Fund Participation Agreement
This Fund Participation Agreement ("Agreement"), dated as of the 16th day of
December, 1998 is made by and between Nationwide Life Insurance Company and/or
Nationwide Life and Annuity Insurance Company (separately or collectively
"Nationwide") on behalf of the Nationwide separate accounts identified on
Exhibit A which is attached hereto and may be amended from time to time
("Variable Accounts"), and Evergreen Variable Annuity Trust and Evergreen Equity
Trust (collectively the "Funds" and/or "Evergreen"), upon which the parties
hereto may mutually agree to amend from time to time and which the Funds will
make available to serve as an underlying investment medium for variable annuity
contracts and/or variable life insurance policies (collectively referred to
herein as the "Contracts") as set forth in Exhibit A, subject to the following
conditions:
WHEREAS, the Contracts allow for the allocation of net amounts received by
Nationwide to separate sub-accounts of the Variable Accounts for investment in
shares of the Funds and other similar funds; and
WHEREAS, selection of a particular sub-account (corresponding to a particular
Fund) is made by the Contract owner; or, in the case of certain group Contracts,
by participants in various types of retirement plans which have purchased such
group Contracts, and such Contract owners and/or participants may reallocate
their investment options among the sub-accounts of the Variable Accounts in
accordance with the terms of the Variable Accounts in accordance with the terms
of the Contracts; and
WHEREAS, Nationwide and Evergreen mutually desire the inclusion of the Funds as
underlying investment media for variable life insurance policies and/or variable
annuity contracts (collectively, the "Contracts") issued by Nationwide;
NOW THEREFORE, Nationwide and Evergreen, in consideration of the promises and
undertakings described herein, agree as follows:
1. Nationwide represents and warrants that the Variable Accounts have been
established and are in good standing under Ohio Law; and the Variable
Accounts have been registered as unit investment trusts under the Investment
Company Act of 1940 (the "1940 Act") or are exempt from registration pursuant
to section 3(c)(11) of the 1940 Act;
2. Each party recognizes that the services provided for under this Agreement are
not exclusive and that the same skill will be used in performing services in
similar contexts. Nationwide will use its best efforts to give equal emphasis
and promotion to shares of the Funds as is given to other underlying
investments of the Variable Accounts.
3. Subject to the terms and conditions of this Agreement, Nationwide shall be
appointed to, and agrees, to act as a limited agent of Evergreen, for the
sole purpose of receiving instructions for the purchase and redemption of
Fund shares (from Contract owners or participants making investment
allocation decisions under the Contracts) prior to the close of regular
trading each Business Day. "Business Day" shall mean any day on which the New
York Stock Exchange is open for trading and on which the Funds calculate
their net asset value as set forth in the Funds' most recent Prospectuses and
Statements of Additional Information. Except as particularly stated in this
paragraph, Nationwide shall have no authority to act on behalf of Evergreen
or to incur any cost or liability on its behalf.
Evergreen, through its service providers, will use its reasonable best
efforts to provide closing net asset value, change in netasset value,
dividend or daily accrual rate information and capital gain information by
7:00 p.m. Eastern Time each Business Day to Nationwide. Nationwide shall use
this data to calculate unit values. Unit values shall be used to process that
same Business Day's Variable Account transactions. Orders for purchases or
redemptions shall be placed with Evergreen or its specified agent no later
than 9:00 a.m. the next business day in order to get the net asset value of
the previous business day. Orders for shares of Funds shall be accepted at
the time they are received by Evergreen or its specified agent and at the net
asset value price determined as of the close of trading on the previous
Business Day. Evergreen or its specified agent will not accept any order made
on a conditional basis or subject to any delay or contingency. Nationwide
shall only place purchase orders for shares of Funds on behalf of its
customers whose addresses recorded on Nationwide's books are in a state or
other jurisdiction in which the Funds are registered or qualified for sale,
or are exempt from registration or qualification as confirmed in writing by
Evergreen or its specified agent.
Payment for net purchases shall be wired to a custodial account designated by
Evergreen and payment for net redemptions will be wired to an account
designated by Nationwide. Dividends and capital gain distributions shall be
reinvested in additional Fund shares at net asset value. Notwithstanding the
above, Evergreen or its specified agent shall not be held responsible for
providing Nationwide with ex-date net asset value, change in net asset value,
dividend or capital gain information when the New York Stock Exchange is
closed, when an emergency exists making the valuation of net assets not
reasonably practicable, or during any period when the Securities and Exchange
Commission ("SEC") has by order permitted the suspension of pricing shares
for the protection of shareholders.
Nationwide agrees to provide Evergreen or its specified agent, upon request,
written reports indicating the number of shareholders that hold interests in
the Funds and such other information (including books and records) that
Evergreen or its specified agent may reasonably request or as may be
necessary or advisable to enable it to comply with any law, regulation or
order.
4. All expenses incident to the performance by Evergreen under this Agreement
shall be paid by Evergreen. Evergreen shall promptly provide Nationwide, or
cause Nationwide to be provided with, a reasonable quantity of the Funds'
Prospectuses, Statements of Additional Information and any supplements.
Nationwide will bear the responsibility and correlative expense for
administrative and support services for Contract owners. Evergreen recognizes
Nationwide as the sole shareholder of shares of the Funds issued under this
Agreement.
5. Nationwide and its agents shall make no representations concerning the Funds
or Fund shares except those c ontained in the Funds' then current
Prospectuses, Statements of Additional Information or other documents
produced by Evergreen (or an entity on its behalf) which contain information
about the Funds.
Nationwide agrees to allow at least ten days for Evergreen to review any
advertising and sales literature drafted by Nationwide (or agents on its
behalf) with respect to the Funds prior to submitting such material to any
regulator.
6. Evergreen and Nationwide hereby agree and represent that each currently
believe their information technology systems will be Year 2000 Compliant in
accordance with the Year 2000 Compliance requirements of the SEC and the
National Association of Securities Dealers ("NASD"). Each party shall notify
the other if there is a change in the status of their informational
technology systems or upon having a reasonable basis for believing that their
informational technology systems will not be Year 2000 Compliant. Evergreen
agrees to provide Nationwide with written assurances by May 1, 1999, that
their systems or software will be Year 2000 complaint. Evergreen is aware
that failure to be in compliance with Year 2000 requirements can result in
termination of this agreement.
"Year 2000 Compliant" or "Year 2000 Compliance" shall mean that the systems
or software in question shall be able to accurately process date or
date-related data, without creating any logical or mathematical
inconsistencies, from, into and between the twentiet h and twenty-first
centuries, when used in accordance with the specifications set forth for such
systems or software; provided, however, that neither party shall be
responsible for any failure of its systems or software to be Year 2000
Compliant which is caused by or related to the interaction or interface of
such systems or software with the systems or software of a third party which
are not Year 2000 Compliant.
7. Evergreen represents that the Funds are currently qualified as regulated
investment companies under Subchapter M of the Internal Revenue Code of 1986
(the "Code"), as amended, and that the Funds shall make every effort to
maintain such qualification. Evergreen shall promptly notify Nationwide upon
having a reasonable basis for believing that the Funds have ceased to so
qualify, or that they may not qualify as such in the future.
Evergreen represents that the VA Funds currently comply with the
diversification requirements pursuant to Section 817(h) of the Code and
Section 1.817-5(b) of the Federal Tax Regulations and that Evergreen will
make every effort to maintain the VA Funds' compliance with such
diversification requirements, unless the Funds are otherwise exempt from
section 817(h) and/or except as otherwise disclosed in each Fund's
prospectus. Evergreen will notify Nationwide promptly upon having a
reasonable basis for believing that the VA Funds have ceased to so qualify,
or that the VA Funds might not so qualify in the future. Unless otherwise
exempt, Evergreen shall provide to Nationwide a statement indicating
compliance by the VA Funds with Section 817(h) to be received by Nationwide
no later than twenty-five (25) days following the end of each calendar
quarter.
Nationwide represents that the Contracts are currently treated as annuity
contracts or life insurance policies, whichever is appropriate under
applicable provisions of the Code, and that it shall make every effort to
maintain such treatment. Nationwide will promptly notify Evergreen upon
having a reasonable basis for believing that the Contracts have ceased to be
treated as annuity contracts or life insurance polices, or that the Contracts
may not be so treated in the future.
Unless a Fund is exempt from the requirements of section 817(h), Nationwide
represents that each Variable Account is a "segregated asset account" and
that interests in each Variable Account are offered exclusively through the
purchase of a "variable contract", within the meaning of such terms pursuant
to section 1.817-5(f)(2) of the Federal Tax Regulations, that it shall make
every effort to continue to meet such definitional requirements, and that it
shall notify Evergreen immediately upon having a reasonable basis for
believing that such requirements have ceased to be met or that they may not
be met in the future.
Nationwide represents and warrants that the Contracts are, or will be,
registered under the 1933 Act to the extent required by the 1933 Act prior to
any issuance or sale of the Contracts, the Contracts will be issued and sold
in compliance in all material respects with all applicable federal and state
law, and the sale of the Contracts will comply in all material respects with
state insurance suitability requirements.
8. Within five (5) Business Days after the end of each calendar month, Evergreen
shall provide Nationwide a monthly statement of account, which shall confirm
all transactions made during that particular month in the Variable Accounts.
9. Nationwide agrees to inform Evergreen of the existence of or any potential
for any material conflict of interest between the interests of the Contract
owners of the Variable Account investing in the Funds and/or any other
separate account of any other insurance company investing in the Funds. A
material irreconcilable conflict may arise for a variety of reasons,
including but not limited to:
(a) an action by any state insurance or other regulator authority;
(b) a change in applicable federal or state insurance, tax or securities laws
or regulations, public ruling, private letter ruling, or any similar
action by insurance, tax or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant proceeding;
(d) the manner in which the investments of any Fund are being managed; or
(e) a difference in voting instructions given by Contract owners or by
contract owners of different life insurance companies currently utilizing
the Funds. It is agreed that if it is determined by a majority of the
members of the Board of Trustees of the Funds, or a majority of its
disinterested Trustees, that a material conflict exists affecting
Nationwide, Nationwide shall, at its own expense, take whatever steps
necessary to remedy or eliminate such material conflict, which steps may
include, but are not limited to:
(a) withdrawing the assets allocable to some or all of the separate account
from the Funds and
(i) reinvesting such assets in a different investment medium, including
another Fund; or
(ii) submitting the question of whether such segregation should be
subjected to a vote of all affected Contract owners, which may result
in segregating the assets of any particular group (i.e., annuity
Contract owners, variable life insurance Contract owners or qualified
Contract owners) that votes in favor of such segregation or offering
to the affected Contract owners the option of making such a change;
or
(b) establishing a new registered management investment company or managed
separate account and obtaining any necessary approvals or orders of the
SEC in connection therewith.
Evergreen agrees to inform Nationwide of the existence of or any potential for
any material conflict of interest and any possible implications of the same. A
material irreconcilable conflict may arise for a variety of reasons, including
but not limited to:
(a) an action by any state regulatory authority;
(b) a change in applicable federal or state insurance, tax or securities laws
or regulations, public ruling, private letter ruling, or any similar
action by insurance, tax or securities regulatory authorities;
(c) an administrative or judicial decision in any relevant
proceeding; or
(d) the manner in which the investments of any Fund are being managed.
It is agreed that if it is determined by Nationwide that a material conflict
exists affecting Evergreen, Evergreen shall, at its own expense, take whatever
steps are necessary to remedy or eliminate such material conflict.
10. This Agreement shall terminate as to the sale and issuance of new Contracts:
(a) at the option of Nationwide or Evergreen upon at least 60 days advance
written notice to the other;
(b) at any time, upon Evergreen's election, if the Funds determine that
liquidation of the Funds is in the best interest of the Funds and their
beneficial owners. Reasonable advance notice of election to liquidate
shall be furnished by Evergreen to permit the substitution of Fund shares
with the shares of another investment company pursuant to SEC regulation;
(c) if the Contracts are not treated as annuity contracts or life insurance
policies by the applicable regulators or under applicable rules or
regulations;
(d) if the Variable Accounts are not deemed "segregated asset accounts" by the
applicable regulators or under applicable rules or regulations;
(e) at the option of Nationwide, if Fund shares are not available for any
reason to meet the requirements of Contracts as determined by Nationwide.
Reasonable advance notice of election to terminate (and time to cure)
shall be furnished by Nationwide;
(f) at the option of Nationwide or Evergreen, upon institution of relevant
formal proceedings against the broker-dealer(s) marketing the Contracts,
the Variable Accounts, Nationwide or the Funds by the NASD, IRS, the
Department of Labor, the SEC, state insurance departments or any other
regulatory body;
(g) upon a decision by Nationwide, in accordance with regulations of the SEC,
to substitute such Fund shares with the shares of another investment
company for Contracts for which the Fund shares have been selected to
serve as the underlying investment medium. Nationwide shall give at least
60 days written notice to the Funds and Evergreen of any proposal to
substitute Fund shares;
(h) upon assignment of this Agreement unless such assignment is made with the
written consent of each other party; and
(i) in the event Fund shares are not registered, issued or sold pursuant to
Federal law, or such law precludes the use of Fund shares as an underlying
investment medium of Contracts issued or to be issued by Nationwide.
Prompt written notice shall be given by either party to the other in the
event the conditions of this provision occur.
11. Each notice required by this Agreement shall be given orally and confirmed
in writing to:
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Xxx Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx, Xxxx 00000
Attention: Senior Vice President - Life Company Operations
With a copy to:
Nationwide Life Insurance Company
Nationwide Life and Annuity Insurance Company
Xxx Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx, Xxxx 00000
Attention: Compliance Manager - Securities
Evergreen:
Evergreen Funds
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Legal Department
And a copy to:
Evergreen Funds
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxxxx
Any party may change its address by notifying the other party(ies) in
writing.
12. 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,
Nationwide shall distribute all proxy material furnished by Evergreen
(provided that such material is received by Nationwide at least 10 business
days prior to the date scheduled for mailing to Contract owners) and shall
vote Fund shares in accordance with instructions received from the Contract
owners who have such interests in such Fund shares. Nationwide shall vote
the Fund shares for which no instructions have been received in the same
proportion as Fund shares for which said instructions have been received
from Contract owners, provided that such proportional voting is not
prohibited by the Contract owner's related plan or trust document.
Nationwide and its agents will in no way recommend action in connection with
or oppose or interfere with the solicitation of proxies for the Fund shares
held for the benefit of such Contract owners.
Nationwide will provide to Evergreen at least one complete copy of each
report, solicitation for voting instructions, application for exemption,
request for no-action relief, and any amendment to any of the above (or any
amendment to the registration statement, prospectus, statement of additional
information, piece of sales literature or other promotional material) that
relates to the Contracts or the Account, contemporaneously with the filing
of the document with the Commission, the NASD, or other regulatory
authorities.
Evergreen will provide to Nationwide at least one complete copy of each
report, solicitation for voting instructions, application for exemption,
request for no-action relief, and any amendment to any of the above (or any
amendment to the registration statement, prospectus, statement of additional
information, piece of sales literature or other promotional material) that
relates to the Contracts or the Account, contemporaneously with the filing
of the document with the Commission, the NASD, or other regulatory
authorities.
13.
(a) Nationwide agrees to reimburse and/or indemnify and hold harmless
Evergreen and each of its directors, officers, employees, agents and each
person, if any, who controls Evergreen within the meaning of the
Securities Act of 1933 (the "1933 Act") (collectively, "Affiliated Party")
against any losses, claims, damages, liabilities, or expenses, including
amounts paid in settlement with the written consent of Nationwide
("Losses"), to which Evergreen or any such Affiliated Party may become
subject, under the 1933 Act or otherwise, insofar as such Losses (or
actions in respect thereof) arise out of or are based upon, but not
limited to:
(i) any untrue statement or alleged untrue statement of any material fact
contained in information furnished by Nationwide;
(ii) the omission or the alleged omission to state in the Registration
Statements or Prospectuses of the Variable Accounts a material fact
required to be stated therein or necessary to make the statements
therein not misleading;
(iii) conduct, statements or representations of Nationwide or its agents,
with respect to the sale and distribution of Contracts for which Fund
shares are an underlying investment;
(iv) the failure of Nationwide to provide the services and furnish the
materials under the terms of this Agreement;
(v) a breach of this Agreement or of any of the representations contained
herein;
(vi) any failure to register the Contracts or the Variable Accounts under
federal or state securities laws, state insurance laws or to
otherwise comply with such laws, rules, regulations or orders; or
(vii) wrongful conduct in administration of the Contracts or Variable
Accounts.
Provided however, that Nationwide shall not be liable in any such case to
the extent any such statement, omission or representation or such alleged
statement, alleged omission or alleged representation was made in reliance
upon and in conformity with written information furnished to Nationwide by
or on behalf of Evergreen specifically for use therein.
Nationwide shall reimburse any legal or other expenses reasonably incurred
by Evergreen or any Affiliated Party in connection with investigating or
defending any such Losses, provided, however, that Nationwide shall have
prior approval of the use of said counsel or the expenditure of said fees.
This indemnity agreement shall be in addition to any liability which
Nationwide may otherwise have.
(b) Evergreen agrees to indemnify and hold harmless Nationwide and each of its
directors, officers, employees, agents and each person, (collectively,
"Nationwide Affiliated Party"), who controls Nationwide within the meaning
of the 1933 Act against any Losses to which Nationwide or any such
Nationwide Affiliated Party may become subject, under the 1933 Act or
otherwise, insofar as such Losses (or actions in respect thereof) arise out
of or are based upon; but not limited to:
(i) any untrue statement or alleged untrue statement of any material fact
contained in any information furnished by Evergreen, including but not
limited to, the Registration Statements, Prospectuses or sales
literature of the Funds;
(ii) the omission or the alleged omission to state in the Registration
Statements or Prospectuses of the Funds a material fact required to be
stated therein or necessary to make the statements therein not
misleading;
(iii) Evergreen's failure to keep the Funds fully diversified and qualified
as regulated investment companies as required by the applicable
provisions of the Code, the 1940 Act, and the applicable regulations
promulgated thereunder;
(iv) the failure of Evergreen to provide the services and furnish the
materials under the terms of this Agreement;
(v) a breach of this Agreement or of any of the representations contained
herein;
(vi) any failure to register the Funds under federal or state securities
laws or to otherwise comply with such laws, rules, regulations or
orders; or
(vii) wrongful conduct in administration of the Funds.
Provided however, that Evergreen shall not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is
based upon an act or omission of Nationwide or untrue statement or omission
or alleged omission made in conformity with written information furnished to
Evergreen by Nationwide specifically for use therein.
Evergreen shall reimburse any reasonable legal or other expenses reasonably
incurred by Nationwide or any Nationwide Affiliated Party in connection with
investigating or defending any such Losses, provided, however, that
Evergreen shall have prior approval of the use of said counsel or the
expenditure of said fees.
This indemnity agreement will be in addition to any liability which
Evergreen may otherwise have.
(c) Each party shall promptly notify the other party(ies) in writing of any
situation which presents or appears to involve a claim which may be the
subject of indemnification under this Agreement and the indemnifying party
shall have the option to defend against any such claim. In the event the
indemnifying party so elects, it shall notify the indemnified party and
shall assume the defense of such claim, and the indemnified party shall
cooperate fully with the indemnifying party, at the indemnifying party's
expense, in the defense of such claim. Notwithstanding the foregoing, the
indemnified party shall be entitled to participate in the defense of such
claim at its own expense through counsel of its own choosing. Neither party
shall admit to wrong-doing nor make any compromise in any action or
proceeding which may result in a finding of wrongdoing by the other party
without the other party's prior written consent. Any notice given by the
indemnifying party to an indemnified party or participation in or control of
the litigation of any such claim by the indemnifying party shall in no event
be deemed to be an admission by the indemnifying party of culpability, and
the indemnifying party shall be free to contest liability among the parties
with respect to the claim.
This section shall survive the expiration or termination of this Agreement.
14. The forbearance or neglect of any party to insist upon strict compliance by
another party with any of the provisions of this Agreement, whether
continuing or not, or to declare a forfeiture of termination against the
other parties, shall not be construed as a waiver of any of the rights or
privileges of any party hereunder. No waiver of any right or privilege of
any party arising from any default or failure of performance by any party
shall affect the rights or privileges of the other parties in the event of a
further default or failure of performance.
15. This Agreement shall be construed and the provisions hereof interpreted
under and in accordance with the laws of Massachusetts, without respect to
its choice of law provisions and in accordance with the 1940 Act. In the
case of any conflict, the 1940 act shall control.
16. Each party hereby represents and warrants to the other that the persons
executing this Agreement on its behalf are duly authorized and empowered to
execute and deliver the Agreement and that the Agreement constitutes its
legal, valid and binding obligation, enforceable against it in accordance
with its terms. Except as particularly set forth herein, neither party
assumes any responsibility hereunder, and will not be liable to the other
for any damage, loss of data, delay or any other loss whatsoever caused by
events beyond its reasonable control.
17. Nationwide acknowledges that the identity of Evergreen's (and its
affiliates' and/or subsidiaries') customers and all information maintained
about those customers constitute the valuable property of Evergreen.
Nationwide agrees that, should it come into contact or possession of any
such information (including, but not limited to, lists or compilations
of the identity of such customers), Nationwide shall hold such information
or property in confidence and shall not use, disclose or distribute any
such information or property except with Evergreen's prior written consent
or as required by law or judicial process.
Evergreen acknowledges that the identity of Nationwide's (and its
affiliates' and/or subsidiaries') customers and all information maintained
about those customers constitute the valuable property of Nationwide.
Evergreen agrees that, should it come into contact or possession of any
such information (including, but not limited to, lists or compilations of
the identity of such customers), Evergreen shall hold such information or
property in confidence and shall not use, disclose or distribute any such
information or property except with Nationwide's prior written consent
or as required by law or judicial process.
This section shall survive the expiration or termination of this Agreement.
18. Nothing in this Agreement shall be deemed to create a partnership or joint
venture by and among the parties hereto.
19. This Agreement supersedes any and all prior Fund Participation Agreements
made by and between the parties.
20. Except to amend Exhibit A, or as otherwise provided in this Agreement, this
Agreement may not be amended or modified except by a written amendment
executed by each of the parties.
21. This Agreement shall be binding upon and inure to the benefit of the
parties' respective successors.
22. This Agreement may be executed by facsimile signature and it may be executed
in one or more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same instrument.
NATIONWIDE LIFE INSURANCE COMPANY
AND NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
/S/ Xxxxxx X. Xxxx
----------------------------
Date: 12/16/98 By: Xxxxxx X. Xxxx
Title: Vice President
Office of Product and Market
Compliance
EVERGREEN VARIABLE ANNUITY TRUST
AND EVERGREEN EQUITY TRUST ON THEIR
BEHALF AND ON BEHALF OF THE
PORTFOLIOS SET FORTH IN EXHIBIT A
/s/ Xxxxxxx X. Xxxxxx
------------------------------
Date: 12/22/98 By: Xxxxxxx X. Xxxxxx
Title: Secretary
EXHIBIT A
This Exhibit corresponds to the Fund Participation
Agreement dated December 16, 1998.
Variable Accounts Corresponding Corresponding Funds
of Nationwide Nationwide Contracts
------------------- --------------------- ----------------------------
Nationwide Variable -Deferred Variable Evergreen Variable Trust:
Account -6 Annuity Contracts Evergreen VA Aggressive
-Variable Life Growth Fund
Insurance Policies Evergreen VA Foundation Fund
Evergreen VA Fund
Evergreen VA Global Leaders
Fund
Evergreen VA Growth and Income
Fund
Evergreen VA International
Growth Fund
Evergreen VA Strategic
Income Fund
Evergreen Equity Trust:
Evergreen Small Cap Equity
Income Fund (Y Shares)
NACo Variable -Group Flexible Fund Evergreen Equity Trust:
Account Retirement Contracts Evergreen Income and Growth
Fund (Y Shares)
Nationwide DC -Group Flexible Fund Evergreen Equity Trust:
Variable Account Retirement Contracts Evergreen Income and Growth
Fund (Y Shares)
Nationwide Variable -Group Flexible Fund Evergreen Equity Trust:
Account Retirement Contracts Evergreen Income and Growth
Fund (Y Shares)
Amendment No. 1 to Exhibit A
This Amendment No. 1 corresponds to the Fund Participation Agreement
dated December 16, 1998.
Variable Accounts Corresponding Corresponding Funds
of Nationwide Nationwide Contracts
------------------- ---------------------- ----------------------------
Nationwide Variable -Deferred Variable Evergreen Variable Trust:
Account -6 Annuity Contracts Evergreen VA Aggressive
-Variable Life Growth Fund
Insurance Policies Evergreen VA Foundation
Fund
Evergreen VA Fund
Evergreen VA Global Leaders
Fund
Evergreen VA Growth and
Income Fund
Evergreen VA International
Growth Fund
Evergreen VA Strategic
Income Fund
Evergreen VA Masters Fund
Evergreen Equity Trust:
Evergreen Small Cap Equity
Income Fund (Y Shares)
NACo Variable -Group Flexible Fund Evergreen Equity Trust:
Account Retirement Contracts Evergreen Income and Growth
Fund (Y Shares)
Nationwide DC -Group Flexible Fund Evergreen Equity Trust:
Variable Account Retirement Contracts Evergreen Income and Growth
Fund (Y Shares)
Nationwide Variable -Group Flexible Fund Evergreen Equity Trust:
Account Retirement Contracts Evergreen Income and Growth
Fund (Y Shares)
IN WITNESS WHEREOF, the parties hereto cause this Amendment No. 1 to Fund
Participation Agreement to be executed as of the date(s) set forth below:
NATIONWIDE LIFE INSURANCE COMPANY
AND NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
/s/ Xxxxxx X. Xxxx
-------------------------
Date: 12/23/98 By: Xxxxxx X. Xxxx
Title: Vice President
Office of Product and
Market Compliance
EVERGREEN VARIABLE ANNUITY TRUST
AND EVERGREEN EQUITY TRUST ON THEIR
BEHALF AND ON BEHALF OF THE
PORTFOLIOS SET FORTH IN EXHIBIT A
/s/ Xxxxxxx X. Xxxxxx
----------------------------
Date: 12/30/98 By: Xxxxxxx X. Xxxxxx
Title: Secretary
