AMENDED AND RESTATED
--------------------
FUND PARTICIPATION AGREEMENT
----------------------------
This Amended and Restated Fund Participation Agreement ("Agreement") is
entered into as of the 1st day of September, 2006 (the "Effective Date"),
between American Enterprise Life Insurance Company ("Insurance Company"), a
life insurance company organized under the laws of the State of Indiana, and
X.X. Xxxxxx Series Trust II ("Fund"), a business trust organized under the
laws of Delaware, with respect to the Fund's portfolio or portfolios set forth
on Schedule 1 hereto, as such Schedule may be revised from time to time (the
"Series"; if there are more than one Series to which this Agreement applies,
the provisions herein shall apply severally to each such Series). This
Agreement amends and supersedes as of the Effective Date the prior Fund
Participation Agreement between the parties dated April 8, 2003.
ARTICLE I
DEFINITIONS
1.1 "Act" shall mean the Investment Company Act of 1940, as amended.
1.2 "Board" shall mean the Board of Trustees of the Fund having the
responsibility for management and control of the Fund.
1.3 "Business Day" shall mean any day on which the New York Stock Exchange
is open for trading and on which the Fund calculates net asset value per
share pursuant to the rules of the Commission
1.4 "Commission" shall mean the Securities and Exchange Commission.
1.5 "Contract" shall mean a variable annuity or variable life insurance
contract that uses the Fund as an underlying investment medium.
Individuals who participate under a group Contract are "Participants".
1.6 "Contractholder" shall mean any entity that is a party to a Contract
with a Participating Company.
1.7 "Disinterested Board Members" shall mean those members of the Board that
are not deemed to be "interested persons" of the Fund, as defined by the
Act.
1.8 "Participating Companies" shall mean any insurance company (including
Insurance Company), which offers variable annuity and/or variable life
insurance contracts to the public and which has entered into an
agreement with the Fund for the purpose of making Fund shares available
to serve as the underlying investment medium for the aforesaid
Contracts.
1.9 "Plans" shall mean qualified pension and retirement benefit plans.
1.10 "Prospectus" shall mean the Fund's current prospectus and statement of
additional information, as most recently filed with the Commission, with
respect to the Series.
1.11 "Separate Account"shall mean the American Enterprise Variable Life
Account (Registration No. 811-09515 under the Act) and/or American
Enterprise Variable Annuity Account (Registration No. 811-7195 under the
Act), scparate accounts established by Insurance Company in accordance
with the laws of the State of Indiana. The provisions herein shall apply
severally to each such Separate Account.
1.12 "Software Program" shall mean the software program used by the Fund for
providing Fund and account balance information including net asset value
per share.
1.13 "Insurance Company's General Account(s)" shall mean the general
account(s) of Insurance Company and its affiliates which invest in the
Fund.
ARTICLE II
REPRESENTATIONS
2.1 Insurance Company represents and warrants that (a) it is an insurance
company duly organized and in good standing under applicable law; (b) it
has legally and validly established the Separate Account pursuant to the
Indiana Insurance Code for the purpose of offering to the public certain
individual variable annuity contracts; (c) it has registered or shall
register the Separate Account as a unit investment trust under the Act,
to the extent required by the Act, to serve as the segregated investment
account for the Contracts; (d) each Separate Account is eligible to
invest in shares of the Fund without such investment disqualifying the
Fund as an investment medium for insurance company separate accounts
supporting variable annuity contracts or variable life insurance
contracts; and (e) each Separate Account shall comply with all
applicable legal requirements.
2.2 Insurance Company represents and warrants that (a) the Contracts will be
described in a registration statement filed, to the extent necessary,
under the Securities Act of 1933, as amended ("1933 Act"); (b) the
Contracts will be issued and sold in compliance in all material respects
with all applicable federal and state laws; and (c) the sale of the
Contracts shall comply in all material respects with state insurance law
requirements. Insurance Company agrees to inform the Fund promptly of
any investment restrictions imposed by state insurance law and
applicable to the Fund.
2.3 Insurance Company represents and warrants that the income, gains and
losses, whether or not realized, from assets allocated to the Separate
Account are, in accordance with the applicable Contracts, to be credited
to or charged against such Separate Account without regard to other
income, gains or losses from assets allocated to any other accounts of
Insurance Company. Insurance Company represents and warrants that the
assets of the Separate Account are and will be kept separate from
Insurance Company's General Account and any other separate accounts
Insurance Company may have, and will not be
charged with liabilities from any business that Insurance Company may
conduct or the liabilities of any companies affiliated with Insurance
Company.
2.4 Fund represents that the Fund is registered with the Commission under
the Act as an open-end management investment company and possesses, and
shall maintain, all legal and regulatory licenses, approvals, consents
and/or exemptions required for the Fund to operate and offer its shares
as an underlying investment medium for Participating Companies. The Fund
will maintain its registration with the Commission under the Act with
respect to each of its Series as long as a Series continues to operate.
The Fund has established five portfolios and may in the future establish
other portfolios.
2.5 Fund represents that it is duly organized and validly existing under
applicable state law and is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code of
1986, as amended (the "Code"), and that it will make every effort to
maintain such qualification (under Subchapter M or any successor or
similar provision) and that it will notify Insurance Company immediately
upon having a reasonable basis for believing that it has ceased to so
qualify or that it might not so qualify in the future.
2.6 Insurance Company represents and agrees that the Contracts are intended
to be treated as life insurance policies or annuity contracts, whichever
is appropriate, under applicable provisions of the Code, and that it
will make every effort to maintain such treatment and that it will
notify the Fund and its investment adviser immediately upon having a
reasonable basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future. Insurance
Company agrees that any prospectus offering a Contract that is a
"modified endowment contract," as that term is defined in Section 7702A
of the Code, will identify such Contract as a modified endowment
contract (or policy).
2.7 Fund agrees that the Fund's assets shall be managed and invested in a
manner that complies with the requirements of Section 817(h) of the Code
and Treasury Regulation 1.817-5, as amended from time to time. In the
event of a breach of this representation and warranty by the Fund, it
and/or its investment adviser will take all reasonable steps to notify
the Insurance Company of such breach and to adequately diversify the
Fund so as to achieve compliance within the grace period afforded by
Treasury Regulation 1.817-5.
2.8 Insurance Company agrees that the Fund shall be permitted (subject to
the other terms of this Agreement) to make Series shares available to
other Participating Companies and Contractholders and to Plans.
2.9 Fund represents and warrants that all of its trustees, officers,
employees, investment advisers, and other individuals/entities who deal
with the money and/or securities of the Fund are and shall continue to
be at all times covered by a blanket fidelity bond or similar coverage
for the benefit of the Fund in an amount not less than that required by
Rule l7g-1 under the Act or related provisions as may be promulgated
from time to time. The
aforesaid Bond shall include coverage for larceny and embezzlement and
shall be issued by a reputable bonding company.
2.10 Insurance Company represents and warrants that all of its employees and
agents who deal with the money and/or securities of the Fund are and
shall continue to be at all times covered by a blanket fidelity bond or
similar coverage in an amount not less than the coverage required to be
maintained by the Fund as stated in Section 2.9. The aforesaid Bond
shall include coverage for larceny and embezzlement and shall be issued
by a reputable bonding company.
2.11 Insurance Company agrees that the Fund's investment adviser shall be
deemed a third party beneficiary under this Agreement and may enforce
any and all rights conferred by virtue of this Agreement.
2.12 Fund represents and warrants that its investment objective, policies and
restrictions comply with applicable federal securities laws as they may
apply to the Fund.
2.13 Insurance Company certifies that it:
(a) has adopted and implemented and will monitor, on a continuous
basis, its compliance with its policies and procedures designed to
prevent excessive trading as described in the current prospectuses
and statements of additional information of the SeparateAccount
through which the Contracts are offered in accordance with Form
N-4 or Form N-6 as applicable, and the written policies and
procedures of the Separate Account under the Commission's Rule
38a-1 under the Act. ; and
(b) will cooperate with the Fund's enforcement of its market timing,
late trading, and any redemption fee policies as set forth in the
Prospectus and such other policies established by the Fund from
time to time.
2.14 (a) Subject to applicable law and the terms of each Contract,
Insurance Company will provide promptly upon written request by
Fund, directly or through its designee: (i) the Taxpayer
Identification Number of all Contractholders that purchased,
redeemed, transferred, or exchanged shares of a Fund held under a
Contract during the period covered by the request; and (ii) the
amount and dates of such Contractholders' purchases, redemptions,
transfers and exchanges in subaccounts available under the
Contract which invest in shares of any Series of the Fund during
the period covered by the request.
(b) The Fund's information request pursuant to Section 2.14(a) will
set forth a specific period for which transaction information is
sought. The Fund acknowledges that the Insurance Company's
standard report provides transaction information for the 90 day
period immediately preceding the Insurance Company's receipt of
the Fund's written request. The Fund may request additional
Contractholder transaction information as it deems necessary to
investigate compliance with policies established by the Fund or
the Insurance Company for the purpose of eliminating or reducing
market timing and abusive trading practices.
(c) Insurance Company agrees to transmit the requested information
that is on its books and records to the Fund or its designee
promptly, but in any event not later than fourteeen business days,
after receipt of a request. If the requested information is not on
Insurance Company's books and records, Insurance Company agrees to
use reasonable efforts to: (i) promptly obtain and transmit the
requested information; (ii) obtain assurances from the
accountholder that the requested information will be provided
directly to the Fund promptly; or (iii) if directed by the Fund,
block further purchases of Fund shares from such accountholder. In
such instance, Insurance Company agrees to inform the Fund whether
it plans to perform (i), (ii) or, at the direction of the Fund,
(iii). Responses required by this paragraph must be communicated
in writing and in a format mutually agreed upon by the parties. To
the extent practicable, the format for any transaction information
provided to the Fund should be consistent with the NSCC
Standardized Data Reporting Format.
(d) The Fund agrees that all information provided by the Insurance
Company is subject to the confidentiality provisions set forth in
Section 13.2 of this Agreement.
2.15 (a) Insurance Company will execute any instructions from Fund,
directly or through its designee, to restrict or prohibit further
purchases, redemptions, transfers or exchanges in subaccounts
available under the Contract which invest in shares of any Series
of the Fund by any Contractholder who has been identified by Fund,
or its designee, as having engaged in transactions that violate
policies established by Fund for the purpose of eliminating or
reducing any dilution of the value of outstanding securities
issued by the Fund.
(b) Instructions will include the TIN of each Contractholder to be
restricted and the specific restriction(s) applicable to each
Contractholder to be executed by the Insurance Company. If the
Fund or its designee does not know the Contractholder's TIN, the
Fund or its designee will contact the Insurance Company and the
Insurance Company will promptly provide the TIN.
(c) Insurance Company agrees to execute instructions as soon as
reasonably practicable, but not later than seven business days
after receipt of the instructions by the Insurance Company.
(d) Insurance Company must provide written confirmation to the Fund
that instructions have been executed. Insurance Company agrees to
provide confirmation as soon as reasonably practicable, but not
later than ten business days after the instructions have been
executed.
(e) The parties shall negotiate in good faith such additional terms
and conditions regarding implementation of the foregoing
obligations of the parties under Rule 22c-2 of the Act as any
party may wish to address.
2.16 The parties to this Agreement each represents and warrants that it has
established an Anti-Money Laundering Program ("AML Program") that is
designed to comply with applicable U.S. laws, regulations, and guidance,
including rules of self-regulatory organizations, relating to the
prevention of money laundering, terrorist financing, and related
financial crimes. Their AML Programs include written policies and
procedures regarding the i) verification of the identity of their
customers and the source of their customers' funds, and ii) reporting of
any suspicious transactions in a customer's account. Insurance Company
agrees to cooperate with the Fund to satisfy the Funds' AML due
diligence policies, which may include annual AML compliance
certifications, periodic AML due diligence reviews and/or other requests
deemed necessary to ensure its compliance with the AML regulations.
Insurance Company will (but only to the extent consistent with
applicable law) take all steps necessary and appropriate to provide the
Funds with any requested information about Contractholders and their
Fund investments in the event that the Funds shall request such
information due to an inquirty or investigation by any law enforcement,
regulatory, or administrative authority.
ARTICLE III
FUND SHARES
3.1 The Contracts funded through the Separate Account will provide for the
investment of certain amounts in the Series' shares.
3.2 Fund agrees to make the shares of its Series available for purchase at
the then applicable net asset value per share by Insurance Company and
the Separate Account on each Business Day pursuant to rules of the
Commission. Notwithstanding the foregoing, the Fund may refuse to sell
the shares of any Series to any person, or suspend or terminate the
offering of the shares of any Series if such action is required by law
or by regulatory authorities having jurisdiction or is, in the sole
discretion of the Board, acting in good faith and in light of its
fiduciary duties under federal and any applicable state laws, necessary
and in the best interests of the shareholders of such Series. Shares of
a particular Series will be ordered in such quantities and at such times
as determined by Insurance Company to be necessary to meet the
requirements of the Contracts.
3.3 Fund agrees that shares of the Fund will be sold only to Participating
Companies and their separate accounts and to the general accounts of
those Participating Companies and their affiliates and to Plans. No
shares of any Series will be sold to the general public.
3.4 Fund shall use its best efforts to provide closing net asset value,
dividend and capital gain information for each Series available on a
per-share and Series basis to Insurance Company by 7:00 p.m. Eastern
Time on each Business Day. Fund will notify Insurance Company as soon as
possible if it is determined that the net asset value per share will not
be available until after 7:00 p.m. Eastern Time on any Business Day, and
Fund and Insurance Company will mutually agree upon a final deadline for
timely receipt of the net asset value on such Business Day. Any material
errors in the calculation of net asset value, dividend and capital gain
information shall be reported immediately upon discovery to Insurance
Company. If Insurance Company is provided with materially incorrect net
asset value information, Insurance Company will be entitled to an
adjustment to the number of shares purchased or redeemed to reflect the
correct net asset value per share. Non-material errors will be corrected
in the next Business Day's net asset value per share for the Series in
question.
3.5 At the end of each Business Day, Insurance Company will use the
information described in Sections 3.2 and 3.4 to calculate the Separate
Account unit values for the day. Using this unit value, Insurance
Company will process the day's Separate Account transactions received by
it by the close of trading on the floor of the New York Stock Exchange
(currently 4:00 p.m. Eastern time) to determine the net dollar amount of
Series shares which will be purchased or redeemed at that day's closing
net asset value per share for such Series. The net purchase or
redemption orders will be transmitted to the Fund by Insurance Company
by 10:00 a.m. Eastern Time on the Business Day next following Insurance
----------
Company's receipt of that information. Subject to Sections 3.6 and 3.8,
all purchase and redemption orders for Insurance Company's General
Accounts shall be effected at the net asset value per share of the
relevant Series next calculated after receipt of the order by the Fund
or its Transfer Agent.
3.6 Fund appoints Insurance Company as its agent for the limited purpose of
accepting orders for the purchase and redemption of shares of each
Series for the Separate Account, Receipt of an order by Insurance
Company will constitute receipt of such order by Fund. Fund will execute
orders for any Series at the applicable net asset value per share
determined as of the close of trading on the day of receipt of such
orders by Insurance Company acting as agent ("effective trade date"),
provided that the Fund receives notice of such orders by 10:00 a.m.
----------
Eastern Time on the next following Business Day and, if such orders
request the purchase of Series shares, the conditions specified in
Section 3.8, as applicable, are satisfied. A redemption or purchase
request for any Series that does not satisfy the conditions specified
above and in Section 3.8, as applicable, will be effected at the net
asset value computed for such Series on the Business Day immediately
preceding the next following Business Day upon which such conditions
have been satisfied.
3.7 Insurance Company will make its best efforts to notify Fund in advance
of any unusually large purchase or redemption orders.
3.8 If Insurance Company's order requests the purchase of Series shares,
Insurance Company will pay for such purchases by wiring federal funds to
Fund or its designated custodial account before the close of the Federal
-------------------------------
Reserve wire system on the Business Day the
-------------------
Fund receives the notice of the order pursuant to Section 3.5. Fund will
execute such orders at the applicable net asset value per share
determined as of the close of trading on the effective trade date if
Fund receives payment before the close of the Federal Reserve wire
--------------------------------------------
system on the Business Day the Fund receives the notice of the order
------
pursuant to Section 3.5. If payment in federal funds for any purchase is
not received on such Business Day, Insurance Company shall promptly upon
the Funds request, reimburse the Fund for any charges, costs, fees,
interest or other expenses incurred by the Fund in connection with any
advances to, or borrowings or overdrafts by, the Fund, or any similar
expenses incurred by the Fund, as a result of portfolio transactions
effected by the Fund based upon such purchase request.
3.9 Fund has the obligation to ensure that Series shares are registered with
applicable federal agencies at all times and are duly authorized for
issuance in accordance with applicable law.
3.10 Fund will confirm in writing each purchase or redemption order made by
Insurance Company. Issuance and transfer of Series shares will be by
book entry only. No share certificates will be issued to Insurance
Company or any Separate Account. Insurance Company will record shares
ordered and redeemed from Fund in an appropriate title for the
corresponding account
3.11 Fund shall credit Insurance Company with the appropriate number of
shares.
3.12 No later than each ex-dividend date of the Fund or, if an ex-dividend
date is not a Business Day, on the first Business Day thereafter, Fund
shall communicate to Insurance Company the amount of dividend and
capital gain, if any, per share of each Series. All dividends and
capital gains of any Series shall be automatically reinvested in
additional shares of the relevant Series at the applicable net asset
value per share of such Series on the payable date; provided, however,
Insurance Company reserves the right to change this election and receive
all such dividends and distributions in cash. Fund shall, on the day
after the payable date or, if not a Business Day, on the first Business
Day thereafter, notify Insurance Company of the number of shares so
issued.
ARTICLE IV
STATEMENTS AND REPORTS
4.1 Fund shall provide monthly statements of account as of the end of each
month for all of Insurance Company's accounts by the fifteenth (15th)
Business Day of the following month.
4.2 At the option of Insurance Company, Fund shall either (i) provide to
Insurance Company copies of the Funds Prospectuses, proxy materials,
notices, periodic reports and other printed materials (which the Fund
customarily provides to its shareholders) ("Fund Materials") in
quantities as Insurance Company may reasonably request for distribution
to each Contract holder and Participant; or (ii) provide Insurance
Company with a camera-ready copy, computer disk or other medium agreed
to by the parties of Fund
Materials in a form suitable for printing. The Fund will bear the cost
of typesetting and printing such Fund Materials.
4.3 Fund will provide to Insurance Company at least one complete copy of all
registration statements, Prospectuses, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above,
that relate to the Fund or its shares, contemporaneously with the filing
of such document with the Commission or other regulatory authorities.
4.4 Insurance Company will provide to the Fund at least one copy of all
registration statements, prospectuses, reports, proxy statements, sales
literature and other promotional materials, applications for exemptions,
requests for no-action letters, and all amendments to any of the above,
that relate to the Contracts or the Separate Account, contemporaneously
with the filing of such document with the Commission.
4.5 Fund will provide written instruction to all Participating Companies
including Insurance Company each time Fund amends or supplements a
Series current Prospectus or statement of additional information
directing the Participating Companies including Insurance Company as to
whether the amendment or supplement is to be provided (a) immediately to
Contractholders who have Contract value allocated to a Series or (b) is
to be held and combined with another Fund or Contract related mailing as
permitted by applicable federal securities laws. Fund agrees that the
instruction it gives Insurance Company in each instance will be
identical to the instruction it provides other Participating Companies.
4.6 In the event Fund initiates (i) a reorganization as defined by Section 2
of the Act, or (ii) changes Fund's name or the name of a Series, Fund
will bear, or arrange for others to bear, Insurance Company's
out-of-pocket costs associated with the aforementioned actions.
Insurance Company agrees to use its best efforts to minimize any costs
incurred and shall provide Fund or its designated agent with acceptable
documentation of any such costs incurred.
ARTICLE V
EXPENSES
5.1 The charge to the Fund for all expenses and costs of the Series,
including but not limited to management fees, administrative expenses
and legal and regulatory costs, will be made in the determination of the
relevant Series daily net asset value per share so as to accumulate to
an annual charge at the rate set forth in the Fund's Prospectus.
Excluded from the expense limitation described herein shall be brokerage
commissions and transaction fees and extraordinary expenses.
5.2 Except as provided in this Article V and, in particular in the next
sentence, Insurance Company shall not be required to pay directly any
expenses of the Fund or expenses relating to the distribution of its
shares. Insurance Company shall pay distribution expenses of any Fund
Materials for prospective Insurance Company Contractholders and
Participants or marketing materials that the Insurance Company wishes or
is required to distribute to prospective Insurance Company
Contractholders and Participants.
Except as provided herein, all other Fund expenses shall not be borne by
Insurance Company.
ARTICLE VI
EXEMPTIVE RELIEF
6.1 Insurance Company has reviewed a copy of the order dated December 1996
of the Securities and Exchange Commission under Section 6(c) of the Act
and, in particular, has reviewed the conditions to the relief set forth
in the related Notice. As set forth therein, Insurance Company agrees to
report any potential or existing conflicts of which it becomes aware
promptly to the Board, and in particular whenever contract voting
instructions are disregarded, and recognizes that it will be responsible
for assisting the Board in carrying out its responsibilities as
delineated in such Notice. Insurance Company agrees to carry out such
responsibilities with a view to the interests of existing
Contractholders.
6.2 The Board will monitor Fund for existence of any irreconcilable material
conflict among the interests of the Contractholders of all Separate
Accounts investing in the Fund. The Board will record in its minutes, or
other appropriate records, all reports received by it and all action
taken with regard to a conflict. If a majority of the Board, or a
majority of Disinterested Board Members, determines that a material
irreconcilable conflict exists, the Board shall give prompt notice to
all Participating Companies. If the Board determines that Insurance
Company is responsible for causing or creating said conflict, Insurance
Company shall at its sole cost and expense, and to the extent reasonably
practicable (as determined by a majority of the Disinterested Board
Members), take such action as is necessary to remedy or eliminate the
irreconcilable material conflict. Such necessary action may include, but
shall not be limited to:
(a) Withdrawing the assets allocable to the affected subaccount of the
Separate Account from the Series, terminating this Agreement with
regard to such subaccount and reinvesting such assets in a
different investment medium, or submitting the question of whether
such segregation should be implemented to a vote or all affected
Contractholders; and/or
(b) Establishing a new registered management investment company.
6.3 If a material irreconcilable conflict arises as a result of a decision
by Insurance Company to disregard Contractholder voting instructions and
such disregard of voting instructions could conflict with the majority
of Contractholder voting instructions, and said decision represents a
minority position or would preclude a majority vote by all
Contractholders having an interest in the Fund, Insurance Company may be
required, at the Board's election, to withdraw the affected subaccount
of the Separate Account's investment in the Fund and terminate this
Agreement with regard to such subaccount; provided, however,
that such withdrawal and termination will be limited to the extent
required by the foregoing irreconcilable material conflict as determined
by a majority of the Disinterested Board Members. No charge or penalty
will be imposed as a result of such withdrawal. Any such withdrawal and
termination must take place within six (6) months after Fund gives
written notice to Insurance Company that this provision is being
implemented. Until the end of such six-month period the investment
adviser of Fund and Fund will, to the extent permitted by law and any
exemptive relief previously granted to Fund, continue to accept and
implement orders by Insurance Company for the purchase (and redemption)
of shares of Fund.
6.4 For the purpose of this Article, a majority of the Disinterested Board
Members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the
Fund be required to bear the expense of establishing a new funding
medium for any Contract. Insurance Company shall not be required by this
Article to establish a new funding medium for any Contract if an offer
to do so has been declined by vote of a majority of the Contractholders
materially adversely affected by the irreconcilable material conflict.
6.5 No action by Insurance Company taken or omitted, and no action by the
Separate Account or the Fund taken or omitted as a result of any act or
failure to act by Insurance Company pursuant to this Article VI shall
relieve Insurance Company of its obligations under, or otherwise affect
the operation of Article V.
6.6 If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to Insurance Company conflicts
with the majority of other state insurance regulators, then Insurance
Company will withdraw the affected subaccount of the Separate Account's
investment in Fund and terminate this Agreement with respect to such
subaccount; provided, however, that such withdrawal and termination will
be limited to the extent required by the foregoing irreconcilable
material conflict as determined by a majority of the Disinterested Board
Members. No charge or penalty will be imposed as a result of such
withdrawal. Any such withdrawal and termination must take place within
six (6) months after Fund gives written notice to Insurance Company that
this provision is being implemented. Until the end of such six-month
period the investment adviser of Fund and Fund will, to the extent
permitted by law and any exemptive relief previously granted to Fund,
continue to accept and implement orders by Insurance Company for the
purchase (and redemption) of shares of Fund.
ARTICLE VII
VOTING OF FUND SHARES
7.1 Fund shall provide Insurance Company with copies at no cost to Insurance
Company, of the Funds proxy material, reports to shareholders and other
communications to shareholders in such quantity as Insurance Company
shall reasonably require for distributing to Contractholders or
Participants.
If and to the extent required by law, Insurance Company shall:
(a) assist Fund's proxy vendor with soliciting voting instructions
from Contractholders or Participants on a timely basis and in
accordance with applicable law;
(b) vote the Series shares in accordance with instructions received
from Contractholders or Participants; and
(c) vote Series shares for which no instructions have been received in
the same proportion as Series shares for which instructions have
been received;
so long as and to the extent that the Commission continues to interpret
the 1940 Act to require pass-through voting privileges for variable
contract owners.
Insurance Company agrees at all times to vote its General Account shares
in the same proportion as Series shares for which instructions have been
received from Contractholders or Participants. Insurance Company further
agrees to be responsible for assuring that voting Series shares for the
Separate Account is conducted in a manner consistent with other
Participating Companies.
7.2 Fund will comply with all provisions of the Act requiring voting by
shareholders, and in particular, Fund either will provide for annual
meetings (except insofar as the Commission may interpret Section 16 of
the Act not to require such meetings) or, as Fund currently intends, to
comply with Section 16(c) of the Act (although 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, Fund will act in
accordance with the 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.
7.3 Insurance Company agrees that it shall not, without the prior written
consent of the Fund and its investment adviser, solicit, induce or
encourage Contractholders to change or supplement the Fund's current
investment adviser.
ARTICLE VIII
MARKETING AND REPRESENTATIONS
8.1 The Fund or its underwriter shall periodically furnish Insurance Company
with the following documents, in quantities as Insurance Company may
reasonably request:
(a) current Prospectus and any supplements thereto;
(b) other marketing materials.
Expenses for the production of such documents shall be borne in
accordance with Section 5.2 of this Agreement
8.2 Insurance Company shall designate certain persons or entities which
shall have the requisite licenses to solicit applications for the sale
of Contracts. No representation is made as to the number or amount of
Contracts that are to be sold by Insurance Company, Insurance Company
shall make reasonable efforts to market the Contracts and shall comply
with all applicable federal and state laws in connection therewith.
8.3 Insurance Company shall furnish, or shall cause to be furnished, to the
Fund, each piece of sales literature or other promotional material in
which the Fund, its investment adviser or the administrator is named, at
least ten Business Days prior to its use. No such material shall be used
if the Fund reasonably objects to such material. Such objection (if
given) must be in writing within five Business Days after receipt of
such material. The Fund shall use all reasonable efforts to respond
within five days of receipt.
8.4 Insurance Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning the
Fund or any Series in connection with the sale of the Contracts other
than the information or representations contained in the registration
statement or Prospectus, as may be amended or supplemented from time to
time, or in reports or proxy statements for the Fund, or in sales
literature or other promotional material approved by the Fund. Nothing
in this Section 8.4 will be construed as preventing Insurance Company or
its employees or agents from giving advice on investment in the Fund.
8.5 Fund shall furnish, or shall cause to be fiumished, to Insurance
Company, each piece of the Fund's sales literature or other promotional
material in which Insurance Company or the Separate Account is named, at
least ten Business Days prior to its use. No such material shall be used
if Insurance Company reasonably objects to such material. Such objection
(if given) must be in writing within five Business Days after receipt of
such material. Insurance Company shall use all reasonable efforts to
respond within five days of receipt.
8.6 Fund shall not, in connection with the sale of Series shares, give any
information or make any representations or statements on behalf of
Insurance Company or concerning Insurance Company, the Separate Account,
or the Contracts other than the information or representations contained
in a registration statement or prospectus for the Contracts, as may be
amended or supplemented from time to time, or in published reports for
the Separate Account which are in the public domain or approved by
Insurance Company for distribution to Contractholders or Participants,
or in sales literature or other promotional material approved by
Insurance Company.
8.7 For purposes of this Agreement, the phrase "sales literature or other
promotional material" or words of similar import include, without
limitation, advertisements (such as material published, or designed for
use, in a newspaper, magazine or other periodical, radio, television,
telephone or tape recording, videotape display, signs or billboards,
motion pictures or other public media, e.g., on-line networks such as
the Internet or other electronic messages), sales literature (such as
any written communication distributed or made generally available to
customers or the public, including brochures, circulars,
research reports, market letters, form letters, seminar texts, or
reprints or excerpts of any other advertisement, sales literature, or
published article), educational or training materials or other
communications distributed or made generally available to some or all
agents or employees, registration statements, prospectuses, statements
of additional information, shareholder reports and proxy materials, and
any other material constituting sales literature or advertising under
National Association of Securities Dealers, Inc. ("NASD") rules, the Act
or the 1933 Act.
ARTICLE IX
INDEMNIFICATION
9.1 Insurance Company agrees to indemnify and hold harmless the Fund, its
investment adviser, any sub-investment adviser of a Series, and their
affiliates, and each of their respective directors, trustees, officers,
employees, agents and each person, if any, who controls or is associated
with any of the foregoing entities or persons within the meaning of the
1933 Act (collectively, the "Indemnified Parties" for purposes of
Section 9.1), against any and all losses, claims, damages or liabilities
joint or several (including any investigative, legal and other expenses
reasonably incurred in connection with, and any amounts paid in
settlement (with the written consent of Insurance Company) of, any
action, suit or proceeding or any claim asserted) to which the
Indemnified Parties may become subject, under the 1933 Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in
respect to thereof) (i) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact contained in
information furnished by Insurance Company for use in the registration
statement or Prospectus or sales literature or advertisements of the
Fund, or with respect to the Separate Account or the Contracts; or arise
out of or are based upon the omission or the alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, if such statement or
omission was made in reliance on and in conformity with information
furnished to Fund in writing by Insurance Company, or (ii) arise out of
or as a result of conduct, statements or representations (other than
statements or representations contained in the Prospectus and sales
literature or advertisements of the Fund) of Insurance Company or its
agents, with respect to the sale and distribution of Contracts for which
Series shares are an underlying investment; or (iii) arise out of the
wrongful conduct of or violation of applicable federal and state law by
Insurance Company or persons under its control or subject to its
authorization with respect to the sale or distribution of the Contracts
or Series shares; or (iv) arise out of Insurance Company's incorrect
calculation and/or untimely reporting of net purchase or redemption
orders; or (v) arise out of or result from any material breach of any
representation and/or warranty made by the Insurance Company in this
Agreement, or arise out of or result from any other material breach by
Insurance Company or persons under its control or subject to its
authorization of a material term of this Agreement; or (vi) arise as a
result of any failure by Insurance Company or persons under its control
or subject to its authorization to provide the services and furnish the
materials or to make any payments provided for in this Agreement.
Insurance Company will reimburse any Indemnified Party in connection
with reasonable costs directly related to investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
with
respect to clauses (i) and (ii) above Insurance Company will not be
liable in any such case to the extent that any such loss, claim, damage
or liability arises out of or is based upon any untrue statement or
omission or alleged omission made in such registration statement,
prospectus, sales literature, or advertisement in conformity with
written information furnished to Insurance Company by the Fund
specifically for use therein; and provided, further, that Insurance
Company shall not be liable for special consequential, indirect,
punitive, exemplary or incidental damages. This indemnity agreement will
be in addition to any liability which Insurance Company may otherwise
have.
9.2 The Fund agrees to indemnify and hold harmless Insurance Company and
each of its directors, trustees, officers, partners, employees, agents
and each person, if any, who controls or is associated with Insurance
Company within the meaning of the 1933 Act (collectively, the
"Indemnified Parties" for purposes of Section 9.2) against any losses,
claims, damages or liabilities to which Insurance Company or any such
director, trustee, officer, partner, employee, agent or controlling
person may become subject, under the 1933 Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) (i) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in the
registration statement or Prospectus or sales literature or
advertisements of the Fund or any amendment or supplement to the
foregoing; or (ii) arise out of or are based upon the omission to state
in the registration statement or Prospectus or sales literature or
advertisements of the Fund, or any amendment or supplement to the
foregoing, any material fact required to be stated therein or necessary
to make the statements therein not misleading in light of the
circumstances in which they were made; or (iii) arise out of or am based
upon any untrue statement or alleged untrue statement of any material
fact contained in the registration statement or Prospectus or sales
literature or advertisements with respect to the Separate Account or the
Contracts and such statements were based on information provided to
Insurance Company by the Fund; (iv) arise out of or are based on any
wrongful conduct of, or violation of applicable federal and state law
by, the investment adviser of Fund or Fund or persons under their
respective control or subject to their authorization with respect to the
sale of Fund shares; or (v) arise as a result of any failure by Fund,
the investment adviser of Fund or persons under their respective control
or subject to their authorization to provide the services and furnish
the materials under the terms of this Agreement including, but not
limited to, a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification requirements and
procedures related thereto specified in Section 2.7 of this Agreement;
or (vi) arise out of or result from any material breach of any
representation and/or warranty made by the Fund in this Agreement or
arise out of or result from any other material breach of a material term
of this Agreement by the Fund or persons under its control or subject to
its authorization; and the Fund will reimburse reasonable costs directly
related to any legal or other expenses reasonably incurred by Insurance
Company or any such director, trustee, officer, partner, employee, agent
or controlling or associated person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
however, that the Fund will not be liable in any such case to the extent
that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or omission or alleged omission made in such
Registration Statement, Prospectus, sales literature or advertisements
in
conformity with written information furnished to the Fund by Insurance
Company specifically for use therein; and provided, further, that the
Fund shall not be liable for special, consequential, indirect, punitive,
exemplary or incidental damages. This indemnity agreement will be in
addition to any liability which the Fund may otherwise have.
9.3 The Fund shall indemnify and hold Insurance Company harmless against any
and all liability, loss, damages, costs or expenses which Insurance
Company may incur, suffer or be required to pay due to the Funds, its
investment adviser's or persons or entities under their respective
control or subject to their authorization, (i) incorrect calculation of
the daily not asset value, dividend rate or capital gain distribution
rate of a Series; (ii) incorrect reporting of the daily net asset value,
dividend rate or capital gain distribution rate; and (iii) untimely
reporting of the net asset value, dividend rate or capital gain
distribution rate; provided that the Fund shall have no obligation to
indemnify and hold harmless Insurance Company if the incorrect
calculation or incorrect or untimely reporting was the result of
incorrect information furnished by Insurance Company or information
furnished untimely by Insurance Company or otherwise as a result of or
relating to a breach of this Agreement by Insurance Company; and
provided, further, that the Fund shall not be liable for special,
consequential, indirect, punitive, exemplary or incidental damages.
9.4 Promptly after receipt by an Indemnified Party under this Article of
notice of the commencement of any action, such Indemnified Party will,
if a claim in respect thereof is to be made against the indemnifying
party under this Article, notify the indemnifying party of the
commencement thereof. The omission to so notify the indemnifying party
will not relieve the indemnifying party from any liability under this
Article IX except to the extent that the omission results in a failure
of actual notice to the indemnifying party and such indemnifying party
is damaged solely as a result of the failure to give such notice. In
case any such action is brought against any Indemnified Party, and it
notified the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein at its own
expense and, to the extent that it may wish, assume the defense thereof,
with counsel reasonably satisfactory to such Indemnified Party, and to
the extent that the indemnifying party has given notice to such effect
to the Indemnified Party and is performing its obligations under this
Article, the indemnifying party shall not be liable for any legal or
other expenses subsequently incurred by such Indemnified Party in
connection with the defense thereof, other than reasonable costs of
investigation. Notwithstanding the foregoing, in any such proceeding,
any Indemnified Party shall have the right to retain its own counsel,
but the fees and expenses of such counsel shall be at the expense of
such Indemnified Party unless (i) the indemnifying party and the
Indemnified Party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the
Indemnified Party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing interests
between them. The indemnifying party shall not be liable for any
settlement of any proceeding effected without its written consent.
A successor by law of the parties to this Agreement shall be entitled to
the benefits of the indemnification contained in this Article IX.
9.5 No party will be entitled to indemnification under Article IX if such
liability, loss, damage, cost or expense is due to the willful
misfeasance, bad faith, or gross negligence in the performance of such
party's duties under this Agreement, or by reason of such party's
reckless disregard of its obligations or duties under this Agreement by
the Indemnified Party.
ARTICLE X
COMMENCEMENT AND TERMINATION
10.1 This Agreement shall be effective as of the date hereof and shall
continue in force until terminated in accordance with the provisions
herein.
10.2 This Agreement shall terminate without penalty as to one or more Series
at the option of the terminating party:
(a) At the option of Insurance Company or the Fund at any time from
the date hereof upon 60 days advance notice, or later, upon
--
receipt of any required exemptive relief or upon order from the
Commission, unless otherwise agreed to in writing by the parties;
(b) At the option of Insurance Company, if shares of any Series are
not reasonably available to meet the requirements of the Contracts
as determined by Insurance Company. Prompt notice of election to
terminate shall be furnished by Insurance Company, said
termination to be effective upon receipt of notice;
(c) At the option of Insurance Company, upon the institution of formal
proceedings against the Fund or its investment adviser by the
Commission, National Association of Securities Dealers or any
other regulatory body, the expected or anticipated ruling,
judgment or outcome of which would, in Insurance Company's
reasonable judgment, exercised in good faith, materially impair
the Fund's ability to meet and perform the Funds obligations and
duties hereunder. Prompt notice of election to terminate shall be
furnished by Insurance Company with said termination to be
effective upon receipt of notice;
(d) At the option of the Fund, upon the institution of formal
proceedings against Insurance Company by the Commission, the NASD
or any other regulatory body, the expected or anticipated ruling,
judgment or outcome of which would, in the Fund's reasonable
judgment, exercised in good faith, materially impair Insurance
Company's ability to meet and perform Insurance Company's
obligations and duties hereunder. Prompt notice of election to
terminate shall be furnished by the Fund with said termination to
be effective upon receipt of notice;
(e) At the option of the Fund, if the Fund shall determine, in its
sole judgment reasonably exercised in good faith, that Insurance
Company has suffered a material adverse change in its business or
financial condition or is the subject of material adverse
publicity and such material adverse change or material adverse
publicity is likely to have a material adverse impact upon the
business and operation of the Fund or its investment adviser, the
Fund shall notify Insurance Company in writing of such
determination and its intent to terminate this Agreement, and
after considering the actions taken by Insurance Company and any
other changes in circumstances since the giving of such notice,
such determination of the Fund shall continue to apply on the
thirtieth (30th) day following the giving of such notice, which
thirtieth (30) day shall be the effective date of termination;
(f) At the option of Insurance Company, if Insurance Company shall
determine, in its sole judgment reasonably exercised in good
faith, that the Fund has suffered a material adverse change in its
business or financial condition or is the subject of material
adverse publicity and such material adverse change or material
adverse publicity is likely to have a material adverse impact upon
the business and operation of Insurance Company, Insurance Company
shall notify the Fund in writing of such determination and its
intent to terminate this Agreement, and after considering the
actions taken by the Fund and any other changes in circumstances
since the giving of such notice, such determination of Insurance
Company shall continue to apply on the thirtieth (30th) day
following the giving of such notice, which thirtieth (30th) day
shall be the effective date of termination;
(g) Upon termination of the Investment Advisory Agreement between the
Fund and its investment adviser or its successors unless Insurance
Company specifically approves the selection of a new Fund
investment adviser. The Fund shall promptly furnish notice of such
termination to Insurance Company;
(h) In the event the Fund's shares are not registered, issued or sold
in accordance with applicable federal and/or state law, or such
law precludes the use of such shares as the underlying investment
medium of Contracts issued or to be issued by Insurance Company.
Termination shall be effective immediately upon such occurrence
without notice;
(i) At the option of the Fund upon a determination by the Board in
good faith that it is no longer advisable and in the best
interests of shareholders for the Fund to continue to operate
pursuant to this Agreement. Termination pursuant to this
Subsection (i) shall be effective upon notice by the Fund to
Insurance Company of such termination;
(j) At the option of the Fund if the Contracts cease to qualify as
annuity contracts or life insurance policies, as applicable, under
the Code, or if the Fund reasonably believes that the Contracts
may fail to so qualify;
(k) At the option of either party to this Agreement, upon another
party's material breach of any material provision of this
Agreement;
(l) At the option of the Fund, if the Contracts are not registered,
issued or sold in accordance with applicable federal and/or state
law;
(m) Upon assignment of this Agreement unless made with the written
consent of the non-assigning party;
(n) At the option of Insurance Company, upon receipt of Insurance
Company's written notice by Fund, if Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Code, or
under any successor or similar provision, or if Insurance Company
reasonably and in good faith believes that Fund may fail to so
qualify;
(o) At the option of Insurance Company, upon receipt of Insurance
Company's written notice by Fund, with respect to any Series if
Fund fails to meet the diversification requirements specified in
this Agreement or if Insurance Company reasonably and in good
faith believes Fund may fail to meet such requirements;
(p) At the option of Insurance Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the Contract
owners having an interest in the Account (or any subaccount) to
substitute the shares of another investment company for the
corresponding Portfolio shares of the Fund in accordance with the
terms of the Contracts for which those Portfolio shares had been
selected to serve as the underlying investment media. Insurance
Company will give sixty (60) days' prior written notice to the
Fund of the date of any proposed vote or other action taken to
replace the Fund's shares; or
(q) At the option of Insurance Company or the Fund upon a
determination by a majority of the Fund Board, or a majority of
the disinterested Fund Board members, that an irreconcilable
material conflict exists among the interests of: (i) all contract
owners of variable insurance products of all separate accounts; or
(ii) the interests of the Participating Insurance Companies
investing in the Fund as set forth in Article IV of this
Agreement.
Any such termination pursuant to Section 10.2(a), 10.2(d), 10.2(c),
10.2(f), 10.2(g) or 10.2(l) herein shall not affect the operation of
Article V of this Agreement. Any termination of this Agreement shall not
affect the operation of Article IX of this Agreement.
10.3 Notwithstanding any termination of this Agreement pursuant to Section
10.2 hereof, the Fund and its investment adviser shall, at the option of
Insurance Company, continue to make available additional Series shares
pursuant to the terms and conditions of this Agreement, for all
Contracts in effect on the effective date of termination of this
Agreement (hereinafter referred to as "Existing Contracts").
Specifically, without
limitation the owners of the Existing Contracts or Insurance Company,
whichever shall have legal authority to do so, shall be permitted to
reallocate investments in the Series, redeem investments in the Fund
and/or invest in the Fund upon the making of additional purchase
payments under the Existing Contracts. If Series shares continue to be
available after a termination of this Agreement pursuant to Section
10.2, the provisions of this Agreement shall remain in effect and
thereafter either the Fund or Insurance Company may terminate the
Agreement, as so continued pursuant to this Section 10.3, upon prior
written notice to the other party, such notice to be for a period that
is reasonable under the circumstances but if given by the Fund, shall
not be longer than the period needed by the Insurance Company, making a
good faith effort, to obtain any necessary approval(s) from the
Commission or any state regulatory authority.
ARTICLE XI
AMENDMENTS
11.1 Any other changes in the terms of this Agreement shall be made by
agreement in writing between Insurance Company and Fund.
ARTICLE XII
NOTICE
12.1 Each notice required by this Agreement shall be given by certified mail,
return receipt requested, to the appropriate parties at the following
addresses, or such other address which may be provided to the other
party upon written notice:
Insurance Company:
American Enterprise Life Insurance Company
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President
with a copy to:
American Enterprise Life Insurance Company
50607 Ameriprise Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: General Counsel's Office
Fund:
X.X. Xxxxxx Series Trust II
c/o JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mutual Funds - Legal
Notice shall be deemed to be given on the date of receipt by the
addresses as evidenced by the return receipt.
ARTICLE XIII
MISCELLANEOUS
13.1 This Agreement has been executed on behalf of the Fund by the
undersigned officer of the Fund in his capacity as an officer of the
Fund. The obligations of this Agreement shall only be binding upon the
assets and property of the Fund and shall not be binding upon any
Trustee, officer or shareholder of the Fund individually.
13.2 Notwithstanding anything to the contrary contained in this Agreement, in
addition to and not in lieu of other provisions in this Agreement:
(a) "Confidential Information" includes but is not limited to all
proprietary and confidential information of either party and its
subsidiaries, affiliates and licensees (collectively the
"Protected Parties" for purposes of this Section 13.2), including
without limitation all information regarding the customers of the
Protected Parties; or the accounts, account numbers, names,
addresses, social security numbers or any other personal
identifier of such customers; or any information derived
therefrom.
(b) Neither party shall use or disclose Confidential Information for
any purpose other than to carry out the purpose for which
Confidential Information was provided to it as set forth in the
Agreement; and each party agrees to cause all its employees,
agents and representatives, or any other party to whom such party
may provide access to or disclose Confidential Information to
limit the use and disclosure of Confidential Information to that
purpose.
(c) Each party acknowledges that all computer program and procedures
or other information developed or used by the Protected Parties or
any of their employees or agents in connection with the parties'
performance of their duties under this Agreement are the valuable
property of the Protected Parties.
(d) Each party agrees to implement appropriate measures designed to
ensure the security and confidentiality of Confidential
Information, to protect such information against any anticipated
threats or hazards to the security or integrity of such
information, and to protect against unauthorized access to, or use
of, Confidential Information that could result in substantial harm
or inconvenience to any customer of the Protected Parties. Each
party further agrees to cause all its agents, representatives or
subcontractors of, or any other party to whom such party may
provide access to or disclose Confidential Information to
implement appropriate measures designed to meet the objectives set
forth in this Section 13.2.
(e) Each party acknowledges that any breach of the agreements in this
Section 13.2 would result in immediate and irreparable harm to the
Protected Parties for which there would be no adequate remedy at
law and agree that in the event of such a breach, the Protected
Parties will be entitled to equitable relief by way of temporary
and permanent injunctions, as well as such other relief as any
court of competent jurisdiction deems appropriate.
(f) This Section 13.2 shall survive the termination of this Agreement.
13.3 This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
13.4 If any provision of this Agreement will be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement will not be affected thereby.
13.5 This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties. The parties by their
signatures below give their written consent to the future assignment of
this Agreement by American Enterprise Life Insurance Company to its
affiliated company, IDS Life Insurance Company, a Minnesota Corporation,
and to the simultaneous renaming of IDS Life Insurance Company as
RiverSource Life Insurance Company, upon the completion of the merger of
American Enterprise Life Insurance Company with and into IDS Life
Insurance Company on December 31, 2006 at 10:59:59 p.m. Central Time
("Effective Time"), and on the Effective Time, RiverSource Life
Insurance Comapny shall undertake all of American Eneterprise Life
Insurance Company's duties and obligations under this Agreement. On and
after the Effective Time, all references in this Agreement and its
Schedules to American Enterprise Life Insurance Company shall mean and
refer to RiverSource Life Insurance Company.
13.6 Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including without limitation
the Commission, the NASD and state insurance regulators) and will permit
each other and such authorities reasonable access to its books and
records in connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
13.7 Each party represents that the execution and delivery of this Agreement
and the consummation of the transactions contemplated herein have been
duly authorized by all necessary corporate or board action, as
applicable, by such party and when so executed and delivered this
Agreement will be the valid and binding obligation of such party
enforceable in accordance with its terms.
ARTICLE XIV
LAW
14.1 This Agreement shall be construed in accordance with the internal laws
of the State of New York, without giving effect to principles of
conflict of laws.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be duly
executed and attested as of the date first above written.
------------------------------------------------------------------------------
AMERICAN ENTERPRISE LIFE ATTEST:
INSURANCE COMPANY
By: /s/ Xxx X. Xxxxx III By: /s/ Xxxxx Xxxxxx
------------------------------- -------------------------------
Name: Xxx X. Xxxxx III Name: Xxxxx Xxxxxx
Title: Vice President Title: Assistant Secretary
------------------------------------------------------------------------------
X.X. XXXXXX SERIES TRUST II
By: /s/ Xxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxx X. Xxxxx
Title: Sr. Vice President
------------------------------------------------------------------------------
SCHEDULE 1
Name of Series
--------------
X. X. Xxxxxx U.S. Large Cap Core Equity Portfolio
