AMENDMENT TO PARTICIPATION AGREEMENT
This amendment to the Restatement of Participation Agreement ("Amendment")
is entered into and is effective this 26th day of November, 2001 by and among
American Centurion Life Assurance Company ("Company"), the portfolios of the
Credit Suisse Warburg Pincus Trust, formerly known as the Warburg Pincus Trust
(the "Trust"), listed on Schedule 1 (each such portfolio, a "Fund," and
collectively, the "Funds"), Credit Suisse Asset Management Securities, Inc. .
("CSAMSI"), formerly known as Counsellors Securities, Inc. ("CSI") and Credit
Suisse Asset Management, Inc. (" CSAM"), successor to Warburg Pincus Asset
Management, Inc. ("Warburg").
WHEREAS, The Company, Warburg, the Trust and CSI entered into that certain
Participation Agreement dated October 7, 1996, which was amended and restated as
of June 10, 1999 (as amended and restated, the "Agreement");
WHEREAS, On or about June 10, 1999, CSI assigned its duties and obligations
pursuant to PDI, and the duties and obligations of PDI were subsequently
assigned to CSAMSI;
WHEREAS, the parties to this Amendment wish to amend the Agreement to
comply with applicable federal and state privacy laws and regulations; and
WHEREAS, the Company wishes to update its address for notice purposes
pursuant to the terms of the Agreement.
NOW THEREFORE, in consideration of the terms, covenants and conditions
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties to this Amendment
agree to amend the Agreement as follows:
1. Section 12.1 is hereby deleted in its entirety and is replaced with the
following:
12.1. Notwithstanding anything to the contrary contained in this Agreement,
in addition to and not in lieu of other provisions in this Agreement:
(a) The Fund, CSAM and CSAMSI acknowledge that the identities of
the customers of the Company or any of its affiliates
(collectively, the "Company Protected Parties") for purposes
of this Section 12.1), information maintained regarding
those customers, and all computer programs and procedures or
any other information developed or used by the Company
Protected Parties or any of their employees or agents in
connection with the Company's performance of its duties
under this Agreement (such information referred to herein as
"Company Information") are the valuable property of the
Company Protected Parties. The Fund, CSAM and CSAMSI agree
that if they come into possession of any Company
Information, other than such information as is publicly available or
as may be independently developed or compiled by the Fund, CSAM or
CSAMSI from information supplied to them by the Companies Protected
Parties' customers who also maintain accounts directly with the Fund,
CSAM or CSAMSI, the Fund, CSAM and CSAMSI will hold such Company
Information in confidence and refrain from using, disclosing or
distributing any of the Company Information except: (a) with the
Company's prior written consent; (b) as required by law or judicial
process; or (c) to carry out the Fund's, CSAM's or CSAMSI's duties and
obligations pursuant to this Agreement. The Company acknowledges that
the identities of the customers of the Fund, CSAM, CSAMSI or any of
their affiliates (collectively the "CSAM Protected Parties") for
purposes of this Section 12.1), information maintained regarding those
customers, and all computer programs and procedures or any other
information developed or used by CSAM Protected Parties or any of
their employees or agents in connection with the Funds', CSAM's or
CSAMSI's performance of their respective duties under this Agreement
(such information referred to herein as the "CSAM Information") are
the valuable property of CSAM Protected Parties. The Company agrees
that if it comes into possession of any of the CSAM Information, other
than such information as is publicly available or as may be
independently developed or compiled by the Company from information
supplied to it by CSAM Protected Parties' customers who also maintain
accounts directly with the Company, the Company will hold the CSAM
Information in confidence and refrain from using, disclosing or
distributing any of the CSAM Information except: (a) with the Fund's,
CSAM's or CSAMSI's prior written consent; (b) as required by law or
judicial process; or (c) to carry out the Company's duties and
obligations pursuant to this Agreement. Each party acknowledges that
any breach of the agreements in this Section 12.1 would result in
immediate and irreparable harm to the other parties for which there
would be no adequate remedy at law and agree in the event of such a
breach, the other parties will be entitled to equitable relief by way
of temporary and permanent injunctions, as well as other relief as any
court of competent jurisdiction deems appropriate.
(b) The Fund, CSAM and CSAMSI agree to cause all their employees, agents
and representatives, or any other party to whom the Fund, CSAM or
CSAMSI may provide access to or disclose the Company Information to
limit the use and disclosure of the Company Information to that
purpose. The Company agrees to cause all its employees, agents and
representatives, or any other party to whom the Company may provide
access to or disclose the CSAM
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Information, to limit the use and disclosure of the CSAM Information
to that purpose.
(c) Each party hereto agrees to implement appropriate measures designed to
ensure the security and confidentiality of the Company Information and
the CSAM Information, as may be applicable, to protect such
information against any anticipated threat or hazard to the security
or integrity of such information, and to protect against unauthorized
access to, or use of, such information that could result in
substantial harm or inconvenience to any customer of the respective
parties; each party further agrees to cause all their agents,
representatives or subcontractors to implement appropriate measures
designed to meet the objectives set forth in this paragraph.
(d) Each party acknowledges that any breach of the agreements in this
Section 12.1 would result in immediate and irreparable harm to the
other parties for which there would be no adequate remedy at law and
agree in the event of such a breach, the other parties will be
entitled to equitable relief by way of temporary and permanent
injunctions, as well as other relief as any court of competent
jurisdiction deems appropriate. This Section 12.1 shall survive
termination of the Agreement.
2. In accordance with Section 11.1 of the Agreement, each party hereto hereby
updates its address for the purpose of giving and receiving notice as
follows:
If to the Company:
American Centurion Life Assurance Company
249 AXP Financial Center
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: President
with a copy to:
American Centurion Life Assurance Company
50607 AXP Financial Center
Xxxxxxxxxxx, Xxxxxxxxxxx 00000
Attention: Counsel
If to the Fund, CSAM or CSAMSI:
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Counsel
3. In the event of a conflict between the terms of this Amendment and the
Agreement, it is the intention of the parties that the terms of this
Amendment shall control and the Agreement shall be interpreted on that
basis. Except as modified by this Amendment, the Agreement is hereby
ratified and confirmed and shall remain in full force and effect.
IN WITNESS WHEREOF, each party has executed this Amendment by a duly
authorized officer.
AMERICAN CENTURION LIFE Attest:
ASSURANCE COMPANY
By: /s/ Xxxxxxxx X. Xxxxxxxx By: /s/ Xxxx Xxxxx Xxxxxxx
------------------------------ ----------------------------
Printed Printed
Name: Xxxxxxxx X. Xxxxxxxx Name: Xxxx Xxxxx Xxxxxxx
As Its: President As Its: Assistant Secretary
CREDIT SUISSE ASSET MANAGEMENT SECURITIES, INC.
By: /s/ Xxx Xxxxxx
----------------------------
Printed
Name: Xxx Xxxxxx
----------------------------
As Its: Secretary
----------------------------
CREDIT SUISSE ASSET MANAGEMENT, INC.
By: /s/ Xxx Xxxxxx
----------------------------
Printed
Name: Xxx Xxxxxx
----------------------------
As Its: Managing Director
----------------------------
Credit Suisse Warburg Pincus Trust
By: /s/ Xxx Xxxxxx
----------------------------
Printed
Name: Xxx Xxxxxx
As Its: Secretary
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SCHEDULE 1
All portfolios of the Credit Suisse Warburg Pincus Trust available for sale,
including, but not limited to, the following:
Emerging Growth Portfolio
Emerging Markets Portfolio
Growth & Income Portfolio
International Equity Portfolio
Post-Venture Capital Portfolio
Small Company Growth Portfolio
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