AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT BY AND AMONG
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK ON BEHALF OF ITSELF
AND ITS SEPARATE ACCOUNTS
AND
XXXXX XXXXX VARIABLE TRUST
WHEREAS, GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK on behalf of itself and
its segregated asset accounts listed on Amended Schedule A attached hereto and
XXXXX XXXXX VARIABLE TRUST have previously entered into a Participation
Agreement dated August 20, 2002 (the "Agreement");
NOW, THEREFORE, the parties hereby agree as follows:
1. Schedule A, is replaced in its entirety with the attached.
2. The Agreement, as supplemented by this Amendment and the Amendments to
Schedule A attached hereto, is ratified and confirmed effective May 1,
2003.
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK on behalf of itself and its
separate accounts
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Xxxxxxx Xxxxxx
Vice President
XXXXX XXXXX VARIABLE TRUST
By: /s/ Xxxxxxx X. Xxxxxx Xx.
---------------------------
Name: Xxxxxxx X. Xxxxxx Xx.
Title: Assistant Treasurer
AMENDMENT NO. 1 TO SCHEDULE A
(Amended as of May 1, 2003)
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
Xxxxx Xxxxx Variable Trust - Xxxxx Xxxxx VT Income Fund of Boston
Xxxxx Xxxxx Variable Trust - Xxxxx Xxxxx VT Information Age Fund
Xxxxx Xxxxx Variable Trust - Xxxxx Xxxxx VT Floating-Rate Income Fund
Xxxxx Xxxxx Variable Trust - Xxxxx Xxxxx VT Worldwide Health Sciences Fund
SEPARATE ACCOUNT UTILIZING THE PORTFOLIOS
GE Capital Life Separate Account II
GE Capital Life Separate Account III
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
Flexible Premium Deferred Variable Annuity Contract Form NY 1155
SEC File No. 333-47016
Flexible Premium Deferred Variable Annuity Contract Form NY 1157
SEC File No. 333-97085
Flexible Premium Single Life and Joint and Last Survivor Variable Life
Single Life Policy Form XX 0000; Joint and Last Survivor Life Policy Form NY
1261
SEC File No. 333-88312
PARTICIPATION AGREEMENT
BY AND AMONG
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS
AND
XXXXX XXXXX VARIABLE TRUST
THIS AGREEMENT, made and entered into as of August 20, 2002
("Agreement"), by and among Xxxxx Xxxxx Variable Trust, a Massachusetts business
trust (the "Trust") and GE Capital Life Assurance Company of New York, a New
York life insurance company ("LIFE COMPANY"), on behalf of itself and each of
its segregated asset accounts listed in Schedule A hereto, as the parties hereto
may amend from time to time (each, an "Separate Account," and collectively, the
"Separate Accounts").
WITNESSETH THAT:
WHEREAS, the Trust 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 Trust 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 Trust
("Participating Insurance Companies");
WHEREAS, the Trust 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 Trust will make Shares of each investment portfolio of
the Trust listed on Schedule A hereto (each, a "Portfolio" and collectively, the
"Portfolios") as the Parties hereto may amend from time to time available for
purchase by the Accounts;
WHEREAS, the Trust intends to seek 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 Trust
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
Separate Accounts, each of which will be divided into two or more subaccounts
("Subaccounts"; reference herein to an "Separate Account" includes reference to
each Subaccount thereof to the extent the context requires);
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WHEREAS, LIFE COMPANY serves as the depositor of the Separate
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
Separate 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 Trust will make Shares of each Portfolio listed on Schedule A
available to LIFE COMPANY for purchase and redemption at net asset value next
computed after the Trust's receipt of a purchase or redemption order and with no
sales charges, in accordance with the Trust's then current prospectus and
subject to the terms and conditions of this Agreement. The Board of Directors of
the Trust 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 Trust, 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 Trust represents that shares of the Portfolios will be sold only
to Participating Insurance Companies, their separate accounts and qualified
pension and retirement plans ("Plans") and that no Shares of any Portfolio have
been or will be sold to the general public. The Trust will not sell Trust shares
to any Participating Insurance Companies or Plans unless such Participating
Insurance Companies or Plans have entered into an agreement containing
provisions materially similar to Sections 2, 3, 5 and 10 hereof.
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1.4 No Sales to Certain Variable Life Products
LIFE COMPANY hereby agrees that it will not invest assets of any
Contract which is a Contract created under a variable life insurance separate
account until LIFE COMPANY is notified in writing by the Trust that it has
received the Order from the SEC.
Section 2. Processing Transactions
2.1 Placing Orders
(a) The Trust 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 Trust calculates the Portfolios' net
asset value. The Trust 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 Trust 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 Trust, LIFE COMPANY and the Trust shall net
purchase and redemption orders with respect to each Portfolio and shall transmit
one net payment per Portfolio in accordance with Section 2.2, below.
(d) If the Trust provides materially incorrect Share net asset value
information (as determined under SEC guidelines), LIFE COMPANY 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 Trust of a purchase request for such Shares. Payment
for Shares shall be made in federal funds transmitted to the Trust by wire to be
received by the Trust by 5:00 P.M. Eastern Time on the day the Trust is notified
of the purchase request for Shares.
(b) The Trust will wire payment in federal funds for net redemption's
to an account designated by LIFE COMPANY by 5:00 p.m. Eastern Time on the
Business Day the order is placed. The Trust shall not bear any responsibility
whatsoever for the proper disbursement or crediting of redemption proceeds by
LIFE COMPANY.
2.3 Applicable Price
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(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 Trust or its designated agent of
the orders. For purposes of this Section 2.3(a), LIFE COMPANY shall be the
designated agent of the Trust for receipt of orders relating to Contract
transactions on each Business Day and receipt by such designated agent shall
constitute receipt by the Trust; provided that the Trust 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 Trust or its designated agent of the order therefor, and
such orders will be irrevocable.
2.4 Dividends and Distributions
The Trust will furnish notice by wire or telephone (followed by
written confirmation to the address listed in Section 9 of this agreement) 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 Trust in writing, it being agreed by
the Parties that the ex-dividend late and the payment date with respect to any
dividend or distribution will be the same Business Day. If permitted by
applicable securities regulations, LIFE COMPANY may 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 Trust 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
Trust will be recorded in an appropriate title for LIFE COMPANY, on behalf of
its Separate 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 Trust shall pay no fee or other compensation to the LIFE
COMPANY under this agreement, except that if the Trust or any Portfolio adopts
and implements a plan pursuant to Rule 12b-1 to finance distribution expenses,
then the Trust may make payments to the principal underwriter for the Contracts
if and in amounts agreed to by the Trust in writing. Presently, no such payments
are contemplated.
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3.2 Registration
(a) The Trust will bear the cost of its registering as a management
investment company under the 1940 Act and registering its Shares under the 1933
Act, and keeping such registrations current and effective; including, without
limitation, the preparation of and filing with the SEC of Forms N-SAR and Rule
24f-2 Notices with respect to the Trust 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 Separate Account as a unit investment trust under the 1940 Act
and registering units of interest under the Contracts under the 1933 Act and
keeping such registrations current and effective; including, without limitation,
the preparation and filing with the SEC of Forms N-SAR and Rule 24f-2 Notices
with respect to each Separate 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
distributing to Contract owners, annuitants, insureds or participants (as
appropriate) under the Contracts (collectively, "Contract Owners") the following
documents, whether they relate to the Separate Account or the Trust:
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 Trust) to the extent such
materials are distributed in connection with the Contracts, and, except for
advertising materials prepared by the Trusts, 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 Trust will bear, or arrange for others to bear, the costs of
preparing, filing with the SEC and setting for printing the Trust's prospectus,
statement of additional information and any amendments or supplements thereto
(collectively, the "Trust Prospectus"), periodic reports to shareholders, the
Trust proxy material and other shareholder communications to the extent required
by federal or state law or as deemed appropriate by the Trust. The Trust will
bear all taxes required to be paid by the Trust on the issuance or transfer of
Trust shares. In addition, the Trust will bear the cost of printing and
delivering the Trust Prospectus to Contract Owners who have directed LIFE
COMPANY to purchase Shares of the Trust, and will bear the cost of preparing and
printing any supplements or amendments to the Trust Prospectus to the extent
that such supplements or amendments were required by LIFE COMPANY.
(b) LIFE COMPANY will bear the costs of preparing, filing with the SEC
and printing each variable product prospectus, statement of additional
information and any amendments or supplements thereto (collectively, the
"Variable Product Prospectus"), to the extent required by federal or state law
or as deemed appropriate by LIFE COMPANY.
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(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 Trust. LIFE COMPANY may elect to receive such prospectuses in camera
ready and/or computer diskette format and the Trust will make reasonable effort
to use computer formatting requested by LIFE COMPANY, including but not limited
to, HTML. The Trust will print the Trust statement of additional information,
proxy materials relating to the Trust and periodic reports of the Trust.
3.5 Parties To Cooperate
Each party agrees to cooperate with the other, in arranging to print,
mail and/or deliver, within a reasonable time period and as prescribed by the
federal securities laws, combined or coordinated prospectuses or other materials
of the Trust and the Separate Accounts.
Section 4. Legal Compliance
4.1 Tax Laws
(a) The Trust 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 Trust 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 Trust
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 Separate Account is
a "segregated asset account" and that interests in each Separate Account are
offered exclusively through the purchase of or transfer into a "variable
contract," within the meaning of such terms under Section 817 of the Code and
the regulations thereunder. LIFE COMPANY will continue to meet such definitional
requirements, and it will notify the Trust 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
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each Separate Account as a segregated asset account under all applicable laws
and regulations, and (iii) the Contracts comply in all material respects with
all applicable federal and state laws and regulations.
(b) The Trust represents and warrants that it is a business trust duly
organized, validly existing, and in good standing under the laws of the
Commonwealth of Massachusetts 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 Trust;
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) 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 Trust 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 Trust
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 Separate Accounts' investment therein. LIFE COMPANY shall inform the Trust
of any additional investment restrictions imposed by state insurance law after
the date of this agreement that may become applicable to the Trust or any
Portfolio from time to time as a result of the Separate Accounts' investment
therein. Upon receipt of any such information from LIFE COMPANY or any other
Participating Insurance Company, the Trust shall determine whether it is in the
best interests of shareholders to comply with any such restrictions. If the
Trust 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 Trust
shall so inform LIFE COMPANY, and the Trust 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
Separate Account pursuant to the Contracts will be registered under the 1933 Act
to the extent required by the 1933 Act, (ii) the Contracts will be duly
authorized for issuance and sold in compliance with all applicable federal and
state laws, including, without limitation, the 1933 Act, the 1934 Act, the 1940
Act and applicable state law, (iii) each Separate Account is and will remain
registered under the 1940 Act, to the extent required by the 1940 Act, (iv) each
Separate Account does and will comply in all material respects with the
requirements of the 1940 Act and the rules thereunder, to the extent required,
(v) each Separate 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 Separate Accounts under the 1940 Act
from time to time as required in order to effect the continuous offering of its
Contracts or as may otherwise be required by applicable law, and (vii) each
Variable Product Prospectus will at all times comply in all material respects
with the requirements of the 1933 Act and the rules thereunder.
(b) The Trust represents and warrants that (i) Shares sold pursuant to
this Agreement
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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
securities laws, (ii) the Trust is and will remain registered under the 1940 Act
to the extent required by the 1940 Act, (iii) the Trust 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
Trust does and will comply in all material respects with the requirements of the
1940 Act and the rules thereunder, (v) the Trust'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 Trust'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 Trust 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 Trust will at its expense register and qualify its Shares for
sale in accordance with the laws of any state or other jurisdiction if and to
the extent reasonably deemed advisable by the Trust.
4.4 Notice of Certain Proceedings and Other Circumstances.
(a) The Trust 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 Trust's registration statement under the
1933 Act and the 1940 Act or the Trust Prospectus, (ii) any request by the SEC
for any amendment to such registration statement or the Trust 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 Trust 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 Trust 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 Variable Product's
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 Separate
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.
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4.5 Documents Provided by LIFE COMPANY; Information About the Trust.
(a) LIFE COMPANY will provide to the Trust or its designated agent at
least one (1) complete copy of all SEC registration statements, Variable Product
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 Separate Account or the
Contracts, contemporaneously with or within 15 days off the filing of such
document with the SEC or other regulatory authorities.
(b) LIFE COMPANY will provide to the Trust or its designated agent at
least one (1) complete copy of each piece of sales literature or other
promotional material in which any Portfolio, the Trust 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 Trust 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 Trust or its affiliates in connection with the sale of the
Contracts other than (i) the information or representations contained in the
then current registration statement, including the Trust Prospectus contained
therein, relating to Shares, as such registration statement and the Trust
Prospectus may be amended from time to time; (ii) in reports or proxy materials
for the Trust; (iii) in published reports for the Trust that are in the public
domain and approved by the Trust for distribution; or (iv) in sales literature
or other promotional material approved by the Trust for use by LIFE COMPANY,
except with the express written permission of the Trust.
(d) LIFE COMPANY shall cause its principal underwriter of the
Contracts to adopt and implement procedures reasonably designed to ensure that
information concerning the Trust, and its respective affiliates that is intended
for use only by brokers or agents selling the Contracts (i.e., information that
is not intended for distribution to Participants) ("broker only materials") is
so used, and neither the Trust, nor any of its respective affiliates shall be
liable for any losses, damages or expenses relating to the improper use of such
broker only materials.
(e) For the purposes of this Section 4.5, the phrase "sales literature
or other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media (e.g.,
on-line networks such as the Internet or other electronic messages)), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
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 1940 Act, or rules or
regulations thereunder.
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4.6 Documents Provided by Trust; Information About LIFE COMPANY.
(a) The Trust will provide to LIFE COMPANY at least one (1) complete
copy of all SEC registration statements, Trust 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
Trust or the Shares of a Portfolio, contemporaneously with or within 15 days of
the filing of such document with the SEC or other regulatory authorities.
(b) The Trust will provide to LIFE COMPANY copies of all Trust
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 Contract Owners who have allocated any assets to a
Portfolio. The Trust 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 Contract Owners.
(c) The Trust 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.
(d) Neither the Trust nor any of its affiliates will give any
information or make any representations or statements on behalf of or concerning
LIFE COMPANY, each Separate Account, or the Contracts other than (i) the
information or representations contained in the registration statement,
including each Variable Product Prospectus contained therein, relating to the
Contracts, as such registration statement and Variable Product Prospectus may be
amended from time to time; (ii) in published reports for the Separate Account or
the Contracts that are in the public domain and approved by LIFE COMPANY for
distribution; or (iii) in sales literature or other promotional material
approved by LIFE COMPANY or its affiliates, except with the express written
permission of LIFE COMPANY.
(e) The Trust shall cause its principal underwriter to adopt and
implement procedures reasonably designed to ensure that information concerning
LIFE COMPANY, and its respective affiliates that is intended for use only by
brokers or agents selling the Contracts (i.e., information that is not intended
for distribution to Contract Owners) ("broker -use- only materials") is so used,
and neither LIFE COMPANY, nor any of its respective affiliates shall be liable
for any losses, damages or expenses relating to the improper use of such broker
only materials.
(f) For purposes of this Section 4.6, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media (i.e., any
written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts of any other advertisement,
sales literature, or published article), educational or training materials or
other communications distributed or made generally available to some or all
agents or employees,
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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 1940
Act, or rules or regulations thereunder
Section 5. Mixed and Shared Funding
LIFE COMPANY acknowledges that the Trust has filed an order from the
SEC granting relief from various provisions of the 1940 Act and the rules
thereunder to the extent necessary to permit Trust 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 Trust by virtue of such order is incorporated herein by reference, as though
set forth herein in full, and the parties to this Agreement shall comply with
such conditions and undertakings to the extent applicable to each such party.
Section 6. Termination
6.1 Events of Termination
Subject to Section 6.4 below, this Agreement will terminate as to a
Portfolio:
(a) at the option of any party, with or without cause, upon six (6)
months advance written notice to the other parties; or
(b) at the option of LIFE COMPANY if shares of a Portfolio are not
reasonably available to meet the requirements of the Contracts as determined by
LIFE COMPANY provided, however, that such a termination shall apply only to the
Portfolio(s) not available. Prompt written notice of the election to terminate
for such cause shall be furnished by LIFE COMPANY to the Trust;
(c) at the option of the Trust 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 Separate Account,
or the purchase of Shares, if, in each case, the Trust 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 Trust, its principal underwriter, or its investment
adviser by the NASD, the SEC, or any state insurance regulator or any other
regulatory body regarding the Trust's obligations under this Agreement or
related to the operation or management of the applicable Portfolio or the
purchase of the applicable Portfolios, if, in each case, LIFE COMPANY reasonably
determines that such proceedings, or the facts on which such proceedings would
be based, have a material likelihood of imposing material adverse consequences
on LIFE COMPANY, or the Subaccount corresponding to the Portfolio with respect
to which the Agreement is to be terminated; or
(e) at the option of any party in the event that (i) a Portfolio's
Shares are not
12
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 (a) above, at the option of the Trust if
the Contracts issued by LIFE COMPANY cease to qualify as annuity contracts or
life insurance policies under the Code or if Trust reasonably believes the
applicable Contracts may so cease to qualify, or if interests in a Separate
Account in which the Contracts are available 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 Trust by written notice to LIFE COMPANY, if
the Trust 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 Trust, if
LIFE COMPANY shall determine in its sole judgment exercised in good faith, that
the Trust 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 Trust, if
LIFE COMPANY shall determine in its sole judgment exercised in good faith, that
the advisers of the portfolios of the Trust and/or their 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 Trust's Board of Directors, or a majority of the Trust's disinterested
directors, 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 Trust; 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 Separate 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
13
Trust shares of a portfolio available in the Trust in accordance with the terms
of the Contracts for which those portfolio shares had been selected to serve as
the underlying investment media. LIFE COMPANY will give at least 30 days' prior
written notice to the Trust of the date of proposal to replace the Portfolio's
shares; or
(n) at the option of the Trust 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 Trust 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
Contract Owners), such notice effective immediately upon receipt of written
notice, it being understood that a lack of Participating Insurance Companies
interest in the applicable Portfolio may be grounds for a suspension or
termination as to such Portfolio.
6.2 Notice Requirement for Termination
No termination of this Agreement will be effective unless and until
the party terminating this Agreement gives prior written notice to the address
listed in Section 9 on this Agreement 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), 6.1(h), 6.1(i), 6.1(j), 6.1(k), 6.1(m), or 6.1(n) hereof, such
prior written notice shall be given at least 30 days in advance of the effective
date of termination unless a shorter time is agreed to by the Parties hereto;
and
6.3 Trust To Remain Available
Notwithstanding any termination of this Agreement, the Trust 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 Trust (as in effect on such date), redeem
investments in Portfolios of the Trust and/or invest in Portfolios of the Trust
upon the making of additional purchase payments under the Existing
14
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 an Order, for substitution received for the
SEC and the effect of such terminations will be governed by such Order.
6.4 Survival of Warranties and Indemnifications
All warranties and indemnifications will survive the termination of
this Agreement.
Section 7. Parties To Cooperate Respecting Termination
Subject to the provisions of Section 6.3 hereof, the Parties hereto
agree to cooperate and give reasonable assistance to one another in taking all
necessary and appropriate steps for the purpose of ensuring that an Separate
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 Separate Account with another Separate
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 Section 9 hereof
will be given by means mutually acceptable to the Parties concerned. Each other
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:
GE Life and Annuity Assurance Company
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: Office of General Counsel
Xxxxx Xxxxx Variable Trust
The Xxxxx Xxxxx Building
000 Xxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
Section 10. Voting Procedures
15
Subject to the cost allocation procedures set forth in Section 3
hereof, LIFE COMPANY will distribute all proxy material furnished by the Trust
to Contract Owners to whom pass-through voting privileges are required to be
extended and will solicit voting instructions from Contract Owners. LIFE COMPANY
will vote Shares in accordance with timely instructions received from
Participants. LIFE COMPANY will vote Shares that are (a) not attributable to
Contract Owners to whom pass-through voting privileges are extended, or (b)
attributable to Contract Owners, but for which no timely instructions have been
received, in the same proportion as Shares for which said instructions have been
received from Contract Owners, so long as and to the extent-that the 1940 Act
requires pass through voting privileges for Contract Owners. 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 Contract Owners. LIFE COMPANY reserves the right to vote shares held in
any Separate Account in its own right, to the extent permitted by law. LIFE
COMPANY shall be responsible for assuring that each of its Separate Accounts
holding Shares calculates voting privileges in the manner required by the Order
obtained by the Trust. The Trust will notify LIFE COMPANY of any amendments to
the Order it has obtained. [[Xxxxxxx, I think that this clause adequately covers
your concern about following your clients instructions to vote.]]
Section 11. Indemnification
11.1 Of the Trust 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 Trust, its
affiliates, and each person, if any, who controls the Trust 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 11.1) 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 Separate 1933 Act registration statement, any Variable
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 Trust for use in any Separate
Account's 1933 Act registration statement, any Variable
Product Prospectus, the Contracts, or sales literature or
advertising (or any amendment or supplement to any of the
foregoing); or
16
(ii) arise out of or as a result of any other statements or
representations (other than statements or representations
contained in the Trust's 1933 Act registration statement,
the Trust (or portfolio) Prospectus, sales literature or
advertising of the Trust or any of its portfolios, or any
amendment or supplement to any of the foregoing, not
supplied for use therein by or on behalf of LIFE COMPANY or
its affiliates and on which such persons have reasonably
relied) or the negligent, illegal or fraudulent conduct of
LIFE COMPANY or its respective affiliates or persons under
their control, in connection with the sale, marketing or
distribution of the Contracts or Shares; or
(iii) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the Trust's 1933 Act registration statement, the Trust (or
portfolio) Prospectus, sales literature or advertising of
the Trust or any of its portfolios, 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 Trust or its affiliates by or on
behalf of LIFE COMPANY or its for use in the Trust's 1933
Act registration statement, the Trust Prospectus, sales
literature or advertising of the Trust, 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 administrative 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 therefor within
the time period specified herein and otherwise in accordance
with the procedures set forth in this Agreement; or
(vi) arise as a result of any unauthorized use of the trade names
of the Trust 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
17
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 Trust.
(c) LIFE COMPANY shall not be liable under this Section 11.1 with
respect to any action against an Indemnified Party unless the Trust shall have
notified LIFE COMPANY in writing promptly after the summons or other first legal
process giving information of the nature of the action shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but LIFE COMPANY shall be
relieved of liability under this Section 11.1 only to the extent the
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 the Indemnified Party
against whom such action is brought otherwise than on account of this Section
11.1. Except as otherwise provided herein, in case any such action is brought
against an Indemnified Party, LIFE COMPANY shall be entitled to participate, at
its own expense, in the defense of such action and also shall be entitled to
assume the defense thereof, (which shall include, without limitation, the
conduct of any ruling request and closing agreement or other settlement
proceeding with the IRS), with counsel approved by the Indemnified Party named
in the action, which approval shall not be unreasonably withheld. After notice
from LIFE COMPANY to such Indemnified Party of LIFE COMPANY'S election to assume
the defense thereof, the Indemnified Party will cooperate fully with LIFE
COMPANY and shall bear the fees and expenses of any additional counsel retained
by it, and LIFE COMPANY will not be liable to such Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred by such
Indemnified Party independently in connection with the defense thereof, other
than reasonable costs of investigation.
11.2 Of LIFE COMPANY by the Trust
(a) Except to the extent provided in Sections 11.2(b) and 11.2(c)
below, the Trust agrees to indemnify and hold harmless LIFE COMPANY, its
affiliates, and each person, if any, who controls LIFE COMPANY or its affiliates
within the meaning of Section 15 of the 1933 Act and each of their respective
directors and officers (collectively, the "Indemnified Parties" for purposes of
this Section 11.2) against any and all losses, claims, damages, costs, expenses,
liabilities (including amounts paid in settlement with the written consent of
the Trust) 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:
18
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
the Trust's 1933 Act registration statement, Trust (or
portfolio) Prospectus or sales literature or advertising of
the Trust (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 Trust
or its affiliates by or on behalf of LIFE COMPANY or its
affiliates for use in the Trust's 1933 Act registration
statement, the Trust (or portfolio) Prospectus, or in sales
literature or advertising or otherwise for use in connection
with the sale of Contracts or Shares (or any amendment or
supplement to any of the foregoing); or
(ii) arise out of or as a result of any other statements or
representations (other than statements or representations
contained in any Separate Account's 1933 Act registration
statement, any Variable Product Prospectus, sales literature
or advertising for the Contracts, or any amendment or
supplement to any of the foregoing, not supplied for use
therein by or on behalf of the Trust or its affiliates and
on which such persons have reasonably relied) or the
negligent, illegal or fraudulent conduct of the Trust or its
affiliates, in connection with the sale, marketing or
distribution of portfolio Shares; or
(iii) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
any Separate Account's 1933 Act registration statement, any
Variable Product 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 Trust (or
any portfolio therein) for use in any Separate Account's
1933 Act registration statement, any Variable
ProductProspectus, 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 Trust or any persons
under its control or any third party with which the Trust
has contractually delegate administrative responsibilities
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
Trust or its designated agent to inform LIFE COMPANY of the
19
correct net asset values per share for each Portfolio on a
timely basis sufficient to ensure the timely execution of
all purchase and redemption orders at the correct net asset
value per share, or any material breach of any
representation and/or warranty made by the Trust in this
Agreement or arise out of or result from any other material
breach of this Agreement by the Trust.
(v) Arise as a result of any unauthorized use of trade names of
the LIFE COMPANY to the extent such use is not required by
applicable law or regulation.
(b) This indemnification is in addition to any liability that the
Trust may otherwise have. The Trust shall not be liable under this Section 11.2
with respect to any losses, claims, damages, costs, expenses, liabilities or
actions to which an Indemnified Party would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance by that
Indemnified Party of its duties or by reason of such Indemnified Party's
reckless disregard of its obligations and duties (i) under this Agreement, or
(ii) to LIFE COMPANY, each Separate Account or Contract Owners.
(c) The Trust shall not be liable under this Section 11.2 with respect
to any action against an Indemnified Party unless the Indemnified Party shall
have notified the Trust in writing promptly after the summons or other first
legal process giving information of the nature of the action shall have been
served upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but the Trust 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 Trust of any such action shall not relieve the
Trust from any liability which it may have to the Indemnified Party against whom
such action is brought otherwise than on account of this Section 11.2. Except as
otherwise provided herein, in case any such action is brought against an
Indemnified Party, the Trust will be entitled to participate, at its own
expense, in the defense of such action and also shall be entitled to assume the
defense thereof (which shall include, without limitation, the conduct of any
ruling request and closing agreement or other settlement proceeding with the
IRS), with counsel approved by the Indemnified Party named in the action, which
approval shall not be unreasonably withheld. After notice from the Trust to such
Indemnified Party of the Trust's election to assume the defense thereof, the
Indemnified Party will cooperate fully with the Trust and shall bear the fees
and expenses of any additional counsel retained by it, and the Trust will not be
liable to such Indemnified Party under this Agreement for any legal or other
expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof, other than reasonable costs of
investigation.
11.3 Effect of Notice
Any notice given by the indemnifying party to an Indemnified Party
referred to in Sections 11.1 (c), 11.2(c) or 11.3(c) above of participation in
or control of any action by the indemnifying party will in no event be deemed to
be an admission by the indemnifying party of liability, culpability or
responsibility, and the indemnifying party will remain free to contest liability
with respect to the claim among the Parties or otherwise.
20
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 Trust.
All persons dealing with the Trust must look solely to the property of
the applicable Portfolio for the enforcement of any claims against the Trust as
neither the Board, Officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust.
Section 12. Foreign Tax Credits
The Trust agrees to make all reasonable efforts to report to the
Company concerning whether any series of the Trust qualifies for a foreign tax
credit pursuant to Section 853 of the Code in advance of such credit being
received by such series.
Section 13. 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 14. 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 15. 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 16. 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 17. Headings
The Table of Contents and headings used in this Agreement are for
purposes of
21
reference only and shall not limit or define the meaning of the provisions of
this Agreement.
Section 18. Confidentiality
Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of
customers of the other party and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not, without the express written consent of the affected
party, disclose, disseminate or utilize such names and addresses and other
confidential information until such time as it may come into the public domain.
Section 19. Trademarks and Trust Names
(a) Xxxxx Xxxxx Management, the sponsor of the Trust and its
affiliates, own all right, title and interest in and to the names, trademarks
and service marks "Xxxxx Xxxxx" and "Xxxxx Xxxxx Variable Trust" such other
tradenames, trademarks and service marks as may be identified to LIFE COMPANY
from time to time (the "Xxxxx Xxxxx licensed marks"). Upon termination of this
Agreement LIFE COMPANY and its affiliates shall cease to use the Xxxxx Xxxxx
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 Trust and/or its advisers from time to
time (the "Life Company licensed marks"). Upon termination of this Agreement the
Trust, the advisers and their affiliates shall cease to use the Life Company
licensed marks, except to the extent required by law or regulation.
Section 20. 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.
Section 21. Limitation of Liability
A copy of the Agreement and Declaration of Trust of the Trust is on
file with the Secretary of State of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of the
Trustees of the Trust as Trustees and not individually and that the obligations
of or arising out of this instrument, including without limitation Article VII,
are not binding upon any of the Trustees or shareholders individually but
binding only upon the assets and property of the Trust.
22
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.
XXXXX XXXXX VARIABLE TRUST
Attest: By: /s/ X. X. X'Xxxxxx
----------------------------- ------------------------------------
Name: Name: X.X. X'Xxxxxx
-------------------------------
Title: Title: Treasurer
------------------------------
GE Capital Life Assurance Company of New
York on behalf of itself and its
separate accounts
Attest: By: /s/ XXXXXXXX X. STIFF
----------------------------- ------------------------------------
Name: Name: XXXXXXXX X. STIFF
-------------------------------
Title: Title: SVP
------------------------------
23
SCHEDULE A
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
Xxxxx Xxxxx Variable Trust - Xxxxx Xxxxx VT Income Fund of Boston
Xxxxx Xxxxx Variable Trust - Xxxxx Xxxxx VT Information Age Fund
Xxxxx Xxxxx Variable Trust - Xxxxx Xxxxx VT Floating - Rate Income Fund
Xxxxx Xxxxx Variable Trust - Xxxxx Xxxxx VT Worldwide Health Series Fund
SEPARATE ACCOUNTS UTILIZING THE FUNDS
GE Capital Life Separate Account II
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
Flexible Premium Deferred Variable Annuity Contact Form NY 1155
(File No. 333-47016)
Flexible Premium Deferred Variable Annuity Contact Form NY 1157
(File No. 333-97085)
25
