EXHIBIT (h)(61)(a)
RULE 22c-2 AMENDMENT TO PARTICIPATION AGREEMENT
This RULE 22c-2 AMENDMENT dated as of April 16, 2007, by and among VANGUARD
VARIABLE INSURANCE FUND, THE VANGUARD GROUP, INC. ("Vanguard"), VANGUARD
MARKETING CORPORATION and THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY
OF NEW YORK (the "Company").
WITNESSETH:
WHEREAS, the parties hereto have entered into a Participation Agreement
dated as of October 2, 2000, as amended (the "Participation Agreement"),
pursuant to which Vanguard has agreed to make shares of certain portfolios of
Vanguard Variable Insurance Fund available for purchase and redemption by
certain separate accounts of the Company in connection with the Company's
variable insurance products; and
WHEREAS, the parties desire to modify the Participation Agreements in
certain respects in connection with Rule 22c-2 promulgated by the Securities
and Exchange Commission ("Rule 22c-2") under the Investment Company Act of
1940, as amended (the "1940 Act");
NOW, THEREFORE, in consideration of the mutual covenants contained herein,
the parties hereto, intending to be legally bound, hereby agree as follows:
1. Amendment of Participation Agreement. Unless otherwise defined in this
Amendment, capitalized terms in this Amendment shall have the meanings assigned
in the Participation Agreement. The Participation Agreement is hereby amended
as follows:
(a)By inserting a new Section 4.11 to read in full as follows:
"4.11 Certain Transactions and Restrictions.
(a) The Company agrees that it will provide, not later than ten
Business Days after receipt of a written request by the Sponsor on
behalf of the Fund, the Taxpayer Identification Number of any or all
Variable Insurance Product owner(s) and the amount, date, name of
investment professional associated with the Variable Insurance Product
owner (if any), and transaction type (purchase, redemption, transfer, or
exchange) of every purchase, redemption, transfer, or exchange
transaction by such Variable Insurance Product owner(s) in an Account
investing in the Fund through an account maintained by the Company
during the specific period covered by the request. Requests must set
forth a specific period, not to exceed 90 calendar days from the date of
the request, for which transaction information is sought. The Sponsor
may request transaction information older than 90 calendar days from the
date of the request as it deems necessary to investigate compliance with
policies established by the Fund for the purpose of eliminating or
reducing any dilution of the value of the outstanding shares issued by
the Fund. Information regarding transactions resulting from dollar cost
averaging programs, automatic rebalancing programs, periodic deduction
of fees, and redemptions pursuant to a systematic withdrawal plan will
not be included in the transaction information furnished to the Sponsor;
as a result, the transaction information provided for a certain period
will not be equal to the number of omnibus trades made during that same
period. Unless
required by applicable law, rule or regulation, the Sponsor and the Fund
agree not to use the information received under this Section for
marketing or any other purpose not related to (A) limiting or reducing
abusive trading in shares issued by the Fund or (B) collecting purchase
or redemption fees (if any).
(b) The Company agrees that it will execute written instructions from
the Sponsor on behalf of the Fund, including instructions to restrict or
prohibit purchases or exchanges of Fund shares in specific accounts or
by or on behalf of specific Variable Insurance Product owners identified
by the Fund as having engaged in transactions in Fund shares that
violate policies established by the Fund for the purpose of eliminating
or reducing any dilution of the value of the outstanding securities
issued by the Fund. Any such instructions by the Sponsor shall include
the Taxpayer Identification Number or equivalent identifying number of
the Variable Insurance Product owner(s) to which the instructions relate
and the specific restriction(s) to be executed. The Company agrees that
it will execute any such instructions as soon as reasonably practicable,
but not later than ten Business Days after receipt of the instructions
by the Company.
(c) Requests for transaction information or trading restrictions
under this Section must be directed to:
Xxxxxxxx Xxxxxx
Senior Counsel
AIG American General
0000 Xxxxx Xxxxxxx, X00-00
Xxxxxxx, XX 00000
(000) 000-0000
and to:
Xxxxxxx XxXxxxxx
Variable Products Accounting
AIG American General
0000-X Xxxxx Xxxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
(d) If the Company is aware of a possible delay in the fulfillment of
a request pursuant to this Section, the Company will provide notice to
Vanguard of the impending delay as soon as possible after the impending
delay is discovered."
(b)By inserting a new Section 11.11 to read in full as follows:
"In the event a party is unable to perform its obligations under the
terms of this Agreement because of acts of God, acts of terrorism,
strikes, equipment failure or damage reasonably beyond its control, or
other causes reasonably beyond its control, such party shall not be
liable for damages resulting from such failure to perform or otherwise
from such causes."
2. No Other Modifications. Except as specifically modified hereby, the
Participation Agreement remains in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Rule 22c-2 Amendment
to be executed on their behalf by their duly authorized officers as of the day
and year first above written.
VANGUARD VARIABLE INSURANCE FUND
By:
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Name:
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Title:
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THE VANGUARD GROUP, INC.
By:
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Name:
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Title:
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VANGUARD MARKETING CORPORATION
By:
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Name:
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Title:
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THE UNITED STATES LIFE INSURANCE
COMPANY IN THE CITY OF NEW YORK
By:
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Name:
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Title:
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