FUND PARTICIPATION AGREEMENT
This
Agreement dated as of the 2nd
day of
May 2005 is made by and among Nationwide Financial Services, Inc.
(including any affiliates and/or subsidiaries listed on Exhibit A), Gartmore
Mutual Fund Capital Trust, which serves as adviser, and Gartmore Distribution
Services, Inc., which services as distributor, to the Gartmore Variable
Insurance Trust (the “Trust”) with respect to its series of shares of beneficial
interest (each, a “Fund,” and collectively, the “Funds”). In this
Agreement, Gartmore Mutual Fund Capital Trust and Gartmore Distribution
Services, Inc. are collectively referred to as “Gartmore.”
WHEREAS,
Nationwide Financial Services, Inc. (“NFS”) or a subsidiary or
affiliate thereof (collectively referred to as “NFS Affiliate/Subsidiary”)
provides administrative and/or recordkeeping services to variable contracts,
which may include, but are not limited to, variable annuity contracts, variable
life insurance policies and various retirements plans, which meet the definition
of retirement plans under Sections 401, 403 and 457 of the Internal Revenue
Code
of 1986, as amended (the “Code”) (collectively, “Contracts”); and
WHEREAS,
NFS Affiliate/Subsidiary may issue variable annuity contracts and variable
life
insurance policies through separate accounts (“Variable Accounts”) as listed on
Exhibit A; and
WHEREAS,
the Contracts allow for the allocation of net amounts received by NFS to
sub-accounts which correspond to each Fund for investment in shares of the
Funds; and
WHEREAS,
selection of a particular sub-account is made by the contract owner or by
participants in various types of retirement plans and such contract owners
and/or participants may reallocate their investment options among the
sub-accounts in accordance with the terms of the Contracts; and
WHEREAS,
NFS and Gartmore mutually desire the inclusion of the Funds as investment
options for the Contracts; and
NOW
THEREFORE, NFS and Gartmore, in consideration of the promises and undertakings
described herein, agree that the Funds will be available in products and
services provided by NFS subject to the following:
REPRESENTATIONS
AND UNDERTAKINGS
REPRESENTATIONS
BY NFS
NFS
or an
NFS Affiliate/Subsidiary agrees to perform certain administrative services
(“Services”) as listed on Exhibit B.
NFS
represents that the NFS Affiliates/Subsidiaries, including Variable Accounts,
have been established and are in good standing under the state law in which
they
were organized. The Variable Accounts are registered under the
Investment Company Act of 1940, as amended (the “1940 Act”), unless otherwise
exempt therefrom.
NFS
and
its agents shall make no representations concerning the Funds or Fund shares
except those contained in the Funds’ then current prospectuses, Statements of
Additional Information or other documents produced by Gartmore (or an entity
on
its behalf) which contain information about the Funds. NFS agrees to
allow a reasonable period of time for Gartmore to review any advertising and
sales literature drafted by NFS (or agents on its behalf) with respect to the
Funds prior to use and prior to submitting such material to any
regulator.
NFS
acknowledges that the identity of Gartmore (and its affiliates’ and/or
subsidiaries’) customers and all information maintained about those customers
constitute the valuable property of Gartmore. NFS 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), NFS shall
hold such information or property in confidence and shall not use, disclose
or
distribute any such information or property except with Gartmore prior written
consent or as required by law or judicial process. This paragraph
shall survive the expiration or termination of this Agreement.
NFS
acknowledges that the services provided for
under this Agreement by Gartmore are not exclusive and
that the same skill will be used in performing services to other companies
in
similar contexts. NFS represents that it will use its best efforts to
give equal emphasis and promotion to shares of the Funds as is given to other
investment options that may be available in NFS contracts.
NFS
represents that the Contracts marketed as annuity contracts and/or life
insurance policies are currently treated as annuity contracts and/or life
insurance policies under the appropriate provisions of the Code, and that it
shall make every effort to maintain such treatment. NFS will promptly
notify Gartmore upon having a reasonable basis for believing that the Contracts
have ceased to be treated as annuity contracts or life insurance policies,
or
that the Contracts may not be so treated in the future.
For
Contracts issued through the Variable Accounts, NFS 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, and that it shall make every effort to continue
to
meet such definitional requirements. NFS shall promptly notify
Gartmore 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.
REPRESENTATIONS
BY GARTMORE
Gartmore
acknowledges that it receives substantial savings as a result of NFS performing
those Services listed on Exhibit B on behalf of the Funds.
Gartmore
and its agents shall make no representations about NFS except those contained
in
publicly available documents or other documents produced by NFS (or an entity
on
its behalf). Gartmore agrees to allow a reasonable period of time for
NFS to review any advertising and sales literature drafted by Gartmore (or
agents on its behalf) with respect to NFS prior to use and prior to submitting
such material to any regulator.
Gartmore
acknowledges that the identity of NFS (and its affiliates’ and/or subsidiaries’)
customers and that all information maintained about those customers constitute
the valuable property of NFS. Gartmore 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), Gartmore shall
hold such information or property in confidence and shall not use, disclose
or
distribute any such information or property except with NFS’ prior written
consent or as required by law or judicial process. This paragraph
shall survive the expiration or termination of this Agreement.
Gartmore
acknowledges that the services provided for under this Agreement by NFS or
an
NFS Affiliate/Subsidiary are not exclusive and that the same skill will be
used
in performing services to other companies in similar
contexts. Gartmore represents that it will use its best efforts to
give equal emphasis and promotion to NFS as is given to companies in similar
contexts.
Gartmore
represents that the Funds are currently qualified as regulated investment
companies under Subchapter M of the Code, and that the Funds shall make every
effort to maintain such qualification. Gartmore shall promptly notify
NFS 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.
Gartmore
represents that any insurance Funds utilized in the Contracts 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, if required, and that such
Funds will make every effort to maintain the 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. Gartmore will notify NFS promptly upon having a
reasonable basis for believing that the Funds have ceased to so qualify, of
that
the Funds might not so qualify in the future.
CUSTOMER
PRIVACY
Gartmore
acknowledges that it has read, and to the extent applicable agrees to comply
with the Nationwide’s privacy policy that is explained in Nationwide’s Privacy
Statement, herein attached as Exhibit F, which may be updated from time to
time.
Gartmore
agrees to comply with all laws, rules, regulations, and ordinances relating
to
privacy, confidentiality, security, data security, and the handling of customer
information which may from time to time be established.
Gartmore
agrees not to disclose or use any consumer nonpublic personal information
(including nonpublic personal financial information and nonpublic personal
health information), which may be supplied by Nationwide to Gartmore in
performance under this Agreement other than to:
(a) carry
out the purpose for which the information was provided; and
(b) to
use or disclose the information as otherwise permitted or required by
law
NFS
agrees to comply with all laws, rules, regulations, and ordinances relating
to
privacy, confidentiality, security, data security, and the handling of customer
information which may from time to time be established.
NFS
agrees not to disclose or use any consumer nonpublic personal information
(including nonpublic personal financial information and nonpublic personal
health information), which may be supplied by Gartmore to NFS in performance
under this Agreement other than to:
(a) carry
out the purpose for which the information was provided; and
(b) to
use or disclose the information as otherwise permitted or required by
law
This
provision will survive and continue in full force and effect after the
termination of this Agreement.
TRADING
Subject
to the terms and conditions of this Agreement, NFS shall be appointed to, and
agrees to act, as a limited agent of Gartmore for the sole purpose of receiving
instructions from authorized parties as defined by the Contracts for the
purchase and redemption of Fund shares prior to the close of regular trading
each Business Day. A “Business Day” shall mean any day on which the
New York Stock Exchange is open for trading and on which the Fund calculates
its
net asset value as set forth in the Fund’s most recent prospectus and Statement
of Additional Information. Except as particularly stated in this
paragraph, NFS shall have no authority to act on behalf of Gartmore or to incur
any cost or liability on its behalf.
Until
such time as Gartmore and NFS are able to utilize the National Securities
Clearing Corporation (“NSCC”) Defined Contribution Clearing and Settlement
(“DCC&S”) Fund/SERV system; Gartmore will use its best efforts to provide to
NFS or its designated agent closing net asset value, change in net asset value,
dividend or daily accrual rate information and capital gain information by
7:00
p.m. Eastern Time each Business Day. NFS or its agent shall use this
data to calculate unit values. Unit values shall be used to process
the same Business Day’s contract transactions. Orders derived from,
and in amounts equal to, instructions received by NFS prior to the Close of
Trading on the New York Stock Exchange on any Business Day (“Day 1”) shall be
transmitted without modification (except for netting or aggregating such orders)
to Gartmore by 9:00 a.m. Eastern Time on the next Business Day. Such
trades will be affected at the net assets value of each Fund’s shares calculated
as of the Close of Trading on Day 1. Gartmore will not accept any
order made on a conditional basis or subject to any delay or
contingency. NFS shall only place purchase orders for shares of Funds
on behalf of its customers whose addresses recorded on NFS’ 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 confined in writing by
Gartmore.
Until
such time as Gartmore and NFS are able to utilize the DCC&S Fund/SERV
system, each party shall, as soon as practicable after its receipt of an
instruction or confirmation transmitted, verify its receipt of such instruction
or confirmation, and in the absence of such verification such a party to whom
an
instruction or confirmation is sent shall not be liable for any failure to
act
in accordance with such instruction or confirmation, and the sending party
may
not claim that such an instruction or confirmation was received by the
other. Each party shall notify the other of any errors, omissions or
interruptions in, or delay or unavailability as promptly as
possible.
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(a)
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For
those purchase orders not transmitted via the DCC&S Fund/SERV system,
NFS shall initiate payment to Gartmore or its designated agent in
federal
funds no later than 1:00 p.m. on the Business Day following the
day on which the instructions are treated as having been received
by
Gartmore pursuant to this
Agreement.
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(b)
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For
those redemption orders not transmitted via the DCC&S Fund/SERV
system, Gartmore or its designated agent shall initiate payment in
federal
funds no later than 1:00 p.m. on the Business Day following the day
on
which the instructions are treated as having been received by Gartmore
pursuant to this Agreement.
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At
such
time as Gartmore and NFS are able to transmit information via the NSCC’s
DCC&S Fund/SERV System:
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(a)
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Orders
derived from, and in amounts equal to, instructions received by NFS
prior
to the Close of Trading on Day 1 shall be transmitted without modification
(except for netting and aggregation of such orders) via the NSCCs
DCC&S Fund/SERV system to Gartmore no later than 5:00 A.M. Eastern
Time on the Next Business Day. Such trades will be effected at
the net asset value of each Fund’s shares calculated as of the Close of
Trading on Day 1.
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(b)
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Gartmore
and NFS shall mutually agree there may be instances when orders shall
be
transmitted to Gartmore via facsimile no later than 9:00
A.M. rather than through the DCC&S Fund/SERV
system. In such instances, such orders shall be transmitted to
Gartmore via facsimile no later than 9:00 A.M. Eastern Time on the
next
Business Day.
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(c)
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With
respect to purchase and redemption orders received by Gartmore on
any
Business Day for any Fund, within the time limits set forth in this
Agreement, settlement shall occur consistent with the requirements
of
DCC&S Fund/SERV system.
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At
such
time as Gartmore and NFS are able to transmit information via the DCC&S
Fund/SERV system; Gartmore or its designated agent shall send to NFS, via the
DCC&S Fund/SERV system, verification of net purchase or redemption orders or
notification of the rejection of such orders (“Confirmations “) on each Business
Day for which NFS has transmitted such orders. Such confirmations
shall include the total number of shares of each Fund held by NFS following
such
net purchase or redemption. Gartmore, or its designated agent, shall
submit in a timely manner, such confirmations to the DCC&S Fund/SERV system
in order for NFS to receive such confirmations no later than 11:00 A.M. Eastern
Time the next Business Day. Gartmore or its designated agent will
transmit to NFS via DCC&S NETWORKING system those Networking activity files
reflecting account activity. In addition, within five (5) business
days after the end of each month, Gartmore or its affiliate will send NFS a
statement of account which shall confirm all transactions made during that
particular month in the account.
DOCUMENTS
AND OTHER MATERIALS
DOCUMENTS
PROVIDED BY NFS
NFS
agrees to provide Gartmore and/or the Trust, upon written request, any reports
indicating the number of shareholders that hold interests in the Funds and
such
other information (including books and records) that Gartmore may reasonably
request or as may be necessary or advisable to enable it to comply with any
law,
regulation or order.
DOCUMENTS
PROVIDED BY GARTMORE
Within
10
Business Days after the end of each calendar month, Gartmore shall provide
NFS,
or its designee, a monthly statement of account, which shall confirm all
transactions made during that particular month.
Gartmore
shall promptly provide NFS, or cause NFS to be provided with, a reasonable
quantity of the Funds’ prospectuses, Statements of Additional Information and
any supplements thereto.
NOTICE
Each
notice required by this Agreement shall be given in writing to:
NFS
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx 0-00-X0
Xxxxxxxx,
Xxxx 00000
Attention
Securities Officer
Fax
Number: (000) 000-0000
Gartmore
Mutual Fund Capital Trust
0000
Xxxxx Xxxx
Xxxxxxxxxxxx,
XX 00000
Attention: Treasurer
Fax
Number: (000) 000-0000
Any
party
may change its address by notifying the other party(ies) in
writing.
VOTING
For
Variable Accounts that are registered under the 1940 Act and so long as and
to
the extent that the U.S. Securities and Exchange Commission (“SEC”) continues to
interpret the 1940 Act to require pass-through voting privileges for variable
contract owners, NFS shall distribute all proxy material furnished by Gartmore
(provided that such material is received by NFS or its designated agent 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 interests in such Fund shares. NFS 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
the contract owners, provided that such proportional voting is not prohibited
by
a contract owner’s plan or trust document, if applicable. NFS and its
agents will in no way recommend an action in connection with or oppose or
interfere with the solicitation of proxies in the Fund shares.
EXPENSES
All
expenses incident to the performance by NFS under this Agreement shall be paid
by NFS. Likewise, all expenses incident to the performance by
Gartmore under this Agreement shall be paid by Gartmore.
NFS
shall
not bear any of the expenses for the cost of registration of the Funds’ shares,
preparation of the Funds’ prospectuses, proxy materials, and reports and the
preparation of other related statements and notices required by law except
as
otherwise mutually agreed upon by the parties to the Agreement.
Should
a
Fund no longer be available in an NFS contract, Gartmore shall be responsible
for any and all expenses incurred as a result of removing such Fund as an
available investment option under the Contract.
For
NFS’
annual mailing to customers of product and Fund prospectuses, Gartmore will
pay
the lesser of :
(a) The
cost to print individual Fund prospectuses; or
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(b)
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Gartmore’s
portion of printing costs if NFS does not use individual prospectuses,
but
reprints Fund prospectuses in another
format.
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Should
NFS desire to no longer have a Fund available in an NFS contract, NFS shall
be
responsible for any and all expenses incurred as a result of removing such
Fund
as an available investment option under the Contract.
Should
a
removal of a fund as an available investment option be mutually desired by
the
parties, the parties agree to equally share any expenses incurred as a result
of
removing such Fund as an available investment option.
Both
NFS
and Gartmore agree to provide reasonable advance notice of the election to
remove a Fund as an available investment option in order to permit the parties
to file documentation as may be required under applicable law.
CONFLICTS
Each
party agrees to inform the other of the existence of, or any potential for,
any
material conflicts of interest between the parties and any possible implications
of the same.
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 the Funds’ Trustees who are not
“interested persons” (as defined in the 0000 Xxx) of any party to this Agreement
or with respect to the distribution plan adopted by the Trust under Rule 12b-1
under the 1940 Act (“Rule 12b-1”), that a material conflict exists caused by
NFS, NFS shall at its own expense, take whatever steps are necessary to remedy
or eliminate such material conflict.
It
is
agreed that if it is determined by NFS that a material conflict exists caused
by
Gartmore, Gartmore shall at its own expense, take whatever steps are necessary
to remedy or eliminate such material conflict.
INDEMNIFICATION
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
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 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.
INDEMNIFICATION
BY NFS
NFS
agrees to reimburse and/or indemnify and hold harmless Gartmore and each of
its
directors, officers, employees, agents and each person, if any, who controls
Gartmore within the meaning of the Securities Act of 1933, as amended (the
“1933
Act”), (collectively, “Gartmore Affiliated Party”) against any losses, claims,
damages or liabilities (“Gartmore Losses”) to which Gartmore or any such
Gartmore Affiliated Party may become subject under the 1933 Act or otherwise,
insofar as such Gartmore Losses (or actions in respect thereof) arise out of
or
are based upon, but not limited to:
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(1)
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Any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by
NFS;
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(2)
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The
omission or alleged omission to state in the registration statements,
prospectuses, informational brochures or other similar material of
NFS or
with respect to the Trust or any of the Funds, a material fact required
to
be stated therein or necessary to make the statements therein with
respect
to the Trust or any of the Funds not
misleading;
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(3)
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Conduct,
statements or representations of NFS or its agents, with respect
to the
sale and distribution of Contracts for which Fund shares are an investment
option;
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(4)
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The
failure of NFS or an NFS Affiliate/Subsidiary to provide the services
and
furnish the materials under the terms of this
Agreement;
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(5)
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A
breach of this Agreement or of any of the representations contained
herein; or
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(6)
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Any
failure to register Contracts or Variable Account that do not meet
any
exemptions under federal or state securities laws, state insurance
laws or
failure to otherwise comply with applicable laws, rules, regulations
or
orders.
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Provided
however, that NFS shall not be liable in any such case to the extent that 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 NFS by or on behalf of Gartmore
specifically for use therein. NFS shall reimburse any legal or other
expenses reasonably incurred by Gartmore or any Gartmore Affiliated Party in
connection with investigating or defending any such Gartmore Losses, provided
however, that NFS 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 that NFS may otherwise
have.
INDEMNIFICATION
BY GARTMORE
Gartmore
agrees to reimburse and/or indemnify and hold harmless NFS and/or NFS
Affiliate/Subsidiary and each of its directors, officers, employees, agents
and
each person, if any, who controls NFS or NFS Affiliate/Subsidiary within the
meaning of the 1933 Act (collectively, “NFS Affiliated Party”) against any
losses, claims, damages or liabilities (“NFS Losses”) to which NFS, NFS
Affiliate/Subsidiary or any such NFS Affiliated Party may become subject under
the 1933 Act or otherwise, insofar as such NFS Losses (or actions in respect
thereof) arise out of or are based upon, but not limited to:
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(1)
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Any
untrue statement or alleged untrue statement of any material fact
contained in information furnished by Gartmore, including but not
limited
to, the registration statements, prospectuses, or sales literature
of the
Funds;
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(2)
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The
omission or alleged omission to state in such registration statements,
prospectuses, informational brochures or other similar material,
a
material fact required to be stated therein or necessary to make
the
statements therein no misleading;
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(3)
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A
failure to keep applicable Funds qualified as regulated investment
companies as required by the 1940 Act and applicable regulations
thereunder, and if applicable, fully diversified as is required by
the
Code and applicable regulations
thereunder;
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(4)
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The
failure of Gartmore to provide the services and furnish the materials
under the terms of this Agreement;
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(5)
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A
breach of this Agreement or of any of the representations contained
herein; or
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(6)
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A
failure to register the Funds under federal or state securities laws
or to
otherwise comply with such laws, rules, regulations or
orders.
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Provided
however, that Gartmore shall not be liable in any such case to the extent that
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 Gartmore by or on behalf of NFS
specifically for use therein.
Gartmore
shall reimburse any legal or other expenses reasonably incurred by NFS or any
NFS Affiliated Party in connection with investigating or defending any such
NFS
Losses, provided however, that Gartmore 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 Gartmore may
otherwise have.
SERVICE
FEES
In
consideration for the Services provided by NFS pursuant to this Agreement,
Gartmore will calculate and pay, or cause one of its affiliates to pay, and
NFS
or an NFS Affiliate/Subsidiary that is registered as a broker/dealer, will
be
entitled to receive from Gartmore a fee (“Service Fee”). Such fee
will be calculated at an annualized rate equal to the rates shown on Exhibit
C
of the average daily net assets of each Fund for which NFS performed
administrative services during the period in which they were
earned.
The
Service Fees will be paid to NFS, or its designee, by electronic funds transfer
as soon as practicable, but no later than 30 days after the end of the period
in
which they were earned. If the Fund assets administered by NFS are
less than $1 billion as of December 31 of the prior calendar year, the Service
Fees will be paid on a quarterly basis. Once assets are greater than
$1 billion, the Service Fees will be paid on a monthly basis. The
Service Fee payment will be accompanied or preceded by a statement showing
the
calculation of the amounts being paid by Gartmore for the relevant period and
such other supporting data as may be reasonably requested by NFS.
The
Service Fee shall be paid either by:
(a) Gartmore
or one of its affiliates from general operating funds;
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(b)
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Gartmore
or one of its affiliates from funds received pursuant to a shareholder
service plan (“Rule 12b-1 Plan”) a copy of which is attached as Exhibit D
and incorporated herein by reference. Services are listed on
Exhibit E.
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(c)
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Administrative
Services fee paid by the Funds; or
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(d)
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A
combination thereof.
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The
Service Fee shall be calculated as an annualized percentage of the average
aggregate amount invested in the Funds for the applicable period. The
average aggregate amount shall be computed by totaling the aggregate investment
on each business day during the period and dividing by the total number of
Business Days during the period.
The
parties agree that a Service Fee will be paid to NFS or its designee according
to this Agreement with respect to each Fund as long as shares of such Fund
are
held by an NFS Affiliate/Subsidiary on behalf of the beneficial owners of
contracts issued by an NFS Affiliate/Subsidiary. This provision will
survive the termination of this Agreement.
Fees
paid
pursuant to a Rule 12b-l Plan may be terminated at any time, without the payment
of any penalty, by the vote of a majority of the members of the Board of
Trustees of the Trust who are not interested persons of the Trust and who have
no direct or indirect financial interest in the operation of the Rule 12b-1
Plan
or in any related agreements to the Rule 12b-l Plan (“Disinterested Trustees”)
or by a majority of the outstanding voting securities of the applicable Fund
or
Funds and/or applicable class or classes of such Fund or Funds, upon delivery
of
written notice thereof to the parties to this Agreement.
NFS
and
Gartmore agree that the Service Fees described in this Agreement are for
administrative and distribution services of the Funds only, and do not
constitute payment in any manner for investment advisory services for the Fund
or for costs of administrative and distribution services on behalf of the
Contracts.
COMPLIANCE
WITH AGREEMENT
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 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.
TERMINATION
This
Agreement shall terminate as to the availability of shares of the Funds for
new
Contracts:
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(1)
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at
the option of NFS or Gartmore upon at least 90 days’ advance written
notice to the other;
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(2)
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at
any time upon Gartmore’s election, if the Funds determine that liquidation
of the Funds is in the best interest of the Funds or their beneficial
owners (reasonable advance notice of election to liquidate
shall be provided to NFS in order to permit the substitution of Fund
shares, if necessary, with shares of another investment company pursuant
to the 1940 Act and other applicable securities
regulations);
|
|
|
(3)
|
if
the applicable annuity contracts and life insurance policies are
not
treated as annuity contracts or life insurance policies by the applicable
regulators or under applicable rules and
regulations;
|
|
|
(4)
|
if
the Variable Accounts are not deemed “segregated asset accounts” by the
applicable regulators or under applicable rules and
regulations;
|
|
|
(5)
|
at
the option of NFS, if Fund shares are not available for any reason
to meet
the requirements of Contracts as determined by NFS (reasonable advance
notice of election to terminate (and time to cure) shall be furnished
by
NFS);
|
|
|
(6)
|
at
the option of NFS or Gartmore, upon institution of relevant formal
proceedings against the broker-dealer(s) marketing the Contracts,
the
Variable Accounts, NFS, an NFS Affiliate/Subsidiary or the Funds
by the
National Association of Securities Dealers, Inc., the U.S. Internal
Revenue Service, the U.S. Department of Labor, the SEC, state insurance
departments or any other regulatory
body;
|
|
|
(7)
|
upon
a decision by NFS, in accordance with the 1940 Act and applicable
regulations, 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 (NFS shall
give at
least 60 days’ written notice to Gartmore of any proposal to substitute
Fund shares);
|
|
|
(8)
|
upon
assignment of this Agreement unless such assignment is made with
the
written consent of each party; and
|
|
|
(9)
|
in
the event Fund shares are not registered, issued or sold pursuant
to
federal law and state securities laws, or such laws preclude the
use of
Fund shares as an underlying investment medium of Contracts issued
or to
be issued by an NFS Affiliate/Subsidiary (prompt written notice shall
be
given by either party to the other in the event the conditions of
this
provision occur).
|
JURISDICTION
This
Agreement shall be construed and the provisions hereof interpreted under and
in
accordance with the laws of Ohio, 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.
PARTNERSHIPS/JOINT
VENTURES
Nothing
in this Agreement shall be deemed to create a partnership or join venture by
and
among the parties hereto.
AMENDMENTS
TO THIS AGREEMENT
This
Agreement supersedes any and all prior Agreements made by and between the
parties.
This
Agreement may not be amended or modified except by a written amendment, which
includes any amendments to the Exhibits, executed by all parties to the
Agreement.
EXECUTION
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. Except as particularly set forth herein, neither party assumes
any responsibility hereunder and will not be liable to the other for any
damages, loss of data, delay or any other loss whatsoever caused by events
beyond its control.
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
FINANCIAL SERVICES, INC.
__________________________________
By: [Xxxxx
X. Xxxxxx
Title: Product
Officr
|
GARTMORE
MUTUAL FUND CAPITAL TRUST
________________________________
By: Xxxxxx
X. Xxxxxxx
Title: Senior
Vice President
|
|
GARTMORE
DISTRIBUTION SERVICES, INC.
____________________________________
By: Xxxxxx
X. Xxxxxxx
Title: Senior
Vice President
|
EXHIBIT
A
This
Exhibit corresponds to the Fund Agreement dated as of May 2, 2005.
Registered
Broker Dealers
Nationwide
Investment Services Corporation
Affiliates
and Subsidiaries
Nationwide
Life Insurance Company
Nationwide
Life and Annuity Insurance Company
Nationwide
Life Insurance Company of America
Nationwide
Life and Annuity Insurance Company of America
Nationwide
Trust Company, FSB
Nationwide
Retirement Solutions, Inc.
National
Deferred Compensation, Inc.
Nationwide
Retirement Solutions of Alabama, Inc.
Nationwide
Retirement Solutions of Arizona, Inc.
Nationwide
Retirement Solutions of Arkansas, Inc.
Nationwide
Retirement Solutions of Montana, Inc.
Nationwide
Retirement Solutions of Nevada, Inc.
Nationwide
Retirement Solutions of New Mexico, Inc.
Nationwide
Retirement Solutions of Ohio, Inc.
Nationwide
Retirement Solutions of Oklahoma, Inc.
Nationwide
Retirement Solutions of South Dakota, Inc.
Nationwide
Retirement Solutions of Texas, Inc.
Nationwide
Retirement Solutions of Wyoming, Inc.
Variable
Accounts
Nationwide
Variable Account - II
Nationwide
Variable Account - 3
Nationwide
Variable Account - 4
Nationwide
Variable Account - 5
Nationwide
Variable Account - 6
Nationwide
Variable Account - 7
Nationwide
Variable Account - 8
Nationwide
Variable Account - 9
Nationwide
Variable Account - 10
Nationwide
Variable Account - 11
Nationwide
Variable Account - 11
Nationwide
Variable Account - 12
Nationwide
Variable Account –13
Nationwide
Variable Account –14
Nationwide
Variable Account –15
Nationwide
Variable Account –16
Multi-Flex
Variable Account –
Nationwide
VA Separate Account – A
Nationwide
VA Separate Account – B
Nationwide
VA Separate Account – C
Nationwide
VA Separate Account – D
Nationwide
VLI Separate Account
Nationwide
VLI Separate Account – 2
Nationwide
VLI Separate Account – 3
Nationwide
VLI Separate Account – 4
Nationwide
VL Separate Account
Nationwide
VL Separate Account – A
Nationwide
VL Separate Account – B
Nationwide
VL Separate Account – C
Nationwide
VL Separate Account – D
Nationwide
VL Separate Account – E
Nationwide
DC Variable Account
Nationwide
DC Variable Account – II
NACo
Variable Account
Nationwide
Governmental Plans Variable Account
Nationwide
Governmental Plans Variable Account - II
Nationwide
Qualified Plans Variable Account
Nationwide
Private Placement Variable Account
Nationwide
Private Placement Variable Account – II
Ohio
DC
Variable Account
EXHIBIT
B
Administrative
Services Provided by NFS
Pursuant
to the Agreement, NFS shall perform all administrative and shareholder services
with respect to the Contracts (including various retirements plans, which meet
the definition of retirement plans under Sections 401, 403 and 457 of the Code
(each, a “Plan”)), including but not limited to, the following:
|
1.
|
Maintaining
separate records for each Contract owner and each Plan, which shall
reflect the Fund shares purchased and redeemed and Fund share balances
of
such Contract owners and Plans. Nationwide will maintain
accounts with each Fund on behalf of Contract owners and Plans, and
such
account shall be in the name of Nationwide (or its nominee) as the
record
owner of shares owned by such Contract owners and
Plans.
|
|
2.
|
Disbursing
or crediting to Contract owners and Plans all proceeds of redemption
of
shares of the Funds and all dividends and other distributions not
reinvested in shares of the Funds.
|
|
3.
|
Supporting
and responding to service inquiries about the Trust and the Funds
from
Contract owners and Plans.
|
|
4.
|
Maintaining
and preserving all records required by law to be maintained and preserved
in connection with providing the Services for Contract owners and
Plans.
|
|
5.
|
Distributing
to Contract owners and Plans, 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.
|
|
6.
|
Receiving,
aggregating and processing purchase and redemption orders from Contract
owners and Plans and placing net purchase and redemption orders with
the
Funds’ transfer agent on behalf of the Contract owners and
Plans.
|
EXHIBIT
C
This
Exhibit corresponds with the Agreement dated as of [May 2,
2005].
|
GVIT
Funds
|
Basis
Points per annum
|
|
Variable
Annuity and Variable Life:
Class
I, Class III, and Class IV – All funds, except those otherwise
noted
|
___bps
|
|
Class
II – All Funds
|
___bps
|
|
Money
Market Fund
|
___
bps
|
|
Money
Market Fund Class V
|
___
bps
|
|
Money
Market Fund II
|
___bps
|
|
GVIT
Investor Destinations Funds
|
___bps
|
|
GVIT
Mid Cap Index Class I – Products launched before 11/1/97
|
___
bps
|
|
GVIT
Mid Cap Index Class I – Products launched on or after
11/1/97
|
___bps
|
|
Gartmore
GVIT Global Health Sciences Class III – Choice Venue Product
Only
|
___bps
|
|
Gartmore
GVIT U.S. Growth Leaders Fund Class III – Choice Venue Product
Only
|
___bps
|
|
2003
New VA/VL Menus:
|
|
|
Xxx
Xxxxxx GVIT Multi-Sector Bond Fund Class I
|
___bps
|
|
Federated
GVIT High Income Bond Fund Class I
|
___bps
|
|
Class
IV Shares of specific GVIT funds (Provident Distribution
Only):
|
|
|
Equity
500 Fund
|
___bps
|
|
Mid
Cap Growth Fund
|
___bps
|
|
Money
Market Fund
|
___
bps
|
|
457
and 401(k)
|
|
|
Equity
Funds
|
___bps
|
|
Fixed
Income
|
___
bps
|
|
Money
Market Fund
|
___
bps
|
|
Nationwide
Trust Company Program – One-Time Set-Up Fee for funds added to the program
beginning in October, 2002
|
$______
|
|
Nationwide
Advisory Services (Wrap) Program – One Time Set-Up Fee for
Funds
|
$______
|
|
Nationwide
Advisory Services (Wrap) Program – Annual Maintenance Fee
|
$______
|
EXHIBIT
D (12b-1 Plan)
EXHIBIT
E
Services
Provided By NFS For 12b-1 Fees
NFS
shall
perform services including, but are not limited to, some or all of the
following:
Shareholder
services:
(a) Answering
routine shareholder inquiries regarding the Funds.
(b) Providing
information to shareholders on their investments in the Funds.
|
|
(c)
|
Processing
purchase, exchange and redemption requests from customers and placing
orders with GDSI or the Funds’ designated transfer
agent.
|
|
|
(d)
|
Providing
personnel and communication equipment used in connection
therewith.
|
|
|
(e)
|
Providing
such other services as Distributor may reasonably
request.
|
|
|
(f)
|
Preparing
such quarterly reports for Distributor as shall reasonably be required
by
Distributor.
|
|
|
(g)
|
Maintaining
records of sales, redemptions and repurchases of Shares and furnishing
the
Distributor with such records on
request.
|
|
|
(h)
|
Distributing
Prospectuses and reports to the
Client-shareholders.
|
|
|
Distribution
Fee:
|
|
|
(a)
|
GDSI
or an affiliate can make payments to broker/dealers and other eligible
institutions for distribution assistance pursuant to an agreement
with the
Broker/Dealer; and
|
|
|
(b)
|
Reimbursement
pursuant to an agreement in connection with distribution assistance
including, but not limited to, the reimbursement of expenses relating
to
printing and distributing advertising, sales literature and reports
to
shareholders.
|
EXHIBIT
F
Nationwide
Privacy Statement
Nationwide
Financial Privacy Statement
Nationwide
values you as a customer and respects your right to privacy. We
recognize that you purchase our products and services because you trust that
we
will stand behind our promises. In turn, we pledge our commitment to
treating your information responsibly. The Nationwide Financial
companies listed below have established the following policies to assure you
that we are committed to protecting your privacy.
How
do we protect the confidentiality and security of your
information?
We
maintain physical, electronic and procedural safeguards to ensure your personal
information is treated responsibly and in accordance with our privacy
policy. We also restrict access to your personal information within
our organization to those employees who need to know that information to provide
products or services to you, or to conduct Nationwide
business. Employees who have access to customer information may use
it only for legitimate business purposes. Additionally, we safeguard
customer information in accordance with applicable data security
regulations.
What
personal information do we collect about you?
We
collect personal information about you from the following sources:
|
·
|
Information
we receive from you on applications and other
forms;
|
|
·
|
Information
about your transactions with us, our affiliates, or others;
and
|
|
·
|
Depending
upon the product or services you are requesting, information we receive
from
|
consumer
reporting agencies, medical providers, or others.
What
categories of information do we disclose and to whom?
We
may
disclose the following information to entities that perform marketing and
administrative services on our behalf or as required or permitted by law for
legal, regulatory or other purposes:
|
·
|
Information
we receive from you on applications or other forms, such as your
name,
address, beneficiaries, Social Security number, family member information,
assets, income, and property locations and
values.
|
|
·
|
Information
about your transactions with us, our affiliates, or others, such
as your
account balance, policy coverage, payment history, the premium you
pay,
the shares you purchase, preferences, claims information, and the
method
of your purchase.
|
|
·
|
If
required for the products you select, information we receive from
consumer
reporting agencies and other sources, such as your creditworthiness,
motor
vehicle and driver data, medical and employment information, loss
history
reports, and additional driver
data.
|
In
certain special situations, we may share some of your personal information
with
non-affiliated third parties, including other financial institutions and service
providers that provide marketing support to them, to help them market products
and services other than those from Nationwide Financial and its affiliated
companies. Before sharing such information relating to you, we will
give you a supplemental notice and an opportunity to opt out of this information
sharing.
Is
your medical information confidential?
While
we
sometimes must collect medical information to provide you a product or to pay
a
claim, we do not use or share it, internally or externally, for any purpose
except the following:
|
·
|
underwriting
insurance;
|
|
·
|
administering
your policy, account, or claim;
|
|
·
|
as
required or permitted by law; or
|
|
·
|
as
otherwise authorized by you
|
Questions?
We
value
our customers and want you to understand how we use the information we
collect. If you have a ny questions about our privacy policy, please
contact us toll free at:
Individual
Annuities (Best of America®)
Life
and
Health Operations
0-000-000-0000
Nationwide®
Retirement Solutions
1-877-677-3678
National
Deferred Compensation
0-000-000-0000
Pension
Operations 0-000-000-0000
|
·
|
You
may obtain a description of Nationwide Financial’s procedures that allow
you to review your personal
information.
|
|
·
|
In
accordance with our procedures, we will provide you access to your
personal information that we control and can reasonably retrieve,
upon
verification of your request.
|
|
·
|
You
may request that we correct your personal information in our
files. Please note that Nationwide Financial does not control
information given to us by third parties. So, you will need to
contact the third party to correct any information it gave
us.
|
|
·
|
You
may request the name and address of the consumer-reporting agency
from
which we have obtained a report on you, if any. You may request
that the consumer reporting agency provide you with a copy of the
report
it makes.
|
This
privacy statement describes our privacy practices for both current and former
customers. We will provide one copy of this notice to joint policy or
contract holders; please share this information with everyone covered by your
policy or contract. Upon your request, we will send additional copies
of this statement.
Thank
you
for choosing Nationwide.
We
look
forward to building a lifetime relationship with you.
AMENDMENT
NO. 1 TO FUND PARTICIPATION AGREEMENT
This
Amendment No. 1 dated as of the 1st day of May, 2006, is to the
Fund Participation Agreement entered into on May 2, 2005, made by and among
Nationwide Financial Services, Inc. (including any subsidiaries listed on
Exhibit A), Gartmore Mutual Fund Capital Trust, which serves as adviser and
Gartmore Distribution Services, Inc., which serves as distributor to the
Gartmore Variable Insurance Trust (the “Trust”) with respect
to
its
series of shares of beneficial interest (each, a “Fund”, and collectively,
the
“Funds”). In
this Agreement, Gartmore Mutual Fund Capital Trust and Gartmore Distribution
Services, Inc. are collectively referred to as “Gartmore.”
WHEREAS,
Nationwide Financial Services, Inc. (“NFS”) or a subsidiary or
affiliate thereof (collectively referred to as “NFS Affiliate/Subsidiary”)
provides administrative and/or recordkeeping services to variable contracts,
which may include, but are not
limited
to, variable annuity contracts, variable life insurance policies and various
retirements plans, which meet the definition of retirement plans under Sections
401, 403 and 457 of the Internal Revenue Code of 1986, as amended (the “Code”)
(collectively, “Contracts”); and
WHEREAS,
NFS Affiliate/Subsidiary may issue variable annuity contracts and variable
life
insurance policies through separate accounts (“Variable Accounts”) as listed on
Exhibit A; and
WHEREAS,
the Contracts allow for the allocation of net amounts received by NFS to
sub-accounts which correspond to each Fund for investment in shares of the
Funds; and
WHEREAS,
selection of a particular sub-account is made by the contract owner or by
participants in various types of retirement plans and such contract owners
and/or participants may reallocate their investment options among the
sub-accounts in accordance with the terms of the Contracts; and
WHEREAS,
NFS and Gartmore mutually desire the inclusion of the Funds as investment
options for the Contracts; and
WHEREAS,
the primary purpose of this Amendment is to update Exhibit C; and
NOW,
THEREFORE, NFS and Gartmore mutually agree as follows:
1. Exhibit
C to the Fund Participation Agreement is amended to update the current list
of
funds and fee payments.
2.
All
other terms and conditions within the Fund Participation Agreement remain the
same.
IN
WITHNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to be
executed as of the date written above.
NATIONWIDE
FINANCIAL SERVICES, INC.
_________________________
By: Xxxxx
X. Xxxxxx
Title: Attorney-in-Fact
GARTMORE
MUTUAL FUND CAPITAL TRUST
_________________________
By: Xxxxxx
X. Xxxxxxx
Title: Senior
Vice President
GARTMORE
DISTRIBUTION SERVICES, INC.
_________________________
By: Xxxxxx
X. Xxxxxxx
Title: Senior
Vice President
EXHIBIT
C
(amended
as of [May 1, 2006])
|
GVIT
Funds
|
Basis
Points per annum
|
|
Variable
Annuity and Variable Life:
Class
I, Class III, and Class IV – All funds, except those otherwise
noted
|
____bps
|
|
Class
II – All Funds
|
____bps
|
|
Class
VI – All Funds
|
____bps
|
|
Class
VII – All Funds
|
____
bps
|
|
Class
VIII – All Funds
|
____bps
|
|
Money
Market Fund, Class I
|
____bps
|
|
Money
Market Fund, Class V
|
____bps
|
|
Money
Market Fund, Class II
|
____
bps
|
|
GVIT
Investor Destinations Funds
|
____bps
|
|
GVIT
Mid Cap Index Class I – Products launched before 11/1/97
|
____bps
|
|
GVIT
Mid Cap Index Class I – Products launched on or after
11/1/97
|
____
bps
|
|
Gartmore
GVIT Global Health Sciences Class III – Choice Venue Product
Only
|
____bps
|
|
Gartmore
GVIT U.S. Growth Leaders Fund Class III – Choice Venue Product
Only
|
____
bps
|
|
2003
New VA/VL Menus:
|
|
|
Xxx
Xxxxxx GVIT Multi-Sector Bond Fund Class I
|
____bps
|
|
Federated
GVIT High Income Bond Fund Class I
|
____bps
|
|
Class
IV Shares of specific GVIT funds (Provident Distribution
Only):
|
|
|
Equity
500 Fund
|
____
bps
|
|
Mid
Cap Growth Fund
|
____bps
|
|
Money
Market Fund
|
____bps
|
|
457
and 401(k)
|
|
|
Equity
Funds
|
____bps
|
|
Fixed
Income
|
____bps
|
|
Money
Market Fund
|
____bps
|
|
Nationwide
Trust Company Program – One-Time Set-Up Fee for funds added to the program
beginning in October, 2002
|
$______
|
Xx.
Xxxx
Xxxxxxxx
President
and Chief Operating Officer
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
RE: Money
Market Funds Agreement
Dear
Xx.
Xxxxxxxx:
For
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
undersigned, on behalf of Gartmore Mutual Funds Capital Trust (“GMFCT”), does
hereby confirm and agree that, beginning October 1, 2005, GMFCT shall be
obligated to pay to Nationwide Financial Services, Inc. (“NFS”), respecting the
classes of shares (each such class, a “Class”, and such classes, collectively,
the “Classes”) offered by the open-end investment companies (each such company,
a “Fund”, and such companies, collectively, the “Funds”) as set forth below, an
annual amount to be determined in respect to each Class by multiplying ___%
times the average daily net assets corresponding to such
Class. Payments shall be made quarterly, in arrears, based on the
average daily net assets of the respective Classes of the Funds during the
then
most recently completed calendar quarter. The first such quarterly
payment shall be due after and in respect of the calendar quarter ending
December 31, 2005.
Name
of Funds (and Classes)
Gartmore
Money Market Fund
Prime
Shares
Service
Shares
Institutional
Shares
Gartmore
GVIT Money Market Fund
Money
Market Fund Class I
Money
Market Fund Class IV
Money
Market Fund Class V
Gartmore
GVIT Money Market Fund II
GMFCT’s
obligation to make the aforementioned payments shall be in addition to GMFCT’s
obligations respecting the Funds to make similar payments to NFS pursuant to
the
Fund Agreements (dated as of October 1, 2002 and May 2, 2005, respectively)
and
payments hereunder shall remain an obligation of GMFCT only for so long as:
(i)
the payments hereunder and their receipt shall be permissible under all
applicable law; (ii) GMFCT shall continue to be an indirect wholly-owned
subsidiary of Nationwide Mutual Insurance Company; and (iii) GMFCT shall
continue to provide services to a Fund under GMFCT’s Investment Advisory
Agreement with such Fund in effect on October 1, 2005.
Although
not obligated under contract to do so, GMFCT represents that it has informed
the
Boards of Trustees for the Funds of the payment obligations set forth
herein.
Please
confirm NFS’ agreement to the above by signing and dating this letter in the
space provided below.
Sincerely
yours,
Xxxxxx
X.
Xxxxxxx
Senior
Vice President
Gartmore
Mutual Funds Capital Trust
ACKNOWLEDGED
AND AGREED:
NATIONWIDE
FINANCIAL SERVICES, INC.
By:____________________________________
Xxxx
X. Xxxxxxxx
Its: [President
and
COO]
Dated:_
[12/22/05]_______________________
May
1,
2006
Xx.
Xxxxx
X. Xxxxxx
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx
Xxxxxxxx,
XX 00000
RE: GVIT
Funds Agreement
Dear
Xx.
Xxxxxx:
This
letter is to confirm our agreement that Gartmore Mutual Fund Capital Trust
(“Gartmore”) has agreed to make certain cash payments to Nationwide Financial
Services, Inc. (“NFS”) in connection with NFS’ distribution of funds advised by
Gartmore, as identified below (“Funds”). These payments are in
addition to any payments or compensation which you may receive under your
agreements with Gartmore, the Funds, or their respective affiliates to
distribute the Funds, and are derived from Gartmore’s own
resources. Such payments by Gartmore would be paid in consideration
of distribution, marketing support and other services (“Distribution Support
Services”) to be provided by you to Gartmore. Specifically, Gartmore
has agreed to pay the fee (“Distribution Support Fee”) as identified
below.
In
connection with Gartmore’s agreement to pay NFS a Distribution Support Fee, each
party hereto has represented to the other party that it (including Gartmore,
on
behalf of the Funds) has taken all steps necessary to comply with regulatory
and
disclosure requirements, as applicable to each of us and, in the case of
Gartmore, to the Funds, regarding payment of the Distribution Support
Fee. Each party hereto further represents to the other party that, to
the best of its knowledge, the amount and form of compensation payable to NFS
hereunder complies fully with all applicable law. Gartmore further
represents that payment of the Distribution Support Fee will not violate the
provisions of any contracts or agreements to which it or the Funds are a
party.
The
Distribution Support Fee shall apply to:
Name
of Funds (and Classes)
Gartmore
Variable Insurance Trust – All Funds that offer Class VI shares
and
shall
be in an amount equal to ____% of the average daily net assets corresponding
to
such Class. Payments shall be made quarterly, in arrears, based on
the average daily net assets of the Classes of the Funds identified above during
the then most recently completed calendar quarter. The first such
quarterly payment shall be due after and in respect of the calendar quarter
ending June 30, 2006.
Gartmore’s
obligation to pay the Distribution Support Fee shall be in addition to
Gartmore’s (or its affiliates’) obligations respecting the Funds to make other
payments to NFS pursuant to the Fund Agreements (dated as of May 2, 2005, as
amended) and payment of the Distribution Support Fee shall remain an obligation
of Gartmore only for so long as: (i) payment and receipt of the Distribution
Support Fee shall be permissible under all applicable law; (ii) Gartmore shall
continue to be an indirect wholly-owned subsidiary of Nationwide Mutual
Insurance Company; (iii) Gartmore shall continue to provide services to a Fund
under Gartmore’s Investment Advisory Agreement with such Fund in effect on May
1, 2006; and (iv) NFS continues to provide the Distribution Support Services
described herein.
Although
not obligated under contract to do so, Gartmore represents that it has informed
the Board of Trustees for the Funds of the payment obligations set forth
herein.
Please
confirm NFS’ agreement to the above by signing and dating this letter in the
space provided below.
Sincerely
yours,
Xxxxxx
X.
Xxxxxxx
Senior
Vice President
Gartmore
Mutual Funds Capital Trust
ACKNOWLEDGED
AND AGREED:
NATIONWIDE
FINANCIAL SERVICES, INC.
By: Xxxxx
X.
Xxxxxx
Its: Attorney-in-Fact
Title
