PARTICIPATION AGREEMENT
Among
X. XXXX PRICE EQUITY SERIES, INC.,
X. XXXX PRICE INTERNATIONAL SERIES, INC.,
X. XXXX PRICE INVESTMENT SERVICES, INC.,
and
First Symetra National Life Insurance Company
THIS AGREEMENT, made and entered into as of this 18th day of October,
2012 by and among First Symetra National Life Insurance Company of New York
(hereinafter, the "Company"), a New York insurance company, on its own
behalf and on behalf of each segregated asset account of the Company set forth
on Schedule A hereto as may be amended from time to time (each account
hereinafter referred to as the "Account"), and the undersigned funds, each, a
corporation organized under the laws of Maryland (each hereinafter referred
to as the "Fund") and X. Xxxx Price Investment Services, Inc. (hereinafter
the "Underwriter"), a Maryland corporation.
WHEREAS, the Fund engages in business as an open-end management
investment company and is or will be available to act as the investment
vehicle for separate accounts established for variable life insurance and
variable annuity contracts (the "Variable Insurance Products") to be offered
by insurance companies which have entered into participation agreements with
the Fund and Underwriter (hereinafter "Participating Insurance Companies");
and
WHEREAS, the beneficial interest in the Fund is divided into several
series of shares, each designated a "Portfolio" and representing the interest
in a particular managed portfolio of securities and other assets; and
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission ("SEC") granting Participating Insurance Companies and
variable annuity and variable life insurance separate accounts exemptions from
the provisions of sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (hereinafter the "1940 Act") and Rules
6e-2(b)(15) and 6e-3(T) (b)(15) thereunder, to the extent necessary to permit
shares of the Fund to be sold to and held by variable annuity and variable
life insurance separate accounts of both affiliated and unaffiliated life
insurance companies (hereinafter the "Shared Funding Exemptive Order");
and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolios are registered under
the Securities Act of 1933, as amended (hereinafter the "1933 Act"); and
WHEREAS, X. Xxxx Price Associates, Inc. (the "Adviser") is duly
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended, and any applicable state securities laws; and
WHEREAS, the Company has issued or will issue certain variable life
insurance or variable annuity contracts (including any certificates thereunder)
supported wholly or partially by the Account (the "Contracts"), and said
Contracts are listed in Schedule A hereto, as it may be amended from time to
time by mutual written agreement; and
WHEREAS, the Account is duly established and maintained as a
segregated asset account, established by resolution of the Board of Directors
of the Company, on the date shown for such Account on Schedule A hereto, to
set aside and invest assets attributable to the aforesaid Contracts; and
WHEREAS, the Company has registered or will register the Account as a
unit investment trust under the 1940 Act or will not register the Account in
proper reliance upon an exclusion from registration under the 1940 Act; and
WHEREAS, the Underwriter is registered as a broker dealer with the SEC
under the Securities Exchange Act of 1934, as amended (hereinafter the "1934
Act"), and is a member in good standing of the Financial Industry Regulatory
Authority (hereinafter "FINRA"); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios listed
in Schedule A hereto, as it may be amended from time to time by mutual written
agreement (the "Designated Portfolios") on behalf of the Account to fund the
aforesaid Contracts, and the Underwriter is authorized to sell such shares to
unit investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund and the Underwriter agree as follows:
ARTICLE I. Sale of Fund Shares
1.1 The Underwriter agrees to sell to the Company those shares of
the Designated Portfolios which the Account orders, executing such orders on a
daily basis at the net asset value next computed after receipt by the Fund or
its designee of the order for the shares of the Designated Portfolios.
1.2 The Fund agrees to make shares of the Designated Portfolios
available for purchase at the applicable net asset value per share by the
Company and the Account on those days on which the Fund calculates its net
asset value pursuant to rules of the SEC, and the Fund shall use its best
efforts to calculate such net asset value on each day which the New York Stock
Exchange is open for trading. Notwithstanding the foregoing, the Board of
Directors of the Fund (hereinafter the "Board") may refuse to sell shares of
any Designated Portfolio to any person, or suspend or terminate the offering
of shares of any Designated Portfolio if such action is required by law or by
regulatory authorities having jurisdiction, or is, in the sole discretion of
the Board acting in good faith and in light of their fiduciary duties under
federal and any applicable state laws, necessary in the best interests of the
shareholders of such Designated Portfolio.
1.3 The Fund and the Underwriter agree that shares of the Fund
will be sold only to Participating Insurance Companies and their separate
accounts. No shares of any Designated Portfolios will be sold to the general
public. The Fund and the Underwriter will not sell Fund shares to any
insurance company or separate account unless an agreement containing provisions
substantially the same as Articles I, III and VII of this Agreement is in
effect to govern such sales.
1.4 The Fund agrees to redeem, on the Company's, or its designated
agent , Benefit Trust, request any full or fractional shares of the Designated
Portfolios held by the Company, executing such requests on a daily basis at
the net asset value next computed after receipt by the Fund or its designee of
the request for redemption, except that the Fund reserves the right to suspend
the right of redemption or postpone the date of payment or satisfaction upon
redemption consistent with Section 22(e) of the 1940 Act and any sales
thereunder, and in accordance with the procedures and policies of the Fund as
described in the then current prospectus.
1.5 For purposes of Sections 1.1 and 1.4, the Company, or its
designated agents, Benefit Trust and se2, shall be the designee of the Fund for
receipt of purchase and redemption orders from the Account, and receipt by such
designee shall constitute receipt by the Fund; provided that the Company
receives the order by 4:00 p.m. Baltimore time and the Fund receives notice of
such order by 9:30 a.m. Baltimore time on the next following Business Day.
"Business Day" shall mean any day on which the New York Stock Exchange is open
for trading and on which the Fund calculates its net asset value pursuant to
the rules of the SEC. The Company hereby grants Benefit Trust and se2 with
trading authority for certain Accounts and acknowledges that all orders and
instructions initiated by Benefit Trust and se2 on behalf of Company will be
treated as if they were placed by the Company under this Agreement. Company
acknowledges that Company is financially responsible for any orders Benefit
Trust and se2 submits to Fund on the Company's behalf. If Company desires to
authorize any other designated agent, the Company shall provide written
trading authority to the Fund.
1.6 The Company agrees to purchase and redeem the shares of each
Designated Portfolio offered by the then current prospectus of the Fund and in
accordance with the provisions of such prospectus.
1.7 The Company shall pay for Fund shares one Business Day after
receipt of an order to purchase Fund shares is made in accordance with the
provisions of Section 1.5 hereof. Payment shall be in federal funds
transmitted by wire by 3:00 p.m. Baltimore time. If payment in Federal Funds
for any purchase is not received or is received by the Fund after 3:00 p.m.
Baltimore time on such Business Day, the Company shall promptly, upon the
Fund's request, reimburse the Fund for any charges, costs, fees, interest or
other expenses incurred by the Fund in connection with any advances to, or
borrowings or overdrafts by, the Fund, or any similar expenses incurred by the
Fund, as a result of portfolio transactions effected by the Fund based upon
such purchase request. For purposes of Section 2.8 and 2.9 hereof, upon
receipt by the Fund of the federal funds so wired, such funds shall cease to
be the responsibility of the Company and shall become the responsibility of
the Fund.
1.8 Issuance and transfer of the Fund's shares will be by book
entry only. Stock certificates will not be issued to the Company or any
Account. Shares ordered from the Fund will be recorded in an appropriate
title for each Account or the appropriate subaccount of each Account.
1.9 The Fund shall furnish same day notice (by wire or telephone,
followed by written confirmation) to the Company of any income, dividends or
capital gain distributions payable on the Designated Portfolios' shares. The
Company hereby elects to receive all such income, dividends, and capital gain
distributions as are payable on Designated Portfolio shares in additional
shares of that Portfolio. The Company reserves the right to revoke this
election and to receive all such income dividends and capital gain
distributions in cash. The Fund shall notify the Company of the number of
shares so issued as payment of such dividends and distributions.
1.10 The Fund shall make the net asset value per share for each
Designated Portfolio available to the Company on a daily basis as soon as
reasonably practical after the net asset value per share is calculated
(normally by 6:30 p.m. Baltimore time) and shall use its best efforts to make
such net asset value per share available by 7 p.m. Baltimore time. If the net
asset value is materially incorrect through no fault of the Company, the
Company on behalf of each Account, shall be entitled to an adjustment to the
number of shares purchased or redeemed to reflect the correct net asset value
in accordance with Fund procedures and the Fund shall bear the cost of
correcting such errors, pursuant to Schedule B. Any material error in the net
asset value shall be reported to the Company promptly upon discovery.
1.11 The Parties hereto acknowledge that the arrangement
contemplated by this Agreement is not exclusive; the Fund's shares may be sold
to other insurance companies (subject to Section 1.3 and Article VI hereof)
and the cash value of the Contracts may be invested in other investment
companies.
ARTICLE II. Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or
will be registered under the 1933 Act or that the Contracts are not registered
because they are properly exempt from registration under the 1933 Act or will
be offered exclusively in transactions that are properly exempt from
registration under the 1933 Act. The Company further represents and warrants
that the Contracts, both registered and unregistered, will be issued and
sold in compliance in all material respects with all applicable federal and
state laws and that the sale of the Contracts shall comply in all material
respects with state insurance suitability requirements. The Company further
represents and warrants that it is an insurance company duly organized and in
good standing under applicable law and that it has legally and validly
established the Account prior to any issuance or sale thereof as a segregated
asset account under the New York state insurance laws and has registered
or, prior to any issuance or sale of the Contracts, will register the Account
as a unit investment trust in accordance with the provisions of the 1940 Act
to serve as a segregated investment account for the Contracts or that it has
not registered the Account in proper reliance upon an exclusion from
registration under the 1940 Act. The Company shall amend its registration
statement for its Contracts under the 1933 Act and the 1940 Act from time to
time as required in order to effect the continuous offering of its Contracts.
2.2 The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act, duly
authorized for issuance and sold in compliance with the laws of the state of
New York and all applicable federal and state securities laws and that the
Fund is and shall remain registered under the 0000 Xxx. The Fund shall amend
the Registration Statement for its shares under the 1933 Act and the 1940
Act from time to time as required in order to effect the continuous offering
of its shares. The Fund shall register and qualify the shares for sale in
accordance with the laws of the various states only if and to the extent
deemed advisable by the Fund or the Underwriter.
2.3 The Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act,
although it may make such payments in the future. To the extent that it
decides to finance distribution expenses pursuant to Rule 12b-1, the Fund will
undertake to have the Board, a majority of whom are not interested persons of
the Fund, formulate and approve any plan pursuant to Rule 12b-1 under the 1940
Act to finance distribution expenses.
2.4 The Fund makes no representations as to whether any aspect of
its operations, including but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the various
states, except that the Fund represents that the Fund's investment policies,
fees and expenses are and shall at all times remain in compliance with the
laws of the state of New York to the extent required to perform this
Agreement.
2.5 The Fund represents that it is lawfully organized and validly
existing under the laws of the State of Maryland and that it does and will
comply in all material respects with the 1940 Act.
2.6 The Underwriter represents and warrants that it is a member in
good standing of FINRA and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund
shares in accordance with the laws of the State of New York and any
applicable state and federal securities laws.
2.7 The Underwriter represents and warrants that the Adviser is
and shall remain duly registered under all applicable federal and state
securities laws and that the Adviser shall perform its obligations for the
Fund in compliance in all material respects with the laws of the State of
New York and any applicable state and federal securities laws.
2.8 The Fund and the Underwriter represent and warrant that all of
their directors, officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of the Fund
are and shall continue to be at all times covered by a blanket fidelity bond
or similar coverage for the benefit of the Fund in an amount not less than the
minimum coverage as required currently by Rule 17g-1 of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid
bond shall include coverage for larceny and embezzlement and shall be issued
by a reputable bonding company.
2.9 The Company represents and warrants that all of its directors,
officers, employees, and other individuals/entities employed or controlled by
the Company dealing with the money and/or securities of the Fund are covered
by a blanket fidelity bond or similar coverage in an amount not less than $5
million. The aforesaid bond includes coverage for larceny and embezzlement
and is issued by a reputable bonding company. The Company agrees that any
amounts received under such bond in connection with claims that arise from the
arrangements described in this Agreement will be held by the Company for the
benefit of the Fund. The Company agrees to make all reasonable efforts to see
that this bond or another bond containing these provisions is always in
effect, and agrees to notify the Fund and the Underwriter in the event that
such coverage no longer applies. The Company agrees to exercise its best
efforts to ensure that other individuals/entities not employed or controlled
by the Company and dealing with the money and/or securities of the Fund
maintain a similar bond or coverage in a reasonable amount.
ARTICLE III. Prospectuses, Statements of Additional Information, and Proxy
Statements; Voting
3.1 The Underwriter shall provide the Company (at the Fund's
expense) with as many copies of the Fund's current prospectus, including a
current summary prospectus, if available, (as such term is defined in Rule
498), (describing only the Designated Portfolios listed on Schedule A) as the
Company may reasonably request for fulfillment to existing Contract owners.
The Underwriter shall provide the Company (at the Company's expense) with as
many copies of the Fund's prospectus including a current summary prospectus,
if available, (as such term is defined in Rule 498), (describing only the
Designated Portfolios listed on Schedule A) as the Company may reasonably
request for distribution to prospective purchasers of Contracts. .If requested
by the Company in lieu thereof, the Fund shall provide such documentation
(including a final copy of the new prospectus and current summary prospectus,
if available, (as such term is defined in Rule 498), as set in type or on a
diskette, at the Fund's expense) and other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus for the Fund is amended) to have the prospectus (which shall
include an offering memorandum, if any) for the Contracts, and the Fund's
prospectus printed together in one document. Such printing of the Contract
prospectus to be at the Company's expense and printing of the Fund's
prospectus to be at the Fund's expense. With respect to any Fund prospectus
to be printed for existing Contract owners together with the prospectus(es)
for other investment vehicles funding the Account, the Fund agrees to pay its
proportionate share of reasonable expenses as represented by the ratio that
the number of pages of the Fund's prospectus bears to the total number of
pages in the document; provided, however, the Fund's reimbursement obligation
for printing expenses under this Section shall not exceed $5,000 per year.
3.2 The Fund's prospectus shall state that the current Statement
of Additional Information ("SAI") for the Fund is available from the Company
(or, in the Fund's discretion, from the Fund), and the Underwriter (or the
Fund), at its expense, shall print, or otherwise reproduce, and provide
sufficient copies of such SAI free of charge to the Company for itself, and
for any owner of a Contract who requests such SAI. The Company shall send an
SAI to any such Contract owner within 3 business days of the receipt of a
request.
3.3 The Fund, at its expense, shall provide the Company with copies
of its proxy material, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners in the Fund. The Underwriter (at the Company's
expense) shall provide the Company with copies of the Fund's annual and semi-
annual reports to shareholders in such quantity as the Company shall reasonably
request for use in connection with offering the Variable Contracts issued by
the Company to prospective purchasers of Contracts. If requested by the
Company in lieu thereof, the Underwriter shall provide such documentation
(which may include a final copy of the Fund's annual and semi-annual reports
as set in type or on diskette) and other assistance as is reasonably necessary
in order for the Company (at the Underwriter's expense) to print such
shareholder communications for distribution to Contract owners. With respect
to any Fund communication to be printed to existing Contract owners together
with communications for other investment vehicles funding the Account, the
Fund agrees to pay its proportionate share of reasonable expenses as
represented by the ratio that the number of pages of the Fund's communication
bears to the total number of pages in the document; provided, however, the
Fund's reimbursement obligation for printing expenses under this Section shall
not exceed $5,000 per year. The Company shall send a copy of the Fund's
annual or semi-annual report within 3 business days of the receipt of a
request by a Contract owner.
3.4 The Company shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with instructions
received from Contract owners; and
(iii) vote Fund shares for which no instructions have been
received in the same proportion as Fund shares of such
Designated Portfolio for which instructions have been
received,
so long as and to the extent that the SEC continues to interpret the 1940 Act
to require pass-through voting privileges for variable contract owners or to
the extent otherwise required by law. The Company reserves the right to vote
Fund shares held in any segregated asset account in its own right, to the
extent permitted by law.
3.5 Participating Insurance Companies shall be responsible for
assuring that each of their separate accounts participating in a Designated
Portfolio calculates voting privileges as required by the Shared Funding
Exemptive Order and consistent with any reasonable standards that the Fund
may adopt.
3.6 The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will either
provide for annual meetings or comply with Section 16(c) of the 1940 Act
(although the Fund is not one of the trusts described in Section 16(c) of
that Act) as well as with Sections 16(a) and, if and when applicable, 16(b).
Further, the Fund will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of directors
or trustees and with whatever rules the SEC may promulgate with respect
thereto.
ARTICLE IV. Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to
the Fund or its designee, each piece of sales literature or other promotional
material that the Company develops or uses and in which the Fund (or a
Portfolio thereof) or the Adviser or the Underwriter is named, at least ten
business days prior to its use. No such material shall be used if the Fund or
its designee reasonably object to such use within ten business days after
receipt of such material. The Fund or its designee reserves the right to
reasonably object to the continued use of such material, and no such material
shall be used if the Fund or its designee so object. Any approval on sales
literature or other promotional material that the Company develops or uses
shall be in effect for one year so long as such disclosure regarding the Fund
or Underwriter is the same as used in the approved piece. The Company shall
furnish to the Fund or its designee any sales material or other promotional
material with differing disclosure for approval. In addition, the Company may
prepare such materials, based on performance information supplied by third
party information providers (e.g., Lipper, Morningstar).
4.2 The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the Fund in
connection with the sale of the Contracts other than the information or
representations contained in the registration statement or prospectus or SAI
for the Fund shares, as such registration statement and prospectus or SAI may
be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional material
approved by the Fund or its designee or by the Underwriter, except with the
permission of the Fund or the Underwriter or the designee of either.
4.3 The Fund, Underwriter, or its designee shall furnish, or shall
cause to be furnished, to the Company, each piece of sales literature or other
promotional material in which the Company, and/or its Account, is named at
least ten business days prior to its use. No such material shall be used if
the Company reasonably objects to such use within ten business days after
receipt of such material. The Company reserves the right to reasonably object
to the continued use of such material and no such material shall be used if
the Company so objects. Any approval on sales literature or other promotional
material that the Fund, Underwriter or designee develops or uses shall be in
effect for one year so long as such disclosure regarding the Company is the
same as used in the approved piece. The Fund, Underwriter or designee shall
furnish to the Company any sales material or other promotional material with
differing disclosure for approval.
4.4. The Fund and the Underwriter shall not give any information or
make any representations on behalf of the Company or concerning the Company,
the Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus, or SAI for the Contracts,
as such registration statement, prospectus or SAI may be amended or
supplemented from time to time, or in published reports for the Account which
are in the public domain or approved by the Company for distribution to
Contract owners, or in sales literature or other promotional material approved
by the Company or its designee, except with the permission of the Company.
4.5 Upon request, the Fund will provide to the Company at least
one complete copy of all registration statements, prospectuses, SAIs, 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 Fund or its shares, within
a reasonable time after the filing of such document(s) with the SEC or other
regulatory authorities.
4.6 Upon request, the Company will provide to the Fund at least
one complete copy of all registration statements, prospectuses, SAIs, reports,
solicitations for voting instructions, 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 Account,
within a reasonable time after the filing of such document(s) with the SEC or
other regulatory authorities.
4.7 For purposes of this Article IV, the phrase "sales literature
and other promotional materials" includes, but is not limited to, any of the
following that refer to the Fund or any affiliate of the Fund: advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, reports,
market letters, form letters, seminar texts, 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, and registration statements,
prospectuses, SAIs, shareholder reports, proxy materials, and any other
communications distributed or made generally available with regard to the
Funds.
ARTICLE V. Fees and Expenses
5.1 The Fund and the Underwriter shall pay no fee or other
compensation to the Company under this Agreement, except that if the Fund or
any Portfolio adopts and implements a plan pursuant to Rule 12b-1 to finance
distribution expenses, then the Underwriter may make payments to the Company
or to the underwriter for the Contracts if and in amounts agreed to by the
Underwriter in writing, and such payments will be made out of existing fees
otherwise payable to the Underwriter, past profits of the Underwriter, or
other resources available to the Underwriter. No such payments shall be made
directly by the Fund. Currently, no such payments are contemplated.
5.2 All expenses incident to performance by the Fund under this
Agreement shall be paid by the Fund, except as otherwise provided herein.
The Fund shall see to it that all its shares are registered and authorized for
issuance in accordance with applicable federal law and, if and to the extent
deemed advisable by the Fund, in accordance with applicable state laws prior
to their sale. The Fund shall bear the expenses for the cost of registration
and qualification of the Fund's shares, preparation and filing of the Fund's
prospectus and registration statement, proxy materials and reports, setting
the prospectus in type, setting in type and printing the proxy materials and
reports to shareholders (including the costs of printing a prospectus that
constitutes an annual report), the preparation of all statements and notices
required by any federal or state law, and all taxes on the issuance or transfer
of the Fund's shares.
5.3 The Company shall bear the expenses of printing the Fund's
prospectus (in accordance with 3.1) and of distributing the Fund's prospectus,
proxy materials, and reports to prospective Contract owners.
ARTICLE VI. Diversification and Qualification
6.1 The Fund will invest the assets of each Designated Portfolio
in such a manner as to ensure that the Contracts will be treated as annuity,
endowment, or life insurance contracts, whichever is appropriate, under the
Internal Revenue Code of 1986, as amended (the "Code") and the regulations
issued thereunder (or any successor provisions). Without limiting the scope
of the foregoing, each Designated Portfolio of the Fund will comply with
Section 817(h) of the Code and Treasury Regulation 1.817-5, and any Treasury
interpretations thereof, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts, and any amendments
or other modifications or successor provisions to such Section or Regulations.
In the event of a breach of this Article VI by the Fund, it will take all
reasonable steps (a) to notify the Company of such breach and (b) to adequately
diversify the Fund so as to achieve compliance within the grace period afforded
by Regulation 817.5.
6.2 The Fund represents that each Designated Portfolio is or will
be qualified as a Regulated Investment Company under Subchapter M of the Code,
and that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provisions) and that it will notify
the 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.
6.3 The Company represents that the Contracts are currently, and
at the time of issuance shall be, treated as life insurance, endowment
contracts, or annuity insurance contracts, under applicable provisions of the
Code, and that it will make every effort to maintain such treatment, and that
it will notify the Fund and the Underwriter immediately upon having a
reasonable basis for believing the Contracts have ceased to be so treated or
that they might not be so treated in the future. The Company agrees that any
prospectus, or offering memorandum, offering a contract that is a "modified
endowment contract" as that term is defined in Section 7702A of the Code (or
any successor or similar provision), shall identify such contract as a
modified endowment contract.
ARTICLE VII. Potential Conflicts.
7.1 The Board will monitor the Fund for the existence of any
material irreconcilable conflict between the interests of the contract owners
of all separate accounts investing in the Fund. An irreconcilable material
conflict may arise for a variety of reasons, including: (a) an action by any
state insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or interpretative letter, or any similar
action by insurance, tax, or securities regulatory authorities; (c) an
administrative or judicial decision in any relevant proceeding; (d) the manner
in which the investments of any Portfolio are being managed; (e) a difference
in voting instructions given by variable annuity contract and variable life
insurance contract owners; or (f) a decision by an insurer to disregard the
voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and
the implications thereof.
7.2. The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in carrying
out its responsibilities under the Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board to
consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever Contract owner voting
instructions are disregarded.
7.3 If it is determined by a majority of the Board, or a majority
of its disinterested members, that a material irreconcilable conflict exists,
the Company and other Participating Insurance Companies shall, at their
expense and to the extent reasonably practicable (as determined by a majority
of the disinterested Board members), take whatever steps are necessary to
remedy or eliminate the irreconcilable material conflict, up to and
including: (1), withdrawing the assets allocable to some or all of the
separate accounts from the Fund or any Portfolio and reinvesting such assets
in a different investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such segregation
should be implemented to a vote of all affected contract owners and, as
appropriate, segregating the assets of any appropriate group (i.e., annuity
contract owners, life insurance contract owners, or variable contract owners
of one or more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected contract owners the option of making
such a change; and (2), establishing a new registered management investment
company or managed separate account.
7.4 If a material irreconcilable conflict arises because of a
decision by the Company to disregard contract owner voting instructions and
that decision represents a minority position or would preclude a majority
vote, the Company may be required, at the Fund's election, to withdraw the
affected Account's investment in the Fund and terminate this Agreement with
respect to such Account provided, however, that such withdrawal and termination
shall be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
members of the Board. Any such withdrawal and termination must take place
within six (6) months after the Fund gives written notice that this provision
is being implemented, and until the end of that six month period the Fund
shall continue to accept and implement orders by the Company for the purchase
(and redemption) of shares of the Fund.
7.5 If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the Company
conflicts with the majority of other state regulators, then the Company will
withdraw the affected Account's investment in the Fund and terminate this
Agreement with respect to such Account within six months after the Board
informs the Company in writing that it has determined that such decision has
created an irreconcilable material conflict; provided, however, that such
withdrawal and termination shall be limited to the extent required by the
foregoing material irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the foregoing six month
period, the Fund shall continue to accept and implement orders by the company
for the purchase (and redemption) of shares of the Fund.
7.6 For purposes of Section 7.3 through 7.6 of this Agreement, a
majority of the disinterested members of the Board shall determine whether any
proposed action adequately remedies any irreconcilable material conflict, but
in no event will the Fund be required to establish a new funding medium for
the Contracts. The Company shall not be required by Section 7.3 to establish
a new funding medium for the Contract if an offer to do so has been declined
by vote of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination; provided, however, that
such withdrawal and termination shall be limited to the extent required by any
such material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
7.7 If and to the extent Rule 6e-2 and Rule 6e-3(T) are amended,
or Rule 6e-3 is adopted, to provide exemptive relief from any provision of the
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Shared Funding
Exemptive Order, then (a) the Fund and/or the Participating Insurance Companies,
as appropriate, shall take such steps as may be necessary to comply with Rules
6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such
rules are applicable; and (b) Sections 3.4, 3.5, 3.6, 7.1., 7.2, 7.3, 7.4, and
7.5 of this Agreement shall continue in effect only to the extent that terms
and conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
ARTICLE VIII. Indemnification
8.1 Indemnification By the Company
8.1(a). The Company agrees to indemnify and hold harmless the
Fund and the Underwriter and each of their officers and directors and each
person, if any, who controls the Fund or the Underwriter within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent
of the Company) 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, damages, liabilities
or expenses (or actions in respect thereof) or settlements are related to the
sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue
statements or alleged untrue statements of
any material fact contained in the Registration
Statement, prospectus (which shall include an
offering memorandum, if any), or statement of
additional information ("SAI") for the
Contracts or contained in the Contracts or
sales literature or other promotional material
for the Contracts (or any amendment or
supplement to any of the foregoing), 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, provided that this agreement to
indemnify shall not apply as to any Indemnified
Party if such statement or omission or such
alleged statement or omission was made in
reliance upon and in conformity with
information furnished to the Company by or on
behalf of the Fund for use in the Registration
Statement, prospectus or SAI for the Contracts
or in the Contracts or sales literature or
other promotional material (or any amendment
or supplement) or otherwise for use in
connection with the sale of the Contracts or
Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Registration
Statement, prospectus or sales literature or
other promotional material of the Fund not
supplied by the Company or persons under its
control) or wrongful conduct of the Company or
persons under its authorization or control,
with respect to the sale or distribution of
the Contracts or Fund Shares; or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained
in a Registration Statement, prospectus, SAI,
or sales literature or other promotional
material of the Fund or any amendment thereof
or supplement thereto or the omission or
alleged omission to state therein a material
fact required to be stated therein or
necessary to make the statements therein not
misleading if such a statement or omission was
made in reliance upon information furnished to
the Fund by or on behalf of the Company; or
(iv) arise as a result of any material failure by
the Company to provide the services and
furnish the materials under the terms of this
Agreement (including a failure, whether
unintentional or in good faith or otherwise,
to comply with the qualification requirements
specified in Article VI of this Agreement); or
(v) arise out of or result from any material
breach of any representation and/or warranty
made by the Company in this Agreement or arise
out of or result from any other material
breach of this Agreement by the Company,
as limited by and in accordance with the provisions of Sections 8.1(b) and
8.1(c) hereof.
8.1(b). The Company shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise
be subject by reason of such Indemnified Party's 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 its obligations or duties under this Agreement.
8.1(c). The Company 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
the Company 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 the Company of any such
claim shall not relieve the Company 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 an Indemnified Party, the Company
shall be entitled to participate, at its own expense, in the defense
of such action. The Company also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the
action and to settle the claim at its own expense; provided, however,
that no such settlement shall, without the Indemnified Parties'
written consent, include any factual stipulation referring to the
Indemnified Parties or their conduct. After notice from the Company
to such party of the Company's election to assume the defense thereof,
the Indemnified Party shall bear the fees and expenses of any
additional counsel retained by it, and the Company 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.
8.1(d). The Indemnified Parties will promptly notify the
Company of the commencement of any litigation or proceedings against
them in connection with the issuance or sale of the Fund Shares or the
Contracts or the operation of the Fund.
8.2 Indemnification by the Underwriter
8.2(a). The Underwriter agrees to indemnify and hold harmless
the Company and each of it directors and officers and each person, if
any, who controls the Company within the meaning of Section 15 of the
1933 Act (collectively, the "Indemnified Parties" for purposes of
this Section 8.2) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written
consent of the 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, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the sale or acquisition
of the Fund's shares or the Contracts; and
(i) 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 SAI or sales
literature or other promotional material of
the Fund (or any amendment or supplement to
any of the foregoing), 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,
provided that this agreement to indemnify
shall not apply as to any Indemnified Party if
such statement or omission or such alleged
statement or omission was made in reliance
upon and in conformity with information
furnished to the Underwriter or Fund by or on
behalf of the Company for use in the
Registration Statement or prospectus for the
Fund or in sales literature or other
promotional material (or any amendment or
supplement) or otherwise for use in connection
with the sale of the Contracts or Fund shares;
or
(ii) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Registration
Statement, prospectus or sales literature or
other promotional material for the Contracts
not supplied by the Underwriter or persons
under its control) or wrongful conduct of the
Fund or Underwriter or persons under their
control, with respect to the sale or
distribution of the Contracts or Fund shares;
or
(iii) arise out of any untrue statement or alleged
untrue statement of a material fact contained
in a Registration Statement, prospectus, SAI,
or sales literature or other promotional
material of the Contracts, or any amendment
thereof or supplement thereto, or the omission
or alleged omission to state therein a material
fact required to be stated therein or necessary
to make the statement or statements therein
not misleading, if such statement or omission
was made in reliance upon information furnished
to the Company by or on behalf of the Fund; or
(iv) arise as a result of any material failure by
the Fund to provide the services and furnish
the materials under the terms of this Agreement
(including a failure, whether unintentional or
in good faith or otherwise, to comply with the
diversification and other qualification
requirements specified in Article VI of this
Agreement); or
(v) arise out of or result from any material
breach of any representation and/or warranty
made by the Underwriter in this Agreement or
arise out of or result from any other material
breach of this Agreement by the Underwriter;
as limited by and in accordance with the provisions of Sections 8.2(b) and
8.2(c) hereof.
8.2(b). The Underwriter shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would
otherwise be subject by reason of such Indemnified Party's willful
misfeasance, bad faith, or gross negligence in the performance or such
Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under this Agreement or
to the Company or the Account, whichever is applicable.
8.2(c). The 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
the 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 the Underwriter of any
such claim shall not relieve the 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, the
Underwriter will be entitled to participate, at its own expense, in
the defense thereof. The Underwriter also shall be entitled to assume
the defense thereof, with counsel satisfactory to the party named in
the action and to settle the claim at its own expense; provided,
however, that no such settlement shall, without the Indemnified
Parties' written consent, include any factual stipulation referring to
the Indemnified Parties or their conduct. After notice from the
Underwriter to such party of the Underwriter's election to assume the
defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the 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.
8.2(d). The Company agrees promptly to notify the Underwriter
of the commencement of any litigation or proceedings against it or any
of its officers or directors in connection with the issuance or sale
of the Contracts or the operation of the Account.
8.3 Indemnification By the Fund
8.3(a). The Fund agrees to indemnify and hold harmless the
Company and each of its directors and officers and each person, if any,
who controls the Company within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.3) against any and all losses, claims, expenses, damages,
liabilities (including amounts paid in settlement with the written
consent of the Fund) or litigation (including legal and other expenses)
to which the Indemnified Parties may be required to pay or may become
subject under any statute or regulation, at common law or otherwise,
insofar as such losses, claims, expenses, damages, liabilities or
expenses (or actions in respect thereof) or settlements, are related
to the operations of the Fund and:
(i) arise as a result of any material failure by
the Fund to provide the services and furnish
the materials under the terms of this
Agreement (including a failure, whether
unintentional or in good faith or otherwise,
to comply with the diversification and other
qualification requirements specified in
Article VI of this Agreement); or
(ii) arise out of or result from any material
breach of any representation and/or warranty
made by the Fund in this Agreement or arise
out of or result from any other material
breach of this Agreement by the Fund;
as limited by and in accordance with the provisions of Sections 8.3(b) and
8.3(c) hereof.
8.3(b). The Fund shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would
otherwise be subject by reason of such Indemnified Party's 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 the Company, the Fund, the Underwriter or the Account, whichever is
applicable.
8.3(c). The Fund 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
the Fund 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 the Fund of any such
claim shall not relieve the Fund 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 Parties, the Fund will be
entitled to participate, at its own expense, in the defense thereof.
The Fund also shall be entitled to assume the expense thereof, with
counsel satisfactory to the party named in the action and to settle
the claim at its own expense; provided, however, that no such
settlement shall, without the Indemnified Parties' written consent,
include any factual stipulation referring to the Indemnified Parties
or their conduct. After notice from the Fund to such party of the
Fund's election to assume the defense thereof, the Indemnified Party
shall bear the fees and expenses of any additional counsel retained by
it, and the Fund 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.
8.3(d). The Company and the Underwriter agree promptly to
notify the Fund of the commencement of any litigation or proceeding
against it or any of its respective officers or directors in
connection with the Agreement, the issuance or sale of the Contracts,
the operation of the Account, or the sale or acquisition of shares of
the Fund.
ARTICLE IX. Applicable Law
9.1 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of Maryland.
9.2 This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
SEC may grant (including, but not limited to, any Shared Funding Exemptive
Order) and the terms hereof shall be interpreted and construed in accordance
therewith.
ARTICLE X. Termination
10.1 This Agreement shall continue in full force and effect until
the first to occur of:
(a) termination by any party, for any reason with respect
to some or all Designated Portfolios, by six (6)
months' advance written notice delivered to the other
parties; or
(b) termination by the Company by written notice to the
Fund and the Underwriter with respect to any
Designated Portfolio based upon the Company's
determination that shares of the Fund are not
reasonably available to meet the requirements of the
Contracts; provided that such termination shall
apply only to the Designated Portfolio not reasonably
available; or
(c) termination by the Company by written notice to the
Fund and the Underwriter in the event any of the
Designated Portfolio's shares are not registered,
issued or sold in accordance with applicable state
and/or federal law or such law precludes the use of
such shares as the underlying investment medium of
the Contracts issued or to be issued by the Company.
The terminating party shall give prompt notice to the
other parties of its decision to terminate; or
(d) termination by the Fund or Underwriter in the event
that formal administrative proceedings are instituted
against the Company by the FINRA, the SEC, the
Insurance Commissioner or like official of any state
or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of
the Contracts, the operation of any Account, or the
purchase of the Fund shares; provided, however, that
the Fund or Underwriter determines in its sole
judgment exercised in good faith, that any such
administrative proceedings will have a material
adverse effect upon the ability of the Company to
perform its obligations under this Agreement; or
(e) termination by the Company in the event that formal
administrative proceedings are instituted against the
Fund or Underwriter by the FINRA, the SEC, or any
state securities or insurance department or any other
regulatory body; provided, however, that the Company
determines in its sole judgment exercised in good
faith, that any such administrative proceedings will
have a material adverse effect upon the ability of the
Fund or Underwriter to perform its obligations under
this Agreement; or
(f) termination by the Company by written notice to the
Fund and the Underwriter with respect to any
Designated Portfolio in the event that such Designated
Portfolio ceases to qualify as a Regulated Investment
Company under Subchapter M or fails to comply with the
Section 817(h) diversification requirements specified
in Article VI hereof, or if the Company reasonably
believes that such Designated Portfolio may fail to so
qualify or comply; or
(g) termination by the Fund or Underwriter by written
notice to the Company in the event that the Contracts
fail to meet the qualifications specified in Section
6.3 hereof; or if the Fund or Underwriter reasonably
believes that such Contracts may fail to so qualify; or
(h) termination by either the Fund or the Underwriter by
written notice to the Company, if either one or both
of the Fund or the Underwriter respectively, shall
determine, in their sole judgment exercised in good
faith, that the Company has suffered a material
adverse change in its business, operations, financial
condition, or prospects since the date of this
Agreement or is the subject of material adverse
publicity; or
(i) termination by the Company by written notice to the
Fund and the Underwriter, if the Company shall
determine, in its sole judgment exercised in good
faith, that the Fund or the Underwriter has suffered a
material adverse change in its business, operations,
financial condition or prospects since the date of
this Agreement or is the subject of material adverse
publicity.
10.2 Effect of Termination. Notwithstanding any termination of
this Agreement, the Fund and the Underwriter shall, at the option of the
Company, continue to make available additional shares of the Fund 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"). Specifically, the owners of the Existing Contracts may
be permitted to reallocate investments in the Fund, redeem investments in the
Fund and/or invest in the Fund upon the making of additional purchase payments
under the Existing Contracts. The parties agree that this Section 10.2 shall
not apply to any termination under Article VII and the effect of such Article
VII termination shall be governed by Article VII of this Agreement. The
parties further agree that this Section 10.2 shall not apply to any
termination under Section 10.1(g) of this Agreement.
10.3 The Company shall not redeem Fund shares attributable to the
Contracts (as opposed to Fund shares attributable to the Company's assets held
in the Account) except (i) as necessary to implement Contract owner initiated
or approved transactions, (ii) as required by state and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"), or (iii)
pursuant to the terms of a substitution order issued by the SEC pursuant to
Section 26(b) of the 1940 Act. Upon request, the Company will promptly
furnish to the Fund and the Underwriter the opinion of counsel for the Company
(which counsel shall be reasonably satisfactory to the Fund and the
Underwriter) to the effect that any redemption pursuant to clause (ii) above
is a Legally Required Redemption. Furthermore, except in cases where
permitted under the terms of the Contracts, the Company shall not prevent
Contract owners from allocating payments to a Portfolio that was otherwise
available under the Contracts without first giving the Fund or the Underwriter
90 days notice of its intention to do so.
10.4 Notwithstanding any termination of this Agreement, each
party's obligation under Article VIII to indemnify the other parties shall
survive.
ARTICLE XI. Notices
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in
writing to the other party.
If to the Fund:
X. Xxxx Price Associates, Inc.
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx, Esq.
If to the Company:
First Symetra National Life Insurance Company of New York
000 000xx Xxxxxx XX, Xxxxx 0000
Xxxxxxxx, XX 00000
Attn: Legal Counsel
If to Underwriter:
X. Xxxx Price Investment Services
000 Xxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxxxxxx, Esq.
ARTICLE XII. Miscellaneous
12.1 All references herein to the Fund are to each of the
undersigned Funds as if this agreement were between such individual Fund and
the Underwriter and the Company. All references herein to the Adviser relate
solely to the Adviser of such individual Fund, as appropriate. All persons
dealing with a Fund must look solely to the property of such Fund, and in the
case of a series company, the respective Designated Portfolio listed on
Schedule A hereto as though such Designated Portfolio had separately
contracted with the Company and the Underwriter for the enforcement of any
claims against the Fund. The parties agree that neither the Board, officers,
agents or shareholders assume any personal liability or responsibility for
obligations entered into by or on behalf of the Fund.
12.2 Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and
addresses of the owners of the Contracts and all information reasonably
identified as confidential in writing by any other party hereto and, except as
permitted by this Agreement, shall not disclose, disseminate or utilize such
names and addresses and other confidential information without the express
written consent of the affected party until such time as such information may
come into the public domain.
12.3 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
12.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.5 If any provision of this Agreement shall be held or made
invalid by a court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6 Each party hereto shall cooperate with each other party and
all appropriate governmental authorities (including without limitation the
SEC, the FINRA, and state insurance regulators) and shall permit such
authorities reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. Notwithstanding the generality of the foregoing, each
party hereto further agrees to furnish the New York Insurance Commissioner
with any information or reports in connection with services provided under
this Agreement which such Commissioner may request in order to ascertain
whether the variable annuity operations of the Company are being conducted in
a manner consistent with New York variable annuity laws and regulations and
any other applicable law or regulations.
12.7 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.
12.8 This Agreement or any of the rights and obligations hereunder
may not be assigned by any party without the prior written consent of all
parties hereto.
12.9 Upon request, the Company shall furnish or cause to be
furnished, to the Fund or its designee copies of the following reports:
(a) the Company's annual statement (prepared under
statutory accounting principles) and annual report
(prepared under generally accepted accounting
principles ("GAAP"), if any), as soon as practical and
in any event within 90 days after the end of each
fiscal year.
(b) the Company's quarterly statements (statutory) (and
GAAP, if any), as soon as practical and in any event
within 45 days after the end of each quarterly period.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed in its name and on its behalf by its duly authorized
representative and its seal to be hereunder affixed hereto as of the date
specified below.
COMPANY: First Symetra National Life Insurance Company of New York
By its authorized officer
/s/Xxxxxx X. Xxxxxxxx
---------------------------------
By: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President
Date: 10/26/12
FUND: X. XXXX PRICE EQUITY SERIES, INC.
By its authorized officer
/s/Xxxxx Xxxxxxxxxxx
---------------------------------
By: Xxxxx Xxxxxxxxxxx
Title Vice President
Date: 10/18/12
FUND: X. XXXX PRICE INTERNATIONAL SERIES, INC.
By its authorized officer
/s/Xxxxx Xxxxxxxxxxx
---------------------------------
By: Xxxxx Xxxxxxxxxxx
Title: Vice President
Date: 10/18/12
UNDERWRITER: X. XXXX PRICE INVESTMENT SERVICES, INC.
By its authorized officer
/s/Xxxx Xxxxxxx-Xxxx
--------------------------------
By: Xxxx Xxxxxxx-Xxxx
Title Vice President
Date: 10/18/12
SCHEDULE A
Name of Separate Account and Contracts Funded by
Date Established by Board of Directors Separate Account
------------------------------------------------------------------------------
First Symetra Separate Account S
(Established 2/2/1995) Symetra True Variable Annuity Contracts
Designated Portfolios
------------------------------------
T Xxxx Price Blue Chip Growth VIP-X
X Xxxx Price New America Growth Portfolio VIP-I
X. Xxxx Price Equity Income Portfolio VIP-I
X. Xxxx Price Health Sciences Portfolio VIP-I
X. Xxxx Price International Stock Portfolio VIP-I
SCHEDULE B
If a Fund determines that corrective action is necessary with respect to
Accounts or the Contracts as a result of an error in the computation of the
net asset value of its shares, dividend or capital gain errors ("Price Error"),
Underwriter will promptly notify Company of the Price Error. The materiality
of an incorrect price will be determined with reference to applicable SEC
guidance. Underwriter may provide notice of a Price Error via facsimile or
via direct or indirect systems access and shall state the incorrect price, the
correct price and, to the extent communicated to the Funds' other shareholders,
the reason for the price change. Underwriter will also communicate to Company
the amount and nature of any changes to Underwriter's records with respect to
an Account made in order to correct a Price Error. The Company shall adjust
all Contract owners' accounts effected by the Price Error and such loss
incurred by those Contract owners owed additional shares shall be offset by
the gain in Contract owners accounts who received excess shares. Upon receipt
of reasonable documentation verifying such losses, Underwriter shall reimburse
the Account with the appropriate number of additional shares. In the event of
an overpayment to a Contract owner as a result of any error, Company will make
a good faith attempt to the extent practicable and permitted by law to collect
such overpayment on behalf of, and return such overpayment to, Underwriter.
Compensating the Company for its Expenses. Underwriter shall promptly pay for
systems and out of pocket costs (including preparing and mailing revised
statements) up to $5,000 for each Price Error occurrence; provided, the
Company provides a full accounting of expenses and uses its best efforts to
mitigate all expenses.
