ADMINISTRATIVE SERVICE AGREEMENT
This
Administrative Service Agreement (the “Agreement”), effective this 7th day of
August, 2007 is made by and between Nationwide Financial
Services, Inc. (“NFS”) and Xxxxx Distributors, LLC (the “Company");
WHEREAS,
the Company is responsible for certain administrative functions associated
with
each series of the Funds (each a “Fund”) set forth on Exhibit A, which may be
amended from time to time; and
WHEREAS,
NFS or its designee provide certain administrative services to the owners of
certain variable annuity contracts and/or variable life insurance policies
(collectively, the “Variable Products”) issued by Nationwide Life Insurance
Company, Nationwide Life and Annuity Insurance Company, Nationwide Life
Insurance Company of America and/or Nationwide Life and Annuity Company of
America (collectively, “Nationwide”) through certain Nationwide Variable
Accounts; and
WHEREAS,
the Funds will be included as underlying investment options for the Variable
Products issued by Nationwide through the Variable Accounts pursuant to a Fund
Participation Agreement previously or contemporaneously entered into by
Nationwide and the Company and/or Funds; and
WHEREAS,
the Company recognizes substantial savings of administrative expenses as a
result of NFS or its subsidiaries performing certain administrative services
(“Services”) on behalf of the Funds; and
NOW,
THEREFORE, NFS and the Company, in consideration of the undertaking described
herein, agree that the Funds will be available as underlying investment options
in the Variable Products issued by Nationwide, subject to the
following:
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1.
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NFS
or its designee agrees to provide Services for the contract owners
of the
Variable Products who choose the Funds as underlying investment options.
Such Services will include those described on Exhibit
B.
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2.
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In
consideration for the Services to be provided by NFS to the Variable
Products pursuant to this Agreement, the Company will calculate and
pay
NFS a fee (“Service Fee”) at an annualized rate equal to the rates shown
on Exhibit A of the average daily net assets of each Fund held by
the
Variable Accounts during the period in which they were
earned.
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3.
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The
Service Fees will be paid to NFS as soon as practicable, but no later
than
30 days after the end of the period in which they were
earned. The Service Fees will be paid on a monthly
basis.
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4.
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NFS
and the Company agree that the Service Fee described in this Agreement
is
for administrative services only and does not constitute payment
in any
manner for investment advisory services or the cost of distribution
of the
Funds.
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5.
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The
parties agree that a Service Fee will be paid to NFS according to
this
Agreement with respect to each Fund as long as shares of such Fund
are
held by the Variable Accounts. This provision will survive
termination of this Agreement and the termination of the related
Fund
Participation Agreement(s) with
Nationwide.
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6.
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The
Company recognizes that NFS incurs certain expenses relating to offering
Funds in the Nationwide Advisory Services Program for Variable Account-13.
If the Company has Funds participating in Nationwide Variable Account-13,
the Company agrees to pay a [$X] set up fee, per fund and a [$X]
annual
maintenance fee per year, per fund. NFS will invoice the
Company annually for these fees.
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7.
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Either
party may terminate this Agreement by at least 90 days’ written notice to
the other. In addition, NFS or the Company may terminate this
Agreement immediately upon written notice to the other: (1) if required
by
any applicable law or regulation; (2) if NFS or the Company 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. This Agreement will terminate immediately and
automatically with respect to Funds held in the Variable Accounts
upon the
termination of the Fund Participation Agreement which governs a Fund’s
inclusion as an underlying investment option in the Variable Products
and
in such event no notice is required under this
Agreement.
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8.
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Each
notice required by this Agreement shall be given by wire and confirmed
in
writing to:
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If
to
NFS:
Nationwide
Financial Services,
Inc.
Xxx
Xxxxxxxxxx Xxxxx
Xxxxxxxx,
Xxxx 00000
Attention:
Securities
Officer
Fax:
(000) 000-0000
If
to the
Company:
0000
Xxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxx,
Xxxxxxx 00000
Attention:
Xxxxxxx Xxxx, Chief
Operating Officer
Fax: (000)
000-0000
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11.
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This
Agreement shall be construed and the provisions hereof interpreted
in
accordance with the laws of Ohio. This Agreement shall be
subject to the provisions of the federal securities statutes, rules
and
regulations, 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.
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12.
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Each
of the parties to this Agreement acknowledges and agrees 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.
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13.
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This
Agreement may not be assigned unless agreed to by the parties in
writing,
except that it shall be assigned automatically to any successor either
party, and any such successor shall be bound by the terms of this
Agreement.
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14.
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NFS
agrees to indemnify and hold harmless the Company and their officers
and
directors, from any and all loss, liability and expense resulting
from the
gross negligence or willful wrongful act of NFS under this Agreement,
except to the extent such loss, liability or expense is the result
of the
willful misfeasance, bad faith or gross negligence of the Company
in the
performance of its duties, or by reason of the reckless disregard
of their
obligations and duties under this
Agreement.
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The
Company agrees to indemnify and hold harmless NFS and its officers and directors
from any and all loss, liability and expense resulting from the gross negligence
or willful wrongful act of the Company under this Agreement, except to the
extent that such loss, liability or expense is the result of the willful
misfeasance, bad faith or gross negligence of NFS in the performance of its
duties, or by reason of the reckless disregard of its obligations and duties
under this Agreement.
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 a legal, valid and
binding obligation, and is enforceable in accordance with its
terms.
NATIONWIDE
FINANCIAL SERVICES,
INC.
By:
Name:
Title:
XXXXX
DISTRIBUTORS,
LLC
By:
Name:
Title:
EXHIBIT
A
FUNDS
All
current and future funds available for sale through the Variable Products,
including but not limited to any funds listed below.
Xxxxx
Value Portfolio
Xxxxx
Financial Portfolio
Xxxxx
Real Estate Portfolio
SERVICE
FEES
The
Company agrees to pay NFS an amount equal to XX basis points ([X.XX%]) per
annum
of the average aggregate amount invested by NFS in the Company under this
Agreement. Such payments will be made monthly. From time to time, the Parties
hereto shall review the Service Fee to determine whether it reasonably
approximated the incurred and anticipated costs, over time, of NFS in connection
with its duties hereunder. The parties agree to negotiation in good faith any
change to the Service Fee proposed by another Party in good faith.
EXHIBIT
B
Services
Provided by NFS
Pursuant
to the Agreement, NFS shall perform all administrative and shareholder services
with respect to the Variable Products, including but not limited to, the
following:
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1.
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Maintaining
separate records for each contract owner, which shall reflect the
Fund
shares purchased and redeemed and Fund share balances of such contract
owners. NFS will maintain a single master account with each
Fund on behalf of contract owners and such account shall be in the
name of
NFS (or its designee) as record owner of shares owned by contract
owners.
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2.
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Disbursing
or crediting to contract owners all proceeds of redemptions of shares
of
the Funds and all dividends and other distributions not reinvested
in
shares of the Funds.
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3.
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Preparing
and transmitting to contract owners, as required by law, periodic
statements showing the total number of shares owned by contract owners
as
of the statement closing date, purchases and redemptions of Fund
shares by
the contract owners during the period covered by the statement and
the
dividends and other distributions paid during the statement period
(whether paid in cash or reinvested in Fund shares), and such other
information as may be required, from time to time, by contract
owners.
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4.
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Supporting
and responding to service inquiries from contract
owners.
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5.
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Maintaining
and preserving all records required by law to be maintained and preserved
in connection with providing the Services for contract
owners.
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6.
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Generating
written confirmations and quarterly statements to Contract
owners/participants.
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7.
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Distributing
to contract owners, to the extent required by applicable law, Funds’
prospectuses, proxy materials, periodic fund reports to shareholders
and
other materials that the Funds are required by law or otherwise to
provide
to their shareholders or prospective
shareholders.
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8.
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Transmitting
purchase and redemption orders to the Funds on behalf of the contract
owners.
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