PARTICIPATION AGREEMENT
BY AND AMONG
GE LIFE AND ANNUITY ASSURANCE CCOMPANY
ON BEHALF OF ITSELF AND ITS SEPARATE ACCOUNTS
AND
The Prudential Insurance Company of America
AND
Prudential Investment Management services LLC
AND
The Prudential Series Fund, Inc.
THIS AGREEMENT, made and entered into as of ("Agreement"), by and among The
Prudential Series Fund, Inc., a Maryland corporation (the "Fund"), The
Prudential Insurance Company of America, a New Jersey Corporation (the
"Adviser"), Prudential Investment Management Services LLC, a Delaware limited
liability company (the "Distributor"), and GE Capital Life Assurance Company of
New York, a Virginia life insurance company ("LIFE COMPANY"), on behalf of
itself and each of its segregated asset accounts listed in Schedule A hereto, as
the 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 Adviser
("Participating Insurance Companies");
WHEREAS, the Fund currently consists of separate investment portfolios,
shares ("Shares") of each of which are registered under the Securities Act of
1933, as amended (the "1933 Act");
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934, a amend, (the "1934 Ace"0 and is a member in
good standing of the National Association of Securities Dealers, Inc. (the
"NASD");
WHEREAS, the Distributor serves as the principal underwriter of shares of
the Fund and is authorized to enter into agreements with third parties,
including the LIFE COMPANY, to offer shares of the Fund to segregated asset
accounts that serve as the investment vehicle for variable life and annuity
contracts;
WHEREAS, the Distributor will make shares of each investment portfolio of
the Fund listed on Schedule A hereto (each, a "Portfolio" and collectively, the
"Portfolios") an 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
variable life insurance policies and variable annuity 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);
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 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 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 Distributor will make Shares of each Portfolio listed on Schedule A
available to LIFE COMPANY for purchase and redemption by the Accounts at the net
asset value next computed after the Distributor'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 Directors 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 Directors 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. Neither the Distributor nor the Fund will
sell Fund shared to any Participating Insurance Companies or Plans unless such
sale is made in conformity with the terms and conditions of the Order.
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
effort to provide LIFE COMPANY with the net asset value per Share for each
Portfolio by 6:30 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
value. The Fund will notify LIFE COMPANY as soon as possible if on any business
Day it is determined that the calculation of net asset value per share will be
available after 6:30 p.m. Eastern Time.
(b) LIFE COMPANY will place orders to purchase or redeem Shares with the
Fund or its designated agent 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 on net
payment per Portfolio in accordance with Section 2.2, below.
(d) If the Fund provides materially incorrect Share net asset value
information (as determined under SEC guidelines), LIFE COMPANY or Fund, as
applicable, shall be entitled to an adjustment to the number of Shares purchased
or redeemed to reflect the correct net asset value per Share. 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
Shared shall be made in federal funds transmitted to the Fund by wire to be
received by the Fund by 3:30 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 redemption's to an
account designated by LIFE COMPANY by 3:30 p.m. Eastern Time on the Business Day
the order is placed. 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 close of regular trading on the New York Stock Exchange 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(s), LIFE COMPANY shall be the designated agent of
the Distributor and 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 its designated agent of the order therefore, and such
orders will be irrevocable.
2.4 Dividends and Distributions
The Fund or its designated agent 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 or its designated agent in writing, it being agreed by the
Parties that the ex-dividend date and the payment date with respect to any
dividend or distribution will be the same Business Day. 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 or its designated agent 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.
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
24-f-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 24-f-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.
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
distribution 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, 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 bear, or arrange for others to bear, the costs of
preparing, filing with the SEC and setting for printing 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 to the extent required
by federal or state law or as deemed appropriate by the Fund. The Fund will bear
all taxes required to be paid by the Fund on the issuance or transfer of Fund
shares. In addition, the fund will bear the cost of printing and delivering the
Fund Prospectus to existing Participants who have directed LIFE COMPANY to
purchase Shares of the Fund, and will bear the proportionate cost of preparing
and printing any supplements or amendments to the Fund Prospectus to the extent
that such 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 of supplements thereto (collectively, the "Account Prospectus"), and
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 prospectuses as provided by the Fund.
LIFE COMPANY may elect to receive such prospectuses 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, HTML. The Fund will print the Fund statement of additional information,
proxy materials relating to the Fund and periodic reports of the Fund.
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 to a "variable contract," within the meaning
of such terms under Section 817 of the Code and the regulations thereunder. LIFE
COMPANY 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 federal and state
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 corporation duly
organized, validly existing, and in good standing under the laws of the State of
Maryland 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 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 Adviser represents that it is and warrants that it 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) The Distributor represents that it is and warrants that it shall remain
duly registered as a broker-dealer 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.
(e) 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
fro 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 imitation, the 1933 Ace, the 1934 Ace, 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 and the rules thereunder, to
the extent requires, (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 many otherwise be required by applicable law, and (vii) each Account
Prospectus will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
(b) The Distributor and 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 compliance with applicable law, (ii) the Fund is and will remain
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 it 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 Distributor and 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, or (iv) 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 Distributor and 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, or (iv) 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 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, within a
reasonable period of time following 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
on (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 connections 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) 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, notion 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,
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, within a reasonable period of time following with the
filing of such document with the SEC or other regulatory authorities.
(b) The Fund will provide to LIFE COMPANY copies of all Fund prospectuses,
and printed copies of all statements of additional information, proxy materials,
periodic reports to shareholders and other materials required by law to be sent
to Participants who have allocated any Contract value to a Portfolio. The Fund
will provide such copies to LIFE COMPANY in a timely manner so as to enable LIFE
COMPANY to print and distribute such materials within the time required by law
to be furnished to Participants.
(c) 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.
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.
6.1 Events of Termination
Subject to Section 6.4 below, this Agreement will terminate as to a
Portfolio:
(a) at the opinion of any party, with or without cause, upon six (6) months
advance written notice to the other parties; or
(b) at the opinion 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 - 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 reasonable 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
(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 and,
in each case, LIFE COMPANY upon written request fails to provide reasonable
assurance that it will take action to cure or correct such failure; 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
Adviser 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 Directors, or a majority of the Fund's disinterested direscors,
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 Fun; 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 by the SEC to substitute the shares of 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; 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 Fund 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;
(o) at any time upon the written agreement of the Parties.
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(a) hereof, such prior written notice shall be given at least six (6)
months in advance of the effective date of termination unless a shorter time is
agreed to by the Parties hereto. It is understood and agreed that the right to
terminate this Agreement under Section 6.1(a) may be exercised for any reason or
for no reason:
(b) 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;
(c) in the event that any termination is based upon the provisions of
Section 6.1(e), 6l.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"). Specifically without
limitation, the owners of the Existing Contracts will be permitted to reallocate
investments in Portfolios of the Fund 9as 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 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 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 any provision of this
agreement hereof will be given by means mutually acceptable to the Parties
concerned. When otherwise agreed each notice or communication 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:
If to LIFE COMPANY:
GE Capital Life Assurance Company of New York
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
If to the FUND:
The Prudential Series Fund, Inc.
Gateway Center Three
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Secretary
If to the ADVISOR:
The Prudential Insurance Company of America
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attn: Secretary
If to the DISTRIBUTOR:
Prudential Investment Management Services LLC
Gateway Center Three
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxx, XX 00000-0000
Attn: Secretary
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 Participant,
but for which not 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 By 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, its affiliates, and
each person, if any, who controls the Fund or its affiliates within the meaning
of Section 15 of the 1933 Act
including the Adviser and the Distributor, 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
COMPANY by or on behalf of the Fund 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 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 reasonable 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
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
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 failure to transmit a request for purchase
or redemption of Shares or payment therefore 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.
(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 Fund 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
Indemnifies 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 indemnifying party is
damaged solely by reason of such 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 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 IRS), with counsel approved by the
Indemnified Party named in the action which approval shall not be unreasonable
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 lilable 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 By the Fund, Adviser and the Distributor
(a) Except to the extent provided in Sections 11.2(b) and 11.2(c) below,
the Fund, the Adviser and the Distributor agree 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 hereof (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, 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 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 statement 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 belhalf of the
Fund or its affiliates and on which such persons have reasonable
relied) or the negligent, illegal or fraudulent conduct of the
Fund, the Distributor their respective affiliates, 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 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, its Adviser or the
Distributor 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 in this Agreement or arising
out of or resulting from any other material breach of this
Agreement by the Fund, its Adviser or the Distributor
(b) This indemnification is in addition to any liability that the Fund, its
Adviser or the Distributor may otherwise have. Neither the Fund, its Adviser nor
the Distributor 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, aeach
Account or Participants.
c) Neither the Fund, its adviser nor the distributor shall be liable under
this Section 11.2 with respect to any action against an Indemnified Party unless
the Indemnifies Party shall have notified the Fund, the adviser and the
Distributor in writing promptly after the summons or other first legal process
giving information of the nature of the action shall have been serves upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent), but the Adviser and the Distributor shall
be relieved of liability under this Section 11.2 only to the extent the
indemnifying party is damaged solely by reason of such party's failure to so
notify and failure to notify the Fund, the adviser and the Distributor of any
such action shall not relieve the Fund, the Adviser and the Distributor form 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, the adviser and the Distributor will be entitled to
participate, at its won 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 unreasonable withheld. After notice
from the Fund, the adviser and the distributor to such Indemnified Party of the
election to assume the defense thereof, the Indemnified Party will cooperate
fully with the Fund, the Adviser and the Distributor and shall bear the fees and
expenses of any additional counsel retained by it, and neither the Fund, the
Adviser and the distributor will be liable to such Indemnified Party under this
Agreement for any legal or other expenses subsequ3ently incurred by such
Indemnified party independently in connection with the defense thereof, other
than reasonable costs of investigation.
11.3 Effect of Notice
Any notice given by the indemnifying party to an Indemnified Party referred
to in Sections 11.1(c) or, 11.2(c) above of participation in or control of any
section 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.
11.4 Successors
A successor by law of any party shall be entitled to the benefits of the
indemnification contained in this Section 11.
11.5 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, 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, 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 Table of contents and 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 reasonable identified as confidential in
writing by any other party hereto and, except as permitted by 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.
Notwithstanding the foregoing, the Parties acknowledge and agree that their
rights and obligations under this Agreement are subject to all applicable
federal and state privacy laws, including Title V of the Xxxxx-Xxxxx-Xxxxxx Act
and any implementing rules, regulations and authoritative guidelines of any
applicable regulatory agency thereunder, and any other privacy laws to which the
Parties may be subject. The Parties further agree that no party shall be
obligated to take any action under this agreement which is prohibited under any
such law, rule regulation or authoritative guideline of any applicable
regulatory agency, and that they shall amend this agreement to the extent
necessary to comply with such federal and state privacy laws, rules, regulations
or authoritative guidelines of any applicable regulatory agency.
Section 18. Trademarks and Fund Names
(a) The Adviser, the Distributor, or their affiliates, own all right, title
and interest in and to the names, trademarks and service marks "Prudential" and
"Xxxxxxxx" and such other tradenames, trademarks and service marks as may be
identified to LIFE COMPANY from time to time (the "licensed marks"). 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 as may be identified to the Adviser and/or the Fund from time to time (the
"Life Company licensed marks"). Upon termination of this Agreement the Fund, the
Adviser and their affiliates shall cease to use the Life Company 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.
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.
THE PRUDENTIAL SERIES FUND, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PRUDENTIAL INVESTMENT FUND MANAGEMENT LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
PRUDENTIAL INVESTMENT MANAGEMENT SERVICES LLC
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
on behalf of itself and its separate accounts,
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
SCHEDULE A
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
SP Prudential US Emerging Growth Portfolio - Class II Shares
Prudential Xxxxxxxx Portfolio - Class II Shares
Prudential Equity Portfolio - Class II Shares
XX Xxxxxxxx International Growth Portfolio - Class II Shares
SEPARATE ACCOUNTS UTILIZING THE FUNDS
GE Life & Annuity separate Account 4
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
GE Extra (version incorporating Prudential Funds)
