AMENDMENT TO FUND PARTICIPATION AGREEMENT
Between
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK
(FORMERLY, GE CAPITAL LIFE ASSURANCE COMPANY OF NEW YORK)
And
X. X. XXXXXX SERIES TRUST II
The insurance company executing this Amendment, Genworth Life Insurance Company
of New York, formerly GE Capital Life Assurance Company of New York ("Insurance
Company"), and X.X. Xxxxxx Series Trust II (the "Trust"), on behalf of itself
and each of its series (each a "Fund", collectively, the "Funds"), hereby agree
to amend the Fund Participation Agreement dated September 2002, to which they
are parties (the "Agreement"), as of March 9, 2007, by (i) updating all
references to the Insurance Company to reflect the Insurance Company's new
name; (ii) adding new Article XV to the Agreement, effective as of April 16,
2007, as mandated by Rule 22c-2 of the Investment Company Act of 1940 (the
"Investment Company Act"); and (iii) updating the Schedules to the Agreement.
This Amendment supplements the Agreement; to the extent terms of this Amendment
conflict with the terms of the Agreement, the terms of this Amendment shall
control.
I. References to the Insurance Company
All references in the Agreement to "GE Capital Life Assurance Company of New
York" shall be changed to "Genworth Life Insurance Company of New York."
XX.Xxx Article XV
The following new Article XV is added to the Agreement:
Article XV Shareholder Information
15.1 Agreement to Provide Information. Insurance Company agrees to provide
the Fund, or its designee, upon written request, the taxpayer identification
number ("TIN"), the Individual/International Taxpayer Identification Number
("ITIN"), or other government-issued identifier ("GII"), and the Contract
owner number or participant account number associated with the Shareholder,
if known, of any or all Shareholder(s) of the account, and the amount, date
and transaction type (purchase, redemption, transfer, or exchange) of every
purchase, redemption, transfer, or exchange of Shares held through an
Insurance Company Fund Account maintained by the Insurance Company during
the period covered by the request. Unless otherwise specifically requested
by the Fund, the Intermediary shall only be required to provide information
relating to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions.
15.l.1 Period Covered by Request. Requests must set forth a specific
period, not to exceed 180 days from the date of the request, for which
transaction information is sought. A request may be ongoing and
continuous (e.g., for each trading day throughout the period) or for
specified periods of time. The Fund may request transaction information
older than 180 days from the date of the request as it deems necessary
to investigate compliance with policies established or utilized by the
Fund for the purpose of eliminating or reducing market timing and
abusive trading practices.
15.l.l.a Timing of Requests. Fund requests for Shareholder
information shall be made no more frequently than quarterly except as
the Fund deems necessary to investigate compliance with policies
established by the Fund for the purpose of eliminating or reducing
any market timing and abusive trading practices.
15.1.2 Form and Timing of Response. (a) Insurance Company agrees to
provide, promptly upon request of the Fund or its designee, the
requested information specified in 15.1. If requested by the Fund, or
its designee, Insurance Company agrees to use best efforts to determine
promptly whether any specific person about whom it has received the
identification and transaction information specified in 15.1 is itself a
financial intermediary ("indirect intermediary") and, upon further
request of the Fund, or its designee, promptly either (i) provide (or
arrange to have provided) the information set forth in 15.1 for those
shareholders who hold an account with an indirect intermediary or
(ii) restrict or prohibit the indirect intermediary from purchasing, in
nominee name on behalf of other persons, securities issued by the Fund.
Insurance Company additionally agrees to inform the Fund whether it
plans to perform (i) or (ii). (b) Responses required by this paragraph
must be communicated in writing and in a format mutually agreed upon by
the Fund or its designee and the Insurance Company. (c) To the extent
practicable, the format for any transaction information provided to the
Fund should be consistent with the NSCC Standardized Data Reporting
Format.
15.1.3 Limitations on Use of Information. The Fund agrees not to use
the information received pursuant to this Amendment for any purpose
other than as necessary to comply with the provisions of Rule 22c-2
or to fulfill other regulatory or legal requirements subject to the
privacy provisions of Title V of the Xxxxx-Xxxxx-Xxxxxx Act (Public
Law 106-102) and comparable state laws.
15.2 Agreement to Restrict Trading. Insurance Company agrees to execute
written instructions from the Fund to restrict or prohibit further purchases
or exchanges of Shares by a Shareholder that has been identified by the Fund
as having engaged in transactions of the Fund's Shares (directly or
indirectly through the Insurance Company Fund Account) that violate policies
established by the Fund for the purpose of eliminating or reducing market
timing and abusive trading practices. Unless otherwise directed by the Fund,
any such restrictions or
prohibitions shall only apply to Shareholder-Initiated Transfer Purchases or
Shareholder-Initiated Transfer Redemptions that are effected directly or
indirectly through Insurance Company. Instructions must be received by us at
the address provided in Section 12 of this Agreement, or such other address
that Insurance Company may communicate to you in writing from time to time,
including, if applicable, an e-mail and/or facsimile telephone number:
15.2.l Form of Instructions. Instructions to restrict or prohibit
trading must include the TIN, ITIN, or GII and the specific individual
Contract owner number or participant account number associated with the
Shareholder, if known, and the specific restriction(s) to be executed,
including how long the restriction(s) is (are) to remain in place. If
the TIN, ITIN, GII or the specific individual contract owner number or
participant account number associated with the Shareholder is not known,
the instructions must include an equivalent identifying number of the
Shareholder(s) or account(s) or other agreed upon information to which
the instruction relates.
15.2.2 Timing of Response. Insurance Company agrees to execute
instructions as soon as reasonably practicable, but not later than five
business days after receipt of the instructions by the Intermediary.
15.2.3 Confirmation by Insurance Company. Insurance Company must provide
written confirmation to the Fund that instructions have been executed.
Insurance Company agrees to provide confirmation as soon as reasonably
practicable, but not later than ten business days after the instructions
have been executed.
15.3 Definitions. For purposes of this Amendment:
15.3.1 The term "Insurance Company Fund Account" means an omnibus
account with the Fund maintained by Insurance Company.
15.3.2 The term "Fund" includes JPMorgan Distribution Services, Inc.,
which is the Fund's principal underwriter, the Fund's transfer agent and
the series of the Trust listed in the Agreement.
15.3.3 The term "Shares" means the interests of Shareholders
corresponding to the redeemable securities of record issued by the Fund
under the Investment Company Act that are held by or through an
Insurance Company Fund Account.
15.3.4 The term "Shareholder" means the holder of interests in a
variable annuity or variable life insurance contract issued by the
Insurance Company ("Contract"), or a participant in an employee benefit
plan with a beneficial interest in a Contract.
15.3.5 The term "Shareholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Shareholder that results
in a transfer of assets within a Contract to a Fund, but does not
include transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollment such as transfer of
assets within a Contract to a Fund as a result of "dollar cost
averaging" programs, insurance company approved asset allocation
programs, or automatic rebalancing programs; (ii) pursuant to a Contract
death benefit; (iii) one-time step-up in Contract value pursuant to a
Contract death benefit; (iv) allocation of assets to a Fund through a
Contract as a result of payments such as loan repayments, scheduled
contributions, retirement plan salary reduction contributions, or
planned premium payments to the Contract; or (v) pre-arranged transfers
at the conclusion of a required free look period.
15.3.6 The term "Shareholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Shareholder that results
in a transfer of assets within a Contract out of a Fund, but does not
include transactions that are executed: (i) automatically pursuant to a
contractual or systematic program or enrollments such as transfers of
assets within a Contract out of a Fund as a result of annuity payouts,
loans, systematic withdrawal programs, insurance company approved asset
allocation programs and automatic rebalancing programs; (ii) as a result
of any deduction of charges or fees under a Contract; (iii) within a
Contract out of a Fund as a result of scheduled withdrawals or
surrenders from a Contract; or (iv) as a result of payment of a death
benefit from a Contract.
15.3.7 The term "written" and/or "in writing" includes electronic
writings and facsimile transmissions.
15.3.8 The term "intermediary" shall mean a "financial intermediary" as
defined in Rule 22c-2 of the Investment Company Act.
15.3.9 The term "purchase" does not include the automatic reinvestment
of dividends.
15.3.10 The term "promptly" as used in 15.1.2 shall mean as soon as
practicable but in no event later than 10 business days from the
Insurance Company's receipt of the request for information from the
Fund, or its designee.
III. Updated Schedules
Schedule 1 and Schedule 2 to the Agreement are replaced in their entirety with
the following information:
Schedule 1
Name of Series:
Bond Portfolio
International Equity Portfolio
Mid Cap Value Portfolio
Small Company Portfolio
U.S. Large Cap Core Equity Portfolio
Schedule 2
Name of Separate Accounts:
Genworth Life of New York VA Separate Account 1
Genworth Life Insurance Company of New York
(formerly, GE Capital Life Assurance Company of
New York)
Authorized Signer:
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Name: Xxxxxxxx X. Stiff
Title: Senior Vice President
Date:
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X.X. Xxxxxx Series Trust II
Authorized Signer:
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Name:
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Title:
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Date:
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