EXHIBIT (8 )(b)(ii)
AMENDMENT NUMBER 2 TO
PARTICIPATION AGREEMEN
AMONG MORGAN STANLEY UNIVERSAL FUNDS, INC.,
MORGAN STANLEY DEAN WITTER INVESTMENT MANAGEMENT INC.,
MILLER ANDERSON & SHERRERD, LLP,
VAN KAMPEN FUNDS, INC.,
THE UNITED STATES LIFE INSURANCE COMPANY IN THE
CITY OF NEW YORK, AND
AMERICAN GENERAL SECURITIES INCORPORATED
This Amendment No. 2 ("Amendment No. 2"), executed as of the ____ day
of _______, 2001 to the Participation Agreement dated as of December 1, 1998, by
and among The United States Life Insurance Company in the City of New York (the
"Company") a New York corporation, on its own behalf and on behalf of each
separate account of the Company set forth on Schedule B as may be amended from
time to time (each such account hereinafter referred to as the "Account"),
American General Securities Incorporated ("AGSI"), a Texas corporation, and
Morgan Stanley Universal Funds, Inc. (the "Fund"), a Maryland corporation, and
Morgan Stanley Dean Witter Investment Management Inc. and Miller Anderson &
Sherrerd, LLP (collectively, the "Advisers" and individually the "Adviser"), a
Delaware corporation and a Pennsylvania limited liability partnership,
respectively. All capitalized terms not otherwise defined in this Amendment,
shall have the same meaning as described in the Agreement.
WHEREAS, the parties desire to amend the Agreement to (i) add to
Schedule B of the Agreement the Contracts of the Company relating to the
Company's Platinum Investor Survivor Flexible Premium Variable Life Insurance
policies, Form 99206N ("Platinum Investor Survivor") and (ii) solely to the
extent the Agreement relates to Platinum Investor Survivor, amend the provisions
of Article III of the Agreement as described below.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants herein contained, and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto agree as follows:
1. Schedule B to the Agreement, a revised copy of which is
attached hereto, is hereby amended to add Platinum Investor
Survivor.
2. Solely to the extent the Agreement relates to Platinum
Investor Survivor, Article III of the Agreement is hereby deleted
and replaced with the following:
"ARTICLE III. Prospectuses, Reports to Shareholders
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and Proxy Statements; Voting
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3.1. The Fund shall provide the Company with as
many printed copies of the Fund's current prospectus
and statement of additional information as the Company
may reasonably request. If requested by the Company
in lieu of providing printed copies the Fund shall
provide camera-ready film or computer diskettes
containing the Fund's prospectus and statement of
additional information, and such other assistance as
is reasonably necessary in order for the Company once
each year (or more frequently if the prospectus
and/or statement of additional information for the
Fund is amended during the year) to have the
prospectus for the Contracts and the Fund's
prospectus printed together in one document or
separately. The Company may elect to print the Fund's
prospectus and/or its statement of additional
information in combination with other fund companies'
prospectuses and statements of additional
information.
3.2(a). Except as otherwise provided in this Section
3.2., all expenses of preparing, setting in type and
printing and distributing Fund prospectuses and
statements of additional information shall be the
expense of the Company. For prospectuses and
statements of additional information provided by the
Company to its existing owners of Contracts in order
to update disclosure as required by the 1933 Act
and/or the 1940 Act, the cost of setting in type,
printing and distributing shall be borne by the Fund.
If the Company chooses to receive camera-ready film
or computer diskettes in lieu of receiving printed
copies of the Fund's prospectus and/or statement of
additional information, the Fund shall bear the cost
of typesetting to provide the Fund's prospectus
and/or statement of additional information to the
Company in the format in which the Fund is accustomed
to formatting prospectuses and statements of
additional information, respectively, and the Company
shall bear the expense of adjusting or changing the
format to conform with any of its prospectuses and/or
statements of additional information. In such event,
the Fund will reimburse the Company in an amount
equal to the product of x and y where x is the number
of such prospectuses distributed to owners of the
Contracts, and y is the Fund's per unit cost of
printing the Fund's prospectuses. The same procedures
shall be followed with respect to the Fund's
statement of additional information. The Fund shall
not pay any costs of typesetting, printing and
distributing the Fund's prospectus and/or statement
of additional information to prospective Contract
owners.
3.2(b). The Fund, at its expense, shall provide the
Company with copies of its proxy statements, reports
to shareholders, and other communications (except for
prospectuses and statements of additional
information, which are covered in Section 3.2(a)
above) to shareholders in such quantity as the
Company shall reasonably require for distributing to
Contract owners. The Fund shall not pay any costs of
distributing such proxy-related material, reports to
shareholders, and other communications to prospective
Contract owners.
3.2(c). The Company agrees to provide the Fund or its
designee with such information as may be reasonably
requested by the Fund to assure that the Fund's
expenses do not include the cost of typesetting,
printing or distributing any of the foregoing
documents other than those actually distributed to
existing Contract owners.
3.2(d) The Fund shall pay no fee or other
compensation to the Company under this Agreement,
except that if the Fund or any Portfolio adopts and
implements a plan pursuant to Rule 12b-1 to finance
distribution expenses, then the Underwriter may make
payments to the Company or to the underwriter for the
Contracts if and in amounts agreed to by the
Underwriter in writing.
3.2(e) All expenses, including expenses to be borne
by the Fund pursuant to Section 3.2 hereof, incident
to performance by the Fund under this Agreement shall
be paid by the Fund. The Fund shall see to it that
all its shares are registered and authorized for
issuance in accordance with applicable federal law
and, if and to the extent deemed advisable by the
Fund, in accordance with applicable state laws prior
to their sale. The Fund shall bear the expenses for
the cost of registration and qualification of the
Fund's shares.
3.3. The Fund's statement of additional
information shall be obtainable from the Fund, the
Underwriter, the Company or such other person as the
Fund may designate.
3.4. If and to the extent required by law the
Company shall distribute all proxy material furnished
by the Fund to Contract Owners to whom voting
privileges are required to be extended and shall:
(i) solicit voting instructions from
Contract owners;
(ii) vote the Fund shares in accordance
with instructions received from Contract owners; and
(iii) vote Fund shares for which no
instructions have been received in the same
proportion as Fund shares of such Portfolio for which
instructions have been received,
so long as and to the extent that the
Securities and Exchange Commission continues to
interpret the 1940 Act to require pass-through voting
privileges for variable contract owners. The Company
reserves the right to vote Fund shares held in any
segregated asset account in its own right, to the
extent permitted by law. The Fund and the Company
shall follow the procedures, and shall have the
corresponding responsibilities, for the handling of
proxy and voting instruction solicitations, as set
forth in Schedule C attached hereto and incorporated
herein by reference. Participating Insurance
Companies shall be responsible for ensuring that each
of their separate accounts participating in the Fund
calculates voting privileges in a manner consistent
with the standards set forth on Schedule C, which
standards will also be provided to the other
Participating Insurance Companies.
3.5. The Fund will comply with all provisions of
the 1940 Act requiring voting by shareholders, and in
particular the Fund will either provide for annual
meetings (except insofar as the Securities and
Exchange Commission may interpret Section 16 not to
require such meetings) or comply with Section 16(c)
of the 1940 Act (although the Fund is not one of the
trusts described in Section 16(c) of that Act) as
well as with Sections 16(a) and, if and when
applicable, 16(b). Further, the Fund will act in
accordance with the Securities and Exchange
Commission's interpretation of the requirements of
Section 16(a) with respect to periodic elections of
directors and with whatever rules the Commission may
promulgate with respect thereto."
3. Except as amended hereby, the Agreement is hereby ratified and
confirmed in all respects.
IN WITNESS WHEREOF, the parties hereto execute this Amendment No. 2 as of the
date first written above.
THE UNITED STATES LIFE INSURANCE COMPANY
IN THE CITY OF NEW YORK
on behalf of itself and each of its Accounts
named in Schedule B to the Agreement,
as amended from time to time
By: ____________________________________
AMERICAN GENERAL SECURITIES INCORPORATED
By: ____________________________________
MORGAN STANLEY DEAN WITTER INVESTMENT MANAGEMENT INC.
BY: _____________________________________
MORGAN STANLEY DEAN WITTER UNIVERSAL FUNDS, INC.
By: _____________________________________
MILLER ANDERSON & SHERRERD, LLP
By: _____________________________________
VAN KAMPEN FUNDS, INC.
By: _____________________________________
SCHEDULE B
SEPARATE ACCOUNTS AND CONTRACTS
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Name of Separate Account and Form Numbers and Names of Certificates
Date Established by Board of Directors Funded by Separate Account
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The United States Life Insurance Certificate Form No.:
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Company in the City of New York 98033N
Separate Account USL VA-R
Established: August 8, 1997
Name of Contract:
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Generations Combination Fixed and
Variable Annuity Certificate
The United States Life Insurance Certificate Form No.:
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Company in the City of New York 97600N
Separate Account USL VL-R
Established: August 8, 1997 Name of Contract:
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Platinum Investor Flexible Payment
Variable Life Insurance Policy
Certificate Form No.:
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99206N
Name of Contract:
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Platinum Investor Survivor
Flexible Premium Variable Life
Insurance Policy