EXHIBIT 8(k)
PARTICIPATION AGREEMENT
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AMONG
FIRST GOLDEN AMERICAN LIFE INSURANCE COMPANY OF NEW YORK,
THE GALAXY VIP FUND,
FLEET INVESTMENT ADVISORS INC.
AND
FIRST DATA DISTRIBUTORS, INC.
THIS AGREEMENT, dated as of the 1st day of October, 1999, by and
among First Golden American Life Insurance Company of New York (the
"Company"), a life insurance company organized under the laws of the
State of New York, on its own behalf and on behalf of each separate
account of the Company set forth on Schedule A hereto as may be
amended from time to time (each such account hereinafter referred to
as the "Account"), The Galaxy VIP Fund (the "Fund"), a management
investment company and business trust organized under the laws of the
Commonwealth of Massachusetts, Fleet Investment Advisors Inc. (the
"Adviser"), a corporation organized under the laws of the State of
New York, and First Data Distributors, Inc. (the "Distributor"), a
corporation organized under the laws of the Commonwealth of
Massachusetts.
WHEREAS, the Fund engages in business as an open-end management
investment company and is 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, Adviser and Distributor ("Participating
Insurance Companies");
WHEREAS, the shares of beneficial interest of the Fund are
divided into several series of shares, each designated a "Portfolio"
and representing the interest in a particular managed portfolio of
securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and
Exchange Commission (the "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,
(the "1940 Act") and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder,
if and 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 (the "Mixed and Shared Funding Exemptive Order"), and the
parties to this Agreement agree to comply with the conditions or
undertakings specified in the Mixed and Shared Funding Exemptive
Order to the extent applicable to each such party;
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 (the
"1933 Act");
WHEREAS, the Adviser, which serves as investment adviser to the
Designated Portfolios (as hereinafter defined) of the Fund, is duly
registered as an investment adviser under the federal Investment
Advisers Act of 1940, as amended;
WHEREAS, the Company has registered or will register certain
variable annuity contracts (the "Contracts") under the 1933 Act;
WHEREAS, the Account is a duly organized, validly existing
segregated asset account, established by the Company under the
insurance laws of the State of Delaware, to set aside and invest
assets attributable to the Contracts;
WHEREAS, the Company has registered the Account as a unit
investment trust under the 1940 Act;
WHEREAS, the Company has issued or will issue certain variable
life insurance and/or variable annuity contracts 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;
WHEREAS, the Distributor, which serves as distributor to the
Fund, is registered as a broker dealer with the SEC under the
Securities Exchange Act of 1934, as amended (the "1934 Act"), and is
a member in good standing of the National Association of Securities
Dealers, Inc. (the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws
and regulations, the Company intends to purchase shares in the
Portfolios listed in Schedule B 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 Distributor is authorized to sell such shares to
the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the
Company, the Fund, the Adviser, and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
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1.1. The Fund agrees to sell to the Company those shares of the
Designated Portfolios that each Account or the appropriate subaccount
of each Account orders, executing such orders on a daily basis at the
net asset value next computed after receipt and acceptance by the
Fund or its designee of the order for the shares of the Fund. For
purposes of this Section 1.1, the Company will be the designee of the
Fund for receipt of such orders from each Account or the appropriate
subaccount of each Account and receipt by such designee will
constitute receipt by the Fund; provided that the Fund receives
notice of such order by 10:00 a.m. Eastern Time on the next following
business day ("T+1"). "Business Day" will 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.
1.2. The Company will pay for Fund shares on T+1 that an order
to purchase Fund shares is made in accordance with Section 1.1 above.
Payment will be in federal funds transmitted by wire. This wire
transfer will be initiated by 12:00 p.m. Eastern Time.
1.3. The Fund agrees to make shares of the Designated Portfolios
available indefinitely for purchase at the applicable net asset value
per share by Participating Insurance Companies and their separate
accounts on those days on which the Fund calculates its Designated
Portfolio net asset value pursuant to rules of the SEC and the Fund
shall use reasonable efforts to calculate such net asset value on
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each day the New York Stock Exchange is open for trading; provided,
however, that the Board of Trustees of the Fund (the "Fund Board")
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 is, in the sole discretion of the Fund Board, acting in good faith
and in light of its fiduciary duties under federal and any applicable
state laws, necessary in the best interests of the shareholders of
such Portfolio.
1.4. On each Business Day on which the Fund calculates its net
asset value, the Company will aggregate and calculate the net
purchase or redemption orders for each Account or the appropriate
subaccount of each Account maintained by the Fund in which
contractowner assets are invested. Net orders will only reflect
orders that the Company has received prior to the close of regular
trading on the New York Stock Exchange, Inc. (the "NYSE") (currently
4:00 p.m., Eastern Time) on that Business Day. Orders that the
Company has received after the close of regular trading on the NYSE
will be treated as though received on the next Business Day. Each
communication of orders by the Company will constitute a
representation that such orders were received by it prior to the
close of regular trading on the NYSE on the Business Day on which the
purchase or redemption order is priced in accordance with Rule 22c-1
under the 1940 Act. Other procedures relating to the handling of
orders will be in accordance with the prospectus and statement of
information of the relevant Designated Portfolio or with oral or
written instructions that the Distributor or the Fund will forward to
the Company from time to time.
1.5. The Fund agrees that shares of the Fund will be sold only
to Participating Insurance Companies and their separate accounts,
qualified pension and retirement plans or such other persons as are
permitted under applicable provisions of the Internal Revenue Code of
1986, as amended, (the "Internal Revenue Code"), and regulations
promulgated thereunder, the sale to which will not impair the tax
treatment currently afforded the Contracts. No shares of any
Portfolio will be sold to the general public except as set forth in
this Section 1.5.
1.6. The Fund agrees to redeem for cash, upon the Company's
request, any full or fractional shares of the Fund held by the
Company, executing such requests on a daily basis at the net asset
value next computed after receipt and acceptance by the Fund or its
agent of the request for redemption. For purposes of this Section
1.6, the Company will be the designee of the Fund for receipt of
requests for redemption from each Account or the appropriate
subaccount of each Account and receipt by such designee will
constitute receipt by the Fund, provided the Fund receives notice of
request for redemption by 10:00 a.m. Eastern Time on the next
following Business Day. Payment will be in federal funds transmitted
by wire to the Company's account as designated by the Company in
writing from time to time, on the same Business Day the Fund receives
notice of the redemption order from the Company. The Fund reserves
the right to delay payment of redemption proceeds, but in no event
may such payment be delayed longer than the period permitted by the
0000 Xxx. The Fund will not bear any responsibility whatsoever for
the proper disbursement or crediting of redemption proceeds; the
Company alone will be responsible for such action. If notification
of redemption is received after 10:00 a.m. Eastern Time, payment for
redeemed shares will be made on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the
Designated Portfolios offered by the then current prospectus of the
Fund in accordance with the provisions of such prospectus.
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. Purchase and redemption orders for Fund shares will be
recorded in an appropriate title for each Account or the appropriate
subaccount of each Account.
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1.9. The Fund will furnish same day notice (by telecopier,
followed by written confirmation) to the Company of the declaration
of any income, dividends or capital gain distributions payable on
each Designated Portfolio's shares. The Company hereby elects to
receive all such dividends and distributions as are payable on the
Designated Portfolio shares in the form of additional shares of that
Designated Portfolio. The Fund will notify the Company of the number
of shares so issued as payment of such dividends and distributions.
The Company reserves the right to revoke this election upon
reasonable prior notice to the Fund and to receive all such dividends
and distributions in cash.
1.10. The Fund will 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 and will use its best efforts to make such net asset
value per share available by 6:00 p.m., Eastern Time, but in no event
later than 7:00 p.m., Eastern Time, each Business Day.
1.11. In the event adjustments are required to correct any
error in the computation of the net asset value of the Fund's shares,
the Fund or the Distributor will notify the Company as soon as
practicable after discovering the need for those adjustments that
result in an aggregate reimbursement of $150 or more to any one
subaccount of each Account maintained by a Designated Portfolio
unless notified otherwise by the Company (or, if greater, results in
an adjustment of $10 or more to each contractowner's account). Any
such notice will state for each day for which an error occurred the
incorrect price, the correct price and, to the extent communicated to
the Fund's shareholders, the reason for the price change. The
Company may send this notice or a derivation thereof (so long as such
derivation is approved in advance by the Distributor or the Adviser)
to contractowners whose accounts are affected by the price change.
The parties will negotiate in good faith to develop a reasonable
method for effecting such adjustments. The Fund shall provide the
Company, on behalf of the Account or the appropriate subaccount of
each Account, with a prompt adjustment to the number of shares
purchased or redeemed to reflect the correct share net asset value.
1.12.
(a) 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 1.5 hereof) and the cash value of the Contracts may be
invested in other investment companies, provided, however, that
until this Agreement is terminated pursuant to Article X, the
Company shall promote the Designated Portfolios on the same
basis as other funding vehicles available under the Contracts
and funding vehicles other than those listed on Schedule B to
this Agreement may be available for the investment of the cash
value of the Contracts.
(b) The Company shall not, without prior notice to the
Advisor and the Distributor (unless otherwise required by
applicable law), take any action to operate the Account as a
management investment company under the 1940 Act.
(c) The Company shall not, without prior notice to the
Advisor and the Distributor (unless otherwise required by
applicable law), induce contractowners to change or modify the
Fund or change the Fund's distributor or investment adviser.
(d) The Company shall not, without prior notice to the
Fund, induce contractowners to vote on any matter submitted for
consideration by the shareholders of the Fund in a manner other
than as recommended by the Fund Board.
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ARTICLE II. Representations and Warranties
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2.1. The Company represents and warrants that the Contracts are
or will be registered under the 1933 Act and that the Contracts will
be issued and sold in compliance with all applicable federal and
state laws, including 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 each Account as a
separate account under applicable state law and has registered the
Account as a unit investment trust in accordance with the provisions
of thin 1940 Act to serve as a segregated investment account for the
Contracts, and that it will maintain such registration for so long as
any Contracts are outstanding. The Company will amend the
registration statement under the 1933 Act for the Contracts and the
registration statement under the 1940 Act for the Account from time
to time as required in order to effect the continuous offering of the
Contracts or as may otherwise be required by applicable law. The
Company will register and qualify the Contracts for sale in
accordance with the securities laws of the various states only if and
to the extent deemed necessary by the Company.
2.2. The Company represents that the Contracts are currently and
at the time of issuance will be treated as endowment, annuity or life
insurance contracts under applicable provisions of the Internal
Revenue Code, and that it will make every effort to maintain such
treatment and that it will notify the Fund and the Adviser
immediately upon having a reasonable basis for believing that the
Contracts have ceased to be so treated or that they might not be so
treated in the future.
2.3. The Company represents and warrants that it will not
purchase shares of the Designated Portfolios with assets derived from
tax-qualified retirement plans except, indirectly, through Contracts
purchased in connection with such plans.
2.4. The Fund represents and warrants that Fund shares of the
Designated Portfolios sold pursuant to this Agreement will be
registered under the 1933 Act and duly authorized for issuance in
accordance with applicable law and that the Fund is and will remain
registered under the 1940 Act for as long as such shares of the
Designated Portfolios are outstanding. The Fund will 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 will register and qualify the
shares of the Designated Portfolios for sale in accordance with the
laws of the various states only if and to the extent deemed advisable
by the Fund.
2.5. The Fund represents that it is currently qualified as a
Regulated Investment Company under Subchapter M of the Internal
Revenue Code, and that it will make every effort to maintain such
qualification (under Subchapter M or any successor or similar
provision) and that it will notify 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.
2.6. The Fund represents and warrants that in performing the
services described in this Agreement, the Fund will comply with all
applicable laws, rules and regulations. The Fund makes no
representation as to whether any aspect of its operations (including,
but not limited to, fees and expenses and investment policies,
objectives and restrictions) complies with the insurance laws and
regulations of any state. The Fund and the Distributor agree that
upon request they will use their best efforts to furnish the
information required by state insurance laws so that the Company can
obtain the authority needed to issue the Contracts in the various
states.
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2.7. 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 reserves the right to make such payments in the
future. To the extent that it decides to finance distribution
expenses pursuant to Rule 12b-1 the Fund undertakes to have its Fund
Board formulate and approve any plan under Rule 12b-1 to finance
distribution expenses in accordance with the 1940 Act.
2.8. The Distributor represents and warrants that it will
distribute the Fund shares of the Designated Portfolios in accordance
with all applicable federal and state securities laws including,
without limitation, the 1933 Act, the 1934 Act and the 0000 Xxx.
2.9. The Fund represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of Massachusetts
and that it does and will comply in all material respects with
applicable provisions of the 0000 Xxx.
2.10. The Distributor represents and warrants that it is and
will remain duly registered under all applicable federal and state
securities laws and that it will perform its obligations for the Fund
in accordance in all material respects with any applicable state and
federal securities laws.
2.11. The Fund and the Distributor represent and warrant
that all of their trustees, officers, employees, investment advisers,
and other individuals/entities having access to the funds and/or
securities of the Fund 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.
ARTICLE III. Prospectuses and Proxy Statements; Voting
-----------------------------------------
3.1. The Fund or the Distributor will provide the Company, at
the Fund's or its affiliate's expense, with as many copies of the
current Fund prospectus for the Designated Portfolios as the Company
may reasonably request for distribution, at the Company's expense, to
prospective contractowners and applicants. The Fund or the
Distributor will provide, at the Fund's or its affiliate's expense,
as many copies of said prospectus as necessary for distribution, at
the Company's expense, to existing contractowners. The Fund or the
Distributor will provide the copies of said prospectus to the Company
or to its mailing agent. If requested by the Company in lieu
thereof, the Fund or the Distributor will provide such documentation,
including a computer diskette or a final copy of a current prospectus
set in type at the Fund's or its affiliate's expense, and such other
assistance as is reasonably necessary in order for the Company at
least annually (or more frequently if the Fund prospectus is amended
more frequently) to have the Fund's prospectus and the prospectuses
of other mutual funds in which assets attributable to the Contracts
may be invested printed together in one document, in which case the
Fund or its affiliate will bear its reasonable share of expenses as
described above, allocated based on the proportionate number of pages
of the Fund's and other fund's respective portions of the document.
3.2. The Fund or the Distributor will provide the Company, at
the Fund's or its affiliate's expense, with as many copies of the
statement of additional information as the Company may reasonably
request for distribution, at the Company's expense, to prospective
contractowners and applicants. The Fund or the Distributor will
provide, at the Fund's or its affiliate's expense, as many copies of
said statement of additional information as necessary for
distribution, at the Company's expense, to any existing contractowner
who requests such statement or whenever state or federal law
otherwise requires that such
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statement be provided. The Fund or the Distributor will provide the
copies of said statement of additional information to the Company or
to its mailing agent.
3.3. The Fund or the Distributor, at the Fund's or its
affiliate's expense, will provide the Company or its mailing agent
with copies of its proxy material, if any, reports to shareholders
and other communications to shareholders in such quantity as the
Company will reasonably require. The Company will distribute this
proxy material, reports and other communications to existing
contractowners and tabulate the votes.
3.4. If and to the extent required by law the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios held in
the Account in accordance with instructions received from
contractowners; and
(c) vote shares of the Designated Portfolios held in the
Account for which no timely instructions have been received, as
well as shares it owns, in the same proportion as shares of such
Designated Portfolio for which instructions have been received
from the Company's contractowners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable
contractowners. Except as set forth above, 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. The Company will be
responsible for assuring that each of its separate accounts
participating in the Fund calculates voting privileges in a manner
consistent with all legal requirements, including the Mixed and
Shared Funding Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular, the Fund either
will provide for annual meetings (except insofar as the SEC may
interpret Section 16 of the 1940 Act not to require such meetings)
or, as the Fund currently intends to 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 trustees and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
------------------------------
4.1. The Distributor will provide the Company on a timely basis
with investment performance information for each Designated Portfolio
in which the Company maintains a subaccount of the Account, including
total return for the preceding calendar month and calendar quarter,
the calendar year to date, and the prior one-year, five-year, and ten
year (or life of the Fund) periods. The Company may, based on the
SEC mandated information supplied by the Distributor, prepare
communications for contractowners ("Contractowner Materials"). The
Company will provide copies of all Contractowner Materials
concurrently with their first use for the Distributor's internal
recordkeeping purposes. It is understood that neither the
Distributor nor any Designated Portfolio will be responsible for
errors or omissions in, or the content of, Contractowner Materials
except to the extent that the error or omission resulted from
information provided by or on behalf of the Distributor or the
Designated Portfolio. Any printed information that is furnished to
the Company pursuant to this Agreement other than each Designated
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Portfolio's prospectus or statement of additional information (or
information supplemental thereto), periodic reports and proxy
solicitation materials is the Distributor's sole responsibility and
not the responsibility of any Designated Portfolio or the Fund. The
Company agrees that the Portfolios, the shareholders of the
Portfolios and the officers and governing Board of the Fund will have
no liability or responsibility to the Company in these respects.
4.2. The Company will 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, prospectus or statement of additional information for Fund
shares, as such registration statement, prospectus and statement of
additional information may be amended or supplemented from time to
time, or in reports or proxy statements for the Fund, or in published
reports for the Fund which are in the public domain or approved by
the Fund or the Distributor for distribution, or in sales literature
or other material provided by the Fund, Adviser or by the
Distributor, except with permission of the Distributor. Any piece of
sales literature or other promotional material intended to be used by
the Company which requires the permission of the Distributor prior to
use will be furnished by Company to the Distributor, or its designee,
at least ten (10) business days prior to its use. No such material
will be used if the Distributor reasonably objects to such use within
five (5) business days after receipt of such material.
Nothing in this Section 4.2 will be construed as preventing the
Company or its employees or agents from giving advice on investment
in the Fund.
4.3. The Fund, the Adviser or the Distributor will furnish, or
will cause to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material in which the
Company or its Account is named, at least ten (10) business days
prior to its use. No such material will be used if the Company
reasonably objects to such use within five (5) business days after
receipt of such material.
4.4. The Fund, the Adviser and the Distributor will not give any
information or make any representations or statements on behalf of
the Company or concerning the Company, each Account, or the Contracts
other than the information or representations contained in a
registration statement, prospectus or statement of additional
information for the Contracts, as such registration statement,
prospectus and statement of additional information may be amended or
supplemented from time to time, or in published reports for each
Account or the Contracts which are in the public domain or approved
by the Company for distribution to contractowners, or in sales
literature or other material provided by the Company, except with
permission of the Company. The Company agrees to respond to any
request for approval on a prompt and timely basis.
4.5. The Fund will provide to the Company at least one complete
copy of all registration statements, prospectuses, statements of
additional information, 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, contemporaneously with
the filing of such document with the SEC, the NASD or other
regulatory authority.
4.6. The Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses, statements of
additional information, 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 each
Account, contemporaneously with the filing of such document with the
SEC, the NASD or other regulatory authority.
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4.7. For purposes of this Article IV, 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 advertisements, sales
literature, or published article), educational or training materials
or other communications distributed or made generally available to
some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder
reports, and proxy materials and any other material constituting
sales literature or advertising under the NASD rules, the 1933 Act or
the 0000 Xxx.
4.8. The Fund and the Distributor hereby consent to the
Company's use of the names Fleet Investment Advisors Inc., The Galaxy
VIP Fund, the portfolio names designated on Schedule B or other
designated names as may be used from time to time in connection with
the marketing of the Contracts, subject to the terms of Sections 4.1
and 4.2 of this Agreement. Such consent will terminate with the
termination of this Agreement.
ARTICLE V. Fees and Expenses
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5.1. The Fund, the Adviser and the Distributor will pay no fee
or other compensation to the Company under this Agreement except if
the Fund or any Designated Portfolio adopts and implements a plan
pursuant to Rule 12b-1 under the 1940 Act to finance distribution
expenses, then, subject to obtaining any required exemptive orders or
other regulatory approvals, the Fund may make payments to the Company
or to the underwriter for the Contracts if and in such amounts agreed
to by the Fund in writing.
5.2. All expenses incident to performance by the Fund of this
Agreement will be paid by the Fund to the extent permitted by law.
The Fund will bear the expenses for the cost of registration and
qualification of the Fund's shares; preparation and filing of the
Fund's prospectus, statement of additional information and
registration statement, proxy materials and reports; setting in type
and printing the Fund's prospectus; setting in type and printing
proxy materials and reports by it to contractowners (including the
costs of printing a Fund prospectus that constitutes an annual
report); the preparation of all statements and notices required by
any federal or state law; all taxes on the issuance or transfer of
the Fund's shares; any expenses permitted to be paid or assumed by
the Fund pursuant to a plan, if any, under Rule 12b-1 under the 1940
Act; and all other expenses set forth in Article III of this
Agreement.
ARTICLE VI. Diversification and Qualification
---------------------------------
6.1. The Adviser will ensure that the Fund will at all times
invest money from the Contracts in such a manner as to ensure that
the Contracts will be treated as variable annuity contracts under the
Internal Revenue Code and the regulations issued thereunder. Without
limiting the scope of the foregoing, the Fund will comply with
Section 817(h) of the Internal Revenue Code and Treasury Regulation
1.817-5, as amended from time to time, relating to the
diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such
Section or Regulation. 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 Treasury
Regulation 1.817-5.
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6.2. The Fund represents that it is or will be qualified as a
Regulated Investment Company under Subchapter M of the Internal
Revenue 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 or
annuity insurance contracts, under applicable provisions of the
Internal Revenue Code, and that it will make every effort to maintain
such treatment, and that it will notify the Fund and the Distributor
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
offering a contract that is a "modified endowment contract" as that
term is defined in Section 7702A of the Internal Revenue Code (or any
successor or similar provision), shall identify such contract as a
modified endowment contract.
ARTICLE VII. Potential Conflicts
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7.1. The Fund Board will monitor the Fund for the existence of
any material irreconcilable conflict between the interests of the
contractowners 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 contractowners; or (f) a
decision by an insurer to disregard the voting instructions of
contractowners. The Fund 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 Fund Board. The Company will assist the
Fund Board in carrying out its responsibilities under the Mixed and
Shared Funding Exemptive Order, by providing the Fund Board with all
information reasonably necessary for the Fund Board to consider any
issues raised. This includes, but is not limited to, an obligation
by the Company to inform the Fund Board whenever contractowner voting
instructions are disregarded.
7.3. If it is determined by a majority of the Fund 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 Fund
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
contractowners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity contractowners, life insurance
contractowners, or variable contract owners of one or more
Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected contractowners the option of
making such a change; and (2) establishing a new registered
management investment company or managed separate account.
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7.4. If a material irreconcilable conflict arises because of a
decision by the Company to disregard contractowner 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 Account's investment in the Fund and
terminate this Agreement with respect to each 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 Fund
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 Fund 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 Fund 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 Fund 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 Fund 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 Fund 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 Fund Board.
7.7. If and to the extent the Mixed and Shared Funding Exemptive
Order or any amendment thereto contains terms and conditions
different from Sections 3.4, 3.5, 3.6, 7.1, 7.2, 7.3, 7.4, and 7.5 of
this Agreement, then the Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary
to comply with the Mixed and Shared Funding Exemptive Order, and
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 the Mixed
and Shared Funding Exemptive Order or any amendment thereto. If and
to the extent that 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 Mixed and Shared Funding Exemptive
Order) on terms and conditions materially different from those
contained in the Mixed and 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 3.5, 3.6, 7.1.,
7.2, 7.3, 7.4, and 7.5 of this Agreement shall continue in effect
only to the
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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
------------------------------
(a) The Company agrees to indemnify and hold harmless the
Fund, the Adviser, the Distributor, and each person, if any, who
controls or is associated with the Fund, the Adviser or the
Distributor within the meaning of such terms under the federal
securities laws and any director, trustee, officer, partner,
employee or agent of the foregoing (collectively, the
"Indemnified Parties" for purposes of this Section 8.1) against
any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent
of the Company) or litigation (including 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, liabilities
or expenses (or actions in respect thereof) or settlements:
(1) arise out of or are based upon any untrue
statements or alleged untrue statements of any material
fact contained in the registration statement, prospectus or
statement of additional information 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 or necessary
to make such statements not misleading in light of the
circumstances in which they were made; provided that this
agreement to indemnify will 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 the
Company by the Fund, the Adviser or the Distributor for use
in the registration statement, prospectus or statement of
additional information for the Contracts or in the
Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the
sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or
representations by or on behalf of the Company or wrongful
conduct of the Company or persons under its control, with
respect to the sale or distribution of the Contracts or
Fund shares; or
(3) arise out of any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, prospectus, statement of additional
information or sales literature or other promotional
material of the Fund (or amendment or supplement) or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make
such statements not misleading in light of the
circumstances in which they were made, if such a statement
or omission was made in reliance upon and in conformity
with information furnished to the Fund by or on behalf of
the Company or persons under its control; or
(4) arise as a result of any failure by the Company
to provide the services and furnish the materials under the
terms of this Agreement; or
-12-
(5) arise out of 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 by the Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.3 hereof.
This indemnification will be in addition to any liability that
the Company otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.1(a) to the extent such loss, claim, damage, liability
or litigation is due to the willful misfeasance, bad faith, or
gross negligence in the performance of such party's duties under
this Agreement, or by reason of such party's reckless disregard
of its obligations or duties under this Agreement by the party
seeking indemnification.
(c) The Indemnified Parties promptly will notify the
Company of the commencement of any litigation, proceedings,
complaints or actions by regulatory authorities 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 Adviser, the Fund and the Distributor
------------------------------------------------------------
(a) The Adviser, the Fund and the Distributor, in each
case solely to the extent relating to such party's
responsibilities hereunder, agree to indemnify and hold harmless
the Company and each person, if any, who controls or is
associated with the Company within the meaning of such terms
under the federal securities laws and any director, trustee,
officer, partner, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with
the written consent of the Adviser) or litigation (including
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, liabilities or expenses (or actions in respect thereof)
or settlements:
(1) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in the registration statement, prospectus or
statement of additional information for the Fund 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 or necessary to make such statements not misleading
in light of the circumstances in which they were made;
provided that this agreement to indemnify will 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
Adviser, the Distributor or the Fund by or on behalf of the
Company for use in the registration statement, prospectus
or statement of additional information for the Fund or in
sales literature of the Fund (or any amendment or
supplement thereto) or otherwise for use in connection with
the sale of the Contracts or Fund shares; or
(2) arise out of or as a result of statements or
representations or wrongful conduct of the Adviser, the
Fund or the Distributor or persons under the control of the
Adviser, the Fund or the Distributor respectively, with
respect to the sale of the Fund shares; or
-13-
(3) arise out of any untrue statement or alleged
untrue statement of a material fact contained in a
registration statement, prospectus, statement of additional
information or sales literature or other promotional
material covering the Contracts (or any amendment or
supplement thereto), or the omission or alleged omission to
state therein a material fact required to be stated or
necessary to make such statement or statements not
misleading in light of the circumstances in which they were
made, if such statement or omission was made in reliance
upon and in conformity with written information furnished
to the Company by the Adviser, the Fund or the Distributor
or persons under the control of the Adviser, the Fund or
the Distributor; or
(4) arise as a result of any failure by the Fund, the
Adviser or the Distributor 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
requirements and procedures related thereto specified in
Article VI of this Agreement); or
(5) arise out of or result from any material breach
of any representation and/or warranty made by the Adviser,
the Fund or the Distributor in this Agreement, or arise out
of or result from any other material breach of this
Agreement by the Adviser, the Fund or the Distributor;
except to the extent provided in Sections 8.2(b) and 8.3 hereof.
This indemnification will be in addition to any liability that
the Fund, Adviser or the Distributor otherwise may have.
(b) No party will be entitled to indemnification under
Section 8.2(a) to the extent such loss, claim, damage, liability
or litigation is due to the willful misfeasance, bad faith, or
gross negligence in the performance of such party's duties under
this Agreement, or by reason of such party's reckless disregard
of its obligations or duties under this Agreement by the party
seeking indemnification.
(c) The Indemnified Parties will promptly notify the
Adviser, the Fund and the Distributor of the commencement of any
litigation, proceedings, complaints or actions by regulatory
authorities against them in connection with the issuance or sale
of the Contracts or the operation of the account.
8.3. Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this
Article VIII ("Indemnifying Party" for the purpose of this Section
8.3) will not be liable under the indemnification provisions of this
Article VIII with respect to any claim made against a party entitled
to indemnification under this Article VIII ("Indemnified Party" for
the purpose of this Section 8.3) unless such Indemnified Party will
have notified the Indemnifying Party in writing within a reasonable
time after the summons or other first legal process giving
information of the nature of the claim will have been served upon
such Indemnified Party (or after such party will have received notice
of such service on any designated agent), but failure to notify the
Indemnifying Party of any such claim will not relieve the
Indemnifying Party from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than
on account of the indemnification provision of this Article VIII,
except to the extent that the failure to notify results in the
failure of actual notice to the Indemnifying Party and such
Indemnifying Party is damaged solely as a result of failure to give
such notice. In case any such action is brought against the
Indemnified Party, the
-14-
Indemnifying Party will be entitled to participate, at its own expense,
in the defense thereof. The Indemnifying Party also will be entitled
to assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from the Indemnifying Party to the
Indemnified Party of the Indemnifying Party's election to assume the
defense thereof, the Indemnified Party will bear the fees and expenses
of any additional counsel retained by it, and the Indemnifying Party
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, unless: (a) the Indemnifying Party and the Indemnified
Party will have mutually agreed to the retention of such counsel; or
(b) the named parties to any such proceeding (including any impleaded
parties) include both the Indemnifying Party and the Indemnified
Party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between
them. The Indemnifying Party will not be liable for any settlement of
any proceeding effected without its written consent but if settled
with such consent or if there is a final judgment for the plaintiff,
the Indemnifying Party agrees to indemnify the Indemnified Party from
and against any loss or liability by reason of such settlement or
judgment. A successor by law of the parties to this Agreement will
be entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained in this
Article VIII will survive any termination of this Agreement.
8.4 Distributor Limitation on Liability. Notwithstanding the
-----------------------------------
foregoing, the Distributor shall not be liable to any party to this
Agreement for lost profits, punitive, special, incidental, indirect
or consequential damages.
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
Delaware.
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
Mixed and Shared Funding Exemptive Order) and the terms hereof shall
be interpreted and construed in accordance therewith. If, in the
future, the Mixed and Shared Funding Exemptive Order should no longer
be necessary under applicable law, then Article VII shall no longer
apply.
ARTICLE X. Termination
-----------
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause,
with respect to some or all of the Designated Portfolios, upon
sixty (60) days' advance written notice to the other parties or,
if later, upon receipt of any required exemptive relief or
orders from the SEC, unless otherwise agreed in a separate
written agreement among the parties; or
(b) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with respect to
any Designated Portfolio if shares of the Designated Portfolio
are not reasonably available to meet the requirements of the
Contracts as determined in good faith by the Company; or
-15-
(c) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with respect to
any Designated Portfolio 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
media of the Contracts issued or to be issued by Company; or
(d) at the option of the Fund, upon receipt of the Fund's
written notice by the other parties, upon institution of formal
proceedings against the Company by the NASD, the SEC, the
insurance commission 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 administration of the
Contracts, the operation of the Account, or the purchase of the
Fund shares, provided that the Fund determines in its sole
judgment, exercised in good faith, that any such proceeding
would have a material adverse effect on the Company's ability to
perform its obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the
Company's written notice by the other parties, upon institution
of formal proceedings against the Fund, Adviser or the
Distributor by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body, provided that
the Company determines in its sole judgment, exercised in good
faith, that any such proceeding would have a material adverse
effect on the Fund's or the Distributor's ability to perform its
obligations under this Agreement; or
(f) at the option of the Company, upon receipt of the
Company's written notice by the other parties, if the Fund
ceases to qualify as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code, or under any
successor or similar provision, or if the Company reasonably and
in good faith believes that the Fund may fail to so qualify; or
(g) at the option of the Company, upon receipt of the
Company's written notice by the other parties, with respect to
any Designated Portfolio if the Fund fails to meet the
diversification requirements specified in Article VI hereof or
if the Company reasonably and in good faith believes the Fund
may fail to meet such requirements; or
(h) at the option of any party to this Agreement, upon
written notice to the other parties, upon another party's
material breach of any provision of this Agreement which
material breach is not cured within thirty (30) days of said
notice; or
(i) at the option of the Company, if the Company
determines in its sole judgment exercised in good faith, that
either the Fund, the Adviser or the Distributor has suffered a
material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Company,
such termination to be effective sixty (60) days' after receipt
by the other parties of written notice of the election to
terminate; or
(j) at the option of the Fund or the Distributor, if the
Fund or the Distributor respectively, determines in its sole
judgment exercised in good faith, that the Company has suffered
a material adverse change in its business, operations or
financial condition since the date of this Agreement or is the
subject of material adverse publicity which is likely to have a
material adverse impact upon the business and operations of the
Fund or the Adviser, such termination to be effective sixty (60)
days' after receipt by the other parties of written notice of
the election to terminate; or
-16-
(k) at the option of the Company or the Fund upon receipt
of any necessary regulatory approvals and/or the vote of the
contractowners having an interest in the Account (or any
subaccount) to substitute the shares of another investment
company for the corresponding Designated Portfolio shares of the
Fund in accordance with the terms of the Contracts for which
those Designated Portfolio shares had been selected to serve as
the underlying investment media. The Company will give sixty
(60) days' prior written notice to the Fund of the date of any
proposed vote or other action taken to replace the Fund's
shares; or
(l) at the option of the Company or the Fund upon a
determination by a majority of the Fund Board, or a majority of
the disinterested Fund Board members, that an irreconcilable
material conflict exists among the interests of: (1) all
contractowners of variable insurance products of all separate
accounts; or (2) the interests of the Participating Insurance
Companies investing in the Fund as set forth in Article VII of
this Agreement; or
(m) at the option of the Fund in the event any of the
Contracts are not issued or sold in accordance with applicable
federal and/or state law. Termination will be effective
immediately upon such occurrence without notice.
10.2. Notice Requirement. No termination of this Agreement
------------------
will be effective unless and until the party terminating this
Agreement gives prior written notice to all other parties of its
intent to terminate, which notice will set forth the basis for the
termination.
10.3. Effect of Termination. Notwithstanding any
---------------------
termination of this Agreement, the Fund and the Distributor will, 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, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in the
Portfolios (as in effect on such date), redeem investments in the
Portfolios and/or invest in the Portfolios upon the making of
additional purchase payments under the Existing Contracts.
10.4. Surviving Provisions. Notwithstanding any termination
--------------------
of this Agreement, each party's obligations under Article VIII to
indemnify other parties will survive and not be affected by any
termination of this Agreement. In addition, each party's obligations
under Section 12.7 will survive and not be affected by any
termination of this Agreement. Finally, with respect to Existing
Contracts, all provisions of this Agreement also will survive and not
be affected by any termination of this Agreement.
ARTICLE XI. Notices
-------
11.1. 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: THE GALAXY VIP FUND
c/o Xxxxxxx Xxxxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
If to the Company: First Golden American Life Insurance Company of New York
c/o Xxxxx Xxxxxxx
-17-
Executive Vice President and General Counsel
000 Xxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
If to Adviser: Fleet Investment Advisers Inc.
c/o Xxx X' Xxxxx, President
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
If to Distributor: First Data Distributors, Inc.
c/o President
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000-0000
ARTICLE XII. Miscellaneous
-------------
12.1. All persons dealing with the Fund must look solely to
the property of the Fund for the enforcement of any claims against
the Fund as neither the directors, trustees, officers, partners,
employees, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Fund. No Portfolio or
series of the Fund will be liable for the obligations or liabilities
of any other Portfolio or series.
12.2. The Fund, the Adviser and the Distributor acknowledge
that the identities of the customers of the Company or any of its
affiliates, except for customers of the Adviser or its affiliates
(collectively the "Company Protected Parties" for purposes of this
Section 12.2), information maintained regarding those customers, and
all computer programs and procedures or other information developed
or used by the Company Protected Parties or any of their employees or
agents in connection with the Company's performance of its duties
under this Agreement are the valuable property of the Company
Protected Parties. The Fund, the Adviser and the Distributor agree
that if they come into possession of any list or compilation of the
identities of or other information about the Company Protected
Parties' customers, or any other information or property of the
Company Protected Parties, other than such information as is publicly
available or as may be independently developed or compiled by the
Fund, the Adviser or the Distributor from information supplied to
them by the Company Protected Parties' customers who also maintain
accounts directly with the Fund, the Adviser or the Distributor, the
Fund, the Adviser and the Distributor will hold such information or
property in confidence and refrain from using, disclosing or
distributing any of such information or other property except:
(a) with the Company's prior written consent; or (b) as required by
law or judicial process. The Company acknowledges that the
identities of the customers of the Fund, the Adviser, the Distributor
or any of their affiliates (collectively the "Adviser Protected
Parties" for purposes of this Section 12.2), information maintained
regarding those customers, and all computer programs and procedures
or other information developed or used by the Adviser Protected
Parties or any of their employees or agents in connection with the
Fund's, the Adviser's or the Distributor's performance of their
respective duties under this Agreement are the valuable property of
the Adviser Protected Parties. The Company agrees that if it comes
into possession of any list or compilation of the identities of or
other information about the Adviser Protected Parties' customers, or
any other information or property of the Adviser Protected Parties,
other than such information as is publicly available or as may be
independently developed or compiled by the Company from information
supplied to them by the Adviser Protected Parties' customers who also
maintain accounts directly with the Company, the Company will hold
such information or property in confidence and refrain from using,
disclosing or distributing any of such information or other property
except: (a) with the Fund's, the Adviser's or the Distributor's prior
written
-18-
consent; or (b) as required by law or judicial process. Each
party acknowledges that any breach of the agreements in this Section
12.2 would result in immediate and irreparable harm to the other
parties for which there would be no adequate remedy at law and agree
that in the event of such a breach, the other parties will be
entitled to equitable relief by way of temporary and permanent
injunctions, as well as such other relief as any court of competent
jurisdiction deems appropriate.
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 will constitute
one and the same instrument.
12.5. If any provision of this Agreement will be held or
made invalid by a court decision, statute, rule or otherwise, the
remainder of the Agreement will not be affected thereby.
12.6. This Agreement will not be assigned by any party
hereto without the prior written consent of all the parties, except
that the Distributor may assign this Agreement to Provident
Distributors Inc. (or one of its properly qualified affiliates) with
prior written notice to all parties.
12.7. Each party to this Agreement will maintain all records
required by law, including records detailing the services it
provides. Such records will be preserved, maintained and made
available to the extent required by law and in accordance with the
1940 Act and the rules thereunder. 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 in connection with any
investigation or inquiry relating to this Agreement or the
transactions contemplated hereby. Upon request by the Fund or the
Distributor, the Company agrees to promptly make copies or, if
required, originals of all records pertaining to the performance of
services under this Agreement available to the Fund or the
Distributor, as the case may be. The Fund agrees that the Company
will have the right to inspect, audit and copy all records pertaining
to the performance of services under this Agreement pursuant to the
requirements of any state insurance department. Each party also
agrees to promptly notify the other parties if it experiences any
difficulty in maintaining the records in an accurate and complete
manner. This provision will survive termination of this Agreement.
12.8. Each party represents that the execution and delivery
of this Agreement and the consummation of the transactions
contemplated herein have been duly authorized by all necessary
corporate or board action, as applicable, by such party and when so
executed and delivered this Agreement will be the valid and binding
obligation of such party enforceable in accordance with its terms.
12.9. The parties to this Agreement may amend the schedules
to this Agreement from time to time to reflect changes in or relating
to the Contracts, the Accounts or the Designated Portfolios of the
Fund or other applicable terms of this Agreement.
12.10. The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all rights.
12.11. The names "The Galaxy VIP Fund" and "Trustees of The
Galaxy VIP Fund" refer respectively to the trust created and the
Trustees, as trustees but not individually or personally, acting from
time to time under a Declaration of Trust dated May 27, 1992 which is
hereby referred to and a
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copy of which is on file at the office of
the State Secretary of the Commonwealth of Massachusetts and at the
principal office of the Fund. The obligations of "The Galaxy VIP
Fund" entered into in the name or on behalf thereof by any of the
Trustees, representatives or agents are made not individually, but in
such capacities, and are not binding upon any of the Trustees,
Shareholders, or representatives of the Fund personally, but bind
only the Trust Property, and all persons dealing with any class of
Shares of the Fund must look solely to the Trust Property belonging
to such class for the enforcement of any claims against the Fund.
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:
FIRST GOLDEN AMERICAN LIFE
INSURANCE COMPANY OF NEW
YORK:
By:/s/Xxxxx X. Xxxxxxxx
------------------------
Title: Senior Vice President
---------------------
Date: January 4, 2000
----------------------
THE GALAXY VIP FUND:
By:/s/Xxxxxxx Xxxxxxxx
------------------------
Title: Vice President
---------------------
Date: 10/1/99
----------------------
FLEET INVESTMENT ADVISORS INC:
By:/s/ Xxx X'Xxxxx
------------------------
Title:President and CEO
---------------------
Date: 12/14/99
----------------------
FIRST DATA DISTRIBUTORS, INC.
By:/s/Xxxxx Xxxxxx
------------------------
Title: VP
---------------------
Date: 10/1/99
----------------------
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SCHEDULE A
FIRST GOLDEN AMERICAN LIFE INSURANCE COMPANY OF NEW YORK
CONTRACTS AND SEPARATE ACCOUNT(S)
CONTRACT(S):
Deferred Combination Variable and Fixed Annuity
Contract -- DVA Plus featuring The Galaxy VIP Fund
SEPARATE ACCOUNT(S):
Separate Account NY-B of First Golden American
Life Insurance Company of New York
SCHEDULE B
THE GALAXY VIP FUND
DESIGNATED PORTFOLIOS
PORTFOLIOS:
Equity Fund
Growth and Income Fund
Small Company Growth Fund
Asset Allocation Fund
High Quality Bond Fund
Schedule Date: October 1, 1999
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