File No. 812-15033

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

SECOND AMENDED AND RESTATED APPLICATION FOR AN ORDER OF APPROVAL PURSUANT TO SECTION 26(c) OF THE INVESTMENT COMPANY ACT OF 1940 AND AN ORDER OF EXEMPTION PURSUANT TO SECTION 17(b) OF THE INVESTMENT COMPANY ACT OF 1940 FROM SECTION 17(a) THEREOF

MUTUAL OF AMERICA LIFE INSURANCE COMPANY

MUTUAL OF AMERICA SEPARATE ACCOUNT NO. 2

MUTUAL OF AMERICA SEPARATE ACCOUNT NO. 3

WILTON REASSURANCE LIFE COMPANY OF NEW YORK

AMERICAN SEPARATE ACCOUNT NO. 2

AMERICAN SEPARATE ACCOUNT NO. 3

MUTUAL OF AMERICA VARIABLE INSURANCE PORTFOLIOS, INC.

MUTUAL OF AMERICA CAPITAL MANAGEMENT LLC

320 Park Avenue

New York, New York 10022-6839

Notice and Order to:

Scott H. Rothstein, Esq.

Mutual of America Life Insurance Company

320 Park Avenue

New York, New York 10022-6839

Communications and Copies of Notice and Order to:

Thomas E. Bisset, Esq.

Eversheds Sutherland (US) LLP

700 Sixth Street, NW, Suite 700

Washington, D.C. 20001-3980

Dated: September 27, 2019

UNITED STATES OF AMERICA

BEFORE THE

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 20549

In the Matter of:    

Mutual of America Life Insurance Company

Mutual of America Separate Account No. 2

Mutual of America Separate Account No. 3

Wilton Reassurance Life Company of New York

American Separate Account No. 2

American Separate Account No. 3

Mutual of America Variable Insurance Portfolios, Inc.

Mutual of America Capital Management LLC

320 Park Avenue

New York, New York 10022-6839

File No. 812-15033

SECOND AMENDED AND RESTATED APPLICATION FOR AN ORDER OF APPROVAL PURSUANT TO

SECTION 26(c) OF THE INVESTMENT COMPANY ACT OF 1940 AND AN ORDER OF EXEMPTION PURSUANT TO SECTION 17(b) OF THE INVESTMENT COMPANY ACT OF 1940 FROM SECTION 17(a) THEREOF

Mutual of America Life Insurance Company and Wilton Reassurance Life Company of New York (the “Companies”) and Mutual of America Separate Account No. 2, Mutual of America Separate Account No. 3, American Separate Account No. 2, and American Separate Account No. 3 (the “Separate Accounts,” and together with the Companies, the “Section 26 Applicants”) request pursuant to this application (this “Application”) that the Securities and Exchange Commission (the “Commission”) issue an order pursuant to Section 26(c) of the Investment Company Act of 1940, as amended (the “1940 Act”), approving the substitution¹ of shares of 27 investment portfolios (the “Existing Portfolios”) of Mutual of America Investment Corporation (“Investment Corporation I”) with shares of 26 investment portfolios (the “Replacement Portfolios”)² of Mutual of America Variable Insurance Portfolios, Inc. (“Investment Corporation II”) with respect to certain variable annuity insurance contracts (the “Non-Qualified Annuity Contracts”) and certain variable life insurance contracts (the “Life Insurance Contracts”), most of which are not issued in connection with retirement plans or individual retirement annuities under the Internal Revenue Code of 1986, as amended (the “Code”).³ The Contracts are funded through the Separate Accounts and administered by the Companies.

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The primary purpose of the Substitutions is to preserve the favorable tax treatment of the Non-Qualified Annuity Contracts and the Life Insurance Contracts under the Code. With the exception of Substitution No. 8, each Existing Portfolio and its corresponding Replacement Portfolio have identical investment objectives, strategies, and risks and substantially identical fee structures (with different expense ratios due to differences in net assets).⁴ With respect to Substitution No. 8, the Existing Portfolio and its corresponding Replacement Portfolio have substantially similar investment objectives, strategies, and risks, and the Replacement Portfolio has a lower expense ratio. The Portfolios are advised by the same investment adviser, Mutual of America Capital Management LLC (the “Adviser”). They also share a common board of directors (the “Board”). As such, the Substitutions will permit owners of the Non-Qualified Annuity Contracts (“Non-Qualified Annuity Contract Owners”) and owners of the Life Insurance Contracts (“Life Insurance Contract Owners”) to maintain the favorable tax treatment of their Non-Qualified Annuity and Life Insurance Contracts and continue their investments in substantially identical underlying funds (or a substantially similar underlying fund with respect to Substitution No. 8).

The Section 26 Applicants, Investment Corporation II, and the Adviser (collectively, the “Section 17 Applicants”)⁵ also request an order from the Commission pursuant to Section 17(b) of the 1940 Act exempting them from Section 17(a) of the 1940 Act to the extent necessary to permit them to carry out the Substitutions by redeeming securities issued by the Existing Portfolios wholly or partly in-kind and using the portfolio securities received from the Existing Portfolios to purchase securities issued by the corresponding Replacement Portfolios.

Mutual of America Life Insurance Company (“Mutual of America”) is a mutual life insurance company organized under the laws of the state of New York and is authorized to transact its business in 50 states and the District of Columbia. Mutual of America’s home office address is 320 Park Avenue, New York, New York 10022-6839.

Mutual of America was incorporated in 1945 as a non-profit retirement association to provide retirement and other benefits for non-profit organizations and their employees in the health and welfare field. In 1978, Mutual of America reorganized as a mutual life insurance company, and now serves for-profit organizations, not-for-profit organizations, their employees, and individuals.

Mutual of America provides group and individual life insurance, annuities, and related services for the pension, retirement, and long-range savings needs of organizations and their employees and individuals including variable annuity contracts and variable life insurance policies. As of May 31, 2019, Mutual of America had total assets, on a consolidated basis, of approximately $21.4 billion. Mutual of America is registered as a broker-dealer under the Securities Exchange Act of 1934 and as an investment adviser under the Investment Advisers Act of 1940 (the “Advisers Act”).

For purposes of the 1940 Act, Mutual of America is the “depositor” and “sponsor” of Mutual of America Separate Account No. 2 and Mutual of America Separate Account No. 3, as those terms have been interpreted by the Commission with respect to variable insurance separate accounts. Mutual of America, on its own behalf and on behalf of its Separate Accounts, proposes to exercise its contractual right to substitute underlying funds currently available under the Contracts for different underlying funds as proposed herein.

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Wilton Reassurance Life Company of New York (“Wilton”) is a life insurance company organized under New York law in 1955. As of March 31, 2019, Wilton had total admitted assets of approximately $879.4 million. Prior to March 16, 2001, The American Life Insurance Company of New York (“American Life”), which is now known as Wilton, was a wholly-owned subsidiary of a holding company that was, in turn, 100% owned by Mutual of America. On March 16, 2001, effective February 28, 2001, Mutual of America sold its holding company that owned American Life to Inviva, Inc. On September 27, 2006, Wilton Re, a Minnesota insurance company, acquired all of the issued and outstanding shares of American Life and changed its name to Wilton Reassurance Life Company of New York. In connection with the sale of American Life, Mutual of America retained full authority and responsibility to take all actions in regard to American Separate Account No. 2 and American Separate Account No. 3 under an agreement with American Life, and assumptively reinsured the variable contracts offered through those accounts.

Wilton is authorized to transact the business of life insurance, including annuities, in all fifty states, the Virgin Islands, and the District of Columbia. For purposes of the 1940 Act, Wilton is the “depositor” and “sponsor” of American Separate Account No. 2 and American Separate Account No. 3, as those terms have been interpreted by the Commission with respect to variable life insurance and variable annuity separate accounts. Wilton, on its own behalf and on behalf of its Separate Accounts, proposes to exercise its contractual right to substitute underlying funds currently available under the Contracts for different underlying funds as proposed herein.

Each Separate Account meets the definition of “separate account” as defined in Section 2(a)(37) of the 1940 Act and Rule 0-1(e) thereunder. The Separate Accounts are registered with the Commission under the 1940 Act as unit investment trusts. The table below lists the 1940 Act file number of each Separate Account:

The assets of the Separate Accounts support the Contracts and interests in the Separate Accounts offered through such Contracts. The Companies are the legal owners of the assets in their respective Separate Accounts. The assets of the Separate Accounts may not be chargeable with liabilities arising out of any other business of their respective Companies.

The Separate Accounts are segmented into subaccounts, and each subaccount invests in an underlying registered open-end management investment company or series thereof, such as each of the Existing Portfolios. Each subaccount’s income, gains, and losses, whether or not realized, are credited to or charged against the amounts allocated to that subaccount in accordance with the terms of the Contracts without regard to other income, gains, or losses of the other subaccounts or of the Companies.

The Contracts are individual and group flexible premium variable annuity and variable life insurance contracts. Each Contract is registered under the Securities Act of 1933, as amended (the “1933 Act”) on Form N-4 or Form N-6 (or, in the case of the variable life insurance contract supported by American Separate Account No. 3, on Form S-6). Each Contract has particular fees, charges, and investment options, as described in the Contracts’ respective prospectuses. The Contracts do not include guaranteed living benefit riders or features, nor any riders or features with investment restrictions.

While the variable annuity Contracts provide for the accumulation of values on a variable basis, fixed basis, or both during the accumulation period, such Contracts only provide settlement or annuity payment options on a fixed

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basis. Because only fixed annuity payment options are available under the variable annuity Contracts, the Substitutions will not affect any Contracts that have been annuitized. The Life Insurance Contracts provide for the accumulation of values on a variable basis, fixed basis, or both throughout the insured’s life, and for the payment of a death benefit upon the death of the insured.

For as long as a Life Insurance Contract remains in force or a variable annuity Contract has not yet been annuitized, a Contract Owner may transfer all or any part of the Contract value from one subaccount to another subaccount or to a fixed account. With the sole exception of certain limitations imposed by the Company to deter frequent trading activity, the Company does not limit the number of times that a Contract Owner can transfer among the subaccounts and the fixed account. The Companies do not impose charges on transfers among subaccounts and the fixed account.

Under each Contract, as well as in the prospectus for each Contract, the Companies reserve the right to substitute shares of one underlying fund for shares of another underlying fund.⁶

The table below lists the Contracts for which one or more underlying investment options will be substituted under the Substitutions. In addition, the table below also indicates whether each Contract has been “Great-Wested” (i.e., Contracts that are no longer offered for sale and for which their respective registration statements are effective but no longer updated in reliance on the relief provided in the Great-West Life Insurance Company no-action letter (pub. avail. Oct. 23, 1990)). The subset of Contracts that are Great-Wested are referred to herein as “Inactive Contracts,” and the subset of Contract Owners that own Inactive Contracts are referred to as “Inactive Contract Owners.”⁷ Contracts that have not been Great-Wested are referred to herein as “Active Contracts.” All of the Contracts issued by the American Separate Accounts are Inactive Contracts, and all of the Contracts issued by the Mutual of America Separate Accounts that are the subject of the Substitutions are Active Contracts.

The Substitutions will be performed only for the Non-Qualified Annuity Contracts and the Life Insurance Contracts. The Substitutions will not affect the Qualified Annuity Contracts.

The Company reserves the right, subject to compliance with applicable laws and regulations governing separate account operations, to:

The prospectus for each Contract contains the following, or substantially similar, disclosure:

We reserve the right to make certain changes to the structure and operation of the Subaccounts at our discretion and without your prior consent. We may add, delete, or substitute Subaccounts for all Contractholders or only for certain classes of Contractholders. New or substitute Subaccounts may have different fees and expenses, and may only be offered to certain classes of Contractholders. In making changes, we will comply with applicable state and federal law and will obtain the approval of Contractholders, if required.

Substitutions may be made with respect to existing investments or the investment of future purchase payments, or both. We may close Subaccounts to allocations of purchase payments or contract value, or both, at any time in our sole discretion. The underlying funds, which sell their shares to the Subaccounts pursuant to participation agreements, also may terminate these agreements and discontinue offering their shares to the Subaccounts. Substitutions might also occur if shares of an underlying fund should no longer be available, or if investment in any underlying fund’s shares should become inappropriate, in the judgment of our management, for the purposes of the contract, or for any other reason in our sole discretion and, if required, after obtaining any approval that may be required by law or regulation.

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TABLE I.D.

Investment Corporation I was formed on February 21, 1986 as a Maryland corporation. It is an open-end management investment company registered under the 1940 Act (File No. 811-05084), and its shares are registered under the 1933 Act (File No. 033-06486). Investment Corporation I issues separate classes (or series) of shares, each of which represents a separate portfolio of investments. There are currently 27 series of Investment Corporation I; they are the Existing Portfolios in this Application. Fifteen of the Existing Portfolios are funds-of-funds (the “Existing Funds of Funds”) that invest in shares of other Existing Portfolios (the “Existing Underlying Funds”) in accordance with Section 12(d)(1)(G) of the 1940 Act. The Existing Portfolios are currently insurance-dedicated funds that are available only as investment allocation options under variable insurance contracts issued by the Companies. However, as discussed in greater detail in this Application, Investment Corporation I intends to begin offering shares of its series directly to the general public through the retail market.

Investment Corporation II was formed on April 19, 2019 as a Maryland corporation. It is an open-end management investment company. Investment Corporation II issues separate classes (or series) of shares, each of which represents a separate portfolio of investments. There will be 26 series of Investment Corporation II; they are the Replacement Portfolios in this Application. Fifteen of the Replacement Portfolios are funds-of-funds (the “Replacement Funds of Funds”) that will invest in shares of other Replacement Portfolios (the “Replacement Underlying Funds”) in accordance with Section 12(d)(1)(G) of the 1940 Act. On June 13, 2019, Investment Corporation II filed a new registration statement on Form N-1A with the Commission to register as an investment company under the 1940 Act (File No. 811-23449) and to register shares of the Replacement Portfolios under the 1933 Act (File No. 333-232095). Investment Corporation II’s registration statement is not effective as of the date of this Application. The Substitutions will not be performed prior to the time that Investment Corporation II’s registration statement is declared effective by the Commission.

Investment Corporation II was formed for the purpose of performing the Substitutions. However, new series of Investment Corporation II may be established in the future, and the series of Investment Corporation II may be made available as investment allocation options under variable insurance contracts of the Companies other than the Non-Qualified Annuity Contracts and the Life Insurance Contracts.

The Adviser, a Delaware limited liability company and a registered investment adviser under the Advisers Act, serves as investment adviser for the Existing Portfolios and the Replacement Portfolios pursuant to investment advisory agreements with Investment Corporation I and Investment Corporation II, respectively. Subject to the oversight of the Board, the Adviser is responsible for providing all investment advisory and portfolio management services for the Portfolios. A sub-adviser has not been engaged to manage any of the Portfolios.

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The Companies, on their own behalf and on behalf of their Separate Accounts, propose to exercise their contractual rights to substitute underlying funds currently available under the Contracts for different underlying funds. The Section 26 Applicants request an order from the Commission pursuant to Section 26(c) of the 1940 Act approving the Substitutions of shares of the Existing Portfolios listed in the table below for shares of the corresponding Replacement Portfolios listed opposite their names. The table below also identifies the Contracts (based on their Contract Id Nos. on EDGAR, limited as set forth below) that will be affected by the Substitutions. As previously stated, the Substitutions will be performed only for the Non-Qualified Annuity Contracts and the Life Insurance Contracts. The Substitutions will not affect the Qualified Annuity Contracts.

TABLE II.A.

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The purpose of the Substitutions is to preserve the favorable tax treatment of the Non-Qualified Annuity⁹ and Life Insurance Contracts that are currently supported by the Existing Portfolios. A key feature of annuity and life insurance contracts is the deferral of federal income taxes on the accumulated earnings within such contracts. To receive tax deferral, the Non-Qualified Annuity and Life Insurance Contracts must, among other things, satisfy (i) the diversification requirements of Section 817(h) of the Internal Code of 1986, as amended, (the “Code”) and (ii) the so-called “investor control doctrine,” which is set forth in various revenue rulings and court decisions (see, e.g., Rev. Rul. 81-225, 1981-2 C.B. 12 and Christoffersen v. United States, 749 F.2d 513 (8th Cir. 1984), which affirmed Rev. Rul. 81-225). In contrast, the Qualified Annuity Contracts currently supported by the Existing Portfolios are all pension plan contracts or individual retirement annuity contracts (i.e., each Qualified Annuity Contract is issued in connection with a “qualified retirement plan” (e.g., a plan under Sections 401, 403, 408) or individual retirement annuity under Section 408(b)) and, as such, are not subject to either the Section 817(h) diversification requirements or the investor control doctrine. See Section 817(h)(1), which provides that the diversification requirements of Code Section 817(h) do not apply to variable annuity and variable life insurance contracts that are pension plan contracts or individual retirement annuity contracts, and Rev. Proc. 99-44, 1999-2 C.B.598, which generally exempts variable annuity contracts that are pension plan contracts or individual retirement annuity contracts from complying with the investor control requirement that fund shares supporting such contracts cannot be publicly available.

Under the Section 817(h) diversification requirements and the investor control doctrine, the Non-Qualified Annuity and Life Insurance Contracts will not receive tax deferral if fund shares supporting such contracts are also offered directly to the general public. The Existing Portfolios are only offered through variable life insurance and annuity contracts and are not currently sold directly to the general public. As such, the Existing Portfolios are presently sold in a manner that facilitates the deferral of federal income taxes on the accumulated earnings under the Non-Qualified Annuity and Life Insurance Contracts. However, in an effort to expand the markets to which the Existing Portfolios are offered, Investment Corporation I intends to begin offering shares of the Existing Portfolios directly to the general public through the retail market. While this initiative will generally benefit the Existing Portfolios by increasing their asset bases, and will not affect the tax treatment of the Qualified Annuity Contracts, it would result in the Non-Qualified Annuity and Life Insurance Contracts no longer receiving tax deferral unless the Substitutions are performed.

In order to preserve that favorable tax treatment, Section 26 Applicants propose to reallocate Contract values attributable to the Non-Qualified Annuity and Life Insurance Contracts from the Existing Portfolios to the Replacement Portfolios. The Substitutions will preserve the favorable tax treatment of the Non-Qualified Annuity and Life Insurance Contracts because the Replacement Portfolios will be offered only under variable annuity and life insurance contracts. The Replacement Portfolios will not be sold directly to the general public through the retail market. They will only be offered through variable life insurance and annuity contracts, including possibly variable annuity contracts offered to qualified retirement plans in the future.

The Section 26 Applicants believe that the Substitutions will not disrupt Non-Qualified Annuity and Life Insurance Contract Owners’ essential investment expectations by allowing Non-Qualified Annuity and Life Insurance Contract

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Owners to continue their investments in substantially identical underlying funds (or, with respect to Substitution No. 8, a substantially similar underlying fund). In that regard, except with respect to Substitution No. 8, each Existing Portfolio and its corresponding Replacement Portfolio have (or will have once the Replacement Portfolio commences operations):

With respect to Substitution No. 8, the Existing Portfolio and its corresponding Replacement Portfolio have (or will have once the Replacement Portfolio commences operations) substantially similar investment objectives, strategies, and risks; substantially similar investment portfolios; the same investment adviser (i.e., the Adviser); and a common board of directors (i.e., the Board). In addition, the Replacement Portfolio will have a lower expense ratio, taking into account the expense reimbursement agreement discussed below.

The Section 26 Applicants note that, because the Substitutions will occur at relative net asset value, and the fees and charges under the Non-Qualified Annuity and Life Insurance Contracts will not change as a result of the Substitutions, the benefits offered by the guarantees under the Contracts will be the same immediately before and after the Substitutions. What effect the Substitutions may have on the value of the benefits offered by the Contract guarantees would depend, among other things, on the relative future performance of each Existing Portfolio and Replacement Portfolio, which the Section 26 Applicants cannot predict. Nevertheless, the Section 26 Applicants note that at the time of the Substitutions, the Contracts will offer a comparable variety of investment options with as broad a range of risk/return characteristics.

The Substitutions are designed to provide Non-Qualified Annuity and Life Insurance Contract Owners with an opportunity to continue their investment in substantially identical (or, with respect to Substitution No. 8, substantially similar) investment options without interruption and without any cost to them. The Companies or an affiliate thereof (other than Investment Corporation II) will pay all expenses and transaction costs of the Substitutions, including legal and accounting expenses, any applicable brokerage expenses, and other fees and expenses. No fees or charges will be paid by the Non-Qualified Annuity and Life Insurance Contract Owners to effect the Substitutions. The Substitutions will not cause the Contract fees and charges currently being paid by Non-Qualified Annuity and Life Insurance Contract Owners to be greater after the Substitutions than before the Substitutions. The Substitutions will in no way alter the tax treatment of Non-Qualified Annuity and Life Insurance Contract Owners in connection with their Contracts. Indeed, the Substitutions are intended to preserve the tax treatment of the Non-Qualified Annuity and Life Insurance Contract Owners in connection with their Contracts. No tax liability will arise for Non-Qualified Annuity and Life Insurance Contract Owners as a result of the Substitutions.

Furthermore, Mutual of America will cause the Adviser to enter into a written contract with Investment Corporation II whereby, for a period of two years following the date of substitution for each Substitution (the “Substitution Date”), the Adviser will, at least as frequently as the last business day of each fiscal quarter, reimburse the expenses of the Replacement Portfolio to the extent that the net annual operating expenses of the Replacement Portfolio (i.e., after taking into account any other fee waivers or expense reimbursements) for such period exceed, on an annualized basis, the net annual operating expenses of the Existing Portfolio for the most recent fiscal year preceding the date of

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this Application (the “Expense Caps”). Any amounts waived or reimbursed by the Adviser will not be subject to recoupment rights. Any Expense Cap that applies to a Replacement Portfolio as a condition of this Application is separate and apart from any other contractual expense reimbursement agreement between Investment Corporation II and the Adviser. To the extent that an Expense Cap caps a Replacement Portfolio’s net annual operating expenses at a lower percentage of net assets than any other contractual expense reimbursement agreement between Investment Corporation II and the Adviser, such other contractual expense reimbursement agreement will have no practical impact on the Replacement Portfolio’s net annual operating expenses due to the operation of the Expense Cap. In addition, for each Substitution, the Section 26 Applicants will not increase the Contract fees and charges that would otherwise be assessed under the terms of the Contracts for the Non-Qualified Annuity and Life Insurance Contract Owners for a period of at least two years following the Substitution Date.

As previously discussed, Investment Corporation I intends to expand the asset bases of the Existing Portfolios by offering shares of the Existing Portfolios directly to the general public through the retail market. This initiative will generally benefit the Existing Portfolios and their beneficial owners by potentially reducing expense ratios and resulting in additional economies of scale for the Existing Portfolios. In light of this initiative, however, the Substitutions are necessary in order to preserve the favorable tax treatment of the Non-Qualified Annuity and Life Insurance Contracts.

The Section 26 Applicants believe that the Substitutions will not disrupt Non-Qualified Annuity and Life Insurance Contract Owners’ essential investment expectations by allowing Non-Qualified Annuity and Life Insurance Contract Owners to continue their investments in substantially identical underlying funds (or, with respect to Substitution No. 8, a substantially similar underlying fund).

This section of the Application provides comparative information for the Existing Portfolio and Replacement Portfolio for each Substitution. Certain comparative information set forth below is not applicable to Substitution No. 8 because its Replacement Portfolio is not a clone of its Existing Portfolio, unlike the other Substitutions. For additional comparative information of the Existing Portfolio and the Replacement Portfolio for Substitution No. 8, see Appendix A.

For each Substitution other than Substitution No. 8, the Section 26 Applicants confirm that the investment objectives, strategies, and risks of each Existing Portfolio and its corresponding Replacement Portfolio are identical. For Substitution No. 8, the Section 26 Applicants believe that the investment objectives, strategies, and risks of the Existing Portfolio and the Replacement Portfolio are substantially similar for the reasons set forth in Appendix A.

The Section 26 Applicants confirm that each Existing Portfolio and its corresponding Replacement Portfolio are managed by the same investment adviser (i.e., the Adviser). No Portfolio is currently managed by a sub-adviser. The Section 26 Applicants also confirm that the Existing Portfolios and the Replacement Portfolios will share a common board of directors (i.e., the Board) by the time the Replacement Portfolios become operational.

The following table includes for each Substitution (i) the Existing Portfolio’s total net assets as of June 30, 2019; (ii) the approximate amount involved in the Substitution; (iii) the Existing Portfolio’s approximate net assets immediately after the Substitution; (iv) the Replacement Portfolio’s approximate net assets from direct investments immediately after the Substitution (including any seed money); and (v) the Replacement Portfolio’s aggregate approximate net assets including investments by the Funds of Funds immediately after the Substitutions (including any seed money). The Section 26 Applicants believe that the aggregate approximate net assets of the Replacement Underlying Funds are noteworthy because the Replacement Underlying Funds directly invest in the investment portfolios in which the Replacement Funds of Funds are indirectly invested.

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TABLE II.C.

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For each Substitution other than Substitution No. 8, the Section 26 Applicants confirm that each Existing Portfolio and its corresponding Replacement Portfolio have substantially identical charge and fee structures (with different expense ratios due to differences in net assets), as follows:

For each Substitution (other than Substitution No. 8), the following table compares the fees and expenses of the Existing Portfolio and the Replacement Portfolio, as stated in the Portfolios’ current prospectuses. The fees and expenses below do not reflect the operation of the Expense Caps, which are separate and apart from any expense reimbursement agreement between Investment Corporation II and the Adviser. Comparative information for Substitution No. 8 is included in Appendix A.

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The Replacement Portfolios will not begin operations until the Substitutions are performed, and therefore have no performance histories to compare to the Existing Portfolios. However, for each Substitution other than Substitution No. 8, because each Existing Portfolio and its corresponding Replacement Portfolio have identical investment objectives, and strategies and substantially identical fee structures (with different expense ratios due to differences in net assets), and are expected to have identical or substantially similar investment portfolios, the Adviser expects the Portfolios to have substantially similar performance in the future.

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The Section 26 Applicants confirm that for each Substitution other than Substitution No. 8, each Existing Portfolio and its corresponding Replacement Portfolio will have the same benchmark indexes.

The Companies will execute the Substitutions as soon as practicable following the issuance of the requested order in connection with this Application and the completion of administrative, operational, and technological changes necessary or convenient with respect to the Substitutions, and the Companies may need to effect the Substitutions over a period of time for administrative reasons. On the Substitution Date for a Substitution, the Separate Accounts will redeem shares of the applicable Existing Portfolio for cash and/or in-kind.¹² The proceeds of such redemptions will then be used to purchase shares of the corresponding Replacement Portfolio.

Redemption requests and purchase orders will be placed simultaneously so that the Non-Qualified Annuity and Life Insurance Contract values will remain fully invested at all times. Each Substitution will be effected at the relative net asset values of the respective shares of the Replacement Portfolios in conformity with Section 22(c) of the 1940 Act and Rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Section 26 Applicants. The Substitutions will be effected without change in the amount or value of any Non-Qualified Annuity and Life Insurance Contracts. As such, the Section 26 Applicants believe that the procedures to be implemented are sufficient to assure that each Non-Qualified Annuity and Life Insurance Contract Owner’s cash values immediately after any Substitution will be equal to the cash value immediately before the Substitution, and all benefits to which each Non-Qualified Annuity Life Insurance Contract Owner is entitled will have the same value immediately after any Substitution as immediately before the Substitution.

Non-Qualified Annuity and Life Insurance Contract Owners will not incur any fees or charges as a result of the Substitutions. The obligations of the Section 26 Applicants, and the rights of the Non-Qualified Annuity and Life Insurance Contract Owners, under the Contracts will not be altered in any way. The Companies and/or their affiliates (other than Investment Corporation II) will pay all expenses and transaction costs of the Substitutions, including legal and accounting expenses, any applicable brokerage expenses, and other fees and expenses. No fees or charges will be paid by the Non-Qualified Annuity and Life Insurance Contract Owners to effect the Substitutions. The Substitutions will not cause the Contract fees and charges currently being paid by Non-Qualified Annuity and Life Insurance Contract Owners to be greater after any Substitution than before the Substitution.

In addition, the Substitutions will in no way alter the tax treatment of affected Contract Owners in connection with their Contracts, and no tax liability will arise for Contract Owners as a result of the Substitutions. Indeed, the Substitutions are intended to preserve the tax treatment of the Non-Qualified Annuity and Life Insurance Contract Owners in connection with their Contracts.

Redemptions and repurchases that occur in connection with effecting a Substitution will not count as a transfer for purposes of transfer limitations and fees, if any, that would otherwise be applicable under the terms of the Contracts. From the date of the Pre-Substitution Notice, as defined below, through 30 days following the Substitution Date, Non-Qualified Annuity and Life Insurance Contract Owners may make at least one transfer of Contract value from the subaccount investing in an Existing Portfolio (before the Substitution) or the Replacement Portfolio (after the Substitution) to any other available subaccount under the Contract without charge and without imposing any transfer limitations. Further, on a Substitution Date, values under Non-Qualified Annuity and Life Insurance Contracts attributable to investments in the applicable Existing Portfolio will be transferred to the corresponding Replacement Portfolio without charge and without being subject to any transfer limitations. Moreover, for each Substitution, except with respect to frequent trading restrictions described in the Contracts’ prospectuses, the Companies will not exercise any rights reserved under their policies to impose restrictions on transfers between the subaccounts for a period beginning at least 30 days before the Substitution Date through at least 30 days following the Substitution Date.

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Finally, before effecting any Substitution, the Companies shall have satisfied themselves that (i) the Contracts allow the substitution of shares of portfolios in the manner contemplated by the Application, (ii) the Substitutions can be consummated as described in this Application under applicable state insurance laws, and (iii) any applicable regulatory requirements in each jurisdiction where the Contracts are qualified for sale have been complied with to the extent necessary to complete the Substitutions.

Consistent with the requirements of substitution orders granted by the Commission in the past, Mutual of America will cause the Adviser to enter into a written contract with Investment Corporation II whereby, for a period of two years following the Substitution Date for each Substitution, the Adviser will, at least as frequently as the last business day of each fiscal quarter, reimburse the expenses of the Replacement Portfolio to the extent that the net annual operating expenses of the Replacement Portfolio (i.e., after taking into account any other fee waivers or expense reimbursements) for such period exceed, on an annualized basis, the net annual operating expenses of the Existing Portfolio for the most recent fiscal year preceding the date of this Application. Any amounts waived or reimbursed by the Adviser will not be subject to recoupment rights. Any Expense Cap that applies to a Replacement Portfolio as a condition of this Application is separate and apart from any other contractual expense reimbursement agreement between Investment Corporation II and the Adviser. To the extent that an Expense Cap caps a Replacement Portfolio’s net annual operating expenses at a lower percentage of net assets than any other contractual expense reimbursement agreement between Investment Corporation II and the Adviser, such other contractual expense reimbursement agreement will have no practical impact on the Replacement Portfolio’s net annual operating expenses due to the operation of the Expense Cap. In addition, for each Substitution, the Section 26 Applicants will not increase the Contract fees and charges that would otherwise be assessed under the terms of the Contracts for the Non-Qualified Annuity and Life Insurance Contract Owners for a period of at least two years following the Substitution Date.

For each Substitution, at least 30 days prior to the Substitution Date, Non-Qualified Annuity and Life Insurance Contract Owners will be notified via prospectus supplements (i) that the Section 26 Applicants received or expect to receive Commission approval of the Substitution and (ii) of the anticipated Substitution Date (the “Pre-Substitution Notice”). Pre-Substitution Notices sent to Non-Qualified Annuity and Life Insurance Contract Owners (including Inactive Contract Owners) will be filed with the Commission pursuant to Rule 497(e) under the 1933 Act.

In addition, for each Substitution, the Pre-Substitution Notice will:

For each Substitution, the Section 26 Applicants will also deliver to affected Non-Qualified Annuity and Life Insurance Contract Owners (including Inactive Contract Owners), at least 30 days before the Substitution Date, a prospectus for the Replacement Portfolio. In addition, within five business days after the Substitution Date, Non-Qualified Annuity and Life Insurance Contract Owners (including Inactive Contract Owners) whose assets were allocated to the Replacement Portfolio as part of the Substitution will be sent a written notice (a “Confirmation”) informing them that the Substitution was carried out as previously notified. The Confirmation will also restate the

15

information set forth in the Pre-Substitution Notice. The Confirmation will also reflect the values of the Non-Qualified Annuity or Life Insurance Contract Owner’s positions in the Existing Portfolio before the Substitution and the Replacement Portfolio after the Substitution.

The Companies will seek approval of the Substitutions from any state insurance regulators whose approval may be necessary or appropriate.

The Section 26 Applicants request that the Commission issue an order pursuant to Section 26(c) of the 1940 Act approving the Substitutions.

Section 26(c) of the 1940 Act (formerly, Section 26(b)) prohibits any depositor or trustee of a unit investment trust that invests exclusively in the securities of a single issuer from substituting the securities of another issuer without the approval of the Commission. Section 26(c) provides that such approval shall be granted by order from the Commission if the evidence establishes that the substitution is consistent with the protection of investors and the purposes of the 1940 Act.

Section 26(c) was intended to provide for Commission scrutiny of proposed substitutions that could, in effect, force shareholders dissatisfied with the substitute security to redeem their shares, thereby possibly incurring a loss of the sales load deducted from the initial premium, an additional sales load upon reinvestment of the proceeds of redemption, or both.¹³ The section was designed to forestall the ability of a depositor to present holders of an interest in a unit investment trust with situations in which a holder’s only choice would be to continue an investment in an unsuitable underlying security, or to elect a costly and, in effect, forced redemption. For the reasons described in this Application, the Section 26 Applicants submit that the Substitutions meet the standards set forth in Section 26(c) and that, if implemented, the Substitutions would not raise any of the aforementioned concerns that Congress intended to address when the 1940 Act was amended to include this provision.

As previously indicated, the Companies have reserved the right under the Contracts to substitute shares of another underlying fund for one of the current funds offered as an investment option under the Contracts. The Contracts and the Contracts’ prospectuses disclose this right. For the reasons discussed in Section II.B. of this Application, the Section 26 Applicants believe that the Substitutions are in the best interests of the Non-Qualified Annuity and Life Insurance Contract Owners. In addition, the Section 26 Applicants believe that the Substitutions meet the standards that the Commission and its Staff have applied to substitutions that have been approved in the past.¹⁴

16

The Section 26 Applicants submit that the Substitutions are not of the type that Section 26 was designed to prevent because they will not result in costly forced redemptions, nor will they affect any other aspects of the Contracts. In the current situation, Contract owners are contractually provided investment discretion during the accumulation phase of the Contracts to allocate and reallocate their Contract values among the investment options available under the Contracts. Accordingly, after the Substitutions, each Non-Qualified Annuity and Life Insurance Contract Owner may exercise his or her own judgment as to the most appropriate investment alternative available under the Contract. In this regard, the Substitutions retain for Non-Qualified Annuity and Life Insurance Contract Owners the investment flexibility that is a central feature of the Contracts.

Moreover, for each Substitution, the Section 26 Applicants will offer Non-Qualified Annuity and Life Insurance Contract Owners the opportunity to transfer amounts out of the affected subaccounts which, as with all transfers under the Contracts, will be without any cost or other penalty (other than those necessary to implement policies and procedures designed to detect and deter disruptive transfers) for a period beginning on the date of the Pre-Substitution Notice (which supplement will be delivered to the Non-Qualified Annuity and Life Insurance Contract Owners at least thirty (30) days before the Substitution Date) and ending no earlier than thirty (30) days after the Substitution Date. This reduces the likelihood of being invested in an undesired investment option, with the discretion remaining with the Non-Qualified Annuity and Life Insurance Contract Owners. The Substitutions, therefore, will not result in the type of forced redemption that Section 26(c) was designed to prevent.

The Substitutions are also unlike the type of substitution that Section 26(c) was designed to prevent in that the Substitutions have no impact on other aspects of the Contracts. Specifically, the Substitutions will not affect the type of benefits offered by the Companies under the Contracts, or numerous other rights and privileges associated with the Contracts. In deciding to purchase the Contract, a Contract owner may have considered a Company’s financial condition or reputation for service. These factors will not change as a result of the Substitutions, nor will the annuity or tax benefits afforded under the Contracts held by any Non-Qualified Annuity and Life Insurance Contract Owner.

The Section 17 Applicants request an order under Section 17(b) exempting them from the provisions of Section 17(a) to the extent necessary to permit the Section 17 Applicants to carry out some or all of the Substitutions.

Section 17(a)(1) of the 1940 Act, in relevant part, prohibits any affiliated person of a registered investment company, or any affiliated person of such person, acting as principal, from knowingly selling any security or other property to that company. Section 17(a)(2) of the 1940 Act generally prohibits the persons described above, acting as principals, from knowingly purchasing any security or other property from the registered investment company.

Section 2(a)(3) of the 1940 Act defines the term “affiliated person” of another person in relevant part as:

(A) any person directly or indirectly owning, controlling, or holding with power to vote, 5 per centum or more of the outstanding voting securities of such other person; (B) any person 5 per centum or more of whose outstanding voting securities are directly or indirectly owned, controlled, or held with power to vote, by such other person; (C) any person directly or indirectly controlling, controlled by, or under common control with, such other person; . . . (E) if such other person is an investment company, any investment adviser thereof . . . .

17

Section 2(a)(9) of the 1940 Act states that any person who owns beneficially, either directly or through one or more controlled companies, more than 25% of the voting securities of a company shall be presumed to control such company.

Because the Substitutions may be effected, in whole or in part, by means of in-kind redemptions and purchases (“In-Kind Transactions”), the Substitutions may be deemed to involve one or more purchases or sales of securities or property between affiliated persons. The proposed transactions may involve a transfer of portfolio securities by the Existing Portfolios to the Separate Accounts.

Immediately thereafter, the Separate Accounts would purchase shares of the Replacement Portfolios with the portfolio securities received from the Existing Portfolios. Accordingly, to the extent that the Companies, the Separate Accounts, the Adviser, Investment Corporation II, or the Replacement Portfolios are deemed to be affiliated persons of one another under Section 2(a)(3) or Section 2(a)(9) of the 1940 Act, it is conceivable that this aspect of the Substitutions could be viewed as being prohibited by Section 17(a). As such, the Section 17 Applicants have determined that it is prudent to seek relief from Section 17(a) in the context of this Application.¹⁵

Section 17(b) of the 1940 Act provides that any person may apply to the Commission for an exemption from the provisions of Section 17(a), and the Commission shall issue such exemptive order, if evidence establishes that:

The Section 17 Applicants submit that for all the reasons in this Application, the terms of the proposed In-Kind Transactions of shares of the Replacement Portfolios by the Separate Accounts, including the consideration to be paid and received, as described in this Application, are reasonable and fair and do not involve overreaching on the part of any person concerned. The Section 17 Applicants also submit that the proposed In-Kind Transactions by the Separate Accounts will be consistent with the policies of Investment Corporation II and the Replacement Portfolios, as recited in Investment Corporation II’s registration statement. Finally, the Section 17 Applicants submit that the Substitutions are consistent with the general purposes of the 1940 Act.

To the extent that the In-Kind Transactions by the Separate Accounts of the Replacement Portfolios’ shares are deemed to involve principal transactions among affiliated persons, the procedures described below should be sufficient to ensure that the terms of the proposed transactions are reasonable and fair to all participants. The Section 17 Applicants maintain that the terms of the proposed In-Kind Transactions, including the consideration to be paid by each Existing Portfolio and received by each Replacement Portfolio involved, are reasonable, fair, and do not involve overreaching principally because the transactions will conform with all but one of the conditions enumerated in Rule 17a-7. The proposed transactions will take place at relative net asset value in conformity with the requirements of Section 22(c) of the 1940 Act and Rule 22c-1 thereunder without the imposition of any transfer or similar charges by the Section 26 Applicants. The Substitutions will be effected without change in the amount or value of any Non-Qualified Annuity Contract or any Life Insurance Contract. The Substitutions will in no way alter

18

the tax treatment of Non-Qualified Annuity and Life Insurance Contract Owners in connection with their Contracts, and no tax liability will arise for Non-Qualified Annuity and Life Insurance Contract Owners as a result of the Substitutions. The fees and charges under the Non-Qualified Annuity and Life Insurance Contracts will not increase because of the Substitutions. Even though the Company, the Separate Accounts, the Adviser, Investment Corporation II, and the Replacement Portfolios may not rely on Rule 17a-7, the Section 17 Applicants believe that the rule’s conditions outline the type of safeguards that result in transactions that are fair and reasonable to registered investment company participants and preclude overreaching in connection with an investment company by its affiliated persons.

When the Commission first proposed,¹⁶ and then adopted,¹⁷ Rule 17a-7, it noted that the purpose of the rule was to eliminate the filing and processing of applications “in circumstances where there appears to be no likelihood that the statutory finding for a specific exemption under Section 17(b) could not be made” by establishing “conditions as to the availability of the exemption to those situations where the Commission, upon the basis of its experience, considers that there is no likelihood of overreaching of the investment companies participating in the transaction.” The Section 17 Applicants assert that where, as here, they or the relevant investment company would comply in substance with most, but not all, of the conditions of Rule 17a-7, the Commission should consider the extent to which they would meet these or other similar conditions and issue an order if the protections of the rule would be provided in substance.

In this regard, the Commission explained its concerns with transactions of the type covered by Rule 17a-7 when it amended Rule 17a-7 in 1981 also to exempt certain purchase and sale transactions between an investment company and a non-investment company affiliate. Previously, Rule 17a-7 only exempted transactions between investment companies and series of investment companies. Its expansion to cover transactions between an investment company (or series thereof) and a non-investment company affiliate demonstrates that such transactions can be reasonable and fair and not involve overreaching. Specifically, the Commission stated:

The Commission is concerned that this practice — left unregulated and in violation of Section 17(a) — could result in serious harm to registered investment companies. For example, an unscrupulous investment adviser might “dump” undesirable securities on a registered investment company or transfer desirable securities from a registered investment company to another more favored advisory client in the complex. Moreover, the transaction could be effected at a price which is disadvantageous to the registered investment company.

Nevertheless, upon considering the matter, the Commission believes that it would be appropriate to exempt by rulemaking certain of these transactions provided that certain conditions, described below, are met. Accordingly, the Commission proposes to amend Rule 17a-7 to exempt certain transactions which heretofore have not been exempted by the rule, both with respect to the persons which could participate in the transaction, and the securities which could be purchased and sold. The Commission has determined that the proposed expansion of the rule is consistent with the existing rule’s purposes (1) to eliminate the necessity of filing and processing applications under circumstances where there appears to be little likelihood that the statutory finding for a specific exemption under Section 17(b) of the [1940] Act could not be made, and (2) to permit investment companies which heretofore had chosen to avoid the application procedures of Section 17(b) of the [1940] Act by purchasing and selling securities on the open market, thereby incurring actual brokerage charges, to avoid the payment of brokerage commissions by effecting such transactions directly. Moreover, the proposed amendment would enhance the role of disinterested directors as watchdogs to protect shareholder interest.¹⁸

The Board has adopted procedures, as required by paragraph (e)(1) of Rule 17a-7, pursuant to which each series of the Investment Corporation II may purchase and sell securities to and from their affiliates. The Section 17 Applicants will carry out the proposed In-Kind Transactions in conformity with all of the conditions of Rule 17a-7 and each series’ procedures thereunder, except that the consideration paid for the securities being purchased or sold may not be entirely cash. Nevertheless, the circumstances surrounding the Substitutions will be such as to offer the

19

same degree of protection to each Replacement Portfolio from overreaching that Rule 17a-7 provides to them generally in connection with their purchase and sale of securities under Rule 17a-7 in the ordinary course of their business. In particular, the Companies, the Separate Accounts, or any of their affiliates, cannot effect the proposed transactions at a price that is disadvantageous to any Non-Qualified Annuity Contract or Life Insurance Contract Owner. Although the transactions may not be entirely for cash, each will be effected based upon (i) the independent current market price of the portfolio securities valued as specified in paragraph (b) of Rule 17a-7, and (ii) the net asset value per share of each Existing Portfolio and Replacement Portfolio involved valued in accordance with the procedures disclosed in their respective investment company registration statement and as required by Rule 22c-1 under the 1940 Act. No brokerage commission, fee (except for customary transfer fees), or other remuneration will be paid to any party in connection with the proposed In-Kind Transactions.

The sale of shares of each Replacement Portfolio for investment securities, as contemplated by the proposed In-Kind Transactions, is consistent with the investment policies and restrictions of the Section 17 Applicants and the Replacement Portfolio because (i) the shares are sold at their net asset value, and (ii) the portfolio securities are of the type and quality that the Replacement Portfolios could each have acquired with the proceeds from share sales had the shares been sold for cash. To assure that the second of these conditions is met, each respective Replacement Portfolio will examine the portfolio securities being offered to such Replacement Portfolio and accept only those securities as consideration for shares that are of the type and quality it could have acquired for each such Replacement Portfolio in a cash transaction.

The proposed In-Kind Transactions, as described herein, are consistent with the general purposes of the 1940 Act as stated in the “Findings and Declaration of Policy” in Section 1 of the 1940 Act. The proposed transactions do not present any of the conditions or abuses that the 1940 Act was designed to prevent. In particular, Sections 1(b)(2) and (3) of the 1940 Act state, among other things, that the national public interest and the interest of investors are adversely affected when:

[I]nvestment companies are organized, operated, managed, or their portfolio securities are selected in the interest of directors, officers, investment advisers, depositors, or other affiliated persons thereof, or in the interests of other investment companies or persons engaged in other lines of business, rather than in the interest of all classes of such companies’ security holders; when investment companies issue securities containing inequitable or discriminatory provisions, or fail to protect the preferences and privileges of the holders of their outstanding securities . . . .

For all the reasons stated in this Application, the abuses described in Sections 1(b)(2) and (3) of the 1940 Act will not occur in connection with the proposed In-Kind Transactions.

The Commission has previously granted exemptions from Section 17(a) in circumstances substantially similar in all material respects to those presented in this Application to applicants affiliated with an open-end management investment company that proposed to purchase shares issued by the company with investment securities of the type that the company might otherwise have purchased for its portfolio.¹⁹ In these cases, the Commission issued an order

20

The Section 17 Applicants request that the Commission issue an order pursuant to Section 17(b) of the 1940 Act exempting the Company, the Separate Accounts, the Adviser, Investment Corporation II, and each Replacement Portfolio from the provisions of Section 17(a) of the 1940 Act to the extent necessary to permit the Companies on behalf of the Separate Accounts to carry out, as part of the Substitutions, the In-Kind Transactions of the Replacement Portfolios, which may be deemed to be prohibited by Section 17(a) of the 1940 Act.

The Section 17 Applicants represent that the proposed In-Kind Transactions meet all of the requirements of Section 17(b) of the 1940 Act and that an exemption should be granted, to the extent necessary, from the provisions of Section 17(a).

For the reasons set forth in this Application, the Section 26 Applicants submit that the Substitutions meet the standards of Section 26(c) of the 1940 Act, and the Section 17 Applicants respectively submit that the proposed In-Kind Transactions meet the standards of Section 17(b) of the 1940 Act. As such, the Section 26 Applicants and the Section 17 Applicants respectfully request that the Commission issue an order of approval pursuant to Section 26(c) of the 1940 Act and exemption pursuant to Section 17(b) of the 1940 Act, respectively, and that such order be made effective as soon as possible.

The Section 26 Applicants agree that any order granting the requested relief will be subject to the following conditions:

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All actions necessary to authorize the execution and filing of this Application have been taken and the persons signing and filing this Application are authorized to so sign and file the same.

The Applicants request that the Commission issue an order without a hearing pursuant to Rule 0-5 under the 1940 Act.

The Applicants request that any questions regarding this Application be directed to the persons listed on the facing page of this Application.

For the foregoing reasons, the Applicants request that the Commission enter an order pursuant to Sections 26(c) and 17(b) of the 1940 Act granting the approval and exemption, respectively, sought by this Application. The Applicants submit that the requested approval and exemption are necessary and appropriate in the public interest, consistent with the protection of investors, and consistent with the purposes fairly intended by the policy and provisions of the 1940 Act.

22

Pursuant to Rule 0-2(f) under the 1940 Act, the Applicants hereby state their addresses as follows:

320 Park Avenue, New York, New York 10022

The Applicants further state that all questions concerning this Application should be directed to:

Thomas E. Bisset, Esq.

Eversheds Sutherland (US) LLP

700 Sixth Street, NW, Suite 700

Washington, D.C. 20001

Telephone: 202.383.0118

All requirements of the charter documents of the Applicants have been complied with in connection with the execution and filing of this Application, and the person signing the Application on behalf of each Applicant is fully authorized to do so. Pursuant to Rule 0-2(c) of the 1940 Act, certified copies of the resolutions authorizing the officers of the Applicants to sign and file the Application are attached as Appendix B-1 through B-4 hereto.

The undersigned states that he has duly executed this Application, dated September 27, 2019, for and on behalf of:

Mutual of America Life Insurance Company

Mutual of America Separate Account No. 2

Mutual of America Separate Account No. 3

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The undersigned further states that he is the Senior Executive Vice President and General Counsel of Mutual of America Life Insurance Company, which is also the depositor of each Separate Account, and that all actions by all bodies necessary to authorize the undersigned to execute and file this Application have been taken. The undersigned further states that he is familiar with this Application and the contents thereof, and that the facts set forth in this Application are true to the best of his knowledge, information, and belief.

The undersigned states that he has duly executed this Application, dated September 27, 2019, for and on behalf of:

Wilton Reassurance Life Company of New York

American Separate Account 2

American Separate Account 3

The undersigned further states that he is the Senior Executive Vice President and General Counsel of Mutual of America Life Insurance Company, which is authorized to act on behalf of Wilton Reassurance Life Company of New York, which is also the depositor of each Separate Account, and that all actions by all bodies necessary to authorize the undersigned to execute and file this Application have been taken. The undersigned further states that he is familiar with this Application and the contents thereof, and that the facts set forth in this Application are true to the best of his knowledge, information, and belief.

The undersigned states that he has duly executed this Application, dated September 27, 2019, for and on behalf of Mutual of America Variable Insurance Portfolios, Inc., that he is President thereof, and that all actions by all bodies necessary to authorize the undersigned to execute and file this Application have been taken. The undersigned further states that he is familiar with this Application and the contents thereof, and that the facts set forth in this Application are true to the best of his knowledge, information, and belief.

The undersigned states that he has duly executed this Application, dated September 27, 2019, for and on behalf of Mutual of America Capital Management LLC, that he is Executive Vice President and Chief Operating Officer thereof, and that all actions by all bodies necessary to authorize the undersigned to execute and file such instrument have been taken. The undersigned further states that he is familiar with this Application and the contents thereof, and that the facts set forth in this Application are true to the best of his knowledge, information, and belief.

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APPENDIX A

COMPARATIVE PORTFOLIO INFORMATION FOR SUBSTITUTION NO. 8

This appendix provides additional information about the Existing Portfolio and the Replacement Portfolio for Substitution No. 8. Unlike the other Substitutions, Substitution No. 8 does not include a Replacement Portfolio that is a clone of the Existing Portfolio.

The Section 26 Applicants have carefully reviewed Substitution No. 8 with the goal of preserving the Non-Qualified Annuity and Life Insurance Contract Owners’ essential investment expectations. In that regard, and for the reasons set forth below, the Section 26 Applicants submit that the Existing Portfolio and the Replacement Portfolio in Substitution No. 8 have substantially similar investment profiles, and the expense ratio of the Replacement Portfolio is lower than the expense ratio of the Existing Portfolio. As such, the Section 26 Applicants believe that the essential investment expectations of the Non-Qualified Annuity and Life Insurance Contract Owners’ will be preserved under Substitution No. 8.

Investment Objective, Principal Investment Strategies, and Principal Risks and Investment Portfolios

The first table below compares the Portfolios’ investment objectives, principal investment strategies, and principal risks. The investment objective, strategy, and risk information contained in the first table is a replication of the disclosure contained in the summary section of the Portfolios’ current prospectuses as of the date of this Application. Defined terms in that replicated disclosure are not otherwise defined terms for purposes of this Application.

The second table below contains investment portfolio data reported by Morningstar Inc. (“Morningstar”) as of March 31, 2019 or December 31, 2019, as applicable depending on the most recent data reported by Morningstar for both of the compared Portfolios. This table compares the investment portfolio of the Existing Portfolio to the investment portfolio of the Moderate Allocation Fund of Investment Corporation I (“Moderate Allocation Fund I”). The Replacement Fund (i.e., the Moderate Allocation Portfolio of Investment Corporation II) will not begin operations until the Substitution is performed, and therefore there is no investment portfolio data for the Replacement Portfolio to compare to the Existing Portfolio. However, the Replacement Portfolio will be a clone of Moderate Allocation Fund I. As such, the investment portfolio data for Moderate Allocation Fund I is used as a proxy for comparing the investment portfolio data of the Existing Portfolio and the Replacement Portfolio.

The tables are followed by a brief explanation of why the Section 26 Applicants believe that, despite any differences between them, the Existing Portfolio’s and the Replacement Portfolio’s investment profiles are substantially similar, and that the essential objectives and expectations of Non-Qualified Annuity and Life Insurance Contract Owners will continue to be met after the Substitution.

A-1

A-2

A-3

A-4

A-5

The Section 26 Applicants believe that the Existing Portfolio and the Replacement Portfolio have substantially similar investment profiles for the following reasons:

A-6

The Section 26 Applicants acknowledge that there are differences between the Existing Portfolio and the Replacement Portfolio. Unlike the Replacement Portfolio, the Existing Portfolio includes money market investments as part of its principal investment strategies. Unlike the Existing Portfolio, the Replacement Portfolio includes mid-capitalization and international stocks as part of its principal investment strategies. The Section 26 Applicants also acknowledge that (based on the investment portfolio data for the Existing Portfolio and Moderate Allocation Fund I) there will likely be a noteworthy difference in the average market capitalization of the Portfolios’ stocks.

The Section 26 Applicants believe that these differences are outweighed by the substantial similarities between the Portfolios, as described above, and are further mitigated by the following facts:

A-7

Based upon the Section 26 Applicants’ analysis of the Substitution, the Applicants believe that the Portfolios have substantially similar investment profiles. Moreover, the Section 26 Applicants expect the Portfolios to have substantially similar risk and return characteristics. Accordingly, despite any differences between them, the Section 26 Applicants believe that the Existing Portfolio and the Replacement Portfolio are sufficiently similar such that the essential objectives and expectations of Contract owners will continue to be met after the Substitution.

Fees and Expenses

The following table compares the fees and expenses of the Portfolios based on the Portfolios’ current prospectuses as of the date of this Application. The Replacement Portfolio has no management fees, and has Acquired Fund Fees and Expenses, unlike the Existing Portfolio because the Replacement Portfolio is a Replacement Portfolio Funds of Funds. Regardless of the differences in their fee structures, as reflected in the table below, the Replacement Portfolio has a lower expense ratio compared to the Existing Portfolio. The Section 26 Applicants also note that Substitution No. 8 will be subject to Condition 9 of this Application, which will require the Replacement Portfolio’s total annual operating expenses (i.e., after taking into account any other fee waivers or expense reimbursements) to be capped for a period of two years based on the net annual operating expenses of the Existing Portfolio for the most recent fiscal year preceding the date of this Application.

A-8

The expense reimbursement agreement between Investment Corporation II and the Adviser is separate and apart from the Expense Caps under this Application. To the extent that an Expense Cap applicable to the Replacement Portfolio caps the Replacement Portfolio’s net annual operating expenses at a lower percentage of net assets than this (or any other) contractual expense reimbursement agreement between Investment Corporation II and the Adviser, such contractual expense reimbursement agreement will have no practical impact on the Replacement Portfolio’s net annual operating expenses due to the operation of the Expense Cap.

Performance History

The following table compares the performance history of the Existing Portfolio to the performance history of Moderate Allocation Fund I. There is no performance history for the Replacement Portfolio (i.e., the Moderate Allocation Portfolio of Investment Corporation II) because the Replacement Portfolio will not begin operations until the Substitution has been performed. However, the Replacement Portfolio will be a clone of Moderate Allocation Fund I. As such, the performance history of Moderate Allocation Fund I is used as a proxy for comparing the performance histories of the Existing Portfolio and the Replacement Portfolio. The table below includes the performance histories of the Portfolios’ respective benchmark indices. The Portfolio performance reflects the deduction of fees and expenses. The indices reflect no deduction for fees and expenses.

As reflected in the table below, and understanding that past performance is not indicative of future results, the Existing Portfolio and Moderate Allocation Fund I have substantially similar performance histories.

Average Annual Total Returns (for the periods ended December 31, 2018)

A-9

APPENDIX B-1

Resolutions of Mutual of America Life Insurance Company

Authorizing the filing of the Application

SECRETARY’S CERTIFICATE

The undersigned, Diane M. Aramony, being Executive Vice President and Corporate Secretary of Mutual of America Life Insurance Company, a New York insurance company (“Mutual of America”), does hereby certify that below is a true and correct reproduction of resolutions adopted at a meeting of the Board of Directors of Mutual of America duly called and held on May 9, 2019, and that such resolution remains in full force and effect as of the date below:

RESOLVED, that the Chairman, President and Chief Executive Officer, and such other Company Officers as the Chairman, President and Chief Executive Officer may determine, and are hereby authorized and directed to take, any and all actions that they, in the exercise of their business judgment, believe to be appropriate and necessary and to execute and file any and all documents that may be required in connection with the proposal to remove the Mutual of America Investment Corporation funds as investment alternatives under the Company’s Flexible Premium Annuity contracts (Separate Account No. 2) and variable universal life insurance policies (Separate Account No. 3) and to substitute the Mutual of America Variable Insurance Portfolios, as follows:

FURTHER RESOLVED, that the Chairman, President and Chief Executive Officer, and such other Company Officers as the Chairman, President and Chief Executive Officer may determine, and are hereby authorized and directed to take, any and all actions that they, in the exercise of their business judgment, believe to be appropriate and necessary in connection with the operations of the Mutual of America Separate Account No. 2 and Separate

B-1

Account No. 3 and in connection with such actions to execute and file any and all documents that may be required in order to comply with all applicable laws and regulations, including the New York State Insurance Law and regulations issued thereunder, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and the Investment Company Act of 1940, as amended, including without limitation exemptive applications, applications for other orders permitted or required for actions under applicable laws and regulations, such as investment fund substitutions, and amendments to such documents and applications, with any state or federal regulatory agency, including but not limited to the New York State Department of Financial Services and the Securities and Exchange Commission; and

FURTHER RESOLVED, that management shall report to the Board of Directors or the appropriate Committee of the Board of Directors, as determined by management, any material action(s) taken with respect to the operation of Separate Account No. 2 and Separate Account No. 3 at the next meeting of the Board of Directors following such action(s) taken.

IN WITNESS THEREOF, I have signed this certificate and affixed the seal of Mutual of America this 13th day of May, 2019.

B-2

APPENDIX B-2

Resolutions of Wilton Reassurance Life Company of New York

Authorizing the filing of the Application

WILTON REASSURANCE LIFE COMPANY OF NEW YORK

SECRETARY’S CERTIFICATE

The undersigned Secretary of Wilton Reassurance Company of New York, a New York insurance company (“WRNY” or the “Corporation”), hereby certifies that the following is a true and correct copy of resolutions adopted by the WRNY Board of Directors on May 2, 2019 and such resolutions remain in full force and effect as of the date below:

WHEREAS, Mutual of America Life Insurance Company (“Mutual”), acting in its capacity and with the authority granted and delegated to it under the Administrative Services Agreement dated as of February 28, 2001 performs all necessary tasks with regard to servicing and maintaining American Separate Accounts No. 2 and No. 3, and Mutual has assumptively reinsured the contracts and policies in said Separate Accounts as part of the sale of the Corporation, formerly known as American Life Insurance Company of New York, to Inviva, Inc. in March 2001; and

WHEREAS, the American Separate Accounts No. 2 and No. 3 have 16 investment alternatives available to contract and policy holders, all of which are also available to contract, certificate and policy holders in Mutual’s Separate Accounts, including the Mutual of America Investment Corporation Equity Index Fund, the Mutual of America Investment Corporation All America Fund, the Mutual of America Investment Corporation Mid-Cap Equity Index Fund, the Mutual of America Investment Corporation Small Cap Value Fund, the Mutual of America Investment Corporation Small Cap Growth Fund, the Mutual of America Investment Corporation Composite Fund, the Mutual of America Investment Corporation Bond Fund, the Mutual of America Investment Corporation Mid-Term Bond Fund, and the Mutual of America Investment Corporation Money Market Fund (collectively, the “Investment Corporation Funds”); and

WHEREAS, Mutual of America Investment Corporation intends to no longer be an insurance-dedicated mutual fund series, and Mutual has determined that it would be in the best interests of the contract, certificate and policy holders in Mutual’s Separate Accounts who own certain types of contracts and policies to seek a substitution order from the Securities and Exchange Commission (“SEC”) that would transfer all assets of contract, certificate and policy holders in such contracts and policies that are invested in the Investment Corporation Funds to comparable funds of Mutual of America Variable Insurance Portfolios, Inc., a newly formed insurance-dedicated mutual fund series, as follows:

WHEREAS, Mutual has recommended that the American Separate Accounts should engage in a similar substitution order with respect to the contracts and policies issued thereunder, which Mutual is willing to seek on behalf of the American Separate Accounts at no cost to the Corporation or its Separate Accounts.

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WILTON REASSURANCE LIFE COMPANY OF NEW YORK

SECRETARY’S CERTIFICATE

NOW, THEREFORE, IT IS RESOLVED, that the Chairman, President and Chief Executive Officer of Mutual, and such other Officers of Mutual as the Chairman, President and Chief Executive Officer of Mutual may determine, and are hereby authorized and empowered to take any and all actions that they, in the exercise of their business judgment, believe to be appropriate and necessary and to execute and file any and all documents that may be required in connection with the proposal to remove the Mutual of America Investment Corporation funds as investment alternatives under American Separate Account No. 2 and American Separate Account No. 3 and to substitute the portfolios of Mutual of America Variable Insurance Portfolios, Inc., as follows

FURTHER RESOLVED, that the Chairman, President and Chief Executive Officer of Mutual, and such other Officers of Mutual as the Chairman, President and Chief Executive Officer of Mutual may determine, are hereby authorized and directed to take any and all actions that they, in the exercise of their business judgment, believe to be appropriate and necessary in connection with the operations of the American Separate Account No. 2 and American Separate Account No. 3 and in connection with such actions to execute and file any and all documents that may be required in order to comply with all applicable laws and regulations, including the New York State Insurance Law and regulations issued thereunder, the Securities Act of 1933, as amended, the Securities Exchange Act of 1934, as amended, and the Investment Company Act of 1940, as amended, including without limitation exemptive applications, applications for other orders permitted or required for actions under applicable laws and regulations, such as investment fund substitutions, and amendments to such documents and applications, with any state or federal regulatory agency, including but not limited to the New York State Department of Financial Services and the Securities and Exchange Commission; and

FURTHER RESOLVED, that Mutual shall report to the Board of Directors any material action(s) taken with respect to the operation of American Separate Account No. 2 and American Separate Account No. 3 within a reasonable time after such action has been taken.

IN WITNESS WHEREOF, the undersigned has executed and delivered this Certificate this 13th day of May 2019.

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APPENDIX B-3

Resolutions of Mutual of America Variable Insurance Portfolios, Inc.

Authorizing the filing of the Application

SECRETARY’S CERTIFICATE

The undersigned, Scott H. Rothstein, being the Secretary of Mutual of America Variable Insurance Portfolios, Inc. (the “Corporation”), a Maryland corporation, does hereby certify that below is a true and correct reproduction of resolutions adopted by the Board of Directors of the Corporation on May 13, 2019, and that such resolution remains in full force and effect as of the date below:

RESOLVED, that the President, the Treasurer and the Secretary of the Corporation be, and each of them hereby individually is, authorized to prepare, with the assistance of counsel, and to sign and file with the Securities and Exchange Commission under Sections 17(b) and 17(d) of the Investment Company Act of 1940 and any other appropriate section of that Act or any rule thereunder, for exemptions from such provisions of that Act or Rules thereunder as such officers, upon the advice of counsel, may deem necessary or advisable, and any actions previously taken in this regard are ratified, confirmed and adopted.

IN WITNESS THEREOF, I have signed this certificate and affixed the seal of the Corporation this 13th day of May, 2019.

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APPENDIX B-4

Resolutions of Mutual of America Capital Management LLC

Authorizing the filing of the Application

SECRETARY’S CERTIFICATE

The undersigned, Scott H. Rothstein, being the Executive Vice President, Deputy General Counsel and Corporate Secretary of Mutual of America Capital Management LLC, a Delaware limited liability company (the “Company”), does hereby certify that below is a true and correct reproduction of resolutions adopted by the Board of Directors of the Company at a meeting held on May 1, 2019, and that such resolutions remain in full force and effect as of the date below:

WHEREAS, Mutual of America Life Insurance Company (“Mutual of America”) and Wilton Reassurance Life Company of New York (“Wilton”) and certain of their respective separate accounts will apply for an order of exemption pursuant to Section 26(c) of the Investment Company Act of 1940, as amended (the “1940 Act”), approving the substitution of certain investment portfolios of Mutual of America Investment Corporation with shares of the investment portfolios of certain series of Mutual of America Variable Insurance Portfolios (the “Substitution Order”) for certain contracts issued thereunder; and

WHEREAS, management has recommended that Mutual of America Capital Management LLC (“Capital Management”) file with the Securities and Exchange Commission (“SEC”) an application for an order of exemption pursuant to Section 17(b) of the 1940 Act from certain provisions of Section 17(a) of the 1940 Act to the extent necessary to permit Capital Management to utilize in-kind transactions to carry out the Substitution Order (the “Exemptive Application”).

IT IS THEREFORE RESOLVED, that the Board of Managers hereby approves the filing of the Exemptive Application on behalf of Capital Management, and any amendments thereto, with the SEC; and further

RESOLVED, that the appropriate officers of Capital Management are hereby authorized to execute and deliver such documents as may be necessary to effect the foregoing, and authorized and directed to take such other actions as they deem reasonably necessary to carry out these resolutions.

IN WITNESS THEREOF, I have signed this certificate and affixed the seal of the Company this 13th day of May, 2019.

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