AMENDMENT NO. 2 TO PARTICIPATION AGREEMENT BY AND AMONG
GE LIFE AND ANNUITY ASSURANCE COMPANY ON BEHALF OF ITSELF AND ITS
SEPARATE ACCOUNTS,
PIMCO ADVISORS DISTRIBUTORS LLC
AND
PIMCO VARIABLE INSURANCE TRUST
WHEREAS, GE LIFE AND ANNUITY ASSURANCE COMPANY on behalf of itself and its
separate accounts, PIMCO FUNDS DISTRIBUTORS LLC and PIMCO VARIABLE INSURANCE
TRUST have previously entered into a Participation Agreement dated June 28, 2000
(the "Agreement");
NOW, THEREFORE, the parties hereby agree as follows:
1. Schedule A, is replaced in its entirety with the attached. (Amendment No. 2
to Schedule A)
2. The Agreement, as supplemented by this Amendment and the Amendment No. 2 to
Schedule A attached hereto, is ratified and confirmed effective April 29,
2005.
GE LIFE AND ANNUITY ASSURANCE COMPANY on behalf of itself and its separate
accounts
By:
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▇▇▇▇▇▇▇▇ ▇. Stiff
Senior Vice President
PIMCO ADVISORS DISTRIBUTORS LLC
By:
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Name:
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Title:
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PIMCO VARIABLE INSURANCE TRUST
By:
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Name:
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Title:
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AMENDMENT NO. 1 TO SCHEDULE A
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
PIMCO Variable Insurance Trust
All Asset Portfolio - Advisor Class Shares
Foreign Bond Portfolio - Administrative Class Shares
High Yield Portfolio - Administrative Class Shares
Long-Term U.S. Government Portfolio - Administrative Class Shares
Low Duration Portfolios - Administrative Class Shares
Total Return Portfolio - Administrative Class Shares
SEPARATE ACCOUNT UTILIZING THE PORTFOLIOS
GE Life & Annuity Separate Account II Established on August 21, 1986
GE Life & Annuity Separate Account 4 Established on August 19, 1987
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
Commonwealth 3 - Flexible Premium Variable Universal Life Insurance Policy
SEC File No. 033-09651
Commonwealth 4 - Flexible Premium Variable Universal Life Insurance Policy
SEC File No. 333-41031
Commonwealth Variable Universal Life - Flexible Premium Variable Universal Life
Insurance Policy
SEC File No. 333-32071
GE Protection Plus - flexible Premium Variable Universal Life Insurance Policy
SEC File No. 333-40820
GE Accumulator - Flexible Premium Single Life and Joint and Last Survivor
Variable Life Insurance Policy
SEC File No. 333-72572
Estate Optimizer - Flexible Premium Joint and Last Survivor Variable Life
Insurance Policy
SEC File No. 333-82311
Commonwealth CVL Flex - Flexible Premium Variable Life Insurance Policy
SEC File No. 333-111208
GE Legacy - Flexible Premium Single Life and Joint and Last Survivor Variable
Life Insurance Policy
SEC File No. 333-111213
CVA 90 - Flexible Premium Variable Deferred Annuity Contract
SEC File No. 033-17428
CVA Plus - Flexible Premium Variable Deferred Annuity Contract
SEC File No. 033-76334
CVA/GE Extra - Flexible Premium variable Deferred Annuity Contract
SEC File No. 333-62695
CVA/GE Freedom - Flexible Premium Variable Deferred Annuity Contract
SEC File No. 333-63531
GE Choice/GE Foundation - Flexible Premium Variable Deferred Annuity Contract
SEC File No. 333-31172
GE Selections - Flexible Premium Variable Deferred Annuity Contract
SEC File No. 333-47732
PARTICIPATION AGREEMENT
BY AND AMONG
GE LIFE AND ANNUITY ASSURANCE COMPANY
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS
AND
PIMCO FUNDS DISTRIBUTORS LLC
AND
PIMCO VARIABLE INSURANCE TRUST
THIS AGREEMENT, made and entered into as of June 2, 2000 ("Agreement"), by
and among PIMCO Variable Insurance Trust, a Delaware business trust (the
"Fund"), PIMCO Funds Distributors LLC, a Delaware Corporation (the
"Distributor") and GE Life and Annuity Assurance Company, a Virginia life
insurance company ("LIFE COMPANY"), on behalf of itself and each of its
segregated asset accounts listed in Schedule A hereto, as the parties
("Parties") hereto may amend from time to time (each, an "Account," and
collectively, the "Accounts").
WITNESSETH THAT:
WHEREAS, the Fund is registered with the Securities and Exchange Commission
("SEC") as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act");
WHEREAS, the Fund is available to the extent set forth herein to act as the
investment vehicle for separate accounts established for variable life insurance
policies and variable annuity contracts to be offered by insurance companies
which have entered into participation agreements with the Fund and the
Distributor ("Participating Insurance Companies");
WHEREAS, the Fund currently consists of seven separate investment
portfolios, shares ("Shares") of each of which are registered under the
Securities Act of 1933, as amended (the "1933 Act");
WHEREAS, the Fund will make Administrative Class Shares of each investment
portfolio of the Fund 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 Fund has received an order (the "Order") from the SEC to
permit Participating Insurance Companies and variable annuity and variable life
insurance separate accounts exemptions from the provisions of sections 9(a),
13(a), 15(a), and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Fund to be sold to
and held by variable annuity and variable life insurance separate accounts of
both affiliated and unaffiliated life insurance companies;
WHEREAS, LIFE COMPANY will be the issuer of certain variable annuity
contracts and variable life insurance policies (collectively, the "Contracts")
as set forth on Schedule A hereto, as the Parties hereto may amend from time to
time, which Contracts, if required by applicable law, will be registered under
the 1933 Act;
WHEREAS, LIFE COMPANY will, to the extent set forth herein, fund the
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);
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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 is 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 be exempt
therefrom);
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, LIFE COMPANY intends to purchase Shares in one or more of the
Portfolios on behalf of the Accounts to fund the Contracts; and
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein, the Parties hereto agree as follows:
Section 1. Available Portfolios
1.1 Available Portfolios
The Fund will make Shares of each Portfolio listed on Schedule A available
to LIFE COMPANY for purchase and redemption at net asset value next computed
after the Fund's receipt of a purchase or redemption order and with no sales
charges, in accordance with the Fund's then current prospectus and subject to
the terms and conditions of this Agreement. The Board of Trustees of the Fund
may refuse to sell Shares of any Portfolio to any person, or suspend or
terminate the offering of Shares of any Portfolio if such action is required by
law or by regulatory authorities having jurisdiction or if, in the sole
discretion of the Trustees acting in good faith and in light of their fiduciary
duties under federal and any applicable state laws, such action is deemed in the
best interests of the shareholders of such Portfolio.
1.2 Addition, Deletion or Modification of Portfolios
The Parties hereto may agree, from time to time, to add other Portfolios to
provide additional funding alternatives for the Contracts, or to delete or
modify existing Portfolios, by amending Schedule A hereto. Upon such amendment
to Schedule A, any applicable reference to a Portfolio, the Fund, or its Shares
herein shall include a reference to all Portfolios set forth on Schedule A as
then amended. Schedule A, as amended from time to time, is incorporated herein
by reference and is a part hereof.
1.3 No Sales to the General Public
The Fund represents that shares of the Portfolios will be sold only to
Participating Insurance Companies, their separate accounts and qualified pension
and retirement plans ("Plans") and that no Shares of any Portfolio have been or
will be sold to the general public. The Fund will not sell Fund shares to any
Participating Insurance Companies or Plans unless such Participating Insurance
Companies or Plans have entered into an agreement containing provisions
materially similar to Sections 2, 3, 5 and 10 hereof.
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1.4 Portfolios as Investment Options Under the Contracts
(a) The Parties acknowledge that the arrangement contemplated by this
Agreement is not exclusive; the Fund's shares may be sold to other insurance
companies (subject to the terms of this Agreement) and the cash value of the
Contracts may be invested in other investment companies; provided, however, that
until this Agreement is terminated pursuant to Section 6, the Company shall
promote the Portfolios on the same basis as other funding vehicles available
under the Contracts.
(b) LIFE COMPANY shall not, without prior notice to the Distributor (unless
otherwise required by applicable law), take any action to operate an Account as
a management investment company under the 1940 Act.
(c) LIFE COMPANY shall not, without prior notice to the Distributor (unless
otherwise required by applicable law), induce Contract owners to change or
modify the Fund or change the Fund's distributor or investment adviser.
(d) LIFE COMPANY shall not, without prior notice to the Fund, induce
Contract owners to vote on any matter submitted for consideration by the
shareholders of the Fund in a manner other than as recommended by the Board of
Trustees of the Fund.
(e) LIFE COMPANY shall not deem Shares attributable to the Contracts (as
opposed to Shares attributable to LIFE COMPANY's assets held in the Accounts)
except (I) as necessary to implement Contract owner initiated or approved
transactions, (ii) as required by sate and/or federal laws or regulations or
judicial or other legal precedent of general application (hereinafter referred
to as a "Legally Required Redemption"), (iii) upon at least 30 days' prior
written notice to the Fund and Distributor, as permitted by an order of the
Securities and Exchange Commission ("SEC") pursuant to Section 26(b) of the 1940
Act, or (iv) as permitted under the terms of the Contract. Upon request, LIFE
COMPANY will promptly furnish to the Fund and the Distributor reasonable
assurance that any redemption pursuant to clause (ii) above is a Legally
Required Redemption. Furthermore, except in cases where permitted under the
terms of the Contracts, LIFE COMPANY shall not prevent Contract owners from
allocating payments to a Portfolio that was otherwise available under the
Contracts without first giving the Fund or the Distributor 45 days notice of its
intention to do so.
Section 2. Processing Transactions
2.1 Placing Orders
(a) The Fund or its designated agent shall determine the net asset value
per share for each Portfolio available each Business Day and will use its best
efforts 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 Fund calculates the Portfolios' net asset
values. The Fund will notify LIFE COMPANY as soon as possible if on any
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Business Day it is determined that the calculation of net asset value per Share
will be available after 7:00 p.m. Eastern Time.
(b) LIFE COMPANY will place orders to purchase or redeem Shares with the
Fund by 9:00 a.m. Eastern Time the following Business Day after receipt of such
orders from the Accounts.
(c) With respect to payment of the purchase price by LIFE COMPANY and of
redemption proceeds by the Fund, LIFE COMPANY and the Fund shall net purchase
and redemption orders with respect to each Portfolio and shall transmit one net
payment per Portfolio in accordance with Section 2.2, below.
(d) Any material error in the calculation or reporting of net asset value
per Share, dividend or capital gain information shall be reported promptly upon
discovery to LIFE COMPANY.
2.2 Payments
(a) LIFE COMPANY shall pay for Shares of each Portfolio on the same day
that it notifies the Fund of a purchase request for such Shares. Payment for
Shares shall be made in federal funds transmitted to the Fund by wire to be
received by the Fund by 4:00 P.M. Eastern Time on the day the Fund is notified
of the purchase request for Shares.
(b) The Fund will wire payment in federal funds for net redemptions to an
account designated by LIFE COMPANY by 4:00 p.m. Eastern Time on the Business Day
the order is placed, except that the Fund reserves the right to delay payment of
redemption of proceeds to the extent permitted under Section 22(e) of the 1940
Act and the regulations thereunder. The Fund shall not bear any responsibility
whatsoever for the proper disbursement or crediting of redemption proceeds by
LIFE COMPANY.
2.3 Applicable Price
(a) Share purchase payments and redemption orders that result from purchase
payments, premium payments, surrenders and other transactions under Contracts
(collectively, "Contract transactions") and that LIFE COMPANY receives prior to
the time that the Fund ordinarily calculates its net asset value, as described
from time to time in the Fund's prospectus on a Business Day will be executed at
the net asset values of the appropriate Portfolios next computed after receipt
by the Fund or its designated agent of the orders. For purposes of this Section
2.3(a), LIFE COMPANY shall be the designated agent of the Fund for receipt of
orders relating to Contract transactions on each Business Day and receipt by
such designated agent shall constitute receipt by the Fund; provided that the
Fund receives notice of such orders by 9:00 a.m. Eastern Time on the following
Business Day.
(b) All other Share purchases and redemptions by LIFE COMPANY will be
effected at the net asset values of the appropriate Portfolios next computed
after receipt by the Fund or its designated agent of the order therefor, and
such orders will be irrevocable.
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2.4 Dividends and Distributions
The Fund will furnish notice by wire or telephone (followed by written
confirmation) on or prior to the payment date to LIFE COMPANY of any income
dividends or capital gain distributions payable on the Shares of any Portfolio.
LIFE COMPANY hereby elects to reinvest all dividends and capital gains
distributions in additional Shares of the corresponding Portfolio at the ex-
dividend date net asset values until LIFE COMPANY otherwise notifies the Fund in
writing. LIFE COMPANY reserves the right to revoke this election and to receive
all such income dividends and capital gain distributions in cash. Any such
revocation will take effect with respect to the next income dividend or capital
gain distribution following receipt by the Fund of such notification from LIFE
COMPANY.
2.5 Book Entry
Issuance and transfer of Portfolio Shares will be by book entry only. Stock
certificates will not be issued to LIFE COMPANY. Shares ordered from the Fund
will be recorded in an appropriate title for LIFE COMPANY, on behalf of its
Accounts.
Section 3. Costs and Expenses
3.1 General
(a) Except as otherwise specifically provided herein, each party will bear
all expenses incident to its performance under this Agreement.
(b) The Fund shall pay no fee or other compensation to the LIFE COMPANY
under this agreement, except that if the Fund or any Portfolio adopts and
implements a plan pursuant to Rule 12b-1 to finance distribution expenses, then
the Fund may make payments to the LIFE COMPANY or to the underwriter for the
Contracts if and in amounts agreed to by the Fund in writing. Presently, no such
payments are contemplated.
3.2 Registration
(a) The Fund will bear the cost of its registering as a management
investment company under the 1940 Act and registering its Shares under the 1933
Act, and keeping such registrations current and effective; including, without
limitation, the preparation of and filing with the SEC of Forms N-SAR and Rule
24f-2 Notices with respect to the Fund and its Shares and payment of all
applicable registration or filing fees with respect to any of the foregoing.
(b) LIFE COMPANY will bear the cost of registering, to the extent required,
each Account as a unit investment trust under the 1940 Act and registering units
of interest under the Contracts under the 1933 Act and keeping such
registrations current and effective; including, without limitation, the
preparation and filing with the SEC of Forms N-SAR and Rule 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.
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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 Fund: prospectuses,
statements of additional information, proxy materials and periodic reports.
These costs would also include the costs of preparing, printing, and
distributing sales literature and advertising relating to the Portfolios (all of
which require the prior written consent of the Fund) to the extent such
materials are distributed in connection with the Contracts, and, except for
advertising materials prepared by the Funds, filing such materials with, and
obtaining approval from, the SEC, the National Association of Securities
Dealers, Inc. (the "NASD"), any state insurance regulatory authority, and any
other appropriate regulatory authority, to the extent required by law.
3.4 Other Expenses
(a) The Fund will provide the LIFE COMPANY with as many copies of the
Fund's prospectus, statement of additional information and any amendments or
supplements thereto (collectively, the "Fund Prospectus"), periodic reports to
shareholders, the Fund proxy material and other shareholder communications as
the LIFE COMPANY may reasonably request. The Fund will bear all taxes required
to be paid by the Fund on the issuance of transfer of Fund shares. In addition,
the Fund will bear, or arrange for others to bear, the cost of printing the Fund
Prospectus to existing Participants who have directed LIFE COMPANY to purchase
Shares of the Fund, and will bear the cost of preparing and printing its
periodic reports to Shareholders, Fund proxy materials and other shareholder
communications, and any supplements or amendments to the Fund Prospectus to the
extent that such proxy materials, supplements or amendments were not required by
LIFE COMPANY.
(b) LIFE COMPANY will bear the costs of preparing, filing with the SEC and
printing each Account's prospectus, statement of additional information and any
amendments or supplements thereto (collectively, the "Account Prospectus"), any
periodic reports to Participants, voting instruction solicitation material and
the Fund Prospectus, except as provided in paragraph (a) above, and other
Participant communications to the extent required by federal or state law or as
deemed appropriate by LIFE COMPANY.
(c) LIFE COMPANY will, to the extent required by law, print in quantity and
deliver to existing Participants the documents described in Section 3.4(b) above
and will deliver to such Participants the supplements as amendments to the Fund
Prospectus as provided by the Fund. LIFE COMPANY may elect to receive the Fund
Prospectus and amendments to the same, in camera ready and/or computer diskette
format and the Fund will make reasonable effort to use computer formatting
requested by LIFE COMPANY, including but not limited to, PDF. The Fund will
print the Fund statement of additional information, proxy materials relating to
the Fund and periodic reports of the Fund.
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3.5 Parties To Cooperate
Each party agrees to cooperate with the other, in arranging to print, mail
and/or deliver, in a timely manner, combined or coordinated prospectuses or
other materials of the Fund and the Accounts.
Section 4. Legal Compliance
4.1 Tax Laws
(a) The Fund represents and warrants that it is or will be qualified as a
regulated investment company ("RIC") under Subchapter M of the Internal Revenue
Code of 1986, as amended (the "Code") or any successor or similar provision, and
represents that it is or will qualify and maintain its qualification as a RIC
and to comply with the diversification requirements set forth in Section 817(h)
of the Code and the regulations thereunder or any successor or similar
provision. The Fund will notify LIFE COMPANY immediately upon having a
reasonable basis for believing that it has ceased to so qualify or so comply, or
that it might not so qualify or so comply in the future.
(b) Subject to Section 4.1(a) above, LIFE COMPANY represents and warrants
that the Contracts currently are and will be treated as annuity contracts or
life insurance contracts under applicable provisions of the Code and that it
will maintain such treatment. LIFE COMPANY will notify the Fund immediately upon
having a reasonable basis for believing that any of the Contracts have ceased to
be so treated or that they might not be so treated in the future.
(c) LIFE COMPANY represents and warrants that each Account is a "segregated
asset account" and that interests in each Account are offered exclusively
through the purchase of or transfer into a "variable contract," within the
meaning of such terms under Section 817 of the Code and the regulations
thereunder. LIFE COMPANY and the Accounts will continue to meet such
definitional requirements, and it will notify the Fund immediately upon having a
reasonable basis for believing that such requirements have ceased to be met or
that they might not be met in the future.
4.2 Insurance and Certain Other Laws
(a) LIFE COMPANY represents and warrants that (i) it is an insurance
company duly organized, validly existing and in good standing under all
applicable laws and has full corporate power, authority and legal right to
execute, deliver and perform its duties and comply with its obligations under
this Agreement, (ii) it has legally and validly established and maintains each
Account as a segregated asset account under all applicable laws and regulations,
and (iii) the Contracts comply in all material respects with all applicable
federal and state laws and regulations.
(b) The Fund represents and warrants that it is a 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 Fund makes no representations as
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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 Distributor represents and warrants that its investment adviser
shall remain duly registered as an investment adviser under all applicable
federal and state securities laws and agrees that it shall perform its
obligations to the Fund in accordance in all material respects with such laws.
(d) LIFE COMPANY acknowledges and agrees that it is the responsibility of
LIFE COMPANY and other Participating Insurance Companies to determine investment
restrictions under state insurance law applicable to any Portfolio, and that the
Fund shall bear no responsibility to LIFE COMPANY for any such determination or
the correctness of such determination. LIFE COMPANY has determined that the
investment restrictions set forth in the current Fund Prospectus are sufficient
to comply with all investment restrictions under state insurance laws that are
currently applicable to the Portfolios as a result of the Accounts' investment
therein. LIFE COMPANY shall inform the Fund of any additional investment
restrictions imposed by state insurance law after the date of this agreement
that may become applicable to the Fund or any Portfolio from time to time as a
result of the Accounts' investment therein. Upon receipt of any such information
from LIFE COMPANY or any other Participating Insurance Company, the Fund shall
determine whether it is in the best interests of shareholders to comply with any
such restrictions. If the Fund determines that it is not in the best interests
of shareholders to comply with a restriction determined to be applicable by the
LIFE COMPANY, the Fund shall so inform LIFE COMPANY, and the Fund and LIFE
COMPANY shall discuss alternative accommodations in the circumstances.
4.3 Securities Laws
(a) LIFE COMPANY represents and warrants that (i) interests in each Account
pursuant to the Contracts will be registered under the 1933 Act to the extent
required by the 1933 Act, (ii) the Contracts will be duly authorized for
issuance and sold in compliance with all applicable federal and state laws,
including, without 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, (vii) each Account Prospectus will at all times comply in all
material respects with the requirements of the 1933 Act and the rules thereunder
and (viii) LIFE COMPANY will maintain fidelity bond or similar coverage to the
extent required by applicable state law.
(b) The Fund represents and warrants that (i) Shares sold pursuant to this
Agreement will be registered under the 1933 Act to the extent required by the
1933 Act and will be duly authorized for issuance and sold in material
compliance with Delaware law, (ii) the Fund is and will remain registered under
the 1940 Act to the extent required by the 1940 Act, (iii) the Fund will amend
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the registration statement under the 1933 Act and the 1940 Act from time to time
as required in order to effect the continuous offering of its Shares, (iv) the
Fund does and will comply in all material respects with the requirements of the
1940 Act and the rules thereunder, (v) the Fund's 1933 Act registration
statement, together with any amendments thereto, will at all times comply in all
material respects with the requirements of the 1933 Act and rules thereunder,
(vi) the Fund's Prospectus will at all times comply in all material respects
with the requirements of the 1933 Act and the rules thereunder and (vii) all of
its directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of any
Portfolio are and continue to be at all times covered by a blanket fidelity bond
or similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
(c) The Fund will at 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 Fund.
4.4 Notice of Certain Proceedings and Other Circumstances
(a) The Fund will immediately notify LIFE COMPANY of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or other
similar order with respect to the Fund's registration statement under the 1933
Act and the 1940 Act or the Fund Prospectus, (ii) any request by the SEC for any
amendment to such registration statement or the Fund Prospectus that may affect
the offering of Shares of any Portfolio, (iii) the initiation of any proceedings
for that purpose or for any other purpose relating to the registration or
offering of Shares of any Portfolio, (iv) receipt of any complaint from a
Participant relating to the Contracts or the LIFE COMPANY, or (v) any other
action or circumstances that may prevent the lawful offer or sale of Shares of
any Portfolio in any state or jurisdiction, including, without limitation, any
circumstances in which such Shares are not registered and are not, in all
material respects, issued and sold in accordance with applicable state and
federal law. The Fund will make every reasonable effort to prevent the issuance
of any such stop order, cease and desist order or similar order and, if any such
order is issued, to obtain the lifting thereof at the earliest possible time.
(b) LIFE COMPANY will immediately notify the Fund of (i) the issuance by
any court or regulatory body of any stop order, cease and desist order, or other
similar order with respect to each Account's registration statement under the
1933 Act or 1940 Act relating to the Contracts or each Account Prospectus, (ii)
any request by the SEC for any amendment to such registration statement or
Account Prospectus that may affect the offering of Shares of any Portfolio,
(iii) the initiation of any proceedings for that purpose or for any other
purpose relating to the registration or offering of each Account's interests
pursuant to the Contracts, (iv) receipt of any complaint from a Participant
particularly to the Fund or the Portfolios, or (v) 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,
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cease and desist order or similar order and, if any such order is issued, to
obtain the lifting thereof at the earliest possible time.
4.5 Documents Provided by LIFE COMPANY; Information About the Fund
(a) LIFE COMPANY will provide to the Fund or its designated agent at least
one (1) complete copy of all SEC registration statements, Account Prospectuses,
reports, any preliminary and final voting instruction solicitation material,
applications for exemptions, requests for no-action letters, and all amendments
to any of the above, that relate to each Account or the Contracts,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
(b) LIFE COMPANY will provide to the Fund or its designated agent at least
one (1) complete copy of each piece of sales literature or other promotional
material in which any Portfolio, the Fund or any of its affiliates is named, at
least ten (10) Business Days prior to its use or such shorter period as the
Parties hereto may, from time to time, agree upon. No such material shall be
used if the Fund or its designated agent reasonably objects to such use within
ten (10) Business Days after receipt of such material or such shorter period as
the Parties hereto may, from time to time, agree upon.
(c) Neither LIFE COMPANY nor any of its affiliates will give any
information or make any representations or statements on behalf of or concerning
any Portfolio, the Fund or its affiliates in connection with the sale of the
Contracts other than (i) the information or representations contained in the
then current registration statement, including the Fund Prospectus contained
therein, relating to Shares, as such registration statement and the Fund
Prospectus may be amended from time to time; (ii) in reports or proxy materials
for the Fund; (iii) in published reports for the Fund that are in the public
domain and approved by the Fund for distribution by LIFE COMPANY; or (iv) in
sales literature or other promotional material approved by the Fund for use by
LIFE COMPANY, except with the express written permission of the Fund.
(d) LIFE COMPANY shall cause the principal underwriter for the Contracts to
adopt and implement procedures reasonably designed to ensure that information
concerning the Fund and its respective affiliates that is intended for use only
by brokers or agents selling the Contracts (i.e., information not intended for
distribution to Participants) ("broker only materials") is so used, and neither
the Fund nor any of its affiliates shall be liable for any losses, damages, or
expenses relating to the improper use of such broker only materials.
(e) For the purposes of this Section 4.5, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media (e.g., on-
line networks such as the Internet or other electronic messages)), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
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prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act or the ▇▇▇▇ ▇▇▇.
4.6 Documents Provided by Fund; Information About LIFE COMPANY
(a) The Fund will provide to LIFE COMPANY at least one (1) complete copy of
all SEC registration statements, Fund Prospectuses, reports, any preliminary and
final proxy material, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Fund or the
Shares of a Portfolio, contemporaneously with the filing of such document with
the SEC or other regulatory authorities.
(b) The Fund will provide to LIFE COMPANY or its designated agent at least
one (1) complete copy of each piece of sales literature or other promotional
material in which LIFE COMPANY, or any of its respective affiliates is named, or
that refers to the Contracts, at least ten (10) Business Days prior to its use
or such shorter period as the Parties hereto may, from time to time, agree upon.
No such material shall be used if LIFE COMPANY or its designated agent
reasonably objects to such use within ten (10) Business Days after receipt of
such material or such shorter period as the Parties hereto may, from time to
time, agree upon.
(c) Neither the Fund 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) periodic reports to
Participants; (iii) in published reports for the Account or the Contracts that
are in the public domain and approved by LIFE COMPANY for distribution; or (iv)
in sales literature or other promotional material approved by LIFE COMPANY or
its affiliates, except with the express written permission of LIFE COMPANY.
(e) The Fund 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 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 (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
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information, shareholder reports, and proxy materials and any other material
constituting sales literature or advertising under the NASD rules, the 1933 Act
or the 1940 Act.
Section 5. Mixed and Shared Funding
LIFE COMPANY acknowledges that the Fund requested and received an Order
from the SEC granting relief from various provisions of the 1940 Act and the
rules thereunder to the extent necessary to permit Fund shares to be sold to and
held by variable annuity and variable life insurance separate accounts of both
affiliated and unaffiliated Participating Insurance Companies, as well as by
Plans. Any conditions or undertakings that may be imposed on LIFE COMPANY and
the Fund by virtue of such Order is incorporated herein by reference, as though
set forth herein in full, and the parties to this Agreement shall comply with
such conditions and undertakings to the extent applicable to each such party.
Section 6. Termination
6.1 Events of Termination
Subject to Section 6.4 below, this Agreement will terminate as to a
Portfolio:
(a) at the option of any party, with or without cause, upon six (6) months
advance written notice to the other Parties, unless a shorter time is agreed to
by the Parties hereto; or
(b) at the option of LIFE Company if shares of a Portfolio are not
reasonably available to meet the requirements of the Contracts as determined by
LIFE COMPANY provided, however, that such a termination shall apply only to the
Portfolio(s) not available. Prompt written notice of the election to terminate
for such cause shall be furnished by LIFE COMPANY to the Fund;
(c) at the option of the Fund upon institution of formal proceedings
against LIFE COMPANY or the principal underwriter of the Contracts by the NASD,
the SEC, any state insurance regulator or any other regulatory body regarding
LIFE COMPANY's obligations under this Agreement or related to the sale of the
Contracts, the operation of each Account, or the purchase of Shares, if, in each
case, the Fund reasonably determines that such proceedings, or the facts on
which such proceedings would be based, have a material likelihood of imposing
material adverse consequences on the Portfolio with respect to which the
Agreement is to be terminated; or
(d) at the option of LIFE COMPANY upon institution of formal proceedings
against the Fund, its principal underwriter, or its investment adviser by the
NASD, the SEC, or any state insurance regulator or any other regulatory body
regarding the Fund's obligations under this Agreement or related to the
operation or management of the applicable Portfolio or the purchase of the
applicable Portfolios, if, in each case, LIFE COMPANY 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
-13-
(e) at the option of any party in the event that (i) a Portfolio's Shares
are not registered and, in all material respects, issued and sold in accordance
with any applicable federal or state law, or (ii) such law precludes the use of
such Shares as an underlying investment medium of the Contracts issued or to be
issued by LIFE COMPANY; or
(f) subject to Section 4.1(a) above, at the option of LIFE COMPANY if the
applicable Portfolio ceases to qualify as a RIC under Subchapter M of the Code
or under successor or similar provisions or fails to comply with the
diversification requirements of Section 817(h) of the Code or such requirements
under successor or similar provisions or if Life Company reasonably believes the
applicable Portfolio may so cease to qualify; or
(g) subject to Section 4.1(b) above, at the option of the Fund if the
Contracts issued by LIFE COMPANY cease to qualify as annuity contracts or life
insurance contracts under the Code or if Fund reasonably believes the applicable
Contracts may so cease to qualify, or if interests in an Account under the
Contracts are not registered, where required, and, in all material respects, are
not issued or sold in accordance with any applicable federal or state law; or
(h) at the option of the Fund by written notice to LIFE COMPANY, if the
Fund shall determine in its sole judgment exercised in good faith, that LIFE
COMPANY and/or its affiliated companies has suffered a material adverse change
in its business, operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity; or
(i) at the option of LIFE COMPANY by written notice to the Fund, if LIFE
COMPANY shall determine in its sole judgment exercised in good faith, that the
Fund and/or its affiliated companies has suffered a material adverse change in
its business, operations, financial condition or prospects since the date of
this Agreement or is the subject of material adverse publicity; or
(j) at the option of LIFE COMPANY by written notice to the Fund, if LIFE
COMPANY shall determine in its sole judgment exercised in good faith, that the
Distributor and/or its affiliated companies has suffered a material adverse
change in its business operations, financial condition or prospects since the
date of this Agreement or is the subject of material adverse publicity; or
(k) at the option of either party upon a determination by a majority of the
Fund's Board of Trustees, or a majority of the Fund's disinterested trustees,
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 Fund; 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 from the SEC to substitute the shares of another investment
-14-
company for the corresponding Fund shares in accordance with the terms of the
Contracts for which those Fund shares had been selected to serve as the
underlying investment media. LIFE COMPANY will give at least 30 days' prior
written notice to the Fund of the date of any proposed vote to replace the
Fund's shares on the date of such proposed subscription; or
(n) at the option of the Fund if it suspends or terminates the offering of
Shares of the applicable Portfolio to all Participating Insurance Companies or
only designated Participating Insurance Companies, if such action is required by
law or by regulatory authorities having jurisdiction or if, in the sole
discretion of the Trustees 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.
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(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;
(b) in the event that any termination is based upon the provisions of
Section 6.1(e), 6.1(h), 6.1(i), 6.1(j), 6.1(k),6.1(m), or 6.1(n) hereof, such
prior written notice shall be given at least 30 days in advance of the effective
date of termination unless a shorter time is agreed to by the Parties hereto;
and
6.3 Fund To Remain Available
Notwithstanding any termination of this Agreement, the Fund will, at the
option of LIFE COMPANY, continue to make available additional shares of a
Portfolio pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts") unless the Distributor
requests that LIFE COMPANY seek an order pursuant to Section 26(b) of the 1940
Act to permit substitution of other securities for the shares of the Portfolios.
The Distributor agrees to pay the cost of seeking such an order, and LIFE
COMPANY agrees that it shall reasonably cooperate with the Distributor and seek
such an order upon request. Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in Portfolios of
the Fund (as in effect on such date), redeem investments in Portfolios of the
Fund and/or invest in Portfolios of the Fund upon the making of additional
purchase payments under the Existing Contracts. Notwithstanding any termination
-15-
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.
Section 9. Notices
Notices and communications required or permitted by this Agreement will be
given to the following persons at the following addresses and facsimile numbers,
or such other persons, addresses or facsimile numbers as the party receiving
such notices or communications may subsequently direct in writing:
GE Life and Annuity Assurance Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn.: General Counsel
PIMCO Funds Distributors LLC
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
PIMCO Variable Insurance Trust
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
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Section 10. Voting Procedures
Subject to the cost allocation procedures set forth in Section 3 hereof,
LIFE COMPANY will distribute all proxy material furnished by the Fund to
Participants to whom pass-through voting privileges are required to be extended
and will solicit voting instructions from Participants. LIFE COMPANY will vote
Shares in accordance with timely instructions received from Participants. LIFE
COMPANY will vote Shares that are (a) not attributable to Participants to whom
pass- through voting privileges are extended, or (b) attributable to
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 Fund. The
Fund will notify LIFE COMPANY of any amendments to the Order it has obtained.
Section 11. Indemnification
11.1 LIFE COMPANY
(a) Except to the extent provided in Sections 11.1(b) and 11.1(c), below,
LIFE COMPANY agrees to indemnify and hold harmless the Fund, the Distributor,
affiliates of each, and each person, if any, who controls the Fund, the
Distributor or the affiliates of either within the meaning of Section 15 of the
1933 Act and each of their respective directors and officers (collectively, the
"Indemnified Parties" for purposes of this Section 11.1) against any and all
losses, claims, damages, costs, expenses, liabilities (including amounts paid in
settlement with the written consent of LIFE COMPANY) or actions in respect
thereof (including, to the extent reasonable, legal and other expenses), to
which the Indemnified Parties may become subject under any statute, regulation,
at common law or otherwise insofar as such losses, claims, damages, costs,
expenses, liabilities or actions:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any 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
-17-
of the Fund or the Distributor for use in any Account's 1933 Act
registration statement, any Account Prospectus, the Contracts, or
sales literature or advertising (or any amendment or supplement
to any of the foregoing); or
(ii) arise out of or as a result of any other statements or
representations (other than statements or representations
contained in the Fund's 1933 Act registration statement, the Fund
Prospectus, sales literature or advertising of the Fund or
advertising by its investment adviser, or any amendment or
supplement to any of the foregoing, not supplied for use therein
by or on behalf of LIFE COMPANY or its affiliates and on which
such persons have reasonably relied) or the negligent, illegal or
fraudulent conduct of LIFE COMPANY or its respective affiliates
or persons under their control, in connection with the sale,
marketing or distribution of the Contracts or Shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the Fund's
1933 Act registration statement, the Fund Prospectus, sales
literature or advertising of the Fund, or any amendment or
supplement to any of the foregoing, or the omission or alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance
upon and in conformity with information furnished in writing to
the Fund or its affiliates by or on behalf of LIFE COMPANY or its
affiliates for use in the Fund's 1933 Act registration statement,
the Fund Prospectus, sales literature or advertising of the Fund,
or any amendment or supplement to any of the foregoing; or
(iv) arise as a result of any failure by LIFE COMPANY or persons under
its control or any third party with which LIFE COMPANY has
contractually delegated administration responsibilities for the
Contracts to perform the obligations, provide the services and
furnish the materials required under the terms of this Agreement,
or any material breach of any representation and/or warranty made
by LIFE COMPANY or persons under its control in this Agreement or
that 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 a failure to transmit a request for purchase
or redemption of Shares or payment therefor within the time
period specified herein and otherwise in accordance with the
procedures set forth in this Agreement; or
(vi) arise as a result of any unauthorized use of the trade names of
the Fund to the extent such use is not required by applicable law
or regulation.
-18-
(b) This indemnification is in addition to any liability that LIFE COMPANY
may otherwise have. LIFE COMPANY shall not be liable under this Section 11.1
with respect to any losses, claims, damages, costs, expenses, liabilities or
actions to which an Indemnified Party would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance by that
Indemnified Party of its duties or by reason of that Indemnified Party's
reckless disregard of obligations or duties (i) under this Agreement, or (ii) to
the Fund.
(c) LIFE COMPANY shall not be liable under this Section 11.1 with respect
to any action against an Indemnified Party unless the Indemnified Party shall
have notified LIFE COMPANY in writing promptly after the summons or other first
legal process giving information of the nature of the action shall have been
served upon such Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but LIFE COMPANY shall
be relieved of liability under this Section 11.1 only to the extent the LIFE
COMPANY is damaged solely by reason of such Indemnified Party's failure to so
notify and failure to notify LIFE COMPANY of any such action shall not relieve
LIFE COMPANY from any liability which they may have to the Indemnified Party
against whom such action is brought otherwise than on account of this Section
11.1. Except as otherwise provided herein, in case any such action is brought
against an Indemnified Party, LIFE COMPANY shall be entitled to participate, at
its own expense, in the defense of such action and also shall be entitled to
assume the defense thereof, (which shall include, without limitation, the
conduct of any ruling request and closing agreement or other settlement
proceeding with the Internal Revenue Service (the "IRS")), with counsel approved
by the Indemnified Party named in the action, which approval shall not be
unreasonably withheld. After notice from LIFE COMPANY to such Indemnified Party
of LIFE COMPANY's election to assume the defense thereof, the Indemnified Party
will cooperate fully with LIFE COMPANY and shall bear the fees and expenses of
any additional counsel retained by it, and LIFE COMPANY will not be liable to
such Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection with
the defense thereof, other than reasonable costs of investigation.
11.2 Of LIFE COMPANY by the Fund
(a) Except to the extent provided in Sections 11.2(b) and 11.2(c) below,
the Fund 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 Fund) 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 Fund's
1933 Act registration statement, Fund Prospectus or sales
literature or advertising of the Fund (or any amendment or
supplement to any of the foregoing), or arise
-19-
out of or are based upon the omission or the alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, that this agreement to indemnify shall not apply to any
Indemnified Party if such statement or omission or such alleged
statement or omission was made in reliance upon and in conformity
with written information furnished to the Fund or its affiliates
by or on behalf of LIFE COMPANY or its affiliates for use in the
Fund's 1933 Act registration statement, the Fund Prospectus, or
in sales literature or advertising or otherwise for use in
connection with the sale of Contracts or Shares (or any amendment
or supplement to any of the foregoing); or
(ii) arise out of or as a result of any other 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
Fund or its affiliates and on which such persons have reasonably
relied) or the negligent, illegal or fraudulent conduct of the
Fund or its affiliates, in connection with the sale, marketing or
distribution of Shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Account's
1933 Act registration statement, any Account Prospectus, sales
literature or advertising covering the Contracts, or any
amendment or supplement to any of the foregoing, or the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance
upon and in conformity with written information furnished to LIFE
COMPANY, or its affiliates by or on behalf of the Fund for use in
any Account's 1933 Act registration statement, any Account
Prospectus, sales literature or advertising covering the
Contracts, or any amendment or supplement to any of the
foregoing; or
(iv) arise as a result of any failure by the Fund to perform the
obligations, provide the services and furnish the materials
required of it under the terms of this Agreement, including,
without limitation, any failure of the Fund or its designated
agent to inform LIFE COMPANY of the correct net asset values per
share for each Portfolio on a timely basis sufficient to ensure
the timely execution of all purchase and redemption orders at the
correct net asset value per share, or any material breach of any
representation and/or warranty made by
-20-
the Fund in this Agreement or arise out of or result from any
other material breach of this Agreement by the Fund.
(b) This indemnification is in addition to any liability that the Fund may
otherwise have. The Fund shall not be liable under this Section 11.2 with
respect to any losses, claims, damages, costs, expenses, liabilities or actions
to which an Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance by that
Indemnified Party of its duties or by reason of such Indemnified Party's
reckless disregard of its obligations and duties (i) under this Agreement, or
(ii) to LIFE COMPANY, each Account or Participants.
(c) The Fund 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 Fund in writing promptly after the summons or other first legal
process giving information of the nature of the action shall have been served
upon such Indemnified Party (or after such Indemnified Party shall have received
notice of such service on any designated agent), but the Fund shall be relieved
of liability under this Section 11.2 only to the extent the Fund is damaged
solely by reason of such Indemnified Party's failure to so notify and failure to
notify the Fund of any such action shall not relieve the Fund from any liability
which it may have to the Indemnified Party against whom such action is brought
otherwise than on account of this Section 11.2. Except as otherwise provided
herein, in case any such action is brought against an Indemnified Party, the
Fund will be entitled to participate, at its own expense, in the defense of such
action and also shall be entitled to assume the defense thereof (which shall
include, without limitation, the conduct of any ruling request and closing
agreement or other settlement proceeding with the IRS), with counsel approved by
the Indemnified Party named in the action, which approval shall not be
unreasonably withheld. After notice from the Fund to such Indemnified Party of
the Fund's election to assume the defense thereof, the Indemnified Party will
cooperate fully with the Fund and shall bear the fees and expenses of any
additional counsel retained by it, and the Fund will not be liable to such
Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection with
the defense thereof, other than reasonable costs of investigation.
11.3 Of LIFE COMPANY by the Distributor
(a) Except to the extent provided in Sections 11.3(b) and 11.3(c) below,
the Distributor 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 11.23) against any and all losses, claims, damages, costs,
expenses, liabilities (including amounts paid in settlement with the written
consent of the Fund) or actions in respect 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
-21-
the Fund's 1933 Act registration statement, Prospectus or sales
literature or advertising of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based
upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading; provided, that this
agreement to indemnify shall not apply to any Indemnified Party
if such statement or omission or such alleged statement or
omission was made in reliance upon and in conformity with written
information furnished to the Distributor, the Fund or their
affiliates by or on behalf of LIFE COMPANY or its affiliates for
use in the Fund's 1933 Act registration statement, the Fund
Prospectus, or in sales literature or advertising or otherwise
for use in connection with the sale of Contracts or Shares (or
any amendment or supplement to any of the foregoing); or
(ii) arise out of or as a result of any other 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
Distributor, the Fund or their affiliates and on which such
persons have reasonably relied) or the negligent, illegal or
fraudulent conduct of the Distributor, the Fund or their
affiliates or persons under their control, in connection with the
sale, marketing or distribution of Fund Shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Account's
1933 Act registration statement, any Account Prospectus, sales
literature or advertising covering the Contracts, or any
amendment or supplement to any of the foregoing, or the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance
upon and in conformity with written information furnished to LIFE
COMPANY, or its affiliates by or on behalf of the Distributor or
the Fund for use in any Account's 1933 Act registration
statement, any Account Prospectus, sales literature or
advertising covering the Contracts, or any amendment or
supplement to any of the foregoing; or
(iv) arise as a result of any failure by the Distributor or the Fund
to perform the obligations, provide the services and furnish the
materials required of it under the terms of this Agreement,
including, without limitation, any material failure of the Fund
or its designated agent to inform LIFE COMPANY of the correct net
asset values per share for each Portfolio on a timely basis
sufficient to ensure the timely execution of all purchase and
redemption orders at the
-22-
correct net asset value per share, or any material breach of any
representation and/or warranty made by the Distributor or the
Fund in this Agreement or arise out of or result from any other
material breach of this Agreement by the Distributor.
(b) This indemnification is in addition to any liability that the
Distributor may otherwise have. The Distributor shall not be liable under this
Section 11.3 with respect to any losses, claims, damages, costs, expenses,
liabilities or actions to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance by that Indemnified Party of its duties or by reason of such
Indemnified Party's reckless disregard of its obligations and duties (i) under
this Agreement, or (ii) to LIFE COMPANY, each Account or Participants.
(c) The Distributor shall not be liable under this Section 11.3 with
respect to any action against an Indemnified Party unless the Indemnified Party
shall have notified the Distributor in writing promptly after the summons or
other first legal process giving information of the nature of the action shall
have been served upon such Indemnified Party (or after such Indemnified Party
shall have received notice of such service on any designated agent), but the
Distributor shall be relieved of liability under this Section 11.3 only to the
extent the Distributor is damaged solely by reason of such Indemnified Party's
failure to so notify and failure to notify the Distributor of any such action
shall not relieve the Distributor from any liability which it may have to the
Indemnified Party against whom such action is brought otherwise than on account
of this Section 11.3. Except as otherwise provided herein, in case any such
action is brought against an Indemnified Party, the Distributor will be entitled
to participate, at its own expense, in the defense of such action and also shall
be entitled to assume the defense thereof (which shall include, without
limitation, the conduct of any ruling request and closing agreement or other
settlement proceeding with the IRS), with counsel approved by the Indemnified
Party named in the action, which approval shall not be unreasonably withheld.
After notice from the Distributor to such Indemnified Party of the Distributor's
election to assume the defense thereof, the Indemnified Party will cooperate
fully with the Distributor and shall bear the fees and expenses of any
additional counsel retained by it, and the Distributor 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
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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 Fund
All persons dealing with the Fund must look solely to the property of the
applicable Portfolio for the enforcement of any claims against the Fund as
neither the Board, Officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Fund.
Section 12. Applicable Law
(a) This Agreement will be construed and the provisions hereof interpreted
under and in accordance with New York law, without regard for that state's
principles of conflict of laws.
(b) This Agreement shall be subject to the provisions of the 1933 Act, the
Securities Exchange Act of 1934, and the 1940 Act, and the rules and regulations
and rulings thereunder, including such exemptions from those statutes, rules and
regulations as the SEC may grant (including, but not limited to, the Order) and
the terms hereof shall be interpreted and construed in accordance therewith.
Section 13. Execution in Counterparts
This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together with constitute one and the same instrument.
Section 14. Severability
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will not
be affected thereby.
Section 15. Rights Cumulative
The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, that the Parties are entitled to under federal and state
laws.
Section 16. Headings
The 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,
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disseminate or utilize such names and addresses and other confidential
information until such time as it may come into the public domain.
Section 18. Trademarks and Fund Names
(a) Pacific Investment Management Company LLC, the adviser to the Fund and
its affiliates, own all right, title and interest in and to the names,
trademarks and service marks "PIMCO", "Pacific Investment Management Company
LLC", "PIMCO Variable Insurance Trust", "PIMCO Funds Distributors LLC" and such
other tradenames, trademarks and service marks as may be identified from time to
time. 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 tradenames, trademarks and service marks
"GE Life and Annuity Assurance Company" and "GE Life & Annuity" and such other
tradenames, trademarks and service marks as may be identified to LIFE COMPANY
from time to time (the "GE licensed marks"). Upon termination of this Agreement
the Fund, the Distributor, and their affiliates shall cease to use the GE
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.
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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.
PIMCO Variable Insurance Trust
Attest: By:
--------------------- -----------------------------------
Name: Name:
----------------------- -----------------------------
Title: Title:
---------------------- ----------------------------
PIMCO Funds Distributors LLC
Attest: By:
--------------------- -----------------------------------
Name: Name:
----------------------- -----------------------------
Title: Title:
---------------------- ----------------------------
GE LIFE AND ANNUITY ASSURANCE COMPANY
on behalf of itself and its separate accounts
Attest: By:
--------------------- -----------------------------------
Name: Name:
----------------------- -----------------------------
Title: Title:
---------------------- ----------------------------
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SCHEDULE A
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
Foreign Bond Portfolio
High Yield Bond Portfolio
Total Return Bond Portfolio
Long-Term U.S. Government Bond Portfolio
SEPARATE ACCOUNTS UTILIZING THE FUNDS
Separate Account 4
Separate Account III
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
GE Choice Variable Annuity