EX-99.B(h)(5)(vii)
PARTICIPATION AGREEMENT
By and Among
XXXXX FARGO VARIABLE TRUST
And
IDS LIFE INSURANCE COMPANY OF NEW YORK
And
XXXXXXXX INC.
THIS AGREEMENT, made and entered into as of the 1/st/ of May, 2000, by and
among IDS Life Insurance Company of New York, a New York corporation (the
"Company"), on its own behalf and on behalf of each separate account of the
Company named in Exhibit A to this Agreement, as may be amended from time to
time (each separate account, a "Separate Account"), and Xxxxx Fargo Variable
Trust, an open-end diversified management investment company organized under the
laws of the State of Delaware (the "Trust"), and Xxxxxxxx Inc., an Arkansas
corporation (the "Underwriter").
WHEREAS, the Trust engages in business as an open-end diversified,
management investment company and was established for the purpose of serving as
the investment vehicle for separate accounts established for variable life
insurance contracts and variable annuity contracts to be offered by insurance
companies which have entered into participation agreements substantially similar
to this Agreement ("Participating Insurance Companies"); and
WHEREAS, beneficial interests in the Trust are divided into several series
of shares, each representing the interest in a particular managed portfolio of
securities and other assets (each, a "Fund"); and
WHEREAS, an order from the U.S. Securities and Exchange Commission (the
"SEC" or "Commission"), dated September 28, 1998 (File No. 812-11158), grants
Participating Insurance Companies and variable annuity separate accounts and
variable life insurance 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 Trust to be sold to and held by
variable annuity separate accounts and variable life insurance separate accounts
of both affiliated and unaffiliated Participating Insurance Companies and
qualified pension and retirement plans ("Mixed and Shared Funding Order"), and
WHEREAS, the Trust is registered as an open-end management investment
company under the 1940 Act and its shares are registered under the Securities
Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Company has registered or will register certain variable
annuity and variable life insurance contracts under the 1933 Act and named in
Exhibit A to this Agreement, as it may be amended from time to time (the
"Contracts"); and
WHEREAS, the Separate Accounts are duly organized, validly existing
segregated asset accounts, established by resolution of the Board of Directors
of the Company under the insurance laws of the State of New York, to set aside
and invest assets attributable to the Contracts; and WHEREAS, the Company has
registered the Separate Accounts as unit investment trusts under the 1940 Act;
and
WHEREAS, the Underwriter is registered as a broker-dealer with the SEC
under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and is a
member in good standing of the National Association of Securities Dealers, Inc.
(the "NASD");
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WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase shares in the Funds named in
Exhibit B on behalf of the Separate Accounts to fund the Contracts, and the
Underwriter is authorized to sell such shares to unit investment trusts such as
the Separate Accounts at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the
Trust, and the Underwriter agree as follows: ARTICLE 1 Sale of Trust Shares 1.1.
The Underwriter agrees to sell to the Company those shares of the Trust which
the Company orders on behalf of the Separate
ARTICLE 1 Sale of Trust Shares
--------------------
1.1. The Underwriter agrees to sell to the Company those shares of the Trust
which the Company orders on behalf of the Separate Accounts, executing such
orders on a daily basis at the net asset value next computed after receipt
and acceptance by the Trust or its designee of the order for the shares of
the Trust. For purposes of this Section 1.1, the Company shall be the
designee of the Trust for receipt of such orders from each Separate Account
and receipt by such designee shall constitute receipt by the Trust;
provided that the Company shall use its best efforts to provide notice to
the Trust of such order by 9:30 a.m. Eastern Time on the next following
Business Day. "Business Day" shall mean any day on which the New York Stock
Exchange is open for trading and on which the relevant Fund calculates its
net asset value.
1.2. The Trust agrees to make its shares available indefinitely for purchase at
the applicable net asset value per share by Participating Insurance
Companies and their separate accounts on those days on which the Trust
calculates its net asset value pursuant to rules of the SEC; provided,
however, that the Board of Trustees of the Trust (hereinafter the
"Trustees") may refuse to sell shares of any Fund to any person, or suspend
or terminate the offering of shares of any Fund, if such action is required
by law or by regulatory
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authorities having jurisdiction, or is, in the sole discretion of the
Trustees, acting in good faith and in light of their fiduciary duties under
federal and any applicable state laws, necessary in the best interests of
the shareholders of any Fund.
1.3. The Trust and the Underwriter agree that shares of the Trust will be sold
only to Participating Insurance Companies and their separate accounts, and
to qualified pension and retirement plans. No shares of the Trust will be
sold to the general public.
1.4. The Trust and the Underwriter will not sell Trust shares to any insurance
company or separate account unless an agreement containing provisions
substantially the same as Articles 1, 3, 5, 7, and Section 2.8 of Article 2
of this Agreement are in effect to govern such sales.
1.5. The Trust will not accept a purchase order from a qualified pension or
retirement plan if such purchase would make the plan shareholder an owner
of 10 percent or more of the assets of a Fund unless such plan executes an
agreement with the Trust governing participation in such Fund that includes
the conditions set forth herein to the extent applicable. A qualified
pension or retirement plan will execute an application containing an
acknowledgment of this condition at the time of its initial purchase of
shares of any Fund.
1.6. The Trust agrees to redeem for cash, upon the Company's request, any full
or fractional shares of the Trust held by the Company, executing such
requests on a daily basis at the net asset value next computed after
receipt and acceptance by the Trust or its designee of the request for
redemption. For purposes of this Section 1.6, the Company shall be the
designee of the Trust for receipt of requests for redemption from each
Separate Account and receipt by such designee shall constitute receipt by
the Trust; provided the that the
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Company shall use its best efforts to provide notice to the Trust of
request for redemption by 9:30 a.m. Eastern Time on the next following
Business Day. Payment shall be in federal funds transmitted by wire to the
Company's account as designated by the Company in writing from time to
time.
1.7. Each purchase, redemption, and exchange order placed by the Company shall
be placed separately for each Fund and shall not be netted with respect to
any Fund. However, with respect to payment of the purchase price by the
Company, the Company shall net purchase orders with respect to each Fund
and shall transmit one net payment for all Funds in accordance with Section
1.8; and with respect to payment of redemption proceeds by the Trust, the
Trust shall net redemption orders with respect to each Fund and shall
transmit one net payment for all Funds in accordance with Section 1.8.
1.8. The Company agrees that purchases and redemptions of Fund shares offered by
the then current prospectus of the Fund shall be made in accordance with
the provisions of such prospectus. The Company agrees that all net amounts
available under the variable life insurance contracts with the form
number(s) which are listed on Schedule A attached hereto and incorporated
herein by this reference, as such Schedule A may be amended from time to
time hereafter by mutual written agreement of all the parties hereto (the
"Contracts") shall be invested in the Funds, in such other Funds managed by
Xxxxx Fargo Bank as may be mutually agreed to in writing by the parties
hereto, or in the Company's general account, provided that such amounts may
also be invested in an investment company other than the Trust if (a) such
other investment company, or series thereof, has investment objectives or
policies that are substantially different from the investment objectives
and policies of all the Funds of the Trust which are actually used by the
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Company to fund the Contracts; or (b) the Company gives the Fund and the
Underwriter 30 days written notice of its intention to make such other
investment company available as a funding vehicle for the Contacts; or
(c) 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 and Underwriter prior to their signing this Agreement
(a list of such funds appearing on Schedule C to this Agreement); or (d)
the Fund or Underwriter consents to the use of such other investment
company.
1.9. In the event of net purchases, the Company shall initiate the wire
transfer for payment of shares by 2:00 p.m. Eastern Time on the next
Business Day after an order to purchase the Shares is deemed to be
received in accordance with the provisions of Section 1.1 hereof. In the
event of net redemptions, the Trust shall pay the redemption proceeds in
accordance with the terms of the then-current prospectus for the Trust.
Absent extraordinary circumstances specified in Section 22(e) of the 1940
Act, the Trust shall 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 period specified in
Section 22(e) of the 1940 Act or such shorter period of time as may be
required by law. All such payments shall be in federal funds transmitted
by wire. For purposes of Section 2.4 and Section 2.11, upon receipt by
the Trust of the federal funds so wired, such funds shall cease to be the
responsibility of the Company and shall become the responsibility of the
Fund.
1.10. Issuance and transfer of the Trust's shares will be by book entry only.
Stock certificates will not be issued to the Company or any Separate
Account. Purchase and redemption
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orders for Trust shares will be recorded in an appropriate title for
each Separate Account or the appropriate subaccount of each Separate
Account.
1.11. The Trust shall furnish same-day notice (by wire or telephone, followed
by written confirmation) to the Company of any income, dividends, or
capital gain distributions payable on the Trust's shares. The Company
hereby elects to receive all such dividends and distributions as are
payable on the Fund shares in the form of additional shares of that
Fund. The Company reserves the right to revoke this election and to
receive all such dividends and distributions in cash. The Trust shall
notify the Company of the number of shares so issued as payment of such
dividends and distributions.
1.12. The Trust shall make the net asset value per share for each Fund
available to the Company on a daily basis as soon as reasonably
practical after the net asset value per share is calculated and shall
use its best efforts to make such net asset value per share available
by 5:30 p.m. Central Time. The Trust shall 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
Trust and the Company will mutually agree upon a final deadline for
timely receipt of the net asset value on such business day.
ARTICLE 2 Representations and Warranties
------------------------------
2.1 The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act, unless exempt therefrom, and that the
Contracts will be issued and sold in compliance with all applicable
federal and state laws and that the sale of the Contracts shall comply
in all material respects with state insurance suitability requirements.
The Company further represents and warrants that: (i) it is an
insurance company duly organized and in good standing under applicable
law; (ii) it has or shall have legally and
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validly established each Separate Account as a segregated asset account
under applicable state law and has or shall have registered each
Separate Account as a unit investment trust in accordance with the
provisions of the 1940 Act, unless exempt therefrom, to serve as
segregated investment accounts for the Contracts; and (iii) it will
maintain such registration, if required, for so long as any Contracts
are outstanding. The Company shall amend any registration statement
under the 1933 Act for the Contracts and any registration statement
under the 1940 Act for the Separate Accounts 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. The Company shall
register and qualify the Contracts for sale in accordance with the
securities laws of the various states only if, and to the extent,
deemed necessary by the Company
2.2. Subject to Article 6 hereof, the Company represents that the Contracts
are currently and at the time of issuance will be treated as life
insurance, endowment, or annuity 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 Trust and the
Underwriter 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 Company represents that any prospectuses offering life insurance
Contracts that could become "modified endowment contracts," as that
term is defined in Section 7702A of the Internal Revenue Code describe
"modified endowment contracts" and the Company will notify a Contract
owner if his or her Contract is or will become a modified endowment
contract (or policy).
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2.4. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other
individuals/entities dealing with the money and/or securities of the
Trust are covered by a blanket fidelity bond or similar coverage in an
amount not less than $5 million. The Company agrees that any amounts
received under such bond in connection with claims that derive from
arrangements described in this Agreement will be held by the Company
for the benefit of the Trust. The Company agrees to see that this bond
or another bond containing these provisions is always in effect, and
agrees to notify the Trust and the Underwriter in the event that such
coverage no longer applies. The aforesaid includes coverage for larceny
and embezzlement and is issued by a reputable bonding company.
2.5. The Trust represents and warrants that Trust shares sold pursuant to
this Agreement shall be registered under the 1933 Act and duly
authorized for issuance in accordance with applicable law, and that the
Trust is and shall remain registered under the 1940 Act for as long as
the Trust shares are sold. The Trust shall amend the registration
statement for its shares under the 1933 and the 1940 Acts from time to
time as required in order to effect the continuous offering of its
shares. The Trust shall register and qualify the shares for sale in
accordance with the laws of the various states only if, and to the
extent, deemed advisable by the Trust or the Underwriter.
2.6. The Trust represents that it is currently qualified as a Regulated
Investment Company under Subchapter M of the Internal Revenue Code, and
that it will make every effort to maintain such qualification (under
Subchapter M or any successor or similar provision) and that it will
notify the Company immediately upon having a reasonable basis for
believing that it has ceased to qualify or that it might not so qualify
in the future.
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2.7. The Trust makes no representations as to whether any aspect of its
operations, including but not limited to, investment policies, fees and
expenses, complies with the insurance and other applicable laws of the
various states, except that the Trust represents that it is and shall
at all times remain in compliance with the laws of the state of
Delaware to the extent required to perform this Agreement. The Trust
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.
2.8. The Trust represents and warrants that to the extent that it decides to
finance distribution expenses pursuant to Rule 12b-1 under the 1940
Act, the Trust undertakes to have its Board of Trustees, a majority of
whom are not interested persons of the Trust, formulate and approve any
plan under Rule 12b-1 ("Rule 12b-1 Plan") to finance distribution
expenses. The Trust shall notify the Company immediately upon
determining to finance distribution expenses pursuant to Rule 12b-1.
2.9. The Trust represents that it is lawfully organized and validly existing
under the laws of Delaware and that it does and will comply with
applicable provisions of the 0000 Xxx.
2.10. The Trust represents and warrants that it all of its trustees,
officers, employees and other individuals/entities having access to the
funds and/or securities of the Trust are and continue to be at all
times covered by a blanket fidelity bond or similar coverage for the
benefit of the Trust 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.
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2.11. The Underwriter represents and warrants that it is a member in good
standing of the NASD and is registered as a broker-dealer with the SEC.
The Underwriter further represents that it will sell and distribute the
Trust's shares in accordance with all applicable federal and state
securities laws, including without limitation the 1933 Act, the 1934
Act, and the 0000 Xxx.
2.12. The Underwriter represents and warrants that the Trust's investment
manager, Xxxxx Fargo Funds Management, LLC, is registered as an
investment adviser under all applicable federal and state securities
laws and that the investment manager will perform its obligations to
the Trust in accordance with any applicable state and federal
securities laws.
ARTICLE 3 Prospectuses and Proxy Statements; Voting
-----------------------------------------
3.1. The Underwriter shall provide the Company, at the Company's expense,
with as many copies of the Trust's current prospectus as the Company
may reasonably request. If requested by the Company in lieu thereof,
the Trust shall provide, at the Trust's expense, such documentation
including a final copy of a current prospectus set in type, a computer
disk or other medium agreed to by the parties and other assistance as
is reasonably necessary in order for the Company at least annually (or
more frequently if the Trust's prospectus is amended more frequently)
to have the new prospectus for the Trust printed together with other
prospectuses in one document; in such case at the Company's expense.
3.2. The Trust's prospectus shall state that the statement of additional
information for the Trust is available from the Underwriter (or, in the
Trust's discretion, the Prospectus shall state that such statement is
available from the Trust).
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3.3. The Trust, at its expense, shall provide the Company with copies of its
proxy material, if any, reports to shareholders and other communications to
shareholders in such quantity as the Company shall reasonably require. The
Trust shall bear the cost of distributing proxy material to existing
Contract owners or participants and the Company shall bear the cost of
distributing reports to shareholder and other communications to
shareholders to existing Contract owners or participants.
3.4. The Trust hereby notifies the Company that it is appropriate to include in
the prospectuses pursuant to which the Contracts are offered disclosure
cross-referencing the discussion in the Trust's prospectus on the potential
risks of mixed and shared funding.
3.5. To the extent required by law the Company shall:
(1) assist in the solicitation of voting instructions from Contract
owners or participants;
(2) vote the Trust shares held in each Separate Account in accordance
with instructions received from Contract owners or participants;
and
(3) vote Trust shares held in each Separate Account for which no
timely instructions have been received, in the same proportion as
Trust shares of such Fund for which instructions have been
received from the Company's Contract owners or participants;
for 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 Trust shares held in any
segregated asset account in its own right, to the extent permitted by law.
Participating Insurance Companies shall be responsible for assuring that
each of their separate accounts participating in the Trust calculates
voting privileges in a manner consistent with other Participating Insurance
Companies and as
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required by the Mixed and Shared Funding Order. The Trust will notify the
Company of any changes of interpretation or amendment to the Mixed and
Shared Funding Order.
3.6. The Trust will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Trust will either provide for
annual meetings (except to the extent that the Commission may interpret
Section 16 of the 1940 Act not to require such meetings) or comply with
Section 16(c) of the 1940 Act (although the Trust 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) of the 1940 Act. Further, the Trust will act
in accordance with the Commission's interpretation of the requirements of
Section 16(a) with respect to periodic elections of Trustees and with
whatever rules the Commission may promulgate with respect thereto.
ARTICLE 4 Sales Material and Information
------------------------------
4.1. The Company shall furnish, or shall cause to be furnished, to the Trust or
the Underwriter, each piece of sales literature or other promotional
material in which the Trust or the Trust's investment manager, sub-advisers
or Underwriter is named, at least five business days prior to its use. No
such material shall be used if the Trust or the Underwriter reasonably
objects in writing to such use within five business days after receipt of
such material.
4.2. The Company represents and agrees that sales literature for the Contracts
prepared by the Company or its affiliates will be consistent with every
law, rule, and regulation of any regulatory agency or self-regulatory
agency that applies to the Contracts or to the sale of the Contracts,
including, but not limited to, NASD Conduct Rule 2210 and IM-2210-2
thereunder.
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4.3. The Company shall not give any information or make any representations or
statements on behalf of the Trust or concerning the Trust 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 the Trust shares as such
registration statement, prospectus or statement of additional information
may be amended or supplemented from time to time, or in reports or proxy
statements for the Trust, or in sales literature or other promotional
material approved by the Trust, or by the Underwriter or in published
reports for the Trust which are in the public domain or approved by the
Trust or the Underwriter for distribution, except with the permission of
the Trust or the Underwriter. The Trust and the Underwriter agree to
respond to any request for approval on a prompt and timely basis. The
Company shall adopt and implement procedures reasonably designed to ensure
that information concerning the Trust, the Underwriter, or any of their
affiliates which is intended for use by brokers or agents selling the
Contracts (i.e., information that is not intended for distribution to
Contract owners or prospective Contract owners) is so used, and neither the
Trust, the Underwriter, nor any of their affiliates shall be liable for any
losses, damages, or expenses relating to the improper use of such broker
only materials by agents of the Company or its affiliates who are
unaffiliated with the Trust or the Underwriter. The parties hereto agree
that this Section 4.3 is not intended to designate or otherwise imply that
the Company is an underwriter or distributor of the Trust's shares. Nothing
in this Section 4.3 shall be construed as preventing the Company or its
employees or agents from giving advice on investment in the Trust.
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4.4. The Trust or the Underwriter shall furnish, or shall cause to be furnished,
to the Company or its designee, each piece of sales literature or other
promotional material in which the Company, its Separate Account, or the
Contracts are named, at least five business days prior to its use. No such
material shall be used if the Company reasonably objects in writing to such
use within five business days after receipt of such material.
4.5. The Trust represents and agrees that sales literature for the Trust
prepared by the Trust or its affiliates in connection with the sale of the
Contracts will be consistent with every law, rule, and regulation of any
regulatory agency or self regulatory agency that applies to the Trust or to
the sale of Trust shares, including, but not limited to, NASD Conduct Rule
2210 and IM-2210-2 thereunder.
4.6. The Trust and the Underwriter shall not give any information or make any
representations on behalf of the Company or concerning the Company, each
Separate 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 or statement of additional information may be amended
or supplemented from time to time, or in published reports for each
Separate Account which are in the public domain or approved by the Company
for distribution to Contract owners or participants, or in sales literature
or other promotional material approved by the Company, or in published
reports for the Separate Account or the Contracts which are in the public
domain or approved by the Company for distribution, except with the
permission of the Company. The Company agrees to respond to any request for
approval on a prompt and timely basis. The Trust and the Underwriter shall
xxxx information produced by or on behalf of the Trust "FOR BROKER USE
ONLY" which is intended
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for use by brokers or agents selling the Contracts (i.e., information that
is not intended for distribution to Contract owners or prospective Contract
owners) is so used, and neither the Company nor any of its affiliates shall
be liable for any losses, damages, or expenses arising on account of the
use by brokers of such information with third parties in the event that is
not so marked.
4.7. The Trust will provide to the Company at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, proxy statements, sales literature and other
promotional materials, applications for exemptions, requests for no-action
letters, and all amendments to any of the above, that relate to the Trust
or its shares, contemporaneously with the filing of such document with the
SEC or other regulatory authorities.
4.8. The Company will provide to the Trust at least one complete copy of all
registration statements, prospectuses, statements of additional
information, reports, solicitations for voting instructions, sales
literature and other promotional materials, applications for exemptions,
requests for no action letters, and all amendments to any of the above,
that relate to the Contracts or each Separate Account, contemporaneously
with the filing of such document with the SEC or other regulatory
authorities. The Company shall promptly inform the Trust of the results of
any examination by the SEC (or other regulatory authorities) that relates
to the Trust, and the Company shall provide the Trust with a copy of
relevant portions of any "deficiency letter" or other correspondence or
written report regarding such examination.
4.9. For purposes of this Article 4, the phrase "sales literature or other
promotional material" includes, but is not limited to, advertisements (such
as material published, or designed for
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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), 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 NASD
Conduct Rules, the 1940 Act or the 0000 Xxx.
4.10. The Underwriter shall be responsible for calculating the performance
information for the Trust. The Company shall be responsible for
calculating the performance information for the Contracts. The Trust
and/or the Underwriter agree to provide the Company with performance
information for the Trust on a timely basis to enable the Company to
calculate performance information for the Contracts in accordance with
applicable state and federal law.
ARTICLE 5 Fees and Expenses
-----------------
5.1 The Trust and Underwriter shall pay no fee or other compensation to the
Company under this Agreement, except subject to a Rule 12b-1 Plan to
finance distribution expenses, in which case, subject to obtaining any
required exemptive orders or other regulatory approvals, the Underwriter
may make payments to the Company or to the underwriter for the Contracts
if and in amounts agreed to by the Underwriter in writing. Each party,
however, shall, in accordance with the allocation of expenses specified
in this Agreement,
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reimburse other parties for expenses initially paid by one party but
allocated to another party. In addition, nothing herein shall prevent
the parties hereto from otherwise agreeing to perform, and arranging for
appropriate compensation for, other services relating to the Trust
and/or to the Separate Accounts.
5.2. All expenses incident to performance by the Trust of this Agreement
shall be paid by the Trust to the extent permitted by law. All Trust
shares will be duly authorized for issuance and registered in accordance
with applicable federal law and to the extent deemed advisable by the
Trust, in accordance with applicable state law, prior to sale. The Trust
shall bear the expenses for the cost of registration and qualification
of the Trust's shares, preparation and filing of the Trust's prospectus
and registration statement, Trust proxy materials and reports, printing
proxy materials and annual reports for existing Contract owners, setting
in type the Trust's prospectuses, the preparation of all statements and
notices required by any federal or state law, all taxes on the issuance
or transfer of the Trust's shares, and any expenses permitted to be paid
or assumed by the Trust pursuant to any Rule 12b-1 Plan under the 1940
Act duly adopted by the Trust.
5.3. The Company shall bear the expenses of printing and distributing the
Trust prospectuses and shareholder reports. The Company shall bear all
expenses associated with the registration, qualification, and filing of
the Contracts under applicable federal securities and state insurance
laws; the cost of preparing, printing, and distributing the Contracts'
prospectuses and statements of additional information; and the cost of
printing and distributing annual individual account statements for
Contract owners as required by state insurance laws.
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ARTICLE 6 Diversification
6.1. The Trust will make every effort to at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will be treated
as variable contracts under the Internal Revenue Code and the regulations
issued thereunder. Without limiting the scope of the foregoing, the Trust
will comply with Section 817(h) of the Internal Revenue Code and Treasury
Regulation 1. 817-5, relating to the diversification requirements for
variable annuity, endowment, or life insurance contracts and any amendments
or other modifications to such Section or Regulations or successors
thereto.
ARTICLE 7 Potential Conflicts
-------------------
7.1. If and to the extent that the Trust engages in mixed and shared funding as
contemplated by exemptive relief provided by the SEC and applicable to the
Trust, this Article VII shall apply.
7.2 The Board of Trustees of the Trust (the "Trust Board") will monitor the
Trust for the existence of any material irreconcilable conflict among the
interests of the Contract owners of all separate accounts investing in the
Trust. A material irreconcilable 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 Fund are being managed; (e) a difference in voting
instructions given by variable annuity contract owners, variable life
insurance contract owners, and trustees of qualified pension or retirement
plans; (f) a decision by a
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Participating Insurance Company to disregard the voting instructions of
Contract owners; or (g) if applicable, a decision by a qualified pension or
retirement plan to disregard the voting instructions of plan participants.
The Trust Board shall promptly inform the Company if it determines that a
material irreconcilable conflict exists and the implications thereof. A
majority of the Trust Board shall consist of Trustees who are not
"interested persons" of the Trust.
7.3. The Company has reviewed a copy of the Mixed and Shared Funding Order, and
in particular, has reviewed the conditions to the requested relief set
forth therein. The Company agrees to assist the Trust Board in carrying out
its responsibilities under the Mixed and Shared Funding Order, by providing
the Trust Board with all information reasonably necessary for the Trust
Board to consider any issues raised. This includes, but is not limited to,
an obligation by the Company to inform the Trust Board whenever Contract
owner voting instructions are disregarded. The Trust Board shall record in
its minutes or other appropriate records, all reports received by it and
all action with regard to a conflict.
7.4. If it is determined by a majority of the Trust Board, or a majority of its
disinterested Trustees, that a material irreconcilable conflict exists, the
Company shall, at its expense and to the extent reasonably practicable (as
determined by a majority of the disinterested Trustees), take whatever
steps are necessary to remedy or eliminate the material irreconcilable
conflict, up to and including: (a) withdrawing the assets allocable to some
or all of the Separate Accounts from the relevant Fund and reinvesting such
assets in a different investment medium, including another Fund, or in the
case of insurance company participants submitting the question as to
whether such segregation should be
20
implemented by a vote of all affected Contract owners and, as appropriate,
segregating the assets of any appropriate group (i.e., annuity Contract
owners or 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.
7.5. If the Company's 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 Trust's election, to withdraw the Separate
Account's investment in the Trust and terminate this Agreement with respect
to such Separate Account, and no charge or penalty will be imposed as a
result of such withdrawal. Any such withdrawal and termination shall take
place within six months after written notice is given that this provision
is being implemented, subject to applicable law but in any event consistent
with the terms of the Mixed and Shared Funding Order. Until such withdrawal
and termination is implemented, the Underwriter and the Trust shall
continue to accept and implement orders by the Company for the purchase and
redemption of shares of the Trust. Such withdrawal and termination shall be
limited to the extent required by the foregoing material irreconcilable
conflict as determined by a majority of disinterested Trustees.
7.6. If 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 Separate Account's investment in the
Trust and terminate this Agreement with respect to such Separate Account
within six months after the Trust informs the Company of a
21
material irreconcilable conflict, subject to applicable law but in any
event consistent with the terms of the Mixed and Shared Funding Order.
Until such withdrawal and termination is implemented, the Underwriter and
the Trust shall continue to accept and implement orders by the Company for
the purchase and redemption of shares of the Trust. Such withdrawal and
termination shall be limited to the extent required by the foregoing
material irreconcilable conflict as determined by a majority of
disinterested Trustees.
7.7. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority of
the disinterested members of the Trust Board shall determine whether any
proposed action adequately remedies any material irreconcilable conflict,
but in no event will the Trust or the Underwriter be required to establish
a new funding medium for the Contracts. The Company shall not be required
by Section 7.3 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
materially adversely affected by the material irreconcilable conflict.
7.8. The Trust Board's determination of the existence of a material
irreconcilable conflict and its implication will be made known in writing
to the Company.
7.9. The Company shall at least annually submit to the Trust Board such
reports, materials, or data as the Trust Board may reasonably request so
that the Trustees may fully carry out the duties imposed upon the Trust
Board by the Mixed and Shared Funding Order, and said reports, materials
and data shall be submitted more frequently if deemed appropriate by the
Trust Board.
7.10. 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 Mixed and Shared
22
Funding Order) on terms and conditions materially different from those
contained in the Mixed and Shared Funding Order, the Trust and/or the
Company, as appropriate, shall 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.
ARTICLE 8 Indemnification
----------------
8.1. Indemnification By The Company
------------------------------
(a) The Company agrees to indemnify and hold harmless the Trust, the
Underwriter, and each person, if any, who controls or is associated with
the Trust or the Underwriter within the meaning of such terms under the
federal securities laws and each director, officer, employee, or agent of
the foregoing (collectively, the "indemnified parties" for purposes of this
Section 8.1) against any and all losses, claims, 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 upon any untrue statements or alleged
untrue statements of any material fact contained in the
registration statements, prospectuses or statements 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 therein or necessary to make the statements therein
not misleading in light of the circumstances in which they were
made; provided that this agreement to indemnify shall 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
23
Company by or on behalf of the Trust 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 Trust shares; or
(2) arise out of or as a result of statements or representations
by or on behalf of the Company (other than statements or
representations contained in the Trust registration
statement, Trust prospectus, statement of additional
information or sales literature or other promotional
material of the Trust not supplied by the Company or persons
under its control) or wrongful conduct of the Company or
persons under its control, with respect to the sale or
distribution of the Contracts or Trust shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Trust's
registration statement, prospectus, statement of additional
information, or sales literature or other promotional
material of the Trust or any amendment thereof, or
supplement thereto 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 a statement or omission was made in reliance upon and
in conformity with information furnished to the Trust by or
on behalf of the Company or persons under its control; or
(4) arise as a result of any failure by the Company or persons
under its control or subject to its authorization to provide
the services and furnish the materials or to make any
payments 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 by the
Company of this Agreement;
except to the extent provided in Sections 8.1(b) and 8.4 hereof. This
indemnification shall be in addition to any liability, which the Company may
otherwise have.
24
(b) No party shall be entitled to indemnification by the Company
if such loss, claim, damage, liability or litigation is due to the
willful misfeasance, bad faith, gross negligence, or reckless
disregard of duty by the party seeking indemnification.
(c) The indemnified parties will promptly notify the Company of
the commencement of any litigation, proceedings, complaints or actions
against them in connection with the issuance or sale of the Trust
shares or the Contracts or the operation of the Trust.
8.2. Indemnification By the Trust
(a) The Trust 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 each director, officer, employee, or agent of the foregoing
(collectively, the "indemnified parties" for purposes of this Section
8.3) against any and all losses, claims, damages, liabilities
(including amounts paid in settlement with the written consent of the
Trust), 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 are related to the operations of the Trust
and:
(1) arise as a result of any failure by the Trust 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 Article 6 of this Agreement); or
(2) arise out of or result from any material breach of any
representation and/or warranty made by the Trust in this
Agreement or arise out of
25
or result from any other material breach of this Agreement by the
Trust; or
(3) arise out of or result from any negligent act or omission of the
Trust or its agents;
except to the extent provided in Sections 8.3(b) and 8.4 hereof. This
indemnification shall be in addition to any liability, which the Trust may
otherwise have.
(b) No party shall be entitled to indemnification by the Trust if
such loss, claim, damage, liability or litigation is due to the willful
misfeasance, bad faith, gross negligence, or reckless disregard of duty by
the party seeking indemnification.
(c) The indemnified parties will promptly notify the Trust of the
commencement of any litigation, proceedings, complaints or actions against
them in connection with the issuance or sale of the Contracts or the
operation of each Separate Account.
8.3. Indemnification Procedure
-------------------------
Any person obligated to provide indemnification under this Article 8
("indemnifying party" for the purpose of this Section 8.4) shall not be
liable under the indemnification provisions of this Article 8 with respect
to any claim made against a party entitled to indemnification under this
Article 8 ("indemnified party" for the purpose of this Section 8.4) unless
such indemnified party shall 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 shall have been
served upon such indemnified party (or after such party shall have received
notice of such service on any designated agent), but failure to notify the
indemnifying party of any such claim shall not relieve the indemnifying
party from any liability which it may have to the indemnified party against
whom such action is
26
brought under the indemnification provision of this Article 8, 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 shall 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 shall
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 (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel would be
inappropriate due to actual or potential differing interests between them.
The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such
consent or if there be 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.
27
A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this
Article 8. The indemnification provisions contained in this Article 8
shall survive any termination of this Agreement.
ARTICLE 9 Applicable Law
--------------
9.1. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Delaware without
giving effect to conflicts of laws provisions thereof.
9.2. This Agreement shall be subject to the provisions of the 1933, 1934,
and 1940 Acts, and the rules, regulations, and rulings thereunder,
including such exemptions from those statutes, rules and regulations as
the SEC may grant (including, but not limited to, the Mixed and Shared
Funding Order) and the terms hereof shall be interpreted and construed
in accordance therewith.
ARTICLE 10 Termination
-----------
10.1. This Agreement shall terminate automatically in the event of its
assignment, unless made with written consent of each party; or:
(a) at the option of any party upon ninety (90) days' advance
written notice to the other parties or, if later, upon receipt of any
required exemptive relief to orders from the SEC, unless otherwise
agreed in a separate written agreement among the parties; or
(b) at the option of the Company if shares of the Funds
delineated in Exhibit B are not reasonably available to meet the
requirements of the Contracts as determined by the Company; or
28
(c) at the option of the Trust upon institution of formal proceedings
against the Company by the NASD, the SEC, the insurance commission of any
state or any other regulatory body, which would have a material adverse
effect on the Company's ability to perform its obligations under this
Agreement; or
(d) at the option of the Company upon institution of formal
proceedings against the Trust or the Underwriter by the NASD, the SEC, or
any state securities or insurance department or any other regulatory body,
which would have a material adverse effect on the Underwriter's or the
Trust's ability to perform its obligations under this Agreement; or
(e) at the option of the Trust or the Underwriter by written notice to
the Company, if the Company gives the Trust and the Underwriter the written
notice specified in Section 1.8(b) hereof and at the time such notice was
given there was no notice of termination outstanding under any other
provision of this Agreement; provided, however, any termination under this
Section 10.1(e) shall be effective sixty (60) days after the notice
specified in Section 1.8(b) was given; or
(f) at the option of the Company or the Trust upon a determination by
a majority of the Trust Board, or a majority of the disinterested Trustees,
that a material irreconcilable 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 Trust as delineated in Article 7 of this Agreement; or
(g) at the option of the Company if the Trust ceases to qualify as a
Regulated Investment Company under Subchapter M of the Internal Revenue
Code, or
29
under any successor or similar provision, or if the Company reasonably
believes that the Trust may fail to so qualify; or
(h) at the option of the Company if the Trust fails to meet the
diversification requirements specified in Article 6 hereof or if the
Company reasonably believes that the Trust will fail to meet such
requirements; or
(i) at the option of any party to this Agreement, upon another
party's material breach of any provision of this Agreement; or
(j) at the option of the Company, if the Company determines in
its sole judgment exercised in good faith, that either the Trust or
the Underwriter 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 the Contracts (including the sale
thereof); or
(k) at the option of the Trust or Underwriter, if the Trust or
Underwriter respectively, shall determine 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 Trust or Underwriter; or
(l) subject to the Trust's compliance with Article 6 hereof, at
the option of the Trust in the event any of the Contracts are not
issued or sold in accordance with applicable requirements of federal
and/or state law.
10.2. Notice Requirement
------------------
30
(a) In the event that any termination of this Agreement is based upon
the provisions of Article 7, such prior written notice shall be given in
advance of the effective date of termination as required by such
provisions.
(b) In the event that any termination of this Agreement is based upon
the provisions of Sections 10.l(b) - (d), 10.1(g) - (i) or 10.1(l) prompt
written notice of the election to terminate this Agreement for cause shall
be furnished by the party terminating the Agreement to the non-terminating
parties, with said termination to be effective upon receipt of such notice
by the non-terminating parties.
(c) In the event that any termination of this Agreement is based upon
the provisions of Sections 10.1(j) or 10. l(k), prior written notice of
the election to terminate this Agreement for cause shall be furnished by
the party terminating this Agreement to the non-terminating parties. Such
prior written notice shall be given by the party terminating this
Agreement to the non-terminating parties at least 30 days before the
effective date of termination.
10.3. It is understood and agreed that the right to terminate this Agreement
pursuant to Section 10.1(a) may be exercised for any reason or for no
reason.
31
10.4. Effect of Termination
---------------------
(a) Notwithstanding any termination of this Agreement
pursuant to Section 10.1 of this Agreement and subject to Section 1.3 of
this Agreement, the Company may require the Trust and the Underwriter to
continue to make available additional shares of the Trust for so long
after the termination of this Agreement as the Company desires pursuant
to the terms and conditions of this Agreement as provided in paragraph
(b) below, for all Contracts in effect on the effective date of
termination of this Agreement (hereinafter referred to as "Existing
Contracts"). Specifically, without limitation, the owners of the Existing
Contracts shall be permitted to reallocate investments in the Trust,
redeem investments in the Trust and/or invest in the Trust upon the
making of additional purchase payments under the Existing Contracts. The
parties agree that this Section 10.4 shall not apply to any terminations
under Article 7 and the effect of such Article 7 terminations shall be
governed by Article 7 of this Agreement.
(b) If shares of the Trust continue to be made available
after termination of this Agreement pursuant to this Section 10.4, the
provisions of this Agreement shall remain in effect except for Section
10.l(a) and thereafter the Trust, the Underwriter, or the Company may
terminate the Agreement, as so continued pursuant to this Section 10.4,
upon written notice to the other party, such notice to be for a period
that is reasonable under the circumstances but need not be for more than
90 days or, if later, upon receipt of any required exemptive relief to
orders from the SEC.
32
10.5 The Company shall not redeem Fund shares attributable to the Contracts
(as opposed to Fund shares attributable to the Company's assets held in
the Account) except (i) as necessary to implement Contract Owner
initiated or approved transactions, or (ii) as required by state and/or
federal laws or regulations or judicial or other legal precedent of
general application (hereinafter referred to as a "Legally Required
Redemption"). Upon request, the Company will promptly furnish to the
Trust and the Underwriter the opinion of counsel for the Company (which
counsel shall be reasonably satisfactory to the Trust and the
Underwriter) to the effect that any redemption pursuant to clause (ii)
above is a Legally Required Redemption. Furthermore, except in cases
where permitted under the terms of the Contracts, the Company shall not
prevent Contract Owners from allocating payments to a Fund that was
otherwise available under the Contracts without first giving the Trust or
the Underwriter 90 days notice of its intention to do so.
ARTICLE 11 Notices
-------
Any notice shall be deemed duly given only if sent by hand, evidenced by
written receipt or by certified mail, return receipt requested or by any
other method agreed to by the parties, to the 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 party. All notices
shall be deemed given three business days after the date received or
rejected by the addressee.
If to the Trust: Xxxxx Fargo Variable Trust
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Assistant Secretary
Copy: C. Xxxxx Xxxxxxx, Esq.
Vice President & Senior Counsel
33
Xxxxx Fargo Bank
Law Department
000 Xxxxxx Xxxxxx - 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000-0000
If to the Company: IDS Life Insurance Company of New York
1765 AXP Financial Center
Xxxxxxxxxxx, XX 00000
Attention: Vice President, Annuities
Copy: American Express Financial Advisors Inc.
50607 AXP Financial Center
Xxxxxxxxxxx, XX 00000
Attention: General Counsel's Office
If to the Underwriter: Xxxxxxxx Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Vice President
ARTICLE 12 Miscellaneous
-------------
12.1. All persons dealing with the Trust must look solely to the property of
the Trust for the enforcement of any claims against the Trust as neither
the Trustees, officers, agents or shareholders assume any personal
liability for obligations entered into on behalf of the Trust.
12.2. Use and Disclosure of Confidential Information
----------------------------------------------
Notwithstanding anything to the contrary contained in this Agreement, and
in addition to and not in lieu of other provisions in this Agreement:
(a) Confidential Information includes without limitation all
information regarding the customers of the Company or the customers of
any of the Company's subsidiaries, affiliates or licensees; or the
accounts, account numbers, names,
34
addresses, social security numbers or any other personal identifier of
customers of any of the foregoing information derived therefrom.
(b) Neither the Trust nor the Underwriter may use or
disclose Confidential Information for any purpose other than to carry out
the purpose for which Confidential Information was provided to the Trust
and/or the Underwriter as set forth in this Agreement, and agree to cause
any party to whom the Trust and/or the Underwriter may provide access to
or disclose Confidential Information to limit the use and disclosure of
Confidential Information to that purpose.
(c) The Trust and the Underwriter 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 of the customers of the Company or the customers of
any of the Company's subsidiaries affiliates or licensees; the Trust and
the Underwriter further agree to cause any party to whom the Trust and/or
the Underwriter may provide access to or disclose Confidential
Information to implement appropriate measures designed to meet the
objectives set forth in this paragraph.
12.3. 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.
12.4. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the
same instrument.
35
12.5. If any provision of this Agreement shall be held or made invalid by a
court decision, statute, rule or otherwise, the remainder of the
Agreement shall not be affected thereby.
12.6. This Agreement shall not be assigned by any party hereto without the
prior written consent of all the parties.
12.7. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
SEC, the NASD, and state insurance regulators) and shall 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.
12.8. 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 trust 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.
12.9. 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
Separate Accounts or the Funds of the Trust or may amend other applicable
terms of this Agreement.
12.10. The Trust has filed a Certificate of Trust with the Secretary of State of
the State of Delaware. The Company acknowledges that the obligations of
or arising out of the Trust's Declaration of Trust are not binding upon
any of the Trust's Trustees, officers, employees, agents or shareholders
individually, but are binding solely upon the assets and property of the
Trust in accordance with its proportionate interest hereunder. The
Company further acknowledges that the assets and liabilities of each Fund
are separate
36
and distinct and that the obligations of or arising out of this
instrument are binding solely upon the assets or property of the Fund on
whose behalf the Trust has executed this instrument. The Company also
agrees that the obligations of each Fund hereunder shall be several and
not joint, in accordance with its proportionate interest hereunder, and
the Company agrees not to proceed against any Fund for the obligations of
another Fund.
12.11. Except as otherwise expressly provided in this Agreement, neither the
Trust nor the underwriter nor any affiliate thereof shall use any
trademark, trade name, service xxxx or logo of the Company or any of its
affiliates, or any variation of any such trademark, trade name service
xxxx or logo, without the Company's prior consent, the granting of which
shall be at the Company's sole option. Except as otherwise expressly
provided in this Agreement, neither the Company nor any affiliate thereof
shall use any trademark, trade name, service xxxx or logo of the Trust or
of the Underwriter, or any variation of any such trademark, trade name,
service xxxx or logo, without the prior consent of either the Trust or of
the Underwriter, as appropriate, the granting of which shall be at the
sole option of the Trust or of the Underwriter, as applicable.
37
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first above written.
Xxxxx Fargo Variable Trust
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Assistant Secretary
Date: January 10, 2002
IDS Life Insurance Company of New York Attest:
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxx Xxxxxxx
-------------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxx Xxxxx Xxxxxxx
Title: Vice President, Annuities Title: Assistant Secretary
Date: April 18, 2002
Xxxxxxxx Inc.
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Date: January 23, 2002
SCHEDULE A
Separate Accounts and Contracts
Subject to the Participation Agreement
--------------------------------------
Separate Account: IDS Life of New York Variable Annuity Account (formerly IDS
Life of New York Flexible Portfolio Annuity Account ) Established April 17, 1996
and IDS Life of New York Account 19 Established March 29, 2001.
Contracts: American Express Retirement Advisor Advantage(SM) Variable Annuity
(New York); Contract Form Numbers 31053, 31054, 31055-SEP, 31056-
XXX.
American Express Retirement Advisor Variable Annuity(R) (New York);
Contract Form Numbers 31053, 31054, 31055-SEP, 31056-XXX.
IDS Life of New York Variable Retirement and Combination Retirement
Annuities; Contract Form Numbers 38379, 39182, 39183 and 39181.
IDS Life of New York Employee Benefit Annuity; Contract Form
Numbers 38607 and 38611.
IDS Life of New York Flexible Annuity; Contract Form Numbers 39191, 39192 and
39193.
-39-
SCHEDULE B
Funds Subject to the Participation Agreement
--------------------------------------------
Xxxxx Fargo VT Asset Allocation Fund
Xxxxx Fargo VT International Equity Fund
Xxxxx Fargo VT Small Cap Growth Fund
SCHEDULE C
Other Funds Available under the Contracts
-----------------------------------------
American Express Retirement Advisor Advantage(SM) Variable Annuity (New York)
AXP Variable Portfolio - Blue Chip Advantage Fund
AXP Variable Portfolio - Bond Fund
AXP Variable Portfolio - Capital Resource Fund
AXP Variable Portfolio - Cash Management Fund
AXP Variable Portfolio - Diversified Equity Income Fund
AXP Variable Portfolio - Emerging Markets Fund
AXP Variable Portfolio - Equity Select Fund
AXP Variable Portfolio - Extra Income Fund
AXP Variable Portfolio - Federal Income Fund
AXP Variable Portfolio - Global Bond Fund
AXP Variable Portfolio - Growth Fund
AXP Variable Portfolio - International Fund
AXP Variable Portfolio - Managed Fund
AXP Variable Portfolio - New Dimensions Fund(R)
AXP Variable Portfolio - Partners Small Cap Value Fund
AXP Variable Portfolio - S&P 500 Index Fund
AXP Variable Portfolio - Small Cap Advantage Fund
AXP Variable Portfolio - Stock Fund
AXP Variable Portfolio - Strategy Aggressive Fund
AIM V.I. Capital Appreciation Fund, Series II
AIM V.I. Capital Development Fund, Series II
Alliance VP Growth & Income Portfolio (Class B)
AllianceBernstein International Value Portfolio, Class B
American Century VP International, Class II
American Century VP Value, Class II
Xxxxxxx Variable Series, Inc. Social Balanced Portfolio
Evergreen VA Capital Growth Fund, Class L Shares
Fidelity VIP III Growth & Income Portfolio (Service Class 2)
Fidelity VIP III Mid Cap Portfolio (Service Class 2)
Fidelity VIP III Overseas Portfolio (Service Class 2)
FTVIPT Franklin Real Estate Fund
FTVIPT Franklin Value Securities Fund - Class 2
FTVIPT Mutual Shares Securities Fund - Class 2
Xxxxxxx Xxxxx VIT CORESM U.S. Equity Fund
Xxxxxxx Sachs VIT Mid Cap Value Fund
INVESCO VIF - Dynamics Fund
INVESCO VIF - Financial Services Fund
INVESCO VIF - Technology Fund
American Express Retirement Advisor Advantage(SM) Variable Annuity (New York)
(continued)
INVESCO VIF - Telecommunications Fund
Janus Aspen Global Technology Portfolio: Service Shares
Janus Aspen International Growth Portfolio: Service Shares
Lazard Retirement International Equity Portfolio
MFS(R) Investors Growth Stock Series - Service Class
MFS(R) New Discovery Series - Service Class
MFS(R) Utilities Series - Service Class
Pioneer Equity-Income VCT Portfolio - Class II Shares
Pioneer Europe VCT Portfolio - Class II Shares
Xxxxxx VT Health Sciences Fund - Class IB Shares
Xxxxxx VT International Growth Fund - Class IB Shares
Xxxxxx VT Vista Fund - Class IB Shares
Strong Opportunity Fund II - Advisor Class
Xxxxxx International Small Cap
Xxxxxx U.S. Small Cap
Xxxxx Fargo VT Asset Allocation Fund
Xxxxx Fargo VT International Equity Fund
Xxxxx Fargo Small Cap Growth Fund
American Express (R) Retirement Advisor Variable Annuity(R) (New York)
AXP Variable Portfolio - Blue Chip Advantage Fund
AXP Variable Portfolio - Bond Fund
AXP Variable Portfolio - Capital Resource Fund
AXP Variable Portfolio - Cash Management Fund
AXP Variable Portfolio - Diversified Equity Income Fund AXP
Variable Portfolio - Emerging Markets Fund
AXP Variable Portfolio - Equity Select Fund
AXP Variable Portfolio - Extra Income Fund
AXP Variable Portfolio - Federal Income Fund
AXP Variable Portfolio - Global Bond Fund
AXP Variable Portfolio - Growth Fund
AXP Variable Portfolio - International Fund
AXP Variable Portfolio - Managed Fund
AXP Variable Portfolio - New Dimensions Fund(R)
AXP Variable Portfolio - S&P 500 Index Fund
AXP Variable Portfolio - Small Cap Advantage Fund
AXP Variable Portfolio - Strategy Aggressive Fund
AIM V.I. Capital Appreciation Fund
AIM V.I. Capital Development Fund
American Century VP - International
American Century VP - Value
Xxxxxxx Variable Series, Inc. Social Balanced Portfolio
American Express (R) Retirement Advisor Variable Annuity(R)(New York)
(continued)
Credit Suisse Warburg Pincus Trust - Emerging Growth Portfolio
Fidelity VIP III Growth & Income Portfolio (Service Class)
Fidelity VIP III Mid Cap Portfolio (Service Class)
Fidelity VIP III Overseas Portfolio (Service Class)
FTVIPT Franklin Real Estate Fund
FTVIPT Franklin Value Securities Fund - Class 2
FTVIPT Xxxxxxxxx International Smaller Companies Fund - Class 2
Xxxxxxx Sachs VIT CORESM Small Cap Equity Fund
Xxxxxxx Xxxxx VIT CORESM U.S. Equity Fund
Xxxxxxx Sachs VIT Mid Cap Value Fund
Janus Aspen Aggressive Growth Portfolio: Service Shares
Janus Aspen Global Technology Portfolio: Service Shares
Janus Aspen International Growth Portfolio: Service Shares
Lazard Retirement International Equity Portfolio
MFS(R) Investors Growth Stock Series - Service Class
MFS(R) New Discovery Series - Service Class
Xxxxxx VT International New Opportunities Fund - Class IB Shares
Xxxxxx VT Vista Fund - Class IB Shares
Royce Micro-Cap Portfolio
Third Avenue Value Portfolio
Xxxxxx International Small Cap
Xxxxxx U.S. Small Cap
Xxxxx Fargo VT Asset Allocation Fund
Xxxxx Fargo VT International Equity Fund
Xxxxx Fargo Small Cap Growth Fund
IDS Life of New York Variable Retirement and Combination Retirement Annuities
AXP (R) Variable Portfolio - Bond Fund
AXP (R) Variable Portfolio - Capital Resource Fund
AXP (R) Variable Portfolio - Cash Management Fund
AXP (R) Variable Portfolio - Diversified Equity Income Fund
AXP (R) Variable Portfolio - Equity Select Fund
AXP (R) Variable Portfolio - Extra Income Fund
AXP (R) Variable Portfolio - Global Bond Fund
AXP (R) Variable Portfolio - Growth Fund
AXP (R) Variable Portfolio - International Fund
AXP (R) Variable Portfolio - Managed Fund
AXP (R) Variable Portfolio - New Dimensions Fund(R)
AXP (R) Variable Portfolio - Strategy Aggressive Fund
Alliance VP Growth & Income Portfolio (Class B)
Xxxxx Fargo VT Small Cap Growth Fund
IDS Life of New York Employee Benefit Annuity
AXP (R) Variable Portfolio - Bond Fund
AXP (R) Variable Portfolio - Capital Resource Fund
AXP (R) Variable Portfolio - Cash Management Fund
AXP (R) Variable Portfolio - Diversified Equity Income Fund
AXP (R) Variable Portfolio - Equity Select Fund
AXP (R) Variable Portfolio - Extra Income Fund
AXP (R) Variable Portfolio - Global Bond Fund
AXP (R) Variable Portfolio - Growth Fund
AXP (R) Variable Portfolio - International Fund
AXP (R) Variable Portfolio - Managed Fund
AXP (R) Variable Portfolio - New Dimensions Fund(R)
AXP (R) Variable Portfolio - Strategy Aggressive Fund
Alliance VP Growth & Income Portfolio (Class B)
Xxxxx Fargo VT Small Cap Growth Fund
IDS Life of New York Flexible Annuity
AXP Variable Portfolio - Bond Fund
AXP Variable Portfolio - Capital Resource Fund
AXP Variable Portfolio - Cash Management Fund
AXP Variable Portfolio - Diversified Equity Income Fund
AXP Variable Portfolio - Equity Select Fund
AXP Variable Portfolio - Extra Income Fund
AXP Variable Portfolio - Global Bond Fund
AXP Variable Portfolio - Growth Fund
AXP Variable Portfolio - International Fund
AXP Variable Portfolio - Managed Fund
AXP Variable Portfolio - New Dimensions Fund(R)
AXP Variable Portfolio - Strategy Aggressive Fund
Alliance VP Growth & Income Portfolio (Class B)
Xxxxx Fargo Small Cap Growth Fund
