PARTICIPATION AGREEMENT
By and Among
XXXXXX ADVISORS TRUST
And
LIBERTY XXXXXX ASSET MANAGEMENT, L.P.
And
IDS LIFE INSURANCE COMPANY OF NEW YORK
THIS AGREEMENT, made and entered into as of this 30th day of August,
1999, by and among XXXXXX ADVISORS TRUST, an open-end management investment
company organized under the laws of the Commonwealth of Massachusetts (the
"Fund"), LIBERTY XXXXXX ASSET MANAGEMENT, L.P., a limited partnership organized
under the laws of Delaware (the "Adviser") and IDS LIFE INSURANCE COMPANY OF NEW
YORK, a New York 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 (i) 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 (ii) certain pension and retirement
plans ("Qualified Entities") receiving favorable tax treatment under the
Internal Revenue Code of 1986, as amended (the "Internal Revenue Code"); 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 (each a "Portfolio" and collectively, the
"Portfolios"); and
WHEREAS, the Fund has received an order from the Securities & 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 (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 and each Portfolio thereof 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, prior to offering for sale will
register, certain variable annuity contracts and/or variable life insurance
polices (the "Contracts") under the Securities Act of 1933 (the "1933 Act"); and
WHEREAS, to the extent permitted by applicable insurance laws and regulations,
the Company intends to purchase shares of the Portfolios named in Schedule 2 to
this Agreement, as may be amended from time to time, on behalf of the Account to
fund 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 a Portfolio.
Notwithstanding the foregoing, (i) the Company shall not redeem Fund
shares attributable to Contract owners except in the circumstances
permitted in Section 1.12, and (ii) the Fund may delay redemption of
Fund shares of any Portfolio to the extent permitted by the 1940 Act
and any rules thereunder, or as described in a Portfolio's prospectus.
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 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 (such time referred to as the
"Close of Trading"); and (b) the Fund receives notice of such orders
by 9:00 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. Payment for such purchase order will be made in Federal
funds transmitted by wire to the Fund. Such wire transfer will be
initiated by the Company's bank by 1:00 p.m. Central Time. 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. Payment for such redemption order will be made in Federal funds
transmitted by wire to the Company or any other person properly
designated in writing by the Company. The Fund reserves the right to
suspend payment consistent with Section 22(e) of the Investment
Company Act of 1940, as amended (the "1940 Act") and any rules
thereunder. If payment for a redemption order would require a
Portfolio to dispose of portfolio securities or otherwise incur
additional costs, payment will be made within five days and the Fund
will promptly notify the Company of such delay. The Fund will not bear
any responsibility whatsoever for the proper disbursement or crediting
of redemption proceeds by the Company; the Company alone will be
responsible for such action.
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. The Fund
will use its reasonable best efforts to make such net asset value per
share available by 5:30 p.m. Central Time, and will use its best
efforts to make such net asset value per share available by 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, the Adviser, nor any of their
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 or the
Adviser.
1.9. The Fund agrees that its shares will be sold only to Participating
Insurance Companies and their separate accounts and to Qualified
Entities 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 Company and the Fund acknowledge that the arrangement
contemplated by this Agreement is not exclusive; the cash value of the
Contracts may be invested in other investment companies, provided,
however, that (i) such other investment company, or series thereof,
has investment objectives or policies that are substantially different
from the investment objectives and policies of the Fund underlying the
Contracts specified; or (ii) the Company gives the Fund thirty days
written notice of its intention to make such other investment company
available as a funding vehicle for the Contracts; or (iii) such other
investment company was available as a funding vehicle for the
Contracts prior to the date of this Agreement and the Company so
informs the Fund prior to the execution of this Agreement; or (iv) the
Fund consents to the use of such other investment company, such
consent not to be unreasonably withheld.
1.11. 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.
1.12. The Company may withdraw the Account's investment in the Fund or a
series thereof only: (i) as necessary to facilitate Contract owner
requests; (ii) upon a determination by a majority of the Fund Board,
or a majority of
disinterested Fund Board members, that an irreconcilable material
conflict exists among the interests of (x) some or all Contract owners
or owners of other variable annuity contracts and variable life
insurance policies supported by accounts investing assets attributable
thereto in the Fund or (y) some or all of the Participating Insurance
Companies and/or a person or plan that qualifies to purchase shares of
the Fund that is investing in the Fund; or (iii) in the event that
shares of another investment company are substituted for Portfolio
shares in accordance with the terms of the Contracts upon the (x)
requisite vote of the Contract owners having an interest in the
affected Portfolio and the requisite written consent of the Fund
(unless otherwise required by applicable law); (y) upon issuance of an
SEC exemptive order pursuant to Section 26(b) of the 1940 Act
permitting such substitution; or (z) as may otherwise be permitted
under applicable law.
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, prior to offering the
Contracts for sale will legally and validly establish, each
Account as a separate account under applicable state law;
(c) it has registered or, prior to offering the Contracts for sale
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
offering the 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;
(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;
(g) it has adopted and implement internal controls reasonably
designed to prevent purchase and redemption orders received after
the Close of Trading on any given Business Day from being
aggegated with orders received before the Close of Trading on
that Business Day; and
(h) all orders that the Company transmits to the Fund or it's agent
for processing as of a particular Business Day will relate only
to instructions received by the Company prior to the Close of
Trading on that Business Day.
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, and that it will make every
effort to maintain such treatment and that it will notify the Fund and
the 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.
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;
(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 registered under the 1940 Act;
(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 believes that 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) it will 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 12b-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 12b-1 to finance
distribution expenses.
2.5. The Fund represents and warrants that it believes that the Fund's
investment policies are in material compliance with any investment
restriction set forth in Schedule 3, including restrictions relating
to the diversification requirements for variable annuity, endowment,
or life insurance contracts as set forth in Section 817(h) of the
Internal Revenue Code and Treasury Regulation 1.817-5, as amended from
time to time. Without limiting the scope of the foregoing, the Fund
further represents and warrants that it believes that it currently
complies with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1.817-5, as amended from
time to time, and any amendments or other modifications to such
Section or Regulation. In the event of a breach of this representation
and warranty, the Fund will take all reasonable steps:
(a) to notify the Company of such breach; and
(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 each 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-(1) 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.
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.
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
and 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.
3.3. 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.
3.4. With respect to any matter put to vote of the holders of Fund shares
or Portfolio shares (OVoting SharesO), if and to the extent required
by law the Company will:
(a) provide for the solicitation of voting instructions from Contract
owners;
(b) vote Voting Shares of each Portfolio held in the Account in
accordance with instructions or proxies timely received from
Contract owners; and
(c) vote Voting Shares of the Portfolios held in the Account for
which no timely instructions have been received, in the same
proportion as Voting 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. The Company will be responsible for assuring that
voting privileges for the Account are determined in a manner
consistent with the provisions set forth above.
3.5. 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 3.5. The Company also will
bear the cost of typesetting, printing and distributing the documents
listed in this Section 3.5 to existing and prospective Contract
owners.
3.6. The Company will furnish, or will cause to be furnished, to the Fund
or the Adviser, each piece of sales literature or other promotional
material in which the Fund or the Adviser is named, at least ten (10)
Business Days prior to its use. No such material will be used if the
Fund or the Adviser reasonably
objects to such use within five (5) Business Days after receipt of
such material.
3.7. 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 or the
Adviser for distribution, or in sales literature or other material
provided by the Fund or by the Adviser, except with the written
permission of the Fund or the Adviser. The Fund and the Adviser agree
to respond to any request for approval on a prompt and timely basis.
Nothing in this Section 3.7 will be construed as preventing the
Company or its employees or agents from giving advice on investment in
the Fund.
3.8. The Adviser 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 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.
3.9. The Fund and the Adviser 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 the written permission of the Company. The Company agrees to
respond to any request for approval on a prompt and timely basis.
3.10. 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, promptly after the
filing of such document with the SEC.
3.11. 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, promptly after the filing of such document with the SEC.
3.12. 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.
3.13. The Fund and the Adviser hereby consent to the Company's use of the
name Xxxxxx Advisors Trust and the names of the Portfolios listed on
Schedule 2, as may be amended from time to time, in connection with
marketing the Contracts, subject to the terms of Sections 3.6 and 3.7
of this Agreement. Such consent will terminate with the termination of
this Agreement.
3.14. The Adviser will be responsible for calculating the performance
information for the Fund. The Company will be responsible for
calculating the performance information for the Contracts. The Adviser
will be liable to the Company for any material mistakes it makes in
calculating the performance information for the Fund which cause
losses to the Company. The Company will be liable to the Adviser for
any material mistakes it makes in calculating the performance
information for the Contracts that cause losses to the Adviser. 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 and the Adviser agree 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; (f) a decision by an insurer to
disregard the voting instructions of contract owners; or (g) if
applicable, a decision by a Qualified Entity to disregard the voting
instructions of a person participating in such entity. 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 are 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 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 Account's investment in the Fund and terminate this Agreement
with respect to such Account; 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 Adviser
and 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 Account's investment in the
Fund and terminate this Agreement with respect to such Account;
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 Adviser and 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 or the Adviser 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, 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 Company, 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 3.4, 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.
4.9. The Company, or any affiliate, will maintain at its home office,
available to the SEC (a) a list of its officers, directors and
employees who participate directly in the management or administration
of any Accounts and/or (b) a list of its agents who, as registered
representatives, offer and sell Contracts.
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 or Qualified Entities) 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, joint or several (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 in writing 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
(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
or supervision 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; (including but not limited to a failure,
whether unintentional or in good faith or otherwise, to
comply with the provisions of Section 2.2 of the Agreement,
unless such failure is a result of the Fund's material
breach of the Agreement);
(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 or supervision;
(6) arise out of any failure by the Company to prevent orders
received after the Close of Trading on a Business Day from
being aggregated and communicated to the Fund or it's agent
with orders received before the Close of Trading on that
Business Day; or
(7) arise out of any errors within the reasonable control of the
Company that result in late transmission of orders to the
Fund or it's agent;
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, damages, liabilities, joint
or several (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 other information on
the Fund provided in writing to the Company (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 in writing
by or on behalf of the Company 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 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
untimely calculation or reporting of the daily net asset
value per share or dividend or capital gain distribution
rate (referred to in this Section 5.2(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, and will be limited to
(i) reasonable administrative costs necessary to correct
such error, provided that the Fund has approved such costs
and the method in which the error is to be corrected, which
approval will not be unreasonably withheld, 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 Adviser or persons
under their respective control or subject to their
authorization or supervision;
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 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 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 and/or the Adviser 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 seeking injunctive relief to maintain the status quo until
such time as the arbitration award is rendered or the controversy is
otherwise resolved. Any party may apply to any court having
jurisdiction hereof and seek injunctive relief in order to maintain
the status quo until such time as the arbitration award is rendered or
the controversy is otherwise resolved.
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 any 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 the Company is required
to obtain exemptive relief from the SEC to effect a substitution
of some or all of the Portfolios, such later date as such
exemptive order is received by the Company, unless otherwise
agreed to in writing by the parties;
(b) upon 30 days' notice by the Company to the Fund if shares of the
Portfolio are not reasonably available to meet the requirements
of the Contracts as determined in good faith by the Company, and
the Fund, after receiving written notice from the Company of such
non-availability, fails to make available a sufficient number of
Fund shares to meet the requirements of the Contracts within five
days after receipt thereof; 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) upon 30 days' notice by the Fund to 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) upon 30 days' notice by the Company to the Fund, upon institution
of formal proceedings against the Fund or the Adviser by the
NASD, the SEC, or any state securities or insurance department or
any other regulatory body, regarding the Fund's or the Adviser'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 material adverse effect on the
Fund's ability to perform its obligations under this Agreement;
or
(f) upon 30 days' notice by the Company 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, based on an opinion of counsel reasonably satisfactory
to the Fund, that the Fund may fail to so qualify and the Fund,
upon written request, fails to provide reasonable assurance that
it will take action to cure or correct such failure; or
(g) upon 30 days' notice by the Company to the Fund if the Fund fails
to meet the diversification requirements specified in Article II
hereof and the Fund fails to provide reasonable assurance that it
will take action to cure or correct such failure; or
(h) upon 30 days' written notice by one party to another upon the
other party's material breach of
any provision of this Agreement; or
(i) upon 60 days' written notice by 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; or
(j) upon 60 days' written notice by the Fund to the Company, 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; or
(k) 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
(l) 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
(m) 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.
(n) upon 30 day's notice by the Fund to the Company if the Contracts
cease to qualify as annuity contracts under the Internal Revenue
Code, or the Fund reasonably and in good faith believes, based on
an opinion of counsel reasonably satisfactory to the Company,
that the Contracts may fail to so qualify.
7.2. Notwithstanding any termination of this Agreement, the Fund and the
Adviser 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 OExisting
ContractsO). 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.
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:
IDS Life Insurance Company of New York
249 AXP Financial Center
Xxxxxxxxxxx, XX 00000
ATTN: President
With a copy to:
American Express Financial Advisors Inc.
50607 AXP Financial Center
Xxxxxxxxxxx, XX 00000
ATTN: General Counsel's Office
If to the Fund or the Adviser:
Xxxxx X. Xxxxx
000 X. Xxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
With a copy to:
Xxxxxxx X. Xxxxx
Xxxx, Xxxx & Xxxxx LLC
00 X. Xxxxxxx Xx., Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
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 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) Neither the Fund nor the Adviser may use or disclose Confidential
Information for any purpose other than to carry out the purpose
for which Confidential Information was provided to Fund and/or
Adviser as set forth in the Agreement; and the Fund and the
Adviser agree to cause all their employees, agents and
representatives, or any other party to whom the Fund and/or the
Adviser may provide access to or disclose Confidential
Information to limit the use and disclosure of Confidential
Information to that purpose.
(c) The Fund and the Adviser 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 Fund and the Adviser 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 any customer of the
Protected Parties; the Fund and the Adviser further agree to
cause all their agents, representatives or
subcontractors of, or any other party to whom the Fund and/or the
Adviser 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 Fund and the Adviser 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.
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.
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 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.
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.
XXXXXX ADVISORS TRUST LIBERTY XXXXXX ASSET MANAGEMENT, L.P. by its General
Partner, WAM Acquisition GP, Inc.
By: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxxx
-------------------------------------------- ---------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxxx
Title: Vice President, Secretary and Treasurer Title: Senior Vice President and
Secretary
IDS LIFE INSURANCE COMPANY OF NEW YORK
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxx Xxxxxxx
--------------------------------------- --------------------------
Name: Xxxxxxx X. Xxxxxxxx Name: Xxxx Xxxxx Xxxxxxx
Title: President Title: Assistant Secretary
SCHEDULE 1
PARTICIPATION AGREEMENT
By and Among
XXXXXX ADVISORS TRUST
And
LIBERTY XXXXXX ASSET MANAGEMENT, L.P.
And
IDS LIFE INSURANCE COMPANY OF NEW YORK
The following Accounts of IDS Life Insurance Company of New York are permitted
in accordance with the provisions of this Agreement to invest in Portfolios of
the Fund shown in Schedule 2:
IDS Life of New York Variable Annuity Account
IDS Life of New York Account 8
SCHEDULE 2
PARTICIPATION AGREEMENT
By and Among
XXXXXX ADVISORS TRUST
And
LIBERTY XXXXXX ASSET MANAGEMENT, L.P.
And
IDS LIFE INSURANCE COMPANY
The Accounts shown on Schedule 1 may invest in the following Portfolios:
Xxxxxx International Small Cap
Xxxxxx U.S. Small Cap
SCHEDULE 3
PARTICIPATION AGREEMENT
By and Among
XXXXXX ADVISORS TRUST
And
LIBERTY XXXXXX ASSET MANAGEMENT, L.P.
And
IDS LIFE INSURANCE COMPANY
The following investment restrictions apply to the Fund's investment policies:
