PARTICIPATION AGREEMENT
BY AND AMONG
AIM VARIABLE INSURANCE FUNDS,
A I M DISTRIBUTORS, INC.,
GREAT-WEST LIFE & ANNUITY INSURANCE COMPANY,
ON BEHALF OF ITSELF AND
ITS SEPARATE ACCOUNTS, AND AS UNDERWRITER OF VARIABLE CONTRACTS AND POLICIES
TABLE OF CONTENTS
Description
Page
SECTION 1. AVAILABLE FUNDS................................................................2
1.1 AVAILABILITY..................................................................2
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1.2 ADDITION, DELETION OR MODIFICATION OF FUNDS...................................2
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1.3 NO SALES TO THE GENERAL PUBLIC................................................2
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SECTION 2. PROCESSING TRANSACTIONS........................................................2
2.1 TIMELY PRICING AND ORDERS.....................................................2
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2.2 TIMELY PAYMENTS...............................................................3
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2.3 APPLICABLE PRICE..............................................................3
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2.4 DIVIDENDS AND DISTRIBUTIONS...................................................4
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2.5 BOOK ENTRY....................................................................4
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SECTION 3. COSTS AND EXPENSES.............................................................5
3.1 GENERAL.......................................................................5
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3.2 PARTIES TO COOPERATE..........................................................5
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SECTION 4. LEGAL COMPLIANCE...............................................................5
4.1 TAX LAWS......................................................................5
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4.2 INSURANCE AND CERTAIN OTHER LAWS..............................................7
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4.3 SECURITIES LAWS...............................................................8
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4.4 NOTICE OF CERTAIN PROCEEDINGS AND OTHER CIRCUMSTANCES.........................9
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4.5 G-WL&A TO PROVIDE DOCUMENTS; INFORMATION ABOUT AVIF...........................9
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4.6 AVIF TO PROVIDE DOCUMENTS; INFORMATION ABOUT G-WL&A..........................10
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SECTION 5. MIXED AND SHARED FUNDING......................................................11
5.1 GENERAL......................................................................11
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5.2 DISINTERESTED TRUSTEES.......................................................12
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5.3 MONITORING FOR MATERIAL IRRECONCILABLE CONFLICTS.............................12
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5.4 CONFLICT REMEDIES............................................................13
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5.5 NOTICE TO G-WL&A.............................................................14
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5.6 INFORMATION REQUESTED BY BOARD...............................................14
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5.7 COMPLIANCE WITH SEC RULES....................................................14
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5.8 OTHER REQUIREMENTS...........................................................15
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SECTION 6. TERMINATION...................................................................15
6.1 EVENTS OF TERMINATION........................................................15
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6.2 NOTICE REQUIREMENT FOR TERMINATION...........................................16
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6.3 FUNDS TO REMAIN AVAILABLE....................................................17
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6.4 SURVIVAL OF WARRANTIES AND INDEMNIFICATIONS..................................17
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6.5 CONTINUANCE OF AGREEMENT FOR CERTAIN PURPOSES................................17
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SECTION 7. PARTIES TO COOPERATE RESPECTING TERMINATION...................................17
SECTION 8. ASSIGNMENT....................................................................17
SECTION 9. NOTICES.......................................................................18
SECTION 10. VOTING PROCEDURES..............................................................19
SECTION 11. FOREIGN TAX CREDITS............................................................19
SECTION 12. INDEMNIFICATION................................................................20
12.1 OF AVIF AND AIM BY G-WL&A AND UNDERWRITER....................................20
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12.2 OF G-WL&A AND UNDERWRITER BY AVIF AND AIM....................................22
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12.3 EFFECT OF NOTICE.............................................................24
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12.4 SUCCESSORS...................................................................24
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SECTION 13. APPLICABLE LAW.................................................................25
SECTION 14. EXECUTION IN COUNTERPARTS......................................................25
SECTION 15. SEVERABILITY...................................................................25
SECTION 16. RIGHTS CUMULATIVE..............................................................25
SECTION 17. HEADINGS.......................................................................25
SECTION 18. CONFIDENTIALITY................................................................25
SECTION 19. TRADEMARKS AND FUND NAMES......................................................26
SECTION 20. PARTIES TO COOPERATE...........................................................26
SECTION 21. AMENDMENTS; NEED FOR...........................................................27
SECTION 22. FORCE MAJEURE..................................................................27
PARTICIPATION AGREEMENT
THIS AGREEMENT, made and entered into as of the 30th day of March, 2005
("Agreement"), by and among AIM VARIABLE INSURANCE FUNDS, a Delaware Trust
("AVIF"), A I M Distributors, Inc., a Delaware corporation ("AIM"), GREAT-WEST
LIFE & ANNUITY INSURANCE COMPANY, a Colorado life insurance company ("G-WL&A"),
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 as the principal underwriter of the
Contracts ("UNDERWRITER") (collectively, the "Parties").
WITNESSETH THAT:
WHEREAS, AVIF is registered with the Securities and Exchange Commission
("SEC") as an open-end management investment company under the Investment
Company Act of 1940, as amended (the "1940 Act"); and
WHEREAS, AVIF currently consists of twenty-eight separate series
("Series"), shares ("Shares") 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, G-WL&A 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, G-WL&A 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, G-WL&A 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
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, G-WL&A intends to purchase Shares in one or more of the Funds on
behalf of the Accounts to fund the Contracts; and
WHEREAS, GWL&A intends to utilize its NSCC member broker/dealer
affiliate, GWFS Equities, Inc., ("GWFS") to transmit instructions for the
purchase, redemption and transfer of Fund shares on behalf of the Account, and
GWFS, alone, or with the assistance of a recordkeeping affiliate, to perform
certain recordkeeping functions associated with the transfer of Fund shares into
and out of the Account in order to recognize certain organizational economies;
and
WHEREAS, AIM is a broker-dealer registered with the SEC under the 1934
Act and a member in good standing of the NASD;
NOW, THEREFORE, in consideration of the mutual benefits and promises
contained herein, the Parties hereto agree as follows:
Section 1. Available Funds
1.1 Availability
AVIF will make Shares of each Fund available to G-WL&A for purchase and
redemption at net asset value and with no sales charges, subject to the terms
and conditions of this Agreement. The Board of AVIF (the "Board") may refuse to
sell Shares of any Fund to any person, or suspend or terminate the offering of
Shares of any Fund (a) if such action is required by law or by regulatory
authorities having jurisdiction, (b) if, in the sole discretion of the Trustees
acting in good faith and in light of their fiduciary duties under federal and
any applicable state laws, such action is deemed in the best interests of the
shareholders of such Fund, or (c) if such action is required by any policies
that the Board has adopted and that apply to all Participating Insurance
Companies.
1.2 Addition, Deletion or Modification of Funds
The Parties hereto may agree, from time to time, to add other Funds to
provide additional funding media for the Contracts, or to delete, combine, or
modify existing Funds, by amending Schedule A hereto. Upon such amendment to
Schedule A, any applicable reference to a Fund, AVIF, or its Shares herein shall
include a reference to any such additional Fund. Schedule A, as amended from
time to time, is incorporated herein by reference and is a part hereof.
1.3 No Sales to the General Public
AVIF represents and warrants that no Shares of any Fund have been or
will be sold to the general public.
Section 2. Processing Transactions
2.1 Timely Pricing and Orders
(a) AVIF or its designated agent will use its best efforts to provide
G-WL&A with the net asset value per Share for each Fund by 6:00 p.m. Central
Time on each Business Day. As used herein, "Business Day" shall mean any day on
which (i) the New York Stock Exchange is open for regular trading, (ii) AVIF
calculates the Fund's net asset value, and (iii) G-WL&A is open for business.
(b) G-WL&A 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.
G-WL&A 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 G-WL&A in the event that AVIF is unable to meet the
6:00 p.m. time stated in paragraph (a) immediately above. Such additional time
shall be equal to the additional time that AVIF takes to make the net asset
values available to G-WL&A.
(c) With respect to payment of the purchase price by G-WL&A and of
redemption proceeds by AVIF, G-WL&A 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), G-WL&A 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 G-WL&A. Materiality and reprocessing cost
reimbursement shall be determined in accordance with standards established by
the Parties as provided in Schedule B, attached hereto and incorporated herein
(except that for any money market fund, materiality shall be determined in a
manner consistent with Rule 2a-7 under the 1940 Act).
2.2 Timely Payments
G-WL&A 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 G-WL&A by 1:00 p.m. Central Time on the
same day as the Order is placed, to the extent practicable, but in any event
within five (5) calendar days after the date the order is placed in order to
enable G-WL&A 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 G-WL&A receives prior
to the close of regular trading on the New York Stock Exchange (or such other
time set by the Board for purposes of determining the current net asset value of
a Fund in accordance with Rule 22c-1 under the 0000 Xxx) 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), G-WL&A shall be the designated agent of AVIF for receipt of
orders relating to Contract transactions, in accordance with Section 22(c) and
Rule 22c-1 under the 1940 Act, 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. In
connection with this Section 2.3(a), G-WL&A represents and warrants that it will
not knowingly submit any order for Shares or engage in any practice, nor will it
knowingly allow or suffer any person acting on its behalf to submit any order
for Shares or engage in any practice, that would violate or cause a violation of
applicable law or regulation including, without limitation Section 22 of the
1940 Act and the rules thereunder.
(b) ....All other Share purchases and redemptions by G-WL&A will be
effected at the net asset values of the appropriate Funds next computed after
receipt by AVIF or its designated agent of the order therefor, and such orders
will be irrevocable.
.........(c) Without limiting the scope or effect of Section 1.1 hereof, pursuant
to which the Board may reject a Share purchase order by or on behalf of G-WL&A
under the circumstances described therein, G-WL&A and its designated affiliate
agrees to cooperate with the Fund and AIM to prevent any person exercising, or
purporting to exercise, rights or privileges under one or more Contracts
(including, but not limited to Contract owners, annuitants, insureds or
participants, as the case may be (collectively, "Participants")) from engaging
in any trading practices in any Fund that the Board or AIM determines, in good
faith and in their sole discretion, to be detrimental or potentially detrimental
to the other shareholders of the Fund, or to be in contravention of any
applicable law or regulation including, without limitation, Section 22 of the
1940 Act and the rules thereunder. Such cooperation may include, but shall not
be limited to, identifying the person or persons engaging in such trading
practices, facilitating the imposition of any applicable redemption fee on such
person or persons, limiting the telephonic or electronic trading privileges of
such person or persons, and taking such other remedial steps, all to the extent
permitted or required by applicable law and the Funds' then current prospectus.
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 G-WL&A of any income dividends
or capital gain distributions payable on the Shares of any Fund. G-WL&A 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
G-WL&A 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. G-WL&A 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 G-WL&A. Shares ordered from AVIF will be
recorded in an appropriate title for G-WL&A, on behalf of its Account.
Section 3. Costs and Expenses
3.1 General
Except as otherwise specifically provided in Schedule C, attached hereto
and made a part hereof, each Party will bear, or arrange for others to bear, all
expenses incident to its performance under this Agreement.
3.2 Parties To Cooperate
Each Party agrees to cooperate with the others, as applicable, in
arranging to print, mail and/or deliver, in a timely manner, combined or
coordinated prospectuses or other materials of AVIF and the Accounts.
........Section 4. Legal Compliance
4.1 Tax Laws
(a) AVIF represents and warrants that each Fund is currently qualified
as a regulated investment company ("RIC") under Subchapter M of the Internal
Revenue Code of 1986, as amended (the "Code"), and represents that it will use
its best efforts to qualify and to maintain qualification of each Fund as a RIC.
AVIF will notify G-WL&A 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 G-WL&A immediately upon having a reasonable basis for
believing that a Fund has ceased to so comply or that a Fund might not so comply
in the future. In the event of a breach of this Section 4.1(b) by AVIF, it will
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) Notwithstanding any other provision of this Agreement, but without
limiting the ability of AVIF and/or AIM to assume the defense of any action
pursuant to Section 12.2(d) hereof, G-WL&A agrees that if the Internal Revenue
Service ("IRS") asserts in writing in connection with any governmental audit or
review of G-WL&A or, to G-WL&A's knowledge, of any Participants, that any Fund
has failed to comply with the diversification requirements of Section 817(h) of
the Code or G-WL&A 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) G-WL&A shall promptly notify AVIF of such assertion or
potential claim (subject to the Confidentiality provisions
of Section 18 as to any Participant);
(ii) G-WL&A shall consult with AVIF as to how to minimize any
liability that may arise as a result of such failure or
alleged failure;
(iii) G-WL&A shall use all commercially reasonable 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) G-WL&A 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 G-WL&A will retain
control of the conduct of such conferences discussions,
proceedings, contests or appeals;
(v) any written materials to be submitted by G-WL&A to the
IRS, any Participant or any other claimant in
connection with any of the foregoing proceedings or
contests that would affect AIM, it affiliates and/or
AVIF and/or AVIF's shareholders, (including, without
limitation, any such materials to be submitted to the
IRS pursuant to Treasury Regulations Section
1.817-5(a)(2)), (a) shall be provided by G-WL&A 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 G-WL&A to
any such person without the express written consent of
AVIF which shall not be unreasonably withheld;
vi) G-WL&A 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 G-WL&A) 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) G-WL&A 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 G-WL&A
shall not be required, after exhausting all administrative
remedies, to appeal any adverse judicial decision unless
AVIF or its affiliates shall have provided an opinion of
independent counsel to the effect that a reasonable basis
exists for taking such appeal; and provided further that
the costs of any such appeal shall be borne solely by
AVIF. Notwithstanding the foregoing, GWL&A agrees to share
in fifty percent (50%) of the reasonable costs of appeal
should the decision of the appellate court relieve GWL&A
of any direct liability with respect to the claim appealed
thereto; and
(viii) AVIF and its affiliates shall have no liability as a
result of such failure or alleged failure if G-WL&A 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, G-WL&A may,
in its discretion, authorize AVIF or its affiliates to act in the name of G-WL&A
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 G-WL&A 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) G-WL&A 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; G-WL&A 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).....G-WL&A 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. G-WL&A 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 G-WL&A, which efforts shall include, without limitation, the furnishing of
information that is not otherwise available to G-WL&A and that is required by
state insurance law to enable G-WL&A to obtain the authority needed to issue the
Contracts in any applicable state.
(b) G-WL&A 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 Colorado and has full corporate power, authority and legal right to
execute, deliver and perform its duties and comply with its obligations under
this Agreement, and (ii) 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 lawfully organized, validly
existing, and in good standing under the laws of the State of Delaware 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) G-WL&A 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 the
law(s) of G-WL&A's state(s) of organization and domicile, (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) G-WL&A 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,
Statement of Additional Information, and then-current stickers (collectively
referred to herein as "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 Delaware
law, (ii) AVIF is and will remain registered under the 1940 Act to the extent
required by the 1940 Act, (iii) AVIF will amend the registration statement for
its Shares under the 1933 Act and itself under the 1940 Act from time to time as
required in order to effect the continuous offering of its Shares, (iv) AVIF
does and will comply in all material respects with the requirements of the 1940
Act and the rules thereunder, (v) AVIF's 1933 Act registration statement,
together with any amendments thereto, will at all times comply in all material
respects with the requirements of the 1933 Act and rules thereunder, and (vi)
AVIF's Prospectus, Statement of Additional Information, and then-current
stickers (collectively referred to herein as "AVIF 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 represents and warrants that all of its trustees, officers,
employees, investment advisers, and other individuals/entities having access to
the funds and/or securities of the Fund are and continue to be at all times
covered by a blanket fidelity bond or similar coverage for the benefit of the
Fund in an amount not less than the minimal coverage as required currently by
Rule 17g-(1) of the 1940 Act or related provisions as may be promulgated from
time to time. The aforesaid bond includes coverage for larceny and embezzlement
and is issued by a reputable bonding company.
4.4 Notice of Certain Proceedings and Other Circumstances
(a) AVIF or AIM will immediately notify G-WL&A 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 G-WL&A. AVIF and
AIM 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) G-WL&A or its designated underwriter affiliate 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. G-WL&A and its designated
underwriter affiliate 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.
4.5 G-WL&A To Provide Documents; Information About AVIF
(a) G-WL&A 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) G-WL&A will provide to AVIF or its designated agent at least one (1)
complete copy of each piece of sales literature or other promotional material in
which AVIF or any of its affiliates is named, at least five (5) Business Days
prior to its use or such shorter period as the Parties hereto may, from time to
time, agree upon. No such material shall be used if AVIF or its designated agent
objects to such use within five (5) Business Days after receipt of such material
or such shorter period as the Parties hereto may, from time to time, agree upon.
AVIF hereby designates AIM as the entity to receive such sales literature, until
such time as AVIF appoints another designated agent by giving notice to G-WL&A
in the manner required by Section 9 hereof.
(c) Neither G-WL&A 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) G-WL&A 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 GWL&A, AVIF nor any of their 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 0000 Xxx.
4.6 AVIF To Provide Documents; Information About G-WL&A
(a) AVIF will provide to G-WL&A 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 G-WL&A a camera ready copy of all AVIF
prospectuses and printed copies, in an amount specified by G-WL&A, 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
G-WL&A in a timely manner so as to enable G-WL&A, 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 G-WL&A or its designated agent at least one (1)
complete copy of each piece of sales literature or other promotional material in
which G-WL&A, 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 G-WL&A 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. G-WL&A 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 G-WL&A, 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 G-WL&A for distribution; or (iii) in sales literature or other
promotional material approved by G-WL&A or its affiliates, except with the
express written permission of G-WL&A.
(e) AVIF shall cause its principal underwriter to adopt and implement
procedures reasonably designed to ensure that information concerning G-WL&A, 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 G-WL&A, nor
any of its respective affiliates shall be liable for any losses, damages or
expenses relating to the improper use of such broker only materials.
(f) For purposes of this Section 4.6, the phrase "sales literature or
other promotional material" includes, but is not limited to, advertisements
(such as material published, or designed for use in, a newspaper, magazine, or
other periodical, radio, television, telephone or tape recording, videotape
display, signs or billboards, motion pictures, or other public media, (e.g.,
on-line networks such as the Internet or other 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 G-WL&A,
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 the exemptive order granted to AVIF. AVIF hereby notifies G-WL&A
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 Trustees
AVIF agrees that its Board shall at all times consist of trustees a
majority of whom (the "Disinterested Trustees") 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 will monitor for the existence of any
material irreconcilable conflict between the interests of the Participants in
all separate accounts of life insurance companies utilizing AVIF ("Participating
Insurance Companies"), including each Account, and participants in all qualified
retirement and pension plans investing in AVIF ("Participating Plans"). G-WL&A
agrees to inform the Board 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, G-WL&A will assist the
Board in carrying out its responsibilities by providing the Board with all
information reasonably necessary for the Board to consider any issue raised,
including information as to a decision by G-WL&A to disregard voting
instructions of Participants. G-WL&A's responsibilities in connection with the
foregoing shall be carried out with a view only to the interests of
Participants.
5.4 Conflict Remedies
(a) It is agreed that if it is determined by a majority of the members
of the Board or a majority of the Disinterested Trustees that a material
irreconcilable conflict exists, G-WL&A 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 Trustees), take whatever steps are necessary to remedy or
eliminate the material irreconcilable conflict, which steps may include, but are
not limited to:
(i) withdrawing the assets allocable to some or all of the
Accounts from AVIF or any Fund and reinvesting such
assets in a different investment medium, including
another Fund of AVIF, or submitting the question
whether such segregation should be implemented to a
vote of all affected Participants and, as appropriate,
segregating the assets of any particular group (e.g.,
annuity Participants, life insurance Participants or
all Participants) that votes in favor of such
segregation, or offering to the affected Participants
the option of making such a change; and
(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 G-WL&A's
decision to disregard Participant voting instructions and that decision
represents a minority position or would preclude a majority vote, G-WL&A 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 G-WL&A that this provision is being implemented, and until such
withdrawal AVIF shall continue to accept and implement orders by G-WL&A 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 G-WL&A conflicts with the
majority of other state regulators, then G-WL&A will withdraw each Account's
investment in AVIF within six (6) months after AVIF's Board informs G-WL&A 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 G-WL&A for the purchase and redemption of Shares of AVIF. No charge or
penalty will be imposed as a result of such withdrawal.
(d) G-WL&A 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 Trustees 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.
G-WL&A 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 G-WL&A
AVIF will promptly make known in writing to G-WL&A the Board's
determination of the existence of a material irreconcilable conflict, a
description of the facts that give rise to such conflict and the implications of
such conflict.
5.6 Information Requested by Board
G-WL&A and AVIF (or its investment adviser) will at least annually
submit to the Board of AVIF such reports, materials or data as the Board may
reasonably request so that the Board 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. All reports
received by the Board of potential or existing conflicts, and all Board 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 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
G-WL&A or its affiliates by the NASD, the SEC, any state insurance regulator or
any other regulatory body regarding G-WL&A's obligations under this Agreement or
related to the sale of the Contracts, the operation of each Account, or the
purchase of Shares, if, in each case, AVIF reasonably determines that such
proceedings, or the facts on which such proceedings would be based, have a
material likelihood of imposing material adverse consequences on the Fund with
respect to which the Agreement is to be terminated; or
(c) at the option of G-WL&A 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, G-WL&A
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 G-WL&A, 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 G-WL&A; or
(e) upon termination of the corresponding Subaccount's investment in the
Fund pursuant to Section 5 hereof; or
(f) at the option of G-WL&A if the Fund ceases to qualify as a RIC under
Subchapter M of the Code or under successor or similar provisions, or if G-WL&A
reasonably believes that the Fund may fail to so qualify; or
(g) at the option of G-WL&A if the Fund fails to comply with Section
817(h) of the Code or with successor or similar provisions, or if G-WL&A
reasonably believes that the Fund may fail to so comply; or
(h) at the option of AVIF if the Contracts issued by G-WL&A cease to
qualify as annuity contracts or life insurance contracts under the Code (other
than by reason of the Fund's noncompliance with Section 817(h) or Subchapter M
of the Code) or if interests in an Account under the Contracts are not
registered, where required, and, in all material respects, are not issued or
sold in accordance with any applicable federal or state law; or
(i) upon another Party's material breach of any provision of this
Agreement.
6.2 Notice Requirement for Termination
No termination of this Agreement will be effective unless and until the
Party terminating this Agreement gives prior written notice to the other Party
to this Agreement of its intent to terminate, and such notice shall set forth
the basis for such termination. Furthermore:
(a) in the event that any termination is based upon the provisions of
Sections 6.1(a) or 6.1(e) hereof, such prior written notice shall be given at
least six (6) months in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto;
(b) in the event that any termination is based upon the provisions of
Sections 6.1(b) or 6.1(c) hereof, such prior written notice shall be given at
least ninety (90) days in advance of the effective date of termination unless a
shorter time is agreed to by the Parties hereto; and
(c) in the event that any termination is based upon the provisions of
Sections 6.1(d), 6.1(f), 6.1(g), 6.1(h) or 6.1(i) hereof, such prior written
notice shall be given as soon as possible within twenty-four (24) hours after
the terminating Party learns of the event causing termination to be required.
6.3 Funds To Remain Available
Notwithstanding any termination of this Agreement by G-WL&A, AVIF will,
at the option of G-WL&A, 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"), unless AIM or the Board determines that
doing so would not serve the best interests of the shareholders of the affected
Funds or would be inconsistent with applicable law or regulation. 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 (i) terminations under Section 5 and the
effect of such terminations will be governed by Section 5 of this Agreement or
(ii) any rejected purchase and/or redemption order as described in Section
2.3(c) hereof.
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 G-WL&A may, by written notice shorten said six (6) month period in the case
of a termination pursuant to Sections 6.1(d), 6.1(f), 6.1(g), 6.1(h) or 6.1(i).
Section 7. Parties To Cooperate Respecting Termination
The Parties hereto agree to cooperate and give reasonable assistance to
one another in taking all necessary and appropriate steps for the purpose of
ensuring that an Account owns no Shares of a Fund after the Final Termination
Date with respect thereto, or, in the case of a termination pursuant to Section
6.1(a), the termination date specified in the notice of termination. Such steps
may include combining the affected Account with another Account, substituting
other mutual fund shares for those of the affected Fund, or otherwise
terminating participation by the Contracts in such Fund.
Section 8. Assignment
This Agreement may not be assigned by any Party, except with the written
consent of each other Party. For purposes of this Agreement, the designation of
an affiliate of a Party to perform some, or all, the duties and obligations
hereto shall not be construed as an assignment. An affiliate is that entity
which is controlled, either directly or indirectly by a Party and shall include
any entity that conforms to such definition as of the effective date of the
Agreement as well as any entity that conforms to the definition anytime
thereafter.
Section 9. Notices
Notices and communications required or permitted 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
A I M DISTRIBUTORS, INC.
00 Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
Attn: .Xxxxx X. Xxxxxxxx, Esq.
GREAT-WEST LIFE AND ANNUITY INSURANCE COMPANY
0000 Xxxx Xxxxxxx Xxxx
Xxxxxxxxx Xxxxxxx, Xxxxxxxx 00000
Attn: Vice President, Institutional Insurance
cc: Xxxxxxx X. Xxxxx, V.P. Counsel and Associate Secretary
Section 10. Voting Procedures
Subject to the cost allocation procedures set forth in Section 3 hereof,
G-WL&A 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. G-WL&A will vote Shares in accordance
with timely instructions received from Participants. G-WL&A 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 G-WL&A 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. G-WL&A reserves the right to vote shares held in any Account in
its own right, to the extent permitted by law. G-WL&A 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 G-WL&A 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 trustees and with whatever rules the SEC may promulgate
with respect thereto.
Section 11. Foreign Tax Credits
AVIF agrees to consult in advance with G-WL&A 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 G-WL&A
(a) Except to the extent provided in Sections 12.1(b) and 12.1(c),
below, G-WL&A and its designated affiliates agree to indemnify and hold harmless
AVIF, AIM, their affiliates, and each person, if any, who controls AVIF, AIM, or
their affiliates within the meaning of Section 15 of the 1933 Act and each of
their respective trustees 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
G-WL&A 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 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 G-WL&A or its designated
affiliate 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 G-WL&A or their
respective affiliates and on which such persons have
reasonably relied) or the negligent, illegal or
fraudulent conduct of G-WL&A or their respective
affiliates or persons under their control (including,
without limitation, their employees and "persons
associated with a member," as that term is defined in
paragraph (q) 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, AIM or their affiliates by or on behalf
of G-WL&A or their respective affiliates for use in AVIF's
1933 Act registration statement, AVIF Prospectus, sales
literature or advertising of AVIF, or any amendment or
supplement to any of the foregoing; or
(iv) arise as a result of any failure by G-WL&A or its
designated affiliates 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 G-WL&A or
its designated affiliates in this Agreement or arise out
of or result from any other material breach of this
Agreement by G-WL&A or its designated affiliates; or
(v) arise as a result of failure by the Contracts issued by
G-WL&A 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 G-WL&A nor its designated affiliates shall be liable under
this Section 12.1 with respect to any losses, claims, damages, liabilities or
actions to which an Indemnified Party would otherwise be subject by reason of
willful misfeasance, bad faith, or gross negligence in the performance by that
Indemnified Party of its duties or by reason of that Indemnified Party's
reckless disregard of obligations or duties (i) under this Agreement, or (ii) to
AVIF or AIM.
(c) Neither G-WL&A nor its designated affiliates shall be liable under
this Section 12.1 with respect to any action against an Indemnified Party unless
AVIF or AIM shall have notified G-WL&A and its designated affiliates 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 G-WL&A and its
designated affiliates of any such action shall not relieve G-WL&A and its
designated affiliates 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, G-WL&A and its designated affiliates 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 G-WL&A or its designated affiliates to
such Indemnified Party of G-WL&A's or its designated affiliates' election to
assume the defense thereof, the Indemnified Party will cooperate fully with
G-WL&A and its designated affiliates and shall bear the fees and expenses of any
additional counsel retained by it, and neither LIFE COMPANY nor its designated
affiliates 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 G-WL&A 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 G-WL&A and its
respective affiliates, and each person, if any, who controls G-WL&A or its
respective affiliates within the meaning of Section 15 of the 1933 Act and each
of their respective trustees and officers, (collectively, the "Indemnified
Parties" for purposes of this Section 12.2) against any and all losses, claims,
damages, liabilities (including amounts paid in settlement with the written
consent of AVIF and/or AIM) or actions in respect thereof (including, to the
extent reasonable, legal and other expenses), to which the Indemnified Parties
may become subject under any statute, regulation, at common law, or otherwise;
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 furnished to AVIF or its affiliates by
or on behalf of G-WL&A, or its 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, AIM
or their affiliates and on which such persons have
reasonably relied) or the negligent, illegal or
fraudulent conduct of AVIF, AIM or their affiliates or
persons under their control (including, without
limitation, their employees and "persons associated
with a member" as that term is defined in Section (q)
of Article I of the NASD By-Laws), in connection with
the sale or distribution of AVIF Shares; or
(iii) arise out of or are based upon any untrue statement or
alleged untrue statement of any material fact contained in
any Account's 1933 Act registration statement, any Account
Prospectus, sales literature or advertising covering the
Contracts, or any amendment or supplement to any of the
foregoing, or the omission or alleged omission to state
therein a material fact required to be stated therein or
necessary to make the statements therein not misleading,
if such statement or omission was made in reliance upon
and in conformity with information furnished to G-WL&A or
its respective affiliates by or on behalf of AVIF or AIM
for use in any Account's 1933 Act registration statement,
any Account Prospectus, sales literature or advertising
covering the Contracts, or any amendment or supplement to
any of the foregoing; or
(iv) arise as a result of any failure by AVIF to perform the
obligations, provide the services and furnish the
materials required of it under the terms of this
Agreement, or any material breach of any representation
and/or warranty made by AVIF in this Agreement or arise
out of or result from any other material breach of this
Agreement by AVIF.
(b) The parties agree that the foregoing indemnification by AVIF shall
not apply to any acts or omissions of AIM. Except to the extent provided in
Sections 12.2(c), 12.2(d) and 12.2(e) hereof, AVIF and AIM agree to indemnify
and hold harmless the Indemnified Parties from and against any and all losses,
claims, damages, liabilities (including amounts paid in settlement thereof with,
the written consent of AVIF and/or AIM) or actions in respect thereof
(including, to the extent reasonable, legal and other expenses) to which the
Indemnified Parties may become subject directly or indirectly under any statute,
at common law or otherwise, insofar as such losses, claims, damages, liabilities
or actions directly or indirectly result from or arise out of the failure of any
Fund to operate as a regulated investment company in compliance with (i)
Subchapter M of the Code and regulations thereunder, or (ii) Section 817(h) of
the Code and regulations thereunder, including, without limitation, any income
taxes and related penalties, rescission charges, liability under state law to
Participants asserting liability against G-WL&A 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 G-WL&A of Shares of another investment company
or portfolio for those of any adversely affected Fund as a funding medium for
each Account that G-WL&A 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 G-WL&A, UNDERWRITER,
each Account or Participants.
(d) Neither AVIF nor AIM shall be liable under this Section 12.2 with
respect to any action against an Indemnified Party unless the Indemnified Party
shall have notified AVIF and/or AIM in writing within a reasonable time after
the summons or other first legal process giving information of the nature of the
action shall have been served upon such Indemnified Party (or after such
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify AVIF or AIM of any such action shall not relieve
AVIF or AIM from any liability which it may have to the Indemnified Party
against whom such action is brought otherwise than on account of this Section
12.2. Except as otherwise provided herein, in case any such action is brought
against an Indemnified Party, AVIF and/or AIM will be entitled to participate,
at its own expense, in the defense of such action and also shall be entitled to
assume the defense thereof (which shall include, without limitation, the conduct
of any ruling request and closing agreement or other settlement proceeding with
the IRS), with counsel approved by the Indemnified Party named in the action,
which approval shall not be unreasonably withheld. After notice from AVIF and/or
AIM to such Indemnified Party of AVIF's or AIM's election to assume the defense
thereof, the Indemnified Party will cooperate fully with AVIF and AIM and shall
bear the fees and expenses of any additional counsel retained by it, and AVIF
and AIM will not be liable to such Indemnified Party under this Agreement for
any legal or other expenses subsequently incurred by such Indemnified Party
independently in connection with the defense thereof, other than reasonable
costs of investigation.
(e) In no event shall AVIF or AIM be liable under the indemnification
provisions contained in this Agreement to any individual or entity, including,
without limitation, G-WL&A 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 G-WL&A or its designated affiliates hereunder
or by any other Participating Insurance Company under an agreement containing
substantially similar representations, warranties and covenants; (ii) the
failure by G-WL&A or any other 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 G-WL&A or any other 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 Delaware law, without regard for that state's
principles of conflict of laws.
Section 14. Execution in Counterparts
This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together will constitute one and the same
instrument.
Section 15. Severability
If any provision of this Agreement is held or made invalid by a court
decision, statute, rule or otherwise, the remainder of this Agreement will not
be affected thereby.
Section 16. Rights Cumulative
The rights, remedies and obligations contained in this Agreement are
cumulative and are in addition to any and all rights, remedies and obligations,
at law or in equity, that the Parties are entitled to under federal and state
laws.
Section 17. Headings
The Table of Contents and headings used in this Agreement are for
purposes of reference only and shall not limit or define the meaning of the
provisions of this Agreement.
Section 18. Confidentiality
AVIF acknowledges that the identities of the customers of G-WL&A or any
of its affiliates (collectively, the "G-WL&A 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 G-WL&A
Protected Parties or any of their employees or agents in connection with
G-WL&A's performance of its duties under this Agreement are the valuable
property of the G-WL&A Protected Parties. AVIF agrees that if it comes into
possession of any list or compilation of the identities of or other information
about the G-WL&A Protected Parties' customers, or any other information or
property of the G-WL&A Protected Parties, other than such information as may be
independently developed or compiled by AVIF from information supplied to it by
the G-WL&A Protected Parties' customers who also maintain accounts separate from
those Accounts registered by G-WL&A 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 G-WL&A's
prior written consent; or (b) as required by law or judicial process. G-WL&A
acknowledges that the identities of the customers of AVIF or any of its
affiliates (collectively, the "AVIF Protected Parties" for purposes of this
Section 18), information maintained regarding those customers, and all computer
programs and procedures or other information developed by the AVIF Protected
Parties or any of their employees or agents in connection with AVIF's
performance of its duties under this Agreement are the valuable property of the
AVIF Protected Parties. G-WL&A 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 G-WL&A from information supplied to it by the AVIF Protected
Parties' customers who also maintain accounts directly with G-WL&A, G-WL&A 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) Except as may otherwise be provided in a License Agreement among A I
M Management Group Inc., G-WL&A or its designated affiliates, neither G-WL&A nor
its designated affiliates or any of their respective affiliates, shall use any
trademark, trade name, service xxxx or logo of AVIF, AIM or any of their
respective affiliates, or any variation of any such trademark, trade name,
service xxxx or logo, without AVIF's or AIM's prior written consent, the
granting of which shall be at AVIF's or AIM's sole option.
(b) Except as otherwise expressly provided in this Agreement, neither
AVIF, its investment adviser, its principal underwriter, or any affiliates
thereof shall use any trademark, trade name, service xxxx or logo of G-WL&A or
any of its affiliates, or any variation of any such trademark, trade name,
service xxxx or logo, without G-WL&A's prior written consent, the granting of
which shall be at G-WL&A's sole option.
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.
Section 21. Amendments; Need For
No provision of this Agreement may be amended or modified in any manner
except by mutual written agreement executed by all parties hereto. The Parties
shall, from time to time, review this Agreement to determine the extent to which
an amendment thereto may be necessary or appropriate to reflect changes in
applicable law or regulation, and shall cooperate in implementing any such
amendment in a timely manner, it being understood and agreed to that no such
amendment shall take effect except upon mutual written agreement of all Parties
as stated above.
Section 22. Force Majeure
Each Party shall be excused from the performance of any of its
obligations to the other where such nonperformance is occasioned by any event
beyond its control which shall include, without limitation, any applicable
order, rule or regulation of any federal, state or local body, agency or
instrumentality with jurisdiction, work stoppage, accident, natural disaster,
war, acts of terrorism or civil disorder, provided that the Party so excused
shall use all reasonable efforts to minimize its nonperformance and overcome,
remedy, cure or remove such event as soon as is reasonably practicable, and such
performance shall be excused only for so long as, in any given case, the force
or circumstances making performance impossible shall exist.
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
Attest: By:
---------------------- ---------------------------------------
Name: Name:
------------------------ ---------------------------------------
Title: Title:
----------------------- ---------------------------------------
A I M DISTRIBUTORS, INC.
Attest: By:
---------------------- --------------------------------------------
Name: Name:
------------------------ -------------------------------------
Title: Title:
----------------------- ------------------------------------
GREAT-WEST LIFE & ANNUITY INSURANCE
COMPANY, as Underwriter and on behalf
of itself and its separate accounts and
its Affiliate
Attest: _______________________ By: ___________________________________
Name: _______________________ Name: ___________________________________
Title: _______________________ Title: ___________________________________
SCHEDULE A
FUNDS AVAILABLE UNDER THE CONTRACTS
AIM V.I. Aggressive Growth Fund AIM V.I. Money Market Fund
AIM V.I. Balanced Fund AIM V.I. Premier Equity Fund
AIM V.I. Basic Value Fund AIM V.I. Real Estate Fund
AIM V.I. Blue Chip Fund AIM V.I. Small Cap Equity Fund
AIM V.I. Capital Appreciation Fund INVESCO VIF - Core Equity Fund (name
AIM V.I. Capital Development Fund will be changed to AIM V.I. Core Stock
AIM V.I. Core Equity Fund Fund on October 15, 2004)
AIM V.I. Dent Demographic Trends Fund INVESCO VIF - Dynamics Fund (name will
AIM V.I. Diversified Income Fund be changed to AIM V.I. Dynamics Fund on
AIM V.I. Government Securities Fund October 15, 2004)
AIM V.I. Growth Fund INVESCO VIF - Financial Services Fund
AIM V.I. High Yield Fund (name will be changed to AIM V.I.
AIM V.I. International Growth Fund Financial Services Fund on October 15,
AIM V.I. Large Cap Growth Fund 2004)
AIM V.I. Mid Cap Core Equity Fund INVESCO VIF - Health Sciences Fund
(name will be changed to AIM V.I.
Health Sciences Fund on October
15, 2004) INVESCO VIF - Leisure
Fund (name will be changed to AIM
V.I. Leisure Fund on October 15,
2004) INVESCO VIF - Small Company
Growth Fund (name will be changed
to AIM V.I. Small Company Growth
Fund on October 15, 2004) INVESCO
VIF - Technology Fund (name will
be changed to AIM V.I. Technology
Fund on October 15, 2004) INVESCO
VIF - Total Return Fund (name
will be changed to AIM V.I. Total
Return Fund on October 15, 2004)
INVESCO VIF - Utilities Fund
(name will be changed to AIM V.I.
Utilities Fund on October 15,
2004)
SEPARATE ACCOUNTS UTILIZING THE FUNDS
CONTRACTS FORM NUMBERS
Future Funds Series Account GTDAMF92 Vol
GTGAMF92 ER
GTMSG184-1
XXXXXX000
COLI VUL - 2 Series Account J355
COLI VUL - 7 Series Account J350
SCHEDULE B
AIM's PRICING ERROR POLICIES
Determination of Materiality
In the event that AIM discovers an error in the calculation of the Fund's net
asset value, the following policies will apply:
If the amount of the error is less than $.01 per share, it is considered
immaterial and no adjustments are made.
If the amount of the error is $.01 per share or more, then the following
thresholds are applied:
a. If the amount of the difference in the erroneous net asset value
and the correct net asset value is less than .5% of the correct
net asset value, AIM will reimburse the affected Fund to the
extent of any loss resulting from the error. No other adjustments
shall be made.
b. If the amount of the difference in the erroneous net asset value
and the correct net asset value is .5% of the correct net asset
value or greater, then AIM will determine the impact of the error
to the affected Fund and shall reimburse such Fund (and/or
G-WL&A, as appropriate, such as in the event that the error was
not discovered until after G-WL&A processed transactions using
the erroneous net asset value) to the extent of any loss
resulting from the error. To the extent that an overstatement of
net asset value per share is detected quickly and G-WL&A has not
mailed redemption checks to Participants, G-WL&A and AIM agree to
examine the extent of the error to determine the feasibility of
reprocessing such redemption transaction (for purposes of
reimbursing the Fund to the extent of any such overpayment). In
no event shall G-WL&A be liable to Participants for any such
adjustments or underpayment amounts unless the error is due to
G-WL&A's own willful misfeasance, bad faith, or gross negligence.
A pricing error within categories (a) or (b) above shall be
deemed to be "materially incorrect" or constitute a "material
error" for purposes of this Agreement.
Reprocessing Cost Reimbursement
To the extent a reprocessing of Participant transactions is required pursuant to
paragraph (b), above, AIM shall reimburse G-WL&A for G-WL&A's reprocessing costs
in an amount not to exceed $1.00 per contract affected by $10 or more.
SCHEDULE C
EXPENSE ALLOCATIONS
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G-WL&A AVIF / AIM
---------------------------------------------------- ------------------------------------------------
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preparing and filing the Account's registration Preparing and filing the Fund's registration
statement statement
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
text composition for Account prospectuses and text composition for Fund prospectuses and
supplements supplements
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
text alterations of prospectuses (Account) and text alterations of prospectuses (Fund) and
supplements (Account) supplements (Fund)
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
printing Account and Fund prospectuses and a camera ready Fund prospectus
supplements
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
text composition and printing Account SAIs text composition and printing Fund SAIs
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
mailing and distributing Account SAIs to policy mailing and distributing Fund
SAIs to policy owners upon request by policy owners owners upon request by
policy owners
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
mailing and distributing prospectuses (Account and Fund) and supplements
(Account and Fund) to policy owners of record as required by Federal Securities
Laws and to prospective purchasers
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
text composition (Account), printing, mailing, and text composition of annual and semi-annual
distributing annual and semi-annual reports for reports (Fund)
Account (Fund and Account as, applicable)
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
text composition, printing, mailing, distributing, text composition, printing, mailing, distribuing
and tabulation of proxy statements and voting and tabulation of proxy statements and voting
instruction solicitation materials to policy instruction solicitation materials to policy
owners with respect to proxies related to the owners with respect to the Fund
Account
---------------------------------------------------- ------------------------------------------------
---------------------------------------------------- ------------------------------------------------
If required by G-WLA: preparation, printing and distributing sales material and
advertising relating to the Accounts, insofar as such materials relate to the
Contracts and filing such materials with and obtaining approval from, the SEC,
the NASD, any state insurance regulatory authority, and any other appropriate
regulatory authority, to the extent required
==================================================== ================================================
