ADMINISTRATIVE SERVICES AGREEMENT
ADMINISTRATIVE
NATIONWIDE
FINANCIAL SERVICES, INC. (“NFS”), and XXXXXX RETAIL MANAGEMENT LIMITED
PARTNERSHIP (“Distributor”) mutually agree to the arrangements set forth in this
Administrative Services Agreement (the “Agreement”) dated August _[1]_,
2006. NFS and Distributor are referred to collectively herein as the
“Parties.”
WHEREAS,
NFS is the issuer of variable annuity contracts and variable
life insurance policies (the “Contracts”);
WHEREAS,
NFS has entered into a Participation Agreement, dated February 1, 2002, as
amended as of this date (the “Participation Agreement”), with Xxxxxx Variable
Trust, a Massachusetts business trust (the “Trust) and Distributor, pursuant to
which the Trust agreed to make shares of certain of its portfolios, listed
on
Schedule B to the Participation Agreement, as such Schedule may be amended
from
time to time (the “Portfolios”), available for purchase by one or more of NFS’s
separate accounts or divisions thereof (each, a “Separate Account”) for Contract
owners to allocate Contract value;
WHEREAS,
NFS desires to provide certain marketing, administrative and recordkeeping
services (collectively, the “Services”) to Contract owners in connection with
their allocation of Contract value and purchase payments to the
Portfolios;
WHEREAS,
Distributor desires to retain NFS to provide such Services and to compensate
NFS
for providing such services; and
WHEREAS,
NFS is not engaged in directed brokerage activities and in the event that NFS
does engage in directed brokerage activities in the future, NFS represents
and
warrants that it shall abide by the requirements set forth in the
Agreement.
NOW
THEREFORE, the Parties agree as follows:
Section
I – Representations and Warranties
(A) NFS
represents and warrants that it is a holding company duly organized and in
good
standing under applicable state law.
(B) NFS
represents and warrants that it will not accept compensation for promoting
or
selling shares of the Portfolios in the form of commissions on brokerage
transactions directed to it by a Portfolio.
(C) NFS
represents and warrants that it will not accept compensation for promoting
or
selling shares of the Portfolios in the form of commissions directed to it
by
any Portfolio from any broker or dealer which has executed portfolio securities
transactions for that Portfolio.
(D) NFS
represents and warrants that it has not entered into any agreement with any
Portfolio or Distributor or any of Distributor’s affiliates pursuant to which
that Portfolio or Distributor or any of Distributor’s affiliates is expected to
direct brokerage commissions to it to compensate it for promoting or selling
any
Portfolio’s shares.
(E) Distributor represents
and warrants
that it will not offer or pay compensation to NFS for promoting or selling
shares of the Portfolios in the form of commissions on brokerage transactions
directed to it by a Portfolio.
(F) Distributor
represents and warrants that it will not arrange for any broker or dealer which
has executed portfolio securities transactions for a Portfolio to offer or
pay
compensation to NFS for promoting or selling such Portfolio shares in the form
of commissions directed to NFS by any Portfolio.
(G) Distributor
represents and warrants that neither it nor any of its affiliates has entered
or
will enter into any agreement with NFS or any Portfolio pursuant to which that
Portfolio or Distributor or any of its affiliates is expected to direct
brokerage commissions to NFS to compensate it for promoting or selling any
shares of the Portfolios.
Section
II – Services; Payments
(A) NFS
shall
perform all Services with respect to Contract owner values and NFS’s assets from
which investments in shares of the Portfolios are made, including, without
limitation, the following services:
(1) Maintaining
separate records for each Contract owner, which shall reflect the Fund shares
purchased and redeemed and Portfolio share balances attributable to such
Contract owners. NFS will maintain an omnibus account with each
Portfolio on behalf of Contract owners, and such accounts shall be in the name
of NFS (or its nominee) as the record owner of Portfolio shares attributable
to
such Contract owners.
(2) Disbursing
to or crediting to the benefit of Contract owners all proceeds of redemptions
of
shares of the Portfolios in relation to Contract owner requests to redeem their
Contract value and processing all dividends and other distributions reinvested
in shares of the Portfolios.
(3) Preparing
and transmitting to Contract owners, as required by law, periodic statements
showing allocations to sub-accounts investing in the Portfolios, purchases
and
redemptions of Portfolio shares and dividends and other distributions paid
in
relation to Contract owner transaction requests, and such other information
as
may be required, from time to time, by Contract owners.
(4) Maintaining
and preserving all records required by law to be maintained and preserved in
connection with providing the foregoing services for Contract
owners.
(5) Generating
written confirmations to Contract owners, to the extent required by
law.
(6) Distributing
to existing Contract owners, to the extent required by applicable law, of
Portfolio prospectuses, proxy materials, periodic reports to shareholders and
other materials that the Portfolios provide to their shareholders.
(7) Aggregating
and transmitting purchase and redemption orders to the Portfolios on behalf
of,
or with respect to, Contract owners.
(8) Supporting
and responding to service inquiries from Contract owners.
(B) In
consideration of NFS performing the Services, Distributor agrees to pay NFS,
on
a quarterly basis, an administrative services fee at an annualized rate, equal
to the rate provided in Schedule A, of the average daily net assets of Portfolio
shares held by the variable accounts during the period in which they were earned
pursuant to the Participation Agreement. Fees contemplated under this
paragraph (B) shall be wired to NFS pursuant to the wiring instructions in
Schedule B. NFS acknowledges and agrees that Distributor is paying a
fee to NFS for the administrative services that NFS provides.
(C) The
Trust
shall calculate the administrative support services fee at the end of each
calendar quarter and will make such payment to NFS, without demand or notice
by
NFS, as soon as practicable, but not later than 30 days after the end of the
period in which they were earned.
(D) NFS
will
furnish to Distributor or its designees such information as Distributor may
reasonably request, and will otherwise cooperate with Distributor in the
preparation of reports concerning this Agreement, as well as any other reports
or filing that may be required by law.
Section
III – Nature of Payments for Services
The
Parties to this Agreement recognize and agree that Distributor’s payments to NFS
are for administrative services only and do not constitute payment in any manner
for investment advisory services. The amount of administrative expense payments
made by Distributor to NFS pursuant to this Agreement are not intended to
be, and shall
not be deemed to be, indicative of Distributor’s bona fide profits or
of the actual costs to NFS of providing administrative services to
Distributor.
Section
IV – Disclosure
To
the
extent required by law, including without limitation, the Securities Exchange
Act of 1934, the rules thereunder and the applicable rules of any
self-regulatory organization, in effect at any time during the term of this
Agreement, or as requested by Contract owners, NFS agrees to provide written
point of sale disclosure to its Contract owners describing the Services provided
by it pursuant to this Agreement, the payments made by Distributor pursuant
to
this Agreement and the payment schedule(s) agreed to by Distributor pursuant
to
this Agreement in consideration of such Services.
Section
V- Maintenance of Records
Each
party shall maintain and preserve all records as required by law to be
maintained and preserved in connection with providing the services described
herein. Upon the reasonable request of Distributor, NFS will provide
Distributor or its representative, copies of all such records.
Section
VI – Term and Termination
(A) The
provisions of this Agreement shall be deemed effective as of January 1, 2005
and
will continue in effect until December 31, 2006 and shall be automatically
renewed thereafter for successive one-year periods, unless otherwise
terminated.
(B) This
Agreement may be terminated by either party without penalty, upon ninety (90)
days’ prior written notice to the other party. In addition, NFS or
Distributor may terminate this Agreement immediately upon written notice to
the
other: (1) if required by any applicable law or regulation; (2) if NFS or
Distributor engage in any material breach of this Agreement; or (3) in the
event
of an assignment as defined by Section 2(a)(4) of the Investment Company Act
of
1940, as amended. In addition, this Agreement will terminate
immediately and automatically with respect to Portfolios held in the variable
accounts upon the termination of the Participation Agreement, which governs
a
Portfolio’s inclusion as an underlying investment option in the Separate
Accounts and in such event, no notice is required.
Section
VII – Amendment; Entire Agreement
This
Agreement constitutes the entire agreement between the Parties with respect
to
the Services and no modification, amendment or waiver of any of the provisions
of this Agreement shall be effective unless made in writing specifically
referring to this Agreement and signed by the Parties hereto.
Section
VIII – Notices
All
notices and other communications to either NFS or Distributor will be duly
given
if mailed, telegraphed or telecopied to the address set forth below, or at
such
other address as either party may provide in writing to the other
party.
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx
Xxxxxxxx,
Xxxx 2220
Attention: AVP
– Associate General Counsel
Fax
(000)
000-0000
Xxxxxx
Variable Trust
x/x
Xxxxxx LLC
Xxx
Xxxx
Xxxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxxxxx 00000
Attention:
General Counsel
Section
IX - Miscellaneous
(A) Successors
and Assigns. This Agreement shall be binding upon the Parties and
their successors and permitted assigns. The benefits of and the right
to enforce this Agreement shall accrue to the Parties and their, successors
and
assigns. No party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other party.
(B) Intended
Beneficiaries. Nothing in this Agreement shall be construed to
give any person or entity other than the Parties, any legal or equitable claim,
right or remedy. Rather, this Agreement is intended to be for the
sole and exclusive benefit of the Parties.
(C) Counterparts. This
Agreement may be executed in counterparts, each of which shall be deemed an
original but all of which shall together constitute one and the same
instrument.
(D) Applicable
Law. This Agreement shall be interpreted, construed, and enforced
in accordance with the laws of the Commonwealth of Massachusetts.
(E) Severability. This
Agreement shall be severable as it applies to each Portfolio, and action on
any
matter shall be taken separately for each Portfolio affected by the
matter. If any portion of this Agreement shall be found to be invalid
or unenforceable by a court or tribunal or regulatory agency of competent
jurisdiction, the remainder shall not be affected thereby, but shall have the
same force and effect as if the invalid or unenforceable
portion had not been inserted.
(F) Non-Exclusivity Each
of the parties to this Agreement acknowledge and agree that this Agreement
and
the arrangements described herein are intended to be non-exclusive and that
each
of the parties is free to enter into similar agreements or arrangements with
other entities.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
IN
WITNESS WHEREOF, each of the Parties represent and warrant 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 a legal,
valid and binding obligation, and is enforceable in accordance with its
terms.
Nationwide
Financial Services,
Inc.
By:
Name: _[Xxxxx
X.
Xxxxxx]______________
Title: [Attorney-in-Fact]_____
Xxxxxx
Retail Management Limited Partnership
By:
Name _[Xxxx
Comeeny]________________
Title: [Managing
Director]______________
SCHEDULE
A
In
consideration of the performance of the Services by NFS beginning on January
1,
2005 and during the term of this Agreement, NFS shall be compensated as
follows:
a.
|
“Relevant
Assets” shall
mean the Portfolio shares held by the Separate accounts and listed
on
Schedule B of the Participation Agreement as such Schedule may be
amended
from time to time.
|
b.
|
The
Fee shall be calculated and paid each quarter based on the Asset
Based
Component as follows:
|
Asset
Based Component:
Annual
rate of [X.XX%](XX basis points) of the value of the Relevant
Assets. This amount payable shall also be for purposes of reimbursing
NFS to help defray cost certain maintenance costs associated with the Relevant
Assets.
|
c.
|
In
addition, the Distributor agrees to pay NFS a [$X] set up fee, per
each
new Portfolio participating in the Nationwide Advisory Services Program
for Variable Account – 13.
|
Reference
is hereby made, for informational purposes only, to Article VI and Schedule
B of
the Participation Agreement, which provide for certain fees to be paid to NFS
for services rendered in accordance with said Participation Agreement in the
amount and manner set forth therein. SCHEDULE B
BANK
NAME: Bank One – Columbus 000
X. Xxxxx Xx. Xxxxxxxx,
XX 00000
|
BANK
ABA #: XXXXXXXXX
|
ACCOUNT
#: XXXXXXXXX
|
NAME
ON ACCOUNT: Nationwide Investment
Services
|
DESCRIPTION:
|
Please
e-mail backup calculations
to: Xxxxxxx0@xxxxxxxxxx.xxx
|
Mailing
Address:Nationwide Financial Services, Inc.
Attention:
Xxxxx X. Xxxxxx
One
Nationwide Plaza
Columbus,
Ohio 2220
|
Contact
phone #:000 000-0000
|
CONSENT
THIS
CONSENT is executed as of the
_[23]__ day of _[May]_, 2007, by and among Nationwide Financial Services, Inc.
(the “Company”), Xxxxxx Variable Trust (the “Trust”), and Xxxxxx Retail
Management Limited Partnership (the “Underwriter”).
WHEREAS,
the Company, the Trust and the Underwriter are parties to a Participation
Agreement dated as of February 1, 2002 (the “Participation
Agreement”).
WHEREAS,
the Company wishes to consent for all purposes under the Participation Agreement
to the sale of Xxxxxx Investments Trust, the indirect parent company of
the Underwriter, to Great-West Lifeco Inc. or its affiliates (the
“Great-West Transaction”), and each of the parties hereto wish to agree that the
Participation Agreement shall not terminate as a result of the Great-West
Transaction. For the avoidance of doubt, each of Trust and
Underwriter will remain parties to the Participation Agreement upon the closing
of the Great-West Transaction and shall remain subject to the terms and
conditions of the Participation Agreement.
NOW
THEREFORE, in consideration of the mutual promises contained herein, and for
other good and valuable consideration, the parties hereto agree as
follows:
1.
|
For
purposes of the Participation Agreement, the Company hereby expressly
consents to any assignment of the Participation Agreement that will
occur
as a result of the Great-West
Transaction.
|
2.
|
Notwithstanding
anything to the contrary contained in the Participation Agreement,
including, without limitation, Section 6.10 thereof, the Participation
Agreement shall not terminate as a result of the Great-West Transaction,
and shall remain in full force and
effect.
|
3.
|
This
Consent shall be governed and construed and interpreted in accordance
with
the laws of The Commonwealth of
Massachusetts.
|
4.
|
A
copy of the Agreement and Declaration of Trust of the Trust is on
file
with the Secretary of State of the Commonwealth of Massachusetts,
and
notice is hereby given that this instrument is executed on behalf
of the
Trustees of the Trust as Trustees and not individually and that the
obligations of or arising out of this instrument are not binding
upon any
of the Trustees or shareholders individually but binding only upon
the
assets and property of the Trust.
|
IN
WITNESS WHEREOF, the parties hereto have executed this Consent as of
the first above-written date.
XXXXXX
RETAIL MANAGEMENT
|
XXXXXX
VARIABLE TRUST
|
|
LIMITED
PARTNERSHIP
|
By:
By:
Name: Name:
Title:
Title: [Managing
Director]
NATIONWIDE
FINANCIAL SERVICES, INC.
By:
Name:
[Xxxxx X.
Xxxxxx]
Title: [Attorney-in-Fact]