DISTRIBUTION AGREEMENT
BETWEEN
FIRST SECURITY BENEFIT LIFE INSURANCE AND
ANNUITY COMPANY OF NEW YORK
AND
SECURITY DISTRIBUTORS, INC.
THIS DISTRIBUTION AGREEMENT, made as of the 1st day of July, 2002, by and
between FIRST SECURITY BENEFIT LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
("INSURER"), a life insurance company organized under the laws of the State of
New York, for itself and on behalf of the Insurer's Separate Account(s)
established and maintained by Insurer under the laws of the State of New York
(the "SEPARATE ACCOUNTS"), and SECURITY DISTRIBUTORS, INC., a corporation
organized and existing under the laws of the State of Kansas ("UNDERWRITER").
WITNESSETH:
WHEREAS, the Separate Accounts have been established by Insurer to support
variable annuity contracts (the "CONTRACTS") issued by Insurer;
WHEREAS, Underwriter is registered as a broker-dealer under the Securities
Exchange Act of 1934, as amended ("SEA-34"), and is a member of the National
Association of Securities Dealers, Inc. ("NASD");
WHEREAS, Underwriter desires to distribute the Contracts supported by the
Separate Accounts and offered by Insurer;
WHEREAS, Insurer desires to issue such Contracts to the public through
Underwriter acting as the principal underwriter;
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. DEFINITIONS
(a) AFFILIATE -- With respect to a person, any other person controlling,
controlled by, or under common control with, such person.
(b) APPLICATION -- An application for a Contract and any other forms
required to be completed before a Contract is issued.
(c) DISTRIBUTOR -- A person registered as a broker-dealer and licensed as
a life insurance agent or affiliated with a person so licensed, who
will be authorized by Underwriter to distribute the Contracts.
(d) FUND -- An investment company, underlying the Contracts as in effect
at the Effective Date, and such other investment companies that may be
added from time to time.
(e) PERSON -- An individual, corporation, partnership, limited liability
company, firm, joint venture, association, joint-stock company,
unincorporated organization, governmental or regulatory authority or
other entity.
(f) PREMIUM -- A payment made under a Contract by an applicant or
purchaser to purchase benefits under the Contract.
(g) PROSPECTUS -- The prospectus and statement of additional information,
if any, included within a Registration Statement, except that, if the
most recently filed prospectus and statement of additional information
filed pursuant to Rule 497 under SA-33 subsequent to the date on which
a Registration Statement became effective differs from the prospectus
and statement of additional information included within such
Registration Statement at the time it became effective, the term
"Prospectus" shall refer to the most recently filed prospectus and
statement of additional information filed under Rule 497 under SA-33,
from and after the date on which they each shall have been filed.
(h) REGISTRATION STATEMENT -- At any time that this Agreement is in
effect, each currently effective registration statement, or currently
effective post-effective amendment thereto, relating to the Contracts,
including financial statements included in, and all exhibits to, such
registration statement or post-effective amendment.
(i) REGULATIONS -- The rules and regulations promulgated by the SEC under
SA-33, SEA-34 and the Investment Company Act of 1940, as amended
("ICA-40").
(j) REPRESENTATIVE -- When used with reference to a Distributor, an
individual who is an associated person, as that term is defined in
SEA-34, thereof.
(k) SA-33 -- The Securities Act of 1933, as amended.
(l) SEC -- The Securities and Exchange Commission.
2. SALE OF CONTRACTS
(a) PRINCIPAL UNDERWRITER
Insurer, on its behalf and on behalf of the Separate Accounts,
authorizes Underwriter, and Underwriter accepts such authority, to be
the distributor and principal underwriter of the Contracts.
Underwriter shall act as distributor and principal underwriter of the
Contracts, subject to Insurer's control. As distributor and principal
underwriter, Underwriter shall have the right to authorize third
parties as Distributors and Distributor Representatives to engage in
distribution activities involving the solicitation of Applications and
Premiums directly from customers and prospective customers, in each
case as Underwriter may so provide or limit, provided that Insurer
reserves the right, which shall not be exercised unreasonably, to
require that Underwriter not enter into a sales agreement with any
proposed Distributor or appoint a Distributor Representative. Insurer
shall authorize Underwriter on its behalf to appoint in the
appropriate states or jurisdictions such Distributors or Distributor
Representatives. Underwriter shall be an independent contractor and
neither Underwriter, nor any of its officers, directors, employees, or
agents is or shall be an employee of Insurer in the performance of
Underwriter's duties hereunder.
(b) NO ALTERATION, DISCHARGE, ETC., OF CONTRACTS
Underwriter shall not have authority, and shall not grant authority to
Distributors or Distributor Representatives, on behalf of Insurer: to
make, alter, waive, change or discharge any Contract or other contract
entered into pursuant to a Contract; to waive any Contract forfeiture
provision; to extend the time of paying any Premium; to endorse checks
or money orders payable to Insurer, or to receive any monies or
Premiums (except for the sole purpose of forwarding monies or Premiums
to Insurer). Underwriter shall not expend, nor contract for the
expenditure of, the funds of Insurer. Underwriter shall not possess or
exercise any authority on behalf of Insurer other than that expressly
conferred on Underwriter by this Agreement.
3. SOLICITATION ACTIVITIES, APPLICATIONS AND PREMIUMS
Underwriter agrees that its solicitation activities with respect to the
Contracts shall be subject to applicable laws and regulations and the rules
set forth herein:
(a) Underwriter shall use Applications and other materials approved by
Insurer for use in the solicitation activities with respect to the
Contracts. All executed applications and premiums shall be delivered
directly to the Insurer's administrative office for processing (as
allowed under the terms of the Administrative Services Agreement
between First Security Benefit Life Insurance and Annuity Company of
New York and Security Benefit Group, Inc.).
(b) All Premiums paid by check or money order that are collected by
Underwriter and attributable to a Separate Account shall be remitted
promptly (and in any event not later than two business days) to the
Insurer. Checks or money orders in payment of Premiums shall be drawn
to the order of "First Security Benefit Life Insurance and Annuity
Company of New York." Premiums may be transmitted by wire order from
Underwriter to the Insurer in accordance with the procedures
reasonably agreed upon by the parties. If any Premium is held at any
time by Underwriter, Underwriter shall hold such Premium in a
fiduciary capacity and such portion of the Premium attributable to a
Separate Account shall be remitted promptly, and in any event not
later than two business days, to Insurer. All such Premiums
attributable to the Separate Account, whether by check, money order or
wire, shall be the property of Insurer.
(c) Underwriter acknowledges that Insurer shall have the right to reject,
in whole or in part, any Application, but only for reasonable cause
and only after giving prior notice to Underwriter. In the event an
Application is rejected, any Premium submitted therewith shall be
returned by Insurer to the applicant. Insurer shall promptly notify
Underwriter and, if applicable, the Distributor who submitted the
Application, of such action. In the event that a purchaser exercises
his or her free look right under their Contract, any amount to be
refunded as provided in such Contract shall be so refunded to the
purchaser by Insurer. Insurer shall notify Underwriter of such action.
(d) All solicitation and sales activities engaged in by Underwriter in
regard to the Contracts shall be in compliance with all applicable
federal and state securities laws and regulations, as well as all
applicable insurance laws and regulations.
(e) Underwriter shall not offer, attempt to offer, or solicit Applications
for the Contracts or deliver the Contracts, in any state or
jurisdiction other than the state of New York.
4. ADMINISTRATION
(a) Insurer, as agent for Underwriter, shall confirm to each applicant for
and purchaser of a Contract in accordance with Rule 10b-10 under
SEA-34 acceptance of premiums and such other transactions as are
required to be confirmed by Rule 10b-10 or administrative
interpretations thereunder, or any NASD requirements.
(b) Insurer shall maintain and preserve such books and records with
respect to the Contracts in conformity with the requirements of Rules
17a-3 and 17a-4 under SEA-34 including, to the extent such
requirements apply, all books and records with respect to
confirmations provided under Rule 10b-10. Insurer shall maintain all
such books and records, which shall be considered the joint property
of Insurer and Underwriter, and Insurer acknowledges that such books
and records are at all times subject to inspection by the SEC and the
NASD in accordance with Section 17(a) of SEA-34 and shall provide
copies thereof upon Underwriter's request.
(c) Insurer shall not sub-contract with another person other than an
affiliate of Insurer to perform any of the functions contemplated by
this Section or maintain any information, books and records
contemplated by this Agreement without first obtaining such person's
undertaking, in writing, to comply with the provisions of this
Agreement to keep confidential all proprietary information obtained by
such person.
5. MARKETING
Insurer shall provide Underwriter with the following in such quantities as
it shall reasonably request: (1) copies of the current Prospectus and
Statement of Additional Information for the Contracts; (2) applications for
the Contracts; and (3) sales literature for the Contracts. No promotional,
sales or advertising material may be used by any party without the approval
of the other party. Prior to any use with members of the public, the
following procedures shall be observed:
(a) Insurer shall be responsible for all promotional, sales and
advertising material. Pursuant to New York Insurance Department
Regulation 34-A, Insurer is responsible for issuing the final approval
of all of its promotional, sales and advertising material prior to its
use. Underwriter shall use only such documents as have been approved
by Insurer.
(b) Underwriter shall be responsible for filing all promotional, sales or
advertising material, as approved by the Insurer and, as required,
with the NASD, and New York state securities regulatory authorities.
(c) Each party shall notify the other party expeditiously of any comments
provided by the NASD or the New York securities or insurance
regulatory authority on such material, and will cooperate
expeditiously in resolving and implementing any comments, as
applicable.
(d) Insurer shall maintain all promotional, sales and advertising
materials at its home office within the state of New York and in
accordance with New York Insurance Department Regulation 34-A.
The parties acknowledge that such material, to the extent it identifies or
discusses a Fund, may be subject to review and approval procedures
implemented by that Fund. Insurer reserves the right, after having approved
a piece of material, to object to further use of such material and may
require the Underwriter to cease use of such material.
6. COMPENSATION AND COSTS
Underwriter shall arrange for the payment of commissions developed pursuant
to the Insurer's fee schedule under New York Insurance Law 4228 to those
Distributors and Distributor Representatives who sell Contracts under
agreements entered into pursuant to Section 2 "Sale of Contracts," which
compensation shall be reimbursed by the Insurer. Underwriter shall not
receive any other sales commissions nor shall Underwriter be compensated
for any other direct sales other than as provided under this Section.
Insurer shall pay Underwriter for the cost to Underwriter of rendering
services to Insurer under this Agreement. The method of allocating costs
hereunder and the payment thereof shall be in accordance with Regulation
No. 33, 11 NYCRR 91 ("NYID Regulation No. 33"), of the New York Insurance
Department and shall be determined in the following manner:
(a) The cost of service functions performed by Underwriter that are
identifiable as expenses incurred directly and exclusively for the
benefit of Insurer shall be charged to Insurer.
(b) The cost of service functions performed by Underwriter which are not
identifiable as expenses incurred directly and exclusively for the
benefit of Insurer shall be determined in accordance with the
principles set forth in NYID Regulation No. 33.
At the request of Insurer, and at Underwriter's expense, Underwriter shall
produce records and provide access to enable Insurer to verify that such
cost accounting division is in accordance with such principles.
Within thirty (30) days after the end of each quarter, Underwriter shall
submit to Insurer a statement of the amount owed by Insurer for services
provided by Underwriter pursuant to this Agreement. Insurer shall pay to
Underwriter within thirty (30) days following receipt of such statement the
amount set forth in the statement.
7. REPRESENTATIONS AND WARRANTIES OF INSURER
(a) Insurer represents and warrants to Underwriter on the Effective Date
that:
(1) Insurer has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of New
York with full power and authority to own, lease and operate its
properties and conduct its business, is duly qualified to
transact the business of a life insurance company and to issue
variable insurance products.
(2) The execution and delivery of this Agreement and the consummation
of the transactions contemplated herein have been duly authorized
by all necessary corporate action by Insurer, and when so
executed and delivered this Agreement shall be the valid and
binding obligation of Insurer enforceable in accordance with its
terms.
(3) The consummation of the transactions contemplated herein, and the
fulfillment of the terms of this Agreement, shall not conflict
with, result in any breach in any material respect of any of the
terms and provisions of, or constitute (with or without notice or
lapse of time) a default in any material respect under, the
articles of incorporation or bylaws of Insurer, or any indenture,
agreement, mortgage, deed of trust, or other instrument to which
Insurer is a party or by which it is bound, or, to the best of
Insurer's knowledge, violate in any material respect any law, any
order, rule or regulation applicable to Insurer of any court or
of any federal or state regulatory body, administrative agency or
any other governmental instrumentality having jurisdiction over
Insurer or any of its properties.
(b) Insurer further represents and warrants to Underwriter on the
effective date of the most recent Registration Statement for the
Contracts, and undertakes to use its best efforts to ensure as of the
effective date of each subsequent Registration Statement, that:
(1) Insurer has filed with the SEC all statements, notices and other
documents required for registration of the Contracts (or the
interests therein) and the Separate Accounts under the
provisions of ICA-40 and SA-33 and the Regulations thereunder;
further, there are no contracts or documents of Insurer or
relating to the Contracts or the Separate Account which are
required to be filed as exhibits to such Registration Statement
by SA-33, ICA-40 or the Regulations which have not been so
filed.
(2) Such Registration Statement has been declared effective by the
SEC or has become effective in accordance with the Regulations.
(3) Insurer has not received any notice from the SEC with respect to
such Registration Statement pursuant to Section 8(e) of ICA-40
and no stop order under SA-33 has been issued and no proceeding
therefor has been instituted or threatened by the SEC.
(4) Insurer has obtained, or prior to the commencement of the
offering of the Contracts will obtain, all necessary or
customary orders of exemption or approval from the SEC to permit
the distribution of the Contracts pursuant to this Agreement and
to permit the operation of the Separate Accounts supporting such
Contracts as contemplated in the related Prospectuses.
(5) Insurer has represented in the Registration Statement that the
fees and charges deducted under the Contracts, in the aggregate,
are reasonable in relation to the services rendered, the
expenses expected to be incurred, and the risks assumed by the
Insurer. In addition, Insurer complies with all other applicable
provisions of Section 26 of the ICA-40, as if it were trustee or
custodian of the Separate Accounts; Insurer has filed with the
insurance regulatory authority for the State of New York an
annual statement of its financial condition, which indicates
that Insurer has capital and surplus or unassigned surplus of
not less than $1 million or such other amount as prescribed by
SEC rule; and Insurer, together with its registered separate
accounts, is supervised and examined periodically by the
insurance authority of New York.
(6) Such Registration Statement and the related Prospectus comply in
all material respects with the provisions of SA-33 and ICA-40
and the Regulations, and neither the Registration Statement nor
the Prospectus contains an untrue statement of a material fact
or omits to state a material fact required to be stated therein
or necessary to make the statements therein not misleading, in
light of the circumstances in which they were made; provided,
however, that none of the representations and warranties in this
Section 7(b)(6) shall apply to statements or omissions from a
Registration Statement or Prospectus made in reliance upon and
in conformity with information furnished to Insurer in writing
by Underwriter expressly for use in such Registration Statement
or Prospectus.
(7) Each Separate Account has been duly established by Insurer and
conforms to the description thereof in the Registration
Statement and the Prospectus for the Separate Account.
(8) The form of the Contracts has been approved to the extent
required by the New York Insurance Commissioner.
(9) The Contracts have been duly authorized by Insurer and conform
to the descriptions thereof in the Registration Statements for
the Contracts and the related Prospectuses and, when issued as
contemplated by such Registration Statements, shall constitute
legal, validly issued and binding obligations of Insurer in
accordance with their terms.
(10) No other consent, approval, authorization or order of any court
or governmental authority or agency is required for the issuance
or sale of the Contracts, the establishment or operation of the
Separate Accounts, or for the consummation of the transactions
contemplated by this Agreement, that has not been obtained.
8. REPRESENTATIONS AND WARRANTIES OF UNDERWRITER
Underwriter represents and warrants to Insurer on the Effective Date as
follows:
(a) Underwriter has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Kansas
with full power and authority to own, lease and operate its properties
and to conduct its business, and is in good standing, in each state in
which its business so requires.
(b) The execution and delivery of this Agreement and the consummation of
the transactions contemplated herein have been duly authorized by all
necessary corporate action by Underwriter, and when so executed and
delivered this Agreement shall be the valid and binding obligation of
Underwriter enforceable in accordance with its terms.
(c) The consummation of the transactions contemplated herein, and the
fulfillment of the terms of this Agreement, shall not conflict with,
result in any breach in any material respect of any of the terms and
provisions of, or constitute (with or without notice or lapse of time)
a default in any material respect under, the articles of incorporation
or bylaws of Underwriter, or any indenture, agreement, mortgage, deed
of trust, or other instrument to which Underwriter is a party or by
which it is bound, or to the best of Underwriter's knowledge violate
in any material respect any law, or, to the best of Underwriter's
knowledge, any order, rule or regulation applicable to Underwriter of
any court or of any federal or state regulatory body, administrative
agency or any other governmental instrumentality having jurisdiction
over Underwriter or any of its properties.
(d) Underwriter is registered as a broker-dealer under SEA-34, is a member
of the NASD, and is duly registered as a broker-dealer under the
securities laws of the state of New York, holding all requisite Series
licenses in connection with its obligations under this Agreement.
(e) Underwriter is and shall remain during the term of this Agreement in
compliance with Section 9(a) of ICA-40.
9. RECORDS
Insurer and Underwriter each shall maintain such accounts, books, records
and other documents as are required to be maintained by each of them by
applicable laws and regulations and shall preserve such accounts, books,
records and other documents for the periods prescribed by such laws and
regulations. Each party shall have the right to inspect and audit such
accounts, books, records and other documents of the other party during
normal business hours upon reasonable written notice to the other party.
Each party shall keep confidential all information obtained pursuant to
such an inspection or audit, and shall disclose such information to third
parties only upon receipt of written authorization from the other party or
as otherwise described in Section 11, below. Insurer shall maintain its
accounts, books, records and other documents in accordance with New York
Insurance Department Regulation 152.
10. INVESTIGATIONS AND PROCEEDINGS
(a) COOPERATION
Underwriter and Insurer shall cooperate fully in any insurance or
securities regulatory investigation or proceeding or judicial
proceeding with respect to Insurer, Underwriter, their Affiliates and
their agents, Representatives or employees to the extent that such
investigation or proceeding is in connection with the offering, sale
or distribution of the Contracts distributed under this Agreement.
Without limiting the foregoing, Insurer and Underwriter shall notify
each other promptly of any notice of any regulatory investigation or
proceeding or judicial proceeding, arising in connection with the
offering, sale or distribution of the Contracts distributed under this
Agreement, received by either party with respect to Insurer,
Underwriter or any of their Affiliates, agents, Representatives or
employees or which may affect Insurer's issuance or Underwriter's
distribution of any Contract marketed under this Agreement.
(b) CUSTOMER COMPLAINT
Insurer and Underwriter shall notify each other promptly in the case
of a substantive customer complaint arising in connection with the
offering, sale or distribution of the Contracts distributed under this
Agreement. In addition, Underwriter and Insurer shall cooperate in
investigating such complaint and any response by either party to such
complaint shall be sent to the other party for written approval not
less than five business days prior to its being sent to the customer
or any regulatory authority, except that if a more prompt response is
required, the proposed response shall be communicated by telephone or
facsimile. In any event, neither party shall release any such response
without the other party's prior written approval.
(c) ARBITRATION
Any unresolved dispute or difference between the parties arising out
of or relating to this Agreement, or the breach thereof, shall be
settled by arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and the Expedited
Procedures thereof. The award rendered by the arbitrator shall be
final and binding upon the parties, and judgment upon the award
rendered by the arbitrator may be entered in any Court having
jurisdiction thereof. The arbitration shall take place in New York.
11. CONFIDENTIAL AND PROPRIETARY INFORMATION
At all times throughout the term of this Agreement, and following any
termination or expiration of this Agreement, each party and all of its
respective Affiliates, and each officer, director, shareholder, employee or
agent thereof, shall maintain the confidentiality of (i) this Agreement,
(ii) the transactions and other matters contemplated herein, (iii) any
proprietary or other information provided by one party to the other party
to facilitate the transactions contemplated herein, provided that this
obligation of confidentiality shall not apply to: (i) disclosures required
to be made to any regulatory bodies, administrative agencies or other
governmental instrumentalities or disclosures deemed by such party to be
desirable to disclose to any such entity; (ii) disclosures made to
attorneys, accountants and other representatives in order to assist in the
consummation of the transactions and other matters contemplated herein;
(iii) disclosures otherwise required by applicable law; or (iv) disclosures
to which the other party consents; provided further that, with respect to
the immediately foregoing clauses (i) and (iii), any party that makes such
a disclosure shall so notify the other party prior to or simultaneously
with making such disclosure to the extent reasonably practicable; and
provided further that, with respect to the foregoing clause (ii), a party
shall make disclosures regarding this Agreement and the transactions
contemplated herein only to such party's attorneys, accountants and other
third party representatives who agree to keep such information confidential
in accordance with this Section.
12. DURATION AND TERMINATION OF THIS AGREEMENT
(a) TERM
This Agreement shall become effective upon the Effective Date and may
be terminated at any time without the payment of any penalty by either
party by giving the other party at least sixty (60) days' prior
written notice of such intention to terminate.
(b) ASSIGNMENT
This Agreement will automatically terminate in the event of its
assignment, as such term is defined in ICA-40, without the prior
written consent of the other party.
(c) TERMINATION UPON MATERIAL BREACH
This Agreement may be terminated at the option of either party to this
Agreement upon the other party's material breach of any provision of
this Agreement or of any representation made in this Agreement, unless
such breach has been cured within 30 days after receipt of notice of
breach from the non-breaching party.
(d) EFFECT OF TERMINATION
Upon termination of this Agreement all authorizations, rights and
obligations shall cease except: (1) the obligation to settle accounts
hereunder, including commissions on Premiums subsequently received for
Contracts in effect at the time of termination or issued pursuant to
Applications received by Insurer prior to termination; and (2) the
obligations contained in Sections 9, 10, and 11 hereof.
13. AMENDMENT OF THIS AGREEMENT
No provisions of this Agreement may be changed, waived, discharged, or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement of the change, waiver, discharge, or termination
is sought.
14. AMENDMENT OF SCHEDULES
The parties to this Agreement may amend Schedule 1 to this Agreement from
time to time to reflect additions of or changes in any class of Contracts
or Separate Accounts that have been agreed upon. The provisions of this
Agreement shall be equally applicable to each such class of Contracts or
Separate Accounts that may be added to the Schedule, unless the context
otherwise requires.
15. MISCELLANEOUS
(a) CAPTIONS
The captions in this Agreement are included for convenience of
reference only, and in no way define or limit any of the provisions
hereof or otherwise affect their construction or effect.
(b) COUNTERPARTS
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
(c) RIGHTS, REMEDIES, ETC., ARE CUMULATIVE
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. Failure of either party to
insist upon strict compliance with any of the conditions of this
Agreement shall not be construed as a waiver of any of the conditions,
but the same shall remain in full force and effect. No waiver of any
of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provisions, whether or not similar,
nor shall any waiver constitute a continuing waiver.
(d) INTERPRETATION; JURISDICTION
This Agreement constitutes the whole agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all
prior oral or written understandings, agreements or negotiations
between the parties with respect to such subject matter. No prior
writings by or between the parties with respect to the subject matter
hereof shall be used by either party in connection with the
interpretation of any provision of this Agreement. This Agreement
shall be construed and its provisions interpreted under and in
accordance with the internal laws of the state of New York without
giving effect to principles of conflict of laws.
(e) SEVERABILITY
This is a severable Agreement. In the event that any provision of this
Agreement would require a party to take action prohibited by
applicable federal or state law or prohibit a party from taking action
required by applicable federal or state law, then it is the intention
of the parties hereto that such provision shall be enforced to the
extent permitted under the law, and, in any event, that all other
provisions of this Agreement shall remain valid and duly enforceable
as if the provision at issue had never been a part hereof.
(f) REGULATION
This Agreement shall be subject to the provisions of SA-33, SEA-34 and
ICA-40 and the Regulations and the rules and regulations of the NASD,
from time to time in effect, including such exemptions from ICA-40 as
the SEC may grant, and the terms hereof shall be interpreted and
construed in accordance therewith. Without limiting the generality of
the foregoing, the term "assigned" shall not include any transaction
exempted from Section 15(b)(2) of ICA-40.
16. NOTICE, CONSENT AND REQUEST
Any notice, consent or request required or permitted to be given by either
party to the other shall be deemed sufficient if sent by facsimile
transmission followed by Federal Express or other overnight carrier, or if
sent by registered or certified mail, postage prepaid, addressed by the
party giving notice to the other party at the following address (or at such
other address for a party as shall be specified by like notice):
if to Insurer:
First Security Benefit Life Insurance and Annuity Company of New York
Attn: Chief Administrative Officer
00 Xxxx Xxx Xxx Xxxx, 0xx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
and if to Underwriter:
Security Distributors, Inc.
One Security Benefit Place
Topeka, Kansas 66636
Attn: General Counsel
Phone No.: (000) 000-0000
Fax No.: (000) 000-0000
IN WITNESS WHEREOF, Insurer and Underwriter have each duly executed this
Agreement as of the day and year first above written.
FIRST SECURITY BENEFIT LIFE INSURANCE
AND ANNUITY COMPANY OF NEW YORK
By Its Authorized Officer
By: XXXXX X. XXXXX
--------------------------------------------
Xxxxx X. Xxxxx, Secretary and Vice President
Date: July 9, 2002
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SECURITY DISTRIBUTORS, INC.
By Its Authorized Officer
By: XXXX XXXXXX
--------------------------------------------
Xxxx Xxxxxx, President
Date: July 9, 2002
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SCHEDULE 1
CONTRACTS SUBJECT TO AGREEMENT
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CONTRACT MARKETING NAME CONTRACT FORM NOS. SEC REGISTRATION NO.
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AdvisorDesigns Variable Annuity FSB 216 (10-01)
FSB 216 (10-01)U
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