AMENDMENT 1 TO
PARTICIPATION AGREEMENT
Among
XXXXXX VARIABLE TRUST
XXXXXX RETAIL MANAGEMENT, L.P.
And
IDS LIFE INSURANCE COMPANY OF NEW YORK
THIS AMENDMENT 1 TO PARTICIPATION AGREEMENT ("Amendment 1") is made and entered
into this 27th day of February, 2002, by and among Xxxxxx Variable Insurance
Trust (the "Fund"); Xxxxxx Retail Management, L.P.(f/k/a Xxxxxx Mutual Funds
Corp.) (the "Distributor"); and IDS Life Insurance Company of New York (the
"Company").
WHEREAS, the Company, the Fund and the Distributor are parties to the
Participation Agreement dated October 7, 1996 (the "Agreement"); and
WHEREAS, the parties now desire to amend the Agreement so that the Company can
update its address for purposes of giving notice pursuant to the Agreement, to
add provisions regarding customer privacy and to add Authorized Funds and to
allow new flexible premium variable annuity contracts and life insurance
policies to invest in the Authorized Funds;
NOW THEREFORE, in consideration of their mutual promises, the Company, the Fund
and the Distributor agree as follows:
1. Notices. Pursuant to Section 11.1 of the Agreement, the Company hereby
updates its address for the purpose of receiving notice as follows:
If to the Company:
IDS Life Insurance Company of New York
c/o American Express Financial Advisors Inc.
1765 AXP Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Vice President, Annuities
with a copy to:
IDS Life Insurance Company of New York
c/o American Express Financial Advisors Inc.
50607 AXP Financial Center
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Counsel
2. Proprietary and Confidential Information. Section 12.2 of the Agreement is
hereby deleted in its entirety and is replaced with the following:
12.2 Notwithstanding anything to the contrary contained in this
Agreement, in addition to and not in lieu of other provisions
in this Agreement:
(a) "Confidential Information" includes but is not limited to
all proprietary and confidential information of a party
hereto and its subsidiaries, affiliates and licensees
(collectively the "Protected Parties" for purposes of this
Section 12.2), including without limitation all information
regarding the customers of the Protected Parties; or the
accounts, account numbers, names, addresses, social security
numbers or any other personal identifier of such customers;
or any information derived therefrom. Confidential
Information shall not include information which is (i) in or
becomes part of the public domain, except when such
information is in the public domain due to disclosure by the
other party in violation of this Agreement, (ii)
demonstrably known to the other party without restriction
prior to execution of this Agreement, or (c) independently
developed by the other party in the ordinary course of
business outside of this Agreement.
(b) No party may use or disclose Confidential Information of
another party for any purpose other than to carry out the
purpose for which Confidential Information was provided to
such other party as set forth in the Agreement or as
required by law or judicial process; and each party hereto
agrees to cause all its employees, agents and
representatives, or any other party to whom such party may
provide access to or disclose Confidential Information to
limit the use and disclosure of Confidential Information to
that purpose.
(c) Each party acknowledges that all computer programs and
procedures or other information developed or used by a
Protected Party or any of its employees or agents in
connection with the performance by a party affiliated with
such Protected Party of its duties under this Agreement are
the valuable property of the Protected Parties.
(d) Each party agrees to implement appropriate measures designed
to ensure the security and confidentiality of Confidential
Information, to protect such information against any
anticipated threats or hazards to the security or integrity
of such information, and to protect against unauthorized
access to, or use of, Confidential Information that could
result in substantial harm or inconvenience to any customer
of the Protected Parties; each party further agrees to cause
all its agents, representatives or subcontractors of, or any
other party to whom such party may provide access to or
disclose Confidential Information to implement appropriate
measures designed to meet the objectives set forth in this
Section 12.2.
(e) Each party acknowledges 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. This Section 12.2 shall
survive the termination of this Agreement.
3. Amendment to Schedule 2. In accordance with the terms of the Agreement, the
parties hereby amend Schedule 2 to read as follows:
Schedule 2
PARTICIPATION AGREEMENT
Among
XXXXXX VARIABLE TRUST
XXXXXX RETAIL MANAGEMENT, L.P.
And
IDS LIFE INSURANCE COMPANY OF NEW YORK
The Separate Accounts shown on Schedule 1 may invest in the following Designated
Portfolio(s) as an investment option:
IDS Life of New York Flexible Portfolio Annuity Account
IDS Life of New York Flexible Portfolio Annuity
Xxxxxx VT New Opportunities Fund--Class IA Shares
American Express Retirement Advisor Variable Annuity(R)(New York)
Xxxxxx VT International New Opportunities Fund--Class IB Shares
Xxxxxx VT Vista Fund --Class IB
American Express Retirement Advisor Advantage(SM) Variable Annuity (New
York) Xxxxxx VT Vista Fund--Class IB Shares Xxxxxx VT
International Growth Fund--Class IB Shares Xxxxxx VT Health
Sciences Fund--Class IB Shares
IDS Life of New York Account 8.
IDS Life of New York Variable Second-To-Die Life Insurance(SM); IDS
Life of New York Variable Universal Life Insurance(SM); and IDS Life of
New York Variable Universal Life Insurance III(SM)
Xxxxxx VT High Yield Fund--Class IB Shares
Xxxxxx VT International New Opportunities Fund--Class IB Shares
Xxxxxx VT Vista Fund--Class IB Shares
Xxxxxx VT New Opportunities Fund--Class IA Shares
4. Service Fees. With respect to any investment in Class IB shares of the
Designated Portfolios:
(a) Provided that the Company complies with its obligations under the
Agreement, the Distributor will pay the Company a service fee (the
"Service Fee") on shares of the Designated Portfolios held in the
Account at the annual rate of .25%.
(b) The Company understands and agrees that all Service Fee payments are
subject to the limitations contained in each Designated Portfolio's
Distribution Plan, which may be varied or discontinued at any time and
understands and agrees that it will cease to receive such Service Fee
payments with respect to a Designated Portfolio if the Designated
Portfolio ceases to pay 12b-1 fees to the Distributor.
(c) The Company's failure to provide the services described in 4(e) or
otherwise comply with the terms of the Agreement will render it
ineligible to receive Service Fees.
(d) Except as provided in Sections 4(b) and 4(c) above, the Distributor
will pay the Company the Service Fees unless it is not permissible to
continue such Service Fee arrangement under applicable laws, rules or
regulations. The Service Fee arrangement may be terminated: (A) in
writing by either party upon sixty (60) days' advance written notice
to the other party; or (B) if the Agreement is terminated; provided
that the Service Fee will
continue to be due and payable with respect to shares of the
Designated Portfolios attributable to Contracts in effect on the
effective date of the termination of Service Fee arrangements.
(e) The Company will provide the following services to Contract Owners who
allocate purchase payments to subaccounts of the Account investing in
the Designated Portfolios:
(i) Maintaining regular contact with Contract owners and
assisting in answering inquiries concerning the Designated
Portfolios;
(ii) Assisting in printing and distributing shareholder reports,
prospectuses and other sale and service literature provided
by the Distributor;
(iii) Assisting the Distributor and its affiliates in the
establishment and maintenance of Contract owner and
shareholder accounts and records;
(iv) Assist Contract owners in effecting administrative changes,
such as exchanging into or out of the subaccounts of the
Account investing in shares of the Designated Portfolios;
(v) Assisting in processing purchasing purchase and redemption
transactions; and
(vi) Providing any other information or services as the Contract
owners or the Distributor may reasonably request.
The Company will support the Distributor's marketing efforts
by granting reasonable requests for visits to the Company's
offices by representatives of the Distributor.
(f) The Company's compliance with the service requirement set forth in
this Amendment No. 1 will be evaluated from time to time by monitoring
redemption levels of Designated Portfolio shares held in the Account
and by such other methods as the Distributor deems appropriate.
5. Definitions. Terms not defined in this Amendment 1 will have the meaning as
those terms defined in the Agreement.
6 Counterparts. This Amendment 1 may be executed in simultaneously in two or
more counterparts, each of which taken together will constitute one and the
same instrument.
IN WITNESS WHEREOF, each of the parties hereto have cause this Amendment 1 to be
executed in its name and behalf by its duly authorized representatives as of the
date specified above.
XXXXXX VARIABLE TRUST XXXXXX RETAIL MANAGEMENT, L.P.
By: /s/ Xxxx Xxxxxx By: /s/ Xxxx X. Xxxx
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Name: Xxxx Xxxxxx Name: Xxxx X. Xxxx
Title: Vice President Title: Senior Vice President
IDS LIFE INSURANCE COMPANY OF NEW YORK ATTEST:
By: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxx Xxxxx Xxxxxxx
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Name: Xxxxx X. Xxxxxx Name: Xxxx Xxxxx Xxxxxxx
Title: Vice President, Annuities Title: Assistant Secretary