AMENDED AND RESTATED
PARTICIPATION AGREEMENT
By and Among
STI CLASSIC VARIABLE TRUST
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into as of this 29th day of November,
2006 by and among STI Classic Variable Trust, an open-end management
investment company organized under the laws of Massachusetts (the "Fund"), and
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY, an Indiana life insurance company
(the "Company"), on its own behalf and on behalf of each separate account of
the Company named in Schedule 1 to this Agreement, as may be amended from time
to time (each account referred to as the "Account").
WHEREAS, the Fund was established for the purpose of serving as the investment
vehicle for insurance company separate accounts supporting variable annuity
contracts and variable life insurance policies to be offered by insurance
companies that have entered into participation agreements with the Fund (the
"Participating Insurance Companies"); and
WHEREAS, the Fund, the Company and Trusco Capital Management, Inc., the Fund's
adviser, initially entered into a participation agreement dated January 1,
2003, which agreement is being amended, restated, and replaced by this
Agreement; and
WHEREAS, beneficial interests in the Fund are divided into several series of
shares, each representing the interest in a particular managed portfolio of
securities and other assets; and
WHEREAS, the Fund has received an order from the Securities and Exchange
Commission (the "SEC") granting Participating Insurance Companies and their
separate accounts relief from the provisions of Sections 9(a), 13(a), 15(a),
and 15(b) of the Investment Company Act of 1940, as amended (the "1940 Act"),
and Rules 6e-2(b)(15) and 6e-3(T)(b)(15) thereunder, to the extent necessary
to permit shares of the Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and unaffiliated
Participating Insurance Companies and certain qualified pension and retirement
plans outside of the separate account context (the "Exemptive Order"); and
WHEREAS, the Company has registered or will register certain variable annuity
contracts and/or variable life insurance polices (the "Contracts") under the
Securities Act of 1931, as amended (the "1933 Act"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the series of the Fund named in
Schedule 2 to this Agreement, as may be amended from time to time (the
"Portfolios"), on behalf of each Account to fund the Contracts; and
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WHEREAS, under the terms and conditions set forth in this Agreement, the Fund
desires to make its Portfolios available as investment options under the
Contracts;
NOW, THEREFORE, in consideration of their mutual promises, the parties agree
as follows:
ARTICLE I. SALE AND REDEMPTION OF FUND SHARES
----------------------------------
1.1. The Fund will sell to the Company those shares of the Portfolios that
each Account orders, executing such orders on a daily basis at the net
asset value next computed after receipt and acceptance by the Fund (or
its agent). Shares of a particular Portfolio of the Fund will be ordered
in such quantities and at such times as determined by the Company to be
necessary to meet the requirements of the Contracts. The Board of
Trustees of the Fund (the "Fund Board") may refuse to sell shares of any
Portfolio to any person, or suspend or terminate the offering of shares
of any Portfolio, if such action is required by law or by regulatory
authorities having jurisdiction or is, in the sole discretion of the
Fund Board, acting in good faith and in light of its fiduciary duties
under federal and any applicable state laws, necessary in the best
interests of the shareholders of such Portfolio.
1.2. The Fund will redeem any full or fractional shares of any Portfolio when
requested by the Company on behalf of an Account at the net asset value
next computed after receipt by the Fund (or its agent) of the request
for redemption, as established in accordance with the provisions of the
then current prospectus of the Fund.
1.3. For purposes of Sections 1.1 and 1.2, the Fund hereby appoints the
Company as its agent for the limited purpose of receiving and accepting
purchase and redemption orders resulting from investment in and payments
under the Contracts. Receipt by the Company will constitute receipt by
the Fund provided that: (a) such orders are received by the Company in
good order prior to the time the net asset value of each Portfolio is
priced in accordance with its prospectus; and (b) the Company will make
best efforts to ensure the Fund receives notice of such orders by 8:15
am. Central Time on the next following Business Day, but no later than
8:30 a.m. Central Time on the next following Business Day. "Business
Day" will mean any day on which the New York Stock Exchange is open for
trading and on which the Fund calculates its net asset value pursuant to
the rules of the SEC.
1.4. The Company will pay for a purchase order on the same Business Day as
the Fund receives notice of the purchase order in accordance with
Section 1.3. The Fund will pay for a redemption order on the same
Business Day as the Fund receives notice of the redemption order in
accordance with Section 1.3 and in the manner established from time to
time by the Fund, except that the Fund reserves the right to suspend
payment consistent with Section 22(e) of the 1940 Act and any rules
thereunder. In any event, absent extraordinary circumstances specified
in Section 22(e) of the 1940 Act, the Fund will make such payment within
five (5) calendar days after the date the redemption order is placed in
order to enable the Company to pay redemption proceeds within the time
specified in Section 22(e) of the 1940 Act or such shorter period of
time as may be
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required by law. All payments will be made in federal funds transmitted
by wire or other method agreed to by the parties.
1.5. Issuance and transfer of the Fund's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Account.
Purchase and redemption orders for Fund shares will be recorded in an
appropriate title for each Account or the appropriate subaccount of each
Account.
1.6. The Fund will furnish same day notice (by wire or telephone, followed by
written confirmation) to the Company of the declaration of any income,
dividends or capital gain distributions payable on each Portfolio's
shares. The Company hereby elects to receive all such dividends and
distributions as are payable on the Portfolio shares in the form of
additional shares of that Portfolio. The Company reserves the right to
revoke this election and to receive all such dividends and distributions
in cash. The Fund will notify the Company of the number of shares so
issued as payment of such dividends and distributions.
1.7. The Fund will make the net asset value per share for each Portfolio
available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and will use
its best efforts to make such net asset value per share available by
5:30 p.m. Central Time, but in no event later than 6:00 p.m. Central
Time each Business Day. The Fund will notify the Company as soon as
possible if it is determined that the net asset value per share will be
available after 6:00 p.m. Central Time on any Business Day, and the Fund
and the Company will mutually agree upon a final deadline for timely
receipt of the net asset value on such Business Day.
1.8. Any material errors in the calculation of net asset value, dividends or
capital gain information will be reported immediately upon discovery to
the Company. An error will be deemed "material" based on the Fund's
interpretation of the SEC's position and policy with regard to
materiality, as it may be modified from time to time. If the Company is
provided with materially incorrect net asset value information, the
Company will be entitled to an adjustment to the number of shares
purchased or redeemed to reflect the correct net asset value per share.
Neither the Fund nor its affiliates will be liable for any information
provided to the Company pursuant to this Agreement which information is
based on incorrect information supplied by or on behalf of the Company
to the Fund.
1.9. The Fund agrees that its shares will be sold only to Participating
Insurance Companies and their separate accounts and to certain qualified
pension and retirement plans to the extent permitted by the Exemptive
Order. No shares of any Portfolio will be sold directly to the general
public. The Company agrees that Fund shares will be used only for the
purposes of funding the Contracts and Accounts listed in Schedule 1, as
amended from time to time.
1.10. The Fund agrees that all Participating Insurance Companies will have the
obligations and responsibilities regarding pass-through voting and
conflicts of interest corresponding to those contained in Section 3.4
and Article IV of this Agreement.
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ARTICLE II. REPRESENTATIONS AND WARRANTIES
------------------------------
2.1. The 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 or will legally and validly
establish each Account as a separate account under applicable
state law;
(c) it has registered or will register to the extent necessary each
Account as a unit investment trust in accordance with the
provisions of the 1940 Act to serve as a segregated investment
account for the Contracts;
(d) it has filed or will file to the extent necessary the Contracts'
registration statements under the 1933 Act and these registration
statements will be declared effective by the SEC prior to the sale
of any Contracts;
(e) the Contracts will be filed and qualified and/or approved for
sale, as applicable, under the insurance laws and regulations of
the states in which the Contracts will be offered prior to the
sale of Contracts in such states; and
(f) it will amend the registration statement under the 1933 Act for
the Contracts and the registration statement under the 1940 Act
for the Account from time to time as required in order to effect
the continuous offering of the Contracts or as may otherwise be
required by applicable law, but in any event it will maintain a
current effective Contracts' and Account's registration statement
for so long as the Contracts are outstanding unless the Company
has supplied the Fund with an SEC no-action letter, opinion of
counsel or other evidence satisfactory to the Fund's counsel to
the effect that maintaining such registration statement on a
current basis is no longer required.
2.2. The Company represents and warrants that the Contracts are intended to
be treated as annuity or life insurance contracts under applicable
provisions of the Internal Revenue Code of 1986, as amended (the
"Internal Revenue Code"), and that it will make every effort to maintain
such treatment and that it will promptly notify the Fund 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.
2.3. The Fund represents and warrants that:
(a) it is duly organized and validly existing under applicable state
law;
(b) it has registered with the SEC as an open-end management
investment company under the 1940 Act;
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(c) Fund shares of the Portfolios offered and sold pursuant to this
Agreement will be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law;
(d) it is and will remain registered under the 1940 Act for as long as
such shares of the Portfolios are sold;
(e) it will amend the registration statement for its shares under the
1933 Act and the 1940 Act from time to time as required in order
to effect the continuous offering of its shares;
(f) it is currently qualified as a Regulated Investment Company under
Subchapter M of the Internal Revenue Code, it will make every
effort to maintain such qualification (under Subchapter M or any
successor or similar provision) and it will notify the 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; and
(g) its investment objectives, policies and restrictions comply with
applicable state securities laws as they may apply to the Fund and
it will register and qualify the shares of the Portfolios for sale
in accordance with the laws of the various states to the extent
deemed advisable by the Fund. The Fund makes no representation as
to whether any aspect of its operations (including, but not
limited to, fees and expenses and investment policies, objectives
and restrictions) complies with the insurance laws and regulations
of any state. The Fund agrees that it will furnish the information
required by state insurance laws so that the Company can obtain
the authority needed to issue the Contracts in the various states.
2.4. The Fund currently does not intend to make any payments to finance
distribution expenses pursuant to Rule l2b-1 under the 1940 Act or
otherwise, although it reserves the right to make such payments in the
future. To the extent that the Fund decides to finance distribution
expenses pursuant to Rule 12b-1, the Fund undertakes to have its Fund
Board, a majority of whom are not "interested" persons of the Fund,
formulate and approve any plan under Rule l2b-1 to finance distribution
expenses.
2.5. The Fund represents and warrants that it will invest money from the
Contracts in such a manner as to ensure that the Contracts will be
treated as variable annuity contracts and variable life insurance
policies under the Internal Revenue Code and the regulations issued
thereunder. Without limiting the scope of the foregoing, the Fund
further represents and warrants that it will comply with Section 817(h)
of the Internal Revenue Code and Treasury Regulation 1.817-5, as amended
from time to time, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any
amendments or other modifications to such Section or Regulation. In the
event of a breach of this representation and warranty by the Fund it
will take all reasonable steps:
(a) to notify the Company of such breach; and
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(b) to adequately diversify the Fund so as to achieve compliance
within the grace period afforded by Treasury Regulation 1.817-5.
2.6. Each party represents and warrants that, as applicable, all of its
directors, officers, employees, investment advisers, and other
individuals/entities having access to the funds and/or securities of the
Fund are and will continue to be at all times covered by a blanket
fidelity bond or similar coverage in an amount not less than the minimal
coverage as required currently by Rule 17g-(l) of the 1940 Act or
related provisions as may be promulgated from time to time. The
aforesaid bond includes coverage for larceny and embezzlement and is
issued by a reputable bonding company.
2.7. The parties represent and warrant that:
(a) The Company acknowledges that the Fund has adopted policies
designed to prevent frequent purchases and redemptions of shares
of the Portfolios in quantities great enough to: (i) disrupt
orderly management of the corresponding investment portfolio, or
(ii) dilute the value of the outstanding shares of that Portfolio
("Disruptive Trading Policies"). These policies are disclosed in
the Fund's prospectus. From time to time, the Fund implements
procedures reasonably designed to enforce the Fund's Disruptive
Trading Policies and shall provide a written description of such
procedures (and revisions thereto) to the Company. As a procedure
in furtherance of its Disruptive Trading Policies, the Fund may
assess fees upon redemption of shares of one or more Portfolios
within certain stated time periods after such shares have been
purchased.
(b) The Fund acknowledges that Company, on behalf of its Accounts, has
adopted policies and procedures reasonably designed to detect and
deter frequent transfers of Contract value among the subaccounts
of the Accounts including those investing in Portfolios available
as investment options under the Contracts. These policies and
procedures are described in the current prospectuses of the
Accounts through which the Contracts are offered.
(c) In furtherance of Section 2.7(a), the Fund may, from time to time,
investigate purchases and redemptions of shares of any Portfolios
by the Company on behalf of the Accounts that appear to violate,
or have the potential to violate, the Fund's Disruptive Trading
Policies. In particular, in the event that the Fund has identified
a particular Contract owner as having engaged in transactions in
Account units that violate the Fund's Disruptive Trading Policies,
the Company agrees, subject to applicable law and the terms of
each Contract, at the written request of the Fund or its designee,
to restrict or prohibit further purchases or exchanges in Account
units by that Contract owner which could result in additional
purchases and redemptions of shares of specified Portfolios in
violation of the Fund's Disruptive Trading Policies.
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In addition, subject to applicable law, when requested by the Fund
or its designee in writing, the Company agrees to provide the
following information with respect to transactions in shares of a
specific Portfolio over a designated period:
o the taxpayer identification number or other
government-issued identifier of the Contract owner or
Contract owners whose transactions in Account units underlie
the Fund share purchases and redemptions being investigated;
and
o the amount, date, and transaction type of every transaction
in Account units during the designated period representing
an indirect investment in the Portfolios being investigated.
The Company agrees to provide the foregoing information that is on
its books and records promptly. If the requested information is
not on its books and records, it agrees to use best efforts to:
o promptly obtain the requested information, or
o at the request of the Fund restrict or prohibit further
purchases or exchanges in Account units by that Contract
owner which could result in additional purchases and
redemptions of a specified Portfolio.
In implementing the foregoing obligations of the parties under
Rule 22c-2, the Company agrees to execute any instructions from
the Fund or its designee to restrict or prohibit purchases or
exchanges by any Contract owner in subaccounts available under a
Contract which invest in shares of the Fund.
2.8. The parties to this Agreement represent and warrant that they shall
comply with all the applicable laws and regulations designed to prevent
money laundering including without limitation the International Money
Laundering Abatement and Anti-Terrorist Financing Act of 2001 (Title III
of the USA PATRIOT ACT), and if required by such laws or regulations
will share information with each other about individuals, entities,
organizations and countries suspected of possible terrorist or money
laundering activities in accordance with Section 314(b) of the USA
PATRIOT ACT.
ARTICLE III. OBLIGATIONS OF THE PARTIES
--------------------------
3.1. The Fund will prepare and be responsible for filing with the SEC and any
state regulators requiring such filing all shareholder reports, notices,
proxy materials (or similar materials such as voting instruction
solicitation materials), prospectuses and statements of additional
information of the Fund. The Fund will bear the costs of registration
and qualification of its shares, preparation and filing of documents
listed in this Section 3.1 and all taxes to which an issuer is subject
on the issuance and transfer of its shares.
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3.2. At the option of the Company, the Fund will either: (a) provide the
Company with as many copies of the Fund's current prospectus, statement
of additional information, annual report, semi-annual report and other
shareholder communications, including any amendments or supplements to
any of the foregoing, as the Company will reasonably request; or (b)
provide the Company with a camera-ready copy, computer disk or other
medium agreed to by the parties of such documents in a form suitable for
printing. The Fund will bear the cost of typesetting and printing such
documents. The Fund will bear the cost of distributing such documents to
existing Contract owners. The Company will bear the cost of distributing
such documents to prospective Contract owners and applicants as
required. The Fund will provide written instruction to all Participating
Insurance Companies including the Company each time the Fund amends or
supplements the Fund's current prospectus or statement of additional
information directing the Participating Insurance Companies as to
whether the amendment or supplement is to be provided (a) immediately to
Contract owners who have Contract value allocated to a Portfolio or (b)
is to be held and combined with another Fund or Contract related mailing
as permitted by applicable federal securities laws. The Fund agrees that
the instruction it gives the Company in each instance will be identical
to the instruction it provides other Participating Insurance Companies.
3.3 Where the Fund requests additional enforcement and/or reporting
capabilities for its own business use that require the Company to modify
its automated data processing systems or to develop and staff manual
systems to accommodate the implementation of the Fund's policy or
procedure, the Fund agrees to negotiate in good faith such additional
terms and conditions, including without limitation, reimbursement of the
expense the Company incurs in order to provide such information. The
Company agrees not to undertake such development without the express,
signed written consent of the Fund.
3.4. The Fund, at its expense, either will:
(a) distribute its proxy materials directly to the appropriate
Contract owners; or
(b) provide the Company or its mailing agent with copies of its proxy
materials in such quantity as the Company will reasonably require
and the Company will distribute the materials to existing Contract
owners and will xxxx the Fund for the reasonable cost of such
distribution. The Fund will bear the cost of tabulation of proxy
votes.
3.5. If and to the extent required by law the Company will:
(a) provide for the solicitation of voting instructions from Contract
owners;
(b) vote the shares of the Portfolios held in the Account in
accordance with instructions received from Contract owners; and
8
(c) vote shares of the Portfolios held in the Account for which no
timely instructions have been received in the same proportion as
shares of such Portfolio for which instructions have been received
from the Company's Contract owners;
so long as and to the extent that the SEC continues to interpret the
1940 Act to require pass-through voting privileges for variable contract
owners. The Company reserves the right to vote Fund shares held in any
segregated asset account in its own right, to the extent permitted by
law.
3.6. The Fund will comply with all provisions of the 1940 Act requiring
voting by shareholders, and in particular, the Fund either will provide
for annual meetings (except insofar as the SEC may interpret Section 16
of the 1940 Act not to require such meetings) or, as the Fund currently
intends, to comply with Section 16(c) of the 1940 Act (although the Fund
is not one of the trusts described in Section 16(c) of that Act) as well
as with Sections 16(a) and, if and when applicable, 16(b). Further, the
Fund will act in accordance with the SEC's interpretation of the
requirements of Section 16(a) with respect to periodic elections of
directors and with whatever rules the SEC may promulgate with respect
thereto.
3.7. The Company will prepare and be responsible for filing with the SEC and
any state regulators requiring such filing all shareholder reports,
notices, prospectuses and statements of additional information of the
Contracts. The Company will bear the cost of registration and
qualification of the Contracts and preparation and filing of documents
listed in this Section 3.7. The Company also will bear the cost of
typesetting, printing and distributing the documents listed in this
Section 3.7 to existing and prospective Contract owners.
3.8. The Company will furnish, or will cause to be furnished, to the Fund
each piece of sales literature or other promotional material in which
the Fund is named, at least ten (10) Business Days prior to its use. No
such material will be used if the Fund reasonably objects to such use
within five (5) Business Days after receipt of such material.
3.9. The Company will not give any information or make any representations or
statements on behalf of the Fund or concerning the Fund in connection
with the sale of the Contracts other than the information or
representations contained in the registration statement, prospectus or
statement of additional information for Fund shares, as such
registration statement, prospectus and statement of additional
information may be amended or supplemented from time to time, or in
reports or proxy statements for the Fund, or in published reports for
the Fund which are in the public domain or approved by the Fund for
distribution, or in sales literature or other material provided by the
Fund, except with permission of the Fund. The Fund agrees to respond to
any request for approval on a prompt and timely basis. Nothing in this
Section 3.9 will be construed as preventing the Company or its employees
or agents from giving advice on investment in the Fund.
3.10. The Fund will furnish, or will cause to be furnished, to the Company or
its designee, each piece of sales literature or other promotional
material in which the Company or its
9
separate account is named, at least ten (10) Business Days prior to its
use. No such material will be used if the Company reasonably objects to
such use within five (5) Business Days after receipt of such material.
3.11. The Fund will not give any information or make any representations or
statements on behalf of the Company or concerning the Company, each
Account, or the Contracts other than the information or representations
contained in a registration statement, prospectus or statement of
additional information for the Contracts, as such registration
statement, prospectus and statement of additional information may be
amended or supplemented from time to time, or in published reports for
each Account or the Contracts which are in the public domain or approved
by the Company for distribution to Contract owners, or in sales
literature or other material provided by the Company, except with
permission of the Company. The Company agrees to respond to any request
for approval on a prompt and timely basis.
3.12. The Fund will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, 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 SEC.
3.13. The Company will provide to the Fund at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, and all
amendments to any of the above, that relate to the Contracts or each
Account, contemporaneously with the filing of such document with the
SEC.
3.14. For purposes of this Article III the phrase "sales literature or other
promotional material" includes, but is not limited to, 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 (i.e., any written
communication distributed or made generally available to customers or
the public, including brochures, circulars, research reports, market
letters, form letters, seminar texts, 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 the rules of the National Association of Securities
Dealers, Inc. (the "NASD"), the 1933 Act or the 0000 Xxx.
3.15. The Fund hereby consents to the Company's use of the name STI Classic
Variable Trust in connection with marketing the Contracts, subject to
the terms of Sections 3.8 and 3.9 of this Agreement, Such consent will
terminate with the termination of this Agreement.
3.16. The Fund is responsible for calculating the Fund's performance
information. The Company will be responsible for calculating the
performance information for the
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Contracts. The Fund will be liable to the Company for any material
mistakes it makes in calculating the performance information which cause
losses to the Company. The Company will be liable to the Fund for any
material mistakes it makes in calculating the performance information
for the Contracts which cause losses to the Fund. Each party will be
liable for any material mistakes it makes in reproducing the performance
information for Contracts or the Fund, as appropriate. The Fund agrees
to provide the Company with performance information for the Fund on a
timely basis to enable the Company to calculate performance information
for the Contracts in accordance with applicable state and federal law.
ARTICLE IV. POTENTIAL CONFLICTS
-------------------
4.1. The Fund Board will monitor the Fund for the existence of any
irreconcilable material conflict among the interests of the contract
owners of all separate accounts investing in the Fund. An irreconcilable
material conflict may arise for a variety of reasons, including: (a) an
action by any state insurance regulatory authority; (b) a change in
applicable federal or state insurance, tax, or securities laws or
regulations, or a public ruling, private letter ruling, no-action or
interpretative letter, or any similar action by insurance, tax, or
securities regulatory authorities; (c) an administrative or judicial
decision in any relevant proceeding; (d) the manner in which the
investments of any Portfolio are being managed; (e) a difference in
voting instructions given by Participating Insurance Companies or by
variable annuity and variable life insurance contract owners; or (f) a
decision by an insurer to disregard the voting instructions of contract
owners. The Fund Board will promptly inform the Company if it determines
that an irreconcilable material conflict exists and the implications
thereof. A majority of the Fund Board will consist of persons who arc
not "interested" persons of the Fund.
4.2. The Company will report any potential or existing conflicts of which it
is aware to the Fund Board. The Company agrees to assist the Fund Board
in carrying out its responsibilities, as delineated in the Exemptive
Order, by providing the Fund Board with all information reasonably
necessary for the Fund Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to inform
the Fund Board whenever Contract owner voting instructions are to be
disregarded. The Fund Board will record in its minutes, or other
appropriate records, all reports received by it and all action with
regard to a conflict.
4.3. If it is determined by a majority of the Fund Board, or a majority of
its disinterested directors, that an irreconcilable material conflict
exists, the Company and other Participating Insurance Companies will, at
their expense and to the extent reasonably practicable (as determined by
a majority of the disinterested directors), take whatever steps are
necessary to remedy or eliminate the irreconcilable material conflict,
up to and including: (a) withdrawing the assets allocable to some or all
of the Accounts from the Fund or any Portfolio and reinvesting such
assets in a different investment medium, including (but not limited to)
another portfolio of the Fund, or submitting the question whether such
segregation should be implemented to a vote of all affected contract
owners and, as appropriate, segregating the assets of any appropriate
group(i.e., variable annuity
11
contract owners or variable life insurance contract owners of one or
more Participating Insurance Companies) that votes in favor of such
segregation, or offering to the affected contract owners the option of
making such a change; and (b) establishing a new registered management
investment company or managed separate account.
4.4. If a material irreconcilable conflict arises because of a decision by
the Company to disregard Contract owner voting instructions, and such
disregard of voting instructions could conflict with the majority of
contract owner voting instructions, and the Company's judgment
represents a minority position or would preclude a majority vote, the
Company may be required, at the Fund's election, to withdraw the
affected subaccount of the Account's investment in the 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 directors of the Fund
Board. 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 the Fund gives written notice to the Company that
this provision is being implemented. Until the end of such six-month
period the Fund will, to the extent permitted by law and any exemptive
relief previously granted to the Fund, continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the
Fund.
4.5. If a material irreconcilable conflict arises because a particular state
insurance regulator's decision applicable to the Company conflicts with
the majority of other state insurance regulators, then the Company will
withdraw the affected subaccount of the Account's investment in the 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 directors of the Fund
Board. 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 the Fund gives written notice to the Company that
this provision is being implemented. Until the end of such six-month
period the Fund will, to the extent permitted by law and any exemptive
relief previously granted to the Fund, continue to accept and implement
orders by the Company for the purchase (and redemption) of shares of the
Fund.
4.6. For purposes of Sections 4.3 through 4.6 of this Agreement, a majority
of the disinterested members of the Fund Board will determine whether
any proposed action adequately remedies any irreconcilable material
conflict, but in no event will the Fund be required to establish a new
funding medium for the Contracts. The Company will not be required by
this Article IV to establish a new funding medium for the Contracts if
an offer to do so has been declined by vote of a majority of Contract
owners affected by the irreconcilable material conflict.
4.7. The Company will at least annually submit to the Fund Board such
reports, materials or data as the Fund Board may reasonably request so
that the Fund Board may fully carry out the duties imposed upon it as
delineated in the Exemptive Order, and said reports,
12
materials and data will be submitted more frequently if deemed
appropriate by the Fund Board.
4.8. If and to the extent that Rule 6e-2 and Rule 6e-3(T) are amended, or
Rule 6e-3 is adopted, to provide exemptive relief from any provision of
the 1940 Act or the rules promulgated thereunder with respect to mixed
or shared funding (as defined in the Exemptive Order) on terms and
conditions materially different from those contained in the Exemptive
Order, then: (a) the Fund and/or the Participating Insurance Companies,
as appropriate, will take such steps as may be necessary to comply with
Rules 6e-2 and 6e-3(T), as amended, and Rule 6e-3, as adopted, to the
extent such rules are applicable; and (b) Sections 3.5, 3.6, 4.1, 4.2,
4.3, 4.4, and 4.5 of this Agreement will continue in effect only to the
extent that terms and conditions substantially identical to such
Sections are contained in such Rule(s) as so amended or adopted.
ARTICLE V. INDEMNIFICATION
---------------
5.1. Indemnification By The Company.
------------------------------
(a) The Company agrees to indemnify and hold harmless the Fund, and
each person, if any, who controls or is associated with the Fund
within the meaning of such terms under the federal securities laws
(but not any Participating Insurance Companies) and any director,
trustee, officer, partner, employee or agent of the foregoing
(collectively, the "Indemnified Parties" for purposes of this
Section 5.1) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with
the written consent of the Company) or litigation (including
reasonable legal and other expenses), to which the Indemnified
Parties may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities or expenses (or actions in respect thereof) or
settlements:
(1) arise out of or are based on any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of
additional information for the Contracts or contained in the
Contracts or sales literature or other promotional material
for the Contracts (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a material
fact required to be stated or necessary to make such
statements not misleading in light of the circumstances in
which they were made; provided that this agreement to
indemnify will not apply as to any Indemnified Party if such
statement or omission or such alleged statement or omission
was made in reliance upon and in conformity with information
furnished to the Company by or on behalf of the Fund for use
in the registration statement, prospectus or statement of
additional information for the Contracts or in the Contracts
or sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the
Contracts or Fund shares; or
13
(2) arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the Fund
registration statement, prospectus, statement of additional
information or sales literature or other promotional
material of the Fund (or any amendment or supplement to any
of the foregoing), or the omission to state therein a
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, if such statement or
omission was made in reliance upon and in conformity with
information furnished to the Fund in writing by or on behalf
of the Company or persons under its control; or
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal or state law by, the Company
or persons under its control or subject to its
authorization, with respect to the purchase of Fund shares
or the sale, marketing or distribution of the Contracts; or
(4) arise as a result of any failure by the Company to provide
the services and furnish the materials under the terms of
this Agreement; or
(5) arise out of any material breach of any representation
and/or warranty made by the Company in this Agreement or
arise out of or result from any other material breach of
this Agreement by the Company or persons under its control
or subject to its authorization;
except to the extent provided in Sections 5.1(b) and 5.3 hereof.
This indemnification will be in addition to any liability that the
Company otherwise may have.
(b) No party will be entitled to indemnification under Section 5.1(a)
if such loss, claim, damage, liability or litigation 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 party seeking indemnification.
(c) The Indemnified Parties promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or actions
by regulatory authorities against them in connection with the
issuance or sale of the Fund shares or the Contracts or the
operation of the Fund.
5.2. Indemnification By The Fund.
---------------------------
(a) The Fund agrees to indemnify and hold harmless the Company and
each person, if any, who controls or is associated with the
Company within the meaning of such terms under the federal
securities laws and any director, trustee, officer, partner,
employee or agent of the foregoing (collectively, the "Indemnified
Parties" for purposes of this Section 5.2) against any and all
losses, claims, expenses,
14
damages, liabilities (including amounts paid in settlement with
the written consent of the Fund) or litigation (including
reasonable legal and other expenses), to which the Indemnified
Parties may become subject under any statute, regulation, at
common law or otherwise, insofar as such losses, claims, damages,
liabilities. or expenses (or actions in respect thereof) or
settlements:
(1) arise out of or are based on any untrue statement or alleged
untrue statement of any material fact contained in the
registration statement, prospectus or statement of
additional information for the Fund or sales literature or
other promotional material of the Fund that was prepared or
approved by the Fund or its designated agent (or any
amendment or supplement to any of the foregoing), or arise
out of or are based on the omission or alleged omission to
state therein a material fact required to be stated or
necessary to make such statements not misleading in light of
the circumstances in which they were made; provided that
this agreement to indemnify will not apply as to any
Indemnified Party if such statement or omission or such
alleged statement or omission was made in reliance upon and
in conformity with information furnished to the Fund or its
designated agent by or on behalf of an Indemnified Party for
use in the registration statement, prospectus or statement
of additional information for the Fund or in sales
literature of the Fund (or any amendment or supplement) or
otherwise for use in connection with the sale of the
Contracts or Fund shares; or
(2) arise out of or are based on any untrue statement or alleged
untrue statement of a material fact contained in the
Contract registration statement, prospectus or statement of
additional information or sales literature or other
promotional material for the Contracts (or any amendment or
supplement to any of the foregoing), or the omission or
alleged omission to state therein a 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, if such statement or omission was made
in reliance upon and in conformity with information
furnished to the Company in writing by or on behalf of the
Fund or persons under its control; or
(3) arise out of or are based on any wrongful conduct of, or
violation of applicable federal and state law by, the Fund
or persons under its control or subject to its authorization
with respect to the sale of Fund shares; or
(4) arise as a result of any failure by the Fund or persons
under its respective control or subject to its 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 2.5 of
this Agreement or any material errors in or
15
untimely calculation or reporting of the daily net asset
value per share or dividend or capital gain distribution
rate (referred to in this Section 5.3(a)(4) as an "error");
provided, that the foregoing will not apply where such error
is the result of incorrect information supplied by or on
behalf of the Company to the Fund or its agent, and will be
limited to (i) reasonable administrative costs necessary to
correct such error, and (ii) amounts which the Company has
paid out of its own resources to make Contract owners whole
as a result of such error; or
(5) 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 this Agreement by the Fund or persons under its
control or subject to its authorization;
except to the extent provided in Sections 5.2(b) and 5.3 hereof.
(b) No party will be entitled to indemnification under Section 5.2(a)
if such loss, claim, damage, liability or litigation 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 party seeking indemnification.
(c) The Indemnified Parties will promptly notify the Fund and the Fund
of the commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against them in connection with
the issuance or sale of the Contracts or the operation of the
Account.
5.3. Indemnification Procedure.
-------------------------
Any person obligated to provide indemnification under this Article V
("Indemnifying Party" for the purpose of this Section 5.3) will not be
liable under the indemnification provisions of this Article V with
respect to any claim made against a party entitled to indemnification
under this Article V ("Indemnified Party" for the purpose of this
Section 5.3) unless such Indemnified Party will have notified the
Indemnifying Party in writing within a reasonable time after the summons
or other first legal process giving information of the nature of the
claim will have been served upon such Indemnified Party (or after such
party will have received notice of such service on any designated
agent), but failure to notify the Indemnifying Party of any such claim
will not relieve the Indemnifying Party from any liability which it may
have to the Indemnified Party against whom such action is brought
otherwise than on account of the indemnification provision of this
Article V, except to the extent that the failure to notify results in
the failure of actual notice to the Indemnifying Party and such
Indemnifying Party is damaged solely as a result of failure to give such
notice. In case any such action is brought against the Indemnified
Party, the Indemnifying Party will be entitled to participate, at its
own expense, in the defense thereof. The Indemnifying Party also will be
entitled to assume the defense thereof, with counsel satisfactory to the
party named in the action. After notice from the Indemnifying
16
Party to the Indemnified Party of the Indemnifying Party's election to
assume the defense thereof, the Indemnified Party will bear the fees and
expenses of any additional counsel retained by it, and the Indemnifying
Party will not be liable to such party under this Agreement for any
legal or other expenses subsequently incurred by such party
independently in connection with the defense thereof other than
reasonable costs of investigation, unless: (a) the Indemnifying Party
and the Indemnified Party will have mutually agreed to the retention of
such counsel; or (b) 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 will not be liable for any
settlement of any proceeding effected without its written consent but if
settled with such consent or if there is a final judgment for the
plaintiff, the Indemnifying Party agrees to indemnify the Indemnified
Party from and against any loss or liability by reason of such
settlement or judgment. A successor by law of the parties to this
Agreement will be entitled to the benefits of the indemnification
contained in this Article V. The indemnification provisions contained in
this Article V will survive any termination of this Agreement.
5.4. Limitation of Liability.
-----------------------
Except as expressly stated herein, as between the parties, in no event
will any party to this Agreement be responsible to any other party for
any incidental, indirect, consequential, punitive or exemplary damages
of any kind arising from this Agreement, including without limitation,
lost revenues, loss of profits or loss of business.
5.5. Arbitration.
-----------
Any controversy or claim arising out of or relating to this Agreement,
or the breach thereof, will be settled by arbitration administered by
the American Arbitration Association in accordance with its Commercial
Arbitration Rules and Title 9 of the U.S. Code. Judgment on the award
rendered by the arbitrators may be entered in any court having
jurisdiction thereof. The number of arbitrators will be three, one of
whom will be appointed by the Company or an affiliate; one of whom will
be appointed by the Fund or an affiliate; and the third of whom will be
selected by mutual agreement, if possible, within 30 days of the
selection of the second arbitrator and thereafter by the administering
authority. The place of arbitration will be Minneapolis, Minnesota. The
arbitrators will have no authority to award punitive damages or any
other damages not measured by the prevailing party's actual damages, and
may not, in any event, make any ruling, finding or award that does not
conform to the terms and conditions of this Agreement. Any party may
make an application to the arbitrators or any court having jurisdiction
hereof seeking injunctive relief to maintain the status quo until such
time as the arbitration award is rendered or the controversy is
otherwise resolved.
17
ARTICLE VI. APPLICABLE LAW
--------------
6.1. This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Minnesota.
6.2. This Agreement will be subject to the Provisions of the 1933 Act, the
Securities Exchange Act of 1934 and the 1940 Act, and the rules and
regulations and rulings thereunder, including such exemptions from those
statutes, rules and regulations as the SEC may grant (including, but not
limited to, the Exemptive Order) and the terms hereof will be
interpreted and construed in accordance therewith.
ARTICLE VII. TERMINATION
-----------
7.1. This Agreement will terminate:
(a) at the option of either party, with or without cause, with respect
to some or all of the Portfolios, upon sixty (60) days' advance
written notice to the other party or, if later, upon receipt of
any required exemptive relief or orders from the SEC, unless
otherwise agreed in a separate written agreement among the
parties;
(b) at the option of the Company, upon receipt of the Company's
written notice by the Fund, with respect to any Portfolio if
shares of the Portfolio are not reasonably available to meet the
requirements of the Contracts as determined in good faith by the
Company; or
(c) at the option of the Company, upon receipt of the Company's
written notice by the Fund, with respect to any Portfolio in the
event any of the Portfolio's shares are not registered, issued or
sold in accordance with applicable state and/or federal law or
such law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by
Company; or
(d) at the option of the Fund, upon receipt of the Fund's written
notice by the Company, upon institution of formal proceedings
against the Company by the NASD, the SEC, the insurance commission
of any state or any other regulatory body regarding the Company's
duties under this Agreement or related to the sale of the
Contracts, the administration of the Contracts, the operation of
the Account, or the purchase of the Fund shares, provided that the
Fund determines in its sole judgment, exercised in good faith,
that any such proceeding would have a material adverse effect on
the Company's ability to perform its obligations under this
Agreement; or
(e) at the option of the Company, upon receipt of the Company's
written notice by the Fund, upon institution of formal proceedings
against the Fund by the NASD, the SEC, or any state securities or
insurance department or any other regulatory body, regarding the
Fund's duties under this Agreement or related to the sale of Fund
shares or the administration of the Fund, provided that the
Company determines in its sole judgment, exercised in good faith,
that any such proceeding would have a
18
material adverse effect on the Fund's ability to perform its
obligations under this Agreement; or
(f) at the option of the Company, upon receipt of the Company's
written notice by the Fund, if the Fund ceases to qualify as a
Regulated Investment Company under Subchapter M of the Internal
Revenue Code, or under any successor or similar provision, or if
the Company reasonably and in good faith believes that the Fund
may fail to so qualify; or
(g) at the option of the Company, upon receipt of the Company's
written notice by the Fund, with respect to any Portfolio if the
Fund fails to meet the diversification requirements specified in
Article II hereof or if the Company reasonably and in good faith
believes the Fund may fail to meet such requirements; or
(h) at the option of either party to this Agreement, upon written
notice to the other party, upon another party's material breach of
any provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that the Fund has suffered
a material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Company,
such termination to be effective sixty (60) days' after receipt by
the other parties of written notice of the election to terminate;
or at the option of the Fund, if the Fund determines in its sole
judgment exercised in good faith, that the Company has suffered a
material adverse change in its business, operations or financial
condition since the date of this Agreement or is the subject of
material adverse publicity which is likely to have a material
adverse impact upon the business and operations of the Fund, such
termination to be effective sixty (60) days' after receipt by the
other parties of written notice of the election to terminate; or
(j) at the option of the 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. The 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
(k) at the option of the 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; or
19
(l) at the option of the Fund in the event any of the Contracts are
not issued or sold in accordance with applicable federal and/or
state law. Termination will be effective immediately upon such
occurrence without notice.
7.2. Notwithstanding any termination of this Agreement, the Fund will, at the
option of the Company, continue to make available additional shares of
the Fund 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") unless such
further sale of shares is proscribed by law, regulation or applicable
regulatory body. Specifically, without limitation, the owners of the
Existing Contracts will be permitted to reallocate investments in the
Portfolios (as in effect on such date), redeem investments in the
Portfolios and/or invest in the Portfolios upon the making of additional
purchase payments under the Existing Contracts. The parties agree that
this Section 7.2 will not apply to any terminations under Article IV and
the effect of such Article IV terminations will be governed by Article
IV of this Agreement.
7.3. The provisions of Article V will survive the termination of this
Agreement and as long as shares of the Fund are held under Existing
Contracts in accordance with Section 7.2, the provisions of this
Agreement will survive the termination of this Agreement with respect to
those Existing Contracts.
7.4. In the event that the Fund should initiate (i) a reorganization as
defined by Section 2 of the 1940 Act, or (ii) a change in the name of a
Portfolio or the Fund, the Fund agrees to reimburse Company the
reasonable costs the Company incurs that are associated with the
reorganization or renaming of the Fund or a Portfolio. The Company and
the Fund shall each use its best efforts to minimize such costs. The
Company shall provide the Fund with acceptable documentation for all
actual costs related to such reorganization or renaming.
ARTICLE VIII. NOTICES
-------
Any notice will be deemed duly given when sent by registered or certified mail
(or other method agreed to by the parties) to each other party at the address
of such party set forth below or at such other address as such party may from
time to time specify in writing to the other parties.
If to the Company:
American Enterprise Life Insurance Company
0000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000
Attention: Vice President
With a copy to:
American Enterprise Life Insurance Company
00000 Xxxxxxxxxx Xxxxxxxxx Xxxxxx
00
Xxxxxxxxxxx, XX 00000
Attention: General Counsel's Office
If to the Fund:
STI Classic Variable Trust
c/o BISYS Fund Service Ohio, Inc.
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
Attention: President
ARTICLE IX. MISCELLANEOUS
-------------
9.1. All persons dealing with the Fund must look solely to the property of
the Fund for the enforcement of any claims against the Fund as neither
the directors, trustees, officers, partners, employees, agents or
shareholders assume any personal liability for obligations entered into
on behalf of the Fund.
9.2. 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 the Fund and the
Company and its subsidiaries, affiliates and licensees
(collectively the "Protected Parties" for purposes of this Section
9.2), 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) No party to this Agreement may use or disclose Confidential
Information for any purpose other than to carry out the purpose
for which Confidential Information was provided as set forth in
the Agreement; and the parties agree to cause all their employees,
agents and representatives, or any other party to whom access to
or disclosure of the Confidential Information may be given to
limit the use and disclosure of Confidential Information to that
purpose.
(c) The parties acknowledge that all computer programs and procedures
or other information developed or used by the Protected Parties or
any of their employees or agents in connection with the Company's
performance of its duties under this Agreement are the valuable
property of the Protected Parties.
(d) The parties agree 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
21
any customer of the Protected Parties; and further agree to cause
all their agents, representatives or subcontractors of, or any
other party to whom the parties may provide access to or disclose
Confidential Information to implement appropriate measures
designed to meet the objectives set forth in this Section 9.2.
(e) The parties acknowledge that any breach of the agreements in this
Section 9.2 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 9.2 shall survive the termination of this Agreement.
9.3. The captions in this Agreement are included for convenience of reference
only and in no way define or delineate any of the provisions hereof or
otherwise affect their construction or effect.
9.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the
same instrument.
9.5. 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.
9.6. This Agreement will not be assigned by any party hereto without the
prior written consent of all the parties. The Fund acknowledges that
Company will merge with and into IDS Life Insurance Company on December
31, 2006 (the "Merger"). IDS Life Insurance Company will change its name
to RiverSource Life Insurance Company simultaneously with the Merger. On
and after the effective time of the Merger, all references in this
Agreement and its Schedules to American Enterprise Life Insurance
Company shall mean and refer to RiverSource Life Insurance Company. The
Fund hereby consents to (i) the transfer of the rights and obligations
of American Enterprise Life Insurance Company under this Agreement to
IDS Life Insurance Company at the effective time of the Merger; and (ii)
the assumption of all duties and obligations of American Enterprise Life
Insurance Company under this Agreement by RiverSource Life Insurance
Company at the effective time of the Merger.
9.7. Each party to this Agreement will cooperate with each other party and
all appropriate governmental authorities (including without limitation
the SEC, 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.
9.8. 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
22
and delivered this Agreement will be the valid and binding obligation of
such party enforceable in accordance with its terms.
9.9. The parties to this Agreement may amend the schedules to this Agreement
from time to time to reflect changes in or relating to the Contracts,
the Accounts or the Portfolios of the Fund or other applicable terms of
this Agreement.
9.10. A copy of the Fund's Declaration of Trust is on file with the Secretary
of State of the Commonwealth of Massachusetts and notice is hereby given
that this instrument is executed on behalf of the trustees and not
individually, and that the obligations of this instrument are not
binding upon any of the trustees, officers or shareholders of the Fund
individually, but binding only upon the assets and property of the Fund.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be
executed in its name and behalf by its duly authorized representative as of
the date specified above.
STI CLASSIC VARIABLE TRUST ATTEST:
By: /s/ R. Xxxxxxx Xxxxx By: /s/ Xxxxxx Xxxxx
--------------------------------- ---------------------------------
Name: R. Xxxxxxx Xxxxx Name: Xxxxxx Xxxxx
------------------------------- -------------------------------
Title: President Title: Administrative Assistant
------------------------------ ------------------------------
AMERICAN ENTERPRISE LIFE
INSURANCE COMPANY ATTEST:
By: /s/ Xxxxxxx Xxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxx III Name: Xxxxx Xxxxxx
Title: Vice President Title: Assistant Secretary
23
SCHEDULE 1
PARTICIPATION AGREEMENT
By and Among
STI CLASSIC VARIABLE TRUST
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The following Accounts of American Enterprise Life Insurance Company are
permitted in accordance with the provisions of this Agreement to invest in
Portfolios of the Fund shown in Schedule 2:
American Enterprise Variable Annuity Account (effective January 1, 2007
the name of this account will be: RiverSource Variable Annuity Account)
24
SCHEDULE 2
PARTICIPATION AGREEMENT
By and Among
STI CLASSIC VARIABLE TRUST
And
AMERICAN ENTERPRISE LIFE INSURANCE COMPANY
The Accounts shown on Schedule 1 may invest in the following Portfolios:
STI Classic Variable Trust Capital Appreciation Fund
STI Classic Variable Trust International Equity Fund
STI Classic Variable Trust Investment Grade Bond Fund
STI Classic Variable Trust Large Cap Relative Value Fund
STI Classic Variable Trust Large Cap Value Equity Fund
STI Classic Variable Trust Mid-Cap Equity Fund
STI Classic Variable Trust Small Cap Value Equity Fund
25
