AMENDMENT NO. 2 TO
PARTICIPATION AGREEMENT
WHEREAS, AIM VARIABLE INSURANCE FUNDS, A I M DISTRIBUTORS, INC, GE CAPITAL
LIFE ASSURANCE COMPANY OF NEW YORK on behalf of itself and its separate accounts
and CAPITAL BROKERAGE CORPORATION have previously entered into a Participation
Agreement dated March 2, 2003 (the "Agreement");
WHEREAS, effective JANUARY 1, 2006, GE CAPITAL LIFE ASSURANCE COMPANY OF
NEW YORK changed its name to GENWORTH LIFE INSURANCE COMPANY OF NEW YORK;
WHEREAS, effective May 23, 2005, the SEC adopted Rule 22c-2 under the 1940
Act which requires every mutual fund (or on AVIF's behalf, the principal
underwriter or transfer agent) to enter into a written agreement with each
financial intermediary who sells shares or otherwise maintains accounts which
hold shares of AVIF for the benefit of a shareholder.
WHEREAS, all terms not defined in this Amendment shall have the same
meaning as ascribed to them in the Agreement.
NOW, THEREFORE, the premises considered the parties agree as follows:
1. All references throughout the Agreement to GE Capital Life Assurance
Company of New York shall be changed to Genworth Life Insurance
Company of New York.
2. Schedule A to the Agreement is replaced in its entirety with the
attached Amended and Restated Schedule A, dated February 27, 2007.
3. The following new Section 2.6 is added to the Agreement:
2.6 CONTROL OF EXCESSIVE SHORT-TERM TRADING
(a) LIFE COMPANY acknowledges that AVIF has adopted policies and procedures
reasonably designed to prevent frequent or excessive purchases, exchanges and
redemptions of Fund Shares in quantities great enough to disrupt orderly
management of the corresponding Fund's investment portfolio. Disclosure
pertaining to these policies is contained in the current prospectus for the
Fund, as currently required by applicable federal securities law.
(b) AVIF acknowledges that LIFE COMPANY, on behalf of its Account, has
adopted policies and procedures reasonably designed to detect and deter frequent
transfers of Contract value among the subaccounts of the Account including those
investing in the Funds which are available as investment options under the
Contracts. These policies and procedures are described in the current
prospectuses of the Account through which the Contracts are offered.
(c) LIFE COMPANY will cooperate with AIM's requests in taking steps to
deter and detect such transfers by Contract owners. In connection therewith, and
in compliance with Rule 22c-2 under the 1940 Act, LIFE COMPANY will provide AIM,
upon AIM's request, with the taxpayer identification number ("TIN"), if known,
of any or all Contract owners and the amount, date, name or other identifier of
any investment professional(s) associated with the Contract owner(s) (if known),
and transaction type (purchase or redemption) of every purchase or redemption of
shares of AVIF held through an Account maintained by LIFE COMPANY during the
period covered by the request.
(i) Requests made pursuant to this Section 2.6(c) must set forth a
specific time period, not to exceed ninety (90) days from the date of
the request, for which the transaction is sought. AIM may request
transaction information older than ninety (90) days from the date of
the request as it deems necessary to investigate compliance with
policies established by AVIF for the purpose of eliminating or
reducing any dilution of the value of the outstanding shares issued by
AVIF.
(ii) If requested by AIM, LIFE COMPANY shall provide the information
specified above with respect to each account for each trading day.
(iii) LIFE COMPANY agrees to transmit the requested information that
is on its books and records to AIM or its designee promptly, but in
any event not later than five (5) business days, after receipt of a
request. If the requested information is not on LIFE COMPANY's books
and records, LIFE COMPANY agrees to: (A) provide or arrange to provide
to AIM the requested information from Contract owners who hold an
account with an indirect intermediary; or (B) if directed by AIM,
block further purchases of AVIF shares from such indirect
intermediary. In such instance, LIFE COMPANY agrees to inform AIM
whether it plans to perform (A) or (B). Responses required by this
Paragraph must be communicated in writing and in a format mutually
agreed upon by LIFE COMPANY and AIM. To the extent practicable, the
format for any transaction information provided to AIM should be
consistent with the NSCC Standardized Data Reporting Format. For
purposes of this provision, the term indirect intermediary has the
same meaning as in Rule 22c-2 under the 1940 Act.
(iv) AVIF and AIM agree not to use the information received for
marketing or any other similar purpose without the prior written
consent of the Life Company.
(v) LIFE COMPANY agrees to execute written instructions from AIM to
restrict or prohibit further purchases of AVIF shares as directed by a
Contract owner that has been identified by AIM as having engaged in
transactions of AVIF's shares that violate policies established by
AVIF for
the purpose of eliminating or reducing any dilution of the value of
the outstanding shares issued by AVIF.
(vi) Instructions submitted by AIM to LIFE COMPANY, pursuant to this
Section 2.6(c) must include the TIN, if known, and the specific
restriction(s) to be executed. If the TIN 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.
(vii) LIFE COMPANY agrees to execute institutions received by LIFE
COMPANY from AIM, pursuant to this Section 2.6(c) as soon as
reasonably practicable, but not later than five (5) business days
after receipt of the instructions by LIFE COMPANY. LIFE COMPANY agrees
to provide AIM with written confirmation that the instructions have
been executed. LIFE COMPANY agrees to provide this written
confirmation as soon as reasonably practicable, but in no event, later
than ten (10) business days after the instructions have been executed.
(Signatures on Next Page)
Agreed and Executed:
AIM VARIABLE INSURANCE FUNDS
By: /s/ Xxxx X. Xxxx
------------------------------------
Name: Xxxx X. Xxxx
Title: Senior Vice President
Date:
--------------------------
A I M DISTRIBUTORS, INC.
By: /s/ Xxxx X. Needles
------------------------------------
Name: Xxxx X. Needles
Title: President
Date:
--------------------------
GENWORTH LIFE INSURANCE COMPANY OF
NEW YORK
By: /s/ Xxxxxxxx X. Stiff
------------------------------------
Name: Xxxxxxxx X. Stiff
Title: Senior Vice President
Date:
--------------------------
CAPITAL BROKERAGE CORPORATION
By: /s/ Xxxxxxxx X. Stiff
------------------------------------
Name: Xxxxxxxx X. Stiff
Title: Senior Vice President
Date:
--------------------------
Amended and Restated
Schedule A to
Fund Participation Agreement
February 27, 2007
FUNDS AVAILABLE UNDER THE CONTRACTS
AIM VARIABLE INSURANCE FUNDS
AIM V.I. Basic Value Fund - Series II shares
AIM V.I. Capital Appreciation Fund - Series I shares
AIM V.I. Core Equity Fund - Series I shares
AIM V.I. Global Real Estate Fund - Series II shares
AIM V.I. International Growth Fund - Series II shares
AIM V.I. Large Cap Growth Fund - Series I shares
SEPARATE ACCOUNTS UTILIZING THE FUNDS
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
RetireReady Accumulator NY Variable Life Insurance
Foundation NY Variable Annuity
RetireReady Bonus NY Variable Annuity
RetireReady Choice NY Variable Annuity
RetireReady Selections NY Variable Annuity
