PARTICIPATION AGREEMENT
BY AND AMONG
AIM VARIABLE INSURANCE FUNDS, INC.,
A I M DISTRIBUTORS, INC.
THE UNION CENTRAL LIFE INSURANCE COMPANY,
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS,
AND
CARILLON INVESTMENTS, INC.
>page>
TABLE OF CONTENTS
Description Page
Section 1. Available
Funds...........................................2
1.1
Availability.............................................2
1.2 Addition, Deletion or Modification of
Funds.................2
1.3 No Sales to the General Public
.............................2
Section 2. Processing
Transactions......................................3
2.1 Timely Pricing and Orders
..................................3
2.2 Timely Payments
............................................3
2.3 Applicable
Price............................................3
2.4 Dividends and Distributions
................................4
2.5 Book Entry
.................................................4
Section 3. Costs and Expenses
..........................................5
3.1
General.....................................................5
3.2 Parties To
Cooperate........................................5
Section 4. Legal Compliance
............................................5
4.1 Tax
Laws....................................................5
4.2 Insurance and Certain Other Laws
...........................7
4.3 Securities
Laws.............................................8
4.4 Notice of Certain Proceedings and Other Circumstances
......9
4.5 LIFE COMPANY To Provide Documents; Information About
AVIF..10
4.6 AVIF To Provide Documents; Information About LIFE
COMPANY .11
Section 5. Mixed and Shared
Funding.....................................12
5.1
General.................................................12
5.2 Disinterested Directors
................................12
5.3 Monitoring for Material Irreconcilable Conflicts
.......12
5.4 Conflict Remedies
......................................13
5.5 Notice to LIFE COMPANY
.................................14
5.6 Information Requested by Board of Directors
............14
5.7 Compliance with SEC Rules
..............................15
5.8 Other Requirements
.....................................15
Section 6. Termination
.................................................15
6.1 Events of Termination
..................................15
6.2 Notice Requirement for
Termination......................16
6.3 Funds To Remain Available
..............................17
Description
Page
6.4 Survival of Warranties and
Indemnifications.............17
6.5 Continuance of Agreement for Certain
Purposes...........17
Section 7. Parties To Cooperate Respecting
Termination..................17
Section 8.
Assignment...................................................17
Section 9.
Notices......................................................18
Section 10. Voting
Procedures...........................................18
Section 11. Foreign Tax
Credits.........................................19
Section 12. Indemnification
..............................................19
12.1 Of AVIF and AIM by LIFE COMPANY and UNDERWRITER
............... 19
12.2 Of LIFE COMPANY and UNDERWRITER by AVIF and
AIM......... 21
12.3 Effect of
Notice...............................................24
12.4
Successors.......................................................
.24
Section 13. Applicable
Law.............................................................2
4
Section 14. Execution in Counterparts......................24
Section 15.
Severability...............................................24
Section 16. Rights
Cumulative..........................................24
Section 17.
Headings.........................................................
24
Section 18.
Confidentiality..................................................
.................25
Section 19. Trademarks and Fund
Names.............................................25
Section 20. Parties to Cooperate
.......................................................26
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 1st day of
1998 ("Agreement"), by and among AIM Variable Insurance Funds,
Inc., a Maryland corporation ("AVIF"), A I M Distributors, Inc.,
a Delaware corporation ("AIM") The Union Central Life Insurance
Company, an Ohio life insurance company ("LIFE COMPANY"), on
behalf of itself and each of its segregated asset accounts listed
in Schedule A hereto, as the parties hereto may amend from time
to time (each, an "Account," and collectively, the "Accounts");
and Carillon Investments, Inc., an affiliate of LIFE COMPANY and
the principal underwriter of the Contracts ("UNDERWRITER")
(collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, AVIF is registered with the Securities and Exchange
Commission ("SEC") as an open-end management investment company
under the Investment Company Act of 1940, as amended (the "1940
Act"); and
WHEREAS, AVIF currently consists of nine separate series
("Series"), shares ("Shares") of each of which are registered
under the Securities Act of 1933, as amended (the "1933 Act") and
are currently sold to one or more separate accounts of life
insurance companies to fund benefits under variable annuity
contracts and variable life insurance contracts; and
WHEREAS, AVIF will make Shares of each Series listed on
Schedule A hereto as the Parties hereto may amend from time to
time (each a "Fund"; references herein to "AVIF" includes
reference to each Fund, to the extent the context requires)
available for purchase by the Accounts; and
WHEREAS, LIFE COMPANY will be the issuer of certain variable
annuity contracts and variable life insurance contracts
("Contracts") as set forth on Schedule A hereto, as the Parties
hereto may amend from time to time, which Contracts (hereinafter
collectively, the "Contracts"), if required by applicable law,
will be registered under the 1933 Act; and
WHEREAS, LIFE COMPANY will fund the Contracts through the
Accounts, each of which may be divided into two or more
subaccounts ("Subaccounts"; references herein to an "Account"
includes reference to each Subaccount thereof to the extent the
context requires); and
WHEREAS, LIFE COMPANY will serve as the depositor of the
Accounts, each of which is registered as a unit investment trust
investment company under the 1940 Act (or exempt therefrom), and
the security interests deemed to be issued by the Accounts under
the Contracts will be registered as securities under the 1933 Act
(or exempt therefrom); and
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WHEREAS, to the extent permitted by applicable insurance
laws and regulations, LIFE COMPANY intends to purchase Shares in
one or more of the Funds on behalf of the Accounts to fund the
Contracts; and
WHEREAS, UNDERWRITER is a broker-dealer registered with the
SEC under the Securities Exchange Act of 1934 ("1934 Act") and a
member in good standing of the National Association of Securities
Dealers, Inc. ("NASD");
WHEREAS, AIM is a broker-dealer registered with the SEC
under the Securities Exchange Act of 1934 ("1934 Act") and a
member in good standing of the National Association of Securities
Dealers, Inc. ("NASD");
NOW, THEREFORE, in consideration of the mutual benefits and
promises contained herein, the Parties hereto agree as follows:
Section 1. Available Funds
1.1 Availability.
AVIF will make Shares of each Fund available to LIFE COMPANY
for purchase and redemption at net asset value and with no sales
charges, subject to the terms and conditions of this Agreement.
The Board of Directors of AVIF may refuse to sell Shares of any
Fund to any person, or suspend or terminate the offering of
Shares of any Fund if such action is required by law or by
regulatory authorities having jurisdiction or if, in the sole
discretion of the Directors acting in good faith and in light of
their fiduciary duties under federal and any applicable state
laws, such action is deemed in the best interests of the
shareholders of such Fund.
1.2 Addition, Deletion or Modification of Funds.
The Parties hereto may agree, from time to time, to add
other Funds to provide additional funding media for the
Contracts, or to delete, combine, or modify existing Funds, by
amending Schedule A hereto. Upon such amendment to Schedule A,
any applicable reference to a Fund, AVIF, or its Shares herein
shall include a reference to any such additional Fund. Schedule
A, as amended from time to time, is incorporated herein by
reference and is a part hereof.
1.3 No Sales to the General Public.
AVIF represents and warrants that no Shares of any Fund have
been or will be sold to the general public, it being understood
by the Parties that AVIF may sell shares of any Fund to any
person eligible to invest in that Fund in accordance with
applicable provisions of Section 817(h) of the Code and the
regulations thereunder, and that if such provisions are not
applicable, then AVIF may sell shares of any Fund to any person,
including members of the general public.
2
Section 2 Processing Transactions
2.1 Timely Pricing and Orders.
(a) AVIF or its designated agent will use its best efforts
to provide LIFE COMPANY with the net asset value per Share for
each Fund by 6:00 p.m. Central Time on each Business Day. As used
herein, "Business Day" shall mean any day on which (i) the New
York Stock Exchange is open for regular trading, (ii) AVIF calculates
the Fund's net asset value, and (iii) LIFE COMPANY is open for business.
(b) LIFE COMPANY will use the data provided by AVIF each
Business Day pursuant to paragraph (a) immediately above to
calculate Account unit values and to process transactions that
receive that same Business Day's Account unit values. LIFE
COMPANY will perform such Account processing the same Business
Day, and will place corresponding orders to purchase or redeem
Shares with AVIF by 9:00 a.m. Central Time the following Business
Day; provided, however, that AVIF shall provide additional time
to LIFE COMPANY in the event that AVIF is unable to meet the 6:00
p.m. time stated in paragraph (a) immediately above. Such
additional time shall be equal to the additional time that AVIF
takes to make the net asset values available to LIFE COMPANY.
(c) With respect to payment of the purchase price by LIFE
COMPANY and of redemption proceeds by AVIF, LIFE COMPANY and AVIF
shall net purchase and redemption orders with respect to each
Fund and shall transmit one net payment per Fund in accordance
with Section 2.2, below.
(d) If AVIF provides materially incorrect Share net asset
value information (as determined under SEC guidelines), LIFE
COMPANY shall be entitled to an adjustment to the number of
Shares purchased or redeemed to reflect the correct net asset
value per Share. Any material error in the calculation or
reporting of net asset value per Share, dividend or capital gain
information shall be reported promptly upon discovery to LIFE
COMPANY.
2.2 Timely Payments.
LIFE COMPANY will wire payment for net purchases to a
custodial account designated by AVIF by 1:00 p.m. Central Time on
the same day as the order for Shares is placed, to the extent
practicable. AVIF will wire payment for net redemptions to an
account designated by LIFE COMPANY by 1:00 p.m. Central Time on
the same day as the Order is placed, to the extent practicable,
but in any event within five (5) calendar days after the date the
order is placed in order to enable LIFE COMPANY to pay redemption
proceeds within the time specified in Section 22(e) of the 1940
Act or such shorter period of time as may be required by law.
2.3 Applicable Price.
(a) Share purchase payments and redemption orders that
result from purchase payments, premium payments, surrenders and
other transactions under Contracts (collectively, "Contract
transactions") and that LIFE COMPANY receives prior to the close
3
of regular trading on the New York Stock Exchange on a Business
Day will be executed at the net asset values of the appropriate
Funds next computed after receipt by AVIF or its designated agent
of the orders. For purposes of this Section 2.3(a), LIFE COMPANY
shall be the designated agent of AVIF for receipt of orders
relating to Contract transactions on each Business Day and
receipt by such designated agent shall constitute receipt by
AVIF; provided that AVIF receives notice of such orders by 9:00
a.m. Central Time on the next following Business Day or such
later time as computed in accordance with Section 2.1 (b) hereof.
(b) All other Share purchases and redemptions by LIFE
COMPANY will be effected at the net asset values of the
appropriate Funds next computed after receipt by AVIF or its
designated agent of the order therefor, and such orders will be
irrevocable.
(c) Notwithstanding any provision of the Agreement to the
contrary, the Parties agree that AVIF shall determine the
applicable price for Share orders attributable to Contracts
funded by unregistered Accounts in accordance with Section 2.3(a)
hereof, provided that LIFE COMPANY represents and warrants that
it is legally or contractually obligated to treat such orders in
the same manner as orders attributable to Contracts funded by
registered Accounts. Each Share order placed by LIFE COMPANY that
is attributable, in whole or in part, to Contracts funded by an
unregistered Account, shall be deemed to constitute such
representation and warranty by LIFE COMPANY unless the order
specifically states to the contrary. Otherwise, AVIF shall
determine the applicable price for Share orders attributable to
Contracts funded by unregistered Accounts in accordance with
Section 2.3(b) hereof. As used herein, an Account is registered
if it is registered under the 1940 Act.
2.4 Dividends and Distributions.
AVIF will furnish notice by wire or telephone (followed by
written confirmation) on or prior to the payment date to LIFE
COMPANY of any income dividends or capital gain distributions
payable on the Shares of any Fund. LIFE COMPANY hereby elects to
reinvest all dividends and capital gains distributions in
additional Shares of the corresponding Fund at the ex-dividend
date net asset values until LIFE COMPANY otherwise notifies AVIF
in writing, it being agreed by the Parties that the ex-dividend
date and the payment date with respect to any dividend or
distribution will be the same Business Day. LIFE COMPANY reserves
the right to revoke this election and to receive all such income
dividends and capital gain distributions in cash.
2.5 Book Entry.
Issuance and transfer of AVIF Shares will be by book entry
only. Stock certificates will not be issued to LIFE COMPANY.
Shares ordered from AVIF will be recorded in an appropriate title
for LIFE COMPANY, on behalf of its Account.
4
Section 3. Costs and Expenses
3.1 General.
Except as otherwise specifically provided in Schedule C,
attached hereto and made a part hereof, each Party will bear, or
arrange for other to bear, all expenses incident to its
performance under this Agreement.
3.2 Parties To Cooperate.
Each Party agrees to cooperate with the others, as
applicable, in arranging to print, mail and/or deliver, in a
timely manner, combined or coordinated prospectuses or other
materials of AVIF and the Accounts.
Section 4. Legal Compliance
4.1 Tax Laws.
(a) AVIF represents and warrants that each Fund is currently
qualified as a regulated investment company ("RIC") under
Subchapter M of the Internal Revenue Code of 1986, as amended
(the "Code"), and represents that it will use its best efforts to
qualify and to maintain qualification of each Fund as a RIC. AVIF
will notify LIFE COMPANY immediately upon having a reasonable
basis for believing that a Fund has ceased to so qualify or that
it might not so qualify in the future.
(b) AVIF represents that it will use its best efforts to
comply and to maintain each Fund's compliance with the
diversification requirements set forth in Section 817(h) of the
Code and Section 1.817-5(b) of the regulations under the Code.
AVIF will notify LIFE COMPANY immediately upon having a
reasonable basis for believing that a Fund has ceased to so
comply or that a Fund might not so comply in the future. In the
event of a breach of this Section 4.1(b) by AVIF, it will use its
best efforts to adequately diversify the Fund so as to achieve
compliance within the grace period afforded by Section 1.817-5 of
the regulations under the Code. The representations and
warranties of this Section 4.1(b) shall not apply with respect to
any Fund whose beneficial interests are held solely by owners of
"pension plan contracts" within the meaning of Section 818(a) of
the Code and other persons whose federal income tax treatment is
not dependent on the Fund's compliance with the requirements of
Section 817(h) of the Code.
(c) Notwithstanding any other provision herein to the
contrary, LIFE COMPANY agrees that if the Internal Revenue
Service ("IRS") asserts in writing in connection with any
governmental audit or review of LIFE COMPANY or, to LIFE
COMPANY's knowledge, of any Participant, that any Fund has failed
to comply with the diversification requirements of Section 817(h)
of the Code or LIFE COMPANY otherwise becomes aware of any facts
that could give rise to any claim against AVIF or its affiliates
as a result of such a failure or alleged failure:
5
(i) LIFE COMPANY shall promptly notify AVIF of such
assertion or potential claim (subject to the Confidentiality
provisions of Section 18 as to any Participant);
(ii) LIFE COMPANY shall consult with AVIF as to how to
minimize any liability that may arise as a result of such failure
or alleged failure;
(iii) LIFE COMPANY shall use its best efforts to
minimize any liability of AVIF or its affiliates resulting from
such failure, including, without limitation, demonstrating,
pursuant to Treasury Regulations Section 1.817-5(a)(2), to the
Commissioner of the IRS that such failure was inadvertent;
(iv) LIFE COMPANY shall permit AV1F, its affiliates and
their legal and accounting advisors to participate in any
conferences, settlement discussions or other administrative or
judicial proceeding or contests (including judicial appeals
thereof) with the IRS, any Participant or any other claimant
regarding any claims that could give rise to liability to AVIF or
its affiliates as a result of such a failure or alleged failure;
provided, however, that LIFE COMPANY will retain control of the
conduct of such conferences discussions, proceedings, contests or
appeals;
(v) any written materials to be submitted by LIFE
COMPANY to the IRS, any Participant or any other claimant in
connection with any of the foregoing proceedings or contests
(including, without limitation, any such materials to be
submitted to the IRS pursuant to Treasury Regulations Section
1.817-5(a)(2)), (a) shall be provided by LIFE COMPANY to AVIF
(together with any supporting information or analysis); subject
to the confidentiality provisions of Section 18, at least ten
(10) business days or such shorter period to which the Parties
hereto agree prior to the day on which such proposed materials
are to be submitted, and (b) shall not be submitted by LIFE
COMPANY to any such person without the express written consent of
AVIF which shall not be unreasonably withheld;
(vi) LIFE COMPANY shall provide AVIF or its affiliates
and their accounting and legal advisors with such cooperation as
AVIF shall reasonably request (including, without limitation, by
permitting AVIF and its accounting and legal advisors to review
the relevant books and records of LIFE COMPANY) in order to
facilitate review by AVIF or its advisors of any written
submissions provided to it pursuant to the preceding clause or
its assessment of the validity or amount of any claim against its
arising from such a failure or alleged failure;
(vii) LIFE COMPANY shall not with respect to any claim
of the IRS or any Participant that would give rise to a claim
against AVIF or its affiliates (a) compromise or settle any
claim, (b) accept any adjustment on audit, or (c) forego any
allowable administrative or judicial appeals, without the express
6
written consent of AVIF or its affiliates, which shall not be
unreasonably withheld, provided that LIFE COMPANY shall not be
required, after exhausting all administrative penalties, to
appeal any adverse judicial decision unless AVIF or its
affiliates shall have provided an opinion of independent counsel
to the effect that a reasonable basis exists for taking such
appeal; and provided further that the costs of any such appeal
shall be borne equally by the Parties hereto; and
(viii) AVIF and its affiliates shall have no liability
as a result of such failure or alleged failure if LIFE COMPANY
fails to comply with any of the foregoing clauses (i) through
(vii), and such failure could be shown to have materially
contributed to the liability.
Should AVIF or any of its affiliates refuse to give its
written consent to any compromise or settlement of any claim or
liability hereunder, LIFE COMPANY may, in its discretion,
authorize AVIF or its affiliates to act in the name of LIFE
COMPANY in, and to control the conduct of, such conferences,
discussions, proceedings, contests or appeals and all
administrative or judicial appeals thereof, and in that event
AV1F or its affiliates shall bear the fees and expenses
associated with the conduct of the proceedings that it is so
authorized to control; provided, that in no event shall LIFE
COMPANY have any liability resulting from AV1F's refusal to
accept the proposed settlement or compromise with respect to any
failure caused by AVIF. As used in this Agreement, the term
"affiliates" shall have the same meaning as "affiliated person"
as defined in Section 2(a)(3) of the 1940 Act.
(d) LIFE COMPANY represents and warrants that the Contracts
currently are and will be treated as annuity contracts or life
insurance contracts under applicable provisions of the Code and
that it will use its best efforts to maintain such treatment;
LIFE COMPANY will notify AVIF immediately upon having a
reasonable basis for believing that any of the Contracts have
ceased to be so treated or that they might not be so treated in
the future.
(e) LIFE COMPANY represents and warrants that each Account
is a "segregated asset account"
and that interests in each
Account are offered exclusively through the purchase of or transfer
into a "variable contract," within the meaning of such terms under
Section 817 of the Code and the regulations thereunder. LIFE COMPANY
will use its best efforts to continue to meet such definitional
requirements, and it will notify AVIF immediately upon having a
reasonable basis for believing that such requirements have ceased
to be met or that they might not be met in the future.
4.2 Insurance and Certain Other Laws.
(a) AVIF will use its best efforts to comply with any
applicable state insurance laws or regulations, to the extent
specifically requested in writing by LIFE COMPANY, including, the
furnishing of information not otherwise available to LIFE COMPANY
which is required by state insurance law to enable LIFE COMPANY
to obtain the authority needed to issue the Contracts in
any applicable state.
7
(b) LIFE COMPANY represents and warrants that (i) it is an
insurance company duly organized, validly existing and in good
standing under the laws of the State of Ohio and has full
corporate power, authority and legal right to execute, deliver
and perform its duties and comply with its obligations under this
Agreement, (ii) it has legally and validly established and
maintains each Account as a segregated asset account under
Section 3907.15 of the Ohio Insurance Law and the regulations
thereunder, and (iii) the Contracts comply in all material
respects with all other applicable federal and state laws and
regulations.
(c) AVIF represents and warrants that it is a corporation
duly organized, validly existing, and in good standing under the
laws of the State of Maryland and has full power, authority, and
legal right to execute, deliver, and perform its duties and
comply with its obligations under this Agreement.
4.3 Securities Laws.
(a) LIFE COMPANY represents and warrants that (i) interests
in each Account pursuant to the Contracts will be registered
under the 1933 Act to the extent required by the 1933 Act, (ii)
the Contracts will be duly authorized for issuance and sold in
compliance with all applicable federal and state laws, including,
without limitation, the 1933 Act, the 1934 Act, the 1940 Act and
Ohio law, (iii) each Account is and will remain registered under
the 1940 Act, to the extent required by the 1940 Act, (iv) each
Account does and will comply in all material respects with the
requirements of the 1940 Act and the rules thereunder, to the
extent required, (v) each Account's 1933 Act registration
statement relating to the Contracts, together with any amendments
thereto, will at all times comply in all material respects with
the requirements of the 1933 Act and the rules thereunder, (vi)
LIFE COMPANY will amend the registration statement for its
Contracts under the 1933 Act and for its Accounts under the 1940
Act from time to time as required in order to effect the
continuous offering of its Contracts or as may otherwise be
required by applicable law, and (vii) each Account's prospectus,
statement of additional information, private placement memoranda
and other documents pursuant to which Contracts are offered, and
any amendments or supplements thereto (collectively, the "Account
Prospectus"), will at all times comply in all material respects
with all applicable requirements of the 1933 Act and the rules
thereunder.
(b) AVIF represents and warrants that (i) Shares sold
pursuant to this Agreement will be registered under the 1933 Act
to the extent required by the 1933 Act and duly authorized for
issuance and sold in compliance with Maryland law, (ii) AVIF is
and will remain registered under the 1940 Act to the extent
required by the 1940 Act, (iii) AVIF will amend the registration
statement for its Shares under the 1933 Act and itself under the
1940 Act from time to time as required in order to effect the
continuous offering of its Shares, (iv) AVIF does and will comply
in all material respects with the requirements of the 1940 Act
and the rules thereunder, (v) AVIF's 1933 Act registration
statement, together with any amendments thereto, will at all
times comply in all material respects with the requirements of
the 1933 Act and rules thereunder, and (vi) AVIF's prospectus,
statement of additional information and any amendments or
supplements thereto (collectively, the "AVIF Prospectus" will at
all times comply in all material respects with all applicable
requirements of the 1933 Act and the rules thereunder.
8
(c) AVIF will at its expense register and qualify its Shares
for sale in accordance with the laws of any state or other
jurisdiction if and to the extent reasonably deemed advisable by
AVIF.
(d) AVIF 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, AVIF
undertakes to have its Board of Directors, a majority of whom are
not "interested" persons of the Fund, formulate and approve any
plan under Rule 12b-1 to finance distribution expenses.
(e) AVIF 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.
4.4 Notice of Certain Proceedings and Other Circumstances.
(a) AVIF will immediately notify LIFE COMPANY of (i) the
issuance by any court or regulatory body of any stop order, cease
and desist order, or other similar order with respect to AVIFs
registration statement under the 1933 Act or AVIF Prospectus,
(ii) any request by the SEC for any amendment to such
registration statement or AVIF Prospectus that may affect the
offering of Shares of AVIF, (iii) the initiation of any
proceedings for that purpose or for any other purpose relating to
the registration or offering of AVIF's Shares, or (iv) any other
action or circumstances that may prevent the lawful offer or sale
of Shares of any Fund in any state or jurisdiction, including,
without limitation, any circumstances in which (a) such Shares
are not registered and, in all material respects, issued and sold
in accordance with applicable state and federal law, or (b) such
law precludes the use of such Shares as an underlying investment
medium of the Contracts issued or to be issued by LIFE COMPANY.
AVIF will make every reasonable effort to prevent the issuance,
with respect to any Fund, of any such stop order, cease and
desist order or similar order and, if any such order is issued,
to obtain the lifting thereof at the earliest possible time.
(b) LIFE COMPANY will immediately notify AVIF of (i) the
issuance by any court or regulatory body of any stop order, cease
and desist order, or other similar order with respect to each
Account's registration statement under the 1933 Act relating to
the Contracts or each Account Prospectus, (ii) any request by the
SEC for any amendment to such registration statement or Account
Prospectus that may affect the offering of Shares of AVIF, (iii)
the initiation of any proceedings for that purpose or for any
other purpose relating to the registration or offering of each
Account's interests pursuant to the Contracts, or (iv) any other
action or circumstances that may prevent the lawful offer or sale
of said interests in any state or jurisdiction, including,
without limitation, any circumstances in which said interests are
not registered and, in all material respects, issued and sold in
accordance with applicable state and federal law. LIFE COMPANY
will make every reasonable effort to prevent the issuance of any
such stop order, cease and desist order or similar order and, if
any such order is issued, to obtain the lifting thereof at the
earliest possible time.
9
4.5 LIFE COMPANY To Provide Documents; Information About AVIF.
(a) LIFE COMPANY will provide to AVIF or its designated
agent at least one (1) complete copy of all SEC registration
statements, Account Prospectuses, reports, any preliminary and
final voting instruction solicitation material, applications for
exemptions, requests for no-action letters, and all amendments to
any of the above, that relate to each Account or the Contracts,
contemporaneously with the filing of such document with the SEC
or other regulatory authorities.
(b) LIFE COMPANY will provide to AVIF or its designated
agent at least one (1) complete copy of each piece of sales
literature or other promotional material in which AVIF or any of
its affiliates is named, at least five (5) Business Days prior to
its use or such shorter period as the Parties hereto may, from
time to time, agree upon. No such material shall be used if AVIF
or its designated agent objects to such use within five (5)
Business Days after receipt of such material or such shorter
period as the Parties hereto may, from time to time, agree upon.
AVIF hereby designates AIM as the entity to receive such sales
literature, until such time as AVIF appoints another designated
agent by giving notice to LIFE COMPANY in the manner required by
Section 9 hereof.
(c) Neither LIFE COMPANY nor any of its affiliates, will
give any information or make any representations or statements on
behalf of or concerning AVIF or its affiliates in connection with
the sale of the Contracts other than (i) the information or
representations contained in the registration statement,
including the AVIF Prospectus contained therein, relating to
Shares, as such registration statement and AVIF Prospectus may be
amended from time to time; or (ii) in reports or proxy materials
for AVIF; or (iii) in published reports for AVIF that are in the
public domain and approved by AVIF for distribution; or (iv) in
sales literature or other promotional material approved by AVIF,
except with the express written permission of AVIF.
(d) LIFE COMPANY shall adopt and implement procedures
reasonably designed to ensure that information concerning AVIF
and its affiliates that is intended for use only by brokers or
agents selling the Contracts (i.e., information that is not
intended for distribution to Participants) ("broker only
materials") is so used, and neither AVIF nor any of its
affiliates shall be liable for any losses, damages or expenses
relating to the improper use of such broker only materials.
(e) For the purposes of this Section 4.5, 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 1940 Act.
10
4.6 AVIF To Provide Documents; Information About LIFE COMPANY.
(a) AVIF will provide to LIFE COMPANY at least one (1)
complete copy of all SEC registration statements, AVIF
Prospectuses, reports, any preliminary and final proxy material,
applications for exemptions, requests for no-action letters, and
all amendments to any of the above, that relate to AVIF or the
Shares of a Fund, contemporaneously with the filing of such
document with the SEC or other regulatory authorities.
(b) AVIF will provide to LIFE COMPANY camera ready copy of
all AVIF prospectuses and printed copies, in an amount specified
by LIFE COMPANY, of AVIF statements of additional information,
proxy materials, periodic reports to shareholders and other
materials required by law to be sent to Participants who have
allocated any Contract value to a Fund. AVIF will provide such
copies to LIFE COMPANY in a timely manner so as to enable LIFE
COMPANY, as the case may be, to print and distribute such
materials within the time required by law to be furnished to
Participants.
(c) AVIF will provide to LIFE COMPANY or its designated
agent at least one (1) complete copy of each piece of sales
literature or other promotional material in which LIFE COMPANY,
or any of its respective affiliates is named, or that refers to
the Contracts, at least five (5) Business Days prior to its use
or such shorter period as the Parties hereto may, from time to
time, agree upon. No such material shall be used if LIFE COMPANY
or its designated agent objects to such use within five (5)
Business Days after receipt of such material or such shorter
period as the Parties hereto may, from time to time, agree upon.
LIFE COMPANY shall receive all such sales literature until such
time as it appoints a designated agent by giving notice to AVIF
in the manner required by Section 9 hereof.
(d) Neither AVIF nor any of its affiliates will give any
information or make any representations or statements on behalf
of or concerning LIFE COMPANY, each Account, or the Contracts
other than (i) the information or representations contained in
the registration statement, including each Account Prospectus
contained therein, relating to the Contracts, as such
registration statement and Account Prospectus may be amended from
time to time; or (ii) in published reports for the Account or the
Contracts that are in the public domain and approved by LIFE
COMPANY for distribution; or (iii) in sales literature or other
promotional material approved by LIFE COMPANY or its affiliates,
except with the express written permission of LIFE COMPANY.
(e) AVIF shall cause its principal underwriter to adopt and
implement procedures reasonably designed to ensure that
information concerning LIFE COMPANY, and its respective
affiliates that is intended for use only by brokers or agents
selling the Contracts (i.e., information that is not intended for
distribution to Participants) ("broker only materials") is so
used, and neither LIFE COMPANY, nor any of its respective
affiliates shall be liable for any losses, damages or expenses
relating to the improper use of such broker only materials.
(f) For purposes of this Section 4.6, 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
11
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 1940 Act.
Section 5. Mixed and Shared Funding
5.1 General.
The SEC has granted an order to AVIF exempting it from
certain provisions of the 1940 Act and rules thereunder so that
AVIF may be available for investment by certain other entities,
including, without limitation, separate accounts funding variable
annuity contracts or variable life insurance contracts, separate
accounts of insurance companies unaffiliated with LIFE COMPANY,
and trustees of qualified pension and retirement plans
(collectively, "Mixed and Shared Funding"). The Parties recognize
that the SEC has imposed terms and conditions for such orders
that are substantially identical to many of the provisions of
this Section 5. Sections 5.2 through 5.8 below shall apply
pursuant to such an exemptive order granted to AVIF. AVIF hereby
notifies LIFE COMPANY that it may be appropriate to include in
the prospectus pursuant to which a Contract is offered disclosure
regarding the potential risks of Mixed and Shared Funding.
5.2 Disinterested Directors.
AVIF agrees that its Board of Directors shall at all times
consist of directors a majority of whom (the "Disinterested
Directors") are not interested persons of AVIF within the meaning
of Section 2(a)(19) of the 1940 Act and the rules thereunder and
as modified by any applicable orders of the SEC, except that if
this condition is not met by reason of the death,
disqualification, or bona fide resignation of any director, then
the operation of this condition shall be suspended (a) for a
period of forty-five (45) days if the vacancy or vacancies may be
filled by the Board;(b) for a period of sixty (60) days if a vote
of shareholders is required to fill the vacancy or vacancies; or
(c) for such longer period as the SEC may prescribe by order upon
application.
5.3 Monitoring for Material Irreconcilable Conflicts.
AVIF agrees that its Board of Directors will monitor for the
existence of any material irreconcilable conflict between the
interests of the Participants in all separate accounts of life
insurance companies utilizing AVIF ("Participating Insurance
Companies"), including each Account, and participants in all
qualified retirement and pension plans investing in AVIF
("Participating Plans"). LIFE COMPANY agrees to inform the Board
of Directors of AVIF of the existence of or any potential for any
such material irreconcilable conflict of which it is aware. The
concept of a "material irreconcilable conflict" is not defined by
the 1940 Act or the rules thereunder, but the Parties recognize
that such a conflict may arise for a variety of reasons,
including, without limitation:
12
(a) an action by any state insurance or other 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 Fund are
being managed;
(e) a difference in voting instructions given by variable
annuity contract and variable life insurance contract
Participants or by Participants of different Participating
Insurance Companies;
(f) a decision by a Participating Insurance Company to
disregard the voting instructions of Participants; or
(g) a decision by a Participating Plan to disregard the
voting instructions of Plan participants.
Consistent with the SEC's requirements in connection with
exemptive orders of the type referred to in Section 5.1 hereof,
LIFE COMPANY will assist the Board of Directors in carrying out
its responsibilities by providing the Board of Directors with all
information reasonably necessary for the Board of Directors to
consider any issue raised, including information as to a decision
by LIFE COMPANY to disregard voting instructions of Participants.
LIFE COMPANY's responsibilities in connection with the foregoing
shall be carried out with a view only to the interests of
Participants.
5.4 Conflict Remedies.
(a) It is agreed that if it is determined by a majority of
the members of the Board of Directors or a majority of the
Disinterested Directors that a material irreconcilable conflict
exists, LIFE COMPANY will, if it is a Participating Insurance
Company for which a material irreconcilable conflict is relevant,
at its own expense and to the extent reasonably practicable (as
determined by a majority of the Disinterested Directors), take
whatever steps are necessary to remedy or eliminate the material
irreconcilable conflict, which steps may include, but are not
limited to:
(i) withdrawing the assets allocable to some or all of
the Accounts from AVIF or any Fund and reinvesting such assets
in a different investment medium, including another Fund of AVIF,
or submitting the question whether such segregation should be
implemented to a vote of all affected Participants and, as
appropriate, segregating the assets of any particular group
(e.g., annuity Participants, life insurance Participants or all
Participants) that votes in favor of such segregation, or
offering to the affected Participants the option of making such
a change; and
13
(ii) establishing a new registered investment company
of the type defined as a "management company" in Section 4(3) of
the 1940 Act or a new separate account that is operated as a
management company.
(b) If the material irreconcilable conflict arises because
of LIFE COMPANY's decision to disregard Participant voting
instructions and that decision represents a minority position or
would preclude a majority vote, LIFE COMPANY may be required, at
AVIF's election, to withdraw each Account's investment in AVIF or
any Fund. No charge or penalty will be imposed as a result of
such withdrawal. Any such withdrawal must take place within six
(6) months after AVIF gives notice to LIFE COMPANY that this
provision is being implemented, and until such withdrawal AVIF
shall continue to accept and implement orders by LIFE COMPANY for
the purchase and redemption of Shares of AVER
(c) If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to
LIFE COMPANY conflicts with the majority of other state
regulators, then LIFE COMPANY will withdraw each Account's
investment in AVIF within six (6) months after AVIF's Board of
Directors informs LIFE COMPANY that it has determined that such
decision has created a material irreconcilable conflict, and
until such withdrawal AVIF shall continue to accept and implement
orders by LIFE COMPANY for the purchase and redemption of Shares
of AVIF. No charge or penalty will be imposed as a result of such
withdrawal.
(d) LIFE COMPANY agrees that any remedial action taken by it
in resolving any material irreconcilable conflict will be carried
out at its expense and with a view only to the interests of
Participants.
(e) For purposes hereof, a majority of the Disinterested
Directors will determine whether or not any proposed action
adequately remedies any material irreconcilable conflict. In no
event, however, will AVIF or any of its affiliates be required to
establish a new funding medium for any Contracts. LIFE COMPANY
will not be required by the terms hereof to establish a new
funding medium for any Contracts if an offer to do so has been
declined by vote of a majority of Participants materially
adversely affected by the material irreconcilable conflict.
5.5 Notice to LIFE COMPANY.
AVIF will promptly make known in writing to LIFE COMPANY the
Board of Directors' determination of the existence of a material
irreconcilable conflict, a description of the facts that give
rise to such conflict and the implications of such conflict.
5.6 Information Requested by Board of Directors.
LIFE COMPANY and AVIF (or its investment adviser) will at
least annually submit to the Board of Directors of AVIF such
reports, materials or data as the Board of Directors may
reasonably request so that the Board of Directors may fully carry
out the obligations imposed upon it by the provisions hereof or
any exemptive order granted by the SEC to permit Mixed and Shared
Funding, and said reports, materials and data will be submitted
at any reasonable time deemed appropriate by the Board of
Directors. All reports received by the Board of Directors of
potential or existing conflicts, and all Board of Directors
14
actions with regard to determining the existence of a conflict,
notifying Participating Insurance Companies and Participating
Plans of a conflict, and determining whether any proposed action
adequately remedies a conflict, will be properly recorded in the
minutes of the Board of Directors or other appropriate records,
and such minutes or other records will be made available to the
SEC upon request.
5.7 Compliance with SEC Rules.
If, at any time during which AVIF is serving as an
investment medium for variable life insurance Contracts, 1940 Act
Rules 6e-3(T) or, if applicable, 6e-2 are amended or Rule 6e-3 is
adopted to provide exemptive relief with respect to Mixed and
Shared Funding, AVIF agrees that it will comply with the terms
and conditions thereof and that the terms of this Section 5 shall
be deemed modified if and only to the extent required in order
also to comply with the terms and conditions of such exemptive
relief that is afforded by any of said rules that are applicable.
5.8 Other Requirements.
AVIF will require that each Participating Insurance Company
and Participating Plan enter into an agreement with AVIF that
contains in substance the same provisions as are set forth in
Sections 4.1(b), 4.1(d), 4.3(a), 4.4(b), 4.5(a), 5, and 10 of
this Agreement.
Section 6. Termination
6.1 Events of Termination.
Subject to Section 6.4 below, this Agreement will terminate
as to a Fund:
(a) at the option of any party, with or without cause with
respect to the Fund, upon six (6) months advance written notice
to the other parties, or, if later, upon receipt of any required
exemptive relief from the SEC, unless otherwise agreed to in
writing by the parties; or
(b) at the option of AVIF upon institution of formal
proceedings against LIFE COMPANY or its affiliates by the NASD,
the SEC, any state insurance regulator or any other regulatory
body regarding LIFE COMPANY's obligations under this Agreement or
related to the sale of the Contracts, the operation of each
Account, or the purchase of Shares, if, in each case, AVIF
reasonably determines that such proceedings, or the facts on
which such proceedings would be based, have a material likelihood
of imposing material adverse consequences on the Fund with
respect to which the Agreement is to be terminated; or
(c) at the option of LIFE COMPANY upon institution of
formal proceedings against AVIF, its principal underwriter, or
its investment adviser by the NASD, the SEC, or any state
insurance regulator or any other regulatory body regarding AVIF's
obligations under this Agreement or related to the operation or
management of AVIF or the purchase of AVIF Shares, if, in each
case, LIFE COMPANY reasonably determines that such proceedings,
or the facts on which such proceedings would be based, have a
material likelihood of imposing material adverse consequences on
15
LIFE COMPANY, or the Subaccount corresponding to the Fund with
respect to which the Agreement is to be terminated; or
(d) at the option of any Party in the event that (i) the
Fund's Shares are not registered, where required, and, in all
material respects, issued and sold in accordance with any
applicable federal or state law, or (ii) such law precludes the
use of such Shares as an underlying investment medium of the
Contracts issued or to be issued by LIFE COMPANY; or;
(e) upon termination of the corresponding Subaccount's
investment in the Fund pursuant to Section S hereof; or
(f) at the option of LIFE COMPANY if the Fund ceases to
qualify as a RIC under Subchapter M of the Code or under
successor or similar provisions, or if LIFE COMPANY reasonably
believes that the Fund may fail to so qualify; or
(g) at the option of LIFE COMPANY if the Fund fails to
comply with Section 817(h) of the Code or with successor or
similar provisions, as applicable, or if LIFE COMPANY reasonably
believes that the Fund may fail to so comply; or
(h) at the option of AVIF if the Contracts issued by LIFE
COMPANY cease to qualify as annuity contracts or life insurance
contracts under the Code (other than by reason of the Fund's
noncompliance with Section 817(h) or Subchapter M of the Code) or
if interests in an Account under the Contracts are not
registered, where required, and, in all material respects, are
not issued or sold in accordance with any applicable federal or
state law; or
(i) upon another Party's material breach of any
provision of this Agreement.
6.2 Notice Requirement for Termination.
No termination of this Agreement will be effective unless
and until the Party terminating this Agreement gives prior
written notice to the other Party to this Agreement of its intent
to terminate, and such notice shall set forth the basis for such
termination. Furthermore:
(a) in the event that any termination is based upon the
provisions of Sections 6.1(a) or 6.1(e) hereof, such prior
written notice shall be given at least six (6) months in advance
of the effective date of termination unless a shorter time is
agreed to by the Parties hereto;
(b) in the event that any termination is based upon the
provisions of Sections 6.1(b) or 6.1(c) hereof, such prior
written notice shall be given at least ninety (90) days in
advance of the effective date of termination unless a shorter
time is agreed to by the Parties hereto; and
(c) in the event that any termination is based upon the
provisions of Sections 6.1(d), 6.1(f), 6.1(g), 6.1(h) or 6.1(i)
hereof, such prior written notice shall be given as soon as
possible within twenty-four (24) hours after the terminating
Party learns of the event causing termination to be required.
16
6.3 Funds To Remain Available.
Notwithstanding any termination of this Agreement, AVIF
will, at the option of LIFE 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 Fund (as in effect on
such date), redeem investments in the Fund and/or invest in the
Fund upon the making of additional purchase payments under the
Existing Contracts. The parties agree that this Section 6.3 will
not apply to any terminations under Section 5 and the effect of
such terminations will be governed by Section 5 of this
Agreement.
6.4 Survival of Warranties and Indemnifications.
All warranties and indemnifications will survive the
termination of this Agreement.
6.5 Continuance of Agreement for Certain Purposes.
If any Party terminates this Agreement with respect to any
Fund pursuant to Sections 6.1(b), 6.1(c), 6.1(d), 6.1(f), 6.1(g),
6.1 (h) or 6.1(i) hereof, this Agreement shall nevertheless
continue in effect as to any Shares of that Fund that are
outstanding as of the date of such termination (the "Initial
Termination Date"). This continuation shall extend to the earlier
of the date as of which an Account owns no Shares of the affected
Fund or a date (the "Final Termination Date") six (6) months
following the Initial Termination Date, except that LIFE COMPANY
may, by written notice shorten said six (6) month period in the
case of a termination pursuant to Sections 6.1(d), 6.1(f),
6.1(g), 6.1 (h) or 6.1(I).
Section 7. Parties To Cooperate Respecting Termination
The Parties hereto agree to cooperate and give reasonable
assistance to one another in taking all necessary and appropriate
steps for the purpose of ensuring that an Account owns no Shares
of a Fund after the Final Termination Date with respect thereto,
or, in the case of a termination pursuant to Section 6.1(a), the
termination date specified in the notice of termination. Such
steps may include combining the affected Account with another
Account, substituting other mutual fund shares for those of the
affected Fund, or otherwise terminating participation by the
Contracts in such Fund.
Section 8. Assignment
This Agreement may not be assigned by any Party, except with
the written consent of each other Party.
17
Section 9. Notices
Notices and communications required or permitted by this
Agreement will be given by means mutually acceptable to the
Parties concerned. Each other notice or communication required or
permitted by this Agreement will be given to the following
persons at the following addresses and facsimile numbers, or such
other persons, addresses or facsimile numbers as the Party
receiving such notices or communications may subsequently direct
in writing:
AIM Variable Insurance Funds, Inc.
A I M Distributors, Inc.
11 Greenway Plaza, Suite 100
Houston, Texas 77046
Facsimile: (713) 993-9185
Attn: Nancy L. Martin, Esq.
The Union Central Insurance Company
Carillon Investments, Inc.
1876 Waycross Road
Cincinnati, Ohio 45240
Facsimile: 513-595-2918
Attn: John F. Labmeier, Esq., Law Dept.
Elizabeth G. Monsell
Section 10. Voting Procedures
Subject to the cost allocation procedures set forth in
Section 3 hereof, LIFE COMPANY will distribute all proxy material
furnished by AVIF to Participants and/or Policyholders to whom
pass-through voting privileges are required to be extended and
will solicit voting instructions from Participants. LIFE COMPANY
will vote Shares in accordance with timely instructions received
from Participants. LIFE COMPANY will vote Shares that are (a) not
attributable to Participants to whom pass-through voting
privileges are extended, or (b) attributable to Participants, but
for which no timely instructions have been received, in the same
proportion as Shares for which said instructions have been
received from Participants, so long as and to the extent that the
SEC continues to interpret the 1940 Act to require pass through
voting privileges for Participants. Neither LIFE COMPANY nor any
of its affiliates will in any way recommend action in connection
with or oppose or interfere with the solicitation of proxies for
the Shares held for such Participants. LIFE COMPANY reserves the
right to vote shares held in any Account in its own right, to the
extent permitted by law. LIFE COMPANY shall be responsible for
assuring. that each of its Accounts holding Shares calculates
voting privileges in a manner consistent with that of other
Participating Insurance Companies or in the manner required by
the Mixed and Shared Funding exemptive order obtained by AVIF.
AVIF will notify LIFE COMPANY of any changes of interpretations
or amendments to Mixed and Shared Funding exemptive order it has
obtained. AVIF will comply with all provisions of the 1940 Act
18
requiring voting by shareholders, and in particular, AVIF 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 will comply with Section 16(c) of the 1940 Act
(although AVIF 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, AVIF will act in accordance with
the SEC's interpretation of the requirements of Section 16(a)
with respect to periodic elections of directors and with whatever
rules the SEC may promulgate with respect thereto.
Section 11. Foreign Tax Credits
AVIF agrees to consult in advance with LIFE COMPANY
concerning any decision to elect or not to elect pursuant to
Section 853 of the Code to pass through the benefit of any
foreign tax credits to its shareholders.
Section 12. Indemnification
12.1 Of AVIF and AIM by LIFE COMPANY and UNDERWRITER.
(a) Except to the extent provided in Sections 12.1(b) and
12.1(c), below, LIFE COMPANY and UNDERWRITER agree to indemnify
and hold harmless AVIF, AIM, their affiliates, and each person,
if any, who controls AVIF, AIM, or their affiliates within the
meaning of Section 15 of the 1933 Act and each of their
respective directors and officers, (collectively, the
"Indemnified Parties" for purposes of this Section 12.1) against
any and all losses, claims, damages, liabilities (including
amounts paid in settlement with the written consent of LIFE
COMPANY and UNDERWRITER) or actions in respect thereof
(including, to the extent 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 actions:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in
any Account's 1933 Act registration statement, any Account
Prospectus, the Contracts, or sales literature or advertising 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 therein or necessary to make the statements therein
not misleading; 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
LIFE COMPANY or UNDERWRITER by or on behalf of AVIF or AIM for
use in any Account's 1933 Act, registration statement, any
Account Prospectus, the Contracts, or sales literature or
advertising or otherwise for use in connection with the sale of
Contracts or Shares (or any amendment or supplement to any of the
foregoing); or
19
(ii) arise out of or as a result of any other
statements or representations (other than statements or
representations contained in AVIF's 1933 Act registration
statement, AVIF Prospectus, sales literature or advertising of
AVIF, or any amendment or supplement to any of the foregoing, not
supplied for use therein by or on behalf of LIFE COMPANY,
UNDERWRITER or their respective affiliates and on which such
persons have reasonably relied) or the negligent, illegal or
fraudulent conduct of LIFE COMPANY, UNDERWRITER or their
respective affiliates or persons under their control (including,
without limitation, their employees and "Associated Persons," as
that term is defined in paragraph (m) of Article I of the NASD's
By-Laws), in connection with the sale or distribution of the
Contracts or Shares; or
(iii) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in AVIF's 1933 Act registration statement, AVIF
Prospectus, sales literature or advertising of AVIF, or any
amendment or supplement to any of the foregoing, or the on ussion
or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not
misleading if such a statement or omission was made in reliance
upon and in conformity with information furnished to AVIF, AIM
or their affiliates by or on behalf of LIFE COMPANY, UNDERWRITER
or their respective affiliates for use in AVIF's 1933 Act
registration statement, AVIF Prospectus, sales literature or
advertising of AVIF, or any amendment or supplement to any of
the foregoing; or
(iv) arise as a result of any failure by LIFE COMPANY
or UNDERWRITER to perform the obligations, provide the services
and furnish the materials required of them under the terms of
this Agreement, or any material breach of any representation
and/or warranty made by LIFE COMPANY or UNDERWRITER in this
Agreement or arise out of or result from any other material
breach of this Agreement by LIFE COMPANY or UNDERWRITER; or
(v) arise as a result of failure by the Contracts
issued by LIFE COMPANY to qualify as annuity contracts or life
insurance contracts under the Code, otherwise than by reason of
any Fund's failure to comply with Subchapter M or Section 817(h)
of the Code.
(b) Neither LIFE COMPANY nor UNDERWRITER shall be liable
under this Section 12.1 with respect to any losses, claims,
damages, liabilities or actions to which an Indemnified Party
would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance by that Indemnified
Party of its duties or by reason of that Indemnified Party's
reckless disregard of obligations or duties (i) under this
Agreement, or (ii) to AVIF or AIM.
20
(c) Neither LIFE COMPANY nor UNDERWRITER shall be liable
under this Section 12.1 with respect to any action against an
Indemnified Party unless AVIF or AIM shall have notified LIFE
COMPANY and UNDERWRITER in writing within a reasonable time after
the summons or other first legal process giving information of
the nature of the action shall have been served upon such
Indemnified Party (or after such Indemnified Party shall have
received notice of such service on any designated agent), but
failure to notify LIFE COMPANY and UNDERWRITER of any such action
shall not relieve LIFE COMPANY and UNDERWRITER from any liability
which they may have to the Indemnified Party against whom such
action is brought otherwise than on account of this Section 12.1.
Except as otherwise provided herein, in case any such action is
brought against an Indemnified Party, LIFE COMPANY and
UNDERWRITER shall be entitled to participate, at their own
expense, in the defense of such action and also shall be entitled
to assume the defense thereof, with counsel approved by the
Indemnified Party named in the action, which approval shall not
be unreasonably withheld. After notice from LIFE COMPANY or
UNDERWRITER to such Indemnified Party of LIFE COMPANY's or
UNDERWRITER's election to assume the defense thereof, the
Indemnified Party will cooperate fully with LIFE COMPANY and
UNDERWRITER and shall bear the fees and expenses of any
additional counsel retained by it, and neither LIFE COMPANY nor
UNDERWRITER will be liable to such Indemnified Party under this
Agreement for any legal or other expenses subsequently incurred
by such Indemnified Party independently in connection with the
defense thereof, other than reasonable costs of investigation.
12.2 Of LIFE COMPANY and UNDERWRITER by AVI and AIM.
(a) Except to the extent provided in Sections 12.2(c),
12.2(d) and 12.2(e), below, AVIF and AIM agree to indemnify and
hold harmless LIFE COMPANY, UNDERWRITER, their respective
affiliates, and each person, if any, who controls LIFE COMPANY,
UNDERWRITER or their respective affiliates within the meaning of
Section 15 of the 1933 Act and each of their respective directors
and officers, (collectively, the "Indemnified Parties" for
purposes of this Section 12.2) against any and all losses,
claims, damages, liabilities (including amounts paid in
settlement with the written consent of AVIF and/or AIM) or
actions in respect thereof (including, to the extent 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 actions:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in
AVIF's 1933 Act registration statement, AVIF Prospectus or sales
literature or advertising of AVIF (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; 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 AVIF or its affiliates by or on behalf
of LIFE COMPANY, UNDERWRITER or their respective affiliates for
use in AVIF's 1933 Act registration statement, AVIF Prospectus,
or in sales literature or advertising or otherwise for use in
21
connection with the sale of Contracts or Shares (or any
amendment or supplement to any of the foregoing); or
(ii) arise out of or as a result of any other
statements or representations (other than statements or
representations contained in any Account's 1933 Act registration
statement, any Account Prospectus, sales literature or
advertising for the Contracts, or any amendment or supplement to
any of the foregoing, not supplied for use therein by or on
behalf of AVIF, AIM or their affiliates and on which such persons
have reasonably relied) or the negligent, illegal or fraudulent
conduct of AVIF, AIM or their affiliates or persons under their
control (including, without limitation, their employees and
"Associated Persons" as that term is defined in Section (m) of
Article I of the NASD By-Laws), in connection with the sale or
distribution of AVIF Shares; or
(iii) arise out of or are based upon any untrue
statement or alleged untrue statement of any material fact
contained in any Account's 1933 Act registration statement, any
Account Prospectus, sales literature or advertising covering the
Contracts, or any amendment or supplement to any of the
foregoing, or the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make
the statements therein not misleading, if such statement or
omission was made in reliance upon and in conformity with
information furnished to LIFE COMPANY, UNDERWRITER or their
respective affiliates by or on behalf of AVIF or AIM for use in
any Account's 1933 Act registration statement, any Account
Prospectus, sales literature or advertising covering the
Contracts, or any amendment or supplement to any of the
foregoing; or
(iv) arise as a result of any failure by AVIF to
perform the obligations, provide the services and furnish the
materials required of it under the terms of this Agreement, or
any material breach of any representation and/or warranty made by
AVIF in this Agreement or arise out of or result from any other
material breach of this Agreement by AVIF.
(b) Except to the extent provided in Sections 12.2(c),
12.2(d) and 12.2(e) hereof, AVIF and AIM agree to indemnify and
hold harmless the Indemnified Parties from and against any and
all losses, claims, damages, liabilities (including amounts paid
in settlement thereof with, the written consent of AVIF and/or
AIM) or actions in respect thereof (including, to the extent
reasonable, legal and other expenses) to which the Indemnified
Parties may become subject directly or indirectly under any
statute, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or actions directly or indirectly
result from or arise out of the failure of any Fund to operate
as a regulated investment company in compliance. with (i)
Subchapter M of the Code and regulations thereunder, or (ii)
Section 817(h) of the Code and regulations thereunder,
including, without limitation, any income taxes and related
penalties, rescission charges, liability under state law to
Participants asserting liability against LIFE COMPANY pursuant
to the Contracts, the costs of any ruling and closing agreement
or other settlement with the IRS, and the cost of any
substitution by LIFE COMPANY of Shares of another investment
company or portfolio for those of any adversely affected Fund as
22
a funding medium for each Account that LIFE COMPANY reasonably
deems necessary or appropriate as a result of the noncompliance.
(c) Neither AVIF nor AIM shall be liable under this Section
12.2 with respect to any losses, claims, damages, liabilities or
actions to which an Indemnified Party would otherwise be subject
by reason of willful misfeasance, bad faith, or gross negligence
in the performance by that Indemnified Party of its duties or by
reason of such Indemnified Party's reckless disregard of its
obligations and duties (i) under this Agreement, or (ii) to LIFE
COMPANY, UNDERWRITER, each Account or Participants.
(d) Neither AVIF nor AIM shall be liable under this Section
12.2 with respect to any action against an Indemnified Party
unless the Indemnified Party shall have notified AVIF and/or AIM
in writing within a reasonable time after the summons or other
first legal process giving information of the nature of the
action shall have been served upon such Indemnified Party (or
after such Indemnified Party shall have received notice of such
service on any designated agent), but failure to notify AVIF or
AIM of any such action shall not relieve AVIF or AIM from any
liability which it may have to the Indemnified Party against whom
such action is brought otherwise than on account of this Section
12.2. Except as otherwise provided herein, in case any such
action is brought against an Indemnified Party, AVIF and/or AIM
will be entitled to participate, at its own expense, in the
defense of such action and also shall be entitled to assume the
defense thereof (which shall include, without limitation, the
conduct of any ruling request and closing agreement or other
settlement proceeding with the IRS), with counsel approved by the
Indemnified Party named in the action, which approval shall not
be unreasonably withheld. After notice from AVIF and/or AIM to
such Indemnified Party of AVIF's or AIM's election to assume the
defense thereof, the Indemnified Party will cooperate fully with
AVIF and AIM and shall bear the fees and expenses of any
additional counsel retained by it, and AVIF and AIM will not be
liable to such Indemnified Party under this Agreement for any
legal or other expenses subsequently incurred by such Indemnified
Party independently in connection with the defense thereof, other
than reasonable costs of investigation.
(e) In no event shall AVIF or AIM be liable under the
indemnification provisions contained in this Agreement to any
individual or entity, including, without limitation, LIFE
COMPANY, UNDERWRITER or any other Participating Insurance Company
or any Participant, with respect to any losses, claims, damages,
liabilities or expenses that arise out of or result from (i) a
breach of any representation, warranty, and/or covenant made by
LIFE COMPANY or UNDERWRITER hereunder or by any Participating
Insurance Company under an agreement containing substantially
similar representations, warranties and covenants; (ii) the
failure by LIFE COMPANY or any Participating Insurance Company to
maintain its segregated asset account (which invests in any Fund)
as a legally and validly established segregated asset account
under applicable state law and as a duly registered unit
investment trust under the provisions of the 1940 Act (unless
exempt therefrom); or (iii) the failure by LIFE COMPANY or any
Participating Insurance Company to maintain its variable annuity
or life insurance contracts (with respect to which any Fund
serves as an underlying funding vehicle) as annuity contracts or
life insurance contracts under applicable provisions of the Code.
23
12.3 Effect of Notice.
Any notice given by the indemnifying Party to an Indemnified
Party referred to in Sections 12.1 (c) or 12.2(d) above of
participation in or control of any action by the indemnifying
Party will in no event be deemed to be an admission by the
indemnifying Party of liability, culpability or responsibility,
and the indemnifying Party will remain free to contest liability
with respect to the claim among the Parties or otherwise.
12.4 Successors.
A successor by law of any Party shall be entitled to the
benefits of the indemnification contained in this Section 12.
Section 13. Applicable Law
This Agreement will be construed and the provisions hereof
interpreted under and in accordance with Maryland law, without
regard for that state's principles of conflict of laws.
Section 14. Execution in Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one
and the same instrument.
Section 15. Severability
If any provision of this Agreement is held or made invalid
by a court decision, statute, rule or otherwise, the remainder of
this Agreement will not be affected thereby.
Section 16. Rights Cumulative
The rights, remedies and obligations contained in this
Agreement are cumulative and are in addition to any and all
rights, remedies and obligations, at law or in equity, that the
Parties are entitled to under federal and state laws.
Section 17. Headings
The Table of Contents and headings used in this Agreement
are for purposes of reference only and shall not limit or define
the meaning of the provisions of this Agreement.
24
Section 18. Confidentiality
AVIF acknowledges that the identities of the customers of
LIFE COMPANY or any of its affiliates (collectively, the "LIFE
COMPANY Protected Parties" for proposes of this Section 18),
information maintained regarding those customers, and all
computer programs and procedures or other information developed
by the LIFE COMPANY Protected Parties or any of their employees
or agents in connection with LIFE COMPANY's performance of its
duties under this Agreement are the valuable property of the LIFE
COMPANY Protected Parties. AVIF agrees that if it comes into
possession of any list or compilation of the identities of or
other information about the LIFE COMPANY Protected Parties'
customers, or any other information or property of the LIFE
COMPANY Protected Parties, other than such information as may be
independently developed or compiled by AVIF from information
supplied to it by the LIFE COMPANY Protected Parties' customers
who also maintain accounts directly with AVIF, AVIF 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 LIFE COMPANY'S prior written
consent; or (b) as required by law or judicial process. LIFE
COMPANY acknowledges that the identities of the customers of AVIF
or any of its affiliates (collectively, the "AVIF Protected
Parties" for purposes of this Section 18), information maintained
regarding those customers, and all computer programs and
procedures or other information developed by the AVIF Protected
Parties or any of their employees or agents in connection with
AVIF's performance of its duties under this Agreement are the
valuable property of the AVIF Protected Parties. LIFE COMPANY
agrees that if it comes into possession of any list or
compilation of the identities of or other information about the
AVIF Protected Parties' customers or any other information or
property of the AVIF Protected Parties, other than such
information as may be independently developed or compiled by LIFE
COMPANY from information supplied to it by the AVIF Protected
Parties' customers who also maintain accounts directly with LIFE
COMPANY, LIFE COMPANY 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 AVIF's
prior written consent; or (b) as required by law or judicial
process. Each party acknowledges that any breach of the
agreements in this Section 18 would result in immediate and
irreparable harm to the other parties for which there would be no
adequate remedy at law and agree that in the event of such a
breach, the other parties will be entitled to equitable relief by
way of temporary and permanent injunctions, as well as such other
relief as any court of competent jurisdiction deems appropriate.
Section 19. Trademarks and Fund Names
(a) A I M Management Group Inc. ("AIM" or "licensor"), an
affiliate of AVIF, owns all right, title and interest in and to
the name, trademark and service mark "AIM" and such other
tradenames, trademarks and service marks as may be set forth on
Schedule B, as amended from time to time by written notice from
AIM to LIFE COMPANY (the "AIM licensed marks" or the "licensor's
licensed marks") and is authorized to use and to license other
persons to use such marks. LIFE COMPANY and its affiliates are
hereby granted a non-exclusive license to use the AIM licensed
marks in connection with LIFE COMPANY's performance of the
services contemplated under this Agreement, subject to the terms
and conditions set forth in this Section 19.
25
(b) The grant of license to LIFE COMPANY and its affiliates
(the "licensee") shall terminate automatically upon termination
of this Agreement. Upon automatic termination, the licensee shall
cease to use the licensor's licensed marks, except that LIFE
COMPANY shall have the right to continue to service any
outstanding Contracts bearing any of the AIM licensed marks. Upon
AIM's elective termination of this license, LIFE COMPANY and its
affiliates shall immediately cease to issue any new annuity or
life insurance contracts bearing any of the AIM licensed marks
and shall likewise cease any activity which suggests that it has
any right under any of the AIM licensed marks or that it has any
association with AIM, except that LIFE COMPANY shall have the
right to continue to service outstanding Contracts bearing any of
the AIM licensed marks.
(c) The licensee shall obtain the prior written approval of
the licensor for the public release by such licensee of any
materials bearing the licensor's licensed marks. The licensor's
approvals shall not be unreasonably withheld.
(d) During the term of this grant of license, a licensor may
request that a licensee submit samples of any materials bearing
any of the licensor's licensed marks which were previously
approved by the licensor but, due to changed circumstances, the
licensor may wish to reconsider. If, on reconsideration, or on
initial review, respectively, any such samples fail to meet with
the written approval of the licensor, then the licensee shall
immediately cease distributing such disapproved materials. The
licensor's approval shall not be unreasonably withheld, and the
licensor, when requesting reconsideration of a prior approval,
shall assume the reasonable expenses of withdrawing and replacing
such disapproved materials. The licensee shall obtain the prior
written approval of the licensor for the use of any new materials
developed to replace the disapproved materials, in the manner set
forth above.
(e) The licensee hereunder: (i) acknowledges and stipulates
that, to the best of the knowledge of the licensee, the
licensor's licensed marks are valid and enforceable trademarks
and/or service marks and that such licensee does not own the
licensor's licensed marks and claims no rights therein other than
as a licensee under this Agreement; (ii) agrees never to contend
otherwise in legal proceedings or in other circumstances; and
(iii) acknowledges and agrees that the use of the licensor's
licensed marks pursuant to this grant of license shall inure to
the benefit of the licensor.
Section 20. Parties to Cooperate
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 (including copies
thereof) in connection with any investigation or inquiry relating
to this Agreement or the transactions contemplated hereby.
26
IN WITNESS WHEREOF, the Parties have caused this Agreement
to be executed in their names and on their behalf by and through
their duly authorized officers signing below.
AIM VARIABLE INSURANCE FUNDS, INC.
Attest: /s/ Nancy L. Martin By: /s/ Robert H. Graham
Name: Nancy L. Martin Name: Robert H. Graham
Title:Assistant Secretary Title: President
A I M DISTRIBUTORS, INC.
Attest: /s/ Nancy L. Martin By: /s/ Michael J. Cemo
Name: Nancy L. Martin Name: Michael J. Cemo
Title: Assistant Secretary Title: President
THE UNION CENTRAL LIFE INSURANCE
COMPANY, on behalf of itself and
its separate accounts
Attest: /s/ John F. Labmeier By: /s/ Dennis J. Coyle
Name: John F. Labmeier Name: Dennis J. Coyle
Title: Vice President Title: Vice President
CARILLON INVESTMENTS, INC.
Attest:/s/ John F. Labmeier By: /s/ Elizabeth G. Monsell
Name: John F. Labmeier Name: Elizabeth G. Monsell
Title: Vice President Title: President
27
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
AIM VARIABLE INSURANCE FUNDS, INC.
AIM V.I. Balanced Fund
AIM V.I. Capital Appreciation Fund
SEPARATE ACCOUNTS UTILIZING THE FUNDS
UCL Mutual Fund Separate Account No. 33
UNREGISTERED SEPARATE ACCOUNTS UTILIZING THE FUNDS
CONTRACTS FUNDED BY THE SEPARATE ACCOUNTS
ESP ("Employee Savings Plan")
Allocated Group Annuity Policy
Policy Forms Nos. UC64347 and UC64342
28
SCHEDULE B
AIM VARIABLE INSURANCE FUNDS, INC.
AIM V.I. Balanced Fund
AIM V.I. Capital Appreciation Fund
AIM and Design
29
Schedule C
EXPENSE ALLOCATIONS
Life Company AVIF /AIM
preparing and filing the Account's preparing and filing the Fund's
registration statement registration statement
text composition for Account text composition for Fund prospectuses
prospectuses and supplements and supplements
text alterations of prospectuses text alterations of prospectuses
(Account) and supplements (Account) (Fund) and supplements (Fund)
printing Account and Fund a camera ready Fund prospectus
prospectuses and supplements
text composition and printing text composition and printing Fund SAIs
Account SAIs
mailing and distributing Account mailing and distributing Fund SAIs
SAIs to policy owners upon request to policy owners upon request by
by policy owners policy owners
mailing and distributing prospectuses
(Account and Fund) and supplements
(Account and Fund) to policy owners
of record as required by Federal
Securities Laws and to prospective
purchasers
text composition (Account), printing, text composition of annual and semi-
mailing, and distributing annual annual reports (Fund)
and semi-annual reports for Account
(Fund and Account as applicable)
text composition, printing, mailing, text composition, printing, mailing,
distributing and tabulation of proxy distributing and tabulation of proxy
statements and voting instruction statements and voting instruction
solicitation materials to policy solicitation materials to policy
owners with respect to proxies owners with respect to proxies
proxies related to the Account proxies related to the Fund
preparation, printing and distributing
sales material and advertising relating
to the Funds, insofar as such materials
relate to the Contracts and filing such
materials with and obtaining approval
from, the SEC, the NASD, any state
insurance regulatory authority, and
any other appropriate regulatory
authority, to the extent required
30
AMENDMENT N0. 1
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated July 1,
1998, by and among AIM Variable Insurance Funds, Inc., a Maryland
corporation, A I M Distributors, Inc., a Delaware Corporation,
The Union Central Life Insurance Company, an Ohio life insurance
company and Carillon Investments, Inc., an Ohio corporation, is
hereby amended as follows:
Schedule A of the Agreement is hereby deleted in its
entirety and replaced with the following:
SCHEDULE A
FUNDS AVAILABLE UNDER SEPARATE ACCOUNTS POLICIES/CONTRACTS FUNDED
THE POLICIES UTILIZING SOME OR BY THE SEPARATE ACCOUNTS
ALL OF THE FUNDS
- ---------------------- ----------------- -------------------------
AIM V.I. Capital Carillon Account The Union Central Variable Annuity
Appreciation Fund Form No. UC2617
Carillon Life Account The Union Central Variable
Universal Life Accoun
Form No. UC 8703
FUNDS AVAILABLE UNDER UNREGISTERED POLICIES/CONTRACTS FUNDED
THE POLICIES SEPARATE ACCOUNTS BY THE SEPARATE ACCOUNTS
UTILIZING SOME OR
ALL OF THE FUNDS
AIM V1. Balanced Fund UCL Mutual Fund ESP ("Employee Savings Plan")
AIM V.I. Capital Separate Account Allocated Group Annuity Policy
Appreciation Fund Nos. 27 and 28 Policy Form Nos. UC64347 and UC64342
All other terms and provisions of the Agreement not amended
herein shall remain in full force and effect.
Effective Date: May 1, 1999
AIM VARIABLE INSURANCE FUNDS, INC.
Attest:/s/ P. Michelle Grace By: /s/ Melville B. Cox
Name: P. Michelle Grace Name: Melville B . Cox
Title: Assistant Secretary Title: Vice President
(SEAL)
1 of 2
A I M DISTRIBUTORS, INC.
Attest:/s/ P. Michelle Grace By:/s/ James R. Anderson
Name: P. Michelle Grace Name: James R. Anderson
Title: Assistant Secretary Title:Vice President
(SEAL)
THE UNION CENTRAL LIFE INSURANCE COMPANY
Attest:/s/ Dennis L. Trammell By: /s/ John F. Labmeier
Name: Dennis L. Trammell Name: John F. Labmeier
Title: Second Vice President Title: Vice President
(SEAL)
CARILLON INVESTMENTS, INC.
Attest: /s/ Dennis L. Trammell By: /s/ John F. Labmeier
Name: Dennis L. Trammell Name: John F. Labmeier
Title: Second Vice President Title: Vice President
(SEAL)
2 of 2