PARTICIPATION AGREEMENT
BY AND AMONG
THIRD AVENUE FUNDS,
▇.▇. ▇▇▇▇▇▇▇, LLC,
THIRD AVENUE MANAGEMENT, LLC,
FIRST GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
AND
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY,
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS
AND AS
UNDERWRITER OF VARIABLE CONTRACTS AND POLICIES
TABLE OF CONTENTS
Description
Page
Section 1. Available Funds...................................................3
1.1 Availability 3
---- ------------
1.2 Addition, Deletion or Modification of Funds 4
---- -------------------------------------------
1.3 No Sales to the General Public 4
--- ------------------------------
Section 2. Processing Transactions...........................................4
2.1 Timely Pricing and Orders 4
--- -------------------------
2.2 Timely Payments 4
--- ---------------
2.3 Applicable Price 5
--- ----------------
2.4 Dividends and Distributions 5
--- ---------------------------
2.5 Book Entry 6
--- ----------
Section 3. Costs and Expenses................................................6
3.1 General 6
--- -------
3.2 Parties To Cooperate 6
--- --------------------
Section 4. Legal Compliance..................................................6
4.1 Tax Laws 6
--- --------
4.2 Insurance and Certain Other Laws 8
--- --------------------------------
4.3 Securities Laws 8
--- ---------------
4.4 Notice of Certain Proceedings and Other Circumstances 9
--- -----------------------------------------------------
4.5 G-WL&A To Provide Documents; Information About Fund 10
--- ---------------------------------------------------
4.6 Fund To Provide Documents; Information About G-WL&A 11
--- ---------------------------------------------------
Section 5. Mixed and Shared Funding.........................................12
5.1 General 12
--- -------
5.2 Disinterested Trustees 12
--- ----------------------
5.3 Monitoring for Material Irreconcilable Conflicts 13
--- ------------------------------------------------
5.4 Conflict Remedies 13
--- -----------------
5.5 Notice to the Insurance Parties 14
--- -------------------------------
5.6 Information Requested by Board 15
--- ------------------------------
5.7 Compliance with SEC Rules 15
--- -------------------------
5.8 Other Requirements 15
--- ------------------
Section 6. Termination......................................................15
6.1 Events of Termination 15
--- ---------------------
6.2 Notice Requirement for Termination 16
--- ----------------------------------
6.3 Funds To Remain Available 17
--- -------------------------
6.4 Survival of Warranties and Indemnifications 17
--- -------------------------------------------
6.5 Continuance of Agreement for Certain Purposes 17
--- ---------------------------------------------
Section 7. Parties To Cooperate Respecting Termination......................17
Section 8. Assignment.......................................................18
Section 9. Notices..........................................................18
Section 10. Voting Procedures...............................................18
Section 11. Foreign Tax Credits.............................................19
Section 12. Indemnification.................................................19
12.1 Of Fund and Distributor by the Insurance Parties 19
---- ------------------------------------------------
12.2 Of the Insurance Parties by Fund and Distributor 21
---- ------------------------------------------------
12.3 Effect of Notice 23
---- ----------------
12.4 Successors 23
---- ----------
Section 13. Applicable Law..................................................24
---------------------------
13.1 Fund, Distributor, and G-WL&A 24
----------------------------------
13.2 Fund, Distributor, and First G-WL&A 24
----------------------------------------
Section 14. Execution in Counterparts.......................................24
--------------------------------------
Section 15. Severability....................................................24
-------------------------
Section 16. Rights Cumulative...............................................24
------------------------------
Section 17. Headings........................................................24
---------------------
Section 18. Confidentiality.................................................24
----------------------------
Section 19. Trademarks and Fund Names.......................................25
--------------------------------------
Section 20. Parties to Cooperate............................................25
---------------------------------
Section 21. Amendments; Need For............................................25
---------------------------------
Section 22. Force Majeure...................................................25
--------------------------
SCHEDULE A...................................................................28
FUNDS AVAILABLE UNDER THE CONTRACTS 28
SCHEDULE B..................................................................29
PRICING ERROR POLICY 29
SCHEDULE C..................................................................30
EXPENSE ALLOCATIONS 30
SCHEDULE D..................................................................31
ADMINISTRATIVE SERVICES 31
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the ___ day of February,
2006 ("Agreement"), by and among THIRD AVENUE FUNDS [CONFIRM LEGAL NAME], a
[STATE AND TYPE OF ENTITY] (the "Fund" or "Funds"), THIRD AVENUE MANAGEMENT,
LLC, a New York limited liability company (the "Adviser"), ▇.▇. ▇▇▇▇▇▇▇, LLC.
[CONFIRM LEGAL NAME OF DISTRIBUTOR] a [STATE AND TYPE OF ENTITY] (the
"Distributor"), FIRST GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY ("First
G-WL&A"), a New York life insurance company, and GREAT-WEST LIFE & ANNUITY
INSURANCE COMPANY, a Colorado life insurance company ("G-WL&A"), on behalf of
itself and each of its segregated asset accounts listed in Schedule A hereto, as
the Parties hereto may amend from time to time (each, an "Account," and
collectively, the "Accounts"); and as the principal underwriter of the Contracts
("Underwriter") (for purposes of this Agreement, G-WL&A and First G-WL&A may be
referenced together as the "Insurance Parties"), (collectively with Fund and
Distributor the "Parties").
WITNESSETH THAT:
WHEREAS, Fund is registered with the Securities and Exchange Commission
("SEC") as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, Advisor is the registered investment advisor for the Funds, as
that term is defined under the Investment Advisors Act of 1940, as amended,
and;
WHEREAS, the Distributor is duly registered as a broker-dealer and
distributor for the Funds under the Securities Exchange Act of 1934, as
amended, and a member in good standing of the NASD, and;
WHEREAS, Fund currently consists of [x number] separate series
("Series"), shares ("Shares") each of which are registered under the Securities
Act of 1933, as amended (the "1933 Act") and are currently sold to one or more
separate accounts of life insurance companies to fund benefits under variable
annuity contracts and variable life insurance contracts; and
WHEREAS, Fund or its Distributor will make Shares of each Series listed
on Schedule A hereto as the Parties hereto may amend from time to time (each a
"Fund"; reference herein to "Fund" includes reference to each Fund, to the
extent the context requires) available for purchase by the Accounts; and
WHEREAS, the Insurance Parties will be the issuer of certain variable
annuity contracts and variable life insurance contracts ("Contracts") as set
forth on Schedule A hereto, as the Parties hereto may amend from time to time,
which Contracts (hereinafter collectively, the "Contracts"), if required by
applicable law, will be registered under the 1933 Act; and
WHEREAS, the Insurance Parties have registered the Accounts as a unit
investment trust under the 1940 Act and has registered (or will register prior
to sale) the securities deemed to be issued by the Account under the 1933 Act to
the extent required; and
WHEREAS, the Insurance Parties will fund the Contracts through the
Accounts, each of which may be divided into two or more subaccounts
("Subaccounts"; reference herein to an "Account" includes reference to each
Subaccount thereof to the extent the context requires); and
WHEREAS, G-WL&A or First G-WL&A, as the case may be, will serve as the
depositor of the Accounts, each of which is registered as a unit investment
trust investment company under the 1940 Act (or exempt therefrom), and the
security interests deemed to be issued by the Accounts under the Contracts will
be registered as securities under the 1933 Act (or exempt therefrom); and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Insurance Parties intend to purchase Shares in one or more of
the Funds on behalf of the Accounts to fund the Contracts; and
WHEREAS, the Insurance Parties intend to utilize their NSCC member
broker/dealer affiliate, GWFS Equities, Inc., ("GWFS") to transmit instructions
for the purchase, redemption and transfer of Fund shares on behalf of the
Account, and GWFS, alone, or with the assistance of a recordkeeping affiliate,
to perform certain recordkeeping functions associated with the transfer of Fund
shares into and out of the Account in order to recognize certain organizational
economies; and
WHEREAS, the Insurance Parties will perform certain services for the
Funds in connection with the Contracts as set forth in Schedule D.
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein, the Parties hereto agree as follows:
Section 1. Available Funds
1.1 Availability
Fund will make Shares of each Fund available to the Insurance Parties
for purchase and redemption at net asset value and with no sales charges,
subject to the terms and conditions of this Agreement. The Board of Fund (the
"Board") may refuse to sell Shares of any Fund to any person, or suspend or
terminate the offering of Shares of any Fund (a) if such action is required by
law or by regulatory authorities having jurisdiction, (b) if, in the sole
discretion of the Trustees acting in good faith and in light of their fiduciary
duties under federal and any applicable state laws, such action is deemed in the
best interests of the shareholders of such Fund, or (c) if such action is
required by any policies that the Board has adopted and that apply to all
Participating Insurance Companies.
1.2 Addition, Deletion or Modification of Funds
The Parties hereto may agree, from time to time, to add other Funds to
provide additional funding media for the Contracts, or to delete, combine, or
modify existing Funds, by amending Schedule A hereto. Upon such amendment to
Schedule A, any applicable reference to a Fund, Fund, or its Shares herein shall
include a reference to any such additional Fund. Schedule A, as amended from
time to time, is incorporated herein by reference and is a part hereof.
1.3 No Sales to the General Public
Fund represents and warrants that no Shares of any Fund have been or
will be sold to the general public.
Section 2. Processing Transactions
2.1 Timely Pricing and Orders
(a) Fund or its designated agent Distributor will use its best efforts
to provide the Insurance Parties with the net asset value per Share for each
Fund by 5:00 p.m. Mountain 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, (ii) Fund calculates the Fund's net asset value, and (iii) the
Insurance Parties are open for business.
(b) The Insurance Parties will use the data provided by Fund each
Business Day pursuant to paragraph (a) immediately above to calculate Account
unit values and to process transactions that receive that same Business Day's
Account unit values. The Insurance Parties will perform such Account processing
the same Business Day, and will place corresponding orders to purchase or redeem
Shares with Fund by 9:00 a.m. Mountain Time the following Business Day;
provided, however, that Fund shall provide additional time to the Insurance
Parties in the event that Fund is unable to meet the 6:00 p.m. time stated in
paragraph (a) immediately above. Such additional time shall be equal to the
additional time that Fund takes to make the net asset values available to the
Insurance Parties.
(c) With respect to payment of the purchase price by the Insurance
Parties and of redemption proceeds by Fund, the Insurance Parties and Fund shall
net purchase and redemption orders with respect to each Fund and shall transmit
one net payment per Fund in accordance with Section 2.2, below.
(d) If Fund provides materially incorrect Share net asset value
information (as determined under SEC guidelines), the Insurance Parties 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 Insurance Parties.
Materiality and reprocessing cost reimbursement shall be determined in
accordance with standards established by the Parties as provided in Schedule B,
attached hereto and incorporated herein (except that for any money market fund,
materiality shall be determined in a manner consistent with Rule 2a-7 under the
1940 Act).
2.2 Timely Payments
The Insurance Parties or its affiliate GWFS will wire payment for net
purchases to a custodial account designated by Fund by 2:00 p.m. Mountain Time
on the same day as the order for Shares is placed, to the extent practicable.
Fund will wire payment for net redemptions to an account designated by the
Insurance Parties by 2:00 p.m. Mountain Time on the same day as the Order is
placed, to the extent practicable, but in any event within the time period to
enable the Insurance Parties to pay redemption proceeds within the time
specified in Section 22(e) of the 1940 Act or such shorter period of time as may
be required by law.
2.3 Applicable Price
(a) Share purchase payments and redemption orders that result from
purchase payments, premium payments, surrenders and other transactions under
Contracts (collectively, "Contract transactions") and that the Insurance Parties
receives prior to the close of regular trading on the New York Stock Exchange
(or such other time set by the Board for purposes of determining the current net
asset value of a Fund in accordance with Rule 22c-1 under the ▇▇▇▇ ▇▇▇) on a
Business Day will be executed at the net asset values of the appropriate Funds
next computed after receipt by Fund or its designated agent of the orders. For
purposes of this Section 2.3(a), the Insurance Parties shall be the designated
agent of Fund for receipt of orders relating to Contract transactions, in
accordance with Section 22(c) and Rule 22c-1 under the 1940 Act, on each
Business Day and receipt by such designated agent shall constitute receipt by
Fund; provided that Fund receives notice of such orders by 9:00 a.m. Mountain
Time on the next following Business Day or such later time as computed in
accordance with Section 2.1(b) hereof.
(b) All other Share purchases and redemptions by the Insurance
Parties will be effected at the net asset values of the appropriate Funds next
computed after receipt by Fund or its designated agent of the order therefor,
and such orders will be irrevocable.
(c) Without limiting the scope or effect of Section 1.1 hereof,
pursuant to which the Board may reject a Share purchase order by or on behalf of
the Insurance Parties under the circumstances described therein, the Insurance
Parties and their designated affiliate agree to cooperate with the Fund and
Distributor to prevent any person exercising, or purporting to exercise, rights
or privileges under one or more Contracts (including, but not limited to
Contract owners, annuitants, insureds or participants, as the case may be
(collectively, "Participants")) from engaging in any trading practices in any
Fund that the Board or Distributor determines, in good faith and in their sole
discretion, to be detrimental or potentially detrimental to the other
shareholders of the Fund, or to be in contravention of any applicable law or
regulation including, without limitation, Section 22 of the 1940 Act and the
rules thereunder. Such cooperation may include, but shall not be limited to,
identifying the person or persons engaging in such trading practices,
facilitating the imposition of any applicable redemption fee on such person or
persons, limiting the telephonic or electronic trading privileges of such person
or persons, and taking such other remedial steps, all to the extent permitted or
required by applicable law and the Funds' then current prospectus.
2.4 Dividends and Distributions
Fund will furnish notice by wire or telephone (followed by written
confirmation) on or prior to the payment date to the Insurance Parties of any
income dividends or capital gain distributions payable on the Shares of any
Fund. The Insurance Parties hereby elect to reinvest all dividends and capital
gains distributions in additional Shares of the corresponding Fund at the
ex-dividend date net asset values unless the Insurance Parties otherwise notify
Fund 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. The Insurance Parties reserves the right to revoke this election
and to receive all such income dividends and capital gain distributions in cash.
2.5 Book Entry
Issuance and transfer of Fund Shares will be by book entry only. Stock
certificates will not be issued to the Insurance Parties. Shares ordered from
Fund will be recorded in an appropriate title for G-WL&A or First G-WL&A, as the
case may be, on behalf of its Account.
Section 3. Costs and Expenses
3.1 General
Except as otherwise specifically provided in Schedule C, attached
hereto and made a part hereof, each Party will bear, or arrange for others to
bear, all expenses incident to its performance under this Agreement.
3.2 Parties To Cooperate
Each Party agrees to cooperate with the others, as applicable, in
arranging to print, mail and/or deliver, in a timely manner, combined or
coordinated prospectuses or other materials of Fund and the Accounts.
Section 4. Legal Compliance
4.1 Tax Laws
(a) Fund represents and warrants that each Fund is currently qualified
as a regulated investment company ("RIC") under Subchapter M of the Internal
Revenue Code of 1986, as amended (the "Code"), and represents that it will use
its best efforts to qualify and to maintain qualification of each Fund as a RIC.
Fund will notify the Insurance Parties immediately upon having a reasonable
basis for believing that a Fund has ceased to so qualify or that it might not so
qualify in the future.
(b) Fund represents that it will use its best efforts to comply and to
maintain each Fund's compliance with the diversification requirements set forth
in Section 817(h) of the Code and Section 1.817-5(b) of the regulations under
the Code. Fund will notify the Insurance Parties immediately upon having a
reasonable basis for believing that a Fund has ceased to so comply or that a
Fund might not so comply in the future. In the event of a breach of this Section
4.1(b) by Fund, it will take all reasonable steps to adequately diversify the
Fund so as to achieve compliance within the grace period afforded by Section
1.817-5 of the regulations under the Code.
(c) Notwithstanding any other provision of this Agreement, but without
limiting the ability of Fund and/or Distributor to assume the defense of any
action pursuant to Section 12.2(d) hereof, the Insurance Parties agree that if
the Internal Revenue Service ("IRS") asserts in writing in connection with any
governmental audit or review of G-WL&A or First G-WL&A, to their respective
knowledge, of any Participants, that any Fund has failed to comply with the
diversification requirements of Section 817(h) of the Code or the Insurance
Parties otherwise becomes aware of any facts that could give rise to any claim
against Fund or its affiliates as a result of such a failure or alleged failure:
(i) The Insurance Parties shall promptly notify Fund of such
assertion or potential claim (subject to the Confidentiality
provisions of Section 18 as to any Participant);
(ii) The Insurance Parties shall consult with Fund as to how to
minimize any liability that may arise as a result of such
failure or alleged failure;
(iii) The Insurance Parties shall use all commercially reasonable
efforts to minimize any liability of Fund or its affiliates
resulting from such failure, including, without limitation,
demonstrating, pursuant to Treasury Regulations Section
1.817-5(a)(2), to the Commissioner of the IRS that such
failure was inadvertent;
(iv) The Insurance Parties shall permit Fund, its affiliates and
their legal and accounting advisors to participate in any
conferences, settlement discussions or other administrative
or judicial proceeding or contests (including judicial
appeals thereof) with the IRS, with any Participant or with
any other claimant regarding any claims that could give rise
to liability to Fund or its affiliates as a result of such a
failure or alleged failure; provided, however, that the
Insurance Parties will retain control of the conduct of such
conferences, discussions, proceedings, contests or appeals;
(v) any written materials to be submitted by the Insurance
Parties to the IRS, to any Participant or to any other
claimant in connection with any of the foregoing proceedings
or contests that would affect Distributor, its affiliates
and/or Fund and/or Fund's shareholders, (including, without
limitation, any such materials to be submitted to the IRS
pursuant to Treasury Regulations Section 1.817-5(a)(2)), (a)
shall be provided by the Insurance Parties, as the case may
be, to Fund (together with any supporting information or
analysis), subject to the confidentiality provisions of
Section 18, at least ten (10) business days or such shorter
period to which the Parties hereto agree prior to the day on
which such proposed materials are to be submitted, and (b)
shall not be submitted by the Insurance Parties, as the case
may be, to any such person without the express written
consent of Fund which shall not be unreasonably withheld;
(vi) The Insurance Parties shall provide Fund or its affiliates
and their accounting and legal advisors with such
cooperation as Fund shall reasonably request (including,
without limitation, by permitting Fund and its accounting
and legal advisors to review the relevant books and records
of the Insurance Parties) in order to facilitate review by
Fund or its advisors of any written submissions provided to
it pursuant to the preceding clause or its assessment of the
validity or amount of any claim against it arising from such
a failure or alleged failure;
(d) The Insurance Parties represent and warrant that the Contracts
currently are and will be treated as annuity contracts or life insurance
contracts under applicable provisions of the Code and that it will use its best
efforts to maintain such treatment; the Insurance Parties will notify Fund
immediately upon having a reasonable basis for believing that any of the
Contracts have ceased to be so treated or that they might not be so treated in
the future.
(e) The Insurance Parties represent and warrant 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 Insurance Parties will use its best efforts to
continue to meet such definitional requirements, and it will notify Fund
immediately upon having a reasonable basis for believing that such requirements
have ceased to be met or that they might not be met in the future.
4.2 Insurance and Certain Other Laws
(a) Fund will use its best efforts to comply with any applicable state
insurance laws or regulations, which efforts shall include, without limitation,
the furnishing of information that is not otherwise available to the Insurance
Parties and that is required by state insurance law to enable the Insurance
Parties to obtain the authority needed to issue the Contracts in any applicable
state.
(b) G-WL&A represents and warrants that (i) it is an insurance company
duly organized, validly existing and in good standing under the laws of the
State of Colorado and has full corporate power, authority and legal right to
execute, deliver and perform its duties and comply with its obligations under
this Agreement, and (ii) the Contracts comply in all material respects with all
other applicable federal and state laws and regulations.
(c) First G-WL&A represents and warrants that (i) it is an insurance
company duly organized, validly existing and in good standing under the laws of
the State of New York and has full corporate power, authority and legal right to
execute, deliver and perform its duties and comply with its obligations under
this Agreement, and (ii) the Contracts comply in all material respects with all
other applicable federal and New York state laws and regulations.
(d) Fund represents and warrants that it is lawfully organized, validly
existing, and in good standing under the laws of the State of [] and has full
power, authority, and legal right to execute, deliver, and perform its duties
and comply with its obligations under this Agreement.
(e) Distributor represents and warrants that it is lawfully organized,
validly existing, and in good standing under the laws of the State of [] and has
full power, authority, and legal right to execute, deliver, and perform its
duties and comply with its obligations under this Agreement.
4.3 Securities Laws
(a) The Insurance Parties represent and warrant that (i) interests in
each Account pursuant to the Contracts will be registered under the 1933 Act to
the extent required by the 1933 Act, (ii) the Contracts will be duly authorized
for issuance and sold in compliance with all applicable federal and state laws,
including, without limitation, the 1933 Act, the 1934 Act, the 1940 Act and the
law(s) of the Insurance Parties' state(s) of organization and domicile, (iii)
each Account is and will remain registered under the 1940 Act, to the extent
required by the 1940 Act, (iv) each Account does and will comply in all material
respects with the requirements of the 1940 Act and the rules thereunder, to the
extent required, (v) each Account's 1933 Act registration statement relating to
the Contracts, together with any amendments thereto, will at all times comply in
all material respects with the requirements of the 1933 Act and the rules
thereunder, (vi) the Insurance Parties will amend the registration statement for
its Contracts under the 1933 Act and for its Accounts under the 1940 Act from
time to time as required in order to effect the continuous offering of its
Contracts or as may otherwise be required by applicable law, and (vii) each
Account Prospectus, Statement of Additional Information, and then-current
stickers (collectively referred to herein as "Account Prospectus"), will at all
times comply in all material respects with the requirements of the 1933 Act and
the rules thereunder.
(b) Fund represents and warrants that (i) Shares sold pursuant to this
Agreement will be registered under the 1933 Act to the extent required by the
1933 Act and duly authorized for issuance and sold in compliance with Delaware
law, (ii) Fund is and will remain registered under the 1940 Act to the extent
required by the 1940 Act, (iii) Fund will amend the registration statement for
its Shares under the 1933 Act and itself under the 1940 Act from time to time as
required in order to effect the continuous offering of its Shares, (iv) Fund
does and will comply in all material respects with the requirements of the 1940
Act and the rules thereunder, (v) Fund's 1933 Act registration statement,
together with any amendments thereto, will at all times comply in all material
respects with the requirements of the 1933 Act and rules thereunder, and (vi)
Fund's Prospectus, Statement of Additional Information, and then-current
stickers (collectively referred to herein as "Fund Prospectus"), will at all
times comply in all material respects with the requirements of the 1933 Act and
the rules thereunder.
(c) Fund will at its expense register and qualify its Shares for sale
in accordance with the laws of any state or other jurisdiction if and to the
extent reasonably deemed advisable by Fund.
(d) Fund and Distributor represent and warrant that all of its
trustees, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the Fund
are and continue to be at all times covered by a blanket fidelity bond or
similar coverage for the benefit of the Fund in an amount not less than the
minimal coverage as required currently by Rule 17g-(1) of the 1940 Act or
related provisions as may be promulgated from time to time. The aforesaid bond
includes coverage for larceny and embezzlement and is issued by a reputable
bonding company.
4.4 Notice of Certain Proceedings and Other Circumstances
(a) Fund or Distributor will immediately notify the Insurance Parties
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 Fund's registration
statement under the 1933 Act or Fund Prospectus, (ii) any request by the SEC for
any amendment to such registration statement or Fund Prospectus that may affect
the offering of Shares of a Fund, (iii) the initiation of any proceedings for
that purpose or for any other purpose relating to the registration or offering
of Fund's Shares, or (iv) any other action or circumstances that may prevent the
lawful offer or sale of Shares of any Fund in any state or jurisdiction,
including, without limitation, any circumstances in which (a) such Shares are
not registered and, in all material respects, issued and sold in accordance with
applicable state and federal law, or (b) such law precludes the use of such
Shares as an underlying investment medium of the Contracts issued or to be
issued by the Insurance Parties. Fund and Distributor will make every reasonable
effort to prevent the issuance, with respect to any Fund, 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 Insurance Parties or its designated underwriter affiliate will
immediately notify Fund of (i) the issuance by any court or regulatory body of
any stop order, cease and desist order, or other similar order with respect to
each Account's registration statement under the 1933 Act relating to the
Contracts or each Account Prospectus, (ii) any request by the SEC for any
amendment to such registration statement or Account Prospectus that may affect
the offering of Shares of Fund, (iii) the initiation of any proceedings for that
purpose or for any other purpose relating to the registration or offering of
each Account's interests pursuant to the Contracts, or (iv) any other action or
circumstances that may prevent the lawful offer or sale of said interests in any
state or jurisdiction, including, without limitation, any circumstances in which
said interests are not registered and, in all material respects, issued and sold
in accordance with applicable state and federal law. The Insurance Parties and
its designated underwriter affiliate will make every reasonable effort to
prevent the issuance of any such stop order, cease and desist order or similar
order and, if any such order is issued, to obtain the lifting thereof at the
earliest possible time.
4.5 G-WL&A To Provide Documents; Information About Fund
(a) The Insurance Parties will provide to Fund or its designated agent
at least one (1) complete copy of all SEC registration statements, Account
Prospectuses, reports, any preliminary and final voting instruction solicitation
material, applications for exemptions, requests for no-action letters, and all
amendments to any of the above, that relate to each Account or the Contracts,
contemporaneously with the filing of such document with the SEC or other
regulatory authorities.
(b) The Insurance Parties will provide to Fund or their designated
agent(s) at least one (1) complete copy of each piece of sales literature or
other promotional material in which Fund, or any of their affiliates are named,
at least five (5) 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 Fund, or their designated agent(s) object to such use within five (5)
Business Days after receipt of such material or such shorter period as the
Parties hereto may, from time to time, agree upon. Fund hereby designates
Distributor as the entity to receive such sales literature, until such time as
Fund appoints another designated agent by giving notice to the Insurance Parties
in the manner required by Section 9 hereof.
(c) Neither the Insurance Parties nor any of its affiliates, will give
any information or make any representations or statements on behalf of or
concerning Fund or its affiliates in connection with the sale of the Contracts
other than (i) the information or representations contained in the registration
statement, including the Fund Prospectus contained therein, relating to Shares,
as such registration statement and Fund Prospectus may be amended from time to
time; or (ii) in reports or proxy materials for Fund; or (iii) in published
reports for Fund that are in the public domain and approved by Fund for
distribution; or (iv) in sales literature or other promotional material approved
by Fund, except with the express written permission of Fund.
(d) The Insurance Parties shall adopt and implement procedures
reasonably designed to ensure that information concerning Fund and its
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 Insurance
Parties, Fund, nor any of their affiliates shall be liable for any losses,
damages or expenses relating to the improper use of such broker only materials.
(e) For the purposes of this Section 4.5, the phrase "sales literature
or other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act, or the ▇▇▇▇ ▇▇▇.
4.6 Fund and Distributor To Provide Documents; Information About G-WL&A
(a) Fund and Distributor will provide to the Insurance Parties 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 Fund or the Shares of a Fund, contemporaneously with the filing of
such document with the SEC or other regulatory authorities.
(b) Fund and Distributor will provide to the Insurance Parties a camera
ready copy of all Fund prospectuses and printed copies, in an amount specified
by the Insurance Parties, of Fund 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 Fund. Fund
will provide such copies to the Insurance Parties in a timely manner so as to
enable the Insurance Parties to print and distribute such materials to be
furnished to Participants within the time required by law.
(c) Fund and Distributor will provide to the Insurance Parties or its
designated agent(s) at least one (1) complete copy of each piece of sales
literature or other promotional material in which G-WL&A, First G-WL&A, or any
of its respective affiliates is named, or that refers to the Contracts, at least
five (5) 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
Insurance Parties or their designated agent(s) objects to such use within five
(5) Business Days after receipt of such material or such shorter period as the
Parties hereto may, from time to time, agree upon. G-WL&A shall receive all such
sales literature until such time as it appoints a designated agent by giving
notice to Fund in the manner required by Section 9 hereof.
(d) Neither Adviser, Distributor, Fund nor any of their affiliates will
give any information or make any representations or statements on behalf of or
concerning the Insurance Parties, 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; or (ii) in published reports for the Account or the Contracts that are
in the public domain and approved by G-WL&A or First G-WL&A, as the case may be,
for distribution; or (iii) in sales literature or other promotional material
approved by the Insurance Parties or their affiliates, except with the express
written permission of the Insurance Parties.
(e) Fund shall cause its principal underwriter to adopt and implement
procedures reasonably designed to ensure that information concerning the
Insurance Parties and their 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 G-WL&A, First G-WL&A, nor any of their respective affiliates shall
be liable for any losses, damages or expenses relating to the improper use of
such broker only materials.
(f) For purposes of this Section 4.6, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks such as the Internet or other electronic messages), sales
literature (i.e., any written communication distributed or made generally
available to customers or the public, including brochures, circulars, research
reports, market letters, form letters, seminar texts, reprints or excerpts of
any other advertisement, sales literature, or published article), educational or
training materials or other communications distributed or made generally
available to some or all agents or employees, registration statements,
prospectuses, statements of additional information, shareholder reports, and
proxy materials and any other material constituting sales literature or
advertising under the NASD rules, the 1933 Act, or the 1940 Act.
Section 5. Mixed and Shared Funding
5.1 General
The SEC has granted an order to Fund exempting it from certain
provisions of the 1940 Act and rules thereunder so that Fund's Funds may be
available for investment by certain other entities, including, without
limitation, separate accounts funding variable annuity contracts or variable
life insurance contracts, separate accounts of insurance companies unaffiliated
with the Insurance Parties, and trustees of qualified pension and retirement
plans (collectively, "Mixed and Shared Funding"). The Parties recognize that the
SEC has imposed terms and conditions for such orders that are substantially
identical to many of the provisions of this Section 5. Sections 5.2 through 5.8
below shall apply pursuant to the exemptive order granted to Fund. Fund hereby
notifies the Insurance Parties that, in the event that Fund implements Mixed and
Shared Funding, it may be appropriate to include in the prospectus, pursuant to
which a Contract is offered, disclosure regarding the potential risks of Mixed
and Shared Funding.
5.2 Disinterested Trustees
Fund agrees that its Board shall at all times consist of trustees a
majority of whom (the "Disinterested Trustees") are not interested persons of
Fund within the meaning of Section 2(a)(19) of the 1940 Act and the rules
thereunder and as modified by any applicable orders of the SEC, except that if
this condition is not met by reason of the death, disqualification, or bona fide
resignation of any director, then the operation of this condition shall be
suspended (a) for a period of forty-five (45) days if the vacancy or vacancies
may be filled by the Board; (b) for a period of sixty (60) days if a vote of
shareholders is required to fill the vacancy or vacancies or (c) for such longer
period as the SEC may prescribe by order upon application.
5.3 Monitoring for Material Irreconcilable Conflicts
Fund agrees that its Board will monitor for the existence of any
material irreconcilable conflict between the interests of the Participants in
all separate accounts of life insurance companies utilizing Fund ("Participating
Insurance Companies"), including each Account, and participants in all qualified
retirement and pension plans investing in Fund ("Participating Plans"). The
Insurance Parties agree to inform the Board of Fund of the existence of or any
potential for any such material irreconcilable conflict of which it is aware.
The concept of a "material irreconcilable conflict" is not defined by the 1940
Act or the rules thereunder, but the Parties recognize that such a conflict may
arise for a variety of reasons, including, without limitation:
(a) an action by any state insurance or other 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 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 Fund are being managed;
(e) a difference in voting instructions given by variable annuity
contract and variable life insurance contract Participants or by Participants of
different Participating Insurance Companies;
(f) a decision by a Participating Insurance Company to disregard the
voting instructions of Participants; or
(g) a decision by a Participating Plan to disregard the voting
instructions of Plan Participants.
Consistent with the SEC's requirements in connection with exemptive
orders of the type referred to in Section 5.1 hereof, the Insurance Parties will
assist the Board in carrying out its responsibilities by providing the Board
with all information reasonably necessary for the Board to consider any issue
raised, including information as to a decision by the Insurance Parties to
disregard voting instructions of Participants. The Insurance Parties'
responsibilities in connection with the foregoing shall be carried out with a
view only to the interests of Participants.
5.4 Conflict Remedies
(a) It is agreed that if it is determined by a majority of the members
of the Board or a majority of the Disinterested Trustees that a material
irreconcilable conflict exists, the Insurance Parties will, if it is a
Participating Insurance Company for which a material irreconcilable conflict is
relevant, at its own expense and to the extent reasonably practicable (as
determined by a majority of the Disinterested Trustees), take whatever steps are
necessary to remedy or eliminate the material irreconcilable conflict, which
steps may include, but are not limited to:
(i) withdrawing the assets allocable to some or all of
the Accounts from Fund or any Fund and reinvesting
such assets in a different investment medium,
including another Fund of Fund, or submitting the
question whether such segregation should be
implemented to a vote of all affected Participants
and, as appropriate, segregating the assets of any
particular group (e.g., annuity Participants, life
insurance Participants or all Participants) that
votes in favor of such segregation, or offering to
the affected Participants the option of making such a
change; and
(ii) establishing a new registered investment company of
the type defined as a "management company" in Section
4(3) of the 1940 Act or a new separate account that
is operated as a management company.
(b) If the material irreconcilable conflict arises because of the
Insurance Parties' decision to disregard Participant voting instructions and
that decision represents a minority position or would preclude a majority vote,
the Insurance Parties may be required to withdraw each Account's investment in
Fund or any Fund. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal must take place within six (6) months after Fund
gives notice to the Insurance Parties that this provision is being implemented,
and until such withdrawal Fund shall continue to accept and implement orders by
the Insurance Parties for the purchase and redemption of Shares of Fund.
(c) If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to the Insurance Parties
conflicts with the majority of other state regulators, then the Insurance
Parties may withdraw each Account's investment in Fund within six (6) months
after Fund's Board informs the Insurance Parties that it has determined that
such decision has created a material irreconcilable conflict, and until such
withdrawal Fund shall continue to accept and implement orders by the Insurance
Parties for the purchase and redemption of Shares of Fund. No charge or penalty
will be imposed as a result of such withdrawal.
(d) The Insurance Parties agrees that any remedial action taken by it
in resolving any material irreconcilable conflict will be carried out at its
expense and with a view only to the interests of Participants.
(e) For purposes hereof, a majority of the Disinterested Trustees will
determine whether or not any proposed action adequately remedies any material
irreconcilable conflict. In no event, however, will Fund or any of its
affiliates be required to establish a new funding medium for any Contracts. The
Insurance Parties will not be required by the terms hereof to establish a new
funding medium for any Contracts if an offer to do so has been declined by vote
of a majority of Participants materially adversely affected by the material
irreconcilable conflict.
5.5 Notice to the Insurance Parties
Fund will promptly make known in writing to the Insurance Parties the
Board's determination of the existence of a material irreconcilable conflict, a
description of the facts that give rise to such conflict and the implications of
such conflict.
5.6 Information Requested by Board
The Insurance Parties and Fund (or its investment adviser) will at
least annually submit to the Board of Fund such reports, materials or data as
the Board may reasonably request so that the Board may fully carry out the
obligations imposed upon it by the provisions hereof or any exemptive order
granted by the SEC to permit Mixed and Shared Funding, and said reports,
materials and data will be submitted at any reasonable time deemed appropriate
by the Board. All reports received by the Board of potential or existing
conflicts, and all Board actions with regard to determining the existence of a
conflict, notifying Participating Insurance Companies and Participating Plans of
a conflict, and determining whether any proposed action adequately remedies a
conflict, will be properly recorded in the minutes of the Board or other
appropriate records, and such minutes or other records will be made available to
the SEC upon request.
5.7 Compliance with SEC Rules
If, at any time during which Fund is serving as an investment medium
for variable life insurance Contracts, 1940 Act Rules 6e-3(T) or, if applicable,
6e-2 are amended or Rule 6e-3 is adopted to provide exemptive relief with
respect to Mixed and Shared Funding, Fund agrees that it will comply with the
terms and conditions thereof and that the terms of this Section 5 shall be
deemed modified if and only to the extent required in order also to comply with
the terms and conditions of such exemptive relief that is afforded by any of
said rules that are applicable.
5.8 Other Requirements
Fund will require that each Participating Insurance Company and
Participating Plan enter into an agreement with Fund that contains in substance
the same provisions as are set forth in Sections 4.1(b), 4.1(d), 4.3(a), 4.4(b),
4.5(a), 5, and 10 of this Agreement.
Section 6. Termination
6.1 Events of Termination
Subject to Section 6.4 below, this Agreement will terminate as to a
Fund:
(a) at the option of any Party, with or without cause with respect to
the Fund, upon six (6) months advance written notice to the other Parties, or,
if later, upon receipt of any required exemptive relief from the SEC, unless
otherwise agreed to in writing by the Parties; or
(b) at the option of Fund upon institution of formal proceedings
against First G-WL&A, G-WL&A, or their respective affiliates by the NASD, the
SEC, any state insurance regulator or any other regulatory body regarding their
respective obligations under this Agreement or related to the sale of the
Contracts, the operation of each Account, or the purchase of Shares, if, in each
case, Fund reasonably determines that such proceedings, or the facts on which
such proceedings would be based, have a material likelihood of imposing material
adverse consequences on the Fund with respect to which the Agreement is to be
terminated AND only with respect to proceedings against either First G-WL&A or
G-WL&A or
(c) at the option of the Insurance Parties upon institution of formal
proceedings against Fund, its principal underwriter, or its investment adviser
by the NASD, the SEC, or any state insurance regulator or any other regulatory
body regarding Fund's obligations under this Agreement or related to the
operation or management of Fund or the purchase of Fund Shares, if, in each
case, the Insurance Parties reasonably determine that such proceedings, or the
facts on which such proceedings would be based, have a material likelihood of
imposing material adverse consequences on First G-WL&A. G-WL&A, their respective
affiliates, officers or directors, or the Subaccount corresponding to the Fund
with respect to which the Agreement is to be terminated; or
(d) at the option of any Party in the event that (i) the Fund's Shares
are not registered and, in all material respects, issued and sold in accordance
with any applicable federal or state law, or (ii) such law precludes the use of
such Shares as an underlying investment medium of the Contracts issued or to be
issued by First G-WL&A or G-WL&A; or
(e) upon termination of the corresponding Subaccount's investment in
the Fund pursuant to Section 5 hereof; or
(f) at the option of the Insurance Parties if the Fund ceases to
qualify as a RIC under Subchapter M of the Code or under successor or similar
provisions, or if the Insurance Parties reasonably believes that the Fund may
fail to so qualify; or
(g) at the option of the Insurance Parties if the Fund fails to comply
with Section 817(h) of the Code or with successor or similar provisions, or if
the Insurance Parties reasonably believes that the Fund may fail to so comply;
or
(h) at the option of Fund if the Contracts issued by G-WL&A or First
G-WL&A cease to qualify as annuity contracts or life insurance contracts under
the Code (other than by reason of the Fund's noncompliance with Section 817(h)
or Subchapter M of the Code) or if interests in an Account under the Contracts
are not registered, where required, and, in all material respects, are not
issued or sold in accordance with any applicable federal or state law; or
(i) upon another Party's material breach of any provision of this
Agreement with such breach not cured within thirty (30) days of the
non-breaching Party's written notice to the Party allegedly at breach.
6.2 Notice Requirement for Termination
No termination of this Agreement will be effective unless and until the
Party terminating this Agreement gives prior written notice to the other Parties
to this Agreement of its intent to terminate, and such notice shall set forth
the basis for such termination. Furthermore:
(a) in the event that any termination is based upon the provisions of
Sections 6.1(a) or 6.1(e) hereof, such prior written notice shall be given at
least six (6) months in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto;
(b) in the event that any termination is based upon the provisions of
Sections 6.1(b) or 6.1(c) hereof, such prior written notice shall be given at
least ninety (90) days in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto; and
(c) in the event that any termination is based upon the provisions of
Sections 6.1(d), 6.1(e), 6.1(f), 6.1(g) or 6.1(h) hereof, such prior written
notice shall be given as soon as possible within forty-eight (48) hours after
the terminating Party learns of the event causing termination to be required.
6.3 Funds To Remain Available
Notwithstanding any termination of this Agreement by the Insurance
Parties, Fund or Distributor will, at the option of the Insurance Parties,
continue to make available additional shares of the Fund pursuant to the terms
and conditions of this Agreement, for all Contracts in effect on the effective
date of termination of this Agreement (hereinafter referred to as "Existing
Contracts"), unless Fund or the Board determines that doing so would not serve
the best interests of the shareholders of the affected Funds or would be
inconsistent with applicable law or regulation. Specifically, without
limitation, 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. The Parties agree that this Section 6.3 will not
apply to any (i) terminations under Section 5 and the effect of such
terminations will be governed by Section 5 of this Agreement or (ii) any
rejected purchase and/or redemption order as described in Section 2.3(c) hereof.
6.4 Survival of Warranties and Indemnifications
All warranties and indemnifications will survive the termination of
this Agreement.
6.5 Continuance of Agreement for Certain Purposes
If any Party terminates this Agreement with respect to any Fund
pursuant to Sections 6.1(b), 6.1(c), 6.1(d), 6.1(e), 6.1(f), 6.1(g) or 6.1(h)
hereof, this Agreement shall nevertheless continue in effect as to any Shares of
that Fund that are outstanding as of the date of such termination (the "Initial
Termination Date"). This continuation shall extend to the earlier of the date as
of which an Account owns no Shares of the affected Fund or a date (the "Final
Termination Date") six (6) months following the Initial Termination Date, except
that the Insurance Parties may, by written notice shorten said six (6) month
period in the case of a termination pursuant to Sections 6.1(d), 6.1(e), 6.1(f),
6.1(g) or 6.1(h).
Section 7. Parties To Cooperate Respecting Termination
The Parties hereto agree to cooperate and give reasonable assistance to
one another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Fund after the Final Termination
Date with respect thereto, or, in the case of a termination pursuant to Section
6.1(a), the termination date specified in the notice of termination. Such steps
may include combining the affected Account with another Account, substituting
other mutual fund shares for those of the affected Fund, or otherwise
terminating participation by the Contracts in such Fund.
Section 8. Assignment
This Agreement may not be assigned by any Party, except with the
written consent of each other Party. For purposes of this Agreement, the
designation of an affiliate of a Party to perform some, or all, the duties and
obligations hereto shall not be construed as an assignment. An affiliate is that
entity which is controlled, either directly or indirectly by a Party and shall
include any entity that conforms to such definition as of the effective date of
the Agreement as well as any entity that conforms to the definition anytime
thereafter.
Section 9. Notices
Notices and communications required or permitted will be given by means
mutually acceptable to the Parties concerned. Each other notice or communication
required or permitted by this Agreement will be given to the following persons
at the following addresses and facsimile numbers, or such other persons,
addresses or facsimile numbers as the Party receiving such notices or
communications may subsequently direct in writing:
Third Avenue Funds
address information
▇.▇. ▇▇▇▇▇▇▇, LLC
address information
Third Avenue Management, LLC
address information
GREAT-WEST LIFE AND ANNUITY INSURANCE COMPANY
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: Vice President, Institutional Insurance
cc: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, V.P. Counsel and Associate Secretary
FIRST GREAT-WEST LIFE AND ANNUITY INSURANCE COMPANY
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ With a copy
to:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, V.P. Counsel and Associate Secretary
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Section 10. Voting Procedures
Subject to the cost allocation procedures set forth in Section 3
hereof, the Insurance Parties will distribute all proxy material furnished by
Fund to Participants to whom pass-through voting privileges are required to be
extended and will solicit voting instructions from Participants. The Insurance
Parties will vote Shares in accordance with timely instructions received from
Participants. The Insurance Parties will vote Shares that are (a) not
attributable to Participants to whom pass-through voting privileges are
extended, or (b) attributable to Participants, but for which no timely
instructions have been received, in the same proportion as Shares for which said
instructions have been received from Participants, so long as and to the extent
that the SEC continues to interpret the 1940 Act to require pass-through voting
privileges for Participants. Neither the Insurance Parties nor any of its
affiliates will in any way recommend action in connection with or oppose or
interfere with the solicitation of proxies for the Shares held for such
Participants. The Insurance Parties reserves the right to vote shares held in
any Account in its own right, to the extent permitted by law. The Insurance
Parties shall be responsible for assuring that each of its Accounts holding
Shares calculates voting privileges in a manner consistent with that of other
Participating Insurance Companies or in the manner required by the Mixed and
Shared Funding exemptive order obtained by Fund. Fund will notify the Insurance
Parties of any changes of interpretations or amendments to Mixed and Shared
Funding exemptive order it has obtained. Fund will comply with all provisions of
the 1940 Act requiring voting by shareholders, and in particular, Fund either
will provide for annual meetings (except insofar as the SEC may interpret
Section 16 of the 1940 Act not to require such meetings) or will comply with
Section 16(c) of the 1940 Act (although Fund is not one of the trusts described
in Section 16(c) of that Act) as well as with Sections 16(a) and, if and when
applicable, 16(b). Further, Fund will act in accordance with the SEC's
interpretation of the requirements of Section 16(a) with respect to periodic
elections of trustees and with whatever rules the SEC may promulgate with
respect thereto.
Section 11. Foreign Tax Credits
Fund agrees to consult in advance with the Insurance Parties concerning
any decision to elect or not to elect pursuant to Section 853 of the Code to
pass through the benefit of any foreign tax credits to its shareholders.
Section 12. Indemnification
12.1 Of Adviser, Fund, and Distributor by the Insurance Parties
(a) Except to the extent provided in Sections 12.1(b) and 12.1(c),
below, G-WL&A and First G-WL&A separately and individually agree to indemnify
and hold harmless Adviser, Fund, Distributor, their affiliates, and each person,
if any, who controls Adviser, Fund, Distributor, or their affiliates within the
meaning of Section 15 of the 1933 Act and each of their respective trustees and
officers, (collectively, the "Indemnified Parties" for purposes of this Section
12.1) against any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of First G-WL&A or G-WL&A,
as the case may be, or actions in respect thereof (including, to the extent
reasonable, legal and other expenses), to which the Indemnified Parties may
become subject under any statute, regulation, at common law or otherwise;
provided, the Account owns shares of the Fund and insofar as such losses,
claims, damages, liabilities or actions:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Account's
1933 Act registration statement, any Account Prospectus, the
Contracts, or sales literature or advertising for the Contracts
(or any amendment or supplement to any of the foregoing), or
arise out of or are based upon the omission or the alleged
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not
misleading; provided, that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to First G-WL&A or
G-WL&A or its designated affiliate, as the case may be, by or on
behalf of Fund or Distributor for use in any Account's 1933 Act
registration statement, any Account Prospectus, the Contracts, or
sales literature or advertising or otherwise for use in
connection with the sale of Contracts or Shares (or any amendment
or supplement to any of the foregoing); or
(ii) arise out of or as a result of any other statements or
representations (other than statements or representations
contained in Fund's 1933 Act registration statement, Fund
Prospectus, sales literature or advertising of Fund, or any
amendment or supplement to any of the foregoing, not supplied for
use therein by or on behalf of First G-WL&A or G-WL&A or their
respective affiliates (as the case may be) and on which such
persons have reasonably relied) or the negligent, illegal or
fraudulent conduct of First G-WL&A or G-WL&A or their respective
affiliates or persons under their control (including, without
limitation, their employees and "persons associated with a
member," as that term is defined in paragraph (q) of Article I of
the NASD's By-Laws), as the case may be, in connection with the
sale or distribution of the Contracts or Shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in Fund's 1933
Act registration statement, Fund Prospectus, sales literature or
advertising of Fund, or any amendment or supplement to any of the
foregoing, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading if such a statement or
omission was made in reliance upon and in conformity with
information furnished to Fund, Distributor or their affiliates by
or on behalf of First G-WL&A or G-WL&A or their respective
affiliates, as the case may be, for use in Fund's 1933 Act
registration statement, Fund Prospectus, sales literature or
advertising of Fund, or any amendment or supplement to any of the
foregoing; or
(iv) arise as a result of any failure by First G-WL&A or G-WL&A, as
the cse may be, to perform the obligations, provide the services
and furnish the materials required of them under the terms of
this Agreement, or any material breach of any representation
and/or warranty made by First G-WL&A or G-WL&A or its designated
affiliates, as the case may be, in this Agreement or arise out of
or result from any other material breach of this Agreement by
First G-WL&A or G-WL&A or its designated affiliates, as the case
may be; or
(v) arise as a result of failure by the Contracts issued by First
G-WL&A or G-WL&A, as the case may be, to qualify as annuity
contracts or life insurance contracts under the Code, otherwise
than by reason of any Fund's failure to comply with Subchapter M
or Section 817(h) of the Code.
(b) Neither First G-WL&A or G-WL&A nor its designated affiliates shall
be liable under this Section 12.1 with respect to any losses, claims, damages,
liabilities or actions to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence in the
performance by that Indemnified Party of its duties or by reason of that
Indemnified Party's reckless disregard of obligations or duties (i) under this
Agreement, or (ii) to Fund or Distributor.
(c) Neither First G-WL&A or G-WL&A nor its designated affiliates shall
be liable under this Section 12.1 with respect to any action against an
Indemnified Party unless Fund or Distributor shall have notified First G-WL&A or
G-WL&A and its designated affiliates, as the case may be, in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the action shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have received notice of
such service on any designated agent). Except as otherwise provided herein, in
case any such action is brought against an Indemnified Party, First G-WL&A or
G-WL&A and its designated affiliates, as the case may be, shall be entitled to
participate, at their own expense, in the defense of such action and also shall
be entitled to assume the defense thereof, with counsel approved by the
Indemnified Party named in the action, which approval shall not be unreasonably
withheld. After notice from First G-WL&A or G-WL&A or its designated affiliates
as the case may be, to such Indemnified Party of First G-WL&A's or G-WL&A's or
its designated affiliates', as the case may be, election to assume the defense
thereof, the Indemnified Party will cooperate fully with First G-WL&A or G-WL&A
and its designated affiliates, as the case may be, and shall bear the fees and
expenses of any additional counsel retained by it, and neither First G-WL&A nor
G-WL&A nor its designated affiliates will be liable to such Indemnified Party
under this Agreement for any legal or other expenses subsequently incurred by
such Indemnified Party independently in connection with the defense thereof,
other than reasonable costs of investigation.
(d) The Parties agree that the foregoing indemnification by G-WL&A and
First G-WL&A are several and the indemnification of G-WL&A shall not apply to
any acts or omissions of First G-WL&A and vice versa. For certainty, nothing in
this Section 12.1 shall be construed as obligating the Insurance Parties to
provide joint indemnification on behalf of Fund or Distributor; Fund or
Distributor or their affiliates, as the case may be, shall look separately to
either G-WL&A or First G-WL&A, or their respective affiliate, with regard to the
separate and several indemnifications as provided herein.
12.2 Of the Insurance Parties by Adviser, Fund, and Distributor
(a) Except to the extent provided in Sections 12.2(c), 12.2(d) and
12.2(e), below, Adviser, Fund, and Distributor agree to indemnify and hold
harmless the Insurance Parties and their respective affiliates, and each person,
if any, who controls the Insurance Parties or their respective affiliates within
the meaning of Section 15 of the 1933 Act and each of their respective trustees
and officers, (collectively, the "Indemnified Parties" for purposes of this
Section 12.2) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of Adviser, Fund
and/or Distributor) or actions in respect thereof (including, to the extent
reasonable, legal and other expenses), to which the Indemnified Parties may
become subject under any statute, regulation, at common law, or otherwise;
provided, the Account owns shares of the Fund and insofar as such losses,
claims, damages, liabilities or actions:
(i) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in Fund's 1933
Act registration statement, Fund Prospectus or sales literature
or advertising of Fund (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the omission or
the alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading; provided, that this agreement to indemnify shall not
apply as to any Indemnified Party if such statement or omission
or such alleged statement or omission was made in reliance upon
and in conformity with information furnished to Fund or its
affiliates by or on behalf of the Insurance Parties, or their
respective affiliates for use in Fund's 1933 Act registration
statement, Fund Prospectus, or in sales literature or advertising
or otherwise for use in connection with the sale of Contracts or
Shares (or any amendment or supplement to any of the foregoing);
or
(ii) arise out of or as a result of any other statements or
representations (other than statements or representations
contained in any Account's 1933 Act registration statement, any
Account Prospectus, sales literature or advertising for the
Contracts, or any amendment or supplement to any of the
foregoing, not supplied for use therein by or on behalf of Fund,
Distributor or their affiliates and on which such persons have
reasonably relied) or the negligent, illegal or fraudulent
conduct of Fund, Distributor or their affiliates or persons under
their control (including, without limitation, their employees and
"persons associated with a member" as that term is defined in
Section (q) of Article I of the NASD By-Laws), in connection with
the sale or distribution of Fund Shares; or
(iii) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any Account's
1933 Act registration statement, any Account Prospectus, sales
literature or advertising covering the Contracts, or any
amendment or supplement to any of the foregoing, or the omission
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading, if such statement or omission was made in reliance
upon and in conformity with information furnished to the
Insurance Parties or their respective affiliates by or on behalf
of Fund or Distributor for use in any Account's 1933 Act
registration statement, any Account Prospectus, sales literature
or advertising covering the Contracts, or any amendment or
supplement to any of the foregoing; or
(iv) arise as a result of any failure by Fund to perform the
obligations, provide the services and furnish the materials
required of it under the terms of this Agreement, or any material
breach of any representation and/or warranty made by Fund in this
Agreement or arise out of or result from any other material
breach of this Agreement by Fund.
(b) Adviser, Fund, and Distributor agree to indemnify and hold harmless
the Indemnified Parties from and against any and all losses, claims, damages,
liabilities (including amounts paid in settlement thereof with, the written
consent of Fund and/or Distributor) or actions in respect thereof (including, to
the extent reasonable, legal and other expenses) to which the Indemnified
Parties may become subject directly or indirectly under any statute, at common
law or otherwise, insofar as such losses, claims, damages, liabilities or
actions directly or indirectly result from or arise out of the failure of any
Fund to operate as a regulated investment company in compliance with (i)
Subchapter M of the Code and regulations thereunder, or (ii) Section 817(h) of
the Code and regulations thereunder, including, without limitation, any income
taxes and related penalties, rescission charges, liability under state law to
Participants asserting liability against the Insurance Parties pursuant to the
Contracts, the costs of any ruling and closing agreement or other settlement
with the IRS, and the cost of any substitution by the Insurance Parties of
Shares of another investment company or portfolio for those of any adversely
affected Fund as a funding medium for each Account that the Insurance Parties
reasonably deem necessary or appropriate as a result of the noncompliance.
(c) Neither Adviser, Fund, nor Distributor shall be liable under this
Section 12.2 with respect to any losses, claims, damages, liabilities or actions
to which an Indemnified Party would otherwise be subject by reason of willful
misfeasance, bad faith, or gross negligence in the performance by that
Indemnified Party of its duties or by reason of such Indemnified Party's
reckless disregard of its obligations and duties (i) under this Agreement, or
(ii) to the Insurance Parties, each Account or Participants.
(d) Except as otherwise provided herein, in case any such action is
brought against an Indemnified Party, Adviser, Fund and/or Distributor will be
entitled to participate, at its own expense, in the defense of such action and
also shall be entitled to assume the defense thereof (which shall include,
without limitation, the conduct of any ruling request and closing agreement or
other settlement proceeding with the IRS), with counsel approved by the
Indemnified Party named in the action, which approval shall not be unreasonably
withheld. After notice from Adviser, Fund, and/or Distributor to such
Indemnified Party of Fund's or Distributor's election to assume the defense
thereof, the Indemnified Party will cooperate fully with Adviser, Fund, and/or
Distributor and shall bear the fees and expenses of any additional counsel
retained by it, and Adviser, Fund and/or Distributor will not be liable to such
Indemnified Party under this Agreement for any legal or other expenses
subsequently incurred by such Indemnified Party independently in connection with
the defense thereof, other than reasonable costs of investigation.
(e) In no event shall Adviser, Fund, or Distributor be liable under the
indemnification provisions contained in this Agreement with respect to any
losses, claims, damages, liabilities or expenses that arise out of or result
from (i) a breach of any representation, warranty, and/or covenant made by the
Insurance Parties or their designated affiliates hereunder, warranties and
covenants; (ii) the failure by the Insurance Parties to maintain its segregated
asset account (which invests in any Fund) as a legally and validly established
segregated asset account under applicable state law and as a duly registered
unit investment trust under the provisions of the 1940 Act (unless exempt
therefrom); or (iii) the failure by the Insurance Parties to maintain their
variable annuity or life insurance contracts (with respect to which any Fund
serves as an underlying funding vehicle) as annuity contracts or life insurance
contracts under applicable provisions of the Code.
12.3 Effect of Notice
Any notice given by the indemnifying Party to an Indemnified Party
referred to herein 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.
12.4 Successors
This Agreement shall binding on, and inure to the benefit of, any
successor to the Parties hereto, including without limitation any succession as
a matter of law. A successor by law of any Party shall be entitled to the
benefits of the indemnification contained in this Section 12.
Section 13. Applicable Law
13.1 Adviser, Fund, Distributor, and G-WL&A
With respect to the obligations between Adviser, Fund, Distributor, and
G-WL&A, this Agreement will be construed and the provisions hereof interpreted
under and in accordance with Colorado law, without regard for that state's
principles of conflict of laws.
13.2 Adviser, Fund, Distributor, and First G-WL&A
With respect to the obligations between Adviser, Fund, Distributor, and
First G-WL&A, this Agreement will be construed and the provisions hereof
interpreted under and in accordance with New York state law, without regard for
that state's principles of conflict of laws.
Section 14. Execution in Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the same
instrument.
Section 15. Severability
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will not
be affected thereby.
Section 16. Rights Cumulative
The rights, remedies, and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, that the Parties are entitled to under federal and state
laws.
Section 17. Headings
The Table of Contents and headings used in this Agreement are for
purposes of reference only and shall not limit or define the meaning of the
provisions of this Agreement.
Section 18. Confidentiality
Fund and Distributor acknowledge that the identities of the customers
of the Insurance Parties or any of their affiliates (collectively, the "G-WL&A
Protected Parties" for purposes of this Section 18), information maintained
regarding those customers, and all computer programs and procedures or other
information developed by the G-WL&A Protected Parties or any of their employees
or agents in connection with the Insurance Parties' performance of its duties
under this Agreement are the valuable property of the G-WL&A Protected Parties.
Fund and Distributor agree that if it comes into possession of any list or
compilation of the identities of or other information about the G-WL&A Protected
Parties' customers, or any other information or property of the G-WL&A Protected
Parties, other than such information as may be independently developed or
compiled by Fund and Distributor from information supplied to it by the G-WL&A
Protected Parties' customers who also maintain accounts separate from those
Accounts registered by the Insurance Parties directly with Fund or Distributor,
then Fund and Distributor will hold such information or property in confidence
and refrain from using, disclosing or distributing any of such information or
other property except: (a) with the Insurance Parties' prior written consent; or
(b) as required by law or judicial process. The Insurance Parties acknowledge
that the identities of the customers of Fund and Distributor or any of its
affiliates (collectively, the "Protected Parties" for purposes of this Section
18), information maintained regarding those customers, and all computer programs
and procedures or other information developed by the Protected Parties or any of
their employees or agents in connection with Fund or Distributor's performance
of its duties under this Agreement are the valuable property of the Protected
Parties. The Insurance Parties agree that if it comes into possession of any
list or compilation of the identities of or other information about the
Protected Parties' customers or any other information or property of the
Protected Parties, other than such information as may be independently developed
or compiled by the Insurance Parties from information supplied to it by the
Protected Parties' customers who also maintain accounts directly with the
Insurance Parties, the Insurance Parties will hold such information or property
in confidence and refrain from using, disclosing or distributing any of such
information or other property except: (a) with Fund or Distributor's, as the
case may be, prior written consent; or (b) as required by law or judicial
process. Each Party acknowledges that any breach of the agreements in this
Section 18 would result in immediate and irreparable harm to the other Parties
for which there would be no adequate remedy at law and agree that in the event
of such a breach, the other Parties will be entitled to equitable relief by way
of temporary and permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
Section 19. Trademarks and Fund Names
Except as may otherwise be provided in a separate agreement among the
Parties, no Party nor its designated affiliates or any of their respective
affiliates, shall use any trademark, trade name, service ▇▇▇▇ or logo of the
other Party or any of their respective affiliates, or any variation of any such
trademark, trade name, service ▇▇▇▇ or logo, without that respective Party'
prior written consent, the granting of which shall be at that Party's sole
option.
Section 20. Parties to Cooperate
Each Party to this Agreement will cooperate with each other Party and
all appropriate governmental authorities (including, without limitation, the
SEC, the NASD and state insurance regulators) and will permit each other and
such authorities reasonable access to its books and records (including copies
thereof) in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
Section 21. Amendments; Need For
No provision of this Agreement may be amended or modified in any manner
except by mutual written agreement executed by all Parties hereto. The Parties
shall, from time to time, review this Agreement to determine the extent to which
an amendment thereto may be necessary or appropriate to reflect changes in
applicable law or regulation, and shall cooperate in implementing any such
amendment in a timely manner, it being understood and agreed to that no such
amendment shall take effect except upon mutual written agreement of all Parties
as stated above.
Section 22. Force Majeure
Each Party shall be excused from the performance of any of its
obligations to the other where such nonperformance is occasioned by any event
beyond its control which shall include, without limitation, any applicable
order, rule or regulation of any federal, state or local body, agency or
instrumentality with jurisdiction, work stoppage, accident, natural disaster,
war, acts of terrorism or civil disorder, provided that the Party so excused
shall use all reasonable efforts to minimize its nonperformance and overcome,
remedy, cure or remove such event as soon as is reasonably practicable, and such
performance shall be excused only for so long as, in any given case, the force
or circumstances making performance impossible shall exist.
[remainder of page intentionally left blank]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed
in their names and on their behalf by and through their duly authorized officers
signing below.
THIRD AVENUE FUNDS [CHECK LEGAL NAME]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
THIRD AVENUE MANAGEMENT, LLC [CHECK LEGAL NAME]
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
▇.▇. ▇▇▇▇▇▇▇, LLC [CHECK LEGAL NAME
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
FIRST GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
NAME OF FUND SHARE CLASS FEES, IF APPLICABLE
Third Avenue Value Variable Insurance Trust Shares
SEPARATE ACCOUNTS UTILIZING THE FUNDS
CONTRACTS FORM NUMBERS
Great-West Life & Annuity Insurance Company
Variable Annuity Contract Signature GROUP: J444MMF and J444SA
INDIVIDUAL: J444INDMMF and
J444INDSA
Variable Annuity Contract Select INDIVIDUAL: J434
First Great-West Life & Annuity Insurance Company
SCHEDULE B
PRICING ERROR POLICY
Determination of Materiality
In the event that there is an error in the calculation of the Fund's net asset
value, the following will apply:
If the amount of the error is less than $.01 per share, it is considered
immaterial and no adjustments are made.
If the amount of the error is $.01 per share or more, then the following
thresholds are applied:
a. If the amount of the difference in the erroneous net asset value
and the correct net asset value is less than .5% of the correct
net asset value, Fund or Distributor will reimburse the affected
Fund to the extent of any loss resulting from the error. No other
adjustments shall be made.
b. If the amount of the difference in the erroneous net asset value
and the correct net asset value is .5% of the correct net asset
value or greater, then Fund or Distributor will determine the
impact of the error to the affected Fund and shall reimburse such
Fund (and/or the Insurance Parties, as appropriate, such as in
the event that the error was not discovered until after the
Insurance Parties processed transactions using the erroneous net
asset value) to the extent of any loss resulting from the error.
In no event shall the Insurance Parties be liable to Participants
for any such adjustments or underpayment amounts unless the error
is due to the Insurance Parties' own willful misfeasance, bad
faith, or gross negligence. A pricing error within categories (a)
or (b) above shall be deemed to be "materially incorrect" or
constitute a "material error" for purposes of this Agreement.
Reprocessing Cost Reimbursement
To the extent a reprocessing of Participant transactions is required pursuant to
paragraph (b), above, Distributor or Fund shall reimburse the Insurance Parties
for the Insurance Parties' reasonable reprocessing costs.
SCHEDULE C
EXPENSE ALLOCATIONS
======================================= =======================================
The Insurance Parties Fund/Distributor
--------------------------------------- ---------------------------------------
--------------------------------------- ---------------------------------------
Preparing and filing the Account's Preparing and filing the Fund's
registration statement registration statement
--------------------------------------- ---------------------------------------
--------------------------------------- ---------------------------------------
text composition for Account text composition for Fund prospectuses
prospectuses and supplements and supplements
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
text alterations of prospectuses text alterations of prospectuses (Fund)
(Account) and supplements (Account) and supplements (Fund)
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
printing Account and Fund prospectuses a camera ready Fund prospectus
and supplements
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
text composition and printing Account text composition and printing Fund SAIs
SAIs
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
mailing and distributing Account mailing and distributing Fund SAIs to
SAIs to policy owners upon request by policy owners upon request by policy
policy owners owners
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
mailing and distributing prospectuses mailing and distributing prospectuses
(Account) and supplements (Account) to (Fund) and supplements (Fund) to
policy owners of record as required Contract owners of record as required
by Federal Securities Laws and to by Federal Securities Laws, as
prospective purchasers periodically supplemented by the Fund,
and to prospective purchasers
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
text composition (Account), printing, text composition of annual and
mailing, and distributing annual and semi-annual reports (Fund)
semi-annual reports for Account (Fund
and Account as, applicable)
---------------------------------------- -------------------------------------
---------------------------------------- -------------------------------------
text composition, printing, mailing, text composition, printing, mailing,
distributing, and tabulation of proxy distributing and tabulation of proxy
statements and voting instruction statements and voting instruction
solicitation materials to policy owners solicitation materials to policy owners
with respect to proxies related to the with respect to proxies related
Account to the Fund
---------------------------------------- --------------------------------------
---------------------------------------- --------------------------------------
If required by the Insurance Parties: If required by Fund or Distributor:
preparation, printing and distributing preparation, printing and distributing
sales material and advertising relating sales material and advertising relating
the Accounts, insofar as such materials to the Funds, insofar as such materials
relate to the Contracts and filing such relate to the Contracts and filing such
materials with and obtaining approval materials with and obtaining approval
from, the SEC, the NASD, any state from, the SEC, the NASD, any state
insurance regulatory authority, and any insurance regulatory authority, and any
other appropriate regulatory authority, other appropriate regulatory authority,
to the extent required to the extent required
======================================== ======================================
SCHEDULE D
ADMINISTRATIVE SERVICES
To be performed by the Insurance Parties
The Insurance Parties will provide the properly registered and licensed
personnel and systems needed for all customer servicing and support for both
Fund and Contract information and questions including the following:
o respond to Contractowner inquiries
o mail Contract prospectuses
o entry of initial and subsequent orders
o transfer of cash to First G-WL&A, G-WL&A, and/or Fund as the case may be
o explanations of Designated Portfolio objectives and characteristics
o entry of transfers between Unaffiliated Funds, including the Designated
Portfolios
o Contract balance and allocation inquiries
o communicate all purchase, withdrawal, and exchange orders received from
Contractowners to First G-WL&A or G-WL&A which will transmit orders to Funds
o train call center representatives to explain Fund objectives, Morningstar
categories, Fund selection data and differences between publicly traded funds
and the Funds
o provide performance data and Fund prices
o shareholder services including researching trades, resolving trade
disputes, etc.
o coordinate the writing, printing and distribution of semi-annual and annual
reports to Contract owners investing in the Designated Portfolios
o create and update Designated Portfolio profiles and other shareholder
communications
o establish scheduled account rebalances
o Web trading and account servicing
o touch-tone telephone trading and account servicing
o establish dollar cost averaging
o establish automatic payment procedures (i.e., monthly automatic bank draft
purchases)
o communications to Contractowners related to product changes, including but
not limited to changes in the available Designated Portfolios