AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT BY AND AMONG
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK ON BEHALF OF ITSELF
AND ITS SEPARATE ACCOUNTS,
FAM DISTRIBUTORS, INC.
AND
▇▇▇▇▇▇▇ ▇▇▇▇▇ VARIABLE SERIES FUNDS, INC.
WHEREAS, GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK on behalf of itself and
its separate accounts, FAM DISTRIBUTORS, INC. and ▇▇▇▇▇▇▇ ▇▇▇▇▇ VARIABLE SERIES
FUNDS, INC. have previously entered into a Participation Agreement dated May 1,
2004 (the "Agreement");
NOW, THEREFORE, the partied hereby agree as follows:
1. Schedule B is replaced in its entirety with the attached. (Amendment No. 1
to Schedule B)
2. Schedule C is replaced in its entirety with the attached. (Amendment No. 1
to Schedule C)
3. The Agreement, as supplemented by this Amendment and the Amendment No. 1 to
Schedules B and C attached hereto, is ratified and confirmed effective
April 29, 2005.
GE CAPITAL LIFE ASSURANCE COMPANY on behalf of
itself and its separate accounts
By:
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▇▇▇▇▇▇▇▇ ▇. Stiff
Senior Vice President
FAM DISTRIBUTORS, INC.
By:
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Name:
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Title:
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▇▇▇▇▇▇▇ ▇▇▇▇▇ VARIABLE SERIES FUNDS, INC.
By:
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Name:
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Title:
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Amendment No. 1 to Schedule B
Portfolios and Classes of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Variable Series Funds, Inc. Offered to
Segregated Accounts of GE Capital Life Assurance Company of New York:
▇▇▇▇▇▇▇ ▇▇▇▇▇ Basic Value V.I. Fund - Class III Shares
▇▇▇▇▇▇▇ ▇▇▇▇▇ Global Allocation V.I. Fund - Class III Shares
▇▇▇▇▇▇▇ ▇▇▇▇▇ Large Cap Growth V.I. Fund - Class III Shares
▇▇▇▇▇▇▇ ▇▇▇▇▇ Value Opportunities V.I. Fund - Class III Shares
Amendment No. 1 to Schedule C
The Fund, the Underwriter and their respective agents are authorized to
rely on instructions from the following individuals on behalf of GE Capital Life
Assurance Company of New York:
Name Signature
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▇▇▇▇ ▇. ▇▇▇▇▇▇▇ Vice President and Controller
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▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Vice President and Associate General Counsel
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▇▇▇▇▇▇ ▇▇▇▇▇▇ VA Leader
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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ VA Specialist
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Senior Vice President, General Counsel and Secretary
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J. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ Senior Vice President and Chief Financial Officer
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FUND PARTICIPATION AGREEMENT
THIS AGREEMENT is made this day of , 2004, by and among ▇▇▇▇▇▇▇
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▇▇▇▇▇ VARIABLE SERIES FUNDS, INC., an open-end management investment company
organized as a Maryland corporation (the "Fund"), FAM DISTRIBUTORS, INC., a
broker-dealer registered as such under the Securities Exchange Act of 1934, as
amended (the "Underwriter"), and GE Capital Life Assurance Company of New York,
a life insurance company organized under the laws of the State of New York (the
"Company"), on its own behalf and on behalf of each segregated asset account of
the Company set forth on Schedule A, as may be amended from time to time (the
"Accounts").
WITNESSETH:
WHEREAS, the Fund has filed a registration statement with the Securities
and Exchange Commission to register itself as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and to register the offer and sale of its shares under the Securities Act of
1933, as amended (the "1933 Act"); and
WHEREAS, the Fund desires to act as an investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts to be offered by insurance companies that have entered into
participation agreements with the Fund (the "Participating Insurance
Companies"); and
WHEREAS, the Underwriter is registered as a broker-dealer with the
Securities and Exchange Commission (the "SEC") under the Securities Exchange Act
of 1934, as amended (the "1934 Act"), is a member in good standing of The
National Association of Securities Dealers, Inc. (the "NASD") and acts as
principal underwriter of the shares of the Fund; and
WHEREAS, the capital stock of the Fund is divided into several series of
shares, each series representing an interest in a particular managed portfolio
of securities and other assets; and
WHEREAS, the several series of shares of the Fund offered by the Fund to
the Company and the Accounts are set forth on Schedule B attached hereto (each,
a "Portfolio," and, collectively, the "Portfolios"); and
WHEREAS, the Fund has received an order from the SEC granting Participating
Insurance Companies and their 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
(the "Shared Fund Exemptive Order");
WHEREAS, ▇▇▇▇▇▇▇ ▇▇▇▇▇ Investment Managers, L.P. ("MLIM") is duly
registered as an investment adviser under the Investment Advisers Act of 1940,
as amended, and is the Fund's investment adviser; and
WHEREAS, the Company has registered or will register under the 1933 Act
certain variable life insurance policies and/or variable annuity contracts
funded or to be funded through one or more of the Accounts (the "Contracts");
and
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WHEREAS, the Company has registered or will register each Account as a unit
investment trust under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Companies intend to purchase shares in one or more of the
Portfolios (the "Shares") on behalf of the Accounts to fund the Contracts, and
the Fund intends to sell such Shares to the relevant Accounts at such Shares'
net asset value.
NOW, THEREFORE, in consideration of their mutual promises, the parties
agree as follows:
ARTICLE 1
Sale and Purchase of the Fund Shares
1.1 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 effort to provide the 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
value. The Fund will notify the Company as soon as possible if on any Business
Day it is determined that the calculation of net asset value per share will be
available after 7:00 p.m. Eastern Time.
(b) The Company will place orders to purchase or redeem Shares with
the Fund or its designated agent, in writing or electronically by 8:30 a.m.
Eastern Time the following Business Day after receipt of such orders from the
Accounts.
(c) With respect to payment of the purchase price by the Company and
of redemption proceeds by the Fund, the 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 1.2, below.
(d) If the Fund provides materially incorrect Share net asset value
information (as determined under SEC guidelines), the Company or Fund, as
applicable, shall be entitled to an adjustment to the number of Shares purchased
or redeemed to reflect the correct net asset value per Share. Any material error
in the calculation or reporting of net asset value per Share, dividend or
capital gain information shall be reported promptly upon discovery to the
Company.
1.2 Payments
(a) The 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 5:00 P.M. Eastern Time on the Business Day the Fund is
notified of the purchase request for Shares.
(b) The Fund will wire payment in federal funds for net redemption's
to an account designated by the Company by 5:00 p.m. Eastern Time on the
Business Day the order is placed. The Fund
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shall not bear any responsibility whatsoever for the proper disbursement or
crediting of redemption proceeds by the Company. Such payment may be delayed if,
for example, the Fund's cash position so requires or if extraordinary market
conditions exist, but in no event shall payment be delayed for a greater period
than is permitted by the ▇▇▇▇ ▇▇▇.
1.3 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 the Company receives
prior to the close of regular trading on any Business Day (ordinarily 4:00 p.m.
Eastern Time) 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), the 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 (i) such orders are received by the
Company in good order prior to the close of trading on any Business Day; and
(ii) that the Fund receives written notice of such orders by 9:00 a.m. Eastern
Time on the following Business Day.
(b) All other Share purchases and redemptions by the Company will be
effected at the net asset values of the appropriate Portfolios next computed
after receipt by the Fund, its designated agent of the order therefore, and such
orders will be irrevocable.
1.4 Dividends and Distributions
The Fund or its designated agent will furnish notice by telephone
(followed by written confirmation) on or prior to the payment date to the
Company of any income dividends or capital gain distributions payable on the
Shares of any Portfolio. The 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 the Company otherwise notifies
the Fund or its designated agent in writing, it being agreed by the Parties that
the ex-dividend date and the payment date with respect to any dividend or
distribution will be the same Business Day.
1.5 Book Entry
Issuance and transfer of Portfolio Shares will be by book entry only.
Stock certificates will not be issued to the Company. Shares ordered from the
Fund will be recorded in an appropriate title for the Company, on behalf of its
Accounts.
1.6 The Underwriter reserves the right to reject any purchase orders, including
exchanges, for any reason, including if the Underwriter, in its sole opinion,
believes the Company's Contract holder(s) is engaging in short-term or excessive
trading into and out of a Portfolio or otherwise engaging in trading that may be
disruptive to a Portfolio ("Market Timing"). The Company agrees to cooperate
with the Underwriter and the Fund to monitor for Market Timing by its Contract
holders, to provide such relevant information about Market Timers to Underwriter
as it may reasonably request, including but not limited to such Contract
holder's identity, and to prevent Market Timing from occurring by or because of
Contract holders. Failure of either the Underwriter or the Fund to reject any
purchase orders that might be deemed to be Market Timing shall not constitute a
waiver of the Underwriter's rights under this section.
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ARTICLE 2
Obligations of the Parties
2.1 Except as otherwise specifically provided herein, each party will bear
all expenses incident to its performance under this Agreement. The Fund shall
pay no fee or other compensation to the Company under this Agreement.
Notwithstanding the preceding sentence, the Underwriter agrees to pay to the
Company an amount equal to the relevant Rule 12b-1 fee for such class of Shares
sold to the Company, as such fee is described in the Fund's then current
prospectus and Rule 12b-1 plan, in exchange for distribution and/or account
maintenance services performed by the Company.
2.2 The Fund shall prepare and be responsible for filing with the SEC and
any state securities regulators requiring such filing, all shareholder reports,
notices, proxy materials (or similar materials such as voting instruction
solicitation materials), prospectuses and statements of additional information
of the Fund required to be so filed. The Fund shall bear the costs of
registration and qualification of its Shares, preparation and filing of the
documents listed in this Section 2.1 and all taxes to which an issuer is subject
on the issuance and transfer of its Shares.
2.3 Distribution Expenses
The 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
(including any supplements thereto), statements of additional information, proxy
materials and periodic reports. These costs would also include the costs of
preparing, printing, and distributing sales literature and advertising relating
to the Portfolios (all of which require the prior written consent of the Fund or
its agents) to the extent such materials are distributed in connection with the
Contracts, and, except for advertising materials prepared by the Fund, filing
such materials with, and obtaining approval from, the SEC, NASD, any state
insurance regulatory authority, and any other appropriate regulatory authority,
to the extent required by law.
2.4 Other Expenses
(a) The Fund will bear the cost of printing and delivering the Fund
Prospectus to existing Participants who have directed the Company to purchase
Shares of the Fund, and will bear the proportionate cost of preparing and
printing any supplements or amendments to the Fund Prospectus to the extent that
such supplements or amendments were not required by the Company. As mutually
agreed, the Fund or the Adviser shall either (a) provide the Company with as
many copies of the Fund's current prospectus, annual report, semi-annual report
and other shareholder communications, including any amendments or supplements to
any of the foregoing, as the Company shall reasonably request; or (b) provide
the Company in electronic format (PDF or other agreed upon format) of such
documents in a form suitable for printing) and as stated in Section 2.4(c)
below.
(b) The Company will bear the costs of preparing, filing with the SEC
and printing each Contract's prospectus, statement of additional information and
any amendments or supplements thereto (collectively, the "Contract 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 the Company.
(c) The Company will, to the extent required by law, print in quantity
and deliver to existing Participants the documents described in Section 2.4(b)
above and will deliver to such Participants the prospectuses as provided by the
Fund. The Company may elect to receive such prospectuses in camera ready
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and/or computer diskette format and the Fund will make reasonable effort to use
computer formatting requested by the Company, including but not limited to, PDF,
HTML. The Fund will print the Fund statement of additional information, proxy
materials relating to the Fund and periodic reports of the Fund.
2.5 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.
2.6 Documents Provided by The Company; Information About the Fund
(a) The 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,
within five Business Days preceding the filing of such document with the SEC or
other regulatory authorities, provided such filing names or directly effects the
Fund or the Adviser.
(b) The 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) For the purposes of this Section 2.6, the phrase "sales literature
or other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article)), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials.
2.7 Documents Provided by Fund; Information About The Company
(a) The Fund will provide to the 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, within a reasonable period of time following
with the filing of such document with the SEC or other regulatory authorities.
(b) The Fund will provide to the Company copies of all Fund
prospectuses, and printed copies of all statements of additional information,
proxy materials, periodic reports to shareholders and other materials required
by law to be sent to Participants who have allocated any Contract value to a
Portfolio. The Fund will provide such copies to Company in a timely manner so as
to enable the Company to print and distribute such materials within the time
required by law to be furnished to Participants.
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(c) The Fund will provide to the Company or its designated agent at
least one (1) complete copy of each piece of sales literature or other
promotional material in which the 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 the Company or its designated
agent reasonably objects to such use within ten (10) Business Days after receipt
of such material or such shorter period as the Parties hereto may, from time to
time, agree upon.
(d) Neither the Fund nor any of its affiliates will give any
information or make any representations or statements on behalf of or concerning
the Company, each Account, or the Contracts other than (i) the information or
representations contained in the registration statement, including each Account
Prospectus contained therein, relating to the Contracts, as such registration
statement and Account Prospectus may be amended from time to time; (ii) in
published reports for the Account or the Contracts that are in the public domain
and approved by the Company for distribution; or (iii) in sales literature or
other promotional material approved by the Company or its affiliates, except as
required by legal process or regulatory authorities or with the express written
permission of the Company.
(e) The Underwriter shall maintain and implement procedures reasonably
designed to ensure that information concerning the Company, and its respective
affiliates that is intended for use only by brokers or agents selling the
Contracts (i.e., information that is not intended for distribution to
Participants) ("broker only materials") is so used, and neither the 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 2.7, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article)), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials.
2.8 At the reasonable request of the Fund or its designee, the Company
shall furnish, or shall cause to be furnished, to the Fund or its designee
copies of the following reports:
(a) the Company's annual financial report (prepared under generally
accepted accounting principles ("GAAP"), if any);
(b) the Company's quarterly statements, if any;
(c) any financial statement, proxy statement, notice or report of the
Company sent to policyholders;
(d) any registration statement (without exhibits) and financial reports of
the Company filed with any state insurance regulator.
2.9 At the reasonable request of the Company or its designee, the Fund or
the Underwriter shall furnish, or cause to be furnished, to the Company or its
designee copies of the following reports:
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(a) the Fund's annual financial report (prepared under generally accepted
accounting principles ("GAAP"), if any);
(b) the Fund's quarterly statements, if any;
(c) any registration statement (without exhibits) and financial reports of
the Fund filed with any regulator.
2.10 The Company shall not give any information or make any representations
or statements on behalf of or concerning the Fund Parties in connection with the
Contracts other than information or representations contained in and accurately
derived from the registration statement or prospectus for the Shares (as such
registration statement and prospectus may be amended or supplemented from time
to time), reports of the Fund, Fund-sponsored proxy statements, or in sales
literature or other promotional material approved by the Fund or Underwriter,
except with the written permission of the Fund or Underwriter.
2.11 Neither the Fund nor the Underwriter shall give any information or
make any representations or statements on behalf of the Company or concerning
the Company, the Accounts or the Contracts other than information or
representations contained in and accurately derived from the registration
statements or prospectuses for the Contracts (as such registration statements
and prospectuses may be amended from time to time), reports of the Contracts,
Contract supported proxy statements, or in sales literature or other promotional
material approved by the Company, except with written permission by the Company.
2.12 The Company shall register and qualify the Contracts for sale to the
extent required by applicable law. The Company shall amend the registration
statement of the Contracts under the 1933 Act and registration statement for
each Account under the 1940 Act from time to time as required in order to effect
the continuous offering of the Contracts or as may otherwise be required by
applicable law. The Company shall register and qualify the Contracts for sale to
the extent required by applicable securities laws and insurance laws of the
various states.
2.13 Solely with respect to Contracts and Accounts, if any, which are
subject to the 1940 Act, so long as, and to the extent that the SEC interprets
the 1940 Act to require pass-through voting privileges for variable
policyowners: (a) the Company will provide pass-through voting privileges to
owners of Contracts whose cash values are invested, through the Accounts, in
Shares; (b) the Fund shall require all Participating Insurance Companies that
invest in the Fund on behalf of separate accounts which are registered as unit
investment trusts under the 1940 Act to calculate voting privileges in the same
manner and the Company shall be responsible for assuring that the Accounts
calculate voting privileges in the manner established by the Fund; and (c) with
respect to each Account, the Company will vote Shares held by the Account and
for which no timely voting instructions from Contract owners are received in the
same proportion as the Company votes Shares held by the Account for which timely
voting instructions are received from policy owners. To the extent that the
Company provides pass-through voting privileges to owners of Contracts whose
cash values are invested, through the Accounts, in Shares, the Company and its
agents will in no way recommend or oppose or interfere with the solicitation of
proxies for Fund Shares held by Contract owners without the prior written
consent of the Fund, which consent may be withheld in the Fund's sole
discretion.
2.14 Notice of Certain Proceedings and Other Circumstances
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(a) The Fund will immediately notify the 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's
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; or (iv) any other
action or circumstances that may prevent the lawful offer or sale of
Shares of any Portfolio in any state or jurisdiction, including,
without limitation, any circumstance 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) The 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 the Account's
registration statement under the 1933 Act and the 1940 Act relating to
the Contracts or each Account's prospectus; (ii) any request by the
SEC for any amendment to such registration statement or the Account
Prospectus that may affect the offering of Shares of any Portfolio;
(iii) the initiation of any proceedings for that purpose or for any
other purpose relating to the registration or offering of each
Account's interests pursuant to the Contracts; or (iv) any other
action or circumstances that may prevent the lawful offer or sale of
said interests in any state or jurisdiction, including, without
limitation, any circumstance 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. The Company will
make every reasonable effort to prevent the issuance of any such stop
order, cease and desist order or similar order and, if any such order
is issued, to obtain the lifting thereof at the earliest possible
time.
ARTICLE 3
Representations and Warranties
3.1 The Company represents and warrants that it is an insurance company
duly organized and in good standing under the laws of the Commonwealth of
Virginia and has established each Account as a segregated asset account under
such law on the date set forth in Schedule A.
3.2 The Company represents and warrants that it 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 1940 Act, unless
otherwise exempt therefrom, to serve as a segregated investment account for the
Contracts. The Company further represents and warrants that the Contracts will
be registered under the 1933 Act, unless otherwise exempt therefrom, prior to
any issuance or sale of the Contracts; the Contracts will be issued and sold in
compliance in all material respects with all applicable federal and state laws;
and the sale of the Contracts shall comply in all material respects with state
insurance requirements.
3.3 The Company represents and warrants that the Contracts are currently
and at the time of issuance will be treated as annuity contracts or life
insurance policies, whichever is appropriate, under applicable provisions of the
Internal Revenue Code of 1986, as amended. The Company shall make every effort
to maintain such treatment and shall notify the Fund and the Underwriter
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.
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3.4 (a) The Company shall (i) qualify each Contract as a "variable annuity
contract" or variable life insurance policy" for purposes of 817(h) of the Code
and Treasury Regulations promulgated thereunder, (ii) maintain such
qualification for each Contract, (iii) qualify each Account as a "segregated
asset account" for purposes of Section 817(h) of the Code and Treasury
Regulations promulgated thereunder, (iv) maintain such qualification for each
Account, (v) ensure that access to each Account is and will continue to be only
available through the purchase of a "variable contract" within the meaning of
Section 1.817-5(t)(2)(B) of the Treasury Regulations, (vi) only purchase Shares
on behalf of an Account or its general account within the meaning of Section
1.817-5(f)(3)(i) of the Treasury Regulations, provided that it otherwise
satisfies the requirements of said section of the Treasury Regulations.
(b) The 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. The Company will continue to meet such definitional
requirements and 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.
3.5 The Fund represents and warrants that it is duly organized and validly
existing under the laws of the State of Maryland.
3.6 The Fund represents and warrants that the Fund Shares offered and sold
pursuant to this Agreement will be registered under the 1933 Act and the Fund is
registered under the ▇▇▇▇ ▇▇▇. The Fund shall amend its 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. If the Fund determines that notice
filings are appropriate, the Fund shall use its best efforts to make such notice
filings in accordance with the laws of such jurisdictions reasonably requested
by the Company.
3.7 The Fund represents that it will comply and maintain each Portfolio's
compliance with the diversification requirements set forth in Section 817(h) of
the Code and Section 1.817-5 of the regulations under the Code. The Fund will
notify the Company immediately upon having a reasonable basis for believing that
a Portfolio has ceased to so comply or that a Portfolio might not so comply in
the future. In the event of a breach of this Section 3.6 by the Fund, it will
take all reasonable steps to adequately diversify the Portfolio so as to achieve
compliance within the grace period afforded by Section 1.817-5 of the
regulations under the Code.
3.8 The Fund represents and warrants that each Portfolio is currently
qualified as a regulated investment company ("RIC") under Subchapter M of the
Code, and represents that it will use its best efforts to qualify and to
maintain qualification of each Portfolio as a RIC. The Fund will notify the
Company immediately upon having a reasonable basis for believing that a
Portfolio has ceased to so qualify or that it might not so qualify in the
future.
ARTICLE 4
Potential Conflicts
4.1 The parties acknowledge that the Fund's Shares may be made available
for investment to other Participating Insurance Companies. In such event, the
Directors of the Fund will monitor the Fund for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. 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
9
interpretative letter, or any similar action by insurance, tax, or securities
regulatory authorities; (c) an administrative or judicial decision in any
relevant proceeding; (d) the manner in which the investments of any Portfolio
are being managed; (e) a difference in voting instructions given by variable
annuity contract and variable life insurance contract owners; or (f) a decision
by an insurer to disregard the voting instructions of contract owners. The
Directors shall promptly inform the Company if they determine that an
irreconcilable material conflict exists and the implications thereof.
4.2 The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Fund. The Company will assist the Fund in
carrying out their responsibilities under the Shared Fund Exemptive Order by
providing the Fund with all information reasonably necessary for them to
consider any issues raised including, but not limited to, information as to a
decision by the Company to disregard Contract owner voting instructions.
4.3 If it is determined by a majority of the Directors, or a majority of
the Fund's Directors who are not affiliated with the Adviser or the Underwriter
(the "Disinterested Directors"), that a material irreconcilable conflict exists
that affects the interests of Contract owners, the Company shall, in cooperation
with other Participating Insurance Companies whose contract owners are also
affected, at its expense and to the extent reasonably practicable (as determined
by the Directors) take whatever steps are necessary to remedy or eliminate the
irreconcilable material conflict, which steps could include: (a) withdrawing the
assets allocable to some or all of the 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 of whether
or not such segregation should be implemented to a vote of all affected
Contracts owners and, as appropriate, segregating the assets of any appropriate
group (i.e., annuity contract owners, life insurance contract owners, or
variable 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 (b) establishing a new management
investment company or managed separate account.
4.4 If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner 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 Directors. Any such withdrawal
and termination must take place within 30 days after the Fund gives written
notice that this provision is being implemented, subject to applicable law but
in any event consistent with the terms of the Shared Fund Exemptive Order. Until
the end of such 30 day period, the Fund shall continue to accept and implement
orders by the Company for the purchase and redemption of Shares.
4.5 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 60 days after the Fund informs the Company in writing that
it has determined that such decision has created an irreconcilable material
conflict; provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the Disinterested Directors. Until the end of
such 60 day period, the Fund shall continue to accept and implement orders by
the Company for the purchase and redemption of shares of the Fund.
4.6 For purposes of section 4.3 through 4.6 of this Agreement, a majority
of the Disinterested Directors shall determine whether any proposed action
adequately remedies any irreconcilable material
10
conflict, but in no event will the Company be required 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 Directors determine 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 30 days after the Directors inform 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 Directors.
4.7 The Company shall at least annually submit to the Directors such
reports, materials or data as the Directors may reasonably request so that the
Directors may fully carry out the duties imposed upon them by the Shared Fund
Exemptive Order, and said reports, materials and data shall be submitted more
frequently if deemed appropriate by the Directors.
4.8 If and to the extent that (a) 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
1940 Act or the rules promulgated thereunder with respect to mixed or shared
funding (as defined in the application for the Shared Fund Exemptive Order) on
terms and conditions materially different from those contained in the
application for the Shared Fund Exemptive Order, or (b) the Shared Fund
Exemptive Order is granted on terms and conditions that differ from those set
forth in this Article 4, then the Fund and/or the Participating Insurance
Companies, as appropriate, shall take such steps as may be necessary (a) 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, or (b) to conform this Article 4 to the
terms and conditions contained in the Shared Fund Exemptive Order, as the case
may be.
ARTICLE 5
Indemnification
5.1 The Company agrees to indemnify and hold harmless the Fund Parties and
each of their respective Directors, officers, employees and agents and each
person, if any, who controls a Fund Party within the meaning of Section 15 of
the 1933 Act (collectively the "Indemnified Parties" for purposes of this
Article 5) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of the Company) or expenses
(including the reasonable costs of investigating or defending any alleged loss,
claim, damage, liability or expense and reasonable legal counsel fees incurred
in connection therewith) (collectively, "Losses"), to which the Indemnified
Parties may become subject under any statute or regulation, or common law or
otherwise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration
statement, Account prospectus, sales literature or other advertising for
the Contracts (or any amendment or supplement to any of the foregoing)
(collectively, "Company Documents" for the purposes of this Article 5), 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 indemnity
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 was
accurately derived from written information furnished to the Company by or
on behalf of the Fund or Underwriter for use in Company Documents or
otherwise for use in connection with the sale of the Contracts or Shares;
or
11
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Fund Documents as defined in Section 5.2(a)) or wrongful conduct of the
Company or persons under its control, with respect to the sale, marketing
or distribution of the Contracts or Shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Fund Documents as defined in
Section 5.2(a) 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 accurately derived from written information furnished to
the Fund or Underwriter by or on behalf of the Company; or
(d) arise out of or result from any failure by the Company to provide
the services or furnish the materials required under the terms of this
Agreement;
(e) 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;
(f) arise as a result of failure to transmit a request for purchase or
redemption of Shares or payment therefore within the time period specified
herein and otherwise in accordance with the procedures set forth in this
Agreement; or
(g) arise as a result of any unauthorized use of trade names of the
Fund to the extent such use is not required by applicable law or
regulation.
5.2 The Underwriter and the Fund agree to indemnify and hold harmless the
Company and each of its directors, officers, employees and agents 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 Article
5) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Fund Parties) or expenses
(including the reasonable costs of investigating or defending any alleged loss,
claim, damage liability or expense and reasonable legal counsel fees incurred in
connection therewith) (collectively, "Losses"), to which the Indemnified Parties
may become subject under any statute or regulation, or at common law or other
wise, insofar as such Losses:
(a) arise out of or are based upon any untrue statements or alleged
untrue statement of any material fact contained in the registration
statement or prospectus for the Fund (or any amendment or supplement
thereto) (collectively, "Fund Documents" for the purposes of this Article
5), 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 indemnity
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 was
accurately derived from written information furnished to the Fund Parties
by or on behalf of the Company for use in Fund Documents or otherwise for
use in connection with the sale of the Contracts or Shares; or
(b) arise out of or result from statements or representations (other
than statements or representations contained in and accurately derived from
Company
12
Documents) or wrongful conduct of a Fund Party or persons under its
respective control, with respect to the sale, marketing or distribution of
the Contracts or Shares; or
(c) arise out of or result from any untrue statement or alleged untrue
statement of a material fact contained in Company Documents 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 accurately derived from
written information furnished to the Company by or on behalf of the Fund
Parties; or
(d) arise out of or result from any failure by the Underwriter or the
Fund to provide the services or furnish the materials required under the
terms of this Agreement;
(e) arise out of or result from any material breach of any
representation and/or warranty made by the Underwriter or the Fund in this
Agreement or arise out of or result from any other material breach of this
Agreement by the Underwriter or the Fund; or
(f) arise as a result of any unauthorized use of trade names of the
Company to the extent such use is not required by applicable law or
regulation.
5.3 Neither the Company, the Underwriter nor the Fund shall be liable under
the indemnification provisions of Section 5.1 or 5.2, as applicable, with
respect to any Losses incurred or assessed against any Indemnified Party to the
extent such Losses arise out of or result 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.
5.4 Neither the Company, the Underwriter nor the Fund shall be liable under
the indemnification provisions of Section 5.1 or 5.2, as applicable, with
respect to any claim made against an Indemnified Party unless such Indemnified
Party shall have notified the other party in writing within a reasonable time
after the summons, or other first written notification, giving information of
the nature of the claim shall have been served upon or otherwise received by
such Indemnified Party (or after such Indemnified Party shall have received
notice of service upon or other notification to any designated agent), but
failure to notify the party against whom indemnification is sought of any such
claim shall not relieve that party from any liability which it may have to the
Indemnified Party in the absence of Sections 5.1 and 5.2 unless such party shall
be prejudiced in its ability to defend as a result of such failure to notify.
5.5 In case any such action is brought against the Indemnified Parties, the
indemnifying party shall be entitled to participate, at its own expense, in the
defense of such action. The indemnifying party also shall be entitled to assume
the defense thereof, with counsel reasonably satisfactory to the party named in
such action. After notice from the indemnifying party to the Indemnified Party
of an election to assume such defense, the Indemnified Party shall bear the fees
and expenses of any additional counsel retained by it, and the indemnifying
party will not be liable to the Indemnified 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.
5.6 Effect of Notice
13
Any notice given by the indemnifying party to an Indemnified Party
above of participation in or control of any action by the indemnifying party
will in no event be deemed to be an admission by the indemnifying party of
liability, culpability or responsibility, and the indemnifying party will remain
free to contest liability with respect to the claim among the Parties or
otherwise.
5.7 Successors
A successor by law of any party shall be entitled to the benefits of
the indemnification contained in this Section 5.
5.8 Force of Nature
The Fund, the Underwriter and/or the Company shall not be responsible
or liable for any failure or delay in the performance of their obligations under
this Agreement, arising out of or caused, directly or indirectly, by
circumstances beyond their control, including without limitation, acts of God;
earthquakes; fires; floods; wars; civil or military disturbances; sabotage;
terrorism; epidemics; riots; interruptions; loss or malfunctions of utilities;
transportation; computer (hardware or software) or communications service;
accidents; labor disputes; acts of civil or military authority; governmental
actions; or inability to obtain labor, material, equipment or transportation.
ARTICLE 6
Termination
6.1 This Agreement may be terminated by either party for any reason by six
(6) months' advance written notice delivered to the other party.
6.2 This Agreement may be terminated at the option of either the
Underwriter or 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 operation of the Account, the administration
of the Contracts or the purchase of the Shares, or an expected or anticipated
ruling, judgment or outcome which would, in the Fund's or the Underwriter's
respective reasonable judgment, materially impair the Company's ability to meet
and perform the Company's obligations and duties hereunder.
6.3 This Agreement may be terminated at the option of the Fund or the
Underwriter if the Internal Revenue Service determines that the Contracts cease
to qualify as annuity contracts or life insurance policies, as applicable, under
the Code, or if the Fund or Underwriter reasonably believes that the Contracts
may fail to so qualify.
6.4 This Agreement may be terminated by the Fund or the Underwriter, at
either's option, if either the Fund or the Underwriter shall determine, in its
sole judgment exercised in good faith, that either (1) the Company shall have
suffered a material adverse change in its business or financial condition, (2)
the Company shall have been the subject of material adverse publicity which is
likely to have a material adverse impact upon the business and operations of
either the Fund or the Underwriter, or (3) the Company breaches any obligation
under this Agreement in a material respect and such breach shall continue
unremedied for thirty (30) days after receipt by the Company of notice from the
Fund or Underwriter of such breach.
6.5 This Agreement may be terminated at the option of the Company upon the
institution of formal proceedings against the Fund, the Adviser or the
Underwriter by the NASD, the SEC, the state
14
securities department or any other regulatory body regarding the Fund's,
Adviser's or Underwriter's duties under this Agreement or related to the sale of
Portfolio Shares, the Operation of the Fund or its Portfolios, the
administration of the Fund or its Portfolios, or an expected or anticipated
ruling, judgment or outcome which would, in the Company's respective reasonable
judgment, materially impair the Fund, the Adviser or the Underwriter to meet and
perform any an all obligations and duties hereunder.
6.6 This Agreement may be terminated at the option of the Company if the
Internal Revenue Service determines that any Portfolio fails to qualify as a
"Regulated Investment Company" under the Code or fails to comply with the
diversification requirements of Section 817(h) of the Code, or if the Company
reasonably believes that the Portfolio may fail to so qualify.
6.6 This Agreement may be terminated if the Company shall determine, in its
sole reasonable judgment exercised in good faith, that either (1) the Fund shall
have suffered a material adverse change in its business or financial condition;
(2) the Fund or the Underwriter shall have been the subject of material adverse
publicity which is likely to have a material adverse impact upon the business
and operations of the Company, or (3) the Fund or Underwriter breaches any
obligation under this Agreement in a material respect and such breach shall
continue unremedied for thirty (30) days after receipt of notice to the Fund or
the Underwriter from the Company of such breach.
6.7 Notwithstanding any termination of this Agreement, the Fund will, upon
the mutual agreement of the parties hereto, continue to make available
additional shares of the Fund pursuant to the terms and conditions of this
Agreement, for all existing Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without limitation, if the Fund and Underwriter so agree to make
additional Shares available, the owners of the Existing Contracts will be
permitted to reallocate investments in the Fund (as in effect on such date),
redeem investments in the Fund and/or invest in the Fund upon the making of
additional purchase payments under the Existing Contracts.
6.8 In the event of a termination of this Agreement pursuant to this
Article 6, the Fund and the Underwriter shall promptly notify the Company
whether the Underwriter and the Fund will continue to make Shares available
after such termination; if the Underwriter and the Fund will continue to make
Shares so available, the provisions of this Agreement shall remain in effect
except for Section 6.1 and thereafter either the Fund, Underwriter or the
Company may terminate the Agreement as so continued pursuant to this Section 6.8
upon prior written notice to the other parties, such notice to be for a period
that is reasonable under the circumstances but need not be greater than six
months.
6.9 The provisions of Article 5 shall survive the termination of this
Agreement, and the provisions of Article 4 and Article 2 shall survive the
termination of this Agreement as long as shares of the Fund are held on behalf
of Contract owners in accordance with Section 6.8.
6.10 All warranties and indemnifications will survive the termination of
this Agreement.
ARTICLE 7
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 or the Underwriter:
15
▇▇▇▇▇▇▇ ▇▇▇▇▇ Variable Series Funds, Inc.
c/o FAM Distributors, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
If to the Company:
GE Capital Life Assurance Company of New York
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ARTICLE 8
Trademarks and Trust Names
(a) The Fund and its affiliates, own all right, title and interest in
and to the names, trademarks and service marks and such other trade names,
trademarks and service marks as may be identified to the Company from time to
time (the " licensed marks"). Upon termination of this Agreement the Company and
its affiliates shall cease to use the licensed marks, except to the extent
required by law or regulation.
(b) GE Capital Life Assurance Company of New York and its affiliates,
own all right, title and interest in and to the trade names, trademarks and
service marks as may be identified to the Adviser, Underwriter and/or the Fund
from time to time (the "Company licensed marks"). Upon termination of this
Agreement the Fund, the Adviser and their affiliates shall cease to use the
Company licensed marks, except to the extent required by law or regulation.
ARTICLE 9
Confidentiality and Anti-Money Laundering
Subject to the requirements of legal process and regulatory authority,
each party hereto shall treat as confidential the names and addresses of
customers of the other party and all information reasonably identified as
confidential in writing by any other party hereto and, except as permitted by
this Agreement, shall not, without the express written consent of the affected
party, disclose, disseminate or utilize such names and addresses and other
confidential information until such time as it may come into the public domain.
The Company hereby certifies that it has established and maintains an
anti-money laundering ("AML") program that includes written policies, procedures
and internal controls reasonably designed to identify its Contract holders and
has undertaken appropriate due diligence efforts to "know its customers" in
accordance with all applicable anti-money laundering regulations in its
jurisdiction including, where applicable, the USA PATRIOT Act of ▇▇▇▇ (▇▇▇
"▇▇▇▇▇▇▇ ▇▇▇"). The Company further confirms that it will monitor for suspicious
activity in accordance with the requirements of the Patriot Act. The Company
agrees to provide the Underwriter with such information as it may reasonably
request, including but not limited to the filling out of questionnaires,
attestations and other documents, to enable the Underwriter to fulfill its
obligations under the Patriot Act, and, upon its request, to file a notice
16
pursuant to Section 314 of the Patriot Act and the implementing regulations
related thereto to permit the voluntary sharing of information between the
parties hereto. Upon filing such a notice the Company agrees to forward a copy
to the Underwriter, and further agrees to comply with all requirements under the
Patriot Act and implementing regulations concerning the use, disclosure, and
security of any information that is shared.
Notwithstanding the foregoing, the Parties acknowledge and agree that
their rights and obligations under this Agreement are subject to all applicable
federal and state privacy laws, including Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act
and any implementing rules, regulations and authoritative guidelines of any
applicable regulatory agency thereunder, and any other privacy laws to which the
Parties may be subject. The Parties further agree that no party shall be
obligated to take any action under this Agreement which is prohibited under any
such law, rule regulation or authoritative guideline of any applicable
regulatory agency, and that they shall amend this Agreement to the extent
necessary to comply with such federal and state privacy laws, rules, regulations
or authoritative guidelines of any applicable regulatory agency.
ARTICLE 10
Miscellaneous
10.1 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.
10.2 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
10.3 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.
10.4 This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the State of New York
without reference to the conflict of laws provisions thereof, and shall, to the
extent applicable, be subject to the provisions of the 1933, 1934, and 1940
Acts, and the rules, regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant and
the terms hereof shall be interpreted and construed in accordance therewith.
10.5 The parties to this Agreement acknowledge and agree that the Fund is a
Maryland corporation, and that all liabilities of the Fund arising, directly or
indirectly, under this Agreement, of any and every nature whatsoever, shall be
satisfied solely out of the assets of the relevant Portfolio(s) of the Fund and
that no Director, officer, agent or holder of Shares of the Fund shall be
personally liable for any such liabilities.
10.6 Each party 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.
10.7 The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, to which the parties hereto are entitled under state and
federal laws.
17
10.8 The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
10.9 Neither this Agreement nor any rights or obligations hereunder may be
assigned by either party without the prior written approval of the other
parties.
10.10 No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by all
parties.
18
IN WITNESS WHEREOF, the parties have caused their duly authorized officers
to execute this Fund Participation Agreement as of the date and year first above
written.
GE CAPITAL LIFE ASSURANCE COMPANY OF
NEW YORK
By:
------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. Stiff
Title: Senior Vice President
▇▇▇▇▇▇▇ ▇▇▇▇▇ VARIABLE SERIES FUNDS,
INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
FAM DISTRIBUTORS, INC.
By:
------------------------------------
Name:
----------------------------------
Title:
---------------------------------
19
Schedule A
Segregated Accounts of GE Capital Life Assurance Company of New York
Participating in Portfolios of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Variable Series Funds, Inc.
GE Capital Life Separate Account II
GE Capital Life Separate Account III
20
Schedule B
Portfolios and Classes of ▇▇▇▇▇▇▇ ▇▇▇▇▇ Variable Series Funds, Inc. Offered to
Segregated Accounts of GE Capital Life Assurance Company of New York
▇▇▇▇▇▇▇ ▇▇▇▇▇ Basic Value V.I. Fund - Class III Shares
▇▇▇▇▇▇▇ ▇▇▇▇▇ Small Cap Value V.I. Fund - Class III Shares
21
Schedule C
Persons Authorized to Act on Behalf of GE Capital Life Assurance Company of New
York
The Fund, the Underwriter and their respective agents are authorized to
rely on instructions from the following individuals on behalf of GE Capital Life
Assurance Company of New York:
Name Signature
---- ---------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Vice President and Controller
▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
Vice President and Associate General Counsel
▇▇▇▇▇▇ ▇▇▇▇▇▇,
VA Leader
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇,
VA Specialist
▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
Senior Vice President and General Counsel and Secretary
▇▇▇▇▇ ▇. ▇▇▇▇,
Senior Vice President and Chief Financial Officer
22
