AMENDMENT NO. 3 TO PARTICIPATION AGREEMENT
WHEREAS, Genworth Life Insurance Company of New York (formerly, GE Capital Life
Assurance Company of New York) on behalf of itself and its separate accounts,
PIMCO Variable Insurance Trust and Allianz Global Investors Distributors LLC
(formerly, PIMCO Advisors Distributors LLC and, before that, PIMCO Funds
Distributors LLC) entered into a Participation Agreement dated September 20,
2000 (the "Agreement");
WHEREAS, the Agreement was amended effective May 1, 2003 to change the name of
the Distributor and to replace Schedule A of the Agreement;
WHEREAS, the Agreement was amended effective April 29, 2005 to replace Schedule
A of the Agreement;
WHEREAS, GE Capital Life Assurance Company of New York has changed its name to
Genworth Life Insurance Company of New York (the "LIFE COMPANY");
WHEREAS, PIMCO Advisors Distributors LLC has changed its name to Allianz Global
Investors Distributors LLC (the "Distributor");
WHEREAS, the parties wish to amend the Agreement to (i) reflect the parties'
new names; (ii) add new Section 2.6, Contract Owner Information; (iii) add new
Section 2.7, Compliance Matters; and (iv) update Schedule A;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
which consideration is full and complete, the parties hereby agree as follows:
I. 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;
II. All references in the Agreement to PIMCO Advisors Distributors LLC shall
be changed to Allianz Global Investors Distributors LLC;
III. New Section 2.6, which is attached to this Amendment as Attachment A, is
added to the Agreement;
IV. New Section 2.7, which is attached to this Amendment as Attachment B, is
added to the Agreement; and
V. Schedule A is replaced in its entirety with "Amendment No. 3 to Schedule
A," which is attached to this Amendment as Attachment C.
The Agreement, as supplemented by this Amendment, is ratified and confirmed
effective March 13, 2007.
GENWORTH LIFE INSURANCE
COMPANY OF NEW YORK,
on behalf of itself and its separate accounts
By:
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Xxxxxxxx X. Stiff
Senior Vice President
PIMCO VARIABLE INSURANCE TRUST
By:
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ALLIANZ GLOBAL INVESTORS DISTRIBUTORS LLC
By:
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ATTACHMENT A
2.6 Contractholder Information
(a) Agreement to Provide Information. LIFE COMPANY agrees to provide Fund
Agent, 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, if known, of any or all Contractholder(s) of the
account, the name or other identifier of any investment professional(s)
associated with the Contractholder(s) or account (if known), and the amount,
date and transaction type (purchase, redemption, transfer, or exchange) of
every purchase, redemption, transfer, or exchange of Shares held through an
account maintained by LIFE COMPANY during the period covered by the request.
Unless otherwise specifically requested by the Fund Agent, LIFE COMPANY shall
only be required to provide information relating to Contractholder-Initiated
Transfer Purchases or Contractholder-Initiated Transfer Redemptions.
(i) Period Covered by Request. Requests must set forth a specific
period, not to exceed 90 days from the date of the request, for
which transaction information is sought. Fund Agent may request
transaction information older than 90 days from the date of the
request as it deems necessary to investigate compliance with
policies established or utilized by the Fund or Fund Agent for
the purpose of eliminating or reducing any dilution of the value
of the outstanding shares issued by a Fund.
If requested by Fund Agent, LIFE COMPANY will provide the
information specified in Section 2.6(a) above for each trading
day.
(ii) Form and Timing of Response. LIFE COMPANY agrees to provide,
promptly upon request of Fund Agent, the requested information
specified in Section 2.6(a). LIFE COMPANY agrees to use its best
efforts to determine promptly whether any specific person about
whom it has received the identification and transaction
information specified in Section 2.6(a) is itself a "financial
intermediary," as that term is defined in Rule 22c-2 (an
"Indirect Intermediary") and, upon request of Fund Agent,
promptly either (i) provide (or arrange to have provided) the
information set forth in Section 2.6(a) for those Contractholders
who hold an account with an Indirect Intermediary or
(ii) restrict or prohibit the Indirect Intermediary from
purchasing Shares in nominee name on behalf of other persons.
LIFE COMPANY additionally agrees to inform Fund Agent whether it
plans to perform (i) or (ii) above. Responses required by this
paragraph must be communicated in writing and in a format
mutually agreed upon by the Parties. To the extent practicable,
the format for any Contractholder and transaction information
provided to Fund
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Agent should be consistent with the NSCC Standardized Data
Reporting Format.
(iii)Limitations on Use of Information. Fund Agent agrees not to use
the information received hereunder for marketing or any other
similar purpose without the prior written consent of LIFE
COMPANY; provided, however, that this provision shall not limit
the use of publicly available information, information already in
the possession of Fund Agent, the Fund or their affiliates at the
time the information is received pursuant to this Amendment or
information which comes into the possession of Fund Agent, the
Fund or their affiliates from a third party.
(b) Agreement to Restrict Trading. LIFE COMPANY agrees to execute written
instructions from Fund Agent to restrict or prohibit further purchases or
exchanges of Shares by a Contractholder that has been identified by Fund Agent
as having engaged in transactions in Shares (directly or indirectly through
LIFE COMPANY's account) that violate policies established or utilized by the
Fund or Fund Agent for the purpose of eliminating or reducing any dilution of
the value of the outstanding Shares issued by a Fund. Unless otherwise directed
by Fund Agent, any such restrictions or prohibitions shall only apply to
Contractholder-Initiated Transfer Purchases or Contractholder-Initiated
Transfer Redemptions that are effected directly or indirectly through LIFE
COMPANY.
(i) Form of Instructions. Instructions must include the TIN, ITIN or
GII and the specific individual Contract owner number or
participant account number associated with the Contractholder, if
known, and the specific restriction(s) to be executed. If the
TIN, ITIN, GII or the specific individual Contract owner number
or participant account number associated with the Contractholder
is not known, the instructions must include an equivalent
identifying number of the Contractholder(s) or account(s) or
other agreed upon information to which the instruction relates.
(ii) Timing of Response. LIFE COMPANY agrees to execute instructions
from Fund Agent as soon as reasonably practicable, but not later
than five (5) business days after receipt of the instructions by
LIFE COMPANY.
(iii)Confirmation by LIFE COMPANY. LIFE COMPANY must provide written
confirmation to Fund Agent that Fund Agent's instructions to
restrict or prohibit trading have been executed. LIFE COMPANY
agrees to provide confirmation as soon as reasonably practicable,
but not later than ten (10) business days after the instructions
have been executed.
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(c) Definitions. For purposes of Section 2.6 and Section 2.7 of this
Agreement, the following terms shall have the following meanings, unless a
different meaning is clearly required by the context:
(i) The term "Contractholder" means the holder of interests in a
Contract or a participant in an employee benefit plan with a
beneficial interest in a Contract.
(ii) The term "Contractholder-Initiated Transfer Purchase" means a
transaction that is initiated or directed by a Contractholder
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 a 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) as a result of a one-time step-up in Contract value
pursuant to a Contract death benefit; (iv) as a result of an
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.
The term "Contractholder-Initiated Transfer Redemption" means a
transaction that is initiated or directed by a Contractholder
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.
(iii)The term "Funds" shall mean the constituent series of the Fund,
but for purposes of Section 2.6(a) shall not include Funds
excepted from the requirements of paragraph (a) of Rule 22c-2 by
paragraph (b) of Rule 22c-2.
(iv) The term "Fund Agent" shall mean the Distributor or such other
persons or entities as may be designated as such by the Fund for
purposes of this Section 2.6 from time to time.
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(v) The term "promptly" shall mean as soon as practicable but in no
event later than five (5) business days from LIFE COMPANY's
receipt of the request for information from Fund Agent.
(vi) The term "Shares" means the interests of Contractholders
corresponding to the redeemable securities of record issued by a
Fund.
(vii)The term "written" includes electronic writings and facsimile
transmissions.
In addition, for purposes of this Section 2.6, the term "purchase" does not
include the automatic reinvestment of dividends or distributions.
(d) Scope. LIFE COMPANY acknowledges and agrees that this Section 2.6 shall
apply to the handling of all transactions in Shares, whether authorized under
the Agreement or any other agreement between or among LIFE COMPANY and the
Fund, any transfer agent of the Fund, the Distributor, any other Fund Agent or
any of their affiliates, and further acknowledges and agrees that the Agreement
and any other such agreement is hereby modified to the extent necessary to
reflect the agreements herein.
(e) Additional Obligations. It shall be LIFE COMPANY's obligation to make
any required notification(s) to its Contractholders of the provisions of this
Section 2.6 and LIFE COMPANY agrees to do so. LIFE COMPANY also agrees to
provide point of sale disclosure documents to its Contractholders consistent
with applicable legal requirements as in effect from time to time.
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ATTACHMENT B
2.7Compliance Matters
As required by the Agreement, LIFE COMPANY shall comply with provisions of
the Prospectuses and Statement of Additional Information of the Fund, and with
applicable federal and state securities laws. Among other things, LIFE COMPANY
shall be responsible for reasonably assuring that: (a) only orders to purchase,
redeem or exchange Shares received by LIFE COMPANY or any Indirect Intermediary
prior to the Valuation Time shall be submitted directly or indirectly by LIFE
COMPANY to the Fund or its transfer agent or other applicable agent for receipt
of a price based on the net asset value per Share calculated for that day in
accordance with Rule 22c-1 under the 1940 Act/1/; and (b) LIFE COMPANY shall
cause to be imposed and/or waived applicable redemption fees, if any, only in
accordance with the relevant Fund's then current Prospectuses or Statement of
Additional Information and/or as instructed by Fund Agent. LIFE COMPANY further
agrees to make reasonable efforts to assist the Funds and their service
providers (including but not limited to Fund Agent) to detect, prevent and
report market timing or excessive short-term trading of Shares. To the extent
LIFE COMPANY has actual knowledge of violations of Fund policies (as set forth
in the applicable Fund's then current Prospectuses or Statement of Additional
Information) regarding (i) the timing of purchase, redemption or exchange
orders and pricing of Shares, (ii) market timing or excessive short-term
trading, or (iii) the imposition of redemption fees, if any, LIFE COMPANY
agrees to report such known violations to Fund Agent. For purposes of this
provision, the term "Valuation Time" refers to the time as of which the Shares
are valued on each business day, currently the close of regular trading on the
New York Stock Exchange (normally, 4:00 p.m., Eastern Time) on each day that
the New York Stock Exchange is open for business.
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/1/ Orders to purchase, redeem or exchange Fund shares received by LIFE
COMPANY subsequent to the Valuation Time on any given day shall receive a
price based on the next determined net asset value per Share in accordance
with Rule 22c-1 under the 1940 Act.
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ATTACHMENT C
AMENDMENT NO. 3 TO SCHEDULE A
Effective March 13, 2007
PORTFOLIOS AVAILABLE UNDER THE CONTRACTS
PIMCO VARIABLE INSURANCE TRUST
All Asset Portfolio-Advisor Class Shares
Foreign Bond Portfolio (U.S. Dollar Hedged)-Administrative Class Shares
High Yield Portfolio-Administrative Class Shares
Long-Term U.S. Government Portfolio-Administrative Class Shares
Low Duration Portfolio-Administrative Class Shares
Total Return Portfolio-Administrative Class Shares
SEPARATE ACCOUNTS UTILIZING THE PORTFOLIOS
Genworth Life of New York VA Separate Account 1
Genworth Life of New York VL Separate Account 1
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS UTILIZING THE FUNDS
Commonwealth Variable Annuity NY RetireReady Accumulator NY Variable
Foundation NY Variable Annuity Life Insurance
Personal Income Design NY Variable Annuity
RetireReady Bonus NY Variable Annuity
RetireReady Choice NY Variable Annuity
RetireReady Selections NY Variable Annuity
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