PARTICIPATION AGREEMENT
Among
SELECT TEN PLUS FUND, LLC
TOUCHSTONE ADVISORS, INC.
and
NATIONAL INTEGRITY LIFE INSURANCE COMPANY
THIS AGREEMENT, made and entered into this ____ day of _________________,
by and among SELECT TEN PLUS FUND, LLC (hereinafter "LLC"), a Delaware limited
liability company, TOUCHSTONE ADVISORS, INC. (hereinafter the "Adviser"), a
_____________ corporation, and NATIONAL INTEGRITY LIFE INSURANCE COMPANY
(hereinafter the "Company"), on its own behalf and on behalf of each segregated
asset account of the Company set forth on Schedule A hereto as may be amended
from time to time (each such account hereinafter referred to as the "Account").
WHEREAS, LLC is available to act as the investment vehicle for separate
accounts established for variable life insurance policies and variable annuity
contracts (collectively, the "Contracts") to be offered by insurance companies
which have entered into participation agreements with LLC and the Adviser
(hereinafter "Participating Insurance Companies"); and
WHEREAS, LLC is registered as an open-end management investment company
under the Investment Company Act of 1940 (the "1940 Act") and its shares are
registered under the Securities Act of 1933, as amended (hereinafter the "1933
Act"); and
WHEREAS, the beneficial interests in LLC represent interests in a
portfolio of securities and other assets; and
WHEREAS, each Account is a duly organized, validly existing segregated
asset account, established by resolution of the Board of Directors of the
Company, on the date shown for such Account on Schedule A hereto, to set aside
and invest assets attributable to one or more Contracts; and
WHEREAS, the Company has registered or will register certain variable
life and variable annuity contracts under the 1933 Act and has registered or
will register each Account as a unit investment trust under the 1940 Act; and
WHEREAS, to the extent permitted by applicable insurance laws and
regulations, the Company intends to purchase LLC interests on behalf of each
Account to fund certain of the aforesaid Contracts,
NOW, THEREFORE, in consideration of their mutual promises, the Company,
LLC and the Adviser agree as follows:
ARTICLE I. SALE OF LLC INTERESTS
1.1. LLC agrees to sell to the Company those LLC interests which each
Account orders, executing such orders on a daily basis at the net asset value
next computed after receipt by LLC or its designee of the order for LLC
interests. For purposes of this Section l.l, the Company shall be the designee
of LLC for receipt of such orders from each Account and receipt by such designee
shall constitute receipt by LLC; provided that LLC receives notice of such order
by 10:00 a.m. Eastern 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 LLC calculates its net asset value.
1.2. LLC agrees to make its interests available indefinitely for
purchase at the applicable net asset value per interest by the Company and its
Accounts on those days on which LLC calculates its net asset value and LLC shall
use reasonable efforts to calculate such net asset value on each day on which
the New York Stock Exchange is open for trading. Notwithstanding the foregoing,
the Board of Managers of LLC (hereinafter the "Board") may refuse to sell
interests to any person, or suspend or terminate the offering of interests if
such action is required by law or by regulatory authorities having jurisdiction
or is, in the sole discretion of the Board acting in good faith and in light of
their fiduciary duties under federal and any applicable state laws, necessary in
the best interest of the LLC.
1.3. LLC agrees to redeem for cash, on the Company's request, any full
or fractional LLC interests held by the Company, executing such requests on a
daily basis at the net asset value next computed after receipt by LLC or its
designee of the request for redemption. For purposes of this Section 1.3, the
Company shall be the designee of LLC for receipt of requests for redemption from
each Account and receipt by such designee shall constitute receipt by LLC,
provided that LLC receives notice of such request for redemption on the next
following Business Day.
1.4. The Company agrees to purchase and redeem LLC interests in
accordance with the provisions of this Agreement and the LLC's prospectus and
statement of additional information contained in the LLC's Form N-1A
registration statement filed with the Securities and Exchange Commission
("SEC"), as revised from time to time (the "LLC Prospectus").
1.5. The Company shall pay for LLC interests on the next Business Day
after an order to purchase LLC interests is made in accordance with the
provisions of Section 1.1 hereof. Payment shall be in federal funds transmitted
by wire.
1.6. Issuance and transfer of LLC interests will be by book entry only.
Certificates will not be issued to the Company or any Account. LLC interests
will be recorded in an appropriate title for each Account or the appropriate
subaccount of each Account.
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1.7. LLC shall furnish same day notice (by wire or telephone, followed
by written confirmation) to the Company of any income, dividends or capital gain
distributions payable on LLC interests. The Company hereby elects to receive all
such income dividends and capital gain distributions as are payable on LLC
interests in additional LLC interests. The Company reserves the right to revoke
this election and to receive all such income dividends and capital gain
distributions in cash. LLC shall notify the Company of the number of interests
so issued as payment of such dividends and distributions.
ARTICLE II. REPRESENTATIONS AND WARRANTIES
2.1. The Company represents and warrants that the Contracts are or will
be registered under the 1933 Act; that the Contracts will be issued and sold in
compliance in all material respects with all applicable Federal and State laws
and that the sale of the Contracts shall comply in all material respects with
state insurance suitability requirements. The Company further represents and
warrants that it is an insurance company duly organized and in good standing
under applicable law and that it has legally and validly established each
Account prior to any issuance or sale thereof as a segregated asset account
under Section ___ of the ________ Insurance Code.
2.2. LLC represents and warrants that LLC interests sold pursuant to
this Agreement shall be registered under the 1933 Act, duly authorized for
issuance and sold in compliance with the laws of the State of Delaware and all
applicable Federal and State securities laws and that the LLC is and shall
remain registered under the 0000 Xxx.
2.3. The Company represents that the Contracts are currently treated as
endowment, annuity or life insurance contacts, under applicable provisions of
the Internal Revenue Code of 1986, as amended (the "Code"), and that it will
make every effort to maintain such treatment and that it will notify LLC 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. LLC makes no representation as to whether any aspect of its
operations (including, but not limited to, fees and expenses and investment
polices) complies with the insurance laws or regulations of the various states.
2.5. LLC represents that it is lawfully organized and validly existing
under the laws of the State of Delaware.
2.6. The Adviser represents and warrants that the Adviser (i) is and
shall remain duly registered in all material respects under all applicable
Federal and State securities laws; (ii) shall perform its obligations for LLC in
compliance in all material respects with the laws of the State of Delaware and
any applicable State and Federal securities laws; and (iii) shall perform its
obligations under the Investment Advisory Agreement dated May ___, 1999 between
the Adviser and LLC.
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2.7. The Adviser undertakes to provide (i) any information and reports
that are necessary for the Company to prepare tax returns and respond to
Internal Revenue Service inquiries and audits; and (ii) within 20 days after
each calendar quarter, a report demonstrating compliance with the
diversification requirements set forth in Section 817(h) of the Code and the
regulations thereunder.
2.8. LLC and Adviser represent and warrant that all of their directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of the LLC are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
LLC 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 shall include coverage for larceny and embezzlement
and shall be issued by a reputable bonding company.
2.9. The Company represents and warrants that all of its directors,
officers, employees, investment advisers, and other individuals/entities dealing
with the money and/or securities of LLC are and shall continue to be at all
times covered by a blanket fidelity bond or similar coverage for the benefit of
LLC, in an amount not less than the minimal coverage as required currently by
entities subject to the requirements of Rule 17g-1 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
bonding company.
ARTICLE III. LLC PROSPECTUS
3.1. The Adviser shall provide the Company (at the Company's expense)
with as many copies of the LLC Prospectus as the Company may reasonably request.
If requested by the Company in lieu thereof, the LLC shall provide a final copy
of the LLC Prospectus as set in type at Company's expense.
3.2. LLC's prospectus shall state that the Statement of Additional
Information for LLC is available from the Adviser (or in LLC's discretion, the
Prospectus shall state that such Statement is available from LLC), and the
Adviser (or LLC), at its expense, shall print and provide such Statement free of
charge to the Company and to any owner of a Contract or prospective owner who
requests such Statement.
3.3. LLC, at its expense, shall provide the Company with copies of its
proxy material, reports to shareholders, and other communications to
shareholders in such quantity as the Company shall reasonably require for
distributing to Contract owners.
3.4. If and to the extent required by law the Company will:
(i) solicit voting instructions from Contract owners;
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(ii) vote LLC interests in accordance with instructions received
from Contract owners; and
(iii) vote LLC interests for which no instructions have been
received in the same proportion as LLC interests of such
Division for which instructions have been received:
so long as and to the extent that the SEC continues to interpret the 1940 Act to
require pass-through voting privileges for owners of Variable Insurance
Products. The Company reserves the right to vote LLC interests held in any
segregated asset account in its own right, to the extent permitted by law. The
Company shall be responsible for assuring that each of their separate accounts
participating in LLC calculates voting privileges in a manner consistent with
this Section.
ARTICLE IV. SALES MATERIAL AND INFORMATION
4.1. The Company shall furnish, or shall cause to be furnished, to LLC
or its designee, each piece of sales literature or other promotional material in
which LLC or its investment adviser is named, at least fifteen Business Days
prior to its use. No such material shall be used if LLC or its designee object
to such use within fifteen Business Days after receipt of such material.
4.2. The Company shall not give any information or make any
representations or statements on behalf of LLC or concerning LLC in connection
with the sale of the Contracts other than the information or representations
contained in the LLC Prospectus as may be amended or supplemented from time to
time, or in sales literature or other promotional material approved by LLC or
its designee or by the Adviser, except with the permission of LLC or the Adviser
or the designee of either.
4.3. LLC, and the Adviser, or its designee shall furnish, or shall
cause to be furnished, to the Company or its designee, each piece of sales
literature or other promotional material (collectively with sales literature,
"Promotional Material") in which the Company and/or its separate account(s), is
named at least fifteen Business Days prior to its use, except Promotional
Material which involves only non-material changes from previously approved
Promotional Material. No such material shall be used if the Company or its
designee object to such use within fifteen Business Days after receipt of such
material.
4.4. LLC and the Adviser shall not give any information or make any
representations on behalf of the Company or concerning the Company, each
Account, or the Contracts other than the information or representations
contained in the prospectus and statement of additional information contained in
the Contracts' registration statement filed with the SEC, as revised from time
to time (the "Contract Prospectus"), as such Contract Prospectus may be amended
or supplemented from time to time, or in published reports for each Account
which are in the public domain or approved by the Company for distribution to
Contract owners, or in sales literature or other promotional material approved
by the Company or its designee, except with the permission of the Company.
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ARTICLE V. FEES AND EXPENSES
5.1. All expenses incident to performance by LLC under this Agreement
shall be paid by LLC. LLC shall see to it that all its interests are authorized
for issuance in accordance with applicable law. LLC shall bear the expenses for
any cost of registration and qualification of LLC's interests, the preparation
of all statements and notices required by any Federal or State law, all taxes on
the issuance or transfer of the LLC interests.
5.2. The Company shall bear the expenses of preparing, obtaining SEC
approval of, printing and distributing the Contract Prospectus to owners and
prospective owners of Contracts issued by the Company.
ARTICLE VI. DIVERSIFICATION
6.1. LLC and the Adviser will at all times invest money from the
Contracts in such a manner consistent with instructions received from the
Company initially, and from time to time thereafter, so 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, LLC
will at all times 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.
ARTICLE VII. INDEMNIFICATION
7.1. INDEMNIFICATION BY THE COMPANY
7.1(a). The Company agrees to indemnify and hold harmless LLC and the
Adviser and each of their directors and officers and each person, if any, who
controls LLC or the Adviser within the meaning of Section 15 of the Securities
Act of 1933 (the "1933 Act") (collectively, the "Indemnified Parties" for
purposes of this Section 7.1) against any and all losses, claims, damages,
liabilities (including amounts paid in settlement with the written consent of
the Company) 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 the sale
or acquisition of LLC's shares or the Contracts and:
(i) arise out of or are based upon any untrue statements or
alleged untrue statements of any material fact contained in the Contract
Prospectus or contained in the Contracts or sales literature 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
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made in reliance upon and in conformity with information furnished to the
Company by or on behalf of LLC for use in the Contract Prospectus or in
the Contracts or sales literature (or any amendment or supplement) or
otherwise for use in connection with the sale of the Contracts or LLC
interests; or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the LLC Prospectus or sales literature 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 LLC interests; or
(iii) arise as a result of any failure by the Company 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 and/or warranty made by the Company in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Company, as limited by and in accordance with the provisions of
Sections 7.1(b) and 7.1(c) hereof.
7.1(b). To the extent indemnification is unavailable to an Indemnified
Party or insufficient in respect of any losses, claims, damages or liabilities,
then the Company, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and such Indemnified Party on the other hand from the offering of LLC
interests or Contracts or (ii) if the allocation by (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in (i) above but also the relative fault of the
Company on the one hand and of the Indemnified Party on the other hand in
connection with the actions or inactions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
7.1(c). The Company 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 or to
LLC, whichever is applicable.
7.1(d). The Company 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 the Company 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 the Company of any
such claim shall not relieve the Company from any liability
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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, the Company shall be entitled
to participate, at its own expense, in the defense of such action. The Company
also shall be entitled to assume the defense thereof, with counsel satisfactory
to the party named in the action. After notice from the Company to such party of
the Company'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 Company 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.
7.1(e). The Indemnified Parties will promptly notify the Company of the
commencement of any litigation or proceedings against them in connection with
the issuance or sale of LLC interests or the Contracts or the operations of LLC.
7.2. INDEMNIFICATION BY THE ADVISER
7.2(a). The Adviser agrees to indemnify and hold harmless the Company,
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 7.2) against any and all
losses, claims, damages, liabilities (including amounts paid in settlement with
the written consent of the Adviser) 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 the
sale or acquisition of LLC interests 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 LLC
Prospectus or any amendment or supplement thereto, 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 the Adviser or LLC
by or on behalf of the Company for use in the LLC Prospectus or in sales
literature (or any amendment or supplement) or otherwise for use in
connection with the sale of the Contracts or LLC interests: or
(ii) arise out of or as a result of statements or
representations (other than statements or representations contained in
the Contract Prospectus or sales literature not supplied by the Adviser
or persons under its control) or wrongful conduct of LLC or Adviser or
persons under their control, with respect to the sale or distribution of
the Contracts or LLC interests; or
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(iii) arise out of any untrue statement or alleged untrue
statement of a material fact contained in the Contract Prospectus or
sales literature, 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, if such statement or omission was made solely in
reliance upon information furnished to the Company by or on behalf of
LLC; or
(iv) arise as a result of any failure by LLC to provide the
services and furnish the materials under the terms of this Agreement
(including a failure, whether unintentional or in good faith or
otherwise, to comply with the diversification requirements specified in
Article VI of this Agreement); or
(v) arise out of or result from any material breach of any
representation and/or warranty made by the Adviser in this Agreement or
arise out of or result from any other material breach of this Agreement
by the Adviser; as limited by and in accordance with the provisions of
Sections 7.2(b) and 7.2(c) hereof.
7.2(b). To the extent indemnification is unavailable to an Indemnified
Party or insufficient in respect of any losses, claims, damages or liabilities,
then the Adviser, in lieu of indemnifying such Indemnified Party, shall
contribute to the amount paid or payable by such Indemnified Party as a result
of such losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Adviser on the one
hand and such Indemnified Party on the other hand from the offering of LLC
interests or Contracts or (ii) if the allocation by (i) above is not permitted
by applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in (i) above but also the relative fault of the
Adviser on the one hand and of the Indemnified Party on the other hand in
connection with the actions or inactions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable considerations.
7.2(c). The 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 or to
each Company or Account, whichever, is applicable.
7.2(d). The Adviser 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 the Adviser 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 the Adviser of any
such claim shall not relieve the Adviser 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,
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the Adviser will be entitled to participate, at its own expense, in the defense
thereof. The Adviser also shall be entitled to assume the defense thereof with
counsel satisfactory to the party named in the action. After notice from the
Adviser to such party of the Adviser'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 Adviser 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.
7.2(e). The Company agrees promptly to notify the Adviser of the
commencement of any litigation or proceedings against it or any of its officers
or directors in connection with the issuance or sale of the Contracts or the
operation of each Account.
7.3. INDEMNIFICATION PAYMENT
7.3. Any obligation under this Article VII to indemnify shall become
immediately due and payable after final entry of a court judgment, settlement or
similar action requiring indemnification which is subject to no further review
and as to which all rights of appeal, if any, have been exhausted.
ARTICLE VIII. APPLICABLE LAW
8.1. This Agreement shall be construed and the provisions hereof
interpreted under and in accordance with the laws of New York.
8.2. This Agreement shall be subject to the provisions of the 1933 and
1940 Acts, and the rules and regulations and rulings thereunder, including such
exemptions from those statutes, rules and regulations as the SEC may grant and
the terms hereof shall be interpreted and construed in accordance therewith.
ARTICLE IX. TERMINATION
9.1. This Agreement shall terminate:
(a) at the option of any party with one year prior written
notice; or
(b) at the option of the Company if LLC interests are not
reasonably available to meet the reasonable requirements of the Contracts as
determined by the Company; or
(c) at the option of LLC or Adviser upon institution of formal
proceedings against the Company by the NASD, the SEC, the insurance commission
of any state or any other regulatory body regarding the Company's duties under
this Agreement or related to the sale of the Contracts, the administration of
the Contracts, the operation of the Account, or the purchase of LLC interests or
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(d) at the option of the Company upon institution of formal
proceedings against LLC or Adviser by the NASD, the SEC, or any state securities
or insurance department or any other regulatory body in which an adverse result
is likely to have a material adverse impact upon the business and operations of
LLC or Adviser, respectively; or
(e) at the option of the Company if LLC fails to meet the
diversification requirements specified in Article VI hereof; or
(f) at the option of any party to this Agreement, upon another
party's material breach of any material provision of this Agreement; or
(g) at the option of the Company, if the Company determines in
its sole reasonable judgment exercised in good faith, that either LLC or the
Adviser has suffered a material adverse change in its business, operations or
financial condition since the date of this Agreement which is likely to have a
material adverse impact upon the business and operations of the Company; or
(h) at the option of LLC or Adviser, if LLC 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 which is likely to have
a material adverse impact upon the business and operations of LLC or Adviser; or
(i) at the option of LLC in the event any of the Contracts are
not issued or sold in accordance with applicable Federal and/or State law.
9.2 NOTICE REQUIREMENT
(a) In the event that any termination of this Agreement is
based upon the provisions of Sections 9.1(b)-(d), prompt written notice of the
election to terminate this Agreement shall be furnished by the party terminating
the Agreement to the non-terminating parties, with said termination to be
effective 10 days after receipt of such notice by the non-terminating parties.
(b) In the event that any termination of this Agreement is
based upon the provisions of Sections 9.1(e)-(i), prior written notice of the
election to terminate this Agreement shall be furnished by the party terminating
this Agreement to the non-terminating parties. Such prior written notice shall
be given by the party terminating this Agreement to the non-terminating parties
at least 30 days before the effective date of termination.
9.3. EFFECT OF TERMINATION
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(a) Notwithstanding any termination of this Agreement pursuant
to Section 9.1 of this Agreement, LLC may, at its option, or in the event of
termination of this Agreement by LLC or the Adviser pursuant to Section 9.1(a)
of this Agreement, the Company may require LLC and the Adviser to continue to
make available additional LLC interests for so long after the termination of
this Agreement as LLC or the Company, if the Company is so requiring, desires
pursuant to the terms and conditions of this Agreement as provided in paragraph
(b) below for all Contracts in effect on the effective date of termination of
this Agreement (hereinafter referred to as "Existing Contracts"). Specifically,
without limitation, if LLC so elects to make available additional LLC interests,
the owners of the Existing Contracts shall be permitted to redeem investments in
LLC and/or invest in LLC upon the making of additional purchase payments under
the Existing Contracts.
(b) In the event of a termination of this Agreement pursuant to
Section 9.1 of this Agreement, LLC shall promptly notify the Company whether LLC
will continue to make available LLC interests after such termination, except
that, with respect to a termination by LLC or the Adviser pursuant to Section
9.1(a) of this Agreement, the Company shall promptly notify LLC whether it
wishes LLC to continue to make available LLC interests. If LLC interests
continue to be made available after such termination, the provisions of this
Agreement shall remain in effect except for Section 9.1(a) and thereafter LLC or
the Company may terminate the Agreement, as so continued pursuant to this
Section 9.4 upon written notice to the other party, such notice to be for a
period that is reasonable under the circumstances.
(c) The provisions of Article VII shall survive termination.
9.4. Except as necessary to implement contractowner initiated or
approved transactions, or as required by state insurance laws or regulations,
the Company shall not redeem LLC interests attributable to the Contracts (as
opposed to LLC interests attributable to the Company's assets held in the
Account), and the Company shall not prevent contractowners from allocating
payments to LLC until 90 days after the Company shall have notified LLC or
Adviser of its intention to do so.
9.5 It is understood that the right to terminate this Agreement
pursuant to Section 9.1(a) may be exercised for any reason or for no reason.
ARTICLE X. 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 in writing
to the other party.
If to LLC or the Adviser: _____________________
_____________________
_____________________
_____________________
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If to LLC or the Company: _____________________
_____________________
_____________________
_____________________
ARTICLE XI. MISCELLANEOUS
11.1. All persons dealing with LLC must look solely to the property of
LLC for the enforcement of any claims against LLC as neither the Board,
officers, agents or shareholders assume any personal liability for obligations
entered into on behalf of LLC.
11.2. Subject to the requirement of legal process and regulatory
authority, each party hereto shall treat as if 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 this Agreement shall not disclose disseminate or utilize such names
and addresses and other confidential information until such time as it may come
into the public domain without the express written consent of the affected
party.
11.3. The captions are for reference only and in no way define or
delineate any of the provision hereof or otherwise affect their construction or
effect.
11.4. This Agreement maybe executed simultaneously in two or more
counterparts, each of which taken together shall constitute one and the same
instrument.
11.5. 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.
11.6. Each party hereto shall cooperate with each other party and all
appropriate governmental authorities (including without limitation the SEC, the
NASD 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.
11.7. 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.
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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 hereto as of the date
specified above.
SELECT TEN PLUS FUND
By: ____________________________
Name: __________________________
Title: _________________________
TOUCHSTONE ADVISORS, INC.
By: ____________________________
Name: __________________________
Title: _________________________
NATIONAL INTEGRITY INSURANCE COMPANY
By: ____________________________
Name: __________________________
Title: _________________________
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