FIRST AMENDMENT
TO
DISTRIBUTION AGREEMENT
THIS FIRST AMENDMENT TO DISTRIBUTION AGREEMENT dated as of January 1,
2001 by and between THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
for itself and as depositor on behalf of the Equitable Life separate accounts
more particularly described in the Distribution Agreement ("Equitable Life") and
EQUITABLE DISTRIBUTORS, INC. (the "Distributor").
Equitable Life and the Distributor hereby agree to modify and amend the
Distribution Agreement dated as of January 1, 1998 between them (the
"Agreement") from and after the date hereof as follows:
1. The title of Article IV of the Agreement is hereby changed to "Reimbursement
of Expenses".
2. ss. 4.1 of the Agreement is hereby deleted in its entirety and the following
substituted in place thereof:
ss.4.1 (a) Equitable Life will pay, or reimburse the Distributor for,
Qualified Expenses (as hereinafter defined) incurred by the Distributor
as full and complete compensation for its services under this Agreement.
(b) In no event, however, shall Equitable Life be obligated to pay or
reimburse any costs or expenses for personnel, property and services
incurred by the Distributor hereunder which are in excess of the
reasonable market value thereof or which exceed any limit with respect
thereto under Section 4228 of the New York Insurance Law and any New
York Insurance Department regulation issued pursuant thereto
(c) As used herein, "Qualified Expenses" shall mean the amount by which
(i) the reasonable actual direct and indirect costs and expenses
incurred by the Distributor for personnel, property and services on its
part in connection with the sale and servicing of the Products pursuant
to this Agreement, including, without limitation, sums due and payable
to Third Party Broker Dealers and/or Third Party General Agents under
the Sales Agreements, exceeds (ii) any and all revenues received by the
Distributor from third parties as payment or reimbursement for all or
any part of the same services, including, without limitation,
12b-1 fees, if any, paid to the Distributor as principal underwriter of
shares of EQ Advisors Trust or any other investment company sold in
connection with the sale of the Products.
3. ss. 4.2 of the Agreement is hereby deleted in its entirety and the following
substituted in place thereof:
ss. 4.2 Within forty-five (45) days after the end of each calendar
quarter, and more often if desired, the Distributor shall submit to
Equitable Life vouchers for all costs and expenses to be paid or
reimbursed by Equitable Life as herein provided, accompanied by such
supporting documentation as Equitable Life may reasonably request. To
the extent any EDI costs and expenses are incurred partly in connection
with EDI's performance of services hereunder and partly in connection
with other EDI activities, EDI shall reasonably apportion such costs and
expenses between the services provided hereunder and such other
activities and deliver to Equitable, along with the voucher including
such apportioned costs and expenses, statements showing in reasonable
detail the basis for the apportionment of each such item, accompanied
with such supporting documentation as Equitable Life may reasonably
request.
4. A new section, ss. 4.4, is hereby added to the Agreement as follows:
ss. 4.4 In the event Equitable Life shall object to the Distributor's
determination of Qualified Expenses in any voucher, including any
allocations made in connection therewith, Equitable Life shall give
notice of such objection within thirty (30) days of receipt. The parties
shall proceed in good faith to resolve the dispute; provided, however,
that if they are unable to do so within forty-five (45) days thereafter,
either party may elect to have the dispute settled by arbitration
pursuant to Section 8.8 hereof.
5. A new section, ss. 4.5, is hereby added to the Agreement as follows:
ss. 4.5 Settlement in respect of any voucher shall be on a cost basis
and be made within thirty (30) days, unless Equitable Life shall have
given notice within such period objecting to the sums due.
Notwithstanding any provision to the contrary contained herein, the
parties may extend or modify any settlement date or other deadline in
this Section 4.4 or elsewhere in this Agreement by mutual agreement. In
the event that Equitable Life has objected to any sums due in a voucher,
Equitable Life shall pay, within the thirty (30) day period in which
settlement would otherwise be due, settle with the Distributor as to any
Qualified Expenses in such voucher not in dispute, but shall be entitled
to withhold payment of any sums in dispute pending resolution of its
objections.
6. A new section, ss. 4.6, is hereby added to the Agreement as follows:
ss. 4.6 Each party shall have the right to conduct an audit of the
books, records and accounts of the other party upon giving reasonable
notice of its intent to conduct such an audit. In the event of such
audit, each party shall give the other party reasonable cooperation and
access to all books, records and accounts necessary to the audit.
7. Schedule I to the Agreement is hereby deleted in its entity and the schedule
attached hereto as Schedule I is hereby substituted in its place.
8. Schedule II to the Agreement and all references to Schedule II therein are
hereby deleted.
9. A new section, ss. 8.8 is hereby added to the Agreement as follows:
ss. 8.8 Should an irreconcilable difference of opinion between Equitable
Life and the Distributor arise as to the interpretation of any matter
respecting this Agreement, it is hereby mutually agreed that such
differences shall be submitted to arbitration as the sole remedy
available to the parties. Such arbitration shall be in accordance with
the rules of the American Arbitration Association, the arbitrators shall
have extensive experience in the insurance industry, and the arbitration
shall take place in New York, New York.
10. Except as modified and amended hereby, the Agreement is in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this First Amendment
to be duly executed as of the day and year first above written.
THE EQUITABLE LIFE ASSURANCE SOCIETY EQUITABLE DISTRIBUTORS, INC.
OF THE UNITED STATES
By: /s/Xxxxxxx X. Xxxxxx By: /s/Xxxxxxx Xxxxxx
----------------------------------- -------------------------------
Name: Xxxxxxx X. Xxxxxx Name: Xxxxxxx Xxxxxx
Title: Executive Vice President and Title: Chief Operating Officer
Chief Marketing Officer
135092
Distribution Agreement
SCHEDULE I as Amended and Restated in its Entirety
As of January 1, 2001
PRODUCTS
PART 1 - Separate Account No. 49 Products
-----------------------------------------
The Distributor shall distribute the following Products allocated
to Separate Account No. 49:
Equitable Life Accumulator
(Non-Qualified, Rollover XXX, QP, Rollover TSA, Xxxx Conversion XXX, Flexible
Premium XXX, Flexible Premium Xxxx XXX)
Equitable Life Accumulator Select
(Non-Qualified, Rollover XXX, QP, Rollover TSA, Xxxx Conversion XXX)
Equitable Life Accumulator Plus
(Non-Qualified, Rollover XXX, QP, Rollover TSA, Xxxx Conversion XXX)
Equitable Life Accumulator Express
(Non-Qualified, Rollover XXX, Rollover TSA, Xxxx Conversion XXX, Flexible
Premium XXX, Flexible Premium Xxxx XXX)
Equitable Life Accumulator Advisor
(Non-Qualified, Rollover XXX, QP, Rollover TSA, Xxxx Conversion XXX)
PART 2 - Separate Account FP Life Insurance Products
----------------------------------------------------
The Distributor shall distribute the following Products allocated
to Separate Account No. FP:
Equitable Life Incentive Life
Equitable Life IL-COLI
Equitable Life Survivorship Incentive Life
PART 3 - Separate Account No. 46 Products
-----------------------------------------
The Distributor shall distribute the following Products allocated
to Separate Account No. 46:
Equitable Life Variable Immediate Annuity (as settlement option only)
SCHEDULE I to Distribution Agreement
Amended and Restated in its Entirety
As of January 1, 2001
(Continued)
PART 4 - General Account MVA Interest Products
----------------------------------------------
The Distributor shall distribute the following General
Account MVA interest Products:
Equitable Life Income Manager Payout Annuity (Non-Qualified)
Equitable Life Income Manager Payout Annuity (XXX)
PART 5 - General Account FIA Products
-------------------------------------
The Distributor shall distribute the following General
Account fixed immediate annuity Products:
Equitable Life Fixed Immediate Life Annuity
Equitable Life Fixed Immediate Life Annuity with Period Certain
Equitable Life Fixed Immediate Joint and Survivor Annuity
Equitable Life Fixed Immediate Joint and Survivor Annuity with Period Certain
Equitable Life Fixed Immediate Refund Annuity
Equitable Life Fixed Immediate Annuity Certain
PART 6 - General Account Life Insurance Products
------------------------------------------------
The Distributor shall distribute the following General
Account life insurance Products:
Equitable Life Term III Life Insurance
Equitable Life Universal Life Insurance
Equitable Survivorship Universal Life Insurance
Equitable Term 10, 15, 20
Equitable Annual Renewable Term
