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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
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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
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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.
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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.
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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.
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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
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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.
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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.
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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
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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.
PAGE 11
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
PAGE 12
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
PAGE 13
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.
PAGE 14
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
PAGE 15
(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.
PAGE 16
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
PAGE 17
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.
PAGE 18
(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
PAGE 19
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
PAGE 20
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
exemptionsfrom 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,
PAGE 21
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
PAGE 22
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
PAGE 23
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.
PAGE 24
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
PAGE 25
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
PAGE 26
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.
PAGE 27
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
PAGE 28
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
PAGE 29
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
