Exhibit 1.A(9)(b)(i)
PARTICIPATION AGREEMENT
BY AND AMONG
AIM VARIABLE INSURANCE FUNDS, INC.,
A I M DISTRIBUTORS, INC.,
THE GUARDIAN INSURANCE & ANNUITY COMPANY, INC.,
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS,
AND
GUARDIAN INVESTOR SERVICES CORPORATION
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 .............................. 3
Section 2. Processing Transactions .......................................... 3
2.1 Timely Pricing and Orders ................................... 3
2.2 Timely Payments ............................................. 3
2.3 Applicable Price ............................................ 4
2.4 Dividends and Distributions ................................. 4
2.5 Book Entry .................................................. 4
Section 3. Costs and Expenses ............................................... 5
3.1 General ..................................................... 5
3.2 Registration ................................................ 5
3.3 Other (Non-Sales-Related) ................................... 5
3.4 Other (Sales-Related) ....................................... 5
3.5 Parties To Cooperate ........................................ 6
Section 4. Legal Compliance ................................................. 6
4.1 Tax Laws .................................................... 6
4.2 Insurance and Certain Other Laws ............................ 8
4.3 Securities Laws ............................................. 9
4.4 Notice of Certain Proceedings and Other Circumstances ....... 10
4.5 Guardian To Provide Documents; Information About AVIF ....... 11
4.6 AVIF To Provide Documents; Information About Guardian ....... 12
Section 5. Mixed and Shared Funding ......................................... 13
5.1 General ..................................................... 13
5.2 Disinterested Directors ..................................... 13
5.3 Monitoring for Material Irreconcilable Conflicts ............ 13
5.4 Conflict Remedies ........................................... 14
5.5 Notice to Guardian .......................................... 15
5.6 Information Requested by Board of Directors ................. 16
5.7 Compliance with SEC Rules ................................... 16
5.8 Other Requirements .......................................... 16
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Description Page
----------- ----
Section 6. Termination ...................................................... 16
6.1 Events of Termination ....................................... 16
6.2 Notice Requirement for Termination .......................... 17
6.3 Funds To Remain Available ................................... 18
6.4 Survival of Warranties and Indemnifications ................. 18
6.5 Continuance of Agreement for Certain Purposes ............... 18
Section 7. Parties To Cooperate Respecting Termination ...................... 19
Section 8. Assignment ....................................................... 19
Section 9. Notices .......................................................... 19
Section 10. Voting Procedures ............................................... 20
Section 11. Foreign Tax Credits ............................................. 20
Section 12. Indemnification ................................................. 20
12.1 Of AVIF and AIM by Guardian and GISC ....................... 20
12.2 Of Guardian and GISC by AVIF and AIM ....................... 22
12.3 Effect of Notice ........................................... 25
12.4 Successors ................................................. 25
Section 13. Applicable Law .................................................. 25
Section 14. Execution in Counterparts ....................................... 26
Section 15. Severability .................................................... 26
Section 16. Rights Cumulative ............................................... 26
Section 17. Headings ........................................................ 26
Section 18. Confidentiality ................................................. 26
Section 19. Trademarks and Fund Names ....................................... 27
Section 20. Parties to Cooperate ............................................ 28
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PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 2nd day of February, 1998
("Agreement"), by and among AIM Variable Insurance Funds, Inc., a Maryland
corporation ("AVIF"); A I M Distributors, Inc., a Delaware corporation ("AIM");
The Guardian Insurance & Annuity Company, Inc., a Delaware life insurance
company ("Guardian"), 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 Guardian
Investor Services Corporation, A New York corporation ("GISC"), an affiliate of
Guardian and the principal underwriter of the Contracts (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"; reference
herein to "AVIF" includes reference to each Fund, to the extent the context
requires) available for purchase by the Accounts; and
WHEREAS, Guardian 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, Guardian will fund the Contracts through the Accounts, each of
which may be divided into two or more subaccounts ("Subaccounts"; reference
herein to an "Account" includes reference to each Subaccount thereof to the
extent the context requires); and
WHEREAS, Guardian 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, Guardian intends to purchase Shares in one or more of the Funds on
behalf of the Accounts to fund the Contracts; and
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") and it will sell
and distribute the Shares in accordance with all applicable state and federal
securities laws;
WHEREAS, GISC 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") and it will sell
and distribute the Contracts in accordance with all applicable state and federal
securities laws;
WHEREAS, each Party hereto represents that it has full power and authority
under applicable law, and has taken all action necessary, to enter into and
perform this Agreement;
WHEREAS, each Party hereto represents that it is not aware of any pending
or threatened litigation matter or claim or regulatory proceeding, investigation
or inquiry involving it or any of its affiliates, the outcome of which could
have a material adverse effect on this Agreement or the transactions
contemplated hereunder.
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 Guardian for purchase and
redemption at net asset value and with no sales charges, subject to the terms
and conditions of this Agreement and the prospectus and statement of additional
information for the Funds. 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,
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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.
Section 2. Processing Transactions
2.1 Timely Pricing and Orders.
(a) AVIF or its designated agent will use its best efforts to provide
Guardian with the net asset value per Share for each Fund by 5:30 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) Guardian is open for business.
(b) Guardian 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.
Guardian 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 Guardian in the event that AVIF is unable to meet the
5:30 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 Guardian.
(c) With respect to payment of the purchase price by Guardian and of
redemption proceeds by AVIF, Guardian 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), Guardian 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 Guardian.
2.2 Timely Payments.
Guardian 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 Guardian by 1:00 p.m. Central Time on
the same day as the Order is placed, to the extent practicable, but
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in any event within five (5) calendar days after the date the order is placed in
order to enable Guardian 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 Guardian receives
prior to the close 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), Guardian 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 Guardian 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.
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 Guardian of any income
dividends or capital gain distributions payable on the Shares of any Fund.
Guardian 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 Guardian 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. Guardian 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 Guardian. Shares ordered from AVIF will be
recorded in an appropriate title for Guardian, on behalf of its Account.
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Section 3. Costs and Expenses
3.1 General.
Except as otherwise specifically provided herein, each Party will bear all
expenses incident to its performance under this Agreement.
3.2 Registration.
(a) AVIF will bear the cost of its registering as a management investment
company under the 1940 Act and registering its Shares under the 1933 Act, and
keeping such registrations current and effective; including, without limitation,
the preparation of and filing with the SEC of Forms N-SAR and Rule 24-2 Notices
with respect to AVIF and its Shares and payment of all applicable registration
or filing fees with respect to any of the foregoing.
(b) Guardian will bear the cost of registering, to the extent required,
each Account as a unit investment trust under the 1940 Act and registering units
of interest under the Contracts under the 1933 Act and keeping such
registrations current and effective; including, without limitation, the
preparation and filing with the SEC of Forms N-SAR and Rule 24-2 Notices with
respect to each Account and its units of interest and payment of all applicable
registration or filing fees with respect to any of the foregoing.
3.3 Other (Non-Sales-Related).
(a) AVIF will bear, or arrange for others to bear, the costs of preparing,
filing with the SEC and setting for printing AVIF's prospectus, statement of
additional information and any amendments or supplements thereto (collectively,
the "AVIF Prospectus"), periodic reports to shareholders, AVIF proxy material
and other shareholder communications.
(b) Guardian will bear the costs of preparing, filing with the SEC and
setting for printing each Account's prospectus, statement of additional
information and any amendments or supplements thereto (collectively, the
"Account Prospectus"), any periodic reports to Contract owners, annuitants,
insureds or participants (as appropriate) under the Contracts (collectively,
"Participants"), voting instruction solicitation material, and other Participant
communications.
(c) Guardian will print in quantity and deliver to existing Participants
the documents described in Section 3.3(b) above. AVIF will bear, or arrange for
others to bear, the costs of printing the Funds' prospectuses, statement of
additional information, proxy materials relating to AVIF and periodic reports of
AVIF.
3.4 Other (Sales-Related).
Guardian will bear the expenses of distribution. These expenses would
include by way of illustration, but are not limited to, the costs of
distributing to Participants the following
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documents, whether they relate to the Account or AVIF: prospectuses, statements
of additional information, proxy materials and periodic reports. These costs
would also include the costs of preparing, printing, and distributing sales
literature and advertising relating to the Funds, as well as 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.
3.5 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 Guardian 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 Guardian 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.l(b) by AVIF,
it will take all reasonable steps 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.
(c) Guardian agrees that if the Internal Revenue Service ("IRS") asserts
in writing in connection with any governmental audit or review of Guardian or,
to Guardian's knowledge, of any Participant, that any Fund has failed to comply
with the diversification requirements of Section 817(h) of the Code or Guardian
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:
(i) Guardian shall promptly notify AVIF of such assertion or
potential claim (subject to the Confidentiality provisions of
Section 18 as to any Participant);
(ii) Guardian shall consult with AVIF as to how to minimize any
liability that may arise as a result of such failure or
alleged failure;
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(iii) Guardian 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) Guardian shall permit AVIF, 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 Guardian will retain control of the
conduct of such conferences discussions, proceedings, contests
or appeals;
(v) any written materials to be submitted by Guardian 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 1.8175(a)(2)), (a)
shall be provided by Guardian 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
Guardian to any such person without the express written
consent of AVIF which shall not be unreasonably withheld;
(vi) Guardian 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 Guardian) 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) Guardian 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
written consent of AVIF or its affiliates, which shall not be
unreasonably withheld, provided that Guardian 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
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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 Guardian 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, Guardian may,
in its discretion, authorize AVIF or its affiliates to act in the name of
Guardian 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 AVIF 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 Guardian have any liability
resulting from AVIF'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) Guardian 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; Guardian 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) Guardian 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. Guardian 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 Guardian, including, the furnishing of information not otherwise available to
Guardian which is required by state insurance law to enable Guardian to obtain
the authority needed to issue the Contracts in any applicable state.
(b) Guardian 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 Delaware 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 2932 of the Delaware
Insurance Code
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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) Guardian 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
Delaware 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) Guardian 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 Prospectus will at all times comply in
all material respects with the 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 will at all times comply in all material respects with the
requirements of the 1933 Act and the rules thereunder.
(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 l2b-I 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
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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 l2b-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-(l) 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 Guardian 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 AVIF's 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 Guardian. 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) Guardian 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. Guardian 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.
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4.5 Guardian To Provide Documents; Information About AVIF.
(a) Guardian 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) Guardian 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 A I M as the entity to receive such sales literature,
until such time as AVIF appoints another designated agent by giving notice to
Guardian in the manner required by Section 9 hereof.
(c) Neither Guardian 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) Guardian 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.
11
4.6 AVIF To Provide Documents: Information About Guardian.
(a) AVIF will provide to Guardian 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 Guardian camera ready or computer diskette copies
of all AVIF prospectuses and printed copies, in an amount specified by Guardian,
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 Guardian in a timely manner so as to enable Guardian, 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 Guardian or its designated agent at least one (1)
complete copy of each piece of sales literature or other promotional material in
which Guardian, 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 Guardian 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. Guardian 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 Guardian, 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 Guardian for distribution; or (iii) in sales literature or other
promotional material approved by Guardian or its affiliates, except with the
express written permission of Guardian.
(e) AVIF shall cause its principal underwriter to adopt and implement
procedures reasonably designed to ensure that information concerning Guardian,
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 Guardian, 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
12
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.
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 Guardian,
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
Guardian that, in the event that AVIF implements Mixed and Shared Funding, 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
13
("Participating Plans"). Guardian 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:
(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, Guardian 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 Guardian
to disregard voting instructions 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, Guardian 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
14
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
(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 Guardian's
decision to disregard Participant voting instructions and that decision
represents a minority position or would preclude a majority vote, Guardian 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 Guardian that this provision is being implemented, and until
such withdrawal AVIF shall continue to accept and implement orders by Guardian
for the purchase and redemption of Shares of AVIF.
(c) If a material irreconcilable conflict arises because a particular
state insurance regulator's decision applicable to Guardian conflicts with the
majority of other state regulators, then Guardian will withdraw each Account's
investment in AVIF within six (6) months after AVIF's Board of Directors informs
Guardian 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 Guardian for the purchase and redemption of Shares of
AVIF. No charge or penalty will be imposed as a result of such withdrawal.
(d) Guardian 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.
Guardian 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 Guardian.
AVIF will promptly make known in writing to Guardian 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.
15
5.6 Information Requested by Board of Directors.
Guardian 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 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
Guardian or its affiliates by the NASD, the SEC, any state insurance regulator
or any other regulatory body regarding Guardian'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
16
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 Guardian 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, Guardian
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 Guardian, 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 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 Guardian; or
(e) upon termination of the corresponding Subaccount's investment in the
Fund pursuant to Section 5 hereof; or
(f) at the option of Guardian if the Fund ceases to qualify as a RIC under
Subchapter M of the Code or under successor or similar provisions, or if
Guardian reasonably believes that the Fund may fail to so qualify; or
(g) at the option of Guardian if the Fund fails to comply with Section
817(h) of the Code or with successor or similar provisions, or if Guardian
reasonably believes that the Fund may fail to so comply; or
(h) at the option of AVIF if the Contracts issued by Guardian 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:
17
(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.l(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.
6.3 Funds To Remain Available.
Notwithstanding any termination of this Agreement, AVIF will, at the
option of Guardian, 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 Guardian 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).
18
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.
Section 9. Notices
Notices and communications required or permitted by Section 9 hereof 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.
00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
The Guardian Insurance & Annuity Company, Inc.
Guardian Investor Services Corporation
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile: (000) 000-0000
Attn: Xx. Xxxx X. Xxxxx
Executive Vice President
19
Section 10. Voting Procedures
Subject to the cost allocation procedures set forth in Section 3 hereof,
Guardian will distribute all proxy material furnished by AVIF to Participants to
whom pass-through voting privileges are required to be extended and will solicit
voting instructions from Participants. Guardian will vote Shares in accordance
with timely instructions received from Participants. Guardian 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 Guardian 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. Guardian reserves the right to vote shares held in any Account in
its own right, to the extent permitted by law. Guardian 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 Guardian 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 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 Guardian 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 Guardian and GISC.
(a) Except to the extent provided in Sections 12.1(b) and 12.1(c), below,
Guardian and GISC agree to indemnify and hold harmless AVIF, its affiliates
(including AIM), and each person, if any, who controls AVIF or its 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 Guardian and
GISC) or actions in respect thereof
20
(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; provided, the Account owns shares of the Fund and 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 Guardian or GISC 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
(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 Guardian, GISC or their
respective affiliates and on which such persons have
reasonably relied) or the negligent, illegal or fraudulent
conduct of Guardian, GISC 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 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 a statement or omission was made in reliance upon and in
conformity with information furnished to AVIF or its
affiliates by Guardian, GISC 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
21
(iv) arise as a result of a material failure by Guardian or GISC 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 Guardian or GISC in this Agreement or arise out of or
result from any other material breach of this Agreement by
Guardian or GISC; or
(v) arise as a result of failure by the Contracts issued by
Guardian 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 Guardian nor GISC 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.
(c) Neither Guardian nor GISC shall be liable under this Section 12.1 with
respect to any action against an Indemnified Party unless AVIF or AIM shall have
notified Guardian and GISC 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 Guardian and GISC of any such action shall not relieve
Guardian and GISC 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, Guardian and GISC 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 Guardian or GISC to such Indemnified Party of
Guardian's or GISC's election to assume the defense thereof, the Indemnified
Party will cooperate fully with Guardian and GISC and shall bear the fees and
expenses of any additional counsel retained by it, and neither Guardian nor GISC
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 Guardian and GISC by AVIF 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 Guardian,
GISC, their respective affiliates, and each person, if any, who controls
Guardian, GISC 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,
22
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;
provided, the Account owns shares of the Fund and 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 finished to AVIF or its
affiliates by or on behalf of Guardian, GISC 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 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 or AIM or their respective affiliates and on which such
persons have reasonably relied) or the negligent, illegal or
fraudulent conduct of AVIF or AIM or their respective
affiliates or persons under its control (including, without
limitation, their employees and "Associated Persons" as that
Term is defined in Section (n) of Article 1 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 Guardian, GISC or
their respective affiliates by AVIF or AIM for use in any
Account's 1933 Act registration statement, any Account
Prospectus, sales
23
literature or advertising covering the Contracts, or any
amendment or supplement to any of the foregoing; or
(iv) arise as a result of a material 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)
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 Guardian 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 Guardian of Shares of another investment company or
portfolio for those of any adversely affected Fund as a funding medium for each
Account that Guardian 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 Guardian, GISC, 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 their 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
24
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 neither AVIF nor AIM 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.
(e) In no event shall either AVIF or AIM be liable under the
indemnification provisions contained in this Agreement to any individual or
entity, including, without limitation, Guardian, GISC 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 Guardian or GISC
hereunder or by any Participating Insurance Company under an agreement
containing substantially similar representations, warranties and covenants; (ii)
the failure by Guardian 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 Guardian 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.
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.
25
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.
Section 18. Confidentiality
AVIF acknowledges that the identities of the customers of Guardian or any
of its affiliates (collectively, the "Guardian 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 Guardian
Protected Parties or any of their employees or agents in connection with
Guardian's performance of its duties under this Agreement are the valuable
property of the Guardian Protected Parties. AVIF agrees that if it comes into
possession of any list or compilation of the identities of or other information
about the Guardian Protected Parties' customers, or any other information or
property of the Guardian Protected Parties, other than such information as may
be independently developed or compiled by AVIF from information supplied to it
by the Guardian 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 Guardian's prior written consent; or (b) as required by law or
judicial process. Guardian 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
26
Agreement are the valuable property of the AVIF Protected Parties. Guardian
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 Guardian from
information supplied to it by the AVIF Protected Parties' customers who also
maintain accounts directly with Guardian, Guardian 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 xxxx "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 Guardian (the "AIM licensed marks" or the "licensor's licensed
marks") and is authorized to use and to license other persons to use such marks.
Guardian and its affiliates are hereby granted a non-exclusive license to use
the AIM licensed marks in connection with Guardian's performance of the services
contemplated under this Agreement, subject to the terms and conditions set forth
in this Section 19.
(b) The grant of license to Guardian 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 Guardian 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, Guardian 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 Guardian 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
27
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.
-----------------------------------------------------
28
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/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
----------------------------- --------------------------
Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Assistant Secretary Title: President
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
----------------------------- --------------------------
Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Assistant Secretary Title: President
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC., on behalf of itself
and its Separate Accounts
Attest: /s/ Xxxxx Xxxxx By: /s/ Xxxx X. Xxxxx
----------------------------- --------------------------
Name: Xxxxx Xxxxx Name: Xxxx X. Xxxxx
Title: Counsel Title: Executive Vice President
GUARDIAN INVESTOR SERVICES CORPORATION
Attest: /s/ Xxxxx Xxxxx By: /s/ Xxxx X. Xxxxx
----------------------------- --------------------------
Name: Xxxxx Xxxxx Name: Xxxx X. Xxxxx
Title: Counsel Title: President
29
SCHEDULE A
CONTRACT SEPARATE ACCOUNT FUNDS AVAILABLE
-------- ---------------- ---------------
Park Avenue Life Separate Account K AIM V.I. Capital Appreciation Fund
AIM V.I. Value Fund
Park Avenue VUL Separate Account M AIM V.I. Capital Appreciation Fund
AIM V.I. Value Fund
30
SCHEDULE B
o AIM VARIABLE INSURANCE FUNDS, INC.
AIM V.I. Capital Appreciation Fund
AIM V.I. Value Fund
o AIM and Design
[LOGO]
AIM
31
AMENDMENT TO
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated February 2, 1998, by
and among AIM Variable Insurance Funds, A I M Distributors, Inc., The Guardian
Insurance and Annuity Company, Inc. and Guardian Investor Services Corporation,
(collectively, the "Parties") is hereby amended as follows. All capitalized
terms not otherwise defined in this Amendment, shall have the same meaning as
described in the Agreement.
WHEREAS, the Parties desire to amend Schedule A of the Agreement to
address a logo change;
NOW THEREFORE, in consideration of their mutual promises, the Parties
agree as follows:
Schedule B of the Agreement is hereby deleted in its entirety and replaced
with the attached Schedule B.
All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
Effective Date: January 1, 2003.
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary Title: Senior Vice President
(SEAL)
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: President
(SEAL)
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC.
Attest: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxx Name: Xxxxx X. Xxxx
Title: Counsel Title: Executive Vice President,
Equity Products
(SEAL)
Page 1 of 3
GUARDIAN INVESTOR SERVICES LLC
Attest: /s/ Xxxxx X. Xxxxx By: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxx L, Xxxxx Name: Xxxxx X. Xxxx
Title: Counsel Title: President
(SEAL)
Page 2 of 3
SCHEDULE A
AIM LOGO GRAPHIC STANDARDS
Logo Colors
[LOGO](SM) One Color - both the box and the word
Investments print black with a white
Chevron and White AIM inside the box.
Two Colors - in printed versions of the
logo, the preferred usage is always two
color reproduction. The box prints in PMS
356 Green with Chevron and AIM white and
with the word Investments printing Black.
[LOGO](SM) Four Color Process - the box prints Cyan
100%, Magenta 0%, Yellow 100%, Black 20%
to simulate PMS 356 Green. The word
Investment prints solid black
Page 3 of 3
AMENDMENT NO. 4
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated February 2, 1998, by
and among AIM Variable Insurance Funds, a Delaware trust, A I M Distributors,
Inc., a Delaware corporation, The Guardian Insurance & Annuity Company, Inc., a
Delaware life insurance company and Guardian Investor Services Corporation, a
New York 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 THE SEPARATE ACCOUNTS CONTRACTS FUNDED BY THE
POLICIES UTILIZING THE FUNDS SEPARATE ACCOUNTS
--------------------------------------------------------------------------------------------------------
AIM V.I. Aggressive Growth Fund Separate Account K o Park Avenue Life
AIM V.I. Capital Appreciation Fund o Park Avenue Life - Millennium
AIM V.I. Global Utilities Fund Series
AIM V.I. Government Securities Fund
AIM V.I. Growth Fund -------------------------------------------------------------
AIM V.I. Value Fund Separate Account M o Park Avenue VUL
-------------------------------------------------------------
Separate Account E o The Guardian Investor Retirement
Asset Manager Variable Annuity
Contract
-------------------------------------------------------------
Separate Account N o Park Avenue VUL - Millennium
Series
o Park Avenue SVUL - Millennium
Series
-------------------------------------------------------------
Separate Account D o Value Guard II - Individual and
Group Variable Annuity Contract
-------------------------------------------------------------
Separate Account A o Guardian Investor Individual
Variable Annuity Contract
-------------------------------------------------------------
Separate Account F o Guardian Variable Annuity
Contract
--------------------------------------------------------------------------------------------------------
All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
Effective Date: December 1, 2000
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxx X. Xxxxxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxxx
Title: Assistant Secretary Title: Senior Vice President
(SEAL)
1 of 2
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: President
(SEAL)
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC.
Attest: /s/ Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxx, Xx. Name: Xxxxx X. Xxxx
Title: VP & Counsel Title: Executive Vice President
Equity Products
(SEAL)
GUARDIAN INVESTOR SERVICES
CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxx, Xx. Name: Xxxxx X. Xxxx
Title: VP & Counsel Title: President
(SEAL)
2 of 2
AMENDMENT NO. 3
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated February 2, 1998, by
and among AIM Variable Insurance Funds, a Delaware trust, A I M Distributors,
Inc., a Delaware corporation, The Guardian Insurance & Annuity Company, Inc., a
Delaware life insurance company and Guardian Investor Services Corporation, a
New York 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 THE SEPARATE ACCOUNTS CONTRACTS FUNDED BY THE
POLICIES UTILIZING THE FUNDS SEPARATE ACCOUNTS
--------------------------------------------------------------------------------------------------------
AIM V.I. Aggressive Growth Fund Separate Account K o Park Avenue Life
AIM V.I. Capital Appreciation Fund
AIM V.I. Global Utilities Fund -------------------------------------------------------------
AIM V.I. Government Securities Fund Separate Account M o Park Avenue VUL
AIM V.I. Growth Fund
AIM V.I. Value Fund -------------------------------------------------------------
Separate Account E o The Guardian Investor Retirement
Asset Manager Variable Annuity
Contract
-------------------------------------------------------------
Separate Account N o Park Avenue VUL - Millennium
Series
o Park Avenue SVUL - Millennium
Series
-------------------------------------------------------------
Separate Account D o Value Guard II - Individual and
Group Variable Annuity Contract
-------------------------------------------------------------
Separate Account A o Guardian Investor Individual
Variable Annuity Contract
-------------------------------------------------------------
Separate Account F o Guardian Variable Annuity
Contract
--------------------------------------------------------------------------------------------------------
All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
Effective Date: August 1, 2000
AIM VARIABLE INSURANCE FUNDS
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary Title: President
(SEAL)
1 of 2
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: President
(SEAL)
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC.
Attest: /s/ Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxx, Xx. Name: Xxxxx X. Xxxx
Title: Vice President and Counsel Title: Executive Vice President,
Equity Products
(SEAL)
GUARDIAN INVESTOR SERVICES
CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxx, Xx. Name: Xxxxx X. Xxxx
Title: Vice President and Counsel Title: President
(SEAL)
2 of 2
AMENDMENT NO. 2
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated February 2, 1998, by
and among AIM Variable Insurance Funds, a Maryland corporation, A I M
Distributors, Inc., a Delaware corporation, The Guardian Insurance & Annuity
Company, Inc., a Delaware life insurance company and Guardian Investor Services
Corporation, a New York 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 THE SEPARATE ACCOUNTS CONTRACTS FUNDED BY THE
POLICIES UTILIZING THE FUNDS SEPARATE ACCOUNTS
--------------------------------------------------------------------------------------------------------
AIM V.I. Capital Appreciation Fund Separate Account K o Park Avenue Life
AIM V.I. Global Utilities Fund
AIM V.I. Government Securities Fund -------------------------------------------------------------
AIM V.I. Value Fund Separate Account M o Park Avenue VUL
-------------------------------------------------------------
Separate Account E o The Guardian Investor Retirement
Asset Manager Variable Annuity
Contract
-------------------------------------------------------------
Separate Account N o Park Avenue VUL - Millennium
Series
o Park Avenue SVUL - Millennium
Series
-------------------------------------------------------------
Separate Account D o Value Guard II - Individual and
Group Variable Annuity Contract
-------------------------------------------------------------
Separate Account A o Guardian Investor Individual
Variable Annuity Contract
--------------------------------------------------------------------------------------------------------
All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
Effective Date: May 1, 2000
AIM VARIABLE INSURANCE FUNDS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary Title: President
(SEAL)
1 of 2
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: President
(SEAL)
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC.
Attest: /s/ Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxx, Xx. Name: Xxxxx X. Xxxx
Title: Vice President and Counsel Title: Executive Vice President,
Equity Products
(SEAL)
GUARDIAN INVESTOR SERVICES
CORPORATION
Attest: /s/ Xxxxxxx X. Xxxxxx, Xx. By: /s/ Xxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxxxx X. Xxxxxx, Xx. Name: Xxxxx X. Xxxx
Title: Vice President & Counsel Title: President
(SEAL)
2 of 2
AMENDMENT NO. 1
PARTICIPATION AGREEMENT
The Participation Agreement (the "Agreement"), dated February 2, 1998, by
and among AIM Variable Insurance Funds, a Maryland corporation, A I M
Distributors, Inc., a Delaware corporation, The Guardian Insurance & Annuity
Company, Inc., a Delaware life insurance company and Guardian Investor Services
Corporation, a New York 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 THE SEPARATE ACCOUNTS CONTRACTS FUNDED BY THE
POLICIES UTILIZING THE FUNDS SEPARATE ACCOUNTS
--------------------------------------------------------------------------------------------------------
AIM V.I. Capital Appreciation Fund Separate Account K o Park Avenue Life
AIM V.I. Value Fund
-------------------------------------------------------------
Separate Account M o Park Avenue VUL
--------------------------------------------------------------------------------------------------------
AIM V.I. Capital Appreciation Fund Separate Account E o The Guardian Investor Retirement
AIM V.I. Global Utilities Fund Asset Manager Variable Annuity
AIM V.I. Value Fund Contract
--------------------------------------------------------------------------------------------------------
All other terms and provisions of the Agreement not amended herein shall
remain in full force and effect.
Effective Date: July 1, 1999
AIM VARIABLE INSURANCE FUNDS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxx X. Xxxxxx
Title: Assistant Secretary Title: President
A I M DISTRIBUTORS, INC.
Attest: /s/ Xxxxx X. Xxxxxx By: /s/ Xxxxxxx X. Xxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxx
Title: Assistant Secretary Title: President
(SEAL)
1 of 2
THE GUARDIAN INSURANCE & ANNUITY
COMPANY, INC.
Attest: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxx Name: Xxxx X. Xxxxx
Title: Counsel Title: Executive Vice President
(SEAL)
GUARDIAN INVESTOR SERVICES
CORPORATION
Attest: /s/ Xxxxx X. Xxxxx By: /s/ Xxxx X. Xxxxx
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxx Name: Xxxx X. Xxxxx
Title: Counsel Title: Executive Vice President
(SEAL)
2 of 2
