PARTICIPATION AGREEMENT
BY AND AMONG
GE LIFE AND ANNUITY ASSURANCE COMPANY
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS
AND
BANC OF AMERICA CAPITAL MANAGEMENT, LLC
AND
NATIONS SEPARATE ACCOUNT TRUST
THIS AGREEMENT, made and entered into as of May 1, 2003 (the
"Agreement"), by and among Nations Separate Account Trust, a Delaware business
trust (the "Trust"), on behalf of the Portfolios listed on Schedule A, Banc of
America Capital Management, LLC, a North Carolina limited liability company (the
"Adviser"), and GE Life and Annuity Assurance Company, a Virginia life insurance
company (the "Life Company"), on behalf of itself and each of its segregated
asset accounts listed in Schedule A hereto, as the parties hereto may amend from
time to time (each, an "Account," and collectively, the "Accounts").
WITNESSETH THAT:
WHEREAS, the 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 and
the Adviser ("Participating Insurance Companies");
WHEREAS, the Trust currently consists of eleven 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 has received an order (the "Order") from the SEC to
permit Participating Insurance Companies and variable annuity and variable life
insurance separate accounts exemptions from the provisions of sections 9(a),
13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit Shares of the 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
Accounts, each of which may be divided into two or more subaccounts
("Subaccounts"; reference herein to an "Account" includes reference to each
Subaccount thereof to the extent the context requires);
WHEREAS, Life Company will serve as the depositor of the Accounts, each
of which is registered as a unit investment trust under the 1940 Act (or exempt
therefrom), and the security interests deemed to be issued by the Accounts under
the Contracts will be registered as securities under the 1933 Act (or exempt
therefrom);
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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 by the Accounts at the net
asset value next computed after the Trust's receipt of a purchase or redemption
order, in accordance with the Trust's then current prospectus and subject to the
terms and conditions of this Agreement. The agents, officers or Board of
Trustees 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.
1.3 No Sales to the General Public.
The Trust represents that Shares are and will continue to be only
available to Separate Accounts of Participating Insurance Companies, persons
described in Section 1.817-5(f)(3) of the Treasury Regulations, and other
persons described in IRS revenue rulings and procedures as permitted
shareholders for purposes of the look-through rules of Section 1.817-5(f) of the
Treasury Regulations. Life Company agrees that shares of the Portfolios will be
used by Life Company only for the purposes of funding the Contracts and Accounts
listed in Schedule A, as amended from time to time.
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 7:00 p.m. Eastern Time on each Business Day. As used herein,
"Business Day" shall mean any day on which (i) the New York Stock Exchange is
open for regular trading, and (ii) the 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 7:00 p.m. Eastern Time.
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(b) Life Company will place orders to purchase or redeem Shares with
the Trust or its designated agent, in writing or electronically by 8:30 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 or Trust, as
applicable, shall be entitled to an adjustment to the number of Shares purchased
or redeemed to reflect the correct net asset value per Share. Any material error
in the calculation or reporting of net asset value per Share, dividend or
capital gain information shall be reported promptly upon discovery to Life
Company.
2.2 Payments
(a) Life Company shall pay for Shares of each Portfolio on the same day
that it notifies the 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. Such payment may be delayed if, for example, the Fund's cash
position so requires or if extraordinary market conditions exist, but in no
event shall payment be delayed for a greater period than is permitted by the
0000 Xxx.
2.3 Applicable Price
(a) Share purchase payments and redemption orders that result from
purchase payments, premium payments, surrenders and other transactions under
Contracts (collectively, "Contract transactions") and that Life Company receives
prior to the close of regular trading on any 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 (i) such
orders are received by Life Company in good order prior to the close of trading
on any Business Day; and (ii) that the Trust receives written 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, its designated agent of the order therefore, and
such orders will be irrevocable.
2.4 Dividends and Distributions
The Trust or its designated agent will furnish notice by telephone
(followed by written confirmation) on or prior to the payment date to Life
Company of any income dividends or capital gain distributions payable on the
Shares of any Portfolio. Life Company hereby elects to reinvest all dividends
and capital gains distributions in additional Shares of the corresponding
Portfolio at the ex-dividend date net
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asset values until Life Company otherwise notifies the Trust or its designated
agent in writing, it being agreed by the Parties that the ex-dividend date and
the payment date with respect to any dividend or distribution will be the same
Business Day.
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 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.
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 Account as a unit investment trust under the 1940 Act and
registering units of interest under the Contracts under the 1933 Act and keeping
such registrations current and effective; including, without limitation, the
preparation and filing with the SEC of Forms N-SAR and Rule 24f-2 Notices with
respect to each Account and its units of interest and payment of all applicable
registration or filing fees with respect to any of the foregoing.
3.3 Distribution Expenses
Life Company will bear the expenses of distribution. These expenses
would include by way of illustration, but are not limited to, the costs of
distributing to Contract owners, annuitants, insureds or participants (as
appropriate) under the Contracts (collectively, "Participants") the following
documents, whether they relate to the Account or the Trust: prospectuses
(including any supplements thereto), 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
or its agents) 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.
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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
Shares. In addition, the Trust will bear the cost of printing and delivering the
Trust Prospectus to existing Participants who have directed Life Company to
purchase Shares of the Trust, and will bear the proportionate cost of preparing
and printing any supplements or amendments to the Trust Prospectus to the extent
that such supplements or amendments were not required by Life Company. As
mutually agreed, the Trust or the Adviser shall either (a) provide Life Company
with as many copies of the Trust's current prospectus, annual report,
semi-annual report and other shareholder communications, including any
amendments or supplements to any of the foregoing, as Life Company shall
reasonably request; or (b) provide Life Company in electronic format (PDF or
other agreed upon format) of such documents in a form suitable for printing) and
as stated in Section 3.4(c) below.
(b) Life Company will bear the costs of preparing, filing with the SEC
and printing each Account's prospectus, statement of additional information and
any amendments or supplements thereto (collectively, the "Account Prospectus"),
any periodic reports to Participants, voting instruction solicitation material
and the Trust prospectus, except as provided in paragraph (a) above, and other
Participant communications to the extent required by federal or state law or as
deemed appropriate by Life Company.
(c) Life Company will, to the extent required by law, print in quantity
and deliver to existing Participants the documents described in Section 3.4(b)
above and will deliver to such Participants the prospectuses as provided by the
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,
PDF, 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, in a timely manner, combined or coordinated prospectuses or
other materials of the Trust and the Accounts.
Section 4. Legal Compliance
4.1 Tax Laws
(a) The Trust shall (i) qualify each Portfolio as a regulated
investment company ("RIC") under Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code"), and the Treasury Regulations promulgated
thereunder, and (ii) maintain such qualification for each Portfolio, (iii) cause
each Portfolio to comply with the diversification requirements set forth in
Section 817(h) of the Code and Treasury Regulations promulgated thereunder (the
"Diversification Requirements"); and (iv) cause each Portfolio to maintain such
compliance. The Trust will notify Life Company immediately upon the Trust's
knowledge that it has failed to satisfy its obligations under this Section
4.1(a).
(b) Life Company shall (i) qualify each Contract as a "variable annuity
contract" or "life insurance contract" for purposes of Section 817(h) of the
Code and Treasury Regulations promulgated thereunder, (ii) maintain such
qualification for each Contract, (iii) qualify each Account as a "segregated
asset
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account" for purposes of Section 817(h) of the Code and the Treasury Regulations
promulgated thereunder, (iv) maintain such qualification for each Account, (v)
ensure that access to each Account is and will continue to be only available
through the purchase of a "variable contract" within the meaning of Section
1.8175(t)(2)(B) of the Treasury Regulations, (vi) only purchase Shares on behalf
of an Account or its general account, within the meaning of Section
1.817-5(f)(3)(i) of the Treasury Regulations, provided that it otherwise
satisfies the requirements of said section of the Treasury Regulations.
(c) Life Company represents and warrants that each Account is a
"segregated asset account" and that interests in each Account are offered
exclusively through the purchase of or transfer into a "variable contract,"
within the meaning of such terms under Section 817 of the Code and the
regulations thereunder. Life Company 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 each
Account as a segregated asset account under all applicable laws and regulations,
and (iii) the Contracts comply in all material respects with all applicable
federal and state laws and regulations.
(b) The Trust represents and warrants that it is a business trust duly
organized, validly existing, and in good standing under the laws of the State of
Delaware and has full corporate power, authority, and legal right to execute,
deliver, and perform its duties and comply with its obligations under this
Agreement. Notwithstanding the foregoing, the 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) The Adviser represents that it is and warrants that it shall remain
duly registered as an investment adviser under all applicable federal and state
securities laws and agrees that it shall perform its obligations to the Trust in
accordance in all material respects with such laws.
(d) Life Company acknowledges and agrees that it is the responsibility
of Life Company and other Participating Insurance Companies to determine
investment restrictions under state insurance law applicable to any Portfolio,
and that the Trust and its Portfolios 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 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 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.
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4.3 Securities Laws
(a) Life Company represents and warrants that (i) interests in each
Account pursuant to the Contracts will be registered under the 1933 Act to the
extent required by the 1933 Act, (ii) the Contracts will be duly authorized for
issuance and sold in compliance with all applicable federal and state laws,
including, without limitation, the 1933 Act, the 1934 Act, the 1940 Act and
applicable state law, (iii) each Account is and will remain registered under the
1940 Act, to the extent required by the 1940 Act, (iv) each Account does and
will comply in all material respects with the requirements of the 1940 Act and
the rules thereunder, to the extent required, (v) each Account's 1933 Act
registration statement relating to the Contracts, together with any amendments
thereto, will at all times comply in all material respects with the requirements
of the 1933 Act and the rules thereunder, (vi) Life Company will amend the
registration statement for its Contracts under the 1933 Act and for its Accounts
under the 1940 Act from time to time as required in order to effect the
continuous offering of its Contracts or as may otherwise be required by
applicable law, and (vii) each Account Prospectus will at all times comply in
all material respects with the requirements of the 1933 Act and the rules
thereunder.
(b) The Trust represents and warrants that (i) Shares sold pursuant to
this Agreement will be registered under the 1933 Act to the extent required by
the 1933 Act and will be duly authorized for issuance and sold in compliance
with Delaware law, (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 trustees, 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.
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(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 Account Prospectus, (ii)
any request by the SEC for any amendment to such registration statement or
Account Prospectus that may affect the offering of Shares of any Portfolio,
(iii) the initiation of any proceedings for that purpose or for any other
purpose relating to the registration or offering of each Account's interests
pursuant to the Contracts, or (iv) any other action or circumstances that may
prevent the lawful offer or sale of said interests in any state or jurisdiction,
including, without limitation, any circumstances in which said interests are not
registered and are not, in all material respects, issued and sold in accordance
with applicable state and federal law. Life Company will make every reasonable
effort to prevent the issuance of any such stop order, cease and desist order or
similar order and, if any such order is issued, to obtain the lifting thereof at
the earliest possible time.
4.5 Documents Provided by Life Company; Information About the Trust
(a) Life Company will provide to the Trust or its designated agent at
least one (1) complete copy of all SEC registration statements, Account
Prospectuses, reports, any preliminary and final voting instruction solicitation
material, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to each Account or the Contracts,
within five Business Days preceding the filing of such document with the SEC or
other regulatory authorities, provided such filing names or directly effects the
Trust or the Adviser.
(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 by Life Company; or (iv) in
sales literature or other promotional material approved by the Trust for use by
Life Company, except as required by legal process or regulatory authorities or
except with the express written permission of the Trust.
(d) For the purposes of this Section 4.5, the phrase "sales literature
or other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, 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 materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials.
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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, within a reasonable period of time following
with 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 Participants who have allocated any Contract value 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 Participants.
(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 Account, or the Contracts other than (i) the information or
representations contained in the registration statement, including each Account
Prospectus contained therein, relating to the Contracts, as such registration
statement and Account Prospectus may be amended from time to time; (ii) in
published reports for the 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 as
required by legal process or regulatory authorities or 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 Participants) ("broker only materials") is so used, and
neither Life Company, nor any of its respective affiliates shall be liable for
any losses, damages or expenses relating to the improper use of such broker only
materials.
(f) For purposes of this Section 4.6, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, 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.
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Section 5. Mixed and Shared Funding
Life Company acknowledges that the Trust requested and received an
order from the SEC granting relief from various provisions of the 1940 Act and
the rules thereunder to the extent necessary to permit 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 and certain other persons. 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 sixty (60)
days advance written notice to the other parties; or
(b) at the option of the Trust or Life Company if shares of a Portfolio
are not reasonably available to meet the requirements of the Contracts as
determined by the Trust or 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 the
Trust or Life Company to the other party; or
(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 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 the 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 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 the Life Company; or
(f) at the option of the Life Company if the Fund has failed to satisfy
its obligations under Section 4.1(a); or
(g) at the option of the Trust if the Life Company has failed to
satisfy its obligations under Section 4.1(b); or
11
(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 the 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 Adviser and/or its affiliated companies has suffered a material adverse
change in its business operations, financial condition or prospects since the
date of this Agreement or is the subject of material adverse publicity; or
(k) at the option of either party upon a determination by a majority of
the Trust's Board of Trustees, 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 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 Trust shares in accordance with the
terms of the Contracts for which those Trust 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 any proposed vote to replace
the Trust'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
Participants), such notice effective immediately upon receipt of written notice,
it being understood that a lack of Participating Insurance Companies interest in
the applicable Portfolio may be grounds for a suspension or termination as to
such Portfolio;
(o) at any time upon the written agreement of the Parties.
6.2 Notice Requirement for Termination
No termination of this Agreement will be effective unless and until the
party terminating this Agreement gives prior written notice to the other party
to this Agreement of its intent to terminate, and such notice shall set forth
the basis for such termination. Furthermore:
(a) in the event that any termination is based upon the provisions of
Section 6.1(a) hereof, such prior written notice shall be given at least sixty
(60) days in advance of the effective date of termination unless the Parties
agree to a shorter time 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;
12
(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.
6.3 Trust To Remain Available
Notwithstanding any termination of this Agreement, and except as
provided for in 6.1(b) or as by mutual consent to the contrary, 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 Contracts.
Notwithstanding any termination of this Agreement, Life Company agrees to
distribute to holders of Existing Contracts all materials required by law to be
distributed to such holders (including, without limitation, prospectuses,
statements of additional information, proxy materials and periodic reports). The
parties agree that this Section 6.3 will not apply to any terminations under the
conditions of the Order and the effect of such terminations will be governed by
the Order.
6.4 Survival of Warranties and Indemnifications
All warranties and indemnifications will survive the termination of
this Agreement.
Section 7. Parties To Cooperate Respecting Termination
Subject to the provisions of Section 6.3 hereof, the Parties hereto
agree to cooperate and give reasonable assistance to one another in taking all
necessary and appropriate steps for the purpose of ensuring that an Account owns
no Shares of the applicable Portfolio after the Final Termination Date with
respect thereto, or, in the case of a termination pursuant to Section 6.1(a),
the termination date specified in the notice of termination. Such steps may
include combining the affected Account with another Account, substituting other
mutual fund shares for those of the affected Portfolio, or otherwise terminating
participation by the Contracts in such Portfolio.
Section 8. Assignment
This Agreement may not be assigned by any party, except with the prior
written consent of all the Parties.
13
Section 9. Notices
Notices and communications required or permitted by any provision of
this agreement hereof will be given by means mutually acceptable to the Parties
concerned. When otherwise agreed each notice or communication required or
permitted by this Agreement will be given to the following persons at the
following addresses and facsimile numbers, or such other persons, addresses or
facsimile numbers as the party receiving such notices or communications may
subsequently direct in writing:
If to Life Company:
GE Life and Annuity Assurance Company
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, XX 00000
Attn: General Counsel
If to the Trust:
Nations Separate Account Trust
NCI - 000-00-00
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Xx.
Corporate Secretary
Section 10. Voting Procedures
Subject to the cost allocation procedures set forth in Section 3
hereof, Life Company will distribute all proxy material furnished by the Trust
to Participants to whom pass-through voting privileges are required to be
extended and will solicit voting instructions from Participants. Life Company
will vote Shares in accordance with timely instructions received from
Participants. Life Company will vote Shares that are (a) not attributable to
Participants to whom pass-through voting privileges are extended, or (b)
attributable to Participants, but for which no timely instructions have been
received, in the same proportion as Shares for which said instructions have been
received from Participants, so long as and to the extent that the 1940 Act
requires pass through voting privileges for Participants. Neither Life Company
nor any of its affiliates will in any way recommend action in connection with or
oppose or interfere with the solicitation of proxies for the Shares held for
such Participants. Life Company reserves the right to vote shares held in any
Account in its own right, to the extent permitted by law. Life Company shall be
responsible for assuring that each of its Accounts holding Shares calculates
voting privileges in the manner required by the Order obtained by the Trust. The
Trust will notify Life Company of any amendments to the Order it has obtained.
14
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 trustees,
officers, agents or employees (collectively, the "Indemnified Parties" for
purposes of this Section 11.1) against any and all losses, claims, damages,
costs, expenses, liabilities (including amounts paid in settlement with the
written consent of Life Company) or actions in respect thereof (including, to
the extent reasonable, legal and other expenses), to which the Indemnified
Parties may become subject under any statute, regulation, at common law or
otherwise insofar as such losses, claims, damages, costs, expenses, liabilities
or actions:
(i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
any Account's 1933 Act registration statement, any Account
Prospectus, the Contracts, or sales literature or
advertising for the Contracts (or any amendment or
supplement to any of the foregoing), or arise out of or are
based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, that this agreement to indemnify shall not apply
as to any Indemnified Party if such statement or omission or
such alleged statement or omission was made in reliance upon
and in conformity with written information furnished to Life
Company by or on behalf of the Trust for use in any
Account's 1933 Act registration statement, any Account
Prospectus, the Contracts, or sales literature or
advertising (or any amendment or supplement to any of the
foregoing); or
(ii) arise out of or as a result of any other statements or
representations (other than statements or representations
contained in the 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, 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 wrongful 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
Prospectus, sales literature or advertising of the Trust, 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
15
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 administration responsibilities
for the Contracts to perform the obligations, provide the
services and furnish the materials required under the terms
of this Agreement, or any material breach of any
representation and/or warranty made by Life Company or
persons under its control in this Agreement or arise out of
or result from any other material breach of this Agreement
by Life Company or persons under its control; or
(v) arise as a result of failure to transmit a request for
purchase or redemption of Shares or payment therefore within
the time period specified herein and otherwise in accordance
with the procedures set forth in this Agreement; or
(vi) arise as a result of any unauthorized use of the trade names
of the 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 negligence in the performance by that
Indemnified Party of its duties or by reason of that Indemnified Party's
reckless disregard of obligations or duties (i) under this Agreement, or (ii) to
the 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 within a reasonable period of time 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 in the absence 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
reasonably satisfactory to 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.
16
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:
(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,
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 Prospectus, or in sales literature
or advertising or otherwise for use in connection with
the sale of Contracts or Shares (or any amendment or
supplement to any of the foregoing); or
(ii) arise out of or as a result of any other statements or
representations (other than statements or
representations contained in any Account's 1933 Act
registration statement, any Account Prospectus, sales
literature or advertising for the Contracts, or any
amendment or supplement to any of the foregoing, not
supplied for use therein by or on behalf of the Trust
or its affiliates and on which such persons have
reasonably relied) or the wrongful conduct of the Trust
or its affiliates, in connection with the sale,
marketing or distribution of Trust Shares; or
(iii) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in any Account's 1933 Act registration statement, any
Account Prospectus, sales literature or advertising
covering the Contracts, or any amendment or supplement
to any of the foregoing, or the omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, if such statement or omission
was made in reliance upon and in conformity with
written information furnished to Life Company, or its
affiliates by or on behalf of the Trust for use in any
Account's 1933 Act registration statement, any Account
Prospectus, sales literature or advertising covering
the Contracts, or any amendment or supplement to any of
the foregoing; or
17
(iv) arise as a result of any failure by the Trust to
perform the obligations, provide the services and
furnish the materials required of it under the terms of
this Agreement or any material breach of any
representation and/or warranty made in this Agreement
or arising out of or resulting from any other material
breach of this Agreement by the Trust.
(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 negligence in the performance by that
Indemnified Party of its duties or by reason of such Indemnified Party's
reckless disregard of its obligations and duties (i) under this Agreement, or
(ii) to Life Company, each Account or Participants.
(c) The 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 within a reasonable period of time
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 in the absence of 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 reasonably
satisfactory to the Indemnified Party named in the action. After notice from the
Trust to such Indemnified Party of the 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.
11.2 Of Life Company by the Adviser
(a) Except to the extent provided in Sections 11.2(b) and 11.2(c)
below, the Adviser 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,
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 Adviser, the
Trust or their affiliates by or on behalf of Life
Company or its affiliates for use in the Trust's 1933
Act registration statement, the Trust Prospectus, or in
sales literature or advertising or otherwise for use in
connection with the sale of Contracts or Shares (or any
amendment or supplement to any of the foregoing); or
(ii) arise out of or as a result of any other statements or
representations (other than statements or
representations contained in any Account's 1933 Act
registration statement, any Account Prospectus, sales
literature or advertising for the Contracts, or any
amendment or supplement to any of the foregoing, not
supplied for use therein by or on behalf of the
Adviser, the Trust or their affiliates and on which
such persons have reasonably relied) or the wrongful
conduct of the Adviser, the Trust, or their affiliates,
in connection with the sale, marketing or distribution
of Trust Shares; or
(iii) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained
in any Account's 1933 Act registration statement, any
Account Prospectus, sales literature or advertising
covering the Contracts, or any amendment or supplement
to any of the foregoing, or the omission or alleged
omission to state therein a material fact required to
be stated therein or necessary to make the statements
therein not misleading, if such statement or omission
was made in reliance upon and in conformity with
written information furnished to Life Company, or its
affiliates by or on behalf of the Trust for use in any
Account's 1933 Act registration statement, any Account
Prospectus, sales literature or advertising covering
the Contracts, or any amendment or supplement to any of
the foregoing; or
(iv) arise as a result of any failure by the Adviser or the
Trust to perform the obligations, provide the services
and furnish the materials required of it under the
terms of this Agreement or any material breach of any
representation and/or warranty made by the Adviser or
the Trust in this Agreement or arise out of or result
from any other material breach of this Agreement by the
Adviser.
(b) This indemnification is in addition to any liability that the
Adviser may otherwise have. The Adviser 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 negligence in the performance by that
Indemnified Party of its duties or by reason
19
of such Indemnified Party's reckless disregard of its obligations and duties (i)
under this Agreement, or (ii) to Life Company, each Account or Participants.
(c) The Adviser 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 Adviser in writing within a reasonable period of time
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 Adviser shall be relieved of liability under this Section 11.3
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 Adviser of any such
action shall not relieve the Adviser from any liability which it may have to the
Indemnified Party in the absence of Section 11.3. Except as otherwise provided
herein, in case any such action is brought against an Indemnified Party, the
Adviser 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 reasonably
satisfactory to the Indemnified Party named in the action. After notice from the
Adviser to such Indemnified Party of the election to assume the defense thereof,
the Indemnified Party will cooperate fully with the Adviser and shall bear the
fees and expenses of any additional counsel retained by it, and the Adviser will
not be liable to such Indemnified Party under this Agreement for any legal or
other expenses subsequently incurred by such Indemnified Party independently in
connection with the defense thereof, other than reasonable costs of
investigation.
11.4 Effect of Notice
Any notice given by the indemnifying party to an Indemnified Party
referred to in Sections 11.1(c), 11.2(c) or 11.3(c) above of participation in or
control of any action by the indemnifying party will in no event be deemed to be
an admission by the indemnifying party of liability, culpability or
responsibility, and the indemnifying party will remain free to contest liability
with respect to the claim among the Parties or otherwise.
11.5 Successors
A successor by law of any party shall be entitled to the benefits of
the indemnification contained in this Section 11.
11.6 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.
11.7 Force of Nature
The Trust, the Adviser and/or the Life Company shall not be
responsible or liable for any failure or delay in the performance of their
obligations under this Agreement, arising out of or caused, directly or
indirectly, by circumstances beyond their control, including without limitation,
acts of God; earthquakes; fires; floods; wars; civil or military disturbances;
sabotage; epidemics; riots; interruptions; loss or malfunctions of utilities;
transportation; computer (hardware or software) or communications service;
accidents; labor disputes; acts of civil or military authority; governmental
actions; or inability to obtain labor, material, equipment or transportation.
20
Section 12. Applicable Law
(a) This Agreement will be construed and the provisions hereof
interpreted under and in accordance with Delaware law, without regard for that
state's principles of conflict of laws.
(b) This Agreement shall be subject to the provisions of the
1933 Act, 1934 and 1940 acts, and the rules and regulations and rulings
thereunder, including such exemptions from those statutes, rules and regulations
as the SEC may grant (including, but not limited to, the Order) and the terms
hereof shall be interpreted and construed in accordance therewith.
Section 13. Execution in Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together with constitutes one and the same
instrument.
Section 14. Severability
If any provision of this Agreement is held or made invalid by a
court decision, statute, rule or otherwise, the remainder of this Agreement will
not be affected thereby.
Section 15. Rights Cumulative
The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, that the Parties are entitled to under federal and state
laws.
Section 16. Headings
The Table of Contents and headings used in this Agreement are for
purposes of reference only and shall not limit or define the meaning of the
provisions of this Agreement.
Section 17. Confidentiality
Subject to the requirements of legal process and regulatory
authority, each party hereto shall treat as confidential the names and addresses
of customers of the other party and all information 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.
Notwithstanding the foregoing, the Parties acknowledge and agree
that their rights and obligations under this Agreement are subject to all
applicable federal and state privacy laws, including Title V of the
Xxxxx-Xxxxx-Xxxxxx Act and any implementing rules, regulations and authoritative
guidelines of any applicable regulatory agency thereunder, and any other privacy
laws to which the Parties may be subject. The Parties further agree that no
party shall be obligated to take any action under this Agreement which is
prohibited under any such law, rule regulation or authoritative guideline of any
applicable regulatory agency, and that they shall amend this Agreement to the
extent necessary to comply with such federal and state privacy laws, rules,
regulations or authoritative guidelines of any applicable regulatory agency.
21
Section 18. Trademarks and Trust Names
(a) The Adviser and its affiliates, own all right, title and
interest in and to the names, trademarks and service marks and such other trade
names, trademarks and service marks as may be identified to the Life Company
from time to time (the " licensed marks"). Upon termination of this Agreement
Life Company and its affiliates shall cease to use the licensed marks, except to
the extent required by law or regulation.
(b) GE Life and Annuity Assurance Company and its affiliates, own
all right, title and interest in and to the trade names, trademarks and service
marks as may be identified to the Adviser and/or the Trust from time to time
(the "Life Company licensed marks"). Upon termination of this Agreement the
Trust, the Adviser and their affiliates shall cease to use the Life Company
licensed marks, except to the extent required by law or regulation.
Section 19. Parties to Cooperate
Each party to this Agreement will cooperate with each other party
and all appropriate governmental authorities (including, without limitation, the
SEC, the NASD and state insurance regulators) and will permit each other and
such authorities reasonable access to its books and records (including copies
thereof) in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
Section 20. Miscellaneous
(a) The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising, directly or indirectly, under this Agreement,
of any and every nature whatsoever, shall be satisfied solely out of the assets
of the trust and that no Trustee, officer, agent or holder of shares of
beneficial interest of the trust shall be personally liable for any such
liabilities. Obligations and liabilities with respect to a Portfolio may be
satisfied from the assets belonging to that Portfolio but no other assets.
(b) The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed in their names and on their behalf by and through their duly authorized
officers signing below.
NATIONS SEPARATE ACCOUNT TRUST ON BEHALF OF
THE PORTFOLIOS LISTED ON SCHEDULE A
Attest: _________________ By: ________________________
Name: _________________ Name: ________________________
Title: _________________ Title: ________________________
BANC OF AMERICA CAPITAL MANAGEMENT, LLC
Attest: _________________ By: ________________________
Name: _________________ Name: ________________________
Title: _________________ Title: ________________________
GE LIFE AND ANNUITY ASSURANCE COMPANY
Attest: _________________ By: ________________________
Name: Xxxxxxx Xxxxxx Name: Xxxxxxxx X. Stiff
Title: Vice President and Title: Senior Vice President
Associate General Counsel
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SCHEDULE A
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
Nations Separate Account Trust
Nations Xxxxxxx International Opportunity Portfolio
Nations Xxxxxxx Growth Portfolio
SEPARATE ACCOUNTS UTILIZING THE TRUSTS
GE Life & Annuity Separate Account II
GE Life & Annuity Separate Account III
GE Life & Annuity Separate Account 4
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