Exhibit h(5)(J)
PARTICIPATION AGREEMENT
Among
GCG TRUST,
DIRECTED SERVICES, INC.,
And
SECURITY EQUITY LIFE INSURANCE COMPANY
THIS AGREEMENT is made and entered into as of this 13th day of October 1994, by
and among SECURITY EQUITY LIFE INSURANCE COMPANY (hereinafter referred to as the
"Company"), a New York corporation, on its own behalf and on behalf of each
segregated asset account set forth in Schedule A hereto, as such schedule may be
amended from time to time (each such account hereinafter referred to as the
"Account" or collectively as the "Accounts"), and The GCG Trust, a business
trust organized under the laws of Massachusetts (hereinafter referred to as the
"Fund"), and Directed Services, Inc. (hereinafter referred to as the
"Underwriter"), a New York corporation.
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as an investment vehicle for separate accounts
established for variable life insurance policies and variable annuity contracts
offered by life insurance companies which have entered into participation
agreements with the Fund and the Underwriter (hereinafter, "Participating
Insurance Companies"), and has filed an application for an amended order from
certain provisions of the Investment Company Act of 1940, as amended (the "1940
Act") to the extent necessary to permit shares of the Fund to be sold and held
by certain qualified pension and retirement plans; and
WHEREAS, the beneficial interest in the Fund is divided into several series of
shares, each designated a "Portfolio" and representing the interest in a
particular managed portfolio of securities and other assets; and
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (the "SEC"), dated April 10, 1989 (File No. 812-7206), granting
Participating Insurance Companies 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 (hereinafter the "Shared Funding Exemptive
Order"); and
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act, and its shares are registered under the Securities Act of
1933, as amended (hereinafter, the "1933 Act"); and
WHEREAS, Bankers Trust Company (the "Adviser") is exempt from registration as an
investment adviser under the Investment Advisers Act of 1940 (the "Advisers
Act") and any applicable state securities laws and serves as adviser to certain
Portfolios of the Fund; and
WHEREAS, the Company has developed or intends to develop certain variable life
insurance policies (hereinafter, the "Contracts"), set forth in Schedule B
hereto, for sale to "accredited investors," as that term is defined in
Regulation D, promulgated under the 1933 Act (hereinafter, "Regulation D"), or
other investors permitted by Regulation D; and
WHEREAS, each Account is or will be a duly organized, validly existing
segregated asset account, established by resolution of the Board of Directors of
the Company, to set aside and invest assets attributable to one or more variable
life insurance policies; and
WHEREAS, the Company does not intend to make a "public offering" of the
Contracts, as that term is defined in Section 4(2) of the 1933 Act and
Regulation D; and
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WHEREAS, the Underwriter is registered as a broker/dealer with the SEC under the
Securities Exchange Act of 1934, as amended (hereinafter, the "1934 Act"), and
is a member in good standing of the National Association of Securities Dealers,
Inc. (hereinafter, the "NASD"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares in certain Portfolios on behalf of the
Accounts to fund certain of the Contracts, and the Underwriter is authorized to
sell such shares to segregated asset accounts of life insurance companies, such
as each Account, at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Underwriter agree as follows:
ARTICLE I. SALE OF FUND SHARES
1.1 The Underwriter agrees to sell to the Company, for each Account listed
on Schedule A, shares of the corresponding Portfolios of the Fund, also listed
on such schedule, ("Designated Portfolios") which the Company orders, executing
such orders on a daily basis at the net asset value next computed after receipt
by the Fund or its designee of the order for such shares.
For purposes of this Section 1.1, the Company shall be the designee of
the Fund for receipt of such orders from each Account and receipt by such
designee shall constitute receipt by the Fund; provided that the Fund receives
notice of such order by 10:00 a.m. Eastern Time at the principal business office
of the Fund on the next following Business Day. "Business Day" shall mean any
day on which the New York Stock Exchange is open for trading and on which the
Fund calculates its net asset values pursuant to the rules of the SEC.
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1.2 The Fund agrees to make its shares available indefinitely for purchase
at the applicable net asset value per share by the Company and its Accounts on
those days on which the Fund calculates its net asset values pursuant to the
rules of the SEC ,and the Fund shall use reasonable efforts to calculate such
net asset value on each day which the New York Stock Exchange is open for
trading. Notwithstanding the foregoing, the Board of Trustees of the Fund
(hereinafter, the "Board") may refuse to sell 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 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 (it being understood that
for this purpose "shareholders" shall mean Contract owners.)
1.3 The Fund and the Underwriter agree that shares of the Fund will be sold
only to Participating Insurance Companies and their separate accounts and to
such other persons as are permitted under applicable provisions of the Internal
Code of 1986, as amended (the "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.
1.4 The Fund and the Underwriter will not sell Fund shares to any insurance
company separate account or other person unless an agreement containing
provisions substantially the same as Sections 1.1, 1.2, 1.3, 1.5, 1.7, and 1.11
and Article VII of this Agreement is in effect to govern such sales.
1.5 The Fund agrees to redeem for cash, on the Company's request, any full
or fractional shares of the Fund held by the Accounts or the Company, executing
such requests on a daily basis at the net asset value next computed after
receipt by the Fund of the request for redemption, except that the Fund reserves
the right to suspend redemption and delay payment of redemption proceeds solely
in accordance with the provisions of Section 22(e) of the 1940 Act. Once the
redemption proceeds have been paid to Company, neither the Fund nor the
Underwriter shall
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bear any responsibilities for the proper distribution or crediting of redemption
proceeds. For purposes of this Section 1.5, the Company shall be the designee of
the Fund for receipt of requests for redemption from each Account and receipt by
such designee shall constitute receipt by the Fund; provided that the Fund
receives notice of such request for redemption by 10:00 a.m. Eastern Time on the
next following Business Day.
1.6 The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund and in accordance
with the various provisions of the prospectus.
1.7 The parties hereto acknowledge that the arrangement contemplated by this
Agreement is not exclusive; the Fund's shares may be sold to other Participating
Insurance Companies and other persons (subject to Sections 1.3 and 1.4, and
Article VI hereof), and the net amounts available under the Contracts may be
invested in other investment companies.
1.8 The Fund agrees not to delete any of the Designated Portfolios nor to
make any fundamental changes to the investment objectives of any such Portfolios
without providing the Company with as much prior written notice of any such
change as is reasonably practicable.
1.9 The Fund agrees not to increase any of the fees or charges assessed
against the assets of any Designated Portfolio without providing at least two
months prior written notice of any such change.
1.10 The Company and each Account agrees that it shall not substitute shares
of the Designated Portfolios of the Fund in the Accounts unless the SEC shall
have approved the substitution pursuant to Section 26 of the 1940 Act and
without providing at least two months prior written notice to the Fund of any
such substitution.
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1.11 The Company shall pay for Fund shares on the same Business Day as it
places an order to purchase Fund shares in accordance with the provisions of
Section 1.1 hereof. Payment shall be in federal funds transmitted by wire and/or
credit for any shares purchased the same day as a redemption, to be received no
later than 4:00 p.m. on the day the Fund is properly notified of the purchase
order for Fund shares. For purposes of Section 2.2(d), upon receipt by the Fund
of the federal funds so wired, such funds shall cease to be the responsibility
of the Company and shall become the responsibility of the Fund.
1.12 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or to any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account.
1.13 The Fund shall furnish same day notice to the Company of any income,
dividends or capital gain distributions payable on the Fund's shares. The
Company hereby elects to receive all such income, dividends and capital gain
distributions as are payable on the Portfolio shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income, dividends and capital gain distributions in cash. The
Fund shall notify the Company of the number of shares so issued as payment of
such dividends and distributions.
1.14 The Fund shall make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practicable
after the net asset value per share is calculated and shall use its best
efforts to make such net asset value per share available by 7:00 p.m. Eastern
Time at the principal office address of the Company. If the Fund provides
incorrect share net asset value information, the Company shall be entitled to an
adjustment to the number of shares purchased or redeemed to reflect the correct
net asset value per share (and, if and to the extent necessary, the Company
shall make adjustments to the number of units credited and/or unit values for
the Contracts for the periods affected), except that neither the Fund, any
Portfolio, the Underwriter or the Adviser nor any of their affiliates shall be
liable for any information
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provided to the Company pursuant to this Agreement which information is based on
incorrect information supplied to the Fund, any Portfolio, the Underwriter or
the Adviser by or at the direction of the Company. Any error in the calculation
or reporting of net asset value per share, dividend or capital gains information
greater than or equal to $.01 per share shall be reported as soon as practicable
after discovery to the Company. Any error of a lesser amount shall be corrected
in the next Business Day's net asset value per share.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1 The Company represents and warrants as follows:
(a) that it is a life insurance company duly organized and in good
standing under applicable law and that it has legally and validly established
each Account prior to any issuance or sale thereof as a segregated asset account
under the New York insurance laws.
(b) that the Contracts are properly relying upon Regulation D for an
exemption from registration under the 1933 Act, and that the Contracts are or
will be issued and sold in compliance in all material respects with all
applicable federal and state laws and that the sale of the Contracts shall
comply in all material respects with state insurance suitability requirements.
(c) that the Accounts are properly relying upon Section 3(c)(l) of
the 1940 Act to be excluded from the definition of investment company, and that
it will use its best efforts to assure that the Accounts are and will remain
excluded from the definition of an investment company under the 1940 Act, and
that it will immediately notify the Underwriter and the Fund upon having a
reasonable basis for believing that the Accounts have ceased to be so exempt or
that they might cease to be exempt in the future.
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(d) that the distributor of the Contracts is and will at all times
while the Contracts are in effect be a broker/dealer registered with the SEC
under the 1934 Act.
(e) that each Account will invest exclusively in shares of one
Portfolio, as shown on Schedule A, hereto.
(f) that the Contracts are currently treated as life insurance or
endowment contracts, under applicable provisions of the Code and that it will
make every effort to maintain such treatment and that it will notify the
Underwriter and the Fund 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.
2.2 The Fund and the Underwriter represent and warrant as follows:
(a) that Fund shares sold pursuant to this Agreement shall be
registered under the 1933 Act, duly authorized for issuance and sold in
compliance with all applicable state and federal securities laws and that the
Fund is and shall remain registered under the 0000 Xxx. The Fund shall amend the
registration statement for its shares under the 1933 Act and the 1940 Act from
time to time as required in order to effect the continuous offering of its
shares. The Fund shall register and qualify the shares for sale in accordance
with the laws of the various states only if and to the extent required by
applicable law.
(b) that the Fund is currently qualified as a Regulated Investment
Company under Subchapter M of the Code, and that it will use its best efforts to
maintain such qualification (under Subchapter M or any successor or similar
provision) as long as this Agreement is in effect and that it will notify the
Company immediately upon having a reasonable basis for believing that it has
ceased to comply or that it might not comply in the future with the Subchapter M
qualification requirements.
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(c) that the Fund currently does not intend to make any payments to
finance distribution expenses pursuant to Rule 12b-1 under the 1940 Act or
otherwise, although it may make such payments in the future. To the extent that
it decides to finance distribution expenses pursuant to Rule 12b-1, the Fund
undertakes to have a board of trustees, a majority of whom are not interested
persons of the Fund, formulate and approve any plan under Rule 12b-1 to finance
distribution expenses.
(d) that it has and shall maintain at all times a blanket bond for
the benefit of the Fund in accordance with Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time.
2.3 The Underwriter represents and warrants that it shall cause the Adviser,
and each sub-adviser, if applicable, to remain duly registered or exempt from
registration under all applicable federal and state securities laws, including
but not limited to registration as an investment adviser under the Advisers Act,
and that it, and each sub-adviser, if applicable, shall perform its obligations
for the Fund in compliance with laws applicable state and federal securities
laws.
2.4 The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC. The
Underwriter further represents that it will sell and distribute the Fund shares
in accordance with applicable state laws and federal securities laws, including
without limitation the 1933 Act, the 1934 Act, and the 1940 Act.
ARTICLE III. FUND PROSPECTUSES AND PROXY STATEMENTS: VOTING
3.1 At least annually, the Underwriter (at its expense) shall provide the
Company with as many copies of the Fund's current prospectus as the Company may
reasonably request. If requested by the Company in lieu thereof, the Fund shall
provide such documentation (including a final copy of the new prospectus as set
in type at the Fund's expense) and other assistance as is
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reasonably necessary in order for the Company once each year (or more frequently
if the prospectus for the Fund is amended) to have the disclosure document for
the Contracts and the Fund's prospectus printed together in one document.
3.2 If applicable state or federal laws or regulations require that the
statement of additional information for the Fund be distributed to all Contract
owners, then the Underwriter shall provide the Company with the Fund's statement
of additional information for the Fund in such quantities and/or with expenses
to be borne in accordance with paragraph 3.1 hereof.
3.3 The Fund's prospectus shall state that the statement of additional
information for the Fund is available from the Underwriter (or in the Fund's
discretion, the prospectus shall state that such statement is available from the
Fund), and the Underwriter (or the Fund), at its expense, shall print and
provide such statement free of charge to the Company and to any owner of a
Contract or prospective owner who requests such statement.
3.4 The Fund, at its expense, shall provide the Company with copies of its
prospectus, proxy material, reports to stockholders and other communications to
stockholders in such quantity as the Company shall reasonably require for
distribution to Contract owners.
3.5 It is understood and agreed that the Company is not responsible for the
content of the prospectus or statement of additional information for the Fund
except with respect to information furnished by the Company. It is also
understood and agreed that, except with respect to information regarding the
Fund, Adviser or the Underwriter furnished by the Fund, Adviser, or Underwriter,
neither the Fund nor Underwriter are responsible for the content of the
disclosure document for the Contracts.
3.6 If and to the extent required by law the Company shall:
(i) solicit voting instructions from Contract owners;
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(ii) vote the Fund shares in accordance with instructions received
from Contract owners; and
(iii) vote Fund shares for which no instructions have been received in
the same proportion as Fund shares of such Portfolio for which
instructions have been received:
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for the Contract owners. 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. Participating Insurance Companies
shall be responsible for assuring that each of their separate accounts
participating in the Fund calculates voting privileges in a consistent manner,
as required by the Shared Funding Exemptive Order.
ARTICLE IV. CONTRACT SALES: SALES MATERIAL AND INFORMATION
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, the disclosure document and each piece of Contract sales
material in which the Fund, the Adviser or the Underwriter is named, at least
ten (10) Business Days prior to its use. No such material shall be used if the
Fund or its designee object to such use within ten (10) Business Days after
receipt of such material.
4.2 The Company shall not give any information or make any written
representations or statements on behalf of or concerning the Fund or the
Designated Portfolios in connection with the sale of the Contracts other than
the information or representations contained in the then current registration
statement or prospectus for the Fund shares, as such registration statement and
prospectus for the Fund shares may be amended or supplemented from time to time,
or in reports or proxy statements for the Fund, or in Fund sales literature
approved by the Fund or its designee or by the Underwriter, except with the
permission of the Fund or the Underwriter or the designee of either.
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4.3 The Fund and the Underwriter, in reliance upon the representations and
warranties contained in Article II hereof, understand and acknowledge that each
Account is relying on Section 3(c)(l) of the 1940 Act to be excluded from the
definition of investment company under the 1940 Act, and that the Contracts are
relying on Regulation D for an exemption from registration under the 1933 Act.
Accordingly, each of the Fund and the Underwriter agree that it will not, orally
or in the Fund sales literature or otherwise in writing, give any information or
make any representations concerning the Company, each Account, or the Contracts,
without the prior written consent of the Company.
4.4 The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports, proxy statements, Fund sales literature, applications for exemptions,
requests for no action letters, and all amendments to any of the above, that
relate to the Designated Portfolios or their shares, contemporaneously with the
filing of such document with the SEC or other regulatory authorities.
4.5 The Company will provide to the Fund at least one complete copy of all
disclosure documents, reports, solicitations for voting instructions, and
Contract sales material, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that relate to the Contracts or
each Account.
4.6 For purposes of this Article IV, the phrase "Fund sales literature"
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), 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
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materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
statements of additional information, shareholder reports, and proxy materials.
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ARTICLE V. EXPENSES
5.1 All expenses incident to performance by the Fund under this Agreement
shall be paid by the Fund or the Underwriter. The Fund shall ensure that all its
shares are registered and authorized for issuance in accordance with applicable
federal law and, if and to the extent deemed advisable by the Fund, in
accordance with applicable state laws prior to their sale. The Fund or the
Underwriter shall bear the expenses for the cost of registration and
qualification of the Fund's shares, preparation and filing of the Fund's
prospectus and registration statement, proxy materials and reports, setting the
prospectus in type, setting in type and printing the proxy materials and reports
to shareholders (including the costs of printing a prospectus that constitutes
an annual report), the preparation of all statements and notices required by any
federal or state law, all taxes on the issuance or transfer of the Fund's
shares.
5.2 The Company shall bear the expenses of distributing the Fund's
prospectus to Contract owners and of distributing the Fund's proxy materials and
reports to such Contract owners.
ARTICLE VI. DIVERSIFICATION
6.1 The Fund and the Underwriter represent 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 contracts under the Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund will at all
times comply with Section 817(h) of the Code and Treasury Regulation 1.817-5,
relating to the diversification requirements for variable annuity, endowment, or
life insurance contracts, and with Section 817(d) of the Code, relating to the
definition of a variable contract, as well as any amendments or other
modifications to such Sections or Regulations issued under those Sections.
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6.2 The Fund, and the Underwriter acknowledge that full compliance with the
requirements referred to in Sections 6.1 and 2.2(b) hereof is the principal
inducement for the Company to enter into this Agreement because any failure to
meet those requirements would result in the Contracts not being treated as life
insurance for federal income tax purposes, which would have adverse tax
consequences for Contract owners and could also adversely affect the Company
corporate tax liability. Accordingly, without in any way limiting the effect of
Section 8.2 hereof and without in any way limiting or restricting any other
remedies available to the Company, the Underwriter will pay all costs associated
with or arising out of any failure, or any anticipated or reasonably foreseeable
failure, of the Fund or any Portfolio to comply with Sections 6.1 or 2.2(b)
hereof, including all costs associated with correcting or responding to any such
failure; such costs may include, but are not limited to, the costs involved in
creating, organizing, and registering a new investment company as a funding
medium for the Contracts and/or the costs of obtaining whatever regulatory
authorizations are required to substitute shares of another investment company
for those of the failed Fund or Designated Portfolio (including but not limited
to an order pursuant to Section 26(b) of the 1940 Act); such costs are to
include, but are not limited to, fees and expenses of legal counsel and other
advisors to the Company and any federal income taxes or tax penalties (or "toll
charges" or exactments or amounts paid in settlement) incurred by the Company in
connection with any such failure or anticipated or reasonably foreseeable
failure. Such indemnification and reimbursement obligation shall be in addition
to any other indemnification and reimbursement obligations of the Underwriter
and/or the Adviser under this Agreement.
ARTICLE VII. POTENTIAL CONFLICTS
7.0 IF the Fund HAS a Shared Funding Exemptive Order, then Sections 7.1
through 7.6, inclusive, of this Agreement SHALL apply. IF the Fund DOES NOT have
a Shared Funding Exemptive Order, then Sections 7.1 through 7.6, inclusive, of
this Agreement SHALL NOT apply. Therefore, the Fund MUST initial one of the
following two statements:
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(a) Yes, the Fund has a Shared Funding Exemptive Order and
Sections 7.1 through 7.6, inclusive, are applicable. /X/
(b) No, the Fund does not have a Shared Funding Exemptive Order and
Sections 7.1 through 7.6, inclusive, are not
applicable. / /
7.1 The Board of Trustees of the Fund (the "Board") will monitor the Fund
for the existence of any material irreconcilable conflict between the interests
of the contract owners of all separate accounts or other persons investing in
the Fund. An irreconcilable material conflict may arise for a variety of
reasons, including: (a) an action by any state insurance regulatory authority;
(b) a change in applicable federal or state insurance, tax, or securities laws
or regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Portfolio
are being managed; (e) a difference in voting instructions given by variable
annuity contract and variable life insurance contract owners; or (f) a decision
by an insurer to disregard the voting instructions of contract owners. The Board
shall promptly inform the Company if it determines that an irreconcilable
material conflict exists and the implications thereof.
7.2 The Company will report any potential or existing conflicts of which it
is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Shared Funding Exemptive Order, by providing the
Board with all information reasonably necessary for the Board to consider any
issues raised. This includes, but is not limited to, an obligation by the
Company to inform the Board whenever contract owner voting instructions are
disregarded.
7.3 If it is determined by a majority of the Board, or a majority of its
disinterested members, that a material irreconcilable conflict exists, the
Company, other Participating Insurance Companies, and other persons investing in
the Fund shall, at their expense and to the extent reasonably practicable (as
determined by a majority of the disinterested trustees), take whatever
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steps are necessary to remedy or eliminate the irreconcilable material conflict,
up to and including: (1), withdrawing the assets allocable to some or all of the
separate accounts from the Fund or any Portfolio and reinvesting such assets in
a different investment medium, including (but not limited to) another Portfolio
of the Fund, or submitting the question whether such segregation should be
implemented to a vote of all affected contract owners and, as appropriate,
segregating the assets of any appropriate group (I.E., annuity contract owners,
life insurance contract owners, variable contract owners of one or more
Participating Insurance Companies or other persons) that votes in favor of such
segregation, or offering to the affected contract owners the option of making
such a change; and (2), establishing a new registered management investment
company or managed separate account.
7.4 If a material irreconcilable conflict arises because 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 within six (6)
months after the Board informs the Company in writing that it has determined
that such decision has created an irreconcilable material conflict; provided,
however, that such withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as determined by a
majority of the disinterested members of the Board. Until the end of the
foregoing period not to exceed six (6) months, the Underwriter and Fund shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of shares of the Fund.
7.5 For purposes of Sections 7.3 through 7.6 of this Agreement, a majority
of the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no event
will the Fund be required to establish a new funding medium for the Contracts.
The Company shall not be required by Section 7.3 to establish a new funding
medium for the Contracts if an offer to do so has been declined by vote of a
majority of Contract owners materially adversely affected by the
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irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination, provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
7.6 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 Act
or the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Shared Funding Exemptive Order,
then (a) the Fund and/or the Participating Insurance Companies, as appropriate,
shall take such steps as may be necessary to comply with Rules 6e-2 and 6e-3(T),
as amended, and Rule 6e-3, as adopted, to the extent such rules are applicable;
and (b) Sections 3.6, 3.7, 7.1, 7.2, 7.3, and 7.4 of this Agreement shall
continue in effect only to the extent that terms and conditions substantially
identical to such Sections are contained in such Rule(s) as so amended or
adopted.
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ARTICLE VIII. INDEMNIFICATION
8.1 INDEMNIFICATION BY THE COMPANY
(a) The Company agrees to indemnify and hold harmless the Fund and
each of its trustees and officers and each person, if any, who
controls the Fund within the meaning of Section 15 of the 1933
Act (collectively, the "Indemnified Parties" for purposes of this
Section 8.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the
written consent of the Company) or litigation (including legal
and other expenses), to which the Indemnified Parties may become
subject under any statute, regulation, at common law or
otherwise, insofar as such losses, claims, damages, liabilities
or expenses (or actions in respect thereof) or settlements are
related to the sale or acquisition of the Fund's shares or the
Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained
in the disclosure document for the Contracts or contained
in the Contracts or Contract sales material (or any
amendment or supplement to any of the foregoing), or arise
out of or are based upon the omission or the alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein
not misleading, provided that this agreement to indemnify
shall not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with
information furnished to the Company by or on behalf of
the Fund for use in the disclosure document for the
Contracts or in the Contracts or Contract sales material
(or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or Fund shares;
or
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the registration statement, prospectus or
Fund sales literature not supplied by the Company, or
persons under its control) 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
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a registration
statement, prospectus, or Fund sales literature or any
amendment thereof or supplement thereto or the
19
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make
the statements therein not misleading if such a statement
or omission was made in reliance upon information
furnished to the Fund by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of
this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this
Agreement or arise out of or result from any other
material breach of this Agreement by the Company;
as limited by and in accordance with the provisions of Sections 8.1(b)
and 8.1(c) hereof.
(b) The Company shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by
reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of
obligations or duties under this Agreement or to the Fund, whichever is
applicable.
(c) The Company shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Company in writing
within a reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but failure to
notify the Company of any such claim shall not relieve the Company from
any liability which it may have to the Indemnified Party against whom
such action is brought otherwise than on account of this indemnification
provision. In case any such action is brought against the Indemnified
Parties, the Company shall be entitled to participate, at its own
expense, in the defense of such action. The Company also shall be
entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Company to such party
of the Company's election to assume the defense thereof, the
20
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and the Company will not be liable to such party
under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense
thereof other than reasonable costs of investigation. If the Company
does not assume the defense, it shall not be liable for any settlement
of any proceeding effected without its written consent but if settled
with such consent or if there be a final judgment for the plaintiff, the
Company agrees to indemnify the Indemnified Party from and against any
loss or liability by reason of such settlement or judgment.
(d) The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection
with the issuance or sale of the Fund Shares or the Contracts or the
operation of the Fund.
8.2 INDEMNIFICATION BY THE UNDERWRITER
(a) The Underwriter agrees to indemnify and hold harmless the Company
and each of its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section
8.2) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Underwriter)
or litigation (including legal and other expenses) to which the
Indemnified Parties may become subject under any statute, at common law
or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to
the sale or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the Fund's registration statement or prospectus or
statement of additional information or Fund sales
literature (or any amendment or supplement to any of the
foregoing), or arise out of or are based upon the omission
or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading, provided that this
agreement to indemnify shall not apply as to any
Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon
and in conformity with information furnished to the
21
Underwriter or Fund by or on behalf of the Company for use
in the registration statement or prospectus or the
statement of additional information for the Fund or in
Fund sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the disclosure document for the Contracts or
Contract sales material not supplied by the Underwriter or
persons under its control) or wrongful conduct of the
Fund, Adviser or Underwriter or persons under their
control, with respect to the sale or distribution of the
Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a disclosure
document for the Contracts or Contract sales material, or
any amendment thereof or supplement thereto, or the
omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make
the statement or statements therein not misleading, if
such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of
the Fund; or
(iv) arise as a result of any failure by the Fund to
provide the services and furnish the materials, or
otherwise perform its obligations under the terms of this
Agreement (including a failure, whether unintentional or
in good faith or otherwise, to comply with the
diversification requirements specified in Article VI of
this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter in
this Agreement or arise out of or result from any other
material breach of this Agreement by the Underwriter;
as limited by and in accordance with the provisions of Sections 8.2(b)
and 8.2(c) hereof. This indemnification is in addition to and apart from
the responsibilities and obligations of the Underwriter specified in
Article VI hereof.
(b) The Underwriter shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or
litigation to which an Indemnified Party would otherwise be subject by
reason of such Indemnified Party's willful misfeasance, bad faith, or
gross negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of
obligations
22
and duties under this Agreement or to each Company or the Accounts,
whichever is applicable.
(c) The Underwriter shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party
unless such Indemnified Party shall have notified the Underwriter in
writing within a reasonable time after the summons or other first legal
process giving information of the nature of the claim shall have been
served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but
failure to notify the Underwriter of any such claim shall not relieve
the Underwriter from any liability which it may have to the Indemnified
Party against whom such action is brought otherwise than on account of
this indemnification provision. In case any such action is brought
against the Indemnified Parties, the Underwriter will be entitled to
participate, at its own expense, in the defense thereof. The Underwriter
also shall be entitled to assume the defense thereof, with counsel
satisfactory to the party named in the action. After notice from the
Underwriter to such party of the Underwriter's election to assume the
defense thereof, the Indemnified Party shall bear the fees and expenses
of any additional counsel retained by it, and the Underwriter will not
be liable to such party under this Agreement for any legal or other
expenses subsequently incurred by such party independently in connection
with the defense thereof other than reasonable costs of investigation.
If the Underwriter does not assume the defense, it shall not be liable
for any settlement of any proceeding effected without its written
consent but if settled with such consent or if there be a final judgment
for the plaintiff, the Underwriter agrees to indemnify the Indemnified
Party from and against all loss or liability by reason of such
settlement or judgment.
(d) The Company agrees promptly to notify the Underwriter in writing
of the commencement of any litigation or proceedings against it or any
of its officers or directors in connection with the issuance or sale of
the Contracts or the operation of each Account.
23
(e) In the event (i) that the Indemnified Parties, as defined in this
Section 8.2, become subject to any of the claims, damages, liabilities
or expenses with respect to which the Underwriter has agreed to
indemnify the Indemnified Parties pursuant to this Section 8.2, and (ii)
that the Underwriter is entitled to indemnification from any third
party, including the Adviser, for any claims, damages, liabilities or
expenses the Underwriter may suffer arising from the circumstances,
events or actions as give rise to the Underwriter's obligation to
indemnify the Indemnified Parties, then the Underwriter shall use its
best efforts to recover all amounts due it or to which it may be
entitled from such third party.
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 New York.
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 to the extent
applicable thereto, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the Shared
Funding Exemptive Order) and the terms hereof shall be interpreted and construed
in accordance therewith.
24
ARTICLE X. TERMINATION
10.1 This Agreement shall terminate:
(a) at the option of any party upon six (6) months advance written
notice to the other parties; provided, however such notice shall not be
given earlier than six (6) months following the date of this Agreement;
or
(b) at the option of the Company to the extent that shares of
Portfolios are not reasonably available to meet the requirements of the
Contracts as determined by the Company, provided, however, that such
termination shall apply only to the Portfolio(s) not reasonably
available. Prompt notice of the election to terminate for such cause
shall be furnished by the Company, said termination to be effective ten
(10) days after receipt of notice; or
(c) at the option of the Fund in the event that formal administrative
proceedings are instituted against the Company by the NASD, the SEC, the
insurance department, or any other regulatory body regarding the
Company's duties under this Agreement or related to the sale of the
Contracts, with respect to the operation of any Account, or the purchase
of the Fund shares, provided, however, that the Fund determines in its
sole judgment exercised in good faith, that any such administrative
proceedings will have a material adverse effect upon the ability of the
Company to perform its obligations under this Agreement; or
(d) at the option of the Company in the event that formal
administrative proceedings are instituted against the Fund, the Adviser,
or Underwriter by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body, provided, however,
that the Company determines in its sole judgment exercised in good
faith, that any such administrative proceedings will result in a loss of
1934 Act registration as a broker/dealer with the SEC or will have a
material adverse effect upon the ability of the Fund or Underwriter to
perform its obligations under this Agreement; or
25
(e) with respect to any Account, at the option of the Company or the
Fund, upon receipt of any necessary regulatory approval and/or the
requisite vote of the Contract owners sharing an interest in such
Account (or any sub-account) to substitute the shares of another
investment company for the corresponding Portfolio shares of the Fund in
accordance with the terms of the Contracts for which those Portfolio
shares had been selected to serve as the underlying investment media.
The Company will give 30 days prior written notice to the Fund of the
date of any proposed vote to replace the Fund's shares; or
(f) at the option of the Company, in the event any of the Fund'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 the Company; or
(g) at the option of the Company, if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or under any
successor or similar provision, or if the Company reasonably believes
that the Fund may fail to so qualify; or
(h) at the option of the Company, if the Fund and the Adviser fail to
invest money from the Contracts in such a manner as to ensure that the
Contracts will be treated as variable contracts under the Code and any
regulations thereunder; or
(i) by either the Company or the Fund upon a determination by a
majority of the Fund Board, or a majority of disinterested Fund Board
members, that an irreconcilable material conflict exists among the
interests of (1) all owners of variable contracts or (2) the interests
of the Participating Insurance Companies investing in the Fund; or
(j) at the option of the Fund, the Adviser, or the Underwriter, if
(1) the Fund, the Adviser, or the Underwriter, respectively, shall
determine, in their sole judgment reasonably exercised in good faith,
that the Company has suffered a material adverse change in its business
or financial condition or is the subject of material adverse publicity
and such material adverse change or material adverse publicity will have
a material adverse impact upon the business and operations of either the
Fund or the
26
Underwriter, (2) the Fund, the Adviser, or the Underwriter shall notify
the Company in writing of such determination and its intent to terminate
this Agreement, and (3) after considering the actions taken by the
Company and any other changes in circumstances since the giving of such
notice, such determination of the Fund, the Adviser, or the Underwriter
shall continue to apply on the sixtieth (60th) day following the giving
of such notice, which sixtieth (60th) day shall be the effective date of
termination, unless the Fund or the Underwriter, as the case may be,
rescinds its determination in writing and delivers such writing to the
Company on or before the sixtieth (60th) day; or
(k) at the option of the Company, if (1) the Company shall determine,
in its sole judgment reasonably exercised in good faith, that the Fund,
the Adviser, or the Underwriter has suffered a material adverse change
in its business or financial condition or is the subject of material
adverse publicity and such material adverse change or material adverse
publicity will have a material adverse impact upon the business and
operations of the Company, (2) the Company shall notify the Fund, the
Adviser, and the Underwriter in writing of such determination and its
intent to terminate the Agreement, and (3) after considering the
actions taken by the Fund, the Adviser, and/or the Underwriter and any
other changes in circumstances since the giving of such notice, which
sixtieth (60th) day shall be the effective date of termination, unless
the Company rescinds its determination in writing and delivers such
writing to the Fund, the Adviser, and the Underwriter on or before the
sixtieth (60th) day; or
(1) at the option of the Fund if the Contracts cease to qualify as
annuity contracts or life insurance policies, as applicable, under the
Code, or if the Fund reasonably believes that the Contracts may fail to
so qualify; or
(m) upon the assignment of this Agreement unless the non-assigning
parties consent thereto.
10.2 It is understood and agreed that the right of any party hereto to
terminate this Agreement pursuant to Section 10.1 (a) may be exercised for any
reason or for no reason.
27
10.3 Except as otherwise provided in Section 10.1, no termination of this
Agreement shall be effective unless and until the party terminating this
Agreement gives prior written notice to all other parties to this Agreement of
its intent to terminate which notice shall set forth the basis for such
termination. Furthermore,
(a) In the event that any termination is based upon the provisions of
Article VII, or the provision of Section 10.1(a), 10.1(b), 10.1(j), or
10.1(k) of this Agreement, such prior written notice shall be given in
advance of the effective date of termination as required by such
provisions; and
(b) in the event that any termination is based upon the provisions of
Section 10.1 (c) or 10.1 (d) of this Agreement, such prior written
notice shall be given at least ninety (90) days before the effective
date of termination; and
(c) in the event that any termination is based upon the provisions of
Section 10.1(e) of this Agreement, such prior written notice shall be
given at least sixty (60) days before the date of any proposed vote to
replace the Fund's shares.
10.4 (a) Notwithstanding any termination of this Agreement, the Fund, the
Adviser, and the Underwriter shall at the option of the Company continue
to make available additional shares of the Fund pursuant to the terms
and conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred to
as "Existing Contracts"). Specifically, without limitation, the owners
of the Existing Contracts shall be permitted to reallocate investments
among the Designated Portfolios in the Fund, redeem investments in the
Fund and/or invest in the Fund upon the making of additional purchase
payments under the Existing Contracts.
(b) In the event of a termination of this Agreement pursuant to Section
10.1 of this Agreement and except as provided in 10.4(a) the Fund, the
Adviser, and the Underwriter shall promptly notify the Company in
writing whether the Underwriter, the Adviser, and the Fund will continue
to make Fund shares available after such termination. If Fund shares
continue to be
28
made available after such termination, the provisions of this Agreement
shall remain in effect except for Section 10.1(a) and thereafter either
the Fund or the Company may terminate the Agreement, as so continued
pursuant to this Section 10.4, upon prior written notice to the other
party, such notice to be for a period that is reasonable under the
circumstances but, if given by the Fund, need not be for more than six
(6) months.
(c) The parties agree that this Section 10.4 shall not apply to any
termination made pursuant to Article VII or any conditions or
undertakings incorporated by reference in Article VII, and the effect of
such Article VII termination shall be governed by the provisions set
forth or incorporated by reference to Article VII of this Agreement.
10.5 The Company shall not redeem Fund shares attributable to the Contracts
(as opposed to Fund shares attributable to the Company's assets held in either
Account) except (i) as necessary to implement Contract owner initiated
transactions, or (ii) as required by state and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally Required Redemption"). Upon request, the Company will promptly
furnish to the Fund and the Underwriter the opinion of counsel for the Company
(which counsel shall be reasonably satisfactory to the Fund and the Underwriter)
to the effect that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, the Company shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund or the Underwriter ninety (90) days
notice of its intention to do so.
10.6 Notwithstanding any termination of this Agreement, each party's
obligation under Article VIII to indemnify other parties and the Adviser and
Underwriter's obligation to pay costs under Section 6.2 shall survive and not be
affected by any termination of this Agreement. In addition, with respect to
Existing Contracts for which the Fund, the Adviser, and Underwriter are
continuing to make Fund shares available in accordance with Section 10.4(a), the
provisions of
29
Article I, Article II, Article III, Article V, Article VI and Sections 13.2 and
13.6 shall also survive and not be affected by any termination of this
Agreement.
ARTICLE XI. APPLICABILITY TO NEW ACCOUNTS AND NEW CONTRACTS
The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in and the addition of separate accounts by
the Company and to reflect changes in or relating to the Contracts and to add
new classes of variable life insurance policies to be issued by the Company
through each Account investing in the Fund. The provisions of this Agreement
shall be equally applicable to each such separate account and each such class of
policies, unless the context otherwise requires.
30
ARTICLE XII. NOTICES
Any notice shall be sufficiently given when sent by registered or
certified mail to the other party at the address of such party set forth below
or at such other address as such party may from time to time specify in writing
to the other party.
If to the Fund:
GCG Trust
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx
If to the Company:
Security Equity Life Insurance Company
00 Xxxxxxxx Xxxx Xxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: Mr. Kiri Parankirinathan
If to the Underwriter:
Directed Services, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx
ARTICLE XIII. MISCELLANEOUS
31
13.1 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
trustees, officers, agents or shareholders assume any personal liability for
obligations entered into on behalf of the Fund.
13.2 Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of the
owners of the Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not disclose, disseminate or utilize such names and
addresses and other confidential information until such time as it may come into
the public domain without the express written consent of the affected party.
13.3 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.
13.4 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
13.5 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement shall
not be affected thereby.
13.6 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC,
the NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any
investigation or inquiry relating to this Agreement or the transactions
contemplated hereby. Notwithstanding the generality of the foregoing, each
party hereto further agrees to furnish the Superintendent of the New York
State Insurance Department with any information or reports in connection with
services provided under this Agreement which such
32
Superintendent may request in order to ascertain whether the variable life
insurance operations of the Company are being conducted in a manner consistent
with the New York variable life insurance regulations and any other applicable
law or regulations.
13.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
13.8 This Agreement shall be nonassignable by the parties hereto, except that
any party may assign its rights and obligations to any subsidiary, or any
company under common control with, such party, provided that the assigned is
duly licensed to perform all functions required of that party under this
Agreement and the assignee undertakes to perform such party's functions
hereunder.
33
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 thereunder affixed hereto as of the date
specified below.
Company:
SECURITY EQUITY LIFE INSURANCE COMPANY
By its authorized officer,
SEAL By: /s/ [ILLEGIBLE]
---------------------------
Title: Senior Executive Vice President
------------------------
Date: 10-13-94
-------------------------
Fund:
GCG TRUST
By its authorized officer,
SEAL By: /s/ Xxxxx Xxxxxxx
--------------------------
Title: President
------------------------
Date: 11/1/94
-------------------------
Underwriter:
DIRECTED SERVICES, INC.
SEAL By: /s/ Xxxxx X. Xxxxxxxx
--------------------------
Title: SVP
------------------------
Date: 11/1/94
-------------------------
34
SCHEDULE A
ACCOUNTS
ACCOUNT DATE ESTABLISHED CORRESPONDING PORTFOLIO
------- ---------------- -----------------------
4 March, 1994 Emerging Markets
5 March, 1994 Limited Maturity Bond
6 March, 1994 Liquid Asset
SCHEDULE B
CONTRACTS
As used in this Agreement, the term "Contracts" shall mean the contracts and
certificates with the form numbers listed below:
CONTRACTS
GENERIC NAME NUMBER
------------ ------
Group Flexible Premium Variable
Life Insurance 6000022
Flexible Premium Variable
Life Insurance 6000222
Modified Schedule Premium Variable
Life Insurance 60001
