FUND AGREEMENT
This Agreement dated as of the 13th day
of March, 2003 is
made by and among Nationwide Financial Services, Inc. (“NFS”) (including any
affiliates and/or subsidiaries listed on Exhibit A), the STI
Classic Variable Trust (each a “Fund” and collectively the “Funds”), a
Massachusetts business trust, and
Trusco Capital
Management, Inc., (“Trusco”) as Investment Adviser to the Funds.
NOW THEREFORE, NFS,Trusco
andthe Funds, in
consideration of the promises and
undertakings described herein, agree that the Funds will be made available
as
investment options in Contracts offered by NFS subject to the following:
NFS represents that the NFS Affiliates/Subsidiaries,
including the Contracts and Variable
Accounts, have been established and are in good standing under the state
law in
which they were organized. The Contracts and Variable
Accounts are registered under the Securities Act of 1933 (the “1933 Act”) and the Investment
Company Act of 1940 (the “1940 Act”), unless otherwise
exempt there from
pursuant to Section
3(a)(2) of the 1933 Act or Section 3(c)(11) of the 1940
Act.
NFS and its agents shall make no representations
concerning
the Funds, Trusco, any of their affiliates
or Fund shares except those contained in the Funds’ then current prospectuses,
Statements of Additional Information or other documents produced by the Funds
(or an entity on its behalf) which
contain information about the Funds. NFS agrees to allow a reasonable
period of time for the Funds
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.
1
NFS acknowledges that the identity of
the
Funds’ (and its affiliates’ and/or subsidiaries’) customers
and all information maintained about those customers constitute the valuable
property of the Funds or its affiliates.
This provision shall survive termination of this Agreement.
NFS acknowledges
that the services
provided for under this Agreement by the Funds and Trusco
are not exclusive and that the same skill will be used in
performing services for other companies in similar contexts.
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 applicable insurance law,
and that
it shall make every effort to maintain such treatment. NFS will promptly
notify the Funds
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.
NFS represents that where applicable,
the Variable Accounts
are “segregated asset accounts” and that interests in such Variable Accounts 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 the
Funds 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.
NFS represents that to the extent Fund shares are purchased by plan
participants through a defined contribution plan, the arrangements provided
for
in this Agreement may be disclosed to the defined contribution plan sponsors
through their representatives.
NFS represents that it will not be a "fiduciary" with respect to the
provision of the services contemplated herein to any Plan(s) as such term
is
defined in Section 3(21) of the Employee Retirement Income Security Act of
1974,
as amended ("ERISA"), and Section 4975 of the Code.
NFS represents that the receipt of thefees and the provision of the
services contemplated herein to any Plan(s) will not constitute a non-exempt
"prohibited transaction" as such term is defined in Section 406 of ERISA
and
Section 4975 of the Code.
At all times NFS shall comply with all laws, rules and regulations
applicable to it by virtue of entering into this Agreement.
NFS represents that it is free to enter into this Agreement and that
by
doing so it will not breach or otherwise impair any other agreement or
understanding with any other person, corporation or other entity. NFS
further represents, warrants and covenants that:
2
(a)
it has full power and authority under applicable law, and has taken all action
necessary, to enter into and perform this Agreement;
(b)
this Agreement constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms;
(d)
if services required to be performed by NFS as set forth in this Agreement
are
required to be performed by a registered broker dealer, they will be performed
by a registered broker dealer affiliate of NFS;
(e)
it will maintain
comprehensive general liability coverage and will carry a
fidelity bond covering it and each of its employees and authorized agents
with
limits of not less than those considered commercially reasonable and appropriate
under current industry practices, each issued by a qualified insurance carrier
with a Best’s rating of at least “A”; and
(f)
its internal control structure over the processing and transmission of
instructions for Fund transactions is suitably designed to prevent or detect
on
a timely basis instructions received after close of trading from being
aggregated with instructions received before close of trading, and to minimize
errors that could result in late transmission of instructions to the
Funds.
Each Fund party represents that it is free to enter into this Agreement
and
that by doing so it will not breach or otherwise impair any other agreement
or
understanding with any other person, corporation or other entity. Each
Fund party further represents, warrants and covenants that:
(a)
it has full power
and authority under applicable law, and has taken all action
necessary, to enter into and perform this Agreement, and at all times it
shall
comply with all laws, rules and regulations applicable to it by virtue of
entering into this Agreement;
(b)
this Agreement
constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms;
(c)
all of its directors,
officers, employees, investment advisers, and other
individuals or entities dealing with the money and/or securities of the Fund
are
and shall continue to be at all times covered by a blanket fidelity bond
or
similar coverage for the benefit of the Fund in an amount not less than the
minimum coverage as required currently by Rule 17g-1 of the 1940 Act or related
provisions as may be promulgated from time to time. The aforesaid bond
shall include coverage for larceny and embezzlement and shall be issued by
a
reputable bonding company.
3
The Funds
acknowledge that they receive
substantial savings as a result of NFS performing those Services listed on
Exhibit C on behalf of the Funds.
The Funds
and their 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).
The Funds agree to allow
a
reasonable period of time for NFS to review any advertising and sales literature
drafted by the Funds
(or agents on their
behalf) with respect to NFS prior to use and prior to submitting such material
to any regulator.
The Funds
acknowledge 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. This provision shall survive termination of this Agreement.
The Funds
acknowledge 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 for
other
companies in similar contexts.
The Funds
represent 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.
The Funds
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.
The Funds
represent 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.
The Funds
will
notify NFS promptly upon having a reasonable basis for believing that the
Funds
have ceased to so qualify, or that the Funds might not so qualify in the
future.
REPRESENTATIONS BY TRUSCO
Trusco represents that it is free to enter into this Agreement and that
by
doing so it will not breach or otherwise impair any other agreement or
understanding with any other person, corporation or other entity. Trusco
further represents, warrants and covenants that:
(a)
it has full power
and authority under applicable law, and has taken all action
necessary, to enter into and perform this Agreement; and
(b)
this Agreement
constitutes its legal, valid and binding obligation, enforceable
against it in accordance with its terms; and
(c)
it is duly registered
as an investment adviser under the Investment Advisers Act
of 1940, as amended, and will remain duly registered under all applicable
federal and state securities laws and that it will perform its obligations
for
the Fund in accordance with any applicable state and federal securities
laws.
Trusco 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).
4
Trusco agrees to allow a reasonable period of
time
for NFS to review any advertising and sales literature drafted by Trusco
(or
agents on its behalf) with respect to NFS prior to use and prior to submitting
such material to any regulator.
Truscoacknowledges 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. This provision shall survive
termination of this Agreement.
Trusco 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 for other companies in similar
contexts.
CONFIDENTIALITY
(a)
Definitions. For purposes of
this Section, the following definitions
apply:
1.
“Customer” means an individual
who seeks to obtain or obtains a Nationwide
product.
2.
“Customer Information” means non-public
personally identifiable information as
defined in the Xxxxx-Xxxxx-Xxxxxx Act and the rules and regulations promulgated
there under (“GLBA”).
3.
“Confidential Information” means any data or
information regarding proprietary
or confidential information concerning each of the parties. Confidential
Information does not include information that (a) was in the public domain
prior
to the date of this Agreement or subsequently came into the public domain
through no fault of the Receiving Party or by violation of this Agreement;
(b)
was lawfully received by the Receiving Party from a third party free of any
obligation of confidence of such third party; (c) was already in the possession
of the Receiving Party prior to receipt thereof directly or indirectly from
the
Disclosing Party (as hereinafter defined); (d) is required to be disclosed
pursuant to applicable laws, regulatory or legal process, subpoena or court
order; or, (e) is subsequently and independently developed by employees,
consultants or agents of the Receiving Party without reference to or use
of the
Confidential Information disclosed under this Agreement.
(b)
Each of the parties
agree that they will maintain the confidentiality of
Confidential and Customer Information received from each other using reasonable
care, which shall not be less than the degree of care used for its own
Confidential and Customer Information.
(c)
Each of the parties
agree 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.
(d)
Each of the parties
agree not to disclose or use any Customer Information in
performance under this Agreement other than (i) in performance of its
obligations under this Agreement; (ii) as authorized by the Customer;
(iii) for purposes of self-evaluation; or (iv) as permitted by Law.
(e)
Each of the parties
warrants to the other that it shall not disclose to any
person any Confidential Information, which it may acquire in the performance
of
this Agreement; nor shall it use such
5
Confidential
Information for any purposes other than to fulfill its contractual obligations
under this Agreement.
(f)
Each party shall
provide information and data back-up procedures and information
security so as to reasonably ensure that the other parties’ Confidential and
Customer Information is not lost or modified.
1.
Each party warrants
that it will reasonably monitor, evaluate and adjust its
information security systems and procedures in response to internal and external
threats to information security, relevant changes in technology, and changes
in
the sensitivity of Confidential and Customer Information. Each party
shall promptly notify the other parties of: (i) any material unauthorized
possession, use, or knowledge, or attempt thereof, of the data-processing
files,
transmission messages or other Confidential and Customer Information by any
person or entity that may become known; (ii) the effect of such; and (iii)
the
corrective action taken in response thereto.
2.
During the term
of this Agreement, and for one (1) year following
termination:
a.
Each party will
have the right to conduct a remote or on-site audit of any of
the other parties (“audited party”) at the initiating party’s discretion and
expense, to review the information and data security systems and processes
of
other party, at any time during regular business hours, upon no less than
five
(5) business days prior notice. Such audit and review may be performed by
the initiating party, its agent, or an independent third party bound by a
Nondisclosure Agreement no less restrictive than contained herein, and may
include reasonable testing of the systems and procedures. Any such
security tests will be scheduled by mutual agreement of the parties. The
audited party agrees to promptly grant reasonable access to logs, policies,
records, or other materials reasonably required for the initiating party
to
perform the audit, but this access will be limited to the audited party’s
facilities. The initiating party will reasonably determine the extent and
methodology of the testing subject to the approval of audited party, such
approval not to be unreasonably withheld. Further, the audited party may
make available to the initiating party the results of any third party’s or its
own testing, monitoring and auditing of such systems and procedures; provided,
however, that the audited party will not be required to make available any
such
results which would breach confidentiality obligations between the audited
party
and any third parties.
b.
Should such
an audit, test or review reveal that the audited party’s security
procedures or its contemplated services do not protect Confidential and Customer
Information, and the audited party agrees with said audit, test or review
conclusions, then the audited party will take reasonable steps to complete
and
install modifications, the cost, expense, and allocation of which will be
agreed
upon by the parties, to its security systems or implement recommended changes
to
its operating systems to meet the security requirements of the initiating
party,
its regulators, and the provisions of applicable law.
(g)
This section shall
survive and continue in full force and effect notwithstanding
the expiration or termination of the Agreement.
Subject to the terms and conditions of
this Agreement, NFS
shall be appointed to, and agrees to act, as a limited agent of the Funds
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
6
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 ofthe Funds
or to incur any cost or liability on
its behalf.
Until such time as the
Funds and NFS are able to utilize the National
Securities Clearing
Corporation ("NSCC") Defined Contribution Clearing and Settlement
("DCC&S") Fund/SERV system; the Funds
will use their 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 the Funds
by 9:00 A.M. Eastern Time on the next Business Day. Such
trades will be effected at the net assets value of each Fund's shares calculated
as of the Close of Trading on Day 1. TheFunds
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 confirmed in writing by
the Funds.
Until such time as the
Funds 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, 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.
a)
For those purchase orders not transmitted via the DCC&S Fund/SERV system,
NFS shall initiate payment to the Funds
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 the Funds
pursuant to this
Agreement.
b)
For those redemption orders not transmitted via the DCC&S Fund/SERV system,
the Funds
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 the Funds
pursuant to this
Agreement.
At such time as the
Funds and NFS are able to transmit information
via the NSCC's DCC&S
Fund/SERV System:
a) 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 NSCC's DCC&S Fund/SERV system to the
Funds 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.
b)
The Funds
and NFS shall mutually agree
there may be instances when orders shall be transmitted to the
Funds 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 the Funds
via
facsimile no later than 9:00 A.M. Eastern Time on the next Business Day.
7
c)
With
respect to purchase and redemption orders
received by the Funds
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.
At such time as the
Funds and NFS are able to transmit information
via the DCC&S
Fund/SERV system; the Funds
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. The Funds
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. The Funds
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, the Funds
or its affiliate will send
NFS a statement of account which shall confirm all transactions made during
that
particular month in the account.
NFS agrees to provide the
Funds 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 the Funds
may reasonably request or as may be necessary or advisable to
enable it to comply with any law, regulation or order.
Within ten (10) Business Days after the
end of each
calendar month, the Funds
shall provide
NFS, or its designee, a monthly statement of account, which shall confirm
all
transactions made during that particular month.
The Funds
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.
8
|
|
Trusco Capital Management, Inc
00 Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxx X. Xxxxxxxxx, III
Fax Number: 000-000-0000
|
|
STI Classic Variable Trust
Attn: Xxxxxxx X. Xxxxx, Vice President
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Fax Number: 000-000-0000
|
SEI Investments Company
Attn: General Counsel
Xxx Xxxxxxx Xxxxxx Xxxxx
Xxxx, XX 00000
Fax Number: 000-000-0000
|
For Variable Accounts that are registered
under the 1940
Act and 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,
NFS shall distribute all proxy material furnished by the
Funds (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.
All expenses incident to the performance
by NFS under this
Agreement shall be paid by NFS. Likewise, all expenses incident to the
performance bythe Funds
under this
Agreement shall be paid by the Funds.
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,
the Funds
shall be responsible for any and
all expenses incurred as a result of removing such Fund as an available
investment option under the Contract.
9
Both NFS and the
Funds 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.
NFS agrees to indemnify and hold harmless
the
Funds and Trusco and each of their
directors, officers, employees, agents
and each person, if any, who controls the Funds or Trusco
within the meaning of the 1933 Act (collectively, “Affiliated
Party”) against any losses, claims, damages or liabilities (“Losses”) to which
the Funds or Trusco
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:
10
(5) Any
untrue statement of any material fact contained in information furnished
by NFS;
or
(6) The
omission to state in the Registration Statements, Prospectuses, Informational
Brochures or other similar material of the Contracts, a material fact required
to be stated therein or necessary to make the statements therein not misleading.
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 the Funds or Trusco
specifically for use therein. NFS shall not be liable for any special,
consequential or incidental damages.
The Funds
agree to 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 to which NFS, NFS
Affiliate/Subsidiary or any such NFS 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:
(1)
The
Funds’s
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;
(2)
The
failure of the Funds
to provide the services and furnish the materials under the terms
of this Agreement;
(3)
A
breach of a material term of this Agreement or
of any of the representations contained herein;
(5) Any
untrue statement of any material fact contained in information furnished
by the
Funds, including but not limited to, the Registration Statements, Prospectuses,
or sales literature of the Funds; or
(6) The
omission to state in the Registration Statements, Prospectuses, Informational
Brochures or other similar material of the Funds, a material fact required
to be
stated therein or necessary to make the statements therein not misleading.
Provided however, that the
Funds 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 the Funds
by or on behalf of NFS specifically for use therein. The Funds
shall not be liable for any
special, consequential or incidental damages.
INDEMNIFICATION BY TRUSCO
Trusco agrees to 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, NFS
11
Affiliate/Subsidiary within the meaning of the 1933 Act against any 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 Losses (or
actions in respect thereof) arise out of or are based upon, but not limited
to:
(1)
The failure
of Trusco to provide the services and furnish the materials provided
for under the terms of this Agreement;
(2) A
breach by Trusco of a material term of this Agreement or of any of the
representations contained herein;
(3) A
failure by Trusco to register as a registered investment adviser under federal
or state securities laws or to otherwise comply with such laws, rules,
regulations or orders; or
(4)
Any untrue statement
of any material fact contained in information furnished by
Trusco.
Provided however, that Trusco shall not be liable in any such case to
the
extent that such statement, or such alleged statement, was made in reliance
upon
and in conformity with written information furnished to Trusco by or on behalf
of NFS specifically for use therein.
Trusco shall not be liable for any special, consequential or incidental
damages.
This indemnity agreement shall be in addition to any liability which
Trusco
may otherwise have.
In consideration for the Services provided
by NFS pursuant
to this Agreement, Trusco
will pay, or
cause one of its affiliates to pay, and NFS or an NFS Affiliate/Subsidiary
that
is registered as a broker/dealer, will calculate and be entitled to receive
from
Truscoa
fee (“Service Fee”). Such
fee will be calculated by NFS at an annualized rate equal to the rates shown
on
Exhibit D 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 as of December 31 of the prior calendar
year,
the Service Fees will be paid on a quarterly basis. Once assets are
greater than , 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 Trusco
for the relevant period and such other supporting data as may be
reasonably requested by NFS.
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.
12
NFS andthe
Funds and Trusco 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.
(2)
at any time upon the Funds'
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;
(6)
at the option of NFS, if NFS shall determine, it its sole judgment reasonably
exercised in good faith, that the Fund(s) or Trusco
has suffered a material adverse change in its business or
financial condition or is the subject of material adverse publicity, NFS shall notify the Fund(s) and
Trusco
in writing of such determination and its intent to terminate this
Agreement, and after considering the actions taken by the Fund or Trusco
and any other changes in circumstances
since the giving of such notice, such determination of NFS shall continue
to
apply on the sixtieth (60th) day following the giving of such notice,
which sixtieth day shall be the effective date of termination;
(7)
at the option ofthe
Funds or Trusco, if the
Funds or Trusco shall determine, it its sole judgment
reasonably exercised in good faith, that NFS has suffered a material adverse
change in its business or financial condition or is the subject of material
adverse publicity, Funds
or Trusco shall notify NFS in writing of such
determination and its intent
to terminate this Agreement, and after considering the actions taken by NFS
and
any other changes in circumstances since the giving of such notice, such
determination of the Fund(s) and the Funds or Trusco
shall continue to apply on the sixtieth (60th) day
following the giving of such notice, which sixtieth day shall be the effective
date of termination;
13
(8)
at the option of NFS or the Funds or Trusco,
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 NASD, the IRS, the Department of
Labor,
the SEC, state insurance departments or any other regulatory body;
(9)
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 the Funds
of any
proposal to substitute Fund shares;
(11)
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; and
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.
LIMITATION OF LIABILITY
A copy of the Funds’ Declaration of 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 Funds as trustees and not individually, and that all obligations of this
instrument are not binding upon any of the trustees, officers or shareholders
of
any of the Funds, or the Trust individually, but binding only upon the assets
and the property of the Funds, or the Trust.
SECTION HEADINGS
The section headings in this Agreement are
for
reference and convenience only and will not be construed to limit or otherwise
affect the meaning of this Agreement.
14
_________________________________________
STI CLASSIC VARIABLE
TRUST
TRUSCO CAPITAL
MANAGEMENT, INC.
15
This
Exhibit
corresponds to the Fund Agreement dated ___________, 2003.
Nationwide Life Insurance Company
of America
Nationwide Life and Annuity Company
of America
Nationwide Provident VA Separate
Account-1
Nationwide Provident VA Separate
Account-A
Nationwide Provident VLI Separate
Account-1
Nationwide Provident VLI Separate
Account-A
16
This
Exhibit corresponds to the Fund Agreement dated _________,
2003.
|
FUNDS
|
|
STI Classic Variable Trust Capital
Appreciation
|
|
STI
Classic Variable Trust Growth and Income
|
|
STI
Classic Variable Trust International Equity
|
|
STI
Classic Variable Trust International Grade Bond
|
|
STI
Classic Variable Trust Mid-Cap Equity
|
|
STI
Classic Variable Trust Small Cap Value Equity
|
|
STI
Classic Variable Trust Value Income Stock
|
|
|
|
|
|
|
17
8.
Transmitting
purchase and
redemption orders to the Funds on behalf of the Contract owners and Plans.
18
This
Exhibit corresponds with the Fund Agreement dated ________,
2003.
|
Basis
Points Per Annum
|
|
|
·
STI Classic Variable Capital Appreciation – Variable Trust
·
STI Classic Variable Growth and Income - Variable Trust
·
STI Classic Variable International Equity - Variable Trust
·
STI Classic Variable International Grade Bond - Variable Trust
·
STI Classic Variable Mid-Cap Equity - Variable Trust
·
STI Classic Variable Small Cap Value Equity - Variable Trust
·
STI Classic Variable Value Income Stock - Variable Trust
|
Funds available for NFS (including any affiliates and/or
subsidiaries)
|
|
|
|
