AMENDMENT NO. 1 TO PARTICIPATION AGREEMENT BY AND BETWEEN GOLDMAN SACHS VARIABLE INSURANCE TRUST, GOLDMAN, SACHS & CO. AND THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK
EXHIBIT (8)(l)
AMENDMENT NO. 1 TO
PARTICIPATION AGREEMENT BY AND BETWEEN
XXXXXXX XXXXX VARIABLE INSURANCE TRUST,
XXXXXXX, SACHS & CO. AND
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
PARTICIPATION AGREEMENT BY AND BETWEEN
XXXXXXX XXXXX VARIABLE INSURANCE TRUST,
XXXXXXX, SACHS & CO. AND
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
This Amendment No. 1 to the Participation Agreement dated April 30, 1998 (the “Amendment”), is
made and entered into this day of 2014 by and between XXXXXXX XXXXX VARIABLE INSURANCE
TRUST, a statutory trust formed under the laws of Delaware (the “Trust”), XXXXXXX, SACHS & CO., a
New York limited partnership (the “Distributor”), and THE UNITED STATES LIFE INSURANCE COMPANY IN
THE CITY OF NEW YORK (successor to American International Life Assurance Company of New York
effective December 31, 2010), a New York life insurance company (the “Company”), on its own behalf
and on behalf of each separate account of the Company referred to herein.
WITNESSETH:
WHEREAS, the Trust, the Distributor and the Company entered into a Participation Agreement on
April 30, 1998 (the “1998 Agreement”);
WHEREAS, the Company wishes to offer interests in Accounts, some of which have not been, nor
will be, registered as unit investment trusts under the 1940 Act (“Unregistered Accounts”), and the
interests deemed to be issued by the Accounts under the Contracts will not be registered as
securities under the 1933 Act (“Unregistered Contracts”);
WHEREAS, the Trust, the Distributor and the Company wish to amend the 1998 Agreement to (i)
reflect the offering of the Unregistered Accounts and Unregistered Contracts, and (ii) reflect the
offering of Advisor Shares of certain series of the Trust; and
WHEREAS, Article XI of the 1998 Agreement provides that the 1998 Agreement may be amended by
written agreement signed by all of the parties.
NOW, THEREFORE, in consideration of the mutual covenants herein contained, which consideration
is full and complete, the Trust, the Distributor and the Company hereby agree as follows:
| 1. | Definition of Agreement. The term “Agreement,” as used in the 1998 Agreement and this Amendment, will refer to the 1998 Agreement as amended hereby. | |
| 2. | Unless otherwise noted or amended herein, all other terms used in this Amendment shall have the same meaning as in the 1998 Agreement. | |
| 3. | Except as hereby amended, the 1998 Agreement remains in full force and effect in accordance with it terms. |
| 4. | Amendment of Definitions in Article I. The definitions in Sections 1.1, 1.4, 1.13, 1.14, 1.15 and 1.16 of the Agreement are hereby deleted in their entirety and replaced with the following definitions: |
1.1 “Account” — the separate account or subaccount of a separate account of the
Company described more specifically in Schedule 1 and Schedule 5A to this Agreement. If
more than one separate account or more than one subaccount is described on Schedule 1 and
Schedule 5A, the term shall refer to each separate account and subaccount so described.
1.4 “Contracts” — the class or classes of variable annuity contracts and/or variable
life insurance policies issued by the Company and described more specifically on Schedule 2
and Schedule 5B to this Agreement.
1.13 “Registration Statement” — with respect to the Trust shares or a class of
Schedule 2 Contracts, the registration statement filed with the SEC to register such
securities under the 1933 Act, or the most recently filed amendment thereto, in either case
in the form in which it was declared or became effective. The Contracts’ Registration
Statement for each class of Schedule 2 Contracts is described more specifically on Schedule
2 to this Agreement. The Trust’s Registration Statement is filed on Form N-1A (File No.
333-35883).
1.14 “1940 Act Registration Statement” — with respect to the Trust or the Schedule 1
Account, the registration statement filed with the SEC to register such person as an
investment company under the 1940 Act, or the most recently filed amendment thereto. The
Schedule 1 Account’s 1940 Act Registration Statement is described more specifically on
Schedule 2 to this Agreement. The Trust’s 1940 Act Registration Statement is filed on Form
N-1A (File No. 811-08361).
1.15 “Prospectus” — with respect to shares of a Series (or Class) of the Trust or a
class of Schedule 2 Contracts, each version of the definitive prospectus or supplement
thereto filed with the SEC pursuant to Rule 497 under the 1933 Act. With respect to any
provision of this Agreement requiring a party to take action in accordance with a
Prospectus, such reference thereto shall be deemed to be the version for the applicable
Series, Class or Contracts last so filed (or most current for Schedule 5 Contracts) prior to
the taking of such action. For purposes of Article IX, the term “Prospectus” shall include
any statement of additional information incorporated herein. With respect to a class of
Schedule 5 Contracts, “Prospectus” includes any offering circular or memorandum for such
Contracts.
1.16 “Statement of Additional Information” — with respect to the shares of the Trust
or a class of Schedule 2 Contracts, each version of the definitive statement of additional
information or supplement thereto filed with the SEC pursuant to Rule 497 under the 1933
Act. With respect to any provision of this Agreement requiring a party to take action in
accordance with a Statement of Additional Information, such reference thereto shall be
deemed to be the last version so filed prior to the taking of such action.
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| 5. | Addition of Definitions to Article I. The following definitions shall be added to Article I of the Agreement as the Section numbers indicated below: |
1.21 “Schedule 1 Accounts” — Accounts registered under the 1940 Act as unit investment
trusts and listed on Schedule 1.
1.22 “Schedule 5 Accounts” — Accounts excepted from the definition of an investment
company as provided for by Section 3(c)(1) or Section 3(c)(7) of the 1940 Act and listed on
Schedule 5A.
1.23 “Schedule 2 Contracts” — Contracts through which interests in Schedule 1 Accounts
are offered and issued, which interests are registered as securities under the 0000 Xxx.
1.24 “Schedule 5 Contracts” — Contracts through which interests in Schedule 5 Accounts
are offered and issued to “accredited investors,” as that term is defined in Regulation D
under the 1933 Act, or other investors permitted by Regulation D (which Contracts and
interests are not registered as securities in reliance upon Regulation D).
| 6. | Amendment of Provisions in Article II. For purposes of Section 2.3 of the Agreement, purchases and redemptions of shares on behalf of each Schedule 5 Account shall be treated in the same manner as transactions by the general account of the Company, as set forth in Section 2.3(d) of the Agreement. | |
| 7. | Amendment of Provisions in Article III. Section 3.1 of the Agreement is hereby deleted in its entirety and replaced with the following: |
3.1 Company. The Company represents and warrants that: (i) the Company is an
insurance company duly organized and in good standing under New York insurance law; (ii)
each Schedule 1 Account is a validly existing separate account, duly established and
maintained in accordance with applicable law; (iii) each Schedule 1 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
Schedule 2 Contracts’ Registration Statement has been declared effective by the SEC; (v) the
Contracts will be issued in compliance in all material respects with all applicable Federal
and state laws; (vi) the Contracts have been filed, qualified and/or approved for sale, as
applicable, under the insurance laws and regulations of the states in which the Contracts
will be offered; (vii) each Schedule 1 Account will maintain its registration under the 1940
Act and will comply in all material respects with the 1940 Act; (viii) the 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) the 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; (x) each Schedule 5 Account qualifies for the exclusion
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on which it relies for
not registering as an investment company under the 1940 Act; (xi) sales of each Schedule 5
Contract, and interests therein, properly qualify for exemptions on which the Company relies
in not registering such Contracts, or interests in the Account through which each is issued,
under the 1933 Act; and (xii) with respect to any Schedule 5 Accounts (a) the principal
underwriter for each Schedule 5 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 0000 Xxx) by such a broker or dealer; (b) shares of a Fund 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 Schedule 5 Accounts
allocated to shares of a Fund with regard to the voting of all proxies solicited in
connection with the Fund and will vote those proxies only in accordance with those
instructions, or (2) vote such Fund shares held in the Schedule 5 Accounts in the same
proportion as the vote of all the Fund’s other shareholders; and (d) it will not substitute
another security for shares of the Fund held in a Schedule 5 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.
| 8. | Amendment of Provisions in Article IV. Sections 4.2 and 4.3 of the Agreement are hereby deleted in their entirety and replaced with the following: |
4.2. Contracts Filings. The Company shall amend the Schedule 2 Contracts’ Registration
Statement and the Schedule 1 Account’s 1940 Act Registration Statement from time to time as
required in order to effect the continuous offering of such Contracts in compliance with
applicable law or as may otherwise be required by applicable law, but in any event shall
maintain a current effective Schedule 2 Contracts’ Registration Statement and the Schedule 1
Account’s registration under the 1940 Act for so long as the Schedule 2 Contracts are
continuing to be issued. The Company shall be responsible for filing all Contract forms,
applications, marketing materials and other documents relating to the Contracts and/or the
Account with state insurance commissions, as required or customary, and shall use its best
efforts: (i) to obtain any and all approvals thereof, under applicable state insurance law,
of each state or other jurisdiction in which Contracts are or may be offered for sale; and
(ii) to keep such approvals in effect for so long as the Contracts are outstanding. With
regard to each Schedule 1 Account, the Company shall comply in all material respects with
the 1940 Act. The Company shall make such filings and take such other actions as are
required by the exemptions and exclusions on which it relies.
4.3 Voting of Trust Shares. With respect to any matter put to vote by the holders of
Trust shares (“Voting Shares”), the Company will provide “pass-through” voting privileges to
owners of Contracts registered with the SEC as long as the 1940 Act requires such privileges
in such cases. In cases in which “pass-through” privileges apply, the Company will (i)
solicit voting instructions from Contract Owners of SEC-registered contracts; (ii) vote
Voting Shares attributable to Contract Owners in accordance with instructions or proxies
timely received from such Contract Owners; and (iii) vote Voting Shares held by it that are
not attributable to reserves for SEC-registered Contracts or for
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which it has not received
timely voting instructions in the same proportion as instructions received in a timely
fashion from Owners of SEC-registered Contracts. The Company shall be responsible for
ensuring that it calculates “pass-through” votes for the Account in a manner consistent with
the provisions set forth above and with other Participating Insurance Companies. Neither
the Company nor any of its affiliates will in any way recommend action in connection with,
or oppose or interfere with, the solicitation of proxies for the Trust shares held for such
Contract Owners, except with respect to matters as to which the Company has the right in
connection with Schedule 2 Contracts under Rule 6e-2 or 6e-3(T) under the 1940 Act, to vote
Voting Shares without regard to voting instructions from Contract Owners.
| 9. | Amendment of Provisions in Article VI. Sections 6.1 and 6.2 of the Agreement are hereby deleted in their entirety and replaced with the following: |
6.1. Section 817(h). Each Fund of the Trust shall comply with Section 817(h) of the
Code and Treasury Regulation 1.817-5 thereunder, relating to the diversification
requirements for variable annuity, endowment, or life insurance contracts, to the extent
applicable to the Fund as an investment company underlying the Account, and the Trust shall
notify the Company immediately upon having a reasonable basis for believing that a Fund has
ceased to so comply and will not be able to comply within the grace period afforded by
Treasury Regulation 1.817-5.
6.2. Subchapter M. Each Fund of the Trust shall maintain the qualification of the Fund
as a regulated investment company (under Subchapter M of the Code or any successor or
similar provision), and the Trust shall notify the Company immediately upon having a
reasonable basis for believing that a Fund has ceased to so qualify and will not be able to
qualify within the grace period afforded by Section 851 of the Code.
| 10. | Amendment of Provisions in Article VII. Sections 7.1, 7.2 and 7.4 of the Agreement are hereby deleted in their entirety and replaced with the following: |
7.1. Expenses. All expenses incident to each party’s performance under this Agreement
(including expenses expressly assumed by such party pursuant to this Agreement) shall be
paid by such party to the extent permitted by law, except as otherwise provided below or in
a separate agreement.
7.2. Trust Expenses. Expenses incident to the Trust’s performance of its duties and
obligations under this Agreement include, but are not limited to, the costs of:
(a) registration and qualification of the Trust shares under the federal
securities laws;
(b) preparation and filing with the SEC of the Trust’s Prospectuses, Trust’s
Statement of Additional Information, Trust’s Registration Statement, Trust proxy
solicitation materials and shareholder reports, and preparation of a “camera-ready”
copy of the foregoing;
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(c) preparation of all statements and notices required by any Federal or state
securities law;
(d) printing and mailing of all materials and reports required to be provided
by the Trust to its existing shareholders;
(e) all taxes on the issuance or transfer of Trust shares;
(f) payment of all applicable fees relating to the Trust, including, without
limitation, all fees due under Rule 24f-2 in connection with sales of Trust shares
to qualified retirement plans and Schedule 5 Accounts, custodial, auditing, transfer
agent and advisory fees, fees for insurance coverage and Trustees’ fees; and
(g) any expenses permitted to be paid or assumed by the Trust pursuant to a
plan, if any, under Rule 12b-1 under the 1940 Act and/or a shareholder service plan.
7.4. Other Expenses and Payments. The Trust and the Distributor shall pay no fee or
other compensation to the Company under this Agreement. Each party, however, shall, in
accordance with the allocation of expenses specified in this Agreement, reimburse other
parties for expenses paid by such other parties, but allocated to it. In addition, nothing
herein shall prevent the parties from otherwise agreeing to perform, and arranging for
appropriate compensation for, services relating to the Trust, the Distributor, the Company
or the Accounts.
Notwithstanding anything else in this Agreement, pursuant to any Rule 12b-1 Plan
adopted by the Trust, the Trust or any Series or Class thereof may pay the Distributor, and
the Distributor may pay the principal underwriter or distributor of one or more classes of
Contracts, for activities primarily intended to result in the sale of Trust shares to the
Accounts through which such Contracts are issued. Likewise, pursuant to any shareholder
service plan adopted and implemented by the Trust or any Series or Class thereof under Rule
12b-1 of the 1940 Act or otherwise, the Trust or the appropriate Series or Class may pay the
Distributor and the Distributor may pay the principal underwriter or distributor of one or
more classes of Contracts, or the Company, for activities related to personal service and/or
maintenance of Contract Owner accounts and/or administration services, as permitted by such
plan.
| 11. | Any and all references to the National Association of Securities Dealers, Inc. or NASD in the Agreement shall be changed to Financial Industry Regulatory Authority or FINRA, as appropriate. | |
| 12. | Amendments and Additions to Schedules. |
It is understood that Schedule 1 of the Agreement identifies only the separate accounts of
the Company that are registered under the 1940 Act as unit investment trusts. Schedule 1 of
the Agreement is hereby deleted in its entirety and replaced with the attached Schedule 1.
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Schedule 2 of the Agreement is hereby deleted in its entirety and replaced with the attached
Schedule 2.
Schedule 3 of the Agreement is hereby deleted in its entirety and replaced with the attached
Schedule 3.
The attached Schedule 5, which includes Schedules 5A and 5B, is hereby added to the
Agreement.
***SIGNATURE PAGE FOLLOWS***
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IN WITNESS WHEREOF, each of the parties hereto has caused this Amendment to be executed in its name
and behalf by its duly authorized officer on the date specified below.
| XXXXXXX XXXXX VARIABLE INSURANCE TRUST (Trust) |
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Date:
|
By: | |||||||||
| Title: | ||||||||||
| XXXXXXX, SACHS & CO. (Distributor) |
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Date:
|
By: | |||||||||
| Title: | ||||||||||
| THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK (Company) |
||||||||||
Date:
|
By: | |||||||||
| Title: | ||||||||||
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Schedule 1
Accounts of the Company
Investing in the Trust
Investing in the Trust
Effective as of the date of this Amendment, the following separate accounts of the Company are
subject to the Agreement:
| Date Established by | ||||||
| Name of Account | Board of Directors of | SEC 1940 Act | Type of Products | |||
| Subaccounts | the Company | Registration Number | Supported by Account | |||
| USL Separate Account B | 06/86 | 811-04865-01 | Variable Life | |||
| USL FSA Variable Separate Account |
09/09/94 | 811-08810 | Variable Annuities |
[Form of Amendment to Schedule 1]
Effective as of , the following separate accounts of the Company are hereby added to this
Schedule 1 and made subject to the Agreement:
| Date Established by | ||||||
| Name of Account | Board of Directors of | SEC 1940 Act | Type of Products | |||
| Subaccounts | the Company | Registration Number | Supported by Account |
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this Schedule 1 in
accordance with Article XI of the Agreement.
Name:
|
Name: | |||
Title:
|
Title: | |||
Name: |
||||
Title: |
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Schedule 2
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Classes of Contracts
Supported by Separate Accounts
Listed on Schedule 1
Effective as of the date of this Amendment, the following classes of Contracts are subject to the
Agreement:
| SEC 1933 Act | Name of Supporting | |||||
| Policy Marketing Name | Registration Number | Account | Annuity or Life | |||
| Executive Advantage VUL | 333-171493 | B | Variable Life | |||
| Gemstone Life VUL | 333-171497 | B | Variable Life | |||
| Polaris Select Investor Variable Annuity | 333-198224 | FSA Variable Separate Account |
Variable Annuity |
[Form of Amendment to Schedule 2]
Effective
as of , the following classes of Contracts are hereby added to this Schedule 2 and
made subject to the Agreement:
| SEC 1933 Act | Name of Supporting | |||||
| Policy Marketing Name | Registration Number | Account | Annuity or Life |
IN WITNESS WHEREOF, the Trust, the Distributor and the Company hereby amend this Schedule 2 in
accordance with Article XI of the Agreement.
Name:
|
Name: | |||
Title:
|
Title: | |||
Name: |
||||
Title: |
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Schedule 3
Trust Classes and Series
Available Under
Each Class of Contracts
Trust Classes and Series
Available Under
Each Class of Contracts
Effective as of the date of this Amendment, the following Trust Classes and Series are
available under the Contracts:
Contracts Marketing Name
|
Trust Classes and Series | |
Executive Advantage VUL
|
All Series of Xxxxxxx Xxxxx Variable Insurance Trust (Service, Institutional, Advisor) | |
Gemstone Life VUL
|
All Series of Xxxxxxx Sachs Variable Insurance Trust (Service, Institutional, Advisor) | |
Polaris Select Investor Variable Annuity
|
All Series of Xxxxxxx Xxxxx Variable Insurance Trust (Service, Institutional, Advisor) |
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SCHEDULE 5
Schedule 5A
Unregistered Accounts
Unregistered Accounts
The following separate accounts of the Company are subject to the Agreement:
| Date Established by | ||||
| Board of Directors of | Type of Product | |||
| Name of Account | the Company | Supported by Account | ||
| USL Separate Account 107 | 8/8/97 | Variable Annuity |
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Schedule 5B
Unregistered Contracts
Unregistered Contracts
The following Contracts are subject to the Agreement:
| Type of Product | ||||||
| Group or | Supported by | |||||
| Name of Contract | Available Funds | Individual | Account | |||
| USL Separate Account 107 Form No. 11060N | All Series of Xxxxxxx Sachs Variable Insurance Trust (Service, Institutional, Advisor) | Group | Variable Annuity |
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