FUND PARTICIPATION AGREEMENT
BETWEEN
EVERGREEN VARIABLE ANNUITY TRUST
AND
GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK
THIS AGREEMENT is made this 30th day of April, 2004 between EVERGREEN
VARIABLE ANNUITY TRUST, an open-end management investment company organized as a
Delaware business trust (the "Trust"), 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").
W I T N E S S E T H:
WHEREAS, the Trust is registered as an open-end management investment
company under the Investment Company Act of 1940, as amended (the "1940 Act"),
and the offer and sale of its shares are registered under the Securities Act of
1933, as amended (the "1933 Act"); and
WHEREAS, the Trust 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 Trust (the "Participating Insurance
Companies"); and
WHEREAS, the beneficial interest in the Trust is divided into several
series of shares, each series representing an interest in a particular managed
portfolio of securities and other assets (the "Portfolios"); and
WHEREAS, the Trust has obtained an order from the Securities and
Exchange Commission ("Commission") granting Participating Insurance Companies
and their separate account(s) exemptions from the provisions of Section(s) 9(a),
13(a), 15(a) and 15(b) of the 1940 Act and Rules 6e-2(b)(15) and 6e-3(T)(b)(15)
thereunder, to the extent necessary to permit shares of the Trust to be sold to
and held by variable annuity and variable life insurance separate accounts of
both affiliated and nonaffiliated life insurance companies and certain qualified
pension and retirement plans (the "Shared Trust Exemptive Order"); and
WHEREAS, the Company has registered or will register under the 1933 Act,
unless exempt therefrom, certain variable life insurance policies and/or
variable annuity contracts identified by the form number(s) listed on Schedule
A, as may be amended from time to time (the "Contracts"); and
WHEREAS, the Company has registered or will register each Account,
unless exempt therefrom, as a unit investment trust under the 1940 Act; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company on the date shown for that Account on Schedule A, to set aside and
invest assets attributable to the Contracts; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios listed on
Schedule A, as may be amended from time to time, at net asset value on behalf of
each Account to fund the Contracts, and the Trust 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 I
Sale of Trust Shares
1.1. The Trust shall make shares of its Portfolios available to the
Accounts at the net asset value next computed after receipt of such purchase
order by the Trust (or its agent), as established in accordance with the
provisions of the then current prospectus of the Trust. Shares of a particular
Portfolio shall be ordered in such quantities and at such times as determined by
the Company to be necessary to meet the requirements of the Contracts. The
trustees of the Trust (the "Trustees") 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 is, 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, necessary and in the best interest of the shareholders of such Portfolio.
1.2. The Trust will redeem any full or fractional shares of any
Portfolio when requested by the Company on behalf of an Account at the net asset
value next computed after receipt by the Trust (or its agent) of the request for
redemption, as established in accordance with the provisions of the then current
prospectus of the Trust. Payment shall be made the same Business Day that the
Trust receives notice of the order in federal funds to be received by wire prior
to the close of the Federal Reserve, traditionally 6:00 p.m. New York time.
"Business Day" shall mean any day on which the New York Stock Exchange is open
for trading. If the banking system is closed, payment will be transmitted the
next day that the banking system is open for business. If payment is received by
the Company after the close of the Federal Reserve, the Trust shall, upon the
Company's request, promptly reimburse the Company for any charges, costs, fees,
interest or other expenses incurred in connection with advances, borrowings, or
overdrafts. In no event shall payment be delayed for a greater period than is
permitted by the 1940 Act.
1.3. For the purposes of Sections 1.1. and 1.2., the Trust hereby
appoints the Company as its agent for the limited purpose of receiving and
accepting purchase and redemption orders resulting from investment in and
payments under the Contracts. Receipt by the Company shall constitute receipt by
the Trust provided that: (a) such orders are received by the Company in good
order prior to the close of the regular trading session of the New York Stock
Exchange, and (b) the Trust receives notice of such orders by 10:00 a.m., New
York time, on the next following Business Day. The Trust will confirm receipt of
each trade (ending share balances by account and fund) by 1:00 p.m. New York
time on the day the trade is placed with the Trust (using a mutually agreed upon
format).
1.4 Purchase orders that are transmitted to the Trust in accordance
with Section 1.3. shall be paid for on the same Business Day that the Trust
receives notice of the order. Payment shall be made in federal funds initiated
by wire to be received prior to the close of the Federal Reserve, traditionally
by 6:00 p.m. New York time. If the banking system is closed, payment will be
transmitted the next day that the banking system is open for business. If
payment is received by the Trust after the close of the Federal Reserve the
Company shall, upon the Trust's request, promptly reimburse Trust for any
charges, costs, fees, interest or other expenses incurred in connection with
advances, borrowings, or overdrafts.
1.5. The Trust shall furnish notice, on or before ex-dividend date
(using a mutually agreed upon format), to the Company of any income dividends or
capital gain distributions payable on shares of any Portfolio. The Company
hereby elects to receive all such income dividends and capital gain
distributions as are payable on a Portfolio's shares in additional shares of
that Portfolio. The Company reserves the right to revoke this election and to
receive all such income dividends and capital gain distributions in cash. The
Trust shall notify the Company of the number of shares so issued as payment of
such dividends and distributions. For each calendar year, the Trust will provide
the Company with a dividend and capital gain payment schedule.
1.6 The Trust shall make the net asset value per share for each
Portfolio available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall use its
best efforts to make such net asset value per share available by 6:30 p.m., New
York time (using a mutually agreed upon format). The Trust will promptly notify
the Company when and if the Trust does not communicate the net asset value per
share by 6:30 p.m. New York time.
1.7. The Trust agrees that its shares will be sold only to
Participating Insurance Companies and their separate accounts and to certain
qualified pension and retirement plans to the extent permitted by the Shared
Trust Exemptive Order. No shares of any Portfolio will be sold directly to the
general public. The Company agrees that the Trust shares will be used only for
the purposes of funding the Contracts and Accounts listed in Schedule A, as may
be amended from time to time.
1.8. The Trust agrees that all Participating Insurance Companies
shall have the obligations and responsibilities regarding pass-through voting
and conflicts of interest corresponding to those contained in Section 2.15. and
Article IV of this Agreement.
1.9. With respect to payment of the purchase price by the Company and
of redemption proceeds by the Trust, the Company and the Trust shall net
purchase and redemption orders with respect to each Portfolio and shall transmit
one net payment per Portfolio in accordance with Sections 1.2 and 1.4, above.
1.10. If the Trust provides materially incorrect Portfolio share net
asset value information (as determined under SEC guidelines), the Company or
Trust, as applicable, shall be entitled to an adjustment to the number of shares
purchased or redeemed to reflect the correct net asset value per share. Any
material error in the calculation or reporting of net asset value per share,
dividend or capital gain information shall be reported promptly upon discovery
to the Company.
ARTICLE II
Obligations of the Parties
2.1. The Trust shall bear the costs of registering and qualifying the
Trust's shares, and of preparing and filing the Trust's prospectus, registration
statement, Trust sponsored proxy materials (or similar materials such as voting
instruction solicitation materials), reports to shareholders, and all statements
and notices required by federal or state law. The Trust shall pay all taxes on
the issuance and/or transfer of the Trust's shares.
2.2. The Trust shall provide the Company, at the Trust's expense,
with as many copies of the Trust's current prospectus, annual report,
semi-annual report, or Trust sponsored proxy material, including any amendments
or supplements to the foregoing, as the Company may reasonably request in order
to distribute, at the Company's expense, to then-current owners of Contracts;
except that the Trust will bear the cost of printing and delivering the Trust's
prospectus to existing Contract owners who have directed the Company to purchase
shares of the Trust, and will bear the proportionate cost of preparing and
printing any supplements or amendments to the Trust prospectus to the extent
that such supplements or amendments were not required by the Company. If
requested by the Company in lieu thereof, the Trust shall provide such
documentation (including a final copy of the current prospectus, statement of
additional information, annual report, semi-annual report, or Trust sponsored
proxy material as set in type or electronic form acceptable to Company, either
PDF or HTML, at the Trust's expense) and other assistance as is reasonably
necessary in order for the Company once each year (or more frequently if the
prospectus for the Trust is amended) to have the prospectus, statement of
additional information, annual report, semi-annual report, for the Contracts and
the Trust's prospectus printed together in one document (at the Company's
expense, except that the Trust will bear the cost of printing the Trust's
prospectus for existing Contract owners who have directed the Company to
purchase shares of the Trust). The prospectuses, statement of additional
information, annual report, semi-annual report, and Trust sponsored proxy
material will be customized to include only those portions of the Trust in use
for each Contract. In addition, the prospectuses, annual report, semi-annual
report, and Trust sponsored proxy material will be provided to the Company
within a reasonable period of time following the filing of such document with
the SEC or other regulatory authorities and no later than ten (10) Business Days
prior to the date on which they must be mailed. The Trust shall bear the
printing and mailing costs (or duplicating costs with respect to the statement
of additional information) associated with distributing the Trust's current
prospectus, annual report, semi-annual report, Trust sponsored proxy material or
other shareholder communications, including any amendments or supplements to any
of the foregoing, to the extent required to be provided by the Trust to its
then-current shareholders, including the Company. The Trust shall not bear any
costs of preparing, printing, recording, taping or disseminating sales
literature or other promotional materials or the costs of printing and mailing
prospective Contract purchasers copies of the Trust's prospectus, statement of
additional information, periodic reports or other printed materials.
2.3. The Trust shall provide the Company (at the Company's expense)
with as many copies of the Trust's current prospectus as the Company may
reasonably request for distribution to prospective purchasers of Contracts. If
requested by the Company in lieu thereof, the Trust shall provide such
documentation (as set in type or electronic form acceptable to Company, in
either PDF or HTML format, at the Trust's expense) and other assistance as is
reasonably necessary in order for the Company once each year (or more frequently
if the prospectus for the Trust is amended) to have the prospectus for the
Contracts and the Trust's prospectus printed together in one document (at the
Company's expense).
2.4. The Company will bear the costs of registering and qualifying
the Accounts for sale, printing (or duplicating costs with respect to the
statement of additional information) and mailing costs associated with the
delivery of the Accounts' current prospectuses and statements of additional
information, private placement memoranda, annual and semi-annual reports,
Contracts, Contract applications, sales literature or other promotional
material, Account sponsored proxy materials and voting solicitation
instructions.
2.5. The Company will bear the responsibility and correlative expense
for administrative and support services for Contract owners. The Trust
recognizes the Company as the sole shareholder of shares of the Trust issued
under this Agreement.
2.6. (a) The Trust 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 "Trust licensed marks"). Upon termination of this Agreement,
the Company and its affiliates shall cease to use the Trust licensed marks,
except to the extent required by law or regulation. The Company shall not use
any Trust licensed marks on its own behalf or on behalf of the Accounts or
Contracts in any registration statement, advertisement, sales literature or
other materials relating to the Accounts or Contracts without the prior written
consent of the Trust and its adviser
(b) The Company and its affiliates, own all right, title and
interest in and to the trade names, trademarks and service marks as may be
identified to the Trust from time to time (the "Company licensed marks"). Upon
termination of this Agreement, the Trust and its affiliates shall cease to use
the Company licensed marks, except to the extent required by law or regulation.
The Trust shall not use any Company licensed marks on its own behalf or on
behalf of the Trust in any registration statement, advertisement, sales
literature or other materials relating to the Trust without prior written
consent of the Company.
2.7. The Company shall furnish, or cause to be furnished, to
the Trust or its designee, a copy of each Contract prospectus or statement of
additional information in which the Trust or its investment adviser is named
prior to the filing of such document with the Commission. The Company shall also
furnish, or shall cause to be furnished, to the Trust or its designee, each
piece of sales literature or other promotional material including private
placement memoranda, in which the Trust or its investment adviser is named, at
least ten (10) Business Days prior to its use. No such material shall be used if
the Trust or its designee reasonably objects to such use within ten (10)
Business Days after receipt of such material.
2.8. The Company will provide to the Trust at least one complete copy
of each report, solicitation for voting instructions, application for exemption,
request for no-action relief, and any amendment to any of the above (or any
amendment to the registration statement, prospectus, statement of additional
information, piece of sales literature or other promotional material) that
relates to the Trust or its investment adviser within ten (10) Business Days of
the filing of the document with the Commission, the NASD, or other regulatory
authorities.
2.9. For purposes of this Article II, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements,
newspapers, magazines, or other periodicals, 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,
shareholder newsletters, seminar texts, reprints or excerpts of any other
advertisement, sales literature, or published article), educational or training
materials or other communications distributed or made generally available to
some or all agents or employees, and registration statements, prospectuses,
statements of additional information, shareholder reports and proxy materials.
2.10. The Company shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust or
its investment adviser in connection with the sale of the Contracts other than
information or representations contained in and accurately derived from the
registration statement or prospectus for the Trust shares (as such registration
statement and prospectus may be amended or supplemented from time to time),
annual and semi-annual reports of the Trust, Trust-sponsored proxy statements,
or in sales literature or other promotional material approved by the Trust or
its designee, except as required by legal process or regulatory authorities or
with the written permission of the Trust or its designee.
2.11. The Trust shall furnish or cause to be furnished, to the Company
or its designee, a copy of each Trust prospectus or statement of additional
information in which the Company or the Accounts are named prior to the filing
of such document with the Commission. The Trust shall furnish, or shall cause to
be furnished, to the Company or its designee, each piece of sales literature or
other promotional material in which the Company or the Accounts are named, at
least ten (10) Business Days prior to its use. No such material shall be used if
the Company or its designee reasonably objects to such use within ten (10)
Business Days after receipt of such material.
2.12. The Trust will provide to the Company at least one complete copy
of each report, solicitation for voting instructions, application for exemption,
request for no-action relief, and any amendment to any of the above (or any
amendment to the registration statement, prospectus, statement of additional
information, piece of sales literature or other promotional material) that
relates to the Trust and the Contracts within ten (10) Business Days of the
filing of the document with the Commission, the NASD, or other regulatory
authorities.
2.13. The Trust shall not 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 statement, prospectus
or private placement memorandum for the Contracts (as such registration
statement, prospectus or private placement memorandum may be amended or
supplemented from time to time), or in materials approved by the Company for
distribution including sales literature or other promotional materials, except
as required by legal process or regulatory authorities or with the written
permission of the Company.
2.14. At the request of either party to this Agreement, the other
party will make available to the requesting party's independent auditors and/or
representatives of the appropriate regulatory agencies, all records, data and
access to operating procedures that may be reasonably requested.
2.15. So long as, and to the extent that the Commission interprets the
1940 Act to require pass-through voting privileges for variable contract owners,
the Company will provide pass-through voting privileges to owners of policies,
unless exempt therefrom, whose cash values are invested, through the Accounts,
in shares of the Trust and shall distribute all proxy material furnished by the
Trust. The Trust shall require all Participating Insurance Companies to
calculate voting privileges in the same manner and the Company shall be
responsible for assuring that the Accounts calculated voting privileges in the
manner established by the Trust. With respect to each Account, the Company will
vote shares of the Trust held by the Account and for which no timely voting
instructions from policy owners are received as well as shares it owns that are
held by that Account, in the same proportion as those shares for which voting
instructions are received. The Company and its agents will in no way recommend
or oppose or interfere with the solicitation of proxies for Trust shares held by
Contract owners without the prior written consent of the Trust, which consent
may be withheld in the Trust's sole discretion.
ARTICLE III
Representations and Warranties
3.1. The Company represents and warrants that it is an insurance
company duly organized and validly existing under the laws of the Commonwealth
of Virginia and that it has legally and validly established each Account as a
segregated asset account under such law on the dates 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,
unless exempt therefrom, as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment account for the
Contracts.
3.3. The Company represents and warrants that the Contracts are, or
will be, registered under the 1933 Act to the extent required by the 1933 Act
prior to any issuance or sale of the Contracts, and that the Contracts will be
issued and sold in compliance in all material respects with all applicable
federal and state law.
3.4. The Trust represents and warrants that it is duly organized and
validly existing under the laws of the State of Delaware.
3.5. The Trust represents and warrants that the Trust shares offered
and sold pursuant to this Agreement will be registered under the 1933 Act and
that the Trust is registered under the 1940 Act prior to any issuance or sale of
such shares. The Trust 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. The Trust shall register and qualify its shares for sale
in accordance with the laws of the various states only if and to the extent
deemed advisable by the Trust.
3.6. The Trust represents and warrants that the investments of each
Portfolio will comply with the diversification requirements set forth in Section
817(h) of the Internal Revenue Code of 1986, as amended (the "Code"), and the
rules and regulations thereunder. In the event of a breach of this Section 3.6
by the Trust, it will take all reasonable steps to: (1) immediately notify the
Company of such breach, and (2) adequately diversify the Portfolio so as to
achieve compliance within the grace period afforded by Section 1.817-5(b) of the
rules and regulations under the Code.
3.7. The Trust 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 Trust 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.
3.8. The Company represents that the Contracts are currently treated
as annuity or life insurance contracts under applicable provisions of the Code
and warrants and agrees that it will make every effort to maintain such
treatment and that it will notify the Trust 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.
ARTICLE IV
Potential Conflicts
4.1. The parties acknowledge that the Trust's shares may be made
available for investment to other Participating Insurance Companies. In such
event, the Trustees will monitor the Trust for the existence of any material
irreconcilable conflict between the interests of the contract owners of all
Participating Insurance Companies. A material irreconcilable conflict may arise
for a variety of reasons, including: (a) an action by any state insurance
regulatory or other 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 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 Trustees shall promptly inform the Company
if they determine that a material irreconcilable conflict exists and the
implications thereof. The Trustees shall have sole authority to determine
whether a material irreconcilable conflict exists and their determination shall
be binding upon the Company.
4.2. The Company agrees to promptly report any potential or existing
conflicts of which it is aware to the Trustees. The Company will assist the
Trustees in carrying out their responsibilities under the Shared Trust Exemptive
Order and this Article IV by providing the Trustees, upon reasonable request,
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 Trustees, or a majority
of the disinterested Trustees, 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 Company and the Trustees jointly) take whatever steps are necessary to remedy
or eliminate the material irreconcilable conflict, which steps could include:
(a) withdrawing the assets allocable to some or all of the Accounts from the
Trust or any Portfolio and reinvesting such assets in a different investment
medium, including (but not limited to) another Portfolio of the Trust, or
submitting the question of whether or not such segregation should be implemented
to a vote of all
affected Contract owners and, as appropriate, segregating the assets of any
appropriate group (i.e., annuity contract owners, life insurance contract
owners, or 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
registered management investment company or managed separate account and
obtaining any necessary approvals or orders of the Commission in connection
therewith.
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 Trust's election, to withdraw the affected
Account's investment in the Trust 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 Trustees. Any such withdrawal
and termination, assuming required regulatory approvals have been received, must
take place within six (6) months after the Trust gives written notice that this
provision is being implemented. Until the end of such six (6) month period, the
Trust shall continue to accept and implement orders by the Company for the
purchase and redemption of shares of the Trust.
4.5. If any 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 Trust and terminate this
Agreement with respect to such Account within six (6) months after the Trust
gives written notice that it has determined that such decision has created a
material irreconcilable conflict; provided, however, that such withdrawal and
termination, assuming required regulatory approvals have been received, shall be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested Trustees. Until the end of such
six (6) month period, the Trust shall continue to accept and implement orders by
the Company for the purchase and redemption of shares of the Trust.
4.6. For purposes of Sections 4.3. through 4.5. of this Agreement, a
majority of the disinterested Trustees shall determine whether any proposed
action adequately remedies any material irreconcilable conflict. The Company
shall not be required by Section 4.3 to establish a new funding medium for the
Contracts. In the event that the Trustees determine that any proposed action
does not adequately remedy any material irreconcilable conflict, then the
Company will withdraw the Account's investment in the Trust and terminate this
Agreement within six (6) months after the Trust gives written notice 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 Trustees.
4.7. The Company shall at least annually submit to the Trustees such
reports, materials or data as the Trustees may reasonably request so that the
Trustees may fully carry out the duties imposed upon them by the Shared Trust
Exemptive Order and this Article IV. Said reports, materials and data shall be
submitted more frequently if deemed appropriate by the Trustees.
4.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are
amended, or Rule 6e-3 is adopted, to provide exemptive relief from any provision
of the 1940 Act or the rules promulgated thereunder with respect to mixed and/or
shared funding (as defined in the Shared Trust Exemptive Order) on terms and
conditions materially different from those contained in the Shared Trust
Exemptive Order, then the Trust and/or the Participating Insurance Companies, as
appropriate, shall take such steps as may be necessary to comply with Rules 6e-2
and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the extent such rules are
applicable.
ARTICLE V
Indemnification
5.1. The Company agrees to indemnify and hold harmless the Trust, and
each of its Trustees, officers, employees and agents, and each person, if any,
who controls the Trust within the meaning of Section 15 of the 1933 Act
(collectively, the "Indemnified Parties" for purposes of this Section 5.1.)
against any and all losses, claims, damages, liabilities 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
otherwise, insofar as such Losses are related to the sale, acquisition, or
redemption of the Trust's shares through the Contracts and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in a registration
statement, prospectus or private placement memorandum for the Contracts or in
the Contracts themselves or in sales literature generated or approved by the
Company relating to the Contracts or Accounts (or any amendment or supplement to
any of the foregoing) (collectively, "Company Documents"), 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 Trust for use in
Company Documents or otherwise for use in connection with the sale of the
Contracts or Trust shares; or
(b) arise out of or result from statements or
representations (other than statements or representations contained in and
accurately derived from Trust Documents as defined in Section 5.2.(a)) or
wrongful conduct of the Company or persons under its control, with respect to
the sale, distribution or acquisition of the Contracts or Trust shares; or
(c) arise out of or result from any untrue statement or
alleged untrue statement of a material fact contained in Trust 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
Trust 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; or
(e) arise out of or result from any material breach of any
representation, warranty or agreement made by the Company in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Company; or
(f) arise out of or result from negligence or wrongful
conduct in the Company's administration of the Accounts or the Contracts.
5.2. The Trust agrees 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 Section 5.2.)
against any and all losses, claims, damages, liabilities 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
otherwise, insofar as such Losses are related to the sale, acquisition, or
redemption of the Trust's shares or the Contracts and:
(a) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the registration
statement or prospectus for the Trust (or any amendment or supplement thereto),
(collectively, "Trust Documents"), 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 Trust by or on behalf of the Company for use in Trust Documents or otherwise
for use in connection with the sale of the Contracts or Trust shares; or
(b) arise out of or result from statements or
representations (other than statements or representations contained in and
accurately derived from Company Documents) or wrongful conduct of the Trust, or
persons under its control, with respect to the sale, distribution or acquisition
of the Contracts or Trust 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 Trust or
(d) arise out of or result from any failure by the Trust to
provide the services or furnish the materials required under the terms of this
Agreement; or
(e) arise out of or result from any material breach of any
representation, warranty or agreement made by the Trust in this Agreement or
arise out of or result from any other material breach of this Agreement by the
Trust; or
(f) arise out of or result from negligence or wrongful
conduct in the Trust's administration of the Trust or the Portfolios.
5.3. Neither the Company nor the Trust 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 an Indemnified Party that arise from
such Indemnified Party's willful misfeasance, bad faith or gross negligence in
the performance of such Indemnified Party's duties or by reason of such
Indemnified Party's reckless disregard of obligations or duties under this
Agreement.
5.4. Neither the Company nor the Trust 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 which 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. except to the extent
that the indemnifying party has been prejudiced by such failure to give notice.
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 mutually agreed to by the
parties. If the indemnifying party assumes 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. 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 No party shall be deemed in default of this Agreement to the
extent that any delay or failure in performance results, without its fault or
negligence, from any cause beyond its reasonable control, such as acts of God,
acts of civil or military authority, embargoes, epidemics,
war, riots, insurrections, fires, explosions, earthquakes, floods, unusually
severe weather conditions, strikes, or extraordinary market volume that results
in substantial delay in receipt of correct data from one or more generally
recognized securities exchanges. This clause shall not excuse any of the parties
from any liability which results from failure to have in place reasonable
disaster recovery and safeguarding plans adequate for protecting all data the
parties hereto are responsible for maintaining under the terms of this
Agreement.
5.8 A successor by law of any party shall be entitled to the
benefits of the indemnification contained in this Section 5.
ARTICLE VI
Termination
6.1. This Agreement shall continue in full force and effect until the
first to occur of:
(a) termination by any party for any reason by six (6) months
advance written notice delivered to the other party; or
(b) termination by the Company by written notice to the Trust with
respect to any Portfolio based upon the Company's determination that shares of
such Portfolio are not reasonably available to meet the requirements of the
Contracts or not consistent with the Company's obligations to Contract owners;
provided, however, that such a termination shall apply only to the Portfolio not
reasonably available and the Trust shall have ten (10) Business Days from the
initial notification by the Company of the deficiency to correct such
deficiency. If not cured within ten (10) Business Days, termination is
automatically effective; or
(c) termination by the Company by written notice to the Trust with
respect to any Portfolio in the event such Portfolio's shares are not
registered, issued or sold in accordance with applicable state and/or federal
law or such law precludes the use of such shares as the underlying investment
media of the Contracts issued or to be issued by the Company; or
(d) termination by the Company by written notice to the Trust with
respect to any Portfolio in the event that the Trust ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code or any independent
or resulting failure under Section 817 of the Code, or under any successor or
similar provision of either, or if the Company reasonably believes that the
Trust or Portfolio may fail to so qualify; or
(e) termination by the Trust by written notice to the Company if the
Trust shall determine, in its sole judgment exercised in good faith, that the
Company and/or its affiliated companies (i) has suffered a material adverse
change in its business, operations, financial condition or prospects since the
date of this Agreement or (ii) is the subject of material adverse publicity and
that material adverse publicity will have a material adverse impact upon the
business and
operations of the Trust; but no such termination shall be effective under this
subsection (e) until the Company has been afforded a reasonable opportunity to
respond to a statement by the Trust concerning the reason for notice of
termination hereunder; or
(f) termination by the Company by written notice to the Trust if the
Company shall determine, in its sole judgment exercised in good faith, that
either the Trust, or an investment adviser to the Trust has (i) suffered a
material adverse change in its business, operations, financial condition or
prospects since the date of this Agreement or (ii) is the subject of material
adverse publicity and that material adverse publicity will have a material
adverse impact upon the business and operations of the Company; but no such
termination shall be effective under this subsection (f) until the Trust has
been afforded a reasonable opportunity to respond to a statement by the Company
concerning the reason for notice of termination hereunder; or
(g) termination by the Trust in the event that formal administrative
proceedings are instituted against the Company by the NASD, the Commission, an
insurance commissioner or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the Contracts, the
operation of any Account, or the purchase of the Trust's shares; provided,
however, that the Trust determines in its sole judgement exercised in good
faith, that any such administrative proceedings will have a material adverse
effect upon the ability of the Company to perform its obligations under this
Agreement; or
(h) termination by the Company in the event that formal
administrative proceedings are instituted against the Trust, by the NASD, the
Commission, any state securities or insurance department or any other regulatory
body regarding the Trust's duties under this Agreement or related to the sale of
Portfolio shares or the operation of the Trust or Portfolio; provided, however,
that the Company determines in its sole judgement exercised in good faith, that
any such administrative proceedings will have a material adverse effect upon the
ability of Trust to perform its obligations under this Agreement; or
(i) termination by the Company if the Trust 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 Trust from the
Company of such breach; or
(j) termination by the Trust if 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
Trust of such breach.
6.2. Notwithstanding any termination of this Agreement, the Trust
shall, at the option of the Company, continue to make available additional
shares of the Trust (or any Portfolio) pursuant to the terms and conditions of
this Agreement for all Contracts in effect on the effective date of termination
of this Agreement, provided that the Company continues to pay the costs set
forth in Article II.
6.3. The provisions of Article V shall survive the termination of
this Agreement, and
the provisions of Article IV and Section 2.15. shall survive the termination of
this Agreement as long as shares of the Trust are held on behalf of Contract
owners in accordance with Section 6.2.
ARTICLE VII
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 Trust:
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Evergreen Funds
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▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Legal Department
If to the Company:
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GE Capital Life Assurance Company of New York
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
ARTICLE VIII
Miscellaneous
8.1. 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.
8.2. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
8.3. 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.
8.4. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of the Commonwealth of
Massachusetts.
8.5. The parties to this Agreement acknowledge and agree that all
liabilities of the Trust arising directly or indirectly under this Agreement, of
any and every nature whatsoever, shall be satisfied solely out of the assets of
the Trust and that no Trustee, officer, agent or holder of shares of beneficial
interest of the Trust shall be personally liable for any such liabilities.
8.6. Each party shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Commission, 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.
8.7. 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, which the parties hereto are entitled to under
state and federal laws.
8.8. The parties to this Agreement acknowledge and agree that this
Agreement shall not be exclusive in any respect.
8.9. This Agreement shall be binding upon and inure to the benefit of
the parties and their respective successors and assigns, provided that no party
may assign this Agreement without the prior written consent of the other party.
8.10. No provisions of this Agreement may be amended or modified in any
manner except by a written agreement properly authorized and executed by both
parties.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
executed in its name and on its behalf by its duly authorized representative as
of the date and year first above written.
GE CAPITAL LIFE ASSURANCE EVERGREEN VARIABLE
COMPANY OF NEW YORK ANNUITY TRUST
By: By:
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Senior Vice President Title: Assistant Secretary
SCHEDULE A
Separate Accounts, Contracts and Designated Portfolios
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Name of Separate Accounts Date Established by Board of Directors
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GE Capital Life Separate Account II April 1, 1996
GE Capital Life Separate Account III March 20, 2000
Contracts Funded by Separate Account (by Policy Form Number)
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NY 1155
NY 1157
NY 1260
NY 1261
Designated Portfolios
Evergreen VA Omega Fund - Class 2
