Act of 1940 (the “1940 Act”); and all rules and regulations under those Acts; and
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(b) Do not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in light of the circumstances under which they are made, not misleading.
| 3. | Notification; Reliance on Third Party to Provide Documents. If, for any reason, the Fund is unable to provide the Required Materials in the manner set forth in section 2, the Fund shall promptly notify the Company. The Fund shall be responsible for the actions or inactions or any other failures of any third party that it may utilize to provide the Required Materials in the manner set forth in section 2; and any actions, inactions or other failures by any such third party shall not relieve the Fund from its obligations under this Amendment. |
| 4. | Specified Website. The Specified Website is as identified in Exhibit 1 hereto, and it may be changed by the Company from time to time without notice to the Fund and Distributor. |
| 5. | Paper Notice to Contract Owners. The Company shall provide a paper notice to its Contract Owners, if and to the extent such notice is required by paragraph (c) of Rule 30e-3. |
| 6. | Delivery of Paper Copy Upon “Ad Hoc” Request. The Company shall fulfill ad hoc requests from Contract Owners for a paper copy of any of the Required Materials, if and to the extent required by paragraph (e) of Rule 30e-3. |
| 7. | Investor Elections to Receive Future Fund Reports in Paper. The Company shall fulfill Contract Owner elections to receive future Fund shareholder reports (with respect to the Portfolios) in paper, if and to the extent required by paragraph (f) of Rule 30e-3. |
| 8. | Provision of Paper or Electronic Documents. To satisfy Contract Owner requests under sections 6 and 7 above, the Distributor shall provide the Company with as many printed copies of the Required Materials as the Company may reasonably request, with expenses to be borne in accordance with Schedule B to the Participation Agreement. If requested by the Company in lieu thereof, the Fund shall provide the Required Materials (including a print-ready .pdf or an electronic copy of the Required Materials in a format suitable for printing) and such other assistance as is reasonably necessary in order for the Company to have the Required Materials printed together in a single document or printed individually by the Company if it so chooses. |
| 9. | Expenses. Rule 30e-3 expenses shall be borne in accordance with the schedule below. Schedule B to the Participation Agreement is hereby amended to include the following information: |
| Item | Function | Party Responsible for Expense |
| 30e-3 Notice | Printing and Distribution (including postage) | Fund (Security may choose to do the printing at Underwriter’s expense) |
| 30e-3 Required Materials | Distribution (including website hosting and maintenance) | Fund |
| 10. | Construction of this Amendment; Participation Agreement. |
(a) This Amendment shall be interpreted to be consistent with, and to facilitate compliance with and reliance on, Rule 30e-3 under the 1940 Act and any interpretations of the Rule by the SEC, its staff, courts, or other appropriate legal authorities.
(b) This Amendment supplements and amends the Participation Agreement. To the extent the terms of this Amendment conflict with the terms of the Participation Agreement, the terms of this Amendment shall control; otherwise, and except as otherwise specifically set forth in this Amendment, the terms of the Participation Agreement shall continue to apply, and shall apply to the duties, responsibilities, rights and obligations of the Parties under and pursuant to this Amendment.
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(c) Capitalized and other terms used in this Amendment shall have the meaning given to them in the Participation Agreement, unless otherwise defined herein.
| 11. | Indemnification. The Parties agree that the indemnification provision in the Participation Agreement applies to the Parties’ duties and obligations under this Amendment. |
| 12. | Counterparts and Delivery. This Amendment may be executed in two or more counterparts, which may be executed and/or exchanged electronically, each of which shall be deemed an original and all of which together shall constitute one instrument. A signed copy of this Amendment delivered by facsimile or by email in .pdf form shall be treated as an original. |
| 13. | Effective Date. This Amendment is effective as of January 1, 2021. |
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be executed as of the Effective Date.
FIRST SECURITY BENEFIT LIFE
INSURANCE AND ANNUITY
COMPANY OF NEW YORK
| By: | /s/ Xxxxxxx Xxxxx | |||
| Print Name: | Xxxxxxx Xxxxx | |||
| Title: | President | |||
VIRTUS VARIABLE INSURANCE TRUST
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Print Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President, Mutual Fund Services | |||
VP DISTRIBUTORS, LLC
| By: | /s/ Xxxxx Xxxxxxxx | |||
| Print Name: | Xxxxx Xxxxxxxx | |||
| Title: | Vice President, Mutual Fund Services | |||
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EXHIBIT 1
Specified Website
xxxxx://xxx.xxxxxxxx.xxx/XxxxxxxxXxxxxxx?xxxxxXXXX
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