EXHIBIT (H)(6)(F)
AMENDMENT NO 5 TO
AMENDED AND RESTATED PARTICIPATION AGREEMENT
Franklin Xxxxxxxxx Variable Insurance Products Trust
Franklin/Xxxxxxxxx Distributors, Inc.
The United States Life Insurance Company in the City of New York
SunAmerica Capital Services, Inc.
(as successor to American General Equity Services Corporation)
Franklin Xxxxxxxxx Variable Insurance Products Trust (the "Trust"),
Franklin/Xxxxxxxxx Distributors, Inc. (the "Underwriter," and together with the
Trust, "we," "our," or "us"), The United States Life Insurance Company in the
City of New York, and SunAmerica Capital Services, Inc. (as successor to
American General Equity Services Corporation), your distributor (collectively,
the "Company" "you" or "your"), on your behalf and on behalf of certain
Accounts, (individually a "Party", collectively, the "Parties") have previously
entered into an Amended and Restated Participation Agreement dated September 5,
2003 and subsequently amended April 18, 2007, June 5, 2007, September 15, 2008,
December 31, 2010, and by consent dated June 28, 2013, respectively, (the
"Agreement"). The Parties now desire to amend the Agreement by this amendment
(the "Amendment"). Unless otherwise indicated, the terms defined in the
Agreement shall have the same meaning in this Amendment.
A M E N D M E N T
For good and valuable consideration, the receipt of which is hereby
acknowledged, the parties agree to amend the Agreement as follows:
1. Section 4.4 and Section 6 of the Agreement are amended and restated in
their entirety as set forth in Attachment A to this Amendment.
2. All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
IN WITNESS WHEREOF, each of the Parties has caused its duly authorized
officers to execute this Amendment effective as of September 16, 2013.
The Trust: FRANKLIN XXXXXXXXX VARIABLE INSURANCE
Only on behalf of PRODUCTS TRUST
each Portfolio listed
on Schedule C of By: _________________________________
the Agreement. Name:
Title:
The Underwriter: FRANKLIN/XXXXXXXXX DISTRIBUTORS, INC.
By: _________________________________
Name:
Title:
The Company: THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
By: _________________________________
Name:
Title:
[Corporate Seal] Attest: _____________________________
Name:
Title:
The Distributor: SUNAMERICA CAPITAL SERVICES, INC.
By: _________________________________
Name:
Title:
[Corporate Seal] Attest: _____________________________
Name:
Title:
ATTACHMENT A TO AMENDMENT TO PARTICIPATION AGREEMENT
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4. FEES, EXPENSES, PROSPECTUSES, PROXY MATERIALS AND REPORTS
4.4 "Designated Portfolio Document" means the following documents
we create with respect to each Portfolio and provide to you: (1) a Portfolio's
prospectus, including a summary prospectus (together, "Prospectus") if the Trust
chooses to create one for a Portfolio and we and you have signed the necessary
Participation Agreement Addendum; (2) its annual report to shareholders; (3) its
semi-annual report to shareholders; (4) amendments or supplements to any of the
foregoing if we direct you to deliver them to Contract owners; and (5) other
shareholder communications including, without limitation, proxy statements, if
we direct you to deliver them to Contract owners.
"Document Event" means (1) with respect to the Prospectus, the effectiveness of
a new annual post-effective amendment to the Prospectus to update financial
statements and make other disclosure changes or other post-effective amendment
to the Prospectus; (2) with respect to the Trust's annual report and semi-annual
reports to shareholders, the Trust's creation of reports intended to satisfy the
requirements of Section 30(a) of the 1940 Act applicable to the Trust; or (3)
with respect to amendments or supplements to any of the foregoing or other
shareholder communications, the Trust's creation of such documents and provision
of them to you.
"Printing Expenses" means expenses of the physical creation of Designated
Portfolio Documents, and not of their distribution to Contract owners
(including, without limitation, mailing and postage expenses) or the provision
of other services.
Each time there is a Document Event with respect to a Designated Portfolio
Document we shall, at your option, provide you with one of the following:
(1) one copy of the applicable Designated Portfolio Document for
each Contract owner with investments allocated to a subaccount
corresponding to the Portfolio before the date of the
Designated Portfolio Document (the "Contract Owner
Recipients"); or
(2) a copy suitable for reproduction of such Designated Portfolio
Document, in which case we will reimburse you, as provided
below under "Reimbursement Procedures," for Printing Expenses
you incur to create Designated Portfolio Documents in
sufficient quantity so that one such Designated Portfolio
Document is available for you to have delivered to each
Contract Owner Recipient.
Reimbursement Procedures
------------------------
Routine Reimbursements. Within six months following the
delivery date of the Designated Portfolio Document ("Delivery
Date"), we must receive your request for reimbursement and:
(i) a statement of the number of Contract Owner Recipients;
(ii) copies of all printing company invoices applicable to the
Printing Expenses that you request we reimburse; (iii) a
description of the methodology
used to determine the amount of reimbursement requested; and
(iv) your representation that the reimbursement request covers
only Printing Expenses covered by Section 4.4 of this
Agreement; the date we have received all these items is the
"Request Date." If we are able to validate your request based
on the information you provided as well as, among other things
we believe to be appropriate, our analysis of your previous
reimbursement requests, if applicable, and/or third party
industry benchmarking information, then we will reimburse you
within sixty days of the Request Date.
Reimbursements requiring additional information. If we cannot
validate your reimbursement request based on the information
you have provided to us and our analysis described in the
preceding paragraph, then we will request additional
information from you and work with you to validate your
request.
Expenses not subject to reimbursement. We will not reimburse
expenses related to: (1) creation or provision of any
Designated Portfolio Document for or to a person who is not a
Contract Owner Recipient of such document; (2) creation or
provision of any Designated Portfolio Document to a person
accompanying, or at the time of the delivery of, a
confirmation of their purchase of or exchange into subaccount
shares corresponding to a Portfolio; (3) posting any
Designated Portfolio Document on your website; or (4)
electronic filing of Designated Portfolio Documents or other
documents with the Securities and Exchange Commission (using
its XXXXX or other system).
Statement of Additional Information. We shall provide you with a copy of the
Trust's current statement of additional information, including any amendments or
supplements to it ("SAI), in a form suitable for reproduction , but we will not
pay Printing Expenses or other expenses with respect to the SAI.
6. SALES MATERIAL, INFORMATION AND TRADEMARKS
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6.1 "Sales Literature/ Promotional Material" includes, but is not
limited to, portions of the following that use any logo or other trademark
related to the Trust, or Underwriter or its affiliates, or refer to the Trust:
advertisements (such as material published or designed for use in a newspaper,
magazine or other periodical, radio, television, telephone or tape recording,
videotape display, signs or billboards, motion pictures, web-sites and other
electronic communications or other public media), sales literature (i.e., any
written communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market letters,
form letters, seminar texts, reprints or excerpts or any other advertisement,
sales literature or published article or electronic communication), educational
or training materials or other communications distributed or made generally
available to some or all agents or employees in any media, and disclosure
documents, shareholder reports and proxy materials. "Disclosure Documents" shall
mean each item of the following if prepared, approved or used by you and
relating to a Contract, an Account, or a Portfolio, and any amendments or
revisions to such document: registration statements, prospectuses, statements of
additional
information, private placement memoranda, retirement plan disclosure information
or other disclosure documents or similar information, as well as any
solicitation for voting instructions.
6.2 You may use the name of the Trust and trademarks and the logo
of the Underwriter in Sales Literature/Promotional Material as reasonably
necessary to carry out your performance and obligations under this Agreement
provided that you comply with the provisions of this Agreement. You agree to
abide by any reasonable use guidelines regarding use of such trademarks and
logos that we may give from time to time. You shall, as we may request from time
to time, promptly furnish, or cause to be furnished to us or our designee, one
complete copy of each item of the following: (i) Sales Literature/Promotional
Material prepared, approved or used by you; and (ii) Disclosure Documents.
6.3 You and your agents shall not give any information or make any
representations or statements on behalf of the Trust or concerning the Trust,
the Underwriter or an Adviser, other than information or representations
contained in and accurately derived from the registration statement or
prospectus for the Trust shares (as such registration statement and prospectus
may be amended or supplemented from time to time), annual and semi-annual
reports of the Trust, Trust-sponsored proxy statements, or in Sales
Literature/Promotional Material created by us for the Trust and provided by the
Trust or its designee to you, except as required by legal process or regulatory
authorities or with the written permission of the Trust or its designee.
6.4 You agree, represent and warrant that you are solely
responsible for any Sales Literature/ Promotional Material prepared by you and
that such material will: (a) conform to all requirements of any applicable laws
or regulations of any government or authorized agency having jurisdiction over
the offering or sale of shares of the Portfolios or Contracts; (b) be solely
based upon and not contrary to or inconsistent with the written information or
materials provided to you by us or a Portfolio, including the Trust's prospectus
and statement of additional information; and (c) be made available promptly to
us upon our request. You agree to file any Sales Literature/Promotional Material
prepared by you with FINRA, or other applicable legal or regulatory authority,
within the timeframes that may be required from time to time by FINRA or such
other legal or regulatory authority. Unless otherwise expressly agreed to in
writing, it is understood that we will neither review nor approve for use any
materials prepared by you and will not be materially involved in the preparation
of, or have any responsibility for, any such materials prepared by you. You are
not authorized to modify or translate any materials we have provided to you.
6.5 You shall promptly notify us of any written customer complaint
or notice of any regulatory investigation or proceeding received by you relating
to any Sales Literature/Promotional Material.
6.6 Other than naming you as a Trust shareholder, we shall not
give any information or make any representations or statements on behalf of you
or concerning you, the Accounts or the Contracts other than information or
representations contained in and accurately derived from Disclosure Documents
(as such Disclosure Documents may be amended or supplemented from time to time),
or in materials approved by you for distribution, including Sales Literature/
Promotional Material, except as required by legal process or regulatory
authorities or with your written permission.
6.7 Except as provided in Section 6.2, you shall not use any
designation comprised in whole or part of the names or marks "Franklin" or
"Xxxxxxxxx" or any logo or other trademark relating to the Trust or the
Underwriter without prior written consent, and upon termination of this
Agreement for any reason, you shall cease all use of any such name or xxxx as
soon as reasonably practicable.
6.8 You shall furnish to us ten (10) Business Days prior to its
first submission to the SEC or its staff, any request or filing for no-action
assurance or exemptive relief naming, pertaining to, or affecting, the Trust,
the Underwriter or any of the Portfolios.
6.9 You agree that any posting of Designated Portfolio Documents
on your website or use of Designated Portfolio Documents in any other electronic
format will result in the Designated Portfolio Documents: (i) appearing
identical to the hard copy printed version or .pdf format file provided to you
by us (except that you may reformat .pdf format prospectus files in order to
delete blank pages and to insert .pdf format prospectus supplement files
provided by us to you); (ii) being clearly associated with the particular
Contracts in which they are available and posted in close proximity to the
applicable Contract prospectuses; (iii) having no less prominence than
prospectuses of any other underlying funds available under the Contracts; (iv)
in compliance with any statutory prospectus delivery requirements and (v) being
used in an authorized manner. Notwithstanding the above, you understand and
agree that you are responsible for ensuring that participation in the
Portfolios, and any website posting, or other use, of the Designated Portfolio
Documents is in compliance with this Agreement and applicable state and federal
securities and insurance laws and regulations, including as they relate to paper
or electronic delivery or use of fund prospectuses. We reserve the right to
inspect and review your website if any Designated Portfolio Documents and/or
other Trust documents are posted on your website and you shall, upon our
reasonable request, provide us timely access to your website materials to
perform such inspection and review.
In addition, you agree to be solely responsible for maintaining and
updating the Designated Portfolio Documents' .pdf files and removing and/or
replacing promptly any outdated prospectuses and other documents, as necessary,
ensuring that any accompanying instructions by us, for using or stopping use,
are followed. You agree to designate and make available to us a person to act as
a single point of communication contact for these purposes. We are not
responsible for any additional costs or additional liabilities that may be
incurred as a result of your election to place the Designated Portfolio
Documents on your website. We reserve the right to revoke this authorization, at
any time and for any reason, although we may instead make our authorization
subject to new procedures.
6.10 Each of your and your distributor's registered
representatives, agents, independent contractors and employees, as applicable,
will have access to our websites at xxxxxxxxxxxxxxxxx.xxx, and such other URLs
through which we may permit you to conduct business concerning the Portfolios
from time to time (referred to collectively as the "Site") as provided herein:
(i) upon registration by such individual on a Site, (ii) if you cause a Site
Access Request Form (an "Access Form") to be signed by your authorized
supervisory personnel and submitted to us, as a Schedule to, and legally a part
of, this Agreement, or (iii) if you provide such individual with the necessary
access codes or other information necessary to access the Site through any
generic or firm-wide authorization we may grant you from time to time. Upon
receipt by us of a completed registration submitted by an individual through the
Site or a signed Access Form referencing such individual, we shall be entitled
to rely upon the representations contained therein as if you had made them
directly hereunder and we will issue a user identification, express number
and/or password (collectively, "Access Code"). Any person to whom we issue an
Access Code or to whom you provide the necessary Access Codes or other
information necessary to access the Site through any generic or firm-wide
authorization we may grant you from time to time shall be an "Authorized User."
We shall be entitled to assume that such person validly represents you and that
all instructions received from such person are authorized, in which case such
person will have access to the Site, including all services and information to
which you are authorized to access on the Site. All inquiries and actions
initiated by you (including your Authorized Users) are your responsibility, are
at your risk and are subject to our review and approval (which could cause a
delay in processing). You agree that we do not have a duty to question
information or instructions you (including Authorized Users) give to us under
this Agreement, and that we are entitled to treat as authorized, and act upon,
any such instructions and information you submit to us. You agree to take all
reasonable measures to prevent any individual other than an Authorized User from
obtaining access to the Site. You agree to inform us if you wish to restrict or
revoke the access of any individual Access Code. If you become aware of any loss
or theft or unauthorized use of any Access Code, you agree to contact us
immediately. You also agree to monitor your (including Authorized Users') use of
the Site to ensure the terms of this Agreement are followed. You also agree that
you will comply with all policies and agreements concerning Site usage,
including without limitation the Terms of Use Agreement(s) posted on the Site
("Site Terms"), as may be revised and reposted on the Site from time to time,
and those Site Terms (as in effect from time to time) are a part of this
Agreement. Your duties under this section are considered "services" required
under the terms of this Agreement. You acknowledge that the Site is transmitted
over the Internet on a reasonable efforts basis and we do not warrant or
guarantee their accuracy, timeliness, completeness, reliability or
non-infringement. Moreover, you acknowledge that the Site is provided for
informational purposes only, and is not intended to comply with any requirements
established by any regulatory or governmental agency.
