First Investors Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
December 13, 1979
Re: First Investors Life Variable Annuity Fund
Safekeeping Agreement
Gentlemen:
This letter will confirm our agreement with respect to our designation
of the United States Trust Company of New York, 00 Xxxx Xxxxxx, Xxx Xxxx, X.X.
00000, as the safekeeping agent for the securities and similar investments of
First Investors Life Variable Annuity Fund (the "Separate Account").
The United States Trust Company of New York has been duly designated
and appointed by the Board of Directors of First Investors Life Insurance
Company ("First Investors"), the Depositor for the Separate Account, as the
safekeeping agent for the Separate Account's issued securities and similar
investments pursuant to the Investment Company Act of 1940 and the rules and
regulations of the Securities and Exchange Commission thereunder and securities
purchased by First Investors pursuant to the maintenance of the Separate
Account.
The securities and similar investments of the Separate Account shall be
deposited in the safekeeping of, or in a vault or other depository maintained by
the Bank, and the securities and similar investments so deposited shall be
physically segregated at all times from those of any other persons, firms or
corporation.
Any two of the following officers of First Investors are authorized and
permitted to have access to the securities and similar investments so deposited,
and such access to such securities and similar investments so deposited shall be
had by two or more such persons jointly, in conjunction with authorized Bank
employees.
Name Title Signature
---- ----- ---------
Xxxxxxx X. Xxxxxxx, President /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx, Vice President /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxxx X. Xxxxxx, Comptroller /s/ Xxxxxxxx X. Xxxxxx
Access to such securities and similar investments shall be permitted to
the properly authorized officers and employees of the Bank. Access to such
securities and similar investments shall also be permitted, jointly with any two
of the above designated officers of First Investors and with an authorized
employee of the Bank, to an independent public accountant for the purpose of the
examination of First Investors securities and similar investments required by
the rules and regulations of the Securities and Exchange Commission. Such
designation shall be signed by one of the above officers of First Investors.
Such securities and similar investments shall at all times be subject
to inspection by the Securities and Exchange Commission through its authorized
employees or agents, accompanied by one or more of the officers or employees of
the Bank and, unless otherwise directed by order of the Commission, by one or
more of the designated officers of First Investors.
Each person when depositing such securities or similar investments in,
or withdrawing such from the Bank, or when ordering their withdrawal or delivery
from the safekeeping of the Bank, shall sign a notation in duplicate in respect
to such deposit, withdrawal or order which shall show (1) the date and time of
deposit, withdrawal or order (2) the title and amount of the securities or
similar investments deposited, withdrawn or ordered to be withdrawn, and an
identification thereof by a certificate number or otherwise, (3) the manner of
acquisition of the securities or similar investments deposited, or the purpose
for which they have been withdrawn or order to be withdrawn and (4) if withdrawn
and delivered to any other person, the name of such person. A copy of such
notation shall be transmitted promptly by the Bank to the President of First
Investors. Such notation shall be on serially-numbered forms and shall be
preserved for at least one year.
Such securities and similar investments shall be verified by complete
examination of an independent public accountant designated in writing by First
Investors at least once during each fiscal year. Such designation shall be
signed by one of the officers above named.
The Secretary and the President of First Investors and each of them,
have been authorized and directed to certify to the Bank that resolutions
incorporating the terms of this agreement, copies of which are attached, have
been duly adopted, and to further certify the names and specimen signatures of
the officers of First Investors referred to herein.
First Investors undertakes to notify the Bank of any change in the
names and signatures of the Officers of the Corporation designated above, and
until the Bank actually receives such
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notice it shall be entitled to rely on the designations herein set forth.
The Bank shall have no responsibility for any failure of the
representatives of First Investors or of the foregoing public accountants to
make examination of securities or for any loss, damage or expense suffered or
sustained by First Investors by reason of the acts or neglect of said persons
arising out of or in connection with their access to said examination of the
securities. All securities shall be registered in the name of First Investors or
in the name of a Separate Account.
With respect to the securities and other property held at any time in
safekeeping hereunder, the Bank is hereby authorized:
1. To pay and charge to First Investor's account in accordance with its
instructions the amount of the purchase price of securities purchased by First
Investors for deposit with the Bank upon delivery of such securities. Such
instructions shall specify the name of the issuer of the securities and a
description thereof, the number of shares or principal amount purchased and any
accrued interest or charges, the purchase price per unit and the name and
address of the party to whom payment is to be made.
2. To release, assign and deliver securities held in the custody
account in accordance with written instructions of First Investors specifying
the quantity and describing the securities to be delivered, to whom delivery
shall be made and the amount of the sales or redemption price to be received
upon such delivery. Delivery shall be made against receipt by the Bank of a
check of the specified recipient of such securities. Unless otherwise instructed
by First Investors, such check shall be certified by the bank, trust company,
national bank or other banking institution on which drawn, or shall be a
cashier's or treasurer's check or draft of any bank, trust company, national
bank or other banking institution. The Bank shall not be liable for the monies
called for or represented by any such check or draft until actually received.
3. To charge the account of First Investors for all expenses, taxes or
other charges or liabilities incurred by the Bank in connection with this
custodian account and First Investors hereby agrees to indemnify the Bank
against liability for all such items.
The Bank shall give First Investors a written advice or confirmation
concerning all sales, purchases or other disposal of securities in the custody
account.
The Bank shall be paid and may draw upon the account of First Investors
after proper notice of such compensation and
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reimbursement for all necessary and proper disbursements and expenses made or
incurred by the Bank in carrying out the foregoing duties at such times as the
parties may have agreed upon.
The Bank will be responsible for the performance of only such duties as
are set forth herein or contained in express instructions given to the Bank. The
Bank will use the same care with respect to the safekeeping of property in the
custody account as it uses in respect of its own similar property but it need
not maintain any insurance for the benefit of First Investors. All collections
of funds or other property paid or distributed in respect of property in the
custody account shall be made at the risk of First Investors. The Bank will not
be responsible for any act or omission, or for the solvency, of any broker or
agent selected by First Investors to effect any transaction for its custody
account. First Investors warrants its authority to deposit in the custody
account any property received by the Bank therefor and to give instructions
relative thereto.
The Bank shall not be liable for any action taken in good faith
pursuant to this agreement nor upon written instruction or Secretary's
Certificate of First Investors, and shall be fully protected in relying upon the
genuineness and legality of any such document which the Bank may in good faith
believe to be validly executed. The Bank shall have no responsibility for the
genuineness or validity of any instrument or other item deposited with you.
It is agreed that the Bank's duties under this agreement are only such
as are herein specifically provided, being purely ministerial in nature. First
Investors covenants and agrees to indemnify and hold the Bank harmless from all
taxes, charges, expenses, loss, damage, assessments, claims and liabilities,
including the cost and expense of defending itself against any claim, whether
valid or not, incurred or assessed against the Bank in connection with the
performance of this agreement, except such as may arise from the Bank's active
negligence, bad faith or willful misconduct.
The Bank shall not be required to defend any action or legal
proceedings which may be instituted against it in respect of the subject matter
of this agreement unless requested to do so by First Investors and indemnified
to the Bank's satisfaction against the cost and expense of such defense. The
Bank shall not be required to institute legal proceedings of any kind. In the
event that adverse or conflicting claims are made with respect to the funds or
property deposited hereunder, the Bank may refuse to comply with any demands
made upon it with respect thereto until such claims are resolved by mutual
agreement or fully disposed of in appropriate legal proceedings, and in so doing
the Bank shall
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not incur any liability to any party or person interested in the subject matter
of this agreement.
Nothing in this agreement shall be construed to give any third party
any rights against the Bank or to make the Bank a trustee, its liability as
custodian under this agreement being that of a bailee for hire.
The Bank shall be entitled as to any question arising in connection
with its duties under this agreement to receive and act upon advice of counsel
selected in good faith and with reasonable care (who may be First Investors
counsel) at First Investors' expense and shall be without liability for any
action taken or thing done in good faith in reliance upon such advice.
This agreement may be terminated by either party on sixty (60) days
written notice, except that if First Investors represents that in good faith it
has been unable to obtain the services of a successor safekeeping agent during
such time, the Bank agrees to continue to serve for up to an additional sixty
(60) days. Upon First Investors' written instructions the Bank will deliver to a
successor safekeeping agent at the Bank's office all securities held in
safekeeping and First Investors agrees to pay the Bank's reasonable expenses in
connection with such termination.
Any notice of other instrument in writing for which provision is made
in this agreement shall be sufficiently given if addressed to the party to whom
such notice is intended to be proven, and mailed or delivered to its office as
follows:
To: United States Trust Company of New York
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Custody Division
To: First Investors Life Insurance Company
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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This agreement shall be interpreted and governed by the laws of the
State of New York and shall extend to and be binding upon the parties hereto and
their respective successors and assigns, provided however that this agreement
shall not be assignable by either party without the written consent of the
other.
Very truly yours,
FIRST INVESTORS LIFE INSURANCE
COMPANY
By:/s/ Xxxxxxx X. Xxxxxxx
Accepted this 13th day of December, 1979.
UNITED STATES TRUST COMPANY OF
NEW YORK
By: illegible
