EXHIBIT (8)(p)
AMENDMENT NO. 7 TO FUND PARTICIPATION AGREEMENT
This Amendment No. 7, dated as of September 10, 2014, by and among ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ADVISERS MANAGEMENT TRUST ("Trust"), ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ MANAGEMENT LLC,
(formerly, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management Inc.) ("NBM") and THE UNITED STATES LIFE
INSURANCE COMPANY IN THE CITY OF NEW YORK ("LIFE COMPANY") is made to the Fund
Participation Agreement, dated as of October 2, 2000, as amended, by and among
the Trust, NBM and LIFE COMPANY (the "Agreement"). Terms defined in the
Agreement are used herein as therein defined.
WHEREAS, the Trust, NBM and LIFE COMPANY desire to amend the list of
portfolios available for investment by the Separate Accounts designated in the
Agreement as set forth in Appendix A;
WHEREAS, the Trust, NBM and LIFE COMPANY desire to amend the Separate
Accounts as set forth in Appendix B in order to add a Separate Account;
WHEREAS, the parties wish to update provisions in the Agreement relating
to representations and warranties, indemnification and confidentiality; and
NOW, THEREFORE, in consideration of the promises and mutual covenants
hereinafter contained, the parties agree as follows:
1. Appendix A of the Agreement is hereby deleted in its entirety and replaced
with new Appendix A attached hereto.
2. Appendix B of the Agreement is hereby deleted in its entirety and replaced
with new Appendix B attached hereto.
3. AMENDMENT TO SECOND PARAGRAPH OF SECTION 3.2. The second paragraph of
Section 3.2 is hereby deleted and replaced with the following:
LIFE COMPANY will submit any bills for printing, duplicating and/or
mailing costs, relating to the TRUST documents described above, to TRUST
for reimbursement by TRUST. LIFE COMPANY shall monitor such costs and
shall use its best efforts to control these costs. If requested by LIFE
COMPANY, the TRUST shall provide such documentation (including a final
copy of the TRUST's prospectus as set in type or in camera-ready copy) and
other assistance as is reasonably necessary in order for LIFE COMPANY to
print together in one document the current prospectus for the Variable
Contracts issued by LIFE COMPANY and the current prospectus for the TRUST.
Should LIFE COMPANY wish to print any of these documents in a format
different from that provided by TRUST, LIFE COMPANY shall provide TRUST
with sixty (60) days' prior written notice and LIFE COMPANY shall bear the
cost associated with any format change. LIFE COMPANY may also utilize
TRUST's current prospectus, reports and other informational materials on
LIFE COMPANY'S intranet and internet web-sites. The posting of such
materials on LIFE COMPANY'S internet or intranet web-sites will not
relieve LIFE COMPANY of its responsibility for delivery of documents as
provided in Section 2.1 (ix) herein.
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4. AMENDMENT TO SECTION 4.1. Section 4.1 is hereby deleted in its entirety
and replaced with the following:
4.1 LIFE COMPANY will furnish, or will cause to be furnished, to TRUST and
NBM, a template of each piece of sales literature or other promotional
material in which TRUST or NBM is named, prior to its intended use. Any
substantially similar pieces need not be submitted for review. No such
material will be used if TRUST or NBM reasonably objects to its use in
writing within ten (10) Business Days after receipt of such material.
5. AMENDMENT TO SECTIONS 7.1, 7.2 AND 7.3. Sections 7.1, 7.2 and 7.3 are
hereby deleted in their entirety and replaced with the following Sections
7.1 and 7.2:
7.1 LIFE COMPANY hereby agrees to and shall indemnify and hold harmless
TRUST and NBM and each of their Trustees, directors, officers,
employees and agents and each person, if any, who controls TRUST or
NBM within the meaning of Section 15 of the '33 Act (collectively,
TRUST and NBM shall be referred to as the "Indemnified Parties" for
purposes of this Section 7.1 and 7.2) against any and all losses,
claims, damages, liabilities (including amounts paid in settlement
with the written consent of LIFE COMPANY, which consent shall not be
unreasonably withheld) or litigation (including 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:
(a) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in
the disclosure documents, or sales literature for the Variable
Contracts or contained in the Variable 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 therein or
necessary to make the statements therein not misleading,
provided that this agreement to indemnify shall 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 in writing to LIFE
COMPANY by or on behalf of TRUST for use in the disclosure
documents or sales literature for the Variable Contracts or in
the Variable Contracts (or any amendment or supplement) or
otherwise for use in connection with the sale of the Variable
Contracts or TRUST shares; or
(b) arise out of or as a result of statements or representations
(other than statements or representations contained in the
registration statement, prospectus or sales literature of
TRUST not supplied by LIFE COMPANY, or persons under its
control) or wrongful conduct of LIFE COMPANY or any of its
directors, officers, employees or agents, with respect to the
sale or distribution of the Variable Contracts or TRUST
shares; or
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(c) arise out of any untrue statement or alleged untrue statement
of a material fact contained in a registration statement,
prospectus, or sales literature of TRUST or any amendment
thereof or supplement thereto or the omission or alleged
omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not
misleading if such statement or omission or such alleged
statement or omission was made in reliance upon and in
conformity with information furnished in writing to TRUST for
inclusion therein by or on behalf of LIFE COMPANY; or
(d) arise out of or result from any material breach of any
representation and/or warranty made by LIFE COMPANY in this
Agreement or arise out of or result from any other material
breach of this Agreement by LIFE COMPANY.
it being understood that in no way shall NBM be liable to the LIFE COMPANY
with respect to any violation of insurance law, compliance with which is a
responsibility of the LIFE COMPANY under this Agreement or otherwise or as
to which the LIFE COMPANY failed to inform NBM. This indemnification is in
addition to any liability that NBM may otherwise have; provided, however,
that no party shall be entitled to indemnification if such loss, claim,
damage or liability is caused by the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the party seeking
indemnification.
7.2 LIFE COMPANY shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified
Party unless such Indemnified Party shall have notified LIFE COMPANY
in writing within a reasonable time after the summons or other first
legal process giving information of the nature of the claim shall
have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any
designated agent), but failure to notify LIFE COMPANY of any such
claim shall not relieve LIFE COMPANY from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of this indemnification provision. In case
any such action is brought against an Indemnified Party, LIFE
COMPANY shall be entitled to participate at its own expense in the
defense of such action. LIFE COMPANY also shall be entitled to
assume the defense thereof, with counsel satisfactory to the party
named in the action. After notice from LIFE COMPANY to such party of
LIFE COMPANY's election to assume the defense thereof, the
Indemnified Party shall bear the fees and expenses of any additional
counsel retained by it, and LIFE COMPANY 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.
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6. AMENDMENT TO SECTIONS 7.4, 7.5 AND 7.6. Sections 7.4, 7.5 and 7.6 are
hereby deleted in their entirety and replaced with the following Sections
7.3 and 7.4:
7.3 NBM hereby agrees to, and shall, indemnify and hold harmless the
LIFE COMPANY and each person who controls or is affiliated with the
LIFE COMPANY within the meaning of such terms under the 1933 Act or
1940 Act and any officer, director, employee or agent of the
foregoing (LIFE COMPANY shall be referred to as the "Indemnified
Party" for purposes of this Section 7.3 and 7.4), 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 they
or any of them may become subject under any statute or regulation,
at common law or otherwise, insofar as such losses, claims, damages
or liabilities:
(a) arise out of or are based upon any untrue statement of any
material fact contained in the Trust Registration Statement,
any Prospectus for Series or Classes or sales literature or
other promotional material of the Trust (or any amendment or
supplement to any of the foregoing), or arise out of or are
based upon the omission to state therein a material fact
required to be stated therein or necessary to make the
statements therein not misleading in light of the
circumstances in which they were made; provided that this
obligation to indemnify shall not apply if such statement or
omission was made in reliance upon and in conformity with
information furnished in writing by the LIFE COMPANY to the
Trust or NBM for use in the Trust Registration Statement,
Trust Prospectus or sales literature or promotional material
for the Trust (or any amendment or supplement to any of the
foregoing) or otherwise for use in connection with the sale of
the Variable Contracts or Trust shares; or
(b) arise out of any untrue statement of a material fact contained
in the Variable Contracts Registration Statement, Variable
Contracts Prospectus or sales literature or other promotional
material for the Variable Contracts (or any amendment or
supplement to any of the foregoing), or the omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading in
light of the circumstances in which they were made, if such
statement or omission was made in reliance upon information
furnished in writing by NBM to the LIFE COMPANY; or
(c) arise out of or are based upon willful misfeasance, bad faith,
gross negligence or reckless disregard by NBM or persons under
its control with respect to the sale of Trust shares; or
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(d) arise out of any material breach by NBM or persons under its
control of this Agreement (including any breach - whether or
not material - of any warranties contained in Sections 2.2 and
2.3 hereof);
it being understood that in no way shall NBM be liable to the LIFE COMPANY
with respect to any violation of insurance law, compliance with which is a
responsibility of the LIFE COMPANY under this Agreement or otherwise or as
to which the LIFE COMPANY failed to inform NBM. This indemnification is in
addition to any liability that NBM may otherwise have; provided, however,
that no party shall be entitled to indemnification if such loss, claim,
damage or liability is caused by the willful misfeasance, bad faith, gross
negligence or reckless disregard of duty by the party seeking
indemnification.
7.4 NBM shall not be liable under this indemnification provision with
respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified NBM in writing within a
reasonable time after the summons or other first legal process
giving information of the nature of the claim shall have been served
upon such Indemnified Party (or after such Indemnified Party shall
have received notice of such service on any designated agent), but
failure to notify NBM of any such claim shall not relieve NBM from
any liability which it may have to the Indemnified Party against
whom such action is brought otherwise than on account of this
indemnification provision. In case any such action is brought
against an Indemnified Party, NBM shall be entitled to participate
at its own expense in the defense of such action. NBM also shall be
entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from NBM to such party
of NBM's election to assume the defense thereof, the Indemnified
Party shall bear the fees and expenses of any additional counsel
retained by it, and NBM 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.
7. AMENDMENT OF ARTICLE II. Article II of the Agreement are hereby deleted in
its entirety and replaced with the following:
Article II. Representations and Warranties
2.1 The Company represents and warrants that: (i) the LIFE COMPANY is an
insurance company duly organized and in good standing under Texas
insurance law; (ii) each Separate Account is a validly existing separate
account, duly established and maintained in accordance with applicable
law; (iii) each Separate Account's 1940 Act Registration Statement has
been filed with the SEC in accordance with the provisions of the 1940 Act
and such Account is duly registered as a unit investment trust thereunder;
(iv) the Variable Contracts' Registration Statement has been declared
effective by the SEC unless an exemption from registration is available
prior to any issuance or sale of the Variable Contracts; (v) the Variable
Contracts will be issued in compliance in all material respects with all
applicable Federal and state laws; (vi) the Variable Contracts
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have been filed, qualified and/or approved for sale, as applicable, under
the insurance laws and regulations of the states in which the Variable
Contracts will be offered; (vii) each Separate Account will maintain its
registration under the 1940 Act and will comply in all material respects
with the 1940 Act; (viii) the Variable Contracts currently are, and at the
time of issuance and for so long as they are outstanding will be, treated
as annuity contracts, life insurance policies, or modified endowment
contracts, whichever is appropriate, under applicable provisions of the
Code; (ix) it shall deliver such prospectuses, statements of additional
information, proxy statements and periodic reports of the Trust as
required to be delivered under applicable federal or state law and
interpretations of federal and state securities regulators thereunder in
connection with the offer, sale or acquisition of the Variable Contracts;
(x) the LIFE COMPANY's entering into and performance its obligations under
this Agreement does not and will not violate its charter documents or
by-laws, rules or regulations, or any agreement to which it is a party;
and (xi) with respect to any Separate Accounts (a) the principal
underwriter for each Separate Account and any subaccounts thereof is a
broker or dealer registered with the SEC under the Securities Exchange Act
of 1934 or a person controlled (as defined in the ▇▇▇▇ ▇▇▇) by such a
broker or dealer; (b) shares of a Portfolio are and will continue to be
the only securities held by the relevant subaccount; (c) it will either
(1) seek instructions from Contract Owners with account value in the
Separate Accounts allocated to shares of a Portfolio with regard to the
voting of all proxies solicited in connection with the Portfolio and will
vote those proxies only in accordance with those instructions, or (2) vote
such Portfolio shares held in the Separate Accounts in the same proportion
as the vote of all the Portfolio's other shareholders; and (d) it will not
substitute another security for shares of the Portfolio held in a Separate
Account unless the SEC has approved the substitution in the manner
provided in Section 26 of the 1940 Act. The Company will notify the Trust
promptly if for any reason it is unable to perform its obligations under
this Agreement.
2.2 The Trust represents and warrants that: (i) the Trust is duly
organized and validly existing under the laws of Delaware and that each
Portfolio does and will comply in all material respects with the 1940 Act
and the rules and regulations thereunder; (ii) the Trust's 1940 Act
Registration Statement has been filed with the SEC in accordance with the
provisions of the 1940 Act and the Trust is duly registered as an open-end
management investment company thereunder; (iii) the Trust's Registration
Statement has been declared effective by the SEC and the Portfolio shares
offered and sold pursuant to the Agreement will be registered under the
1933 Act prior to and at the time of any issuance or sale of such shares;
(iv) the Trust shares will be issued in compliance in all material
respects with all applicable federal laws; (v) the Trust will remain
registered under and will comply in all material respects with the 1940
Act during the term of this Agreement; (vi) the Trust shall register and
qualify its shares for sale in accordance with the laws of the various
states only if and to the extent deemed advisable by the Trust; (vii) the
Portfolios are currently qualified and will use their reasonable best
efforts to continue to qualify as regulated investment companies under
Subchapter M of the Code and the Trust shall promptly notify LIFE COMPANY
upon: (a) having a reasonable basis for believing that any of the
Portfolios has ceased to so qualify, or that they may not qualify as such
in the future; or (b) having a reasonable basis for believing that income
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earned by the Portfolios from the ownership of a wholly owned subsidiary
that is a controlled foreign corporation should constitute qualifying
income to the Portfolios for purposes of section 851(b)(2); (viii) each of
the Portfolios currently does and will continue to invest, dispose of, and
hold assets in compliance with the requirements of Section 817(h) of the
Code and Treasury Regulations Section 1.817-5 and any amendments or other
modifications of successor provisions to such Section or Regulations,
including, but not limited to, the diversification requirement therein
(the "Tax Diversification Requirements"). Without limiting the foregoing,
the Trust will notify LIFE COMPANY promptly after forming a reasonable
belief that the Portfolio has ceased to comply with the Tax
Diversification Requirements or might not so comply in the future, and the
Trust shall cure any non-conformance within the period for cure afforded
under Regulation Section 1.817-5; (ix) the investment policies of each
Portfolio are in material compliance with any investment restrictions set
forth as applicable in this Agreement, if any; (x) the Trust will use its
reasonable best efforts, consistent with the requirements of the 1940 Act
and each Portfolio's then-effective prospectus, to comply with any
applicable state insurance laws or regulations, which efforts shall
include, without limitation, the furnishing of information upon request of
LIFE COMPANY that is not otherwise available to LIFE COMPANY and that is
required by state insurance law to enable LIFE COMPANY to obtain the
authority needed to issue the Variable Contracts in any applicable state;
(xi) investments by the Portfolios in master limited partnerships are and
will be treated as corporations rather than partnerships; (xii) the Trust
shall not take any action which would reasonably be expected to impact the
treatment of the Variable Contracts as annuities under Section 72 of the
Code; and (xiii) the Fund has received an opinion of counsel that income
earned by the Portfolios from the ownership of a wholly owned subsidiary
that is a controlled foreign corporation should constitute qualifying
income to the Portfolios for purposes of section 851(b)(2) of the Code.
2.3 NBM represents and warrants that: (i) NBM is a limited liability
company duly organized and in good standing under New York law and (ii)
NBM is registered as an investment adviser under federal securities laws.
8. ADDITION OF ARTICLE XI. Section XI is hereby added to the Agreement:
XI. CONFIDENTIALITY.
(a) Confidential Information. The parties acknowledge that, in the
performance of the Agreement, they receive or have access to information about
customers and other proprietary information of the other parties, including
names, addresses, account balances, account numbers, account activity, social
security numbers, taxpayer identification numbers, and financial and health
information, as well as all forms and types of financial, business, technical,
or economic information, whether tangible or intangible, and whether or how
stored, compiled, or memorialized physically, electronically, graphically,
photographically, or in writing ("Confidential Information"). Confidential
Information excludes information that (1) is independently developed by a party
without violating the disclosing party's proprietary rights, (2) is or becomes
publicly known (other than through unauthorized disclosure), (3) is
intentionally disclosed by the owner of such information to a third party free
of any obligation of confidentiality, (4) is already known by a party, as
evidenced by the written records of that party, free of an obligation of
confidentiality other than pursuant to this Agreement, or (5) is rightfully
received by a party free of any obligation of confidentiality.
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(b) Use. The parties may use Confidential Information only in
connection with this Agreement and may not disclose Confidential Information to
any other party except as permitted by the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act, other
applicable federal and state laws and regulations regarding privacy, this
Agreement or as otherwise agreed to in writing by the parties hereto. The
parties may disclose Confidential Information to their respective employees and
agents or to third party vendors (1) who are involved in the issuance,
administration or maintenance of a customer's account or (2) otherwise on a
need-to-know basis, provided that, in each case, they have first adequately
apprised any such employee, agent, and or third party vender to observe this
confidentiality. In the case of employees and/or agents, the party shall provide
adequate training to ensure this confidentiality. The parties will take
reasonable steps to protect the Confidential Information, applying at least the
same security measures and level of care as they employ to protect their own
Confidential Information. If a party is compelled by applicable law to disclose
any Confidential Information, the party so compelled must promptly notify, in
writing, the party whose Confidential Information is being disclosed before
disclosing such Confidential Information so that such other party is afforded
the opportunity to seek relief from such disclosure or to limit the scope of the
disclosure.
(c) Security. Each party shall comply with all federal, state, and
local law or regulation related to privacy, including Regulation S-P of the SEC
and Title V of the ▇▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Act. Each party shall notify the other
parties promptly upon any breach of Confidential Information. Each party shall
maintain an effective information security program to protect the Confidential
Information, which program includes administrative, technical, and physical
safeguards:
(i) to insure the security and confidentiality of Confidential
Information;
(ii) to protect against any anticipated threats or hazards to
the security or integrity of such Confidential Information;
and
(iii) to protect against unauthorized access to or use of
Confidential Information which could result in substantial
harm or inconvenience to either party or other affiliates, or
to customers of any of them.
(d) Injunctive Relief. The parties acknowledge that the unauthorized
disclosure of Confidential Information is likely to cause irreparable injury to
the disclosing party and that, in the event of a violation or threatened
violation of a party's obligations hereunder, the disclosing party shall have no
adequate remedy at law and shall therefore be entitled to enforce each such
obligation by temporary or permanent injunctive or mandatory relief obtained in
any court of competent jurisdiction without the necessity of proving damages,
posting any bond or other security, and without prejudice to any other rights
and remedies which may be available at law or in equity.
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(e) Information Received in Error. If Confidential Information,
which is not necessary for the purposes of this Agreement, is received by one
party from the other party in error, the other party shall promptly return the
original and destroy all copies of the same and/or destroy or certify in writing
to the requesting party that the Confidential Information has been destroyed.
(f) Use Upon Termination. At the termination of this Agreement, or
in the event a party makes a request for the return of their Confidential
Information, the other parties will promptly return the original and all copies
of same, or certify in writing to the requesting party that the Confidential
Information has been destroyed, provided however, that each party shall retain
Confidential Information in its possession necessary to service its customers.
This Confidentiality provision shall survive the termination of this Agreement.
9. Except as modified hereby, all other terms and conditions of the Agreement
shall remain in full force and effect.
10. This Amendment may be executed in two or more counterparts, each of which
shall be deemed to be an original, but all of which together shall
constitute one and the same Amendment.
THE UNITED STATES LIFE ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
INSURANCE COMPANY IN THE MANAGEMENT LLC
CITY OF NEW YORK
By: /s/
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ -----------------------------
----------------------------- Name:
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇ Title:
Title: Executive Vice President,
Individual and Group
Retirement
For Notices: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ADVISERS MANAGEMENT TRUST
The United States Life Insurance
Company in the City of New York By: /s/
2919 ▇▇▇▇▇ Parkway, L4-01 -----------------------------
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Name:
Attn: Legal Department Title:
For Notices:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Management LLC
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Intermediary Support Services
cc: Legal Department, Mutual Funds
telephone: (▇▇▇) ▇▇▇-▇▇▇▇
telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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APPENDIX A
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ADVISERS MANAGEMENT TRUST PORTFOLIOS
The currently available Portfolios of the TRUST are:
Absolute Return Multi-Manager Portfolio - S Class
Guardian Portfolio - S Class
International Equity Portfolio - S Class
Mid Cap Growth Portfolio - S Class Mid
Cap Intrinsic Value Portfolio - S Class
Small Cap Growth Portfolio - S Class
Socially Responsive Portfolio - S Class
Balanced Portfolio - I Class
Growth Portfolio - I Class
Guardian Portfolio - I Class
Large Cap Value Portfolio - I Class
Mid Cap Growth Portfolio - I Class
Mid Cap Intrinsic Value Portfolio - I Class
Short Duration Bond Portfolio - I Class
Socially Responsive Portfolio - I Class
▇▇
▇▇▇▇▇▇▇▇ ▇
SEPARATE ACCOUNTS CONTRACTS
---------------------------------- --------------------------------------------
Separate Account USL VL-R Platinum Investor VUL
Platinum Investor Survivor VUL
Platinum Investor PLUS VUL
Platinum Investor Survivor II VUL
Platinum Investor VIP VUL
Protection Advantage Select VUL
Income Advantage Select VUL
Survivor Advantage VUL
Separate Account USL VA-R Platinum Investor Immediate Variable Annuity
FSA Variable Separate Account Polaris Select Investor Variable Annuity
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