FUND PARTICIPATION AGREEMENT
This
Agreement is entered into as of the 24th day of March 1997, between KANSAS CITY
LIFE INSURANCE COMPANY, a life insurance company organized under the laws of the
State of Missouri (“Insurance Company”), and each of DREYFUS VARIABLE INVESTMENT
FUND, THE DREYFUS SOCIALLY RESPONSIBLE GROWTH FUND, INC. and DREYFUS LIFE AND
ANNUITY INDEX FUND, INC. (d/b/a DREYFUS STOCK INDEX FUND) (each a
“Fund”).
ARTICLE
I
DEFINITIONS
1.1
|
“Act”
shall mean the Investment Company Act of 1940, as
amended.
|
1.2
|
“Board”
shall mean the Board of Directors or Trustees, as the case may be, of a
Fund, which has the responsibility for management and control of the
Fund.
|
1.3
|
“Business
Day” shall mean any day for which a Fund calculates net asset value per
share as described in the Fund’s
Prospectus.
|
1.4
|
“Commission”
shall mean the Securities and Exchange
Commission.
|
1.5
|
“Contract”
shall mean a variable annuity or life insurance contract that uses any
Participating Fund (as defined below) as an underlying investment medium.
Individuals who participate under a group Contract are
“Participants.”
|
1.6
|
“Contractholder”
shall mean any entity that is a party to a Contract with a Participating
Company (as defined below).
|
1.7
|
“Disinterested
Board Members” shall mean those members of the Board of a Fund that are
not deemed to be “interested persons” of the Fund, as defined by the
Act.
|
1.8
|
“Dreyfus”
shall mean The Dreyfus Corporation and its affiliates, including Dreyfus
Service Corporation.
|
1.9
|
“Participating
Companies” shall mean any insurance company (including Insurance Company)
that offers variable annuity and/or variable life insurance contracts to
the public and that has entered into an agreement with one or more of the
Funds.
|
1.10
|
“Participating
Fund” shall mean each Fund, including, as applicable, any series thereof,
specified in Exhibit A, as such Exhibit may be amended from time to time
by agreement of the parties hereto, the shares of which are available to
serve as the underlying investment medium for the aforesaid
Contracts.
|
1
1.11
|
“Prospectus”
shall mean the current prospectus and statement of additional information
of a Fund, as most recently filed with the
Commission.
|
1.12
|
“Separate
Account” shall mean each of Kansas City Life Variable Annuity Separate
Account and Kansas City Life Variable Universal Life Separate Account,
each of which is a separate account established by Insurance Company in
accordance with the laws of the State of
Missouri.
|
1.13
|
“Software
Program” shall mean the software program used by a Fund for providing Fund
and account balance information including net asset value per share. Such
PrograM may include the Lion System. In situations where the Lion System
or any other Software Program used by a Fund is not available, such
information may be provided by telephone. The Lion System shall be
provided to Insurance Company at no
charge.
|
1.14
|
“Insurance
Company’s General Account(s)” shall mean the general account(s) of
Insurance Company and its affiliates that invest in a
Fund.
|
ARTICLE
II
REPRESENTATIONS
2.1
|
Insurance
Company represents and warrants that (a) it is an insurance company duly
organized and in good standing under applicable law;- (b) it has legally
and validly established the Separate Account pursuant to the Missouri
Insurance Code for the purpose of offering to the public certain
individual and group variable annuity and life insurance contracts; (c) it
has registered the Separate Account as a unit investment trust under the
Act to serve as the segregated investment account for the Contracts; and
(d) the Separate Account is eligible to invest in shares of each
Participating Fund without such investment disqualifying any Participating
Fund as an investment medium for insurance company separate ,accounts supporting
variable annuity contracts or variable life insurance
contracts.
|
2.2
|
Insurance
Company represents and warrants that (a) the Contracts will be described
in a registration statement filed under the Securities Act of 1933, as
amended (“1933 Act”); (b) the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state
laws; and (c) the sale of the Contracts shall comply in all material
respects with state insurance law requirements. Insurance Company agrees
to notify each Participating Fund promptly of any investment restrictions
imposed by state insurance law and applicable to the Participating
Fund.
|
2
2.3
|
Insurance
Company represents and warrants that the income, gains and losses, whether
or not realized, from assets allocated to the Separate Account are, in
accordance with the applicable Contracts, to be credited to or charged
against such Separate Account without regard to other income, gains or
losses from assets allocated to any other accounts of Insurance Company.
Insurance Company represents and warrants that the assets of the Separate
Account are and will be kept separate from Insurance Company’s General
Account and any other separate accounts Insurance Company may have, and
will not be charged with liabilities from any business that Insurance
Company may conduct or the liabilities of any companies affiliated with
Insurance Company.
|
2.4
|
Each
Participating Fund represents that it is registered with the Commission
under the Act as an open-end, management investment company and possesses,
and shall maintain, all legal and regulatory licenses, approvals, consents
and/or exemptions required for the Participating Fund to operate and offer
its shares as an underlying investment medium for Participating Companies.
Each Participating Fund represents that its investment policies, fees,
operations and expenses are, and at all times will be, in compliance with
applicable federal and state securities
laws.
|
2.5
|
Each
Participating Fund represents that it is currently qualified as a
regulated investment company under Subchapter M of the Internal Revenue
Code of 1986, as amended (the “Code”), and that it will make every effort
to maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify Insurance Company immediately
upon having a reasonable basis for believing that it has ceased to so
qualify or that it might not so qualify in the
future.
|
2.6
|
Insurance
Company represents and agrees that the Contracts are currently, and at the
time of issuance will be, treated as life insurance policies or annuity
contracts, whichever is appropriate, under applicable provisions of the
Code, and that it will make every effort to maintain such treatment and
that it will notify each Participating Fund and Dreyfus immediately upon
having a reasonable basis for believing that the Contracts have ceased to
be so treated or that they might not be so treated in the future.
Insurance Company agrees that any prospectus offering a Contract that is a
“modified endowment contract,” as that term is defined in Section 7702A of
the Code, will identify such Contract as a modified endowment contract (or
policy).
|
2.7
|
Each
Participating Fund agrees that its assets shall be managed and invested in
a manner that complies with the requirements of Section 817(h) of the
Code.
|
3
2.8
|
Insurance
Company agrees that each Participating Fund shall be permitted (subject to
the other terms of this Agreement) to make its shares available to other
Participating Companies and
Contractholders.
|
2.9
|
Each
Participating Fund represents and warrants that any of its directors,
trustees, officers, employees, investment advisers, and other
individuals/entities who deal with the money and/or securities of the
Participating Fund are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the
Participating Fund in an amount not less than that required by Rule 17g-1
under the Act. The aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable bonding company. Each
Participating Fund represents and warrants that it is covered (along with
certain other named parties) by a directors and officers/errors and
omissions insurance policy in an amount, as of the date of this Agreement,
of $100 million.
|
2.10
|
Insurance
Company represents and warrants that all of its employees and agents who
deal with the money and/or securities of each Participating Fund are and
shall continue to be at all times covered by a blanket fidelity bond or
similar coverage in an amount not less than the coverage required to be
maintained by the Participating Fund. The aforesaid Bond shall include
coverage for larceny and embezzlement and shall be issued by a reputable
bonding company.
|
2.11
|
Insurance
Company agrees that The Dreyfus Corporation and Dreyfus Service
Corporation shall each be deemed a third party beneficiary under this
Agreement and may enforce any and all rights conferred by virtue of this
Agreement.
|
ARTICLE
III
FUND
SHARES
3.1
|
The
Contracts funded through the Separate Account will provide for the
investment of certain amounts in shares of each Participating
Fund.
|
3.2
|
Each
Participating Fund agrees to make its shares available for purchase at the
then applicable net asset value per share by Insurance Company and the
Separate Account on each Business Day pursuant to rules of the Commission.
Notwithstanding the foregoing, each Participating Fund may refuse to sell
its shares to any person, or suspend or terminate the offering of its
shares, if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of its Board, acting in
good faith and in light of its fiduciary duties under federal and any
applicable state laws, necessary
and
|
4
in the
best interests of the Participating Fund’s shareholders.
3.3
|
Each
Participating Fund agrees that shares of the Participating Fund will be
sold only to (a) Participating Companies and their separate accounts or
(b) “qualified pension or retirement plans” as determined under Section
817(h)(4) of the Code. Except as otherwise set forth in this Section 3.3,
no shares of any Participating Fund will be sold to the general
public.
|
3.4
|
Each
Participating Fund shall use its best efforts to provide closing net asset
value, dividend and capital gain information on a per-share basis to
Insurance Company by 6:00 p.m. Eastern time on each Business Day. Any
material errors in the calculation of net asset value, dividend and
capital gain information shall be reported immediately upon discovery to
Insurance Company. Non-material errors will be corrected in the next
Business Day’s net asset value per
share.
|
3.5
|
By
the end of each Business Day, Insurance Company will use the information
described in Sections 3.2 and 3.4 to calculate. the unit values of the
Separate Account for the day. Using this unit value, Insurance Company
will process the day’s Separate Account transactions received by it by the
close of trading on the floor of the New York Stock Exchange (currently
4:00 p.m. Eastern time) to determine the net dollar amount of each
Participating Fund’s shares that will be purchased or redeemed at that
day’s closing net asset value per share. The net purchase or redemption
orders will be transmitted to each Participating Fund by Insurance Company
by 11:00 a.m. Eastern time on the Business Day next following Insurance
Company’s receipt of that information. Subject to Sections 3.6 and 3.8,
all purchase and redemption orders for Insurance Company’s General
Accounts shall be effected at the net asset value per share of each
Participating Fund next calculated after receipt of the order by the
Participating Fund or its Transfer
Agent.
|
3.6
|
Each
Participating Fund appoints Insurance Company as its agent for the limited
purpose of accepting orders for the purchase and redemption of
Participating Fund shares for the Separate Account. Each Participating
Fund will execute orders at the applicable net asset value per share
determined as of the close of trading on the day of receipt of such orders
by Insurance Company acting as agent (“effective trade date”), provided
that the Participating Fund receives notice of such orders by 11:00 a.m.
Eastern time on the next following Business Day and, if such orders
request the purchase of Participating Fund shares, the conditions
specified in Section 3.8, as applicable, are satisfied. A redemption or
purchase request that does not satisfy the conditions specified above and
in Section 3.8,
|
5
as
applicable, will be effected at the net asset value per share computed on the
Business Day immediately preceding the next following Business Day upon which
such conditions have been satisfied in accordance with the requirements of this
Section and Section 3.8.
3.7
|
Insurance
Company will make its best efforts to notify each applicable Participating
Fund in advance of any unusually large purchase or redemption
orders.
|
3.8
|
If
Insurance Company’s order requests the purchase of a Participating Fund’s
shares, Insurance Company will pay for such purchases by wiring Federal
Funds to the Participating Fund or its designated custodial account on the
day the order is transmitted. Insurance Company shall make all reasonable
efforts to transmit to the applicable Participating Fund payment in
Federal Funds by 12:00 noon Eastern time on the Business Day the
Participating Fund receives the notice of the order pursuant to Section
3.5. Each applicable Participating Fund will execute such orders at the
applicable net asset value per share determined as of the close of trading
on the effective trade date if the Participating Fund receives payment in
Federal Funds by 12:00 midnight Eastern time on the Business Day the
Participating Fund receives the notice of the order pursuant to Section
3.5. If payment in Federal Funds for any purchase is not received or is
received by a Participating Fund after 12:00 noon Eastern time on such
Business Day, Insurance Company shall promptly, upon each applicable
Participating Fund’s request, reimburse the respective Participating Fund
for any charges, costs, fees, interest or other expenses incurred by the
Participating Fund in connection with any advances to, or borrowings or
overdrafts by, the Participating Fund, or any similar expenses incurred by
the Participating Fund, as a result of portfolio transactions effected by
the Participating Fund based upon such purchase request. If Insurance
Company’s order requests the redemption of any Participating Fund’s shares
valued at or greater than $1 million dollars, the Participating Fund will
wire such amount to Insurance Company within seven days of the
order.
|
3.9
|
Each
Participating Fund has the obligation to ensure that its shares are
registered with applicable federal agencies at all
times.
|
3.10
|
Each
Participating Fund will confirm each purchase or redemption order made by
Insurance Company. Transfer of Participating Fund shares will be by book
entry only. No share certificates will be issued to Insurance Company.
Insurance Company will record shares ordered from a Participating Fund in
an appropriate title for the corresponding
account.
|
6
3.11
|
Each
Participating Fund shall credit Insurance Company with the appropriate
number of shares.
|
3.12
|
On
each ex-dividend date of a Participating Fund or, if not a Business Day,
on the first Business Day thereafter, each Participating Fund shall
communicate to Insurance Company the amount of dividend and capital gain,
if any, per share. All dividends and capital gains shall be automatically
reinvested in additional shares of the applicable Participating Fund at
the net asset value per share on the ex-dividend date. Each Participating
Fund shall, on the day after the ex-dividend date or, if not a Business
Day, on the first Business Day thereafter, notify Insurance Company of the
number of shares so issued.
|
ARTICLE
IV
STATEMENTS
AND REPORTS
4.1
|
Each
Participating Fund shall provide monthly statements of account as of the
end of each month for all of Insurance Company’s accounts by the fifteenth
(15th) day of the following month.
|
4.2
|
Each
Participating Fund shall distribute to Insurance Company copies of the
Participating Fund’s Prospectuses (in hard. copy, camera ready form
or- on
diskette, as specified by insurance Company), !proxy materials, notices,
periodic reports. and other printed materials (which. the Participating
Fund customarily provides to its shareholders) in quantities as Insurance
Company may reasonably request for distribution to each Contractholder and
Participant.
|
4.3
|
Each Participating
Fund will provide to Insurance Company at least one complete copy of all
registration statements, Prospectuses, reports, proxy statements, sales
literature and other promotional materials, applications for
exemptions, requests for no-action letters, and all amendments to
any of the above, that relate to the Participating Fund or its shares,
contemporaneously with the filing of such document with the Commission or
other regulatory authorities.
|
4.4
|
Insurance
Company will provide to each Participating Fund at least one copy of all
registration statements, Prospectuses, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above,
that relate to the Contracts or the Separate Account, contemporaneously
with the filing of such document with the
Commission.
|
7
ARTICLE
V
EXPENSES
5.1
|
The
charge to each Participating Fund for all expenses and costs of the
Participating Fund, including but not limited to management fees,
administrative expenses and legal and regulatory costs, will be made in
the determination of the Participating Fund’s daily net asset value per
share so as to accumulate to an annual charge at the rate set forth in the
Participating Fund’s Prospectus. Excluded from the expense limitation
described herein shall be brokerage commissions and transaction fees and
extraordinary expenses.
|
5.2
|
Except
as provided in this Article V and, in particular in the next sentence,
Insurance)Company shall not be required to pay directly any expenses of
any Participating Fund or expenses relating to the distribution of its
shares. Insurance Company shall pay the following expenses or
costs:
|
(a)
|
Such amount of the
production expenses of any Participating Fund materials, including
the cost of printing a Participating-Fund’s
Prospectus, or marketing materials for prospective Insurance Company
Contractholders and Participants as Dreyfus and Insurance Company shall
agree from time to time.
|
(b)
|
Distribution
expenses of any Participating Fund materials or marketing materials
for prospective Insurance Company Contractholders and
Participants.
|
(c)
|
Distribution
expenses of any Participating Fund materials or marketing materials
for Insurance Company Contractholders and
Participants.
|
Except as
provided herein, all other expenses of each Participating Fund shall not be
borne by Insurance Company.
ARTICLE
VI
EXEMPTIVE
RELIEF
6.1
|
Insurance
Company has reviewed a copy of the order dated December 23, 1987 of the
Securities and Exchange Commission under Section 6(c) of the Act with
respect to Dreyfus Variable Investment Fund and a copy of the order dated
August 23, 1989 of the Securities and Exchange Commission under Section
6(c) of the Act with respect to Dreyfus Life and Annuity Index Fund, Inc.
and, in particular, has reviewed the conditions to the relief set forth in
each related Notice. As set forth therein, if Dreyfus Variable Investment
Fund or Dreyfus Life and Annuity Index Fund, Inc. is a Participating Fund,
Insurance Company agrees, as applicable, to report any potential or
existing conflicts
|
8
promptly
to the respective Board of Dreyfus Variable Investment Fund and/or Dreyfus Life
and Annuity Index Fund, Inc. and, in particular, whenever contract voting
instructions are disregarded, and recognizes that it will be responsible for
assisting each applicable Board in carrying out its responsibilities under such
application. Insurance Company agrees to carry out such responsibilities with a
view to the interests of existing Contractholders.
The
Dreyfus Socially Responsible Growth Fund, Inc., if it is a Participating Fund,
shall furnish Insurance Company with a copy of its application for an order of
the Securities and Exchange Commission under Section 6(c) of the Act for mixed
and shared funding relief, and the notice of such application and order when
issued by the SEC. Insurance Company agrees to comply with the conditions on
which such order is issued, including reporting any potential or existing
conflicts promptly to the Board of The Dreyfus Socially Responsible Growth Fund,
Inc., and in particular whenever Contractholder voting instructions are
disregarded, to the extent such conditions are not materially different from the
conditions of the mixed and shared funding relief obtained by Dreyfus Variable
Investment Fund and Dreyfus Life and Annuity Index Fund, Inc., respectively; and
recognizes that it shall be responsible for assisting the Board of The Dreyfus
Socially Responsible Growth Fund, Inc. in carrying out its responsibilities in
connection with such order. Insurance Company agrees to carry out such
responsibilities with a view to the interests of existing
Contractholders.
6.2
|
If
a majority of the Board, or a majority of Disinterested Board Members,
determines that a material irreconcilable conflict exists with regard to
Contractholder investments in a Participating Fund, the Board shall give
prompt notice to all Participating Companies and any other Participating
Fund. If the Board determines that Insurance Company is responsible for
causing or creating said conflict, Insurance Company shall at its sole
cost and expense, and to the extent reasonably practicable (as determined
by a majority of the Disinterested Board Members), take such action as is
necessary to remedy or eliminate the irreconcilable material conflict.
Such necessary action may include, but shall not be limited
to:
|
(a)
|
Withdrawing the
assets allocable to the Separate Account from the Participating
Fund and reinvesting such assets in another Participating Fund (if
applicable) or a different investment medium, or submitting the question
of whether such segregation should be implemented to a vote of all
affected Contractholders; and/or
|
9
(b)
|
Establishing
a new registered management investment
company.
|
6.3
|
If
a material irreconcilable conflict arises as a result of a decision by
Insurance Company to disregard Contractholder voting instructions and said
decision represents a minority position or would preclude a majority vote
by all Contractholders having an interest in a Participating Fund,
Insurance Company may be required, at the Board’s election, to withdraw
the investments of the Separate Account in that Participating
Fund.
|
6.4
|
For
the purpose of this Article, a majority of the Disinterested Board Members
shall determine whether or not any proposed action adequately remedies any
irreconcilable material conflict, but in no event will any Participating
Fund be required to bear the expense of establishing a new funding medium
for any Contract. Insurance Company shall not be required by this Article
to establish a new funding medium for any Contract if an offer to do so
has been declined by vote of a majority of the Contractholders materially
adversely affected by the irreconcilable material
conflict.
|
6.5
|
No
action by Insurance Company taken or omitted, and no action by the
Separate Account or any Participating Fund taken or omitted as a result of
any act or failure to act by Insurance Company pursuant to this Article
VI, shall relieve Insurance Company of its obligations under, or otherwise
affect the operation of, Article V.
|
ARTICLE
VII
VOTING OF
PARTICIPATING FUND SHARES
7.1
|
Each
Participating Fund shall provide Insurance Company with copies, at no cost
to Insurance Company, of the Participating Fund’s proxy material, reports
to shareholders and other communications to shareholders in such quantity
as Insurance Company shall reasonably require for distributing to
Contractholders or Participants.
|
Insurance
Company shall:
(a)
|
solicit
voting instructions from Contractholders or Participants on a timely basis
and in accordance with applicable
law;
|
(b)
|
vote
the Participating Fund shares in accordance with instructions received
from Contractholders or Participants;
and
|
10
(c)
|
vote
the Participating Fund shares for which no instructions have been received
in the same proportion as Participating Fund shares for which instructions
have been received.
|
Insurance
Company agrees at all times to vote its General Account shares in the same
proportion as the Participating Fund shares for which instructions have been
received from Contractholders or Participants. Insurance Company further agrees
to be responsible for assuring that voting the Participating Fund shares for the
Separate Account is conducted in a manner consistent with other Participating
Companies.
7.2
|
Insurance
Company agrees that it shall not, without the prior written consent of
each applicable Participating Fund and Dreyfus, solicit, induce or
encourage Contractholders to (a) change or supplement the Participating
Fund’s current investment adviser or (b) change, modify, substitute, add
to or delete from the current investment media for the
Contracts.
|
ARTICLE
VIII
MARKETING
AND REPRESENTATIONS
8.1
|
Each
Participating Fund or its underwriter shall periodically furnish Insurance
Company with the following documents, in quantities as Insurance Company
may reasonably request:
|
(a)
|
Current
Prospectus and any supplements thereto;
and
|
(b)
|
Other
marketing materials.
|
Expenses
for the production of such documents shall be borne by Insurance Company in
accordance with Section 5.2 of this Agreement.
8.2
|
Insurance
Company shall designate certain persons or entities that shall have the
requisite licenses to solicit applications for the sale of Contracts. No
representation is made as to the number or amount of Contracts that are to
be sold by Insurance Company. Insurance Company shall make reasonable
efforts to market the Contracts and shall comply with all applicable
federal and state laws in connection
therewith.
|
8.3
|
Insurance
Company shall furnish, or shall cause to be furnished, to each applicable
Participating Fund or its designee, each piece of sales literature or
other promotional material in which the Participating Fund,
its
|
11
investment
adviser or the administrator is named, at least fifteen Business Days prior to
its use. No such material shall be used unless the Participating Fund or its
designee approves such material. Such approval (if given) must be in writing and
shall be presumed not given if not received within ten Business Days after
receipt of such material. Each applicable Participating Fund or its designee, as
the case may be, shall use all reasonable efforts to respond within ten days of
receipt.
8.4
|
Insurance
Company shall not give any information or make any representations or
statements on behalf of a Participating Fund or concerning a Participating
Fund in connection with the sale of the Contracts other than the
information or representations contained in the registration statement or
Prospectus of, as may be amended or supplemented from time to time, or in
reports or proxy statements for, the applicable Participating Fund, or in
sales literature or other promotional material approved by the applicable
Participating Fund.
|
8.5
|
Each
Participating Fund shall furnish, or shall cause to be furnished, to
Insurance Company, each piece of the Participating Fund’s sales literature
or other promotional material in which Insurance Company, including its
affiliated broker-dealer, or the Separate Account is named, at least
fifteen Business Days prior to its use. No such material shall be used
unless Insurance Company approves such material. Such approval (if given)
must be in writing and shall be presumed not given if not received within
ten Business Days after receipt of such material. Insurance Company shall
use all reasonable efforts to respond within ten days of
receipt.
|
8.6
|
Each
Participating Fund shall not, in connection with the sale of Participating
Fund shares, give any information or make any representations on behalf of
Insurance Company or concerning Insurance Company, the Separate Account,
or the Contracts other than the information or representations contained
in a registration statement or prospectus for the Contracts, as may be
amended or supplemented from time to time, or in published reports for the
Separate Account that are in the public domain or approved by Insurance
Company for distribution to Contractholders or Participants, or in sales
literature or other promotional material approved by Insurance
Company.
|
8.7
|
For
purposes of this Agreement, the phrase “sales literature or other
promotional material” or words of similar import include, without
limitation, advertisements (such as material published, or designed for
use, in a newspaper, magazine or other periodical, radio, television,
telephone
|
12
or tape
recording, videotape display, signs or billboards, motion pictures or other
public media), sales literature (such as any written communication distributed
or made generally available to customers or the public, including brochures,
circulars, research reports, market letters, form letters, seminar texts, or
reprints or excerpts of any other advertisement, sales literature, or published
article), educational or training materials or other communications distributed
or made generally available to some or all agents or employees, registration
statements, prospectuses, statements of additional information, shareholder
reports and proxy materials, and any other material constituting sales
literature or advertising under National Association of Securities Dealers, Inc.
rules, the Act or the 1933 Act.
ARTICLE
IX
INDEMNIFICATION
9.1
|
Insurance Company
agrees to indemnify and hold harmless each Participating Fund, Dreyfus,
each respective Participating Fund’s investment adviser and sub-investment
adviser (if applicable), each respective Participating Fund’s distributor,
and their respective affiliates, and each of their directors, trustees,
officers, employees, agents and each person, if any, who controls or is
associated with any of the foregoing entities or persons within the
meaning of the 1933 Act (collectively, the “Indemnified Parties” for
purposes of Section 9.1), 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) for which the Indemnified Parties may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect to thereof) (i) arise out of or are
based upon any untrue statement or alleged untrue statement of any
material fact contained in information furnished by Insurance Company for
use in the registration statement or Prospectus or sales literature or
advertisements of the respective Participating Fund or with respect to the
Separate Account or Contracts, or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading; (ii) arise out of or as a result of conduct, statements or
representations (other than statements or representations contained in the
Prospectus and sales literature or advertisements of the respective
Participating Fund) of Insurance Company or its agents, with respect to
the sale and distribution of Contracts for which the respective
Participating Fund’s shares are an underlying investment; (iii) arise out
of the wrongful conduct of
|
13
Insurance
Company or persons under its control with respect to the sale or distribution of
the Contracts or the respective Participating Fund’s shares; (iv) arise out of
Insurance Company’s incorrect calculation and/or untimely reporting of net
purchase or redemption orders; or (v) arise out of any breach by Insurance
Company of a material term of this Agreement or as a result of any failure by
Insurance Company to provide the services and furnish the materials or to make
any payments provided for in this Agreement. Insurance Company will reimburse
any Indemnified Party in connection with investigating or defending any such
loss, claim, damage, liability or action; provided, however, that with respect
to clauses (i) and (ii) above Insurance Company will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon any untrue statement or omission or alleged omission made in
such registration statement, prospectus, sales literature, or advertisement in
conformity with written information furnished to Insurance Company by the
respective Participating Fund specifically for use therein. This indemnity
agreement will be in addition to any liability which Insurance Company may
otherwise have.
9.2
|
Each
Participating Fund severally agrees to indemnify and hold harmless
Insurance Company, its affiliated broker- dealer, and each of their
directors, officers, employees, agents and each person, if any, who
controls Insurance Company within the meaning of the 1933 Act against any
losses, claims, damages or liabilities to which Insurance Company or any
such director, officer, employee, agent or controlling person may become
subject, under the 1933 Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) (1) arise out of or
are based upon any untrue statement or alleged untrue statement of any
material fact contained in the registration statement or Prospectus or
sales literature or advertisements of the respective Participating Fund;
(2) arise out of or are based upon the omission to state in the
registration statement or Prospectus or sales literature or advertisements
of the respective Participating Fund any material fact required to be
stated therein or necessary to make the statements therein not misleading;
or (3) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration
statement or Prospectus or sales literature or advertisements with respect
to the Separate Account or the Contracts and such statements were based on
information provided to Insurance Company by the respective Participating
Fund; and the respective Participating Fund will reimburse any legal or
other expenses reasonably incurred by Insurance Company or any such
director, officer, employee, agent or controlling person in connection
with
|
14
investigating
or defending any such loss, claim, damage, liability or action; provided,
however, that the respective Participating Fund will not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or omission or alleged omission made in
such registration statement, Prospectus, sales literature or advertisements in
conformity with written information furnished to the respective Participating
Fund by Insurance Company specifically for use therein. This indemnity agreement
will be in addition to any liability which the respective Participating Fund may
otherwise have.
9.3
|
Each
Participating Fund severally shall indemnify and hold Insurance Company
harmless against any and all liability, loss, damages, costs or expenses
which Insurance Company may incur, suffer or be required to pay due to the
respective Participating Fund’s (1) incorrect calculation of the daily net
asset value, dividend rate or capital gain distribution rate; (2)
incorrect reporting of the daily net asset value, dividend rate or capital
gain distribution rate; and (3) untimely reporting of the net asset value,
dividend rate or capital gain distribution rate; provided that the
respective Participating Fund shall have no obligation to indemnify and
hold harmless Insurance Company if the incorrect calculation or-incorrect
or untimely reporting was the result of incorrect information furnished by
Insurance Company or information furnished untimely by Insurance Company
or otherwise as a result of or relating to a breach of this Agreement by
Insurance Company.
|
9.4
|
Promptly
after receipt by an indemnified party under this Article of notice of the
commencement of any action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party under this
Article, notify the indemnifying party of the commencement thereof. The
omission to so notify the indemnifying party will not relieve the
indemnifying party from any liability under this Article IX, 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. In case any such action is
brought against any indemnified party, and it notified the indemnifying
party of the commencement thereof, the indemnifying party will be entitled
to participate therein and, to the extent that it may wish, assume the
defense thereof, with counsel satisfactory to such indemnified party, and
to the extent that the indemnifying party has given notice to such effect
to the indemnified party and is performing its obligations under this
Article, the indemnifying party shall not be liable for any legal or other
expenses subsequently incurred by such
indemnified
|
15
party in
connection with the defense thereof, other than reasonable costs of
investigation. Notwithstanding the foregoing, in any such proceeding, any
indemnified party shall have the right to retain its own counsel, but the fees
and expenses of such counsel shall be at the expense of such indemnified party
unless (i) the indemnifying party and the indemnified party shall have mutually
agreed to the retention of such counsel or (ii) the named parties to any such
proceeding (including any impleaded parties) include both the indemnifying party
and the indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests between
them. The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent.
A
successor by law of the parties to this Agreement shall be entitled to the
benefits of the indemnification contained in this Article IX. The provisions of
this Article IX shall survive termination of this Agreement.
9.5
|
Insurance
Company shall indemnify and hold each respective Participating Fund,
Dreyfus and sub-investment adviser of the Participating Fund harmless
against any tax liability incurred by the Participating Fund under Section
851 of the Code arising from purchases or redemptions by Insurance
Company’s General Accounts or the account of its
affiliates.
|
ARTICLE
X
COMMENCEMENT
AND TERMINATION
10.1
|
This
Agreement shall be effective as of the date hereof and shall continue in
force until terminated in accordance with the provisions
herein.
|
10.2
|
This
Agreement shall terminate without
penalty:
|
(a)
|
As to any
Participating Fund, at the option of Insurance Company or the
Participating Fund at any time from the date hereof upon 180 days’ notice,
unless a shorter time is agreed to by the respective Participating Fund
and Insurance Company;
|
(b)
|
As to any
Participating Fund, at the option of Insurance Company, if shares
of that Participating Fund are not reasonably available to meet the
requirements of the Contracts as determined by Insurance Company. Prompt
notice of election to terminate shall be furnished by Insurance Company,
said termination to be effective ten days after receipt of notice unless
the Participating Fund makes available a sufficient
number
|
16
of shares
to meet the requirements of the Contracts within said ten-day
period;
(c)
|
As
to a Participating Fund, at the option of Insurance Company, upon the
institution of formal proceedings against that Participating Fund by the
Commission, National Association of Securities Dealers or any other
regulatory body, the expected or anticipated ruling, judgment or outcome
of which would, in Insurance Company’s reasonable judgment, materially
impair that Participating Fund’s ability to meet and perform the
Participating Fund’s obligations and duties hereunder. Prompt notice of
election to terminate shall be furnished by Insurance Company with said
termination to be effective upon receipt of
notice;
|
(d)
|
As
to a Participating Fund, at the option of each Participating Fund, upon
the institution of formal proceedings against Insurance Company by the
Commission, National Association of Securities Dealers or any other
regulatory body, the expected or anticipated ruling, judgment or outcome
of which would, in the Participating Fund’s reasonable judgment,
materially impair Insurance Company’s ability to meet and perform
Insurance Company’s obligations and duties hereunder. Prompt notice of
election to terminate shall be furnished by such Participating Fund with
said termination to be effective upon receipt of
notice;
|
(e)
|
As
to a Participating Fund, at the option of that Participating Fund, if the
Participating Fund shall determine, in its sole judgment reasonably
exercised in good faith, that Insurance Company has suffered a material
adverse change in its business or financial condition or is the subject of
material adverse publicity and such material adverse change or material
adverse publicity is likely to have a material adverse impact upon the
business and operation of that Participating Fund or Dreyfus, such
Participating Fund shall notify Insurance Company in writing of such
determination and its intent to terminate this Agreement, and after
considering the actions taken by Insurance Company and any other changes
in circumstances since the giving of such notice, such determination of
the Participating Fund shall continue to apply on the sixtieth (60th) day
following the giving of such notice, which sixtieth day shall be the
effective date of termination;
|
(f)
|
As
to a Participating Fund, upon termination of the Investment Advisory
Agreement between that Participating Fund and Dreyfus or its successors
unless
|
17
Insurance
Company specifically approves the selection of a new Participating Fund
investment adviser after having been given a reasonable opportunity to do so.
Such Participating Fund shall promptly furnish notice of such termination to
Insurance Company;
(g)
|
As
to a Participating Fund, in the event that Participating Fund’s shares are
not registered, issued or sold in accordance with applicable federal law,
or such law precludes the use of such shares as the underlying investment
medium of Contracts issued or to be issued by Insurance Company.
Termination shall be effective immediately as to that Participating Fund
only upon such occurrence without
notice;
|
(h)
|
At
the option of a Participating Fund upon a determination by its Board in
good faith that it is no longer advisable and in the best interests of
shareholders of that Participating Fund to continue to operate pursuant to
this Agreement Termination pursuant to this Subsection (h) shall be
effective upon notice by such Participating Fund to Insurance Company of
such termination;
|
(i)
|
At the Option of a
Participating Fund if the Contracts cease to qualify as annuity
contracts or life insurance policies, as applicable, under the Code; or
if such Participating Fund reasonably believes that the Contracts may fail
to so qualify;
|
(j)
|
At
the option of any party to this Agreement, if another party shall breach
any material provision of this Agreement and such breach continues to be
unremedied for a period of thirty days after the receipt of written notice
specifying such breach. The right to cure a breach of a material provision
of this Agreement pursuant to this paragraph will not be available, and
this Agreement shall terminate immediately at the option of the
non-breaching party, with respect to a second breach of the same or a
substantially similar material provision of this Agreement within any six
month period after notice of the cure of the initial
breach;
|
(k)
|
At the option of a
Participating Fund, if the Contracts are not registered, issued or
sold in accordance with applicable federal and/or state law;
or
|
(l)
|
Upon
assignment of this Agreement, unless made with the written consent of
every other non-assigning
party.
|
18
(m)
|
As
to a Participating Fund, at the option of Insurance Company, if Insurance
Company shall determine, in its sole judgment reasonably exercised in good
faith, that the Participating Fund has suffered a material adverse change
in its business or financial condition or is the subject of material
adverse publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the business
and operation of Insurance Company, in which case Insurance Company shall
notify the Participating Fund in writing of such determination and its
intent to terminate this Agreement, and after considering the actions
taken by the Participating Fund and any other changes in circumstances
since the giving of such notice, such determination of Insurance Company
shall continue to apply on the sixtieth (60th) day following the giving Of
such. notice, Which sixtieth day shall be the effective date of
termination.
|
(n)
|
As
to a Participating Fund, if the Participating Fund fails to qualify as a
regulated investment company under Subchapter M of the Code, or fails to
manage and invest in a manner that complies with the requirements of
Section 817(h) of the Code.
|
Any such
termination pursuant to Section 10.2a, 10.2d, 10.2e, 10.2f or 10.2k herein shall
not affect the operation of Article V of this Agreement. Any termination of this
Agreement shall not affect the operation of Article TX of this
Agreement.
10.3
|
Notwithstanding
any termination of this Agreement pursuant to Section 10.2 hereof,
Insurance Company, at its option, may continue to purchase additional
shares of that Participating Fund, as provided below, pursuant to the
terms and conditions of this Agreement for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to
as “Existing Contracts”). Under Such circumstances, only the owners of the
Existing Contracts or Insurance Company, whichever shall have legal
authority to do so, shall be permitted to reallocate investments in that
Participating Fund, redeem investments in that Participating Fund and/or
invest in that Participating Fund upon the making of additional purchase
payments under the Existing Contracts. Furthermore, the provisions of this
Agreement shall remain in effect and thereafter either that Participating
Fund or Insurance Company may terminate the Agreement as to that
Participating Fund, as so continued pursuant to this Section 10.3, upon
prior written notice to the other party, such notice to be for a period
that is reasonable under the circumstances but, if given by the
Participating Fund, need not be for
longer
|
19
than the
greater of (i) six months or (ii) the period required by Insurance Company to
obtain any necessary approval from the Commission or any state insurance
regulatory authority provided that Insurance Company makes a reasonable good
faith effort to obtain such approvals in a reasonable period of
time.
10.4
|
Termination
of this Agreement as to any one Participating Fund shall not be deemed a
termination as to any other Participating Fund unless Insurance Company or
such other Participating Fund, as the case may be, terminates this
Agreement as to such other Participating Fund in accordance with this
Article X.
|
ARTICLE
XI
AMENDMENTS
11.1
|
Any
other changes in the terms of this Agreement, except for the addition or
deletion of any Participating Fund as specified in Exhibit A, shall be
made by agreement in writing between Insurance Company and each respective
Participating Fund.
|
ARTICLE
XII
NOTICE
12.1
|
Each
notice required by this Agreement shall be given by certified mail, return
receipt requested, to the appropriate parties at the following
addresses:
|
Insurance
Company:
|
Kansas
City Life Insurance Company
|
0000 Xxxxxxxx
Xxxxxx Xxxx, Xxx0xxxx
00000
Attn: Xxxxxxx X. Xxxx
Participating
Funds: [Name
of Fund]
c/o
Premier Mutual Fund Services, Inc.
000 Xxxx
Xxxxxx, 0xx Xxxxx Xxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxxx Xxxxxx, Esq.
With
copies
to: [Name, of
Fund]
c/o The
Dreyfus Corporation 000 Xxxx Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxx, Esq.
Xxxxxxxx
X. Xxxxxxx, Esq.
Stroock
& Stroock & Xxxxx
0 Xxxxxxx
Xxxxxx
Xxx Xxxx,
Xxx Xxxx 00000-0000
20
Attn:
Xxxxx X. Xxxx, Esq.
Xxxxxx X.
Xxxxxxx, Esq.
Notice
shall be deemed to be given on the date of receipt by the addresses as evidenced
by the return receipt.
ARTICLE
XIII
MISCELLANEOUS
13.1
|
This
Agreement has been executed on behalf of each party by the undersigned
officer in his/her capacity as an officer. The obligations of this
Agreement shall only be binding upon the assets and property of the party
and shall not be binding upon any director, trustee, officer or
shareholder of the individually. It is agreed that the obligations of the
Funds are several and not joint, that no Fund shall be liable for any
amount owing by another Fund and that the Funds have executed one
instrument for convenience only.
|
13.2
|
Each
party shall cooperate with each other party in connection with inquiries
by appropriate governmental authorities (including without limitation the
Commission, the National. Association of Securities Dealers and state
insurance regulators) relating to this Agreement or the transactions
contemplated by this Agreement_
|
13.3
|
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 are
entitled to under state and federal
laws.
|
13.4
|
Subject
to the requirement of legal process and regulatory authority, each party
shall treat as confidential the names and addresses of the Contractholders
and all information reasonably identified as confidential in writing by
any other party and, except as permitted by this Agreement or as otherwise
required by applicable ‘law or regulation, shall not disclose, disseminate
or utilize such names and addresses and other confidential information
without the written consent of the affected party until such time as it
may come into the public domain.
|
13.5
|
The
captions in this Agreement are included for convenience of reference only
and in no way define or delineate any of the provisions of this Agreement
or otherwise affect their construction or
effect.
|
13.6
|
If
any provision of this Agreement shall be held invalid by a court decision,
statute, rule or otherwise, the remainder of the Agreement shall not be
affected.
|
21
ARTICLE
XIV
LAW
14.1
|
This
Agreement shall be construed in accordance with the internal laws of the
State of New York, without giving effect to principles of conflict of
laws.
|
22
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
KANSAS
CITY LIFE INSURANCE COMPANY
By: /s/
Xxxxxxx X. Xxxx
Its: SVP
Attest: /s/
|
|
DREYFUS
LIFE AND ANNUITY INDEX FUND, INC. (d/b/a/ DREYFUS STOCK INDEX FUND)
By: /s/
Xxxxxxxxx Xxxxxx
Its: Vice
President & Asst. Secretary
Attest: /s/
|
|
THE
DREYFUS SOCIALLY RESPONSIBLE GROWTH FUND, INC.
By: /s/
Xxxxxxxxx Xxxxxx
Its: Vice
President & Asst. Secretary
Attest: /s/
|
|
DREYFUS
VARIABLE INVESTMENT FUND
By: /s/
Xxxxxxxxx Xxxxxx
Its: Vice
President & Asst. Secretary
Attest: /s/
|
|
23
EXHIBIT
A
LIST
OF PARTICIPATING FUNDS
Dreyfus
Stock Index Fund
Dreyfus
Variable Investment Fund:
|
Small
Cap Portfolio
|
|
Capital
Appreciation Portfolio
|
24
SCHEDULE
A
Fund
Code Fund
Name
763 Dreyfus Stock
Index Fund
112 Dreyfus Variable
Investment Fund - Capital Appreciation Portfolio
121 Dreyfus Variable
Investment Fund - Small Cap Portfolio