EXHIBIT (8)(c)
AMENDMENT NO. 4 TO
FUND PARTICIPATION AGREEMENT
This Amendment No. 4 to the Fund Participation Agreement ("Agreement")
dated December 2, 2002 between The United States Life Insurance Company in the
City of New York ("USL"), American Funds Insurance Series (the "Series") and
Capital Research and Management Company ("CRMC") is effective as of September 5,
2014. All capitalized terms used herein and not otherwise defined shall have the
meaning ascribed to such term in the Agreement.
WHEREAS, the parties desire to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter set forth,
and intending to be legally bound, the Agreement is hereby amended as follows:
1. The fourth recital is deleted in its entirety and replaced with the
following:
"WHEREAS, certain Funds will serve as the underlying investment
medium for the Contracts; and"
2. Section 6 is hereby deleted in its entirety and replaced by the
following:
6. The Series has made and agrees to make Class 2, Class 4, and Class P2
shares of the Funds that offer such share classes available to the
Contracts (except for the American Pathway II Contracts). The Series has
made and agrees to make Class 3 shares available solely to the Accounts
for the American Pathway II Contract and the parties agree that the
American Pathway II Contracts shall only have Class 3 shares available as
underlying investment options. USL agrees to give the Series and CRMC at
least 30 days' notice prior to adding any additional Funds or additional
share classes of any Funds as underlying investment options to the
Contracts. USL will be entitled to a Rule 12b-1 fee paid by the Series and
to be accrued daily and paid monthly at an annual rate of 0.25% of the
average daily net assets of the Class 2, Class 4, and Class P2 shares of
each Fund attributable to the Contracts with investments in Accounts
corresponding to the Class 2, Class 4, and Class P2 shares of each Fund
for as long as the Series' Plan of Distribution pursuant to Rule 12b-1
under the 1940 Act for each of Class 2, Class 4, and Class P2 shares
(each, a "12b-1 plan") remains in effect. USL will be entitled to a Rule
12b-1 fee paid by the Series and to be accrued daily and paid monthly at
an annual rate of 0.18% of the average daily net assets of the Class 3
shares of each Fund attributable to the American Pathway II Contracts with
investments in Accounts corresponding to the Class 3 shares of each Fund
for as long as the Series' Class 3 share 12b-1 plan remains in effect.
3. The following Sections 6b(i) and (ii) are added to the Agreement:
6b(i) During the term of this Agreement, Insurance Company shall perform
the
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administrative services ("Services") set forth on Exhibit A hereto (which
Exhibit A shall become part of the Agreement), as such exhibit may be
amended from time to time by mutual consent of the parties, in respect of
Accounts holding Class 4 Shares and/or Class P2 Shares of each Fund. In
consideration of Insurance Company performing the Services, the Series
agrees to pay Insurance Company an administrative services fee of 0.25% of
the average daily net asset value of all Class 4 Shares and Class P2
Shares of the Funds held by each Account, payable quarterly, in arrears
pursuant to an Insurance Administrative Services Plan adopted by the
Series. The Series shall pay all fees within forty-five (45) days
following the end of each calendar quarter for fees accrued during that
quarter. The fee will be calculated as the product of (a) the average
daily net asset value of all Class 4 Shares or Class P2 Shares, as
applicable, of the Funds held by each Account during the quarter; (b) the
number of days in the quarter; and (c) the quotient of 0.0025 divided by
365. CRMC will evaluate periodically Insurance Company's service levels,
including compliance with established NSCC guidelines, transaction errors,
compliance with the prospectus and complaints from Contract owners, in
determining whether to continue making payments under the Insurance
Administrative Services Plan. Insurance Company represents to the Series
and CRMC that it will not receive compensation for the Services from
Contract holder fees or any other source.
6b(ii) The Insurance Company, directly or through subcontractors
(including a designated affiliate), shall provide the certain services
described in this Agreement in respect of Class 2 and Class 3 shares on
behalf of American Funds Distributors, Inc., ("AFD"), American Funds
Service Company ("Transfer Agent") and the Funds in connection with the
sale and servicing of the Contracts. The services to be provided by the
Insurance Company to its Accounts include, (i) mailing and otherwise
making available to Contract holders, shareholder communications
including, without limitation, prospectuses, proxy materials, shareholder
reports, unaudited semi-annual and audited annual financial statements,
and other notices; (ii) handling general questions regarding the Funds
from Contract holders including, without limitation, advising as to
performance, yield being earned, dividends declared, and providing
assistance with other questions concerning the Funds; (iii) preparing and
mailing periodic account statements showing the total number of Account
units owned by the Contract holder in that account, the value of such
units, and purchases, redemptions, dividends, and distributions in the
account during the period covered by the statement; and (iv) preparing and
mailing IRS Form 1099-R, IRS Form W-2 and/or other IRS forms as required
by applicable Internal Revenue Service rules and regulations.
Administrative services to Contract holders shall be the responsibility of
the Insurance Company and shall not be the responsibility of AFD, Transfer
Agent or any of their affiliates.
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4. The following Section 35 is added to the Agreement:
35. USL may receive certain holdings information (the "Holdings
Information") related to the Funds on a daily, weekly, monthly or other
periodic basis from the Series, CRMC or one of their designees in order to
help evaluate the Funds for inclusion in the Contracts and to evaluate and
coordinate with USL's internal hedging program (the "Purpose"). USL agrees
that the Holdings Information is confidential and may only be used by USL
for the Purpose. USL agrees that it (a) will hold any and all Holdings
Information it obtains in strictest confidence; (b) may disclose or
provide access to its employees who have a need to know and may make
copies of Holdings Information only to the extent reasonably necessary to
carry out the Purpose; (c) currently has, and in the future will maintain
in effect and enforce, rules and policies to protect against access to or
use or disclosure of Holdings Information other than in accordance with
this Agreement, including without limitation written instruction to and
agreements with employees and agents who are bound by an obligation of
confidentiality no less stringent than set forth in this Agreement to
ensure that such employees and agents protect the confidentiality of
Holdings Information. Without limiting the foregoing, USL shall use at
least the same degree of care, but no less than reasonable care, to avoid
disclosure or use of this Holdings Information as it employs with respect
to its own confidential information of a like importance. USL expressly
will instruct its employees and agents not to disclose Holdings
Information to third parties, including without limitation customers,
subcontractors or consultants, and (d) will notify the Series and CRMC
immediately of any unauthorized disclosure or use, and will cooperate with
them in taking action to ensure that the Holdings Information is not used
by such receiving party. Notwithstanding anything to the contrary in this
Section 35, USL may use certain Holdings Information contained in fund
information sheets provided by CRMC, or an affiliate, (i.e. top 10 fund
securities holdings, sector holdings, etc.) in its marketing material. Any
such marketing material shall remain subject to any review requirements
set forth in this Agreement or the Business Agreement.
5. Schedule A and Schedule B are hereby amended and replaced with the
attached Schedule A and Schedule B.
6. Schedule C and Schedule D including all references to these
Schedules are hereby deleted in their entirety.
7. All other terms and provisions of the Agreement not amended herein
shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties have hereunto affixed their respective
authorized signatures, intending that this Amendment No. 6 be effective as
indicated hereinabove.
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK (on behalf of
itself and its Accounts)
By: /s/ Xxxxxx X. Xxxxxxxxxxx
--------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxxxx
Title: Executive Vice President, Individual Retirement
AMERICAN FUNDS INSURANCE SERIES
By: /s/
--------------------------------------------------
Name:
Title:
CAPITAL RESEARCH AND MANAGEMENT COMPANY
By: /s/
--------------------------------------------------
Name:
Title:
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SCHEDULE A
CONTRACTS
Registered Variable Annuities including, without limitation, the following:
Anchor Advisor
Polaris 401(k)
Polaris
Polaris II
Polaris II A-Class
Polaris II A-Class Platinum Series
Polaris II Platinum Series
Polaris Platinum
Polaris Platinum II
Polaris Platinum O-Series
Polaris Protector
Polaris Choice II
Polaris Advisor
American Pathway II
Polaris NY
Polaris II NY
Polaris II A-Class Platinum Series NY
Polaris Choice NY
Polaris Platinum O-Series NY
Polaris Select Investor
Registered Variable Universal Life Insurance Policies including, without
limitation, the following:
Income Advantage Select
Protection Advantage Select
Executive Advantage
Unregistered Variable Annuity Contracts and Variable Universal Life Insurance
Policies, including, without limitation, the following:
11GVUL0495 - Group Variable Universal Life Insurance Policy
11GVUL0197 - Group Variable Universal Life Insurance Policy
11PVUL0996 - Individual Variable Universal Life Insurance Policy
11FJVUL0798 - Joint & Last Survivor Variable Universal Life Insurance Policy
12PVUL1098X - Variable Rider to Individual Contract #52221 (7/91)
02056
05060
09065
10060
And other Contracts to which USL may make the Series available after notice to
CRMC and the Series.
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SCHEDULE B
ACCOUNTS
Registered Separate Accounts including, without limitation the following:
FS Variable Separate Account
Variable Annuity Account Four
Variable Annuity Account Seven
Separate Account VL-R
Separate Account II
Unregistered Separate Accounts including, without limitation the following:
Separate Account VL-U LIS
Separate Account IV
Separate Account 7
Separate Account 9
Separate Account 10
Separate Account 101
Separate Account 102
Separate Account 104
Separate Account 106
Separate Account 107
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EXHIBIT A
ADMINISTRATIVE SERVICES
1. Periodic Reconciliation. USL shall provide the Funds with sufficient
information to allow for the periodic reconciliation of outstanding units of USL
Accounts and shares of the Funds.
2. Record Maintenance. To facilitate the reconciliation activities described in
paragraph 1, USL shall maintain with respect to each Account holding the Funds'
Class 4 Shares or Class P2 Shares and each Contract owner for whom such shares
are beneficially owned the following records:
a. Number of shares;
b. Date, price and amount of purchases and redemptions (including
dividend reinvestments) and dates and amounts of dividends paid for
at least the current year to date;
c. Name and address and taxpayer identification numbers;
d. Records of distributions and dividend payments; and
e. Any transfers of shares.
3. Fund Information. USL shall respond to inquiries from Contract owners
regarding the Funds, including questions about the Funds' objectives and
investment strategies.
4. Shareholder Communications. USL shall provide for the delivery of certain
Fund-related materials as required by applicable law or as requested by
Contract owners. The Fund related materials shall consist of updated
prospectuses and any supplements and amendments thereto, statements of
additional information, annual and other periodic reports, proxy or information
statements and other appropriate shareholder communications. The Insurance
Company shall respond to inquiries from Contract owners relating to the services
provided by it and inquiries relating to the Funds.
5. Transactional Services. USL shall (a) communicate to the Funds' transfer
agent, purchase, redemption and exchange orders; and (b) communicate to the
Accounts and Contract owners, mergers, splits and other reorganization
activities of the Funds.
6. Other Information. USL shall provide to the Accounts and Contract owners such
other information as shall be required under applicable law and regulations.
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