AMENDED AND RESTATED
DISTRIBUTION AGREEMENT
BETWEEN
FIRST SECURITY BENEFIT LIFE INSURANCE
AND ANNUITY COMPANY OF NEW YORK
AND
X. XXXX PRICE INVESTMENT SERVICES, INC.
THIS DISTRIBUTION AGREEMENT, made as of the 11th day of October, 1995,
amended and restated as of May 1, 1998 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 X. Xxxx Price Variable Annuity Account of First Security Benefit
Life Insurance and Annuity Company of New York (the "SEPARATE ACCOUNT"), a
separate account established and maintained by Insurer under the laws of the
State of New York, and X. XXXX PRICE INVESTMENT SERVICES, INC., a corporation
organized and existing under the laws of the State of Maryland ("UNDERWRITER").
WITNESSETH:
WHEREAS, the Separate Account has been established by Insurer to support a
certain class of variable annuity contracts issued by Insurer;
WHEREAS, the Separate Account has been registered as a unit investment trust
under the federal Investment Company Act of 1940, as amended ("ICA-40");
WHEREAS, the Separate Account is sub-divided into various subaccounts (the
"SUBACCOUNTS");
WHEREAS, certain companies registered as open-end management investment
companies under ICA-40 will serve as the underlying investment vehicles for the
Separate Account;
WHEREAS, such investment companies are authorized to issue shares of capital
stock ("Shares") in separate series, with each such series representing the
interests in a separate portfolio of securities and other assets;
WHEREAS, each subaccount will purchase Shares of a corresponding investment
company;
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, together with X. Xxxx Price Insurance Agency, Inc.
(the "AGENCY"), an insurance agency that is affiliated with Underwriter, desire
to distribute the variable annuity contracts supported by the Separate Account
and offered by Insurer; and
WHEREAS, Insurer desires to issue such variable annuity contracts described
more fully below to the public through Underwriter acting as the principal
underwriter and the Agency acting as the insurance agency for such contracts;
NOW, THEREFORE, in consideration of the premises and the mutual promises
hereinafter set forth, the parties hereto agree as follows:
1. ADDITIONAL 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) CONTRACTS -- The class or classes of variable annuity contracts set
forth on SCHEDULE 1 to this Agreement as in effect at the Effective
Date, and such other classes of variable insurance products that may be
added to SCHEDULE 1 from time to time in accordance with Section 18 of
this Agreement, and including any riders to such Contracts and any
other contracts offered in connection therewith. For purposes of
Sections 3 and 14 of this Agreement, Contracts shall include Premiums
for the Contracts.
(d) DISTRIBUTOR -- A person registered as a broker-dealer and licensed as a
life insurance agent or affiliated with a person so licensed, who in
the future will be authorized to distribute the Contracts under
arrangements that the parties may subsequently agree to as described in
Section 2.A. of this Agreement.
(e) EFFECTIVE DATE -- The date as of which this Agreement is executed.
(f) FUND -- An investment company established and/or distributed by
Underwriter or an Affiliate, specified on SCHEDULE 2 to this Agreement
as in effect at the Effective Date, and such other investment companies
that may be added to SCHEDULE 2 from time to time in accordance with
Section 18 of this Agreement.
(g) PREMIUM -- A payment made under a Contract by an applicant or purchaser
to purchase benefits under the Contract.
(h) 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. For
purposes of Section 14 of this Agreement, the term "any Prospectus"
means any document which is or at any time was a Prospectus within the
meaning of this definition.
(i) 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. For purposes of
Section 14 of this Agreement, the term "Registration Statement" means
any document which is or at any time was a Registration Statement
within the meaning of this definition.
(j) REGULATIONS -- The rules and regulations promulgated by the SEC under
SA-33, SEA-34 and ICA-40.
(k) REPRESENTATIVE -- When used with reference to Underwriter or a
Distributor, an individual who is an associated person, as that term is
defined in SEA-34, thereof.
(l) SA-33 -- The Securities Act of 1933, as amended.
(m) SEC -- The Securities and Exchange Commission.
2. SALE OF CONTRACTS
(a) PRINCIPAL UNDERWRITER
Insurer, on its behalf and on behalf of the Separate Account,
authorizes Underwriter, on an exclusive basis, and Underwriter accepts
such authority, to be the distributor and principal underwriter of the
Contracts in the State of New York. Underwriter will use all reasonable
efforts to distribute the Contracts, consistent with its other
business, market and regulatory conditions, and any other restrictions
that may become applicable to its activities. As exclusive distributor
and principal underwriter, Underwriter shall have sole authority to
solicit Applications and Premiums directly from customers and
prospective customers located in the State of New York. Underwriter
reserves the right to authorize third parties as Distributors to engage
in distribution activities involving the solicitation of Applications
and Premiums directly from customers and prospective customers, in each
case as Underwriter may in its sole discretion so provide or limit, but
in all such cases, subject to such general terms and conditions
regarding arrangements with Distributors as the parties hereto may
subsequently agree upon in writing, provided that Insurer reserves the
right, which shall not be exercised unreasonably, to require that
Underwriter not enter into a sales agreement with a proposed
Distributor. Insurer shall appoint in the State of New York such
Distributors or Distributor Representatives, provided that Insurer
reserves the right, which right shall not be exercised unreasonably, to
refuse to appoint as agent any Distributor or Distributor
Representative, if any, or, once appointed, to terminate the same at
any time with or without cause. 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. Underwriter is not
hereby obligated to register or maintain its registration as a broker
or dealer under the State securities laws of New York if, in the
discretion of Underwriter, such registration is not practical,
necessary for its duties under this Agreement, or feasible, nor does it
restrict Underwriter from entering into distribution arrangements with
other issuers or investment companies, except as otherwise agreed to in
writing by the parties.
(b) INSURANCE AGENCY
It is understood that, pursuant to an insurance agency agreement,
Insurer will appoint the Agency as its insurance agent for the sale of
the Contracts. Underwriter agrees that no Underwriter Representative
shall engage in any solicitation activities on behalf of Underwriter
unless such Representative is associated with Agency and subject to the
supervision of Agency respecting compliance with New York State
insurance law.
(c) NO ALTERATION, DISCHARGE, ETC., OF CONTRACTS
Underwriter shall not have authority, and shall not grant authority to
Underwriter Representatives, 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. To the extent that Underwriter receives a check payable to
"X. Xxxx Price," Underwriter, or an affiliate thereof, and all or part
of such check represents a Premium, such check shall be processed in
accordance with mutually agreed upon procedures.
(d) OPINION OF INSURER'S COUNSEL
The obligations of Underwriter under this Agreement are subject to the
accuracy of the representations and warranties of Insurer contained in
this Agreement, to the performance by Insurer of its obligations
hereunder, and to the condition that (i) prior to the time that
Underwriter begins offering the Contracts, Underwriter shall have
received an opinion of the general counsel or an associate general
counsel of Insurer, such opinion to be substantially to the effect set
forth in EXHIBIT A hereto; and (ii) each time, during the period in
which Underwriter is offering the Contracts, that an amendment to a
Registration Statement becomes effective under Rule 485(a) under SA-33,
Underwriter shall have received an opinion from the general counsel or
associate general counsel to Insurer, that is reasonably acceptable to
Underwriter, such opinion to be substantially to the effect set forth
in EXHIBIT A hereto.
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, procedures
provided by Insurer, 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. Insurer shall notify Underwriter and the Agency in writing
if the State of New York requires delivery of a statement of additional
information for the Contracts with a prospectus to a prospective
purchaser.
(b) All Premiums paid by check or money order that are collected by
Underwriter or any Underwriter Representative shall be remitted in full
promptly, and in any event not later than two business days (except to
the extent of any commissions deducted from Premiums in accordance with
an insurance agency agreement), together with any Applications, forms
and any other required documentation, to Insurer, X.X. Xxx 0000,
Xxxxxx, Xxxxxx 00000-0000. Checks or money orders in payment of
Premiums shall be drawn to the order of "First Security Benefit Life
Insurance and Annuity Company." Premiums may be transmitted by wire
order from Underwriter or the Agency to 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 Premium shall be remitted in full
promptly, and in any event not later than two business days, to
Insurer. All such Premiums, 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 and, if
applicable, the Distributor who solicited the Contract, of such action.
(d) Underwriter intends that no recommendations will be made to prospects
for the Contracts. To the extent that Underwriter or Underwriter
Representatives make recommendations, or to the extent required by
applicable securities laws, Underwriter and Underwriter Representatives
will comply with Section 2310 of the NASD's Conduct Rules.
(e) During the term of this Agreement, neither Underwriter nor any
Underwriter Representative shall intentionally encourage a Contract
owner to exchange his or her Contract for any other insurance contract
except (i) with Insurer's consent or (ii) to comply with applicable
laws, regulations or rules, including but not limited to the NASD's
Conduct Rules.
(f) All solicitation and sales activities engaged in by Underwriter and
Underwriter Representatives in regard to the Contracts shall be in
compliance with all applicable federal and New York State securities
laws and regulations, as well as all applicable New York State
insurance laws and regulations. No Underwriter Representative shall
solicit the sale of a Contract unless at the time of such solicitation
such individual is:
(1) Properly licensed by the NASD and New York State insurance and
securities regulatory authorities; and
(2) Appointed as an insurance agent of Insurer, except as may be
otherwise agreed to by Insurer.
(g) Neither Underwriter nor any Underwriter Representative shall give any
written information or make any written or oral representation in
regard to a class of Contracts in connection with the offer or sale of
such class of Contracts that is inconsistent with the then-currently
effective Prospectus for such class of Contracts, or in the
then-currently effective prospectus or statement of additional
information for a Fund, or in current advertising materials for such
class of Contracts which have been authorized by Insurer.
(h) Neither Underwriter nor any Underwriter Representative shall offer,
attempt to offer, or solicit Applications for the Contracts or deliver
the Contracts, in any State other than New York.
4. ADMINISTRATION
(a) Insurer shall administer the Contracts in accordance with their terms
and applicable laws and regulations, such administration to be
performed in all respects at a level commensurate with those standards
prevailing in the variable insurance industry. Neither Insurer nor its
officers, directors, employees or agents (which, for these purposes
shall not include Underwriter Representatives or Distributor
Representatives) shall give any written information or make any written
or oral representation in regard to a class of Contracts in connection
with the offer or sale of such class of Contracts that is inconsistent
with the then currently effective Prospectus for such class of
Contracts, or the then currently effective prospectus or statement of
additional information for a Fund, or in current advertising materials
for such class of Contracts which have been authorized by Underwriter.
(b) 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. Insurer shall not be separately
compensated for these services.
(c) 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. Insurer shall not be separately compensated for
these services.
(d) 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, and to acknowledge that such information, books and
records are at all times subject to inspection by the SEC, NASD or any
state regulatory body, administrative agency or any other governmental
instrumentality, and further, without obtaining Underwriter's prior
written consent. In addition, such person shall be required, upon the
request of Underwriter, and at the expense of the Insurer, to furnish
such information, books and records to Underwriter.
5. MARKETING
Underwriter shall have responsibility for and control over the marketing
name, marketing arrangements, marketing materials and marketing practices,
respecting the Contracts and, subject to the effectiveness of the
Registration Statement respecting the Contracts and approval of the
Contracts in the State of New York, the timing and commencement of the
offering of the Contracts. Underwriter shall be responsible for the design
and preparation of all promotional, sales and advertising material relating
to the Contracts. Insurer may propose any additional or alternative
marketing arrangements for the Contracts, including any proposed marketing
name, arrangements, materials and practices, which shall be subject to
Underwriter's prior review and approval. 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) Each party shall provide to the other party copies of all promotional,
sales and advertising material developed by such party, if any, for
such other party's review and written approval, and each party shall be
given a reasonable amount of time to complete its review.
(b) Each party shall respond on a prompt and timely basis in approving any
such material and shall act reasonably in connection therewith.
(c) Insurer shall be responsible for filing all promotional, sales or
advertising material, whether developed by Underwriter or Insurer, as
required, with any state insurance regulatory authorities.
(d) Underwriter shall be responsible for filing all promotional, sales or
advertising material, whether developed by Underwriter or Insurer, as
required, with the NASD, and New York State securities regulatory
authorities.
(e) Each party shall notify the other party expeditiously of any comments
provided by the NASD or any securities or insurance regulatory
authority on such material, and will cooperate expeditiously in
resolving and implementing any comments, as applicable.
(f) Each party shall deliver to the other party ten final print copies of
all promotional, sales and advertising material developed by such
party.
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. Each party reserves the right, after having
approved a piece of material, to object to further use of such material and
may require the other party to cease use of such material.
6. COMPENSATION
Insurer may pay marketing allowance expenses, if any, to the Agency with
respect to Contracts sold pursuant to this Agreement in the amounts and
under the rules and procedures set forth in an insurance agency agreement.
7. EXPENSES
(a) INSURER
With respect to this Agreement, Insurer shall pay (or will enter into
arrangements providing that persons other than Insurer shall pay) all
expenses in connection with:
(1) the preparation and filing of each Registration Statement for the
Contracts (including each pre-effective and post-effective
amendment thereto) and the preparation and filing of each
Prospectus for the Contracts (including any preliminary and each
definitive Prospectus);
(2) the preparation, insurance underwriting, issuance and
administration of the Contracts; provided that Insurer shall not
be responsible for expenses, including the expense of a leased
line, incurred by Underwriter in connection with the service
center operated by Underwriter;
(3) any registration, qualification or approval of the Contracts for
offer and sale required under the securities, blue-sky or
insurance laws of the State of New York;
(4) all registration fees for the Contracts payable to the SEC and the
NASD; and
(5) the printing of the Prospectus for the Contracts (or its pro rata
share of expenses in the event the Prospectuses for the Contracts
and the Funds are printed together in one document) and any
supplements thereto for distribution to existing contract owners
and its pro rata share of expenses of mailing the Prospectuses for
the Contracts and the Funds to existing Contract owners.
(b) UNDERWRITER
With respect to this Agreement, Underwriter shall pay (or will enter
into arrangements providing that persons other than Underwriter shall
pay) the following expenses related to its distribution of the
Contracts:
(1) the compensation of Underwriter Representatives and employees, and
Distributors, if any;
(2) expenses associated with the registration and training of
Underwriter Representatives and other employees involved in the
distribution of the Contracts;
(3) expenses incurred in connection with its registration as a broker
or dealer or the registration or qualification of its officers,
directors or Representatives under federal and New York State
laws;
(4) the costs of any promotional, sales and advertising material,
including Applications and any other materials included in the
fulfillment kit, that Underwriter develops for its use in
connection with the sale of the Contracts; and
(5) expenses of printing and mailing the Prospectuses for the
Contracts and the Funds (and any supplements thereto) for
distribution to prospective customers.
(c) OTHER EXPENSES
Other than as specifically provided in this Agreement or in an
insurance agency agreement, Insurer shall pay all expenses that it
incurs in connection with this Agreement and Underwriter shall pay all
expenses that it incurs in connection with this Agreement; it being
understood that neither Underwriter nor the Agency shall be responsible
for any expenses relating to the Contracts or the processing of
Contracts, Premiums or Applications, including without limitation any
expenses incurred in connection with the return of Premiums solicited
by Distributors, if any, for Applications rejected by Insurer, or
relating to any of the matters or acts contemplated by this Agreement,
except to the extent expressly set forth herein. Except as specifically
provided above or as otherwise agreed to in writing by the parties, it
is further understood that Insurer shall not bear any responsibility
for the expenses of the Underwriter and Underwriter Representatives,
nor for printing the prospectuses and statements of additional
information for the Funds, nor for the preparation of the registration
statements for the Funds nor for providing seed capital for the Funds,
nor for any other expenses relating to the Funds.
8. 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 initial 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 Account 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 Account supporting such Contracts as
contemplated in the related Prospectus, and such orders apply to
Underwriter, as principal underwriter for the Contracts and the
Separate Account to the extent necessary.
(5) The 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 Account; Insurer has filed with the New York
Insurance Department an annual statement of its financial
condition with 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 New York Insurance Department.
(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
8(b)(5) 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) The 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 Superintendent of Insurance on the pertinent date
of each Registration Statement.
(9) The Contracts have been duly authorized by Insurer and conform to
the descriptions thereof in the Registration Statement for the
Contracts and the related Prospectus and, when issued as
contemplated by such Registration Statement, 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 Account, or for the consummation of the transactions
contemplated by this Agreement, that has not been obtained.
9. UNDERTAKINGS OF INSURER
Insurer undertakes as follows:
(a) Insurer shall use its best efforts to maintain the registration of the
Contracts (or interests therein) and the Separate Account with the SEC
and to maintain any registrations and approvals of the Contracts and
the Separate Account with the securities or insurance regulatory bodies
or administrative agencies of the State of New York, and Insurer shall
maintain the registration of the Contracts (or interests therein) and
the Separate Account with such state securities regulatory bodies and
any other governmental instrumentalities of the State of New York as
Insurer deems appropriate.
(b) Insurer shall take all action necessary to cause the Contracts to
comply, and to continue to comply, as annuity contracts under the
insurance laws of the State of New York and federal tax laws. In the
event of a change in applicable law that renders it impracticable or
impossible to maintain the Contracts as annuity contracts, Insurer
shall consult with Underwriter and shall take no action respecting the
Contracts without the consent of Underwriter.
(c) Insurer shall take all action necessary to cause the Separate Account
to comply, and to continue to comply, with the provisions of ICA-40 and
the Regulations applicable to the Separate Account as a registered
investment company classified as a unit investment trust and a separate
account, and deemed to be issuing periodic payment plan certificates.
(d) Insurer shall not deduct any amounts from the assets of the Separate
Account or enter into a transaction or arrangement involving the
Contracts or the Separate Account or cause the Separate Account to
enter into any such transaction or arrangement without obtaining any
necessary or customary approvals or exemptions from the SEC or any
no-action assurance deemed necessary from the SEC staff and without
ensuring that such approval, exemption or assurance applies to
Underwriter as the principal underwriter for the Contracts, to the
extent necessary or appropriate.
(e) Insurer shall provide Underwriter with preliminary drafts of any
amendments to Registration Statements, supplements to Prospectuses,
exemptive applications or no-action requests to be filed with the SEC
in connection with the Contracts, the Separate Account, or both.
Insurer shall provide Underwriter with a reasonable opportunity to
review and comment on such drafts before any such materials are filed
with the SEC. Insurer shall furnish Underwriter with copies of any such
materials or amendments thereto, as filed with the SEC, promptly after
the filing thereof, and any SEC communications or orders with respect
thereto, promptly after receipt thereof. Insurer shall maintain and
keep on file in its principal executive office any file memoranda or
any supplemental materials referred to in such Registration Statements,
exemptive applications and no-action requests and shall maintain and,
as necessary, amend such memoranda or materials and shall provide or
otherwise make available copies of such memoranda and materials to
Underwriter.
(f) Insurer shall notify Underwriter immediately upon discovery or in any
event as soon as possible under the following circumstances:
(1) Of any event which makes any material statement made in the
Registration Statement or the Prospectus untrue in any material
respect or results in a material omission in the Registration
Statement or the Prospectus;
(2) Of any request by the SEC for any amendment to the Registration
Statement, or any supplement to the Prospectus, or statement of
additional information;
(3) Of the issuance by the SEC of any notice pursuant to Section 8(e)
of ICA-40, any stop order with respect to the Registration
Statement or any amendment thereto, or the initiation of any
proceedings for that purpose or for any other purpose relating to
the registration and/or offering of the Contracts;
(4) Of any event of the Contracts' or the Separate Account's
noncompliance with the applicable requirements of the Internal
Revenue Code or regulations, rulings, or interpretations
thereunder that could jeopardize the Contracts' status as annuity
contracts;
(5) Of any change in applicable insurance laws or regulations of the
State of New York materially adversely affecting the insurance
status of the Contracts or Underwriter's obligations with respect
to the distribution of the Contracts;
(6) Of any loss or suspension of the approval of the Contracts or
distribution thereof by the securities or insurance regulatory
body, administrative agency, or any other governmental
instrumentality of, the State of New York, any loss or suspension
of Insurer's certificate of authorization to do business or to
issue variable insurance contracts in such State, or of the lapse
or termination of the Contracts' or the Separate Account's
registration, approval or clearance in such State;
(7) Of any termination of the authorization or approval of the sale of
the Contracts in the State of New York;
(8) Of any material adverse change in the condition (financial or
otherwise) of Insurer or the Separate Account that would cause the
information in the Registration Statement to be materially
misleading; and
(9) Of any event which causes a representation or warranty of Insurer
contained in this Agreement to no longer be true.
(g) Insurer shall notify Underwriter in a reasonably timely manner under
the circumstances:
(1) When a Registration Statement has become effective or any
post-effective amendment with respect to a Registration Statement
becomes effective thereafter;
(2) When any registration of the Contracts (or interests therein)
under the securities or blue sky laws of the States of New York
has become effective to the extent not yet obtained as of the
Effective Date; and
(3) When approval of the Contract forms under the applicable insurance
laws of the State of New York has been obtained to the extent not
yet obtained as of the Effective Date.
(h) Insurer shall provide Underwriter access to such records, officers and
employees of Insurer at reasonable times as is necessary to enable
Underwriter to fulfill its obligation, as the underwriter under SA-33
for the Contracts and as principal underwriter for the Separate Account
under ICA-40, to perform due diligence and to use reasonable care.
(i) Insurer shall use its best efforts to timely file each post-effective
amendment to a Registration Statement, Prospectus, annual reports on
Form N-SAR, and all other reports, notices, statements and amendments
required to be filed by or for Insurer and the Separate Account with
the SEC under SA-33, SEA-34 and/or ICA-40 or any applicable
Regulations. Insurer shall timely file Rule 24f-2 notices required to
be filed by or for Insurer and the Separate Account with the SEC under
SA-33 and/or ICA-40 or any applicable Regulations. To the extent there
occurs an event or development (including, without limitation, a change
of applicable law, regulation or administrative interpretation)
warranting an amendment to the Registration Statement or supplement to
the Prospectus, Insurer shall endeavor to promptly prepare and file
such amendment or supplement with the SEC.
(j) To the extent that Insurer is responsible for printing under Section 7,
Insurer shall provide Underwriter with as many copies of the Prospectus
(and any amendments or supplements to the Prospectus) as Underwriter
may reasonably request.
(k) Insurer shall deliver to Underwriter, as soon as practicable after it
becomes available, the annual statement for Insurer and for the
Separate Account in the form filed with the State of New York.
(l) Insurer shall furnish to Underwriter without charge promptly after
filing ten (10) complete copies of each Registration Statement and any
pre-effective or post-effective amendment thereto, including financial
statements and all exhibits not incorporated therein by reference.
10. 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 Maryland
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 to the extent required in
connection with its obligations under this Agreement, and its
Representatives, together with Agency, are or shall be fully licensed
in accordance with New York State insurance laws to the extent
necessary to perform their 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.
11. UNDERTAKINGS OF UNDERWRITER
Underwriter undertakes as follows:
(a) Underwriter shall train, supervise and be solely responsible for the
conduct of its Representatives in their solicitation of Contracts, and
shall supervise their compliance with applicable rules and regulations
of any New York State securities regulatory agency that has
jurisdiction over variable annuity sales activities.
(b) Underwriter will use its best efforts to maintain its registration as a
broker-dealer under SEA-34 and its membership with the NASD, and will
use its best efforts to maintain its registration as a broker-dealer
with the applicable securities authorities under the laws of the State
of New York where necessary in connection with its obligations under
this Agreement.
(c) Underwriter shall be responsible for its own conduct and the
employment, control, and conduct of its officers, employees and agents
and for injury to such officers, employees or agents or to others
through its officers, employees or agents. Underwriter assumes full
responsibility for its officers, employees and agents under applicable
laws, rules and regulations and agrees to pay all employee taxes
thereunder.
(d) Underwriter will notify Insurer if its SEC or New York State
broker-dealer registration or NASD membership is terminated or if it is
the subject of any proceeding that, in its reasonable judgment, is
likely to result in such termination.
(e) Underwriter shall notify Insurer immediately upon discovery or in any
event as soon as possible under the following circumstances:
(1) Of any material adverse change in the condition (financial or
otherwise) of Underwriter that would materially affect
Underwriter's obligations with respect to the distribution of the
Contracts; and
(2) Of any event which causes a representation or warranty of
Underwriter contained in this Agreement to no longer be true.
12. 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. The accounts, books, records and other
documents of Insurer, the Separate Account and Underwriter as to all
transactions hereunder shall be maintained so as to clearly and
accurately disclose the nature and details of the transactions,
including such accounting information as necessary to support the
reasonableness of the amounts paid by Insurer hereunder. 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 15, below.
13. 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.
14. INDEMNIFICATION
(a) BY UNDERWRITER
Underwriter agrees to indemnify and hold harmless Insurer and each of
its directors and officers and each person, if any, who controls
Insurer within the meaning of Section 15 of SA-33 (collectively, the
"Indemnified Parties" for purposes of this Section 14(a)), against any
and all losses, claims, expenses, damages, liabilities (including
amounts paid in settlement with the written consent of Underwriter) or
litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute or regulation,
at common law, or otherwise, insofar as such losses, claims expenses,
damages, liabilities (or actions in respect thereof) or settlements:
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact or omission or alleged
omission to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading,
in light of the circumstances in which they were made, contained
in any Registration Statement or in any Prospectus; to the extent,
but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission: (i) was made in
reliance upon information furnished in writing to Insurer by
Underwriter specifically for use in the preparation of any such
Registration Statement or any amendment thereof or supplement
thereto; or (ii) was contained in (A) any registration statement,
or any post-effective amendment thereto which becomes effective,
filed by or on behalf of a Fund with the SEC relating to Shares,
including any financial statements included in, or any exhibit to,
such registration statement or post-effective amendment, (B) any
prospectus of a Fund relating to the Shares either contained in
any such registration statement or post-effective amendment or
filed pursuant to Rule 497(c) or Rule 497(e) under SA-33, or (C)
in any promotional, sales or advertising material or written
information relating to the Shares authorized by or on behalf of a
Fund; or
(2) result because of any use by Underwriter or any Underwriter
Representative of promotional, sales or advertising material not
authorized by Insurer or any written or oral misrepresentations by
Underwriter or any Underwriter Representative or any unlawful
sales practices concerning the Contracts by Underwriter or any
Underwriter Representative under federal securities laws or NASD
regulations or other applicable law, or from the failure to
deliver the Prospectus or prospectuses for the Funds to the extent
required; or
(3) result from any claims by agents or Representatives or employees
of Underwriter for commissions or other compensation or
remuneration of any type; or
(4) arise out of or result from any material breach by Underwriter or
any Underwriter Representative of any provision of this Agreement.
This indemnification shall be in addition to any liability that
Underwriter may otherwise have; provided, however, that no Indemnified
Party shall be entitled to indemnification pursuant to this provision
if such loss, claim, expense, damage, liability or litigation is due to
the willful misfeasance, bad faith or gross negligence in the
performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations and duties under
this Agreement or to Insurer.
Underwriter shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified Underwriter in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify
Underwriter of any such claim shall not relieve Underwriter from any
liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified
Party, Underwriter will be entitled to participate, at its own expense,
in the defense thereof. Underwriter also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in
the action. After notice from Underwriter to such party of
Underwriter's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional legal counsel
retained by it, and Underwriter will not be liable to such party under
this Agreement for any legal or other expenses subsequently incurred by
such party independently in connection with the defense thereof other
than reasonable costs of investigation.
Underwriter agrees to promptly notify Insurer of the commencement of
any litigation or proceedings against it or a Fund or any of
Underwriter's directors, officers, employees or agents in connection
with the sale of any Contracts.
(b) BY INSURER
Insurer agrees to indemnify and hold harmless Underwriter and each of
its directors and officers and each person, if any, who controls
Underwriter within the meaning of Section 15 of SA-33 (collectively,
the "Indemnified Parties" for purposes of this Section 14(b)), against
any and all losses, claims expenses, damages, liabilities (including
amounts paid in settlement with the written consent of Insurer) or
litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute or regulation,
at common law, or otherwise, insofar as such losses, claims expenses,
damages, liabilities (or actions in respect thereof) or settlements:
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact or omission or alleged
omission 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, contained in any
Registration Statement or in any Prospectus; provided that Insurer
shall not be liable in any such case to the extent that such loss,
liability, damage, claim or expense arises out of, or is based
upon, an untrue statement or alleged untrue statement or omission
or alleged omission: (i) was made in reliance upon information
furnished in writing to Insurer by Underwriter specifically for
use in the preparation of any such Registration Statement or any
amendment thereof or supplement thereto; or (ii) was contained in
(A) any registration statement, or any post-effective amendment
thereto which becomes effective, filed by or on behalf of a Fund
with the SEC relating to Shares, including any financial
statements included in, or any exhibit to, such registration
statement or post-effective amendment, (B) any prospectus of a
Fund relating to the Shares either contained in any such
registration statement or post-effective amendment or filed
pursuant to Rule 497(c) or Rule 497(e) under SA-33, or (C) in any
promotional, sales or advertising material or written information
relating to the Shares authorized by or on behalf of a Fund; or
(2) result because of the terms of any Contract or because of any
material breach by Insurer or any of its officers, directors,
employees or agents (which, for these purposes, shall not include
Underwriter Representatives or Distributor Representatives) of any
provision of this Agreement or of any Contract; or
(3) result because of any use by Underwriter or any Underwriter
Representative of promotional, sales and/or advertising material
prepared by Insurer or any written or oral misrepresentations by
Insurer, its officers, directors, employees or agents (which, for
these purposes, shall not include Underwriter Representatives or
Distributor Representatives), or any unlawful sales practices
concerning the Contracts by Insurer, its officers, directors,
employees, or agents (which, for these purposes, shall not include
Underwriter Representatives or Distributor Representatives) under
the federal securities laws or NASD regulations or other
applicable law; or
(4) arise out of or result from any material breach by Insurer of any
provision of this Agreement.
This indemnification shall be in addition to any liability that Insurer
may otherwise have; provided, however, that no Indemnified Party shall
be entitled to indemnification pursuant to this provision if such loss,
claim, expense, damage, liability or litigation is due to the willful
misfeasance, bad faith or gross negligence in the performance of such
Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or to
Underwriter.
Insurer shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified Insurer in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but failure to notify
Insurer of any such claim shall not relieve Insurer from any liability
which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Party, Insurer
will be entitled to participate, at its own expense, in the defense
thereof. Insurer also shall be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action. After
notice from Insurer to such party of Insurer's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses
of any additional legal counsel retained by it, and Insurer will not be
liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
Insurer agrees to promptly notify Underwriter of the commencement of
any litigation or proceedings against it or any of its directors,
officers, employees or agents in connection with the sale of any
Contracts.
(c) SURVIVAL OF INDEMNIFICATION
The indemnification provisions contained in this Section 14 shall
remain operative in full force and effect, regardless of (1) any
investigation made by or on behalf of Insurer or Underwriter or by or
on behalf of any controlling person thereof, (2) delivery of any
Contracts and Premiums therefor, and (3) any termination of this
Agreement. A successor by law of Underwriter or Insurer, as the case
may be, shall be entitled to the benefits of the indemnification
provisions contained in this Section 14.
15. 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.
16. DURATION AND TERMINATION OF THIS AGREEMENT
(a) TERM
This Agreement shall become effective upon the Effective Date and shall
remain in effect for five years from the Effective Date and from year
to year thereafter, unless terminated as provided herein.
(b) TERMINATION
After the initial term, this Agreement may be terminated at any time,
on 60 days written notice, without the payment of any penalty, by
Underwriter or Insurer.
(c) 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.
(d) 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 10 days after receipt of notice of
breach from the non-breaching party.
(e) TERMINATION OF FUND PARTICIPATION AGREEMENT
Either party has the right to terminate this Agreement in the event of
termination of the Fund Participation Agreement between Underwriter,
Insurer, and the Funds.
(f) 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, if any, 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 2(d), 6, 7, 8(b), 9 (but not
clause (h) thereof), 12, 13, 14, and 15 hereof.
17. 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.
18. AMENDMENT OF SCHEDULES
The parties to this Agreement may amend Schedules 1 and 2 to this
Agreement from time to time to reflect additions of or changes in any
class of Contracts, Separate Accounts, subaccounts and Funds that have
been agreed upon. The provisions of this Agreement shall be equally
applicable to each such class of Contracts, Separate Accounts,
subaccounts and Funds that may be added to the Schedules, unless the
context otherwise requires.
19. 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 Maryland 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.
20. 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: Xxx Xxxx
00 Xxxx Xxx Xxx Xxxx, Xxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Copy to:
Security Benefit Life Insurance Company
Attn: Xxx X. Xxx, Esq.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
and if to Underwriter:
X. Xxxx Price Investment Services, Inc.
Attn: Xxxxx Xxxxxxx, Esq.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000.
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
Title: SECRETARY
Date: MAY 1, 1998
X. XXXX PRICE INVESTMENT SERVICES, INC.
By Its Authorized Officer
By:___________________________
Xxxxxxx X. Xxxxxx
Title: VICE PRESIDENT
Date: MAY 1, 1998
EXHIBIT A
FORM OF OPINION PURSUANT TO SECTION 2
X. Xxxx Price Investment Services, Inc.
Dear Sirs:
You have requested our opinion with respect to certain matters in connection
with the execution of the distribution agreement dated as of October 11, 1995
(the "Agreement") entered into between you ("Underwriter) and First Security
Benefit Life Insurance and Annuity Company of New York ("Insurer"). The
Agreement relates to your distribution of certain variable insurance contracts,
described more specifically in a registration statement, as amended, on Form N-4
filed with the Securities and Exchange Commission ("SEC"), File No. 33-83240,
which are to be issued by Insurer and supported by the X. Xxxx Price Variable
Annuity Account of Insurer. All capitalized terms contained herein not otherwise
defined shall have the meaning assigned to them in the Agreement.
We are of the following opinion:
(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 the Agreement and the consummation of the
transactions contemplated therein have been duly authorized by all
necessary corporate action by Insurer, and when so executed and
delivered the Agreement shall be the valid and binding obligation of
Insurer enforceable in accordance with its terms.
(3) The consummation of the transactions contemplated by the Agreement, and
the fulfillment of its terms, shall not conflict with, result in any
breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time) a default under, the articles of
incorporation or bylaws of Insurer, or to the best of our knowledge,
any indenture, agreement, mortgage, deed of trust, or other instrument
to which Insurer is a party or by which it is bound, or violate any
law, or, to the best of our knowledge, 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.
(4) Insurer has filed with the SEC all statements, notices and other
documents required for registration of the Contracts and the Separate
Account 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 the Registration Statement by SA-33, ICA-40 or
the Regulations which have not been so filed.
(5) The Registration Statement has been declared effective by the SEC or
has become effective in accordance with the Regulations.
(6) Insurer has not received any notice from the SEC with respect to the
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.
(7) Insurer has obtained all necessary or customary orders of exemption or
approval from the SEC to permit the distribution of the Contracts
pursuant to the Agreement and to permit the operation of the Separate
Account as contemplated in the related Prospectus, and such orders
apply to Underwriter, as principal underwriter for the Contracts and
the Separate Account.
(8) The Registration Statement and the related Prospectus comply in all
material respects with the provisions of SA-33 and ICA-40 and the
Regulations.
(9) We have no reason to believe that the Registration Statement (other
than any financial statements included therein and any statements or
omissions made in reliance upon information furnished to the Company by
the Distributor or a Fund (and confirmed in writing) specifically for
use in the preparation of the Registration Statement, as to which no
opinion is rendered), at the time it became effective, contained an
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances under which they
were made, nor do we have any reason to believe that the Prospectus
(other than any financial statements included therein and any
statements or omissions made in reliance upon information furnished to
the Company by the Distributor or a Fund (and confirmed in writing)
specifically for use in the preparation of the Registration Statement
or Prospectus, as to which no opinion is rendered), as amended or
supplemented as of the date hereof, contains an untrue statement of a
material fact or omits to state a material fact necessary in order to
make the statements therein not misleading, in light of the
circumstances under which they were made.
(10) We have no reason to believe that the statements made in the Prospectus
under the caption "Tax Status," to the extent that they constitute
matters of law or legal conclusions with respect thereto, are not
correct in any material respect.
(11) The 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.
(12) The form of the Contracts has been approved to the extent required by
the New York Superintendent of Insurance.
(13) The Contracts have been duly authorized by Insurer and conform to the
descriptions thereof in the Registration Statement for the Contracts
and the related Prospectus and, when issued as contemplated by the
Registration Statement, shall constitute legal, validly issued and
binding obligations of Insurer in accordance with their terms.
(14) The Contracts and the Separate Account have been duly registered with
the state securities regulatory bodies, administrative agencies, or any
other governmental instrumentality with which the Contracts or Separate
Account must be registered of the State of New York, to the extent such
registration requirements apply.
(15) To the best of our knowledge, 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 Account, or for the consummation of the
transactions contemplated by the Agreement, that has not been obtained.
Very truly yours,
FIRST SECURITY BENEFIT LIFE INSURANCE
AND ANNUITY COMPANY OF NEW YORK
By:____________________________
Name:
Title:
October 11, 1995
First Security Benefit Life Insurance
and Annuity Company of New York
Re: Registration Statement No. 33-83240 for
X. Xxxx Price Variable Annuity Account of First
SECURITY BENEFIT LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
Dear Sirs:
This letter is delivered to you in connection with (a) the Distribution
Agreement dated as of October 11, 1995 between you and X. Xxxx Price Investment
Services, Inc. ("Underwriter") relating to its distribution of certain variable
annuity contracts (the "Contracts"), interests in which have been registered
with the Securities and Exchange Commission (the "SEC") pursuant to the
Registration Statement identified above, and (b) the Participation Agreement
dated as of October 11, 1995, between you and the undersigned relating to the
Separate Account's investment in the undersigned. For purposes of such
agreements, this letter identifies information we have provided to you for
inclusion in the Registration Statement, as amended on Form N-4, filed with the
SEC, and the definitive versions of the related prospectus and statement of
additional information for the Contracts (the "Prospectus" and "SAI,"
respectively), as filed with the SEC on _________ in accordance with Rule 497 of
the Securities Act of 1933.
References herein to pages, paragraphs, or sentences are references to such
in the definitive versions of the Prospectus and SAI. Capitalized terms used
herein and not defined herein have the same meaning as in the Prospectus and
SAI.
The Fund hereby confirms that it has furnished the following information to
you specifically for use in the preparation of the Registration Statement, the
Amendment, the Prospectus, and SAI (to the extent that the following applies to
or describes the Fund and not with respect to information regarding any other
mutual fund):
* The names of the portfolios of the Fund, as they appear on page 2 of the
prospectus and page 7 of the prospectus.
* The definition of the Fund on page 6 of the prospectus.
* The "Management Fee," "Other Expenses," and "Total Portfolio Expenses"
shown for the portfolios of the Fund in the Expense Table on page 10, and
accompanying note.
* The section entitled "The Funds" beginning on page 12 and ending on page
14, except for the sentence to the effect that ". . . if the Company
believes that any Fund's response to any of these events or conflicts
insufficiently protects Owners, it will take appropriate action on its
own."
* The section entitled "The Investment Advisers," on page 14.
* The section entitled "Fund Expenses," on page 25.
* * *
Very truly yours,
X. XXXX PRICE EQUITY SERIES, INC.
By: _________________________
Name:
Title: Vice President
October 11, 1995
First Security Benefit Life Insurance
and Annuity Company of New York
Re: Registration Statement No. 33-83240 for
X. Xxxx Price Variable Annuity Account of First
SECURITY BENEFIT LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
Dear Sirs:
This letter is delivered to you in connection with (a) the Distribution
Agreement dated as of October 11, 1995 between you and X. Xxxx Price Investment
Services, Inc. ("Underwriter") relating to its distribution of certain variable
annuity contracts (the "Contracts"), interests in which have been registered
with the Securities and Exchange Commission (the "SEC") pursuant to the
Registration Statement identified above, and (b) the Participation Agreement
dated as of October 11, 1995, between you and the undersigned relating to the
Separate Account's investment in the undersigned. For purposes of such
agreements, this letter identifies information we have provided to you for
inclusion in the Registration Statement, as amended, on Form N-4, filed with the
SEC, and the definitive versions of the related prospectus and statement of
additional information for the Contracts (the "Prospectus" and "SAI,"
respectively), as filed with the SEC on _________ in accordance with Rule 497 of
the Securities Act of 1933.
References herein to pages, paragraphs, or sentences are references to such
in the definitive versions of the Prospectus and SAI. Capitalized terms used
herein and not defined herein have the same meaning as in the Prospectus and
SAI.
The Fund hereby confirms that it has furnished the following information to
you specifically for use in the preparation of the Registration Statement, the
Amendment, the Prospectus, and SAI (to the extent that the following applies to
or describes the Fund and not with respect to information regarding any other
mutual fund):
* The names of the portfolios of the Fund, as they appear on page 2 of the
prospectus and page 7 of the prospectus.
* The definition of the Fund on page 6 of the prospectus.
* The "Management Fee," "Other Expenses," and "Total Portfolio Expenses"
shown for the portfolios of the Fund in the Expense Table on page 10, and
accompanying note.
* The section entitled "The Funds" beginning on page 12 and ending on page
14, except for the sentence to the effect that ". . . if the Company
believes that any Fund's response to any of these events or conflicts
insufficiently protects Owners, it will take appropriate action on its
own."
* The section entitled "The Investment Advisers," on page 14.
* The section entitled "Fund Expenses," on page 25.
* * *
Very truly yours,
X. XXXX PRICE FIXED INCOME SERIES, INC.
By: _________________________
Name:
Title: Vice President
October 11, 1995
First Security Benefit Life Insurance
and Annuity Company of New York
Re: Registration Statement No. 33-83240 for
X. Xxxx Price Variable Annuity Account of First
SECURITY BENEFIT LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
Dear Sirs:
This letter is delivered to you in connection with (a) the Distribution
Agreement dated as of October 11, 1995 between you and X. Xxxx Price Investment
Services, Inc. ("Underwriter") relating to its distribution of certain variable
annuity contracts (the "Contracts"), interests in which have been registered
with the Securities and Exchange Commission (the "SEC") pursuant to the
Registration Statement identified above, and (b) the Participation Agreement
dated as of October 11, 1995 between you and the undersigned relating to the
Separate Account's investment in the undersigned. For purposes of such
agreements, this letter identifies information we have provided to you for
inclusion in the Registration Statement, as amended, on Form N-4, filed with the
SEC, and the definitive versions of the related prospectus and statement of
additional information for the Contracts (the "Prospectus" and "SAI,"
respectively), as filed with the SEC on _________ in accordance with Rule 497 of
the Securities Act of 1933.
References herein to pages, paragraphs, or sentences are references to such
in the definitive versions of the Prospectus and SAI. Capitalized terms used
herein and not defined herein have the same meaning as in the Prospectus and
SAI.
The Fund hereby confirms that it has furnished the following information to
you specifically for use in the preparation of the Registration Statement, the
Amendment, the Prospectus, and SAI (to the extent that the following applies to
or describes the Fund and not with respect to information regarding any other
mutual fund):
* The names of the portfolios of the Fund, as they appear on page 2 of the
prospectus and page 7 of the prospectus.
* The definition of the Fund on page 6 of the prospectus.
* The "Management Fee," "Other Expenses," and "Total Portfolio Expenses"
shown for the portfolios of the Fund in the Expense Table on page 10, and
accompanying note.
* The section entitled "The Funds" beginning on page 12 and ending on page
14, except for the sentence to the effect that ". . . if the Company
believes that any Fund's response to any of these events or conflicts
insufficiently protects Owners, it will take appropriate action on its
own."
* The section entitled "The Investment Advisers," on page 14.
* The section entitled "Fund Expenses," on page 25.
* * *
Very truly yours,
X. XXXX PRICE INTERNATIONAL SERIES, INC.
By: _________________________
Name:
Title: Vice President
October 11, 1995
First Security Benefit Life Insurance
and Annuity Company of New York
Re: Registration Statement No. 33-83240 for
X. Xxxx Price Variable Annuity Account of First
SECURITY BENEFIT LIFE INSURANCE AND ANNUITY COMPANY OF NEW YORK
Dear Sirs:
This letter is delivered to you in connection with the Distribution Agreement
(the "Agreement") dated as of October 11, 1995 between you and the undersigned
relating to our distribution of certain variable annuity contracts, interests in
which have been registered with the Securities and Exchange Commission (the
"SEC") pursuant to the Registration Statement identified above. This letter
identifies information we have provided to you for inclusion in the Registration
Statement, as amended, on Form N-4, filed with the SEC, and the definitive
versions of the related prospectus and statement of additional information for
the Contracts (the "Prospectus" and "SAI," respectively), as filed with the SEC
on _________ in accordance with Rule 497 of the Securities Act of 1933.
References herein to pages, paragraphs, or sentences are references to the
definitive versions of the Prospectus and SAI. Capitalized terms used herein and
not defined herein have the same meaning as in the Prospectus and SAI.
We have provided the following information to you specifically for use in the
preparation of the Registration Statement, the Amendment, the Prospectus, and
the SAI:
* The second and third sentences under the caption, "Application for a
Contract," on page 15 to the extent of references to the Underwriter's
effectuation of redemptions from the X. Xxxx Price mutual funds.
* The fourth sentence under the heading "Purchase Payments," on page 16, to
the extent of references to redemption of Fund shares.
* The paragraph captioned "Distribution of the Contracts," on page 42.
* Item 29 of Part C of the Amendment, which lists officers of Underwriter.
Further, to the extent Investment Services has agreed to perform an
administrative or operational service specifically described in the Prospectus
and not referred to in the preceding paragraph, you may rely upon the fact that
Investment Services shall perform such service.
* * *
It is understood that the opinion of counsel to First Security Benefit Life
Insurance and Annuity Company of New York to be furnished to us in accordance
with section 2 of the Distribution Agreement will not cover (I.E., will
specifically exclude) all of the information referred to above, as well as all
information confirmed in writing by or on behalf of the Funds as being provided
by the Funds, and any omissions relating to, arising out of, or pertaining to
such provided information.
Very truly yours,
X. XXXX PRICE INVESTMENT SERVICES, INC.
By: _________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
SCHEDULE 1
Contracts Subject to Agreement
--------------------------------------------------------------------------------
CONTRACT MARKETING NAME POLICY FORM NOS. SEC REGISTRATION NO.
--------------------------------------------------------------------------------
X. Xxxx Price No-Load FSB 200; File No. 33-83240
Variable Annuity FSB 201 (4-94);
FSB 201 (4-94)U; File No. 811-8726
FSB 202 (4-94);
XXX 000 (0-00
XXX 211 (4-94)
FSB 212 (4-94)
X. Xxxx Price No Load FSB 214 File No. 33-83240
Immediate Variable Annuity File No. 811-8724
SCHEDULE 2
SEPARATE ACCOUNTS, SUBACCOUNTS AND FUNDS
AVAILABLE UNDER THE CONTRACTS
--------------------------------------------------------------------------------
Separate Account Subaccount Funds
--------------------------------------------------------------------------------
X. Xxxx Price Variable X. Xxxx Price Equity
Annuity Account of First Series, Inc.
Security Benefit Life
Insurance and Annuity
Company of New York
* New America * X. Xxxx Price New America
Growth Subaccount Growth Portfolio
* Equity Income * X. Xxxx Price Equity
Subaccount Income Portfolio
* Personal Strategy * X. Xxxx Price Personal
Balanced Subaccount Strategy Balanced
Portfolio
* Mid-Cap Growth * X. Xxxx Price Mid-Cap
Subaccount Growth Portfolio
--------------------------------------------------------------------------------
X. Xxxx Price International
Series, Inc.
* International Stock * X. Xxxx Price
Subaccount International
Stock Portfolio
--------------------------------------------------------------------------------
X. Xxxx Price Fixed
Income Series, Inc.
* Limited-Term * X. Xxxx Price Limited-
Bond Subaccount Term Bond Portfolio
* Prime Reserve * X. Xxxx Price Prime
Subaccount Reserve Portfolio
--------------------------------------------------------------------------------
