Exhibit 99.8(H)
VARIABLE PRODUCT SERVICES AGREEMENT
RYDEX VARIABLE TRUST
This VARIABLE PRODUCT SERVICES AGREEMENT is made as of __________, 2008
by Rydex Distributors, Inc. ("RDI"), a Delaware corporation, and National
Integrity Life Insurance Company (the "Servicer"), an New York corporation (the
"Agreement").
WHEREAS, the Rydex Variable Trust (the "Trust") is registered as an
open-end management investment company under the Investment Company Act of 1940,
as amended (the "1940 Act"); and its units of beneficial interest ("Shares") are
registered with the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "1933 Act"); and
WHEREAS, the Trust offers Shares to insurance companies which hold the
Shares in separate accounts pursuant to variable annuity and variable life
insurance contracts they issue;
WHEREAS, in accordance with the Investor Services Plan adopted by the
Trust (the "Plan") and an Investor Services Agreement entered into between the
Trust and RDI, the Trust has retained RDI to provide, directly or indirectly,
certain services to owners of variable annuity and variable life insurance
contracts who engage indirectly in strategic or tactical asset allocation
investing ("Investors") in Shares of the investment portfolios of the Trust; and
WHEREAS, RDI seeks to retain the Servicer to provide the services
described herein to Investors in connection with strategic or tactical asset
allocation investing under their variable annuity or variable life insurance
contracts.
NOW THEREFORE, in consideration of the premises and mutual covenants
set forth herein, RDI and the Servicer hereby agree as follows:
ARTICLE I. INVESTOR SERVICES
1.1 Pursuant to the Plan, the Servicer shall provide investor services to
Investors. Investor services include some or all of the following:
(i) assistance in printing Trust prospectuses and statements of additional
information and mailing them to Investors or to financial advisors who
allocate funds for investment in Shares of the Trust on behalf of
Investors ("Financial Advisors");
(ii) assistance in forwarding communications from the Trust to Investors or
Financial Advisors, including proxy solicitation material and annual
and semiannual reports;
(iii) assistance in facilitating and processing transactions in Shares of
the Trust;
(iv) assisting Investors who wish or need to change Financial Advisers; and
(v) providing support services to Financial Advisers, including, but not
limited to: (a) providing Financial Advisers with updates on policies
and procedures; (b) answering questions of Financial Advisers
regarding the investments of the Trust's portfolios; (c) providing
performance information regarding the Trust's portfolios; (d)
providing information to Financial Advisers regarding the investment
objectives of the Trust's portfolios; (e) providing Investor account
information to Financial Advisers; and (f) redeeming Trust Shares, if
necessary, for the payment of Financial Adviser fees.
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1.2 For providing investor services to Investors pursuant to this Agreement,
RDI shall compensate the Servicer a fee computed daily and paid monthly in
arrears, equal to an annual rate of ____ basis points of the average daily
net assets of the Trusts held by Servicer in its separate accounts pursuant
to its variable annuity contracts. Servicer will provide the average daily
net asset value for each month as soon as practicable after the end of each
month. RDI shall pay this compensation within sixty (60) days after receipt
of such value.
ARTICLE II. INDEMNIFICATION
2.1. Indemnification By Servicer
2.1(a) Servicer agrees to indemnify and hold harmless RDI, each officer,
director and employee of RDI, and each person, if any, who controls RDI, within
the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" and individually, an "Indemnified Party," for purposes of this Section
2.1) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the Servicer) or litigation
(including 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 Servicer's performance of, or
failure to perform its duties under the Agreement and arise:
(i) by reason of the Servicer's willful misfeasance, bad faith or
negligence in performance of its duties or obligations hereunder or by reason of
reckless disregard of its duties or obligations hereunder;
(ii) from reasonable reliance on information furnished to RDI by Servicer
or its affiliates;
(iii) as a result of any material failure by Servicer to provide the
services and furnish the materials under the terms of this Agreement;
or
(iv) arise out of or result from any material breach of any representation
or warranty made by Servicer in this Agreement or arise out of or
result from any other material breach of this Agreement by Servicer,
as limited by and in accordance with the provisions of Sections 2.1(b)
and 2.1(c) hereof.
2.1(b). Servicer shall not be liable under this indemnification
provision with respect to any losses, claims, damages, liabilities or litigation
incurred or assessed against an Indemnified Party as such may arise from 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 or duties under this Agreement.
2.1(c). Servicer shall not be liable under this indemnification
provision with respect to any claim made against an Indemnified Party unless
such Indemnified Party shall have notified Servicer 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 Indemnified Party shall have received notice of
such service on any designated agent), but failure to notify Servicer of any
such claim shall not relieve Servicer from any liability which it may have to
the Indemnified Party against whom such action is brought otherwise than on
account of this indemnification provision. In case any such action is brought
against the Indemnified Parties, Servicer shall be entitled to participate, at
its own expense, in the defense of such action. Servicer also shall be entitled
to assume the defense thereof, with counsel satisfactory to the party named in
the action. After notice from Servicer to such party of Servicer's election to
assume the defense thereof, the Indemnified Party shall bear the fees and
expenses of any additional counsel retained by it, and Servicer 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.
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2.1(d). The Indemnified Parties will promptly notify Servicer of the
commencement of any litigation or proceedings against them in connection with
the provision of services under this Agreement.
2.2. Indemnification by RDI
2.2(a). RDI agrees to indemnify and hold harmless Servicer and each of its
directors, officers and employees and each person, if any, who controls Servicer
within the meaning of Section 15 of the 1933 Act (collectively, the "Indemnified
Parties" and individually, an "Indemnified Party," for purposes of this Section
2.2) against any and all losses, claims, damages, liabilities (including amounts
paid in settlement with the written consent of the RDI) or litigation (including
legal and other expenses) to which the Indemnified Parties may become subject
under any statute, at common law or otherwise, insofar as such losses, claims,
damages, liabilities or expenses (or actions in respect thereof) or settlements
are related to RDI' performance of, or failure to perform its duties under this
Agreement and arise:
(i) by reason of RDI's willful misfeasance, bad faith or negligence in
performance of its duties or obligations hereunder or by reason of
reckless disregard of its duties or obligations hereunder;
(ii) from reasonable reliance on information furnished to Servicer by RDI
or its affiliates;
(iii) as a result of any failure by RDI to provide the services and furnish
the materials under the terms of this Agreement; or
(iii) out of or result from any material breach of any representation
and/or warranty made by RDI in this Agreement or arise out of or
result from any other material breach of this Agreement by RDI; as
limited by and in accordance with the provisions of Sections 2.2(b)
and 2.2(c) hereof.
2.2(b). RDI shall not be liable under this indemnification provision
with respect to any losses, claims, damages, liabilities, or litigation incurred
or assessed against an Indemnified Party as such may arise from 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.
2.2(c). RDI shall not be liable under this indemnification provision
with respect to any claim made against an Indemnified Party unless such
Indemnified Party shall have notified RDI 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
Indemnified Party shall have received notice of such service on any designated
agent), but failure to notify RDI of any such claim shall not relieve RDI from
any liability which it may have to the Indemnified Party against whom such
action is brought otherwise than on account of this indemnification provision.
In case any such action is brought against the Indemnified Parties, RDI will be
entitled to participate, at its own expense, in the defense thereof. RDI also
shall be entitled to assume the defense thereof, with counsel satisfactory to
the party named in the action. After notice from RDI to such party of RDI'
election to assume the defense thereof, the Indemnified Party shall bear the
fees and expenses of any additional counsel retained by it, and RDI 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.
2.2(d). Servicer agrees promptly to notify RDI of the commencement of
any litigation or proceedings against it or any of its officers or directors in
connection with the provision of services under this Agreement.
2.3. Survival of Indemnification
Article II shall survive the termination of this Agreement.
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ARTICLE III. TERM
3.1 This Agreement shall become effective on the date first written above and,
unless sooner terminated as provided herein, shall continue indefinitely.
This Agreement is terminable without penalty, on at least sixty days'
written notice, by either party.
3.2 In the event a termination notice is given by RDI, all reasonable expenses
associated with movement of records and materials and conversion thereof
will be borne by RDI.
3.3 In the event a termination notice is given by the Servicer, all reasonable
expenses associated with movement of records and materials and conversion
thereof will be borne by the Servicer.
3.4 In the event of termination, the compensation set forth in Section 1.2
shall continue to be paid for as long as (a) Investors are indirectly
invested in the Trust; (b) the Servicer continues to perform its
obligations hereunder; and (c) the Investor Services Agreement between the
Trust and RDI remains in effect.
ARTICLE IV. ADDRESSES
Any notice or other instrument authorized or required by this Agreement to
be given in writing to Servicer or RDI shall be sufficiently given if
addressed to the party and received by it at its office set forth below or
at such other place as it may from time to time designate in writing.
To Servicer:
National Integrity Life Insurance Company
000 Xxxxxxxx
Xxxxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxx, Senior VP and General Counsel
To RDI:
Rydex Distributors, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Attn: Xxxx Xxxxxxx
ARTICLE V. APPLICABLE LAW
5.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the substantive laws of the State of
Delaware, without regard to the conflict of laws provisions thereof.
5.2. This Agreement shall be subject to the provisions of the 1933,
1934 and 1940 Acts, and the rules and regulations and rulings thereunder,
including such exemptions from those statutes, rules and regulations as the
Securities and Exchange Commission may grant and the terms hereof shall be
interpreted and construed in accordance therewith.
ARTICLE VI. MISCELLANEOUS
6.1. Subject to the requirements of legal process and regulatory
authority, RDI shall treat as confidential the names and addresses of the owners
of the variable annuity and variable life insurance contracts covered by this
Agreement and all information reasonably identified as confidential in writing
by any party hereto and, except as permitted by this Agreement, 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.
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6.2. 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.
6.3. This Agreement may be executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
6.4. 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.
6.5. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the
Securities and Exchange Commission, the Financial Industry Regulatory Authority
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.
Notwithstanding the generality of the foregoing, each party hereto further
agrees to furnish the New York Insurance Commissioner with any information or
reports in connection with services provided under this Agreement which such
Commissioner may request in order to ascertain whether the insurance operations
of Servicer are being conducted in a manner consistent with the New York
Insurance Regulations and any other applicable law or regulations.
6.6. 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.
6.7. This Agreement or any of the rights and obligations hereunder may
not be assigned by any party without the prior written consent of all parties
hereto; provided, however, that RDI may assign this Agreement or any rights or
obligations hereunder to any affiliate of or company under common control with
RDI, if such assignee is duly licensed and registered to the extent necessary to
perform the obligations of RDI under this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
RYDEX DISTRIBUTORS, INC.
By: ____________________________
Name: ____________________________
Title: ____________________________
NATIONAL INTEGRITY LIFE INSURANCE COMPANY
By: ____________________________
Name:
Title:
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