SALES AGREEMENT
Agreement dated as of ________________________, 20_______ ("Agreement"), by and
among First Symetra National Life Insurance Company of New York, a New York
insurance company ("First Symetra"), Symetra Securities, Inc., a Washington
corporation ("SSI"), (together with SSI, "Symetra"), and
______________________________________________________________________________,
a __________ corporation ("Broker-Dealer") and ________________________________
_____ _______________________________________, a ______________ corporation
("Insurance Agency").
RECITALS:
A. First Symetra pursuant to distribution agreements with SSI (the
"Distribution Agreements") has appointed SSI as the principal underwriter of
the class or classes of group and individual variable life insurance and
annuity contracts identified in Schedule 1 to this Agreement at the time that
this Agreement is executed, and such other class or classes of variable
insurance products that may be added to Schedule 1 from time to time in
accordance with Section 2(f) of this Agreement (each, a "class of Contracts";
all such classes, the "Contracts"). For the purposes of this Agreement
(including the schedules), a group life insurance or annuity "enrollment form"
shall mean the same as the individual "application," "certificate" shall mean
the same as "contract" and all other group insurance terms shall have the same
meaning as their individual insurance contract counterpart. Each class of
Contracts will be issued by First Symetra through one or more separate
accounts of First Symetra ("Separate Accounts") and each class of Contracts
will be funded by shares of certain registered investment companies (each, a
"Fund"; together, the "Funds") and/or by a fixed account option(s). First
Symetra has authorized SSI to enter into separate written agreements with
broker-dealers pursuant to which such broker-dealers would be authorized to
participate in the sale of the Contracts.
B. Broker-Dealer is a broker-dealer and Insurance Agency is a life insurance
agency. Insurance Agency is (__) an Affiliate of Broker-Dealer; Insurance
Agency is (___) the same person as Broker-Dealer; or (___) Broker-Dealer
controls Insurance Agency's securities-related activity by contract.
C. The parties to this Agreement desire that Broker-Dealer and Insurance
Agency be authorized to solicit applications for the sale of the Contracts
subject to the terms and conditions set forth herein.
NOW, THEREFORE, the parties agree as follows:
1. Additional Definitions
(a) Registration Statement - With respect to each class of Contracts, the
most recent effective registration statement(s) filed with the SEC or
the most recent effective post-effective amendment(s) thereto, including
financial statements included therein and all exhibits thereto.
(b) Prospectus - With respect to each class of Contracts, the current
prospectus for such class of Contracts.
(c ) 1933 Act - The Securities Act of 1933, as amended.
(d) 1934 Act - The Securities Exchange Act of 1934, as amended.
(e) 1940 Act - The Investment Company Act of 1940, as amended.
(f) Agent -An individual associated with Broker-Dealer and Insurance Agency
who (i) is registered with Broker-Dealer and who possesses the
requisite NASD and state securities registrations to offer and sell
the Contracts; (ii) possesses a variable product insurance agent
license; and (iii) is appointed with First Symetra.
(g) Premium - A payment made under a Contract to purchase benefits under
such Contract.
(h) Service Center - First Symetra National Life Insurance Company, X.X.
Xxx 00000, Xxxxxxx, XX 00000-0000 or such other address as may be
designated from time to time by First Symetra and provided to Insurance
Agency and Broker-Dealer.
(i) SEC - The Securities and Exchange Commission.
(j) NASD - The National Association of Securities Dealers, Inc.
(k) Affiliate - With respect to a person, any other person controlling,
controlled by, or under common control with, such person.
(l) Broker-of-Record - Generally, the person designated in First Symetra
records as the person, with respect to a Contract, who is entitled to
receive compensation payable with respect to such Contract and who is
able to contact directly the owner of such Contract. In the case of
compensation payable with respect to a Premium, the Broker-of-Record
shall be the party designated as such in the First Symetra records at
the time such Premium is accepted by First Symetra. In the case of any
payment of compensation payable with respect to Contract value, the
Broker-of-Record shall be the party designated as such in First Symetra
records in accordance with First Symetra's policies and procedures in
effect at the time any such payment is payable.
2. Authorization of Broker-Dealer and Insurance Agency
(a) Pursuant to the authority granted to it in the Distribution Agreements,
SSI hereby authorizes Broker-Dealer under the securities laws, and
First Symetra hereby authorizes Insurance Agency under the insurance
laws, each in a non-exclusive capacity, to sell the Contracts. Broker-
Dealer and Insurance Agency accept such authorization.
(b) Broker-Dealer and Insurance Agency acknowledge that no territory is
exclusively assigned hereunder, and Symetra reserves the right in its
sole discretion to establish or appoint one or more agencies in any
jurisdiction in which Insurance Agency transacts business hereunder.
(c) Insurance Agency is vested under this Agreement with power and
authority to select and recommend individuals associated with Insurance
Agency for appointment as Agents of First Symetra, and only individuals
so recommended by Insurance Agency shall become Agents, provided that
First Symetra reserves the right in its sole discretion to refuse to
appoint any proposed agent or, once appointed, to terminate the same at
any time with or without cause.
(d) Neither Broker-Dealer nor Insurance Agency shall expend or contract for
the expenditure of the funds of SSI or First Symetra. Broker-Dealer
and Insurance Agency each shall pay all expenses incurred by each of
them in the performance of this Agreement, unless otherwise
specifically provided for in this Agreement or unless Symetra shall
have agreed in advance in writing to share the cost of any such
expenses. Initial and renewal state appointment fees for Insurance
Agency and appointees of Insurance Agency as Agents of First Symetra
will be paid by First Symetra or Insurance Agency in accordance with
First Symetra's policies and procedures, which may be changed by First
Symetra in its sole discretion at any time without notice. Neither
Broker-Dealer nor Insurance Agency shall possess or exercise any
authority on behalf of First Symetra other than that expressly conferred
on Broker-Dealer or Insurance Agency by this Agreement. In particular,
and without limiting the foregoing, neither Broker-Dealer nor Insurance
Agency shall have any authority, nor shall either grant such authority
to any Agent, on behalf of First Symetra: to make, alter or discharge
any Contract or other contract entered into pursuant to a Contract;
to waive any Contract provision; to extend the time of paying any
Premiums; to endorse checks or money orders payable to First Symetra;
or to receive any monies or Premiums from applicants for or purchasers
of the Contracts (except for the sole purpose of forwarding monies or
Premiums to First Symetra).
(e) Broker-Dealer and Insurance Agency acknowledge that, to the extent
permitted by law, First Symetra has the right in its sole discretion
to reject any applications or Premiums received by it and to return or
refund to an applicant such applicant's Premium.
(f) Schedule 1 to this Agreement may be amended upon notice by First
Symetra in its sole discretion from time to time to include other
classes of variable annuity contracts or variable life insurance
contracts. The provisions of this Agreement shall be equally applicable
to each such class of Contracts unless the context otherwise requires.
Schedule 1 to this Agreement may be amended by Symetra at its sole
discretion from time to time to delete classes of variable annuity
contracts or variable life insurance contracts.
(g) Symetra acknowledges that Broker-Dealer and Insurance Agency are each
an independent contractor. Accordingly, Broker-Dealer and Insurance
Agency are not obliged or expected to give full time and energies to
the performance of their obligations hereunder, nor are Broker-Dealer
and Insurance Agency obliged or expected to represent SSI or First
Symetra exclusively. Nothing herein contained shall constitute
Broker-Dealer, Insurance Agency, the Agents or any agents or
representatives of Broker-Dealer or Insurance Agency as employees of
SSI or First Symetra in connection with the solicitation of
applications for the Contracts.
3. Licensing and Registration of Broker-Dealer, Insurance Agency and Agents
(a) Broker-Dealer represents that it is a broker-dealer registered with the
SEC under the 1934 Act, and is a member of the NASD. Broker-Dealer
must, at all times when performing its functions and fulfilling its
obligations under this Agreement, be duly registered as a broker-dealer
under the 1934 Act and in each state or other jurisdiction in which
Broker-Dealer intends to perform its functions and fulfill its
obligations hereunder, and be a member in good standing of the NASD.
(b) Insurance Agency represents that it is a licensed life insurance agent
where required to solicit applications, except that if Insurance Agency
cannot be qualified to be a licensed life insurance agent until
appointed by an insurer, Insurance Agency represents that it is
qualified to be a licensed insurance agent but for the appointment by
an insurer. Insurance Agency must, at all times when performing its
functions and fulfilling its obligations under this Agreement, be duly
licensed to sell the Contracts in each state or other jurisdiction in
which Insurance Agency intends to perform its functions and fulfill its
obligations hereunder.
(c) Broker-Dealer shall ensure that no individual shall offer or sell the
Contracts on behalf of Broker-Dealer in any state or other jurisdiction
in which the Contracts may lawfully be sold unless such individual is
an associated person of Broker-Dealer (as that term is defined in
section 3(a)(18) of the 0000 Xxx) and duly registered with the NASD and
any applicable state securities regulatory authority as a registered
person of Broker-Dealer qualified to sell the Contracts in such state or
jurisdiction.
(d) Insurance Agency shall ensure that no individual shall offer or sell
the Contracts on behalf of Insurance Agency in any state or other
jurisdiction unless such individual is duly licensed and appointed
as an agent of First Symetra, and appropriately licensed, registered or
otherwise qualified to offer and sell the Contracts to be offered and
sold by such individual under the insurance laws of such state or
jurisdiction. Insurance Agency shall furnish First Symetra with proof
of proper licensing of Agents or other proof, reasonably acceptable to
Symetra, of satisfaction by Agents of licensing requirements prior to
First Symetra appointing any such individual as an Agent of First Symetra.
(e) If Insurance Agency is an Affiliate of Broker-Dealer or if Broker-
Dealer controls Insurance Agency's securities-related activities by
contract as reflected in Recital B to this Agreement, then by engaging
in the distribution activities contemplated by the Agreement, Broker-
Dealer and Insurance Agency represent and warrant either that:
(i) Broker-Dealer and Insurance Agency:
(A) have obtained a letter from the Staff of the SEC
advising Broker-Dealer and Insurance Agency that the
Staff will not recommend enforcement action if
Insurance Agency is not registered as a broker-dealer
with the Commission; and
(B) are complying and will continue to comply with the
conditions set forth in such letter at all times while
the Agreement is in effect; or
(ii) Broker-Dealer and Insurance Agency are relying on certain no
action letters issued by the SEC with respect to the securities-
related activities of licensed insurance agencies involved in
the distribution of variable insurance products and agree that
during the term of the Agreement Broker-Dealer and Insurance
Agency shall operate in compliance with applicable provisions
of such no action letters and specifically agree that:
(A) (1) Broker-Dealer will control Insurance Agency's
securities-related activities by contract; or
(2) Insurance Agency is either wholly-owned by Broker-
Dealer or an affiliated person of Broker-Dealer or is
wholly-owned by one or more associated persons of Broker-
Dealer;
(B) Insurance Agency and its personnel will be "associated
persons" of Broker-Dealer within the meaning of Section
3(a)(18) of the 1934 Act;
(C) Insurance Agency will engage in the offer or sale of
the Contracts only through persons who are registered
persons of Broker-Dealer;
(D) Insurance Agency will not receive or handle customer
funds or securities except through Agents who are
registered persons of Broker-Dealer;
(E) Broker-Dealer will be responsible for the training,
supervision and control of registered persons engaging
in the offer or sale of the Contracts on behalf of
Insurance Agency, as required under the 1934 Act, NASD
rules and other applicable statutes or regulations, and
will also be responsible for the supervision and control
of any of its associated persons who are owners,
directors or executive officers of Insurance Agency;
(F) Broker-Dealer will comply with all applicable
requirements of the 1934 Act and the NASD, including the
requirement to maintain and preserve books and records
under Section 17(a) of the 1934 Act and the rules
thereunder; and
(G) Commissions and fees relating to the Contracts will be
reflected in the quarterly FOCUS reports and the fee
assessment reports filed by Broker-Dealer with the NASD.
Broker-Dealer and Insurance Agency shall notify Symetra immediately in writing
if Broker-Dealer and/or Insurance Agency fail to comply with any of the
applicable provisions set forth above.
4. Broker-Dealer and Insurance Agency Compliance
(a) Insurance Agency shall train, supervise, and be solely responsible for
the conduct of the Agents in their solicitation activities in connection
with the Contracts, and shall supervise Agents' compliance with
applicable rules and regulations of any insurance regulatory agencies
that have jurisdiction over variable contracts activities, as well as
the rules and procedures of First Symetra pertaining to the
solicitation, sale and submission of applications for the Contracts,
as provided in writing to Insurance Agency by First Symetra from time
to time. Broker-Dealer shall be responsible for background
investigations of the Agents to determine their qualifications, good
character, and moral fitness to sell the Contracts.
(b) Broker-Dealer shall be responsible for securities training, supervision
and control of the Agents in connection with their solicitation
activities with respect to the Contracts and shall supervise Agents'
strict compliance with applicable federal and state securities law and
NASD requirements in connection with such solicitation activities.
(c) Broker-Dealer and Insurance Agency hereby represent and warrant that
they are duly in compliance with all applicable federal and state
securities laws and regulations, including without limitation state
insurance laws and regulations imposing insurance licensing requirements.
(d) Broker-Dealer and Insurance Agency each shall carry out their respective
sales and administrative obligations under this Agreement in continued
compliance with the rules and procedures of First Symetra as provided
to them in writing from time to time, and with federal and state laws
and regulations, including those governing securities and/or insurance
related activities or transactions, as applicable.
(e) Broker-Dealer, Insurance Agency and Agents shall not offer or attempt
to offer the Contracts, nor solicit applications for the Contracts,
nor deliver Contracts, in any state or jurisdiction in which the
Contracts may not be lawfully sold or offered for sale. For purposes
of determining where the Contracts may be offered and applications
solicited, Broker-Dealer and Insurance Agency may rely on written
notification, as revised from time to time, that they receive from
First Symetra.
(f) In addition to any other provisions of this Agreement applicable to
Agents, Broker-Dealer and Insurance Agency shall ensure that each Agent
shall comply with a standard of conduct applicable to licensed insurance
agents including, but not limited to, the following:
(i) An Agent shall recommend the purchase of a Contract to an
applicant only if he or she has reasonable grounds to believe
that such purchase is suitable for the applicant in accordance
with, among other things, applicable regulations of any state
insurance regulatory authority, the SEC and the NASD.
(ii) An Agent shall accept initial Premiums in the form of a check
or money order only if made payable to "First Symetra National
Life Insurance Company of New York" and signed by the applicant
for the Contract. An Agent shall not accept third-party checks
or cash for Premiums.
(iii) All checks and money orders and applications for the Contracts
received by an Agent shall be remitted promptly, and in any
event not later than 2 business days after receipt, to the
Service Center.
(iv) An Agent shall not encourage a prospective purchaser to surrender
or exchange an insurance policy or contract in order to purchase
a Contract, or conversely, to surrender or exchange a Contract
in order to purchase another insurance policy or contract unless
proper state required replacement procedures are adhered to.
(g) Upon issuance of a Contract, First Symetra shall, in accordance with its
procedures with respect to each class of Contracts, either deliver such
Contract directly to the purchaser or deliver such Contract to
Insurance Agency or the Agent for delivery to the purchaser. Upon
issuance of a Contract by First Symetra and delivery of such Contract
to Insurance Agency or the Agent, Insurance Agency shall promptly
deliver such Contract, or ensure prompt delivery by Agent of such
Contract, to its purchaser. Insurance Agency or the Agent shall return
promptly to First Symetra all receipts for delivered Contracts, all
undelivered Contracts and all receipts for cancellation, in accordance
with the instructions provided by First Symetra.
(h) In the event that Premiums are sent to Insurance Agency or Broker-
Dealer, rather than to the Service Center, Insurance Agency and Broker-
Dealer shall promptly (and in any event, not later than 2 business
days) remit such Premiums to First Symetra at the Service Center.
Insurance Agency and Broker-Dealer acknowledge that if any Premium is
held at any time by either of them, such Premium shall be held on
behalf of the customer, and Insurance Agency or Broker-Dealer shall
segregate such Premium from their own funds and promptly (and in any
event, within 2 business days) remit such Premium to First Symetra.
All such Premiums, whether by check, money order or wire, shall at all
times be the property of First Symetra.
(i) Neither Broker-Dealer, Insurance Agency nor any Agent, in connection
with the offer or sale of the Contracts, shall give any information or
make any representations or statements, written or oral, concerning the
Contracts, a Fund or Fund Shares, other than information or
representations which are in accordance with the Prospectuses,
statements of additional information and Registration Statements for
the Contracts, or a Fund, or in reports or proxy statements therefore,
or in promotional, sales or advertising material or other information
supplied and approved in writing by First Symetra.
(j) Neither Broker-Dealer, Insurance Agency nor any Agent shall use or
implement any promotional, sales or advertising material relating to
the Contracts without the prior written approval of First Symetra.
(k) Broker-Dealer and Insurance Agency shall be solely responsible under
applicable tax laws for the reporting of compensation paid to Agents.
(l) Insurance Agency represents that it maintains and shall maintain such
books and records concerning the activities of the Agents as may be
required by the appropriate insurance regulatory agencies that have
jurisdiction and that may be reasonably required by Symetra to
adequately reflect the Contracts business processed through Insurance
Agency. Insurance Agency shall make such books and records available to
Symetra at any reasonable time upon written request by First Symetra.
(m) Broker-Dealer represents that it maintains and shall maintain
appropriate books and records concerning the activities of the Agents
as are required by the SEC, the NASD and other agencies having
jurisdiction and that may be reasonably required by First Symetra to
reflect adequately the Contracts business processed through Insurance
Agency. Broker-Dealer shall make such books and records available to
First Symetra at any reasonable time upon written request by First
Symetra.
(n) Each party shall promptly furnish to any other party, or its authorized
agent any reports and information that the requesting party may
reasonably request for the purpose of meeting such party's reporting
and recordkeeping requirements under the insurance laws of any state,
under any applicable federal and state securities laws, rules and
regulations, and the rules of the NASD.
5. Sales Materials
(a) During the term of this Agreement, First Symetra will provide Broker-
Dealer, Insurance Agency, and Agents without charge, with as many copies
of current Prospectuses, current Fund prospectus(es), and applications
for the Contracts, as Broker-Dealer, Insurance Agency or Agents may
reasonably request. Upon termination of this Agreement, Broker-Dealer
and Insurance Agency will promptly return to First Symetra any
Prospectuses, applications, Fund prospectuses, and other materials and
supplies furnished by SSI or First Symetra to Broker-Dealer or Insurance
Agency or to the Agents.
(b) During the term of this Agreement, SSI will be responsible for
providing and approving all promotional, sales and advertising material
to be used by Broker-Dealer and Insurance Agency. SSI will file such
materials or will cause such materials to be filed with the SEC, the
NASD, and/or with any state securities regulatory authorities, as appropriate.
6. Commissions and Expenses
(a) During the term of this Agreement, First Symetra, on behalf of SSI shall
pay to Insurance Agency as compensation for Contracts for which it is
the Broker-of-Record, the commissions and fees set forth in Schedules
2 and/or 3 to this Agreement, as such Schedule may be amended or
modified at any time, in any manner by First Symetra, and subject to
other provisions of this Agreement. Any amendment to Schedules 2
and/or 3 will be applicable to any Contract for which an application or
premium is received by the Service Center on or after the effective
date of such amendment or which is in effect after the effective date
of such amendment. Compensation with respect to any Contract shall be
paid to Insurance Agency only for so long as Insurance Agency is the
Broker-of-Record for such Contract. When the balance due to Insurance
Agency is less than a reasonable minimum established by First Symetra,
payments to Insurance Agency may be paid only when such minimum is
reached.
(b) Broker-Dealer and Insurance Agency recognize that all compensation
payable to Insurance Agency hereunder will be disbursed by First Symetra
after Premiums are received and accepted by First Symetra and that no
compensation of any kind other than that described in this Agreement is
payable to Insurance Agency.
(c) Chargebacks: The commissions payable pursuant to Schedules 2 and/or
3 may be adjusted, and any commission already paid, returned to First
Symetra by Insurance Agency on request as provided therein. If
repayment and/or payment under any of the provisions of Schedules 2
and/or 3 is not promptly made following receipt of a notice of request
for repayment, Insurance Agency authorizes First Symetra, at its sole
option and to the extent permitted by applicable law, to deduct any
such unrepaid compensation or unpaid payment from any future
compensation owed by First Symetra or any affiliate of First Symetra
to Insurance Agency as it becomes due; provided, however, that this
option on the part of First Symetra shall not prevent it from pursuing
any other means or remedies available to it to recover such compensation
and/or payment.
(d) Broker-Dealer or Insurance Agency shall immediately remit to First
Symetra any premium retained in error by Broker-Dealer or Insurance
Agency.
7. Interest in Agreement. Agents shall have no interest in this Agreement
or right to any commissions to be paid by First Symetra to Insurance
Agency. Insurance Agency shall be solely responsible for the payment
of any commission or consideration of any kind to Agents. Insurance
Agency shall have no right to withhold or deduct any commission from
any Premiums in respect of the Contracts which it may collect.
Insurance Agency shall have no interest in any compensation paid by
First Symetra to SSI, now or hereafter, in connection with the sale
of any Contracts hereunder.
8. Term of Agreement
(a) This Agreement relates solely to the classes of Contracts identified
in Schedule 1 to this Agreement.
(b) This Agreement:
(i) may be terminated by any party hereto by giving thirty (30)
days' prior written notice to the other parties; or
(ii) shall automatically terminate upon termination of one or more of
the Distribution Agreements referenced in Recital A of this
Agreement; or
(iii) if Broker-Dealer or Insurance Agency, on the one side, or SSI or
First Symetra, on the other side, should default in a material
respect, in their respective obligations under this Agreement,
or breach in a material respect, any of their respective
representations or warranties made in this Agreement, any non-
defaulting or non-breaching party may, at their option, cancel
and terminate this Agreement without notice.
(c) Upon termination of this Agreement, all authorizations, rights, and
obligations hereunder shall cease except:
(i) the obligation to settle accounts hereunder, including the
payment of compensation with respect to Contracts in effect
at the time of termination or issued pursuant to applications
received by First Symetra prior to termination or Premiums
received on such Contracts subsequent to termination of this
Agreement provided, however, that if this Agreement is
terminated by First Symetra or SSI pursuant to Section
8(b)(iii), First Symetra's obligations under this subparagraph
(i) shall cease upon such termination;
(ii) the provisions with respect to indemnification set forth in
Section 13 hereof;
(iii) the provisions of Sections 4(l) and 4(m) hereof that require
Insurance Agency and Broker-Dealer to maintain certain books
and records;
(iv) the confidentiality provisions contained in Section 11 hereof;
(v) the audit provisions contained in Section 21; and
(vi) the provisions with respect to complaints and investigations
set forth in Section 9 hereof.
9. Complaints and Investigations
(a) SSI, First Symetra, Broker-Dealer and Insurance Agency each shall
cooperate fully in any insurance regulatory investigation or proceeding
or judicial proceeding arising in connection with the Contracts marketed
under this Agreement. In addition, SSI, First Symetra, Broker-Dealer
and Insurance Agency shall cooperate fully in any securities regulatory
investigation or proceeding or judicial proceeding with respect to SSI,
Broker-Dealer, their Affiliates and their agents, to the extent that
such investigation or proceeding is in connection with the Contracts
marketed under this Agreement. Without limiting the foregoing, each
party shall promptly notify the other parties of any written customer
complaint or notice of any regulatory investigation or proceeding or
judicial proceeding received by such party with respect to any other
party, any Agent, or in connection with any Contract marketed under
this Agreement or any activity in connection with any such Contract.
(b) In the case of a customer complaint, SSI, First Symetra, Broker-Dealer
and Insurance Agency will cooperate in investigating such complaint and
any response by Broker-Dealer or Insurance Agency to such complaint
will be sent to First Symetra for approval not less than five business
days prior to its being sent to the customer or regulatory authority,
except that if a more prompt response is required, the proposed
response shall be communicated by telephone or facsimile.
10. Assignment. This Agreement shall be nonassignable by the parties
hereto unless an authorized officer of the non-assigning parties
agrees to the proposed assignment in writing prior to its effective
date.
11. Confidentiality/Security of Information. Each party shall maintain the
confidentiality of any other party's customer list or any other
proprietary information that it may acquire in the performance of this
Agreement. Company may furnish Broker-Dealer and/or Insurance Agency
with personal customer information that is non-public and confidential
in nature. Except as required in order to perform Broker-Dealer and/or
Insurance Agency's obligations and duties under this Agreement, to
perform joint marketing efforts with Company, or as permitted by law,
Broker-Dealer and/or Insurance Agency shall not use or disclose such
non-public or confidential information received from Company.
Broker-Dealer and Insurance Agency will maintain and enforce safety
and physical security procedures with respect to its access and
maintenance of personal customer information that provide reasonably
appropriate technical and organizational safeguards against accidental
or unlawful destruction, loss, alteration or unauthorized disclosure or
access. Broker-Dealer and Insurance Agency will notify Company of
any breach of security and use diligent efforts to remedy any breach
of security or unauthorized access in a timely manner. Broker-Dealer
and Insurance Agency agree to cooperate with the Company's efforts to
remedy any breach of security or unauthorized access.
12. Modification of Agreement. This Agreement supersedes all prior
agreements, either oral or written, between the parties relating to the
Contracts or among Broker-Dealer and/or Insurance Agency, First Symetra
and Symetra Investment Services, Inc., and, except for any amendment
of Schedule 1 pursuant to the terms of Section 2 hereof or Schedules
2 and/or 3 pursuant to the terms of Section 6 hereof, may not be
modified in any way unless by written agreement signed by all of the
parties.
13. Indemnification
(a) Broker-Dealer and Insurance Agency, jointly and severally, shall
indemnify and hold harmless First Symetra and each person who controls
or is associated with First Symetra within the meaning of such terms
under the federal securities laws, and any officer, director, employee
or agent of the foregoing, 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), to which they or any of them may become subject under
any statute or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities arise out of or are based upon:
(i) violation(s) by Broker-Dealer, Insurance Agency, or an Agent of
federal or state securities law or regulation(s), insurance
law or regulation(s), or any rule or requirement of the NASD;
(ii) any unauthorized use of sales or advertising material, any
oral or written misrepresentations, or any unlawful sales
practices concerning the Contracts, by Broker-Dealer,
Insurance Agency or an Agent;
(iii) claims by the Agents or other agents or representatives of
Insurance Agency or Broker-Dealer for commissions or other
compensation or remuneration of any type;
(iv) any action or inaction by a clearing broker through whom Broker-
Dealer or Insurance Agency processes any transaction pursuant
to this Agreement;
(v) any failure on the part of Broker-Dealer, Insurance Agency, or
an Agent to submit Premiums or applications to First Symetra,
or to submit the correct amount of a Premium, on a timely basis
and in accordance with Section 4 of this Agreement; or
(vi) a breach by Broker-Dealer or Insurance Agency of any provision
of this Agreement.
This indemnification will be in addition to any liability which Broker-Dealer
and Insurance Agency may otherwise have.
(b) First Symetra shall indemnify and hold harmless Broker-Dealer and
Insurance Agency and each person who controls or is associated with
Broker-Dealer or Insurance Agency within the meaning of such terms
under the federal securities laws, and any officer, director,
employee or agent of the foregoing, 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), to which they or any of
them may become subject under any statute or regulation, at common
law or otherwise, insofar as such losses, claims, damages or
liabilities arise out of or are based upon:
(i) any breach by SSI or First Symetra of any provision of this
Agreement;
(ii) any untrue statement of a material fact contained in the
Registration Statement or Prospectus relating to any Contract;
(iii) the omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not
misleading;
(iv) violation(s) by First Symetra of federal or state securities
law or regulation(s), insurance law or regulation(s), or any
rule or requirement of the NASD; or
(v) any breach of a fiduciary duty owed by First Symetra to a
contractholder with respect to a Contract.
This indemnification will be in addition to any liability which First Symetra
may otherwise have.
(c) After receipt by a party entitled to indemnification ("indemnified
party") under this Section 13 of notice of the commencement of any
action, if a claim in respect thereof is to be made against any person
obligated to provide indemnification under this Section 13
("indemnifying party"), such indemnified party will notify the
indemnifying party in writing of the commencement thereof as soon as
practicable thereafter, provided that the omission to so notify the
indemnifying party will not relieve it from any liability under this
Section 13, 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 failure to
give such notice. The indemnifying party, upon the request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the
fees and disbursements of such counsel related to such proceeding. 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, but if such proceeding is settled with
such consent or if final judgment is entered in such proceeding for
the plaintiff, the indemnifying party shall indemnify the indemnified
party from and against any loss or liability by reason of such
settlement or judgment.
14. 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 a 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.
Notices. All notices hereunder are to be made in writing and shall be given:
if to SSI, to:
Symetra Securities, Inc.
Attention: Xxxxx X. Xxxxxxxx, President
000 000xx Xxxxxx XX Xxx 0000
Xxxxxxxx, XX 00000-0000
if to First Symetra National Life Insurance Company of New York, to:
First Symetra National Life Insurance Company of New York
Attention: Xxxxx Xxxxxxxxxxxx, Vice President
First Symetra National Stat Number
000 Xxxxxxx Xxxxxx/0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
if to Broker-Dealer, to:
___________________________________
___________________________________
___________________________________
___________________________________
if to Insurance Agency, to:
___________________________________
___________________________________
___________________________________
___________________________________
or such other address as such party may hereafter specify in writing.
Each such notice to a party shall be either hand delivered or
transmitted by registered or certified United States mail with return
receipt requested, and shall be effective upon delivery.
16. Interpretation, Jurisdiction, Etc. 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 the subject matter hereof.
No prior writings by or between the parties hereto with respect to the subject
matter hereof shall be used by a 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 Washington without giving effect to principles of conflict of laws.
17. Arbitration. Any controversy or claim arising out of or relating to this
Agreement, or the breach hereof, shall be settled by arbitration in a forum
selected by First Symetra in accordance with the Commercial Arbitration Rules
of the American Arbitration Association, and judgment upon the award rendered
by the arbitrator(s) may be entered in any court having jurisdiction thereof.
18. Headings. The headings in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
19. Counterparts. This Agreement may be executed in two or more counterparts,
each of which taken together shall constitute one and the same instrument.
20. 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.
21. Audit of Records. To the extent not otherwise provided herein, each party
hereto (the "Requesting Party") shall have the right at its expense, upon
reasonable notice to any other party hereto (the "Other Party"), during regular
business hours, to audit all the records and practices of the Other Party
relating to the business contemplated hereunder in order to determine whether
such Other Party is complying with the terms of this Agreement, including the
payment of commissions and fees. The Requesting Party shall have the right to
copy any of such records at its expense. At its option, such audit may be
conducted by the Requesting Party's own personnel or by a qualified independent
auditor selected by it. The Requesting Party shall make reasonable efforts to
conduct each such audit in a manner that avoids any material disruption of the
Other Party's business.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
Symetra Securities, Inc. Broker-Dealer
By: By:
Name: Name:
Title: Title:
First Symetra National Life Insurance Company Insurance Agency
Of New York
By: By:
Name: Name:
Title: Title:
SCHEDULE 1
Contracts Subject to this Agreement
First Symetra National Life INSURANCE COMPANY
Variable Annuity Contracts (Schedule 2)
First Symetra Focus