EXHIBIT (h)(10)(a)
FUND/SERV AMENDMENT TO FUND PARTICIPATION AGREEMENT
This Fund/SERV Amendment (the "Amendment") to Fund Participation Agreement
is made effective as of the date of execution by and between The United States
Life Insurance Company in the City of New York (the "Insurance Company") and X.
X. Xxxxxx Series Trust II (the `Trust") on behalf of itself and each of its
series (each a "Fund", collectively, the "Funds").
BACKGROUND INFORMATION
1. The Insurance Company and the Trust are parties to a Fund Participation
Agreement made effective as of October 2, 2000 (the "Participation
Agreement"). The Participation Agreement permits the Insurance Company to
utilize the Trust as an investment vehicle for certain variable insurance
products.
2. The Insurance Company and the Trust are members of the National Securities
Clearing Corporation ("NSCC") or otherwise have access to the NSCC's
Fund/SERV system. The Fund/SERV system permits the transmission of
shareholder trade data as well as trade settlement between the Insurance
Company and the Trust.
3. Article III of the Participation Agreement contains provisions governing
purchases and sales of shares of the Trust by the Insurance Company for the
Separate Accounts governed by the Participation Agreement. The parties
desire to supplement the provisions of Article III of the Participation
Agreement to permit the purchase and sale of shares of the Trust
electronically through the Fund/SERV system.
STATEMENT OF AGREEMENT
The parties hereby acknowledge the accuracy of the foregoing Background
Information and hereby agree to amend Article III of the Participation Agreement
to add the following provisions:
"3.13. Transactions Subject to Fund/SERV. On each business day that the New
York Stock Exchange is open for business on which the Portfolios determine their
per share net asset values ("Business Day"), the Trust or its designee shall
accept, and effect changes in the Trust's records upon receipt of purchase and
redemption instructions from the Insurance Company electronically through
Fund/SERV ("Instructions") without supporting documentation from the Account on
whose behalf the Insurance Company is acting. On each Business Day, the Trust or
its designee shall accept for processing any Instructions from the Insurance
Company and shall process such Instructions in a timely manner. Notwithstanding
the foregoing, nothing in this Amendment shall be construed as permitting the
Insurance Company to establish new accounts through Fund/SERV; it being
understood that any new accounts shall be established in accordance with the
Participation Agreement and after submission of a written application to the
Trust.
3.14. Performance of Duties. The Trust or its designee shall perform any
and all duties, functions, procedures and responsibilities assigned to it under
this Amendment and as otherwise
established by the NSCC. The Trust or its designee shall maintain facilities,
equipment and skilled personnel sufficient to perform the foregoing activities
and to otherwise comply with the terms of this Amendment. The Trust or its
designee shall conduct each of the foregoing activities in a competent manner
and in compliance with (a) all applicable laws, rules and regulations, including
NSCC rules and procedures relating to Fund/SERV; (b) the then current prospectus
and statement of additional information of the portfolios; and (c) any provision
relating to Fund/SERV in any agreement between the Trust and its agent that
would affect the Trust's duties and obligations pursuant to this Amendment.
3.15. Accuracy of Information, Transmissions Through, and Access to
Fund/SERV. Confirmed trades and any other information provided by the Trust or
its designee to the Insurance Company through Fund/SERV and pursuant to this
Amendment shall be accurate, complete, and in the format prescribed by the NSCC.
The Trust or its designee shall adopt, implement and maintain procedures
reasonably designed to ensure the accuracy of all transmissions through
Fund/SERV and to limit the access to, and the inputting of data into, Fund/SERV
to persons specifically authorized by the Trust or its designee.
3.16. Transactions Subject to Fund/SERV. The Insurance Company certifies
that all instructions delivered to the Trust or its designee on any Business Day
shall have been received by the Insurance Company from the Separate Account
based on instructions from Contractholders received by the close of trading
(currently 4:00 p.m. New York time) on the New York Stock Exchange (the "Close
of Trading") on such Business Day and that any instructions received by the
Insurance Company after the Close of Trading on any given Business Day will be
transmitted to the Trust or its designee on the next Business Day. The Insurance
Company further certifies that all such Instructions received by it from the
Separate Account based on instructions from Contractholders by the Close of
Trading on any Business Day will be delivered to the Trust or its designee on
such Business Day.
3.17. Performance of Duties. The Insurance Company shall perform any and
all duties, functions, procedures and responsibilities assigned to it under this
Amendment and as otherwise established by the NSCC. The Insurance Company shall
maintain facilities, equipment and skilled personnel sufficient to perform the
foregoing activities and to otherwise comply with the terms of this Amendment.
The Insurance Company shall conduct each of the forgoing activities in a
competent manner and in compliance with (a) all applicable laws, rules and
regulations, including NSCC rules and procedures relating to Fund/SERV, and; (b)
the then current prospectuses and statements of additional information of the
portfolios and the Contracts.
3.18. Accuracy of Information, Transmissions Through, and Access to
Fund/SERV. Trade and, if applicable, broker/dealer information provided by the
Insurance Company to the Trust or its designee through Fund/SERV and pursuant to
this Amendment shall be accurate, complete and, in the format prescribed by the
NSCC. All instructions by the Insurance Company for each Fund/SERV transaction
shall be true and correct and will have been duly authorized. The Insurance
Company shall adopt, implement and maintain procedures reasonably designed to
ensure the accuracy of all transmissions through Fund/SERV and to limit the
access to, and the inputting of data into, Fund/SERV to persons specifically
authorized by the Insurance Company.
Page 2 of 4
3.19. Information Relating to Fund/SERV Transactions. For each Fund/SERV
transaction, the Insurance Company shall provide the Trust and its designee with
all information necessary or appropriate to establish and maintain each
Fund/SERV transaction (and any subsequent changes to such information) which the
Insurance Company hereby certifies is and shall remain true and correct. The
Insurance Company shall maintain documents required by the Trust or by
applicable law, rules or regulations to effect Fund/SERV transactions.
3.20. As-Of Transactions. Processing errors which result from any delay or
error caused by the Insurance Company may be adjusted through Fund/SERV by the
Insurance Company by the necessary transactions on an as-of basis and the cost
to the Trust and its designee of such transactions shall be borne by the
Insurance Company; provided however, prior authorization must be obtained from
the Trust if the transaction is back dated more than five days or to a previous
calendar year.
3.21. Trade Confirmation. Any information provided by the Trust or its
designee to the Insurance Company electronically through Fund/SERV and pursuant
to this Amendment, shall satisfy the delivery obligations as outlined by SEC
Rule 10b-10 and, as such, the Trust and its designee have the informed consent
of the Insurance Company to suppress the delivery of this information using
paper-media. The Insurance Company will promptly verify accuracy of
confirmations of transactions and records received by the Insurance Company
through Fund/SERV.
SETTLEMENT AND OVERPAYMENT
3.22. Settlement. All settlement of payments with respect to transactions
effected through the Fund/SERV system shall be made as provided in NSCC rules
and procedures relating to Fund/SERV.
3.23. Overpayments to the Insurance Company. In the event any overpayment
is made to the Insurance Company by the Trust, the Insurance Company shall
promptly repay such overpayment to the Trust after the Insurance Company
receives notice of such overpayment.
3.24. Overpayments to the Trust. In the event any overpayment is made to
the Trust by the Insurance Company, the Trust or its designee shall promptly
repay such overpayment to the Insurance Company after the Trust or its designee
receives notice of such overpayment.
CONFLICTING AGREEMENTS
3.25. Any understanding between the Insurance Company and the Trust
relating to Fund/SERV that is inconsistent with this Amendment shall be null and
void. Nothing contained in this Amendment, however, shall be construed to limit
or restrict each Party's compliance with any law, regulation or order to which
the Party is subject or to prevent the Parties from amending the Participation
Agreement by agreeing to additional duties, obligations, representations,
warranties and/or higher standards of care with respect thereto. Except as
otherwise set forth herein, the Participation Agreement shall remain unchanged
in full force and effect and the Insurance Company may continue to effect
transactions for the Separate Accounts in accordance with the Participation
Agreement."
Page 3 of 4
NOTICES
ARTICLE XII of the Participation Agreement is hereby amended by deleting
the address to the Fund adding the following address for purposes of sending
notices to the Fund:
"Fund:
X.X. Xxxxxx Series Trust II
c/o JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Legal-Funds"
IN WITNESS WHEREOF, the undersigned have executed this Amendment by their
duly authorized officers.
THE UNITED STATES LIFE INSURANCE COMPANY IN THE CITY OF NEW YORK
By: Attest:
--------------------------------- --------------------------------
Title: Name:
------------------------------ ----------------------------------
Date: Title:
------------------------------- ---------------------------------
Date:
----------------------------------
X.X. XXXXXX SERIES TRUST II
By:
---------------------------------
Title:
------------------------------
Date:
-------------------------------
Page 4 of 4
