AMENDMENT NO. 3 TO PARTICIPATION AGREEMENT BY AND AMONG
GENWORTH LIFE INSURANCE COMPANY OF NEW YORK (FORMERLY, GE CAPITAL LIFE
ASSURANCE COMPANY OF NEW YORK) ON BEHALF OF ITSELF AND ITS SEPARATE ACCOUNTS,
CAPITAL BROKERAGE CORPORATION,
DWS VARIABLE SERIES II
(FORMERLY, XXXXXXX VARIABLE SERIES II)
DWS XXXXXXX DISTRIBUTORS, INC.
(FORMERLY, XXXXXXX DISTRIBUTORS, INC.), AND
DEUTSCHE INVESTMENT MANAGEMENT AMERICAS INC.
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,
DWS Variable Series II (formerly, Xxxxxxx Variable Series II), DWS Xxxxxxx
Distributors, Inc. (formerly, Xxxxxxx Distributors, Inc.), and Deutsche
Investment Management Americas INC. entered into a Participation Agreement
dated October 1, 2002 (the "Agreement");
WHEREAS, the Agreement was amended on August 1, 2003 to add Capital Brokerage
Corporation as a party and to replace Section 2.3 of the Agreement;
WHEREAS, the Agreement was amended on 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 "Company");
WHEREAS, Xxxxxxx Variable Series II has changed its name to DWS Variable Series
II (the "Fund");
WHEREAS, Xxxxxxx Distributors, Inc. has changed its name to DWS Xxxxxxx
Distributors, Inc. (the "Underwriter");
WHEREAS, the parties wish to amend the Agreement to (i) reflect the parties'
new names; (ii) add new Article IV-A, Contract Owner Information; and
(iii) update Schedule A and Schedule B;
NOW, THEREFORE, 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;
1
II. All references in the Agreement to Xxxxxxx Variable Series II shall be
changed to DWS Variable Series II;
III. All references in the Agreement to Xxxxxxx Distributors, Inc. shall be
changed to DWS Xxxxxxx Distributors, Inc.;
IV. New Article IV-A, which is attached to this Amendment as Attachment 1, is
added to the Agreement;
V. Schedule A is replaced in its entirety with Attachment 2; and
VI. Schedule B is replaced in its entirety with Attachment 3.
2
The Agreement, as supplemented by this Amendment, is ratified and confirmed
effective March 2, 2007.
GENWORTH LIFE INSURANCE
COMPANY OF NEW YORK,
on behalf of itself and its separate accounts
By:
---------------------------------
Xxxxxxxx X. Stiff
Senior Vice President
CAPITAL BROKERAGE CORPORATION
By:
---------------------------------
Xxxxxxxx X. Stiff
Senior Vice President
DWS VARIABLE SERIES II
By:
---------------------------------
DWS XXXXXXX DISTRIBUTORS, INC.
By:
---------------------------------
Xxxxxxx Xxxxxxx
Chief Executive Officer
DEUTSCHE INVESTMENT MANAGEMENTAMERICAS INC.
By:
---------------------------------
3
ATTACHMENT 1
ARTICLE IV-A. Contract Owner Information
4A.1. Agreement to Provide Information
The Company agrees to provide the Fund, upon written request, the taxpayer
identification number ("TIN"), the Individual Taxpayer Identification Number
("ITIN"), or other government-issued identifier ("GII"), if known, of any or
all Shareholder(s) of the account and the amount, date, name or other
identifier of any investment professional(s) associated with the Shareholder(s)
or account (if known), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange of Shares held
through each account maintained by the Company during the period covered by the
request.
4A.2. 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. The Fund may
request transaction information older than 90 days from the date of the request
as it deems necessary to investigate compliance with policies established by
the Fund for the purpose of eliminating or reducing any dilution of the value
of the outstanding shares issued by the Fund.
4A.3. Form and Timing of Response
(a) The Company agrees to provide, promptly upon request of the Fund or its
designee, the requested information specified in paragraph 1 above. If
requested by the Fund or its designee, the 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
paragraph 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
paragraph 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.
(b) Responses required by this paragraph must be communicated in writing and
in a format mutually agreed upon by the parties.
(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.
4A.4. Limitations on Use of Information
The Fund agrees not to use the information received for marketing or any other
similar purpose without the prior written consent of the Company.
4A.5. Agreement to Restrict Trading
The 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 Company's account) that violate
policies established or utilized by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding Shares issued by the Fund.
4A.6. Form of Instructions
Instructions to restrict or prohibit trading must include the TIN, ITIN, or
GII, if known, and the specific restriction(s) to be executed. If the TIN,
ITIN, or GII 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.
4A.7. Timing of Response
The Company agrees to execute instructions from the Fund to restrict or
prohibit trading as soon as reasonably practicable, but not later than five
business days after receipt of the instructions by the Company.
4A.8. Confirmation by the Company
The Company must provide written confirmation to the Fund that instructions
from the Fund to restrict or prohibit trading have been executed. The Company
agrees to provide confirmation as soon as reasonably practicable, but not later
than ten business days after the instructions have been executed.
4A.9.Definitions
For purposes of this Article IV-A:
(a) The term "Fund" includes the Fund's principal underwriter and transfer
agent. The term does not include any "excepted funds" as defined in SEC Rule
22c-2(b) under the Investment Company Act of 1940.
(b) The term "Shares" means the interests of Shareholders corresponding to
the redeemable securities of record issued by the Fund under the Investment
Company Act of 1940 that are held by the Company.
(c) Except as otherwise provided in this paragraph 9.3, the term
"Shareholder" means the beneficial owner of Shares, whether the Shares are
held directly or by the Company in nominee name. For retirement plan
recordkeepers, the term "Shareholder" means each retirement plan participant
notwithstanding that the retirement plan may be deemed to be the beneficial
owner of Shares. For insurance companies, the term "Shareholder" means the
holder of interests in a variable annuity or variable life insurance
contract issued by the intermediary.
(d) The term "written" includes electronic writings and facsimile
transmissions.
(e) The term "intermediary" shall mean a "financial institution" as defined
in SEC Rule 22c-2.
(f) The term "purchase" does not include the automatic reinvestment of
dividends.
(g) The term "promptly" as used in paragraph 3(a) shall mean as soon as
practicable but in no event later than ten business days from the Company's
receipt of the request for information from the Fund or its designee.
ATTACHMENT 2
Schedule A
Separate Accounts and Associated Contracts
SEPARATE ACCOUNTS AND DATE ESTABLISHED
Genworth Life of New York VA Separate Account 1 (established April 1, 1996)
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
Foundation Variable Annuity NY - NY 1155
ATTACHMENT 3
Schedule B
Designated Portfolios and Classes Thereof
DWS Variable Series II
DWS Technology VIP - Class B Shares
DWS Dreman High Return Equity VIP - Class B Shares
DWS Dreman Small Mid Cap Value VIP - Class B Shares
