PARTICIPATION AGREEMENT
By and Among
IDS LIFE INSURANCE COMPANY OF NEW YORK
And
XXXXXX CAPITAL MANAGER TRUST
And
XXXXXX MUTUAL FUNDS CORP.
THIS AGREEMENT, made and entered into this 7th day of October, 1996 by and among
IDS Life Insurance Company of New York organized under the laws of the State of
New York (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"), Xxxxxx Capital
Manager Trust, an open-end management investment company and business trust
organized under the laws of the Commonwealth of Massachusetts (the "Fund") and
Xxxxxx Mutual Funds Corp., a Massachusetts corporation (the "Distributor").
WHEREAS, the Fund engages in business as an open-end 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 that have
entered into participation agreements with the Fund and the Distributor (the
"Participating Insurance Companies"), 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 (the "Portfolios"); and
WHEREAS, the Fund has received an order from the Securities & Exchange
Commission (the "SEC") granting 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 Fund
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 outside of the
separate account context (the "Mixed and Shared Funding Exemptive Order"). The
parties to this Agreement agree that the conditions or undertakings specified in
the Mixed and Shared Funding Exemptive Order and that may be imposed on the
Company, the Fund and/or the Distributor by virtue of the receipt of such order
by the SEC will be incorporated herein by reference, and such parties agree to
comply with such conditions and undertakings to the extent applicable to each
such party; and
WHEREAS, the Fund 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
contracts and variable life insurance contracts (the "Contracts") under the 1933
Act; and
WHEREAS, the Account is a duly organized, validly existing segregated asset
account, 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 Account as a unit investment trust under
the 1940 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, as
such schedule may be amended from time to time (the "Designated Portfolios") on
behalf of the Account to fund the Contracts, and the Fund is authorized to sell
such shares to unit investment trusts such as the Account at net asset value;
NOW, THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Distributor agree as follows:
ARTICLE I. Sale of Fund Shares
1.1. The Fund agrees, subject to the terms of this Agreement, to sell to the
Company those shares of the Designated 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 designee
of the order for the shares of the Fund. For purposes of this Section
1.1, the Company will be the designee of the Fund for receipt of such
orders from each Account and receipt by such designee will constitute
receipt by the Fund; provided that the Fund receives notice of such
order 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.
1.2. The Company will pay for Fund shares on the next Business Day after an
order to purchase Fund shares is made in accordance with Section 1.1
above. Payment will be in federal funds transmitted by wire. The
Company will only purchase Fund shares to fund Contracts sold by the
Company or by brokerdealers affiliated with the Company.
1.3. The Fund agrees to make shares of the Designated Portfolios available
indefinitely, subject to Article X, for purchase at the applicable net
asset value per share by Participating Insurance Companies and their
separate accounts on those days on which the Fund calculates its
Designated Portfolio net asset value pursuant to rules of the SEC;
provided, however, that the Trustees of the Fund (the "Trustees") 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 Trustees, acting in good faith and in
light of their fiduciary duties under federal and any applicable state
laws, necessary or in the best interests of the shareholders of such
Portfolio.
1.4. The Fund agrees that shares of the Fund will be sold only to
Participating Insurance Companies and their separate accounts,
qualified pension and retirement plans or such other persons as are
permitted under applicable provisions of the Internal Revenue Code of
1986, as amended, (the "Internal Revenue Code"), and regulations
promulgated thereunder, the sale to which will not impair the tax
treatment currently afforded the Contracts. No shares of any Portfolio
will be sold to the general public.
1.5. The Fund agrees to redeem for cash, upon the Company's request, any
full or fractional shares of the Fund held by the Company, executing
such requests on a daily basis at the net asset value next computed
after receipt and acceptance by the Fund or its agent of the request
for redemption. For purposes of this Section 1.5, the Company will be
the designee of the Fund for receipt of requests for redemption from
each Account and receipt by such designee will constitute receipt by
the Fund; provided the Fund receives notice of request for redemption
by 9:00 a.m. Central Time on the next following Business Day. Payment
will be in federal funds transmitted by wire to the Company's account
as designated by the Company in writing from time to time, on such next
Business Day as the Fund receives notice of the redemption order from
the Company. If notification of redemption is received after 9:00 a.m.
Central Time on a Business Day, payment for redeemed shares will be
made on the next following Business Day. The Fund reserves the right to
delay payment of redemption proceeds, but in no event may such payment
be delayed longer than the period permitted under Section 22(e) of the
0000 Xxx. The Fund will not bear any responsibility whatsoever for the
proper disbursement or crediting of redemption proceeds, the Company
alone will be responsible for such action.
1.6. The Company agrees to purchase and redeem the shares of the Designated
Portfolios offered by the then current prospectus of the Fund in
accordance with the provisions of such prospectus. The Company will
provide the Fund with such information about the sales and redemptions
of shares as the Fund may reasonably request.
1.7. 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.
1.8. 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
Designated Portfolio's shares. The Company hereby elects to receive all
such dividends and distributions as are payable on the Designated
Portfolio shares in the form of additional shares of that Designated
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.
1.9. The Fund will make the net asset value per share for each Designated
Portfolio available to the Company on a daily basis as soon as
reasonably practical after the net asset value per share is calculated
and will use its best efforts to make such net asset value per share
available by 5:30 p.m., Central Time, but other than with respect to
events outside the control of the Fund, in no event later than 6:00
p.m., Central Time, each business day.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the Contracts are or will be
registered under the 1933 Act and that the Contracts will be issued and
sold in compliance with all applicable federal and state laws,
including state insurance suitability requirements. The Company further
represents and warrants that it is an insurance company duly organized
and in good standing under applicable law and that it has legally and
validly established each Account as a separate account under applicable
state law and has registered the 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, and that it will maintain such
registration for so long as any Contracts are outstanding. The Company
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. The Company will register and qualify the Contracts for sale in
accordance with the securities laws of the any state only if and to the
extent deemed necessary by the Company.
2.2. The Company represents that the Contracts are currently and at the time
of issuance will 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 Distributor 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 and warrants that it will not purchase shares of
the Designated Portfolios with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased in
connection with such plans.
2.4. The Company agrees that it will notify the Fund and the Distributor if
the Company adds an aggressive growth fund with similar objectives to
the Fund as an investment option under the Contracts sixty (60) days
prior to the effective date of such addition.
2.5. The Fund represents and warrants that Fund shares of the Designated
Portfolios sold pursuant to this Agreement will be registered under the
1933 Act and duly authorized for issuance in accordance with applicable
law and that the Fund is and will remain registered under the 1940 Act
for as long as such shares of the Designated Portfolios are sold. The
Fund 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. The Fund will register
and qualify the shares of the Designated Portfolios for sale in
accordance with the laws of any state only if and to the extent deemed
advisable by the Fund based solely on the sale of Fund shares to the
Company.
2.6. The Fund 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 so qualify or that it might not so
qualify in the future.
2.7. The Fund represents that its investment objectives, policies and
restrictions comply with applicable state securities laws as they may
apply to 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 and the
Distributor agree that they will furnish the information required by
state insurance laws so that the Company can obtain the authority
needed to issue the Contracts in any applicable state.
2.8. 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 it decides to finance distribution expenses
pursuant to Rule 12b-1, the Fund undertakes to have the Trustees, a
majority of whom are not "interested" persons of the Fund, formulate
and approve any plan under Rule 12b-1 to finance distribution expenses.
2.9. The Fund represents that it is lawfully organized and validly existing
under the laws of the Commonwealth of Massachusetts and that it does
and will comply in all material respects with applicable provisions of
the 0000 Xxx.
2.10. The Distributor represents and warrants that it is and will remain duly
registered under all applicable federal and state securities laws and
that it will perform its obligations for the Fund in accordance in all
material respects with any applicable state and federal securities
laws.
2.11. The Fund represents and warrants that all of its Trustees, officers,
employees, investment advisers, and other individuals/entities having
access to the funds and/or securities of the Fund are and continue to
be at all times covered by a blanket fidelity bond or similar coverage
for the benefit of the Fund 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. Prospectuses and Proxy Statements; Voting
3.1. The Fund will provide such documentation, including a final copy of a
current prospectus set in type or a computer diskette at the Fund's
expense, and other assistance as is reasonably necessary in order for the
Company at least annually (or more frequently if the Fund prospectus is
amended more frequently) to have the Fund's prospectus and the prospectuses
of other funds in which assets attributable to the Contracts may be
invested printed together in one document. The Company will bear the
expense of printing and distributing prospectuses. The Fund will provide
such documentation to the Company in a timely manner so that the Company
can print and distribute the prospectuses within the time required by
applicable law.
3.2. The Fund's prospectus will state that the statement of additional
information for the Fund is available from the Company. The Fund will
provide the Company, at the Fund's expense, with as many copies of the
statement of additional information as the Company may reasonably
request for distribution, at the Company's expense, to prospective
contractowners and applicants. The Fund will provide, at the Fund's
expense, as many copies of said statement of additional
information as necessary for distribution, at the Fund's expense, to any
existing contractowner who requests such statement or whenever state or
federal law otherwise requires that such statement be provided. The
Fund will provide the copies of said statement of additional
information to the Company or to its mailing agent in a timely manner
so that the Company can distribute the statement of additional
information within the time required by applicable law. The Company
will distribute the statement of additional information as requested or
required and will xxxx the Fund for the reasonable cost of such
distribution.
3.3. The Fund, at its expense, will provide the Company or its mailing agent
with copies of its proxy material, if any, reports to shareholders and
other communications to shareholders in such quantity as the Company
will reasonably require and in a timely manner so that the Company can
distribute these documents within the time required by applicable law.
The Company will distribute this proxy material, reports and other
communications to existing contractowners, such distribution to be at
the Company's expense.
3.4. If and to the extent required by law and the Mixed & Shared Funding
Exemptive Order, the Company will:
(a) solicit voting instructions from contractowners;
(b) vote the shares of the Designated Portfolios held in the Account
in accordance with instructions received from contractowners; and
(c) vote shares of the Designated Portfolios held in the Account
for which no timely instructions have been received, in the
same proportion as shares of such Designated Portfolio for
which instructions have been received from the Company's
contractowners;
so long as and to the extent that the SEC continues to interpret the
1940 Act and the Mixed & Shared Funding Exemptive Order to require
pass-through voting privileges for variable contractowners. 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 and the Mixed
& Shared Funding Exemptive Order. The Company will be responsible for
assuring that each Account participating in the Fund calculates voting
privileges in a manner consistent with all legal requirements,
including the Mixed and Shared Funding Exemptive Order.
3.5. The Fund will comply with all provisions of the 1940 Act requiring voting
by shareholders, and in particular, the Fund either will provide for annual
meetings (except insofar as the SEC may interpret Section 16 of the 1940
Act not to require such meetings) or, as the Fund currently intends, to
comply with Section 16(c) of the 1940 Act (although the Fund is not one of
the trusts described in Section 16(c) of that Act) as well as with Sections
16(a) and, if and when applicable, 16(b). Further, the Fund will act in
accordance with the SEC's interpretation of the requirements of Section
16(a) with respect to periodic elections of Trustees and with whatever
rules the SEC may promulgate with respect thereto.
ARTICLE IV. Sales Material and Information
4.1. The Company will furnish, or will cause to be furnished, to the
Distributor, each piece of sales literature or other promotional
material in which the Fund, its investment adviser or the Distributor
is named, at least ten (10) business days prior to its use. No such
material will be used if the Fund or the Distributor reasonably objects
to such use within five (5) business days after receipt of such
material
4.2. 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 Distributor for distribution, or in sales
literature or other material provided by the Fund or by the Distributor,
except with permission of the Fund or the Distributor. The Fund and the
Distributor agree to respond to any request for approval on a prompt and
timely basis. Nothing in this Section 4.2 will be construed as preventing
the Company or its employees or agents from giving advice on investment in
the Fund.
4.3. The Fund or the Distributor 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
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.
4.4. The Fund and the Distributor 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 contractowners, or in sales literature or other
material provided by the Company, except with permission of the
Company. The Company agrees to respond to any request for approval on a
prompt and timely basis.
4.5. The Fund 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 naming the Company or the Account, and all
amendments to any of the above, that relate to the Fund or its shares,
promptly following the filing of such document with the SEC or the
NASD.
4.6. 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, 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 Account, promptly
following the filing of such document with the SEC or the NASD.
4.7. For purposes of this Article IV, 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 NASD
rules, the 1933 Act or the 0000 Xxx.
4.8. The Fund and the Distributor hereby consent to the Company's use of the
names "Xxxxxx", "Xxxxxx Capital Manager Trust", and "PCM", in
connection with marketing the Contracts, subject to the terms of
Sections 4.1 and 4.2 of this Agreement. Such consent will terminate
with the termination of this Agreement.
ARTICLE V. Fees and Expenses
5.1. The Fund and the Distributor will pay no fee or other compensation to the
Company under this Agreement, except: (a) if the Fund or any Designated
Portfolio adopts and implements a plan pursuant to Rule 12b-1 under the
1940 Act to finance distribution expenses, then, subject to obtaining any
required exemptive orders or other regulatory approvals, the Distributor
may make payments to the Company if and in such amounts agreed to by the
Distributor in writing; and (b) the Fund may pay fees to the Company for
services provided to contractowners that are not primarily intended to
result in the sale of shares of the Designated Portfolio or of underlying
contracts.
5.2. All expenses incident to performance by the Fund of this Agreement will be
paid by the Fund to the extent permitted by law. All shares of the
Designated Portfolios will be duly authorized for issuance and registered
in accordance with applicable federal law and, to the extent deemed
advisable by the Fund, in accordance with applicable state law, prior to
sale. The Fund will bear the expenses for the cost of registration and
qualification of the Fund's shares; preparation and filing of the Fund's
prospectus, statement of additional information and registration statement,
proxy materials and reports; setting the Fund's prospectus in type; setting
in type and printing proxy materials and reports to contractowners the
preparation of all statements and notices required by any federal or state
law; all taxes on the issuance or transfer of the Fund's shares; any
expenses permitted to be paid or assumed by the Fund pursuant to a plan, if
any, under Rule 12b-1 under the 1940 Act; and all other expenses set forth
in Article III of this Agreement.
5.3. The Company will bear all expenses incident to the performance of its
obligations under this Agreement. The Company will bear those expenses of:
(a) printing and distributing the Fund's prospectus to existing and
prospective contractowners; (b) distributing reports to contractowners; and
(c) distributing the Fund's proxy materials to contractowners as set forth
in Article III of this Agreement.
ARTICLE VI. Diversification
6.1. The Fund 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. In the event of a breach of this Article VI by the Fund, it
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.
ARTICLE VII. Potential Conflicts
7.1. The Trustees will monitor the Fund for the existence of any irreconcilable
material conflict among the interests of the contractowners 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
contractowners; or (f) a decision by an insurer to disregard the voting
instructions of contractowners. The Trustees will promptly inform the
Company if it determines that an irreconcilable material conflict exists
and the implications thereof.
7.2. The Company will report any potential or existing conflicts of which it
is aware to the Trustees. The Company agrees to assist the Trustees in
carrying out their responsibilities, as delineated in the Mixed and
Shared Funding Exemptive Order, by providing the Trustees with all
information reasonably necessary for them to consider any issues
raised. This includes, but is not limited to, an obligation by the
Company to inform the Trustees whenever contractowner voting
instructions are to be disregarded. The Trustees will record in their
minutes, or other appropriate records, all reports received by them and
all action with regard to a conflict.
7.3. If it is determined by a majority of the Trustees, or a majority of the
disinterested Trustees, 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 Trustees), 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 contractowners and, as
appropriate, segregating the assets of any appropriate group (i.e.,
variable annuity contractowners or variable life insurance contractowners
of one ---- or more Participating Insurance Companies) that votes in favor
of such segregation, or offering to the affected contractowners the option
of making such a change; and (b) establishing a new registered management
investment company or managed separate account.
7.4. If a material irreconcilable conflict arises because of a decision by the
Company to disregard contractowner voting instructions, and such disregard
of voting instructions could conflict with the majority of contractowner
voting instructions, and the Company's judgment represents a minority
position that would preclude a majority vote, the Company may be required,
at the Fund's election, to withdraw the affected subaccount of the
Account's investment in the Fund and terminate this Agreement with respect
to such subaccount; provided, however, that such withdrawal and termination
will be limited to the extent required by the foregoing irreconcilable
material conflict as determined by a majority of the disinterested
Trustees. 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
Distributor 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.
7.5. If a material irreconcilable conflict arises because of a particular state
insurance regulator's decision applicable to the Company to disregard
contractowner voting instructions, and that decision represents a minority
position that would preclude a majority vote, then the Company may be
required, at the Fund's direction, to withdraw the affected subaccount of
the Account's investment in the Fund and terminate this Agreement with
respect to such subaccount; provided, however, that such withdrawal and
termination will be limited to the extent required by the foregoing
irreconcilable material conflict as determined by a majority of the
disinterested Trustees. 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
Distributor 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.
7.6. For purposes of Sections 7.3 through 7.6 of this Agreement, a majority
of the disinterested Trustees will determine whether any proposed
action adequately remedies any irreconcilable material conflict, but in
no event will the Fund be required to establish a new funding medium
for the Contracts. The Company will not be required to establish a new
funding medium for the Contracts if an offer to do so has been declined
by vote of a majority of contractowners affected by the irreconcilable
material conflict.
7.7. The Company will at least annually submit to the Trustees such reports,
materials or data as the Trustees may reasonably request so that they
may fully carry out the duties imposed upon them as delineated in the
Mixed and Shared Funding Exemptive Order, and said reports, materials
and data will be submitted more frequently if deemed appropriate by the
Trustees.
7.8. 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 Mixed and Shared Funding Exemptive Order) on
terms and conditions materially different from those contained in the Mixed
and Shared Funding Exemptive Order, then: (a) the Fund and/or the
Participating Insurance Companies, as appropriate, will take such steps as
may be necessary to comply with Rules 6e-2 and 6e-3(T), as amended, and
Rule 6e-3, as adopted, to the extent such rules are applicable; and (b)
Sections 3.4, 3.5, 7.1, 7.2, 7.3, 7.4, and 7.5 of this Agreement will
continue in effect only to the extent that terms and conditions
substantially identical to such Sections are contained in such Rule(s) as
so amended or adopted.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a) The Company agrees to indemnify and hold harmless the Fund, the
Distributor, and each person, if any, who controls or is associated
with the Fund or the Distributor 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 8.1 ) against any
and all losses, claims, expenses, damages, liabilities (including
amounts paid in settlement with the written consent of the Company
which consent may not be unreasonably withheld) 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 statement, prospectus
or statement of additional information for the
Contracts or contained in the Contracts or sales
literature or other promotional material for the
Contracts (or any amendment or supplement to any of
the foregoing), or arise out of or are based upon the
omission or the alleged omission to state therein a
material fact required to be stated or necessary to
make such statements not misleading in light of the
circumstances in which they
were made; provided that this agreement to indemnify
will not apply as to any Indemnified Party if such
statement or omission or such alleged statement or
omission was made in reliance upon and in conformity
with information furnished to the Company by or on
behalf of the Distributor or 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 as a result of statements or
representations by or on behalf of the Company (other
than statements or representations 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) not supplied by the Company or persons
under control of the Company), or wrongful conduct of
the Company or persons under its control, with
respect to the sale or distribution of the Contracts
or Fund shares; or
(3) arise out of 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 amendment or
supplement) or the omission or alleged omission to
state therein a material fact required to be stated
therein or necessary to make such statements 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 Fund or the Distributor
by or on behalf of the Company or persons under its
control; or
(4) 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 will be in addition to any
liability that the Company otherwise may have.
(b) No party will be entitled to indemnification under Section
8.1(a) if the loss, claim, damage, liability or litigation for
which indemnification is sought 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 such party.
(c) An Indemnified Party promptly will notify the Company of the
commencement of any litigation, proceedings, complaints or
actions by regulatory authorities against him, her or it in
connection with the issuance or sale of the Fund shares or the
Contracts or the operation of the Fund.
8.2. Indemnification By The Distributor
(a) The Distributor 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 8.2) against
any and all losses, claims, expenses, damages, liabilities
(including amounts paid in settlement with the written consent of
the Distributor which consent may not be unreasonably withheld)
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 sales literature or other
promotional material of the Fund (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
Distributor or Fund by or on behalf of the Company
for use in the sales literature of the Fund (or any
amendment or supplement thereto) or otherwise for use
in connection with the sale of the Contracts or Fund
shares; or
(2) arise out of or as a result of statements or
representations (other than statements or
representations contained in the Contracts or in the
Contract or Fund registration statements,
prospectuses or statements of additional information
or sales literature or other promotional material for
the Contracts or the Fund (or any amendment or
supplement) not supplied by the Distributor or the
Fund or persons under the control of the Distributor
or the Fund respectively) or wrongful conduct of the
Distributor or persons under the control of the
Distributor, with respect to the sale or distribution
of the Contracts or Fund shares; or
(3) arise out of any untrue statement or alleged untrue
statement of a material fact contained in a
registration statement, prospectus, statement of
additional information or sales literature or other
promotional material covering the Contracts (or any
amendment or supplement thereto), or the omission or
alleged omission to state therein a material fact
required to be stated or necessary to make such
statement or statements 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 by or on behalf of the Distributor or persons
under the control of the Distributor; or
(4) arise out of or result from any material breach of
any representation and/or warranty made by the
Distributor in this Agreement or arise out of or
result from any other material breach of this
Agreement by the Distributor (including a failure,
whether unintentional or in good faith or otherwise,
to comply with the diversification requirements and
procedures related thereto specified in Article VI of
this Agreement); or
(5) arise out of or result from any failure to supply
timely and accurate net asset value information
related to the Fund, as contemplated by Article I,
which failure is the result of gross negligence or
willful misconduct of the Distributor or its
affiliates (it being agreed that neither the
Distributor or such affiliates assume responsibility
for the timing or accuracy of prices supplied by
independent third parties, such as pricing services
and market makers);
except to the extent provided in Sections 8.2(b) and 8.4 hereof.
(b) No party will be entitled to indemnification under Section
8.2(a) if the loss, claim, damage, liability or litigation for
which indemnification is sought 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 such party.
(c) The Indemnified Parties will promptly notify the Distributor
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.
8.3. 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 8.3) against any and all losses, claims, expenses,
damages, liabilities (including amounts paid in settlement with the
written consent of the Fund which consent may not be unreasonably
withheld) 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
Fund and:
(1) arise out of or based upon 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 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
Distributor or Fund by or on behalf of the Company
for use in the registration statement, prospectus, or
statement of additional information for 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 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;
except to the extent provided in Sections 8.3(b) and 8.4 hereof.
(b) No party will be entitled to indemnification under Section 8.3(a)
if the loss, claim, damage, liability or litigation for which
indemnification is sought 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 and duties under this Agreement by
such party.
(c) The Indemnified Parties will promptly notify 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.
8.4. Indemnification Procedure
Any person obligated to provide indemnification under this Article VIII
("Indemnifying Party" for the purpose of this Section 8.4) will not be
liable under the indemnification provisions of this Article VIII with
respect to any claim made against a party entitled to indemnification
under this Article VIII ("Indemnified Party" for the purpose of this
Section 8.4) 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 VIII, 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 (such consent may
not be unreasonably withheld) 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 VIII. The indemnification
provisions contained in this Article VIII will survive any termination
of this Agreement.
ARTICLE IX. Applicable Law
9.1. This Agreement will be construed and the provisions hereof interpreted
under and in accordance with the laws of the State of Minnesota
9.2. This Agreement will be subject to the provisions of the 1933 Act, the
1934 Act 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
Mixed and Shared Funding Exemptive Order) and the terms hereof will be
interpreted and construed in accordance therewith.
ARTICLE X. Termination
10.1. This Agreement will terminate:
(a) at the option of any party, with or without cause, with
respect to some or all of the Designated Portfolios, upon six
(6) month's advance written notice to the other parties or, if
later, upon receipt of any required exemptive relief or orders
from the SEC, unless otherwise agreed in a separate written
agreement among the parties; or
(b) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Designated Portfolio if shares of the Designated Portfolio are
not reasonably available to meet the requirements of the
Contracts as determined in good faith by the Company; or
(c at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Designated Portfolio in the event any of the Designated
Portfolio's shares are not registered, issued or sold in
accordance with applicable state and/or federal law or such
law precludes the use of such shares as the underlying
investment media of the Contracts issued or to be issued by
Company; or
(d) at the option of the Fund or the Distributor, upon receipt of
the Fund's or the Distributor's written notice by the other
parties, upon institution of formal proceedings against the
Company by the NASD, the SEC, the insurance commission of any
state or any other regulatory body, provided that the Fund or
the Distributor determines in its sole judgment, exercised in
good faith, that any such proceeding would have a material
adverse effect on the Company's ability to perform its
obligations under this Agreement; or
(e) at the option of the Company, upon receipt of the Company's
written notice by the other parties, upon institution of
formal proceedings against the Fund or the Distributor by the
NASD, the SEC, or any state securities or insurance department
or any other regulatory body, 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 or the Distributor's ability to perform its
obligations under this Agreement; or
(f) at the option of the Company, upon receipt of the Company's
written notice by the other parties, if the Fund ceases to
qualify as a Regulated Investment Company under Subchapter M
of the Internal Revenue Code, or under any successor or
similar provision, or if the Company reasonably and in good
faith believes that the Fund may fail to so qualify; or
(g) at the option of the Company, upon receipt of the Company's
written notice by the other parties, with respect to any
Designated Portfolio if the Fund fails to meet the
diversification requirements specified in Article VI hereof or
if the Company reasonably and in good faith believes the Fund
may fail to meet such requirements; or
(h) at the option of any party to this Agreement, upon written
notice to the other parties, upon another party's material
breach of any provision of this Agreement; or
(i) at the option of the Company, if the Company determines in its
sole judgment exercised in good faith, that either the Fund or
the Distributor has suffered a material adverse change in its
business, operations or financial condition since the date of
this Agreement or is the subject of material adverse publicity
which is likely to have a material adverse impact upon the
business and operations of the Company, such termination to be
effective sixty (60) days' after receipt by the other parties
of written notice of the election to terminate; or
(j) at the option of the Fund or the Distributor, if the Fund or
Distributor respectively, 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 the Distributor, such termination to be effective
sixty (60) days' after receipt by the other parties of written
notice of the election to terminate; or
(k) at the option of the Company or the Fund upon receipt of any
necessary regulatory approvals and/or the vote of the
contractowners having an interest in the Account (or any
subaccount) to substitute the shares of another investment
company for the corresponding Designated Portfolio shares of the
Fund in accordance with the terms of the Contracts for which
those Designated 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 Trustees, or a majority of the
disinterested members, that an irreconcilable material
conflict exists among the interests of: (1) all contractowners
of variable insurance products of all separate accounts; or
(2) the interests of the Participating Insurance Companies
investing in the Fund as set forth in Article VII 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; or
(n) with respect to any Designated Portfolio, upon sixty (60)
days' advance written notice from the Distributor to the
Company, upon a decision by the Distributor or the Fund to
cease offering shares of the Designated Portfolio for sale; or
(o) at the option of the Distributor or the Fund, upon sixty (60)
days' prior written notice to the Company, if the Company
delivers the notice contemplated by Section 2.4.
10.2. Notice Requirement
(a) No termination of this Agreement will be effective unless and
until the party terminating this Agreement gives prior written
notice to all other parties of its intent to terminate, which
notice will set forth the basis for the termination.
(b) In the event that any termination of this Agreement is based
upon the provisions of Article VII, such prior written notice
will be given in advance of the effective date of termination
as required by such provisions.
10.3. Effect of Termination
Notwithstanding any termination of this Agreement, the Fund and the
Distributor will, at the option of the Company, continue to make
available additional shares of the Fund pursuant to the terms and
conditions of this Agreement, for all Contracts in effect on the
effective date of termination of this Agreement (hereinafter referred
to as "Existing Contracts."). 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 to
the same extent as if this Agreement had not terminated. The parties
agree that this Section 10.3 will not apply to any terminations under
Article VII and the effect of such Article VII terminations will be
governed by Article VII of this Agreement.
10.4 Surviving Provisions
Notwithstanding any termination of this Agreement, each party's
obligations under Article VIII to indemnify other parties will survive
and not be affected by any termination of this Agreement. In addition,
with respect to Existing Contracts, all provisions of this Agreement
also will survive and not be affected by any termination of this
Agreement.
ARTICLE XI. Notices
11.1. Any notice will be deemed duly given when sent by registered or
certified mail 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 parties.
If to the Company:
IDS Life Insurance Company of New York
c/o American Express Financial Advisors Inc.
IDS Tower 10
Xxxxxxxxxxx, XX 00000-0000
Attention: Xx. Xxxxxxx Xxxxxxxxx
With a simultaneous copy to:
IDS Life Insurance Company of New York
c/o American Express Financial Advisors Inc.
IDS Tower 10
Xxxxxxxxxxx, XX 00000-0000
Attention: Ms. Xxxx Xxxxx Xxxxxxx
Counsel
If to the Fund:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xx. Xxxx X. Xxxxxx
If to the Distributor:
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: General Counsel
ARTICLE XII. Miscellaneous
12.1. A copy of the Agreement and Declaration of Trust of the Fund is on file
with the Secretary of State of the Commonwealth of Massachusetts, and
notice is hereby given that this instrument is executed on behalf of
the Trustees of the Fund as Trustees and not individually and that the
obligations of or arising out of this instrument, including without
limitations Article VII are not binding upon any of the Trustees or
shareholders individually but binding only upon the assets and property
of the Fund.
12.2.The Fund and the Distributor acknowledge that the identities of the
customers of the Company or any of its affiliates (collectively the
"Protected Parties" for purposes of this Section 12.2), information
maintained regarding those customers, and all computer programs and
procedures or other information developed or used by the Protected Parties
or any of their employees or agents with respect to such customers are the
valuable property of the Protected Parties. The Fund and the Distributor
agree that if they come into possession of any list or compilation of the
identities of or other information about the Protected Parties' customers,
or any other confidential information or property of the Protected Parties,
other than such information as may be independently developed or compiled
by the Fund or the Distributor from information supplied to them by the
Protected Parties' customers who also maintain accounts directly with the
Fund or the Distributor, the Fund and the Distributor will hold such
information or property in confidence and refrain from using, disclosing or
distributing any of such information or other property except: (a) with the
Company's prior written consent; or (b) as required by law or judicial
process. The Fund and the Distributor acknowledge that any breach of the
agreements in this Section 12.2 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.
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 will constitute one and the
same instrument.
12.5. 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.
12.6.This Agreement will not be assigned by any party hereto without the prior
written consent of all the parties.
12.7. 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. The Fund agrees that
the Company will have the right to inspect, audit and copy all records
pertaining to the performance of services under this Agreement pursuant
to the requirements of any state insurance department.
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 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.
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 Accounts or the Designated 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 and its
seal to be hereunder affixed hereto as of the date specified below.
IDS LIFE INSURANCE COMPANY
OF NEW YORK
SEAL
By: /s/ Xxxxxxx X. Xxxxx
Name: Xxxxxxx X. Xxxxx
Chairman of the Board
Title: and President
ATTEST:
By: /s/ Xxxxxxx X. Xxxxxxxxxx
Name: Xxxxxxx X. Xxxxxxxxxx
Title: Counsel
XXXXXX CAPITAL MANAGER TRUST
SEAL
By: /s/ Xxxx X. Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Vice President
XXXXXX MUTUAL FUNDS CORP.
SEAL
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: Managing Director
Schedule 1
PARTICIPATION AGREEMENT
By and Among
IDS LIFE INSURANCE COMPANY OF NEW YORK
And
XXXXXX CAPITAL MANAGER TRUST
And
XXXXXX MUTUAL FUNDS CORP.
The following separate accounts of IDS Life Insurance Company of New York are
permitted in accordance with the provisions of this Agreement to invest in
Designated Portfolios of the Fund shown in Schedule 2:
IDS Life of New York Flexible Portfolio Annuity Account
established April 17, 1996.
IDS Life of New York Account 8 established September 12, 1985.
October 7, 1996
Schedule 2
PARTICIPATION AGREEMENT
By and Among
IDS LIFE INSURANCE COMPANY OF NEW YORK
And
XXXXXX CAPITAL MANAGER TRUST
And
XXXXXX MUTUAL FUNDS CORP.
The Separate Account(s) shown on Schedule 1 may invest in the following
Designated Portfolios of the Xxxxxx Capital Manager Trust:
PCM New Opportunities Fund
October 7, 1996
