ADMINISTRATIVE SERVICE AGREEMENT
This
Administrative Service Agreement (the “Agreement”), effective this 15th day of
November
2004 is made by and between Nationwide Financial Services,
Inc. (“NFS”) and Xxxxx Fargo Funds Management, LLC and Xxxxxxxx, Inc.
(collectively, the “Company”) that serve as adviser and distributor,
respectively, to the Xxxxx Fargo Variable Trust (the “Trust”).
WHEREAS,
the Company is responsible for certain administrative functions associated
with
each of the investment portfolios of the Trust (each a “Fund”); each Fund is set
forth on Exhibit A, which may be amended from time to time; and
WHEREAS,
NFS or its designee provide certain administrative services to the owners of
certain variable annuity contracts and/or variable life insurance policies
(collectively, the “Variable Products”) issued by Nationwide Life Insurance
Company, Nationwide Life and Annuity Insurance Company, Nationwide Life
Insurance Company of America and/or Nationwide Life and Annuity Company of
America (collectively, “Nationwide”) through certain Nationwide separate
accounts (the “Variable Accounts”); and
WHEREAS,
the Funds will be included as underlying investment options for the Variable
Products issued by Nationwide through the Variable Accounts pursuant to a Fund
Participation Agreement previously or contemporaneously entered into by
Nationwide and the Company; and
WHEREAS,
the Company recognizes substantial savings of administrative expenses as a
result of NFS or its subsidiaries performing certain administrative services
(“Services”) for owners of Variable Products; and
NOW,
THEREFORE, NFS and the Company, in consideration of the undertaking described
herein, agree that the Funds will be available as underlying investment options
in the Variable Products issued by Nationwide, subject to the
following:
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1.
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NFS
or its designee agrees to provide services for owners of the Variable
Products who choose the Funds as underlying investment options. Such
services will include those described on Exhibit
B.
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2.
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In
consideration for the services to be provided by NFS with respect
to the
Variable Products pursuant to this Agreement, the Company agrees
to pay
Service Fees to NFS in the percentages stated on Exhibit
A.
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3.
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The
Service Fees will be paid to NFS as soon as practicable, but no later
than
30 days after the end of the period in which they were
earned. The Service Fees will be paid on a quarterly or monthly
basis.
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4.
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NFS
and the Company agree that the Service Fee described in this Agreement
is
for administrative services only and does not constitute payment
in any
manner for investment advisory services or the cost of distribution
of the
Funds.
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5.
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NFS
and the Company agree that a Service Fee will be paid to NFS according
to
this Agreement with respect to each Fund as long as shares of such
Fund
are held by the Variable Accounts. This provision will survive
termination of this Agreement and the termination of the related
Fund
Participation Agreement(s) with
Nationwide.
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6.
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Either
party to this Agreement may terminate this Agreement
by at least 90 days’ written notice to the other. In addition,
NFS or the Company may terminate this Agreement immediately upon
written
notice to the other: (1) if required by any applicable law or regulation;
(2) if NFS or the Company engage in any material breach of this Agreement;
or (3) in the event of an assignment as defined by Section 2(a)(4)
of the
Investment Company Act of 1940. This Agreement will terminate
immediately and automatically with respect to Funds held in the Variable
Accounts upon the termination of the Fund Participation
Agreement, which governs a Fund's
inclusion as an underlying investment option in the Variable
Products, and in such event, no notice
is required under this Agreement.
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7.
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Each
notice required by this Agreement shall be given by wire and confirmed
in
writing to:
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If
to
NFS:
Nationwide
Financial Services, Inc.
Xxx
Xxxxxxxxxx Xxxxx
Xxxxxxxx,
Xxxx 00000
Attention:
Securities Officer
Fax:
(000) 000-0000
If
to the
Company:
Xxxxx
Fargo Funds Management, LLC
000
Xxxxxx Xxxxxx, Xxxxx 12
MAC
#
A0103-123
Xxx
Xxxxxxxxx, XX 00000
Attention: X.
Xxxxx
Fax
Number: 000-000-0000
With
a
Copy to:
Xxxxx
Fargo Funds Management, LLC
000
Xxxxxx Xxxxxx, Xxxxx 12
MAC
#
A0103-123
Xxx
Xxxxxxxxx, XX 00000
Attention: X.
Xxxxxx, Business Manager
Fax
Number: 000-000-0000
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11.
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This
Agreement shall be construed and the provisions hereof interpreted
in
accordance with the laws of Delaware without reference to conflict
of laws
principles. This Agreement shall be subject to
the provisions of the federal securities statutes, rules and regulations,
including such exemptions from those statutes, rules and regulations
as
the Securities and Exchange Commission may grant and the terms hereof
shall be interpreted and construed in accordance
therewith.
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12.
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Each
of the parties to this Agreement acknowledges and agrees that this
Agreement and the arrangements described herein are intended to be
non-exclusive and that each of the parties is free to enter into
similar
agreements or arrangements with other
entities.
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13.
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This
Agreement may not be assigned unless agreed to by the parties
hereto in writing, except that it shall be assigned
automatically to any
successor to either party, and
any such successor shall be bound by the terms of this
Agreement.
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Each
party to this Agreement hereby represents and warrants to
the other that the persons executing this Agreement on its behalf are duly
authorized and empowered to execute and deliver the Agreement and that the
Agreement constitutes a legal, valid and binding obligation, and is enforceable
in accordance with its terms.
NATIONWIDE
FINANCIAL SERVICES, INC.
By: _____________________________________
Name: Xxxxxxx
X. Xxxxxx
Title: Vice
President – Investment and Advisory Services
THE
COMPANY
By: ___[C
.Xxxxx Xxxxxxx]_____________________
Name: __[C.
Xxxxx Xxxxxxx]_____________________
Title: [Secretary
–Xxxxx Fargo Funds Trust]__________
By:
___[Xxxxx Rabusch___________________________
Name:__[Xxxxx
Xxxxxxx]_________________________
Title:_President
– Xxxxx Fargo Funds Management-LLC]_
EXHIBIT
A
FUNDS SERVICE
FEES
Xxxxx
Fargo Variable Trust Asset Allocation
Fund [X.XX%] (XX
bps)
Xxxxx
Fargo Variable Trust Large Company Growth
Fund [X.XX%] (XX
bps)
Xxxxx
Fargo Variable Trust Money Market
Fund [X.XX%] (XX
bps)
Xxxxx
Fargo Variable Trust Total Return Bond
Fund [X.XX%] (XX
bps)
Xxxxx
Fargo Variable Trust Small Cap Growth
Fund [X.XX%] (XX
bps)
EXHIBIT
B
Services
Provided by NFS
Pursuant
to the Agreement, NFS shall perform all administrative and shareholder services
with respect to the Variable Products, including but not limited to, the
following:
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1.
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Maintaining
separate records for each owner of a Variable
Product, which shall reflect the Fund shares purchased and redeemed
and
Fund share balances of such owners. NFS will maintain a single
master account with each Fund on behalf of owners of
Variable Products and such account shall be in the name of NFS (or
its
designee) as record owner of shares owned by
owners of Variable
Products.
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2.
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Disbursing
or crediting to owners of Variable Products all proceeds of redemptions
of
shares of the Funds and all dividends and other distributions not
reinvested in shares of the Funds.
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3.
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Preparing
and transmitting to owners of Variable Products, as
required by law, periodic statements showing the total number of
shares
owned by such owners as of the statement closing date, purchases
and
redemptions of Fund shares by such owners during the
period covered by the statement and the dividends and other distributions
paid during the statement period (whether paid in cash or reinvested
in
Fund shares), and such other information as may be required, from
time to
time, by owners of Variable
Products.
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4.
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Supporting
and responding to service inquiries from owners of Variable
Products.
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5.
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Maintaining
and preserving all records required by law to be maintained and preserved
in connection with providing the services for owners of Variable
Products.
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6.
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Generating
written confirmations and quarterly statements to
owners/participants of Variable
Products.
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7.
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Distributing
to owners of Variable Products, to the extent required by applicable
law
and the Fund Participation Agreement between the Company and Nationwide,
Funds’ prospectuses, proxy materials, periodic Fund reports to
shareholders, and other materials that the Funds are
required by law or otherwise to provide to their shareholders or
prospective shareholders.
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8.
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Transmitting
purchase and redemption orders to the Funds on behalf of owners of
Variable Products.
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ASSIGNMENT
AGREEMENT AND FIRST AMENDMENT TO THE
FUND
PARTICIPATION AGREEMENT
AND
This
Assignment and
Amendment (“Assignment/Amendment”) is made as of June [1]_, 2005, by and between
Nationwide Financial Services, Inc. (“Nationwide”), Nationwide Investment
Services Corporation (“NISC”), Xxxxx Fargo Funds Management, LLC (“Funds
Management”) and Xxxxx Fargo Funds Distributor, LLC (“Funds Distributor”) that
serve as adviser and distributor, respectively, to the Xxxxx Fargo Variable
Trust (the “Trust”) and Xxxxxxxx, Inc.. Reference is made to the Fund
Participation Agreement (the “FP Agreement”) and the Administrative Service
Agreement (the “Service Agreement”), each both made as of November 15, 2004, by
and between Nationwide, Funds Management, Xxxxxxxx, Inc. (“Xxxxxxxx”) and the
Trust. This Assignment/Amendment assigns the FP Agreement and the
Service Agreement to Funds Distributor and makes other amendments to the FP
Agreement and the Service Agreement. All capitalized terms used in
this Amendment and not defined herein shall have the meaning ascribed to them
in
the FPA Agreement and the Service Agreement.
WHEREAS,
subject to the provisions
hereof, Xxxxxxxx desires to assign and transfer its rights, privileges, duties
and obligations under the FP Agreement and the Service Agreement to Funds
Distributor, and Funds Management and Funds Distributor wish to accept Xxxxxxxx’
rights and privileges and to assume Xxxxxxxx’ duties and obligations under the
FP Agreement and Service Agreement as described herein;
WHEREAS,
Nationwide is engaged in developing and offering Variable Products funded
through Variable Accounts;
WHEREAS,
the separate portfolios of the
Trust are currently included as underlying investment options for the Variable
Products issued by Nationwide through the Variable Accounts pursuant to the
FP
Agreement;
WHEREAS,
Nationwide or its designee, pursuant to the Service Agreement, provide certain
administrative services to the owners of certain Variable Products issued by
Nationwide through certain Variable Accounts; and
WHEREAS,
Funds Management, Funds
Distributor and Nationwide (collectively, the “parties”) wish to amend certain
portions of the FP Agreement and the Service Agreement;
WHEREAS,
pursuant to a purchase
agreement with Strong Financial Corporation, Xxxxx Fargo & Company acquired
certain of the asset management arrangements of Strong Capital Management,
Inc.,
investment adviser to the Strong Funds;
WHEREAS,
effective at the close of business on April 8, 2005, the Strong Funds were
reorganized into the Xxxxx Fargo Advantage Funds;
WHEREAS,
Nationwide and the Xxxxx Fargo Companies mutually desire that, upon execution
of
this Amendment, the hereinafter defined Strong Agreements will be of no further
force and will be completely superceded by the Agreements;
NOW,
THEREFORE, in consideration of the
foregoing and the mutual promises set forth below, the parties agree as
follows:
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1.
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Assignment
and Assumption of Xxxxxxxx’ Rights and
Obligations. Xxxxxxxx hereby assigns and transfers its
rights, privileges, duties and obligations under the FP Agreement
and
Service Agreement to Funds Distributor. Funds Distributor
agrees to accept such rights and privileges and assume such duties
and
obligations. Xxxxxxxx shall not thereafter have any responsibility
for
such duties and obligations.
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2.
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Term. The
Assignment/Amendment shall become effective as of April 11, 2005,
the date
upon which Xxxxxxxx ceased serving as the primary distributor to
the
Trust.
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3.
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Xxxxxxxx’
Liability. Nationwide specifically acknowledges and agrees
that (a) Funds Distributor does not accept or assume any liabilities
of
Xxxxxxxx prior to April 11, 2005, and does not agree to pay, perform
or
discharge any indemnification obligations, under the FP Agreement
and
Service Agreement resulting from actions of Xxxxxxxx prior to April
11,
2005, the date which the FP Agreement and Services Agreement is assigned
from Xxxxxxxx to Funds Distributor, and (b) Nationwide shall seek
indemnification from Xxxxxxxx, and not from Funds Distributor or
any of
its affiliates, for all claims, suits, actions, losses, damages,
liabilities, costs, and expenses of any nature whatsoever resulting
from
actions of Xxxxxxxx occurring prior to April 11, 2005, the date which
the
FP Agreement and Services Agreement is assigned from Xxxxxxxx to
Funds
Distributor.
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4.
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Nationwide,
on behalf of itself and its subsidiary, NISC; and the Xxxxx Fargo
Companies, as successor to the Strong entities indicated below, hereby
agree that the following agreements (collectively “Strong Agreements”), to
the extent related to the inclusion of insurance funds as investment
options in various products administered by Nationwide and services
provided by Nationwide with regard to insurance funds shall, upon
execution of this Amendment, be of no further force and effect and
shall
be completely superceded by the
Agreements:
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Mutual
Fund Distribution and Shareholder Services Agreement, dated December 13, 2002,
between Strong Investments, Inc. and NISC; and
Fund
Agreement, dated May 1, 2003, among Nationwide, Strong Investor Services, Inc.
and Strong Investments, Inc.
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5.
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Amendment
to the FP Agreement.
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a. Article
II of the FP Agreement is hereby supplemented with the following:
“The
Trust has adopted policies designed to prevent frequent purchases and
redemptions of any Fund shares in quantities great enough to disrupt orderly
management of the corresponding Fund’s investment portfolio. These
policies are disclosed in the Trust’s prospectus. From time to time,
the Trust and Funds Management may implement procedures reasonably designed
to
enforce the Trust’s disruptive trading policies and shall provide a written
description of such procedures (and revisions thereto) to
Nationwide. Such procedures may include the imposition of redemption
fees. Nationwide’s policies and procedures include, but are not
limited to, monitoring contract owner activity, imposing trade restrictions
and
enforcing redemption fees (of up to 1%) imposed by the funds (if
applicable). The policies are disclosed in the Variable Product
prospectuses.”
b. Article
XVI of the FP Agreement is hereby supplemented with the following:
“RELATIONSHIP
OF THE PARTIES
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·
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Nationwide
is an independent contractor vis-à-vis the Trust, Funds Management, or any
of their affiliates for all purposes hereunder and will have no authority
to act for or represent any of them. In addition, no officer or
employee of Nationwide will be deemed to be an employee or agent
of the
Trust, the Company or any of their affiliates. Nationwide will
not act as an “underwriter” or “distributor” of Trust shares, as those
terms variously are used in the 1940 Act, the 1933 Act, and rules
and
regulations promulgated thereunder. Likewise, Nationwide is not
a “transfer agent” of the Trust as that term is used in the 1934 Act and
rules and regulations thereunder.
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c. NISC
shall be a party to the FP Agreement for the sole purpose of receiving payments
from Funds Distributor pursuant to Rule 12b-1 under the Investment Company
Act
of 1940.
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6.
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Amendment
to the Service Agreement.
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a. Exhibit
A to the Service Agreement shall be deleted in its entirety and the Amended
Exhibit A attached hereto shall be inserted in lieu thereof.
b. Except
as specifically set forth herein, all other provisions of the Service Agreement
shall remain in full force and effect.
IN
WITNESS WHEREOF, the parties have executed this Amendment as of the date first
written above.
NATIONWIDE
FINANCIAL SERVICES, INC.
___________________________________
By:
[Xxxxx X. Xxxxxx]
Title:
[Attorney-in-Fact]
NATIONWIDE
INVESTMENT SERVICES CORPORATION
___________________________________
By:
[Xxxxx X. Xxxxxx]
Title:
[Vice President]
XXXXX
FARGO VARIABLE TRUST
________________________________
By:
Title:
[Secretary]
XXXXX
FARGO FUNDS MANAGEMENT, LLC
__________________________________
By:
[Xxxxx Xxxxxxx]
Title:
[President]
XXXXX
FARGO FUNDS DISTRIBUTOR, LLC
_________________________________
By:
Title:
XXXXXXXX,
INC.
Agreed
and accepted as to the entire Amendment, except Sections 5 and 6
________________________________
By:
[Xxxx Xxxx]
Title:
[President]
Xxxxxxxx,
Inc.
Agreed
and accepted as to the entire Amendment, except Sections 5 &
6
______________________________
By:
Title:
[
VP]
AMENDED
EXHIBIT A
TO
ADMINSTRATIVE SERVICES AGREEMENT
FUND SERVICE
FEES
Variable
Trust Asset Allocation
Fund [X.XX%]
(XX BPS)
Variable
Trust C&B Large Cap Value
Fund [X.XX%]
(XX BPS)
Variable
Trust Discovery
Fund [X.XX%]
(XX BPS)
Variable
Trust Equity Income
Fund
[X.XX%] (XX BPS)
Variable
Trust International Core
Fund
[X.XX%] (XX BPS)
Variable
Trust Large Company Core
Fund [X.XX%]
(XX BPS)
Variable
Trust Large Company Growth
Fund [X.XX%]
(XX BPS)
Variable
Trust Money Market
Fund
[X.XX%] (XX BPS)
Variable
Trust Multi Cap Value
Fund [X.XX%]
(XX BPS)
Variable
Trust Opportunity
Fund [X.XX%]
(XX BPS)
Variable
Trust Small Cap Growth
Fund [X.XX%]
(XX BPS)
Variable
Trust Total Return Bond
Fund [X.XX%]
(XX BPS)
