Goldman, Sachs & Co. One New York Plaza New York, NY 10004 January 6, 1999
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
One
New
York Plaza
New
York,
NY 10004
January
6, 1999
Nationwide
Financial Services, Inc.
One
Nationwide Plaza I-09-V3
Columbus,
Ohio 43215
Ladies
and Gentlemen:
This
letter sets forth the agreement
between Nationwide Financial Services, Inc. (“NFS”) and the undersigned (“we” or
“▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.”) concerning certain administrative services to be
provided by NFS with respect to the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Variable Insurance Trust
(the
“Trust”).
1. The
Trust. The Trust is a Delaware business trust registered with the
Securities and Exchange Commission (the “SEC”) under the Investment Company Act
of 1940, as amended (the “Act”), as an open-end management investment
company. The Trust consists of one or more separate series
(“Portfolios”) of shares and serves as a funding vehicle for variable annuity
contracts and variable life insurance contracts. As such, the Trust
sells its shares to insurance companies and their separate
accounts. With respect to various provisions of the Act, the SEC
requires that owners of variable annuity contracts and variable life insurance
contracts be provided with materials and rights afforded to shareholders of
a
publicly-available SEC-registered mutual fund.
2. NFS. NFS
is an Ohio holding company. NFS’ subsidiary, Nationwide Life
Insurance Company, and its wholly owned subsidiary Nationwide Life and Annuity
Insurance Company (collectively, “Nationwide”) issues variable annuity contracts
and variable life insurance policies (collectively, the “Contracts”) supported
by the separate account(s) listed on Schedule B (the “Separate Account”; if more
than one, the term “Separate Account” shall apply to each Separate Account
subject hereto) which is registered with the SEC as a unit investment
trust. Nationwide has entered into a participation agreement (the
“Participation Agreement”) with the Trust pursuant to which Nationwide purchases
shares of the Trust for the Separate Account supporting Nationwide’s
Contracts.
3. ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. serves as the
distributor for the Trust. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Asset Management (“GSAM”),
an operating division of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., serves as the Trust’s
investment advisor. GSAM supervises and assists in the overall
management of the Trust’s affairs under an Investment Management Agreement with
the Trust, subject to the overall authority of the Trust’s Board of Trustees in
accordance with Delaware
law. Under
the Investment Management Agreement, we are compensated for providing investment
advisory and certain administrative services.
4. Administrative
Services. NFS has agreed to assist us, as we may request
from time to time, with the provision of administrative services to the Trust,
as they may relate to the investment in the Trust by the Separate
Account. It is anticipated that such services may include (but shall
not be limited to) the mailing of Trust reports, notices, proxies and proxy
statements and other informational materials to owners of the Contracts
supported by the Separate Account; the transmission of purchase and redemption
requests to the Trust’s transfer agent; the maintenance of separate records for
each owner of a Contract reflecting shares purchased and redeemed and share
balances attributable to such Contract Owner in the form of units; the
preparation of various reports for submission to the Trust’s Trustees; the
provision of shareholder support services with respect to the Portfolios serving
as funding vehicles for Nationwide’s Contracts; and the services listed on
Schedule A. NFS reserves the right to delegate its responsibilities
to provide the administrative services set forth in this Agreement to
Nationwide; provided, that NFS remains responsible for the full performance
of
any services so delegated.
5. Payment
for Administrative Services. In consideration of the
services to be provided by NFS, we shall pay NFS on a monthly basis, from our
assets, including GSAM’s bona fide profits as investment adviser to the
Trust, an amount equal to basis points __ per annum of the average
aggregate net asset value of shares of the Trust held by the Separate Account
under the Participation Agreement. For purposes of computing the
payment to NFS contemplated under this Paragraph 5, the average aggregate net
asset value of shares of the Trust held by the Separate Account over a one-month
period shall be computed by totaling the Separate Account’s aggregate investment
(share net asset value multiplied by total number of shares held by the Separate
Account) on each calendar day during the month, and dividing by the total number
of calendar days during such month. The payment contemplated by this
Paragraph 5 shall be calculated by GSAM at the end of each calendar month and
will be paid to NFS within thirty (30) business days thereafter.
6. Nature
of Payments. The parties to this letter agreement recognize and
agree that ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.’s payments to the NFS relate to
administrative services only and do not constitute payment in any manner for
investment advisory services or for costs of distribution of the Contracts
or of
Trust shares; and, further, that these payments are not otherwise related to
investment advisory or distribution services or expenses, or administrative
services which NFS is required to provide to owners of the Contracts pursuant
to
the terms thereof. NFS represents that it may legally receive the
payments contemplated by this Agreement.
7. Term. This
Agreement may be terminated by either party by at least 60 days’ written notice
to the other. In addition, NFS or ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. may
terminate this Agreement immediately upon written notice to the
other: (1) if required by applicable law or regulation; (2) if
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. or NFS engages in any material breach of this Agreement
or the corresponding Participation Agreement; or (3) in the event of an
assignment as defined by Section 2(a)(4) of the Act. This Agreement
will terminate immediately and
automatically
with respect to Funds held in the Separate Account upon the termination of
the
Participation Agreement which governs a Fund’s inclusion as an investment option
in the Separate Account and in such event no notice is required under this
Agreement; provided that with respect to Trust shares attributable to Contract
Owners which remain invested in the Trust after termination of the Participation
Agreement, this Agreement shall survive.
8. Representations
and Warranties.
(a) NFS
represents and warrants that:
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(i)
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it
is a holding company duly organized and in good standing under Ohio
law;
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(ii)
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its
entering into and performing its obligations under this letter agreement
does not and will not violate its charter documents or by-laws, rules
or
regulations, or any agreement to which it is a party;
and
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(b)
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Each
party represents and warrants that it will keep confidential any
information acquired in connection with the matters contemplated
by this
letter agreement regarding the business and affairs of the other
and the
other’s affiliates.
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9. Interpretation.
This letter agreement shall be construed in accordance with the laws of the
State of Delaware, without giving effect to the principles of conflicts of
laws,
subject to the following rules:
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(a)
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This
letter agreement shall be subject to the provisions of the Act, and
the
rules, regulations and rulings thereunder, including such exemptions
from
that statute, rules and regulations as the SEC may grant, and the
terms
herein shall be limited, interpreted and construed in accordance
therewith.
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(b)
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The
captions in this letter agreement are included for convenience of
reference and in no way define or delineate any of the provisions
herein
or otherwise affect their construction or
effect.
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10. Amendment. This
letter agreement may be amended only upon mutual agreement of the parties hereto
in writing.
11. Counterparts. This
letter agreement may be executed in counterparts, each of which shall be deemed
an original but all of which shall together constitute one and the same
instrument.
If
this letter agreement is consistent
with your understanding of the matters we discussed concerning your
administrative services, kindly sign below and return a signed copy to
us.
Very
truly yours,
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co.
By:
Name: Vice
President
Title: ▇▇▇▇▇▇▇
▇.
▇▇▇▇▇▇▇▇
Acknowledged
and Agreed to:
NATIONWIDE
FINANCIAL SERVICES, INC.
By:
Name: ▇▇▇▇▇▇
▇.
▇▇▇▇
Title: Vice
President – Chief Compliance
Officer
SCHEDULE
A
Maintenance
of books and records
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Record
issuance of shares
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Record
transfers (via net purchase orders)
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Reconciliation
and balancing of the Separate Account at the Trust level in the general
▇▇▇▇▇▇, at various banks and within systems interface to the summary
of
each Contract Owner’s position
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Purchase
orders
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Determination
of net amount available for investment by the
Trust
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Deposit
of receipts at Trust custodian by Trust (wire
order)
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Notify
custodian of estimated amount required to pay dividend distributions
or
reinvestments
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Redemption
orders
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Determination
of net amount required for redemptions by
Trust
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Notification
of custodian and Trust of cash required to meet
payments
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Cost
of share redemptions
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Fund-related
Contract Owner services
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Mailing
costs associated with dissemination of Trust prospectus to existing
Contract Owners or prospects
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Telephonic
support for Contract Owners with respect to inquiries about the Trust
(not
including information related to sales of annuity
contracts)
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−
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Trust
proxies (solicitation of voting instructions and preparation of materials,
inclusive of printing, distribution, tabulation, and
reporting)
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Mailing
costs associated with dissemination of Trust reports and notices
to
existing Contract Owners or
prospects
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Other
administrative support
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Sub-accounting
services
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Providing
other administrative support to the Trust as mutually agreed between
insurer and the Trust
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Relieving
the Fund of other usual or incidental administrative services provided
to
individual shareholders
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SCHEDULE
B
Dated
12/____/98
▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. │▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Tel:
▇▇▇-▇▇▇-▇▇▇▇ July
7,
1999
▇▇▇▇▇▇▇
▇▇▇▇▇▇
Nationwide
Financial Services
One
Nationwide Plaza, 1-11-08
Columbus,
Ohio 43215-2220
Re: Letter
Agreement Relating to Administrative Services for the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Variable
Insurance Trust (“Trust”) between ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co (“GS&Co.”) and
Nationwide Financial Services (“Company”) dated January 6, 1999.
Dear
▇▇.
▇▇▇▇▇▇:
Currently,
the monthly fee payable to
Company for administrative services provided during a given calendar month
in
accordance with the above referenced agreement is paid within 30 business days
after the month in which the services were provided.
Given
the current size of monthly
payments to date, we propose that the fee due Company under the letter agreement
paid annually within 30 business days after the end of the calendar year until
assets in the Company’s separate accounts investing in the Trust in the
aggregate reach $_. Thereafter, it is proposed that the fee be paid
quarterly on an ongoing basis, within 30 business days after end of the calendar
quarter in which the services to which they relate are provided. The
average aggregate net asset value used in the fee calculation for the annual
and
quarterly periods will be calculated in a manner consistent with the manner
in
which the average aggregate net asset value is calculated for the monthly period
under the existing arrangement. All payments will be made by check
unless otherwise agreed.
This
arrangement will be implemented in
July 1999. Accordingly, the July 1999 payment (otherwise payable
within 30 business days of 7/31) will be included in the annual payment payable
30 business days after December 31, 1999, or in the applicable quarterly payment
if assets reach $__ prior to that time.
Please
acknowledge your agreement with
the foregoing, by signing below in the space provided.
Very
truly yours,
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
Vice
President
▇▇▇▇▇▇▇
&
▇▇▇▇▇
&
Co.
Agreed
and Acknowledged:
Nationwide
Financial Services
Name: ▇▇▇▇▇▇
▇. ▇▇▇▇
Title: Vice
President – Chief Compliance Officer
July
8,
1999
VIA
AIRBORNE EXPRESS
▇▇.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice
President
Goldman,
Sachs, & Co.
▇▇
▇▇▇▇▇
▇▇▇▇▇▇
New
York,
New York 10004
RE: Letter
Agreement Relating to Administrative Services
Dear
▇▇.
▇▇▇▇▇▇▇▇:
Please
find enclosed for your flies an executed original of the Letter Agreement
between ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co. and Nationwide Financial Services,
Inc.
Should
you have any questions regarding the enclosed, please do not hesitate to contact
me at (▇▇▇) ▇▇▇-▇▇▇▇ or via e-mail at
▇▇▇▇▇▇▇@▇▇▇▇▇▇▇▇▇▇.▇▇▇.
Sincerely,
▇▇▇▇▇▇▇
▇▇▇▇▇▇, Esq.
Compliance
Manager
Nationwide
Financial Services, Inc.
cc: ▇▇▇▇▇
▇▇▇▇▇▇
File