Exhibit (8)(a)(ii)
AMENDMENT NUMBER 1 TO
AMENDED AND RESTATED PARTICIPATION AGREEMENT
AMONG XXX XXXXXX LIFE INVESTMENT TRUST,
XXX XXXXXX FUNDS INC.,
XXX XXXXXX ASSET MANAGEMENT INC.,
THE UNITED STATES LIFE INSURANCE COMPANY IN THE
CITY OF NEW YORK, AND
AMERICAN GENERAL SECURITIES INCORPORATED
This Amendment No. 1 ("Amendment No. 1") executed as of the ___ day of
__________, 1999 to the Participation Agreement dated as of March 3, 1999, (the
"Agreement"), among Xxx Xxxxxx Life Investment Trust (the "Fund"), Xxx Xxxxxx
Funds Inc., Xxx Xxxxxx Asset Management Inc., The United States Life Insurance
Company in the City of New York (the "Company"), and American General Securities
Incorporated.
WHEREAS, the parties desire to amend the Agreement to (i) add to Schedule A
of the Agreement the Contracts of the Company relating to the Company's Platinum
Investor Variable Life Insurance policies, Form Xx. 00000X ("Xxxxxxxx Xxxxxxxx")
xxx (xx) solely to the extent the Agreement relates to the Platinum Investor,
amend the provisions of Article III of the Agreement as described below.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Schedule A to the Agreement, a revised copy of which is attached
hereto, is hereby amended to add the Platinum Investor.
2. Solely to the extent the Agreement relates to the Platinum
Investor, Article III of the Agreement is hereby deleted and replaced
with the following:
"ARTICLE III. Prospectuses, Reports to Shareholders and Proxy
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Statements; Voting
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3.1. The Fund shall provide the Company with as many printed
copies of the Fund's current prospectus and statement of
additional information as the Company may reasonably request. If
requested by the Company in lieu of providing printed copies the
Fund shall provide camera-ready film or computer diskettes
containing the Fund's prospectus and statement of additional
information, and such other assistance as is reasonably necessary
in order for the Company once each year (or more frequently if
the prospectus and/or statement of additional information for the
Fund is amended during the year) to have the prospectus for the
Contracts and the Fund's prospectus printed together in one
document or separately. The Company may elect to print the Fund's
prospectus and/or its statement of additional information in
combination with other fund companies' prospectuses and
statements of additional information.
3.2(a). Except as otherwise provided in this Section 3.2., all
expenses of preparing, setting in type and printing and
distributing Fund prospectuses and statements of additional
information shall be the expense of the
Company. For prospectuses and statements of additional
information provided by the Company to its existing owners of
Contracts in order to update disclosure as required by the 1933
Act and/or the 1940 Act, the cost of setting in type, printing
and distributing shall be borne by the Fund. If the Company
chooses to receive camera-ready film or computer diskettes in
lieu of receiving printed copies of the Fund's prospectus and/or
statement of additional information, the Fund shall bear the cost
of typesetting to provide the Fund's prospectus and/or statement
of additional information to the Company in the format in which
the Fund is accustomed to formatting prospectuses and statements
of additional information, respectively, and the Company shall
bear the expense of adjusting or changing the format to conform
with any of its prospectuses and/or statements of additional
information. In such event, the Fund will reimburse the Company
in an amount equal to the product of x and y where x is the
number of such prospectuses distributed to owners of the
Contracts, and y is the Fund's per unit cost of printing the
Fund's prospectuses. The same procedures shall be followed with
respect to the Fund's statement of additional information. The
Fund shall not pay any costs of typesetting, printing and
distributing the Fund's prospectus and/or statement of additional
information to prospective Contract owners.
3.2(b). The Fund, at its expense, shall provide the Company with
copies of its proxy statements, reports to shareholders, and
other communications (except for prospectuses and statements of
additional information, which are covered in Section 3.2(a)
above) to shareholders in such quantity as the Company shall
reasonably require for distributing to Contract owners. The Fund
shall not pay any costs of distributing such proxy-related
material, reports to shareholders, and other communications to
prospective Contract owners.
3.2(c). The Company agrees to provide the Fund or its designee
with such information as may be reasonably requested by the Fund
to assure that the Fund's expenses do not include the cost of
typesetting, printing or distributing any of the foregoing
documents other than those actually distributed to existing
Contract owners.
3.2(d) The Fund shall pay no fee or other compensation to the
Company under this Agreement, except that if the Fund or any
Portfolio adopts and implements a plan pursuant to Rule 12b-1 to
finance distribution expenses, then the Underwriter may make
payments to the Company or to the underwriter for the Contracts
if and in amounts agreed to by the Underwriter in writing.
3.2(e) All expenses, including expenses to be borne by the Fund
pursuant to Section 3.2 hereof, incident to performance by the
Fund under this Agreement shall be paid by the Fund. The Fund
shall see to it that all its shares are registered and authorized
for issuance in accordance with applicable federal law and, if
and to the extent deemed advisable by the Fund, in accordance
with applicable state laws prior to their sale. The Fund shall
bear the expenses for the cost of registration and qualification
of the Fund's shares.
3.3. The Fund's statement of additional information shall be
obtainable from the Fund, the Underwriter, the Company or such
other person as the Fund may designate.
3.4. If and to the extent required by law the Company shall
distribute all proxy material furnished by the Fund to Contract
Owners to whom voting privileges are required to be extended and
shall:
(i) solicit voting instructions from Contract owners;
(ii) vote the Fund shares in accordance with
instructions received from Contract owners; and
(iii) vote Fund shares for which no instructions have
been received in the same proportion as Fund shares of such
Portfolio for which instructions have been received,
so long as and to the extent that the Securities and
Exchange Commission continues to interpret the 1940 Act to
require pass-through voting privileges for variable contract
owners. The Company reserves the right to vote Fund shares held
in any segregated asset account in its own right, to the extent
permitted by law. The Fund and the Company shall follow the
procedures, and shall have the corresponding responsibilities,
for the handling of proxy and voting instruction solicitations,
as set forth in Schedule C attached hereto and incorporated
herein by reference. Participating Insurance Companies shall be
responsible for ensuring that each of their separate accounts
participating in the Fund calculates voting privileges in a
manner consistent with the standards set forth on Schedule C,
which standards will also be provided to the other Participating
Insurance Companies.
3.5. The Fund will comply with all provisions of the 1940 Act
requiring voting by shareholders, and in particular the Fund will
either provide for annual meetings (except insofar as the
Securities and Exchange Commission may interpret Section 16 not
to require such meetings) or comply with Section 16(c) of the
1940 Act (although the Fund is not one of the trusts described in
Section 16(c) of that Act) as well as with Sections 16(a) and, if
and when applicable, 16(b). Further, the Fund will act in
accordance with the Securities and Exchange Commission's
interpretation of the requirements of Section 16(a) with respect
to periodic elections of directors and with whatever rules the
Commission may promulgate with respect thereto."
3. Except as amended hereby, the Agreement is hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto execute this Amendment No. 3 as of
the date first written above.
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
on behalf of itself and each of its Accounts
named in Schedule A to the Agreement,
as amended from time to time
By: __________________________________
AMERICAN GENERAL SECURITIES INCORPORATED
By: __________________________________
F. Xxxx Xxxxxx, Xx.
President
XXX XXXXXX LIFE INVESTMENT TRUST
By: __________________________________
Xxxxxx X. XxXxxxxxx
President
XXX XXXXXX FUNDS INC.
By: __________________________________
Xxxxxxx X. Xxxxxxx
First Vice President
XXX XXXXXX ASSET MANAGEMENT INC.
By: __________________________________
Xxxxxx X. XxXxxxxxx
President
SCHEDULE A
SEPARATE ACCOUNTS AND CONTRACTS
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Name of Separate Account and Form Numbers and Names of
Date Established by Board of Directors Contracts Funded by Separate Account
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The United States Life Insurance Company Contract Form Numbers:
in the City of New York ----------------------
Separate Account USL VA-R 98033N
Established: August 8, 1997
Name of Contract:
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Generations Combination Fixed and
Variable Deferred Annuity Certificate
The United States Life Insurance Company
in the City of New York
Separate Account USL VL-R Contract Form Numbers:
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Established: August 8, 1997 97600N
Name of Contract:
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Platinum InvestorFlexible Payment
Variable Life Insurance Policied
