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