PARTICIPATION AGREEMENT
By and Among
THE LIFE INSURANCE COMPANY OF VIRGINIA
And
GE INVESTMENTS FUNDS, INC.
And
GE INVESTMENT MANAGEMENT INCORPORATED
THIS AGREEMENT, made and entered into this 1st day of May, 1998, by and
among The Life Insurance Company of Virginia, organized under the laws of the
State of Virginia (the "Company"), on its own behalf and on behalf of each
segregated asset account of the Company named in Schedules 1 and 2 to this
Agreement as may be amended from time to time (each account referred to as the
"Account"), GE Investments Funds, Inc., an open-end management investment
company organized under the laws of Virginia (the "Fund") on its own behalf and
on behalf of the Portfolios named in Schedule 3 to this Agreement (the
"Portfolios"); and GE Investment Management Incorporated, a corporation
organized under the laws of the State of Delaware (the "Adviser").
WHEREAS, the Fund engages in business as an open-end management investment
fund and was established for the purpose of serving as the investment vehicle
for separate accounts established for variable life insurance contracts and
variable annuity contracts to be offered by insurance companies that have
entered into participation agreements similar to this Agreement (the
"Participating Insurance Companies") and for qualified pension and retirement
plans; and
WHEREAS, the Fund has received an order from the Securities & Exchange
Commission (the "SEC") granting Participating Insurance Companies and variable
annuity separate accounts and variable life insurance separate accounts relief
from the provisions of Sections 9(a), 13(a), 15(a), and 15(b) of the Investment
Company Act of 1940, as amended, (the "1940 Act") and Rules 6e-2(b)(15) and
6e-3(T)(b)(15) thereunder, to the extent necessary to permit shares of the
Portfolios to be sold to and held by variable annuity separate accounts and
variable life insurance separate accounts of both affiliated and unaffiliated
Participating Insurance Companies and qualified pension and retirement plans
outside of the separate account context (the "Mixed and Shared Funding Exemptive
Order"). The parties to this Agreement agree that the conditions or undertakings
specified in the Mixed and Shared Funding Exemptive Order and that may be
imposed on the Company, the Fund, the Portfolios, and/or the Adviser by virtue
of the receipt of such order by the SEC will be incorporated herein by
reference, and such parties agree to comply with such conditions and
undertakings to the extent applicable to each such party; and
WHEREAS, the Fund is registered as an open-end management investment
company under the 1940 Act and shares of the Portfolios are registered under the
Securities Act of 1933, as amended (the "1933 Act"); and
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WHEREAS, the Company has developed or intends to develop certain variable
annuity insurance policies (hereinafter, the "Contracts") set forth in Schedule
4 hereto, for sale to "accredited investors," as that term is defined in
Regulation D promulgated under the 1933 Act (hereinafter "Regulation D"), or
other investors permitted by Regulation D; and
WHEREAS, the Company has developed or intends to develop certain other
variable life insurance and variable annuity policies (also hereinafter included
within the term "Contracts") shown on Schedule 5 interests under which have been
or will be registered under the 1933 Act; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company under the insurance laws of the State of Virginia, to set aside and
invest assets attributable to the Contracts; and
WHEREAS, the Company has registered each Account listed on Schedule 2 as a
unit investment trust under the 1940 Act; and
WHEREAS, each Account listed on Schedule 1 will be excepted from the
definition of an investment company under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares of the Portfolios named in
Schedule 3, as such schedule may be amended from time to time on behalf of the
Account to fund the Contracts, and the Fund is authorized to sell such shares to
the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company,
the Fund, the Portfolios and the Adviser agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees to sell to the Company those shares of the Portfolios that
each Account orders, executing such orders on a daily basis at the net asset
value next computed after receipt and acceptance by the Fund or its designee of
the order for the shares of the Portfolio. For purposes of this Section 1.1, the
Company will be the designee of the Fund for receipt of such orders from the
Account and receipt by such designee will constitute receipt by the Fund;
provided that the Fund receives notice of such order by 10:00 a.m. Eastern Time
on the next following business day ("T+l"). "Business Day" will mean any day on
which the New York Stock Exchange is open for trading and on which the Portfolio
calculates its net asset value pursuant to the rules of the SEC.
1.2. The Company will pay for Portfolio shares on T + 1 provided that an order
to purchase Portfolio shares is made in accordance with Section 1.1 above.
Payment will be in federal funds transmitted by wire. This wire transfer will be
initiated by 12:00 p.m. Eastern Time.
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1.3. Subject to the Fund's rights set forth in Article X, the Fund agrees to
make shares of the Portfolios available for purchase at the applicable net asset
value per share by the Company and each Account on those days on which the
Portfolios calculate their net asset values pursuant to rules of the SEC,and the
Portfolios shall use reasonable efforts to calculate such net asset values on
each day the New York Stock Exchange is open for trading; provided, however,
that the Board of Directors of the Fund (the "Board") may refuse to sell shares
of the Portfolios to any person, or suspend or terminate the offering of shares
of the Portfolios if such action is required by law or by regulatory authorities
having jurisdiction or is, in the sole discretion of the Board, acting in good
faith and in light of its fiduciary duties under federal and any applicable
state laws, necessary in the best interests of the shareholders of any
Portfolio.
1.4. On each Business Day on which the Portfolios calculate their net asset
values, the Company will aggregate and calculate the net purchase or redemption
orders for each Account maintained by the Fund in which contractowner assets are
invested. Net orders will only reflect orders that the Company has received
prior to the close of regular trading on the New York Stock Exchange, Inc. (the
"NYSE") (currently 4:00 p.m., Eastern Time) on that Business Day. Orders that
the Company has received after the close of regular trading on the NYSE will be
treated as though received on the next Business Day. Each communication of
orders by the Company will constitute a representation that such orders were
received by it prior to the close of regular trading on the NYSE on the Business
Day on which the purchase or redemption order is priced in accordance with Rule
22c-1 under the 1940 Act. Other procedures relating to the handling of orders
will be in accordance with the prospectus and statement of information ("SAI")
of the Fund or with oral or written instructions that the Fund will forward to
the Company from time to time.
1.5. The Fund agrees that shares of the Portfolios will be sold in compliance
with the requirements of the Mixed and Shared Funding Exemptive Order only to
Participating Insurance Companies and their separate accounts, qualified pension
and retirement plans or such other persons as are permitted under applicable
provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and
regulations promulgated thereunder , the sale to which will not impair the tax
treatment currently afforded the Contracts. No shares of the Portfolios will be
sold to the general public except as set forth in this Section 1.5.
1.6. The Fund agrees to redeem for cash, upon the Company's request, any full or
fractional shares of the Portfolios held by the Company, executing such requests
on a daily basis at the net asset value next computed after receipt and
acceptance by the Fund or its designee of the request for redemption. For
purposes of this Section 1.6, the Company will be the designee of the Fund for
receipt of requests for redemption from each Account and receipt by such
designee will constitute receipt by the Fund; provided the Fund receives notice
of request for redemption by 10:00 a.m. Eastern Time on the next following
Business Day. Payment will be in federal funds transmitted by wire to the
Company's account as designated by the Company in writing from time to time, on
the same Business Day the Fund receives notice of the redemption order from the
Company. The Fund reserves the right to delay payment of redemption proceeds,
but in no event may such payment be delayed longer than the period permitted by
the ▇▇▇▇ ▇▇▇. The Fund will not bear any responsibility whatsoever for the
proper disbursement or crediting of
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redemption proceeds following payment of the redemption proceeds to the Company;
the Company alone will be responsible for such action. If notification of
redemption is received after 10:00 a.m. Eastern Time, payment for redeemed
shares will be made on the next following Business Day.
1.7. The Company agrees to purchase and redeem the shares of the Portfolios
offered by the then current prospectus of the Fund in accordance with the
provisions of such prospectus.
1.8. Issuance and transfer of the Portfolios' shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account. Purchase
and redemption orders for Portfolio shares will be recorded in an appropriate
title for each Account or the appropriate subaccount of each Account.
1.9. The Fund will furnish same day notice (by telecopier, wire or telephone
followed by written confirmation) to the Company of the declaration of any
income, dividends or capital gain distributions payable on a Portfolio's shares.
The Company hereby elects to receive all such dividends and distributions as are
payable on a Portfolio shares in the form of additional shares of the Portfolio.
The Fund will notify the Company of the number of shares so issued as payment of
such dividends and distributions. The Company reserves the right to revoke this
election upon reasonable prior notice to the Fund and to receive all such
dividends and distributions in cash.
1.10. The Fund will make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably practical after
the net asset value per share is calculated and will use its best efforts to
make such net asset value per share available by 6:30 p.m., Eastern Time, but in
no event later than 7:00 p.m., Eastern Time, each Business Day.
1.11. In the event adjustments are required to correct any error in the
computation of the net asset value of the Portfolio's shares, the Fund will
notify the Company as soon as practicable after discovering the need for those
adjustments that result in an error in the calculation of the net asset value
equal to or greater than .5% of the correct net asset value. Any such notice
will state for each day for which an error occurred the incorrect price, the
correct price and the reason for the price change. The Company may send this
notice or a derivation thereof (so long as such derivation is approved in
advance by the Adviser) to contractowners whose accounts are affected by the
price change. The parties will negotiate in good faith to develop a reasonable
method for effecting such adjustments.
1.12. The Fund will provide as much advance notice as is reasonably practicable
of any material change affecting a Portfolio (including, but not limited to, any
material change in its registration statement or prospectus and any proxy
solicitations) and will take reasonable steps to assist the Company in
implementing the change in an orderly manner, taking into account the expense of
the Company
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ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts listed on Schedule 5
are or will be registered under the 1933 Act and that the Contracts listed on
Schedule 4 are exempt from registration under the 1933 Act; that the Accounts
listed on Schedule 1 are and will remain excluded from the definition of an
investment company under the 1940 Act, and that it will immediately notify the
Fund and the Adviser upon having a reasonable basis for believing that the
Accounts listed on Schedule 1 have ceased to be so exempt or that they might
cease to be exempt in the future; that each Account listed on Schedule 2 is and
will be registered as a unit investment trust in accordance with the provisions
of the 1940 Act; and that the Contracts are and will be issued and sold in
compliance with all applicable federal and state laws, including state insurance
suitability requirements; that each Account meets the definition of a "separate
account" under the 1940 Act. The Company further represents and warrants that it
is an insurance company duly organized and in good standing under applicable law
and that it has legally and validly established each Account as a separate
account under applicable law and that it has legally and validly established
each Account, prior to any issuance or sale of any Contract funded by that
Account, as a segregated asset account under the Insurance Laws of the State of
Virginia and has registered or, prior to any issuance or sale of the Contracts,
will register to the extent required by law the Account as a unit investment
trust in accordance with the provisions of the 1940 Act to serve as a segregated
investment account for the Contracts, and that it will maintain such
registration for so long as required by the 1940 Act. The Company will amend the
registration statement under the 1933 Act for the Contracts and the registration
statement under the 1940 Act for the Account from time to time as required in
order to effect the continuous offering of the Contracts or as may otherwise be
required by applicable law. The Company will register and qualify the Contracts
for sale in accordance with the securities laws of the various states only if
and to the extent deemed necessary by the Company. The Company further
represents and warrants that each Account is a segregated asset account and that
interests in each Account are offered exclusively through the purchase of or
transfer into a variable contract, within the meaning of such terms under
Section 817 of the Code, and the regulations thereunder. The Company will use
every effort to continue to meet such definitional requirement and will notify
the Fund immediately upon having a reasonable basis for believing such
requirements have ceased to be met or that they might not be met in the future.
2.2. The Company represents that the Contracts are currently and at the time of
issuance will be treated as life insurance or annuity contracts under applicable
provisions of the Code, and that it will make every effort to maintain such
treatment and that it will notify the Fund and the Adviser immediately upon
having a reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future.
2.3. The Company represents and warrants that it will not purchase shares of a
Portfolio with assets derived from tax-qualified retirement plans except,
indirectly, through Contracts purchased in connection with such plans.
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2.4. The Fund represents and warrants that it will not sell shares of a
portfolio to any purchaser whose purchase of such shares would result in a
violation of the conditions imposed by the Mixed and Shared Funding Exemptive
Order.
2.5. The Fund represents and warrants that shares of each Portfolio sold
pursuant to this Agreement will be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law and that the Fund is
and will remain registered under the 1940 Act for as long as such shares are
outstanding. The Fund will amend the registration statement for its shares of
the Portfolios under the 1933 Act and the 1940 Act from time to time as required
in order to effect the continuous offering of shares. The Fund will register and
qualify the shares of each Portfolio for sale in accordance with the laws of the
various states only if and to the extent deemed advisable by the Fund.
2.6. The Fund represents that each Portfolio is currently qualified as a
Regulated Investment Company under Subchapter M of the Code, and that it will
make every effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and that it will notify the Company immediately
upon having a reasonable basis for believing that a Portfolio has ceased to so
qualify or that it might not so qualify in the future.
2.7. The Fund represents and warrants that in performing the services described
in this Agreement, the Fund will comply with all applicable federal securities
laws, rules and regulations. The Fund further represents and warrants that its
investment objectives, policies and restrictions comply with all applicable
state investment laws, rules and regulations. The Fund makes no representation
as to whether any aspect of its operations (including, but not limited to, fees
and expenses and investment policies, objectives and restrictions) complies with
the insurance laws and regulations of any state. The Fund agrees that upon
request it will furnish the information required by state insurance laws so that
the Company can obtain the authority needed to issue the Contracts in the
various states.
2.8. The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule 12b-1 under the 1940 Act, although it
reserves the right to make such payments in the future. To the extent that it
decides to finance distribution expenses pursuant to Rule 12b-1, the Fund
undertakes to have its Board, a majority of whom will not be interested persons
of the Fund, formulate and approve any plan under Rule 12b-1 to finance
distribution expenses in accordance with the 1940 Act.
2.9. The Fund represents that it is lawfully organized and validly existing
under the laws of the Commonwealth of Virginia and that it does and will comply
in all material respects with applicable provisions of the 1940 Act and the Code
of Virginia.
2.10. Each of the Fund and the Adviser represents and warrants that all of its
directors, trustees, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the
Portfolios are and continue to be at all times covered by a blanket fidelity
bond or similar coverage for the benefit of the Portfolios in an amount not less
than the minimal coverage as required currently by Rule 17g-(1) of the 1940 Act
or related provisions as
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may be promulgated from time to time. The aforesaid bond includes coverage for
larceny and embezzlement and is issued by a reputable bonding company.
2.11. The Adviser represents and warrants that it is and shall remain duly
registered in all material respects under all applicable federal and state
securities laws and that the Adviser shall perform its obligations for the
Portfolios in compliance with applicable securities laws.
2.12. Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been duly
authorized by all necessary corporate or board action, as applicable, by such
party and when so executed and delivered this Agreement will be the valid and
binding obligation of such party enforceable in accordance with its terms.
ARTICLE III. Prospectuses and Proxy Statements: Voting
3.1. The Fund will provide the Company, at the Company's expense, with as many
copies of the current prospectus for the Portfolios and any amendments thereto
as the Company may reasonably request. If requested by the Company in lieu
thereof, the Fund shall provide camera ready copy containing the Fund's
prospectus and such other assistance as is reasonably necessary in order for the
Company once each year (or more frequently if the prospectus is amended during
the year) to have the prospectuses for the Contracts and the Fund printed
together in one document. Alternatively, the Company may print the Fund's
prospectus in combination with the prospectuses of other fund companies. This
provision may be amended by agreement of the parties hereto in writing.
It is understood and agreed that the Company is not responsible for the content
of the prospectus or SAI for the Fund, except to the extent that statements in
the Fund's prospectus and SAI reflect information given to the Fund by the
Company. It is also understood and agreed that, except with respect to
information provided to the Company by the Fund or the Adviser, the Portfolios,
the Fund and the Adviser shall not be responsible for the content of the
prospectus, SAI or disclosure statement for the Contracts or non-affiliated
funds.
3.2. The Fund's prospectus shall state that its SAI is available from the Fund.
The Fund at its expense shall print and provide such SAI free of charge to the
Company and to any existing Contract owner, prospective Contract owner or
participant who requests such SAI.
3.3. The Fund, at the Fund's or its affiliate's expense, will provide the
Company or its mailing agent with copies of its proxy material, if any, reports
to shareholders and other communications to shareholders in such quantity as the
Company will reasonably require for distribution to Contract owners and
participants. The Company, at its expense, will distribute this proxy material,
reports and other communications to existing Contract owners.
3.4. If and to the extent required by law, the Company will:
(a) solicit voting instructions from Contract owners and tabulate the
voting instructions;
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(b) vote the shares of each Portfolio held in the Account in accordance
with instructions received from contractowners; and
(c) vote shares of each Portfolio held in the Account for which no timely
instructions have been received, as well as shares it owns, in the same
proportion as shares of each such Portfolio for which instructions have
been received from the contractowners;
in each case, for so long as and to the extent that the SEC continues to
interpret the 1940 Act to require pass-through voting privileges for variable
contractowners. Except as set forth above, the Company reserves the right to
vote Portfolio shares held in any segregated asset account in its own right, to
the extent permitted by law. The Company will be responsible for assuring that
each of its separate accounts participating in the Portfolios calculates voting
privileges in a manner consistent with all legal requirements, including the
Mixed and Shared Funding Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the 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.
ARTICLE IV. Sales Material and Information
4.1. The Adviser will provide the Company on a timely basis with investment
performance information for the Portfolios, including total return for the
preceding calendar month and calendar quarter, the calendar year to date, and
the prior one-year, five-year, and ten year (or life of the Portfolio) periods.
The Company may, based on the SEC mandated information supplied by the Adviser,
prepare communications for contractowners ("Contractowner Materials"). The
Company will provide the Adviser with copies of all Contractowner Materials that
reference the Fund or the Portfolios concurrently with their first use for the
Adviser's internal recordkeeping purposes. It is understood that neither the
Adviser, the Fund nor the Portfolios will be responsible for errors or omissions
in, or the content of, Contractowner Materials except to the extent that the
error or omission resulted from information provided by or on behalf of the
Adviser, the Fund or the Portfolio. Any printed information that is furnished to
the Company pursuant to this Agreement other than the Portfolio's prospectus or
statement of additional information (or information supplemental thereto),
periodic reports and proxy solicitation materials is the Adviser's sole
responsibility and not the responsibility of the Portfolio or the Fund. The
Company agrees that the Portfolio, the shareholders of the Portfolio and the
officers and members of the Board will have no liability or responsibility to
the Company in these respects.
4.2. The Company will not give any information or make any representations or
statements on behalf of the Fund or concerning the Portfolios in connection with
the sale of the Contracts other than the information or representations
contained in or accurately derived from the registration statement, prospectus
or SAI for Portfolio shares, as such registration statement, prospectus and SAI
may be amended or supplemented from time to time, or in reports or proxy
statements for a Portfolio, or in published reports for a Portfolio which are in
the public domain or approved by the Fund or the Adviser for distribution, or in
sales literature or other material provided by the
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Fund or the Adviser, except with permission of the Fund or the Adviser. The Fund
and/or the Adviser, as applicable, agrees to respond to any request for approval
on a prompt and timely basis.
Nothing in this Section 4.2 will be construed as preventing the Company or
its employees or agents from giving advice on investment in the Portfolios.
4.3. The Company will furnish, or will cause to be furnished, to the Fund or the
Adviser or its designee, each piece of sales literature or other promotional
material in which the Fund, the Portfolios or the Adviser is named, at least
fifteen (15) business days prior to its use. No such material will be used if
the Fund or the Adviser reasonably objects to such use within ten (10) business
days after receipt of such material. Likewise, the Fund or the Adviser will
furnish, or will cause to be furnished, to the Company or its designee, each
piece of sales literature or other promotional material in which the Company is
named, at least fifteen (15) business days prior to its use. No such material
will be used if the Company reasonably objects to such use within ten (10)
business days after receipt of such material.
4.4. The Fund and the Adviser will not give any information or make any
representations or statements on behalf of the Company or concerning the
Company, each Account, or the Contracts other than the information or
representations contained in or accurately derived from a registration
statement, prospectus or SAI for the Contracts, as such registration statement,
prospectus and SAI may be amended or supplemented from time to time, or in
published reports for each Account or the Contracts which are in the public
domain or approved by the Company for distribution to contractowners, or in
sales literature or other material provided by the Company, except with
permission of the Company. The Company agrees to respond to any request for
approval on a prompt and timely basis.
4.5. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, SAIs, reports, proxy statements, sales
literature and other promotional materials that reference the Company, the
Accounts or the Contracts, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Portfolios
or their shares, contemporaneously with the filing of such document with the
SEC, the NASD or other regulatory authority.
4.6. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional information,
reports, solicitations for voting instructions, sales literature and other
promotional materials, applications for exemptions, requests for no action
letters, and all amendments to any of the above, that reference the Fund or the
Portfolios and relate to the Contracts or each Account, contemporaneously with
the filing of such document with the SEC, the NASD or other regulatory authority
4.7. For purposes of this Article IV, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such as
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
9
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 advertisements 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 ▇▇▇▇ ▇▇▇.
4.8. The Fund and each Portfolio hereby consents to the Company's use of the
name GE Investments Funds, Inc. and the name of each portfolio listed on
Schedule 3 in connection with the marketing of the Contracts, subject to the
terms of Sections 4.1, 4.2 and 10.3 of this Agreement. Such consent will
terminate with the termination of this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund, the Portfolios and the Adviser will pay no fee or other
compensation to the Company under this Agreement except if the Fund or the
Portfolios adopt and implement a plan pursuant to Rule 12b-1 under the 1940 Act
to finance distribution expenses, then, subject to obtaining any required
exemptive orders or other regulatory approvals, the Fund may make payments to
the Company or to the underwriter for the Contracts if and in such amounts
agreed to by the Fund in writing.
5.2. Except as otherwise provided herein, all expenses incident to performance
by the Fund under this Agreement shall be paid by the Fund. The Fund shall see
to it that all its shares are registered and authorized for issuance in
accordance with applicable federal law and, if and to the extent deemed
advisable by the Fund or the Adviser, in accordance with applicable state laws
prior to their sale. The Fund shall bear the expenses for the cost of
registration and qualification of the Portfolios' shares; the preparation of all
statements and notices required of the Fund by any federal or state law; all
taxes on the issuance or transfer of the Portfolios' shares; and any expenses
permitted to be paid or assumed by a Portfolio pursuant to a plan, if any, under
Rule 12b-1 under the 1940 Act.
ARTICLE VI. Diversification
6.1. The Fund will ensure that each Portfolio will at all times invest money
from the Contracts in such a manner as to ensure that the Contracts will comply
with Section 817(h) of the Code and Treasury Regulation 1.817-S, as amended from
time to time, relating to the diversification requirements for variable annuity
or life insurance contracts and any amendments or other modifications to such
Section or Regulation. In the event of a breach of this Article VI by the
Portfolio, it will take all reasonable steps: (a) to notify the Company of such
breach; and (b) to adequately diversify the Portfolio so as to achieve
compliance within the grace period afforded by Treasury Regulation 1.817-S.
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ARTICLE VII. Potential Conflicts
7.1. The Board will monitor the Portfolios for the existence of any material
irreconcilable conflict among the interests of the contractowners of all
separate accounts investing in the Portfolios and determine what action, if any,
should be taken in response to such conflicts. A material irreconcilable
conflict may arise for a variety of reasons, including: (a) an action by any
state insurance regulatory authority; (b) a change in applicable federal or
state insurance, tax, or securities laws or regulations, or a public ruling,
private letter ruling, no-action or 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 the Portfolios are being managed; (e) a difference in voting
instructions given by Participating Insurance Companies or by variable annuity
and variable life insurance contractowners; or (f) a decision by an insurer to
disregard the voting instructions of contractowners. The Board will promptly
inform the Company if it determines that a material irreconcilable conflict
exists and the implications thereof.
7.2. The Company will report any potential or existing conflicts of which it is
aware to the Board. The Company agrees to assist the Board in carrying out its
responsibilities, as delineated in the Mixed and Shared Funding Exemptive Order,
by providing the Board with all information reasonably necessary for the Board
to consider any issues raised. This includes, but is not limited to, an
obligation by the Company to inform the Board whenever it has determined to
disregard contractowner voting instructions. The Company's responsibilities
hereunder will be carried out with a view only to the interest of
contractowners.
7.3. If it is determined by a majority of the Board, or a majority of its
disinterested directors, that a material irreconcilable conflict exists, the
Company will, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested directors), take whatever steps
are necessary to remedy or eliminate the material irreconcilable conflict,
including: (a) withdrawing the assets allocable to some or all of the Accounts
from the Portfolios and reinvesting such assets in a different investment medium
or submitting the question whether such segregation should be implemented to a
vote of all affected contractowners and, as appropriate, segregating the assets
of any appropriate group (i.e., variable annuity contractowners or variable life
insurance contractowners of one or more Participating Insurance Companies) that
votes in favor of such segregation, or offering to the affected contractowners
the option of making such a change; and (b) establishing a new registered
management investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a decision by the
Company to disregard contractowner voting instructions, and the Company's
judgment represents a minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw the affected
Account's investment in the Portfolios and terminate this Agreement with respect
to such Account; provided, however, that such withdrawal and termination will be
limited to the extent required by the foregoing material irreconcilable conflict
as determined by a majority of the disinterested directors of the Board. No
charge or penalty will be imposed as a result of such withdrawal. Any such
withdrawal and termination shall take place
11
within six (6) months after written notice is given that this provision is being
implemented. Until such withdrawal and termination is implemented, the Fund
shall continue to accept and implement orders by the Company for the purchase
and redemption of shares of the Fund.
7.5. If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with the
majority of other state insurance regulators, then the Company will withdraw the
affected Account's investment in the Portfolios and terminate this Agreement
with respect to such subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the disinterested
directors of the Board. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination shall take place within six (6)
months after written notice is given that this provision is being implemented.
Until such withdrawal and termination is implemented, the Fund shall continue to
accept and implement orders by the Company for the purchase and redemption of
shares of the Fund.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Board will determine whether any proposed
action adequately remedies any material irreconcilable conflict, but in no event
will the Fund or the Adviser be required to establish a new funding medium for
the Contracts. The Company will not be required by Section 7.3 to establish a
new funding medium for the Contracts if an offer to do so has been declined by
vote of a majority of contractowners materially affected by the material
irreconcilable conflict.
7.7. The Company will at least annually submit to the Board such reports,
materials or data as the Board may reasonably request so that the Board may
fully carry out the duties imposed upon it as delineated in the Mixed and Shared
Funding Exemptive Order, and said reports, materials and data will be submitted
more frequently if deemed appropriate by the Board.
7.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or Rule
6e-3 is adopted, to provide exemptive relief from any provision of the 1940 Act
or the rules promulgated thereunder with respect to mixed or shared funding (as
defined in the Mixed and Shared Funding Exemptive Order) on terms and conditions
materially different from those contained in the Mixed and Shared Funding
Exemptive Order, then: (a) the Fund and/or the Participating Insurance
Companies, as appropriate, will take such steps as may be necessary to comply
with Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4,
and 7.5 of this Agreement will continue in effect only to the extent that terms
and conditions substantially identical to such Sections are contained in such
Rule(s) as so amended or adopted.
12
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Portfolios, the Adviser, and each person, if any, who controls or is associated
with the Fund, the Portfolios or the Adviser within the meaning of such terms
under the federal securities laws and any director, trustee, officer, partner,
employee or agent of the foregoing (collectively, the "Indemnified Parties" for
purposes of this Section 8.1) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the written
consent of the Company) or litigation (including reasonable legal and other
expenses), to which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to the sale or acquisition of Portfolio shares or the Contracts and:
(1) arise out of or are based upon any untrue statements or alleged
untrue statements of any material fact contained in the registration statement,
prospectus or SAI for the Contracts or contained in the Contracts or sales
literature or other promotional material 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 or necessary to make such statements not misleading in light of the
circumstances in which they were made; provided that this agreement to indemnify
will not apply as to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by the Fund, the Portfolio or the
Adviser for use in the registration statement, prospectus or SAI for the
Contracts or in the Contracts or sales literature (or any amendment or
supplement) or otherwise for use in connection with the sale of the Contracts or
Portfolio shares; or
(2) arise out of or as a result of statements or representations by
or on behalf of the Company (other than statements or representations contained
in the Fund's registration statement, Fund prospectus or sales literature or
other promotional material of the Fund not supplied by the Company or persons
under its control) or wrongful conduct of the Company or persons under its
control, with respect to the sale or distribution of the Contracts or Portfolio
shares; or
(3) arise out of any untrue statement or alleged untrue statement of
a material fact contained in the Fund's registration statement, prospectus,
statement of additional information or sales literature or other promotional
material of the Fund (or amendment or supplement) or the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make such statements not misleading in light of the circumstances
in which they were made, if such a statement or omission was made in reliance
upon and in conformity with information furnished to the Fund by or on behalf of
the Company or persons under its control; or
(4) arise as a result of any failure by the Company to provide the
services and furnish the materials under the terms of this Agreement; or
13
(5) arise out of any material breach of any representation and/or
warranty made by the Company in this Agreement or arise out of or result from
any other material breach by the Company of this Agreement;
Except to the extent provided in Sections 8. l(b) and 8.3 hereof,
this indemnification will be in addition to any liability that the Company
otherwise may have.
(b) No party will be entitled to indemnification under Section 8. l(a) to
the extent such loss, claim, damage, liability or litigation is due to the
willful misfeasance, bad faith, or gross negligence in the performance of such
party's duties under this Agreement, or by reason of such party's reckless
disregard of its obligations or duties under this Agreement.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or actions by regulatory
authorities against them in connection with the issuance or sale of the
Portfolio shares or the Contracts or the operation of the Fund.
8.2. Indemnification By The Adviser, the Fund and each Portfolio
(a) The Adviser, the Fund and each Portfolio, in each case solely to the
extent relating to such party's responsibilities hereunder, agree to indemnify
and hold harmless the Company and each person, if any, who controls or is
associated with the Company within the meaning of such terms under the federal
securities laws and any director, trustee, officer, partner, employee or agent
of the foregoing (collectively, the "Indemnified Parties" for purposes of this
Section 8.2) against any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of the Adviser,
the Fund or a Portfolio, as applicable) or litigation (including reasonable
legal and other expenses) to which the Indemnified Parties may become subject
under any statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in respect thereof)
or settlements:
(1) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in the registration statement,
prospectus or statement of additional information for the Fund or sales
literature or other promotional material of the Fund (or any amendment or
supplement to any of the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material fact required to be
stated or necessary to make such statements not misleading in light of the
circumstances in which they were made; provided that this agreement to indemnify
will not apply as to any Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and in conformity with
information furnished to the Adviser, the Fund or a Portfolio by or on behalf of
the Company for use in the registration statement, prospectus or statement of
additional information for the Fund or in sales literature of the Fund (or any
amendment or supplement thereto) or otherwise for use in connection with the
sale of the Contracts or Portfolio shares; or
(2) arise out of or as a result of statements or representations
(other than statements or representations contained in the Contracts or the
Contracts or Fund registration statements or the Contracts or Fund prospectuses,
SAIs or sales literature or other promotional
14
materials for the Contracts or Fund not supplied by the Fund or persons under
its control) or wrongful conduct of the Adviser, the Fund or a Portfolio or
persons under the control of the Adviser, the Fund or a Portfolio respectively,
with respect to the sale of the Portfolio shares; or
(3) arise out of any untrue statement or alleged untrue statement of
a material fact contained in a registration statement, prospectus, statement of
additional information or sales literature or other promotional material
covering the Contracts (or any amendment or supplement thereto), or the omission
or alleged omission to state therein a material fact required to be stated or
necessary to make such statement or statements not misleading in light of the
circumstances in which they were made, if such statement or omission was made in
reliance upon and in conformity with written information furnished to the
Company by the Adviser, the Fund or a Portfolio or persons under the control of
the Adviser, the Fund or a Portfolio; or
(4) arise as a result of any failure by the Fund, the Adviser or a
Portfolio to provide the services and furnish the materials under the terms of
this Agreement (including a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification requirements and procedures
related thereto specified in Article VI of this Agreement); or
(5) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser, the Fund or a Portfolio in
this Agreement, or arise out of or result from any other material breach of this
Agreement by the Adviser, the Fund or a Portfolio;
Except to the extent provided in Sections 8.2(b) and 8.3 hereof,
this indemnification will be in addition to any liability that the Adviser, the
Fund or the Portfolio otherwise may have.
(b) No party will be entitled to indemnification under Section 8.2(a) to
the extent such loss, claim, damage, liability or litigation is due to the
willful misfeasance, bad faith, or gross negligence in the performance of such
party's duties under this Agreement, or by reason of such party's reckless
disregard of its obligations or duties under this Agreement by the party seeking
indemnification.
(c) The Indemnified Parties will promptly notify the Adviser, the Fund or
a Portfolio of the commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with the issuance
or sale of the Contracts or the operation of the account.
8.3. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.3) will not be liable
under the indemnification provisions of this Article VIII with respect to any
claim made against a party entitled to indemnification under this Article VIII
("Indemnified Party" for the purpose of this Section 8.3) unless such
Indemnified Party will have notified the Indemnifying Party in writing within a
reasonable time after the summons or other first legal process giving
information of the nature of the claim will have been served upon such
Indemnified Party (or after such party will have received notice of
15
such service on any designated agent), but failure to notify the Indemnifying
Party of any such claim will not relieve the Indemnifying Party from any
liability which it may have to the Indemnified Party against whom such action is
brought otherwise than on account of the indemnification provision of this
Article VIII. In case any such action is brought against the Indemnified Party,
the Indemnifying Party will be entitled to participate, at its own expense, in
the defense thereof. The Indemnifying Party also will be entitled to assume the
defense thereof, with counsel satisfactory to the party named in the action.
After notice from the Indemnifying Party to the Indemnified Party of the
Indemnifying Party's election to assume the defense thereof, the Indemnified
Party will bear the fees and expenses of any additional counsel retained by it,
and the Indemnifying Party will not be liable to such party under this Agreement
for any legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than reasonable costs
of investigation, unless: (a) the Indemnifying Party and the Indemnified Party
will have mutually agreed to the retention of such counsel; or (b) the named
parties to any such proceeding (including any impleaded parties) include both
the Indemnifying Party and the Indemnified Party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. The Indemnifying Party will not be liable for
any settlement of any proceeding effected without its written consent but if
settled with such consent or if there is a final judgment for the plaintiff, the
Indemnifying Party agrees to indemnify the Indemnified Party from and against
any loss or liability by reason of such settlement or judgment. A successor by
law of the parties to this Agreement will be entitled to the benefits of the
indemnification contained in this Article VIII. The indemnification provisions
contained in this Article VIII will survive any termination of this Agreement.
ARTICLE IX. Applicable Law
9.1. This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the Commonwealth of Virginia.
9.2. This Agreement will be subject to the provisions of the 1933 Act, the 1934
Act and the 1940 Act, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the SEC
may grant (including, but not limited to, the Mixed and Shared Funding Exemptive
Order) and the terms hereof will be interpreted and construed in accordance
therewith.
ARTICLE X. Termination
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, upon six (6)
months' advance written notice to the other parties; or
(b) at the option of the Company, upon receipt of the Company's written
notice by the other parties, with respect to a Portfolio if shares of the
Portfolio are not reasonably available to meet the requirements of the Contracts
as determined in good faith by the Company; or
16
(c) at the option of the Company, upon receipt of the Company's written
notice by the other parties, with respect to a Portfolio in the event any of the
Portfolio's shares are not registered, issued or sold in accordance with
applicable state and/or Federal law or such law precludes the use of such shares
as the underlying investment medium of the Contracts issued or to be issued by
the Company; or
(d) at the option of the Fund, upon receipt of the Fund's written notice
by the other parties, upon institution of formal proceedings against the Company
by the NASD, the SEC, the insurance commission of any state or any other
regulatory body regarding the Company's duties under this Agreement or related
to the sale of the Contracts, the administration of the Contracts, the operation
of the Account, or the purchase of Portfolio shares, provided that the Fund
determines in its sole judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on the Company's ability to
perform its obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the Company's written
notice by the other parties, upon institution of formal proceedings against the
Fund, the Adviser or a Portfolio by the NASD, the SEC, or any state securities
or insurance department or any other regulatory body, provided that the Company
determines in its sole judgment, exercised in good faith, that any such
proceeding would have a material adverse effect on the Fund's, the Adviser's or
a Portfolio's ability to perform its obligations under this Agreement; or
(f) at the option of the Company, upon receipt of the Company's written
notice by the other parties, if a Portfolio ceases to qualify as a Regulated
Investment Company under Subchapter M of the Code, or under any successor or
similar provision, or if the Company reasonably and in good faith believes that
a Portfolio may fail to so qualify; or
(g) at the option of the Company, upon receipt of the Company's written
notice by the other parties, with respect to a Portfolio if the Portfolio fails
to meet the diversification requirements specified in Article VI hereof or if
the Company reasonably and in good faith believes the Portfolio may fail to meet
such requirements; or
(h) at the option of any party to this Agreement, upon written notice to
the other parties, upon another party's material breach of any provision of this
Agreement which material breach is not cured within thirty (30) days of said
notice; or
(i) at the option of the Company, upon receipt of the Company's written
notice by the other parties, if the Company determines in its sole judgment
exercised in good faith, that either the Fund, the Adviser or a Portfolio has
suffered a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of material adverse
publicity which is likely to have a material adverse impact upon the business
and operations of the Company; or
(j) at the option of the Fund or the Adviser, upon receipt of the Fund's
or the Adviser's written notice by the Company, if the Fund or the Adviser
respectively' determines in its sole judgment exercised in good faith, that the
Company has suffered a material adverse
17
change in its business, operations or financial condition since the date of this
Agreement or is the subject of material adverse publicity which is likely to
have a material adverse impact upon the business and operations of the Fund or
the Adviser; or
(k) at the option of the Company or the Fund upon receipt of any necessary
regulatory approvals and/or the vote of the contractowners having an interest in
the Account (or any subaccount) to substitute the shares of another investment
company for the corresponding Portfolio shares in accordance with the terms of
the Contracts for which those Portfolio shares had been selected to serve as the
underlying investment medium. The Company will give sixty (60) days' prior
written notice to the Fund of the date of any proposed vote or other action
taken to replace the Portfolio shares; or
(l) at the option of the Company or the Fund upon a determination by a
majority of the Board, or a majority of the disinterested Board members, that a
material irreconcilable conflict exists among the interests of: (1) all
contractowners of variable insurance products of all separate accounts; or (2)
the interests of the Participating Insurance Companies investing in the
Portfolio as set forth in Article VII of this Agreement; or
(m) at the option of the Fund in the event any of the Contracts are not
issued or sold in accordance with applicable federal and/or state law.
Termination will be effective immediately upon such occurrence without notice.
10.2. Notice Requirement
No termination of this Agreement will be effective unless and until the
party terminating this Agreement gives prior written notice to all other parties
of its intent to terminate, which notice will set forth the basis for the
termination.
10.3. Effect of Termination
Notwithstanding any termination of this Agreement, the Fund will, at the
option of the Company, continue to make available additional shares of a
Portfolio pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this Agreement
(hereinafter referred to as "Existing Contracts"). Specifically, without
limitation, the owners of the Existing Contracts will be permitted to reallocate
investments in a Portfolio (as in effect on such date), redeem investments in a
Portfolio and/or invest in Portfolio upon the making of additional purchase
payments under the Existing Contracts.
10.4. Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive and not
be affected by any termination of this Agreement. In addition, each party's
obligations under Section 12.7 will survive and not be affected by any
termination of this Agreement. Finally, with respect to Existing Contracts, all
provisions of this Agreement also will survive and not be affected by any
termination of this Agreement.
18
ARTICLE XI. Notices
11.1. Any notice will be deemed duly given when sent by registered or certified
mail to the other party at the address of such party set forth below or at such
other address as such party may from time to time specify in writing to the
other parties.
If to the Company:
The Life Insurance Company of Virginia
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President,
Secretary and General Counsel
If to the Fund, the Adviser and/or the Portfolios:
c/o GE Investment Management Incorporated
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Associate General Counsel, Mutual Funds
ARTICLE XII. Miscellaneous
12.1 All persons dealing with the Fund must look solely to the property of the
Fund for the enforcement of any claims against the Fund as neither the
directors, trustees, officers, partners, employees, agents or shareholders
assume any personal liability for obligations entered into on behalf of the
Fund. No other portfolio or series of the Fund will be liable for the
obligations or liabilities of another Portfolio.
12.2. The Fund and the Adviser acknowledge that the identities of the customers
of the Company or any of its affiliates (collectively the "Company Protected
Parties" for purposes of this Section 12.2), information maintained regarding
those customers, and all computer programs and procedures or other information
developed or used by the Company Protected Parties or any of their employees or
agents in connection with the Company's performance of its duties under this
Agreement are the valuable property of the Company Protected Parties. The Fund
and the Adviser agree that if they come into possession of any list or
compilation of the identities of or other information about the Company
Protected Parties' customers, or any other information or property of the
Company Protected Parties, other than such information as is publicly available
or as may be independently developed or compiled by the Fund and the Adviser
from information supplied to them by the Company Protected Parties' customers
who also maintain accounts directly with the Fund or the Adviser, the Fund and
the Adviser 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 Company's prior written consent; or (b) as required by law
or judicial process. The Company acknowledges that the identities of the
customers of the Fund, the Adviser or any of their affiliates (collectively the
"Adviser Protected Parties" for purposes of this Section 12.2), information
maintained regarding those customers, and all computer programs and procedures
or other information developed or used by the
19
Adviser Protected Parties or any of their employees or agents in connection with
the Fund's or the Adviser's performance of their respective duties under this
Agreement are the valuable property of the Adviser Protected Parties. The
Company agrees that if it comes into possession of any list or compilation of
the identities of or other information about the Adviser Protected Parties'
customers, or any other information or property of the Adviser Protected
Parties, other than such information as is publicly available or as may be
independently developed or compiled by the Company from information supplied to
it by the Adviser Protected Parties' customers who also maintain accounts
directly with the Company, the Company 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 Fund's or the Adviser's prior
written consent; or (b) as required by law or judicial process. Each party
acknowledges that any breach of the agreements in this Section 12.2 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.
12.3. The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or otherwise
affect their construction or effect.
12.4. This Agreement may be executed simultaneously in two or more counterparts,
each of which taken together will constitute one and the same instrument.
12.5. If any provision of this Agreement will be held or made invalid by a court
decision, statute, rule or otherwise, the remainder of the Agreement will not be
affected thereby.
12.6. This Agreement will not be assigned by any party hereto without the prior
written consent of all the parties.
12.7. Each party to this Agreement will maintain all records required by law,
including records detailing the services it provides. Such records will be
preserved, maintained and made available to the extent required by law and in
accordance with the 1940 Act and the rules thereunder. 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 in connection with any investigation or inquiry relating
to this Agreement or the transactions contemplated hereby. Upon request by the
Fund and at the Fund's expense, the Company agrees to promptly make copies or,
if required, originals of all records pertaining to the performance of services
under this Agreement available to the Fund. The Fund agrees that the Company
will have the right to inspect, audit and copy all records pertaining to the
performance of services under this Agreement pursuant to the requirements of any
state insurance department. Each party also agrees to promptly notify the other
parties if it experiences any difficulty in maintaining the records in an
accurate and complete manner. This provision will survive termination of this
Agreement.
20
12.8. The parties to this Agreement acknowledge and agree that all liabilities
of the Fund arising, directly or indirectly, under this agreement, will be
satisfied solely out of the assets of the Fund and that no trustee, officer,
agent or holder of shares of beneficial interest of the Fund will be personally
liable for any such liabilities.
12.9. The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts, the
Accounts or the Portfolios or other applicable terms of this Agreement.
12.10. The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed in its name and behalf by its duly authorized representative and
its seal to be hereunder affixed hereto as of the date specified above.
THE LIFE INSURANCE COMPANY OF
VIRGINIA
By:_______________________________
Name:
Title:
GE INVESTMENTS FUNDS, INC.
By:_______________________________
Name:
Title:
GE INVESTMENT MANAGEMENT
INCORPORATED
By:_______________________________
Name:
Title:
21
Schedule 1
PARTICIPATION AGREEMENT
By and Among
THE LIFE INSURANCE COMPANY OF VIRGINIA
And
GE INVESTMENTS FUNDS, INC.
And
GE INVESTMENT MANAGEMENT INCORPORATED
Unregistered Accounts
Name of Account: Date of Resolution of Company's Board
which Established the Account:
Life of Virginia Separate Account 5 May 20, 1996
22
Schedule 2
PARTICIPATION AGREEMENT
By and Among
THE LIFE INSURANCE COMPANY OF ▇▇▇▇▇▇▇▇
And
GE INVESTMENTS FUNDS, INC.
And
GE INVESTMENT MANAGEMENT INCORPORATED
Registered Accounts
Name of Account: Date of Resolution of Company's Board
which Established the Account:
Life of Virginia Separate Account I February 16, 1984
Life of Virginia Separate Account II August 21, 1986
Life of Virginia Separate Account III February 10, 1987
Life of Virginia Separate Account 4 August 18, 1987
23
Schedule 3
PARTICIPATION AGREEMENT
By and Among
GE LIFE AND ANNUITY ASSURANCE COMPANY
(formerly known as THE LIFE INSURANCE COMPANY OF VIRGINIA)
And
GE INVESTMENTS FUNDS, INC.
And
GE ASSET MANAGEMENT INCORPORATED
(formerly named GE INVESTMENT MANAGEMENT INCORPORATED)
(as amended April 25, 2000)
Name(s) of Portfolio
S&P 500 Index Fund
Money Market Fund
Total Return Fund
International Equity Fund
Real Estate Securities Fund
Global Income Fund
Mid-Cap Value Equity Fund (formerly named Value Equity Fund)
Income Fund
U.S. Equity Fund
Premier Growth Equity Fund
Approved:_________________________
Title:
GE Asset Management Incorporated
Approved:_________________________
Title:
GE Investments Funds, Inc.
Approved:_________________________
Title:
GE Life and Annuity Assurance Company
24
Schedule 4
PARTICIPATION AGREEMENT
By and Among
THE LIFE INSURANCE COMPANY OF VIRGINIA
And
GE INVESTMENTS FUNDS, INC.
And
GE INVESTMENT MANAGEMENT INCORPORATED
Exempt Contracts
Commonwealth 401(k) group flexible premium variable deferred annuity
25
Schedule 5
PARTICIPATION AGREEMENT
By and Among
THE LIFE INSURANCE COMPANY OF VIRGINIA
And
GE INVESTMENTS FUNDS, INC.
And
GE INVESTMENT MANAGEMENT INCORPORATED
Registered Contracts
Commonwealth One flexible premium variable life insurance policy
Commonwealth Two flexible premium variable life insurance policy
Commonwealth 3 flexible premium variable life insurance policy
Commonwealth VL flexible premium variable life insurance policy
Commonwealth VL Flex flexible premium variable life insurance policy
Commonwealth VUL flexible premium variable life insurance policy
Asset Allocation Life flexible premium variable life insurance policy
Asset Allocation Annuity flexible premium variable deferred annuity policy
Commonwealth VA flexible premium variable deferred annuity policy
Commonwealth VA Plus flexible premium variable deferred annuity policy
Commonwealth 4 flexible premium variable universal life insurance policy
Commonwealth VA Plus Plus flexible premium variable deferred annuity policy
Contracts being developed:
Single premium variable immediate annuity
Extra credit flexible premium variable immediate annuity
No surrender charge flexible premium variable immediate annuity
26