DISTRIBUTION AGREEMENT
BETWEEN
FIRST SECURITY BENEFIT LIFE INSURANCE
AND ANNUITY COMPANY OF NEW YORK
AND
X. XXXX PRICE INVESTMENT SERVICES, INC.
THIS DISTRIBUTION AGREEMENT, made as of the 11th day of October,
1995, by and between FIRST SECURITY BENEFIT LIFE INSURANCE AND ANNUITY COMPANY
OF NEW YORK ("Insurer"), a life insurance company organized under the laws of
the State of New York, for itself and on behalf of the X. Xxxx Price Variable
Annuity Account of First Security Benefit Life Insurance and Annuity Company of
New York (the "Separate Account"), a separate account established and maintained
by Insurer under the laws of the State of New York, and X. XXXX PRICE INVESTMENT
SERVICES, INC., a corporation organized and existing under the laws of the State
of Maryland ("Underwriter").
WITNESSETH:
WHEREAS, the Separate Account has been established by Insurer to
support a certain class of variable annuity contracts issued by Insurer;
WHEREAS, the Separate Account has been registered as a unit
investment trust under the federal Investment Company Act of 1940, as amended
("ICA-40");
WHEREAS, the Separate Account is sub-divided into various
subaccounts (the "subaccounts");
WHEREAS, certain companies registered as open-end management
investment companies under ICA-40 will serve as the underlying investment
vehicles for the Separate Account;
WHEREAS, such investment companies are authorized to issue shares
of capital stock ("Shares") in separate series, with each such series
representing the interests in a separate portfolio of securities and other
assets;
WHEREAS, each subaccount will purchase Shares of a corresponding
investment company;
WHEREAS, Underwriter is registered as a broker-dealer under the
Securities Exchange Act of 1934, as amended, ("SEA-34") and is a member of the
National Association of Securities Dealers, Inc. ("NASD");
WHEREAS, Underwriter, together with X. Xxxx Price Insurance
Agency, Inc. (the "Agency"), an insurance agency that is affiliated with
Underwriter, desire to distribute the variable annuity contracts supported by
the Separate Account and offered by Insurer; and
WHEREAS, Insurer desires to issue such variable annuity contracts
described more fully below to the public through Underwriter acting as the
principal underwriter and the Agency acting as the insurance agency for such
contracts;
NOW, THEREFORE, in consideration of the premises and the mutual
promises hereinafter set forth, the parties hereto agree as follows:
1. ADDITIONAL DEFINITIONS
(a) AFFILIATE -- With respect to a person, any other person
controlling, controlled by, or under common control with, such
person.
(b) APPLICATION -- An application for a Contract and any other forms
required to be completed before a Contract is issued.
(c) CONTRACTS -- The class or classes of variable annuity contracts
set forth on Schedule 1 to this Agreement as in effect at the
Effective Date, and such other classes of variable insurance
products that may be added to Schedule 1 from time to time in
accordance with Section 18 of this Agreement, and including any
riders to such Contracts and any other contracts offered in
connection therewith. For purposes of Sections 3 and 14 of this
Agreement, Contracts shall include Premiums for the Contracts.
(d) DISTRIBUTOR -- A person registered as a broker-dealer and
licensed as a life insurance agent or affiliated with a person so
licensed, who in the future will be authorized to distribute the
Contracts under arrangements that the parties may subsequently
agree to as described in Section 2.A. of this Agreement.
(e) EFFECTIVE DATE-- The date as of which this Agreement is executed.
(f) FUND -- An investment company established and/or distributed by
Underwriter or an Affiliate, specified on Schedule 2 to this
Agreement as in effect at the Effective Date, and such other
investment companies that may be added to Schedule 2 from time to
time in accordance with Section 18 of this Agreement.
(g) PREMIUM -- A payment made under a Contract by an applicant or
purchaser to purchase benefits under the Contract.
(h) PROSPECTUS -- The prospectus and statement of additional
information, if any, included within a Registration Statement,
except that, if the most recently filed prospectus and statement
of additional information filed pursuant to Rule 497 under SA-33
subsequent to the date on which a Registration Statement became
effective differs from the prospectus and statement of additional
information included within such Registration Statement at the
time it became effective, the term "Prospectus" shall refer to
the most recently filed prospectus and statement of additional
information filed under Rule 497 under SA-33, from and after the
date on which they each shall have been filed. For purposes of
Section 14 of this Agreement, the term "any Prospectus" means any
document which is or at any time was a Prospectus within the
meaning of this definition.
(i) REGISTRATION STATEMENT -- At any time that this Agreement is in
effect, each currently effective registration statement, or
currently effective post-effective amendment thereto, relating to
the Contracts, including financial statements included in, and
all exhibits to, such registration statement or post-effective
amendment. For purposes of Section 14 of this Agreement, the term
"Registration Statement" means any document which is or at any
time was a Registration Statement within the meaning of this
definition.
(j) REGULATIONS -- The rules and regulations promulgated by the SEC
under SA-33, SEA-34 and ICA-40.
(k) REPRESENTATIVE -- When used with reference to Underwriter or a
Distributor, an individual who is an associated person, as that
term is defined in SEA-34, thereof.
(l) SA-33 -- The Securities Act of 1933, as amended.
(m) SEC -- The Securities and Exchange Commission.
2. SALE OF CONTRACTS
(A) PRINCIPAL UNDERWRITER
Insurer, on its behalf and on behalf of the Separate Account,
authorizes Underwriter, on an exclusive basis, and Underwriter
accepts such authority, to be the distributor and principal
underwriter of the Contracts in the State of New York.
Underwriter will use all reasonable efforts to distribute the
Contracts, consistent with its other business, market and
regulatory conditions, and any other restrictions that may become
applicable to its activities. As exclusive distributor and
principal underwriter, Underwriter shall have sole authority to
solicit Applications and Premiums directly from customers and
prospective customers located in the State of New York.
Underwriter reserves the right to authorize third parties as
Distributors to engage in distribution activities involving the
solicitation of Applications and Premiums directly from customers
and prospective customers, in each case as Underwriter may in its
sole discretion so provide or limit, but in all such cases,
subject to such general terms and conditions regarding
arrangements with Distributors as the parties hereto may
subsequently agree upon in writing, provided that Insurer
reserves the right, which shall not be exercised unreasonably, to
require that Underwriter not enter into a sales agreement with a
proposed Distributor. Insurer shall appoint in the State of New
York such Distributors or Distributor Representatives, provided
that Insurer reserves the right, which right shall not be
exercised unreasonably, to refuse to appoint as agent any
Distributor or Distributor Representative, if any, or, once
appointed, to terminate the same at any time with or without
cause. Underwriter shall be an independent contractor and neither
Underwriter, nor any of its officers, directors, employees, or
agents is or shall be an employee of Insurer in the performance
of Underwriter's duties hereunder. Underwriter is not hereby
obligated to register or maintain its registration as a broker or
dealer under the State securities laws of New York if, in the
discretion of Underwriter, such registration is not practical,
necessary for its duties under this Agreement, or feasible, nor
does it restrict Underwriter from entering into distribution
arrangements with other issuers or investment companies, except
as otherwise agreed to in writing by the parties.
(b) INSURANCE AGENCY
It is understood that, pursuant to an insurance agency agreement,
Insurer will appoint the Agency as its insurance agent for the
sale of the Contracts. Underwriter agrees that no Underwriter
Representative shall engage in any solicitation activities on
behalf of Underwriter unless such Representative is associated
with Agency and subject to the supervision of Agency respecting
compliance with New York State insurance law.
(c) NO ALTERATION, DISCHARGE, ETC., OF CONTRACTS
Underwriter shall not have authority, and shall not grant
authority to Underwriter Representatives, Distributors or
Distributor Representatives, on behalf of Insurer: to make,
alter, waive, change or discharge any Contract or other contract
entered into pursuant to a Contract; to waive any Contract
forfeiture provision; to extend the time of paying any Premium;
to endorse checks or money orders payable to Insurer, or to
receive any monies or Premiums (except for the sole purpose of
forwarding monies or Premiums to Insurer). Underwriter shall not
expend, nor contract for the expenditure of, the funds of
Insurer. Underwriter shall not possess or exercise any authority
on behalf of Insurer other than that expressly conferred on
Underwriter by this Agreement. To the extent that Underwriter
receives a check payable to "X. Xxxx Price," Underwriter, or an
affiliate thereof, and all or part of such check represents a
Premium, such check shall be processed in accordance with
mutually agreed upon procedures.
(d) OPINION OF INSURER'S COUNSEL
The obligations of Underwriter under this Agreement are subject
to the accuracy of the representations and warranties of Insurer
contained in this Agreement, to the performance by Insurer of its
obligations hereunder, and to the condition that (i) prior to the
time that Underwriter begins offering the Contracts, Underwriter
shall have received an opinion of the general counsel or an
associate general counsel of Insurer, such opinion to be
substantially to the effect set forth in Exhibit A hereto; and
(ii) each time, during the period in which Underwriter is
offering the Contracts, that an amendment to a Registration
Statement becomes effective under Rule 485(a) under SA-33,
Underwriter shall have received an opinion from the general
counsel or associate general counsel to Insurer, that is
reasonably acceptable to Underwriter, such opinion to be
substantially to the effect set forth in Exhibit A hereto.
3. SOLICITATION ACTIVITIES, APPLICATIONS AND PREMIUMS
Underwriter agrees that its solicitation activities with respect to the
Contracts shall be subject to applicable laws and regulations,
procedures provided by Insurer, and the rules set forth herein:
(a) Underwriter shall use Applications and other materials approved
by Insurer for use in the solicitation activities with respect to
the Contracts. Insurer shall notify Underwriter and the Agency in
writing if the State of New York requires delivery of a statement
of additional information for the Contracts with a prospectus to
a prospective purchaser.
(b) All Premiums paid by check or money order that are collected by
Underwriter or any Underwriter Representative shall be remitted
in full promptly, and in any event not later than two business
days (except to the extent of any commissions deducted from
Premiums in accordance with an insurance agency agreement),
together with any Applications, forms and any other required
documentation, to Insurer, X.X. Xxx 0000, Xxxxxx, Xxxxxx
00000-0000. Checks or money orders in payment of Premiums shall
be drawn to the order of "First Security Benefit Life Insurance
and Annuity Company." Premiums may be transmitted by wire order
from Underwriter or the Agency to Insurer in accordance with the
procedures reasonably agreed upon by the parties. If any Premium
is held at any time by Underwriter, Underwriter shall hold such
Premium in a fiduciary capacity and such Premium shall be
remitted in full promptly, and in any event not later than two
business days, to Insurer. All such Premiums, whether by check,
money order or wire, shall be the property of Insurer.
(c) Underwriter acknowledges that Insurer shall have the right to
reject, in whole or in part, any Application, but only for
reasonable cause and only after giving prior notice to
Underwriter. In the event an Application is rejected, any Premium
submitted therewith shall be returned by Insurer to the
applicant. Insurer shall promptly notify Underwriter and, if
applicable, the Distributor who submitted the Application, of
such action. In the event that a purchaser exercises his or her
free look right under their Contract, any amount to be refunded
as provided in such Contract shall be so refunded to the
purchaser by Insurer. Insurer shall notify Underwriter and, if
applicable, the Distributor who solicited the Contract, of such
action.
(d) Underwriter intends that no recommendations will be made to
prospects for the Contracts. To the extent that Underwriter or
Underwriter Representatives make recommendations, or to the
extent required by applicable securities laws, Underwriter and
Underwriter Representatives will comply with Section 2 of Article
III of the NASD's Rules of Fair Practice.
(e) During the term of this Agreement, neither Underwriter nor any
Underwriter Representative shall intentionally encourage a
Contract owner to exchange his or her Contract for any other
insurance contract except (i) with Insurer's consent or (ii) to
comply with applicable laws, regulations or rules, including but
not limited to the NASD Rules of Fair Practice.
(f) All solicitation and sales activities engaged in by Underwriter
and Underwriter Representatives in regard to the Contracts shall
be in compliance with all applicable federal and New York State
securities laws and regulations, as well as all applicable New
York State insurance laws and regulations. No Underwriter
Representative shall solicit the sale of a Contract unless at the
time of such solicitation such individual is:
(1) Properly licensed by the NASD and New York State insurance
and securities regulatory authorities; and
(2) Appointed as an insurance agent of Insurer, except as may
be otherwise agreed to by Insurer.
(g) Neither Underwriter nor any Underwriter Representative shall give
any written information or make any written or oral
representation in regard to a class of Contracts in connection
with the offer or sale of such class of Contracts that is
inconsistent with the then-currently effective Prospectus for
such class of Contracts, or in the then-currently effective
prospectus or statement of additional information for a Fund, or
in current advertising materials for such class of Contracts
which have been authorized by Insurer.
(h) Neither Underwriter nor any Underwriter Representative shall
offer, attempt to offer, or solicit Applications for the
Contracts or deliver the Contracts, in any State other than New
York.
4. ADMINISTRATION
(a) Insurer shall administer the Contracts in accordance with
their terms and applicable laws and regulations, such
administration to be performed in all respects at a level
commensurate with those standards prevailing in the variable
insurance industry. Neither Insurer nor its officers, directors,
employees or agents (which, for these purposes shall not include
Underwriter Representatives or Distributor Representatives) shall
give any written information or make any written or oral
representation in regard to a class of Contracts in connection
with the offer or sale of such class of Contracts that is
inconsistent with the then currently effective Prospectus for
such class of Contracts, or the then currently effective
prospectus or statement of additional information for a Fund, or
in current advertising materials for such class of Contracts
which have been authorized by Underwriter.
(b) Insurer, as agent for Underwriter, shall confirm to each
applicant for and purchaser of a Contract in accordance with Rule
10b-10 under SEA-34 acceptance of premiums and such other
transactions as are required to be confirmed by Rule 10b-10 or
administrative interpretations thereunder, or any NASD
requirements. Insurer shall not be separately compensated for
these services.
(c) Insurer shall maintain and preserve such books and records with
respect to the Contracts in conformity with the requirements of
Rules 17a-3 and 17a-4 under SEA-34 including, to the extent such
requirements apply, all books and records with respect to
confirmations provided under Rule 10b-10. Insurer shall maintain
all such books and records, which shall be considered the joint
property of Insurer and Underwriter, and Insurer acknowledges
that such books and records are at all times subject to
inspection by the SEC and the NASD in accordance with Section
17(a) of SEA-34 and shall provide copies thereof upon
Underwriter's request. Insurer shall not be separately
compensated for these services.
(d) Insurer shall not sub-contract with another person other than
an affiliate of Insurer to perform any of the functions
contemplated by this Section or maintain any information, books
and records contemplated by this Agreement without first
obtaining such person's undertaking, in writing, to comply with
the provisions of this Agreement to keep confidential all
proprietary information obtained by such person, and to
acknowledge that such information, books and records are at all
times subject to inspection by the SEC, NASD or any state
regulatory body, administrative agency or any other governmental
instrumentality, and further, without obtaining Underwriter's
prior written consent. In addition, such person shall be
required, upon the request of Underwriter, and at the expense of
the Insurer, to furnish such information, books and records to
Underwriter.
5. MARKETING
Underwriter shall have responsibility for and control over the marketing
name, marketing arrangements, marketing materials and marketing
practices, respecting the Contracts and, subject to the effectiveness of
the Registration Statement respecting the Contracts and approval of the
Contracts in the State of New York, the timing and commencement of the
offering of the Contracts. Underwriter shall be responsible for the
design and preparation of all promotional, sales and advertising
material relating to the Contracts. Insurer may propose any additional
or alternative marketing arrangements for the Contracts, including any
proposed marketing name, arrangements, materials and practices, which
shall be subject to Underwriter's prior review and approval. No
promotional, sales or advertising material may be used by any party
without the approval of the other party. Prior to any use with members
of the public, the following procedures shall be observed:
(a) Each party shall provide to the other party copies of all
promotional, sales and advertising material developed by such
party, if any, for such other party's review and written
approval, and each party shall be given a reasonable amount of
time to complete its review.
(b) Each party shall respond on a prompt and timely basis in
approving any such material and shall act reasonably in
connection therewith.
(c) Insurer shall be responsible for filing all promotional, sales or
advertising material, whether developed by Underwriter or
Insurer, as required, with any state insurance regulatory
authorities.
(d) Underwriter shall be responsible for filing all promotional,
sales or advertising material, whether developed by Underwriter
or Insurer, as required, with the NASD, and New York State
securities regulatory authorities.
(e) Each party shall notify the other party expeditiously of any
comments provided by the NASD or any securities or insurance
regulatory authority on such material, and will cooperate
expeditiously in resolving and implementing any comments, as
applicable.
The parties acknowledge that such material, to the extent it identifies
or discusses a Fund, may be subject to review and approval procedures
implemented by that Fund. Each party reserves the right, after having
approved a piece of material, to object to further use of such material
and may require the other party to cease use of such material.
6. COMPENSATION
Insurer may pay marketing allowance expenses, if any, to the Agency with
respect to Contracts sold pursuant to this Agreement in the amounts and
under the rules and procedures set forth in an insurance agency
agreement.
7. EXPENSES
(a) INSURER
With respect to this Agreement, Insurer shall pay (or will enter
into arrangements providing that persons other than Insurer shall
pay) all expenses in connection with:
(1) the preparation and filing of each Registration Statement
for the Contracts (including each pre-effective and
post-effective amendment thereto) and the preparation and
filing of each Prospectus for the Contracts (including any
preliminary and each definitive Prospectus);
(2) the preparation, insurance underwriting, issuance and
administration of the Contracts; provided that Insurer
shall not be responsible for expenses, including the
expense of a leased line, incurred by Underwriter in
connection with the service center operated by
Underwriter;
(3) any registration, qualification or approval of the
Contracts for offer and sale required under the
securities, blue-sky or insurance laws of the State of New
York;
(4) all registration fees for the Contracts payable to the SEC
and the NASD; and
(5) the printing of the Prospectus for the Contracts (or its
pro rata share of expenses in the event the Prospectuses
for the Contracts and the Funds are printed together in
one document) and any supplements thereto for distribution
to existing contract owners and its pro rata share of
expenses of mailing the Prospectuses for the Contracts and
the Funds to existing Contract owners.
(b) Underwriter
With respect to this Agreement, Underwriter shall pay (or will
enter into arrangements providing that persons other than
Underwriter shall pay) the following expenses related to its
distribution of the Contracts:
(1) the compensation of Underwriter Representatives and
employees, and Distributors, if any;
(2) expenses associated with the registration and training of
Underwriter Representatives and other employees involved
in the distribution of the Contracts;
(3) expenses incurred in connection with its registration as a
broker or dealer or the registration or qualification of
its officers, directors or Representatives under federal
and New York State laws;
(4) the costs of any promotional, sales and advertising
material, including Applications and any other materials
included in the fulfillment kit, that Underwriter develops
for its use in connection with the sale of the Contracts;
and
(5) expenses of printing and mailing the Prospectuses for the
Contracts and the Funds (and any supplements thereto) for
distribution to prospective customers.
(c) OTHER EXPENSES
Other than as specifically provided in this Agreement or in an
insurance agency agreement, Insurer shall pay all expenses that
it incurs in connection with this Agreement and Underwriter shall
pay all expenses that it incurs in connection with this
Agreement; it being understood that neither Underwriter nor the
Agency shall be responsible for any expenses relating to the
Contracts or the processing of Contracts, Premiums or
Applications, including without limitation any expenses incurred
in connection with the return of Premiums solicited by
Distributors, if any, for Applications rejected by Insurer, or
relating to any of the matters or acts contemplated by this
Agreement, except to the extent expressly set forth herein.
Except as specifically provided above or as otherwise agreed to
in writing by the parties, it is further understood that Insurer
shall not bear any responsibility for the expenses of the
Underwriter and Underwriter Representatives, nor for printing the
prospectuses and statements of additional information for the
Funds, nor for the preparation of the registration statements for
the Funds nor for providing seed capital for the Funds, nor for
any other expenses relating to the Funds.
8. REPRESENTATIONS AND WARRANTIES OF INSURER
(a) Insurer represents and warrants to Underwriter on the Effective Date
that:
(1) Insurer has been duly organized and is validly existing as
a corporation in good standing under the laws of the State
of New York with full power and authority to own, lease
and operate its properties and conduct its business, is
duly qualified to transact the business of a life
insurance company and to issue variable insurance
products.
(2) The execution and delivery of this Agreement and the
consummation of the transactions contemplated herein have
been duly authorized by all necessary corporate action by
Insurer, and when so executed and delivered this Agreement
shall be the valid and binding obligation of Insurer
enforceable in accordance with its terms.
(3) The consummation of the transactions contemplated herein,
and the fulfillment of the terms of this Agreement, shall
not conflict with, result in any breach in any material
respect of any of the terms and provisions of, or
constitute (with or without notice or lapse of time) a
default in any material respect under, the articles of
incorporation or bylaws of Insurer, or any indenture,
agreement, mortgage, deed of trust, or other instrument to
which Insurer is a party or by which it is bound, or, to
the best of Insurer's knowledge, violate in any material
respect any law, any order, rule or regulation applicable
to Insurer of any court or of any federal or state
regulatory body, administrative agency or any other
governmental instrumentality having jurisdiction over
Insurer or any of its properties.
(b) Insurer further represents and warrants to Underwriter on the
effective date of the initial Registration Statement for the
Contracts, and undertakes to use its best efforts to ensure as of
the effective date of each subsequent Registration Statement,
that:
(1) Insurer has filed with the SEC all statements, notices and
other documents required for registration of the Contracts
(or the interests therein) and the Separate Account under
the provisions of ICA-40 and SA-33 and the Regulations
thereunder; further, there are no contracts or documents
of Insurer or relating to the Contracts or the Separate
Account which are required to be filed as exhibits to such
Registration Statement by SA-33, ICA-40 or the Regulations
which have not been so filed.
(2) Such Registration Statement has been declared effective by
the SEC or has become effective in accordance with the
Regulations.
(3) Insurer has not received any notice from the SEC with
respect to such Registration Statement pursuant to Section
8(e) of ICA-40 and no stop order under SA-33 has been
issued and no proceeding therefor has been instituted or
threatened by the SEC.
(4) Insurer has obtained, or prior to the commencement of the
offering of the Contracts will obtain, all necessary or
customary orders of exemption or approval from the SEC to
permit the distribution of the Contracts pursuant to this
Agreement and to permit the operation of the Separate
Account supporting such Contracts as contemplated in the
related Prospectus, and such orders apply to Underwriter,
as principal underwriter for the Contracts and the
Separate Account to the extent necessary.
(5) Such Registration Statement and the related Prospectus
comply in all material respects with the provisions of
SA-33 and ICA-40 and the Regulations, and neither the
Registration Statement nor the Prospectus contains an
untrue statement of a material fact or omits to state a
material fact required to be stated therein or necessary
to make the statements therein not misleading, in light of
the circumstances in which they were made; provided,
however, that none of the representations and warranties
in this Section 8(b)(5) shall apply to statements or
omissions from a Registration Statement or Prospectus made
in reliance upon and in conformity with information
furnished to Insurer in writing by Underwriter expressly
for use in such Registration Statement or Prospectus.
(6) The Separate Account has been duly established by Insurer
and conforms to the description thereof in the
Registration Statement and the Prospectus for the Separate
Account.
(7) The form of the Contracts has been approved to the extent
required by the New York Superintendent of Insurance on
the pertinent date of each Registration Statement.
(8) The Contracts have been duly authorized by Insurer and
conform to the descriptions thereof in the Registration
Statement for the Contracts and the related Prospectus
and, when issued as contemplated by such Registration
Statement, shall constitute legal, validly issued and
binding obligations of Insurer in accordance with their
terms.
(9) No other consent, approval, authorization or order of any
court or governmental authority or agency is required for
the issuance or sale of the Contracts, the establishment
or operation of the Separate Account, or for the
consummation of the transactions contemplated by this
Agreement, that has not been obtained.
9. Undertakings of Insurer
Insurer undertakes as follows:
(a) Insurer shall use its best efforts to maintain the
registration of the Contracts (or interests therein) and the
Separate Account with the SEC and to maintain any registrations
and approvals of the Contracts and the Separate Account with the
securities or insurance regulatory bodies or administrative
agencies of the State of New York, and Insurer shall maintain the
registration of the Contracts (or interests therein) and the
Separate Account with such state securities regulatory bodies and
any other governmental instrumentalities of the State of New York
as Insurer deems appropriate.
(b) Insurer shall take all action necessary to cause the Contracts to
comply, and to continue to comply, as annuity contracts under the
insurance laws of the State of New York and federal tax laws. In
the event of a change in applicable law that renders it
impracticable or impossible to maintain the Contracts as annuity
contracts, Insurer shall consult with Underwriter and shall take
no action respecting the Contracts without the consent of
Underwriter.
(c) Insurer shall take all action necessary to cause the Separate
Account to comply, and to continue to comply, with the provisions
of ICA-40 and the Regulations applicable to the Separate Account
as a registered investment company classified as a unit
investment trust and a separate account, and deemed to be issuing
periodic payment plan certificates.
(d) Insurer shall not deduct any amounts from the assets of the
Separate Account or enter into a transaction or arrangement
involving the Contracts or the Separate Account or cause the
Separate Account to enter into any such transaction or
arrangement without obtaining any necessary or customary
approvals or exemptions from the SEC or any no-action assurance
deemed necessary from the SEC staff and without ensuring that
such approval, exemption or assurance applies to Underwriter as
the principal underwriter for the Contracts, to the extent
necessary or appropriate.
(e) Insurer shall provide Underwriter with preliminary drafts of any
amendments to Registration Statements, supplements to
Prospectuses, exemptive applications or no-action requests to be
filed with the SEC in connection with the Contracts, the Separate
Account, or both. Insurer shall provide Underwriter with a
reasonable opportunity to review and comment on such drafts
before any such materials are filed with the SEC. Insurer shall
furnish Underwriter with copies of any such materials or
amendments thereto, as filed with the SEC, promptly after the
filing thereof, and any SEC communications or orders with respect
thereto, promptly after receipt thereof. Insurer shall maintain
and keep on file in its principal executive office any file
memoranda or any supplemental materials referred to in such
Registration Statements, exemptive applications and no-action
requests and shall maintain and, as necessary, amend such
memoranda or materials and shall provide or otherwise make
available copies of such memoranda and materials to Underwriter.
(f) Insurer shall notify Underwriter immediately upon discovery or in
any event as soon as possible under the following circumstances:
(1) Of any event which makes any material statement made in
the Registration Statement or the Prospectus untrue in any
material respect or results in a material omission in the
Registration Statement or the Prospectus;
(2) Of any request by the SEC for any amendment to the
Registration Statement, or any supplement to the
Prospectus, or statement of additional information;
(3) Of the issuance by the SEC of any notice pursuant to
Section 8(e) of ICA-40, any stop order with respect to the
Registration Statement or any amendment thereto, or the
initiation of any proceedings for that purpose or for any
other purpose relating to the registration and/or offering
of the Contracts;
(4) Of any event of the Contracts' or the Separate Account's
noncompliance with the applicable requirements of the
Internal Revenue Code or regulations, rulings, or
interpretations thereunder that could jeopardize the
Contracts' status as annuity contracts;
(5) Of any change in applicable insurance laws or regulations
of the State of New York materially adversely affecting
the insurance status of the Contracts or Underwriter's
obligations with respect to the distribution of the
Contracts;
(6) Of any loss or suspension of the approval of the Contracts
or distribution thereof by the securities or insurance
regulatory body, administrative agency, or any other
governmental instrumentality of, the State of New York,
any loss or suspension of Insurer's certificate of
authorization to do business or to issue variable
insurance contracts in such State, or of the lapse or
termination of the Contracts' or the Separate Account's
registration, approval or clearance in such State;
(7) Of any termination of the authorization or approval of the
sale of the Contracts in the State of New York;
(8) Of any material adverse change in the condition (financial
or otherwise) of Insurer or the Separate Account that
would cause the information in the Registration Statement
to be materially misleading; and
(9) Of any event which causes a representation or warranty of
Insurer contained in this Agreement to no longer be true.
(g) Insurer shall notify Underwriter in a reasonably timely manner
under the circumstances:
(1) When a Registration Statement has become effective or any
post-effective amendment with respect to a Registration
Statement becomes effective thereafter;
(2) When any registration of the Contracts (or interests
therein) under the securities or blue sky laws of the
States of New York has become effective to the extent not
yet obtained as of the Effective Date; and
(3) When approval of the Contract forms under the applicable
insurance laws of the State of New York has been obtained
to the extent not yet obtained as of the Effective Date.
(h) Insurer shall provide Underwriter access to such records,
officers and employees of Insurer at reasonable times as is
necessary to enable Underwriter to fulfill its obligation, as the
underwriter under SA-33 for the Contracts and as principal
underwriter for the Separate Account under ICA-40, to perform due
diligence and to use reasonable care.
(i) Insurer shall use its best efforts to timely file each
post-effective amendment to a Registration Statement, Prospectus,
annual reports on Form N-SAR, and all other reports, notices,
statements and amendments required to be filed by or for Insurer
and the Separate Account with the SEC under SA-33, SEA-34 and/or
ICA-40 or any applicable Regulations. Insurer shall timely file
Rule 24f-2 notices required to be filed by or for Insurer and the
Separate Account with the SEC under SA-33 and/or ICA-40 or any
applicable Regulations. To the extent there occurs an event or
development (including, without limitation, a change of
applicable law, regulation or administrative interpretation)
warranting an amendment to the Registration Statement or
supplement to the Prospectus, Insurer shall endeavor to promptly
prepare and file such amendment or supplement with the SEC.
(j) To the extent that Insurer is responsible for printing under
Section 7, Insurer shall provide Underwriter with as many copies
of the Prospectus (and any amendments or supplements to the
Prospectus) as Underwriter may reasonably request.
(k) Insurer shall deliver to Underwriter, as soon as practicable
after it becomes available, the annual statement for Insurer and
for the Separate Account in the form filed with the State of New
York.
(l) Insurer shall furnish to Underwriter without charge promptly
after filing ten (10) complete copies of each Registration
Statement and any pre-effective or post-effective amendment
thereto, including financial statements and all exhibits not
incorporated therein by reference.
10. REPRESENTATIONS AND WARRANTIES OF UNDERWRITER
Underwriter represents and warrants to Insurer on the Effective Date as
follows:
(a) Underwriter has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of
Maryland with full power and authority to own, lease and operate
its properties and to conduct its business, and is in good
standing, in each state in which its business so requires.
(b) The execution and delivery of this Agreement and the consummation
of the transactions contemplated herein have been duly authorized
by all necessary corporate action by Underwriter, and when so
executed and delivered this Agreement shall be the valid and
binding obligation of Underwriter enforceable in accordance with
its terms.
(c) The consummation of the transactions contemplated herein, and the
fulfillment of the terms of this Agreement, shall not conflict
with, result in any breach in any material respect of any of the
terms and provisions of, or constitute (with or without notice or
lapse of time) a default in any material respect under, the
articles of incorporation or bylaws of Underwriter, or any
indenture, agreement, mortgage, deed of trust, or other
instrument to which Underwriter is a party or by which it is
bound, or to the best of Underwriter's knowledge violate in any
material respect any law, or, to the best of Underwriter's
knowledge, any order, rule or regulation applicable to
Underwriter of any court or of any federal or state regulatory
body, administrative agency or any other governmental
instrumentality having jurisdiction over Underwriter or any of
its properties.
(d) Underwriter is registered as a broker-dealer under SEA-34, is a
member of the NASD, and is duly registered as a broker-dealer
under the securities laws of the State of New York to the extent
required in connection with its obligations under this Agreement,
and its Representatives, together with Agency, are or shall be
fully licensed in accordance with New York State insurance laws
to the extent necessary to perform their obligations under this
Agreement.
(e) Underwriter is and shall remain during the term of this Agreement
in compliance with Section 9(a) of ICA-40.
11. UNDERTAKINGS OF UNDERWRITER
Underwriter undertakes as follows:
(a) Underwriter shall train, supervise and be solely responsible for
the conduct of its Representatives in their solicitation of
Contracts, and shall supervise their compliance with applicable
rules and regulations of any New York State securities regulatory
agency that has jurisdiction over variable annuity sales
activities.
(b) Underwriter will use its best efforts to maintain its
registration as a broker-dealer under SEA-34 and its membership
with the NASD, and will use its best efforts to maintain its
registration as a broker-dealer with the applicable securities
authorities under the laws of the State of New York where
necessary in connection with its obligations under this
Agreement.
(c) Underwriter shall be responsible for its own conduct and the
employment, control, and conduct of its officers, employees and
agents and for injury to such officers, employees or agents or to
others through its officers, employees or agents. Underwriter
assumes full responsibility for its officers, employees and
agents under applicable laws, rules and regulations and agrees to
pay all employee taxes thereunder.
(d) Underwriter will notify Insurer if its SEC or New York State
broker-dealer registration or NASD membership is terminated or if
it is the subject of any proceeding that, in its reasonable
judgment, is likely to result in such termination.
(e) Underwriter shall notify Insurer immediately upon discovery or in
any event as soon as possible under the following circumstances:
(1) Of any material adverse change in the condition (financial
or otherwise) of Underwriter that would materially affect
Underwriter's obligations with respect to the distribution
of the Contracts; and
(2) Of any event which causes a representation or warranty of
Underwriter contained in this Agreement to no longer be
true.
12. RECORDS
Insurer and Underwriter each shall maintain such accounts, books,
records and other documents as are required to be maintained by each of
them by applicable laws and regulations and shall preserve such
accounts, books, records and other documents for the periods prescribed
by such laws and regulations. The accounts, books, records and other
documents of Insurer, the Separate Account and Underwriter as to all
transactions hereunder shall be maintained so as to clearly and
accurately disclose the nature and details of the transactions,
including such accounting information as necessary to support the
reasonableness of the amounts paid by Insurer hereunder. Each party
shall have the right to inspect and audit such accounts, books, records
and other documents of the other party during normal business hours upon
reasonable written notice to the other party. Each party shall keep
confidential all information obtained pursuant to such an inspection or
audit, and shall disclose such information to third parties only upon
receipt of written authorization from the other party or as otherwise
described in Section 15, below.
13. INVESTIGATIONS AND PROCEEDINGS
(a) COOPERATION
Underwriter and Insurer shall cooperate fully in any insurance or
securities regulatory investigation or proceeding or judicial
proceeding with respect to Insurer, Underwriter, their Affiliates
and their agents, Representatives or employees to the extent that
such investigation or proceeding is in connection with the
offering, sale or distribution of the Contracts distributed under
this Agreement. Without limiting the foregoing, Insurer and
Underwriter shall notify each other promptly of any notice of any
regulatory investigation or proceeding or judicial proceeding,
arising in connection with the offering, sale or distribution of
the Contracts distributed under this Agreement, received by
either party with respect to Insurer, Underwriter or any of their
Affiliates, agents, Representatives or employees or which may
affect Insurer's issuance or Underwriter's distribution of any
Contract marketed under this Agreement.
(b) CUSTOMER COMPLAINT
Insurer and Underwriter shall notify each other promptly in the
case of a substantive customer complaint arising in connection
with the offering, sale or distribution of the Contracts
distributed under this Agreement. In addition, Underwriter and
Insurer shall cooperate in investigating such complaint and any
response by either party to such complaint shall be sent to the
other party for written approval not less than five business days
prior to its being sent to the customer or any regulatory
authority, except that if a more prompt response is required, the
proposed response shall be communicated by telephone or
facsimile. In any event, neither party shall release any such
response without the other party's prior written approval.
14. INDEMNIFICATION
(a) BY UNDERWRITER
Underwriter agrees to indemnify and hold harmless Insurer and
each of its directors and officers and each person, if any, who
controls Insurer within the meaning of Section 15 of SA-33
(collectively, the "Indemnified Parties" for purposes of this
Section 14(a)), against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with
the written consent of Underwriter) or litigation (including
legal and other expenses) to which the Indemnified Parties may
become subject under any statute or regulation, at common law, or
otherwise, insofar as such losses, claims expenses, damages,
liabilities (or actions in respect thereof) or settlements:
(1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact or omission
or alleged omission to state a material fact required to
be stated therein or necessary in order to make the
statements therein not misleading, in light of the
circumstances in which they were made, contained in any
Registration Statement or in any Prospectus; to the
extent, but only to the extent, that such untrue statement
or alleged untrue statement or omission or alleged
omission: (i) was made in reliance upon information
furnished in writing to Insurer by Underwriter
specifically for use in the preparation of any such
Registration Statement or any amendment thereof or
supplement thereto; or (ii) was contained in (A) any
registration statement, or any post-effective amendment
thereto which becomes effective, filed by or on behalf of
a Fund with the SEC relating to Shares, including any
financial statements included in, or any exhibit to, such
registration statement or post-effective amendment, (B)
any prospectus of a Fund relating to the Shares either
contained in any such registration statement or
post-effective amendment or filed pursuant to Rule 497(c)
or Rule 497(e) under SA-33, or (C) in any promotional,
sales or advertising material or written information
relating to the Shares authorized by or on behalf of a
Fund; or
(2) result because of any use by Underwriter or any
Underwriter Representative of promotional, sales or
advertising material not authorized by Insurer or any
written or oral misrepresentations by Underwriter or any
Underwriter Representative or any unlawful sales practices
concerning the Contracts by Underwriter or any Underwriter
Representative under federal securities laws or NASD
regulations or other applicable law, or from the failure
to deliver the Prospectus or prospectuses for the Funds to
the extent required; or
(3) result from any claims by agents or Representatives or
employees of Underwriter for commissions or other
compensation or remuneration of any type; or
(4) arise out of or result from any material breach by
Underwriter or any Underwriter Representative of any
provision of this Agreement.
This indemnification shall be in addition to any liability that
Underwriter may otherwise have; provided, however, that no
Indemnified Party shall be entitled to indemnification pursuant
to this provision if such loss, claim, expense, damage, liability
or litigation is due to the willful misfeasance, bad faith or
gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to
Insurer.
Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified
Underwriter in writing within a reasonable time after the summons
or other first legal process giving information of the nature of
the claim shall have been served upon such Indemnified Party (or
after such Indemnified Party shall have received notice of such
service on any designated agent), but failure to notify
Underwriter of any such claim shall not relieve Underwriter from
any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought
against the Indemnified Party, Underwriter will be entitled to
participate, at its own expense, in the defense thereof.
Underwriter also shall be entitled to assume the defense thereof,
with counsel satisfactory to the party named in the action. After
notice from Underwriter to such party of Underwriter's election
to assume the defense thereof, the Indemnified Party shall bear
the fees and expenses of any additional legal counsel retained by
it, and Underwriter will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred
by such party independently in connection with the defense
thereof other than reasonable costs of investigation.
Underwriter agrees to promptly notify Insurer of the commencement
of any litigation or proceedings against it or a Fund or any of
Underwriter's directors, officers, employees or agents in
connection with the sale of any Contracts.
(b) BY INSURER
Insurer agrees to indemnify and hold harmless Underwriter and
each of its directors and officers and each person, if any, who
controls Underwriter within the meaning of Section 15 of SA-33
(collectively, the "Indemnified Parties" for purposes of this
Section 14(b)), against any and all losses, claims expenses,
damages, liabilities (including amounts paid in settlement with
the written consent of Insurer) or litigation (including legal
and other expenses) to which the Indemnified Parties may become
subject under any statute or regulation, at common law, or
otherwise, insofar as such losses, claims expenses, damages,
liabilities (or actions in respect thereof) or settlements:
(1) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact or omission
or alleged omission to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading, in light of the circumstances in
which they were made, contained in any Registration
Statement or in any Prospectus; provided that Insurer
shall not be liable in any such case to the extent that
such loss, liability, damage, claim or expense arises out
of, or is based upon, an untrue statement or alleged
untrue statement or omission or alleged omission: (i) was
made in reliance upon information furnished in writing to
Insurer by Underwriter specifically for use in the
preparation of any such Registration Statement or any
amendment thereof or supplement thereto; or (ii) was
contained in (A) any registration statement, or any
post-effective amendment thereto which becomes effective,
filed by or on behalf of a Fund with the SEC relating to
Shares, including any financial statements included in, or
any exhibit to, such registration statement or
post-effective amendment, (B) any prospectus of a Fund
relating to the Shares either contained in any such
registration statement or post-effective amendment or
filed pursuant to Rule 497(c) or Rule 497(e) under SA-33,
or (C) in any promotional, sales or advertising material
or written information relating to the Shares authorized
by or on behalf of a Fund; or
(2) result because of the terms of any Contract or because of
any material breach by Insurer or any of its officers,
directors, employees or agents (which, for these purposes,
shall not include Underwriter Representatives or
Distributor Representatives) of any provision of this
Agreement or of any Contract; or
(3) result because of any use by Underwriter or any
Underwriter Representative of promotional, sales and/or
advertising material prepared by Insurer or any written or
oral misrepresentations by Insurer, its officers,
directors, employees or agents (which, for these purposes,
shall not include Underwriter Representatives or
Distributor Representatives), or any unlawful sales
practices concerning the Contracts by Insurer, its
officers, directors, employees, or agents (which, for
these purposes, shall not include Underwriter
Representatives or Distributor Representatives) under the
federal securities laws or NASD regulations or other
applicable law; or
(4) arise out of or result from any material breach by Insurer
of any provision of this Agreement.
This indemnification shall be in addition to any liability that
Insurer may otherwise have; provided, however, that no
Indemnified Party shall be entitled to indemnification pursuant
to this provision if such loss, claim, expense, damage, liability
or litigation is due to the willful misfeasance, bad faith or
gross negligence in the performance of such Indemnified Party's
duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement or to
Underwriter.
Insurer shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified Insurer in
writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on
any designated agent), but failure to notify Insurer of any such
claim shall not relieve Insurer from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In
case any such action is brought against the Indemnified Party,
Insurer will be entitled to participate, at its own expense, in
the defense thereof. Insurer also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in
the action. After notice from Insurer to such party of Insurer's
election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional legal counsel
retained by it, and Insurer will not be liable to such party
under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the
defense thereof other than reasonable costs of investigation.
Insurer agrees to promptly notify Underwriter of the commencement
of any litigation or proceedings against it or any of its
directors, officers, employees or agents in connection with the
sale of any Contracts.
(c) SURVIVAL OF INDEMNIFICATION
The indemnification provisions contained in this Section 14 shall
remain operative in full force and effect, regardless of (1) any
investigation made by or on behalf of Insurer or Underwriter or
by or on behalf of any controlling person thereof, (2) delivery
of any Contracts and Premiums therefor, and (3) any termination
of this Agreement. A successor by law of Underwriter or Insurer,
as the case may be, shall be entitled to the benefits of the
indemnification provisions contained in this Section 14.
15. CONFIDENTIAL AND PROPRIETARY INFORMATION
At all times throughout the term of this Agreement, and following any
termination or expiration of this Agreement, each party and all of its
respective Affiliates, and each officer, director, shareholder, employee
or agent thereof, shall maintain the confidentiality of (i) this
Agreement, (ii) the transactions and other matters contemplated herein,
(iii) any proprietary or other information provided by one party to the
other party to facilitate the transactions contemplated herein, provided
that this obligation of confidentiality shall not apply to: (i)
disclosures required to be made to any regulatory bodies, administrative
agencies or other governmental instrumentalities or disclosures deemed
by such party to be desirable to disclose to any such entity; (ii)
disclosures made to attorneys, accountants and other representatives in
order to assist in the consummation of the transactions and other
matters contemplated herein; (iii) disclosures otherwise required by
applicable law; or (iv) disclosures to which the other party consents;
provided further that, with respect to the immediately foregoing clauses
(i) and (iii), any party that makes such a disclosure shall so notify
the other party prior to or simultaneously with making such disclosure
to the extent reasonably practicable; and provided further that, with
respect to the foregoing clause (ii), a party shall make disclosures
regarding this Agreement and the transactions contemplated herein only
to such party's attorneys, accountants and other third party
representatives who agree to keep such information confidential in
accordance with this Section.
16. DURATION AND TERMINATION OF THIS AGREEMENT
(a) TERM
This Agreement shall become effective upon the Effective Date and
shall remain in effect for five years from the Effective Date and
from year to year thereafter, unless terminated as provided
herein.
(b) TERMINATION
After the initial term, this Agreement may be terminated at any
time, on 60 days written notice, without the payment of any
penalty, by Underwriter or Insurer.
(c) ASSIGNMENT
This Agreement will automatically terminate in the event of its
assignment, as such term is defined in ICA-40, without the prior
written consent of the other party.
(d) TERMINATION UPON MATERIAL BREACH
This Agreement may be terminated at the option of either party to
this Agreement upon the other party's material breach of any
provision of this Agreement or of any representation made in this
Agreement, unless such breach has been cured within 10 days after
receipt of notice of breach from the non-breaching party.
(e) TERMINATION OF FUND PARTICIPATION AGREEMENT
Either party has the right to terminate this Agreement in the
event of termination of the Fund Participation Agreement between
Underwriter, Insurer, and the Funds.
(f) EFFECT OF TERMINATION
Upon termination of this Agreement all authorizations, rights and
obligations shall cease except: (1) the obligation to settle
accounts hereunder, including commissions, if any, on Premiums
subsequently received for Contracts in effect at the time of
termination or issued pursuant to Applications received by
Insurer prior to termination; and (2) the obligations contained
in Sections 2(d), 6, 7, 8(b), 9 (but not clause (h) thereof), 12,
13, 14, and 15 hereof.
17. AMENDMENT OF THIS AGREEMENT
No provisions of this Agreement may be changed, waived, discharged, or
terminated orally, but only by an instrument in writing signed by the
party against which enforcement of the change, waiver, discharge, or
termination is sought.
18. AMENDMENT OF SCHEDULES
The parties to this Agreement may amend Schedules 1 and 2 to this
Agreement from time to time to reflect additions of or changes in any
class of Contracts, Separate Accounts, subaccounts and Funds that have
been agreed upon. The provisions of this Agreement shall be equally
applicable to each such class of Contracts, Separate Accounts,
subaccounts and Funds that may be added to the Schedules, unless the
context otherwise requires.
19. MISCELLANEOUS
(a) CAPTIONS
The captions in this Agreement are included for convenience of
reference only, and in no way define or limit any of the
provisions hereof or otherwise affect their construction or
effect.
(b) COUNTERPARTS
This Agreement may be executed simultaneously in two or more
counterparts, each of which shall be deemed an original, but all
of which together shall constitute one and the same instrument.
(c) RIGHTS, REMEDIES, ETC., ARE CUMULATIVE
The rights, remedies and obligations contained in this Agreement
are cumulative and are in addition to any and all rights,
remedies and obligations, at law or in equity, which the parties
hereto are entitled to under state and federal laws. Failure of
either party to insist upon strict compliance with any of the
conditions of this Agreement shall not be construed as a waiver
of any of the conditions, but the same shall remain in full force
and effect. No waiver of any of the provisions of this Agreement
shall be deemed, or shall constitute, a waiver of any other
provisions, whether or not similar, nor shall any waiver
constitute a continuing waiver.
(d) INTERPRETATION; JURISDICTION
This Agreement constitutes the whole agreement between the
parties hereto with respect to the subject matter hereof, and
supersedes all prior oral or written understandings, agreements
or negotiations between the parties with respect to such subject
matter. No prior writings by or between the parties with respect
to the subject matter hereof shall be used by either party in
connection with the interpretation of any provision of this
Agreement. This Agreement shall be construed and its provisions
interpreted under and in accordance with the internal laws of the
state of Maryland without giving effect to principles of conflict
of laws.
(e) SEVERABILITY
This is a severable Agreement. In the event that any provision of
this Agreement would require a party to take action prohibited by
applicable federal or state law or prohibit a party from taking
action required by applicable federal or state law, then it is
the intention of the parties hereto that such provision shall be
enforced to the extent permitted under the law, and, in any
event, that all other provisions of this Agreement shall remain
valid and duly enforceable as if the provision at issue had never
been a part hereof.
(f) REGULATION
This Agreement shall be subject to the provisions of SA-33,
SEA-34 and ICA-40 and the Regulations and the rules and
regulations of the NASD, from time to time in effect, including
such exemptions from ICA-40 as the SEC may grant, and the terms
hereof shall be interpreted and construed in accordance
therewith. Without limiting the generality of the foregoing, the
term "assigned" shall not include any transaction exempted from
Section 15(b)(2) of ICA-40.
20. NOTICE, CONSENT AND REQUEST
Any notice, consent or request required or permitted to be given by
either party to the other shall be deemed sufficient if sent by
facsimile transmission followed by Federal Express or other overnight
carrier, or if sent by registered or certified mail, postage prepaid,
addressed by the party giving notice to the other party at the following
address (or at such other address for a party as shall be specified by
like notice):
if to Insurer:
First Security Benefit Life Insurance and Annuity Company of New York
Attn: Xxxxx Xxxxxx
00 Xxxx Xxx Xxx Xxxx, Xxxxxx Xxxxx
Xxxxx Xxxxxx, Xxx Xxxx 00000
Copy to:
Security Benefit Life Insurance Company
Attn: Xxx X. Xxx, Esq.
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxx 00000
and if to Underwriter:
X. Xxxx Price Investment Services, Inc.
Attn: Xxxxx Xxxxxxx, Esq.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000.
IN WITNESS WHEREOF, Insurer and Underwriter have each duly executed this
Agreement as of the day and year first above written.
FIRST SECURITY BENEFIT LIFE INSURANCE
AND ANNUITY COMPANY OF NEW YORK
By Its Authorized Officer
By:__________________________________
Xxxxx Xxxxxx
Title: Chief Administrative Officer
Date: October 11, 1995
X. XXXX PRICE INVESTMENT SERVICES, INC.
By Its Authorized Officer
By:__________________________________
Xxxxx X. Xxxxxx
Title: Vice President
Date: October 11, 1995
EXHIBIT A
Form of Opinion Pursuant to Section 2
X. Xxxx Price Investment Services, Inc.
Dear Sirs:
You have requested our opinion with respect to certain matters in connection
with the execution of the distribution agreement dated as of October 11, 1995
(the "Agreement") entered into between you ("Underwriter) and First Security
Benefit Life Insurance and Annuity Company of New York ("Insurer"). The
Agreement relates to your distribution of certain variable insurance contracts,
described more specifically in a registration statement, as amended, on Form N-4
filed with the Securities and Exchange Commission ("SEC"), File No. 33-83240,
which are to be issued by Insurer and supported by the X. Xxxx Price Variable
Annuity Account of Insurer. All capitalized terms contained herein not otherwise
defined shall have the meaning assigned to them in the Agreement.
We are of the following opinion:
(1) Insurer has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of New
York with full power and authority to own, lease and operate its
properties and conduct its business, is duly qualified to
transact the business of a life insurance company and to issue
variable insurance products.
(2) The execution and delivery of the Agreement and the consummation
of the transactions contemplated therein have been duly
authorized by all necessary corporate action by Insurer, and when
so executed and delivered the Agreement shall be the valid and
binding obligation of Insurer enforceable in accordance with its
terms.
(3) The consummation of the transactions contemplated by the
Agreement, and the fulfillment of its terms, shall not conflict
with, result in any breach of any of the terms and provisions of,
or constitute (with or without notice or lapse of time) a default
under, the articles of incorporation or bylaws of Insurer, or to
the best of our knowledge, any indenture, agreement, mortgage,
deed of trust, or other instrument to which Insurer is a party or
by which it is bound, or violate any law, or, to the best of our
knowledge, any order, rule or regulation applicable to Insurer of
any court or of any federal or state regulatory body,
administrative agency or any other governmental instrumentality
having jurisdiction over Insurer or any of its properties.
(4) Insurer has filed with the SEC all statements, notices and other
documents required for registration of the Contracts and the
Separate Account under the provisions of ICA-40 and SA-33 and the
Regulations thereunder; further, there are no contracts or
documents of Insurer or relating to the Contracts or the Separate
Account which are required to be filed as exhibits to the
Registration Statement by SA-33, ICA-40 or the Regulations which
have not been so filed.
(5) The Registration Statement has been declared effective by the SEC
or has become effective in accordance with the Regulations.
(6) Insurer has not received any notice from the SEC with respect to
the Registration Statement pursuant to Section 8(e) of ICA-40 and
no stop order under SA-33 has been issued and no proceeding
therefor has been instituted or threatened by the SEC.
(7) Insurer has obtained all necessary or customary orders of
exemption or approval from the SEC to permit the distribution of
the Contracts pursuant to the Agreement and to permit the
operation of the Separate Account as contemplated in the related
Prospectus, and such orders apply to Underwriter, as principal
underwriter for the Contracts and the Separate Account.
(8) The Registration Statement and the related Prospectus comply in
all material respects with the provisions of SA-33 and ICA-40 and
the Regulations.
(9) We have no reason to believe that the Registration Statement
(other than any financial statements included therein and any
statements or omissions made in reliance upon information
furnished to the Company by the Distributor or a Fund (and
confirmed in writing) specifically for use in the preparation of
the Registration Statement, as to which no opinion is rendered),
at the time it became effective, contained an untrue statement of
a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading, in light of the circumstances under which they were
made, nor do we have any reason to believe that the Prospectus
(other than any financial statements included therein and any
statements or omissions made in reliance upon information
furnished to the Company by the Distributor or a Fund (and
confirmed in writing) specifically for use in the preparation of
the Registration Statement or Prospectus, as to which no opinion
is rendered), as amended or supplemented as of the date hereof,
contains an untrue statement of a material fact or omits to state
a material fact necessary in order to make the statements therein
not misleading, in light of the circumstances under which they
were made.
(10) We have no reason to believe that the statements made in the
Prospectus under the caption "Tax Status," to the extent that
they constitute matters of law or legal conclusions with respect
thereto, are not correct in any material respect.
(11) The Separate Account has been duly established by Insurer and
conforms to the description thereof in the Registration Statement
and the Prospectus for the Separate Account.
(12) The form of the Contracts has been approved to the extent
required by the New York Superintendent of Insurance.
(13) The Contracts have been duly authorized by Insurer and conform to
the descriptions thereof in the Registration Statement for the
Contracts and the related Prospectus and, when issued as
contemplated by the Registration Statement, shall constitute
legal, validly issued and binding obligations of Insurer in
accordance with their terms.
(14) The Contracts and the Separate Account have been duly registered
with the state securities regulatory bodies, administrative
agencies, or any other governmental instrumentality with which
the Contracts or Separate Account must be registered of the State
of New York, to the extent such registration requirements apply.
(15) To the best of our knowledge, no other consent, approval,
authorization or order of any court or governmental authority or
agency is required for the issuance or sale of the Contracts, the
establishment or operation of the Separate Account, or for the
consummation of the transactions contemplated by the Agreement,
that has not been obtained.
Very truly yours,
FIRST SECURITY BENEFIT LIFE INSURANCE
AND ANNUITY COMPANY OF NEW YORK
By:______________________________
Name:
Title:
October 11, 1995
First Security Benefit Life Insurance
and Annuity Company of New York
Re: Registration Statement No. 33-83240 for
X. Xxxx Price Variable Annuity Account of First
Security Benefit Life Insurance and Annuity Company of New York
Dear Sirs:
This letter is delivered to you in connection with (a) the Distribution
Agreement dated as of October 11, 1995 between you and X. Xxxx Price Investment
Services, Inc. ("Underwriter") relating to its distribution of certain variable
annuity contracts (the "Contracts"), interests in which have been registered
with the Securities and Exchange Commission (the "SEC") pursuant to the
Registration Statement identified above, and (b) the Participation Agreement
dated as of October 11, 1995, between you and the undersigned relating to the
Separate Account's investment in the undersigned. For purposes of such
agreements, this letter identifies information we have provided to you for
inclusion in the Registration Statement, as amended on Form N-4, filed with the
SEC, and the definitive versions of the related prospectus and statement of
additional information for the Contracts (the "Prospectus" and "SAI,"
respectively), as filed with the SEC on _________ in accordance with Rule 497 of
the Securities Act of 1933.
References herein to pages, paragraphs, or sentences are references to
such in the definitive versions of the Prospectus and SAI. Capitalized terms
used herein and not defined herein have the same meaning as in the Prospectus
and SAI.
The Fund hereby confirms that it has furnished the following information
to you specifically for use in the preparation of the Registration Statement,
the Amendment, the Prospectus, and SAI (to the extent that the following applies
to or describes the Fund and not with respect to information regarding any other
mutual fund):
o The names of the portfolios of the Fund, as they appear on page
2 of the prospectus and page 7 of the prospectus.
o The definition of the Fund on page 6 of the prospectus.
o The "Management Fee," "Other Expenses," and "Total Portfolio
Expenses" shown for the portfolios of the Fund in the Expense
Table on page 10, and accompanying note.
o The section entitled "The Funds" beginning on page 12 and ending
on page 14, except for the sentence to the effect that ". . . if
the Company believes that any Fund's response to any of these
events or conflicts insufficiently protects Owners, it will take
appropriate action on its own."
o The section entitled "The Investment Advisers," on page 14.
o The section entitled "Fund Expenses," on page 25.
* * *
Very truly yours,
X. XXXX PRICE EQUITY SERIES, INC.
By: _________________________
Name:
Title: Vice President
October 11, 1995
First Security Benefit Life Insurance
and Annuity Company of New York
Re: Registration Statement No. 33-83240 for
X. Xxxx Price Variable Annuity Account of First
Security Benefit Life Insurance and Annuity Company of New York
Dear Sirs:
This letter is delivered to you in connection with (a) the Distribution
Agreement dated as of October 11, 1995 between you and X. Xxxx Price Investment
Services, Inc. ("Underwriter") relating to its distribution of certain variable
annuity contracts (the "Contracts"), interests in which have been registered
with the Securities and Exchange Commission (the "SEC") pursuant to the
Registration Statement identified above, and (b) the Participation Agreement
dated as of October 11, 1995, between you and the undersigned relating to the
Separate Account's investment in the undersigned. For purposes of such
agreements, this letter identifies information we have provided to you for
inclusion in the Registration Statement, as amended, on Form N-4, filed with the
SEC, and the definitive versions of the related prospectus and statement of
additional information for the Contracts (the "Prospectus" and "SAI,"
respectively), as filed with the SEC on _________ in accordance with Rule 497 of
the Securities Act of 1933.
References herein to pages, paragraphs, or sentences are references to
such in the definitive versions of the Prospectus and SAI. Capitalized terms
used herein and not defined herein have the same meaning as in the Prospectus
and SAI.
The Fund hereby confirms that it has furnished the following information
to you specifically for use in the preparation of the Registration Statement,
the Amendment, the Prospectus, and SAI (to the extent that the following applies
to or describes the Fund and not with respect to information regarding any other
mutual fund):
o The names of the portfolios of the Fund, as they appear on page
2 of the prospectus and page 7 of the prospectus.
o The definition of the Fund on page 6 of the prospectus.
o The "Management Fee," "Other Expenses," and "Total Portfolio
Expenses" shown for the portfolios of the Fund in the Expense
Table on page 10, and accompanying note.
o The section entitled "The Funds" beginning on page 12 and ending
on page 14, except for the sentence to the effect that ". . . if
the Company believes that any Fund's response to any of these
events or conflicts insufficiently protects Owners, it will take
appropriate action on its own."
o The section entitled "The Investment Advisers," on page 14.
o The section entitled "Fund Expenses," on page 25.
* * *
Very truly yours,
X. XXXX PRICE FIXED INCOME SERIES, INC.
By: _________________________
Name:
Title: Vice President
October 11, 1995
First Security Benefit Life Insurance
and Annuity Company of New York
Re: Registration Statement No. 33-83240 for
X. Xxxx Price Variable Annuity Account of First
Security Benefit Life Insurance and Annuity Company of New York
Dear Sirs:
This letter is delivered to you in connection with (a) the Distribution
Agreement dated as of October 11, 1995 between you and X. Xxxx Price Investment
Services, Inc. ("Underwriter") relating to its distribution of certain variable
annuity contracts (the "Contracts"), interests in which have been registered
with the Securities and Exchange Commission (the "SEC") pursuant to the
Registration Statement identified above, and (b) the Participation Agreement
dated as of October 11, 1995 between you and the undersigned relating to the
Separate Account's investment in the undersigned. For purposes of such
agreements, this letter identifies information we have provided to you for
inclusion in the Registration Statement, as amended, on Form N-4, filed with the
SEC, and the definitive versions of the related prospectus and statement of
additional information for the Contracts (the "Prospectus" and "SAI,"
respectively), as filed with the SEC on _________ in accordance with Rule 497 of
the Securities Act of 1933.
References herein to pages, paragraphs, or sentences are references to
such in the definitive versions of the Prospectus and SAI. Capitalized terms
used herein and not defined herein have the same meaning as in the Prospectus
and SAI.
The Fund hereby confirms that it has furnished the following information
to you specifically for use in the preparation of the Registration Statement,
the Amendment, the Prospectus, and SAI (to the extent that the following applies
to or describes the Fund and not with respect to information regarding any other
mutual fund):
o The names of the portfolios of the Fund, as they appear on page
2 of the prospectus and page 7 of the prospectus.
o The definition of the Fund on page 6 of the prospectus.
o The "Management Fee," "Other Expenses," and "Total Portfolio
Expenses" shown for the portfolios of the Fund in the Expense
Table on page 10, and accompanying note.
o The section entitled "The Funds" beginning on page 12 and ending
on page 14, except for the sentence to the effect that ". . . if
the Company believes that any Fund's response to any of these
events or conflicts insufficiently protects Owners, it will take
appropriate action on its own."
o The section entitled "The Investment Advisers," on page 14.
o The section entitled "Fund Expenses," on page 25.
* * *
Very truly yours,
X. XXXX PRICE INTERNATIONAL SERIES, INC.
By: _________________________
Name:
Title: Vice President
October 11, 1995
First Security Benefit Life Insurance
and Annuity Company of New York
Re: Registration Statement No. 33-83240 for
X. Xxxx Price Variable Annuity Account of First
Security Benefit Life Insurance and Annuity Company of New York
Dear Sirs:
This letter is delivered to you in connection with the Distribution
Agreement (the "Agreement") dated as of October 11, 1995 between you and the
undersigned relating to our distribution of certain variable annuity contracts,
interests in which have been registered with the Securities and Exchange
Commission (the "SEC") pursuant to the Registration Statement identified above.
This letter identifies information we have provided to you for inclusion in the
Registration Statement, as amended, on Form N-4, filed with the SEC, and the
definitive versions of the related prospectus and statement of additional
information for the Contracts (the "Prospectus" and "SAI," respectively), as
filed with the SEC on _________ in accordance with Rule 497 of the Securities
Act of 1933.
References herein to pages, paragraphs, or sentences are references to
the definitive versions of the Prospectus and SAI. Capitalized terms used herein
and not defined herein have the same meaning as in the Prospectus and SAI.
We have provided the following information to you specifically for use
in the preparation of the Registration Statement, the Amendment, the Prospectus,
and the SAI:
o The second and third sentences under the caption, "Application
for a Contract," on page 15 to the extent of references to the
Underwriter'seffectuation of redemptions from the X.Xxxx Price
mutual funds.
o The fourth sentence under the heading "Purchase Payments," on
page 16, to the extent of references to redemption of Fund
shares.
o The paragraph captioned "Distribution of the Contracts," on page
42.
o Item 29 of Part C of the Amendment, which lists officers of
Underwriter.
Further, to the extent Investment Services has agreed to perform an
administrative or operational service specifically described in the Prospectus
and not referred to in the preceding paragraph, you may rely upon the fact that
Investment Services shall perform such service.
* * *
It is understood that the opinion of counsel to First Security Benefit
Life Insurance and Annuity Company of New York to be furnished to us in
accordance with section 2 of the Distribution Agreement will not cover (i.e.,
will specifically exclude) all of the information referred to above, as well as
all information confirmed in writing by or on behalf of the Funds as being
provided by the Funds, and any omissions relating to, arising out of, or
pertaining to such provided information.
Very truly yours,
X. XXXX PRICE INVESTMENT SERVICES, INC.
By: _________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
SCHEDULE 1
Contracts Subject to Agreement
Contract Marketing Name Policy Form Nos. SEC Registration No.
---------------------------- --------------------------- -----------------------
X. Xxxx Price No-Load FSB 200; FSB 201 (4-94); File No. 33-83240
---------------------------- --------------------------- -----------------------
Variable Annuity FSB 201 (4-94)U; File No. 811-8726
---------------------------- --------------------------- -----------------------
FSB 202 (4-94);
---------------------------- --------------------------- -----------------------
FSB 203 (4-94);
---------------------------- --------------------------- -----------------------
FSB 211 (4-94);
---------------------------- --------------------------- -----------------------
FSB 212 (4-94)
---------------------------- --------------------------- -----------------------
SCHEDULE 2
----------
Separate Accounts, Subaccounts and Funds
Available Under the Contracts
-------------------------------- ---------------------------------- -----------------------------------
Separate Account Subaccount Funds
-------------------------------- ---------------------------------- -----------------------------------
X. Xxxx Price Variable Annuity X. Xxxx Price Equity Series, Inc.
Account of First Security Benefit
Life Insurance and Annuity Company o New America Growth Subaccount o X. Xxxx Price New America
of New York Growth Portfolio
o Equity Income Subaccount
o X. Xxxx Price Equity Income
o Personal Strategy Balanced Portfolio
Subaccount
o Personal Strategy
Balanced Portfolio
----------------------------- -----------------------------------
X. Xxxx Price International
Series, Inc.
o International o X. Xxxx Price
Stock Subaccount International Stock
Portfolio
----------------------------- -----------------------------------
X. Xxxx Price Fixed Income
Series, Inc.
o Limited-Term Bond o X. Xxxx Price Limited-Term
Subaccount Bond Portfolio
============================= ===================================
