PARTICIPATION AGREEMENT
Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS,
OPPENHEIMERFUNDS, INC.
and
THE UNION CENTRAL LIFE INSURANCE COMPANY
THIS AGREEMENT (the "Agreement"), made and entered into as
of the 1st day of May, 2000 by and among The Union Central Life
Insurance Company (hereinafter the "Company"), on its own behalf
and on behalf of each separate account of the Company named in
Schedule I to this Agreement, as may be amended from time to time
by mutual consent (hereinafter collectively the "Accounts"),
Xxxxxxxxxxx Variable Account Funds (hereinafter the "Fund") and
OppenheimerFunds, Inc. (hereinafter the "Adviser").
WHEREAS, the Fund is an open-end management investment
company and is available to act as the investment vehicle for
separate accounts now in existence or to be established at any
date hereafter for variable life insurance policies, variable
annuity contracts and other tax-deferred products (collectively,
the "Variable Insurance Products") offered by insurance companies
(hereinafter "Participating Insurance Companies");
WHEREAS, the beneficial interest in the Fund is divided into
several series of shares, each designated a "Portfolio", and each
representing the interests in a particular managed pool of
securities and other assets;
WHEREAS, the Fund has obtained an order from the Securities
and Exchange Commission (the "SEC"), dated July 16, 1986 (File
No. 812-6324) granting Participating Insurance Companies and
variable annuity and variable life insurance separate accounts
exemptions from the provisions of sections 9(a), 13(a), 15(a),
and 15(b) of the Investment Company Act of 1940, as amended,
(hereinafter the "1940 Act") and Rules 6e-2(b)(I 5) and 6e-
3(T)(b)(I 5) thereunder, to the extent necessary to permit shares
of the Fund to be sold to and held by variable annuity and
variable life insurance separate accounts of both affiliated and
unaffiliated life insurance companies (hereinafter the "Mixed and
Shared Funding Exemptive Order")
WHEREAS, the Fund is registered as an open-end management
investment company under the 1940 Act and its shares are
registered under the Securities Act of 1933, as amended
(hereinafter the " 1933 Act");
WHEREAS, the Adviser is duly registered as an investment
adviser under the federal Investment Advisers Act of 1940;
WHEREAS, the Company has registered or will register certain
variable annuity and/or life insurance contracts under the 1933
Act (hereinafter "Contracts") (unless an exemption from
registration is available);
WHEREAS, the Accounts are or will be duly organized, validly
existing segregated asset accounts, established by resolution of
the Board of Directors of the Company, to set aside and invest
assets attributable to the aforesaid variable contracts (the
Separate Account(s) covered by the Agreement are specified in
Schedule I attached hereto, as may be modified by mutual consent
from time to time);
WHEREAS, the Company has registered or will register the
Accounts as unit investment trusts under the 1940 Act (unless an
exemption from registration is available);
WHEREAS, to the extent permitted by applicable insurance
laws and regulations, the Company intends to purchase shares in
the Portfolios (the Portfolios covered by this Agreement are
specified in Schedule 2 attached hereto as may be modified by
mutual consent from time to time), on
behalf of the Accounts to fund the Contracts, and the Fund is
authorized to sell such shares to unit investment trusts such as
the Accounts at net asset value; and
NOW, THEREFORE, in consideration of their mutual promises,
the Fund, the Adviser and the Company agree as follows:
ARTICLE 1. Purchase and Redemption of Fund Shares
1.1 The Fund agrees to sell to the Company those shares of
the Fund which the Company orders on behalf of the Accounts,
executing such orders on a daily basis at the net asset value
next computed after receipt by the Fund or its designee of the
order for the shares of the Fund. For purposes of this Section 1.
1, the Company shall be the designee of the Fund for receipt of
such orders from each Account and receipt by such designee shall
constitute receipt by the Fund; provided that the Fund receives
written (or facsimile) notice of such order by 9:30 a.m. New York
time on the next following Business Day. "Business Day" shall
mean any day on which the New York Stock Exchange is open for
trading and on which the Fund calculates its net asset value
pursuant to the rules of the SEC.
1.2. The Company shall pay for Fund shares by 2:00 P.M. New
York time on the next Business Day after it places an order to
purchase Fund shares in accordance with Section I - I hereof.
Payment shall be in federal funds transmitted by wire or by a
credit for any shares redeemed.
1.3. The Fund agrees to make Fund shares available for
purchase by the Company for their separate Accounts listed in
Schedule I on those days on which the Fund calculates its net
asset value pursuant to rules of the SEC; provided, however, that
the Board of Trustees of the Fund (hereinafter the "Trustees")
may refuse to sell shares of any Portfolio to any person, or
suspend or terminate the offering of shares of any Portfolio if
such action is required by law or by regulatory authorities
having jurisdiction or is, 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, in the best
interests of the shareholders of any Portfolio (including without
limitation purchase orders that individually or together with
other contemporaneous orders represent large transactions in
shares of any Portfolio held for a relatively brief period of
time). Such shares shall be purchased at the applicable net asset
value per share, increased by any initial sales charge, if the
Fund's prospectus then in effect imposes such a charge on such
purchases.
1.4. The Fund agrees to redeem, upon the Company's request,
any full or fractional shares of the Fund held by the Company,
executing such requests on a daily basis at the net asset value
next computed after receipt by the Fund or its designee of the
request for redemption, reduced by any redemption fee or deferred
sales charge, if the Fund's prospectus in effect as of the date
of such redemption imposes such a fee or charge on such
redemptions. For purposes of this Section 1.4, the Company shall
be the designee of the Fund for receipt of requests for
redemption and receipt by such designee shall constitute receipt
by the Fund; provided that the Fund receives written (or
facsimile) notice of such request for redemption by 9:30 a.m. New
York time on the next following Business Day; however the Company
undertakes to use its best efforts to provide such notice to the
Fund by no later than 9:00 A.M. New York time on the next
following Business Day. Payment shall be made within the time
period specified in the Fund's prospectus or statement of
additional information, provided, however, that if the Fund does
not pay for the Fund shares that are redeemed on the next
Business Day after a request to redeem shares is made, then the
Fund shall apply any such delay in redemptions uniformly to all
holders of shares of that Portfolio. Payment shall be in federal
funds transmitted by wire to the Company's bank accounts as
designated by the Company in writing from time to time.
1.5. The Company agrees to purchase and redeem the shares of
the Portfolios named in Schedule 2 offered by the then current
prospectus and statement of additional information of the Fund in
accordance with the provisions of such prospectus and statement
of additional information. The Company shall not permit any
person other than a Contract owner to give instructions to the
Company which would require the Company to redeem or exchange
shares of the Fund.
ARTICLE II. Representations and Warranties
2.1. The Company represents and warrants that the securities
deemed to be issued by the Accounts under the Contracts are or
will be registered under the 1933 Act (unless an exemption from
registration is available) and, that the Contracts will be
issued, offered and sold in compliance in all material respects
with all applicable federal and state laws and regulations,
including without limitation state insurance suitability
requirements and National Association of Securities Dealers, Inc.
("NASD") conduct rules. The Company further represents and
warrants that it is an insurance company duly organized and in
good standing under applicable state law and that it has legally
and validly established the Accounts prior to the issuance or
sale of units thereof as a segregated asset account and has
registered the Accounts as unit investment trusts in accordance
with the provisions of the 1940 Act (unless an exemption from
registration is available) to serve as segregated investment
accounts for the Contracts, and that it will maintain such
registration for so long as any Contracts are outstanding or
until registration is no longer required under federal and state
securities laws. The Company shall amend the registration
statement under the 1933 Act for the Contracts and the
registration statement under the 1940 Act for the Accounts from
time to time as required in order to effect the continuous
offering of the Contracts or as may otherwise be required by
applicable law. The Company shall register and qualify the
Contracts for sale in accordance with the securities laws of the
various states only if and to the extent deemed necessary by the
Company.
2.2. The Company represents and warrants, for purposes other
than diversification under Section 817 of the Internal Revenue
Code of 1986 as amended (the "Code"), that the Contracts are
currently and at the time of issuance will be treated as life
insurance or annuity contracts under applicable provisions of the
Code and the regulations issued thereunder, and that it will make
every effort to maintain such treatment and that it will notify
the Fund and the Adviser immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future. In
addition, the Company represents and warrants that the Accounts
are a "segregated asset accounts" and that interests in the
Accounts 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 issued
thereunder (and any amendments or other modifications to such
section or such regulations (and any revenue rulings, revenue
procedures, notices and other published announcements of the
Internal Revenue Service interpreting these provisions). The
Company shall continue to meet such definitional requirements,
and it will notify the Fund and the Adviser 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. The Company represents and warrants that it will not
purchase Fund shares with assets derived from tax-qualified
retirement plans except, indirectly, through Contracts purchased
in connection with such plans.
2.3. Subject to Section 2.5 hereof, the Company represents
and warrants that the Contracts are currently and at the time of
issuance will be treated as life insurance or annuity contracts
under applicable provisions of the Code and that it will make
every effort to maintain such treatment and that it will notify
the Fund and the Adviser immediately upon having a reasonable
basis for believing that the Contracts have ceased to be so
treated or that they might not be so treated in the future.
2.4. The Fund represents and warrants that Fund shares sold
pursuant to this Agreement shall be registered under the 1933 Act
and duly authorized for issuance and sold in accordance with
applicable state and federal law and that the Fund is and shall
remain registered under the 1940 Act for as long as the Fund
shares are sold. The Fund shall amend the registration statement
for its shares under the 1933 Act and the 1940 Act from time to
time as required in order to effect the continuous offering of
its shares. The Fund shall register and qualify the shares for
sale in accordance with the laws of the various states only if
and to the extent deemed advisable by the Fund.
2.5. The Fund will at all times invest money from the
Contracts in such a manner as to ensure that the Contracts will
be treated as variable contracts under the Code and the
regulations issued thereunder. Without limiting the scope of the
foregoing, the Fund represents and warrants that each Portfolio
of the Fund will comply with Section 817(h) of the Code and
Treasury Regulation 1.817-5, relating to the diversification
requirements for variable annuity, endowment, or life insurance
contracts and any amendments or other modifications to such
Section or Regulations (and any revenue rulings, revenue
procedures, notices, and other published announcements of the
Internal Revenue Service interpreting these provisions). In the
event the Fund should fail to so qualify, it will take all
reasonable steps (a) to notify the Company of such breach and (b)
to resume compliance with such diversification requirement within
the grace period afforded by Treasury Regulation 1.817.5. The
Fund and Adviser represent that each Portfolio is qualified as a
Regulated Investment Company under Subchapter M of the Code and
that it will maintain such qualification (under Subchapter M or
any successor provision), and that it will notify the Company
immediately upon having a reasonable basis for believing that it
has ceased to so qualify or that it might not so qualify in the
future.
2.6. If the Contracts purchase shares of a series and class
of the Fund that have adopted a plan under Rule 12b- I under the
1940 Act to finance distribution expenses (a "12b- I Plan"), the
Company agrees to provide the Trustees any information as may be
reasonably necessary for the Trustees to review the Fund's 12b- I
Plan or Plans.
2.7. The Fund represents that it is lawfully organized and
validly existing under the laws of the Commonwealth of
Massachusetts and that it does and will comply with applicable
provisions of the 0000 Xxx.
2.8. The Adviser represents and warrants that it is and will
remain duly registered under all applicable federal and state
securities laws and that it shall perform its obligations for the
Fund in compliance with any applicable state and federal
securities laws.
2.9. The Fund and Adviser each represent and warrant that
all of its respective Directors, Trustees, officers, employees,
investment advisers, and transfer agent of the Fund are and shall
continue to be at all times covered by a blanket fidelity bond
(which may, at the Fund's election, be in the form of a joint
insured bond) or similar coverage for the benefit of the Fund in
an amount not less than the minimal coverage as required
currently by Section 17(g) and Rule 17g- I of the 1940 Act or
related provisions as may be promulgated from time to time. The
aforesaid Bond shall include coverage for larceny and
embezzlement and shall be issued by a reputable insurance
company. The Adviser agrees to make all reasonable efforts to see
that this bond or another bond containing these provisions is
always in effect, and agrees to notify the Company in the event
that such coverage no longer applies.
2.10. The Company represents and warrants that all of its
directors, officers, employees, agents, investment advisers, and
other individuals and entities dealing with the money and/or
securities of the Fund are covered by a blanket fidelity bond or
similar coverage in an amount not less than the equivalent of
U.S. $10 million. The aforesaid bond shall include coverage for
larceny and embezzlement and shall be issued by a reputable
insurance company. The Company agrees that any amount received
under such bond in connection with claims that derive from
arrangements described in this Agreement will be paid by the
Company for the benefit of the Fund. The Company agrees to make
all reasonable efforts to see that this bond or another bond
containing these provisions is always in effect, and agrees to
notify the Fund and the Adviser in the event that such coverage
no longer applies.
2.11. The Fund and the Adviser represent that they will make
a good faith effort to (a) materially comply with any applicable
state insurance law restrictions with which the Fund must comply
to perform its obligations under this Agreement, provided,
however, that the Company provide specific notification of such
restrictions to the Fund and the Adviser in advance and in
writing,; and (b) furnish information to the Company about the
Fund not otherwise available to the Company which is required by
state insurance law to enable the Company to obtain the authority
needed to issue the Contracts in any applicable state.
ARTICLE III. Sales Material, Prospectuses and Other Reports
3.1. The Company shall furnish, or shall cause to be
furnished, to the Fund or its designee, each piece of sales
literature or other promotional material in which the Fund or the
Adviser is named, at least ten Business Days prior to its use. No
such material shall be used if the or its designee reasonably
object to such use within ten Business Days after receipt of such
material. "Business Day" shall mean any day in which the New York
Stock Exchange is open for trading and in which the Fund
calculates its net asset value pursuant to the rules of the
Securities and Exchange Commission.
3.2. The Company shall not give any information or make any
representations or statements on behalf of the Fund or concerning
the Fund in connection with the sale of the Contracts other than
the information or representations contained in the registration
statement or prospectus for the Fund shares, as such registration
statement and prospectus may be amended or supplemented from time
to time, or in reports or proxy statements for the Fund, or in
sale literature or other promotional material approved by the
Fund or its designee, except with the permission of the Fund.
3.3. For purposes of this Article III, the phrase "sales
literature or other promotional material" means 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 billboard or
electronic media), and sales literature (such as brochures,
circulars, market letters and form letters), distributed or made
generally available to customers or the public.
3.4. At least annually, the Fund or the Adviser shall
provide the Company, free of charge, with as many copies of the
current prospectuses for the Portfolios as the Company may
reasonably request for distribution to existing Contract owners
whose Contracts are funded by such Portfolios. The Fund or the
Adviser shall provide the Company, at the Company's expense, with
as many copies of the current prospectuses for the Portfolios as
the Company may reasonably request for distribution to
prospective purchasers of Contracts. If requested by the Company
in lieu thereof, the Fund shall provide such documentation and
other assistance as is reasonably necessary in order for the
parties hereto once each year (or more frequently if the
prospectuses for the Portfolios are supplemented or amended) to
have the prospectus for the Contracts and the prospectuses for
the Portfolios printed together in one document. With respect to
any prospectuses for the Portfolios that are printed in
combination with any one or more Contract prospectus (the
"Prospectus Booklet"), the costs of printing Prospectus Booklets
for distribution to existing Contract owners shall be prorated to
the Fund based on (a) the ratio of the number of pages of the
prospectuses included for the Portfolios in the Prospectus
Booklets to the number of pages in the Prospectus Booklet as a
whole; and (b) the ratio of the number of Contract owners with
Contract value allocated to tile Fund to the total number of
Contract owners; provided, however, that the Company shall bear
all printing expenses of such combined documents where used for
distribution to prospective purchasers or to owners of existing
Contracts not funded by the Portfolios.
3.5. The Fund or the Adviser, at its expense, shall provide
the Company with copies of the Fund's communications to
shareholders and with copies of the Fund's proxy material and
semi-annual and annual reports to shareholders (or may, at the
Fund or the Adviser's option, reimburse the Company for the pro
rata cost of printing such materials) in such quantities as the
Company shall reasonably require, for distributing to Contract
owners, and shall reimburse the Company for its out-of-pocket
costs in distributing proxy material (but not reports or other
communications to shareholders). Upon request, the Adviser shall
be permitted to review and approve the typeset form of such proxy
material, communications and shareholder reports prior to such
printing.
3.6. In the event a meeting of shareholders of the Fund (or
any Portfolio) is called by the Trustees, the Company shall:
(i) solicit voting instructions from Contract
owners;
(ii) vote the Portfolio(s) shares held in the
Account in accordance with instructions
received from Contract owners;
(iii) vote Portfolio shares held in the Account
for which no instructions have been
received, as well as Portfolio shares held
by the Company, in the same proportion as
Portfolio(s) shares for which instructions
have been received from Contract owners, so
long as and to the extent that the SEC
continues to interpret the 1940 Act to
require pass-through voting privileges
for variable contract owners; and
(iv) take responsibility for assuring that the
Accounts calculate voting privileges in a
manner consistent with other Participating
Insurance Companies. The Fund and Adviser
agree to assist the Company and the other
Participating Insurance Companies in
carrying out this responsibility.
ARTICLE IV. Fees and Expenses
4.1. The Fund and Adviser shall pay no fee or other
compensation to the Company under this agreement, and the Company
shall pay no fee or other compensation to the Fund or Adviser,
except as provided herein.
4.2. All expenses incident to performance by each party of
its respective duties under this Agreement shall be paid by that
party. The Fund shall see to it that all its shares are
registered and authorized for issuance in accordance with
applicable federal law and, if and to the extent advisable by the
Fund, in accordance with applicable state laws prior to their
sale. The Fund shall bear the expenses for the cost of
registration and qualification of the Fund's shares, preparation
and filing of the Fund's prospectus and registration statement,
proxy materials and reports, and the preparation of all
statements and notices required by any federal or state law.
4.3. In the event the Fund adds one or more additional
Portfolios and the parties desire to make such Portfolios
available to the respective Contract owners as an underlying
investment medium, a new Schedule 2 or an amendment to this
Agreement shall be executed by the parties authorizing the
issuance of shares of the new Portfolios to the particular
Accounts. The amendment may also provide for the sharing of
expenses for the establishment of new Portfolios among
Participating Insurance Companies desiring to invest in such
Portfolios and the provision of funds as the initial investment
in the new Portfolios.
ARTICLE V. Potential Conflicts
5.1. The Board of Trustees of the Fund (the "Board") will
monitor the Fund for the existence of any material irreconcilable
conflict between the interests of the Contract owners of all
separate accounts investing in the Fund. An irreconcilable
material conflict may arise for a variety of reasons, including:
(a) an action by any state insurance 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
Portfolio are being managed; (e) a difference in voting
instructions given by participating insurance companies or by
variable annuity contract and variable life insurance contract
owners; or (f) a decision by an insurer to disregard the voting
instructions of Contract owners. The Board shall promptly inform
the Company if it determines that an irreconcilable material
conflict exists and the implications thereof.
5.2. The Company has reviewed a copy of the Mixed and Shared
Funding Exemptive Order, and in particular, has reviewed the
conditions to the requested relief set forth therein. The Company
agrees to be bound by the responsibilities of a participating
insurance company as set forth in the Mixed and Shared Funding
Exemptive Order, including without limitation the requirement
that the Company report any potential or existing conflicts of
which it is aware to the Board. The Company will assist the Board
in carrying out its responsibilities in monitoring such conflicts
under the Mixed and Shared Funding Exemptive Order, by providing
the Board in a timely manner with all information reasonably
necessary for the Board to consider any issues raised. This
includes, but is not limited to, an obligation by the Company to
inform the Board whenever Contract owner voting instructions are
disregarded and by confirming in writing, at the Fund's request,
that the Company are unaware of any such potential or existing
material irreconcilable conflicts.
5.3. If it is determined by a majority of the Board, or a
majority of its disinterested Trustees, that a material
irreconcilable conflict exists, the Company shall, at its 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 irreconcilable material
conflict, up to and including: (1) withdrawing the assets
allocable to some or all of the separate accounts from the Fund
or any Portfolio and reinvesting such assets in a different
investment medium, including (but not limited to) another
Portfolio of the Fund, or submitting the question whether such
segregation should be implemented to a vote of all affected
Contract owners and, as appropriate, segregating the assets of
any appropriate group (Le., annuity contract owners, life
insurance contract owners, or variable contract owners of one or
more Participating Insurance Companies) that votes in favor of
such segregation, or offering to the affected Contract owners the
option of making such a change; and (2) establishing a new
registered management investment company or managed separate
accounts. The Company's obligations under this Section 5.3 shall
not depend on whether other affected participating insurance
companies fulfill a similar obligation,
5.4. If a material irreconcilable conflict arises because of
a decision by the Company to disregard Contract owner voting
instructions and that decision could conflict with the majority
of Contract owner instructions, the Company may be required, at
the Fund's election, to withdraw the Accounts' investment in the
Fund and terminate this Agreement; provided, however, that such
withdrawal and termination shall be limited to the extent
required by the foregoing material irreconcilable conflict as
determined by a majority of the disinterested members of the
Board. Any such withdrawal and termination must take place within
six (6) months after the Fund gives written notice that this
provision is being implemented, and until the end of the six
month period the Fund shall continue to accept and implement
orders by the Company for the purchase and redemption of shares
of the Fund.
5.5. If a material irreconcilable conflict arises because a
particular state insurance regulator's decision applicable to the
Company conflicts with the majority of other state regulators,
then the Company will withdraw the Accounts' investment in the
Fund and terminate this Agreement within six months after the
Board informs the Company in writing that it has determined that
such decision has created an irreconcilable material conflict;
provided, however, that such withdrawal and termination shall be
limited to the extent required by the foregoing material
irreconcilable conflict as determined by a majority of the
disinterested members of the Board. Until the end of the
foregoing six month period, the Fund shall continue to accept and
implement orders by the Company for the purchase and redemption
of shares of the Fund, subject to applicable regulatory
limitation.
5.6. For purposes of Sections 5.3 through 5.6 of this
Agreement, a majority of the disinterested members of the Board
shall determine whether any proposed action adequately remedies
any irreconcilable material conflict, but in no event will the
Fund be required to establish a new funding medium for the
Contracts. The Company shall not be required by Section 5.3 to
establish a new funding medium for Contracts if an offer to do so
has been declined by vote of a majority of Contract owners
materially adversely affected by the irreconcilable material
conflict. In the event that the Board determines that any
proposed action does not adequately remedy any irreconcilable
material conflict, then the Company will withdraw the particular
Accounts' investment in the Fund and terminate this Agreement
within six (6) months after the Board informs the Company in
writing of the foregoing determination, provided, however, that
such withdrawal and termination shall be limited to the extent
required by any such material irreconcilable conflict as
determined by a majority of the disinterested members of the
Board.
ARTICLE VI. Applicable Law
6.1 This Agreement shall be construed and the provisions
hereof interpreted under and in accordance with the laws of the
State of New York.
6.2. This Agreement shall be subject to the provisions of
the 1933 Act, the Securities Exchange Act of 1934 and the 1940
Act, and the rules and regulations and rulings thereunder,
including such exemption from those statutes, rules and
regulations as the Securities and Exchange Commission may grant
(including, but not limited to, the Mixed and Shared Funding
Exemptive Order) and the terms hereof shall be interpreted and
construed in accordance therewith, provided however that the term
"Registration Statement or Prospectus for the Variable Contracts"
and terms of similar import shall include (i) any offering
circular or similar document and sales literature or other
promotional materials used to offer and/or sell the variable
Contracts in compliance with the private offering exemption in
the 1933 Act and applicable federal and state laws and
regulations, and (ii) the term "Registration Statement" and
"Prospectus" as defined in the 1933 Act.
ARTICLE VII. Termination
7.1 This Agreement shall terminate:
(a) at the option of any party upon six month's
advance written notice to the other parties;
(b) at the option of the Company to the extent that
shares of Portfolios are not reasonably
available to meet the requirements of its
Contracts or are not appropriate funding
vehicles for the Contracts, as determined by
the Company reasonably and in good faith.
Prompt notice of the election to terminate for
such cause and an explanation of such cause
shall be furnished by the Company;
(c) as provided in Article V;
(d) at the option of the Fund or the Adviser upon
institution of formal proceedings against the
Company (or its parent) by the NASD, the SEC,
the insurance commission of any state or any
other regulatory body having jurisdiction over
that party, which would have a material adverse
effect on the Company's ability to perform its
obligations under this Agreement;
(e) at the option of the Company upon institution
of formal proceedings against the Fund or the
Adviser (or its parent) by the NASD, the SEC,
or any state securities or insurance depart-
ment or any other regulatory body having
jurisdiction over that party, which would
have a material adverse effect on the
Adviser's or the Fund's ability to perform
its obligations under this Agreement;
(f) at the option of the Company or the Fund upon
receipt of any necessary regulatory approvals
or the vote of the Contract owners having an
interest in the Account (or any subaccount) to
substitute the shares of another investment
company for the corresponding Portfolio shares
of the Fund in accordance with the terms of
the Contracts for which those Portfolio shares
have been selected to serve as the underlying
investment media. The Company will give 45
days prior written notice to the Fund of the
date of any proposed vote or other action
taken to replace the Fund's shares;
(g) at the option of the Company or the Fund upon
a determination by a majority of the Board, or
a majority of the disinterested Board members,
that an irreconcilable material conflict
exists among the interests of (i) all Contract
owners of variable insurance products of all
separate accounts or (ii) the interests of the
Participating Insurance Companies investing in
the Fund as delineated in Article VII of this
Agreement;
(h) at the option of the Company if the Fund ceases
to qualify as a Regulated Investment Company
under Subchapter M of the Code, or under any
successor or similar provision, or if the
Company reasonably believes that the Fund may
fail to so qualify;
(i) at the option of the Company if the Fund fails
to meet the diversification requirements
specified in section 2.5 hereof or if the
Company reasonably believes that the Fund will
fail to meet such requirements;
(j) at the option of any party to this Agreement,
upon another party's failure to cure a
material breach of any provision of this
Agreement within thirty days after written
notice thereof,
(k) at the option of the Company, if the Company
determines in its sole judgment exercised in
good faith, that either the Fund or the Adviser
has suffered a material adverse change in its
business, operations or financial condition
since the date of this Agreement or is the
subject of material adverse publicity which is
likely to have a material adverse impact upon
the business and operations of the Company;
(l) at the option of the Fund or the Adviser, if
the Fund or Adviser respectively, shall
determine in its sole judgment exercised in
good faith, that the Company has suffered a
material adverse change in its business,
operations or financial condition since the
date of this Agreement or is the subject of
material adverse publicity which is likely
to have a material adverse impact upon the
business and operations of the Fund or the
Adviser; or
(m) subject to the Fund's compliance with Section
2.5 hereof, at the option of the Fund in the
event any of the Contracts are not issued or
sold in accordance with applicable requirements
of federal and/or state law.
7.2. It is understood and agreed that the right of any party
hereto to terminate this Agreement pursuant to Section 7. 1 (a)
may be exercised for cause or for no cause.
ARTICLE VIII. Indemnification
8.1. Indemnification By The Company
(a).The Company agrees to indemnify and hold harmless
the Fund and the Adviser, each member of their Board of Trustees
or Board of Directors, each of their officers and each person, if
any, who controls the Fund within the meaning of Section 15 of
the 1933 Act (collectively, the "Indemnified Parties" for
purposes of this Section 8. 1) against any and all losses,
claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Company) or litigation
(including reasonable legal and other expenses), to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale or acquisition of
the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue
statement or alleged untrue statement of
any material fact contained in the
registration statement, prospectus or
statement of additional information for the
Contracts or contained in sales literature
or other promotional material 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 in light of the circumstances
which they were made; 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
the Company by or on behalf of the Fund or
the Adviser for use in the registration
statement, prospectus or statement of
additional information for the Contracts
or sales literature (or any amendment or
supplement) or otherwise for use in
connection with the sale of the Contracts
or Fund shares; or
(ii) arise out of or as a result of statements
or representations by or on behalf of the
Company (other than statements or
representations contained in the Fund
registration statement, Fund prospectus or
sales literature or other promotional
material of the Fund not supplied by the
Company or persons under its control) or
wrongful conduct of the Company or persons
under its control, with respect to the
sale or distribution of the Contracts or
Fund shares, provided any such statement
or representation or such wrongful conduct
was not made in reliance upon and in
conformity with information furnished in
writing, via fax or via electronic means,
to the Company by or on behalf of the
Advisor or the Fund; or
(iii) arise out of any untrue statement or
alleged untrue statement of a material
fact contained in the Fund registration
statement, Fund prospectus, statement of
additional information or sales literature
or other promotional material of the Fund
or any amendment thereof or supplement
thereto 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 in light of the circum-
stances in which they were made, if such
statement or omission was made in reliance
upon information furnished in writing,
via fax or via electronic means, to the
Fund or the Adviser by or on behalf of
the Company or persons under its control;
or
(iv) arise out of or result from any material
breach of this Agreement by the Company.
except to the extent provided in Sections 8. 1 (b) and 8.3
hereof. This indemnification shall be in addition to any
liability which the Company may otherwise have.
(b) The Company shall not be liable under this
indemnification provision with respect to any losses, claims,
damages, liabilities or litigation to which an Indemnified Party
would otherwise be subject by reason of willful misfeasance, bad
faith, or gross negligence in the performance of such Indemnified
Party's duties or by reason of such Indemnified Party's reckless
disregard of obligations and duties under this Agreement.
8.2. Indemnification by Adviser and Fund
8.2(a)(1). The Adviser agrees to indemnify and hold harmless
the Company and each of its directors and officers and each
person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" for purposes of this Section 8.2) against any and all
losses, claims, damages, liabilities (including amounts paid in
settlement with the written consent of the Adviser) or litigation
(including reasonable legal and other expenses) to which the
Indemnified Parties may become subject under any statute,
regulation, at common law or otherwise, insofar as such losses,
claims, damages, liabilities or expenses (or actions in respect
thereof) or settlements are related to the sale or acquisition of
the Fund's shares or the Contracts and:
(i) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in the
registration statement, prospectus, statement of additional
information or sales literature of the Fund (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 in light of the
circumstances in which they were made; 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 in writing, via fax or via electronic
means, to the Adviser or the Fund by or on behalf of the Company
for use in the Fund registration statement, prospectus or
statement of additional information, or sales literature or other
promotional material for the Contracts or of the Fund; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the Contracts or in the Contract registration
statement, the Contract prospectus, statement of additional
information, or sales literature or other promotional material
for the Contracts not supplied by the Adviser or the Fund or
persons under the control of the Adviser or the Fund
respectively) or wrongful conduct of the Adviser or persons under
its control, with respect to the sale or distribution of the
Contracts, provided any such statement or representation or such
wrongful conduct was not made in reliance upon and in conformity
with information furnished in writing, via fax or via electronic
means, to the Adviser or the Fund by or on behalf of the Company;
or
(iii) arise out of any untrue statement or allegedly
untrue statement of a material fact contained in a registration
statement, prospectus, statement of additional information or
sales literature covering the Contracts (or any amendment thereof
or supplement thereto), or the omission or alleged omission to
state therein a material fact required to be stated therein or
necessary to make the statement or statements therein not
misleading in light of the circumstances in which they were made,
if such statement or omission was made in reliance upon
information furnished in writing, via fax or via electronic
means, to the Company by or on behalf of the Fund or persons
under the control of the Adviser; or
(iv) arise out of or result from any material breach of
this Agreement by the Adviser; except to the extent provided in
Sections 8.2(b) and 8.3 hereof This indemnification shall be in
addition to any liability which the Adviser may otherwise have.
8.2(a)(2) The Fund agrees to indemnify and hold harmless the
Indemnified Parties [as defined in Section 8.2(a)(1)] against any
and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Fund) or
litigation (including reasonable legal and other expenses) to
which the Indemnified Parties may become subject under any
statute, regulation, at common law or otherwise, insofar as such
losses, claims, damages, liabilities or expenses (or actions in
respect thereof) or settlements are related to the operations of
the Fund or the sale or acquisition of the Fund's shares and:
(i) arise out of or are based upon (a) any untrue
statement or alleged untrue statement of any material fact or (b)
the omission or the alleged omission to state therein a material
fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which
they were made, not misleading, if such fact, statement or
omission is contained in the registration statement for the Fund
or the Contracts, or in the prospectus or statement of additional
information for the Contracts or the Fund, or in any amendment to
any of the foregoing, or in sales literature or other promotional
material for the Contracts or of the Fund, provided, however,
that this agreement to indemnify shall not apply as to any
Indemnified Party if such statement, fact or omission or such
alleged statement, fact or omission was made in reliance upon and
in conformity with information furnished in writing, via fax or
via electronic means, to the Adviser or the Fund by or on behalf
of the Indemnified Party; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations
contained in the Contracts or in the Contract registration
statement, the Contract prospectus, statement of additional
information, or sales literature or other promotional material
for the Contracts not supplied by the Adviser or the Fund or
persons under the control of the Adviser or the Fund
respectively) or wrongful conduct of the Fund or persons under
its control with respect to the sale or distribution of
Contracts, provided any such statement or representation or such
wrongful conduct was not made in reliance upon and in conformity
with information furnished in writing, via fax or via electronic
means, to the Adviser or the Fund by or on behalf of the Company;
or
(iii) arise out of or result from any material breach of
this Agreement by the Fund (including a failure to comply with
the diversification requirements specified in Section 2.5 of this
Agreement);
except to the extent provided in Section 8.2(b) and 8.3 hereof.
This indemnification shall be in addition to any liability which
the Fund may otherwise have.
(b). The Fund and Adviser shall not be liable
under this indemnification provision with respect to any losses,
claims, damages, liabilities or litigation to which an
Indemnified Party would otherwise be subject by reason of such
Indemnified Party's willful misfeasance, bad faith, or gross
negligence in the performance of such Indemnified Party's duties
or by reason of such Indemnified Party's reckless disregard of
obligations and duties under this Agreement.
8.3 Indemnification Procedure
Any person obligated to provide indemnification under this
Article VIII ("indemnifying party" for the purpose of this
Section 8.3) shall not be liable under the indemnification
provisions of this Article VIII with respect to any claim made
against a party entitled to indemnification under this Article
VIII ("indemnified party" for the purpose of this Section 8.3)
unless such indemnified party shall have notified the
indemnifying party in writing within a reasonable time after the
summons or other first legal process giving information of the
nature of the claim shall have been served upon such indemnified
party (or after such party shall have received notice of such
service on any designated agent), but failure to notify the
indemnifying party of any such claim shall not relieve the
indemnifying party from any liability which it may have to the
indemnified party against whom such action is brought under the
indemnification provisions of this Article VIII, except to the
extent that the failure to notify results in the failure of
actual notice to the indemnifying party and such indemnifying
party is damaged solely as a result of failure to give such
notice. In case any such action is brought against the
indemnified party, the indemnifying party will be entitled to
participate, at its own expense, in the defense thereof, The
indemnifying party also shall be entitled to assume the defense
thereof, with counsel satisfactory to the party named in the
action. After notice from the indemnifying party to the
indemnified party of the indemnifying party's election to assume
the defense thereof, the indemnified party shall bear the fees
and expenses of any additional counsel retained by it, and the
indemnifying party will not be liable to such party under this
Agreement for any legal or other expenses subsequently incurred
by such party independently in connection with the defense
thereof other than reasonable costs of investigation, unless (i)
the indemnifying Party and the indemnified party shall have
mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded
parties) include both the indemnifying party and the indemnified
party and representation of both parties by the same counsel
would be inappropriate due to actual or potential differing
interests between them. The indemnifying party shall not be
liable for any settlement of any proceeding effected without its
written consent but if settled with such consent or if there be a
final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or
liability by reason of such settlement or judgment.
A successor by law of the parties to this Agreement shall be
entitled to the benefits of the indemnification contained in this
Article VIII. The indemnification provisions contained in this
Article VIII shall survive any termination of this Agreement.
ARTICLE IX. Notices
Any notice shall be sufficiently given when sent by
registered or certified mail to the other party at the address of
such party set forth below or at such other address as such party
may from time to time specify to the other party.
If to the Fund:
Xxxxxxxxxxx Variable Account Funds
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxx X. Xxxxxxx, Vice President and Secretary
If to the Adviser:
OppenheimerFunds, Inc.
0 Xxxxx Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attn: Xxxxxxx Xxxxx, Vice President/Manager
Variable Annuity Operations
If to the Company:
The Union Central Life Insurance Company
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
ARTICLE X. Miscellaneous
10. 1. The Company represents and warrants that any
Contracts eligible to purchase shares of the Fund and offered
and/or sold in private placements will comply in all material
respects with the exemptions from the registration requirements
of the 1933 Act and applicable federal and state laws and
regulations.
10.2. Subject to the requirements of legal process and
regulatory authority, each party hereto shall treat as
confidential the names and addresses of the owners of the
Contracts and all information reasonably identified as
confidential in writing by any other party hereto and, except as
permitted by (i) this Agreement and (ii) by Title V, Subtitle A
of the Xxxxx-Xxxxx-Xxxxxx Act and by regulations adopted
thereunder by regulators having jurisdiction over the parties
hereto, shall not disclose, disseminate or utilize such names and
addresses and other confidential information without the express
written consent of the affected party until such time as it may
come into the public domain.
10.3. The captions in this Agreement are included for
convenience of reference only and in no way define or delineate
any of the provisions hereof or otherwise affect their
construction or effect.
10.4. This Agreement maybe executed simultaneously in two or
more counterparts, each of which taken together shall constitute
one and the same instrument.
10.5. If any provision of this Agreement shall be held or
made invalid by a court decision, statute, rule or otherwise, the
remainder of the Agreement shall not be affected thereby.
10.6. Each party hereto shall cooperate with, and promptly
notify each other party and all appropriate governmental
authorities (including without limitation the Securities and
Exchange Commission, the National Association of Securities
Dealers, Inc. and state insurance regulators) and shall permit
such authorities reasonable access to its books and records in
connection with any investigation or inquiry relating to this
Agreement or the transactions contemplated hereby.
10.7. 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, which the
parties hereto are entitled to under state and federal laws.
10.8. It is understood by the parties that this Agreement is
not an exclusive arrangement in any respect.
10.9. The Company and the Adviser each understand and agree
that the obligations of the Fund under this Agreement are not
binding upon any Trustee or shareholder of the Fund personally,
but bind only the Fund with respect to the Portfolio and the
Portfolio's property; the Company and the Adviser each represent
that it has notice of the provisions of the Declaration of Trust
of the Fund disclaiming Trustee and shareholder liability for
acts or obligations of the Fund.
10.10. This Agreement shall not be assigned by any party
hereto without the prior written consent of all the parties.
Notwithstanding the foregoing or anything to the contrary set
forth in this Agreement, the Adviser may transfer or assign its
rights, duties and obligations hereunder or interest herein to
any entity owned., directly or indirectly, by Xxxxxxxxxxx
Acquisition Corp. (the Adviser's parent corporation) or to a
successor in interest pursuant to a merger, reorganization, stock
sale, asset sale or other transaction, without the consent of the
Company, as long as (i) that assignee agrees to assume all the
obligations imposed on the Adviser by this Agreement, and (ii)
the Fund consents to that assignment.
10.11. This Agreement sets forth the entire agreement
between the parties and supercedes all prior communications,
agreements and understandings, oral or written, between the
parties regarding the subject matter hereof.
IN WITNESS WHEREOF., each of the parties hereto has caused
this Agreement to be executed in its name and on its behalf by
its duly authorized representative and its seal to be hereunder
affixed as of the date specified below.
THE UNION CENTRAL LIFE
INSURANCE COMPANY
By: /s/ Xxxxxxx X. Xxxxxxxx
Title: Vice President
Date: 9/7/2004
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
By:
Title: Assistant Secretary
Date: 9/10/04
-28-
OPPENHEIMERFUNDS, INC.
By: /s/ Xxxxxxxxx Xxxxxx
Title: Vice President
Date: 9/13/04
SCHEDULE 1
Separate Accounts Products
Carillon Account The Union Central Variable Annuity
Carillon Life Account The Union Central Excel Choice VUL
-30-
SCHEDULE 2
Portfolios of Xxxxxxxxxxx Variable Account Funds shown below do
not include service class shares unless expressly indicated:
Xxxxxxxxxxx Main Street Growth & Income Fund/VA
Xxxxxxxxxxx Global Securities Fund/VA
-31-
OppenheimerFunds 11
OppenheimerFunds Distributor, Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Tel 000.000.0000
June 27, 2003
Xx. Xxxxxx de Xxxxx
The Union Central Life Insurance Company
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Dear Mr. De Xxxxx:
The following constitutes a letter of understanding (the
"Agreement") whereby OppenheimerFunds, Inc. ("OFI") intends to
compensate The Union Central Life Insurance Company ("Union") for
providing administrative support services to contract owners of
any Union variable annuity and variable life insurance products
("Union Products") with contract values allocated to investment
options investing in Xxxxxxxxxxx Variable Account Funds ("OVAF"),
a series investment company dedicated to insurance company
separate accounts for which OFI acts as investment manager. Such
services are described in Schedule A hereto, which is made a part
of the Agreement. This Agreement may be cancelled by any party
upon ten days written notice: (1) if the
participation agreement
for Union Products between OFI, Union and OVAY is terminated; (2)
if either party is subject to a change of control; or (3) if it
is not permissible to continue this Agreement under laws, rules
or regulations applicable to OVAF, OFI or Union. Either party may
also cancel this Agreement upon ninety days' written notice if
neither Union nor any underwriter under its control actively
promotes Union Products with any of OVAF's portfolio's as
underlying option(s) to customers. Either party may also cancel
this Agreement upon six months' written notice.
This Agreement will be effective as of June 1, 2003. Payment
will be made to Union quarterly during the term this Agreement is
in effect, no later than thirty days following the end of the
quarter starting with the quarter ending June 30, 2003. Payments
shall be computed as set forth in Schedule C hereto.
Other terms and conditions:
A. Except to the extent that Union's, OFIs or OVAF's counsel
may deem it necessary or advisable to disclose in their
respective prospectuses or elsewhere, the terms of this Agreement
will be held confidential by each party. The party making such
disclosure shall provide advance written notification, including
particulars, to the other party that it is making such
disclosure.
B. No other fees, sales meeting costs or other expenses will
be required of OFI (or any subsidiary or division) or OVAF in
connection with the Union Products.
C. On reasonable advance written notice to Union and upon
compliance by Union with any necessary legal requirements, OFI or
a subsidiary may pay all or a portion of the fees provided for in
this Agreement under any service fee or Rule l2b-1 plan hereafter
adopted by OVAF, which shall satisfy that portion of OFI's
payment obligation hereunder.
D. OFI will be responsible for calculating the fee payable
hereunder-, however each party shall provide each other party or
its designated agent reasonable access to its records to permit
it to audit or review the accuracy of the charges submitted by
Union for payment under this Agreement, and the accuracy of
payments by OFI.
E. This Agreement does not modify or replace any other
agreement pertaining to any Xxxxxxxxxxx fund other than OVAT.
F. Should any term of this Agreement conflict with the terms
of that certain fund
Participation Agreement (the "
Participation
Agreement") entered into by and between OVAF, OFI and Union as of
May 1, 2000, and amended as of June 27, 2003, then the
Participation Agreement shall control, except with respect to
paragraph B above.
We look forward to a long and prosperous relationship. If this
Agreement meets with your approval, please have the enclosed
duplicate copy of this letter signed on behalf of Union, and
return it to my attention.
Sincerely,
/s/ Xxxxxxxxx Xxxxxx
Xxxxxxxxx Xxxxxx
Title: Vice President,
OppenheimerFunds, Inc.
Agreed to and accepted on behalf of
THE UNION CENTRAL LIFE INSURANCE COMPANY
BY: /s/ Xxxxxx X. Xxxxxxx
Title: Vice President
Schedule A
Maintenance of Books and Records
Assist as necessary to maintain book entry records on behalf of
the Funds regarding issuance to, transfer within (via net
purchase orders) and redemption by the Accounts of Fund shares.
Maintain general ledgers regarding the Accounts' holdings of Fund
shares, coordinate and reconcile information, and coordinate
maintenance of ledgers by financial institutions and other
contract owner service providers.
Communication with the Funds
Serve as the designee of the Funds for receipt of purchase and
redemption orders from the Account and to transmit such orders,
and payment therefor, to the Funds. Coordinate with the Funds'
agents respecting daily valuation of the Funds' shares and the
Accounts' units.
Purchase Orders
- Determine net amount available for investment in the
Funds.
- Deposit receipts at the Funds or the Funds' custodian
(generally by wire transfer).
- Determine net amount required for redemption from the
Funds.
- Notify the custodian and Funds of cash required to
meet payments.
Purchase and redeem shares of the Funds on behalf of the Accounts
at the then current price in accordance with the terms of the
Participation Agreement.
Distribute the Fund's prospectus, proxy materials, communications
and reports to Contract owners.
Processing Distributions from the Funds
Record ordinary dividends and capital gain distributions.
Reports
Periodic information reporting to the Funds, including, but not
limited to, furnishing registration statements, prospectuses,
statements of additional information, reports, solicitations for
voting instructions, and any other SEC filings with respect to
the Accounts invested in the Funds, as not otherwise provided
for.
Periodic information reporting about the Funds to Contract
owners, including any necessary delivery of the Funds' prospectus
and annual and semi-annual reports to contract owners, as not
otherwise provided for.
Fund-related Contract Owner Services
Maintain adequate fidelity bond or similar coverage for all
Company officers, employees, investment advisors and other
individuals or entities controlled by the Company who deal with
the money and/or securities of the Funds.
Provide ministerial information with respect to Fund inquiries
(but excluding fund allocation recommendations, performance
projections or any other sales-related information or advice).
Oversee and assist the solicitation, counting and voting or
contract owner voting interests in the Funds pursuant to Fund
proxy statements.
Other Administrative Support
Provide other administrative support for the Funds as mutually
agreed upon by the Company and the Funds or the Fund
Administrator. Relieve the Funds of other usual or incidental
administrative services provided to individual contract owners.
Schedule B
Separate Accounts Products
Separate Account Nos. LV and LVI ESP group variable
annuity (unregistered)
Schedule C
Payments for Unregistered Separate Account Products (ESP)
Payments under this Agreement shall be computed on the
average net assets of OVAF that are held by Union and that are
attributable to the unregistered group variable annuity product
listed on Schedule B hereto (which may be changed from time to
time with the mutual consent of the parties to this Agreement)
and that are held by an unregistered separate account listed on
Schedule B hereto ("Union ESP Assets") during the prior quarter,
subject to adjustment under circumstances where average net
assets of OVA-F are attributable to Union ESP Assets for a period
of less than one quarter. Payments shall not be based on the
average net assets of OVAF that are used to calculate any other
revenue sharing payments by OFI or OFDI to Union or its
affiliates. Such payments will be subject to a limit of one-third
of the average management fee paid by that OVAF series and
retained by OFI during the prior quarter, at a fee computed each
business day at the following annual rate:
o For Union ESP Assets, OFI or its affiliates
will pay an administrative assistance fee to
Union of 0.20% of Union ESP Assets.
Payments made to Union Central under this Agreement will be made
by federal funds wire to:
Bank: PNC Bank, Cincinnati, OH
ABA#: 000000000
Account Name: The Union Central Life Insurance Company
Account#: 0000000000
Reference: Xxxxxxxxxxx Funds; Separate Account Activity
Notification of wire transfers shall be provided by e-mail or fax
to:
Xx. Xx Xxxxxx
Second Vice President, Associate Actuary
Email xxxxxxx@xxxxxxxxxxxx.xxx
Fax: (000) 000-0000
Phone: (000) 000-0000
or to such other person, address, facsimile numbers or accounts
as Union Central may subsequently direct in writing.
AMENDMENT NUMBER I
TO
PARTICIPATION AGREEMENT
Among
XXXXXXXXXXX VARIABLE ACCOUNT FUNDS
OPPENHEIMERFUNDS, INC.
and
THE UNION CENTRAL LIFE INSURANCE COMPANY
WHEREAS, The Union Central Life Insurance Company (the
"Company"), Xxxxxxxxxxx Variable Account Funds (the "Fund") and
OppenheimerFunds, Inc. (the "Adviser") are parties to a
Participation Agreement dated May 1, 2000 (the "Agreement"); and
WHEREAS, the parties wish to amend the Agreement by revising the
existing Article IX, Schedule I and Schedule 2 and replacing them
with the Article IX, Schedule I and Schedule 2 attached hereto;
and
WHEREAS, capitalized terms used but not defined herein, shall
have the meaning given them in the Agreement; and
WHEREAS, all other terms of the Agreement shall remain in full
force and effect;
NOW, THEREFORE, the parties agree to replace Article IX, Schedule
I and Schedule 2 to the Agreement with the Article IX, Schedule I
and Schedule 2 attached hereto.
IN WITNESS WHEREOF, each of the parties hereto has caused this
Amendment No. I to the Agreement to be executed in its name and
on its behalf by its duly authorized representative on this 3rd
day of September 2004.
THE UNION CENTRAL LIFE INSURANCE Xxxxxxxxxxx Variable
COMPANY Account Funds
By its authorized officer By its authorized officer
By: /s/ Xxxxxxx X. Xxxxxxxx By: /s/
Title: Vice President Title: Assistant Secretary
Date: 10/13/2004 Date: 10/18/2004
OppenheimerFunds, Inc.
By its authorized officer
By: /s/
Title: Vice President
Date: 10/19/2004
ARTICLE IX Notices
Any notice shall be sufficiently given when sent by
registered or certified mail to the other party at the address of
such party set forth below or at such other address as such party
may from time to time specify to the other party.
If to the Fund:
Xxxxxxxxxxx Variable Account Funds
2 World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: General Counsel
With a copy to:
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Adviser:
OppenheimerFunds, Inc.
2 World Financial Center
000 Xxxxxxx Xxxxxx, 160' Floor
Xxx Xxxx, XX 00000
Attn: Director of Variable Accounts
With a copy to:
Xxxxxxxxxxx Variable Account Funds
Two World Financial Center
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn.: Director of Variable Accounts
If to the Company:
The Union Central Life Insurance Company
0000 Xxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: General Counsel
-2-
SCHEDULE 1
Separate Accounts Products
Carillon Account
Reg. No. 2-921-46 The Union Central Variable Annuity
Class 1I
Reg. No. 333-110336 The Union Central Variable Annuity
Class 2II and VA II SA
Reg. No. 333-118237 The Union Central Variable Annuity III
Carillon Life Account
Reg. No. 33-94858 The Union Central Excel Choice VUL
Reg. No. 333-36220 The Union Central Excel Choice
Executive Edge VUL
Reg. No. 333-116386 The Union Central Excel Accumulator
VUL
Separate Account
Nos. LV and LVI ESP group variable annuity
(unregistered)
3
SCHEDULE 2
Portfolios of Xxxxxxxxxxx Variable Account Funds shown below do
not include service class shares unless expressly indicated:
Xxxxxxxxxxx Main Street Growth & Income Fund/VA Xxxxxxxxxxx
Global Securities Fund/VA Xxxxxxxxxxx Capital Appreciation
Fund/VA (for Excel Accumulator VUL and VA III products only)
4
