PARTICIPATION AGREEMENT
among
XXXX XXXXX PARTNERS VARIABLE EQUITY TRUST,
XXXX XXXXX PARTNERS VARIABLE INCOME TRUST,
XXXX XXXXX INVESTOR SERVICES, LLC
and
GENWORTH LIFE AND ANNUITY INSURANCE COMPANY
THIS AGREEMENT, made and entered into this 28 day of April, 2007 by and
among Genworth Life and Annuity Insurance Company, a Virginia corporation (the
"Company"), on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A hereto as may be amended from time to time
(each such account hereinafter referred to as the "Account"), and Xxxx Xxxxx
Partners Variable Equity Trust, a Maryland corporation, and Xxxx Xxxxx Partners
Variable Income Trust, a Maryland corporation, (each a "Fund", collectively the
"Funds"), and Xxxx Xxxxx Investor Services, LLC, a Maryland limited liability
company (the "Distributor").
WHEREAS, this agreement supercedes the Participation Agreement dated
October 12, 1998, as amended April 29, 2005 and Participation Agreement dated
May 1, 2004;
WHEREAS, the Fund engages in business as an open-end management investment
company and is available to act as (i) the investment vehicle for certain
qualified pension and retirement plans ("Qualified Plans"), and (ii) the
investment vehicle for separate accounts established for variable life
insurance policies and variable annuity contracts (collectively, the
"Contracts") to be offered by insurance companies that have entered into
participation agreements with the Fund and the Distributor (each, a
"Participating Insurance Company" and collectively, the "Participating
Insurance Companies");
WHEREAS, the beneficial interests in the Fund are divided into several
series of shares, (each designated a "Portfolio") and, in certain cases classes
of shares, represent the interest in a particular managed portfolio of
securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities and Exchange
Commission (the "SEC"), granting the Participating Insurance Companies and
variable annuity and variable insurance separate accounts exemptions from the
provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment Company
Act of 1940, as amended, (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the Fund
to be sold to and held by variable annuity and variable life insurance separate
accounts of both affiliated and unaffiliated life insurance companies (the
"Mixed and Shared Funding Exemptive Order");
WHEREAS, the Fund is registered as an open-end management investment company
under the 1940 Act and its shares are registered under the Securities Act of
1933, as amended (the "1933 Act");
WHEREAS, the Distributor is duly registered as a broker-dealer under the
Securities Exchange Act of 1934 (the "Exchange Act") and any applicable state
securities law;
WHEREAS, the Distributor is a distributor of shares of the Portfolios of the
Fund;
WHEREAS, the Company have registered or will register certain Contracts
under the 1933 Act, or such Contracts are or will be exempt from registration
thereunder;
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, established by resolution of the Board of Directors of the Company to
set aside and invest assets attributable to one or more Contracts;
WHEREAS, the Account is or will be registered as an investment company under
the 1940 Act, or the Account is or will be exempt from registration under the
1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Portfolios on behalf
of each Account to fund certain of the aforesaid Contracts,
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NOW, THEREFORE, in consideration of their mutual promises the Company, the
Fund and the Distributor agree as follows:
ARTICLE I.
Sale of Fund Shares
1.1 The Fund agrees to sell to the Company those shares of the Fund which
each Account orders, executing such orders on a daily basis at the net asset
value next computed after receipt by the Fund or its designee of the order for
Fund shares. For purposes of this Section 1.1, the Company shall be the
designee of the Fund for receipt of such orders from each Account and receipt
by such designee shall constitute receipt by the Fund, provided that: (i) the
orders are received by the Company (or their designee) in good order prior to
the time the net asset value of each Portfolio is priced in accordance with its
Prospectus/1/ (generally at the close of regular trading on the New York Stock
Exchange (the "NYSE") at 4:00 p.m. Eastern Time), and (ii) the Fund receives
notice of such order by 10:00 a.m. Eastern Time on the next following "Business
Day." "Business Day" shall mean any day on which the NYSE is open for regular
trading and on which the Fund calculates its net asset value pursuant to the
rules of the SEC.
1.2 The Fund agrees to make its shares available indefinitely for purchase
at the applicable net asset value per share by the Company and its Accounts on
those days on which the Fund calculates its net asset value pursuant to rules
of the SEC and the Fund shall use its best efforts to calculate such net asset
value on each day which the NYSE is open for trading. Notwithstanding the
foregoing, the Board of Directors of the Fund (the "Board") may refuse to sell
shares of any Portfolio to any person, or suspend or terminate the offering of
shares of any Portfolio if such action is required by law or by any regulatory
authority having jurisdiction or is, in the sole discretion of the Board acting
in good faith and in light of
--------
/1/ The term "Prospectus," as used herein, refers to the prospectus and
related statement of additional information (the "Statement of Additional
Information") incorporated therein by reference (each as amended or
supplemented) on file with the SEC at the time in question.
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their fiduciary duties under federal and any applicable state laws, necessary
in the best interest of the shareholders of such Portfolio.
1.3 The Fund and the Distributor agree that shares of the Fund will be sold
only to Participating Insurance Companies and their separate accounts and, in
accordance with the terms of the Mixed and Shared Funding Exemptive Order,
certain Qualified Plans. No shares of any Portfolio will be sold to the general
public.
1.4 The Fund will not sell Fund shares to any insurance company or separate
account unless an agreement containing provisions substantially the same as
Articles I, III, V, VI and Section 2.5 of Article II of this Agreement is in
effect to govern such sales.
1.5 The Fund agrees to redeem for cash, on the Company's request, any full
or fractional shares of the Fund held by the Company, executing such requests
on a daily basis at the net asset value next computed after receipt by the Fund
or its designee of the request for redemption. For purposes of this
Section 1.5, the Company shall be the designee of the Fund for receipt of
requests for redemption from the Account and receipt by such designee shall
constitute receipt by the Fund, provided that: (i) the orders are received by
the Company (or its designee) in good order prior to the time the net asset
value of each Portfolio is priced in accordance with its Prospectus (generally
at the close of regular trading on the NYSE at 4:00 p.m. Eastern Time), and
(ii) provided that the Fund receives notice of such request for redemption by
10:00 a.m. Eastern Time on the next following "Business Day." The Fund may
impose redemption fees, as described in the Prospectus.
1.6 The Company agrees to purchase and redeem the shares of each Portfolio
offered by the then current Prospectus of the Fund and in accordance with the
provisions of such Prospectus. The Company agrees that all net amounts
available under the Contracts with the form number(s) which are listed on
Schedule A attached hereto and incorporated herein by this reference, as such
Schedule A may be amended from time to time hereafter by mutual written
agreement of all the parties hereto, shall be invested in the Fund, in such
other Funds selected by the Company or in the Company's general account.
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The Company agrees to comply with the terms of the Rule 12b-1 Plan described in
Section 2.6 hereof. The Company agrees to comply with the provisions of Rule
22c-2 under the 1940 Act as applicable to the Fund (including reporting
procedures adopted to comply with the Rule).
1.7 The Company shall pay for Fund shares on the next "Business Day" after
an order to purchase Fund shares is made in accordance with the provisions of
Section 1.1 hereof. Payment shall be in federal funds transmitted by wire. For
purpose of Sections 2.9 and 2.10, upon receipt by the Fund of the federal funds
so wired, such funds shall cease to be the responsibility of the Company and
shall become the responsibility of the Fund.
1.8 Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Shares
ordered from the Fund will be recorded in an appropriate title for each Account
or the appropriate subaccount of each Account.
1.9 The Fund shall furnish same day notice by wire, telephone (followed by
written confirmation), electronic media or fax to the Company of any income,
dividends or capital gain distributions payable on the Fund's shares. The
Company hereby elects to receive all such income dividends and capital gain
distributions as are payable on Portfolio shares in additional shares of the
applicable Portfolio. The Company reserves the right to revoke this election
and to receive all such income dividends and capital gain distributions in
cash. The Fund shall notify the Company of the number of shares so issued as
payment of such dividends and distributions.
1.10 The Fund shall provide (electronically or by fax) the closing net asset
value per share for each Portfolio to the Company on a daily basis as soon as
reasonably practical after the closing net asset value per share is calculated
(normally 6:30 p.m. Eastern Time) and shall use its best efforts to make such
net asset value per share available by 7:00 p.m. Eastern Time. In the event
that the Fund is unable to meet the 7:00 p.m. time stated immediately above,
then the Fund shall immediately notify the Company and provide the Company with
additional time to notify the Fund of purchase or redemption orders pursuant to
Sections 1.1 and 1.5, respectively, above. Such additional time shall be equal
to the additional time that
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the Fund takes to make the closing net asset values available to the Company.
If the Fund provides the Company with the incorrect closing share net asset
value information, the Company, on behalf of the Account, shall be entitled to
a prompt adjustment to the number of shares purchased or redeemed to reflect
the correct share net asset value, and the Fund or the Distributor shall bear
the cost of correcting such errors. Upon a final determination that there has
been an error in the calculation of the closing net asset value, dividend or
capital gain, the Fund shall promptly report such error to the Company.
1.11 The Fund shall, upon request of the Company, provide a manual daily
confirmation of trade activity from the previous "Business Day." Such
confirmation shall include the dollar amount of purchases or redemptions
submitted by the Company for each Portfolio, price per share of each Portfolio,
and the corresponding total share amount of such purchase or redemption, and
shall be transmitted to the Company on the Business Day following the request.
1.12 The Fund shall, upon request of the Company, provide on a monthly
basis, a screen printed report of the monthly trade activity for the Account
which shall be transmitted to the Company on the "Business Day" following the
request.
ARTICLE II.
Representations and Warranties
2.1 The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act, unless exempt from such registration, and that
the Contracts will be issued and sold in compliance in all material respects
with all applicable Federal and State laws and regulations. The Company shall
amend the registration statements for its Contracts under the 1933 Act and 1940
Act from time to time as required to effect the continuous offering of its
Contracts. The Company represents and warrants that it is an insurance company
duly organized and in good standing under Virginia law and that it has legally
and validly established each Account prior to any issuance or sale thereof as a
segregated asset account under Virginia insurance laws and has registered or,
prior to any issuance or sale of the Contracts, will register each Account as a
unit investment trust in accordance with the provisions of the
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1940 Act to serve as a segregated investment account for the Contracts, unless
exempt from such registration. The Company represents and warrants that the
Company and the Account are in compliance with Rule 38a-1 under the 1940 Act.
The Company represents and warrants that it has implemented controls designed
to prevent, and will provide any reasonable assistance requested by the Fund
related to the deterrence of, market timing and/or late trading of shares of
the Fund. Further, the Company represents and warrants that:
(a) The Company has in place an anti-money laundering program ("AML
program") that does now and will continue to comply with applicable laws and
regulations, including the relevant provisions of the Bank Secrecy Act and the
USA PATRIOT Act (Pub. L. No. 107-56 (2001)), as they may be amended, and the
regulations issued thereunder by duly vested regulatory authority and the
conduct the Rules of the NASD and the NYSE, as applicable ("Anti-Money
Laundering Law and Regulation").
(b) The Company has, after undertaking reasonable inquiry, no
information or knowledge that any Contract owners of all separate accounts
investing in the Fund is an individual or entity or in a country or territory
that is on an Office of Foreign Assets Control ("OFAC") list or similar list of
sanctioned or prohibited persons maintained by a U.S. governmental or
regulatory body.
(c) The Company will provide the Fund or the Distributor (or their
respective service providers) upon reasonable request any information regarding
specific accounts that may be reasonably necessary for the Fund and its service
providers to fulfill their responsibilities relating to their anti-money
laundering programs or certain other information reasonably requested by the
Fund or the Distributor (or their repestive service providers) to assist with
compliance with the Anti-Money Laundering Law and Regulation, as may be
required by law or regulation.
(d) The Company will promptly notify the Fund and the Distributor should
the Company become aware of any change in the above representations and
warranties. In addition, the Fund and the Distributor hereby provide notice to
the Company that the Fund and/or the Distributor reserve the right to make
inquires of and request additional information from the Company regarding its
AML program.
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2.2 The Fund represents and warrants that Fund shares sold pursuant to this
Agreement shall be registered under the 1933 Act, duly authorized for issuance
and sold in compliance with the laws of the State of Maryland, as applicable,
and all applicable federal and state securities laws. Further, the Fund
represents and warrants that the Fund is in compliance with Rule 38a-1 under
the 1940 Act. The Fund is and shall remain registered under the 0000 Xxx. The
Fund shall amend the registration statement for its shares under the 1933 Act
and the 1940 Act from time to time as required in order to effect the
continuous offering of its shares. The Fund shall register and qualify the
shares for sale in accordance with the laws of the various states only if and
to the extent deemed advisable by the Fund or the Distributor. The Fund shall
provide to the Company upon request a list of the various jurisdictions in
which the Portfolios are registered.
2.3 The Fund represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of 1986, as
amended, (the "Code") and that it will make every effort to maintain such
qualification (under Subchapter M or any successor or similar provision) and
that it will notify the Company immediately upon having a reasonable basis for
believing that it has ceased to so qualify or that it might not so qualify in
the future. The parties acknowledge that compliance with Subchapter M is an
essential element of compliance with Section 817(h) of the Code.
2.4 The Company represents that the Contracts are currently treated as
endowment, annuity or life insurance contracts, under applicable provisions of
the Code and that it will make every effort to maintain such treatment and that
it will notify the Funds and the Distributor immediately upon having a
reasonable basis for believing that the Contracts have ceased to be so treated
or that they might not be so treated in the future.
2.5 The Fund shall at all times, consistent with instructions from the
Company received initially and from time to time thereafter, invest money from
the Contracts in such a manner as to ensure
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that the Contracts shall be treated as variable contracts under the Code and
the regulations issued thereunder. Without limiting the scope of the foregoing,
the Fund and its Portfolios shall at all times comply with Section 817(h) of
the Code, including without limitation Treasury Regulation 1.817-5, relating to
the diversification requirements for variable annuity, endowment, or life
insurance contracts and any amendments or other modifications to such Section
or Regulations. The Fund will notify the Company immediately upon having a
reasonable basis for believing that a Portfolio has ceased to so qualify or
that a Portfolio might not so qualify in the future. In addition, the Fund will
immediately take all steps necessary to adequately diversify the Portfolio to
achieve compliance.
2.6 The Fund has adopted a Rule 12b-1 Plan under which it makes payments to
finance administrative, service, and distribution expenses with respect to
certain Portfolios. The Fund represents and warrants that its Board, a majority
of whom are not interested persons of the Fund, has approved such Rule 12b-1
Plan to finance administrative, service, and distribution expenses of the
Fund's Portfolios that are subject to a 12b-1 fee, and that any changes to the
Fund's Rule 12b-1 Plan will be approved, in accordance with Rule 12b-1 under
the 0000 Xxx.
2.7 The Fund makes no representation as to whether any aspect of its
operations (including, but not limited to, fees, expenses and investment
policies) complies with the insurance laws or regulations of various states
except that the Fund represents that the Fund's investment policies, fees and
expenses are and shall at all times remain in compliance with the laws of its
state of domicile, and the Fund represents that its respective operations are
and shall at all times remain in material compliance with the laws of its state
of domicile, to the extent required to perform this Agreement.
2.8 The Distributor represents and warrants that the Distributor is and
shall remain duly registered in all material respects under all applicable
federal and state laws and regulations and that the Distributor shall perform
its obligations for the Fund in compliance in all material respects with the
laws of the State of Maryland, and any applicable state and federal laws and
regulations.
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2.9 The Fund represents and warrants that its directors, officers,
employees, and other individuals/entities dealing with the money and/or
securities of the Fund are and shall continue to be at all times covered by a
blanket fidelity bond or similar coverage for the benefit of the Fund in an
amount not less than the minimal coverage as required currently by Rule 17g-1
of the 1940 Act or related provisions as may be promulgated from time to time.
The aforesaid bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.10 The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities
dealing with the money and/or securities of the Fund are and shall continue to
be at all times covered by a blanket fidelity bond or similar coverage for the
benefit of the Fund, in an amount not less than the minimal coverage as
required currently by entities subject to the requirements of Rule 17g-1 of the
1940 Act or related provisions as may be promulgated from time to time. The
aforesaid bond shall include coverage for larceny and embezzlement and shall be
issued by a reputable bonding company.
2.11 Each party to this Agreement will maintain all records required by law,
including records detailing the services it provides. Such records will be
preserved, maintained and made available to the extent required by law and in
accordance with the 1940 Act and the rules thereunder. Upon request by the Fund
or the Distributor, the Company agrees promptly to make copies or, if required,
originals of all records pertaining to the performance of services under this
Agreement available to the Fund or the Distributor, as the case may be. The
Fund agrees that the Company will have the right to inspect, audit and copy all
records pertaining to the performance of services under this Agreement pursuant
to the requirements of any state insurance department. Each party also agrees
promptly to notify the other parties if it experiences any difficulty in
maintaining the records in an accurate and complete manner. This provision
shall survive termination of the Agreement.
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ARTICLE III.
Prospectuses and Proxy Statements; Voting
3.1 The Distributor shall provide the Company with as many copies of the
Fund's current Prospectus as the Company may reasonably request (i) for
distribution to existing Contract owners, at the Distributor's expense and
(ii) for distribution to prospective Contract owners, at the Company's expense.
If requested by the Company in lieu thereof, the Fund shall provide such
documentation (including a final copy of the new Prospectus as set in type at
the Fund's expense - in lieu thereof, such final copy may be provided, if
requested by the Company, electronically or through camera ready film) and
other assistance as is reasonably necessary in order for the Company once each
year (or more frequently, if the Prospectus for the Fund is amended) to have
the prospectus for each Contract and the Fund's Prospectus printed together in
one document (such printing to be at the Company's expense, except that the
Fund will bear the commercially reasonable, prorated cost of printing the
Fund's prospectus in this format for existing Contract owners up to an amount
the Fund would pay on a per copy basis for its own prospectuses).
3.2 The Fund's Prospectus shall state that the Statement of Additional
Information for the Fund is available from the Distributor (or in the Fund's
discretion, the Prospectus shall state that such Statement of Additional
Information is available from the Fund), and the Distributor (or the Fund), at
its expense, shall print and provide such Statement of Additional Information
free of charge to the Company and to any owner of a Contract or prospective
owner who requests such Statement of Additional Information.
3.3 The Fund, at its expense, shall provide the Company with copies of its
proxy material, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners.
3.4 If and to the extent required by law the Company shall:
(a) solicit voting instructions from Contract owners;
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(b) vote Fund shares in accordance with instructions received from
Contract owners; and
(c) vote Fund shares for which no instructions have been received in the
same proportion as Fund shares of such Portfolio for which instructions have
been received, so long as and to the extent that the SEC continues to interpret
the 1940 Act to require pass-through voting privileges for owners of Contracts.
The Company reserves the right to vote Fund shares held in any segregated asset
account in its own right, to the extent permitted by law. Each Participating
Insurance Company shall be responsible for assuring that each of its separate
accounts participating in the Fund calculates voting privileges in a manner
consistent with this Section.
3.5 The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular the Fund will either provide for
annual meetings or comply with Section 16(c) of the 1940 Act (although the Fund
is not one of the trusts described in Section 16(c) of that Act) as well as
with Sections 16(a) and, if and when applicable, 16(b). Further, the Fund will
act in accordance with the SEC's interpretation of the requirements of
Section 16(a) with respect to periodic elections of directors and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE IV.
Sales Material and Information
4.1 The Company shall furnish, or shall cause to be furnished, to the Fund
or its designee, each piece of sales literature or other promotional material
in which the Fund or its investment adviser or any of its underwriters is
named, at least fifteen (15) "Business Days" prior to its use. No such material
shall be used if the Fund or its designee objects to such use within fifteen
(15) "Business Days" after receipt of such material.
4.2 The Company shall not give any information or make any representations
or statements on behalf of the Fund or concerning the Fund in connection with
the sale of the Contracts other than the
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information or representations contained in the registration statement or
Prospectus for the Fund shares, as such registration statement and Prospectus
may be amended or supplemented from time to time, or in reports or proxy
statements for the Fund, or in sales literature or other promotional material
approved by the Fund or the Distributor or the designee of either, except with
the permission of the Fund or the Distributor or the designee of either.
4.3 The Fund and the Distributor, or the designee of either shall furnish,
or shall cause to be furnished, to the Company or its designee, each piece of
sales literature or other promotional material in which the Company and/or its
Account(s), is named at least fifteen (15) "Business Days" prior to its use. No
such material shall be used if the Company or its designee objects to such use
within fifteen (15) "Business Days" after receipt of such material.
4.4 The Fund and the Distributor shall not give any information or make any
representations on behalf of the Company or concerning the Company, an Account,
or the Contracts other than the information or representations contained in a
registration statement or prospectus for the Contracts, as such registration
statement and prospectus may be amended or supplemented from time to time, or
in published reports for each Account which are in the public domain or
approved by the Company for distribution to Contract owners, or in sales
literature or other promotional material approved by the Company or its
designee, except with the permission of the Company.
4.5 Upon request, the Fund will provide to the Company at least one complete
copy of all registration statements, Prospectuses, Statements of Additional
Information, reports, proxy statements, sales literature and other promotional
materials, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to the Fund or its shares.
4.6 Upon request, the Company will provide to the Fund at least one complete
copy of all registration statements, prospectuses, Statements of Additional
Information, reports, solicitations for voting instructions, sales literature
and other promotional materials, applications for exemptions, requests for no
action letters, and all amendments to any of the above, that relate to the
Contracts or the Account.
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4.7 For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
materials 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, and registration statements, prospectuses,
statements of additional information, shareholder reports, and proxy materials
and any other material constituting sales literature or advertising under the
National Association of Securities Dealers, Inc. (the "NASD") rules, the 1940
Act, the 1933 Act, or rules thereunder.
ARTICLE V.
Fees and Expenses
5.1 All expenses incident to performance by the Fund under this Agreement
shall be paid by the Fund. The Fund shall see to it that all its shares are
registered and authorized for issuance in accordance with applicable federal
law and, if and to the extent deemed advisable by the Fund, in accordance with
applicable state laws prior to their sale. The Fund shall bear the expenses for
the cost of registration and qualification of the Fund's shares, preparation
and filing of the Fund's Prospectus and registration statement, proxy material,
information statements and reports, setting the Fund's Prospectus for printing,
setting in type and printing the proxy material, information statements and
reports to shareholders, and the preparation of all statements and notices
required by any federal or state law. The Fund shall bear the cost of printing
and distributing the Fund's Prospectus, periodic reports to shareholders, proxy
materials and other shareholder communications to existing Contract owners. The
Company shall see to it that each of the Contracts and the Accounts are
registered and are authorized for issuance in accordance with applicable
federal law. The Company shall bear the expenses for the cost of
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registration and qualification of the Contracts and the Accounts, preparation
and filing of the applicable prospectus and registration statements, setting
each Contract prospectus for printing, and the preparation of all statements
and notices required by any federal or state law. In addition, the Company
shall bear the cost of printing and distributing the Fund's Prospectus to be
delivered to prospective Contract owners.
ARTICLE VI.
Potential Conflicts
6.1 The Board will monitor the Fund for the existence of any material
irreconcilable conflict among the interests of the Contract owners of all
separate accounts investing in the Fund. An irreconcilable material conflict
may arise for a variety of reasons, including: (a) an action by any state
insurance regulatory authority; (b) a change in applicable federal or state
insurance, tax or securities laws or regulations, or a public ruling, private
letter ruling, no-action or interpretive letter, or any similar action by
insurance, tax, or securities regulatory authorities; (c) an administrative or
judicial decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in voting
instructions given by variable annuity contract owners and variable life
insurance contract owners; or (f) a decision by an insurer to disregard the
voting instructions of Contract owners. The Board shall promptly inform the
Company if they determine that an irreconcilable material conflict exists and
the implications thereof.
6.2 The Company will report any potential or existing conflicts of which it
is aware to the Board. The Company will assist the Board in carrying out its
responsibilities under the Mixed and Shared Funding Exemptive Order, by
providing the Board with all information reasonably necessary for the Board to
consider any issues raised. This includes, but is not limited to, an obligation
by the Company to inform the Board whenever Contract owners' voting
instructions are disregarded.
6.3 If it is determined by a majority of the Board, or a majority of its
disinterested directors, that a material irreconcilable conflict exists, the
Company and other Participating Insurance Companies shall, at their expense and
to the extent reasonably practicable (as determined by a majority of the
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disinterested directors), take whatever steps are necessary to remedy or
eliminate the irreconcilable material conflict, up to and including:
(1) withdrawing the assets allocable to some or all of the separate accounts
from the Fund or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another Portfolio of the
Fund, or submitting the question whether such segregation should be implemented
to a vote of all affected Contract owners and, as appropriate, segregating the
assets of any appropriate group, (i.e., annuity Contract owners, life insurance
Contract owners, or Contract owners of one or more Participating Insurance
Companies) that votes in favor of such segregation, or offering to the affected
contract owners the option of making such a change; and (2) establishing a new
registered management investment company or managed separate account.
6.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owners' voting instructions and that decision
represents a minority position or would preclude a majority vote, the Company
may be required, at the Fund's election, to withdraw the affected Account's
investment in the Fund and terminate this Agreement with respect to such
Account; provided, however that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of the disinterested members of the Board.
Any such withdrawal and termination must take place within six (6) months after
the Fund gives written notice that this provision is being implemented, and
until the end of that six-month period the Fund and the Distributor shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of Fund shares.
6.5 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state regulators, then the Company will withdraw the affected
Account's investment in the Fund and terminate this Agreement with respect to
such Account within six (6) months after the Board informs the Company in
writing that it has determined that such decision has created an irreconcilable
material conflict; provided, however, that such withdrawal and termination
shall be limited to the extent required by the foregoing material
irreconcilable conflict as
16
determined by a majority of the disinterested members of the Board. Until the
end of the foregoing six-month period, the Fund and the Distributor shall
continue to accept and implement orders by the Company for the purchase (and
redemption) of Fund shares.
6.6 For purposes of Sections 6.3 through 6.6 of this Agreement, a majority
of the disinterested members of the Board shall determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in no
event will the Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 6.3 to establish a new
funding medium for the Contracts if an offer to do so has been declined by vote
of a majority of Contract owners materially adversely affected by the
irreconcilable material conflict. In the event that the Board determines that
any proposed action does not adequately remedy any irreconcilable material
conflict, then the Company will withdraw the Account's investment in the Fund
and terminate this Agreement within six (6) months after the Board informs the
Company in writing of the foregoing determination, provided, however, that such
withdrawal and termination shall be limited to the extent required by any such
material irreconcilable conflict as determined by a majority of the
disinterested members of the Board.
6.7 If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of the Act
or the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and
conditions materially different from those contained in the Mixed and Shared
Funding Exemptive Order, then (a) the Fund and/or the Participating Insurance
Company, as appropriate, shall take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T) as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.4, 3.5, 6.1, 6.2, 6.3, 6.4
and 6.5 of this Agreement shall continue in effect only to the extent that
terms and conditions substantially identical to such Sections are contained in
such Rule(s) as so amended or adopted.
17
ARTICLE VII.
Indemnification
7.1 Indemnification by the Company
(a) The Company agrees to indemnify and hold harmless the Fund and each
of its directors and officers and each person, if any, who controls the Fund
within the meaning of Section 15 of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of this Section 7.1) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Company, which consent will not be unreasonably
withheld) or litigation (including legal and other expenses), to which the
Indemnified Parties may become subject under any statute, regulation, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
expenses (or actions in respect thereof) or settlements are related to the sale
or acquisition of the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration statement
or prospectus for the Contracts or contained in the Contracts or sales
literature 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 information furnished to the Company by or
on behalf of the Fund for use in the registration statement or prospectus for
the Contracts or in the Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the Contracts
or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the registration
statement, Prospectus or sales literature of the
18
Fund not supplied by the Company, or persons under its control) or wrongful
conduct of the Company or persons under their control, with respect to the sale
or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in the registration statement, Prospectus, or
sales literature of the Fund or any amendment thereof or supplement thereto or
the omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading if
such a statement or omission was made in reliance upon information furnished to
the Fund by or on behalf of the Company; or
(iv) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this Agreement; or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Company in this Agreement or arise
out of or result from any other material breach of this Agreement by the
Company, as limited by and in accordance with the provisions of Sections 7.1(b)
and 7.1(c) hereof.
(b) The Company shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against an Indemnified Party as such may arise from such
Indemnified Party's willful misfeasance, bad faith, or gross negligence in the
performance of such Indemnified Party's duties or by reason of such Indemnified
Party's reckless disregard of obligations or duties under this Agreement or to
the Fund, whichever is applicable.
(c) The Company shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified the Company in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice
of such service on any designated agent), but failure to notify the Company of
any such claim shall not relieve the Company from any liability which it may
have to the Indemnified Party against whom such action is brought otherwise
than on account of this indemnification
19
provision. In case any such action is brought against the Indemnified Parties,
the Company shall be entitled to participate, at its own expense, in the
defense of such action. The Company also shall be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Company to such party of the Company's election to assume
the defense thereof, the Indemnified Party shall bear the fees and expenses of
any additional counsel retained by it, and the Company will not be liable to
such party under this Agreement for any legal or other expenses subsequently
incurred by such party independently in connection with the defense thereof
other than reasonable costs of investigation.
(d) The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of the Fund shares or the Contracts or the operations of
the Fund.
7.2 Indemnification by the Fund and the Distributor
(a) The Fund and the Distributor agree to indemnify and hold harmless
the Company and its directors and officers and each person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 7.2)
against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Fund, which consent shall
not be unreasonably withheld) or litigation (including legal and other
expenses) to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect thereof) or
settlements are related to the sale or acquisition of the Fund's shares or the
Contracts and:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
or Prospectus or sales literature of the Fund (or any amendment or supplement
to any of the foregoing), or arise out of or are based upon the omission or the
alleged omission to state therein a material fact required to be stated therein
or necessary
20
to make the statements therein not misleading, provided that this agreement to
indemnify shall not apply as to any Indemnified Party if such statement or
omission or such alleged statement or omission was made in reliance upon and in
conformity with information furnished to the Distributor or Fund by or on
behalf of the Company for use in the registration statement or Prospectus for
the Fund or in sales literature (or any amendment or supplement) or otherwise
for use in connection with the sale of the Contracts or Fund shares; or
(ii) arise out of or as a result of statements or representations
(other than statements or representations contained in the registration
statement, prospectus or sales literature for the Contracts not supplied by the
Distributor or Fund or persons under their control) or wrongful conduct of the
Fund or the Distributor or persons under their control, with respect to the
sale or distribution of the Contracts or Fund shares; or
(iii) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement, prospectus or sales
literature covering the Contracts, or any amendment thereof or supplement
thereto, or the omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statement or statements
therein not misleading, if such statement or omission was made in reliance upon
information furnished to the Company by or on behalf of the Fund; or
(iv) arise as a result of any failure by the Fund to provide the
services and furnish the materials under the terms of this Agreement (including
a failure, whether unintentional or in good faith or otherwise, to comply with
the qualification and diversification requirements specified in Article II of
this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Fund or the Distributor in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Fund or the Distributor; as limited by and in accordance with
the provisions of Sections 7.2(b) and 7.2(c) hereof.
21
(b) The Fund or the Distributor shall not be liable under this
indemnification provision with respect to any losses, claims, damages,
liabilities or litigation to which an Indemnified Party would otherwise be
subject by reason of such Indemnified Party's willful misfeasance, bad faith,
or gross negligence in the performance of such Indemnified Party's duties or by
reason of such Indemnified Party's reckless disregard of obligations and duties
under this Agreement or to the Company or Account, whichever is applicable.
(c) The Fund and the Distributor shall not be liable under this
indemnification provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified the Fund and the
Distributor in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the claim shall have
been served upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but failure to
notify the Fund and the Distributor of any such claim shall not relieve the
Fund and the Distributor from any liability which they may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this indemnification provision. In case any such action is brought against
the Indemnified Parties, the Fund and the Distributor will be entitled to
participate, at their own expense, in the defense thereof. The Fund and the
Distributor also shall be entitled to assume the defense thereof with counsel
satisfactory to the party named in the action. After notice from the Fund and
the Distributor to such party of the Fund's and the Distributor's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and the Fund and the
Distributor will not be liable to such party under this Agreement for any legal
or other expenses subsequently incurred by such party independently in
connection with the defense thereof other than reasonable costs of
investigation.
(d) The Company agrees promptly to notify the Fund and the Distributor
of the commencement of any litigation or proceedings against it or any of its
officers or directors in connection with the issuance or sale of the Contracts
or the operation of the Account.
22
ARTICLE VIII.
Applicable Law
8.1 This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of New York.
8.2 This Agreement shall be subject to the provisions of the federal
securities laws, and the rules, regulations and rulings thereunder, including
such exemptions from those statutes, rules and regulations as the SEC may grant
(including, but not limited to, the Mixed and Shared Funding Exemptive Order)
and the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE IX.
Termination
9.1 This Agreement shall terminate:
(a) at the option of any party upon one-year advance written notice to
the other parties unless otherwise agreed in a separate written agreement among
the parties; or
(b) at the option of the Company if shares of the Portfolios delineated
in Schedule A are not reasonably available to meet the requirements of the
Contracts as determined by the Company; or
(c) at the option of the Fund upon institution of formal proceedings
against the Company by the NASD, the SEC, the insurance commission of any state
or any other regulatory body regarding the Company's duties under this
Agreement or related to the sale of the Contracts, the administration of the
Contracts, the operation of an Account, or the purchase of Fund shares; or
(d) at the option of the Company upon institution of formal proceedings
against the Fund or the Distributor by the NASD, the SEC, or any state
securities or insurance department or any other regulatory body; or
(e) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the Contract owners having an
interest in the Account (or any subaccount) to
23
substitute the shares of another investment company for the corresponding
Portfolio shares of the Fund in accordance with the terms of the Contracts for
which those Portfolio shares had been selected to serve as the underlying
investment media. The Company will give thirty (30) days' prior written notice
to the Fund of the date of any proposed vote or other action taken to replace
the Fund's shares; or
(f) at the option of the Company or the Fund upon a determination by a
majority of the Fund Board, or a majority of the disinterested Fund Board
members, that an irreconcilable material conflict exists among the interests of
(i) all Contract owners of Contracts of all separate accounts, or (ii) the
interests of the Participating Insurance Company investing in the Fund as
delineated in Article VI of this Agreement; or
(g) at the option of the Company if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code, or under any
successor or similar provision, or if the Company reasonably believe that the
Fund may fail to so qualify; or
(h) at the option of the Company if the Fund fails to meet the
diversification requirements specified in Article II hereof; or
(i) at the option of any party to this Agreement, upon another party's
material breach of any provision of this Agreement; or
(j) at the option of the Company, if the Company determines in its sole
judgment exercised in good faith, that either the Fund or the Distributor has
suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material
adverse publicity which is likely to have a material adverse impact upon the
business and operations of the Company; or
(k) at the option of the Fund or the Distributor, if the Fund or the
Distributor respectively, shall determine in its sole judgment exercised in
good faith, that the Company has suffered a material adverse change in its
business, operations or financial condition since the date of this Agreement or
is the
24
subject of material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Fund or the Distributor,
or
(l) at the option of the Fund in the event any of the Contracts are not
issued or sold in accordance with applicable federal and/or state law.
Termination shall be effective immediately upon such occurrence without notice.
9.2 Notice Requirement
(a) In the event that any termination of this Agreement is based upon
the provisions of Article VI, such prior written notice shall be given in
advance of the effective date of termination as required by such provisions.
(b) In the event that any termination of this Agreement is based upon
the provisions of Sections 9.1(b)-(d) or 9.1(g)-(i), 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 to be effective upon receipt of such notice by the non-terminating
parties.
(c) In the event that any termination of this Agreement is based upon
the provisions of Sections 9.1(j) or 9.1(k), prior written notice of the
election to terminate this Agreement for cause shall be furnished by the party
terminating this Agreement to the non-terminating parties. Such prior written
notice shall be given by the party terminating this Agreement to the
non-terminating parties at least thirty (30) days before the effective date of
termination.
9.3 No Reason Required for Termination. It is understood and agreed that the
right to terminate this Agreement pursuant to Section 9.1 (a) may be exercised
for any reason or for no reason.
9.4 Effect of Termination
(a) Notwithstanding any termination pursuant to Section 9.1 of this
Agreement, the Fund may, at its option, or in the event of termination of this
Agreement by the Fund or the Distributor pursuant to Section 9.1(a) of this
Agreement, the Company may require the Fund and the Distributor to continue to
25
make available additional shares of the Fund for so long after the termination
of this Agreement as the Fund or the Company, if the Company so requires,
desires pursuant to the terms and conditions of this Agreement as provided in
paragraph (b) below for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, if the Fund so elects to make
available additional shares of the Fund, the owners of the Existing Contracts
shall be permitted to reallocate investments in the Fund, redeem investments in
the Fund and/or invest in the Fund upon the making of additional purchase
payments under the Existing Contracts. The parties agree that this Section 9.4
shall not apply to any terminations under Article VI and the effect of such
Article VI terminations shall be governed by Article VI of this Agreement.
(b) In the event of a termination pursuant to Section 9.1 of this
Agreement, the Fund shall promptly notify the Company whether the Fund will
continue to make available shares of the Fund after such termination, except
that, with respect to a termination by the Fund or the Distributor pursuant to
Section 9.1(a) of this Agreement, the Company shall promptly notify the Fund
whether it wishes the Fund to continue to make available additional shares of
the Fund. If shares of the Fund continue to be made available after such
termination, the provisions of this Agreement shall remain in effect except for
Section 9.1(a) and thereafter the Fund or the Company may terminate the
Agreement, as so continued pursuant to this Section 9.4 upon written notice to
the other party, such notice to be for a period that is reasonable under the
circumstances.
(c) In the event of termination purusant to Section 9.1(l), or such laws
preclude the use of such shares as the underlying investment medium for the
Contracts issued or to be issued by the Company, and if through no fault of the
Company, the need for substitution of Fund shares for the shares of another
"registered investment company" arises out of this event, the expenses of
obtaining such an order shall be reimbursed by the Fund. The Fund and the
Distributor shall cooperate fully with the Company in connection with such
application.
26
9.5 Surviving Provisions. Each party's obligations under Section 2.11 and
Article VII will survive and will not be affected by any termination of this
Agreement. In addition, with respect to Existing Contracts, all provisions of
this Agreement also will survive and not be affected by any termination of this
Agreement.
ARTICLE X.
Notices
Any notice shall be sufficiently given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other party.
If to the Fund:
Xxxx Xxxxx Partners Variable Equity Trust
Xxxx Xxxxx Partners Variable Income Trust
000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
If to the Company:
Genworth Life and Annuity Insurance Company
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx 0
Xxxxxxxx, Xxxxxxxx 00000
Attn: General Counsel, Securities
If to the Distributor:
Xxxx Xxxxx Investor Services, LLC
000 Xxxxx Xxxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx
27
ARTICLE XI.
Contract Owner Information
11.1 Agreement to Provide Information. The Company agrees to provide to the
Fund and/or its designee, upon written request, the taxpayer identification
number ("TIN"), if known, of any or all Clients of the account. The Company
also agrees to provide the number of shares, dollar value, date, name or other
identifier (including broker identification number) of any investment
professional(s) associated with the Client(s) or account (if known), and
transaction type (purchase, redemption, transfer or exchange) of every
purchase, redemption, transfer, or exchange of shares held through an account
maintained by the Company during the period covered by the request. Requests
must set forth a specific period, generally not to exceed 90 days from the date
of the request, for which transaction information is sought. The Fund and/or
its designee may request transaction information older than 90 days from the
date of the request as it deems necessary to investigate compliance with
policies established by the Fund for the purpose of eliminating or reducing any
dilution of the value of the outstanding shares issued by the Fund.
The Company agrees to transmit the requested information that is on its books
and records to the Fund and/or its designee promptly, but in any event not
later than five (5) business days, or as otherwise agreed to by the parties,
after receipt of a request. If the requested information is not on the
Company's books and records, the Company agrees to (i) provide or arrange to
provide to the Fund and/or its designee the requested information pertaining to
shareholders who hold accounts with an indirect intermediary; or (ii) if
directed by the Fund, block further purchases of shares from such indirect
intermediary. In such instance, the Company agrees to inform the Fund whether
it plans to perform (i) or (ii). Responses required by this paragraph must be
communicated in writing and in a format mutually agreed upon by the parties. To
the extent practicable, the format for any transaction information provided to
the Fund should be consistent with the NSCC Standardized Data Reporting Format.
For purposes of this provision, an "indirect intermediary" has the same meaning
as in Rule 22c-2 under the 1940 Act.
28
11.2 Limitations on Use of Information. The Fund agrees not to use the
information received for marketing or any other similar purpose without the
prior written consent of the Company.
11.3 Agreement to Restrict Trading. The Company agrees to execute written
instructions from the Fund to restrict or prohibit further purchases (including
shares acquired by exchanges) of shares by a Client that has been identified by
the Fund as having engaged in transactions of the shares (directly or
indirectly through the Company's account) that violates policies established by
the Fund.
11.4 Form of Instructions. Instructions must include the TIN, if known, and
the specific restriction(s) to be executed. If the TIN is not known, the
instructions must include an equivalent identifying number of the Client(s) or
account(s) or other agreed upon information to which the instruction relates.
11.5 Timing of Response. The Company agrees to execute instruction as soon
as practicable, but not later than five (5) business days, or as otherwise
agreed to by the parties, after receipt of the instructions by the Company.
11.6 Confirmation of the Company. The Company must provide written
confirmation to the Fund that instructions have been executed. The Company
agrees to provide confirmation as soon as reasonably practicable, but not later
than ten (10) business days after the instructions have been executed.
11.7 Definitions. For purposes of this Section 11, the term "Clients" shall
refer to (i) the beneficial owner of shares, whether the shares are held
directly or by the Company in nominee name, (ii) participants in qualified
employee benefit plan or plans notwithstanding that the plan may be deemed to
be the beneficial owner of shares, and (iii) the holder of interests in a
variable annuity or variable life insurance contract issued by the Company.
29
ARTICLE XII.
Miscellaneous
12.1 The captions in this Agreement are included for convenience of
reference only and in no way define or delineate any of the provisions hereof
or otherwise affect their construction or effect.
12.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
12.3 If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the Agreement
shall not be affected thereby.
12.4 Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD and state insurance regulators) and shall permit such authorities
reasonable access to its books and records in connection with any investigation
or inquiry relating to this Agreement or the transactions contemplated hereby.
12.5 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, which the parties hereto are entitled to under state and
federal laws.
12.6 Each party will keep confidential any information acquired as a result
of this Agreement regarding the business and affairs of the other parties to
this Agreement and their affiliates.
12.7 Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and address of owners
of the Contracts and all information reasonably identified as confidential in
writing by any other party hereto and, except as permitted by this Agreement in
order to carry out the specified purposes specified herein, shall not disclose,
disseminate or utilize such names and addresses and other confidential
information until such time as it may come into public domain without express
written consent of the affected party. In addition, each party shall adopt
policies and
30
procedures that address administrative, technical and physical safeguards for
the protection of such customer records.
12.8 The Fund agrees to consult with the Company concerning whether any
Portfolio of the Fund qualifies to provide a foreign tax credit pursuant to
Section 853 of the Code.
31
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be executed in its name and on its behalf by its duly authorized representative
and its seal to be hereunder affixed hereto as of the date specified below.
Company:
GENWORTH LIFE AND ANNUITYINSURANCE COMPANY
By its authorized officer:
By: -------------------------------
Name: -------------------------------
Title: -------------------------------
Date: -------------------------------
Fund:
XXXX XXXXX PARTNERS VARIABLEEQUITY TRUST
By its authorized officer:
By: -------------------------------
Name: -------------------------------
Title: -------------------------------
Date: -------------------------------
32
Fund:
XXXX XXXXX PARTNERS VARIABLE INCOME TRUST
By its authorized officer:
By: -------------------------------
Name: -------------------------------
Title: -------------------------------
Date: -------------------------------
Distributor:
XXXX XXXXX INVESTOR SERVICES, LLC
By its authorized officer:
By: -------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
Date: -------------------------------
33
SCHEDULE A
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
New Trust Name New Fund Name Cusip/Class
-------------- ------------------------- ------------------------
Xxxx Xxxxx Xxxx Xxxxx 00000X000
Partners Variable Partners Variable Class II
Equity Trust Aggressive Growth
Portfolio
Xxxx Xxxxx Xxxx Xxxxx 00000X000
Partners Variable Partners Variable Class I
Equity Trust Fundamental Value
Portfolio*
Xxxx Xxxxx Xxxx Xxxxx 00000X000
Partners Variable Partners Variable Class I
Equity Trust Investors Portfolio
Xxxx Xxxxx Xxxx Xxxxx 00000X000
Partners Variable Partners Variable Class I
Income Trust Strategic Bond
Portfolio
Xxxx Xxxxx Xxxx Xxxxx 00000X000
Partners Variable Partners Variable Class I
Equity Trust Capital and Income
Portfolio*
Xxxx Xxxxx Xxxx Xxxxx 00000X000
Partners Variable Partners Variable Class II
Equity Trust Capital and Income
Portfolio*
--------
*Survivingfund into which old fund merged.
SEPARATE ACCOUNTS UTILIZING THE FUNDS
Genworth Life & Annuity VA Separate Account 1
Genworth Life & Annuity VA Separate Account 2
Genworth Life & Annuity VA Separate Account 3
Genworth Life & Annuity VL Separate Account 1
34
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
Commonwealth Extra Variable Annuity RetireReady Accumulator Variable Life
Commonwealth Freedom Variable Annuity Insurance
Commonwealth Variable Annuity Plus RetireReady Legacy Variable Life
Foundation Variable Annuity Insurance
Personal Income Design Variable Annuity RetireReady Protection Plus Variable
RetireReady Bonus Variable Annuity Life Insurance
RetireReady Choice Variable Annuity
RetireReady Extra Variable Annuity
RetireReady Extra II Variable Annuity
RetireReady Freedom Variable Annuity
RetireReady Selections Variable Annuity
Variable Income Provider Immediate
Variable Annuity
35
