FUND PARTICIPATION AGREEMENT
This Agreement is entered into as of the 22nd day of October, 2012, between
First Symetra National Life Insurance Company of New York, a life insurance
company organized under the laws of the State of New York ("Insurance Company"),
on behalf of itself and on behalf of the separate accounts set forth on
Exhibit A, and each Participating Fund (as defined below).
ARTICLE I
DEFINITIONS
1.1 "1933 Act" shall mean the Securities Act of 1933, as amended.
1.2 "1940Act" shall mean the Investment Company Act of 1940, as amended.
1.3 "Board" shall mean the Board of Directors or Trustees, as the case may
be, of a Participating Fund, which has the responsibility for
management and control of the Participating Fund.
1.4 "Business Day" shall mean any day for which a Participating Fund
calculates net asset value per Share (as defined below) as described
in the Participating Fund's Prospectus (as defined below).
1.5 "Close of Trading" shall mean the close of trading on the New York
Stock Exchange (usually 4:00 p.m. Eastern time.)
1.6 "Commission" shall mean the Securities and Exchange Commission.
1.7 "Contract" shall mean a variable annuity or variable life insurance
contract that uses any Participating Fund as an underlying investment
medium. Individuals who participate under a group Contract are
"Participants."
1.8 "Contractholder" shall mean any entity that is a party to a Contract
(including any Participants thereunder) with a Participating Company
(as defined below).
1.9 "Disinterested Board Members" shall mean those members of the Board of
a Participating Fund that are not deemed to be "interested persons"
(as defined in the 0000 Xxx) of the Participating Fund.
1.10 "Dreyfus" shall mean The Dreyfus Corporation and its affiliates,
including MBSC Securities Corporation ("MBSC"), the distributor of
each Participating Fund.
1.11 "FINRA" shall mean the Financial Industry Regulatory Authority.
1.12 "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates that invest in
Shares of a Participating Fund.
1.13 "Marketing Materials" shall mean advertisements (such as material
published, or designed for use, in a newspaper, magazine or other
periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures or other public media),
sales literature (such as any written communication distributed or
made generally available to customers or the public, including
brochures, circulars, research reports, market letters, form letters,
seminar texts, or reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training
materials or other communications distributed or made generally
available to financial intermediaries or prospective investors in
connection with distribution or servicing activities, and any other
material constituting sales literature or advertising under FINRA
rules, the 1940 Act or the 0000 Xxx.
1.14 "Participating Companies" shall mean any insurance company (including
Insurance Company) that offers variable annuity and/or variable life
insurance contracts to the public and that has entered into an
agreement with one or more of the Participating Funds for the purpose
of making Participating Fund Shares available to serve as the
underlying investment medium for the aforesaid Contracts.
1.15 "Participating Fund" shall mean each investment company, including,
as applicable, any series thereof, specified in Exhibit B, as such
Exhibit may be amended from time to time by agreement of the parties
hereto, the Shares of which are available to serve as the underlying
investment medium for the aforesaid Contracts.
1.16 "Prospectus" shall mean the currently effective prospectus and
statement of additional information of a Participating Fund, relating
to its Shares.
1.17 "Separate Account" shall mean a separate account duly established by
Insurance Company and set forth on Exhibit A, as such Exhibit may be
revised from time to time.
1.18 "Shares" shall mean (i) each class of shares of a Participating Fund
set forth on Exhibit B next to the name of such Participating Fund,
as such Exhibit may be revised from time to time, or (ii) if no class
of shares is set forth on Exhibit B next to the name of such
Participating Fund, the shares of the Participating Fund.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law;
(b) it has legally and validly established each Separate Account
pursuant to applicable insurance laws and regulations; (c) it has, to
the extent required under applicable law, registered each Separate
Account as a unit investment trust under the 1940 Act to serve as the
segregated investment account for its Contracts; and (d) each
Separate Account is eligible to invest in Shares of each Participating
Fund without such investment disqualifying any Participating Fund as
an underlying investment medium for insurance company separate
accounts supporting variable annuity contracts or variable life
insurance contracts.
2.2 Insurance Company represents and warrants that (a) to the extent
required under applicable law, its Contracts will be described in a
registration statement filed under the 1933 Act; (b) its Contracts
will be issued and sold in compliance in all material respects with
all applicable federal and state laws; and (c) the sale of its
Contracts shall comply in all material respects with applicable state
insurance law requirements. Insurance Company agrees to notify each
Participating Fund promptly of any investment restrictions imposed
by state insurance law and applicable to the Participating Fund.
2.3 Insurance Company represents and warrants that the income, gains and
losses, whether or not realized, from assets allocated to the Separate
Account are, in accordance with the applicable Contracts, to be
credited to or charged against such Separate Account without regard
to other income, gains or losses from assets allocated to any other
accounts of Insurance Company. Insurance Company represents and
warrants that the assets of the Separate Account are and will be
kept separate from Insurance Company's General Account(s) and any
other separate accounts Insurance Company may have, and will not be
charged with liabilities from any business that Insurance Company
may conduct or the liabilities of any companies affiliated with
Insurance Company.
2.4 To the extent that Insurance Company is a broker-dealer or is
otherwise subject to the rules of FINRA:
a. Insurance Company shall inform MBSC promptly of any pending or
threatened action or proceeding by FINRA bearing on Insurance
Company's membership with FINRA and of any suspension or
termination of such membership. Insurance Company further
agrees to maintain all records required by applicable laws or
that are otherwise reasonably requested by MBSC in the event
Insurance Company's status as a member of FINRA or the
Securities Investor Protection Corporation changes. Insurance
Company recognizes that it will be treated as a "non-member of
the Association," as defined by FINRA rules, during the period
of any suspension of Insurance Company's membership in
FINRA. Accordingly, no payments required by FINRA regulations
to be paid solely to a registered broker or dealer shall be
paid by MBSC while Insurance Company is suspended from FINRA.
b. To the extent that Insurance Company makes a recommendation to
Contractholders regarding a transaction in Shares, Insurance
Company agrees that it is its responsibility to fulfill its
obligations under FINRA rules and to determine the suitability
of any Shares as investments for Contractholders, and that
MBSC has no responsibility for such determination.
2.5 Insurance Company understands and acknowledges that the Participating
Funds may offer Shares in multiple classes, and Insurance Company
represents and warrants that, to the extent Insurance Company is
recommending transactions in Shares, it has established compliance
procedures designed to ensure that, in offering more than one Share
class of Participating Funds to Contractholders, Contractholders are
made aware of the terms of each class of Shares offered, to ensure
that its representatives recommend only Shares that are appropriate
investments for each Contractholder and to ensure proper supervision
of Insurance Company's representatives in recommending and offering
different classes of Participating Fund Shares to Contractholders.
2.6 Pursuant to Regulation S-P promulgated by the Commission under the
Xxxxx-Xxxxx-Xxxxxx Act ("Reg. S-P"), Insurance Company agrees to
deliver the Participating Funds' then current consumer privacy notice
to any Contractholder who purchases Shares from or through Insurance
Company, at or prior to the time of the initial purchase, if the
Contractholder would be considered a "consumer" or "customer" (each
as defined in Reg. S-P) of the Participating Funds.
2.7 Each Participating Fund represents that it is registered with the
Commission under the 1940 Act as an open-end, management investment
company and possesses, and shall maintain, all legal and regulatory
licenses, approvals, consents and/or exemptions required for the
Participating Fund to operate and offer its Shares as an underlying
investment medium for Participating Companies.
2.8 Each Participating Fund represents that it is currently or will be
qualified as a regulated investment company under Subchapter M of the
Internal Revenue Code of 1986, as amended (the "Code"), and that it
will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) and that it will
notify Insurance Company promptly upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so
qualify in the future.
2.9 Insurance Company represents and agrees that the Contracts are
currently, and at the time of issuance will be, treated as life
insurance policies or annuity contracts, whichever is appropriate,
under applicable provisions of the Code, and that it will make every
effort to maintain such treatment and that it will notify each
Participating Fund and Dreyfus immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so treated or
that they might not be so treated in the future. Insurance Company
agrees that any prospectus offering a Contract that is a "modified
endowment contract," as that term is defined in Section 7702A of the
Code, will identify such Contract as a modified endowment contract
(or policy).
2.10 Each Participating Fund represents that it will maintain its assets
such that, at the close of each calendar quarter (or within 30 days
thereafter), it will be "adequately diversified" within the naming of
Section 817(h) of the Code and Treasury Regulation 1.817-5.
2.11 Insurance Company agrees that each Participating Fund shall be
permitted (subject to the other terms of this Agreement) to make its
Shares available to other Participating Companies and Contractholders.
2.12 Each Participating Fund represents and warrants that any of its
officers and employees who deal with the money and/or securities of
the Participating Fund are and shall continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit
of the Participating Fund in an amount not less than that required by
Rule 17g-1 under the 1940 Act. The aforesaid bond shall include
coverage for larceny and embezzlement and shall be issued by a
reputable fidelity insurance company.
2.13 Insurance Company represents and warrants that all of its employees
and agents who deal with the money and/or securities of each
Participating Fund are and shall continue to be at all times covered
by a blanket fidelity bond or similar coverage in an amount not less
than the coverage required to be maintained by the Participating Fund.
The aforesaid bond shall include coverage for larceny and embezzlement
and shall be issued by a reputable fidelity insurance company.
2.14 Insurance Company represents and warrants that it has reviewed each
Participating Fund's policy regarding market timing and frequent
trading of shares, and none of its Contractholders is or will be
permitted to engage in trading activity which would violate such
policy.
2.15 Insurance Company represents and warrants that, to the extent required
by applicable law, it has adopted policies and procedures to comply
with all applicable anti-money laundering, customer identification,
suspicious activity, currency transaction reporting and similar laws
and regulations including the Bank Secrecy Act, as amended by the USA
PATRIOT Act, and the regulations thereunder, and FINRA rules
governing its members, if applicable. Insurance Company also
represents and warrants that it will not purchase or sell Shares on
behalf of any person on the list of Specially Designated Nationals
and Blocked Persons maintained by the Office of Foreign Assets
Control ("OFAC"), or other similar governmental lists, or in
contravention of any OFAC maintained sanctions program. Insurance
Company agrees to share information with each Participating Fund for
purposes of ascertaining whether a suspicious activity report ("SAR")
is warranted with respect to any suspicious transaction involving
Shares, provided that neither Insurance Company nor the Participating
Fund is the subject of the SAR. Insurance Company, if required to
maintain an anti-money laundering program, also represents and
warrants that it has filed the requisite certification with the
Financial Crimes Enforcement Network to allow Insurance Company to
share information pursuant to Section 314(b) of the USA PATRIOT Act.
ARTICLE III
PARTICIPATING FUND SHARES
3.1 The Contracts funded through the Separate Account will provide for the
investment of certain amounts in Shares of each Participating Fund.
3.2 Each Participating Fund agrees to make its Shares available for
purchase at the then applicable net asset value per Share by Insurance
Company and the Separate Accounts on each Business Day pursuant to
rules of the Commission. Notwithstanding the foregoing, each
Participating Fund may refuse to sell its Shares to any person, or
suspend or terminate the offering of its Shares.
3.3 Each Participating Fund agrees that Shares of the Participating Fund
will be sold only to (a) Participating Companies and their separate
accounts or (b) "qualified pension or retirement plans" as determined
under Section 817(h)(4) of the Code. Except as otherwise set forth in
this Section 3.3, no shares of any Participating Fund will be sold to
the general public.
3.4 Each Participating Fund shall use its best efforts to provide closing
net asset value, dividend and capital gain information on a per Share
basis to Insurance Company by 6:00 p.m. Eastern time on each Business
Day. Any material errors in the calculation of net asset value,
dividend and capital gain information shall be reported immediately
upon discovery to Insurance Company. Non-material errors will be
corrected in the next Business Day's net asset value per Share.
3.5 At the end of each Business Day, Insurance Company will use the
information described in Section 3.4 to calculate the unit values of
the Separate Accounts for the day. Using this unit value, Insurance
Company will process the day's Separate Account transactions received
by it by the Close of Trading to determine the net dollar amount of
the Shares of each Participating Fund that will be purchased or
redeemed at that day's closing net asset value per Share. The net
purchase or redemption orders will be transmitted to each
Participating Fund by Insurance Company by 11:00 a.m. Eastern time on
the Business Day next following Insurance Company's receipt of the
corresponding Separate Account transactions. Subject to Sections 3.6
and 3.8, all purchase and redemption orders for Insurance Company's
General Account(s) shall be effected at the net asset value per Share
of each Participating Fund next calculated after receipt of the order
by the Participating Fund or its transfer agent.
3.6 Each Participating Fund appoints Insurance Company as its agent for
the limited purpose of accepting orders for the purchase and
redemption of Shares of the Participating Fund for the Separate
Account. Each Participating Fund will execute orders at the
applicable net asset value per Share determined as of the Close of
Trading on the day of receipt of such orders by Insurance Company
acting as agent ("effective trade date"), provided that the
Participating Fund receives notice of such orders by 11:00 a.m.
Eastern time on the next following Business Day and, if such orders
request the purchase of Shares of the Participating Fund, the
conditions specified in Section 3.8, as applicable, are satisfied.
A redemption or purchase request that does not satisfy the conditions
specified above and in Section 3.8, as applicable, will be effected at
the net asset value per Share computed on the Business Day immediately
preceding the next following Business Day upon which such conditions
have been satisfied in accordance with the requirements of this
Section and Section 3.8. Insurance Company represents and warrants
that all orders submitted by Insurance Company for execution as of
the effective trade date shall represent purchase or redemption orders
received from its Contractholders prior to the Close of Trading on the
effective trade date.
3.7 Insurance Company will make its best efforts to notify each applicable
Participating Fund in advance of any unusually large purchase or
redemption orders.
3.8 If Insurance Company's order requests the purchase of Shares of a
Participating Fund, Insurance Company will pay for such purchases by
wiring Federal Funds to the Participating Fund or its designated
custodial account on the day the order is transmitted. Insurance
Company shall make all reasonable efforts to transmit to the
applicable Participating Fund payment in Federal Funds by 12:00 noon
Eastern time on the Business Day the Participating Fund receives the
notice of the order pursuant to Section 3.6. Each applicable
Participating Fund will execute such orders at the applicable net
asset value per Share determined as of the Close of Trading as of the
effective trade date if the Participating Fund receives payment in
Federal Funds by 12:00 midnight Eastern time at the end of the
Business Day the Participating Fund receives the notice of the order
pursuant to Section 3.6. If payment in Federal Funds for any
purchase is not received or is received by a Participating Fund after
12:00 noon Eastern time at the end of such Business Day, Insurance
Company shall promptly, upon the Participating Fund's request,
reimburse the Participating Fund for any charges, costs, fees,
interest or other expenses incurred by the Participating Fund in
connection with any advances to, or borrowings or overdrafts by,
the Participating Fund, or any similar expenses incurred by the
Participating Fund, as a result of portfolio transactions effected by
the Participating Fund based upon such purchase request. If Insurance
Company's order requests the redemption of any Shares of a
Participating Fund valued at or greater than $1 million dollars, the
Participating Fund will wire such amount to Insurance Company within
seven days of the order.
3.9 Insurance Company represents that it has adopted, and will at all
times during the term of the Agreement maintain, reasonable and
appropriate procedures designed to ensure that any and all orders to
purchase, redeem, transfer or exchange Shares received by Insurance
Company from Contractholders treated as received prior to the Close of
Trading on each Business Day are received by Insurance Company prior
to the Close of Trading on such Business Day, and are not modified
after the Close of Trading, and that all such orders received, but
not rescinded, by the Close of Trading are communicated to MBSC or
its designee for that Business Day. Each transmission of Share orders
by Insurance Company shall constitute a representation that such
orders are accurate and complete and are as received by Insurance
Company by the Close of Trading on the Business Day for which the
orders are to be priced, and that such transmission includes all
Share orders received from Contractholders, but not rescinded, by
the Close of Trading.
3.10 Each Participating Fund has the obligation to ensure that its Shares
are registered with the Commission at all times.
3.11 Each Participating Fund will confirm each purchase or redemption order
made by Insurance Company. Transfers of Shares of a Participating
Fund will be by book entry only. No share certificates will be issued
to Insurance Company. Insurance Company will record Shares ordered
from a Participating Fund in an appropriate title for the
corresponding account.
3.12 Each Participating Fund shall credit Insurance Company with the
appropriate number of Shares.
3.13 On each ex-dividend date of a Participating Fund or, if not a Business
Day, on the first Business Day thereafter, each Participating Fund
shall communicate to Insurance Company the amount of dividend and
capital gain, if any, per Share. All dividends and capital gains
shall be automatically reinvested in additional Shares of the
applicable Participating Fund at the net asset value per Share on the
ex-dividend date. Each Participating Fund shall, on the day after
the ex-dividend date or, if not a Business Day, on the first Business
Day thereafter, notify Insurance Company of the number of Shares so
issued.
3.14 To the extent that a Separate Account is properly exempt from
registration under the 1940 Act, at least once annually, at the
request of a Participating Fund, or its designee, Insurance Company
will certify the amount of purchases and redemptions of Shares from
such Separate Account for the Participating Fund's most recent fiscal
year end.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 Each Participating Fund shall provide monthly statements of account as
of the end of each month for all of Insurance Company's Participating
Fund accounts by the fifteenth (15th) Business Day of the following
month.
4.2 Each Participating Fund shall distribute to Insurance Company copies
of the Participating Fund's Prospectus and supplements thereto, proxy
materials, notices, financial reports and other printed materials
(which the Participating Fund customarily provides to the holders of
its Shares) in quantities as Insurance Company may reasonably request
for distribution to each of its Contractholders. Insurance Company
may elect to print the Participating Fund's Prospectus in combination
with other fund companies' prospectuses and statements of additional
information, which are also offered in Insurance Company's insurance
product at its own cost. At Insurance Company's request, the
Participating Fund will provide, in lieu of printed documents,
Prospectuses and financial reports in electronic form for printing by
Insurance Company.
4.3 Each Participating Fund will provide to Insurance Company at least one
complete copy of all registration statements, Prospectuses, financial
reports, proxy statements, applications for exemptions and requests
for no-action letters, and all amendments to any of the above, that
relate to the Participating Fund or its Shares (except for such
materials that are designed only for a class of shares of a
Participating Fund not offered to Insurance Company pursuant to this
Agreement).
4.4 MBSC agrees to make available to Insurance Company a list of the
states or other jurisdictions in which Shares are registered for sale
or are otherwise qualified for sale, which may be revised from time to
time. Insurance Company will make offers of Shares to Contractholders
only in those states, and will ensure that Insurance Company
(including its associated persons) is appropriately licensed and
qualified to offer and sell Shares in any state or other jurisdiction
that requires such licensing or qualification in connection with
Insurance Company's activities.
4.5 Insurance Company will provide to each Participating Fund at least one
copy of all registration statements, prospectuses, financial reports,
proxy statements, applications for exemptions and requests for
no-action letters, and all amendments to any of the above, that
relate to its Contracts or the Separate Account.
4.6 Insurance Company will provide Participating Funds on a semi-annual
basis, or more frequently as reasonably requested by the Participating
Funds, with a current tabulation of the number of its existing
Contractholders whose Contract values are invested in each
Participating Fund. This tabulation will be sent to Participating
Funds in the form of a letter signed by a duly authorized officer of
Insurance Company attesting to the accuracy of the information
contained in the letter.
ARTICLE V
SHAREHOLDER INFORMATION AND IMPOSITION OF TRADING RESTRICTIONS
5.1 Insurance Company agrees to provide promptly, but not later than ten
Business Days, to the Participating Fund, upon Written request, the
taxpayer identification number ("TIN"), the Individual/International
Taxpayer Identification Number ("ITIN") or other government-issued
identifier ("GII"), if known, of any or all Contractholder(s) who
have purchased, redeemed, transferred or exchanged Shares held through
a Separate Account with Insurance Company during the period covered
by the request and the amount, date, name or other identifier of any
investment professional(s) associated with the Contractholder(s) or
the Separate Account (if known), and transaction type (purchase,
redemption, transfer or exchange) of every purchase, redemption,
transfer or exchange of Shares. To the extent practicable, the format
for any transaction information provided to the Participating Fund
should be consistent with the National Securities Clearing Corporation
Standardized Data Reporting Format.
5.2 Requests must set forth a specific period, not to exceed ninety days
from the date of the request, for which transaction information is
sought. The Participating Fund may request transaction data older
than ninety days from the date of the request as it deems necessary
to investigate compliance with policies established by the
Participating Fund for the purpose of eliminating or reducing dilution
to the value of the outstanding Shares issued by the Participating
Fund.
5.3 Insurance Company agrees to use best efforts to determine, promptly
upon request of the Participating Fund, but not later than ten days,
whether any person that holds Shares through Insurance Company or its
Separate Account is an "indirect intermediary "as defined in Rule
22c-2 under the 1940 Act (an "Indirect Intermediary"), and upon
further request of the Participating Fund, (i) provide or arrange to
have provided the information set forth in Section 5.1 of this Article
V regarding Contractholders who hold an account with an Indirect
Intermediary; or (ii) restrict or prohibit the Indirect Intermediary
from purchasing Shares on behalf of itself or other persons.
Insurance Company agrees to inform the Participating Fund whether
Insurance Company plans to perform (i) or (ii).
5.4 MBSC agrees not to use the information received under this Article V
for marketing or any other similar purpose without the prior Written
consent of Insurance Company.
5.5 Insurance Company agrees to execute Written instructions from the
Participating Fund to restrict or prohibit further purchases or
exchanges of Shares by a Contractholder who has been identified by the
Participating Fund as having engaged in transactions of Shares
(directly or indirectly through a Separate Account) that violate the
policies established by the Participating Fund for the purpose of
eliminating or reducing any dilution of the value of its Shares.
5.6 Instructions provided to Insurance Company will include the TIN, ITIN
or GII, if known, and the specific restriction(s) to be executed.
If the TIN, ITIN or GII is not known, the instructions will include an
equivalent identifying number of the Contractholder(s) or account(s)
or other agreed-upon information to which the instructions relates.
5.7 Insurance Company must provide Written confirmation to the
Participating Fund that instructions have been executed. Insurance
Company agrees to provide the confirmation as soon as reasonably
practicable, but not later than ten Business Days after the
instructions have been executed.
5.8 For purposes of this Article V only,
a. "Written" communications include electronic communications
and facsimile transmissions;
b. "Participating Fund" does not include any "excepted funds"
as defined in Rule 22c-2(b) under the 1940 Act; and
c. "Contractholder" shall include, as applicable, (i) the
beneficial owner of Shares, whether the Shares are held
directly by Contractholder or by Insurance Company in nominee
name; (ii) a Separate Account unit holder, notwithstanding
that the Separate Account may be deemed to be the beneficial
owner of Shares; or (iii) the holder of interests in a
Participating Fund underlying a variable annuity or variable
life insurance contract.
ARTICLE VI
EXPENSES
6.1 The charge to each Participating Fund for all expenses and costs of
the Participating Fund, including but not limited to management fees,
Rule 12b-1 fees, if any, administrative expenses and legal and
regulatory costs, will be included in the determination of the
Participating Fund's daily net asset value per Share.
6.2 Except as otherwise provided in this Agreement and, in particular in
the next sentence, Insurance Company shall not be required to pay
directly any expenses of any Participating Fund or expenses relating
to the distribution of its Shares. Insurance Company shall pay the
following expenses or costs:
a. such amount of the production expenses of any Participating
Fund materials, including the cost of printing a Participating
Fund's Prospectus or financial reports, or Marketing Materials
for prospective Insurance Company Contractholders as Dreyfus
and Insurance Company shall agree from time to time; and
b. distribution expenses of any Participating Fund materials or
Marketing Materials for Insurance Company Contractholders or
prospective Insurance Company Contractholders.
MBSC may pay Insurance Company, or the broker-dealer acting as
principal underwriter for Insurance Company's Contracts, for
distribution and other services related to the Shares of the
Participating Fund pursuant to any distribution plan adopted by the
Participating Fund in accordance with Rule 12b-1 under the 1940 Act,
subject to the terms and conditions of an agreement between MBSC and
Insurance Company or the principal underwriter for Insurance Company's
Contracts, as applicable, related to such plan.
ARTICLE VII
EXEMPTIVE RELIEF
7.1 Insurance Company has reviewed a copy of the Order of the Commission
under Section 6(c) of the 1940 Act, dated February 5, 1998, applicable
to the Participating Funds (the "Order") and, in particular, has
reviewed the conditions to the relief set forth in the Notice of
Application for the Order (the "Conditions"). As set forth therein,
Insurance Company agrees, as applicable, to report any potential or
existing conflicts promptly to the Board, including whenever contract
voting instructions are disregarded, and recognizes that it will be
responsible for assisting the Board in carrying out its
responsibilities under the Conditions by providing the Board with
all information reasonably necessary for the Board to consider any
issues raised. Insurance Company agrees to carry out such
responsibilities with a view only to the interests of Contractholders.
7.2 If a majority of the Board, or a majority of Disinterested Board
Members, determines that a material irreconcilable conflict exists
with regard to Contractholder investments in a Participating Fund, the
Board shall give prompt notice of the material irreconcilable conflict
and its implications to all Participating Companies and any other
Participating Fund. If the Board determines that Insurance Company
is a Participating Company for which such conflict is relevant,
Insurance Company shall, at its expense and to the extent reasonably
practicable (as determined by a majority of the Disinterested Board
Members), take whatever steps are necessary to eliminate the
irreconcilable material conflict, including:
a. withdrawing the assets allocable to some or all of the
Separate Accounts (as applicable) from the Participating
Fund and reinvesting such assets in another Participating
Fund (if applicable) or a different investment medium, or
submitting the question of whether such segregation should
be implemented to a vote of all affected Contractholders and,
as appropriate, segregating the assets of any appropriate
group (e.g., variable annuity Contractholders or variable
life insurance Contractholders of the Insurance Company)
that votes in favor or such segregation, or offering to the
affected Contractholders the option of making such a change;
and
b. establishing a new registered management investment company or
managed separate account.
The foregoing responsibility of Insurance Company will be carried out
with a view only to the interest of Contractholders.
7.3 If a material irreconcilable conflict arises as a result of a decision
by Insurance Company to disregard Contractholder voting instructions
and such decision represents a minority position or would preclude a
majority vote by all Contractholders having an interest in a
Participating Fund, Insurance Company may be required, at the
Participating Fund's election, to withdraw the investments of the
Separate Account in the Participating Fund, without any charge or
penalty as a result of such withdrawal.
7.4 For the purpose of this Article VII, a majority of the Disinterested
Board Members shall determine whether or not any proposed action
adequately remedies any irreconcilable material conflict, but in no
event will any Participating Fund or Dreyfus be required to establish,
or to bear the costs of establishing, a new funding medium for any
Contract. Insurance Company shall not be required by this Article VII
to establish a new funding medium for any Contract if an offer to do
so has been declined by vote of a majority of the Contractholders
materially and adversely affected by the irreconcilable material
conflict.
7.5 No action by Insurance Company taken or omitted, and no action by the
Separate Account or any Participating Fund taken or omitted as a
result of any act or failure to act by Insurance Company pursuant to
this Article VII, shall relieve Insurance Company of its obligations
under, or otherwise affect the operation of, Article VI.
7.6 If and to the extent Rule 6e-2 and Rule 6e-3(T) under the 1940 Act are
amended, or if Rule 6e-3 is adopted, to provide exemptive relief from
any provision of the 1940 Act or the rules thereunder with respect to
mixed and shared funding on terms and conditions materially different
from any exemptions granted in the Order, then the Participating
Funds, and/or the Insurance Company, as appropriate, shall take such
steps as may be necessary to comply with Rule 6e-2 and Rule 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable.
7.7 Insurance Company shall at least annually (or more frequently if
deemed by appropriate by the Board) submit to the Board of each
Participating Fund such reports, materials or data as a Board may
reasonably request so that the Board may fully carry out obligations
imposed upon it by the Conditions.
ARTICLE VIII
VOTING SHARES OF PARTICIPATING FUND
8.1 Insurance Company shall:
(a) solicit voting instructions from its Contractholders on a
timely basis and in accordance with applicable law;
(b) vote the Shares of the Participating Funds in accordance with
instructions received from its Contractholders; and
(c) vote the Shares of the Participating Funds for which no
instructions have been received in the same proportion as
Shares of the Participating Fund for which instructions have
been received.
Insurance Company agrees at all times to vote Shares held by Insurance
Company's General Account(s) in the same proportion as Shares of the
Participating Fund for which instructions have been received from
Insurance Company's Contractholders. Insurance Company further agrees
to be responsible for assuring that voting privileges of the Shares
for the Separate Account are calculated in a manner consistent with
other Participating Companies.
8.2 Insurance Company agrees that it shall not, without the prior written
consent of each applicable Participating Fund and Dreyfus, solicit,
induce or encourage Contractholders to (a) change or supplement the
Participating Fund's current investment adviser or (b) change, modify,
substitute, add to or delete from the current investment media for
the Contracts.
ARTICLE IX
MARKETING AND REPRESENTATIONS
9.1 Each Participating Fund or MBSC shall periodically furnish Insurance
Company with the following documents relating to the Shares of the
Participating Fund, in quantities as Insurance Company may reasonably
request:
a. current Prospectus and any supplements thereto; and
b. Marketing Materials.
Expenses for the production of such documents shall be borne by
Insurance Company in accordance with Section 6.2 of this Agreement.
9.2 Insurance Company shall designate certain persons or entities that
shall have the requisite licenses to solicit applications for the
sale of Contracts. No representation is made as to the number or
amount of Contracts that are to be sold by Insurance Company.
Insurance Company shall make reasonable efforts to market the
Contracts and shall comply with all applicable federal and state laws
in connection therewith.
9.3 Insurance Company shall furnish, or shall cause to be furnished, to
each applicable Participating Fund or its designee, each piece of
Marketing Materials in which the Participating Fund, its investment
adviser or the administrator, or Dreyfus is named, at least fifteen
Business Days prior to its use. No such Marketing Materials shall be
used unless the Participating Fund or its designee approves such
Marketing Materials. Such approval (if given) must be in writing and
shall be presumed not given if not received within ten Business Days
after receipt of such Marketing Materials. Each applicable
Participating Fund or its designee, as the case may be, shall use
all reasonable efforts to respond within ten days of receipt.
9.4 Insurance Company shall not give any information or make any
representations or statements on behalf of a Participating Fund or
concerning a Participating Fund in connection with the sale of the
Contracts other than the information or representations contained
in the registration statement or Prospectus of, as may be amended or
supplemented from time to time, or in reports or proxy statements for,
the applicable Participating Fund, or in Marketing Materials approved
by the applicable Participating Fund in accordance with Section 9.3.
9.5 Each Participating Fund shall furnish, or shall cause to be furnished,
to Insurance Company, each piece of the Participating Fund's Marketing
Materials in which Insurance Company or the Separate Account is named,
at least fifteen Business Days prior to its use. No such Marketing
Materials shall be used unless Insurance Company approves such
Marketing Materials. Such approval (if given) must be in writing and
shall be presumed not given if not received within ten Business Days
after receipt of such Marketing Materials. Insurance Company shall
use all reasonable efforts to respond within ten days of receipt.
9.6 No Participating Fund shall, in connection with the sale of Shares of
the Participating Fund, give any information or make any
representations on behalf of Insurance Company or concerning Insurance
Company, the Separate Account, or the Contracts other than the
information or representations contained in a registration statement
or prospectus for the Contracts, as may be amended or supplemented
from time to time, or in published reports for the Separate Account
that are in the public domain or approved by Insurance Company for
distribution to Contractholders or Participants, or in Marketing
Materials approved by Insurance Company in accordance with
Section 9.5.
ARTICLE X
INDEMNIFICATION
10.1 Insurance Company agrees to indemnify and hold harmless each
Participating Fund, Dreyfus, each Participating Fund's investment
adviser and sub-investment adviser (if applicable), each Participating
Fund's distributor, and their respective affiliates, and each of
their directors, trustees, officers, employees, agents and each
person, if any, who controls or is associated with any of the
foregoing entities or persons within the meaning of the 1933 Act
(collectively, "Fund Indemnified Parties"), against any and all
losses, claims, damages or liabilities, joint or several (including
any investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action,
suit or proceeding or any claim asserted and any taxes, penalties or
toll charges) (collectively, "Fund Party Loss") for which any such
Fund Indemnified Party may become subject, under the 1933 Act, the
1940 Act or otherwise, insofar as such Fund Party Loss (or actions in
respect thereof) arise out of or are based upon: (a) any untrue
statement or alleged untrue statement of any material fact
(i) contained in information furnished by Insurance Company for use
in the registration statement or Marketing Materials of a
Participating Fund or (ii) with respect to the Separate Accounts or
Contracts, or the omission or the alleged omission to state therein
a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances in which they were
made, not misleading; (b) any conduct, statement or representation
(other than statements or representations contained in the Prospectus
or Marketing Materials of the Participating Fund not made in reliance
upon and in conformity with information furnished to the Participating
Fund or Dreyfus by on behalf of Insurance Company specifically for
use therein) of Insurance Company or its agents, with respect to
the sale and distribution of Contracts for which the Shares of the
Participating Fund are an underlying investment; (c) wrongful conduct
of Insurance Company or persons under its control with respect to
the sale or distribution of the Contracts or the Shares of the
Participating Fund; (d) any incorrect calculation and/or untimely
reporting by Insurance Company of net purchase or redemption orders;
(e) any material breach by Insurance Company of any representation,
warranty and/or covenant made by Insurance Company in this Agreement
or any other material breach of this Agreement by Insurance Company;
or (f) any tax liability under Section 851 of the Code arising from
purchases or redemptions by Insurance Company's General Account(s) or
the accounts of Insurance Company's affiliates; provided, however,
that with respect to clause (a) Insurance Company will not be liable
in any such case to the extent that any such Fund Party Loss arises
out of or is based upon any untrue statement or omission or alleged
omission made in such registration statement or Marketing Materials in
conformity with written information furnished to Insurance Company by
the Participating Fund specifically for use therein. This indemnity
agreement will be in addition to any liability which Insurance Company
may otherwise have.
10.2 Dreyfus agrees to indemnify and hold harmless Insurance Company and
each of its directors, officers, employees, agents and each person, if
any, who controls Insurance Company within the meaning of the 1933 Act
(collectively, "Insurance Company Indemnified Parties"), against any
losses, claims, damages or liabilities, joint or several (including
any investigative, legal and other expenses reasonably incurred in
connection with, and any amounts paid in settlement of, any action,
suit or proceeding or any claim asserted and any taxes, penalties or
toll charges) (collectively, "Insurance Company Party Loss") to which
any such Insurance Company Indemnified Party may become subject, under
the 1933 Act or otherwise, insofar as such Insurance Company
Indemnified Loss (or actions in respect thereof) arise out of or are
based upon: (a) any untrue statement or alleged untrue statement of
any material fact contained in the registration statement or Marketing
Materials of a Participating Fund, (b) any omission to state in the
registration statement or Marketing Materials of the Participating
Fund any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances in which
they were made, not misleading; or (c) any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement or Marketing Materials with respect to the Separate Account
or the Contracts and such statements were based on information
provided to Insurance Company by the Participating Fund or Dreyfus;
provided, however, that neither Dreyfus nor any Participating Fund
will be liable in any such case to the extent that any Insurance
Company Party Loss arises out of or is based upon an untrue statement
or omission or alleged omission made in such registration statement or
Marketing Materials in conformity with written information furnished
to the Participating Fund by Insurance Company specifically for use
therein. This indemnity agreement will be in addition to any
liability which Dreyfus may otherwise have.
10.3 Each Participating Fund severally shall indemnify and hold Insurance
Company harmless against any and all losses, claims, damages,
liabilities or expenses which Insurance Company may incur, suffer or
be required to pay due to the Participating Fund's (i) incorrect
calculation of the daily net asset value, dividend rate or capital
gain distribution rate; or (ii) incorrect or untimely reporting of
the daily net asset value, dividend rate or capital gain distribution
rate; provided, that the Participating Fund shall have no obligation
to indemnify and hold harmless Insurance Company if the incorrect
calculation or incorrect or untimely reporting was the result of
incorrect information furnished by Insurance Company or information
furnished untimely by Insurance Company or otherwise as a result of
or relating to a breach of this Agreement by Insurance Company. In
no event shall Dreyfus or any Participating Fund be liable for any
consequential, incidental, special or indirect damages resulting to
an Insurance Company Indemnified Party hereunder.
10.4 Promptly after receipt by a party that may be entitled to
indemnification under this Article X ("Indemnified Party") of notice
of the commencement of any action which may result in Fund Party Loss
or Insurance Company Party Loss or losses, claims, damages,
liabilities or expenses covered under Section 10.3, such Indemnified
Party will, if a claim in respect thereof is to be made against the
indemnifying party under this Article X ("Indemnifying Party"), notify
the Indemnifying Party of the commencement thereof. The omission
to so notify the Indemnifying Party will not relieve the Indemnifying
Party from any liability under this Article X, except to the extent
that the omission results in a failure of actual notice to the
Indemnifying Party and such Indemnifying Party is damaged solely as
a result of the omission to give such notice. In case any such action
is brought against any Indemnified Party, and it notified the
Indemnifying Party of the commencement thereof, the Indemnifying Party
will be entitled to participate therein and, to the extent that it may
wish, assume the defense thereof, with counsel satisfactory to such
Indemnified Party, and to the extent that the Indemnifying Party has
given notice to such effect to the Indemnified Party and is performing
its obligations under this Article X, the Indemnifying Party shall not
be liable for any legal or other expenses subsequently incurred by
such Indemnified Party in connection with the defense thereof, other
than reasonable costs of investigation. Notwithstanding the foregoing,
in any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel
shall be at the expense of such Indemnified Party unless (i) the
Indemnifying Party and the Indemnified Party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to
any such proceeding (including any impleaded parties) include both the
Indemnifying Party and the Indemnified Party and representation of
both parties by the same counsel would be inappropriate due to actual
or potential differing interests between them. The Indemnifying Party
shall not be liable for any settlement of any proceeding effected
without its written consent.
10.5 The indemnity agreements contained in this Article IX shall not
protect any indemnified party against liability to which such party
would otherwise be subject by reason of willful misfeasance, bad faith,
gross negligence or reckless disregard of the duties involved in the
conduct of such party's office, as the case may be.
10.6 A successor by law of the parties to this Agreement shall be entitled
to the benefits of the indemnification contained in this Article X.
ARTICLE XI
COMMENCEMENT AND TERMINATION
11.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions
herein.
11.2 This Agreement shall terminate without penalty:
a. as to any Participating Fund, at the option of Insurance
Company or the Participating Fund at any time from the date
hereof upon 180 days' notice, unless a shorter time is agreed
to by the respective Participating Fund and Insurance Company;
b. as to any Participating Fund, at the option of Insurance
Company, if Shares of that Participating Fund are not
reasonably available to meet the requirements of the Contracts
as determined by Insurance Company; prompt notice of election
to terminate shall be furnished by Insurance Company, such
termination to be effective ten days after receipt of notice
unless the Participating Fund makes available a sufficient
number of Shares to meet the requirements of the Contracts
within such ten-day period;
c. as to a Participating Fund, at the option of Insurance
Company, upon the institution of formal proceedings against
that Participating Fund by the Commission, FINRA, or any other
regulatory body, the expected or anticipated ruling, judgment
or outcome of which would, in Insurance Company's reasonable
judgment, materially impair that Participating Fund's ability
to meet and perform the Participating Fund's obligations and
duties hereunder; prompt notice of election to terminate shall
be furnished by Insurance Company with such termination to be
effective upon receipt of notice;
d. as to a Participating Fund, at the option of each
Participating Fund, upon the institution of formal proceedings
against Insurance Company by the Commission, FINRA or any
other regulatory body, the expected or anticipated ruling,
judgment or outcome of which would, in the Participating
Fund's reasonable judgment, materially impair Insurance
Company's ability to meet and perform Insurance Company's
obligations and duties hereunder; prompt notice of election
to terminate shall be furnished by such Participating Fund
with such termination to be effective upon receipt of notice;
e. automatically and without notice upon the termination of
Insurance Company's FINRA membership;
f. as to a Participating Fund, at the option of that
Participating Fund, if the Participating Fund shall determine,
in its sole judgment reasonably exercised in good faith, that
Insurance Company has suffered a material adverse change in
its business or financial condition or is the subject of
material adverse publicity and such material adverse change or
material adverse publicity is likely to have a material
adverse impact upon the business and operation of that
Participating Fund or Dreyfus, such Participating Fund shall
notify Insurance Company in writing of such determination and
its intent to terminate this Agreement and after, considering
the actions taken by Insurance Company and any other changes
in circumstances since the giving of such notice, such
determination of the Participating Fund shall continue to
apply on the sixtieth day following the giving of such notice,
which sixtieth day shall be the effective date of termination;
g. as to a Participating Fund, at the option of Insurance Company,
if Insurance Company shall determine, in its sole judgment
reasonably exercised in good faith that the Participating
Fund has suffered a material adverse change in its business
or financial condition or is the subject of material
adverse publicity and such material adverse change or material
adverse publicity is likely to have a material adverse impact
upon the business and operations of Insurance Company or its
Separate Account, Insurance Company shall notify the
Participating Fund in writing of such determination and its
intent to terminate this Agreement, and after considering the
actions taken by the Participating Fund and any other changes
in circumstances since the giving of such notice, such
determination of Insurance Company shall continue to apply to
the sixtieth day following the giving of such notice, which
sixtieth day shall be the effective date of termination;
h. as to a Participating Fund, upon termination of the Investment
Advisory Agreement between that Participating Fund and Dreyfus
or its successors unless Insurance Company specifically
approves the selection of a new Participating Fund investment
adviser; such Participating Fund shall promptly furnish notice
of such termination to Insurance Company;
i. as to a Participating Fund, in the event that Shares of the
Participating Fund are not registered, issued or sold in
accordance with applicable federal law, or such law precludes
the use of such Shares as the underlying investment medium of
Contracts issued or to be issued by Insurance Company;
termination shall be effective immediately as to that
Participating Fund only upon such occurrence without notice;
j. at the option of a Participating Fund upon a determination by
its Board in good faith that it is no longer advisable and in
the best interests of shareholders of that Participating Fund
to continue to operate pursuant to this Agreement;
termination shall be effective upon notice by such
Participating Fund to Insurance Company of such termination;
k. at the option of a Participating Fund, if the Contracts cease
to qualify as annuity contracts or life insurance policies,
as applicable, under the Code, or if such Participating Fund
reasonably believes that the Contracts may fail to so qualify;
l. at the option of any party to this Agreement, upon another
party's breach of any material provision of this Agreement;
m. at the option of a Participating Fund, if the Contracts are
not registered, issued or sold in accordance with applicable
federal and/or state law; or
n. upon assignment of this Agreement, unless made with the
written consent of every other non-assigning party.
Any such termination shall not affect the operation of Articles VI or
X of this Agreement. To the extent that this Article XI is
inconsistent with Article VII or this Agreement, Article VII shall
control
11.3 Notwithstanding any termination of this Agreement, each Participating
Fund may, at the option of the Participating Fund, continue to make
available additional Shares of that Participating Fund for as long as
the Participating Fund desires pursuant to the terms and conditions of
this Agreement as provided below, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred
to as "Existing Contracts"). Specifically, without limitation, if
that Participating Fund so elect to make additional Shares of the
Participating Fund available, the owners of the Existing Contracts or
Insurance Company, whichever shall have legal authority to do so,
shall be permitted to reallocate investments in that Participating
Fund, redeem investments in that Participating Fund and/or invest
in that Participating Fund upon the making of additional purchase
payments under the Existing Contracts. In the event of a termination
of this Agreement, such Participating Fund, as promptly as is
practicable under the circumstances, shall notify Insurance Company
whether that Participating Fund will continue to make Shares of that
Participating Fund available after such termination. If such Shares
of the Participating Fund continue to be made available after such
termination, the provisions of this Agreement shall remain in effect
and thereafter either of that Participating Fund or Insurance Company
may terminate the Agreement as to that Participating Fund, as so
continued pursuant to this Section 11.3, upon prior written notice
to the other party, such notice to be for a period that is reasonable
under the circumstances but, if given by the Participating Fund,
need not be for more than six months.
11.4 In the event of any termination of this Agreement in respect of a
Participating Fund in connection with which the Participating Fund has
not continued to make available additional Shares pursuant to Section
11.3, the parties agree to cooperate and give reasonable assistance
to one another in taking all necessary and appropriate steps for
the purpose of ensuring that a Separate Account owns no Shares of
the Participating Fund beyond six months from the date of termination.
Such steps may include, without limitation, substituting other
investment company shares for those of the Participating Fund.
11.5 Termination of this Agreement as to any one Participating Fund shall
not be deemed a termination as to any other Participating Fund unless
Insurance Company or such other Participating Fund, as the case
may be, terminates this Agreement as to such other Participating Fund
in accordance with this Article XI.
11.6 In the event that the Agreement is terminated, Insurance Company
agrees to work cooperatively with MBSC to effect an orderly transition
of Contractholder assets if Shares are redeemed or transferred.
ARTICLE XII
AMENDMENTS
12.1 Any other changes in the terms of this Agreement, except for the
addition or deletion of any Participating Fund or class of Shares of
a Participating Fund as specified in Exhibit B, shall be made by
agreement in writing between Insurance Company and each respective
Participating Fund.
ARTICLE XIII
NOTICE
13.1 Each notice required by this Agreement shall be given by certified
mail, return receipt requested, to the appropriate parties at the
following addresses:
Insurance Company:
Legal Counsel, SC 11
000 000xx Xxx XX, Xxx 0000
Xxxxxxxx, XX 00000
Telephone: 000-000-0000
Fax: 000-000-0000
Participating Funds: Name of Participating Fund
c/o The Dreyfus Corporation
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Counsel
Telephone: 000-000-0000
Fax: 000-000-0000
with copies to: Stroock & Stroock & Xxxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attn: Xxxxx Xxxxxxxx, Esq.
Notice shall be deemed to be given on the date of receipt by the
addressees as evidenced by the return receipt.
ARTICLE XIV
MISCELLANEOUS
14.1 If any provision of this Agreement is held or made invalid by a court
decision, statute, rule, or otherwise, the remainder of this Agreement
will not be affected thereby.
14.2 The rights, remedies, indemnities and obligations contained in this
Agreement are cumulative and are in addition to any and all rights,
remedies, indemnities and obligations, at law or in equity, to which
the parties are entitled.
14.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and
the same instrument.
14.4 This Agreement has been executed on behalf of each Participating Fund
by the undersigned officer of the Participating Fund in his or her
capacity as an officer of the Participating Fund. The obligations of
a Participating Fund under this Agreement shall only be binding upon
the assets and property of such Participating Fund and shall not
be binding upon any director, trustee, officer or shareholder of the
Participating Fund individually. It is agreed that the obligations
of the Participating Funds are several and not joint, that no
Participating Fund shall be liable for any amount owing by another
Participating Fund and that the Participating Funds have executed one
instrument for convenience only.
ARTICLE XV
LAW
15.1 This Agreement shall be construed in accordance with the internal laws
of the State of New York, without giving effect to principles of
conflict of laws.
ARTICLE XVI
FOREIGN TAX CREDITS
16.1 Each Participating Fund agrees to consult in advance with Insurance
Company concerning any decision to elect or not to pass through the
benefit of any foreign tax credits to the Participating Fund's
shareholders pursuant to Section 853 of the Code.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
duly executed and attested as of the date first above written.
FIRST SYMETRA NATIONAL LIFE INSURANCE
COMPANY OF NEW YORK
By: /s/Xxxxxx X. Xxxxxxxx
----------------------
Xxxxxx X Xxxxxxxx
Its: Executive Vice President
Attest:
EACH PARTICIPATING FUND
By: /s/Xxxxxx Xxxxxxx
-------------------
Xxxxxx Xxxxxxx
Its:VP & Assistant Secretary
Attest:
THE DREYFUS CORPORATION*
By: /s/Xxxxxxx X. Xxxxxxx
----------------------
Xxxxxxx X. Xxxxxxx
Its: Chief Operating Officer
Attest:
* With respect to Article X only.
EXHIBIT A
Name of Separate Accounts
First Symetra Separate Account S
EXHIBIT B
LIST OF PARTICIPATING FUNDS
Fund Name Share Class
Dreyfus Variable Investment Fund
Appreciation Portfolio Initial Shares
International Value Portfolio Initial Shares
Quality Bond Portfolio Initial Shares
Dreyfus Investment Portfolios
MidCap Stock Portfolio Initial Shares
Technology Growth Portfolio Initial Shares
The Dreyfus Socially Responsible Initial Shares
Growth Fund, Inc.
Dreyfus Stock Index Fund, Inc. Service Shares
