Exhibit (8)(q)
PARTICIPATION AGREEMENT
BY AND AMONG
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS
AND
PIMCO FUNDS DISTRIBUTORS LLC
AND
PIMCO VARIABLE INSURANCE TRUST
THIS AGREEMENT, made and entered into as of November 30, 2000
("Agreement"), by and among PIMCO Variable Insurance Trust, a Delaware business
trust (the "Fund"), PIMCO Funds Distributors LLC, a Delaware limited liability
company (the "Distributor") and GE Capital Life Assurance Company of New York, a
New York life insurance company ("LIFE COMPANY"), on behalf of itself and each
of its segregated asset accounts listed in Schedule A hereto, as the parties
("Parties") hereto may amend from time to time (each, an "Account," and
collectively, the "Accounts").
WITNESSETH THAT:
WHEREAS, the Fund is registered with the Securities and
Exchange Commission ("SEC") as an open-end management investment company under
the Investment Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Fund is available to the extent set forth herein
to act as the investment vehicle for separate accounts established for variable
life insurance policies and variable annuity contracts to be offered by
insurance companies which have entered into participation agreements with the
Fund and the Distributor ("Participating Insurance Companies");
WHEREAS, the Fund currently consists of seven separate
investment portfolios, shares ("Shares") of each of which are registered under
the Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Fund will make Administrative Class Shares of
each investment portfolio of the Fund listed on Schedule A hereto (each, a
"Portfolio" and collectively, the "Portfolios") as the Parties hereto may amend
from time to time available for purchase by the Accounts;
WHEREAS, the Fund has received an order (the "Order") from the
SEC to permit 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 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;
WHEREAS, LIFE COMPANY will be the issuer of certain variable
annuity contracts and variable life insurance policies (collectively, the
"Contracts") as set forth on Schedule A hereto, as the Parties hereto may amend
from time to time, which Contracts, if required by applicable law, will be
registered under the 1933 Act;
WHEREAS, LIFE COMPANY will, to the extent set forth herein,
fund the Contracts through the Accounts, each of which may be divided into two
or more subaccounts ("Subaccounts"; reference herein to an "Account" includes
reference to each Subaccount thereof to the extent the context requires);
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WHEREAS, LIFE COMPANY will serve as the depositor of the
Accounts, each of which is registered as a unit investment trust under the 1940
Act (or is exempt therefrom), and the security interests deemed to be issued by
the Accounts under the Contracts will be registered as securities under the 1933
Act (or be exempt therefrom);
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, LIFE COMPANY intends to purchase Shares in one or more of the
Portfolios on behalf of the Accounts to fund the Contracts; and
NOW, THEREFORE, in consideration of the mutual benefits and
promises contained herein, the Parties hereto agree as follows:
Section 1. Available Portfolios
1.1 Available Portfolios
The Fund will make Shares of each Portfolio listed on Schedule
A available to LIFE COMPANY for purchase and redemption at net asset value next
computed after the Fund's receipt of a purchase or redemption order and with no
sales charges, in accordance with the Fund's then current prospectus and subject
to the terms and conditions of this Agreement. The Board of Trustees of the Fund
may refuse to sell Shares of any Portfolio to any person, or suspend or
terminate the offering of Shares of any Portfolio if such action is required by
law or by regulatory authorities having jurisdiction or if, in the sole
discretion of the Trustees acting in good faith and in light of their fiduciary
duties under federal and any applicable state laws, such action is deemed in the
best interests of the shareholders of such Portfolio.
1.2 Addition, Deletion or Modification of Portfolios
The Parties hereto may agree, from time to time, to add other
Portfolios to provide additional funding alternatives for the Contracts, or to
delete or modify existing Portfolios, by amending Schedule A hereto. Upon such
amendment to Schedule A, any applicable reference to a Portfolio, the Fund, or
its Shares herein shall include a reference to all Portfolios set forth on
Schedule A as then amended. Schedule A, as amended from time to time, is
incorporated herein by reference and is a part hereof.
1.3 No Sales to the General Public
The Fund represents that shares of the Portfolios will be sold
only to Participating Insurance Companies, their separate accounts and qualified
pension and retirement plans ("Plans") and that no Shares of any Portfolio have
been or will be sold to the general public. The Fund will not sell Fund shares
to any Participating Insurance Companies or Plans unless such Participating
Insurance Companies or Plans have entered into an agreement containing
provisions materially similar to Sections 2, 3, 5 and 10 hereof.
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1.4 Portfolios as Investment Options Under the Contracts
(a) The Parties acknowledge that the arrangement contemplated
by this Agreement is not exclusive; the Fund's shares may be sold to other
insurance companies (subject to the terms of this Agreement) and the cash value
of the Contracts may be invested in other investment companies; provided,
however, that until this Agreement is terminated pursuant to Section 6, the
Company shall promote the Portfolios on the same basis as other funding vehicles
available under the Contracts.
(b) LIFE COMPANY shall not, without prior notice to the
Distributor (unless otherwise required by applicable law), take any action to
operate an Account as a management investment company under the 1940 Act.
(c) LIFE COMPANY shall not, without prior notice to the
Distributor (unless otherwise required by applicable law), induce Contract
owners to change or modify the Fund or change the Fund's distributor or
investment adviser.
(d) LIFE COMPANY shall not, without prior notice to the Fund,
induce Contract owners to vote on any matter submitted for consideration by the
shareholders of the Fund in a manner other than as recommended by the Board of
Trustees of the Fund.
(e) LIFE COMPANY shall not deem Shares attributable to the
Contracts (as opposed to Shares attributable to LIFE COMPANY's assets held in
the Accounts) except (I) as necessary to implement Contract owner initiated or
approved transactions, (ii) as required by sate and/or federal laws or
regulations or judicial or other legal precedent of general application
(hereinafter referred to as a "Legally Required Redemption"), (iii) upon at
least 30 days' prior written notice to the Fund and Distributor, as permitted by
an order of the Securities and Exchange Commission ("SEC") pursuant to Section
26(b) of the 1940 Act, or (iv) as permitted under the terms of the Contract.
Upon request, LIFE COMPANY will promptly furnish to the Fund and the Distributor
reasonable assurance 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, LIFE 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 Distributor 45 days notice of its
intention to do so.
Section 2. Processing Transactions
2.1 Placing Orders
(a) The Fund or its designated agent shall determine the net
asset value per share for each Portfolio available each Business Day and will
use its best efforts to provide LIFE COMPANY with the net asset value per Share
for each Portfolio by 7:00 p.m. Eastern Time on each Business Day. As used
herein, "Business Day" shall mean any day on which (i) the New York Stock
Exchange is open for regular trading, and (ii) the Fund calculates the
Portfolios' net asset values. The Fund will notify LIFE COMPANY as soon as
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possible if on any Business Day it is determined that the calculation of net
asset value per Share will be available after 7:00 p.m. Eastern Time.
(b) LIFE COMPANY will place orders to purchase or redeem
Shares with the Fund by 9:00 a.m. Eastern Time the following Business Day after
receipt of such orders from the Accounts.
(c) With respect to payment of the purchase price by LIFE
COMPANY and of redemption proceeds by the Fund, LIFE COMPANY and the Fund shall
net purchase and redemption orders with respect to each Portfolio and shall
transmit one net payment per Portfolio in accordance with Section 2.2, below.
(d) Any material error in the calculation or reporting of net
asset value per Share, dividend or capital gain information shall be reported
promptly upon discovery to LIFE COMPANY.
2.2 Payments
(a) LIFE COMPANY shall pay for Shares of each Portfolio on the
same day that it notifies the Fund of a purchase request for such Shares.
Payment for Shares shall be made in federal funds transmitted to the Fund by
wire to be received by the Fund by 4:00 P.M. Eastern Time on the day the Fund is
notified of the purchase request for Shares.
(b) The Fund will wire payment in federal funds for net
redemptions to an account designated by LIFE COMPANY by 4:00 p.m. Eastern Time
on the Business Day the order is placed, except that the Fund reserves the right
to delay payment of redemption of proceeds to the extent permitted under Section
22(e) of the 1940 Act and the regulations thereunder. The Fund shall not bear
any responsibility whatsoever for the proper disbursement or crediting of
redemption proceeds by LIFE COMPANY.
2.3 Applicable Price
(a) Share purchase payments and redemption orders that result
from purchase payments, premium payments, surrenders and other transactions
under Contracts (collectively, "Contract transactions") and that LIFE COMPANY
receives prior to the time that the Fund ordinarily calculates its net asset
value, as described from time to time in the Fund's prospectus on a Business Day
will be executed at the net asset values of the appropriate Portfolios next
computed after receipt by the Fund or its designated agent of the orders. For
purposes of this Section 2.3(a), LIFE COMPANY shall be the designated agent of
the Fund for receipt of orders relating to Contract transactions on each
Business Day and receipt by such designated agent shall constitute receipt by
the Fund; provided that the Fund receives notice of such orders by 9:00 a.m.
Eastern Time on the following Business Day.
(b) All other Share purchases and redemptions by LIFE COMPANY
will be effected at the net asset values of the appropriate Portfolios next
computed after receipt by the Fund or its designated agent of the order
therefor, and such orders will be irrevocable.
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2.4 Dividends and Distributions
The Fund will furnish notice by wire or telephone (followed by
written confirmation) on or prior to the payment date to LIFE COMPANY of any
income dividends or capital gain distributions payable on the Shares of any
Portfolio. LIFE COMPANY hereby elects to reinvest all dividends and capital
gains distributions in additional Shares of the corresponding Portfolio at the
ex-dividend date net asset values until LIFE COMPANY otherwise notifies the Fund
in writing. LIFE COMPANY reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. Any
such revocation will take effect with respect to the next income dividend or
capital gain distribution following receipt by the Fund of such notification
from LIFE COMPANY.
2.5 Book Entry
Issuance and transfer of Portfolio Shares will be by book
entry only. Stock certificates will not be issued to LIFE COMPANY. Shares
ordered from the Fund will be recorded in an appropriate title for LIFE COMPANY,
on behalf of its Accounts.
Section 3. Costs and Expenses
3.1 General
(a) Except as otherwise specifically provided herein, each
party will bear all expenses incident to its performance under this Agreement.
(b) The Fund shall pay no fee or other compensation to the
LIFE 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 Fund may make payments to the LIFE COMPANY or to the
underwriter for the Contracts if and in amounts agreed to by the Fund in
writing. Presently, no such payments are contemplated.
3.2 Registration
(a) The Fund will bear the cost of its registering as a
management investment company under the 1940 Act and registering its Shares
under the 1933 Act, and keeping such registrations current and effective;
including, without limitation, the preparation of and filing with the SEC of
Forms N-SAR and Rule 24f-2 Notices with respect to the Fund and its Shares and
payment of all applicable registration or filing fees with respect to any of the
foregoing.
(b) LIFE COMPANY will bear the cost of registering, to the
extent required, each Account as a unit investment trust under the 1940 Act and
registering units of interest under the Contracts under the 1933 Act and keeping
such registrations current and effective; including, without limitation, the
preparation and filing with the SEC of Forms N-SAR and Rule 24f-2 Notices with
respect to each Account and its units of interest and payment of all applicable
registration or filing fees with respect to any of the foregoing.
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3.3 Distribution Expenses
LIFE COMPANY will bear the expenses of distribution. These
expenses would include by way of illustration, but are not limited to, the costs
of distributing to Contract owners, annuitants, insureds or participants (as
appropriate) under the Contracts (collectively, "Participants") the following
documents, whether they relate to the Account or the Fund: prospectuses,
statements of additional information, proxy materials and periodic reports.
These costs would also include the costs of preparing, printing, and
distributing sales literature and advertising relating to the Portfolios (all of
which require the prior written consent of the Fund) to the extent such
materials are distributed in connection with the Contracts, and, except for
advertising materials prepared by the Funds, filing such materials with, and
obtaining approval from, the SEC, the National Association of Securities
Dealers, Inc. (the "NASD"), any state insurance regulatory authority, and any
other appropriate regulatory authority, to the extent required by law.
3.4 Other Expenses
(a) The Fund will provide the LIFE COMPANY with as many copies
of the Fund's prospectus, statement of additional information and any amendments
or supplements thereto (collectively, the "Fund Prospectus"), periodic reports
to shareholders, the Fund proxy material and other shareholder communications as
the LIFE COMPANY may reasonably request. The Fund will bear all taxes required
to be paid by the Fund on the issuance of transfer of Fund shares. In addition,
the Fund will bear, or arrange for others to bear, the cost of printing the Fund
Prospectus to existing Participants who have directed LIFE COMPANY to purchase
Shares of the Fund, and will bear the cost of preparing and printing its
periodic reports to Shareholders, Fund proxy materials and other shareholder
communications, and any supplements or amendments to the Fund Prospectus to the
extent that such proxy materials, supplements or amendments were not required by
LIFE COMPANY.
(b) LIFE COMPANY will bear the costs of preparing, filing with
the SEC and printing each Account's prospectus, statement of additional
information and any amendments or supplements thereto (collectively, the
"Account Prospectus"), any periodic reports to Participants, voting instruction
solicitation material and the Fund Prospectus, except as provided in paragraph
(a) above, and other Participant communications to the extent required by
federal or state law or as deemed appropriate by LIFE COMPANY.
(c) LIFE COMPANY will, to the extent required by law, print in
quantity and deliver to existing Participants the documents described in Section
3.4(b) above and will deliver to such Participants the supplements as amendments
to the Fund Prospectus as provided by the Fund. LIFE COMPANY may elect to
receive the Fund Prospectus and amendments to the same, in camera ready and/or
computer diskette format and the Fund will make reasonable effort to use
computer formatting requested by LIFE COMPANY, including but not limited to,
PDF. The Fund will print the Fund statement of additional information, proxy
materials relating to the Fund and periodic reports of the Fund.
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3.5 Parties To Cooperate
Each party agrees to cooperate with the other, in arranging to
print, mail and/or deliver, in a timely manner, combined or coordinated
prospectuses or other materials of the Fund and the Accounts.
Section 4. Legal Compliance
4.1 Tax Laws
(a) The Fund represents and warrants that it is or will be
qualified as a regulated investment company ("RIC") under Subchapter M of the
Internal Revenue Code of 1986, as amended (the "Code") or any successor or
similar provision, and represents that it is or will qualify and maintain its
qualification as a RIC and to comply with the diversification requirements set
forth in Section 817(h) of the Code and the regulations thereunder or any
successor or similar provision. The Fund will notify LIFE COMPANY immediately
upon having a reasonable basis for believing that it has ceased to so qualify or
so comply, or that it might not so qualify or so comply in the future.
(b) Subject to Section 4.1(a) above, LIFE COMPANY represents
and warrants that the Contracts currently are and will be treated as annuity
contracts or life insurance contracts under applicable provisions of the Code
and that it will maintain such treatment. LIFE COMPANY will notify the Fund
immediately upon having a reasonable basis for believing that any of the
Contracts have ceased to be so treated or that they might not be so treated in
the future.
(c) LIFE COMPANY represents and warrants that each Account is
a "segregated asset account" and that interests in each Account are offered
exclusively through the purchase of or transfer into a "variable contract,"
within the meaning of such terms under Section 817 of the Code and the
regulations thereunder. LIFE COMPANY and the Accounts will continue to meet such
definitional requirements, and it will notify the Fund immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
4.2 Insurance and Certain Other Laws
(a) LIFE COMPANY represents and warrants that (i) it is an
insurance company duly organized, validly existing and in good standing under
all applicable laws and has full corporate power, authority and legal right to
execute, deliver and perform its duties and comply with its obligations under
this Agreement, (ii) it has legally and validly established and maintains each
Account as a segregated asset account under all applicable laws and regulations,
and (iii) the Contracts comply in all material respects with all applicable
federal and state laws and regulations.
(b) The Fund represents and warrants that it is a business
trust duly organized, validly existing, and in good standing under the laws of
the State of Delaware and has full corporate power, authority, and legal right
to execute, deliver, and perform its duties and comply with its obligations
under this Agreement. Notwithstanding the foregoing, the Fund makes no
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representations as to whether any aspect of its operations (including, but not
limited to, fees and expenses and investment policies) otherwise complies with
the insurance laws or regulations of any state.
(c) The Distributor represents and warrants that its
investment adviser shall remain duly registered as an investment adviser under
all applicable federal and state securities laws and agrees that it shall
perform its obligations to the Fund in accordance in all material respects with
such laws.
(d) LIFE COMPANY acknowledges and agrees that it is the
responsibility of LIFE COMPANY and other Participating Insurance Companies to
determine investment restrictions under state insurance law applicable to any
Portfolio, and that the Fund shall bear no responsibility to LIFE COMPANY for
any such determination or the correctness of such determination. LIFE COMPANY
has determined that the investment restrictions set forth in the current Fund
Prospectus are sufficient to comply with all investment restrictions under state
insurance laws that are currently applicable to the Portfolios as a result of
the Accounts' investment therein. LIFE COMPANY shall inform the Fund of any
additional investment restrictions imposed by state insurance law after the date
of this agreement that may become applicable to the Fund or any Portfolio from
time to time as a result of the Accounts' investment therein. Upon receipt of
any such information from LIFE COMPANY or any other Participating Insurance
Company, the Fund shall determine whether it is in the best interests of
shareholders to comply with any such restrictions. If the Fund determines that
it is not in the best interests of shareholders to comply with a restriction
determined to be applicable by the LIFE COMPANY, the Fund shall so inform LIFE
COMPANY, and the Fund and LIFE COMPANY shall discuss alternative accommodations
in the circumstances.
4.3 Securities Laws
(a) LIFE COMPANY represents and warrants that (i) interests in
each Account pursuant to the Contracts will be registered under the 1933 Act to
the extent required by the 1933 Act, (ii) the Contracts will be duly authorized
for issuance and sold in compliance with all applicable federal and state laws,
including, without limitation, the 1933 Act, the 1934 Act, the 1940 Act and
applicable state law, (iii) each Account is and will remain registered under the
1940 Act, to the extent required by the 1940 Act, (iv) each Account does and
will comply in all material respects with the requirements of the 1940 Act and
the rules thereunder, to the extent required, (v) each Account's 1933 Act
registration statement relating to the Contracts, together with any amendments
thereto, will at all times comply in all material respects with the requirements
of the 1933 Act and the rules thereunder, (vi) LIFE COMPANY will amend the
registration statement for its Contracts under the 1933 Act and for its Accounts
under the 1940 Act from time to time as required in order to effect the
continuous offering of its Contracts or as may otherwise be required by
applicable law, (vii) each Account Prospectus will at all times comply in all
material respects with the requirements of the 1933 Act and the rules thereunder
and (viii) LIFE COMPANY will maintain fidelity bond or similar coverage to the
extent required by applicable state law.
(b) The Fund represents and warrants that (i) Shares sold
pursuant to this Agreement will be registered under the 1933 Act to the extent
required by the 1933 Act and will be duly authorized for issuance and sold in
material compliance with Delaware law, (ii) the Fund is and will remain
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registered under the 1940 Act to the extent required by the 1940 Act, (iii) the
Fund will amend the registration statement under the 1933 Act and the 1940 Act
from time to time as required in order to effect the continuous offering of its
Shares, (iv) the Fund does and will comply in all material respects with the
requirements of the 1940 Act and the rules thereunder, (v) the Fund's 1933 Act
registration statement, together with any amendments thereto, will at all times
comply in all material respects with the requirements of the 1933 Act and rules
thereunder, (vi) the Fund's Prospectus will at all times comply in all material
respects with the requirements of the 1933 Act and the rules thereunder and
(vii) all of its directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of any
Portfolio are and 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
minimal 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
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
(c) The Fund will at its expense register and qualify its
Shares for sale in accordance with the laws of any state or other jurisdiction
if and to the extent reasonably deemed advisable by the Fund.
4.4 Notice of Certain Proceedings and Other Circumstances
(a) The Fund will immediately notify LIFE COMPANY of (i) the
issuance by any court or regulatory body of any stop order, cease and desist
order, or other similar order with respect to the Fund's registration statement
under the 1933 Act and the 1940 Act or the Fund Prospectus, (ii) any request by
the SEC for any amendment to such registration statement or the Fund Prospectus
that may affect the offering of Shares of any Portfolio, (iii) the initiation of
any proceedings for that purpose or for any other purpose relating to the
registration or offering of Shares of any Portfolio, (iv) receipt of any
complaint from a Participant relating to the Contracts or the LIFE COMPANY, or
(v) any other action or circumstances that may prevent the lawful offer or sale
of Shares of any Portfolio in any state or jurisdiction, including, without
limitation, any circumstances in which such Shares are not registered and are
not, in all material respects, issued and sold in accordance with applicable
state and federal law. The Fund will make every reasonable effort to prevent the
issuance of any such stop order, cease and desist order or similar order and, if
any such order is issued, to obtain the lifting thereof at the earliest possible
time.
(b) LIFE COMPANY will immediately notify the Fund of (i) the
issuance by any court or regulatory body of any stop order, cease and desist
order, or other similar order with respect to each Account's registration
statement under the 1933 Act or 1940 Act relating to the Contracts or each
Account Prospectus, (ii) any request by the SEC for any amendment to such
registration statement or Account Prospectus that may affect the offering of
Shares of any Portfolio, (iii) the initiation of any proceedings for that
purpose or for any other purpose relating to the registration or offering of
each Account's interests pursuant to the Contracts, (iv) receipt of any
complaint from a Participant particularly to the Fund or the Portfolios, or (v)
any other action or circumstances that may prevent the lawful offer or sale of
said interests in any state or jurisdiction, including, without limitation, any
circumstances in which said interests are not registered and are not, in all
material respects, issued and sold in accordance with applicable state and
federal law. LIFE COMPANY will make every reasonable effort to prevent the
issuance of any such stop order, cease and desist order or similar order and, if
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any such order is issued, to obtain the lifting thereof at the earliest possible
time.
4.5 Documents Provided by LIFE COMPANY; Information About the
Fund
(a) LIFE COMPANY will provide to the Fund or its designated
agent at least one (1) complete copy of all SEC registration statements, Account
Prospectuses, reports, any preliminary and final voting instruction solicitation
material, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to each Account or the Contracts,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
(b) LIFE COMPANY will provide to the Fund or its designated
agent at least one (1) complete copy of each piece of sales literature or other
promotional material in which any Portfolio, the Fund or any of its affiliates
is named, at least ten (10) Business Days prior to its use or such shorter
period as the Parties hereto may, from time to time, agree upon. No such
material shall be used if the Fund or its designated agent reasonably objects to
such use within ten (10) Business Days after receipt of such material or such
shorter period as the Parties hereto may, from time to time, agree upon.
(c) Neither LIFE COMPANY nor any of its affiliates will give
any information or make any representations or statements on behalf of or
concerning any Portfolio, the Fund or its affiliates in connection with the sale
of the Contracts other than (i) the information or representations contained in
the then current registration statement, including the Fund Prospectus contained
therein, relating to Shares, as such registration statement and the Fund
Prospectus may be amended from time to time; (ii) in reports or proxy materials
for the Fund; (iii) in published reports for the Fund that are in the public
domain and approved by the Fund for distribution by LIFE COMPANY; or (iv) in
sales literature or other promotional material approved by the Fund for use by
LIFE COMPANY, except with the express written permission of the Fund.
(d) LIFE COMPANY shall cause the principal underwriter for the
Contracts to adopt and implement procedures reasonably designed to ensure that
information concerning the Fund and its respective affiliates that is intended
for use only by brokers or agents selling the Contracts (i.e., information not
intended for distribution to Participants) ("broker only materials") is so used,
and neither the Fund nor any of its affiliates shall be liable for any losses,
damages, or expenses relating to the improper use of such broker only materials.
(e) For the purposes of this Section 4.5, the phrase "sales
literature or other promotional material" includes, but is not limited to,
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
(e.g., on-line networks such as the Internet or other electronic messages)),
sales literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
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, registration statements,
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prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the 0000 Xxx.
4.6 Documents Provided by Fund; Information About LIFE
COMPANY
(a) The Fund will provide to LIFE COMPANY at least one (1)
complete copy of all SEC registration statements, Fund Prospectuses, reports,
any preliminary and final proxy material, applications for exemptions, requests
for no-action letters, and all amendments to any of the above, that relate to
the Fund or the Shares of a Portfolio, contemporaneously with the filing of such
document with the SEC or other regulatory authorities.
(b) The Fund will provide to LIFE COMPANY or its designated
agent at least one (1) complete copy of each piece of sales literature or other
promotional material in which LIFE COMPANY, or any of its respective affiliates
is named, or that refers to the Contracts, at least ten (10) Business Days prior
to its use or such shorter period as the Parties hereto may, from time to time,
agree upon. No such material shall be used if LIFE COMPANY or its designated
agent reasonably objects to such use within ten (10) Business Days after receipt
of such material or such shorter period as the Parties hereto may, from time to
time, agree upon.
(c) Neither the Fund nor any of its affiliates will give any
information or make any representations or statements on behalf of or concerning
LIFE COMPANY, each Account, or the Contracts other than (i) the information or
representations contained in the registration statement, including each Account
Prospectus contained therein, relating to the Contracts, as such registration
statement and Account Prospectus may be amended from time to time; (ii) periodic
reports to Participants; (iii) in published reports for the Account or the
Contracts that are in the public domain and approved by LIFE COMPANY for
distribution; or (iv) in sales literature or other promotional material approved
by LIFE COMPANY or its affiliates, except with the express written permission of
LIFE COMPANY.
(e) The Fund shall cause its principal underwriter to adopt
and implement procedures reasonably designed to ensure that information
concerning LIFE COMPANY, and its respective affiliates that is intended for use
only by brokers or agents selling the Contracts broker only materials is so
used, and neither LIFE COMPANY, nor any of its respective affiliates shall be
liable for any losses, damages or expenses relating to the improper use of such
broker only materials.
(f) For purposes of this Section 4.6, the phrase "sales
literature or other promotional material" includes, but is not limited to,
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
(i.e., any written communication distributed or made generally available to
customers or the public, including brochures, circulars, research 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, registration statements, prospectuses,
statements of additional information, shareholder reports, and proxy materials
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and any other material constituting sales literature or advertising under the
NASD rules, the 1933 Act or the 1940 Act.
Section 5. Mixed and Shared Funding
LIFE COMPANY acknowledges that the Fund requested and received
an Order from the SEC granting relief from various provisions of the 1940 Act
and the rules thereunder to the extent necessary to permit Fund shares to be
sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated Participating Insurance Companies,
as well as by Plans. Any conditions or undertakings that may be imposed on LIFE
COMPANY and the Fund by virtue of such Order is incorporated herein by
reference, as though set forth herein in full, and the parties to this Agreement
shall comply with such conditions and undertakings to the extent applicable to
each such party.
Section 6. Termination
6.1 Events of Termination
Subject to Section 6.4 below, this Agreement will terminate as
to a Portfolio:
(a) at the option of any party, with or without cause, upon
six (6) months advance written notice to the other Parties, unless a shorter
time is agreed to by the Parties hereto; or
(b) at the option of LIFE Company if shares of a Portfolio are
not reasonably available to meet the requirements of the Contracts as determined
by LIFE COMPANY provided, however, that such a termination shall apply only to
the Portfolio(s) not available. Prompt written notice of the election to
terminate for such cause shall be furnished by LIFE COMPANY to the Fund;
(c) at the option of the Fund upon institution of formal
proceedings against LIFE COMPANY or the principal underwriter of the Contracts
by the NASD, the SEC, any state insurance regulator or any other regulatory body
regarding LIFE COMPANY's obligations under this Agreement or related to the sale
of the Contracts, the operation of each Account, or the purchase of Shares, if,
in each case, the Fund reasonably determines that such proceedings, or the facts
on which such proceedings would be based, have a material likelihood of imposing
material adverse consequences on the Portfolio with respect to which the
Agreement is to be terminated; or
(d) at the option of LIFE COMPANY upon institution of formal
proceedings against the Fund, its principal underwriter, or its investment
adviser by the NASD, the SEC, or any state insurance regulator or any other
regulatory body regarding the Fund's obligations under this Agreement or related
to the operation or management of the applicable Portfolio or the purchase of
the applicable Portfolios, if, in each case, LIFE COMPANY reasonably determines
that such proceedings, or the facts on which such proceedings would be based,
have a material likelihood of imposing material adverse consequences on LIFE
COMPANY, or the Subaccount corresponding to the Portfolio with respect to which
the Agreement is to be terminated; or
13
(e) at the option of any party in the event that (i) a
Portfolio's Shares are not registered and, in all material respects, issued and
sold in accordance with any applicable federal or state law, or (ii) such law
precludes the use of such Shares as an underlying investment medium of the
Contracts issued or to be issued by LIFE COMPANY; or
(f) subject to Section 4.1(a) above, at the option of LIFE
COMPANY if the applicable Portfolio ceases to qualify as a RIC under Subchapter
M of the Code or under successor or similar provisions or fails to comply with
the diversification requirements of Section 817(h) of the Code or such
requirements under successor or similar provisions or if Life Company reasonably
believes the applicable Portfolio may so cease to qualify; or
(g) subject to Section 4.1(b) above, at the option of the Fund
if the Contracts issued by LIFE COMPANY cease to qualify as annuity contracts or
life insurance contracts under the Code or if Fund reasonably believes the
applicable Contracts may so cease to qualify, or if interests in an Account
under the Contracts are not registered, where required, and, in all material
respects, are not issued or sold in accordance with any applicable federal or
state law; or
(h) at the option of the Fund by written notice to LIFE
COMPANY, if the Fund shall determine in its sole judgment exercised in good
faith, that LIFE COMPANY and/or its affiliated companies 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) at the option of LIFE COMPANY by written notice to the
Fund, if LIFE COMPANY shall determine in its sole judgment exercised in good
faith, that the Fund and/or its affiliated companies 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
(j) at the option of LIFE COMPANY by written notice to the
Fund, if LIFE COMPANY shall determine in its sole judgment exercised in good
faith, that the Distributor and/or its affiliated companies 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
(k) at the option of either party upon a determination by a
majority of the Fund's Board of Trustees, or a majority of the Fund's
disinterested trustees, that an irreconcilable material conflict exists among
the interests of: (1) all contract owners of variable insurance products of all
separate accounts; or (2) the interests of the Participating Insurance Companies
investing in the Fund; or
(l) at the option of any party upon another party's material
breach of any provision of this Agreement; or
(m) with respect to any Account, upon requisite vote of the
Contract owners having an interest in that Account (or any subaccount) or upon
the receipt of a substitution order from the SEC to substitute the shares of
14
another investment company for the corresponding Fund shares in accordance with
the terms of the Contracts for which those Fund shares had been selected to
serve as the underlying investment media. LIFE COMPANY will give at least 30
days' prior written notice to the Fund of the date of any proposed vote to
replace the Fund's shares on the date of such proposed subscription; or
(n) at the option of the Fund if it suspends or terminates the
offering of Shares of the applicable Portfolio to all Participating Insurance
Companies or only designated Participating Insurance Companies, if such action
is required by law or by regulatory authorities having jurisdiction or if, in
the sole discretion of the Trustees acting in good faith, suspension or
termination is necessary in the best interests of the shareholders of the
applicable Portfolio (it being understood that "shareholders" for this purpose
shall mean Participants), such notice effective immediately upon receipt of
written notice, it being understood that a lack of Participating Insurance
Companies interest in the applicable Portfolio may be grounds for a suspension
or termination as to such Portfolio.
6.2 Notice Requirement for Termination
No termination of this Agreement will be effective unless and
until the party terminating this Agreement gives prior written notice to the
other party to this Agreement of its intent to terminate, and such notice shall
set forth the basis for such termination. Furthermore:
(a) in the event that any termination is based upon the
provisions of Section 6.1(b), 6.1(c), 6.1(d), 6.1(f), 6.1(g) or 6.1(l) hereof,
prompt written notice of the election to terminate this Agreement for cause
shall be furnished by the party terminating the Agreement to the non-terminating
parties, with said termination effective upon receipt of such notice by the
non-terminating parties;
(b) in the event that any termination is based upon the
provisions of Section 6.1(e), 6.1(h), 6.1(i), 6.1(j), 6.1(k),6.1(m), or 6.1(n)
hereof, such prior written notice shall be given at least 30 days in advance of
the effective date of termination unless a shorter time is agreed to by the
Parties hereto; and
6.3 Fund To Remain Available
Notwithstanding any termination of this Agreement, the Fund
will, at the option of LIFE COMPANY, continue to make available additional
shares of a Portfolio 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") unless the
Distributor requests that LIFE COMPANY seek an order pursuant to Section 26(b)
of the 1940 Act to permit substitution of other securities for the shares of the
Portfolios. The Distributor agrees to pay the cost of seeking such an order, and
LIFE COMPANY agrees that it shall reasonably cooperate with the Distributor and
seek such an order upon request. Specifically, without limitation, the owners of
the Existing Contracts will be permitted to reallocate investments in Portfolios
of the Fund (as in effect on such date), redeem investments in Portfolios of the
Fund and/or invest in Portfolios of the Fund upon the making of additional
purchase payments under the Existing Contracts. Notwithstanding any termination
15
of this Agreement, LIFE COMPANY agrees to distribute to holders of Existing
Contracts all materials required by law to be distributed to such holders
(including, without limitation, prospectuses, statements of additional
information, proxy materials and periodic reports). The parties agree that this
Section 6.3 will not apply to any terminations under the conditions of the Order
and the effect of such terminations will be governed by the Order.
6.4 Survival of Warranties and Indemnifications
All warranties and indemnifications will survive the
termination of this Agreement.
Section 7. Parties To Cooperate Respecting Termination
Subject to the provisions of Section 6.3 hereof, the Parties
hereto agree to cooperate and give reasonable assistance to one another in
taking all necessary and appropriate steps for the purpose of ensuring that an
Account owns no Shares of the applicable Portfolio after the final termination
date with respect thereto, or, in the case of a termination pursuant to Section
6.1(a), the termination date specified in the notice of termination. Such steps
may include combining the affected Account with another Account, substituting
other mutual fund shares for those of the affected Portfolio, or otherwise
terminating participation by the Contracts in such Portfolio.
Section 8. Assignment
This Agreement may not be assigned by any party, except with
the prior written consent of all the Parties.
Section 9. Notices
Notices and communications required or permitted by this
Agreement will be given to the following persons at the following addresses and
facsimile numbers, or such other persons, addresses or facsimile numbers as the
party receiving such notices or communications may subsequently direct in
writing:
GE Capital Life Assurance Company of New York
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn.: General Counsel
PIMCO Funds Distributors LLC
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: General Counsel
PIMCO Variable Insurance Trust
000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: General Counsel
16
Section 10. Voting Procedures
Subject to the cost allocation procedures set forth in Section
3 hereof, LIFE COMPANY will distribute all proxy material furnished by the Fund
to Participants to whom pass-through voting privileges are required to be
extended and will solicit voting instructions from Participants. LIFE COMPANY
will vote Shares in accordance with timely instructions received from
Participants. LIFE COMPANY will vote Shares that are (a) not attributable to
Participants to whom pass-through voting privileges are extended, or (b)
attributable to Participants, but for which no timely instructions have been
received, in the same proportion as Shares for which said instructions have been
received from Participants, so long as and to the extent that, the 1940 Act
requires pass-through voting privileges for Participants. Neither LIFE COMPANY
nor any of its affiliates will in any way recommend action in connection with or
oppose or interfere with the solicitation of proxies for the Shares held for
such Participants. LIFE COMPANY reserves the right to vote shares held in any
Account in its own right, to the extent permitted by law. LIFE COMPANY shall be
responsible for assuring that each of its Accounts holding Shares calculates
voting privileges in the manner required by the Order obtained by the Fund. The
Fund will notify LIFE COMPANY of any amendments to the Order it has obtained.
Section 11. Indemnification
11.1 LIFE COMPANY
(a) Except to the extent provided in Sections 11.1(b) and
11.1(c), below, LIFE COMPANY agrees to indemnify and hold harmless the Fund, the
Distributor, affiliates of each, and each person, if any, who controls the Fund,
the Distributor or the affiliates of either within the meaning of Section 15 of
the 1933 Act and each of their respective directors and officers (collectively,
the "Indemnified Parties" for purposes of this Section 11.1) against any and all
losses, claims, damages, costs, expenses, liabilities (including amounts paid in
settlement with the written consent of LIFE COMPANY) or actions in respect
thereof (including, to the extent reasonable, legal and other expenses), to
which the Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise insofar as such losses, claims, damages, costs,
expenses, liabilities or actions:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in any Account's 1933
Act registration statement, any Account
Prospectus, the Contracts, or sales literature
or advertising 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 written information furnished to LIFE
17
COMPANY by or on behalf of the Fund or the
Distributor for use in any Account's 1933 Act
registration statement, any Account Prospectus,
the Contracts, or sales literature or
advertising (or any amendment or supplement to
any of the foregoing); or
(ii) arise out of or as a result of any other
statements or representations (other than
statements or representations contained in the
Fund's 1933 Act registration statement, the
Fund Prospectus, sales literature or
advertising of the Fund or advertising by its
investment adviser, or any amendment or
supplement to any of the foregoing, not
supplied for use therein by or on behalf of
LIFE COMPANY or its affiliates and on which
such persons have reasonably relied) or the
negligent, illegal or fraudulent conduct of
LIFE COMPANY or its respective affiliates or
persons under their control, in connection with
the sale, marketing or distribution of the
Contracts or Shares; or
(iii) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the Fund's 1933 Act
registration statement, the Fund Prospectus,
sales literature or advertising of the Fund, or
any amendment or supplement to any of the
foregoing, 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
and in conformity with information furnished in
writing to the Fund or its affiliates by or on
behalf of LIFE COMPANY or its affiliates for
use in the Fund's 1933 Act registration
statement, the Fund Prospectus, sales
literature or advertising of the Fund, or any
amendment or supplement to any of the
foregoing; or
(iv) arise as a result of any failure by LIFE
COMPANY or persons under its control or any
third party with which LIFE COMPANY has
contractually delegated administration
responsibilities for the Contracts to perform
the obligations, provide the services and
furnish the materials required under the terms
of this Agreement, or any material breach of
any representation and/or warranty made by LIFE
COMPANY or persons under its control in this
Agreement or that arise out of or result from
any other material breach of this Agreement by
LIFE COMPANY or persons under its control; or
(v) arise as a result of a failure to transmit a
request for purchase or redemption of Shares or
payment therefor within the time period
specified herein and otherwise in accordance
with the procedures set forth in this
Agreement; or
(vi) arise as a result of any unauthorized use of
the trade names of the Fund to the extent such
use is not required by applicable law or
regulation.
18
(b) This indemnification is in addition to any liability that
LIFE COMPANY may otherwise have. LIFE COMPANY shall not be liable under this
Section 11.1 with respect to any losses, claims, damages, costs, expenses,
liabilities or actions to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance by that Indemnified Party of its duties or by reason of that
Indemnified Party's reckless disregard of obligations or duties (i) under this
Agreement, or (ii) to the Fund.
(c) LIFE COMPANY shall not be liable under this Section 11.1
with respect to any action against an Indemnified Party unless the Indemnified
Party shall have notified LIFE COMPANY in writing promptly after the summons or
other first legal process giving information of the nature of the action 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 LIFE
COMPANY shall be relieved of liability under this Section 11.1 only to the
extent the LIFE COMPANY is damaged solely by reason of such Indemnified Party's
failure to so notify and failure to notify LIFE COMPANY of any such action shall
not relieve LIFE COMPANY from any liability which they may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this Section 11.1. Except as otherwise provided herein, in case any such
action is brought against an Indemnified Party, LIFE COMPANY shall be entitled
to participate, at its own expense, in the defense of such action and also shall
be entitled to assume the defense thereof, (which shall include, without
limitation, the conduct of any ruling request and closing agreement or other
settlement proceeding with the Internal Revenue Service (the "IRS")), with
counsel approved by the Indemnified Party named in the action, which approval
shall not be unreasonably withheld. After notice from LIFE COMPANY to such
Indemnified Party of LIFE COMPANY's election to assume the defense thereof, the
Indemnified Party will cooperate fully with LIFE COMPANY and shall bear the fees
and expenses of any additional counsel retained by it, and LIFE COMPANY will not
be liable to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof, other than reasonable costs of
investigation.
11.2 Of LIFE COMPANY by the Fund
(a) Except to the extent provided in Sections 11.2(b) and
11.2(c) below, the Fund agrees to indemnify and hold harmless LIFE COMPANY, its
affiliates, and each person, if any, who controls LIFE COMPANY or its affiliates
within the meaning of Section 15 of the 1933 Act and each of their respective
directors and officers (collectively, the "Indemnified Parties" for purposes of
this Section 11.2) against any and all losses, claims, damages, costs, expenses,
liabilities (including amounts paid in settlement with the written consent of
the Fund) or actions in respect thereof (including, to the extent reasonable,
legal and other expenses), to which the Indemnified Parties may become subject
under any statute, regulation, at common law, or otherwise; insofar as such
losses, claims, damages, costs, expenses, liabilities or actions:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the Fund's 1933 Act
registration statement, Fund Prospectus or
sales literature or advertising of the Fund (or
any amendment or supplement to any of the
19
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 to any
Indemnified Party if such statement or omission
or such alleged statement or omission was made
in reliance upon and in conformity with written
information furnished to the Fund or its
affiliates by or on behalf of LIFE COMPANY or
its affiliates for use in the Fund's 1933 Act
registration statement, the Fund Prospectus, or
in sales literature or advertising or otherwise
for use in connection with the sale of
Contracts or Shares (or any amendment or
supplement to any of the foregoing); or
(ii) arise out of or as a result of any other
statements or representations (other than
statements or representations contained in any
Account's 1933 Act registration statement, any
Account Prospectus, sales literature or
advertising for the Contracts, or any amendment
or supplement to any of the foregoing, not
supplied for use therein by or on behalf of the
Fund or its affiliates and on which such
persons have reasonably relied) or the
negligent, illegal or fraudulent conduct of the
Fund or its affiliates, in connection with the
sale, marketing or distribution of Shares; or
(iii) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in any Account's 1933
Act registration statement, any Account
Prospectus, sales literature or advertising
covering the Contracts, or any amendment or
supplement to any of the foregoing, 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 statement or omission was
made in reliance upon and in conformity with
written information furnished to LIFE COMPANY,
or its affiliates by or on behalf of the Fund
for use in any Account's 1933 Act registration
statement, any Account Prospectus, sales
literature or advertising covering the
Contracts, or any amendment or supplement to
any of the foregoing; or
(iv) arise as a result of any failure by the Fund to
perform the obligations, provide the services
and furnish the materials required of it under
the terms of this Agreement, including, without
limitation, any failure of the Fund or its
designated agent to inform LIFE COMPANY of the
correct net asset values per share for each
Portfolio on a timely basis sufficient to
ensure the timely execution of all purchase and
redemption orders at the correct net asset
value per share, or any material breach of any
representation and/or warranty made by the Fund
20
in this Agreement or arise out of or result
from any other material breach of this
Agreement by the Fund.
(b) This indemnification is in addition to any liability that
the Fund may otherwise have. The Fund shall not be liable under this Section
11.2 with respect to any losses, claims, damages, costs, expenses, liabilities
or actions to which an Indemnified Party would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance by that
Indemnified Party of its duties or by reason of such Indemnified Party's
reckless disregard of its obligations and duties (i) under this Agreement, or
(ii) to LIFE COMPANY, each Account or Participants.
(c) The Fund shall not be liable under this Section 11.2 with
respect to any action against an Indemnified Party unless the Indemnified Party
shall have notified the Fund in writing promptly after the summons or other
first legal process giving information of the nature of the action 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 the Fund
shall be relieved of liability under this Section 11.2 only to the extent the
Fund is damaged solely by reason of such Indemnified Party's failure to so
notify and failure to notify the Fund of any such action 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 Section 11.2. Except as
otherwise provided herein, in case any such action is brought against an
Indemnified Party, the Fund will be entitled to participate, at its own expense,
in the defense of such action and also shall be entitled to assume the defense
thereof (which shall include, without limitation, the conduct of any ruling
request and closing agreement or other settlement proceeding with the IRS), with
counsel approved by the Indemnified Party named in the action, which approval
shall not be unreasonably withheld. After notice from the Fund to such
Indemnified Party of the Fund's election to assume the defense thereof, the
Indemnified Party will cooperate fully with the Fund and shall bear the fees and
expenses of any additional counsel retained by it, and the Fund will not be
liable to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof, other than reasonable costs of
investigation.
11.3 Of LIFE COMPANY by the Distributor
(a) Except to the extent provided in Sections 11.3(b) and
11.3(c) below, the Distributor agrees to indemnify and hold harmless LIFE
COMPANY, its affiliates, and each person, if any, who controls LIFE COMPANY or
its affiliates within the meaning of Section 15 of the 1933 Act and each of
their respective directors and officers (collectively, the "Indemnified Parties"
for purposes of this Section 11.23) against any and all losses, claims, damages,
costs, expenses, liabilities (including amounts paid in settlement with the
written consent of the Fund) or actions in respect thereof (including, to the
extent reasonable, legal and other expenses), to which the Indemnified Parties
may become subject under any statute, regulation, at common law, or otherwise;
insofar as such losses, claims, damages, costs, expenses, liabilities or
actions:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in the Fund's 1933 Act
21
registration statement, Prospectus or sales
literature or advertising 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 to any
Indemnified Party if such statement or omission
or such alleged statement or omission was made
in reliance upon and in conformity with written
information furnished to the Distributor, the
Fund or their affiliates by or on behalf of
LIFE COMPANY or its affiliates for use in the
Fund's 1933 Act registration statement, the
Fund Prospectus, or in sales literature or
advertising or otherwise for use in connection
with the sale of Contracts or Shares (or any
amendment or supplement to any of the
foregoing); or
(ii) arise out of or as a result of any other
statements or representations (other than
statements or representations contained in any
Account's 1933 Act registration statement, any
Account Prospectus, sales literature or
advertising for the Contracts, or any amendment
or supplement to any of the foregoing, not
supplied for use therein by or on behalf of the
Distributor, the Fund or their affiliates and
on which such persons have reasonably relied)
or the negligent, illegal or fraudulent conduct
of the Distributor, the Fund or their
affiliates or persons under their control, in
connection with the sale, marketing or
distribution of Fund Shares; or
(iii) arise out of or are based upon any untrue
statement or alleged untrue statement of any
material fact contained in any Account's 1933
Act registration statement, any Account
Prospectus, sales literature or advertising
covering the Contracts, or any amendment or
supplement to any of the foregoing, 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 statement or omission was
made in reliance upon and in conformity with
written information furnished to LIFE COMPANY,
or its affiliates by or on behalf of the
Distributor or the Fund for use in any
Account's 1933 Act registration statement, any
Account Prospectus, sales literature or
advertising covering the Contracts, or any
amendment or supplement to any of the
foregoing; or
(iv) arise as a result of any failure by the
Distributor or the Fund to perform the
obligations, provide the services and furnish
the materials required of it under the terms of
this Agreement, including, without limitation,
any material failure of the Fund or its
designated agent to inform LIFE COMPANY of the
correct net asset values per share for each
Portfolio on a timely basis sufficient to
ensure the timely execution of all purchase and
22
redemption orders at the correct net asset
value per share, or any material breach of any
representation and/or warranty made by the
Distributor or the Fund in this Agreement or
arise out of or result from any other material
breach of this Agreement by the Distributor.
(b) This indemnification is in addition to any liability that
the Distributor may otherwise have. The Distributor shall not be liable under
this Section 11.3 with respect to any losses, claims, damages, costs, expenses,
liabilities or actions to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance by that Indemnified Party of its duties or by reason of such
Indemnified Party's reckless disregard of its obligations and duties (i) under
this Agreement, or (ii) to LIFE COMPANY, each Account or Participants.
(c) The Distributor shall not be liable under this Section
11.3 with respect to any action against an Indemnified Party unless the
Indemnified Party shall have notified the Distributor in writing promptly after
the summons or other first legal process giving information of the nature of the
action 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 the Distributor shall be relieved of liability under this Section
11.3 only to the extent the Distributor is damaged solely by reason of such
Indemnified Party's failure to so notify and failure to notify the Distributor
of any such action shall not relieve the Distributor from any liability which it
may have to the Indemnified Party against whom such action is brought otherwise
than on account of this Section 11.3. Except as otherwise provided herein, in
case any such action is brought against an Indemnified Party, the Distributor
will be entitled to participate, at its own expense, in the defense of such
action and also shall be entitled to assume the defense thereof (which shall
include, without limitation, the conduct of any ruling request and closing
agreement or other settlement proceeding with the IRS), with counsel approved by
the Indemnified Party named in the action, which approval shall not be
unreasonably withheld. After notice from the Distributor to such Indemnified
Party of the Distributor's election to assume the defense thereof, the
Indemnified Party will cooperate fully with the Distributor and shall bear the
fees and expenses of any additional counsel retained by it, and the Distributor
will not be liable to such Indemnified Party under this Agreement for any legal
or other expenses subsequently incurred by such Indemnified Party independently
in connection with the defense thereof, other than reasonable costs of
investigation.
11.4 Effect of Notice
Any notice given by the indemnifying party to an Indemnified
Party referred to in Sections 11.1(c), 11.2(c) or 11.3(c) above of participation
in or control of any action by the indemnifying party will in no event be deemed
to be an admission by the indemnifying party of liability, culpability or
responsibility, and the indemnifying party will remain free to contest liability
with respect to the claim among the Parties or otherwise.
11.5 Successors
A successor by law of any Party shall be entitled to the
benefits of the indemnification contained in this Section 11.
23
11.6 Obligations of the Fund
All persons dealing with the Fund must look solely to the
property of the applicable Portfolio for the enforcement of any claims against
the Fund as neither the Board, Officers, agents or shareholders assume any
personal liability for obligations entered into on behalf of the Fund.
Section 12. Applicable Law
(a) This Agreement will be construed and the provisions hereof
interpreted under and in accordance with New York law, without regard for that
state's principles of conflict of laws.
(b) This Agreement shall be subject to the provisions of the
1933 Act, the Securities Exchange Act of 1934, and the 1940 Act, 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, the Order) and the terms hereof shall be interpreted and construed in
accordance therewith.
Section 13. Execution in Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together with constitute one and the same
instrument.
Section 14. Severability
If any provision of this Agreement is held or made invalid by
a court decision, statute, rule or otherwise, the remainder of this Agreement
will not be affected thereby.
Section 15. Rights Cumulative
The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights, remedies and
obligations, at law or in equity, that the Parties are entitled to under federal
and state laws.
Section 16. Headings
The headings used in this Agreement are for purposes of
reference only and shall not limit or define the meaning of the provisions of
this Agreement.
Section 17. Confidentiality
Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of customers of the other party and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
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this Agreement, shall not, without the express written consent of the affected
party, disclose, disseminate or utilize such names and addresses and other
confidential information until such time as it may come into the public domain.
Section 18. Trademarks and Fund Names
(a) Pacific Investment Management Company LLC, the adviser to
the Fund and its affiliates, own all right, title and interest in and to the
names, trademarks and service marks "PIMCO", "Pacific Investment Management
Company LLC", "PIMCO Variable Insurance Trust", "PIMCO Funds Distributors LLC"
and such other tradenames, trademarks and service marks as may be identified
from time to time. Upon termination of this Agreement LIFE COMPANY and its
affiliates shall cease to use the licensed marks, except to the extent required
by law or regulation.
(b) GE Capital Life Assurance Company of New York and its
affiliates, own all right, title and interest in and to the tradenames,
trademarks and service marks "GE Capital Life Assurance Company of New York" and
"GE Capital Life" and such other tradenames, trademarks and service marks as may
be identified to LIFE COMPANY from time to time (the "GE licensed marks"). Upon
termination of this Agreement the Fund, the Distributor, and their affiliates
shall cease to use the GE licensed marks, except to the extent required by law
or regulation.
Section 19. Parties to Cooperate
Each Party to this Agreement will cooperate with each other
Party and all appropriate governmental authorities (including, without
limitation, the SEC, the NASD and state insurance regulators) and will permit
each other and such authorities reasonable access to its books and records
(including copies thereof) in connection with any investigation or inquiry
relating to this Agreement or the transactions contemplated hereby.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to
be executed in their names and on their behalf by and through their duly
authorized officers signing below.
PIMCO Variable Insurance Trust
Attest: __________________ By: ______________________________
Name: __________________ Name: ________________________
Title: __________________ Title: _______________________
PIMCO Funds Distributors LLC
Attest: __________________ By: ______________________________
Name: __________________ Name: ________________________
Title: __________________ Title: _______________________
GE LIFE AND ANNUITY ASSURANCE COMPANY
on behalf of itself and its separate
accounts
Attest: __________________ By: ______________________________
Name: ____________________ Name: ________________________
Title: __________________ Title: _______________________
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SCHEDULE A
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
Foreign Bond Portfolio
High Yield Bond Portfolio
Total Return Bond Portfolio
Long-Term U.S. Government Bond Portfolio
SEPARATE ACCOUNTS UTILIZING THE FUNDS
GE Capital Life Separate Account II (established November 10, 1997) GE Capital
Life Separate Account III (established June 21, 2000)
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
GE Choice Variable Annuity NY
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