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Exhibit 23(h)(3)
Amended and Restated
Administrative Services Agreement
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AMENDED AND RESTATED
ADMINISTRATIVE SERVICES AGREEMENT
This Amended and Restated Administrative Services Agreement ("Agreement") is
made as of this 17th day of February, 1999, between One Group(R) Investment
Trust, a Massachusetts business trust (herein called the "Trust"), and
Nationwide Advisory Services, Inc., an Ohio corporation, (herein called the
"Administrator").
WHEREAS, the Trust and the Administrator executed an Administrative Services
Agreement dated May 20, 1994 and the Trust and the Administrator executed an
Amended and Restated Administrative Services Agreement on August 23, 1996,
February 18, 1998, May 20, 1998, August 19, 1998, and February 17, 1999; and
WHEREAS, the parties hereto desire to amend the Amended and Restated
Administrative Services Agreement; and
WHEREAS, the Trust is a Massachusetts business trust, consisting of the series
of shares listed in Appendix A hereto (the "Funds"), which operates as an
open-end management investment company and will so register under the Investment
Company Act of 1940, as amended (the "Investment Company Act"); and
WHEREAS, the Trust desires to retain the Administrator as administrator to
provide certain administrative services described below with respect to each of
the Funds, and the Administrator is willing to render such services;
NOW, THEREFORE, in consideration of the premises and mutual covenants set forth
herein, the parties hereto agree as follows:
1. APPOINTMENT OF ADMINISTRATOR. The Trust hereby appoints the
Administrator as administrator of the Funds on the terms and conditions
set forth in this Agreement; and the Administrator hereby accepts such
appointment and agrees to perform the services and duties set forth in
Section 2 of this Agreement in consideration of the compensation
provided for in Section 4 hereof.
2. SERVICES AND DUTIES. As Administrator, and subject to the supervision
and control of the Trust's Board of Trustees, the Administrator will
provide facilities, equipment, and personnel to carry out the following
administrative services for operation of the business and affairs of
the Trust and each of its Funds:
a. prepare, file, and maintain the Trust's governing documents,
including the Declaration of Trust (which has already been
prepared and filed), the Bylaws, minutes of meetings of
Trustees and shareholders, and proxy statements for meetings
of shareholders;
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b. prepare and file with the Securities and Exchange Commission
and the appropriate state securities authorities the
registration statements for the Trust and the Trust's shares
and amendments thereto, the Trust's reports pursuant to
Investment Company Act Rule 24f-2, reports to shareholders and
regulatory authorities, including form N-SAR, and
prospectuses, proxy statements, and such other documents as
may be necessary or convenient to enable the Trust to make
continuous offering of its shares and to conduct its affairs;
c. prepare, negotiate, and administer contracts on behalf of the
Trust with, among others, the Trust's custodian and transfer
agent;
d. supervise the Trust's custodian and fund accounting personnel
in the maintenance of the Trust's general ledger and in the
preparation of the Trust's financial statements, including
oversight of expense accruals and payments, determination of
the net asset value of the Trust's assets and of the Trust's
shares, and of the declaration and payments of dividends and
other distributions to shareholders;
e. calculate performance data of the Funds for dissemination to
information services covering the investment company industry;
f. prepare and file on a timely basis the Trust's Federal and
State income and other tax returns;
g. examine and review the operations of the Trust's custodian,
transfer agent and investment adviser to promote compliance
with applicable state and federal law;
h. coordinate the layout and printing of publicly disseminated
prospectuses and reports;
i. perform internal audit examinations in accordance with
procedures to be adopted by the Administrator and the Trust;
j. assist with the design, development, and operation of the
Trust;
k. provide individuals reasonably acceptable to the Trust's Board
of Trustees for nomination, appointment, or election as
officers of the Trust, who will be responsible for the
management of certain of the Trust's affairs as determined by
the Trust's Board. of Trustees;
l. monitor the Trust's compliance with Section 817 and Sections
851 through 855 of the Internal Revenue Code of 1986, as
amended, and the regulations promulgated thereunder, so as to
enable the Trust to comply with the diversification
requirements applicable to investments of variable contracts
and to maintain its status as a "regulated investment
company;"
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m. advise the Trust and its Board of Trustees on matters
concerning the Trust and its affairs; and
n. provide the Trust with office space and personnel.
The foregoing, along with any additional services that the
Administrator shall agree in writing to perform for the Trust
hereunder, shall hereafter be referred to as "Administrative Services."
In compliance with the requirements of Rule 31a-3 under the Investment
Company Act, the Administrator hereby agrees that all records that it
maintains for the Trust are the property of the Trust and further
agrees to surrender promptly to the Trust any of such records upon the
Trust's request. The Administrator further agrees to preserve for the
periods prescribed by Investment Company Act Rule 31a-2 the records
required to be maintained by Investment Company Act Rule 31a-1.
Administrative Services shall not include any duties, functions, or
services to be performed for the Trust by the Trust's investment
adviser, custodian, or transfer agent pursuant to their agreements with
the Trust.
The Administrator acknowledges the importance of efficient and prompt
transmission of information to Nationwide Life and Annuity Insurance
Company, the purchaser of Trust shares to fund the obligations of
certain variable annuity contracts. The Administrator agrees to use its
best efforts to meet the deadline for transmission of pricing
information presently set by Nationwide Life and Annuity Insurance
Company and such other time deadlines as may be established from time
to time in the future.
When performing Administrative Services to the Trust, the Administrator
will comply with the provisions of the Declaration of Trust and Bylaws
of the Trust, will safeguard and promote the welfare of the Trust, and
will comply with the policies that the Trustees may from time to time
reasonably determine, provided that such policies are not in conflict
with this Agreement, the Trust's governing documents, or any applicable
statutes or regulations.
3. EXPENSES. The Administrator shall be responsible for expenses incurred
in providing all the Administrative Services to the Trust, including
the compensation of the Administrator employees who serve as Officers
of the Trust. The Trust (or the Trust's investment adviser) shall be
responsible for all other expenses incurred by the Administrator on
behalf of the Trust, including without limitation: (i) investment
advisory fees; (ii) interest and taxes; (iii) brokerage commissions and
other costs in connection with the purchase or sale of securities and
other investment instruments; (iv) all expenses incurred in valuing
portfolio securities for the Equity Index Fund; (v) fees and expenses
of the Trust's trustees, other than those who are "interested persons"
of the Administrator, distributor or investment adviser of the Trust;
(vi) legal and audit expenses; (vii) custodian, registrar and transfer
agent fees and expenses; (viii) fees and expenses related to the
registration and qualification of the Trust and the Trust's shares for
distribution under state and federal securities laws; (ix) expenses of
printing and mailing reports and notices and proxy material to
beneficial shareholders of the Trust; (x) all other expenses incidental
to holding meetings of the Trust's shareholders, including proxy
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solicitations therefor, (xi) insurance premiums for fidelity and other
coverage; (xii) association membership dues; (xiii) such nonrecurring
or extraordinary expenses as may arise, including those relating to
actions, suits or proceedings to which the Trust is a party and the
legal obligation which the Trust may have to indemnify the Trust's
trustees and officers with respect thereto.
4. COMPENSATION. For the Administrative Services provided, the Trust
hereby agrees to pay and the Administrator hereby agrees to accept as
full compensation for its services rendered hereunder an administrative
fee, payable monthly as soon as practicable after the last day of each
month. The administrative fee shall be computed on a daily basis at
annual rates equal to the following percentages of the average net
assets of the Trust (less assets of the Equity Index Fund): 0.24% of
the Trust's average net assets up to $250 million, and 0.14% of Trust's
average net assets in excess of $250 million. The administrative fee
for the Equity Index Fund shall be payable in the manner described
above and shall be computed on a daily basis at the annual rate of
0.14% of the average daily net assets of the Equity Index Fund.
In the event the total expenses of any one of the Funds in any fiscal
year exceed expense limitations imposed by applicable state securities
regulations, the Administrator and the Trust's investment adviser shall
reimburse that Fund by the amount of such excess in proportion to their
respective fees (after giving effect to any waiver of fees agreed to by
the Administrator and investment adviser).
In case of termination of this Agreement during any month, the
administrative fee for that month shall be reduced proportionately on
the basis of the number of business days during which it is in effect,
and the fee computed upon the average net assets for the business days
it is so in effect for that month.
5. RESPONSIBILITY OF ADMINISTRATOR.
a. The Administrator shall not be liable for any error of
judgment or mistake of law or for any loss suffered by the
Trust in connection with the matters to which this Agreement
relates, except a loss resulting from willful misfeasance, bad
faith or negligence on its part in the performance of its
duties or from reckless disregard by it of its obligations and
duties under this Agreement. Any person, even though also an
officer, director, partner, employee or agent of the
Administrator, who may be or become an officer, trustee,
employee or agent of the Trust, shall be deemed, when
rendering services to the Trust or acting on any business of
the Trust (other than services or business in connection with
the duties of the Administrator hereunder) in accordance with
his responsibilities to the Trust as such officer, employee or
agent, to be rendering such services to or acting solely for
the Trust and not as an officer, director, partner, employee
or agent or one under the control or direction of the
Administrator even through paid by the Administrator.
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b. The Administrator shall be kept indemnified by the Trust and
be without liability for any action taken or thing done by it
in performing the Administrative Services in accordance with
the above standards; provided, however, that the Trust will
not indemnify the Administrator for the portion of any loss or
claim caused, directly or indirectly, by the negligence of the
Administrator. In order that the indemnification provisions
contained in this Section 5 shall apply, however, it is
understood that if in any case the Trust may be asked to
indemnify or save the Administrator harmless, the Trust shall
be fully and promptly advised of all pertinent facts
concerning the situation in question, and it is further
understood that the Administrator will use all reasonable care
to identify and notify the Trust promptly concerning any
situation which presents or appears likely to present the
probability of such a claim for indemnification against the
Trust. The Trust shall have the option to defend the
Administrator against any claim which may be the subject of
this indemnification. In the event that the Trust so elects it
will so notify the Administrator and thereupon the Trust shall
take over complete defense of the claim, and the Administrator
shall in such situation initiate no further legal or other
expenses for which it shall seek indemnification under this
Section. The Administrator shall in no case confess any claim
or make any compromise in any case in which the Trust will be
asked to indemnify the Administrator except with the Trust's
written consent.
6. Duration and Termination
a. The initial term of this Agreement shall commence as of May
20, 1994 and extend until August 31, 1997.
b. Thereafter, this Agreement shall be automatically renewed each
year for an additional term of one year, unless notice of
termination has been delivered by either party to the other no
less than 90 days before the beginning of such additional
term.
c. Notwithstanding the foregoing, this Agreement may be
terminated at any time by mutual agreement of the parties
hereto or for "cause" (as defined below), in either case on
not less than 60 days' notice given by the Trust's Board of
Trustees or given by the Administrator. For purposes of this
Agreement, "cause" shall mean (a) willful misfeasance, bad
faith, gross negligence or reckless disregard on the part of
the Administrator with respect to its obligations and duties
set forth herein; (b) a final judicial, regulatory or
administrative ruling or order in which the Administrator has
been found guilty of criminal misconduct or of unethical
behavior in the operation of its business; (c) the dissolution
or liquidation of either party or other cessation of business
other than a reorganization or recapitalization of such party
as an ongoing business; (d) financial difficulties on the part
of either party which is evidenced by the authorization or
commencement of, or involvement by way of pleading, answer,
consent, or acquiescence in, a voluntary or involuntary case
under Title 11 of the United States Code, as may be in effect
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from time to time, or any applicable law, other than said
Title 11, of any jurisdiction relating to the liquidation or
reorganization of debtors or to the modification or alteration
of the rights of creditors; or (e) any other circumstances
which may substantially impair the performance of either
party's obligations and duties, or the ability to perform
those obligations and duties, as contemplated herein.
d. This Agreement shall be reviewed under the "cause" provisions
of Section 6(c) at least annually annually by the Trust's
Board of Trustees.
e. Upon the termination of this Agreement, the Trust shall pay
to the Administrator such compensation as may be payable prior
to the effective date of such termination. In the event that
the Trust designates a successor to any of the Administrator's
obligations hereunder, the Administrator shall, at the
direction of the Trust, transfer to such successor all
relevant books, records and other data established or
maintained by the Administrator under the foregoing
provisions.
7. AMENDMENT. No provision of this Agreement may be changed, waived,
discharged or terminated orally, but only by an instrument in writing
signed by the party against which an enforcement of the change, waiver,
discharge or termination is sought.
8. LIMITATIONS OF LIABILITY OF TRUSTEES EMPLOYEES, AGENTS AND SHAREHOLDERS
OF THE TRUST. The Administrator is expressly put on notice of the
limitation of liability as set forth in the Declaration of Trust and
agrees that the obligations assumed by the Trust pursuant to this
Agreement shall be limited in any case to the Trust and its assets and
that the Administrator shall not seek satisfaction of any such
obligations from the shareholders of the Trust, the Trustees, officers,
employees or agents of the Trust, or any of them.
9. PROPRIETARY AND CONFIDENTIAL INFORMATION. The Administrator agrees on
behalf of itself and its directors, officers, and employees to treat
confidentially and as proprietary information of the Trust all records
and other information relative to the Trust and prior, present, or
potential Shareholders, and not to use such records and information for
any purpose other than performance of its responsibilities and duties
hereunder, except after prior notification to and approval in writing
by the Trust, which approval may not be withheld where the
Administrator may be exposed to civil or criminal contempt proceedings
for failure to comply, when requested to divulge such information by
duly constituted authorities, or when so requested by the Trust.
Failure by the Administrator to comply with the provisions of this
Section will constitute "cause" for purposes of Section 6(c).
10. NOTICES. Notices of any kind to be given to the Trust hereunder by the
Administrator shall be in writing and shall be duly given if delivered
to the Trust and to its investment adviser at the following address:
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The One Group(R) Investment Trust
Three Nationwide ▇▇▇▇▇ ▇-▇▇-▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., President and Treasurer
Notices of any kind to be given to the Administrator hereunder by the
Trust shall be in writing and shall be duly given if delivered to the
Administrator at:
Nationwide Advisory Services, Inc.
Three ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Treasurer
11. MISCELLANEOUS. The captions in this Agreement are included for
convenience of reference only and in no way define or delimit any of
the provisions hereof or otherwise affect their construction or effect.
If any provision of this Agreement shall be held or made invalid by a
court or regulatory agency decision, statute, rule or otherwise, the
remainder of this Agreement shall not be affected thereby. Subject to
the provisions of Section 5, hereof, this Agreement shall be binding
upon and shall inure to the benefit of the parties hereto and their
respective successors and shall be governed by Massachusetts law;
provided, however, that nothing herein shall be construed in a manner
inconsistent with the Investment Company Act of 1940 or any rule or
regulation promulgated by the Securities and Exchange Commission
thereunder.
IN WITNESS WHEREOF, the parties hereto have caused this instrument to be
executed by their officers designated below as of the day and year first above
written.
THE ONE GROUP(R) INVESTMENT TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Title: President and Treasurer
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NATIONWIDE ADVISORY SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Treasurer
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APPENDIX A
FUNDS OF THE TRUST
One Group Investment Trust Government Bond Portfolio
One Group Investment Trust Balanced Portfolio
One Group Investment Trust Mid Cap Growth Portfolio
One Group Investment Trust Large Cap Growth Portfolio
One Group Investment Trust Equity Index Portfolio
One Group Investment Trust Bond Portfolio
One Group Investment Trust Diversified Equity Portfolio
One Group Investment Trust Diversified Mid Cap Portfolio
One Group Investment Trust Mid Cap Value Portfolio
THE ONE GROUP(R) INVESTMENT TRUST
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
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Title: President and Treasurer
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NATIONWIDE ADVISORY SERVICES, INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇
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Title: Treasurer
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Dated: February 17, 1999