EXHIBIT (h)(10)(c)
[Date]
The United States Life Insurance Company in the City of New York
000 Xxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Attn: Xxxxx X. Xxxxx
Dear Xx. Xxxxx,
Reference is hereby made to the Participation Agreement, dated October 2, 2000
(the "Participation Agreement"), between The United States Life Insurance
Company in the City of New York ("Insurance Company") and X.X. Xxxxxx Series
Trust II (the "Fund"). Capitalized terms used herein and not otherwise defined
shall have the respective meanings assigned to them in the Participation
Agreement. In connection therewith, X.X. Xxxxxx Investment Management Inc.,
investment adviser to the Fund (the "Investment Adviser"), and Insurance
Company hereby agree as follows:
1. Indemnification. The Investment Adviser agrees to indemnify and hold
harmless Insurance Company and each of its directors, officers, employees,
agents and each person, if any, who controls Insurance Company within the
meaning of the 1933 Act (collectively, The "Indemnified Parties") against any
and all losses, claims, damages or liabilities joint or several (including any
investigative, legal and other expenses reasonably incurred in connection with,
and any amounts paid in settlement of, any action, suit or proceeding or any
claim asserted) to which the Indemnified Parties may become subject, under the
1933 Act or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof):
(1) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement or
Prospectus or sales literature or advertisements of the Fund;
(2) arise out of or are based upon the omission or alleged omission to state in
the registration statement or Prospectus or sales literature or advertisements
of the Fund any material fact required to be stated therein or necessary to
make the statements therein not misleading;
(3) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the registration statement,
Prospectus, sales literature or advertisements with respect to the Separate
Account or the Contracts and such statements were based on information provided
to Insurance Company by the Fund or the Investment Adviser; or
(4) arise as a result of any failure by the Fund to provide the services and
furnish the materials provided for in the Participation Agreement, including a
failure to comply with the
diversification requirements of Section 817(h) of the Code or to qualify as a
regulated investment company under Subchapter M of the Code;
provided, however, that with respect to clauses (1), (2) and (3) above, the
Investment Adviser will not be liable in any such case to the extent that any
such loss, claim, damage or liability arises out of or is based upon an untrue
statement or omission or alleged omission made in such Registration Statement,
Prospectus, sales literature or advertisements in conformity with written
information furnished to the Fund or the Investment Adviser by Insurance
Company specifically for use therein.
The Investment Adviser shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities or litigation incurred
or assessed against an Indemnified Party which arise from such Indemnified
Party's willful misfeasance, bad faith, or gross negligence in the performance
of such Indemnified Party's duties or by reason of such Indemnified Party's
reckless disregard of obligations and duties under the Participation Agreement.
In addition, the Investment Adviser shall not be liable for special,
consequential or incidental damages to any Indemnified Party.
2. Participation Agreement. The provisions set forth above are subject to
the terms and conditions of the Participation Agreement, including, without
limitation, Section 9.4 thereof.
3. Amendment. This letter agreement may be amended only upon mutual
agreement of the parties hereto in writing.
4. Counterparts. This letter may be executed in counterparts, each of which
will be deemed an original but all of which will together constitute one and
the same instrument.
If this letter agreement is consistent with your understanding of the matters
discussed therein, please sign below and return a signed copy of us.
Very truly yours,
X. X. XXXXXX INVESTMENT MANAGEMENT
INC.
By:
------------------------------
Name
Title
ACKNOWLEDGED AND AGREED:
THE UNITED STATES LIFE
INSURANCE COMPANY IN THE CITY
OF NEW YORK
By:
--------------------------
Name
Title
