FUND PARTICIPATION AGREEMENT
THIS FUND PARTICIPATION AGREEMENT is made and entered into as of October
6, 1995 by and between THE UNION CENTRAL LIFE INSURANCE COMPANY (the "Company"),
TCI PORTFOLIOS, INC. (the "Issuer") and the investment adviser of the Issuer,
INVESTORS RESEARCH CORPORATION ("Investors Research").
WHEREAS, the Company offers to the public certain individual variable
universal life contracts and variable annuity contracts (the "Contracts"); and
WHEREAS, the Company wishes to offer as an investment option under the
Contracts, TCI Growth (the "Fund"), which is a series of mutual fund shares
registered under the Investment Company Act of 1940, as amended, and issued by
the Issuer; and
WHEREAS, on the terms and conditions hereinafter set forth, Investors
Research and the Issuer desire to make shares of the Fund available as an
investment option under the Contracts and to retain the Company to perform
certain administrative services on behalf of the Fund;
NOW, THEREFORE, the Company, the Issuer and Investors Research agree as
follows:
1. TRANSACTIONS IN THE FUND. Subject to the terms and conditions of
this Agreement, the Issuer will make shares of the Fund available to be
purchased, exchanged, or redeemed, by the Company on behalf of the Accounts
(defined in Section 6(a) below) through a single account at the net asset value
applicable to each order. The Fund's shares shall be purchased and redeemed on
a net basis in such quantity and at such time as determined by the Company to
satisfy the requirements of the Contracts for which the Fund serves as
underlying investment media. Dividends and capital gains distributions will be
automatically reinvested in full and fractional shares of the Fund.
2. ADMINISTRATIVE SERVICES. The Company shall be solely responsible
for providing all administrative services for the Contract owners. The Company
agrees that it will maintain and preserve all records as required by law to be
maintained and preserved, and will otherwise comply in all material respects
with all laws, rules and regulations applicable to the marketing of the
Contracts and the provision of administrative services to the Contract owners.
3. PROCESSING AND TIMING OF TRANSACTIONS.
(a) The Issuer hereby appoints the Company as its agent for the limited
purpose of accepting purchase and redemption orders for Fund shares from the
Contract owners. On each day the New York Stock Exchange (the "Exchange") is
open for business (each, a "Business Day"), the Company may receive instructions
from the Contract owners for the purchase or redemption of shares of the Fund
("Orders"). Orders received and accepted by the Company prior to the close of
regular trading on the Exchange (the "Close of Trading") on any given Business
Day and transmitted to the Issuer by 9:00 a.m. Central time on the next
following Business Day will be executed by the Issuer at the net asset value
determined as of the Close of Trading on the previous Business Day
("Day 1"). Any Orders received by the Company after the Close of Trading,
and all Orders that are transmitted to the Issuer after 9:00 a.m.
Central time on the next following Business Day, and all Orders that
are transmitted to the Issuer after 9:00 a.m. Central time on the
next following Business Day, will be executed by the Issuer
at the net asset value next determined following receipt of such Order. The day
as of which an Order is executed by the Issuer pursuant to the provisions set
forth above is referred to herein as the "Effective Trade Date". All Fund
shares shall be issued and transferred in book entry form only.
(b) By 5:30 p.m. Central time on each Business Day, Investors Research
will provide to the Company via facsimile or other electronic transmission
acceptable to the Company the Fund's net asset values, dividend and capital gain
information and, in the case of income funds, the daily accrual for interest
rate factor (mil rate), determined at the Close of Trading.
(c) By 9:00 a.m. Central time on each Business Day, the Company will
provide to Investors Research via facsimile or other electronic transmission
acceptable to Investors Research a report stating whether the Orders received by
the Company from Contract owners by the Close of Trading on the preceding
Business Day resulted in the Accounts being a net purchaser or net seller of
shares of the Fund. As used in this Agreement, the phrase "other electronic
transmission acceptable to Investors Research" includes the use of remote
computer terminals located at the premises of the Company, its agents or
affiliates, which terminals may be linked electronically to the computer system
of Investors Research, its agents or affiliates (hereinafter, "Remote Computer
Terminals").
(d) Upon the timely receipt from the Company of the report described in
(c) above, Investors Research will execute the purchase or redemption
transactions (as the case may be) at the net asset value computed as at the
Close of Trading on Day 1. Payment for net purchase transactions shall
be made by wire transfer by the Company to the custodial account designated
by the Fund on the Business Day next following the Effective Trade Date.
Such wire transfers shall be initiated by the Company's bank prior to
3:00 p.m. Central time and received by the Fund prior to 5:00 p.m.
Central time on the Business Day next following the Effective Trade Date.
If payments for a purchase Order is not timely received, such Order will
be executed at the net asset value next computed following receipt of
payment. Payments for net redemption transactions shall be made by
wire transfer by the Issuer to the account designated by the Company
within the time period set forth in the Fund's then-current prospectus;
PROVIDED, HOWEVER, Investors Research will use all reasonable efforts to
settle all redemptions on the Business Day next following the Effective Trade
Date. On any Business Day when the Federal Reserve Wire Transfer System
is closed, all communication and processing rules will be suspended for
the settlement of Orders. Orders will be settled on the next Business
Day on which the Federal Reserve Wire Transfer System is open and the
Effective Trade Date will apply.
4. PROSPECTUS AND PROXY MATERIALS.
(a) Investors Research shall provide to the Company, on behalf of the
Accounts, copies of the Issuer's proxy materials, periodic fund reports to
shareholders and other materials that are required by law to be sent to the
Issuer's shareholders. In addition, Investors Research shall provide the Company
with a sufficient quantity of prospectuses of the Fund to be used in conjunction
with the transactions contemplated by this Agreement, together with such
additional copies of the Issuer's prospectuses as may be reasonably requested by
Company. If requested by the Company in lieu thereof, Investors Research shall
provide such documentation (including a "camera ready" copy of its prospectus)
and other reasonable assistance as may be reasonably necessary in order for the
Company to have the prospectus for the Fund and the prospectus for the Contracts
printed together in a single document. The cost of preparing such combined
prospectus shall be borne by the Company. If the Company provides for pass-
through voting by the Contract owners, Investors Research will provide the
Company with a sufficient quantity of proxy materials for each Contract owner.
(b) The cost of preparing, printing and shipping of the prospectuses,
proxy materials, periodic fund reports and other materials of the Issuer to the
Company shall be paid by Investors Research; PROVIDED, HOWEVER, that if at any
time Investors Research or its agent reasonably deems the usage by the Company
of such items to be excessive, it may, prior to the delivery of any quantity of
materials in excess of what is deemed reasonable, request that the Company
demonstrate the reasonableness of such usage. If the Investors Research
believe the reasonableness of such usage has not been adequately demonstrated,
it may request that the Company pay the cost of printing
(including press time) and delivery of any excess copies of such materials.
Unless the Company agrees to make such payments,
Investors Research may refuse to supply additional materials
and this section shall not be interpreted as requiring delivery by Investors
Research or Issuer of any copies in excess of the number of copies required by
law.
(c) The cost of distribution, if any, of any prospectuses, proxy
materials, periodic fund reports and other materials of the Issuer to the
Contract owners shall be paid by the Company and shall not be the responsibility
of Investors Research or the Issuer.
5. COMPENSATION AND EXPENSES.
(a) The Company, on behalf of the Accounts, shall be the sole shareholder
of Fund shares purchased for the Contract owners pursuant to this Agreement (the
"Record Owners"). The Company and the Record Owners shall properly complete any
applications or other forms required by Investors Research or the Issuer.
(b) Investors Research acknowledges that it will derive a substantial
savings in administrative expenses, such as a reduction in expenses related to
postage, shareholder communications and recordkeeping, by virtue of having a
single shareholder account for the Accounts rather than having each Contract
owner as a shareholder. In consideration of the Administrative Services and
performance of all other obligations under this Agreement by the Company,
Investors Research will pay the Company a fee (the "Administrative Services
fee") equal to 20 basis points (0.20%) per annum of the average aggregate amount
invested by the Company under this Agreement. No payment obligation shall arise
hereunder unless the Company's average aggregate investment in the Fund,
together with the average aggregate investment by all other separate accounts
of the Company in mutual funds managed or advised by Investors Research
(collectively, the "Total Relationship"), exceeds $10 million, and such
payment obligation shall be suspended with respect to any month during
which the Company's Total Relationship drops below $10 million.
(c) The parties understand that Investors Research customarily pays, out
of its management fee, another affiliated corporation for the type of
administrative services to be provided by the Company to the Contract owners.
The parties agree that the payments by Investors Research to the Company, like
Investors Research's payments to its affiliated corporation, are for
administrative services only and do not constitute payment in any manner for
investment advisory services or for costs of distribution.
(d) For the purposes of computing the payment to the Company
contemplated by this Section 5, the average aggregate amount invested
by the Accounts in the Fund over a one month period shall be computed
by totalling the Company's aggregate investment (share net asset
value multiplied by total number of shares of the Fund held by the Company)
on each Business Day during the month and dividing by the total number
of Business Days during such month.
(e) Investors Research will calculate the amount of the payment to be
made pursuant to this Section 5 at the end of each calendar quarter and will
make such payment to the Company within 30 days thereafter. The check for
such payment will be accompanied by a statement showing the
calculation of the
amounts being paid by Investors Research for the relevant month and such
other supporting
data as may be reasonably requested by the Company.
(f) In the event Investors Research reduces its management fee with
respect to the Fund after the date hereof, Investors Research may amend the
Administrative Services fee payable with regard to the Fund by providing the
Company 30 days' advance written notice of any such adjustment. The revised
Administrative Services fee shall become effective as of the latter of 30 days
from the date of delivery of the notice or the date prescribed in the notice.
6. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants that: (i) this Agreement has been
duly authorized by all necessary corporate action and, when executed and
delivered, shall constitute the legal, valid and binding obligation of the
Company, enforceable in accordance with its terms; (ii) it has established the
Carillon Account and the Carillon Life Account (the "Accounts"), which are
separate accounts under Ohio Insurance law, and has registered the Accounts as
unit investment trusts under the Investment Company Act of 1940 (the "1940 Act")
to serve as an investment vehicles for the Contracts; (iii) each Contract
provides for the allocation of net amounts received by the Company to such
Account for investment in the shares of one of more specified investment
companies selected among those companies available through the Accounts to act
as underlying investment media; (iv) selection of a particular
investment company
is made by the Contract owner under a particular Contract, who may change such
selection from time to time in accordance with the terms of the applicable
Contract; and (v) the activities of the Company contemplated by this Agreement
comply with all material provisions of federal and state insurance, securities,
and tax laws applicable to such activities.
(b) Investors Research represents and warrants that: (i) this Agreement
has been duly authorized by all necessary corporate action and, when executed
and delivered, shall constitute the legal, valid and binding obligation of
Investors Research and Issuer, enforceable in accordance with its
terms; and (ii) the investments of the Fund will at all times
be adequately diversified within the meaning of Section 817(h)
of the Internal Revenue Service Code of 1986, as
amended (the"Code"), and the regulations thereunder, and that at all times while
this Agreement is in effect, all beneficial interests in the Fund will be owned
by one or more insurance companies or by any other party permitted under Section
1.817-5(f)(3) of the Regulations promulgated under the Code. In the event that
the Fund is not so diversified at the end of any applicable quarter, the Issuer
and Investors Research will make every reasonable effort to (a) adequately
diversify the Fund so as to achieve compliance within the grace period afforded
by Treas. Reg. 1.817.5 and (b) notify the Company.
7. ADDITIONAL COVENANTS AND AGREEMENTS.
(a) Each party shall comply in all material respects with all provisions
of federal and state laws and regulations applicable to its respective
activities under this Agreement.
(b) Each party shall promptly notify the other parties in the event that
it is, for any reason, unable to perform any of its obligations under this
Agreement.
(c) The Company covenants and agrees that all Orders accepted and
transmitted by it hereunder with respect to each Account on any Business Day
will be based upon instructions that it received from the Contract owners
in proper form prior to the Close of Trading of the Exchange on that
Business Day.
(d) The Company covenants and agrees that all Orders transmitted to the
Issuer, whether by telephone, telecopy, or other electronic transmission
acceptable to Investors Research, shall be sent by or under the authority and
direction of a person designated by the Company as being duly authorized to act
on behalf of the owner of the Accounts. Absent actual knowledge to the
contrary, Investors Research shall be entitled to rely on the existence
of such authority and to assume that any person transmitting Orders for the
purchase, redemption or transfer of Fund shares on behalf of the Company is
"an appropriate person" as used in Sections 8-308 and 8-404 of the
Uniform Commercial Code with respect to the transmission of
instructions regarding Fund shares on behalf of the owner
of such Fund shares. The Company shall maintain the confidentiality of all
passwords and security procedures issued, installed or otherwise put in place
with respect to the use of Remote Computer Terminals and assumes full
responsibility for the security therefor. The Company further agrees to be
solely responsible for the accuracy, propriety and consequences of all data
transmitted to Investors Research by the Company by telephone, telecopy or other
electronic transmission acceptable to Investors Research.
(e) The Company agrees to make every reasonable effort to market its
Contracts. It will use its best efforts to give equal emphasis and promotion to
shares of the Fund as is given to other underlying investments of the Accounts.
(f) The Company shall not, without the written consent of Investors
Research, make representations concerning the Issuer or the shares of the Fund
except those contained in the then-current prospectus and statement of
additional information, and in current printed sales literature
approved by Investors Research or the Issuer.
(g) Advertising and sales literature with respect to the Issuer or the
Fund prepared by the Company or its agents, if any, for use in marketing shares
of the Fund as underlying investment media to Contract owners shall be submitted
to Investors Research for review and approval before such material is used.
(h) Investors Research will provide to the Company at least one complete
copy of all prospectuses, statements of additional information, annual and semi-
annual reports, proxy statements and all amendments or supplements to any of the
above that relate to the Fund promptly after such document becomes effective or
eligible for use by the Fund. In addition, Investors Research will provide the
Company with a copy of no-action letters or orders for exemptive relief granted
or issued to the Fund by the SEC that Investors Research reasonably believes
will materially impact the offering of the Contracts.
(i) The Company will provide to Investors Research at least one complete
copy of all registration statements, prospectuses, statements of additional
information, annual and semi-annual reports, proxy statements, and all
amendments or supplements to any of the above that relate to the Accounts
promptly after the filing of such document with the SEC or other
regulatory authority.
8. USE OF NAMES. Except as otherwise expressly provided for in this
Agreement, neither Investors Research nor the Fund shall use any trademark,
trade name, service xxxx or logo of the Company, or any variation of any such
trademark, trade name, service xxxx or logo, without the Company's prior written
consent, the granting of which shall be at the Company's sole option. Except as
otherwise expressly provided for in this Agreement, the Company shall not use
any trademark, trade name, service xxxx or logo of the Issuer or Investors
Research, or any variation of any such trademarks, trade names, service
marks, or logos, without the prior written consent of either the Issuer or
Investors Research, as appropriate, the granting of which shall be at the
sole option of Investors Research and/or the Issuer.
9. PROXY VOTING.
(a) The Company shall provide pass-through voting privileges to all
Contract owners so long as the SEC continues to interpret the 1940 Act as
requiring such privileges. It shall be the responsibility of the Company to
assure that it calculates voting privileges in a consistent manner consistent
with the separate accounts of the other Participating Companies (as defined in
Section 11(a) below) participating in the Fund.
(b) So long as the Company is required to provide pass-through voting
privileges to Contract owners, the Company will distribute to Contract owners
all proxy material furnished by Investors Research and will vote shares in
accordance with instructions received from such Contract owners.
The Company shall vote Fund shares for which no instructions have been
received in the same proportion as shares for which such instructions
have been received. The Company and its agents shall not oppose or
interfere with the solicitation of proxies for Fund shares held for
such Contract owners, except to the extent required by applicable law.
10. INDEMNITY.
(a) Investors Research agrees to indemnify and hold harmless the Company
and its officers, directors, employees, agents, affiliates and each person, if
any, who controls the Company within the meaning of the Securities Act of 1933
(collectively, the "Indemnified Parties" for purposes of this Section 10(a))
against any losses, claims, expenses, damages or liabilities (including amounts
paid in settlement thereof) or litigation expenses (including legal and other
expenses) (collectively, "Losses"), to which the Indemnified Parties may become
subject, insofar as such Losses (i) result from a breach by Investors Research
of a material provision of this Agreement, or (ii) arise out of or are based
upon any untrue statement of any material fact contained in any registration
statement or prospectus of the Company regarding the Contracts, if any, or
arise out of or are based upon 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
misstatement or omission is the result of information provided
by Investors Research regarding the Fund specifically for inclusion in such
registration statement. Investors Research will reimburse any legal or other
expenses reasonably incurred by the Indemnified Parties in connection with
investigating or defending any such Losses. Investors Research shall not be
liable for indemnification hereunder to the extent such Losses are attributable
to the negligence or misconduct of the Company in performing its obligations
under this Agreement.
(b) The Company agrees to indemnify and hold harmless Investors Research
and the Issuer and their respective officers, directors, employees, agents,
affiliates and each person, if any, who controls the Issuer or Investors
Research within the meaning of the Securities Act of 1933
(collectively, the "Indemnified Parties" for purposes of this Section 10(b))
against any Losses to which the Indemnified Parties may become subject,
insofar as such Losses (i) result from a breach by the Company of a material
provision of this Agreement, or (ii) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained
in any registration statement or prospectus of the
Company regarding the Contracts, if any, or arise out of or are based upon 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, or
(iii) result from the use by any person of a Remote Computer Terminal. The
Company will reimburse any legal or other expenses reasonably incurred by the
Indemnified Parties in connection with investigating or defending any such
Losses. The Company shall not be liable for indemnification hereunder to the
extent such Losses are attributable to the negligence or misconduct of Investors
Research or the Issuer in performing their obligations under this Agreement.
(c) Investors Research shall indemnify and hold the Company harmless
against any losses, claims, damages, or liabilities that the Company may incur,
suffer, or be required to pay due to Investors Research's incorrect calculation,
or untimely or incorrect reporting, of the Fund's daily net asset value,
dividend rate, or capital gain distribution rate. Any gain to the Company
attributable to Investors Research's incorrect calculation, or untimely or
incorrect reporting, of the Fund's daily net asset value, dividend rate,
or capital gain distribution rate shall be immediately returned to the Fund.
(c) Promptly after receipt by an indemnified party hereunder of notice
of the commencement of action, such indemnified party will, if a claim in
respect thereof is to be made against the indemnifying party hereunder,
notify the indemnifying party of the commencement thereof; but the omission
so to notify the indemnifying party will not relieve it from any liability
which it may have to any indemnified party otherwise than under this
SECTION 10. In case any such action is brought against any
indemnified party, and it notifies the indemnifying
party of the commencement thereof, the indemnifying party will be entitled to
participate therein at its own expense and, to the extent that it may wish to,
assume the defense thereof, with counsel satisfactory to such indemnified party,
and after notice from the indemnifying party to such indemnified party of its
election to assume the defense thereof, the indemnifying party will not be
liable to such indemnified party under this Section 10 for any legal or
other expenses subsequently incurred by such indemnified party in
connection with the defense thereof other than reasonable costs of
investigation.
(d) If the indemnifying party assumes the defense of any such action, the
indemnifying party shall not, without the prior written consent of the
indemnified parties in such action, settle or compromise the liability of the
indemnified parties in such action, or permit a default or consent to the entry
of any judgement in respect thereof, unless in connection with such settlement,
compromise or consent, each indemnified party receives from such claimant an
unconditional release from all liability in respect of such claim.
11. POTENTIAL CONFLICTS.
(a) The Company has received a copy of an application for exemptive
relief, as amended, filed by Investors Research on December 21, 1987, with the
SEC and the order issued by the SEC in response thereto (the "Shared Funding
Exemptive Order"). The Company has reviewed the conditions to the requested
relief set forth in such application for exemptive relief. As set forth in such
application, the Board of Directors of the Issuer (the "Board") will monitor the
Issuer for the existence of any material irreconcilable conflict between the
interests of the contract owners of all separate accounts ("Participating
Companies") investing in funds of the Issuer. An irreconcilable material
conflict may arise for a variety of reasons, including: (i) an action by any
state insurance regulatory authority; (ii) 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
actions by insurance, tax or securities regulatory authorities; (iii) an
administrative or judicial decision in any relevant proceeding;
(iv) the manner in which the investments of any portfolio are being managed;
(v) a difference in voting instructions given by variable annuity contract
owners and variable life insurance contract owners;
or (vi) a decision by an insurer to disregard the
voting instructions of contract owners. The Board shall promptly inform the
Company if it determines that an irreconcilable material conflict exists and the
implications thereof.
(b) The Company will report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board in
carrying out its responsibilities under the Shared Funding Exemptive Order
by providing the Board with all information reasonably necessary for the
Board to consider any issues raised. This includes, but is not limited to,
an obligation by the Company to inform the Board whenever contract owner voting
instructions are disregarded.
(c) If a majority of the Board, or a majority of its disinterested Board
members, determines that a material irreconcilable conflict exists with regard
to contract owner investments in the Fund, the Board shall give prompt notice to
all Participating Companies. If the Board determines that the Company is
responsible for causing or creating said conflict, the Company shall at its sole
cost and expense, and to the extent reasonably practicable (as determined by a
majority of the disinterested Board members), take such action as is necessary
to remedy or eliminate the irreconcilable material conflict. Such necessary
action may include but shall not be limited to:
(i) withdrawing the assets allocable to the Accounts from the Fund
and reinvesting such assets in a different investment medium or submitting the
question of whether such segregation should be implemented to a vote of all
affected contract owners and as appropriate, segregating the assets of any
appropriate group (i.e.,annuity contract owners, life insurance contract owners,
or variable contract owners of one or more Participating Companies) that votes
in favor of such segregation, or offering to the affected contract owners the
option of making such a change; and/or
(ii) establishing a new registered management investment company
managed separate account.
(d) If a material irreconcilable conflict arises as a result of a
decision by the Company to disregard its contract owner voting instructions and
said decision represents a minority position or would preclude a majority vote
by all of its contract owners having an interest in the Issuer, the Company at
its sole cost, may be required, at the Board's election, to withdraw an
Account's investment in the Issuer and terminate this Agreement; provided,
however, that such withdrawal and termination shall be limited to the
extent required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested members of the Board.
(e) For the purpose of this Section 11, a majority of the disinterested
Board members shall determine whether or not any proposed action adequately
remedies any irreconcilable material conflict, but in no event will the Issuer
be required to establish a new funding medium for any Contract. The Company
shall not be required by this Section 11 to establish a new funding medium for
any Contract if an offer to do so has been declined by vote of a majority of the
Contract owners materially adversely affected by the irreconcilable material
conflict.
12. TERMINATION. This agreement shall terminate as to the sale and
issuance of new Contracts:
(a) at the option of either the Company, Investors Research or the
Issuer upon three months' advance written notice to the other;
(b) at the option of the Company if the Fund's shares are not available
for any reason to meet the requirement of Contracts as determined by the
Company. Reasonable advance notice of election to terminate shall be
furnished by Company;
(c) at the option of either the Company, Investors Research or the
Issuer, upon institution of formal proceedings against the broker-dealer or
broker-dealers marketing the Contracts, the Accounts, the Company, or the Issuer
by the National Association of Securities Dealers, Inc. (the "NASD"), or the
SEC;
(d) upon termination of the Management Agreement between the Issuer and
Investors Research. Notice of such termination shall be promptly furnished to
the Company. This subsection (d) shall not be deemed to apply if
contemporaneously with such termination a new contract of substantially similar
terms is entered into between the Issuer and Investors Research;
(e) upon (i) receipt by the Company of an order or substitution issued
by the Securities and Exchange Commission permitting the substitution of shares
of another investment company for the corresponding Fund shares, or (ii) the
requisite vote of Contract owners having an interest in the Issuer to substitute
for the Issuer's shares the shares of another investment company in accordance
with the terms of Contracts for which the Issuer's shares had been selected to
serve as the underlying investment medium. The Company will give 60 days'
written notice to the Issuer and Investors Research of any proposed vote or
other action to replace a Fund's shares;
(f) upon assignment of this Agreement unless made with the written
consent of all other parties hereto;
(g) if the Issuer's shares are not registered, issued or sold in
conformance with Federal law or such law precludes the use of Fund shares as an
underlying investment medium of Contracts issued or to be issued by the
Company. Prompt notice shall be given by either party should such situation
occur;
(h) at the option of the Issuer, if the Issuer reasonably determines in
good faith that the Company is not offering shares of the Fund in conformity
with the terms of this Agreement or applicable law;
(i) at the option of any party hereto upon a determination that
continuing to perform under this Agreement would, in the reasonable opinion of
the terminating party's counsel, violate any applicable federal or state law,
rule, regulation or judicial order; or
(j) termination by the Company by written notice to Investors Research
in the event that a Fund fails to meet the Section 817(h) diversification
requirements or Subchapter M qualification specified in this Agreement or if the
Company reasonably believes that a Fund may fail to meet either of those
requirements.
13. CONTINUATION OF AGREEMENT. Termination as the result of any cause
listed in Section 12 shall not affect the Issuer's obligation to furnish its
shares to Contracts then in force for which its shares serve or may serve as the
underlying medium unless such further sale of Fund shares is proscribed by law
or the SEC or other regulatory body.
14. NON-EXCLUSIVITY. Each of the parties acknowledges and agrees that
this Agreement and the arrangement described herein are intended to be non-
exclusive and that each of the parties is free to enter into similar agreements
and arrangements with other entities.
15. SURVIVAL. The provisions of Sections 4, 6, 7(g), 8, 9 and 10 of this
Agreement shall survive termination of this Agreement with respect to Contracts
in existence as of the termination date for which shares of the Fund serve as
underlying investment media. The provisions of Section 5 with respect to the
payment of the Administrative Services fee shall survive termination of this
Agreement with respect to Contracts in existence as of the termination date for
which shares of the Fund serve as underlying investment media and for which the
Company continues to provide the administrative services required under this
Agreement for a period of 12 months following the termination date.
16. AMENDMENT. Neither this Agreement, nor any provision hereof, may be
amended, waived, discharged or terminated orally, but only by an instrument in
writing signed by all of the parties hereto.
17. NOTICES. All notices and other communications hereunder shall be
given or made in writing and shall be delivered personally, or sent by telex,
telecopier, express delivery or registered or certified mail, postage prepaid,
return receipt requested, to the party or parties to whom they are directed at
the following addresses, or at such other addresses as may be designated by
notice from such party to all other parties.
To the Company:
THE UNION CENTRAL LIFE INSURANCE COMPANY
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Law and Corporate Relations Dept.
(000) 000-0000 (telephone number)
(000) 000-0000 (telecopy number)
To the Issuer or Investors Research:
TWENTIETH CENTURY MUTUAL FUNDS
0000 Xxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxxxxx, Esq.
(000) 000-0000 (telephone number)
(000) 000-0000 (telecopy number)
Any notice, demand or other communication given in a manner prescribed in this
Section 17 shall be deemed to have been delivered on receipt.
18. SUCCESSORS AND ASSIGNS. This Agreement may not be assigned without
the written consent of all parties to the Agreement at the time of such
assignment. This Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective permitted successors and assigns.
19. COUNTERPARTS. This Agreement may be executed in any number of
counterparts,
all of which taken together shall constitute one agreement, and any party hereto
may execute this Agreement by signing any such counterpart.
20. SEVERABILITY. In case any one or more of the provisions contained
in this Agreement should be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of the remaining provisions contained
herein shall not in any way be affected or impaired thereby.
21. APPLICABLE LAW. This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the State of
Missouri. In addition to and notwithstanding the foregoing, this Agreement
shall be subject to the provisions of the 1933, 1934 and 1940 Acts,
and the rules and regulations and rulings thereunder, including such
exemptions from those statues, rules and regulations as the
Securities and Exchange Commission may grant (including,
but not limited to, the Shared Funding Exemptive Order) and the terms
hereof shall be interpreted and construed in accordance therewith.
22. ENTIRE AGREEMENT. This Agreement, including the Attachments hereto,
constitutes the entire agreement between the parties with respect to the matters
dealt with herein, and supersedes all previous agreements, written or oral, with
respect to such matters.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date set forth above.
INVESTORS RESEARCH CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Executive Vice President
THE UNION CENTRAL LIFE INSURANCE COMPANY
By: /s/ Xxxxxxxxx X. Xxxxxxx
Name: Xxxxxxxxx X. Xxxxxxx
Title: Second Vice President
TCI PORTFOLIOS, INC.
By: /s/ Xxxxxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Executive Vice President
